Chiow Thiam Guan [1983] 2 MLJ 116:

CHIOW THIAM GUAN & ORS. v. SUPERINTENDENT OF PUDU PRISON & ANOR.
FEDERAL COURT, IPOH
WAN SULEIMAN FJ, SALLEH ABAS FJ, ABDUL HAMID OMAR FJ
[CIVIL APPEAL NOS. 204-208 OF 1982]
30 APRIL 1983

JUDGMENT

The appellants who was under sentence of death applied by way of notice of motion for an order of stay of execution pending the hearing and finalisation of the appeal he had lodged in this Court on the sole ground that the death sentence is unconstitutional.

The notice of motion was filed on 13 August 1982, for hearing on 18 August, in contravention of r. 70(3) of the Rules of this Court which requires that the notice be served not less than 7 days before return date, but on Encik Karpal Singh applying for leave to give shorter notice and on the learned Attorney withdrawing his preliminary objection, we allowed the hearing to proceed on the application proper.

The appellant had on 26 July 1982 filed a statement of claim in which he sought, inter alia for (i) a declaration that the mandatory sentence of death passed on him on 21 January 1981 under the provisions of s. 57(1) of the Internal Security Act 1960 (Revised 1972), is unconstitutional and (ii) stay of execution pending finalisation of the proceedings.

Hashim Yeop A. Sani J (as he then was) granted an application filed by the Attorney General under O. 18 r. 19 of the Rules of the High Court 1980 to strike out the claim on the ground that it disclosed no cause of action. The same Judge also set aside the order to stay he had himself granted on 27 July 1982.

As to what happened thereafter, we were referred to the affidavit of Encik Ngeow Yin Ngee, one of the solicitors representing the appellants. It would appear that at the conclusion of proceedings on 12 August 1982, Encik Karpal Singh applied for stay of execution pending appeal to this Court, but the learned Judge indicated that such application should be made to the Federal Court, hence the present application.

In support of his application Encik Karpal Singh cited a High Court of Australia decision Tait v. The Queen [1962] 108 CLR 620. There, a petition was presented to the Supreme Court of Victoria seeking an inquiry under s. 111 of the Mental Hygiene Act 1958 into the sanity of a prisoner under sentence of death for murder. The petition was dismissed.

Independently of these proceedings an application was made on behalf of the prisoner to the Judge who had presided at the trial for an order that the execution of the sentence be respited. The Judge held that he had no power to make the order sought. On the dismissal of the petition, the petitioner appealed to the Full Court of the Supreme Court which dismissed the appeal. The petitioner applied for special leave to appeal to the High Court from the judgment of the Full Court and the prisoner applied for special leave to appeal from the order of the trial Judge.

When the motions came on for hearing the Court ordered that they be adjourned and made a further order in the following terms:

That the execution of the prisoner fixed for tomorrow morning be not carried out but be stayed pending the disposal of the applications to this Court for special leave and of any appeal to this Court in consequence of such applications and that the Chief Secretary and the Sheriff and his deputy or deputies be restrained accordingly.

The learned Attorney however contends that this Court has no jurisdiction whatsoever to hear an application such as the present one. Jurisdiction, he adds can only be conferred by law. Each of the appellants had been tried in a High Court, and their appeals had been dismissed by this Court. The Pardons Board had duly considered the sentences imposed, and had not seen fit to interfere with these.

We were then invited to consider the provisions of s. 281(d)(i), (ii) and (iii) and s. 300 of the Criminal Procedure Code, which are as follows:

Section 281(d)(i) – on receiving the copy of the said order the Court shall cause the effect of the same to be entered in records of the Court, and when the said order directs the sentence to be carried out shall appoint the time when it is to be carried out and shall endorse the time so appointed upon the said order, and shall in all cases cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary;

(ii) – the Ruler of the State acting in accordance with the provisions of Article 42 of the Constitution may order a respite of the execution of the warrant and afterwards appoint some other time or other place for its execution;

(iii) – the warrant shall be directed to the officer in charge of the prison for the district where the sentence is to be carried into effect, who shall carry the sentence into effect, in accordance with law;

Section 300 (i) When any person has been sentenced to punishment for an offence the Ruler of the State (acting in accordance with the provisions of Article 42 of the Constitution) in which the offence was committed or in which the conviction was had may at any time, without conditions, or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(ii) Whenever an application is made to a Ruler for the suspension or remission of a sentence the Ruler may require the convicting Judge or Magistrate to state his opinion as to whether the application should be granted or refused and such Judge or Magistrate shall state his opinion accordingly.

(iii) If any condition on which a sentence has been suspended or remitted is, in the opinion of the Ruler by whom it was granted, not fulfilled, the Ruler may cancel such suspension or remission; whereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer without warrant and remanded by a Magistrate to undergo the unexpired portion of the sentence.

(iv) Nothing herein contained shall be deemed to interfere the right of the Ruler of any State to grant pardons, reprieves, respite or remissions of punishment.

The application for stay, submits the learned Attorney, should be made to the Pardons Board which alone is empowered to order a respite of the execution of the warrant of execution at this stage.

This recourse to the civil jurisdiction of this Court as regard to sentences imposed at criminal trials had, he submits a parallel in the well known recent case of Gouriet v. U.P.W. (H.L. (E)) [1978] AC 435 at 490 where Viscount Dilhorne said (at p. 490) –

The criminal law is enforced in the criminal Courts by the conviction and punishment of offenders, not in the civil Courts. The jurisdiction of the civil Courts is mainly as to the determination of disputes and claims. They are not charged with responsibility for the administration of the criminal Courts.

He went on to say that under s. 57(3) of the Courts of Judicature Act, 1964 in the case of a conviction involving sentence of death, a notice of appeal results in a stay of execution, but the appeal against conviction and sentence in each of the cases which form the subject matter of these applications has been dismissed the conviction and sentence having in each instance been affirmed so that the subsection no longer applies.

Referring to passages in Jairam Das v. Emperor 1945] AIR PC 94 at pp. 95, 96 wherein it was held that where on an appeal from acquittal, a person was convicted, the High Court, after signing the judgment convicting the accused was functus officio, and thereafter had no power to release him on bail unless special leave to appeal was granted, the learned Attorney contends that similarly here only the Pardons Board is competent to allow stay of execution, this Court being functus officio.

By way of analogy he cited the Indian Supreme Court decision in Sarat Chandra v. Khagendranath AIR 1961 SC 334 at 336 wherein a passage from Weater’s “Constitutional Law” is cited with approval and which reads thus:

A reprieve is a temporary suspension of the punishment fixed by law. A pardon is the remission of such punishment. Both are the exercise of executive functions and should be distinguished from the exercise of judicial power over sentences. “The judicial power and the executive power over sentences are readily distinguishable, observed Justice Sutherland. To render a judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua judgment.

We are of the view that a passage from the Privy Council decision in a Trinidad and Tobago case, De Freitas v. Benny [1976] AC 239 at 247 cited to us is particularly apt. It reads:

Except in so far as it may have been altered by the Constitution the legal nature of the exercise of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England at common law. At common law this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy. In tendering his advice to the sovereign the Home Secretary is doing something that is often cited as the example of a purely discretionary act as contrasted with the exercise of a quasi-judicial function.

In this country the prerogative of mercy is vested in His Majesty the Yang di-Pertuan Agong.

We also agree with the learned Attorney that we cannot, in any case grant an injunction to restrain the 1st respondent from carrying into effect a sentence in regard to which a warrant has been directed to him under s. 281(d)(iii). See Keat Long & Ors. v. Pardons Board Johore [1968] 2 MLJ 249.

Courts are indeed without jurisdiction to deal with this sort of application for the reason so neatly set out in the de Freitas case – “Mercy is not the subject of legal rights. It begins where legal rights end.” Any stay of execution would be only an extension of the prerogative of mercy, exercisable only by His Majesty the Yang di-Pertuan Agong in accordance with Article 42 of the Constitution.

This application was accordingly dismissed.

Also found at [1983] 1 CLJ 278

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Teh Cheng Poh [1979] 1 MLJ 50:

PUBLIC PROSECUTOR v. TEH CHENG POH
HIGH COURT [PENANG]
GUNN CHIT TUAN, J
[CRIMINAL TRIAL NO. 15 OF 1979]
16 AUGUST 1979

Accused convicted.

JUDGMENT 

Gunn Chit Tuan J:

 

On 27 April 1979, the Federal Court* ordered a new trial for the above-named accused. The Public Prosecutor decided to charge him once again under the Internal Security Act, 1960 (Revised – 1972) and the following two charges were preferred against him on 9 June 1979:

First ChargeThat you on 13 January 1976 at about 12.35pm at the junction of Kampar Road and Ayer Itam Road in the district of George Town, in the State of Penang, did without lawful excuse, in a security area, proclaimed by the YangDi-Pertuan Agong vide Federal Gazette PU(A) 148 dated 15 May 1969 have in your possession firearm, to wit, a home-made .38 Revolver, without lawful authority therefore, and that you have thereby committed an offence punishable under s. 57(1)(a) of the Internal Security Act No. 82 (Revised 1972).Second ChargeThat you on 13 January 1976 at about 12.35pm at the junction of Kampar Road and Ayer Itam Road in the district of George Town, in the State of Penang, did without lawful excuse, in a security area, proclaimed by the Yang Di-Pertuan Agong vide Federal Gazette PU(A) 148 dated 15 May 1969 have in your possession ammunitions, to wit, five rounds of .38 Special Revolver bullets, without lawful authority therefore, and that you have thereby committed an offence punishable under s. 57(1)(b) of the Interal Security Act No. 82 (Revised 1972).

When he was brought before the Magistrate’s Court on 9 June 1979 he was committed for trial in the High Court, Penang, and was subsequently charged and tried before me on 14 August 1979.

 

The facts of this case, as disclosed by the evidence adduced, are simple. As a result of an emergency call received by Cpl 11950 (PW1), who was on duty at the emergency desk in the Central Police Station, Penang, two police patrol cars on rounds were instructed to go to No. 26 Lim Lean Teng Road, Penang, where it was alleged that a robbery had taken place. One of the police patrol cars which went to No. 26 Lim Lean Teng Road was called ‘Whisky 18’ and Cpl Haji Mohd bin Chu (PW2) was in charge of it. The prosecution called only four witnesses and PW2 was the main witness. As learned Counsel for the defence in his submission has contended that this witness was an unreliable and interested witness and that the Court could not accept his evidence, it is therefore necessary for me to set out his evidence here in some detail. He (PW2) said that he was in charge of ‘Whisky 18’ when he received instructions to proceed to No. 26 Lim Lean Teng Road. He proceeded there and met a male Indian called Subramaniam s/o Ramasamy and a male Chinese called Quek Kwang Hun. He was told by them that the robber concerned wore a green shirt with long sleeves and a red crash helmet. The said male Chinese also told him that he could identify the robber who had left in the direction of Kampar Road. He then proceeded towards Kampar Road together with the said Subramaniam and Quek in his police car and on arrival at the junction of Kampar Road and Ayer Itam Road Subramaniam and Quek spotted the robber concerned. He then got out of his car and together with his police driver, PC25654, went towards a male Chinese whom he identified as the accused. As he approached the accused he asked him to stop and raise his hands. The accused complied with his instructions and the police driver went towards his left whilst he went towards his right. They arrested him and recovered a pistol which was tucked in his waist. The pistol was produced in Court and marked P2 whilst five rounds of ammunition found in it were also produced and marked

 

P3A-E. The accused was later handed over to A-G ASP Ku Yahaya (PW3) together with the said pistol and ammunition. Under cross-examination this witness said that the accused did not see them approaching and that he only saw them when he shouted “Stop and raise up your hands”. At one stage of his cross-examination PW2 was asked whether he remembered giving evidence in the High Court on another occasion and when asked by defence Counsel whether he had said in the previous trial that the accused ignored his challenge, he said and demonstrated how he had to challenge the accused twice. However, apart from this alleged inconsistency which PW2 was able to explain, I found that he was notdiscredited at all and I accepted him as a witness of truth.

 

Acting ASP Ku Yahaya (PW3) confirmed that PW2 handed over the accused to him at 2.30 p.m. on the relevant date and also handed over to him the said pistol (P2) and the five rounds of ammunition (P3A-E) which he identified in Court.

 

After the close of the case for the prosecution, the learned deputy made available to the defence thirteen witnesses who had been subpoenaed by the prosecution and learned defence Counsel indicated that he might require the said Quek Kwang Hun, Subramaniam s/o Ramasamy and PC (now Cpl) 25654.

 

The accused elected to give evidence on oath and said that he was arrested at the junction of Kampar Road and Ayer Itam Road on 13 January 1976. He was returning from the city on a bus and had got down at a bus stop. He was walking home when he heard someone shouting. He could not make out what the shouting was about and stopped. He then saw PW2 approaching him and PW2 on reaching him struck him with a sterling gun. He was then searched but nothing was found on him. He said that it was not true that there was a pistol tucked on his waist. He also said that it was not true that five rounds of ammunition were recovered from him. He was taken to the police station where he was not shown either the pistol marked P2 or any other gun. He was assaulted and asked to admit possession of the gun and ammunition. He did not admit possession of any firearm or bullets and was later charged in Court.

 

Under cross-examination the accused said that he had not seen PW2 before his arrest and agreed that the latter would have no grudge against him. When challenged, he denied that he had a pistol that day and said that he was assaulted. When asked why he did not make a police report regarding the alleged assault he said in reply “How could I make a report?”. When asked again whether he had made any report since that day, his answer was that he had made a complaint during the previous trial.

 

In his submission, Mr. Karpal Singh, Counsel for the accused, contended that PW2 was an unreliable and interested witness whose evidence should not be accepted by the Court. He also pointed out that the ‘driver of the police car, that is PC (now Cpl 25654), and the said Subramaniam and Quek Kwang Hun were not called as witnesses by the prosecution and, having referred to the following passage in the Indian case of Devaiya v. State of Coorg AIR 1956 Mysore 51, 53:

The Indian Evidence Act does not provide that any particular number of witnesses should be examined in proof of any fact and therefore a conviction can be based even on the solitary testimony of a single witness provided that witness is believed by the Court.This principle will generally hold good when the fact to which he deposes is not within the knowledge of any one else or when the incident or the occurrence is not witnessed by anybody else.But when there are others equally respectable and disinterested who have witnessed the occurrence, which is in issue, and when those witnesses or at least some of them are not examined in corroboration of the evidence of the other witness and no explanation is offered for their non-examination, generally it is unsafe to rely on the uncorroborated testimony of a single witness in a case of this type where the liberty of the subject is at stake.The non-examination of the other material witnesses, though available, will very much weaken the evidence of the single witness, however respectable he may be,

Counsel contended that it was therefore unsafe to rely only on the testimony of PW2. Mr. Karpal Singh also referred to the following passage appearing on p. 390 of the Indian Quinquennial Digest 1971-1975 (Vol. 3) concerning the credibility of a Police witness:

Section 3 – Police witness – Credibility of. The mere circumstance that the witnesses were Police Employees may not be sufficient for doubting their veracity but when the accused was wanted by the Police in a murder case and when passing on a road he was apprehended and on search of his person was found to be in possession of a pistol, live cartridge etc the official position of such police witnesses does demand strict scrutiny and corroboration of their satements. 1973(1) Chand LR 620.’

Section 3 referred to in the above passage is a reference to s. 3 of the Indian Evidence Act (1872). I was not referred to the provisions of that section and, as far as I am aware, it is the interpretation clause of the said Act. Be that as it may, although I would agree that the evidence of any witness should of course be scrutinised with care, I would not, with respect, subscribe to any proposition that the evidence of a police witness must invariably be corroborated in the circumstances described in the above-mentioned passage. I would however, with respect, refer to and adopt the following dictum of Thomson CJ (as he then was) in the case of Public Prosecutor v. Mohamed Ali [1962] 1 LNS 129 , 258 when his Lordship said as follows:

When a Police witness says something that is not inherently improbable his evidence must in the first instance be accepted. If he says he saw a cow jumping over the moon his evidence is, of course, not to be accepted, but if he says he saw a cow wandering along one of the main streets of Kuala Lumpur (the sort of things we all see every day of our lives) there is not the slightest justification for refusing to believe him. Of course if his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent improbability the evidence of any witness, whether a Police witness or not, who gives evidence on affirmation, should normally be accepted.

Here I would reiterate that I had, of course without undue emphasis on demeanour alone, after seeing and hearing PW2 in the witness box, found him to be a witness of truth and had accepted his testimony as reliable. I also considered that he was not an interested witness but was only a public officer who was only performing his duties and merely related to the Court what he actually saw and did on that day. His evidence was not contradicted by other evidence nor was he shaken in cross-examination and I also found that there was nothing inherently improbable about his evidence which was given on oath. Even if PW2 was an interested witness there is no legal presumption that he should not be believed unless there are cogent reasons for disbelief in the light of evidence to the contrary and the surrounding circumstances (Balasingam v. Public Prosecutor [1959] MLJ 193). There were no such cogent reasons or evidence to the contrary and the surrounding circumstances in this case do not show that PW2 should be disbelieved. As regards the complaint that the prosecution had not called the police driver or the other two civilian witnesses, I could not but agree with learned Counsel that although he was not insinuating that the learned deputy was inexperienced or careless, yet the prosecution could have strengthened its case by calling one or two of them. But here we need only refer to the case of Khoon Chye Hin v. Public Prosecutor [1961] 1 LNS 41 , 109 in which our former Court of Appeal had reviewed all the leading authorities and came to the conclusion that the calling of witnesses was a matter for the discretion of the prosecution. Again the said Court of Appeal had also made the following observations in the case of Samsudin v. Public Prosecutor [1962] 1 LNS 180 , 407:

It is clear from these authorities that the prosecutor has a discretion and also that if he does not call material witnesses who are available he runs the risk of having the presumption in illustration (g) to s. 114 of the Evidence Ordinance raised against him. In the present case there was no attempt at concealment, no suggestion, as said by Lord Thankerton in the case of Adel Muhammed El Dabbah v. Attorney General for Palestine [1944] AC 156, 168) ‘that the prosecutor has been influenced by some oblique motive’. The witnesses were freely offered to the defence and in our opinion the presumption did not arise.

In the present case, there was also no attempt at concealment and no evidence that there was any oblique motive on the part of the learned deputy. The said three witnesses were not deliberately kept back and having been subpoenaed to Court by the prosecution were freely offered to the defence whicheven indicated that it might require them. I therefore also held that in the circumstances of this case the presumption under the said s. 114(g) of the Evidence Act, 1950 did not arise. I would add that it is also provided under s. 134 of our Evidence Act, 1956, that no particular number of witnesses shall in any case be required for the proof of any fact. But, if corroborative evidence was required, it will be observed that PW2 did recover from the accused the said pistol (Exh. P2) and the five rounds of ammunition (Exh. P3A-E) which he handed over to PW3 who in turn produced them in Court. This confirmed some material particulars of PW2’s testimony and neither PW2 nor PW3 were challenged in cross-examination to dispute the fact that the pistol and ammunition in question were recovered from the accused that day.

 

Counsel also referred to the case of Tan Cheng Kooi & Anor. V. Public Prosecutor [1972] 1 LNS 146 in which it was held inter alia by Chang Min Tat J (as he then was) that where the case against the accused depended entirely on the evidence of the complainant, the failure to produce the first information report would deprive the accused of an opportunity to cross-examine his accuser, and which would raise the presumption under s. 114(g) of the Evidence Act, 1950 that the report would be unfavourable to the prosecution case. His Lordship, therefore, held that as the evidence against the appellants in that case came entirely from the complainant, the conviction of the accused could not be upheld. In this case, Mr. Karpal Singh argued that PW2 was the complainant and that his first information report should have been produced. With respect, I was of the view that strictly speaking the person who could be considered the complainant in this case was not PW2, but Cpl. 11950 (PW1) who, having received the emergencfy call from a male Chinese who did not give his name, then made the first information report. Moreover, in this case the prosecution did not depend entirely on the evidence of PW2, who was not the complainant, and the failure to produce any report by him, if there was one, could not also in my judgment raise any presumption under the said s. 114(g) of the Evidence Act, 1950.

 

Finally, Counsel referred to the judgment of Suffian J (as he then was) in the case of Mat v. Public Prosecutor [1959] 1 LNS 2 , 264 where His Lordship had explained the meaning of the burden of proof by an accused person in cases where it is necessary for him to rebut the prosecution case against him. His Lordship in that case said as follows:

If you accept the explanation given by or on behalf of the accused, you must of course acquit. But this does not entitle you to convict if you do not believe that explanation, for he is still entitled to an acquittal if it raises in your mind a reasonable doubt as to his guilt, as the onus of proving his guilt lies throughouton the prosecution. If upon the whole evidence you are left in a real state of doubt, the prosecution has failed to satisfy the onus of proof which lies upon it.The position may be conveniently stated as follows:(a) If you are satisfied beyond reasonable doubt as to the accused’s guilt. Convict.(b) If you accept or believe the accused’s explanation. Acquit(c)If you do not accept or believe the accused’s explanation.Do not convict but consider the next steps below.(d) If you do not accept or believe the accused’s explanation and that explanation does not raise in your mind a reasonable doubt as to his guilt. Convict.(e) If you do not accept or believe the accused’s explanation but nevertheless it raises in your mind a reasonable doubt as to his guilt. Acquit.

In this case I did not accept the accused’s explanation because I could not believe his evidence that PW2 struck him with his sterling gun when he first approached him. He did not make any report about the alleged assault and when asked by the learned deputy if he had made any report since that day, I noticed that he avoided giving a direct answer to that question and merely said that he had made a complaint during the previous trial. In any case, I was satisfied that PW2 whom the accused admitted had no grudge against him, has told the Court the truth about what he saw and did that day. On the other hand, I did not believe the accused when he said that nothing was found on him when he was searched by PW2 because, here again, PW2 could not have produced a pistol and five rounds of ammunition to PW3 if he had not in fact recovered them from the accused. There was also no suggestion that the gun and ammunition in question might have been recovered from someone else. Although I did not believe or accept the accused’s explanation, I also found that it did not raise a reasonable doubt in my mind as to his guilt. Applying the abovementioned tests laid down in the said case of Mat v. Public Prosecutor [1959] 1 LNS 2, 264 and in accordance with reg. 17 of the Essential (Security Cases) (Amendment) Regulations, 1975, the Court, having considered and given all due weight to the evidence of both the prosecution and the defence as a whole as well as to the submissions of both Counsel, found the accused guilty of both charges against him. The Court therefore convicted him on both the said charges.

 

Although under s. 57(1) of the said Internal Security Act, 1960 (Revised – 1972) any person convicted of an offence under the said section shall be punished with death, yet before the Court passed sentence of death on the accused, Mr. Karpal Singh referred me to the judgment of Datuk Syed Agil J in Kedah Criminal Trial No. 12/76 (Federal Court Criminal Appeal No. 5/7 – Tan ThianPeng v. Public Prosecutor)

 

wherein his Lordship had suggested that the said appellant’s case might be reviewed in his favour provided his desire to return to the fold and be a law-abiding citizen was honest and sincere. Counsel therefore asked the Court in this case to consider recommending mercy too on the grounds that Acting ASP Ku Yahaya bin Kamaruddin (PW3) has stated under cross-examination that as far as he was aware there was no political subversion involved in this case. I informed Counsel that I had taken note of his plea which I would mention in my report under s. 281 of the Criminal Procedure Code (FMS Cap. 6) for consideration by the appropriate authorities in due course. Accused convicted.

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Dato Menteri Othman Baginda [1981] 1 MLJ 29:

DATOMENTERI OTHMAN BAGINDA & ANOR. v. DATO‘ OMBI SYED ALWI SYED IDRUS
FEDERAL COURT, KUALA LUMPUR
SUFFIAN LP, RAJA AZLAN SHAH CJ (MALAYA), SALLEH ABAS FJ, IBRAHIM MANAN FJ, HASHIM YEOP SANI J
[CIVIL APPEAL NO. 104 OF 1980]
26 SEPTEMBER 1980

JUDGMENT

Suffian LP (dissenting):

This dispute concerns the succession to the 14th Undang (Ruling Chief) of the luak (territory) of Jelebu in the State of Negri Sembilan, and the answers to the issues that arise in this appeal turn on the construction of certain provisions in the Federal Constitution and in the State Constitution.

Preliminary

On 20 November 1979, when the 14th Undang died, it was necessary that his successor be, in the words of Clause (1) of art. XIV of the State Constitution, a person “lawfully elected in accordance with the custom of [his luak]”. Until then, in accordance with the adat (custom) and constitution of the luak, DatoMenteri Othman bin Baginda (“the first defendant”) became acting Undang. He was bound by the adat of the luak to instruct Dato‘ Ombi Syed Alwi bin Syed Idrus (“the plaintiff”) one of the Dato‘ Lembaga (Tribal Chiefs) of the luak to investigate and nominate candidates, from amongst whom a suitable person would be elected as successor to the deceased Undang.

On 4 December the DatoMenteri received a nomination from Kecik bin Kiman, Dato‘ Raja Diraja or Buapak from Waris Sarin, nominating Musa bin Wahab, P.J.K. (“the second defendant”) as a candidate. On receipt of the nomination the first defendant directed the plaintiff to investigate into Encik Musa’s background and qualifications and included his name in the list of candidates.

On 14 December, the first defendant received a letter from the plaintiff giving the names of three possible candidates: namely Syed Zin bin Syed Hussein, Syed Sulong bin Syed Chik and Nordin bin Ahmad. It will be observed that the second defendant’s name was not on the list. The first defendant claimed that it was his duty under the law, custom and constitution of the luak to see that the nomination of the second defendant be given due consideration, and that the plaintiff had failed in his duty as Dato‘ Ombi by not considering the second defendant’s eligibility as a candidate under the rules of pesaka (succession). So the plaintiff as acting Undang called a special meeting of the Tribal Chiefs of the luak on 24 December to discuss the matter. On 31 December another special meeting of the Tribal Chiefs was held attended by eight of them.

The first defendant alleged “that there was no single candidate acceptable to the eight tribal chiefs”, whereupon it was his duty under the adat, custom and constitution of the luak to choose the new Undang. So he personally investigated into the background and qualifications of all the three candidates submitted by the plaintiff and into those of the second defendant, and he concluded that none of the three candidates were eligible and that only the 2nd defendant was a fit and proper person to be appointed the new Undang, that there was no reason why he should not be appointed and that in failing to take into account his eligibility the plaintiff had failed to carry out his duty as Dato‘ Ombi. Subsequently, on 4 February, 1980, he (the first defendant) proclaimed the appointment of the second defendant as the new Undang of the luak of Jelebu in accordance with the adat, custom and constitution of the luak.

Seventeen days later the plaintiff filed a suit in the Seremban High Court against the two defendants, alleging that the second defendant was not a candidate for the Undangship, was not qualified for it under the adat, custom and constitution of the luak, that his appointment was not approved by the plaintiff and six other Tribal Chiefs of the luak, whom he named; and by reason of all this the plaintiff asked the Court to declare that the purported appointment by the first defendant of the second defendant as the new Undang was invalid as being contrary to the adat, custom and constitution of the luak of Jelebu.

In their defence the two defendants maintain that the appointment was valid according to the adat, custom and constitution of the luak. Secondly, they contend that the Court has no jurisdiction to entertain the action. Thirdly, the second defendant for his part alone contends that as the lawfully elected Undang he is immune from being sued in his personal capacity.

On 24 March the two defendants applied by summons in chambers for an order that the plaintiff’s statement of claim be struck out on the ground that the Court had no jurisdiction because the dispute involved a question of adat and custom of Malays in the luak and, in the case of the second defendant, on the further ground that under the constitution he as Ruling Chief enjoyed legal immunity in his personal capacity.

These contentions were hotly contested. In the event, the learned Judge (Abdul Hamid, FJ, sitting in the High Court) dismissed the application, holding that the Court had jurisdiction to entertain the action and that the second defendant did not enjoy legal immunity.

The defendants have appealed to this Court. Before proceeding any further, it should be stressed that as this matter has not gone to trial yet, the facts given above have been taken from the pleadings and affidavits filed in connection with the summons in chambers, and may not be “firm”. Secondly, while clause (1) of art. XIV of the State Constitution speaks of Undang of Jelebu being elected, the above narration of the facts speaks of his being “chosen” and “appointed”, the very words which were used in the affidavit. But it would appear that at this stage there is no significance in the deviation from the word used in that clause. Thirdly, the Court is not concerned at this stage with the merits of the plaintiff’s claim, i.e. with the validity or otherwise of the election of the second defendant.

Issues

There are two issues in this appeal. First, does the Court have jurisdiction to determine this dispute? The defendants contend that, contrary to the ruling of the learned Judge, the Court does not.

Legal Immunity

Secondly, does the second defendant enjoy legal immunity from being sued in his personal capacity? He contends that, contrary to the ruling of the learned Judge, he does. As regards this, article 181 of the Federal Constitution provides:

181. (1) Subject to the provisions of this Constitution, the sovereignty, prerogatives, powers and jurisdiction of the Rulers and the prerogatives, powers and jurisdiction of the Ruling Chiefs of Negri Sembilan within their respective territories as hitherto had and enjoyed shall remain unaffected.

(2) No proceedings whatsoever shall be brought in any Court against the Ruler of a State in his personal capacity and art. 160(2) of the same Constitution provides:

In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say:

“Ruler” –

(a) in relation to Negri Sembilan means the Yang di-Pertuan Besar acting on behalf of himself and the Ruling Chiefs in accordance with the Constitution of that State; …

It appears doubtful that art. 181 gives the second defendant legal immunity at all. I say so because such immunity is usually an attribute of sovereignty, and while Clause (1) of the art. speaks of the sovereignty of a Ruler it speaks only of the prerogatives, powers and privileges, not sovereignty, of a Ruling Chief. And the definition of Ruler in Clause (2) of art. 160 appears to refer only to functions and does not touch on the question of whether or not a Ruling Chief is sovereign.

In the past, treaties between the State and the British were co-signed by the Ruling Chiefs. The Federation of Malaya Agreement, 1957, signed by Their Royal Highnesses the Rulers and the British, one of the instruments granting us independence, was also co-signed by the Ruling Chiefs. It is therefore also arguable that a Ruling Chief does enjoy legal immunity to the extent set out in art. 180, being “sovereign”.

Be that as it may, I am of the opinion that even assuming, without deciding, that an Undang of Jelebu enjoys legal immunity in his personal capacity, this is so if and only if there is no dispute as to the validity of his election; and that if the very validity of his election is disputed, then until the Court is satisfied as to its validity, the purported holder of the office is subject to the process of the Court. Otherwise, every pretender or usurper will enjoy legal immunity. For this reason, I am of the opinion that the second defendant cannot at this stage avail himself of the protection of art. 181(2) of the Federal Constitution.

Jurisdiction

I now turn to the first issue in this appeal. It transpires that before this action was filed this dispute was brought to the attention of His Royal Highness the Yang di-Pertuan Besar, i.e. the Ruler of the State, and on 7 February, 1980, a meeting of the Dewan Ke’adilan dan Undang, the Council of the Yang di-Pertuan Besar and the Ruling Chiefs, (“the Council”) was held to discuss the matter. This body, established by Art. XVI, XVII and other Art. of Chapter 6 of the Negri Sembilan Constitution, consists of His Royal Highness, the Ruling Chiefs, the Tengku Besar of Tampin and other high dignitaries, and its function (Art. XVI) is “to advise on questions relating to Malay custom in any part of the State or on other matters which may be referred to it by His Royal Highness or any of the Ruling Chiefs … “. When the Council deliberates on state or national policy the Menteri Besar shall be invited to attend (Art. XVII); and the Council may invite to any of its meetings any person if it considers that his presence is desirable (Art. XXIV). This meeting of 7 February had only one item on the agenda, to discuss the election of the new Undang, and was attended by the following high officials on invitation: the Menteri Besar, the State Secretary, the Legal Adviser and the Mufti-which shows the importance attached to the matter under discussion. According to its minutes (Exh. DM 7), His Royal Highness, the President of the Council, reported that he and the Secretary of the Council had each received a letter signed by seven Tribal Chiefs of the luak of Jelebu expressing dissatisfaction with the election of the second defendant as Undang of Jelebu, and His Royal Highness invited the Menteri Besar to report on the dispute, which he did. Then the members of the Council discussed the matter among themselves behind closed doors in the absence of non-members for about an hour. When the non-members had been invited to re-enter, His Royal Highness announced the decision of the Council, formally recorded in the minutes as follows:

The Council of the Yang di-Pertuan Besar and the Ruling Chiefs, Negri Sembilan which sits this day gives its blessing to the election of Dato‘ Musa bin Abdul Wahab (the second defendant) to hold the hereditary office of the Undang of Jelebu Territory, the new Undang, with the title of Dato‘ Mendika Menteri Akhirulzaman.

The last paragraph of the minutes concludes:

Thereafter His Royal Highness commanded the Secretary to the Council to make a press statement announcing the decision of the Council of the Yang di-Pertuan Besar and the Ruling Chiefs.

Reference was made in the lower Court and before us to art. 71 of the Federal Constitution, and it was contended that in the light of that Art., the decision of the Council is decisive of this dispute and removed it from the jurisdiction of the Courts. That Article provides that any dispute as to the title to the succession as a Ruling Chief in Negeri Sembilan shall be determined solely by such authorities and in such manner as may be provided by the Constitution of that State, and reads as follows:

71. (1) The Federation shall guarantee the right of a Ruler of a State to succeed and to hold, enjoy and exercise the constitutional rights and privileges of Ruler of that State in accordance with the Constitution of that State, but any dispute as to the title to the succession as Ruler of any State shall be determined solely by such authorities and in such manner as may be provided by the Constitution of that State.

(2) Clause (1) shall, with the necessary modifications apply in relation to a Ruling Chief of Negri Sembilan as it applies to the Ruler of a State.

The learned Judge held that the Court has jurisdiction to adjudicate on this dispute because the election must be held in accordance with the custom of Jelebu, the Council’s function relating to Malay custom is merely advisory (the Council does not decide), there is no evidence so far from the minutes showing what was the custom that it took into account when “blessing” the new appointment, and that blessing it is not the same as approving or confirming it, which in any event it has no power to do.

The learned Judge also held that the second limb of clause (1) of art. 71 of the Federal Constitution, meaning the words underlined, does not appear to be applicable to a Ruling Chief. With respect I do not agree. In my judgment, the effect of this art. 71 is that the Negri Sembilan Constitution may provide that a dispute as to the title to the succession as a Ruling Chief in Negri Sembilan may be determined solely by such authorities and in such manner as may be provided by it, and if that is done, the Court’s jurisdiction is ousted.

It was submitted before us that the State Constitution has provided that such a dispute should be determined solely by the Council established by art. XVI of that Constitution, thus ousting the Court’s jurisdiction. True the Council’s function is expressed to be advisory, but it was submitted that it is an august body, consisting of the highest dignitaries in the State who are repositories of Malay adat and with easy access to experts on adat, and that if a disputed election such as this which should have been held in accordance with adat had been referred to it, it would not have blessed it if it found that it had contravened adat, and that if it blessed it, it must have found that it did conform to adat; that it was far-fetched to imagine that the constitution-makers of the State intended that thereafter the Court should have jurisdiction to reopen the subject and question its validity. And mention was made of the fact that the State Assembly had on 13th February formally “noted” the election of the 15th Undang and that he has been in receipt of his civil list allowances since the election.

I am of the opinion that while it is of course open to the Federal or State Constitution to oust the jurisdiction of the Court, it must do so in clear language.

Suppose a vote on something is taken in the House of Representatives; the validity of the proceeding cannot be questioned in the Court, because art. 63(1) of the Federal Constitution so provides. Suppose Mr. Speaker certifies that the steps which require to be taken before a money bill may be presented to the Yang di-Pertuan Agong for his assent over the objection of the Senate, have been taken; the validity of the certificate may not be questioned in the Court, because art. 68(4) so provides. Or suppose a member says in the House something that is defamatory; he may not be sued in Court, because art. 63(2) expressly provides that he shall not be liable for any proceedings in any Court in respect of anything said by him in the House. In all these instances, there are provisions clearly ousting the jurisdiction of the Courts.

In my respectful judgment, there is nothing as clear as the above provisions in the Constitution, Federal or State, ousting the Court’s jurisdiction over a disputed election of an Undang, and I therefore agree with the learned Judge that the Court does have jurisdiction to adjudicate on this election – in the same way as the Court has jurisdiction to determine the validity of the dismissal by the Public Service Commission of a public servant, when it is challenged.

As a public servant may not be dismissed without being first given a reasonable opportunity of being heard (art. 135(2)), and the Court has jurisdiction to entertain and adjudicate on his complaint that he has been so dismissed, there being no provision in the constitution to oust the jurisdiction of the Court, so in my judgment the Court has jurisdiction to entertain and adjudicate on the complaint of a tribal chief of the luak of Jelebu that a new Undang of Jelebu has been elected contrary to the custom of the luak, there being no provision in the Federal or State Constitution ousting the jurisdiction of the Court. To determine whether or not the complaint is justified, the Court has first to as certain what is the custom in Jelebu, and then apply it to the facts, and there is no question of the Court interfering with or disregarding it. Whether or not the Undang has been validly elected is of course a delicate question, and a political question which is best solved by political means; but if the constitution and law require, as I think they do, that the matter be resolved by the Court, then until the constitution has been suitably amended, the Court has no alternative but to embark on the task as best as it can, though that will have the unfortunate effect of throwing the Court into the political arena. So that Courts are not turned into a political forum, I would rather that State Constitutions be amended by the appropriate authorities, so that future disputes regarding succession are kept out of our way and decided by persons or bodies better equipped to do so.

Until then, I would with respect have dismissed this appeal with costs.

Also found at [1984] 1 CLJ 28

Categories: CaseLaws

Dato’ Yap Peng v PP [1987] 2 MLJ 311:

PUBLIC PROSECUTOR v. DATO’ YAP PENG
SUPREME COURT, KUALA LUMPUR
SALLEH ABAS LP, LEE HUN HOE CJ (BORNEO), MOHD. AZMI SCJ, HASHIM YEOP SANI SCJ, EUSOFFE ABDOOLCADER SCJ
[CRIMINAL APPEAL NO. 15 OF 1987]
23 MARCH 1987

JUDGMENT

Eusoffe Abdoolcader SCJ:

This appeal from the judgment of Zakaria Yatim J made on 5 March 1987 revolves around the sole and primal issue of the constitutional validity of s. 418A of the Criminal Procedure Code (FMS Cap. 6) (`the Code’) in relation to the provisions of Article 121(1) of the Federal Constitution. To circumscribe reiteration and obviate prolixity, all references in this judgment to sections and articles, unless otherwise specifically indicated, relate to the Code and the Federal Constitution respectively.

The respondent was charged on 19 December 1986 in the Sessions Court at Kuala Lumpur on two charges of criminal breach of trust to which he claimed trial. When his case was mentioned again in the Sessions Court on 29 December 1986 the Deputy Public Prosecutor tendered a certificate issued by the Public Prosecutor under s. 418A requiring the case to be removed to the High Court and this was promptly complied with in view of the peremptory requirement of subsection (3) thereof. The respondent was then formally arraigned in the High Court at Kuala Lumpur on 6 January 1987 when objection was taken on his behalf to the transfer of the case from the Sessions-Court on a challenge mounted against the constitutional validity of s. 418A on the basis that it infringes Article 121(1) and 5(1). Zakaria Yatim J in a reserved decision held s. 418A to be unconstitutional and void in that it is inconsistent with Article 121(1) and that the certificate issued by the Public Prosecutor thereunder was accordingly invalid and of no effect and ordered the case to be remitted to the Sessions Court for trial, and indicated that it was therefore unnecessary to consider the question of the validity of s. 418A in relation to Article 5(1).

As this matter turns substantively on the provisions of s. 418A, it would perhaps be appropriate at this stage to set out its specifications. Subsection (1) of that section stipulates that notwithstanding the provisions of s. 417, the Public Prosecutor may in any particular case triable by a criminal Court subordinate to the High Court issue a certificate requiring the Court before which the case is pending to remove it to the High Court at such place as may be specified in the certificate and to cause the accused person to appear or be produced before the said High Court Subsection (2) declares that the power of the Public Prosecutor under subsection (1) shall be exercised by him personally, and subsection (3) enacts that upon receipt of the certificate, the Court before which the case is triable shall without holding a preliminary inquiry under Chapter XVII transmit the case to the High Court mentioned in the certificate and cause the accused person to appear or be brought before such High Court as soon as may be practicable, and thereafter the provisions of subsection (3)(b) and subsection(4) of s. 417 shall apply to such case mutatis mutandis. This provision was added to the Code by an amendment effected as from 10 January 1976.

The constitutional validity of s. 418A but only in relation to Article 8(1) was raised before me in Public Prosecutor v. Datuk Harun bin Haji Idris & Ors. [1976] 2 MLJ 116 (the Bank Rakyat case) when I declared that it was unconstitutional and void by virtue of the provisions of Article 4(1) in that it infringed Article 8(1). The Federal Court however in an appeal from a decision in an entirely different case, Public Prosecutor [1977] 2 MLJ 155 (the Hongkong Bank case), in a judgment delivered by a Court of two Judges, the third member of the Court having died after the hearing but before judgment was delivered without formally expressing any view in the matter, held that s. 418A did not violate the provisions of Article 8(1) and was accordingly valid.

I should perhaps mention that the Federal Court in its judgment in the Hongkong Bank case did not refer to or even mention the Bank Rakyat case, and, quite apart from this, perhaps the two can be distinguished in that in the Bank Rakyat case which involved charges of forgery and criminal breach of trust the sentences imposable in the High Court and the Sessions Court could have been disparate whereas in the Hongkong Bank case which involved charges of corruption the sentences upon conviction in the High Court would not have been affected as a result of the transfer. In an advisory opinion under Article 143 of the Constitution of India in In re the Special Courts Bill 1978 [1979] AIR SC 478,

Chandrachud CJ (at pp. 508-510) reformulated the principles in relation to the equivalent of our Article 8, and in doing so stated inter alia the principle that whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of the provision equivalent to our Article 8 must be determined in each case as it arises, for no general rule applicable to all cases can safely be laid down, and a practical assessment of the operation of the law in the particular circumstances is necessary.

A petition for special leave to appeal against the decision of the Federal Court in the Hongkong Bank case was refused by the Privy Council, but as Lord diplock observed in the House of Lords in Gilbert-Ash (Northern) Ltd. v. Modern engineering (Bristol) Ltd. [1974] AC 689 (at p. 715): “Refusal of leave to appeal does not imply approval by this House of a judgment sought to be appealed against.” This principle was emphatically restated in the House of Lords in In re Wilson [1985] 1 AC 750 (at p. 756) and Regina v. Blastland [1986] 1 AC 41 (at p. 52). These cases make it clear that there may be a multitude of reasons why leave to appeal may be refused, and one of the reasons in the matter of the Hongkong Bank case would obviously seem to be the fact that the petition for special leave to appeal was refused in February 1978 when appeals from the Federal Court in criminal matters had ceased to be heard by the Privy Council as from 1 January 1978.

I did in the course of my judgment in the Bank Rakyat case in dealing with s. 418A touch on the matter of Article 121(1) (at p. 119) and Mr. Sri Ram for the respondent candidly admits that he drew inspiration for the attack advanced in the present proceedings against the constitutional validity of s. 418A in relation to Article 121(1) from my digressive observations in this regard in that case-digressive, because there the constitutional question raised and presented for determination was the resultant impact only of Article 8 on the impugned section.

It is now necessary to turn to consider the purport and effect of s. 418A in relation to Article 121(1) provides that subject to Clause (2) the judicial power of the Federation shall be vested in two High Courts, namely, the High Court in Malaya and the High Court in Borneo, and in such inferior Courts as may be provided by federal law. Judicial power may be broadly defined as the power to examine questions submitted for determination with a view to the pronouncement of an authoritative decision as to rights and liabilities of one or more parties. It is virtually impossible to formulate a wholly exhaustive conceptual definition of that term, whether inclusive or exclusive, and as Windeyer J observed in the High Court of Australia in The Queen v. Trade Practices Tribunal: Ex parte Tasmanian Breweries Pty. Ltd. [1970] 123 CLR 361 (at p. 394): “The concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis”, and again (at p. 396) that it is “really amorphous”. In Liyanage & Ors. v. The Queen [1967] AC 259, Lord Pearce in delivering the judgment of the Privy Council, in the course of observing that the Judicial Committee did not find it necessary to attempt the impossible task of tracing where the line is to be drawn between what will and what will not constitute an interference with the judicial power, said (at p. 290):

Each case must be decided in the light of its own facts and circumstances, including the true purpose of the legislation, the situation to which it was directed, the existence (where several enactments are impugned) of a common design, and the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings. It is therefore necessary to consider more closely the nature of the legislation challenged in this appeal.

I have in my judgment in the Bank Rakyat case (at pp. 119-120) dealt with the powers of the Attorney General under Article 145(3) and the connotation of his power to “institute” and “conduct” criminal proceedings. My discourse in this regard was approved and adopted by the Federal Court in Public Prosecutor V. Lim Shui Wang & Ors. [1978] 1 LNS 155 . I said there, and I repeat, that the power of the Attorney General under Article 145(3) cannot and does not connote or extend to the regulation of criminal procedure or of the jurisdiction of the Courts or the power or discretion to do so. The power to transfer a case is a judicial power exclusively exercisable by a Court in the manner provided for in ss. 138,177 and 417 of the Code. The power to transfer is similarly designated as a judicial power and provided for in s. 25 and para. 12 of the Schedule to the Courts of Judicature Act 1964.

Section 418A(1) empowers the Public Prosecutor, who is the Attorney General, by the issue of a certificate to require a subordinate Court to remove to the High Court any particular case triable by and pending before it. It confers on him an untrammelled and uncontrolled power in very wide terms to effect this requirement. In Regina v. Horsham Justices, Ex parte Farquharson & Anor. [1982] 2 WLR 430, Ackner LJ (now a Law Lord) said in the English Court of Appeal (at p. 464):

It has for long been established that from the time a person is charged, even though he has not been committed for trial, his trial is “pending”: see Rex v. Parke [1903] 2 KB 432, followed in Reg. v. Duffy, Ex parte Nash [1960] 2 QB 188, 195.

The power of the Public Prosecutor challenged in the matter before us is the power at any stage of the proceedings to effect the transfer of any particular case pending before a subordinate Court competent to try it to the High Court.

The amplitude of the power conferred by s. 418A on the Public Prosecutor manifests itself in the provisions of s. 418A(3) where upon the receipt of a certificate issued under subsection (1) subordinate Court is obliged without any reservation whatsoever and without more ado to transmit the case to the High Court mentioned in the certificate and cause the accused person to appeal or be brought before such High Court as soon as may be practicable, and thereafter the provisions of subsection (3)(b) and subsection (4) of s. 417 shall apply to such case mutatis mutandis. Section 417(3)(b) provides that when the accused is brought before the High Court it shall fix a date for his trial, and by virtue of the provisions of subsection (4) of s. 417 the High Court may then act on the evidence already recorded or partly so recorded and partly recorded by itself, or it may resummon the witnesses and recommence the inquiry or trial, with a proviso to the effect that it would be open to the Public Prosecutor or the accused to apply for the witnesses or any of them to be resummoned and reheard. This would in effect enable the transfer of a case under s. 418A even after all proceedings have been completed but just before a decision is about to be made by the subordinate Court whereby the prosecution could virtually procure a completely new trial by the application of the requisite provisions of s. 417(4).

Section 418A(3) confers a power on the Public Prosecutor but imposes an obligation and a duty on the subordinate Court to obey and comply with his requirement. The subordinate Court has no discretion to act otherwise, and if it can be argued, as encik Mohtar Abdullah, the Deputy Public Prosecutor, seeks to do, that under s. 418A(3) the power to transfer still lies with the subordinate Court, then it would nevertheless remain, in all its stark reality, a duty under the guise of an illusory power of a forensically cosmetic nature and rigged as such. I did in my judgment in the Bank Rakyat case say (at p. 121) that s. 418A “is not without a tinge of polite arrogance” In the light of the analysis the Deputy seeks to put on the provisions of s. 418A(3), I would now go further to say, as I said in Court in the course of the hearing before us, that it only projects and reflects a facade of arrogance clothed in humility.

In my view the provisions of s. 418A are both a legislative and executive intromission into the judicial power of the Federation. It is a legislative incursion to facilitate executive intrusion, and the Deputy in answer to a question I put to him had perforce to agree that in the context of subsection (3) of s. 418A judicial power would amount to “doing what you are told to do”. The provisions of s. 418A specifically apply to any particular case triable by and pending before a subordinate Court and the referential application of the provisions of s. 417(3)(b) and (4) by subsection (3) of s. 418A clearly refutes the submission put forward for the Public Prosecutor both before us and in the Court below that his power is not limitless and cannot be exercised if the trial before the subordinate Court has commenced and that he can only exercise his power to issue a certificate under subsection (1) of that section if no witnesses have been called or examined and that therefore the section does not offend Article 121(1). An invalid legislative interference acts on pending judicial proceedings, either directly or indirectly by executive action arrogating to itself functions proper to the Courts, and usurps or obtrudes on the judicial process. If the Public Prosecutor desires to choose the forum of trial of criminal proceedings under his powers under Article 145(3), it is open to him to do so under ss. 138,177, or 417 of the Code but his power of choice cannot supersede the judicial power exercisable by virtue of the statutory provisions in the Code I have referred to.

I cannot but conclude in the circumstances that there is in fact by the exercise of the power conferred by s. 418A on the Public Prosecutor an incursion into the judicial power of the Federation and that any other view would ex necessitate rei result in relegating the provisions of Article 121(1) vesting the judicial power of the Federation in the curial entities specified to no more than a teasing illusion, like a munificent bequest in a pauper’s will. The power of the Public Prosecutor under s. 418A is uncanalized, unconfined and vagrant. The Deputy however assures us that this power will only be exercised reasonably. Now this is exactly what happened in Attorney-General v. Brown [1920] 1 KB 773, usually called the Pyrogallic Acid Case, in which to complaints about the tremendous breadth of the authority contended for by the Government in the matter of statutory authorisation for the importation of goods, Sir Gordon Hewart, who was the Attorney General at that time, arguing for the Crown, put (at p. 779) what has since become the stock answer of those who see no danger in Executive power being left uncontrolled (and this is quite ironic in view of his subsequent condemnation of similar apologists): “The Government could be relied upon to see that the power was reasonably exercised.” Sankey J, however, had no difficulty in holding the Executive action illegal, and he pointed out (at p. 791) that the Crown’s argument that the Executive could be trusted begs the question, for the Court could concern itself only with the bare issue of the possession of the claimed power, and not whether it would be reasonably exercised.

When I drew the Deputy’s attention to the provisions of subsection (3) of s. 418A and the referential application, as a result, of the provisions of s. 417(4), he said in the first instance that in those circumstances it would be open to an accused person to challenge the exercise of the power by the Public Prosecutor under s. 418A on the ground of mala fides. The short answer to this is threefold: First, I cannot see that any question of mala fides can conceivably arise when the law specifically provides as it does in subsection (3) of s. 418A for the consequences of a transmission of a case under that section, and the Deputy in answer to me had nolens volens to concede that it would be legally permissible to apply the provisions of s. 417(4) by specific legislative authorization to that end. Second, the challenge by the respondent is to the constitutionality of the source of the Public Prosecutor’s authority to issue a certificate and not the bona fides of the exercise of his power in doing so. Third, the natural and logical sequitur to this contention would be to lay open the door for every accused person affected to challenge the bona fides of the Public Prosecutor every time a certificate is issued by him under s. 418A(1). And all this is quite apart from the fact that the most noticeable thing about allegations of bad faith is that they have almost always failed, as the onus of proving mala fides is extremely difficult to discharge (Yeap Hock Seng v. Minister of Home Affairs, Malaysia & Ors. [1975] 2 MLJ 279 (at p. 284); Balakrishnan v. Ketua Pengarah Perkhidmatan Awam Malaysia & The Government of Malaysia [1981] 2 MLJ 259 (at p. (263)).

When faced with the position put to him of the consequences of the application of subsection (3) of s. 418A the Deputy then suggested that it might be possible to declare only that part of that subsection applying s. 417(4) as bad, in effect invoking the doctrine of severability. The doctrine of severability cannot in my view apply in respect of s. 418A as that section operates as a totality and there is no bad part which can be effectively severed from the good without affecting the whole. Subsection (1) of the section refers to any particular pending case triable by a subordinate Court and subsection (3) provides for the manner of disposal of such cases in the High Court. Any form of severance if it can be effected at all would emasculate and abort the section as a whole and defeat and negate the teleological purpose of the provision which was clearly enacted to give the Public Prosecutor a second string to his bow, so to speak, over and above the provisions of s. 417 as I indicated in my judgment in the Bank Rakyat case.

The Deputy relies heavily on the judgment of the Supreme Court in Savrimuthu a/l Sinnapan v. Public Prosecutor (Supreme Court Criminal Reference No.2 of 1986; judgment delivered on 1 December 1986: [1987] CLJ (Rep) 322). This ease involved the provisions of s. 41A of the Dangerous Drugs Act 1952 and is wholly distinguishable from the matter before us and has no relevance in relation the provisions of s. 418A. It turned basically on the question of the commencement of the proceedings and the ratio decidendi of the decision was that the Public Prosecutor cannot require a case to be tried by the High Court under s. 41A of the Dangerous Drugs Act once the trial has commenced and the trial is said to have commenced when evidence has begun to be adduced. The position in relation to s. 418A is wholly different as it clearly manifests ex visceribus verborum the operation of the section at any stage of the proceedings before the subordinate Court right up to even the point where a decision is about to be made. Section 41(2) of the Dangerous Drugs Act provides that notwithstanding the provisions of subsection (1), the High Court shall have jurisdiction to try any case in respect of any offence under that Act if the Public Prosecutor requires any such case to be tried by the High Court. The implementation of the requirement of the Public Prosecutor to this effect is provided for by s. 41A(1) of that Act which states that where any case in respect of any offence under that Act is triable exclusively by the High Court or is required by the Public Prosecutor to be tried by the High Court, the accused shall be produced before the appropriate subordinate Court which shall, after the charge has been explained to him, and I pause to observe that there is no provision or requisite for a plea to be taken, transmit the case to the High Court without holding a preliminary inquiry under Chapter XVII of the Code, and cause the accused person to appear or be brought before such Court as soon as may be practicable.

The formulation of s. 41A of the Dangerous Drugs Act is wholly different from that of s. 418A and does not refer to pending cases triable by the subordinate Court, as once the Public Prosecutor determines that it should be tried by the High Court, the accused is produced before the appropriate subordinate Court which only has to explain the charge to him and without taking a plea transmit the case to the High Court where the trial will then commence. The provisions of s. 41A of the Dangerous Drugs Act accordingly come plumb within the power of the Public Prosecutor under Article 145(3) to institute criminal proceedings. Savrimuthu does not therefore affect the position before us in any way whatsoever, and I would add that this equally applies to s. 11 of the Firearms (Increased Penalties) Act 1971 which is identically phrased as s. 41A of the Dangerous Drugs Act.

I would accordingly declare that s. 418A is in violation of the provisions of Article 121(1) and therefore unconstitutional and void under the provisions of Article 4(1). The Deputy submits that any such pronouncement will create chaos as the section in question has been resorted to and trials held in the High Court as a result. The section has indeed been implemented and convictions and acquittals secured as a result over a span of some eleven years in view of the decision in the Hongkong Bank case, and it will therefore be necessary in these circumstances to apply the doctrine of prospective overruling in this case.

The general principle of retroactivity of a judicial declaration of invalidity of a law was overturned by the Supreme Court of the United States of America in Linkletter v. Walker [1965] 381 US 618 (at p. 628) when it devised the doctrine of prospective overruling in the constitutional sphere in 1965 as a practical solution for alleviating the inconveniences which would result from its decision declaring a law to be unconstitutional, after overruling its previous decision upholding its constitutionality. This doctrine was applied by the Supreme Court of India in I.C.Golak Nath v. State of Punjab & Anor. [1967] AIR SC 1643 (at p. 1666-1669). The doctrine-to the effect that when a statute is held to be unconstitutional, after overruling a long-standing current of decisions to the contrary, the Court will not give retrospective effect to the declaration of unconstitutionality so as to set aside proceedings of convictions or acquittals which had taken place under that statute prior to the date of the judgment which declared it to be unconstitutional, and convictions or acquittals secured as a result of the application of the impugned statute previously will accordingly not be disturbed-can be applied by the Supreme Court as the highest Court of the country in a matter arising under the Constitution to give such retroactive effect to its decision as it thinks fit to be moulded in accordance with the justice of the cause or matter before it-to be adhibited however with circumspection and as an exceptional measure in the light of the circumstances under consideration.

In England this doctrine has been recognised by the House of Lords by necessary implication in the Practice Statement JudicialPrecedent [1966] 1 WLR 1234 issued by Lord Gardiner LC on behalf of himself and the Lords of Appeal in Ordinary on 26 July 1966. More recently, in Jones v. Secretary of State for Social Services [1972] AC 944, two Judges of the House of Lords, Lord Diplock (at p. 1015) and Lord Simon of Glaisdale (at p. 1026) were prepared to consider the application of the American doctrine of prospective overruling to England. In Choice Investments Ltd. v. Jeromnimon [1981] 2 WLR 80 Lord Denning MR in his judgment in the English Court of Appeal (at p. 84) accepted the subsistence and application of the doctrine. In Defrenne v. Sabena [1981] 1 All ER 122, the Court of Justice of the European Communities applied the doctrine of prospective overruling predicated on conditions of legal certainty which required the Court, as an exceptional measure, to declare the law for the future only.

At the conclusion of argument on 19 March 1987, the Court accordingly by a majority (Tun Mohamed Salleh Abas LP and Tan Sri Hashim Yeop Sani SCJ dissenting) declared s. 418A to be unconstitutional and void as being an infringement of the provisions of Article 121(1) and applied the doctrine of prospective overruling so as not to give retrospective effect to the declaration made with the result that all proceedings of convictions or acquittals which had taken place under that section prior to the date of our judgment in this matter would remain undisturbed and not be affected, and the appeal was dismissed on this basis.

All is not lost however, as an application by the Public Prosecutor under s. 417 would still be open and available to him if he chooses to apply thereunder, as I said in the Bank Rakyat case when such an application was in fact made and allowed after the transfer effected under s. 418A was vitiated, in which event the High Court will no doubt consider the application within the ambit of that provision and on its merits.

Mohd. Azmi SCJ:

This is an appeal against the decision of Zakaria Yatim J on the constitutionality of s. 418ACriminal Procedure Code It arose in this way. On 19 December 1986, the respondent appeared in the Sessions Court at Kuala Lumpur and was charged at the instance of the Public Prosecutor on two counts with Criminal Breach of Trust under s. 409 Penal Code. He claimed trial to both the charges and was granted bill in the sum of RM2,000,000 with two sureties. When the case came up for mention ten days later on 29 December Encik Mohtar Deputy Public Prosecutor tendered a certificate under s. 418A Criminal Procedure Code (CPC) requiring the case to be transferred to the Kuala Lumpur High Court for trial. Inspite objections by the respondent, the Sessions Court President removed the case to the High Court, as she was mandatorily obliged to do under s. 418A(3) without holding a preliminary inquiry under s. 138 CPC. After the transfer of the case, the respondent was accordingly charged before Zakaria Yatim J in the High Court on 6 January 1987 on the same two charges. The respondent again objected to the removal of the case on the ground that s. 418A CPC ultra vires the Federal Constitution by reason of Article 121(1) and Article 5(1). Relying on the judgment of Abdoolcader J (as he then was) in Public Prosecutor v. Datuk Harun bin Haji Idris & Ors. [1976] 2 MLJ 116, on the interpretation of the power of the Attorney-General in Article 145(3) to “institute” and “conduct” proceedings, the learned Judge concluded that the power to transfer was a judicial power, and as such s. 418A encroached upon the judicial power of the Federation and therefore was in violation of Article 121(1). That Article provides:

Subject to Clause (2) the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status, namely … the High Court in Malaya … and … the High Court in Borneo … and in such inferior Courts as may be provided by federal law.

The learned Judge accordingly ruled that s. 418A was unconstitutional on the ground that it was inconsistent with Article 121(1) and was therefore void, without having to consider the provision of Article 5(1). He then ordered the case against the respondent be sent back to the Sessions Court for trial. Hence this appeal by the Public Prosecutor. In his judgment the learned Judge relied on the following statement of Griffith CJ in the Australian case of Huddart, Parker and Co. ProprietaryLtd. v. Moorehead [1908] 8 CLR 330, which was cited with approval by the Privy Council in Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation [1931] AC 275 at p. 295 & 296:

… I am of opinion that the words `judicial power’ as used in s.71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision … is called upon to take action.

The appellant’s main argument before this Court is that when Article 121(1) proclaims the judicial power of the Federation shall be vested in the Courts, the term “judicial power” does not include the power to transfer pending cases. Encik Mohtar for the appellant adopts the strict meaning attached to judicial power. As I understand him, judicial power is strictly power to decide disputes, and all other powers such as the power to grant bail, to postpone and adjourn proceedings, and to transfer cases, are merely ancillary and not covered by Article 121. He relies on Savrimuthu a/l Sinnapan v. PP[1987] CLJ 322 (Rep) Sup. Ct. Criminal Ref. No. 2 of 1986, [1987] CLJ (Rep) 322 a case dealing with s. 41(2) Dangerous Drugs Act 1952 with reference to Article 7(1) of the Federal Constitution, for the proposition that so long as power to transfer in s. 418A is not exercised after the trial has commenced, the impugned section is constitutional. Thus, although he concedes that section allows the Public Prosecutor to issue a certificate for transfer at any stage of the trial before its conclusion, the factual situation in this appeal is such that its exercise is not unconstitutional because the trial has not begun. He also argues that s. 418A is a mere vehicle by which the Public Prosecutor chooses the venue of trial. He refers to the case of Public Prosecutor V. Lim Shui Wang & Ors. [1978] 1 LNS 155 and argues that by implication s. 418A does not contravene Article 121 but is consistent with Article 145(3) which provides:

The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native Court or a Court-martial.

It is convenient to note at this stage that in Lim Shui Wang case, preliminary inquiries were held before the three accused were committed for trial in the High Court, and the point in issue as to whether under the schedule to s. 25(2) Courts of Judicature Act 1964. the High Court had power to send the case back to the subordinate Court after the Attorney-General had properly chosen his trial forum, is wholly irrelevant in this appeal. The learned DPP emphasises that in this instance there is no way for the Public Prosecutor to register the case in High Court straightaway, without holding a preliminary inquiry unless the case is removed to the High Court under s. 417 or 418Awhich are the only exceptions provided under s. 138 CPC. However, he seems to concede that to the extent of the impugned provision making s. 417(3)(b) and (4) mutatis mutandis, it may be unconstitutional. Mr. Sri Ram, Counsel for the respondent persists in his argument that the power to transfer cases is and has always been a judicial power. He invites us to adopt the test applied by the Canadian Supreme Court in the case of Re Residential Tenancies Act Vol. 123 DLR (Third) 554 which dealt with the constitutionality of certain provisions of the Act that conferred judicial functions on a body which was not a Court. It was held that the test of constitutionality must be formulated in three stages, and according to Mr. Sri Ram the appellant here has not even satisfied the first step which was dealt with by the Canadian Court in the following statement:

The jurisprudence since John East leads one to conclude that the test must now be formulated in three steps. The first involves consideration, in the light of the historical conditions existing in 1867, of the particular power or jurisdiction conferred upon the tribunal. The question here is whether the power or jurisdiction conforms to the power or jurisdiction exercised by Superior, District or County Courts at the time of Confederation. This temporary segregation, or isolation, of the impugned power is not for the purpose of turning back the clock and restoring Toronto v. York as the governing authority, an approach deplored in Mississauga. It is rather the first step in a three step process.

If the historical inquiry leads to the conclusion that the power or jurisdiction is not broadly conformable to jurisdiction formerly exercised by s. 96 Courts, that is the end of the matter. As Rand J noted in A.E. Dupont et al. v. Inglis et al. [1958] 14 DLR (2d) 417 at p. 424, [1958] SCR 535 at p. 542: “Judicial power, not of that type (i.e., that exercised by s. 96 Courts at Confederation), such as that exercised by inferior Courts, can be conferred on a Provincial tribunal whatever its primary character.” If, however, the historical evidence indicates that the impugned power is identical or analogous to a power exercised by s. 96 Courts at Confederation, then one must proceed to the second step of the inquiry.

For the proper determination of this apeal, it is essential to consider two things. First, historically the power to transfer pending criminal cases in the subordinate Courts to the High Court for trial has always been vested in and exercisable solely by the Court under ss. 417 and 418 CPC, both before and after Merdeka Day. The position remained so until the Criminal Procedure Code was amended by Parliament vide Act A324 which with effect from 10 January 1976 substituted s. 417 with an amended provision and also introduced the new s. 418A which not only extends the power of transfer of the Public Prosecutor but also gives him unfettered discretion and therefore wider power than the High Court, to remove pending cases from the subordinate Courts. In particular, s. 417 both in its original and substituted from limits the power of the High Court to transfer only in cases where it is satisfied that:

417 (a) a fair and impartial inquiry or trial cannot be had in any criminal Court subordinate thereto; or

(b) some question of law of unusual difficulty is likely to arise; or

(c) a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or

(d) an order under this section will tend to the general convenience of the parties or witnesses; or

(e) such an order is expedient for the ends of justice, or is required by any provision of this Code.

Sub-sections 418(i) and (ii) then provide:

418 (i) Every application for the exercise of the power conferred by the last preceding section shall be made by motion which shall, except when the applicant is the Public Prosecutor, be supported by affidavit.

418 (ii) Every such application shall be made before the inquiry into or trial of the offence has been concluded.

Whereas s. 418A gives unfettered and overriding power to the Public Prosecutor by enacting the following:

418A(1) Notwithstanding the provisions of s. 417, the Public Prosecutor may in any particular case triable by a criminal Court subordinate to the High Court issue a certificate requiring the Court before which the case is pending to remove it to the High Court at such place as may be specified in the certificate and to cause the accused person to appear or be produced before the said High Court.

(2) The power of the Public Prosecutor under subsection (1) shall be exercised by him personally.

(3) Upon receipt of the certificate, the Court before which the case is triable shall without holding a preliminary inquiry under Chapter XVII transmit the case to the High Court mentioned in the certificate and cause the accused person to appear or be brought before such High Court as soon as may be practicable; and thereafter the provisions of subsection (3)(b) and subsection (4) of s. 417 shall apply to such case mutatis mutandis.

Now, sub-sections 417(3)(b) and 417(4) are as follows:

417(3)(b) When the accused person appears or is brought before the High Court in accordance with para. (a), it shall fix a date for his trial which shall be held in accordance with the procedure under Chapter XX.

417(4) The Court to which a case is transferred under this section may act on the evidence already recorded in an inquiry or a trial or partly so recorded and partly recorded by itself, or it may resummon the witnesses and recommence the inquiry or trial:

Provided that in any case so transferred the Public Prosecutor or the accused person may, when the Court to which the case is transferred commences its proceedings, apply that the witnesses or any of them be resummoned and re-heard.

Second, under s. 63 of the subordinate Courts Act 1948 as amended by Act 434 with effect from 1 July 1978, the Sessions Court has jurisdiction to hear all offences other than offences punishable with death. By the same amending Act, s. 64 also provides that a Sessions Court may pass any sentence allowed by law other than a sentence of death. Accordingly, the Sessions Court in this case, is a Court of competent jurisdiction to try the respondent and if he is found guilty, it may pass the maximum sentence allowed by s. 409 Penal Code. which since 31 March 1976 vide Act A327 Pt. II, is twenty years’ imprisonment in addition to fine.

In my view, there is no necessity to make a final pronouncement on the meaning of “judicial power” as contained in Article 121(1), for the purpose of determining whether s. 418A violates that Article, for even if I were to adopt the limited and narrow meaning of “judicial power” to merely “adjudications upon disputes as to the rights or obligations arising from the operation of law upon past accounts or conduct” as advanced in Australia in the case of R.v. Gallagher [1963] 37 ALJR 40 at p. 43 (an authority not cited by either party) the fact that s. 418A enables a case to be transferred by the Public Prosecutor at any time before the conclusion of the trial is clearly an interference with judicial power to adjudicate disputes.

The power of a Magistrate or President Sessions Court to take cognisance of an offence is governed by s. 128 CPC. When the responded was brought before the Sessions Court on the two charges under s. 409 Penal Code. (which offences the President had jurisdiction to try without sanction under s. 129 CPC even if the respondent had appeared before the Court on a complaint of a person other than the Public Prosecutor), the normal legal position was that once the Court had taken cognisance of the offence and was seised with jurisdiction to try the case, the institution of the proceedings by the Public Prosecutor was complete, because not only had the Public Prosecutor successfully invited the Court to take action, but also it was the scheme of the Criminal Procedure Code that trial would follow cognisance and cognisance would be preceded by investigation. Criminal proceedings are in fact not instituted until the Court has taken cognisance of the offence or offences under one or other of the clauses of sub-section (i) of s. 128 CPC (see Sohoni Criminal Procedure Code 18th Edn., Vol. 3, p. 1885). Accordingly, once a Court is seised with jurisdiction by taking cognisance of any offence under s. 128 CPC, a host of judicial powers will flow to enable the Court to proceed to trial and determine the dispute between the parties in accordance with law. In general, the Court taking cognisance of the offence, is the dividing line between the sphere and domain of the executive and the judiciary, for cognisance by the Court signals the submission of the executive to the jurisdiction of the Court and marks the completion of the exercise of executive power to “institute” the criminal proceedings. From then on, the whole conduct of the proceedings should be within the exclusive judicial power of the Court until its conclusion. The question is, to what extent the provision of Article 145(3) has altered the general rule? That Article refers to “power … to institute, conduct or discontinue any proceedings for an offence …” exercisable at the discretion of the Attorney-General, who by virtue of s. 376(i) CPC is also the Public Prosecutor. Since judicial power of the Federation is vested in the Courts, I am of the view that it is manifestly clear the power referred to in Article 145(3) must only relate to the prosecution and not the trial of criminal proceedings. Any other interpretation would make a mockery of the well established concept of judicial independence to determine disputes. Once the trial has commenced before a Court of competent jurisdiction, the Public Prosecutor must be taken to have exercised his choice of venue, and it is unthinkable that he can be given an unfettered power to change the venue without giving the accused person an opportunity to be heard. When that choice has been exercised and the matter is before the Court, consistent with our adversary system of criminal justice, the status of the Public Prosecutor or any of his officers as a client of the Court, is the same as the Counsel for the accused as far as the Court is concerned when conducting a trial. Once the trial has commenced, any legislation conferring him as a member of the executive, power which goes farther than to “institute, conduct or discontinue” prosecution in any criminal proceedings would be suspected, and if it constitutes an interference or even a risk of an interference with any judicial power of the Court, it must be struck down as being in violation of Article 121 of the Constitution. On Merdeka Day s. 417 recognises the principle that the power to transfer a case at any stage before its conclusion before a Court of competent jurisdiction is a judicial power, and that such power can only be exercised on some defined basis to ensure that a case is a proper one to be transferred from a subordinate Court to the High Court. The adjudication of such matter in compliance with the rule of law and the rule of natural justice must surely be left entirely in the hands of the judiciary.

Section 418A clearly confers judicial power on a body which is not a Court and as such it is an interference of judicial power of the Federation as enshrined in Article 121 of the Constitution. The most objectional aspect of s. 418A is that if in the course of a trial the Public Prosecutor fails to convince the High Court in his application under s. 417 that a case is a proper one to be transferred for any of the reasons allowed for transfer, he is empowered under s. 418A to practically ignore the High Court’s decision and achieves the transfer of the case by issuing a certificate signed by him personally under that impugned section requiring the subordinate Court before which the case is pending to remove it to the High Court without assigning any reason and without giving the accused any opportunity to be heard. It is axiomatic that the Court does not act in vain, yet that is the extent of the judicial power given by s. 418A to the executive. The Bill to Act A324 which amended the Criminal Procedure Code did not state the objects and reasons for introducing the impugned s. 418A. Encik Mohtar has volunteered to furnish them from the Bar by saying that the new section is necessary to enable the Public Prosecutor to choose the High Court as his forum for trial without the necessity to hold a preliminary inquiry under s. 138 CPC. But surely, such enabling provision can be made without violating the provision of Article 121. Indeed Parliament can even legislate to abolish preliminary inquiries altogether as has been done in some common law jurisdictions. In the circumstances, I am not pursuaded by the argument that s. 418A is merely a vehicle by which the Public Prosecutor can choose his forum. Clearly, judicial power to transfer cases from a subordinate Court of competent jurisdiction as presently provided by s. 418A cannot be conferred to any organ of government other than the judiciary. The submission that the exercise of such power in an unreasonable manner by the Attorney-General has not arisen, is no argument when dealing with the constitutionality of any legislation under which the power is exercised. As correctly pointed out by Mr. Sri Ram for the respondent, the Court here is dealing with the power and not the exercise of it. In this appeal, I am only concerned with two issues -first, whether s. 418A vests any judicial power in the Attorney-General, and second, if so whether such vesting of judicial power violates the Federal Constitution. My answers to both questions are in the positive.

Zakaria Yatim J is correct in his conclusion that s. 418A Criminal Procedure Code violates Article 121 Federal Constitution and it is therefore void by virtue of Article 4(1). I would therefore dismiss this appeal. As already pronounced by the Court at the conclusion of this appeal, I agree that the principle of prospective overruling be applied in this case.

Lee Hun Hoe CJ Borneo:

I have read the judgment of Abdoolcader SCJ, and I agree entirely with the reasons given for dismissing the appeal.

Salleh Abas LP:

The Supreme Court sat in a quorum of five to hear this appeal. At the end of the arguments the Court dismissed the appeal by a majority of three (Tan Sri Datuk Lee Hun Hoe CJ Borneo, and Tan Sri Dato’ Mohd. Azmi and Tan Sri Dato’ Seri E. Abdoolcader SCJ) and Tan Sri Datuk Hashim Yeop Sani SCJ and I dissenting.

I have had the advantage of reading the leading majority judgment of Tan Sri Dato Seri E. Abdoolcader SCJ and the dissenting judgment of Tan Sri Datuk Hushim Yeop Sani SCJ With respect I find myself entirely in agreement with what has been written by Tan Sri Datuk Hashim yeop Sani SCJ and in support to his judgment I would, with humility, like to add briefly the reason which leads me to depart from the majority view.

This is not the first challenge to the constitutionality of s. 418A of the Criminal Procedure Code The previous challenge in Datuk Haji Harun’s case ([1977] 2 MLJ 155) concentrated on the validity of the section vis-a-vis the equality and equal protection clause under Article 8 of the Constitution. Since the matter was already decided by the Federal Court, though by a majority of two to one (Tan Sri Ali Hassan FJ having died before writing his judgment), I agree with the view of Zakaria J that the Article 8 issue has been laid to rest, and I do not see any need to reopen it.

This appeal concerns only one issue, i.e., the constitutionality of s. 418A vis-a-vis Article 121. This Article vests the judicial power of the Federation in the High Courts and the Subordinate Courts, whilst s. 418A empowers the Public Prosecutor, by means of a certificate issued under his hand personally, to remove any pending case triable by a Subordinate Court to the High Court to be tried there without the necessity of a preliminary inquiry. According to this section, upon receipt of the certificate, the Subordinate Court concerned will transmit the case to the High Court and cause the accused person to appear or to be brought before that Court and no preliminary inquiry needs be held. The High Court will then fix a date for the trial and for that purpose it may act upon the evidence already recorded by the subordinate Court or may start afresh by summoning or recalling witnesses.

The question which we are called upon to decide is whether the provision of s. 418A by giving power to the Public Prosecutor to remove a pending case from a subordinate Court for trial to the High Court encroaches upon the judicial power of these Courts as vested and protected by Article 121. If so, the section is unconstitutional. Otherwise the section is perfectly valid. To this question my answer is in the negative. My view is that the section does not encroach upon the judicial power of the High Court, nor of the Subordinate Court from which the case is transferred.

Although there is no exact definition of the words “judicial power”, there is however a general agreement amongst judicial authorities that judicial power must be the power to determine and arbitrate disputes of a legal nature in which parties are concerned with the protection of their legal interests as opposed to any other interest. The power to transfer, transmit or remove a case by itself is meaningless. Admittedly, the Court has power to make an order to transfer cases but this power whether exercisable by a subordinate Court or a High Court is not a power to determine a dispute. Such power could only be regarded as subsidiary or enabling power. On the other hand, the Public Prosecutor has a vital role to play in our system of criminal justice. He has the control and direction of all criminal prosecutions and proceedings (s. 376). In amplification of this power he is entitled to decide whether a person should be charged or not and if so, what Court should try that person. Under the Code all criminal proceedings including the charging must begin in a subordinate Court, even though they relate to a case which the Public Prosecutor requires to be tried by the High Court. A preliminary inquiry must be held before any case could be tried by the High Court. It was with a view to avoiding a double hearing (i.e., preliminary inquiry and actual trial) that s. 418A was enacted to enable the Public Prosecutor to remove any particular pending case from a subordinate Court to the High Court if he deems it necessary that it should be tried by the latter. It was with the same object that s. 417 was repealed and a new one re-enacted at the same time. I will revert to this section in the latter part of this judgment. The power of transfer under s. 418A, in my view, is not a judicial power. It is a power given to the Public Prosecutor to enable him to perform his function effectively as the controller and director of criminal justice having regards to the public interest involved. This power by itself is neutral. Its character depends upon who exercises that power and for what purpose. If it is exercised by the Court it partakes of a judicial nature in the sense that the Court has to listen to both parties before deciding to exercise it and one could therefore say that it is an enabling judicial power. But when it is exercised by the Public Prosecutor it is not a judicial power because he is completely guided by the evidence available before him and consideration of public interest. It is therefore a sort of power enabling or facilitating him to perform his duties as the controller and director of the system of criminal justice in which it is not the right and responsibility of an aggrieved person or the victim of the crime to bring a criminal to book but it is the responsibility of the Public Prosecutor as the custodian of the public interest to do so. I cannot see how this power or even the exercise of it by the Public Prosecutor could be regarded as an encroachment upon the judicial power of the Court. In my view, it is neither a judicial power, nor an encroachment upon that power. We may dislike the provision of s. 418A because the Public Prosecutor may not resort to s. 417. But however unhappy we may be with these two parallel provisions and with the exercise of his power by the Public Prosecutor, there is no reason why we should regard it as unconstitutional. The system of criminally justice in this country imposes a heavy burden on, and places a complete trust in the Public Prosecutor. We, therefore, have to trust him to exercise his power honestly and sincerely and to have regards to the importance of the public interest involved. If he is lacking in the performance of his duties, according to the established jurisprudence of this country, the remedy does not lie with the Court in declaring the statute giving him such power to be null and void but with the Government or the Parliament to censure and remove him.

The majority view seems to be troubled by the provision of s. 417,which is in effect similar to, though wider than, the impugned section i.e., s. 418A. Both these provisions have the object of transferring or removing (in the case of s. 418A) any pending case in a subordinate Court to the High Court for trial in that Court without the necessity of holding a preliminary inquiry or completing it if one is in progress. In the course of hearing this appeal questions were asked as to the need and necessity of having these two parallel sections standing side by side together. In the case of s. 417 the power of transfer is exercisable by the Court and in the case of s. 418A the power which is to the same effect, though described as the power of removal, is exercisable by the Public Prosecutor. An objection was specifically raised which led the majority to hold s. 418A to be unconstitutional, to the applicability of sub-sections s. (3)(a) and (4) of s. 417 to the case of removal by the Public Prosecutor under s. 418A. The effect of this is that the accused person is required to appear or to be brought before the High Court for the purpose of fixing the date of his trial and in the trial before the High Court the Court is entitled to act upon the evidence already recorded in the subordinate Court or may even decide to hear the evidence afresh by resummoning and recalling the witnesses who have already given their testimonies in the Court below. This implies that the Public Prosecutor is empowered to transfer the case even in the middle of the trial or at the conclusion of the trial just before judgment is given. That being the case, according to the majority view, the Public Prosecutor’s power constitutes an encroachment upon the judicial power.

As to the necessity of the provision of s. 417 when there is already s. 418A it is a matter of legislative wisdom and policy. It is not for the Court to declare a law invalid merely because it thinks that the legislature has enacted two parallel provisions giving in effect the same power to two different authorities. In my view the vesting of power of removal of a pending case in a subordinate Court in the Public Prosecutor cannot be regarded as invalid or unconstitutional merely because similar power is also given to the Court. The fact that similar is given to the Court and the fact that the Public Prosecutor is likely to resort to the use of his power rather than that of the Court or because the Court’s power will not be resorted to by the Public Prosecutor do not necessarily mean that what is given to the Public Prosecutor is a judicial power or an encroachment upon the judicial power. Thus in my view, no unconstitutionality of s. 418A could be held on those grounds, which are neither here nor there.

As to the applicability of sub-section (3)(a) and sub-section (4) of s. 417, whilst it appears that the Public Prosecutor may exercise his power at any time before the conclusion of the trial in the subordinate Court, this possibility is not a serious objection to the constitutionality of s. 418A. In Savrimuthu a/l Sinnapan v. Public Prosecutor (Criminal Reference No. 2 of 1986) the Supreme Court was concerned with the Public Prosecutor’s power under s. 41(2) of the Dangerous Drugs Act to issue a certificate requiring a case to be tried by the High Court without being preceded by a preliminary inquiry. In that case the Court rejected the submission of Mr. Karpal Singh (Counsel for the appellant in that case) that once a date of the trial in the subordinate Court has been fixed the Public Prosecutor could no longer exercise the power to issue the required certificate. In rejecting the submission the Court observed that there is nothing in sub-section (2) of s. 41 which restricts the exercise of the power by the Public Prosecutor in the manner submitted by Counsel. However, recognising that the Public Prosecutor’s power is not without any limitation, the Court held that the Public Prosecutor will not be able to issue the required certificate after the trial has begun, i.e., after a witness has given his testimony, because it is no longer proper and reasonable for him to do so. On second thought I may say here, that such exercise would be an encroachment upon the judicial power of the Court.

I now turn back to the present case under appeal. Factually there is no difference between this case and Savrimuthu’s case. In this case the date of the trial in the subordinate Court has not yet been fixed, nor has any witness given any testimony. All that has taken place was that the respondent was charged before the subordinate Court and upon the production of the Public Prosecutor’s certificate the subordinate Court transmitted the case to the High Court and caused the respondent to appear in that Court. The wordings of the statutes are of course different. Section 418A speaks of removal by the Public Prosecutor and transmission by the subordinate Court, whereas s. 41 of the Dangerous Drugs Act 1952 speaks of requisition by the Public Prosecutor and transmission by the Court. These differences are, in my view, of no consequence because the effect in both cases is the same in that upon the production of the Public Prosecutor’s certificate the subordinate Court will have to transmit the case to and cause the accused to appear before the High Court and on his appearance the latter Court will proceed to fix the date of the trial and then proceed with it.

The mandatory nature of the Public Prosecutor’s power was also not a real issue and even if it was, there is no reason for holding the statute to be unconstitutional merely because its effect is mandatory, since there are a number of statutory provisions elsewhere which are of similar effect, and to cite one is s. 66 of Courts of Judicature Act which deals with the Public Prosecutor’s application for leave to refer any question of law of public interest. Here the Court has no discretion to refuse leave, if the application for the reference is made by the Public Prosecutor.

If the Public Prosecutor purports to exercise his power under s. 418A after the trial has commenced in the subordinate Court, such exercise, I agree, would be unconstitutional because viewed from the Court’s angle it interferes with the Court’s function of carrying on with the trial to its conclusion and therefore could be regarded as encroaching upon the judicial power of the Court.

This leads me to the following question, namely would the possibility of the Public Prosecutor exercising his power in this way render the whole s. 418A unconstitutional and invalid? Or is a legislative provision which appears to have given a power wider than that prescribed by the Constitution void in toto? My answer is in the negative. Article 4(1) of the Constitution clearly says that “any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.” I emphasise the expression “to the extent of the inconsistency”. It, therefore, becomes the Court’s responsibility, when dealing with the constitutionality of a piece of legislation, to find any inconsistency and if it so finds to determine the extent of it and to regard only the inconsistent part to be invalid. To declare the whole provisions to be invalid is to go against the provision of Article 4(1). The Constitution presumes the constitutionality of the law. There is no question of throwing away its presumptive validity the moment it is impugned. There is no reason why the Court should proceed on the basis that once a part is unconstitutional, the whole is also unconstitutional. In this respect I find no difficulty in holding that in so far as s. 418A purports to empower the Public Prosecutor to issue a certificate after the trial has begun only that part, and that part alone, should be held invalid. In other words, the statute is constitutional and valid but only to the extent that the Public Prosecutor’s power is exercisable before the trial has started.

Before concluding this judgment I would like to make the following observation. As I have said earlier, the object of s. 418A is to get round the mandatory provision of s. 138 of the Criminal Procedure Code requiring a preliminary inquiry to be held before a case can be tried in the High Court. To be consistent with this objective the old s. 417 was repealed and a new one reenacted alongside with s. 418A. Since then Parliament has made similar provisions circumventing the requirement of preliminary inquiries by means of a Public Prosecutor’s certificate in a few other legislations, e.g. s. 41 and 41A of the Dangerous Drugs Act and s. 11 of the Firearms (Increased Penalty) Act 1971. meanwhile preliminary inquiries are also being rendered unnecessary because in the last ten years or so Parliament has increased the jurisdiction of the Magistrates and Sessions Courts which now can try most criminal cases which were hitherto only triable in the High Court, Perhaps the time is now opportune to consider the need to dispense with preliminary inquiries altogether as the institution serves only to lengthen the proceedings and thereby increases the backlogs of cases in the Courts below.

In view of what I have said earlier, I would allow this appeal.

Hashim Yeop Sani SCJ:

The sole question before this Court is whether the provision of s. 418A of the Criminal Procedure Code constitutes an intrusion into the judicial power vested in the Courts by Article 121 of the Federal Constitution. There are two things to consider here namely the meaning of judicial power in Article 121 of the Constitution and the true character of s. 418A of the CPC.

First s. 418A. Section 418A of the CPC has been examined with the Courts in this country on a number of occasions. The examination of that section climaxed with the Federal Court decision in Datuk Hj. Harun bin Hj. Idris v. PP [1977] 2 MLJ 155 where the first part of the judgment dealt with the constitutionality of s. 418A of the CPC in relation to Article 8 of the Federal Constitution. The Federal Court agreed with my conclusion in PP v. Su Liang Yu [1976] 2 MLJ 128 that s. 418A of the CPC is procedural and merely a vehicle for the Attorney-General (or Public Prosecutor) to exercise his powers under Article 145(3) of the Constitution.

The Federal Court also found it clear that part of Parliament’s intention in s. 418A was to change the law laid down in PP v.Fan Yew Teng [1973] 2 MLJ 1 where the privy Council held that where a case is transferred from a subordinate Court to the High Court, the trial in the High Court must be preceded by a preliminary enquiry under the CPC and one that was not so preceded would be a nullity.

In Public Prosecutor V. Lim Shui Wang & Ors. [1978] 1 LNS 155 the Federal Court dealt with the question whether the Judge of the High Court was right in transferring the case for trial in the Special Sessions Court and the crux of the matter was the power of transfer. Sections 376, 417, 418A of the CPC were examined by the Federal Court and it was held that:

The power of a Judge of the High Court to transfer a case under s. 25(2) of the Courts of Judicature Act 1964.and Item 12 of its Schedule was subject to the discretion of the Attorney-General under Article 145(3) of the Federal Constitution to choose the forum in which persons charged under s. 39B(1)(a) of the Dangerous Drugs Ordinance were to be tried; the power conferred under Article 145(3) on the Attorney-General would override the power of the High Court to transfer so that the Judge had no power to transfer such cases as the present on his own motion for trial in a subordinate Court.

For our purpose the first thing to note about s. 418A is that it deals with the power of the Public Prosecutor to issue a certificate in any particular case triable by a criminal Court subordinate to the High Court. The subordinate Court concerned upon receipt of the certificate shall without holding a preliminary enquiry normally required in such a case under Chapter XVII of the CPC transmit the case to the High Court mentioned in the certificate.

It would seem that the real complaint of the respondent is that by virtue of s. 418A(3) the Magistrate or President “has no discretion” but to transfer the case to the High Court upon receipt of the certificate of the Public Prosecutor. The question is whether this is an intrusion on the judicial power of the Courts.

What is meant by judicial power? No conclusive definition on the concept has been formulated. But the most frequently cited judicial definition was that propounded by the first Chief Justice of the High Court of Australia in 1908 in Huddart Parker Pty. Ltd. v. Moorehead [1909] 8 CLR 357 where the learned Chief Justice said:

The words `judicial power’ as used in s. 71 of the Constitution mean the power which every sovereign must of necessity have to decide controversies between its subjects or between itself and its subjects whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. [1909] 8 CLR 357

Article 121 of the Constitution vests judicial power of the Federation in the High Courts (of Malaya and Borneo) and in such inferior Courts as may be provided by federal law. The subordinate Courts Act 1948 deals with the subordinate Courts and provides for the powers of such Courts. Section 99A of the Subordinate Courts Act reads as follows:

99A. In amplification and not in derogation of the powers conferred by this Act or inherent in any Court, and without prejudice to the generality of any such powers, every Sessions Court and Magistrates’ Court shall have the further powers and jurisdiction set out in the Third Schedule.

The words “or inherent in any Court” can be ignored as meaningless since the subordinate Courts are creatures of statute. By virtue of s. 99A the Third Schedule to the Subordinate Courts Act confers additional powers on the subordinate Courts. Paragraph 3(2) of the Third Schedule reads:

Power, on application or of its own motion, to transfer any proceedings to another Court of co-ordinate jurisdiction.

It can be seen that the Third Schedule deals with powers are ancillary powers for the purpose of the proper carrying out of the civil and criminal jurisdictions of the subordinate Courts.

Also significant is the fact that para. 3(2) of the Third Schedule deals only with the power of transfer to another Court of co-ordinate jurisdiction and not to the High Court. Therefore even if this power of transfer is regarded as a judicial power the statute has not conferred the subordinate Courts with any judicial power to transfer cases to the High Court. In short there is no judicial power of the nature complained of by the respondent vested in the subordinate Courts by Article 121 of the Constitution.

The power to transfer cases in respect of the High Courts is also additional power contained in a schedule to the Courts of Judicature Act 1964. It is pertinent to note that under s. 25(2) of the Courts of Judicature Act which confers the additional powers as set out in the Schedule, there is a proviso which reads as follows:

Provided that all such powers shall be exercised in accordance with any written law or rules of Court relating to the same.

which only means that the legislature may legislate for the exercise of such powers.

What is judicial power depends on the Constitution of each country. The word “judicial power” is not defined in our Constitution. But in the context of Article 121 of the Constitution it would be correct to say that the term has the same meaning as discussed in Muskrat v. US [1911] 219 US 246. In the opinion of the US Supreme Court delivered by Mr. Justice Day the following appears at p. 250:

It therefore becomes necessary to inquire what is meant by the judicial power thus conferred by the Constitution upon this Court, and, with the aid of appropriate legislation, upon the inferior Courts of the United States. “Judicial power,” says Mr. Justice Miller, in his work on the Constitution, “is the power of a Court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” Miller, Const. 314.

Basu in his Commentary, Vol. III 5th Edn., on Article 124 of the Indian Constitution discussed the meaning of judicial decision and judicial power and at p. 63 he distinguishes question of policy from judicial decision.

Without being pedantic I would say that the basic issue here is really whether the power of transfer is a judicial power. What is and what is not judicial power must be examined in the context of the Constitution and federal law. It seems to me that the power to “transfer” per se is not judicial power and in the context of our Constitution and federal law it is a neutral subject. It can be made into judicial power by law and it can also be made into an administrative or executive power by law. Thus in s. 417 of the CPC the power of transfer has been made into a judicial power in that the Court must upon application decide judicially on the transfer. In s. 418A of the CPC however the law has left it to the discretion of the Public Prosecutor in cases where in his opinion and in the light of facts known to him alone it would be expedient to have the case removed to the High Court without a preliminary enquiry.

Therefore the only rational conclusion one could arrive at is that the power of transfer at least by the subordinate Courts is not a judicial power as vested pursuant to Article 121 of the Constitution and Parliament may therefore by law provide for the exercise of transfer which it has done in s. 417 and s. 418A of the CPC, s. 41A of the Dangerous Drugs Act 1952 and s. 11 of the Firearms (Increased Penalties) Act 1971.

Much was said about the power of the Public Prosecutor to require the transfer of a case pending in the subordinate Courts to the High Courts and that s. 418A(3) of the Cpc is said to constitute an intrusion into the judicial power of the Courts. The Public Prosecutor is not an ordinary public officer. His powers are conferred by the Constitution and federal laws to initiate, control and direct criminal prosecutions. The Public Prosecutor has been conferred by the Constitution and federal laws with certain powers for him to play a vital role in the administration of justice. Because of the constitutional position of the Public Prosecutor in our system it is naturally expected of him to exercise these powers with the highest professional integrity and the Courts have to presume that his actions are bona fide unless shown to the contrary.

As regards s. 418A(3) leaving no discretion to the Magistrate or President I need only say that s. 418A is not unique. Under s. 339 of the CPC (an original provision) the Public Prosecutor may at any time direct a Magistrate to hold an inquiry under Chapter XXII of Part VIII of the CPC into the cause of, and the circumstances connected with any death and the Magistrate to whom such direction is given shall thereupon proceed to hold the enquiry. When such an enquiry has been closed if it appears to the Public Prosecutor that further investigation is necessary, the Public Prosecutor may direct the Magistrate to reopen such an inquiry and make such further investigation as he may direct. Again Article 145(3) of the Federal Constitution confers on the Attorney-General the power of nolle prosequi. By virtue of that power the Attorney-General may in any criminal prosecution enter a nolle prosequi at any time before judgment. Surely it cannot be said that all these powers of the Attorney-General intrude on the judicial powers of the Courts!

Therefore I can come to no other conclusion but that s. 418A of the CPC does not constitute an intrusion into the judicial power of the Courts.

I would accordingly allow the appeal and set aside the order of the Judge.

Also found at [1987] 1 CLJ 550

Categories: CaseLaws

Ong Ah Chuan v PP [1981] 1 MLJ 64:

ONG AH CHUAN v. PUBLIC PROSECUTOR AND ANOTHER APPEAL
PRIVY COUNCIL
LORD DIPLOCK, J, LORD KEITH OF KINKEL, J, LORD SCARMAN, J & LORD ROSKILL, J
[APPEAL NOS: 37 & 38 OF 1979]
15 OCTOBER 1980

 

Choor Singh & Rajah JJ:

 

The accused was charged and tried before us on the following charge:

 

“That you, Ong Ah Chuan, on or about the 2nd day of June 1977 at about 12.00 noon in front of No. 270, Bukit Timah Road, Singapore, did traffic in a controlled drug specified in Class ‘A’ of Part I of the First Schedule to the Misuse of Drugs Act, 1973 (No. 5 of 1973) to wit, 209.84 grams of diamorphine without any authorisation under the said Act or the regulations made thereunder and you have thereby committed an offence under section 3(a) of the Misuse of Drugs Act, 1973 (No. 5 of 1973) and punishable under section 29 of the said Act.”

 

On June 2, 1977 at about 9.15 a.m., acting on information received, Acting Senior Narcotics Officer Yeo Kiah Hee (PW6) and Assistant Narcotics Officer Ramli arrived on their motor-cycle at Block 26 Marsiling Drive, Singapore. They stationed themselves on the ground floor of Block 30 Marsiling Drive and commenced observation on the flat of the accused, No. 235-E Block 26 Marsiling Drive.

 

At about 9.30 a.m., Yeo (PW6) saw a motorcar No. SX 9098, driven by the accused, arriving at Block 26. The accused parked the car in a lane next to Block 26. He then got out of the car, locked it, and walked towards the lift and staircase landing of the ground floor of Block 26. A few seconds later, the accused was seen by the two officers walking along the corridor of the 5th floor of Block 26 towards his flat and entering it. Yeo (PW6) and Ramli continued to keep observation on the flat.

 

About an hour later Acting Senior Narcotics Officer, Teo Ho Peng (PW7) and Assistant Narcotics Officer Chua Swab Hai arrived at Block 20 on their motor-cycle. On their arrival they noticed that SX 9098 had been parked in the lane adjacent to Block 26. They signalled their arrival to Yeo (PW6) and Ramli and they too proceeded to keep observation on the accused’s flat and motor car SX 9098 from the ground floor of Block 28.

 

At about 11.25 a.m. the accused was seen leaving his flat alone and walking along the corridor towards the lift and staircase landing. As he entered the staircase landing, he was out of sight of the officers for a few seconds. He was then seen coming out of the staircase landing on the ground floor of Block 26 carrying a plastic bag in his right hand. The accused walked towards car SX 9098. On reaching it he unlocked the front passenger door, placed the plastic bag in the car, closed the door, walked towards the driver’s door, unlocked it and got into the driver’s seat. He started the car and drove it in the direction of Admiralty Road. The four narcotics officers began to trail the accused’s car on their two motor-cycles. The accused proceeded towards the city along Admiralty Road and thence into and along Woodlands Road. At Bukit Panjang Circus, the accused drove into Upper Bukit Timah Road towards Ewart Circus. At Ewart Circus, the car proceeded into Jalan Anak Bukit and thence to Bukit Timah Circus. At Bukit Timah Circus the accused drove into and along Dunearn Road towards Newton Circus. At Newton Circus the car turned left into Bukit Timah Road and stopped in front of No. 270 Bukit Timah Road. Throughout the whole journey which had taken a little over half-an-hour the officers did not lose sight of the accused’s car. By this time the four officers, Teo (PW7), Chua, Yeo (PW6) and Ramli, who were close on his tail had also turned left into Bukit Timah Road and stopped their motor-cycles some 10 yards or so behind car SX 9098. The accused alighted from the car, locked it and walked away from it in the direction of the officers. By this time, Yeo (PW6), who had been riding pillion, got off the motor-cycle and proceeded towards the accused. Chua, who had also been riding pillion on the other motor-cycle, joined him. Yeo (PW6) approached the accused and after identifying himself as a Government man, detained him. He then seized a bunch of keys from the accused’s hand and proceeded to search him. From the accused’s waist front trousers pocket he recovered a plastic bag containing light brownish powder, which he suspected to be Diamorphine Hydrochloride. Thereupon he immediately placed the accused under arrest and instructed Chua to handcuff him. The accused was escorted to motor car SX 9098 by Chua and Yeo (PW6) and from in between the front seats of the car Yeo (PW6) seized a plastic bag, inside which there was another plastic bag containing some clothing and a parcel wrapped in a Chinese newspaper. Yeo (PW6) unwrapped the parcel in the presence of the accused and found yet another plastic bag which contained brownish granular solids which he suspected to be Diamorphine Hydrochloride. The said light brownish powder and the said brownish granular solids were sent to the Department of Scientific Services where Mr. Lim Han Yong, the Government Chemist, analysed the said light brownish powder and the said brownish granular solids and found the diamorphine content of each of them to be 3.84 grams and 206.0 grams respectively.

 

At the close of the prosecution case counsel for the accused submitted that the accused on the evidence before the court had no case to meet on the charge as framed. He submitted that as the accused was merely carrying the diamorphine and as there was no evidence of its being delivered to anyone the accused was not trafficking within the meaning of the Misuse of Drugs Act 1973. In support of his proposition he cited the case of Seow Koon Guan v. Public Prosecutor [1978] 1 LNS 177; [1978] 2 MLJ 45 (the Scow case) and two Canadian cases namely, (1) Regina v. McDonald and Regina v. Harrington & Scosky [1963] 43 WWR 337, 342 (the Canadian Drug case) and (2) Rex v. McMyn [1941] 4 DLR 268 (the Canadian Potatoes case).

 

In our view the Seow case did not help the accused. There the accused was charged with being in possession of 55.48 grammes of diamorphine for the purpose of trafficking in a controlled drug and thereby committing an offence under section 3(c) of the Act. The Court of Appeal ruled that although possession per se of a controlled drug constituted an offence under section 6(a) of the Act, a person in possession of such a drug can be charged with and found guilty of an offence under section 3(c) of the Act only if it is proved that he did or offered to do any act preparatory to or for the purpose of trafficking therein. The facts in the instant case are that the accused transported in a car heroin from Woodlands to 270 Bukit Timah Road. The decision in Seow’s case was therefore inapplicable.

 

The headnote to the Canadian Drug case reads as follows:

 

“Mere possession of one-quarter ounce of pure heroin, with no other attendant circumstances, held, not to justify an inference of trafficking.

Transporting drugs for mere personal purposes or use, as distinct from transporting for other purposes, does not of itself afford sufficient evidence of the offence of trafficking ‘Transport’ in the definition of ‘traffic’ in section 2(i) of the Narcotic Control, Act, Can. 1960-61, Ch. 35 is not meant in the sense of mere conveying or carrying or moving from one place to another, but in the sense of doing so to promote the distribution of the narcotic to another.”

 

The facts in the Canadian Drug case were as follows:

 

“Harrington, followed soon after by Scosky, was seen to enter the washroom of a service station in which was secreted a cache (No. 31) estimated to contain one-quarter ounce of pure heroin wrapped in a particular Vancouver newspaper of recent date. The appellants remained in the washroom for a short-period, then emerged and left the service station premises together in a motor car which, for some time thereafter, was kept under observation by the occupants of a police car. An immediate search of the washroom showed that the drug cache was missing.

Later, one of the pursuing police officers picked up pages of a newspaper identified as of the same dates as the wrapping on the drug package, which was seen to be ejected from the car occupied by the appellants.

It was shown that one-quarter ounce of pure heroin when mixed with lactose and placed in gelatin capsules, would make up not less than 100 capsules, such as are commonly used by drug addicts. Both appellants were shown to have been addicted to the use of drugs.”

 

It is to be noted that in this Canadian case the decision was based on the provisions of the Narcotic Control Act, Canada 1960-61 Chapter 35 which provisions do not find a place in our Act. For this reason, if not for any other, we were of the view that this case had no relevance in the construing of our Act. It is further to be noted that no heroin was found on or in the possession of any of the two accused nor was there any evidence that they had transported heroin. Therefore we rejected this case as not pertinent to the instant case. Here we would like to refer to our judgment in the case of Public Prosecutor v. Teh Sin Tong Singapore – Criminal Case No 28 of 1976, unreported where we convicted the accused under section 3(a) of the Act of having transported heroin from Johore Bahru to the Woodland Custom’s Checkpoint, Singapore. The conviction has been upheld by both the Court of Criminal Appeal and the Privy Council and our reasons for so convicting have not been disturbed.

 

The Canadian Potatoes case relates to the violation of an Order of the B.C. Coast Vegetable Marketing Board. The Order that was being violated is not set out in the reported case. We are therefore unable to say how this case can be of any assistance in determining what the word ‘transport’ should be construed to mean in the context of our Act.

 

We rejected counsel’s submission and as the prosecution had made out a case against the accused which, if unrebutted, would warrant his conviction, we called on him to make his defence.

 

In his defence the accused said that on June 2, 1977 at 11.25 a.m. he left his flat 235E, Block 26 Marsiling Drive in his car SX 9098 to meet his friend Ah Hoe at about 12 noon at No. 270 Bukir Timah Road from where they were to go to Pulau Ubin to obtain employment for themselves with the help of his father-in-law who was working on the island. He took with him in his car, which he was driving, some clothing and some “white powder” (Peh Hoon). He had no intention of delivering the “white powder” to anyone. All the “white powder” he took was for his personal consumption and the reason for his taking with him such a large quantity was that it would have been difficult for him to come out of Pulau Ubin every now and then to obtain his supply of the powder. He said that he had bought the large quantity of “white powder” for $2000 a few days before his arrest as it was cheaper to buy it in bulk. The accused did not call any witness on his behalf.

 

Counsel for accused submitted as a matter of law that for the accused to be found guilty of trafficking as charged the prosecution had to show that the accused transported the heroin for the purpose of delivering or sale. He relied on the cases he had cited to us previously. We rejected his submission as not valid to the instant case.

 

The accused’s defence depended entirely on his credibility. Apart from his word, there was no evidence that he was a drug addict; that he had a father-in-law at Pulau Ubin; that he was on his way to Pulau Ubin when arrested and that he was taking the large quantity of heroin found in his possession to Pulau Ubin for his own consumption. The accused did not impress us as a truthful witness. In Our judgment the accused was not speaking the truth and had invented his story to escape the consequences of his criminal act. We therefore rejected his defence.

 

After considering all the evidence before us we found that (1) the accused had on June 2, 1977 between the hours of 10.25 a.m. and 12 noon transported 209.84 grams of diamorphine without authorisation, (2) the said heroin which he had so transported was not for his personal consumption and (3) he was guilty of the offence of trafficking as charged.

 

We accordingly convicted the accused and passed the mandatory sentence of death on him.

 

From the above decision the accused appealed to the Court of Criminal Appeal (Wee Chong Jin C.J., Kulasekaram and Chua JJ.).

 

COURT OF CRIMINAL APPEAL.

 

For the appellant – Loh Lin Kok

 

Lawrence Ang (Deputy Public Prosecutor) for the respondent.

 

Cur. Adv. Vult.

 

Wee Chong Sin CJ

 

(delivering oral judgment of the Court): The appellant, Ong Ah Chuan, was found guilty of unlawfully trafficking in 209.84 grams of diamorphine in contravention of section 3(a) of the Misuse of Drugs Act, 1973 and sentenced to death.

 

We do not need to set out the facts found by the trial judges as they are not now in dispute. In his defence he admitted possession of the diamorphine found on him and in the car he was driving but he said that he was taking it for his own consumption at Pulau Ubin, an offshore island, where he was going to find employment. The trial judges did not believe his evidence and found that he had invented his story of going to Pulau Ubin with the diamorphine for his own consumption, having bought such a large quantity as it was cheaper to buy it in bulk. They found he had not transported this diamorphine for his own consumption and accordingly found him guilty of unlawful trafficking.

 

In the case of Wong Kee Chin v Public Prosecutor [1978] 1 LNS 238; [1979] 1 MLJ 157 this court said:-

 

“When it is proved that the quantity of diamorphine which the accused person was transporting (in the dictionary sense of the term) was two or more grams, a rebuttable presumption arises under section 15(2) that the accused had the said controlled drug in his possession for the purpose of trafficking. Proof of the act of transporting plus the presumption under section 15(2) would constitute a prima facie case of trafficking which if unrebutted would warrant his conviction. In those circumstances the burden of proof would clearly shift to the accused and he would have to rebut the case made out against him.”

 

Accordingly, it having been proved that the appellant had transported the diamorphine found on him in the car he was driving and the presumption under section 15 of the Act that he had possession of the diamorphine for the purpose of trafficking not having been rebutted, the appeal must, in our judgment, he dismissed.

 

From the above judgment the appellant appealed to the Judicial Committee of the Privy Council.

 

PRIVY COUNCIL APPEAL FROM SINGAPORE.

 

A.P. Lester Q.C. (Alan Newman and David Pannick with him) for the appellant in Privy Council Appeal No. 37 of 1979.

 

Mervyn Heald Q.C. (G. Newman with him) for the appellant in Privy Council Appeal No. 38 of 1979.

 

S.C. Silkin Q.C. M.P. (S. McKinnon Q.C. and B. Bhalla with him) for the respondent.

 

Cur. Adv. Vult.

 

Lord Diplock

 

(delivering the judgment of the Board): These two appeals are against convictions for offences of trafficking in heroin contrary to section 3 of the Misuse of Drugs Act, 1973. As the amount of heroin involved exceeded 15 grammes in each case sentence of death was imposed on both appellants. Sentence of death is mandatory under section 29 of that Act and the revised Second Schedule to it that was substituted for the original Second Schedule by section 13 of the Misuse of Drugs (Amendment) Act, 1975. Their Lordships will call the 1973 Act, as so amended, “The Drugs Act”. The appeals are also against the imposition of the death sentence, upon the ground that the statutory provision under which it was imposed is inconsistent with the Constitution and accordingly is void under Article 4.

 

It is not necessary for the purpose of dealing with the only matters argued before their Lordships to state the facts in either of the two cases in more than the barest outline. They are set out in detail in the grounds of judgment of the High Court judges by whom the appellants respectively were tried.

 

Ong Ah Chuan was observed by two narcotics officers to leave his flat carrying a plastic bag which he put into his car which was parked nearby. He got into the car and droved some twenty miles to a spot in Bukit Timah Road where he stopped the car, alighted and locked the car behind him. He was arrested by the narcotics officers who had followed him throughout his journey. He was searched and the car was searched in his presence. There was found a plastic packet on his person containing impure heroin which on analysis was proved to contain 3.84 grammes of diamorphine, and in the plastic bag which he had been seen to put into the car, impure heroin was found with what was proved to be a content of 206.0 grammes of diamorphine. His explanation that he was carrying it for his own consumption only and the reasons that he gave why it was necessary for him to transport so large a quantity from his own dwelling to another place were unsupported by any corroborative testimony, defied credulity and were disbelieved by the trial judges.

 

Koh Chai Cheng had brought into Singapore from Malaysia a quantity of heroin for which an acquaintance, who was in fact a police informer, had pretended to him that a buyer had been found at a price of $20,000. The heroin was hidden in a concealed compartment at the back of the boot of his car and was found there when he was arrested as he got into it to drive away from a parking place where he had parked it for his meeting with the police informer. In the concealed compartment there were eleven packets of impure heroin with a total content of 1,256 grammes of diamorphine. His denial of all knowledge of it and his explanation that it must have been planted there by the police informers after his arrival in Singapore were disbelieved by the trial judges who gave cogent reasons for their disbelief.

 

From their convictions each appellant appealed to the Court of Criminal Appeal. Of the various grounds of appeal that were advanced in that court only one has survived to be relied upon at the hearing before this Board. It is a point of law that turns upon the true construction of the Drugs Act. In the Court of Criminal Appeal no attack was launched upon the constitutionality of any of the provisions of the Drugs Act; but leave was sought to raise before this Board two fresh contentions: the first was that the provision in section 15 of the Drugs Act, that proof of possession of controlled drugs in excess of the minimum quantities stated in the section gives rise to a rebuttable presumption that such possession is for the purpose of trafficking, is inconsistent with the Constitution; and the second was that the provision in section 29 and the Second Schedule for a mandatory death penalty for trafficking in controlled drugs in excess of the higher minimum quantities stated in that Schedule, is likewise inconsistent with the Constitution.

 

It is only most exceptionally that their Lordships would permit a question of the constitutionality of an Act of the Singapore Parliament to be raised for the first time in the course of the hearing of an appeal by their Lordships’ Board. Such a question is eminently one on which their Lordships would wish to have the benefit of the opinions of members of the judiciary of Singapore who are resident in the Republic and more familiar than their Lordships with local conditions there. But these are capital cases and their Lordships would be reluctant to dispose finally of the appeals so long as any plausible argument against the convictions or sentences remained unheard, even though the argument was not thought of until the eleventh hour. Nevertheless, if at the close of the arguments on either of these constitutional points their Lordships had entertained any doubt as to the validity of provisions of the Drugs Act that relate to the convictions of the appellants, they would, before arriving at their judgment, have remitted the cases to the Court of Criminal Appeal to hear argument on the constitutional points and to express their opinion on them for the benefit of this Board. However, as will appear, their Lordships have no such doubts; so this course is unnecessary.

 

Their Lordships will deal first with the question of construction of the Drugs Act that was argued before the Court of Criminal Appeal. In each of the instant cases that court followed its previous ruling on the same question in Wong Kee Chin v Public Prosecutor [1978] 1 LNS 238; [1979] 1 MLJ 157, so the instant appeals are, in effect, appeals against that ruling. In Wong Kee Chin and in the instant appeals before this Board the appellants prayed in aid certain decisions of Canadian Courts under the Canadian Narcotic Control Act, 1960-61. While the Canadian Act contains a definition of “trafficking” that is virtually identical with the definition in the Drugs Act, the structure of the Acts is quite different. In particular, the Canadian Act creates a specific offence of having drugs in one’s possession for the purpose of trafficking, but it contains no provisions corresponding to those contained in sections 10 and 3(c) of the Drugs Act. This makes it helpful to set out rather more extensively than would otherwise be necessary provisions of the Drugs Act to which reference will be made.

 

“2. In this Act, unless the context otherwise requires-

‘controlled drug’ means any substance or product which is for the time being specified in Part I, II or III of the First Schedule to this Act or anything that contains any such substance or product;

‘traffic’ means-

(a) to sell, give, administer, transport, send, deliver or distribute; or

(b) to offer to do anything mentioned in paragraph (a) above, otherwise than under the authority of this Act or the regulations made thereunder; and ‘trafficking’ has a corresponding meaning.

3. Except as authorized by this Act or the regulations made thereunder, it shall be an offence for a person, on his own behalf or on behalf of any other person, whether or not such other person is in Singapore to-

(a) traffic in a controlled drug;

(b) offer to traffic in a controlled drug; or

(c) do or offer to do any act preparatory to or for the purpose of trafficking in a controlled drug.

6. Except as authorized by this Act or the regulations made thereunder, it shall be an offence for a person to-

(a) have in his possession a controlled drug; or

(b) smoke, administer to himself or otherwise consume a controlled drug.

10. Any person who abets the commission of or who attempts to commit or does any act preparatory to or in furtherance of the commission of any offence under this Act shall be guilty of such offence and shall be liable on conviction to the punishment provided for such offence.

15. Any person who is proved or presumed to have had in his possession more than-

(a) …

(b) …

(c) 2 grammes of diamorphine (heroin) contained in any controlled drug; or

(d) …

shall, until the contrary is proved, be presumed to have had such controlled drug in his possession for the purpose of trafficking therein.

16.-(1) Any person who is proved to have had in his possession or custody or under his control-

(a) anything containing a controlled drug;

(b) the keys of anything containing a controlled drug;

(c) the keys of any place or premises or any part thereof in which a controlled drug is found; or

(d) a document of title relating to a controlled drug or any other document intended for the delivery of a controlled drug,

shall, until the contrary is proved, be presumed to have had such drug in his possession.

(2) Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.

19. If any controlled drug is found in any vehicle it shall, until the contrary is proved, be presumed to be in the possession of the owner of the vehicle and of the person in charge of the vehicle for the time being.”

 

The exceptions in the offence-creating sections 3 and 6 for things done that are “authorised by this Act or the regulations made thereunder” refer to those provisions of the Act which provide for a scheme for compulsory treatment in approved institutions and rehabilitation of drug addicts and contain what is the other part of a two-pronged attack upon the drug problem in Singapore. But no question of authorised dealings in drugs arises in either of these appeals.

 

The Drugs Act, unlike its Canadian counterpart, does not create eo nomine an offence of having a controlled drug in one’s possession for the purpose of trafficking therein. If nothing more is proved against an accused than the mere fact that he had the controlled drug in his possession, then an offence under section 6 is established but the graver offence under section 3 of trafficking is not, however large may be the quantity of the controlled drug involved. The Court of Criminal Appeal so held in Peon Soh Har v. Public Prosecutor [1977] 1 LNS 163; [1977] 2 MLJ 126 and Seow Keen Guan v. Public Prosecutor [1978] 1 LNS 177; [1978] 2 MLJ 45. This holding, in their Lordships’ view, was clearly right.

 

To “traffic” in a controlled drug so as to constitute the offence of trafficking under section 3 involves something more than passive possession or self-administration of the drug; it involves doing or offering to do an overt act of one or other of the kinds specified in paragraph (a) of the definition of “traffic” and “trafficking” in section 2. Even apart from any statutory definition, the ordinary meaning of the verb “to traffic”, in the particular context of trafficking in goods of any kind, imports the existence, either in fact or in contemplation, of at least two parties: a supplier and a person to whom the goods are to be supplied. This concept, involving transfer of possession, is reflected in the statutory definition itself. Of the seven verbs used to describe the various kinds of overt acts which constitute trafficking “transport” is sandwiched between “sell, give, administer” which precede it and “send, deliver or distribute” which follow it. All of these other verbs refer to various ways in which a supplier or distributor, who has drugs in his possession, may transfer possession of them to some other person. “Transport”, although it must involve possession of the drugs by the person who transports them, is the only member of the heptad of verbs that is not inconsistent with the retention of possession of the drugs by him after their transport. It must mean moving the drugs from one place to another; it may mean moving them also to another person but it need not do so. Whether it bears the wider or the narrower meaning depends upon the context in which the verb appears. In their Lordships’ view the immediate context of the verb “transport”, to which attention has been drawn, attracts the maxim noscitur a sociis. This, and the fact that it appears in the definition of the verb to “traffic”, of which the natural meaning in the context of trafficking in goods involves dealings between two parties at least, and that the evident purpose of the Act is to distinguish between dealers in drugs and the unfortunate addicts who are their victims, all combine to make it clear that “transport” is not used in the sense of mere conveying or carrying or moving from one place to another but in the sense of doing so to promote the distribution of the drug to another. Supplying or distributing addictive drugs to others is the evil against which section 3 with its draconian penalties is directed.

 

The Court of Appeal of British Columbia in R v. McDonald [1963] 43 WWR 337, 342 at page 342, interpreted “transport” in the virtually identical definition of “traffic” in the Canadian Narcotic Control Act, 1960-61, as bearing this restricted meaning and the same interpretation was adopted by the Court of Appeal of Newfoundland in R v. Greene [1977] 74 DLR 3d 354. Acceptance of it is implicit in the ratio decidendi of the Court of Criminal Appeal of Singapore in Wong Kee Chin (ubi sup.).

 

So, simply to transport from one place to another a quantity of a controlled drug intended for one’s own consumption, if unauthorised by the Act or Regulations, involves an offence of having the drug in one’s possession under section 6 but does not amount to the offence of trafficking under section 3. It is otherwise, however, if the transporter’s purpose, whether it is achieved or not, is to part with possession of the drug or any portion of it to some other person whether already known to him or a potential purchaser whom he hopes to find. This is the consequence of section 10 of the Drugs Act and section 3(c) (which covers the same ground in part). These provisions make the question whether the transporter of the drugs achieves that purpose irrelevant to his guilt of the offence of trafficking under section 3; since they provide that a person who does any act preparatory to, or in furtherance of, or for the purpose of the commission of the offence of trafficking in a controlled drug, shall be guilty of the substantive offence of trafficking and liable on conviction to the penalty provided for it under section 29 and the Second Schedule.

 

This is a very wide description of acts that may be treated as equivalent to the substantive offence of trafficking; nevertheless, in their Lordships’ view, it is clear from the structure of the Drugs Act and the distinction drawn between the offence of having a controlled drug in one’s possession and the offence of trafficking in it, that mere possession of itself is not to be treated as an act preparatory to or in furtherance of or for the purpose of trafficking so as to permit the conviction of the possessor of the substantive offence. To bring the provisions of sections 10 and 3(c) into operation some further step or overt act by the accused is needed, directed to transferring possession of the drug to some other person; and it is a consequence of the clandestine nature of the drug trade and the means adopted for the detection of those engaged in it, that the further step that the prosecution is most likely to be able to prove in evidence is the act of the accused in transporting the drug to some place where he intends to deliver it to someone else, whether it be the actual consumer or a distributor or another dealer.

 

Proof of the purpose for which an act is done, where such purpose is a necessary ingredient of the offence with which an accused is charged, presents a problem with which criminal courts are very familiar. Generally, in the absence of an express admission by the accused, the purpose with which he did an act is a matter of inference from what he did. Thus, in the case of an accused caught in the act of conveying from one place to another controlled drugs in a quantity much larger than is likely to be needed for his own consumption the inference that he was transporting them for the purpose of trafficking in them would, in the absence of any plausible explanation by him, be irresistible – even if there were no statutory presumption such as is contained in section 15 of the Drugs Act.

 

As a matter of common sense the larger the quantity of drugs involved the stronger the inference that they were not intended for the personal consumption of the person carrying them, and the more convincing the evidence needed to rebut it. All that section 15 does is to lay down the minimum quantity of each of the five drugs with which it deals at which the inference arises from the quantity involved alone that they were being transported for the purpose of transferring possession of them to another person and not solely for the transporter’s own consumption. There may be other facts which justify the inference even where the quantity of drugs involved is lower than the minimum which attracts the statutory presumption under section 15. In the instant cases, however, the quantities involved were respectively one hundred times and six hundred times the statutory minimum.

 

Whether the quantities involved be large or small, however, the inference is always rebuttable. The accused himself best knows why he was conveying the drugs from one place to another and, if he can satisfy the court, upon the balance of probabilities only, that they were destined for his own consumption he is entitled to be acquitted of the offence of trafficking under section 3.

 

So the presumption works as follows, when an accused is proved to have had controlled drugs in his possession and to have been moving them from one place to another:

 

(1) the mere act of moving them does not of itself amount to trafficking within the meaning of the definition in section 2; but if the purpose for which they were being moved was to transfer possession from the mover to some other person at their intended destination the mover is guilty of the offence of trafficking under section 3, whether that purpose was achieved or not. This is the effect of the provisions of section 3(c) and section 10.

(2) If the quantity of controlled drugs being moved was in excess of the minimum specified for that drug in section 15, that section creates a rebuttable presumption that such was the purpose for which they were being moved, and the onus lies upon the mover to satisfy the court, upon the balance of probabilities, that he had not intended to part with possession of the drugs to anyone else, but to retain them solely for his own consumption.

 

So, in their Lordships’ view, the effect of the Drugs Act was stated with clarity and accuracy in the following passage of the judgment of the Court of Criminal Appeal in Wong Kee Chin v. Public Prosecutor (at page 161). The reference in this passage to the dictionary sense of the term transporting is to be understood as a reference to its meaning as conveying from one point to another.

 

“When it is proved that the quantity of diamorphine which the accused person was transporting (in the dictionary sense of the term) was two or more grams, a rebuttable presumption arises under section 15(2) that the accused had the said controlled drug in his possession for the purpose of trafficking. Proof of the act of transporting plus the presumption under section 15(2) would constitute a prima facie case of trafficking which if unrebutted would warrant his conviction. In those circumstances the burden of proof would clearly shift to the accused and he would have to rebut the case made out against him. The rebuttal will depend upon the evidence placed before the court. If he can convince the trial court by a preponderance of evidence or on the balance of probabilities that the drug was for his own consumption he would be entitled to an acquittal. Factors such as the type of ‘transporting’, the quantity involved, whether or not the accused is an addict, would be relevant. It would be a question of evidence and the inferences to be drawn from the totality of the evidence before the court.”

 

The appeals so far as they are based on the construction of the Drugs Act must therefore fail.

 

Their Lordships now turn to the eleventh hour attack by the appellants on the constitutional validity of the presumption for which section 15 provides. Although sections 15 to 19 inclusive of the Drugs Act create a series of rebuttable presumptions that upon proof of the existence of certain facts the existence of other facts shall be treated as established, unless the contrary is proved, in the instant cases their Lordships are concerned only with the presumption under section 15 that arises from proved possession; there was no need for the prosecution to rely on any presumed possession for which sections 16 and 19 provide.

 

The appellants’ argument may be stated shortly. This statutory presumption, it is said, is in conflict with what their counsel termed the “presumption of innocence”; this is a fundamental human right protected by the Constitution and cannot be limited or diminished by any Act of Parliament which has not been passed by the majority of votes necessary under Article 5 for an amendment to the Constitution. The “presumption of innocence”, it is contended, although nowhere expressly referred to in the Constitution, is imported into it by Article 9(1) which provides

 

“9(1) No person shall be deprived of his life or personal liberty save in accordance with law.”

 

and by Article 12(1) which provides

 

“12(1) All persons are equal before the law and entitled to the equal protection of the law.”

 

These Articles are among eight Articles in Part IV of the Constitution under the heading “Fundamental Liberties”. The eight Articles are identical with similar provisions in the Constitution of Malaysia, but differ considerably in their language from and are much less compendious and detailed than those to be found in Part III of the Constitution of India under the heading “Fundamental Rights”. They differ even more widely from those amendments to the Constitution of the United States of America which are often referred to as its Bill of Rights. In view of these differences their Lordships are of opinion that decisions of Indian Courts on Part Ill of the Indian Constitution should be approached with caution as guides to the interpretation of individual articles in Part IV of the Singapore Constitution; and that decisions of the Supreme Court of the United States on that country’s Bill of Rights, whose phraseology is now nearly two hundred years old, are of little help in construing provisions of the Constitution of Singapore or other modern Commonwealth constitutions which follow broadly the Westminster model.

 

This said; however, their Lordships would repeat what this Board has said on many previous occasions and most recently through Lord Wilberforce in Minister of Home Affairs & Anor v. Fisher & Anor [1980] AC 319, 329 at page 329: that the way to interpret a constitution on the Westminster model is to treat it not as if it were an Act of Parliament but “as sui generis, calling for principles of interpretation of its own, suitable to its character … without necessary acceptance of all the presumptions that are relevant to legislation of private law”. As in that case, which concerned fundamental rights and freedoms of the individual guaranteed by the Bermuda Constitution, their Lordships would give to Part IV of the Singapore Constitution “a generous interpretation, avoiding what has been called ‘the austerity of tabulated legalism’, suitable to give to individuals the full measure of the [fundamental liberties] referred to”.

 

Accordingly their Lordships are unable to accept the narrow view of the effect of Articles 9(1) and 12(1) for, which counsel for the Public Prosecutor contended. This was that since “written law” is defined in Article 2(1) to mean “this Constitution and all Acts and Ordinances and subsidiary legislation for the time being in force in Singapore” and “law” is defined as including “written law”, the requirements of the Constitution are satisfied if the deprivation of life or liberty complained of has been carried out in accordance with provision contained in any Act passed by the Parliament of Singapore, however arbitrary or contrary to fundamental rules of natural justice the provisions of such Act may be. To the full breadth of this contention one limitation only was conceded: the arbitrariness, the disregard of fundamental rules of natural justice for which the Act provides must be of general application to all citizens of Singapore so as to avoid falling foul of the anti-discriminatory provisions of Article 12(1).

 

Even on the most literalist approach to the construction of the Constitution this argument in their Lordships’ view involves the logical fallacy of petitio principii. The definition of “written law” includes provisions of Acts passed by the Parliament of Singapore only to the extent that they are “for the time being in force in Singapore”; and Article 4 provides that “any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”. So the use of the expression “law” in Articles 9(1) and 12(1) does not, in the event of challenge, relieve the court of its duty to determine whether the provisions of an Act of Parliament passed after September 16, 1963 and relied upon to justify depriving a person of his life or liberty are inconsistent with the Constitution and consequently void.

 

In a constitution founded on the Westminster model and particularly in that part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to “law” in such contexts as “in accordance with law”, “equality before the law”, “protection of the law” and the like, in their Lordships’ view, refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution. It would have been taken for granted by the makers of the Constitution that the “law” to which citizens could have recourse for the protection of fundamental liberties assured to them by the Constitution would be a system of law that did not flout those fundamental rules. If it were otherwise it would be misuse of language to speak of law as something which affords “protection” for the individual in the enjoyment of his fundamental liberties, and the purported entrenchment (by Article 5) of Articles 9(1) and 12(1) would be little better than a mockery.

 

One of the fundamental rules of natural justice in the field of criminal law is that a person should not be punished for an offence unless it has been established to the satisfaction of an independent and unbiased tribunal that he committed it. This involves the tribunal’s being satisfied that all the physical and mental elements of the offence with which he is charged, conduct and state of mind as well where that is relevant, were present on the part of the accused. To describe this fundamental rule as the “presumption of innocence” may, however, be misleading to those familiar only with English criminal procedure. Observance of the rule does not call for the perpetuation in Singapore of technical rules of evidence and permitted modes of proof of facts precisely as they stood at the date of the commencement of the Constitution. These are largely a legacy of the role played by juries in the administration of criminal justice in England as it developed over the centuries. Some of them may be inappropriate to the conduct of criminal trials in Singapore. What fundamental rules of natural justice do require is that there should be material before the court that is logically probative of facts sufficient to constitute the offence with which the accused is charged.

 

In a crime of specific intent where the difference between it and some lesser offence is the particular purpose with which an act, in itself unlawful, was done, in their Lordships’ view it borders on the fanciful to suggest that a law offends against some fundamental rule of natural justice because it provides that upon the prosecution’s proving that certain acts consistent with that purpose and in themselves unlawful were done by the accused, the court shall infer that they were in fact done for that purpose unless there is evidence adduced which on the balance of probabilities suffices to displace the inference. The purpose with which he did an act is peculiarly within the knowledge of the accused. There is nothing unfair in requiring him to satisfy the court that he did the acts for some less heinous purpose if such be the fact. Presumptions of this kind are a common feature of modern legislation concerning the possession and use of things that present danger to society like addictive drugs, explosives, arms and ammunition.

 

In the case of the Drugs Act any act done by the accused, which raises the presumption that it was done for the purpose of trafficking, is per se unlawful, for it involves unauthorised possession of a controlled drug, which is an offence under section 6. No wholly innocent explanation of the purpose for which the drug was being transported is possible. Their Lordships would see no conflict with any fundamental rule of natural justice and so no constitutional objection to a statutory presumption (provided that it was rebuttable by the accused), that his possession of controlled drugs in any measurable quantity, without regard to specified minima, was for the purpose of trafficking in them. The Canadian Narcotic Control Act, 1960-61, so provides by section 10. In contrast to this the Drugs Act only raises the rebuttable presumption when the quantity of drugs in the possession of the accused exceeds the appropriate minimum specified in section 15. It is not disputed that these minimum quantities are many times greater than the daily dose taken by typical heroin addicts in Singapore; so, as a matter of common sense, the likelihood is that if it is being transported in such quantities this is for the purpose of trafficking. All that is suggested to the contrary is that there may be exceptional addicts whose daily consumption much exceeds the normal; but these abnormal addicts, if such there be, are protected by the fact that the inference that possession was for the purpose of trafficking is rebuttable.

 

In their Lordships’ view there is no substance in the suggestion that section 15 is inconsistent with the Constitution, at any rate so far as it relates to proved possession, with which alone the instant cases are concerned.

 

Finally their Lordships will deal with the contention that the mandatory sentence of death upon conviction for trafficking in more than 15 grammes of diamorphine (heroin) is contrary to the Constitution. They can deal with it briefly. The death sentence was introduced by the amending Act of 1975. Prior to that, although heavy maximum and substantial minimum sentences were provided for, they were not made dependent on the quantity of drugs involved. In respect of three Class A drugs: opium and its derivatives morphine and diamorphine, and two Class B drugs, cannabis and cannabis resin, the amending Act substituted penalties for trafficking, importing and exporting that are graduated according to the quantity of the drug involved. Morphine and heroin alone attract the death penalty for manufacturing either of these drugs and for trafficking, importing or exporting them where the quantity involved in the case of morphine is 30 grammes or more and in the case of heroin is 15 grammes or more.

 

It was not suggested on behalf of the appellants that capital punishment is unconstitutional per se. Such an argument is foreclosed by the recognition in Article 9(1) of the Constitution that a person may be deprived of life “in accordance with law”. As their Lordships understood the argument presented to them on behalf of the appellants, it was that the mandatory nature of the sentence, in the case of an offence so broadly drawn as that of trafficking created by section 3 of the Drugs Act, rendered it arbitrary since it debarred the court in punishing offenders from discriminating between them according to their individual blameworthiness. This, it was contended, was arbitrary and not “in accordance with law” as their Lordships have construed that phrase in Article 9(1); alternatively it offends against the principle of equality before the law entrenched in the Constitution by Article 12(1), since it compels the court to condemn to the highest penalty of death an addict who has gratuitously supplied an addict friend with 15 grammes of heroin from his own private store, and to inflict a lesser punishment upon a professional dealer caught selling for distribution to many addicts a total of 14.99 grammes.

 

Their Lordships would emphasise that in their judicial capacity they are in no way concerned with arguments for or against capital punishment or its efficacy as a deterrent to so evil and profitable a crime as trafficking in addictive drugs. Whether there should be capital punishment in Singapore and, if so, for what offences are questions for the legislature of Singapore which, in the case of drugs offences, it has answered by section 29 and the Second Schedule of the Drugs Act. A primary object of imposing a death sentence for offences that society regards with particular abhorrence is that it should act as a deterrent; particularly where the offence is one that is committed for profit by an offender who is prepared to take a calculated risk. There is nothing unusual in a capital sentence being mandatory. Indeed its efficacy as a deterrent may be to some extent diminished if it is not. At common law all capital sentences were mandatory; under the Penal Code of Singapore the capital sentence for murder and for offences against the President’s person still is. If it were valid the argument for the appellants would apply to every law which imposed a mandatory fixed or minimum penalty even where it was not capital – an extreme position which counsel was anxious to disclaim.

 

In order to dispose of the appellants’ argument their Lordships do not find it necessary to embark upon a broad analysis of what the constitutional requirements of “equality before the law” and “the equal protection of the law” involve in contexts other than that of criminal laws which provide for mandatory penalties or mandatory limits upon penalties to be imposed upon the offenders convicted of particular crimes.

 

All criminal law involves the classification of individuals for the purposes of punishment, since it affects those individuals only in relation to whom there exists a defined set of circumstances – the conduct and, where relevant, the state of mind that constitute the ingredients of an offence. Equality before the law and equal protection of the law require that like should be compared with like. What Article 12(1) of the Constitution assures to the individual is the right to equal treatment with other individuals in similar circumstances. It prohibits laws which require that some individuals within a single class should be treated by way of punishment more harshly than others; it does not forbid discrimination in punitive treatment between one class of individuals and another class in relation to which there is some difference in the circumstances of the offence that has been committed.

 

The discrimination that the appellants challenge in the instant cases is discrimination between class and class: the imposition of a capital penalty upon that class of individuals who traffic in 15 grammes of heroin or more and the imposition of a penalty, severe though it may be, which is not capital upon that class of individuals who traffic in less than 15 grammes of heroin. The dissimilarity in circumstances between the two classes of individuals lies in the quantity of the drug that was involved in the offence.

 

The questions whether this dissimilarity in circumstances justifies any differentiation in the punishments imposed upon individuals who fall within one class and those who fall within the other, and, if so, what are the appropriate punishments for each class, are questions of social policy. Under the Constituon, which is based on the separation of powers, these are questions which it is the function of the legislature to decide, not that of the judiciary. Provided that the factor which the legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law, there is no inconsistency With Article 12(1) of the Constitution.

 

The social object of the Drugs Act is to prevent the growth of drug addiction in Singapore by stamping out the illicit drug trade and, in particular, the trade in those most dangerously addictive drugs, heroin and morphine. The social evil caused by trafficking which the Drugs Act seeks to prevent is broadly proportional to the quantity of addictive drugs brought on to the illicit market. There is nothing unreasonable in the legislature’s holding the view that an illicit dealer on the wholesale scale who operates near the apex of the distributive pyramid requires a stronger deterrent to his transactions and deserves more condign punishment than do dealers on a smaller scale who operate nearer the base of the pyramid. It is for the legislature to determine in the light of the information that is available to it about the structure of the illicit drug trade in Singapore, and the way in which it is carried on, where the appropriate quantitative boundary lies between these two classes of dealers. No plausible reason has been advanced for suggesting that fixing a boundary at transactions which involve 15 grammes of heroin or more is so low as to be purely arbitrary.

 

Wherever a criminal law provides for a mandatory sentence for an offence there is a possibility that there may be considerable variation in moral blameworthiness, despite the similarity in legal guilt of offenders upon whom the same mandatory sentence must be passed. In the case of murder, a crime that is often committed in the heat of passion, the likelihood of this is very real; it is perhaps more theoretical than real in the case of large scale trafficking in drugs, a crime of which the motive is cold calculated greed. But Article 12(1) of the Constitution is not concerned with equal punitive treatment for equal moral blameworthiness; it is concerned with equal punitive treatment for similar legal guilt.

 

In their Lordships’ view there is nothing unconstitutional in the provision for a mandatory death penalty for trafficking in significant quantities of heroin and morphine. The minimum quantity that attracts the death penalty is so high as to rule out the notion that it is the kind of crime that might be committed by a good samaritan out of the kindness of his heart as was suggested in the course of argument. But if by any chance it were to happen, the prerogative of mercy is available to mitigate the rigidity of the law and is the long-established constitutional way of doing so in Singapore as in England.

 

In the instant cases the law required that sentences of death should be imposed. There is no substance in the contention that this requirement of the law is inconsistent with the Constitution. The appeals must be dismissed.

Categories: CaseLaws

Jabar v PP [1995] 1 SLR 617:

Categories: CaseLaws

Pendakwa Raya v Kok Wah Kuan [2007] 5 MLJ 174:

PP v. KOK WAH KUAN
FEDERAL COURT, PUTRAJAYA
[CRIMINAL APPEAL NO: 05-46-2007 (W)]
AHMAD FAIRUZ CJ , ABDUL HAMID MOHAMAD PCA , ALAUDDIN MOHD SHERIFF CJ (MALAYA) , RICHARD MALANJUM CJ (SABAH & SARAWAK) , ZAKI TUN AZMI FCJ
23 OCTOBER 2007

 

JUDGMENT

 

Abdul Hamid Mohamad PCA:

 

[1] The respondent who was 12 years and 9 months old at the time of the commission of the offence was charged in the High Court for the offence of murder punishable under s. 302 of the Penal Code. He was convicted and ordered to be detained during the pleasure of the Yang di-Pertuan Agong pursuant to s. 97(2) of the Child Act 2001 (Act 611) (“the Child Act”). He appealed to the Court of Appeal. The Court of Appeal upheld the conviction but set aside the sentence imposed on him and released him from custody on the sole ground that s. 97(2) of the Child Act was unconstitutional. The Public Prosecutor appealed to this court.

 

[2] On what ground did the Court of Appeal hold s. 97(2) of the Child Act to be unconstitutional?

 

[3] From the judgment of the Court of Appeal, it can be seen that that court had arrived at that conclusion on the following premises:

 

(i) The doctrine of separation of powers is an integral part of the Constitution;

(ii) Judicial power of the Federation vests in the courts;

(iii) By s. 97(2) of the Child Act, Parliament had consigned the power to determine the measure of the sentence that was to be served to the Yang di-Pertuan Agong in the case of an offence committed in the Federal Territories, or to the Ruler or the Yang di-Pertua Negeri, if the offence is committed in the State.

(iv) By virtue of art. 39 of the Constitution, the executive authority of the Federation vests in the Yang di-Pertuan Agong who, in accordance with art. 40 of the Constitution, must act in accordance with the advice given by the Cabinet or particular minister of the Cabinet.

(v) Therefore, s. 97(2) of the Child Act contravenes the doctrine of separation of powers housed in the Constitution by consigning to the Executive the judicial power to determine the measure of the sentence to be served by the appellant.

 

[4] Before going any further I will first reproduce the relevant provisions of the Constitution and the Child Act. Article 121 of the Constitution provides:

 

121. (1) There shall be two High Courts of co-ordinate jurisdiction and status, namely:

(a) one in the States of Malaya … and;

(b) one in the States of Sabah and Sarawak … and the High Courts … shall have such jurisdiction and powers as may be conferred by or under federal law. (emphasis added)

 

[5]Article 4(1) of the Constitution provides:

 

4. (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

 

[6]Section 97 of the Child Act provides:

 

97. (1) A sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was a child.

(2) In lieu of a sentence of death, the Court shall order a person convicted of an offence to be detained in a prison during the pleasure of:

(a) the Yang di-Pertuan Agong if the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or

(b) the Ruler or the Yang di-Pertua Negeri, if the offence was committed in the State.

(3) If the Court makes an order under subsection (2), that person shall, notwithstanding anything in this Act:

(a) be liable to be detained in such prison and under such conditions as the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may direct; and

(b) while so detained, be deemed to be in lawful custody.

(4) If a person is ordered to be detained at a prison under subsection (2), the Board of Visiting Justices for that prison:

(a) shall review that person’s case at least once a year; and

(b) may recommend to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri on the early release of further detention of that person,

and the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may thereupon order him to be released or further detained, as the case may be.

 

[7] The Court of Appeal posed two questions for it to answer. They are, first, whether the doctrine of separation of powers is an integral part of the Constitution and, secondly, whether s. 97 of the Child Act “in pith and substance violates the doctrine.” The Court, answered the two questions in the affirmative. On the first question, the court held that the amendment to art. 121 of the Constitution by Act A 704 did not have the effect of divesting the courts of the judicial power of the Federation. The court gave two reasons:

 

First, the amending Act did nothing to vest the judicial power in some arm of the Federation other than the courts. Neither did it provide for the sharing of the judicial power with the Executive or Parliament or both those arms of government.

Second, the marginal note to art. 121 was not amended. This clearly expresses the intention of Parliament not to divest ordinary courts of judicial power of the Federation and to transfer it to or share it with either the Executive or the Legislature.

 

[8] Let us take a close look at the provision of art. 121 of the Constitution before and after the amendment.

 

[9] Prior to the amendment, art. 121(1) of the Constitution reads: “… the judicial power of the Federation shall be vested in the two High Courts … and the High Courts … shall have such jurisdiction and powers as may be conferred by or under federal law.

 

[10] There was thus a definitive declaration that the judicial power of the Federation shall be vested in the two High Courts. So, if a question is asked “Was the judicial power of the Federation vested in the two High Courts?” The answer has to be “yes” because that was what the Constitution provided. Whatever the words “judicial power” mean is a matter of interpretation. Having made the declaration in general terms, the provision went of to say “and the High Courts … shall have jurisdiction and powers as may be conferred by or under federal law.” In other words, if we want to know what are the specific jurisdiction and powers of the two High Courts, we will have to look at the federal law.

 

[11] After the amendment, there is no longer a specific provision declaring that the judicial power of the Federation shall be vested in the two High Courts. What it means is that there is no longer a declaration that “judicial power of the Federation” as the term was understood prior to the amendment vests in the two High Courts. If we want to know the jurisdiction and powers of the two High Courts we will have to look at the federal law. If we want to call those powers “judicial powers”, we are perfectly entitled to. But, to what extent such “judicial powers” are vested in the two High Courts depend on what federal law provides, not on the interpretation of the term “judicial power” as prior to the amendment. That is the difference and that is the effect of the amendment. Thus, to say that the amendment has no effect does not make sense. There must be. The only question is to what extent?

 

[12] In Public Prosecutor v. Dato’ Yap Peng [1987] 1 CLJ 550; [1987] CLJ (Rep) 284, s. 418A of the Criminal Procedure Code came into question as it was argued that it infringed art. 121(1) and 5(1) of the Federal Constitution. Zakaria Yatim J (as he then was) held that s. 418A of the Criminal Procedure was unconstitutional as it was inconsistent with art. 121(1) of the Constitution. Appeal to the Supreme Court was dismissed by a majority of 3:2. That case was decided, not on the ground that it was inconsistent with the doctrine of separation of powers. It was decided on the ground that it was inconsistent with the term “judicial power” of the court then provided by art. 121(1) of the Constitution. In other words s. 418A was inconsistent with the specific provision of the Constitution that provides “… the judicial power of the Federation shall be vested in two High Courts …” The inconsistency then attracts art. 4(1) of the Constitution which declares such a law, to the extent of the inconsistency, be void.

 

[13] What about the instant appeal? In the instant appeal, even the Court of Appeal’s judgment does not, indeed cannot, show which provision of the Constitution s. 97 is inconsistent with. Instead the court held that that section violated the doctrine of the separation of powers, which, in its view was an integral part of the Constitution.

 

[14] What is this doctrine of separation of powers? Separation of powers is a term coined by French political enlightenment thinker Baron de Montesquieu. It is a political doctrine under which the legislative, executive and judicial branches of government are kept distinct, to prevent abuse of power. The principle traces its origins as far back as Aristotle’s time. During the Age of Enlightenment, several philosophers, such as John Locke and James Harrington, advocated the principle in their writings, whereas others such as Thomas Hobbes strongly opposed it. Montesquieu was one of the foremost supporters of the doctrine. His writings considerably influenced the opinions of the framers of Constitution of the United States. There, it is widely known as “checks and balances”. Under the Westminster System this separation does not fully exist. The three branches exist but Ministers, for example, are both executives and legislators. Until recently, the Lord Chancellor was a member of all the three branches – see generally ECS Wade and A W Bradley: Constitutional and Administrative Law 10th edn; Wikipedia (Encyclopedia).

 

[15] In P. Ramanatha Aiyar’s Advance Law Lexicon, vol. 4, we find the following passage:

 

It is extraordinarily difficult to define precisely each particular power. – George Whitecross Paton, A Textbook of Jurisprudence 330 (G.W. Paton & David P. Derham eds., 4th ed. 1972).

A political system that separates executive, legislative, and judicial powers of government into separate branches. Some systems combine two, or even all three, powers into single institutions. In the United States, many administrative agencies actually exercise at least first level judicial powers, and many administrative agencies also exercise what amount to legislative powers in promulgating detailed legal regulations: In other systems, the absence of a separation of powers, particularly between the executive and the legislative, is more explicit … as in the Westminster-style parliamentary system.

 

[16] Malaysia, like the United States has a written Constitution that spells out the functions of the three branches. At the same time it follows the Westminster model and has its own peculiarities. The Yang di-Pertuan Agong is the Supreme Head of the Federation (art. 32(1)). The executive authority of the Federation is vested in the Yang di-Pertuan Agong (art. 39). He is the Supreme Commander of the armed forces of the Federation (art. 41). Parliament consists of the Yang di-Pertuan Agong, the Dewan Negara and Dewan Rakyat (art. 44). While members of the Dewan Rakyat are directly elected, members of the Dewan Negara may be elected by the Legislative Assembly of the States or appointed by the Yang di-Pertuan Agong (art. 45(1) and Seventh Schedule). Judges, including the Chief Justice are appointed by the Yang di-Pertuan Agong. Even the principal registry of the High Court of Sabah and Sarawak is determined by the Yang di-Pertuan Agong (art. 121(1)(b)). On top of all that, the Yang di-Pertuan Agong, unlike the British Monarch, is elected by the Conference of Rulers for a fixed period of five years. And so on.

 

[17] In other words we have our own model. Our Constitution does have the features of the separation of powers and at the same time, it contains features which do not strictly comply with the doctrine. To what extent the doctrine applies depends on the provisions of the Constitution. A provision of the Constitution cannot be struck out on the ground that it contravenes the doctrine. Similarly no provision of the law may be struck out as unconstitutional if it is not inconsistent with the Constitution, even though it may be inconsistent with the doctrine. The doctrine is not a provision of the Malaysian Constitution even though no doubt, it had influenced the framers of the Malaysian Constitution, just like democracy. The Constitution provides for elections, which is a democratic process. That does not make democracy a provision of the Constitution in that where any law is undemocratic it is inconsistent with the Constitution and therefore void.

 

[18] So, in determining the constitutionality or otherwise of a statute under our Constitution by the court of law, it is the provision of our Constitution that matters, not a political theory by some thinkers. As Raja Azlan Shah FJ (as His Royal Highness then was) quoting Frankfurter J said in Loh Kooi Choon v. Government of Malaysia [1975] 1 LNS 90 FC said: “The ultimate touchstone of constitutionality is the Constitution itself and not any general principle outside it.”

 

[19] His Lordship further said:

 

Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording “can never be overridden by the extraneous principles of other Constitutions” – see Adegbenro v. Atkintola & Anor [1963] 3 All ER 544, 551. Each country frames its constitution according to its genius and for the good of its own society. We look at other Constitutions to learn from their experiences, and from a desire to see how their progress and well-being is ensured by their fundamental law.

 

[20] I agree entirely with those observations.

 

[21] Now that the pre-amendment words are no longer there, they simply cannot be used to determine the validity of a provision of a statute. The extent of the powers of the courts depends on what is provided in the Constitution. In the case of the two High Courts, they “shall have such jurisdiction and powers as may be conferred by or under federal law.” So, we will have to look at the federal law to know the jurisdiction and powers of the courts. (In the case of the Federal Court and the Court of Appeal, part of their jurisdiction is specifically provided in the Constitution itself – see art. 121(1B) and (2) respectively).

 

[22] So, even if we say that judicial power still vests in the courts, in law, the nature and extent of the power depends on what the Constitution provides, not what some political thinkers think “judicial power” is. Federal law provides that the sentence of death shall not be pronounced or recorded against a person who was a child at the time of the commission of the offence. That is the limit of judicial power of the court imposed by law. It further provides that, instead, the child shall be ordered to be detained in a prison during the pleasure of the Yang di-Pertuan Agong or the Ruler or the Yang Di-Pertua Negeri, depending on where the offence was committed. That is the sentencing power given by federal law to the court as provided by the Constitution. Similarly, in some cases, federal law provides for death sentence, in others, imprisonment and/or fine, some are mandatory and some are discretionary. The legislature provides the sentences, the court imposes it where appropriate.

 

[23] Going one step further, even where the court imposes a sentence of imprisonment for a fixed term of more than a month, a prisoner is entitled to be granted a remission of his sentence. The Director General of Prisons may cancel any part of the remission if the prisoner commits an offence under s. 50 of the Act. He may restore to the prisoner all or any part of the remission which the prisoner has forfeited during his sentence – s. 44 of the Prison Act 1995 (Act 537) (“the Prison “Act”).

 

[24]Section 67 of the Prison Act empowers the Minister to publish in the Gazette such regulations, inter alia, providing for the remission of sentences to be allowed to a prisoner. Hence Prisons Regulations 2000 (P.U.(A) 325/2000) is made.

 

[25] We see here that the Prison Act empowers the Director General of Prisons to cancel and restore the remission which may be argued to amount to meddling with the fixed term of imprisonment passed by the court. Following the argument of the Court of Appeal, this should be unconstitutional too.

 

[26] Let us take another example. It is common for a statute to make provision for a Minister in charge of an Act of Parliament to make rules or regulations. The Minister is an executive. Rules and Regulations and by-laws, having the effects of law, is within the realm of the legislature to make, not the executive. Yet, I am unable to find any provision in the Constitution giving power to the legislature to make law to give the power to make such by-laws to the executive. So, are the provisions in the statutes giving Ministers power to make by-laws unconstitutional too on the ground that they contravene the doctrine of separation of powers? All these show the absurdity of applying the doctrine as a provision of the Constitution.

 

[27] All these examples show that the doctrine is not definite and absolute. The extent of its application varies from country to country, depending on how much it is accepted and in what manner it is provided for by the Constitution of a country. Similarly, judgments from other jurisdictions, while they are useful comparisons, should not be treated as if they are binding on our courts. As such, I do not think it is necessary to discuss all those cases from other jurisdictions referred to us.

 

[28] On these grounds I would allow the appeal, set aside the order of the Court of Appeal and reinstate the order of the High Court.

 

[29] Ahmad Fairuz Sheikh Halim CJ, Alauddin Mohd. Sheriff CJ (M) and Zaki Azmi FCJ have read this judgment and agreed with it.

 

Richard Malanjum CJ (Sabah & Sarawak):

 

[30] This is an appeal by the Public Prosecutor against the decision of the Court of Appeal which upheld the conviction of the respondent but set aside the sentence imposed and released him from custody on the ground that s. 97(2) of the Child Act 2001 (Act 611) was unconstitutional.

 

[31] I need not summarize the reasons given by the Court of Appeal since it has already been admirably done in the judgment of the learned President of the Court of Appeal.

 

[32]Section 97 of the Child Act reads:

 

(1) A sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was a child.

(2) In lieu of a sentence of death, the Court shall order a person convicted of an offence to be detained in a prison during the pleasure of:

(a) the Yang di-Pertuan Agong if the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or

(b) the Ruler or the Yang di-Pertua Negeri, if the offence was committed in the State.

(3) If the Court makes an order under subsection (2), that person shall, notwithstanding anything in this Act:

(a) be liable to be detained in such prison and under such conditions as the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may direct; and

(b) while so detained, be deemed to be in lawful custody.

(4) If a person is ordered to be detained at a prison under subsection (2), the Board of Visiting Justices for that prison:

(a) shall review that person’s case at least once a year; and

(b) may recommend to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri on the early release or further detention of that person, and the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may thereupon order him to be released or further detained, as the case may be.

 

[33] On plain reading of subsection (2) of s. 97 it is clear that it empowers the court, after convicting a person who was a child at the time of commission of an offence punishable with death, to make an alternative order instead of imposing a sentence of death. In my view the alternative power to make such an order as provided for by the subsection is no less than the power of the court to impose a sentence or punishment on a child convict albeit in a different form, namely, to the care of the Yang di-Pertuan Agong or to the Ruler or to the Yang di-Pertua Negeri depending on where the offence was committed.

 

[34] Hence, with respect I do not think there is anything unconstitutional in the scheme since it is still the court that makes the order consequential to its conviction order. In my view when the court makes the order it is carrying out the process of sentencing which is generally understood to mean a process whereby punishment in accordance with established judicial principles is meted out by the court after a conviction order has been made following a full trial or a guilty plea. (See: Public Prosecutor v. Jafa bin Daud [1981] 1 LNS 28; Standard Chartered Bank and Others v. Directorate of Enforcement and Others [2005] AIR SC 2622). Incidentally s. 183 of the Criminal Procedure Code provides: ‘If the accused is convicted, the Court shall pass sentence according to law’.

 

[35] It might have been a different conclusion if the subsection leaves it entirely to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri as the case may be to deal with a child convict after being convicted by the court.

 

[36] For the above reason I do not think it is thus necessary for me to deal with those constitutional points highlighted by the Court of Appeal in coming to its decision.

 

[37] At any rate I am unable to accede to the proposition that with the amendment of art. 121(1) of the Federal Constitution (the amendment) the Courts in Malaysia can only function in accordance with what have been assigned to them by federal laws. Accepting such proposition is contrary to the democratic system of government wherein the courts form the third branch of the government and they function to ensure that there is ‘check and balance’ in the system including the crucial duty to dispense justice according to law for those who come before them.

 

[38] The amendment which states that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law” should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of our Federal Constitution. I do not think that as a result of the amendment our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law.

 

[39] It must be remembered that the courts, especially the Superior Courts of this country, are a separate and independent pillar of the Federal Constitution and not mere agents of the federal legislature. In the performance of their function they perform a myriad of roles and interpret and enforce a myriad of laws. Article 121(1) is not, and cannot be, the whole and sole repository of the judicial role in this country for the following reasons:

 

(i) The amendment seeks to limit the jurisdiction and powers of the High Courts and inferior courts to whatever “may be conferred by or under federal law”. The words “federal law” are defined in art. 160(2) as follows:

Federal law means:

(a) any existing law relating to a matter with respect to which Parliament has power to make laws, being a law continued in operation under Part XIII; and

(b) any Act of Parliament;

(ii) The courts cannot obviously be confined to “federal law”. Their role is to be servants of the law as a whole. Law as a whole in this country is defined in art. 160(2) to include “written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof”. Further, “written law” is defined in art. 160(2) to include “this Constitution and the Constitution of any State”. It is obvious, therefore, despite the amendment, the courts have to remain involved in the interpretation and enforcement of all laws that operate in this country, including the Federal Constitution, State Constitutions and any other source of law recognized by our legal system. The jurisdiction and powers of the courts cannot be confined to federal law.

(iii) Moreover, the Federal Constitution is superior to federal law. The amendment cannot be said to have taken away the powers of the courts to examine issues of constitutionality. In my view it is not legally possible in a country with a supreme Constitution and with provision for judicial review to prevent the courts from examining constitutional questions. Along with arts. 4(1), 162(6), 128(1) and 128(2), there is the judicial oath in the Sixth Schedule “to preserve, protect and defend (the) Constitution”.

(iv) With respect I do not think the amendment should be read to destroy the courts’ common law powers. In art. 160(2) the term “law” includes “common law”. This means that, despite the amendment, the common law powers of the courts are intact. (See: Ngan Tuck Seng v. Ngan Yin Groundnut Factory Sdn Bhd [1999] 3 CLJ 26). The inherent powers are a separate and distinct source of jurisdiction. They are independent of any enabling statute passed by the legislature. On Malaysia Day when the High Courts came into existence by virtue of art. 121, “they came invested with a reserve fund of powers necessary to fulfill their function as Superior Courts of Malaysia”. Similar sentiments were expressed in R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147.

(v) The amendment in my view cannot prevent the courts from interpreting the law creatively. It is now universally recognized that the role of a judge is not simply to discover what is already existing. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond formal rules to seek a solution to the problem at hand. In a novel situation a judge has to reach out where the light of ‘judicial precedent fades and flicker and extract from there some raw materials with which to fashion a signpost to guide the law’. When rules run out, as they often do, a judge has to rely on principles, doctrines and standards to assist in the decision. When the declared law leads to unjust result or raises issues of public policy or public interest, judges would try to find ways of adding moral colours or public policy so as to complete the picture and do what is just in the circumstances.

(vi) Statutes enacted in one age have to be applied in a time frame of problems of another age. A present time-frame interpretation to a past time framed statute invariably involves a judge having to consider the circumstances of the past to the present. He has to cause the statute to ‘leapfrog’ decades or centuries in order to apply it to the necessities of the times.

(vii) Further, in interpreting constitutional provisions, a judge cannot afford to be too literal. He is justified in giving effect to what is implicit in the basic law and to crystallize what is inherent. His task is creative and not passive. This is necessary to enable the constitutional provisions to be the guardian of people’s rights and the source of their freedom. (See: Dewan Undangan Negeri Kelantan & Anor. v. Nordin bin Salleh & Anor [1992] 1 MLJ 697; Mamat bin Daud & Ors v Government of Malaysia & Anor [1988] 1 CLJ 11; [1988] 1 CLJ (Rep) 197).

(viii) Though there is much truth in the traditionalist assertion that the primary function of the courts is to faithfully interpret and apply laws framed by the elected legislatures, there are, nevertheless, a host of circumstances in which the role of a judge is not just to deliver what is already there. The role is constitutive and creative and goes far beyond a mechanical interpretation of pre-existing law. It extends to direct or indirect law making in the following ways:

1. Formulating original precedents

Life is larger than the law and there is no dearth of novel situations for which there is no enacted rule on point. In such situations a judge relies on the customs and traditions of the land and on standards, doctrines and principles of justice that are embedded in the life of the community to lay down an “original precedent” to assist the court. Admittedly, this fashioning of a new precedent is an infrequent occurrence but its impact on legal growth is considerable;

2. Overruling earlier precedents

Judicial creativity is fully in play when a previous precedent is overruled and thereby denied the authority of law. The overruling may be retrospective or prospective. In either case a new principle is contributed to the legal system and a new direction is forged;

3. Constitutional review

Under arts. 4(1) and 128 of the Federal Constitution, the Superior Courts of this country have the power to review the validity of legislative and executive actions by reference to norms of the basic law. If a legislative measure is found by the court to be unconstitutional, the court has a number of choices. It may condemn the entire statute as illegal or it may apply the doctrine of severability and invalidate only the sections that are unconstitutional and leave the rest of the statute intact. The court may declare the statute null and void ab-initio or only from the date of the ruling. For instance in Dato’ Yap Peng v. PP [1987] 2 MLJ 31 the Supreme Court invalidated s. 418A of the Criminal Procedure Code prospectively.

Questions of constitutionality are fraught with political and policy considerations and decisions thereon can influence the course of legal and political development. For example in Faridah Begum v. Sultan Ahmad Shah [1996] 2 CLJ 159 the majority held that the 1993 constitutional amendment removing the immunities of the Sultans cannot apply to suits brought by foreigners.

Article 162(6) of the Federal Constitution allows judges to modify pre-Merdeka laws in order to make such laws conform to the Constitution. Modification is without doubt a legislative task.

4. Statutory interpretation

In interpreting pre-existing law a judge is not performing a mere robotic function. The interpretive task is, by its very nature, so creative that it is indistinguishable from law-making. “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” (per the American jurist Oliver Wendell Holmes). This is specially so in constitutional law. Even if it is accepted that a judge is bound by the intention of the legislature, it must be noted that such an intention is not always clearly defined. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond the statute to seek a solution to the problem at hand. (See: Chiu Wing Wa & Ors v. Ong Beng Cheng [1994] 1 CLJ 313). A judge may scrutinise preambles, headings and extraneous materials like explanatory statements that accompany Bills and parliamentary debates to help unravel the meaning of statutory formulae. A judge may lean on the interpretation clauses of a statute or on the Interpretation Act 1948/1967 to decipher the intention of the legislature. Or he may fall back on a wealth of rules of statutory construction to aid his task. So numerous and varied are these rules that judicial discretion to rely on one rule or another cannot be predicted. Sometimes a judge’s attention is drawn to foreign legislation and related precedents. He may declare the overseas statute to be in pari materia with local legislation and, therefore, relevant to the case. Alternatively, he may pronounce the local law to be sui generis and therefore to be viewed in the local context without aid of foreign decisions.

When the enacted law leads to undesirable or unjust results, a judge may be persuaded to add moral or public policy shades to the issue in order to do justice.

One could also note, for instance, the “public interest” interpretation of art. 5(3) of the Federal Constitution in Ooi Ah Phua v. Officer-In-Charge Criminal Investigation, Kedah/Perlis [1975] 1 LNS 117 in which the court held that the constitutional right to legal representation can be postponed pending police investigation. In Teoh Eng Huat v. Kadhi Pasir Mas [1990] 2 CLJ 11; [1990] 1 CLJ (Rep) 277 the “wider interest of the nation” prevailed over a minor’s right to religion guaranteed by art. 11. In Hajjah Halimatussaadiah v. Public Services Commission [1992] 1 CLJ 413; [1992] 2 CLJ (Rep) 467 the court subjected a public servant’s claim of a religious right to wear purdah at the workplace to the need to maintain “discipline in the service”.

A judge is not required to view a statute in isolation. He is free to view the entire spectrum of the law in its entirety; to read one statute in the light of related statutes and relevant precedents; to understand law in the background of a wealth of presumptions, principles, doctrines and standards that operate in a democratic society. (See: Kesultanan Pahang v. Sathask Realty Sdn. Bhd. [1998] 2 CLJ 559). He is justified in giving effect to what is implicit in the legal system and to crystallize what is inherent. Such a holistic approach to legal practice is justified because “law” in art. 160(2) is defined broadly to include written law, common law and custom and usage having the force of law.

5. Operation of doctrine of binding precedent

The doctrine of binding judicial precedent exists to promote the principle of justice that like cases should be decided alike. It also seeks to ensure certainty, stability and predictability in the judicial process. There can be no denying that the existence of this doctrine imposes some rigidity in the law and limits judicial choices. But one must not ignore the fact that some flexibility and maneuverability still exist.

Though a superior court is generally reluctant to disregard its own precedents, it does have the power “to refuse to follow” its earlier decisions or to cite them with disapproval. Our Federal Court has, on some occasions, overruled itself. High Court judges occasionally refuse to follow other High Court decisions. An inferior court can maneuver around a binding decision through a host of indirect techniques.

6. Application of doctrine of ultra vires

Whether an agency has acted ultra vires is a complex question of law that permits judicial creativity.

Some statutes declare that discretion is absolute or that a decision is final and conclusive. Some statutory powers are conferred in broad and subjective terms. To statutory formulae of this sort, contrasting judicial responses are possible. The court may interpret them literally and give judicial sanction to absolute powers.

Alternatively the court may read into the enabling law implied limits and constitutional presumptions of a rule of law society. This will restrict the scope of otherwise unlimited powers. (See: R v. Lord Chancellor, Ex p Witham [1998] QB 575). Subjective powers may be viewed objectively. Purposive interpretation may be preferred over literal interpretation. (See: Public Prosecutor v. Sihabduin bin Haji Salleh & Anor [1981] CLJ 39; [1981] CLJ (Rep) 82).

When procedural violations are alleged, a decisive but discretionary issue is whether the procedure was mandatory or directory. Violation of a mandatory procedure results in nullity. Violation of a directory requirement is curable.

7. Import of rules of natural justice

Rules of natural justice are non-statutory standards of procedural fairness. They are not nicely cut up and dried and vary from situation to situation. Judges have wide discretion in determining when they apply and to what extent.

 

[40] Hence, it is reasonable to emphasize that the amendment should not be construed or viewed as having emasculated the courts in this country to mere automaton and servile agents of a federal Act of Parliament.

 

[41] Anyway, reverting to this appeal, for the reason I have given earlier on I would therefore allow it and restore the order made by the High Court.

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