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DAUD MAMAT & ORS v. MAJLIS AGAMA ISLAM/ADAT & ANOR HIGH COURT MALAYA, KOTA BHARU SURIYADI HALIM OMAR J [ORIGINATING SUMMONS NO: 24 – 319, 320, 321 & 322 – 2000] 25 FEBRUARY 2001: State List 2 Federal Constitutions – Syariah Court Jurisdictions

DAUD MAMAT & ORS v. MAJLIS AGAMA ISLAM/ADAT & ANOR
HIGH COURT MALAYA, KOTA BHARU
SURIYADI HALIM OMAR J
[ORIGINATING SUMMONS NO: 24 – 319, 320, 321 & 322 – 2000]
25 FEBRUARY 2001

[Application dismissed.]

JUDGMENT

Suriyadi Halim Omar J:

On 25 February 2001 I dismissed the above four originating summons. As the order when pronounced was in Malay, for practical purposes of the current judgment, I herewith reproduce the interpreted version:

Four separate originating summons were filed by Daud bin Mamat, Kamariah binti Ali, Mohamed bin Ya and Mad Yaacob bin Ismail (hereinafter referred to as the plaintiffs) at the Kota Bharu (Kelantan,) registry of the High Court of Malaya, praying for several declarations. Among them was the right to profess and practise their religion of choice. The premise of their prayers, inter alia, was Article 11(1) of the Federal Constitution. In brief they alleged that as they had apostatized, the Enakmen Majlis Agama Islam dan Adat Istiadat

Melayu Kelantan 1994 which provided the powers for the Syariah Court, to decide whether they had indeed left the religion of Islam, was thenceforth inapplicable to them.

The affidavits confirmed that the plaintiffs at the initial stages had been convicted and sentenced to jail for heresy. Appeals were filed but to no avail, except that the Religious Court of Appeal (Mahkamah Rayuan Syariah) had modified the sentences, in that the imprisonment orders were set aside. The Syariah High Court substituted the orders whereby under the varied orders they were required to appear at the Kadi’s office every month for three years, whereupon they were required to repent (melafazkan taubat). To cut the story short, the plaintiffs had failed to adhere to these new instructions, resulting in fresh charges being preferred against them (hereinafter referred to as the “first charges”). The matter culminated in their convictions and imprisonment.

This time the plaintiffs did not file any appeals.

On 12 November 2000, the plaintiffs informed the court that with effect from 16 August 1998, they had already apostatized. Founded upon this confession, they were charged for offences pursuant to section 102(3) of the Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994 (hereinafter referred to as the “second charges”). To date the second charges are still pending. To wind up this sub-issue, matters that are connected to section 102(2), among them substantive points of fact and law pertaining to the confirmation of their apostasy, therefore are still at large and premature.

That being so, as they had not appealed against the first charges, what with the second charges still pending, what then are their grievances or reasons to pray for the declarations before me? For certain there are none.

Apart from the above legal posers, notably on the ground that the plaintiffs have not been confirmed as having apostatized, in accordance with procedures laid down by the Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994, they thus are deemed to be Muslims and hence constitutionally and statutorily subject to the jurisdiction of the Syariah Court (section 102(2)). That being so, the High Court of Malaya will be powerless to adjudge on the matters brought by them (see Article 121 (1A) of the Federal Constitution).

Article 11, in brief reads that every person has the right to profess and practise his religion, and subject to Clause (4), to propagate it. Having scrutinized the facts and the latter Article, I am of the opinion that the allegation of their rights having been compromised or infringed, supposedly guaranteed by the Federal Constitution, had no nexus with Article 11. It was undisputed that the plaintiffs had voluntarily declared themselves as having left the Islamic faith. How could their constitutional rights to profess and practise their religion of choice have been compromised when their actions indicated otherwise? What was certain was that they did not wish to profess and practise the Muslim religion. The act of exiting from a religion is not a religion, and hence could not be equated with the right “to profess and practise” their religion.

On that score, the law alluded to by the plaintiffs was off the mark, and irrelevant to their grievances.

On the above grounds, and without any hesitation I hereby dismiss the originating summons with costs.

The backdrop of this decision originated from four originating summons, which were respectively filed by the above plaintiffs. As the prayers sought for were similar in nature, I decided to undertake some case management exercise, whereupon after having extricated the consent of all parties, I decided that all the four originating summons be dealt with simultaneously. As they were quite similar in every aspect, I decided to launch off with the case of Daud bin Mohamedie, OS No. 24-319-2000 as a test case, with the outcome being applicable on the rest.

In brief the eight prayers or declarations sought were that:

1.the plaintiffs had the constitutional right to profess and practise the religion of their choice under art. 11(1) of the Federal Constitution;

2.Article 11(1) holds sway over any other laws, be they Federal or State as regards the choice and practise of the religion;

3.the absolute right and freedom of the plaintiffs under the said article to profess and practise their religion of choice, could only be decided by themselves alone and not subject to the declaration or confirmation of anybody else, be they individual or otherwise;

4.any provision in the law, be they Federal or State, that does provide for the definition of a Muslim but does not recognize art. 11(1) of the Federal Constitution is void;

5.any law, be they Federal or State pertaining to the religion of Islam will be inapplicable to the plaintiffs, as they had declared their apostasy and hence protected by art. 11(1);

6.any law that empowers the Syariah court to decide whether they had left the religion of Islam or not, or requires a declaration from such court as a precondition before they are considered as having left the religion of Islam, contravenes art. 11(1) of the Federal Constitution;

7.any provision in the law, be they Federal or State that restricts or prevents the right of the plaintiffs to declare themselves not wanting to profess, and practise the religion of Islam contravenes the said article, and hence void; and

8.pursuant to the above anticipated declaratory orders, the defendants or their agents are not entitled to demand or impose any conditions before they are considered as having left the religion of Islam.

Having perused the eight declaratory orders sought, it was clear that the crux of the whole matter relate primarily to their right of professing and practising the religion of their choice. The summons distinctly adverted to s. 41 of the Specific Relief Act 1950and O. 15 r. 16 of the Rules of the High Court 1980. The former reads:

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief.

Order 15 r. 16 of the Rules of the High Court 1980reads:

No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right, whether or not consequential relief is or could be claimed.

It is my considered opinion that the question of whether the declaration applications should be entertained or not, depends largely on the answers to these questions, viz. whether:

1. the plaintiffs or the matter affecting the rights of the plaintiffs fall within

the jurisdiction of the High Court of Malaya or the Syariah Court;

2. Article 11(1) of the Federal Constitution, adverted to is applicable in the circumstances of the case; and

3. whether in the circumstances of the case, even though the Court has the discretionary powers pursuant to the above section 41 of the Specific Relief Act 1950, the declaratory orders sought ought to be entertained?

To answer the above questions, it is necessary for me to trace the history and the actions of Parliament, which eventually culminated in the amendment of parts of the Federal Constitution. In Ramah bte Taat v. Laton bte Malim Sutan[1927] 6 FMSLR 128, Thorne J had occasion to say:

Although I have held that the Supreme Court has jurisdiction to deal with such cases as the present, the further question emerges as to whether or not the Supreme Court is the proper tribunal for dealing with these cases and whether it would not be more consonant with the views of those professing the Mohammedan Religion that His Highness the Sultan in Council in each state should establish special courts for dealing with these cases …

Come A 704 of 1988, effective on 10 June 1988, the promulgation of art. 121(1A) of the Federal Constitution, ousted the High Courts in Malaya and Sabah and Sarawak, over matters which fall within the jurisdiction of the Syariah courts. There is no shortage of cases that have acquiesced to this provision, among them Dalip Kaur v. Pegawai Polis Daerah, Bali Polis Daerah, Bukit Mertajam & Anor[1991] 3 CLJ 2768; [1991] 1 CLJ 77 (Rep). Under List 11-State List (art. 74; 95B(1)(a)), the Federal Constitution has succinctly delineated the powers of the Syariah court, in short over persons professing the religion of Islam. The Supreme Court in Mohamed Habibullah Mahmood v. Faridah Dato’ Talib[1993] 1 CLJ 264clearly established that:

The intention of Parliament by Art. 121(1A) of the Federal Constitutionis to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court.

The legislation of art. 4 of the Constitution, which entrenches the supreme position of the Federal Constitution, merely reconfirmed the lofty position of the above art. 121(1A). With the latter article in existence any jurisdictional conflicts, once and for all, between the civil and the Syariah Courts is avoided. Taking the matter a step further and from a different perspective, the religious court’s power, in the same vein similarly cannot be invoked against non- Muslims (see Ng Siew Pian v. Abd Wahid Abu Hassan, Kadi Daerah Bukit Mertajam & Anor[1993] 1 CLJ 391).

Before delving into the technical matters, I need to resolve a procedural or “the sufficiency of interest” factor first. That being so, a perusal of the facts becomes exceedingly necessary. The affidavits clearly revealed that they are of Kelantanese descent, of Malay parentage, and had been born into the faith of Islam. In fact, the supporting affidavits of the plaintiffs had reiterated that they had been brought up within the environment and disciplines of Islam, and had always professed and practised the religion of Islam. The plaintiffs admitted that they had been dragged before the Syariah High Court of Kelantan, to face the charges of having carried out acts and practices that were in contravention of the Islamic law. They were found guilty under s. 69 of the Undang-Undang Majlis Ugama Islam Kelantan Dan Adat Istiadat Melayu bil. 2/66, and were sentenced to 20 months imprisonment each.

Pursuant to the convictions and sentences, they filed the relevant appeals but were unsuccessful, as in 1996 the Mahkamah Syariah Kelantan confirmed the convictions. Only the imprisonment sentences were disturbed. In substitution of those incarceration orders, they were thenceforth required to appear at the Kadi’s office every month for three years, whereupon they were to declare their regrets in line with Islamic tenets. Unfortunately, after sometime they failed to appear at that office, alleging that the text of the “taubat” (regret) declarations were yet to be ready for them to utter. For those breaches, charges (referred to as the “first charges”) were preferred against them. Pending the hearing of the latter charges they were released. Taking advantage of their unimpeded movement, the plaintiffs swore under oath on 24 August 1998 that with effect from 16 August 1998, they had apostatized. On 5 October 2000 they were remanded pursuant to s. 132(5) Enakmen Prosedur Jenayah Syariah 1983, for non-adherence of certain instructions during the intervening period of the first charges. One month and seven days later ie, on 12 November 2000 when their cases were being mentioned, the plaintiffs informed the court that they had already renounced their Islamic faith. In spite of having being informed of that development, the court still ordered their detention, whereupon much to their chagrin on 19 November 2000 they faced new additional charges of apostasy (referred to as the second charges). On that date too, the court dealt with the first charges, resulting in the plaintiffs being sentenced to three years jail each pursuant to s. 69 of the Enakmen Majlis Ugama Dan Adat Istiadat Melayu Kelantan 1966, for contravening the Syariah Appeal Court orders. There were no appeals filed as against those conviction and imprisonment orders. No explanation either was proffered in their affidavits as to why none were filed. Until now too the second charges are yet to be heard. Those are the relevant facts for my consideration for purposes of this judgment.

A reading of the originating summons revealed that they lacked actual “grievances” upon which to found the declaration applications. It would have been improbable that the grievances could have been connected to the conviction and imprisonment orders of 19 November 2000 (first charges), as no appeals were filed against them. This takes care of the alternative remedy factor (Kuluwante v. Government of Malaysia & Anor[1977] 1 LNS 49; [1978] 1 MLJ 92). Similarly, the second charges could not have been the basis either, as those charges were and are still awaiting trial. To advert to the second charges would be unacceptably premature. Why no clear reasons were supplied, or whether the plaintiffs had mistakenly deduced at the material time that once they had renounced their faith, they would automatically be non-Muslims, is not for the court to speculate on. Based on the available facts, I miserably failed to pinpoint the plaintiffs’ discernable reasons for the declaratory actions. If that were so the plaintiffs have simply prayed for a declaration of a mere legal right (Pedley v. Majlis Ugama Islam Pulau Pinang & Anor[1990] 2 CLJ 391; [1990] 2 CLJ 24 (Rep)). Regardless of that factual reality, in that the plaintiffs are not clothed with any real grievance, as reflected in its dearth in the originating summons, recent cases have shown that courts are still willing to entertain actions that do not reveal real grievances or injury in them. Abdoolcader J, delivering the decision of the Federal Court in Tan Sri Othman Saat v. Mohamed Ismail[1982] 1 LNS 2; [1982] 2 MLJ 177, had occasion to say:

There are also some recent cases in which the plaintiff was allowed to sue, even though he had no real grievance or injury at all, as they involved matters of particular public concern (Blackburn v. Attorney-General; Regina v. Greater London Council, Ex parte Blackburn; Regina v. Metropolitan Police Commissioner, Ex parte Blackburn, and the reasoning seems to have been that unless the court in its discretion gave the plaintiff a hearing, then no one would bring the matter to court.

We would also refer to the very recent decision of the English Court of Appeal inRegina v. Horsham Justies, Ex parte Farquharson and Anorwhere Lord Denning, M.R., refers (at p. 446) to the principle he had endeavored to state in earlier cases which was endorsed by Lord Diplock in the House of Lords in Inland Revenue Commissions v. National Federation of Self-Employed and Small Businesses Ltd.(at p. 737) and again when he said (at p. 740):

it would, in my view, be a grave lacuna in our system of public law if a pressure group, like the Federation, or even a single public-spirited taxpayers, be prevented by outdated technical rules of locus standifrom bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.

The sensible approach in the matter of locus standiin injunctions and declarations would be that as a matter of jurisdiction, an assertion of an infringement of a contractual or a proprietary right, the commission of a tort, a statutory right or the breach of a statute which affects the plaintiff’s interest substantially or where the plaintiff has some genuine interest in having his legal position declared, even though he could get no other relief, should suffice.

The above liberal approach, unfortunately was not favoured by Abdul Hamid CJ in Government of Malaysia v. Lim Kit Siang[1988] 1 CLJ 219; [1988] 1 CLJ 63 (Rep), as at p. 240 His Lordship opined:

In any event, as I have already noted, I would prefer the test of standing propounded by their Lordships in the Gourietcase, that is to say, the same standing rules apply whether the remedy sought is a declaration or an injunction. And, either the plaintiff’s “rights” must be at stake, or when, as in the present case, the matter does not concern private rights, the plaintiff must suffer or about to suffer damage peculiar to himself … Speaking for myself, I would hesitate to say that a mere “legitimate grievance” or a “real interest” in the suit will suffice to show standing to sue.

Be that as it may, I would say that the decision in Tan Sri Haji Othman Saat‘s case was correct having regard to the facts of that particular case.

Regardless of whether I pursue the liberal approach of being satisfied based merely on the plaintiffs’ legitimate or real interest, or acquiescing to the more stringent requirement of the plaintiffs private rights actually having been infringed, as canvassed by the case of Gouriet v. Union of Post Office Workers and Others[1977] 3 All ER 70 (followed by Abdul Hamid CJ), it will not save the plaintiffs’ case. This is because, the relevant question that really needs to be answered beforehand, for purposes of this case, is whether at the time of filing the originating summons the plaintiffs were Muslims or not? This is a question of fact and law. As they had alleged that they had renounced their Muslim faith, from their point of view they had expected themselves to be safely outside the ambit of the Syariah Court and the relevant religious Enactments. To answer this pertinent question of their religious status, an appreciation of the relevant laws, read together with the above facts, is unavoidable.

As the facts have already been bared above, and to avoid repetition, I now need only to unfold the relevant statutory law of apostasy in Kelantan, ie, the Enakmen Majlis Agama Islam Dan Adat Istiadat Melayu Kelantan 1994, with particular reference to s. 102(1). Why I approach the matter from the point of view of the State Enactment, is because the Federal Court in Soon Singh Bikar Singh v. Pertubuhan Kebajikan Islam Malaysia (perkim) Kedah & Anor[1999] 2 CLJ 5, in no uncertain terms held that (Per Mohamed Dzaiddin FCJ (as His lordship then was), the correct approach in the face of a challenge to jurisdiction, is to look at the State Enactments to see whether or not the Syariah Courts have been expressly conferred jurisdiction on a given matter. This said s. 102(1) provides for a finding of fact exercise, for purposes of ascertaining whether a Muslim respondent, and in this case the plaintiffs have indeed apostatised. The State Legislature in their infinite wisdom, perhaps to ensure that the exercise of ascertainment will not be prematurely defeated, had seen it fit to legislate s. 102(2). In brief it provides that a person is still deemed a Muslim until confirmed by the Syariah court as having apostatized. In an awkward way, the matter of apostasy has been dealt with by an Enactment in Kelantan, as per the above Enakmen Majlis Agama Islam Dan Adat Istiadat Melayu Kelantan 1994. In recognition of this, Mohamed Dzaiddin FCJ in Soon Singh Bikar Singh (supra)commented the following:

The Kelantan Enactment No. 4 of 1994, s. 102 also provides that no person who has confessed that he is a Muslim by religion may declare that he is no longer a Muslim until a court has given its approval to that effect.

Before the court gives its approval, the person shall be presumed to be a Muslim and any matter which is connected with the Religion of Islam shall be applied to him.

These provisions and the spirit behind them certainly are in line with the teachings and tenets of Islam, as the Koran is quite explicit in that if one is forced to pronounce something that amounts to apostasy, while his heart remains a Muslim, he will not be charged with it in those circumstances (Quran, ch. 16: 106). Returning to the current facts, as the plaintiffs are yet to be found guilty of the second charges of apostasy, what with the deeming provision available, for all intents and purposes I have to conclude that they still are Muslims.

The down to earth legal requirement of imposing a duty upon the Syariah Court to ascertain, and not by any other person or institution, of whether a person had indeed apostatized is not only sound but practical. The jurists in the Syariah Court, apart from being conversant with religious matters, will also be in a more elevated position to make a sound judgment of the status of any would-be apostate, bearing in mind their constant interaction with the Muslim populace. If they are legally qualified that will be a plus factor. Pertaining to this matter Mohamad Yusof SCJ in Dalip Kaur (supra)had occasion to remark:

Such a serious issue would, to my mind need consideration by eminent jurists who are properly qualified in the field of the Islamic Jurisprudence.

On this view, it is imperative that the determination of the question in issue requires substantial consideration of the Islamic law by relevant jurists qualified to do so. The only forum qualified to do so is the syariah court.

Indisputably, as the issues before me do not involve matters of interpretation of the written law of the State of Kelantan, enacted for the administration of Muslim law, of which are still within my jurisdictional purview, then by virtue of art. 121(1A)of the Federal Constitution, my powers are curtailed. That being so, the plaintiffs being legally Muslims will still remain within the jurisdiction of the Syariah court, and thus outside my jurisdictional purview.

Apart from the above jurisdictional flaw, which could not support their applications, the plaintiffs have unwittingly alluded to art. 11(1) of the Federal Constitutionas the main ground of their grouses. This provision reads that every person has the right to profess and practise his religion and, subject to cl. (4), to propagate it. This brief but meaningful article in crystal clear terms guarantees the right and freedom of every citizen, of whatever race or religion to profess and practise his or her beliefs unhindered. Having appreciated the above article, my next course of action is to gauge whether, any individual or institution in this country had infringed the constitutionally guaranteed religious rights of the plaintiffs in any way. After perusing the affidavits, I could not escape the conclusion that the issue of the plaintiffs having been prevented from practising their religion of choice, really did not exist here. In fact the complaints actually revolved around the issue of their right to apostate. It was undisputed that the plaintiffs had voluntarily declared themselves as having left the Islamic faith. How could their constitutional rights to profess and practise their supposed religion of choice have been compromised or infringed, when their actions indicated otherwise? The act of exiting from a religion is certainly not a religion, or could be equated with the right “to profess and practise” their religion. To seriously accept that exiting from a religion may be equated to the latter two interpretations, would stretch the scope of art. 11(1) to ridiculous heights, and rebel against the canon of construction. On that score I reject the contention of the plaintiffs that their rights pursuant to art. 11(1) had been infringed.

Needless to say if art. 11(1) were to read, inter alia, that “everyone has the right to renounce or profess and practise his religion, and subject to cl. (4), to propagate it”, my conclusion would certainly be steered towards a different course. As it were, as the impugn article does not contain that additional hypothetical ingredient, the plaintiffs’ action to resort to that article is surely misdirected and misconceived.

After due consideration, primarily on the two intertwined grounds that the plaintiffs are Muslims, thus ousting my jurisdiction over them as regards the subject-matters, and what with art. 11(1) being inapplicable in the circumstances of the case, I had no hesitation in dismissing the originating summons with costs.

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SIVARASA RASIAH V. BADAN PEGUAM MALAYSIA & ANOR FEDERAL COURT [PUTRAJAYA] RICHARD MALANJUM CJSS, ZULKEFLI AHMAD MAKINUDIN FCJ, GOPAL SRI RAM FCJ RAYUAN SIVIL NO: 01-8-2006(W) 17 NOVEMBER 2009:

SIVARASA RASIAH V. BADAN PEGUAM MALAYSIA & ANOR

FEDERAL COURT [PUTRAJAYA]

RICHARD MALANJUM CJSS, ZULKEFLI AHMAD MAKINUDIN FCJ, GOPAL SRI RAM FCJ

RAYUAN SIVIL NO: 01-8-2006(W)

17 NOVEMBER 2009

Case History :

Court Of Appeal : [2006] 1 CLJ 139

Court Of Appeal : [2002] 2 CLJ 697

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

(BIDANGKUASA RAYUAN)

RAYUAN SIVIL NO: 01-8-2006(W)

ANTARA

SIVARASA RASIAH … PERAYU

DAN

1. BADAN PEGUAM MALAYSIA … RESPONDEN-RESPONDEN
2. KERAJAAN MALAYSIA

(Daripada Perkara Mahkamah Rayuan Malaysia

Rayuan Sivil No: W-01-49-2002

Antara

Sivarasa Rasiah … Perayu

Dan

1. Badan Peguam Malaysia … Responden-Responden)
2. Kerajaan Malaysia

 

Coram: RICHARD MALANJUM, CJSS

ZULKEFLI BIN AHMAD MAKINUDIN, FCJ

GOPAL SRI RAM, FCJ

JUDGMENT OF THE COURT

1. The appellant is an advocate and solicitor. He is also an office bearer of a political party and a Member of Parliament. He wishes to stand for and, if elected, serve on the Bar Council which is the governing body of the Malaysian Bar. Section 46A(1) of the Legal Profession Act 1976 (“the Act”) prohibits him from doing so. It says, among other things not relevant here:-

“A person shall be disqualified for being a member of the Bar Council or a Bar Committee or of any committee of the Bar Council or a Bar Committee:-

(b) if he is a member of either House of Parliament, or of a State Legislative Assembly, or of any local authority; or

(c) if he holds any office in:-

(i) any trade union; or

(ii) any political party;”

2. The appellant challenged the constitutionality of section 46A(1). His challenge failed before the High Court and the Court of Appeal. He has now appealed to us. The challenge is based on three broad grounds. First, that the section violates his rights of equality and equal protection guaranteed by Article 8(1) of the Constitution. Second, that it violates his right of association guaranteed by Article 10(1)(c). Third, that it violates his right to personal liberty guaranteed by Article 5(1). He argues that in the event that any one of these rights is found to be violated, the section must be declared void as being inconsistent with the supreme law. The arguments advanced in support of the appeal require the case to be taken through several stages.

3. Before discussing the specific areas of challenge there are three preliminary observations that must be made. The first has to do with the methodology of interpretation of the guaranteed rights. In three recent decisions this Court has held that the provisions of the Constitution, in particular the fundamental liberties guaranteed under Part II, must be generously interpreted and that a prismatic approach to interpretation must be adopted. These are Badan Peguam Malaysia v. Kerajaan Malaysia [2008] 1 CLJ 521, Lee Kwan Woh v. Public Prosecutor [2009] 5 CLJ 631; [2009] 1 LNS 778 and Shamim Reza v. Public Prosecutor [2009] 6 CLJ 93. The provisions of Part II of the Constitution contain concepts that house within them several separate rights. The duty of a court interpreting these concepts is to discover whether the particular right claimed as infringed by state action is indeed a right submerged within a given concept.

4. Article 5(1) may be selected to illustrate the point that is sought to be made since it is one of the provisions relied on in this case. That Article proscribes the deprivation of life or personal liberty, save in accordance with law. “Law” wherever mentioned in Part II of the Constitution includes – by statutory direction – the common law of England (see Article 160(2) read with section 66 of the Consolidated Interpretation Acts of 1948 & 1967). It is now well-settled that by the common law of England the right of access to justice is a basic or a constitutional right. See, Raymond v. Honey [1983] 1 AC 1, 13; R v. Secretary of State for the Home Department, ex parte Leech [1993] All ER 539. In Thai Trading Co (a firm) v. Taylor [1998] 3 All ER 65 at 69, Millett LJ described it as a fundamental human right. Thus, the common law right of access to justice is part of the “law” to which Article 5(1) refers. In other words, a law that seeks to deprive life or personal liberty (both concepts being understood in their widest sense) is unconstitutional if it prevents or limits access to the courts.

5. The other principle of constitutional interpretation that is relevant to the present appeal is this. Provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively. Take Article 10(2)(c). It says that “Parliament may by law impose…(c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.” Now although the Article says “restrictions”, the word “reasonable” should be read into the provision to qualify the width of the proviso. The reasons for reading the derogation as “such reasonable restrictions” appear in the judgment of the Court of Appeal in Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19 which reasons are now adopted as part of this judgment. The contrary view expressed by the High Court in Nordin Salleh v. Dewan Undangan Negeri Kelantan [1992] 3 CLJ 135 (Rep); [1992] 1 CLJ 463 is clearly an error and is hereby disapproved. The correct position is that when reliance is placed by the State to justify a statute under one or more of the provisions of Article 10(2), the question for determination is whether the restriction that the particular statute imposes is reasonably necessary and expedient for one or more of the purposes specified in that Article.

6. The second observation has to do with the test that should be applied in determining whether a constitutionally guaranteed right has been violated. The test is that laid down by an unusually strong Supreme Court in the case of Dewan Undangan Negeri Kelantan v. Nordin bin Salleh [1992] 1 CLJ 72 (Rep); [1992] 2 CLJ 1125; [1992] 1 MLJ 709, as per the following extract from the headnote to the report:-

“In testing the validity of the state action with regard to fundamental rights, what the court must consider is whether it directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory.”

7. The third and final observation is in respect of the sustained submission made on the appellant’s behalf that the fundamental rights guaranteed under Part II is part of the basic structure of the Constitution and that Parliament cannot enact laws (including Acts amending the Constitution) that violate the basic structure. A frontal attack was launched on the following observation of the former Federal Court in Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187:

“The question whether the impugned Act is ‘harsh and unjust’ is a question of policy to be debated and decided by Parliament, and therefore not meet for judicial determination. To sustain it would cut very deeply into the very being of Parliament. Our courts ought not to enter this political thicket, even in such a worthwhile cause as the fundamental rights guaranteed by the Constitution, for as was said by Lord Macnaghten in Vacher & Sons Ltd v. London Society of Compositors [1913] AC 107, 118:

‘Some people may think the policy of the Act unwise and even dangerous to the community. Some may think it at variance with principles which have long been held sacred. But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. It is, I apprehend, as unwise as it is unprofitable to cavil at the policy of an Act of Parliament, or to pass a covert censure on the Legislature.’

It is the province of the courts to expound the law and ‘the law must be taken to be as laid down by the courts, however much their decisions may be criticised by writers of such great distinction — per Roskill L.J. in Henry v. Geopresco International Ltd [1975] 2 All ER 702, 718. Those who find fault with the wisdom or expediency of the impugned Act, and with vexatious interference of fundamental rights, normally must address themselves to the legislature, and not the courts; they have their remedy at the ballot box.”

8. It was submitted during argument that reliance on the Vacher case was misplaced because the remarks were there made in the context of a country whose Parliament is supreme. The argument has merit. As Suffian LP said in Ah Thian v. Government of Malaysia [1976] 1 LNS 3; [1976] 2 MLJ 112:

“The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of State legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.”

This earlier view was obviously overlooked by the former Federal Court when it followed Vacher’s case. Indeed it is, for reasons that will become apparent from the discussions later in this judgment, that the courts are very much concerned with issues of whether a law is fair and just when it is tested against Article 8(1). Further, it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution. See, Keshavananda Bharati v. State of Kerala AIR [1973] SC 1461.

9. It now becomes necessary to turn to the respective constitutional provisions that are said to have been violated by the impugned section. And it is convenient to begin with Article 10(1)(c) which says that “all citizens have the right to form associations.” The argument here is as follows. “Associations” to which the Article refers includes professional bodies that are created and regulated by statute. Accordingly, the Malaysian Bar is an “association” within Article 10(1)(c). The concept of freedom of association includes within it the right not only to be a member but also to serve on the Bar Council, the governing body of the Malaysian Bar. What section 46A does is to impact upon and render illusory this fundamental right of the appellant. Further, the impugned section is not saved by the proviso contained in Article 10(2)(c). So much for the submissions on this point.

10. The first question to ask is whether a statutory body like the Malaysian Bar is an “association” within Article 10(1)(c). A careful examination of the authorities provides a negative response. In Daman Singh v. State of Punjab AIR [1985] SC 973 the Supreme Court of India speaking through O Chinappa Reddy J said:

“In the cases before us we are concerned with co-operative societies which from the inception are governed by statute. They are created by statute, they are controlled by statute and so, there can be no objection to statutory interference with their composition on the ground of contravention of the individual right of freedom of association.”

It is of interest to note that Daman Singh was recently applied in Sumangaiam Co-operative Society Ltd v. High Court of Gujarat AIR [2007] SC 671.

11. The Malaysian Bar was created by statute and has, from its inception, been governed by statute, namely the Act and the subsidiary legislation made thereunder. As such, no complaint can be made on the ground that the appellant’s right of freedom of association has been violated. In short, Article 10(1)(c) does not apply to the Malaysian Bar. Accordingly no question can arise on the issue of the right to serve on the Bar Council.

12. Even if Daman Singh and the cases that have applied it were wrongly decided, and the Malaysian Bar is an association and even if the appellant has a fundamental right to serve on the Bar Council, the disqualifications that section 46A imposes are reasonable restrictions within Article 10(2)(c). That provision says that “Parliament may by law impose…(c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.” As earlier pointed out, the clause must be read as “such reasonable restrictions”. The restrictions are reasonable because they are justifiable on the ground of morality. The expression “morality” is not defined by the Constitution. However, in Manohar v. State of Maharashtra AIR [1984] Bom 47 (a case cited by learned senior federal counsel) it was held that morality in the equipollent Indian Article 19(2)(4):-

“is in the nature of public morality and it must be construed to mean public morality as understood by the people as a whole.”

Part of public morality is the proper conduct and regulation of professional bodies. Matters of discipline of the legal profession and its regulation do form part of public morality. This is because it is in the public interest that advocates and solicitors who serve on the governing body behave professionally, act honestly and independent of any political influence. An independent Bar Council may act morally in the proper and constitutional sense of that term. The absence of political influence secures an independent Bar Council. Hence, as stated earlier, the restriction is entirely reasonable and justifiable on grounds of public morality. It follows that the challenge based on Article 10(1)(c) fails.

13. The next ground is based on Article 5(1). It is convenient to deal with the challenge mounted on Articles 5(1) and 8(1) together for reasons that will become clear later in this judgment. To remind, Article 5(1) proscribes the deprivation of life and personal liberty save in accordance with law. The starting point is the submission of senior federal counsel that if the appellant cannot bring his case as a violation of his right of association under Article 10(1)(c), then that is the end of his case and he cannot rely on Article 5(1). With respect that submission is devoid of any merit. Article 10 contains certain express and, by interpretive implication, other specific freedoms. For example, the freedom of speech and expression are expressly guaranteed by Article 10(1)(a). The right to be derived from the express protection is the right to receive information, which is equally guaranteed. See, Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal AIR 1995 SC 1236. However, there are freedoms that do not fall within the wide scope of that Article. These freedoms may be found to be embedded in the “life” and “personal liberty” limbs of Article 5(1). As Ayyangar J said in Kharak Singh v. State of Uttar Pradesh [1963] AIR SC 1295. when discussing Article 21 of the Indian Constitution, the expression ‘personal liberty’

“… is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the ‘personal liberties’ of man other than those dealt with in the several clauses of art 19(1). In other words, while article 19(1) deals with particular species or attributes of that freedom, ‘personal liberty’ in article 21 takes in and comprises the residue.”

14. In the present instance, the appellant bases his case on the “personal liberty” limb. Learned senior federal counsel submits that the concept “personal liberty” in Article 5(1) should receive the narrow and restricted meaning ascribed to it by a two member Bench of this Court in Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan [2002] 4 CLJ 105; [2002] 3 MLJ 72. With respect this submission must be rejected as being without merit. The authorities referred to earlier in this judgment are clearly against such an approach to constitutional interpretation.

15. It is patently clear from a review of the authorities that “personal liberty” in Article 5(1) includes within its compass other rights such as the right to privacy (see, Govind v. State of Madhya Pradesh AIR [1975] SC 1378). By parity of reasoning, the right to be a member of a statutorily created and regulated professional body – in this case the Malaysian Bar – comes within “personal liberty” and is protected by Article 5(1). The issue is whether there has been a deprivation of that right “in accordance with law”. The answer must straightaway be in the negative. Because section 46A does not infringe the appellant’s right to be a member of the Malaysian Bar. What it does is to prevent him from serving on a distinctly separate body, namely the Bar Council. Two questions then arise. First, whether membership of the Bar Council is a right within the personal liberty clause. Second, if it is, then whether the right has been deprived in accordance with law. Each must be separately considered.

16. There can be no doubt that the appellant’s right to membership of the general body, that is to say the Malaysian Bar falls within the concept of “personal liberty”. The mere fact that the body in question is statutory in nature makes no difference. An advocate solicitor who has been admitted to practise law can only do so if he or she is a member of the Malaysian Bar. In order to be eligible to commence practice, the advocate and solicitor must obtain a practising certificate and pay the subscription and other dues to the Malaysian Bar. He or she may earn his or her livelihood only if he or she is approved for practise in the sense already described. All this is required by the Act and the relevant subsidiary legislation made under it. Hence what the Act confers upon an advocate and solicitor is not a mere privilege; it is a right to earn a livelihood. And it is this right which the personal liberty vested in a member of the Malaysian Bar carries with it. Included in the bundle of rights that form part of the membership of the Malaysian Bar is the legitimate expectation to participate in the Bar Council elections and, if elected, to serve on that body. Accordingly, the legitimate expectation to serve on the Bar Council is also a right protected by the personal liberty clause of Article 5(1). What section 46A does in pith and substance is to directly impact on this right of the appellant and render it ineffective or illusory. Put slightly differently, the inevitable effect or consequence of section 46A is to render the appellant’s constitutional right to serve on the Bar Council ineffective or illusory. This satisfies the test in Dewan Undangan Negeri Kelantan v. Nordin bin Salleh. The appellant has therefore been deprived of his constitutionally guaranteed right. Learned senior federal counsel relies on Azeez Basha v. Union of India AIR [1968] SC 662, 675 to argue that there is no such right as contended by the appellant. In that case, the Supreme Court of India held that Article 19(1)(c) (the equipollent of our Article 10(1)(c)) of the Indian Constitution does not give any right to any citizen to manage any association but merely the right to form associations. She submits that by parity of reasoning there should be no such right under the personal liberty clause. There is no question that Azeez Basha v. Union of India is certainly good law in the context of Article 10(1)(c). But it has no application to the separate and distinct right of personal liberty guaranteed by Article 5(1). The submission is with respect not well founded.

17. Now for the second question, namely, whether the deprivation of the appellant’s fundamental right is in accordance with law under Article 5(1). What does “law” mean? As earlier observed, by definition it includes written law and the common law of England. This is the result when Article 160(2) is read with section 66 of the Consolidated Interpretation Acts 1948-1967. Also see, Lee Kwon Woh. “Law” therefore means a system of law that encompasses the procedural and substantive dimensions of the rule of law. And this is the point at which Articles 8(1) and 5(1) interact.

18. Following the majority decision of this Court in Badan Peguam Malaysia v. Kerajaan Malaysia, the other provisions of the Constitution must be interpreted in keeping with the doctrine of procedural and substantive fairness housed in Article 8(1). Thommen J in Shri Sitaram Sugar Co Ltd v. Union of India & Ors [1990] 3 SCC 223 at p. 251 explained the effect of Article 14 of the Indian Constitution which is the equipollent of our Article 8(1) as follows:

“Any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of art 14 of the Constitution. As stated in EP Royappa v. State of Tamil Nadu [1974] 4 SCC3 ‘equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch’. Unguided and unrestricted power is affected by the vice of discrimination: Maneka Gandhi v. Union of India. The principle of equality enshrined in art 14 must guide every State action, whether it be legislative, executive, or quasi-judicial: Ramana Dayaram Shetty v. International Airport Authority of India [1979] 3 SCC 489, 511-12, Ajay Hasia v. Khalid Mujib Sehravardi [1981] 1 SCC 722 and DS Nakara v. Union of India [1983] 1 SCC 305.”

19. Accordingly, when state action is challenged as violating a fundamental right, for example, the right to livelihood or the personal liberty to participate in the governance of the Malaysian Bar under Article 5(1), Article 8(1) will at once be engaged. When resolving the issue, the court should not limit itself within traditional and narrow doctrinaire limits. Instead it should, subject to the qualification that will be made in a moment, ask itself the question: is the state action alleged to violate a fundamental right procedurally and substantively fair. The violation of a fundamental right where it occurs in consequence of executive or administrative action must not only be in consequence of a fair procedure but should also in substance be fair, that is to say, it must meet the test of proportionality housed in the second, that is to say, the equal protection limb of Article 8(1). However, where the state action is primary or secondary legislation, that is to say, an Act of Parliament or subsidiary legislation made by the authority of Parliament, the test of constitutionality is only based on substantive fairness: no question arising on whether the legislation is the product of a fair procedure. This is because the doctrine of procedural fairness does not apply to legislative action of any sort. See, Bates v. Lord Hailsham of St. Marylebone, [1972] 1 WLR 1373; Union of India v. Cynamide India Ltd AIR [1987] SC 1802.

20. It is clear from the authorities thus far discussed that “in accordance with law” in Article 5(1) refers to a law that is fair and just and not merely any enacted law however arbitrary or unjust it may be. The question whether an enacted law is arbitrary must be decided upon settled principles that govern the right in Parliament to pass discriminatory laws. So long as the law does not produce any unfair discrimination it must be upheld. This is the effect of the equality limb of Article 8(1). And it is here that a discussion of that Article becomes necessary. If section 46A passes the test of fairness as housed in the equality clause then it is a fair law and therefore is a valid law for the purposes of Article 5(1).

21.Article 8(1) provides that: “All persons are equal before the law and entitled to the equal protection of the law”. As may be seen, the Article guarantees two separate and distinct rights, namely, (i) equality before the law; and (ii) equal protection of the law. It cannot be over-emphasised that in accordance with well settled principles of constitutional interpretation each of these rights must be treated as a separate and distinct right despite an overlap as will be seen later in this judgment. Indeed, each right is derived from a distinctly different source. The framers of our Constitution (like the framers of the Indian Constitution) derived the equality clause from the Constitution of the Irish Free State. The equality doctrine in reality is drawn from Dicey’s Rule of Law one of the pillars of which is that persons are equal before the law. As pointed out by Chandrachud J In Indira Nehru Ghandi v. Raj Narain AIR [1975] SC 2299, 2470:

“Dicey gave three meanings to rule of law: Absence of arbitrary power, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by ordinary law courts and that the Constitution is not the source but the consequence of the rights of individuals, as defined and enforced by the Courts.” [Emphasis added.]

22. The framers drew the equal protection clause from the 14th Amendment to the Constitution of the United States which reads:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is important to note that the Constitution of the United States does not contain an equality clause. It was through the ingenuity of the Supreme Court’s interpretation of the due process clause that an implied right to equality, that is to say, the right to challenge any form of state action as arbitrary, was established through case law. See, Poe v. Ullman 367 US 497, 543 [1961]; Williams v. Illinois 399 US 235, 262 [1970].

23. Basu in his authoritative work “Commentary on the Constitution of India“, 8th edition (2007) volume 1, page 958 says this in respect of Article 14 of the Indian Constitution:

“The expressions ‘equality before the law’ and ‘equal protection of laws’ do not mean the same thing, even if there may be much in common … Equality before the law is a dynamic concept having many facets. One facet – the most commonly acknowledged – is that there shall be no privileged person or class and none shall be above the law. Equality before the law is a positive concept and cannot be enforced in a negative manner. Where the State commits an illegality or irregularity in favour of any individual or group of individuals others cannot claim the same illegality or irregularity on the ground of a denial thereof.”

24. This view finds judicial support. In Asiatic Engineering Co. v. Achhru Ram and Ors. AIR [1951] All 746, the court said:-

“Article 14 of our Constitution lays down two things. It enacts that:-

The State shall not deny to any person (1) equality before the law or (2) the equal protection of the laws within the territory of India.’

Obviously, these two phrases have different meanings to some extent. We consider it unnecessary to discuss at length the meaning of the expression ‘equality before the law,’ as no point in connection with it seriously arises in the case. It appears to have been taken from the Constitution of the Irish Free State. Professor Dicey described the rule of law as one of the characteristics of the British Constitution. Of this rule of law one of the main features is, according to that great writer, ‘equality before the law.'”

25. How is the Court then to say in a given case that the particular statute under challenge is compliant with the equality clause? The answer lies in the following passage in the judgment of Suffian LP in Public Prosecutor v. Khong Teng Khen [1976] 1 LNS 100; [1976] 2 MLJ 166:-

“The principle underlying Article 8 is that a law must operate alike on all persons under like circumstances, not simply that it must operate alike on all persons in any circumstance, nor that it ‘must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons … for the purpose of legislation’, Kedar Nath v. State of West Bengal AIR [1953] SC 404, 406. In my opinion, the law may classify persons into children, juveniles and adults, and provide different criteria for determining their criminal liability or the mode of trying them or punishing them if found guilty; the law may classify persons into women and men, or into wives and husbands, and provide different rights and liabilities attaching to the status of each class; the law may classify offences into different categories and provide that some offences be triable in a Magistrate’s court, others in a Sessions Court, and yet others in the High Court; the law may provide that certain offences be triable even in a military court; fiscal law may divide a town into different areas and provide that ratepayers in one area pay a higher or lower rate than those of another area, and in the case of income tax provide that millionaires pay more tax than others; and yet in my judgment in none of these cases can the law be said to violate Article 8. All that Article 8 guarantees is that a person in one class should be treated the same as another person in the same class, so that a juvenile must be tried like another juvenile, a ratepayer in one area should pay the same rate as paid by another ratepayer in the same area, and a millionaire the same income tax as another millionaire, and so on.”

26. Apply that here. What section 46A does is to classify advocates and solicitors into those who are Members of Parliament and those who are not. It classifies advocates and solicitors who hold office in a political party and those who do not. This is a reasonable classification for the purpose of permitting a member of the profession from having a say in the governance of the profession. There is an important reason of policy in support of the classification that the section makes. It is fair and just that the governance of a professional body be kept in the hands of professionals who have no other visible political interests that may create the perception that the Bar Council has political leanings. Even before the introduction of section 46A into the Act by way of amendment in 1978, the Bar Council had no political leanings. All that the impugned section does is to ensure that professional politicians are excluded from the governance of the profession. In the words of Harun J when speaking of section 46A in Malaysian Bar v. Government of Malaysia [1986] CLJ 508 (Rep); [1986] 2 CLJ 343; [1986] 2 MLJ 225:

“The object is clearly that the affairs of the Bar be managed by members of the legal profession who are not only professionally independent but appear to the outside world to be so. The emphasis is an independent Bar which is not subject to external influences of a non-professional character. Hence the provision that lawyers who are members of Parliament, or any of the State Legislatures or local authorities; or hold office in any trade unions or political party or organisations of a political nature are disqualified from holding office in the Bar Council or Committees.” [Emphasis added.]

For these reasons, section 46A is compliant with the equality clause of Article 8(1).

27. The next issue to consider is whether the section violates the equal protection clause. This calls for an interpretation of that clause. The test here is whether the legislative state action is disproportionate to the object it seeks to achieve. Parliament is entitled to make a classification in the legislation it passes. But the classification must be reasonable or permissible. To paraphrase in less elegant language the words of Mohamed Azmi SCJ in Malaysian Bar v. Government of Malaysia [1987] CLJ 185 (Rep); [1987] 1 CLJ 459; [1987] 2 MLJ 165, the classification must (i) be founded on an intelligible differentia distinguishing between persons that are grouped together from others who are left out of the group; and (ii) the differentia selected must have a rational relation to the object sought to be achieved by the law in question. And to quote that learned judge: “What is necessary is that there must be a nexus between the basis of classification and the object of the law in question.” In short, the state action must not be arbitrary. This, then, is the common thread that webs and binds the two limbs of Article 8(1). Hence the overlap.

28. Although there are a number of cases on what is meant by arbitrary state action, the most authoritative is the judgment of Gubbay CJ in Nyambirai v. National Social Security Authority [1996] 1 L.R.C. 64 which was approved by the Privy Council in de Freitas v. The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1998] UKPC 30. Lord Clyde when delivering the judgment of the Board said:

“In determining whether a limitation is arbitrary or excessive he [Gubbay CJ] said that the Court would ask itself:-

‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’

Their Lordships accept and adopt this threefold analysis of the relevant criteria.”

29. In Secretary of State For The Home Department, Ex Parte Daly, R v. [2001] UKHL 26. Lord Steyn adopted what was said in de Freitas:

“The contours of the principle of proportionality are familiar. In de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p. 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:-

‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'”

30. It will be seen from a reading of the speech of Lord Steyn in Daly that the threefold test is applicable not only to test the validity of legislation but also executive and administrative acts of the State. In other words, all forms of state action – whether legislative or executive – that infringe a fundamental right must (i) have an objective that is sufficiently important to justify limiting the right in question; (ii) the measures designed by the relevant state action to meet its objective must have a rational nexus with that objective; and (iii) the means used by the relevant state action to infringe the right asserted must be proportionate to the object it seeks to achieve.

31. It is clear from the foregoing discussion that the equal protection clause houses within it the doctrine of proportionality. This indeed is the point made by the Indian Supreme Court in Om Kumar v. Union of India AIR [2000] SC 3689. There, Jagannadha Rao J a most learned judge whose views are entitled to great respect said:-

“So far as Article 14 is concerned, the Courts in India examined whether the classification was based on intelligible differentia and whether the differentia had a reasonable nexus with the object of the legislation. Obviously, when the Court considered the question whether the classification was based on intelligible differentia, the Courts were examining the validity of the differences and the adequacy of the differences. This is again nothing but the principle of proportionality.”

31. It appears that Canada has led the way in the field of defining arbitrariness of state action. In R v. Oakes [1986] 1 SCR 10, a case that has influenced the jurisprudence of many jurisdictions, including Zimbabwe, Dickson, C.J. identified three components of the proportionality test:

“To begin, the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective. In addition, the means should impair the right in question as little as possible. Lastly, there must be a proportionality between the effects of the limiting measure and the objective –the more severe the deleterious effects of a measure, the more important the objective must be.”

32. Returning to the present instance the first question to be asked is whether section 46A is a piece of discriminatory legislation. See, Datuk Haji Harun bin Idris v. Public Prosecutor [1976] 1 LNS 19; [1977] 2 MLJ 155. The answer must surely be in the affirmative because it discriminates against those advocates and solicitors who are either office bearers of a political party or a Member of Parliament or both. The next question to ask is whether the discrimination is arbitrary in the sense already discussed. A careful examination of the reasons behind the enactment as revealed in the speech of the Minister for Law and Attorney General as reported in Hansard when introducing section 46A in Bill form to Parliament is to keep the Bar Council free from political influence. It is now settled that resort to Hansard may be legitimately had as a guide to interpreting an Act of Parliament. See, Chor Phaik Har v. Farlim Properties Sdn Bhd [1994] 4 CLJ 285; [1994] 3 MLJ 345. As earlier observed, it is in the public interest to have the governing body, namely, the Bar Council, free of any political influence. The section however does not prevent the appellant and those members of the Bar similarly circumstanced as he from attending and speaking at a general meeting of the Bar to put their views across for the purpose of influencing the Bar Council. It follows that the legislative measure under challenge is proportionate to the object it seeks to achieve. The result may have well been different if the section had prohibited the appellant and others in his position from practising law or from attending the general meetings of the Bar. Such a measure may well have been disproportionate and therefore arbitrary and unconstitutional. In short, section 46A satisfies the threefold test laid down in Nyambirai and hence does not violate Article 8(1). It follows that it is a fair and just law within Article 5(1) and therefore does not offend that Article as well. Put shortly, the appellant’s right within the compass of the personal liberty clause was deprived in accordance with law.

33. To sum up, section 46A of the Act does not violate Article 10(1)(c) or Article 5(1) or Article 8(1). It is a valid law. The appeal is therefore dismissed. The orders of the High Court and the Court of Appeal are affirmed. By agreement of the parties there shall be no order as to costs. The deposit shall be refunded to the appellant.

 

Public Prosecutor v Lee Chwee Kiok [1979] 1 MLJ 45:

[1979] 1 MLJ 45

PUBLIC PROSECUTOR v LEE CHWEE KIOK

OCRJ KUALA LUMPUR

HARUN J

SELANGOR CRIMINAL TRIAL NO 2 OF 1977

19 September 1977

Criminal Law and Procedure — Dangerous Drugs — Trafficking — Charge amended — No consent of Public Prosecutor on the amended charge — Whether trial was a nullity — Dangerous Drugs Ordinance, 1952, ss 37(b) & (g), 39B(1)(a), 39B(1)(c), 39(B)(3) — Criminal Procedure Code (FMS Cap 6), s 214(i)

Dangerous Drugs — Trafficking — Amended charge — Acquittal — Dangerous Drugs Ordinance, 1952, ss 37(b) & (g), 39B(1)(a), 39B(1)(c), 39(B)(3) — Criminal Procedure Code (FMS, Cap 6), s 214(i)

The accused was originally charged with trafficking in dangerous drugs on July 21, 1976 at TBG 1306 Jalan Harper, Kelang under section 39B(1)(a) of the Dangerous Drugs Ordinance. On November 25, 1976 the Public Prosecutor issued his written consent to prosecute under section 39B(3) of the said Ordinance. At the trial, on September 19, 1977, the learned Deputy Public Prosecutor amended the charge in two respects: The offence was alleged to have been committed at TBG 1306A, Jalan Harper, Kelang and the offence alleged was that of doing an act preparatory to trafficking under section 39B(1)(c) of the Dangerous Drugs Ordinance. No consent of the Public Prosecutor had been obtained on the amended charge.

Held, acquitting and discharging the accused:

  • (1)

the trial was a nullity as the Public Prosecutor had not given his consent on the amended charge;

  • (2)

the facts as found in this case did not support either charge.

Cases referred to

Abdul Hamid v Public Prosecutor [1956] MLJ 231

Lim Seo v R [1962] MLJ 304

Lyn Hong Yap v Public Prosecutor [1956] MLJ 226

CRIMINAL TRIAL

Gulamoydeen bin Mohamed Haniffa (Deputy Public Prosecutor) for the Public Prosecutor.

Radzi bin Tan Sri Sheikh Ahmad for the accused.

HARUN J

In this case the accused was charged under section 39B of the Dangerous Drugs Ordinance. At the close of the case for the prosecution, I heard the submissions of both counsel and then directed the jury to return a verdict of not guilty under section 214(i) of the Criminal Procedure Code. They did so, whereupon I acquitted and discharged the accused. My reasons for taking this course are as follows:

The accused was originally charged with trafficking in dangerous drugs on July 21, 1976 at TBG 1306, Jalan Harper, Kelang under section 39B(1)(a) of the Dangerous Drugs Ordinance. On November 25, 1976 the Public Prosecutor issued his written consent to prosecute under section 39B(3) of the said Ordinance. She was first produced before the Magistrate at Kelang on December 16, 1976 and at the close of the preliminary inquiry on January 28, 1977 she was committed to stand trial at the High Court on the same charge.

When the trial commenced before me however on September 19, 1977, the learned Deputy Public Prosecutor amended the charge in two respects:

  • (i)

The offence was alleged to have been committed at TBG 1306A, Jalan Harper, Kelang.

  • (ii)

The offence, alleged was that of doing an act preparatory to trafficking under section 39B(1)(c) of the Dangerous Drugs Ordinance.

The question is whether the court has jurisdiction to proceed with the trial on the amended charge without a fresh consent by the Public Prosecutor. As the matter is res integra I proceeded with the trial to save the public expense, the witnesses and jury being present in court. It will be observed that although the original and amended charges are two distinct offences, they are both created by the same section of the law viz. section 39B(1) and both carry the same penalty. Both require the consent of the Public Prosecutor under section 39B(3). The learned Deputy Public Prosecutor argued that the amendment was technical and as the Public Prosecutor had given his consent on the original charge he was at liberty to amend the charges in the manner he did. I do not think so. It was held in Abdul Hamid v Public Prosecutor [1956] MLJ 231 that a consent to prosecute “is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side”. The Public Prosecutor has clearly exercised his mind in respect of the original charge when he gave his consent to prosecute some four months after the alleged offence. It was incumbent on him however to exercise the same degree of deliberation in respect of the amended charge. He has not done so. In Lim Seo v Regina [1962] MLJ 304 counsel was given sanction to prosecute undersection 379 of the Penal Code but he proceeded under section 381 of the Penal Code instead. It was held that counsel cannot depart from the specific authorisation of the Public Prosecutor. It seems to me that the same principles apply here. The facts of the case were fully before the Public Prosecutor at the time of giving his consent and he could have elected to proceed on the amended charge then. He did not do so. It would appear therefore that the Public Prosecutor has not given his consent to prosecute under the amended charge. That being so, the trial is a nullity on the authority of Lyn Hong Yap v Public Prosecutor [1956] MLJ 226.

Be that as it may, the facts as I found them did not support either charge. In the first place there is the confusion about the address. It is clear from the evidence that the police party raided house no. TBG 1306. The confusion began when they found a water bill at TBG 1306 in the name of the accused but the address given was TBG 1306A. There is no evidence that house number TBG 1306 and TBG 1306A are in fact the same house nor is there evidence to show that there is no house numbered TBG 1306A. A reasonable inference is that these numbers indicate two separate houses and if that be so a doubt arises if the accused had the care and management or was the occupier of the premises TBG 1306 Jalan Harper. This fact is important since the prosecution was relying on the presumptions under section 37(b) and (g) of the Dangerous Drugs Ordinance. I found on the evidence that these two presumptions did not apply.

Secondly, the drugs were found in tins under the kitchen. These tins were found amongst other tins which were empty. There was no evidence to connect the accused with these tins and as I had found

1979 1 MLJ 45 at 46

that the presumption of ‘occupier’ did not apply to the accused, the presumption of knowledge of the concealment of the drugs under section 37(g) did not arise either.

Thirdly, the quantities of drugs found were insufficient to raise the presumption of trafficking under section 37(da):

Drug

Found in premises

Minimum Quantity under section 37(da)

Morphine

86.3 grammes

100 grammes

Chandu

550.8 grammes

1000 grammes

Chandu dross

121.6 grammes

1000 grammes

It was this fact that led to the amendment of the alleged offence. I pause here to observe that there is no change in the quantities found by the police and at the trial. This fact was known to the prosecution throughout and certainly to the Public Prosecutor when he signed the consent on November 25, 1976. The evidence did not disclose any fact of trafficking as defined in section 2 other than that of concealment. As the evidence stood it was insufficient to support a charge under section 39B(1)(a).

Turning now to the amended charge. Packing drugs in small packets is preparatory to trafficking within the meaning of section 39B(1)(c) but there was no evidence that the accused packed these drugs or that she had anything to do with them.

The drugs were certainly concealed under the kitchen at TBG 1306 Jalan Harper. Who concealed the drugs there? I found as a fact that the accused did not.

Solicitors: Radzi bin Tan Sri Sheikh Ahmad.

Abdul Hamid v PP [1956] MLJ 231:

[1956] 1 MLJ 231

ABDUL HAMID v PUBLIC PROSECUTOR

ACRJ SEREMBAN

SMITH J

CRIMINAL APPEAL NO 11 OF 1956

18 August 1956

Prevention of Corruption Ordinance, 1950, ss 3 & 12 — What amounts to an offence under s 3 of the Ordinance — Distinction between “consent” and “sanction” to prosecute — “Rights and powers” in s 376(iii) of the Criminal Procedure Code (Cap 6) — Scope of

Summary trial — Evidence of similar facts — Same transaction — Finding of ‘guilty’ whether to be formally recorded

In this case the learned Judge held that to establish an offence under section 3 of the Prevention of Corruption Ordinance, 1950, it is not necessary to show that the favour sought was within the power of the accused, but the favour shown must then have been within the power of the accused’s principal.

There is an essential difference between a sanction and a consent. A prosecution can be sanctioned without any deep consideration of the particular case: full consideration is required for consent since “consent” is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. A sanction is therefore no evidence of consent.

The very general words “rights and powers” appearing in section 376(iii) of the Criminal Procedure Code are sufficient to permit a Deputy Public Prosecutor to consent to a prosecution under the Prevention of Corruption Ordinance.

Where there are other offences of the same kind which are all part of one and the same transaction evidence thereof is properly admissible.

There is no requirement in section 173(m)(2) of the Criminal Procedure Code that the finding of “Guilty” shall be formally recorded unless the accused pleads guilty. It is sufficient if the record shews clearly that the Court did find the accused guilty.

Cases referred to

R v Metz 11 Cr App R 164

Hiralal Badlo v R (1950) MLJ 96

Raju v R (1953) MLJ 21

R v Rearden 4 F & F 76; 176 ER 473

MAGISTRATE’S CRIMINAL APPEAL

Edgar Joseph (Jr) for the appellant.

LA Massie (Federal Counsel) for the respondent.

SMITH J

The essential facts of this case were as follows.

The complainant applied for a post in the Home Guard. Hearing nothing he asked the accused about his application, the accused being at the time an Assistant Home Guard Officer and in charge of the Home Guard in Kuala Pilah. The complainant asked the accused whether there was a vacancy for a Permanent Staff Instructor. The accused told the complainant to write out an application for the post which the complainant did. The complainant handed the application to the accused who said that the complainant must pay him $100 or he would not recommend him. The complainant, who at the time had only $40, gave the $40 to the accused who said that the complainant was not to worry and that he would get the post. This was on 15th February 1956. On 23rd February the accused sought out the complainant and asked if the complainant had the balance of $60. The complainant had only $20 which the accused took. On 28th February the complainant approached the accused asking if his appointment had been approved. The accused asked for the balance of $40. The complainant gave accused the balance of $40. The accused had no authority to recruit personnel into the Home Guard.

The accused was tried upon the following charge which relates to the final payment of $40:—

That you on the 28th day of February, 1956, at Kuala Pilah in the State of Negri Sembilan being an agent of the Government of the Federation of Malaya namely an Assistant State Home Guard Officer corruptly accepted the sum of $40 from Samsudin bin Haji Salam as a reward for doing an act in relation to your principal’s affairs, namely for the purpose of recruiting the said Samsudin into the Home Guard as a Sergeant in the Home Guard, and that you have thereby committed an offence contrary to and punishable under Section 3 of the Prevention of Corruption Ordinance, 1950.

It was submitted first that there had not been a consent to the prosecution as required by section 12 of the Prevention of Corruption Ordinance, 1950 (hereinafter called ‘the Ordinance’) which reads:—

“12. A prosecution under this Ordinance shall not be instituted except by or with the consent of the Public Prosecutor.”

It was objected that Exhibit P1 was not signed by the Public Prosecutor personally and was a sanction under the Criminal Procedure Code and therefore not a consent. Exhibit P1 reads as follows:—

1956 1 MLJ 231 at 232

“The Officer-in-Charge,

Criminal Investigation,

Negri Sembilan,

Seremban.

SANCTION TO PROSECUTE UNDER SECTION 129

OF THE CRIMINAL PROCEDURE CODE (CAP. 6)

In exercise of the powers conferred upon me by section 129 and section 376(iii) of the Criminal Procedure Code, I, Leslie Alexander Massie, Deputy Public Prosecutor for the State of Negri Sembilan do hereby sanction the prosecution of Abdul Hamid bin Mohd. for an offence punishable under section 3(a) of the Prevention of Corruption Ordinance No. 5 of 1950 alleged to have been committed by him at Kuala Pilah on or about the 28th day of February 1956.

Dated this 26th day of April 1956.

sd. L. A. Massie
Deputy Public Prosecutor,
Negri Sembilan & Malacca.”

I do not consider that consent must be given personally by the Public Prosecutor. In my opinion the very general words “rights and powers” appearing in section 376(iii) of the Criminal Procedure Code (F.M.S. Cap. 6) are sufficient to permit a Deputy Public Prosecutor to consent to a prosecution under the Ordinance.

There was more substance in the argument that no consent had been given. The learned Deputy Public Prosecutor argued that section 12 of the Ordinance did not stipulate a particular form which the consent should take and that a sanction implied consent. I agree with the first argument but respect fully disagree with the second.

There is an essential difference to my mind between a sanction and a consent. A prosecution can be sanctioned without any deep consideration of the particular case: full consideration is required for consent since “‘Consent’ is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side” (Stroud 3rd Edition vol. I page 582). The sanction was therefore no evidence of consent. However I satisfied myself from evidence given by the learned Deputy Public Prosecutor that he had in fact fully applied his mind to the particular case and had consented before signing Ex. P1 (R v Metz 11 Cr App R 164, followed).

Secondly it was argued that since the accused had no power himself to recruit personnel for the Home Guard he had committed no offence under the Ordinance, applying the principles of Hiralal Badlo v R (1950) MLJ 96. In that case a soldier was offered an inducement to release a person who had been illegally arrested: it was held that no offence was disclosed since the favour sought was “not in relation to the affairs” of the principal since the arrest had been made outside the premises of the principal and in an area where the soldier had no power to make an arrest.

In this case it is clearly the affair of the Federal Government to recruit personnel for the Home Guard. Whether the accused had the power to recruit or not is immaterial: the question is for what purpose did the complainant give the money, was that purpose in relation to the affairs of the accused’s principal and did the accused receive the money knowing the intention with which it was given by the complainant. I respectfully agree with the learned President where he says:—

“The Ordinance does not say anything about the act being within the competence of the agent. If it did, no one, or at any event very few, could be prosecuted. It is quite obvious that a P.C. who releases a prisoner in return for a bribe is not competent to release that person. A Magistrate who takes a bribe and acquits a person would be competent, but it would be absurd to argue that the former could not be prosecuted, and the latter could.”

Thirdly it was strongly argued for the appellant that evidence of similar facts prejudicial to the accused had been admitted without reasonable cause and that no specific reason had been given for leading evidence thereon contrary to the principles enunciated in Raju’s (1953) MLJ 21 case.

I cannot agree that the evidence of the earlier instalments of the bribe were admitted without reasonable cause. As the learned President has noted in his Grounds of Judgment the three incidents really form one whole: the last incident, the subject of the charge, cannot be understood without reference to the earlier incidents. Where there are other offences of the same kind which are all part of one and the same transaction evidence thereof is properly admissible (see R v Rearden 4 F & F 76; 176 ER 473).

From the record it does not appear that before evidence of the earlier incidents was led the prosecution informed the Court for what purpose that evidence was being led. It is highly desirable that this should be done and, when not done, may put the accused, particularly when undefended, in great difficulties. In this particular case the accused was represented. The record reveals no objection to the evidence being led nor to any submission thereon at the close of the prosecution case. There is no statutory requirement that the purpose for which the evidence of this kind is led should be stated: it is a sound matter of practice. In this case I do not consider that the appellant was in any way prejudiced by the failure to state the purpose: it must have been self-evident. I am satisfied that here there was no omission in the proceedings

1956 1 MLJ 231 at 233

which has occasioned a failure of justice. (See section 422 Criminal Procedure Code).

The remaining points in this well-argued appeal may be disposed of shortly. It was submitted that the conviction was bad since the learned President had not recorded a formal finding of ‘Guilty’ but proceeded straightaway to conviction. Section 173(m)(2) reads as follows:—

“If the Court finds the accused guilty or if a plea of guilty has been recorded and accepted the Court shall pass sentence according to law.”

There is no requirement that the finding of ‘Guilty’ shall be formally recorded unless the accused pleads guilty. It is sufficient if the record shews clearly that the Court did find the accused guilty. In this case before convicting and sentencing the appellant the learned President delivered a long judgment in open Court which made that fact abundantly clear.

Several points were taken with reference to certain evidence which I consider the learned President admitted and weighed correctly.

I do not consider the sentence in any way excessive.

The appeal against conviction and sentence is dismissed.

Appeal dismissed.

Solicitors: Joseph & Son.

Tarmizi bin Yacob & Anor v Public Prosecutor and another appeal FEDERAL COURT (PUTRAJAYA) ARIFIN ZAKARIA CJ (MALAYA), RICHARD MALANJUM CJ (SABAH AND SARAWAK) AND JAMES FOONG FCJ CRIMINAL APPEAL NOS 05–37 OF 2004 (W) AND 05–38 OF 2004 (W) Federal Court:

[2011] 4 MLJ 1
Tarmizi bin Yacob & Anor v Public Prosecutor and another appeal
FEDERAL COURT (PUTRAJAYA)

ARIFIN ZAKARIA CJ (MALAYA), RICHARD MALANJUM CJ (SABAH AND SARAWAK) AND JAMES FOONG FCJ

CRIMINAL APPEAL NOS 05–37 OF 2004 (W) AND 05–38 OF 2004 (W)

27 July 2010
Criminal Procedure — Prosecution — Consent of public prosecutor — Charge amended from s 39B(1)(a) to s 39B(1)(c) of the Dangerous Drugs Act 1952 — Amendment made by deputy public prosecutor at trial — Whether trial a nullity — Whether informer should have been called to testify — Whether appellants acted together with common intention in preparing sale of cannabis

The appellants in both the appeals herein were convicted under s 39B(1)(c) of the Dangerous Drugs Act 1952 (‘DDA’) and sentenced to death. Their appeal to the Federal Court was against the dismissal of their respective appeals to the Court of Appeal against conviction and sentence. Initially both appellants were charged under s 39B(1)(a) of the DDA but at the end of the prosecution’s case the deputy public prosecutor amended the charge to one under s 39B(1)(c), to wit, that they, in furtherance of a common intention, carried out an act preparatory to or for the purpose of trafficking in 2,996.4g cannabis.

The prosecution’s narration of the events was that a chief inspector of police (PW10), posing as a drug buyer, was introduced by his informer (‘Mud’) to the second appellant to discuss the purchase of cannabis. At the appointed time and place for the sale and purchase to take place PW10 met with both appellants. While PW10 and the second appellant waited, the first appellant went to get the drugs and returned in about 20 minutes carrying a bag from which the first appellant took out and showed the cannabis to PW10. PW10 signalled the police party that lay in ambush observing the proceedings. The appellants fled on seeing the police approaching; the first appellant throwing away the bag he was carrying as he fled. Both appellants were apprehended by the police after a brief struggle. In calling for their defence the trial court found as a fact that both appellants had a common intention in acting together to ensure the sale of the cannabis and that they had knowledge of the drugs as inferred from their attempts to resist arrest and escape the police party and the act of the first appellant in throwing away the bag containing the drugs. Their defence failed to cast any reasonable doubt on the prosecution’s case. In the Federal Court the appellants submitted that (i) the trial was a nullity because the public prosecutor had not consented to the charge being amended (ii) the prosecution ought to have called the informer ‘Mud’ to testify and/or offered him to the defence (iii) as the second appellant only negotiated the sale of the

4 MLJ 1 at 2

cannabis with PW10 and was never in possession of the drugs he was not involved in trafficking and (iv) as the first appellant did not participate in the negotiations or in the preparatory act but only had custody and control of the cannabis he should be found guilty of only possession and not trafficking.The prosecution replied that (i) consent to the amended charge was superfluous as the prosecution was conducted by a deputy public prosecutor (ii) Mud was not an agent provocateur but only an informer whose identity was protected by s 40 of the DDA. Mud merely introduced the second appellant to PW10 and did nothing else and (iii) the appellants acted together, with a common intention, to sell the cannabis to PW10.

Held, dismissing the appeals and affirming the appellants’ conviction and sentence:

  • (1)
    Consent of the public prosecutor to the amended charge was superfluous as the prosecution was conducted by the deputy public prosecutor in which case the consent of the public prosecutor was implicit in his actions and no further written consent of the public prosecutor was required:Garmaz s/o Pakhar & Anor v Public Prosecutor [1995] 3 SLR 701 followed. Public Prosecutor v Lee Chwee Kiok [1979] 1 MLJ 45 not followed (see paras 35 & 33).
  • (2)
    There was no necessity for the evidence of Mud in the narrative of the prosecution’s case. It was not disputed that the only role Mud played was to introduce PW10 to the second appellant. Just because Mud was known to the second appellant did not make him an agent provocateur (see para 43).
  • (3)
    In this case the trafficking was the sale of cannabis or the purchase of it by PW10. What transpired on the night of 5 April 1996 was the final chapter in the preparation of the trafficking of the drugs which constituted the supply and delivery of 3kg of the cannabis by the first appellant for the purpose of both the appellants jointly handing it over to PW10 in exchange for payment as earlier agreed. There was common intention to ensure the sale of the cannabis to PW10 (see paras 48 & 49).
  • (4)
    To constitute actual delivery it was not necessary that the agreed price had to be paid upon or before the physical delivery of the drugs. Here, the transaction was completed when the appellants produced the cannabis to PW10 and were only waiting for payment (see para 50).
  • (5)
    There was no misdirection in the evaluation of the evidence adduced or in the standard of proof applied by the trial judge in coming to his decision. Overwhelming evidence was adduced showing the roles played by the appellants to make the cannabis available to PW10 for purchase. The very act of each of them attempting to flee from the scene to avoid

    4 MLJ 1 at 3

    arrest by the police was a clear indication both of them knew what they were dealing in with PW10 (see paras 51 & 52).

Perayu-perayu di dalam kedua-dua rayuan telah disabitkan di bawah s 39B(1)(c) Akta Dadah Berbahaya 1952 (‘ADB’) dan telah dihukum mati. Rayuan mereka kepada Mahkamah Persekutuan adalah terhadap penolakan rayuan mereka masing-masing kepada Mahkamah Rayuan terhadap sabitan dan hukuman. Pada awalnya, kedua-dua perayu telah dituduh di bawah s 39B(1)(a) ADB tetapi pada akhir kes pihak pendakwaan timbalan pendakwa raya telah meminda tuduhan kepada satu yang tertakluk di bawah s 39B(1)(c), iaitu, bahawa mereka, sebagai lanjutan niat bersama, telah melakukan tindakan persediaan kepada atau bagi tujuan pengedaran 2,996.4g kanabis. Penceritaan kejadian pihak pendakwaan adalah bahawa ketua penyiasat polis (‘PW10’), menyamar sebagai pembeli dadah, telah diperkenalkan oleh pemberi maklumat (‘Mud’) kepada perayu kedua untuk berbincang tentang pembelian kanabis. Pada masa dan tempat yang ditetapkan bagi jual beli tersebut, PW10 bertemu dengan kedua-dua perayu. Sementara PW10 dan perayu kedua sedang menunggu, perayu pertama pergi mendapatkan dadah dan pulang selepas 20 minit membawa beg di mana perayu mengeluarkan dan menunjukkan kanabis kepada PW10. PW10 memberi isyarat kepada pihak polis yang sedang berselindung di dalam belukar dan memerhatikan prosiding tersebut. Perayu-perayu terus melarikan diri apabila melihat kedatangan polis; perayu pertama membuang beg yang dibawanya semasa dia melarikan diri. Kedua-dua perayu telah ditangkap oleh polis selepas pergelutan singkat. Dalam memanggil pembelaan mereka, mahkamah perbicaraan mendapati adalah fakta bahawa kedua-kedua perayu mempunyai niat bersama untuk bertindak bersesama untuk memastikan jualan kanabis dan bahawa mereka mempunyai pengetahuan tentang dadah tersebut melihatkan kepada percubaan mereka untuk mengelakkan diri daripada ditahan dan melarikan diri daripada pihak polis dan tindakan perayu pertama membuang beg yang mengandungi dadah tersebut. Pembelaan mereka gagal untuk meletakkan sebarang keraguan berpatutan ke atas kes pendakwaan.

Dalam Mahkamah Persekutuan, perayu-perayu berhujah bahawa (i) perbicaraan adalah terbatal oleh kerana pendakwa raya tidak memberi kebenaran terhadap tuduhan yang dipinda; (ii) pihak pendakwaan sepatutnya memanggil pemberi maklumat ‘Mud’ untuk memberi keterangan dan/atau menawarkannya kepada pembelaan; (iii) memandangkan perayu kedua hanya berunding tentang penjualan kanabis dengan PW10 dan tidak pernah dalam milikan dadah tersebut, dia tidak terbabit dalam pengedaran; dan (iv) memandangkan perayu pertama tidak terlibat dalam perundingan atau tindakan persediaan tetapi hanya mempunyai jagaan dan kawalan kanabis tersebut, dia patut didapati bersalah hanya untuk milikan dan bukan untuk pengedaran. Pihak pendakwaan membalas bahawa (i) kebenaran kepada tuduhan yang dipinda tidak diperlukan memandangkan pendakwaan telah

4 MLJ 1 at 4

dilakukan oleh timbalan pendakwa raya (ii) Mud bukanlah ejen perangkap tetapi hanya pemberi maklumat yang mana identitinya dilindungi oleh s 40ADB. Mud sekadar memperkenalkan perayu kedua kepada PW10 dan tidak lebih dari itu; dan (iii) perayu-perayu bertindak bersama-sama, dengan niat bersama untuk menjual kanabis kepada PW10.

Diputuskan, menolak rayuan dan mengesahkan sabitan dan hukuman perayu-perayu:

  • (1)
    Kebenaran pendakwa raya untuk tuduhan yang dipinda adalah tidak perlu memandangkan pendakwaan telah dilakukan oleh timbalan pendakwa raya di mana kebenaran pendakwa raya adalah tersirat daripada tindakannya dan kebenaran bertulis selanjutnya oleh pendakwa raya adalah tidak perlu: Garmaz s/o Pakhar & Anor v Public Prosecutor [1995] 3 SLR 701 diikut; Public Prosecutor v Lee Chwee Kiok [1979] 1 MLJ 45 tidak diikut (lihat perenggan 35 & 33).
  • (2)
    Keterangan Mud adalah tidak perlu di dalam penceritaan kes pihak pendakwaan. Tidak dapat dipertikaikan bahawa peranan yang dimainkan oleh Mud hanyalah untuk memperkenalkan PW10 kepada perayu kedua. Hanya kerana Mud dikenali oleh perayu kedua tidak bermakna dia adalah ejen perangkap (lihat perenggan 43).
  • (3)
    Dalam kes ini pengedaran tersebut adalah penjualan kanabis atau pembeliannya oleh PW10. Apa yang berlaku pada malam 5 April 1996 adalah bab terakhir dalam persediaan untuk pengedaran dadah yang mana membawa kepada bekalan dan penyerahan 3kg kanabis oleh perayu pertama bagi tujuan untuk diberikan kepada PW10 oleh kedua-dua perayu sebagai ganti untuk pembayaran yang dipersetujui sebelum itu. Terdapat niat bersama untuk memastikan penjualan kanabis kepada PW10(lihat perenggan 48 & 49).
  • (4)
    Untuk membentuk penyerahan sebenar, adalah tidak perlu bahawa harga yang dipersetujui hendaklah dibayar apabila atau sebelum penyerahan fizikal dadah tersebut. Di sini, transaksi telah disempurnakan apabila perayu-perayu menyediakan kanabis kepada PW10 dan hanya menunggu untuk bayaran (lihat perenggan 50).
  • (5)
    Tidak terdapat salah arah dalam penilaian keterangan yang dikemukakan atau standard pembuktian yang digunakan oleh hakim bicara dalam membuat keputusannya. Keterangan kukuh yang dikemukakan menunjukkan peranan yang dimainkan oleh perayu-perayu untuk menyediakan kanabis untuk pembelian oleh PW10. Tindakan setiap daripada mereka yang cuba untuk melarikan diri daripada tempat kejadian untuk mengelakkan diri daripada ditahan oleh polis adalah petunjuk yang jelas bahawa kedua-duanya tahu akan urusniaga mereka dengan PW10 (lihat perenggan 51 & 52).
4 MLJ 1 at 5
Notes

For cases on consent of Public Prosecutor to prosecute, see 5(2) Mallal’s Digest (4th Ed, 2010 Reissue) paras 3093–3095.

Cases referred to

Garmaz s/o Pakhar & Anor v PP [1995] 3 SLR 701, HC (refd)

Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, CA (refd)

Lee Lee Chong v PP [1998] 4 MLJ 697, CA (refd)

Pendakwa Raya v Mansor bin Mohd Rashid & Anor [1996] 3 MLJ 560, FC (refd)

PP v Lee Chwee Kiok [1979] 1 MLJ 45 (refd)

PP v Sa’ari Jusoh [2007] 2 CLJ 197, FC (refd)

Ti Chuee Hiang v PP [1995] 2 MLJ 433, SC (refd)

Legislation referred to

Dangerous Drugs Act 1952 ss 2, 39B(1)(a), (1)(c), 39B(2), 40A

Penal Code s 34

Appeal From: Criminal Appeal Nos W–05–53 of 1997 and W–05–54 of 1997 (Court of Appeal, Putrajaya).
Gurbachan Singh (Ratnam with him) (Bachan & Kartar) for the appellants.
Ahmad Bache (Deputy Public Prosecutor, Attorney General’s Chambers) for the respondent.
Jaya Prakash watching brief for the Indonesian Consulate.

Richard Malanjum FCJ (delivering judgment of the court)
INTRODUCTION

[1] There are two appeals before us heard together. In both the appeals the respective appellants were convicted and sentenced to death on the amended charge under s 39B(1)(c) of the Dangerous Drugs Act 1952 (‘the Act’) read with s 34 of the Penal Code and punishable under s 39B(2) of the Act by the High Court Kuala Lumpur on 5 August 1997. Their respective appeals to the Court of Appeal were dismissed on 2 December 2004. They now appeal to this court on 15 grounds of appeal.

[2] Initially both the appellants were charged under s 39B(1)(a) of the Act read with s 34 of the same Code and punishable under s 39B(2) of the Act. However, at the end of the case for the prosecution the learned deputy public prosecutor amended the charge to one of s 39B(1)(c) of the Act.

[3] In this judgment the appellant in the first appeal is described as the first appellant and the appellant in the second appeal as the second appellant and

4 MLJ 1 at 6

together as the appellants.

FACTUAL BACKGROUNDS

[4] The amended charge preferred against the appellants in the High Court reads:

Bahawa kamu bersama-sama pada 5 April 1996, lebih kurang 9.45 malam, di Jalan Raja Alang, Kampung Baru, Kuala Lumpur, Wilayah Persekutuan, dalam mencapai niat bersama, kamu telah di pihak kamu melakukan satu perbuatan persediaan untuk mengedar dadah berbahaya, iaitu 2996.4 gram cannabis, suatu kesalahan di bawah seksyen 39B(1)(c)Akta Dadah Berbahaya 1952 (Disemak 1980) dibaca bersama dengan seksyen 34 Kanun Keseksaan dan boleh dihukum di bawah seksyen 39B(2)Akta Dadah Berbahaya 1952.

[5] It is the case for the prosecution that on 4 April 1996 at around 5pm. Chief Inspector Amir Hamzah bin Hanudin (‘PW10’) from the Unit Risikan Jenayah Ibu Pejabat Bukit Aman, acting as a drug buyer, was introduced by his source a person known as Mud to Agam, the second appellant, an Indonesian, at the Restoran Hashimah Paya Jaras, Sungai Buluh.

[6] After Mud had introduced PW10 to the second appellant he asked Mud to leave. PW10 then began discussion with the second appellant. PW10 informed the second appellant that he wished to buy 10 kilo of drugs ‘ganja’ (‘cannabis’). The second appellant agreed to supply at the price of RM1,700 per kilo. PW10 did not agree on the price. Further negotiation took place on the price and it was finally agreed at RM1,600 per kilo. The second appellant then told PW10 that the cannabis was at Kampung Baru, Kuala Lumpur in the area of Jalan Raja Alang and could only be collected in the evening or at night.

[7] At about 7pm on the same evening the second appellant invited PW10 to come with him to Kampung Baru to collect the cannabis. PW10 drove his car, a red GTO Mitsubishi with registration No WDX 983. The second appellant sat on the passenger seat.

[8] On arrival at the place the second appellant went out for 15–20 minutes but only to come back to say that the cannabis was not yet available. The second appellant then told PW10 they were to return to Paya Jaras and on the way back the second appellant informed PW10 that the cannabis could not be obtained that evening as it was not safe to do so. The second appellant then said to PW10 that he could get someone to deliver the cannabis at Paya Jaras with an additional payment of RM300. PW10 disagreed and advised the second appellant that if there was any further development he was to call him on his

4 MLJ 1 at 7

mobile phone. In reply the second appellant asked PW10 to come to Kampung Baru at the same location around 3pm the next day.[9] At around 11.30am the next day PW10 went to the Operation Room of the Narcotics Department Task Force of the Bukit Aman Police Headquarters at Cheras to brief the members of the task force (‘the police’) on the pending transaction at Jalan Raja Alang Kampung Baru in which he would pose as a buyer of the cannabis.

[10] It was therefore agreed during the briefing:

  • (a)
    that the police would focus on the agreed location;
  • (b)
    that PW10 would used the same car; and
  • (c)
    that the police would move to ambush only after PW10 had given the signal by opening the boot of his car.

[11] At around 7.50pm on 5 April 1996 the second appellant called PW10 on his mobile phone. The first four calls of the same number PW10 did not answer. It was only the fifth call that he answered and it was the second appellant.

[12] Over the phone the second appellant told PW10 that the cannabis was available and that PW10 was to come to Jalan Raja Alang in front of Yuli Clinic at around 9pm. PW10 agreed.

[13] PW10 then informed the police who were with him at the Golf Club PDRM of the agreed location and emphasised to them that the seller would be entering his car.

[14] PW10 arrived at the designated location at about 9.10pm and knew that the police had also arrived due to the presence of one member in short pants near the public telephone booth. PW10 parked his car under a street light in order to have clear sight of what might happen.

[15] At about 9.20pm the second appellant arrived with another person introduced to PW10 as Tarmizi, the first appellant. PW10 asked both of them to enter his car. The first appellant was seated on the front passenger seat while the second appellant was at the back seat. The first appellant proceeded to inform PW10 that he only had 3kg of the cannabis. PW10 agreed to buy and the first appellant asked for payment.

[16] When the first appellant asked for the money PW10 showed him and said that he would only pay upon seeing the cannabis. The first appellant

4 MLJ 1 at 8

therefore went out of the car walking to the rear of the car towards a corner not far from it. PW10 then asked the second appellant to come to the front seat.[17] While waiting for the first appellant PW10 was informed by the second appellant that only 3kg could be obtained for the transaction but he would arrange again next time.

[18] After about 15–20 minutes the first appellant came back. PW10 asked the second appellant to come out with him and moved to the rear of the car. The three met at the rear of the car. The first appellant told PW10 he had the cannabis inside the bag he was carrying. The first appellant brought it in front of PW10 and the second appellant. From inside the bag the first appellant proceeded to take out a compact bundle wrapped with transparent plastics. PW10 smelt it, looked at it and pressed it before suspecting it was cannabis.

[19] The first appellant and second appellant asked PW10 to be quick. PW10 went to get the money inside the car but at the same time pulling the lever to open the boot to signal the police to act. At that time the cannabis was still with the first appellant. When PW10 was about to return to the rear of the car he saw the police heading for the first appellant and second appellant. PW10 went back into his car, turned on the engine and sped off.

[20] The transaction between PW10 and the appellants were witnessed by Chief Inspector Fisol (‘PW5’) who led the police that night and Det Cpl Rosdi (‘PW8’). They were about 10–15 meters away from the car of PW10. They identified the first appellant as a tall, well-built man wearing a red short–sleeve T–shirt and dark jeans while the second appellant was wearing a white T–shirt and dark pants.

[21] When the signal to act came on PW5 and PW8 ran to apprehend the first appellant and second appellant respectively. However after a struggle with PW5 the first appellant managed to free himself and threw away the bag he was carrying before running away. PW5 did not pursue him but stayed back to watch over the bag thrown by the first appellant. It was Inspector Zambri who made another attempt to apprehend the first appellant. He too failed. He was injured when he was pushed and fell down. The first appellant was then pursued by Det Cpl Khalid (‘PW7’) who managed to arrest him after firing two shots at him and injuring his right leg. Several members of the police also came to assist PW7. The second appellant also tried to escape but was caught by PW8 with the help of Det Sjn Abdullah.

[22] The first appellant and second appellant were both identified by PW7 and PW8 as the two persons with PW10 that night based on their clothing.

4 MLJ 1 at 9

[23] After the arrest of the first appellant and second appellant PW5 examined the content of the bag in their presence. PW5 found three compressed slabs suspected to be cannabis. PW6, the chemist, (Cheong Meow Kioon) did the analysis of the three slabs seized by the police. In his evidence PW6 said that he was given three compressed slabs of plant material wrapped with plastic sheet and secured with adhesive tape. He found the nett weight of each slab to be 1,018.4g, 991.4g and 986.6g respectively and giving the total weight of 2,996.4g. And after he had carried out the essential analysis on the three slabs by way of several established and accepted tests he found all the plant material of the three slabs to be cannabis as defined in s 2 of the Act.

[24] At the end of the case for the prosecution and after giving the maximum evaluation of the evidence adduced by the prosecution the learned High Court judge called for the defence of both the first appellant and second appellant. In doing so he made several findings of fact related to the issues raised by learned counsel for the first appellant and second appellant, inter alia:

  • (a)
    that the first appellant and second appellant were identified by PW10 and corroborated by PW5, PW7 and PW8. In addition both the first appellant and second appellant were arrested at the scene of the event;
  • (b)
    that the identification of the first appellant and second appellant was possible that night since the views of the prosecution’s witnesses who observed the event were not hampered. There were street lights and building lights in the vicinity;
  • (c)
    that PW6 concluded that the three slabs he analysed were cannabis as defined in s 2 of the Act;
  • (d)
    that the first appellant and second appellant had the common intention since they acted together in the preparation for the sale of the cannabis; and
  • (e)
    that the first appellant and second appellant had knowledge of the cannabis. The acts of the first appellant in struggling with the police to resist arrest, throwing the bag containing the cannabis and running away indicated such knowledge. And so was the second appellant who also struggled with the police in an attempt to escape.

[25] The learned trial High Court judge did not think that the failure by the Prosecution to tender as evidence the Police Report Dang Wangi No 7049/96 had jeopardised the prosecution’s case as he opined it was not a first information report. And neither did the learned trial High Court judge find any break in the chain of evidence adduced by the prosecution. The evidence of PW10 was also held to be admissible under s 40A of the Act.

4 MLJ 1 at 10

[26] In his unsworn statement the first appellant said that he happened to be at the scene of the event when he heard shouts of ‘Polis, polis, polis’. As he was an illegal immigrant and feared of being apprehended he ran off. In the process he dropped his watch and while looking for it he heard a gun shot and felt pain on his right thigh. He fainted.

[27] The learned trial High Court judge did not find the version of the first appellant as having cast any reasonable doubt in the prosecution’s case. His reasons were as follows:

  • (a)
    that the first appellant did not deny that he was at the scene of the event that night;
  • (b)
    that there was no reason why the police would go for the first appellant if indeed there were other people in the vicinity at that time. Further it was illogical for the first appellant to say that he ran away as he was an illegal immigrant yet gave his watch a priority when he stopped to look for it at the risk of being arrested; and
  • (c)
    that there was nothing in the statement of the first appellant to contradict the evidence of the prosecution that at that time he was carrying a bag containing the cannabis and which he threw away when the police wanted to arrest him.

[28] The second appellant also made an unsworn statement from the dock. He said that on 4 April 1996 he did meet Mud with another person introduced to him as Abang Jo at the restaurant in Paya Jaras. While at the restaurant Mud and Abang Jo agreed to meet at Jalan Raja Alang the next day. The second appellant went on to say that he met Mud on 5 April 1996 at Jalan Raja Alang. Mud told him that there was a man in a car who asked him to go in. The second appellant said that he followed but did not enter the car. Then suddenly he heard gun shots and the shouts of ‘Polis, polis’. He was subsequently arrested.

[29] Having heard the version of the second appellant the learned trial High Court judge did not find it having cast any reasonable doubt on the prosecution’s case for the following reasons:

  • (a)
    the second appellant did not deny that he was at the scene of the event that night;
  • (b)
    the second appellant did not say who was the man inside the car;
  • (c)
    the second appellant did not deny that he struggled with the police; and
  • (d)
    there was no reason or even suggested reason why the police would arrest the second appellant.
4 MLJ 1 at 11

[30] The learned trial High Court judge thus found both the first appellant and second appellant guilty of the charge preferred against them. He convicted and sentenced them accordingly.

[31] The Court of Appeal dismissed the respective appeals of the appellants. Briefly, the Court of Appeal held:

  • (a)
    that preparatory act for the purpose of trafficking drugs consists of several continuing acts;
  • (b)
    that the evidence of the chemist (‘PW6’) was credible. There was no necessity for him to show in detail what he did in his laboratory; and
  • (c)
    that the consent of the public prosecutor was implied in this case since the prosecution was conducted by a deputy public prosecutor.

[32] Before us learned counsel for the appellants only pursued grounds of Appeal Nos 13, 14 and 15. But he raised the issue of absence of consent of the public prosecutor for the amended charge.

ISSUE OF CONSENT ON THE AMENDED CHARGE

[33] Learned counsel for the appellants submitted that the trial of his clients was a nullity in view of the absence of consent to the amended charge preferred against them at the close of the case for the prosecution. He cited the case of Public Prosecutor v Lee Chwee Kiok [1979] 1 MLJ 45. In that case the original charge was under s 39B(1)(a) of the Act but on the day of trial the learned deputy public prosecutor amended it to s 39A(1)(c) of the same Act. Harun J (as he then was) said this at p 1:

It will be observed that although the original and amended charges are two distinct offences, they are both created by the same section of the law viz s 39B(1) and both carry the same penalty. Both require the consent of the public prosecutor under s 39B(3). The learned deputy public prosecutor argued that the amendment was technical and as the public prosecutor had given his consent on the original charge he was at liberty to amend the charges in the manner he did. I do not think so. It was held in Abdul Hamid v Public Prosecutor [1956] MLJ 231 that a consent to prosecute ‘is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side’. The public prosecutor has clearly exercised his mind in respect of the original charge when he gave his consent to prosecute some four months after the alleged offence. It was incumbent on him however to exercise the same degree of deliberation in respect of the amended charge. He has not done so … The facts of the case were fully before the public prosecutor at the time of giving his consent and he could have elected to proceed on the amended charge then. He did not do so. It would appear therefore that the public prosecutor

4 MLJ 1 at 12

has not given his consent to prosecute under the amended charge. That being so, the trial is a nullity on the authority of Lyn Hong Yap v Public Prosecutor [1956] MLJ 226.

[34] In his response the learned deputy submitted to us that consent would be superfluous in this case as the prosecution was conducted by a deputy public prosecutor. In its judgment the Court of Appeal held the same view.

[35] We agree with the view of the Court of Appeal and the submission of the learned deputy. The law was concisely and correctly summarised by Yong Pung How CJ (Singapore) in Garmaz s/o Pakhar & Anor v Public Prosecutor [1995] 3 SLR 701 when he said this at p 720:

The settled Malaysian position has been to consider a deputy public prosecutor as being capable of exercising all the rights and powers of the public prosecutor … It follows from this proposition that where prosecution is conducted by a DPP, the consent of the public prosecutor is implicit in his actions and no further written consent of the public prosecutor is required. Indeed, this was the holding of the Privy Council inPublic Prosecutor v Oie Hee Koi [1968] 1 MLJ 148. The ruling in Public Prosecutor v Oie Hee Koi [1968] 1 MLJ 148 was followed inPerumal v Public Prosecutor [1970] 2 MLJ 265, Public Prosecutor v Mohamed Halipah [1982] 1 MLJ 155, Public Prosecutor v Datuk Haji Dzulkifli [1982] 1 MLJ 340 and Public Prosecutor v Lim Boon Hock [1985] 2 MLJ 219.

[36] The learned Chief Justice also noted that in Public Prosecutor v Lee Chwee Kiok Harun J (as he then was) had not been referred to the Privy Council decision in Public Prosecutor v Oie Hee Koi.

[37] And in fact Yusof Abdul Rashid J in Public Prosecutor v Mohamed Halipah declined to follow the judgment of Harun J. He preferred to follow Public Prosecutor v Oie Hee Koi and said this at p 159:

It is to be noted that in the above case the prosecution was conducted before the High Court by a deputy public prosecutor who under the Criminal Procedure Code is vested with all the powers of the public prosecutor. On the authority of this case, it is clear that where the prosecution is conducted by a deputy public prosecutor the consent of the public prosecutor is implicit in his action and no written consent of the public prosecutor is required.

[38] In another case of Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997] 3 MLJ 1 Mahadev Shankar JCA said this at pp 13–14:

If a deputy public prosecutor is present and goes on record when the accused is called upon to plead to an offence under this Act, no separate consent should be required (see Lyn Hong Yap v Public Prosecutor [1956] MLJ 226 and Perumal v Public Prosecutor [1970] 2 MLJ 265).

4 MLJ 1 at 13

[39] As such we find no merit in the contention of learned counsel for the appellants on the issue of absence of consent of the public prosecutor in respect of the amended charge.

GROUND 13 — THE FAILURE TO CALL AS A WITNESS THE INFORMER, MUD

[40] Next, learned counsel for the appellants argued that the learned judges of the Court of Appeal ‘erred and misdirected themselves in law and in fact in not holding that the informer (Mud) ought to have been called by the prosecution to unfold the narrative of the Prosecution’s case and/or offered him to the defence’. Learned counsel contended that PW10 was introduced by Mud to the second appellant and thus Mud must have been known to the second appellant. He cited the case of Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ 433 to support his contention.

[41] Learned deputy replied that Mud was only an informer hence his identity was protected by s 40 of the Act. He pointed out that Mud merely introduced the second appellant to PW10 and did nothing else. As such he was an Informer and not an agent provocateur. The learned deputy went on to say that Mud did less than the informer in Pendakwa Raya v Mansor bin Mohd Rashid & Anor [1996] 3 MLJ 560 yet the Federal Court in that case ruled that the informer was not an agent provocateur when it said this at p 578:

In Munusamy v Public Prosecutor [1987] 1 MLJ 492 (SC), Mohd Azmi SCJ (now FCJ) in delivering the judgment of the court, opined (at p 494) that ‘whether a person is an informer or has become an active agent provocateur would depend on the facts of each particular case’. In our instant case under appeal though Cholar introduced PW9 to the second respondent and was present when both transactions involving cannabis were struck, there was no evidence that he had done anything apart from being present. It appears obvious that his presence during the negotiation process and the transactions was merely to lend credence to PW9’s intention to purchase the cannabis in the minds of the respondents.

On the particular facts and circumstances of the instant case under appeal, we are of the view that Cholar was not an agent provocateur. But even if he was, there is more than sufficient credible evidence of the respondents’ involvement in the negotiation and agreement to sell to PW9 the 902g of cannabis subsequently brought out by the second respondent from room ‘K’ in the said house.

[42] In its judgment the Court of Appeal held that the role of Mud in this case was merely to introduce the second appellant to PW10 unlike the informer in Ti Chuee Hiang v Public Prosecutor who played an active role as an agent provocateur to arrange for the accused to meet the police and subsequently for his arrest.

4 MLJ 1 at 14

[43] We have perused the whole evidence adduced. We are of the view that there was no necessity for the evidence of Mud in the narrative of the prosecution’s case. In fact it was not disputed that the only role of Mud was to introduce PW10 to the second appellant. Just because Mud was known to the second appellant did not make him an agent provocateur. We therefore agree with the view of the Court of Appeal that the role of Mud could not be compared to that of the informer in Ti Chuee Hiang v Public Prosecutor ‘who had enticed the appellant to walk into a deliberate trap, which had been planned and organised by PPP Noorhashim and executed by a team of six police officers led by K/Inspector Mohd Amin bin Abd Raof (‘PW3′) who was then attached to Cawangan Anti Dadah, Bukit Aman, Kuala Lumpur, on the date and at the time and place referred to in the charge’.

[44] Accordingly, we also find no merit in this issue as raised by learned counsel for the appellants.

GROUNDS 14 AND 15 — CUSTODY, CONTROL AND POSSESSION OF THE CANNABIS

[45] Learned counsel for the appellants contended that the second appellant only did the negotiation with PW10 and he was not in possession of the cannabis. As such there was no question of him involved in the trafficking of the cannabis.

[46] In respect of the first appellant’s learned counsel argued that he did not participate in the negotiation or in the preparatory act. He only had the custody and control of the cannabis. As such the presumption of possession applied and thus he should only be guilty of possession and not for trafficking. The case of Public Prosecutor v Sa’ari Jusoh [2007] 2 CLJ 197 was cited in support.

[47] In response the learned deputy submitted that the appellants were charged with common intention for the offence. And that the evidence adduced must be considered as a whole including the overwhelming evidence that the appellants acted together to effect the sale of the cannabis to PW10.

[48] On this issue the Court of Appeal held that the preparatory act for the purpose of trafficking drugs covers a number of continuing acts. It begins from an agreement until the successful handing over of the drugs to another party. The acts in between carried out to achieve the purpose included such acts as getting the supply, wrapping, sending and meeting between the parties. In this case the trafficking was the sale of cannabis or the purchase of it by PW10. And what transpired on the night of 5 April 1996 along Jalan Raja Alang was the final chapter in the preparation of the trafficking of the drugs which

4 MLJ 1 at 15

constituted the supply and delivery of 3kg of the cannabis by the first appellant for the purpose of the first appellant and second appellant jointly handing it over to PW10 in exchange for the payment as earlier agreed.[49] The appellants were charged with common intention to ensure the sale of the cannabis to PW10. And such sale was proved by direct evidence without relying on any of the statutory presumptions in the Act. We are therefore in entire agreement with the view of the Court of Appeal in finding that the contention of learned counsel for the appellants has no merit.

[50] On the issue of delivery it is now a settled law that to constitute actual delivery it is not necessary that the agreed price must be paid upon or before the physical delivery of the drugs (see Wan Mazuki bin Wan Abdullah v Public Prosecutor Criminal Appeal No 05–56 of 2008 (T). As such the decision in Public Prosecutor v Sa’ari Jusoh should not be narrowly construed. And in this case the transaction was in fact completed since the appellants had produced the cannabis to PW10 and were only waiting for the payment when the police moved in to apprehend them.

[51] In respect of the complaint that there was misdirection in the evaluation of the evidence adduced and the standard of proof applied by the learned trial High Court judge before coming to his decision, we agree with the Court of Appeal that there was no such misdirection shown or apparent.

[52] While in essence the basic defence of the appellants was one of mere denial, there were overwhelming evidence adduced indicating the roles played by the first appellant and second appellant in order to make the cannabis available for PW10 to purchase. Indeed the very act of each of them in attempting to flee from the scene and avoiding arrest by the police was one clear indication that both knew what they were dealing in with PW10 (see Lee Lee Chong v Public Prosecutor [1998] 4 MLJ 697).

[53] As learned counsel for the appellants did not pursue the other grounds of appeal we need not have to deal with them. At any rate we are not persuaded that any of them could have made the difference to our conclusion.

[54] The respective appeals of the first appellant and second appellant are therefore dismissed. We affirmed their respective convictions and sentences imposed by the High Court and upheld by the Court of Appeal.

Appeals dismissed and appellant’s conviction and sentence affirmed.

LYN HONG YAP v PUBLIC PROSECUTOR CA KL MATHEW CJ, BROWN AG CJ (S) AND WILSON J FM CRIMINAL REFERENCE NO 2 OF 1953 2 December 1953 [1956] 1 MLJ 226

[1956] 1 MLJ 226
LYN HONG YAP v PUBLIC PROSECUTOR
CA KL

MATHEW CJ, BROWN AG CJ (S) AND WILSON J

FM CRIMINAL REFERENCE NO 2 OF 1953

2 December 1953
Prevention of Corruption Ordinance, 1950, s 12 — Criminal Procedure Code (Cap 6), s 422 — Consent of Public Prosecutor — Validity of consent — Whether want of consent curable — Practice where a consent or sanction is required

In this case the facts proved at the time relating to the question of consent were as follows: On June 13, 1952 the Police applied to the Magistrate at Kuala Kangsar for a summons to issue against the appellant in respect of an offence committed “on a day between 17th and 19th April 1952”. On June 19 the Magistrate made an order for the Summons to issue and it was issued on June 21. On July 1, the Dy. Public Prosecutor signed a document of consent under section 12 of the Prevention of Corruption Ordinance. The charge to which the appellant was called on to plead on July 3 and on which he was tried was that he had committed an offence under section 3(b) of the said Ordinance and punishable under section 3(c). Throughout the trial in the Sessions Court not a word was said by either of the two counsel who at different times represented the appellant as to the validity of the consent of the Public Prosecutor or as to any want of consent. The point was raised for the first time at the hearing of the second appeal and then in answer to a question of Thomson J. the Dy. Public Prosecutor informed the Court after going through his papers that his colleague in office who had signed the consent of July 1, 1952 had in fact given his consent to the institution of the proceedings and indeed had instructed them to be instituted on June 2, 1952, that was some eleven days before the application for process by the Police.

Thomson J. accepted this assurance and dismissed the appeal. The learned Judge held that the want of consent under section 12 of the Prevention of Corruption Ordinance is not an omission that can be cured by reason of section 422 of the Criminal Procedure Code.

The Court of Appeal agreed with the decision of Thomson J. and held that the consent of the Public Prosecutor in this case was not defective, and that the trial of the appellant was not a nullity.

The Court of Appeal further suggested that difficulties which might arise in cases where a consent or sanction is required, could be avoided if the practice were adopted on accompanying every application for a summons or a warrant of arrest with the consent or sanction in writing.

Cases referred to

R v Bates 6 Cr App R 153

R v Metz 11 Cr App R 164

Hori Ram Singh v R AIR 1939 PC 43 50

Gill v R AIR 1948 PC 128 133

Morarka v R AIR 1948 PC 82

Chong Tuck Loong v Public Prosecutor Perak Cr App No 73/1952 — Unreported

THOMSON J

The judgment of the Court below was as follows:

The appellant in this case appeared before the Sessions Court at Kuala Kangsar on 3rd July, 1952, charged with an offence in contravention of section 3 (b) of the Prevention of Corruption Ordinance, 1950. He claimed trial and was represented by Counsel. At the close of the case for the prosecution the learned President decided that there was no case to answer and acquitted and discharged him.

Against that order of acquittal and discharge the Public Prosecutor appealed and on 18th December, 1952, the appeal was allowed, the order of acquittal was set aside and the case was remitted to the Sessions Court to be further dealt with according to law. I am not concerned here with the matters that were at issue in that appeal.

On 22nd January, 1953, the case again came before the Sessions Court when the appellant was represented by a different Counsel. In the event, the appellant was convicted and fined $750 or nine months rigorous imprisonment in default of payment.

Against that conviction appellant appealed on a number of grounds the only ones of which I am concerned with here being certain grounds relating to the question of whether the consent of the Public Prosecutor given under section 12 of the Prevention of Corruption Ordinance was defective and whether therefore the Sessions Court was without jurisdiction and the trial was therefore a nullity.

The facts proved at the time relating to this question of consent are as follows.

On 13th June, 1952, the Police applied to the Magistrate at Kuala Kangsar for a summons to issue against the appellant in respect of an offence committed “on a day between 17th and 19th April, 1952”. On 19th June the Magistrate made an order for the summons to issue and it was issued on 21st June. On 1st July, the Deputy Public Prosecutor signed a document in the following terms:—

Consent under Section 12.

“Under the provisions of section 12 of the Prevention of Corruption Ordinance, 1950, I, Matthew Gilbert Neal, Deputy Public Prosecutor, Perak, hereby consent to the

1956 1 MLJ 226 at 227

prosecution of one LYN HONG YAP for an offence punishable under section 3(b) of the aforesaid Ordinance, alleged to have been committed at Liman, Kati, Kuala Kangsar, between 19th-20th April, 1952.Dated at Ipoh this 1st day of July, 1952.

(Sd.) M. G. Neal,
Deputy Public Prosecutor,
Perak.”

and the charge to which the appellant was called on to plead on 3rd July and on which he was tried was as follows:—

“That you on a day between 17th and 20th April, 1952 at 1.30 p.m. at No. 5 New Village, Liman Kati, in the district of Kuala Kangsar did corruptly agree to give a sum of $50 to an agent, namely, K. Retnasingam, Health Inspector, as an inducement to him to show favour to one Lee Kow in a matter in relation to the said K. Retnasingam’s principal affairs, namely, to grant the said Lee Kow a licence for Coffee and eating shop and that you have thereby committed an offence under Section 3(b) of Prevention of Corruption Ordinance No. 5 of 1950 and punishable under Section 3(c) of the same Ordinance.”

Throughout the trial in the Sessions Court not a word was said by either of the two Counsel who at different times represented the appellant as to the validity of the consent of the Public Prosecutor or as to any want of consent. The point was raised for the first time at the hearing of the second appeal and then in answer to a question by myself the Deputy Public Prosecutor who was appearing for the respondent informed me after going through his papers that his colleague in office who had signed the paper bearing the date 1st July, 1952, had in fact given his consent to the institution of the present proceedings and indeed had instructed them to be instituted on 2nd June, 1952, that is some 11 days before the application for process by the Police.

I accepted that assurance given from the Bar and having considered the other Grounds of Appeal and being of the opinion that it was abundantly clear on the evidence that the appellant had in fact committed the offence charged against him, I dismissed the appeal. I intimated, however, that if I were asked to do so I would give my certificate to allow the matter to be taken further.

The real question which arose on the appeal was not any question of what constitutes or does not constitute a valid consent by the Public Prosecutor but what course this Court should take when such a question is raised for the first time on appeal.

In my opinion the answer is to be found in an examination of the two English cases of Rex v Bates 6 Cr App R 153 and Rex v Metz 11 Cr App R 164.

In Bate’s case the appellant was convicted of an offence under the Explosives Substances Act, 1883, for the prosecution of which the consent of the Attorney-General was required. Although the point was not raised at the trial, and was indeed not raised by the appellant himself in the appeal, Counsel for the Crown stated from the Bar that he had ascertained that the consent of the Attorney-General was in fact not obtained. On that, the Court quashed the conviction on the ground that the absence of the consent of the Attorney-General took away the jurisdiction of the trial Court.

In Metz’s case the appellant had been convicted of an offence against the Trading with the Enemy Act, 1914, for the institution of a prosecution for which the consent of the Attorney-General was necessary. No evidence was given at the trial that such consent had been obtained but at the trial the point of want of consent was not taken. At the hearing of the appeal, Counsel for the Crown informed the Court from the Bar that the fiat of the Attorney-General, which apparently was in writing, had been produced at the Police Court and so came to the Court of trial (the Central Criminal Court) attached to the depositions. The appeal was dismissed. In dismissing it Lord Reading, observed that two points had been taken on behalf of the appellant and went on to say:—

“The first is that it is necessary that the consent of the Attorney-General should be given before a prosecution is instituted; under s. 1(4) of the Trading with the Enemy Act. It is not suggested that the prosecution was in fact instituted without the necessary consent, but it is said that there was no evidence of it at the trial. The point was not taken at the trial. As we now know, the consent was in fact proved at the police court. The document was in Court at the trial, but it was not formally proved. If the point had been taken at the trial the defect would have been immediately cured, so the point is a pure technicality. We do not think it possible for the point now to succeed in this Court when there was an opportunity for counsel to take it in the Court below if he desired.”

He went on to distinguish the case from that of Bates supra as follows:—

“Our attention has been called to the case of Bates, where the objection was taken that consent had not in fact been obtained, which is a totally different matter; it was there pointed out by Lord Alverstone that although the point had not been taken below it was necessary that there should be consent before the prosecution was instituted. No consent had been obtained, so the conviction was quashed.”

I was unable to find any distinction in principle between Metz’s case and the present case. In Metz’s case the Court accepted the assurance of counsel that the consent of the Attorney-General was in fact in existence and in the present case I accepted the assurance of Counsel that the consent of the Deputy Public Prosecutor (which, it is to be remembered, is not required to be in writing) was in fact in existence before the institution of the prosecution. In the circumstances, I did not feel it was necessary to examine the actual evidence on the point that was given at the trial. If Counsel for the appellant had wished to take the point he should have done so at the trial. If he had done so, it would have been open to the prosecution to ask for an adjournment to enable the Deputy Public

1956 1 MLJ 226 at 228

Prosecutor to appear in person when I have no doubt he would have made the same statement as he made at the hearing of the appeal. If an adjournment had not been granted and the point had succeeded the result would have been not an order of acquittal but an order dismissing the complaint and thus it would have been left open to the prosecution to institute further proceedings after a valid consent had been obtained. (See Hori Ram Singh v R AIR 1939 PC 43 50).I was fortified in this view by certain observations made by Lord Simonds in the case of Gill v R AIR 1948 PC 128 133. In that case their Lordships were concerned inter alia with the question of whether a sanction to a prosecution given under section 197 of the Indian Criminal Procedure Code was invalid by reason of the necessary facts not having been laid before the sanctioning authority. An inference had been drawn from certain circumstances that the necessary facts had been laid before the sanctioning authority and Lord Simonds observed:—

“It is an inference, which at this late stage of the proceedings cannot properly be challenged, that the same facts were before the sanctioning authority when the sanction was given. If it was desired to raise such a question, that should have been done at the earliest moment when the prosecution could have supported by evidence the inference which even without it can fairly be drawn.”

I would add that I do not think that what I have said is in any way inconsistent with the judgment of the Privy Council in the case of Morarka v R AIR 1948 PC 82. In that case the appellant had been convicted under an Indian statute relating to the control of cotton clothing which provided that no prosecution under it should be instituted without the previous sanction of the Provincial Government concerned, and the Court held that the sanction which had in fact been given was defective. The only material before the Court apparently consisted of the evidence given at the original trial and I fail to see that the decision has any bearing on the question at issue in the case of Rex v Metz 11 Cr App R 164 supra or in the present case.

In this connection, I have had occasion to consider my own judgment in the case of Chong Tuck Loong v Public Prosecutor Perak Cr App No 73/1952 — Unreported, in which I discussed this question of consent under the Prevention of Corruption Ordinance at some length. In that judgment I made the following observations:—

“… if that section (Section 12) is not complied with the Court has no jurisdiction to try offences under the Ordinance, and I do not think it can be said to be complied with unless it is clear either on the face of the proceedings or as a matter of reasonable inference that the Public Prosecutor (or, by reason of section 376 of the Criminal Procedure Code, the Solicitor-General or a duly appointed Deputy Public Prosecutor) has either taken an active part in the prosecution or has consented to the charges brought against the accused after applying his mind at the lowest to the facta probanda forming the material of these charges.”

In making these observations I was concerned with the particular facts of the case under appeal and my attention had not been invited to Metz’s case. On further consideration I have come to the conclusion that in making these observations I went too far and that they would more accurately state the law if the words, “either on the face of the proceedings or as a matter of reasonable inference” were omitted.

To avoid misunderstanding and to ensure a full examination of the question, I should say that in my opinion want of consent under section 12 of the Prevention of Corruption Ordinance is not an omission that can be cured by reason of section 422 of the Criminal Procedure Code. On that point to my mind the judgment of the Privy Council in the case of Morarka v R AIR 1948 PC 82, supra, is conclusive. It is true that in that case their Lordships were concerned with section 537 Of the Indian Code which does not contain the specific reference to sanctions which occurs in section 422 of our Code. It is to be noted, however, that until 1923 section 537 of the Indian Code did contain a reference to sanctions required under section 195 of that Code (our section 129) which was repealed in that year. An examination of the Indian decisions prior to 1923 (see the cases set out in the A.I.R. Commentary of the Indian Criminal Procedure Code at Vol. III pp. 2984-5) shows that the Indian Courts consistently held that the reference was only to sanctions required under the Indian section 195 and did not include sanctions under any other statutory provision.

MATHEW CJ

COURT OF APPEAL (Criminal Reference).

S. P. Seenivasagam for the appellant.

L. Talog Davies (Federal Counsel) for the respondent.

This is a Reference under section 34 of the Courts Ordinance. The point for our determination is:—

“Whether the consent of the Public Prosecutor in this case was defective and whether the trial of the appellant was thereby a nullity.”

We are in complete agreement with the very full and clear grounds of judgment delivered by Thomson J., and there is nothing that we can profitably add to what has been said therein. In consequence, we hold that the consent of the Public Prosecutor this case is not defective, and that the trial of the appellant was not a nullity.

We would suggest that difficulties of this kind, which might arise in cases where a consent or sanction is required, could be avoided if the practice were adopted of accompanying every application for a summons or a warrant of arrest with the consent or sanction in writing.

Order accordingly.
Solicitors: S Seenivasagam & Sons.