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We Are Preparing Our Civil Suit: The Book of Universe Was Written in the Language of Mathematics – Logic and Philosophical Logic, Metaphysics, and Epistemology – The Scientific Cognition a priori Sublimes into The Manifestation of a posteriori Truths – The Cause of Avalanche is The Avalanche Itself – Absence of All Jurisdictions (It is no longer an issue of mistake or “to err is human”, but the issue of Morality and Misconduct of a Recalcitrant Magistrate) – Basic Ingredient of Malice (Want of Reasonable and Probable Cause), Malicious Prosecution (Principles Governing to Malicious Prosecution), Damages in Malicious Prosecution and Invasion of Privacy (Vicarious Liability) – On Deontological Dialectic Approach – I am merely a Mathematician (Self-Represented during the Criminal Appeal Trial Before Criminal High Court 1, Kuala Lumpur), not a lawyer, not even a solicitor and far away from being a Barrister, who defeats Senior Deputy Public Prosecutors

October 7, 2011 86 comments

Categories: Absence of Jurisdiction, Abuse of Process of Court, Art of Counter-CyberForensics, Blog, Bose-Chaudhuri-Hocquenghem Codes, Breach of Expert Duties, Breach of Natural Justice, Breach of Prosecution's Duties, Brute-Force Attack, Case Law Studies, Chain of Custody, Chain of Evidence, Chaos Theory, Code Breakers, Conspiracy Theory, Control, Credibility of Expert Witness, Criminal & Civil Liability of Expert Witness, Criminal Behavioral Studies, Criminal Justice, Criminal Procedures Code (Act 593) - Malayan Law, Criminology, Cryptanalysis, Cryptography, Custody, Cyber Forensics & Investigations, Damages, Data Analyses, Definition of Possession in Law, Domain Names, E-mail, Electronic Evidence, Error-Correcting Codes, Evidence Act 1950 (Malayan Law), Evidence Not Marked As Exhibit, Expert At Crime Scene, Expert Evidence, Expert Witness, Failure of Gaussian Hypothesis, Federal Constitutions, First Information Report (FIR), Fluid Dynamics, Forensics Standards, FOREX THEORY, Fractal Market Analysis, Fractal Market Hypothesis, Fractal Time Series, Freedom and Privacy, Freedom of Thought, Fundamental Human Rights, Fuzzy Sets, Game Theory, Gaussian and Non-Gaussian, Gazetted Expert Witness, Geological Forensics Science, Human Rights, Marriage & Privacy, Illegally Obtained Evidence, Information, Intellectual Properties & Copyrights, Invasion of Privacy, Knowledge, Laminar Flow, Law of Tort, Limitation of Immunity of Judge in Lower Court, Limitations to The Immunity Rule, Lyapunov Exponent, Malicious Prosecution, Manner in which lack of competency may rise, Marriage Rights, Mathematical Chess Strategies, Mathematical Theory of Nothing, MD5, Measures of Central Tendency, Measures of Determinism, Measures of Dispersion, Measures of Fuzziness, Measures of Nothingness, Measures of Stochasticity, Meteorological Sciences and Analyses, My Young Padawans on The Moves, Natural Justice, Networking and Internet, Neural Fuzzy, Noisy Chaos vs R/S Analysis, Null Set Theory, Number Theory, One-Way Hash Functions, Padawan, Penal Codes, Power and Privacy, Private Property, Private Spaces, Prosecution, Qualitative Analysis, Quantitative Analysis, Reed-Solomon Codes, Retrospective of Privacy, S 120 Parties to Civil Suits and Wives and Husbands, S1 Evidence Act 1950, S10 Evidence Act 1950, S11 Evidence Act 1950, S12 Evidence Act 1950, S122 Evidence Act (Communication During Marriage), S13 Evidence Act 1950, S14 Evidence Act 1950, S15 Evidence Act 1950, S16 Evidence Act 1950, S17 Evidence Act 1950, S2 Evidence Act 1950, S3 Evidence Act 1950, S4 Evidence Act 1950, S44 Fraud or Collusion in Obtaining Judgement or Incompetency of Court May Be Rise, S45 Evidence Act 1950, S5 Evidence Act 1950, S56 Fact Judicially Noticeable Need To Be Proved, S57 Facts of Which Court Must Take Judicial Notice, S6 Evidence Act 1950, S65 Evidence Act 1950, S65(1)(c) Evidence Act 1950, S7 Evidence Act 1950, S8 Evidence Act 1950, S9 Evidence Act 1950, S93 Exclusion of Evidence To Explain or Amend Ambigious Document, Scientific Evidence and Law, Secret of The Bodies, Secure Communications, SHA-1, Solar and Lunar Calculations, Territories of Selfness, The Algorithms, The Daubert Test, The Dyas Test, The Frye Test, The Hurst Processes, The Jacobetz Refinement, The Kelly-Frye Test, The Kumho Gloss, The Non-linear Algorithms, The Post-Daubert Decisions, The Source Codes, The Theory of Pure Democracy, The Williams Departure, Trial Within Trial, True Definition of Natural Justice, Turbulence, Vicarious Liability, Websites, Without Search Warrant

CHECKMATE IN 4 MOVES: Izamov’s Gambit – Criminal Appeal 41-21-2011 Mohamad Izaham Bin Mohamed Yatim (Appellant) vs Public Prosecutor (Respondent) – Conviction against the Appellant (Accused) is quashed, sentence is set aside and the Appellant acquitted and discharged with MERITS before The Honourable Judge of The Criminal High Court 1, Kuala Lumpur Today! – “The First Magistrate, Ever, in The History of Malaya Lower Courts ‘Overwhelmingly Shown and Proven’ To Be The Greatest Liar of All Times” – P/S: Izamov is my Russian name, technically, just like Gary Kasparov, Karpov for the World Class Chess Grand Masters. “Keadilan ialah Meletakkan Kebenaran di Tempat Yang Sepatutnya”

October 5, 2011 1,231 comments

Updating…

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Table of Cases

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Article 145(3) Federal Constitution of Malaysia

[1997] 3 MLJ 681

REPCO HOLDINGS BHD v PUBLIC PROSECUTOR

HIGH COURT (KUALA LUMPUR)

GOPAL SRI RAM JCA

CRIMINAL REVISION NO W-43-7 OF 1997

2 October 1997

Constitutional Law — Constitution — Infringement of — Whether s 126(2) of the Securities Industry Act 1983 and s 39(2) of the Securities Commission Act 1993 were ultra vires art 145(3) of the Federal Constitution and were void to that extent

Constitutional Law — Legislature — Infringement of Constitution — Doctrine of prospective overruling — Power of the court to apply doctrine

Criminal Procedure — Prosecution — Right to conduct prosecution — Whether any other authority apart from the Public Prosecutor may be lawfully empowered to conduct prosecution — Federal Constitution art 145(3) — Securities Industry Act 1983 s 126(2) — Securities Commission Act 1993 s 39(2)

Securities — Conduct of prosecution under the Securities Industry Act 1983 — Whether any other authority apart from the Public Prosecutor may be lawfully empowered to conduct prosecution — Federal Constitution art 145(3) — Securities Industry Act 1983 s 126(2) — Securities Commission Act 1993 s 39(2)

The applicant, Repco Holdings Bhd (‘RepcO’), was charged by the Securities Commission (‘the commission’) – a body created by the Securities Commission Act 1993 (‘the SCA’) – for infringing s 86 of the Securities Industry Act 1983 (‘the SIA’). At the hearing, counsel for Repco took a preliminary objection to the locus standi of the two officers of the commission who appeared to prosecute the case. The prosecution was conducted by the two officers pursuant to the joint operation of s 126(2) of the SIA and s 39(2) of the SCA which, inter alia, allow prosecution of any offence under the Acts to be conducted by the Registrar of Companies or by any officer authorized by the Registrar or the Chairman of the commission or the commission. It was argued that s 126(2) of the SIA and s 39(2) of the SCA were ultra vires art 145(3) of the Federal Constitution and were void to that extent. The sessions judge, faced with the constitutional argument, acted under s 30 of the Courts of Judicature Act 1964 and transmitted the record in the case to the High Court to determine the constitutionality of the two subsections.

Held, declaring both s 129(2) of the SIA and s 39(2) of the SCA to be unconstitutional, null and void:

  • (1)

The only authority that is constitutionally entitled to conduct prosecutions is the Attorney General as Public Prosecutor. The adjectival vehicle contained in s 376 and subsequent sections of the Criminal Procedure Code (FMS Cap 6) (‘the CPC’) put this beyond doubt (see p 688B); PP v Datuk Harun bin Hj Idris & Ors [1976] 2 MLJ 116 and PP v Lim Shui Wang & Ors [1979] 1 MLJ 65 followed.

1997 3 MLJ 681 at 682

  • (2)

Based on authorities, the expression ‘conduct’ appearing in art 145(3) and in the two impugned subsections carries the same meaning. Since the Constitution exclusively authorizes the Attorney General to conduct prosecutions, in must follow that no other authority may be lawfully empowered to exercise that function. Therefore, s 126(2) of the SIA which allows prosecution to be conducted by the Registrar of Companies or by any officer authorized by the Registrar or the Chairman of the commission is ultra vires art 145(3) of the Federal Constitution. However, if the Registar of Companies is a gazetted deputy public prosecutor and in such capacity conducts a prosecution of an offence under the SIA, that would not be caught by art 145(3) of the Constitution. On the other hand, the Chairman of the commission is not placed on an equal footing and therefore not authorized constitutionally to authorize or to conduct prosecutions under the SIA. Further, although for the purpose of carrying out their duties, members and servants of the commission are deemed to be public officers, they do not fall within the scope of s 380(i) of the CPC to allow them to conduct prosecution (see p 690C—G); Long bin Samat & Ors v PP [1974] 2 MLJ 152 and Johnson Tan Han Seng v PP [1977] 2 MLJ 66 followed.

  • (3)

In the same way, s 39(2) of the SCA wholly contravenes art 145(3). By reason of art 4(1) of the Federal Constitution, it being a law which is inconsistent with the Constitution, the subsection gives way and is therefore void and unconstitutional (see p 691B).

  • (4)

It would be a manifest injustice to render a retrospective ruling on the invalidity of the two impugned subsections. The declaration as to invalidity shall, therefore, be prospective only and shall include only the present case and cases registered from the date of the ruling (see p 692A—B); PP v Dato Yap Peng [1987] 2 MLJ 311 and Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 followed.

[Bahasa Malaysia summary

Pemohon, Repco Holdings Bhd (‘RepcO’), telah dipertuduhkan oleh Suruhanjaya Sekuriti (‘suruhanjaya tersebut’) – sebuah badan yang ditubuhkan oleh Akta Suruhanjaya Sekuriti 1993 (‘ASS’) – kerana melanggar s 86Akta Perindustrian Sekuriti 1983 (‘APS’). Di pembicaraan, peguam Repco membuat bantahan permulaan atas locus standi dua orang pegawai suruhanjaya tersebut yang hadir untuk mendakwa kes. Pihak pendakwa dikendalikan oleh dua orang pegawai tersebut menurut operasi bersama s 126(2) ASS dan s 39(2) APS yang, antara lain, membenarkan pendakwaan mana-mana kesalahan di bawah Akta-Akta tersebut untuk dijalankan oleh Pendaftar Syarikat atau oleh mana-mana pegawai yang diberikuasa oleh Pendaftar Syarikat atau Pengerusi suruhanjaya tersebut atau suruhanjaya tersebut. Adalah dihujahkan bahawa s 126(2) ASS dan

1997 3 MLJ 681 at 683

s 39(2) APS adalah ultra vires perkara 145(3) Perlembagaan Persekutuan dan adalah terbatal setakat itu. Hakim sesyen, yang dihadapi dengan hujah perlembagaan, bertindak di bawah s 30 Akta Mahkamah Kehakiman 1964 dan menghantar rekod kes ke Mahkamah Tinggi bagi menentukan perlembagaan dua subseksyen itu.

Diputuskan, mengisytiharkan kedua-dua s 129(2) APS dan s 39(2) ASS tidak menurut perlembagaan, tak sah dan terbatal:

  • (1)

Satu-satunya autoriti yang berhak di sisi perlembagaan untuk mengendalikan pendakwaan adalah Peguam Negara sebagai Pendakwa Raya. Susunan prosedur yang termaktub dalam s 376 dan seksyen-seksyen yang berikutnya dalam Kanun Acara Jenayah (NMB Bab 6) (‘KAJ’) meletakkan perkara ini di luar batas keraguan (lihat ms 688B); PP v Datuk Harun bin Hj Idris & Ors [1976] 2 MLJ 116 dan PP v Lim Shui Wang & Ors [1979] 1 MLJ 65 diikut.

  • (2)

Berdasarkan autoriti-autoriti, ungkapan ‘menjalankan’ yang menonjol dalam perkara 145(3) dan dalam dua subseksyen yang dipersoalkan membawa maksud yang sama. Oleh kerana Perlembagaan memberikuasa kepada Peguam Negara secara eksklusif untuk menjalankan pendakwaan, ini bermakna bahawa tiada pihak berkuasa yang lain boleh mempunyai kuasa di sisi undang-undang untuk melaksanakan fungsi itu. Maka, s 126(2) APS yang membenarkan pendakwaan dijalankan oleh Pendaftar Syarikat atau mana-mana pegawai lain yang diberikuasa oleh Pendaftar atau Pengerusi suruhanjaya tersebut adalah ultra vires perkara 145(3) Perlembagaan Persekutuan. Walau bagaimanapun, jika Pendaftar Syarikat adalah timbalan pendakwa raya yang diwartakan dan dalam keupayaan demikian menjalankan pendakwaan ke atas kesalahan di bawah APS, ini tidak terperangkap oleh perkara 145(3) Perlembagaan. Sebaliknya, Pengerusi suruhanjaya tersebut tidak berada dalam kedudukan yang sama dan dengan itu tidak diberikuasa menurut perlembagaan untuk memberikuasa atau untuk menjalankan pendakwaan di bawah APS. Selanjutnya, walaupun untuk tujuan menjalankan tugas, ahli-ahli dan pekerja-pekerja suruhanjaya tersebut dianggap sebagai pegawai awam, mereka tidak dirangkumi oleh skop s 380(i) KAJ bagi membenarkan mereka menjalankan pendakwaan (lihat ms 690C—G); Long bin Samat & Ors v PP [1974] 2 MLJ 152 dan Johnson Tan Han Seng v PP [1977] 2 MLJ 66 diikut.

  • (3)

Dalam cara yang sama, s 39(2) ASS pada keseluruhannya menyalahi perkara 145(3). Disebabkan perkara 4(1) Perlembagaan Persekutuan, ia merupakan undang-undang yang tidak konsisten dengan Perlembagaan, subseksyen itu memberi laluan dan dengan itu adalah tak sah dan melanggar perlembagaan (lihat ms 691B).

  • (4)

Adalah sungguh tidak adil untuk membuat keputusan secara kebelakangan atas ketaksahan dua subseksyen yang dipersoalkan.

1997 3 MLJ 681 at 684

Dengan itu, perisytiharan atas ketaksahan haruslah menjadi prospektif sahaja dan harus termasuk hanya kes ini dan kes-kes yang didaftarkan dari tarikh keputusan (lihat ms 692A—B); PP v Dato Yap Peng [1987] 2 MLJ 311 dan Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 diikut.]

Notes

For a case on infringement of Constitution, see 3 Mallal’s Digest (4th Ed, 1994 Reissue) para 993.

For cases on securities, see 11 Mallal’s Digest (4th Ed, 1996 Reissue) paras 766–793.

For a case on the right to conduct prosecution, see 5 Mallal’s Digest (4th Ed, 1994 Reissue) para 2040.

Cases referred to

Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697 (refd)

Johnson Tan Han Seng v PP [1977] 2 MLJ 66 (folld)

Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481 (refd)

Long bin Samat & Ors v PP [1974] 2 MLJ 152 (folld)

Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 (folld)

PP v Datuk Harun bin Hj Idris & Ors [1976] 2 MLJ 116 (folld)

PP v Lim Shui Wang & Ors [1979] 1 MLJ 65 (folld)

PP v Dato Yap Peng [1987] 2 MLJ 311 (folld)

Raymond v Attorney General [1982] 2 WLR 849 (refd)

Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan Malaysia & Anor [1996] 1 MLJ 261 (refd)

Legislation referred to

Courts of Judicature Act 1964 s 30

Criminal Procedure Code (FMS Cap 6) ss 376, 380, 380(i)

Federal Constitution arts 4(1), 145(3)

Securities Commission Act 1993 s 39(2)

Securities Industry Act 1983 ss 86, 91, 126(2)

Muhammad Shafee Abdullah (Ng Aik Guan with him) for the applicant.

Azhar Mohamed and Shamsul Sulaiman (Deputy Public Prosecutors) for the respondent.

GOPAL SRI RAM JCA

(delivering oral judgment): This is an application under s 30(1) of the Courts of Judicature Act 1964. That section reads as follows:

30 (1) Where in any proceedings in any subordinate court any question arises as to the effect of any provision of the Constitution the presiding officer of the court may stay the proceedings and may transmit the record thereof to the High Court.

1997 3 MLJ 681 at 685

(2) Any record of proceedings transmitted to the High Court under this section shall be examined by a Judge of the Court and where the Judge considers that the decision of a question as to the effect of a provision of the Constitution is necessary for the determination of the proceedings he shall deal with the case in accordance with section 48 as if it were a case before him in the original jurisdiction of the High Court in which the question had arisen.

(3) Subsections (1) and (2) shall be deemed to be rules of court for the purposes of Article 128(2) of the Constitution.

The matter arose in the following way.

The applicant, Repco Holdings Bhd (‘RepcO’) is a public limited company. Its shares are freely traded in the Kuala Lumpur Stock Exchange. On 27 January 1996, Repco issued a statement to the Kuala Lumpur Stock Exchange. The statement contained certain facts which the Securities Commission considered to contravene s 86 of the Securities Industry Act 1983 (‘the SIA’). So it took steps to institute proceedings against Repco. On 21 October 1996, it applied for and obtained a summons from the Sessions Court in Kuala Lumpur against Repco. The charge annexed to the summons refers to the Repco’s statement I spoke of a moment ago and alleges an infringement of s 86 of the SIA and punishable under s 91 thereof.

The summons was returnable on 29 November 1996. Repco appeared before the sessions court on that day. The sessions court then fixed the case for hearing on 25 August 1997. On that date, counsel who appeared for Repco took a preliminary objection to the locus standi of the two officers who appeared to prosecute the case. These two officers were Ms Foo Lee Mei and Ms Seow Siew Mei. They were officers of the Securities Commission, a body created by the Securities Commission Act 1993 (‘the SCA’). The prosecution of the case against Repco was in the hands of these two officers pursuant to the joint operation of s 126(2) of the SIA and s 39(2) of the SCA. For completeness, I will reproduce both these sections in full. They read as follows.

Section 126(2) of the SIA:

126 (1) No prosecution for any offence under this Act shall be instituted except with the consent in writing of the Public Prosecutor.

(2) A prosecution for any offence against any provision of this Act may be conducted by the Registrar or by any officer authorized in writing by the Registrar or by any officer authorized in writing by the Chairman of the Commission.

Section 39(2) of the SCA:

39 (1) No prosecution for any offence under this Act shall be instituted except with the consent in writing of the Public Prosecutor.

(2) Any officer of the Commission authorized in writing by the Commission may conduct any prosecution of any offence under this Act.

1997 3 MLJ 681 at 686

So far as sub-s (1) of each of the foregoing are concerned, they make it clear that the institution of a prosecution under each enactment shall be only with the consent of the Public Prosecutor. The importance of this will appear later in this judgment. However, as may be noted, sub-s (2) of each of the aforesaid sections vests the conduct of prosecutions under each enactment in the hands of persons other than the Public Prosecutor.

Accordingly, before the sessions court, counsel for Repco took the point that the two ladies I mentioned earlier had no locus standi to conduct the prosecution in this particular case. It was argued that s 126(2) of the SIA and s 39(2) of the SCA were ultra vires art 145(3) of the Federal Constitution and were void to that extent. The sessions judge, faced with the Constitutional argument, acted under s 30 of the Courts of Judicature Act 1964 and transmitted the record in the case to this court to determine the constitutionality of the two subsections I mentioned a moment ago. That is how I, sitting as a High Court judge, have come to hear this application.

So much for the factual background.

In order to appreciate the arguments advanced in favour of the applicant before the sessions court, and repeated in substance before me this morning by its counsel En Muhammad Shafee, it is necessary to hearken to the relevant provisions of the written law that govern the subject matter at hand. These are, art 145(3) of the Federal Constitution, s 376 of the Criminal Procedure Code (FMS Cap 6) (‘the CPC’) and s 380 of the same Code. They are as follows.

First, art 145(3) of the Federal Constitution:

145 (3) 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.

Next, s 376 of the CPC:

376 (i) The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.

(ii) The Solicitor General shall have all powers of a Deputy Public Prosecutor and shall act as Public Prosecutor in case of the absence or inability to act of the Attorney General.

(iii) The Public Prosecutor may appoint fit and proper persons to be Deputy Public Prosecutors who shall be under the general control and direction of the Public Prosecutor and may exercise all or any of the rights and powers vested in or exercisable by the Public Prosecutor by or under this Code or any other written law except any rights or powers expressed to be exercisable by the Public Prosecutor personally.

(iv) The rights and powers vested in or exercisable by the Public Prosecutor by subsection (iii) and section 68(ii) shall be exercisable by the Public Prosecutor personally.

Third, s 380 of the CPC:

1997 3 MLJ 681 at 687

380 Notwithstanding anything in this Chapter contained –

(i) any public officer may prosecute in any Court in any case or class of cases in which he is by any written law authorized to prosecute in such Court;

(ii) in summary non-seizable cases in the Court of a Magistrate –

(a) the Public Prosecutor or a Deputy Public Prosecutor or a Police Officer may appear and conduct any prosecution;

(b) any officer of any Government department or of any local authority or statutory authority or any person employed by any local authority or statutory authority may appear and conduct any prosecution for an offence against any written law which it is the duty of the said department or authority specially to enforce;

(c) any private person may appear in person or by advocate or, in the State of Terengganu, by a pleader and prosecute for an offence against his own person or property.

It will be seem at once, from a reading of the plain language of art 145(3), that the Supreme Law, namely the Federal Constitution, has committed to the hands of the Attorney General the sole power, exercisable at his discretion, to institute, conduct and discontinue criminal proceedings. The phrase ‘institute, conduct or discontinue’ was considered by Abdoolcader J (as he then was) in PP v Datuk Harun bin Hj Idris & Ors [1976] 2 MLJ 116. Of the expression ‘conduct’, his Lordship said (at p 119E—I):

‘Conduct’ in art 145(3) cannot but refer to the conduct of prosecutions in court, as it indeed appears ipsissimisverbis in s 377 of the CPC. And ‘control and direction’ in s 376(i) of the CPC is in respect of all criminal prosecutions and proceedings, and not of criminal procedure or the jurisdiction of the courts.

‘Conduct’ of criminal prosecutions and proceedings in art 145(3) cannot connote the regulation of criminal procedure or of the jurisdiction of the courts or the power or discretion to do so. Any contrary contention would in effect in my view be tantamount to the suggestion of the Public Prosecutor arrogating to himself the legislative powers vested in Parliament under item 4 and in particular para (b) there in List I (Federal List) in the Ninth Schedule to the Constitution, with perhaps also the not inconceptible resultant intrusion or at least a more than peripheral incursion into the sphere of art 121(1) of the Constitution which provides that the judicial power of the Federation is vested in two High Courts and in such inferior courts as may be provided by federal law – namely, the Subordinate Courts Act 1948 which specifies the subordinate courts and their respective civil and criminal jurisdiction.

Pursuing its signification, ‘to conduct’ means ‘to lead, guide, manage’ (Re Bhupalli Malliah 1959 AIR AP 477; Pride of Derby v British Celanese Ltd [1953] 1 Ch 149 at p 167, per Lord Evershed MR). It conveys the idea of leading and guiding, that is to say, the person who conducts the prosecution determines all important questions of policy involved in the course of the trial and the attitude to be adopted by the prosecution towards material objections raised or demands made by the accused with respect to the evidence.

1997 3 MLJ 681 at 688

Abdoolcader J’s interpretation of the phrase ‘institute, conduct or discontinue’ was approved and applied by the Federal Court in PP v Lim Shui Wang & Ors [1979] 1 MLJ 65.

It follows from the foregoing discussion that the only authority that is constitutionally entitled to conduct prosecutions is the Attorney General as Public Prosecutor. The adjectival vehicle contained in s 376 and subsequent sections of the CPC put this beyond doubt. The question then arises: Is Parliament entitled by written law to vest the power to conduct criminal prosecutions in an authority other than the Attorney General?

Encik Muhammad Shafee has argued that this question should receive a negative response. The Public Prosecutor upon whom lies a most onerous burden has considered the arguments and has come to the honest and inescapable conclusion that En Muhammad Shafee is correct in the contentions that he has advanced. Commendably therefore, the Public Prosecutor has instructed his deputy who has appeared before me today to concede that the two subsections referred to do indeed conflict with art 145(3) of the Federal Constitution. However, this being an issue of public law, the agreement between counsel before me does not absolve this court of the duty to investigate the question of its own volition and decide whether the common ground upon which the parties before me stand is indeed maintainable in law. If I come to the conclusion that the impugned subsections are not ultra vires art 145(3), I am at liberty to so declare despite the agreement arrived at between counsel. However, having given the matter my most anxious consideration, I have come to the conclusion that the Public Prosecutor is correct in the concession he has made.

Acting with utmost fairness, En Azhar bin Mohamed, deputy public prosecutor, has cited to me cases which he says are useful in making my determination upon the issue at hand. I think I owe it to efforts of counsel to enter upon a discussion of the case which he has cited.

The first is Long bin Samat & Ors v PP [1974] 2 MLJ 152 where at p 158A—C, Suffian LP had this to say:

In our view, this clause from the supreme law clearly gives the Attorney General very wide discretion over the control and direction of all criminal prosecutions. Not only may he institute and conduct any proceedings for an offence, he may also discontinue criminal proceedings that he has instituted, and the courts cannot compel him to institute any criminal proceedings which he does not wish to institute or to go on with any criminal proceedings which he has decided to discontinue. (For the position in England, please see Viscount Dilhorne’s speech at pp 32–33 in Smedleys Ltd v Breed [1974] 2 All ER 21). Still less then would the court have power to compel him to enhance a charge when he is content to go on with a charge of a less serious nature.

Anyone who is dissatisfied with the Attorney General’s decision not to prosecute, or not to go on with a prosecution or his decision to prefer a charge for a less serious offence when there is evidence of a more serious offence which should be tried in a higher court, should seek his remedy elsewhere, but not in the courts.

1997 3 MLJ 681 at 689

The second authority which the learned deputy has drawn to my attention is Johnson Tan Han Seng v PP [1977] 2 MLJ 66 where, at p 70A—F, Suffian LP once again said of art 145(3):

… Before Merdeka Chap XXXVII of the FMS Criminal Procedure Code and the equivalent provisions of the SS Criminal Procedure Code set out his power. Today, only the FMS Code remains. Section 376(i) thereof provides generally that the Attorney General in his capacity as Public Prosecutor shall have the control and direction of all criminal prosecutions and proceedings under the Code. The next nine sections particularize his powers.

For instance, under s 381, he may enter a nolle prosequi after he has received the record of a preliminary enquiry. As noted by this court in Long bin Samat v PP [1974] 2 MLJ 152, there was ample judicial authority before Merdeka to show that the Attorney General enjoyed wide discretion in regard to criminal prosecutions. As s 376(i) of the Criminal Procedure Code was already in existence before Merdeka, our constitution-makers could have been content with relying on it alone to preserve after Merdeka the Attorney General’s pre-Merdeka power, and if they had done so, then it might be arguable that after Merdeka, it must be read subject to art 8: but our constitution-makers were not content to do so. They deliberately wrote art 145(3) into our Constitution which reads:

‘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 native court or a court-martial.’

The language of this provision is very wide, for it includes the word ‘discretion’ which means liberty of deciding as one thinks fit. In view of the deliberate decision of our constitution-makers to write this provision into our Constitution, I do not think that it can be said that it must be read subject to art 8.

The importance of the propositions formulated by the learned Lord President in these two cases is that, as a matter of public law, the exercise of discretion by the Attorney General in the context of art 145(3) is put beyond judicial review. In other words, the exercise by the Attorney General of his discretion, in one way or another, under art 145(3), cannot be questioned in the courts by way of certiorari, declaration or other judicial review proceedings.

I think that the proposition is not only good law but good policy. For, were it otherwise, upon each occasion that the Attorney General decides not to institute or conduct or discontinue a particular criminal proceedings, he will be called upon to a court of law the reasons for his decision. It will then be the court and not the Attorney General who will be exercising the power under art 145(3). That was surely not the intent on our founding fathers who framed our Constitution for us.

Encik Muhammad Shafee has drawn my attention to a passage in a leading work upon the subject. It is a textbook entitled The Attorney General: Politics and the Public Interest by Prof Edwards whose other work, Law Officers of the Crown, has been often quoted with approval by our courts. At p 91 of the text, Prof Edwards expresses the following view. The word ‘conduct’, it was stated:

1997 3 MLJ 681 at 690

… appears to be wider that the phrase ‘carry on’ and suggests to our minds that when the Director intervenes in a prosecution which has been privately instituted, he may do so not exclusively for the purpose of pursuing it by carrying it on, but also with the object of aborting it; that is to say, he may ‘conduct’ the proceedings in whatever manner may appear expedient in the public interest.

The author was there quoting from the judgment of the English Court of Appeal in Raymond v Attorney General [1982] 2 WLR 849 at p 853.

In my judgment, having regard to the authorities read before me, the expression ‘conduct’ appearing in art 145(3) and in the two impugned subsections carries the same meaning. Since the Constitution exclusively authorizes the Attorney General to conduct prosecutions, in must follow, as night follows day, that no other authority may be lawfully empowered to exercise that function. Therefore, it is my opinion, that s 126(2) of the SIA is ultra vires art 145(3) of the Federal Constitution save to the extent I shall now indicate.

Subsection (2) of s 126 of the SIA refers to the conducting of a prosecution by the Registar of Companies or by someone authorized by such Registrar in writing. As a matter of practice, the Registar of Companies is usually a senior member of the Judicial and Legal Service. He or she is normally gazetted as a deputy public prosecutor. So, if the Registar of Companies is a gazetted deputy public prosecutor and in such capacity conducts a prosecution of an offence under the SIA, that would not be caught by art 145(3) of the Constitution. But the Chairman of the Securities Commission is not placed on an equal footing. He is therefore not authorized lawfully, that is to say constitutionally, to authorize or to conduct prosecutions under the SIA.

Neither does s 380(i) of the CPC, relied on by the prosecutors before the sessions court, provide any assistance to the Securities Commission. As pointed out by the learned deputy public prosecutor, the expression ‘public officer’ appearing in that section refers to members of the public service. While for the purpose of carrying out their duties, members and servants of the Securities Commission are deemed to be public officers, they do not fall within the scope of s 380(i) of the CPC.

Encik Muhammad Shafee has very properly drawn my attention to s 126(2) as it originally appeared before the amendment. I think it useful to reproduce the section as it originally stood:

126 (2) Without prejudice to the provision of section 379 of the Criminal Procedure Code, an advocate and solicitor may, with the previous permission in writing of the Public Prosecutor, be employed by the Government to conduct any criminal prosecution, or to appear in any criminal appeal, on behalf of the Government; such advocate and solicitor shall be paid by the Government such remuneration as may be agreed between the Government and the advocate and solicitor, and while so employed he shall be deemed to be a ‘public servant’ within the meaning of the Penal Code.

1997 3 MLJ 681 at 691

Section 126(2) as originally cast did not, in my judgment, contravene art 145(3), because of the careful way in which it was drafted. On the other hand, s 126(2) as presently worded cannot be read harmoniously with art 145(3) to the extent I have earlier indicated.

Turning now to s 39(2) of the SCA, it is my judgment that this subsection wholly contravenes art 145(3). By reason of art 4(1) of the Federal Constitution, it being a law which is inconsistent with the Constitution, the subsection gives way. I would declare it void and unconstitutional.

In arriving at my decision, I have not overlooked the important principles that govern the interpretation of written constitutions. Our Federal Constitution is a living document written for all time. Its language compresses within it ideas that are manifold and concepts that are multifaceted. The task of the judicial interpreter of such a document is not to place it in a coffin and nail the lid but to breathe life into it and to give effect to the full breadth and width of its great language. That is the spirit in which our courts have approached our Constitution on previous occasions. In this context, I need only mention the decisions of our Supreme Court in Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor [1992] 1 MLJ 697; Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119; Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan Malaysia& Anor [1996] 1 MLJ 261 and Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481.

There is, no doubt a presumption; even a strong presumption; that an Act of Parliament is constitutional. It would require much conviction to strike down a solemn act of legislation by a democratically elected Parliament. Nevertheless, once it has been amply demonstrated, as has been done in the present case, that an Act of Parliament contains provisions that are in direct conflict with the supreme law, it is the duty of this court to say so clearly and unequivocally.

For the reasons I have given thus far, I would declare s 126(2) of the SIA to be unconstitutional, null and void and of no effect, save to the extent earlier indicated. In the same way I would declare s 39(2) of the SCA to be unconstitutional, null and void and of no effect.

At the conclusion of arguments, the learned deputy drew my attention to the fact that there has been already some prosecutions pursuant to s 126(2) of the SIA and s 39(2) of the SCA. There are also part heard cases presently pending before the subordinate courts, some of which may be well advanced or nearing conclusion.

Now, as a general rule, the declaration of invalidity of a written law on the grounds that it runs foul of the Federal Constitution has retrospective effect. But, the court is fully authorized, having regard to public interest, to make a prospective declaration so as not to render invalid convictions entered and proceedings already concluded before the challenge is taken on the ground on unconstitutionality.

1997 3 MLJ 681 at 692

In my judgment, it will be a manifest injustice to render a retrospective ruling on the invalidity of the two impugned subsections. The declaration as to invalidity I now make shall, therefore, be prospective only and shall include only this case and cases registered from today. In doing so, I act on the authority of the Supreme Court’s decision in PP v Dato Yap Peng [1987] 2 MLJ 311 and Mamat bin Daud v Government of Malaysia. Accordingly, the ruling that I have just pronounced shall take effect from 2 October 1997.

Order accordingly.

Reported by Loo Lai Mee

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S419 and S422 CPC

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S62 CPC

Ghani and Others v Jones

Court of Appeal

29 October 1969

29 October 1969

[1969 G. No. 2947]

[1970] 1 Q.B. 693

Lord Denning M.R., Edmund Davies L J. and Sir Gordon Willmer

Talbot J.

1969 Oct. 14, 15, 16; 29

1969 Aug. 25; 28

Police—Powers—Retention of documents—Passports—Refusal to return documents and passports handed to police—Police suspicion of murder and belief in evidential value of documents—No evidence of reasonable grounds of belief or that owners concerned in murder—Whether police entitled to retain documents and passports—Owners’ right to relief.

Injunction—Mandatory—Interlocutory—Retention of documents and passports by police claim by owners—Relief sought substantially same as claimed in action—No reason to delay enforcement of right—Whether order should be granted.

Police officers inquiring into a woman’s disappearance searched, without a warrant, the house of her father-in-law. At their request he handed to them documents including the passports of himself, his wife and daughter, the plaintiffs living in the house. The plaintiffs, who were Pakistanis, later asked for the return of the passports and documents as they wished to visit Pakistan. The police refused to return them. The plaintiffs brought an action against the defendant, a senior police officer, for a mandatory order for the delivery up of the passports and documents, an injunction restraining their detention and damages for detinue.

On the plaintiffs’ interlocutory application, the police gave affidavit evidence of their belief that the woman had been murdered and that they would apprehend those concerned. They said that in the event of charges being preferred some of the documents would be of evidential value and others of potential evidential value. The defendant said that the plaintiffs could help the police inquiries and that if they left the United Kingdom they might not return. No one had been arrested or charged with the murder. Talbot J. ordered the return of the documents and passports.

On the defendant’s appeal:

Held, dismissing the appeal, that the police had not shown reasonable grounds for believing that the documents were material evidence to prove the commission of a murder, nor for believing that the plaintiffs were in any way implicated in or accessory to a crime, and since their affidavits did not justify their retention of the documents, they should be ordered to return them forthwith.

Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 Q.B. 299; [1968] 2 W.L.R. 201; [1968] 1 All E.R. 229, C.A. distinguished.

Entick v. Carrington (1765)19 State Tr. 1029; 2 Wils. 275 and Reg. v. Waterfield [1964] 1 Q.B. 164; [1963] 3 W.L.R. 946; [1963] 3 All E.R. 659, C.C.A. considered.

Dicta of Horridge J. in Elias v. Pasmore [1934] 2 K.B. 164, 173 disapproved.

*694

Per curiam. There is no power to issue a search warrant for murder (post, p. 705D).

The common law does not permit the police to ransack anyone’s house, or to search for papers or articles therein, or to search his person, simply to see if he may have committed some crime (post, p. 706G-H).

Where police officers enter a man’s house by virtue of a warrant, or arrest a man lawfully for a serious offence, they are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If during their search they come upon any other goods which show him to be implicated in some other crime they may retain them, provided they act reasonably and detain them no longer than is necessary (post, p. 706A-B).

The wish to prevent the plaintiffs leaving the country pending police inquiries is not a legitimate ground for the retention of the passports by the police (post, p. 709F).

Observations on requisites to be satisfied in order to justify the taking of an article when no one has been arrested or charged (post, pp. 708G-709C).

Decision of Talbot J., post, p. 695; [1969] 3 W.L.R. 1158; [1969] 3 All E.R. 720 affirmed.

The following cases are referred to in the judgment of Lord Denning M.R.:

  • Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 Q.B. 299; [1968] 2 W.L.R. 201; [1968] 1 All E.R. 229, C.A..
  • Elias v. Pasmore [1934] 2 K.B. 164.
  • Entick v. Carrington (1765)19 State Tr. 1029; 2 Wils. 275.
  • King v. The Queen [1969] 1 A.C. 304; [1968] 3 W.L.R. 391; [1968] 2 All E.R. 610, P.C..
  • Pringle v. Bremner and Stirling (1867) 5 Macph., H.L., 55.
  • Reg. v. Waterfield [1964] 1 Q.B. 164; [1963] 3 W.L.R. 946; [1963] 3 All E.R. 659, C.CA.

The following additional cases were cited in argument in the Court of Appeal:

  • Boyd v. United States (1886) 116 U.S. 616.
  • Chimel v. State of California (1969) U.S. (23L. Ed. 2d 685).
  • Christie v. Leachinsky [1947] A.C. 573; [1947] 1 All E.R. 567, H.L.(E.).
  • Crozier v. Cundey (1827) 6 B. & C. 232.
  • Dillon v. O’Brien and Davis (1887) 16 Cox C.C. 245, Ir.
  • Gordon v. Metropolitan Police Chief Comr. [1910] 2 K.B. 1080, C.A..
  • King v. The Queen [1969] 1 A.C. 304; [1968] 3 W.L.R. 391; [1968] 2 All E.R. 610, P.C..
  • Lawrie v. Muir, 1950 S.C.(J.) 19.
  • Levine v. O’Keefe [1930] V.L.R. 70.
  • Reg. v. Barnett (1829) 3 C. & P. 600.
  • Reg. v. Lushington, Ex parte Otto [1894] 1 Q.B. 420.
  • Warden of Maryland Penitentiary v. Hayden (1967) 387 U.S. 294.
  • Weeks v. United States (1914) 232 U.S. 383.

The following cases are referred to in the judgment of Talbot J.:

  • Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 Q.B. 299; [1968] 2 W.L.R. 201; [1968] 1 All E.R. 229, C.A..

*695

  • Crozier v. Cundey (1827) 613. & C. 232.
  • Dillon v. O’Brien and Davis (1887)16 Cox C.C. 245, Ir.
  • Elias v. Pasmore[1934] 2K.B. 164.
  • Entick v. Carrington (1765) 19 State Tr. 1029; 2 Wils. 275.
  • Price v. Messenger (1800) 2 Bos. & P. 158.
  • Reg. v. Lushington, Ex parte Otto [1894] 1 Q.B. 420.
  • Reg. v. Waterfield [1964] 1 Q.B. 164; [1963] 3 W.L.R. 946; [1963] 3 All E.R. 659, C.C.A..
  • Reg. v. Waterfield
  • Canadian Pacific Railway v. Gaud [1949] 2 K.B. 239, CA.
  • Gordon v. Chief Commissioner of Metropolitan Police [1910] 2 K.B. 1080, C.A..

APPEAL from Talbot J., infra.

A summons, taken out by Abdul Ghani, the first plaintiff, Razia Begum, his wife, the second plaintiff, and Kaniz Radhma, a spinster and daughter of the first and second plaintiffs, the third plaintiff, in an action against Alan Jones, a detective chief superintendent of the Metropolitan police, the defendant, was heard in chambers and judgment was delivered in open court.

The facts are fully stated in the judgments of Talbot J. and Lord Denning M.R.

Anthony Lester for the plaintiffs.

Anthony Lewisohn for the defendant.

Cur. adv. vult.

August 28. TALBOT J.

read the following judgment. In this summons I have been asked to give my judgment in open court. In it the plaintiffs are asking for a mandatory order that the defendant, a detective chief superintendent of the Metropolitan police, do deliver up certain documents belonging to them and their passports, which they allege are wrongfully detained by him. The first and second plaintiffs are husband and wife, and the third plaintiff is their daughter. Proceedings were commenced by a writ issued on August 13, 1969, in which is made this claim for the mandatory order and also a claim for damages.

The matter arises in this way: the police are investigating the disappearance of one Mastoora Begum, the wife of Mohammed Sharif, a son of the first and second plaintiffs. This lady arrived in the United Kingdom on June 22, 1967, and has since disappeared. Inquiries lead the police to believe that she has been murdered and that the crime is believed to have been committed in 1968. No one has been arrested or detained, though the police believe they will apprehend those concerned.

On June 13, 1969, the defendant and other police officers visited the first plaintiff’s house and questioned him about the disappearance of Mastoora Begum. They searched the house, though, as I understand, they did not have a search warrant. They asked for the passports of the first plaintiff and of his wife, the second plaintiff, and he (the first plaintiff)*696 handed them to the police officers. The police officers took away the passports, and also five letters and a notebook.

On June 19, 1969, the police again visited the first plaintiff’s house and asked him for the passport of his daughter, the third plaintiff. This also was handed over to them.

Then the time came when the plaintiffs wanted their documents back, and in particular their passports. They asked for them and did not get them back. They then instructed solicitors and the solicitors wrote letters, four in all, the last being on August 14, asking for the return of these documents, but received no reply.

The plaintiffs want their passports back for a holiday in Pakistan. The police – that is the defendant and detective sergeant Laing – in their affidavits say they believe that in the event of charges being preferred, some of the documents will be of evidential value and others certainly of potential evidential value. That is set out in the affidavit of detective sergeant Laing. In the affidavit of the defendant he says he believes the documents referred to to be important documents in themselves; and he went on to add that in so far as the passports were concerned, he believed that all three plaintiffs could be of considerable assistance to his inquiries, and that if they left the United Kingdom they might not return.

Pausing there, that final reason given by the defendant, that the passports are required to prevent the plaintiffs leaving the country, is no longer relied upon as a valid reason for retaining these documents.

The letters and notebook belong to the first plaintiff, or to the first and second plaintiffs. The passports belong to the governments issuing them. The plaintiffs, however, as possessors of these passports, have a right to them.

The first point which is clear is that the defendant detains these documents and passports from the plaintiffs, and the burden is upon him to show that he lawfully detains them. The second point is this: has the defendant shown that he has a right to retain these documents? The third point is: if he has not any such lawful power, ought the court, in the exercise of its equitable jurisdiction, to order their return at this stage of the proceedings.

The first question involves a consideration of police powers to seize papers which they believe may be of material evidential value in possible criminal proceedings. It is an important consideration that police authorities should not be hindered in their investigations of a crime. It is certainly of equal importance that individual rights and liberties should not be infringed and taken away unless there is lawful reason for so doing.

Powers of the police to seize goods and documents were fully examined by the Court of Appeal in Chic Fashion:s (West Wales) Ltd. v. Jones [1968] 2 Q.B. 299. As long ago as 1765, in Entick v. Carrington (1765) 19 State Tr. 1029, it was decided that a general warrant authorising a search for seditious papers was illegal. The powers of the police in such cases must be derived either from a statute or from the common law. There is no statutory power which would authorise the defendant in this case to do what he is doing, and therefore I must determine whether the common law authorises his action.

*697

In 1800, in Price v. Messenger (1800) 2 Bos. & P. 158, seizure of goods not referred to in a search warrant was held lawful because the officer reasonably, though mistakenly, believed that they were included in the warrant.

In 1827, in Crozier v. Cundey (1827) 6 B. & C. 232, seizure of goods not mentioned in the warrant but which were likely to provide evidence of identity of those goods which were mentioned was held lawful.

In Dillon v. O’Brien and Davis (1887) 16 Cox C.C. 245, it was decided that where a man was arrested on warrant, a constable was entitled to take property found in his possession which was likely to form material evidence in his prosecution for a crime. Similarly, in Elias v. Pasmore [1934] 2 K.B. 164, it was decided that a constable arresting a man called Harrington for sedition was entitled to seize documents which were in his possession and which would form material evidence against the plaintiff in that action, Elias, on a charge of inciting Harrington to commit the crime of sedition.

In stating the principle to be derived from these cases, Lord Denning M.R. in the Chic Fashions case [1968] 2 Q.R. 299, 313 said:

“… when a constable enters a house by virtue of a search warrant for stolen goods, he may seize not only the goods which he reasonably believes to be covered by the warrant, but also any other goods which he believes on reasonable grounds to have been stolen and to be material evidence on a charge of stealing or receiving against the person in possession of them or anyone associated with him.”

That there are limitations on police powers in respect of property which they believe to be connected with a crime is shown by Reg. v. Waterfield [1964] 1 Q.B. 164, decided by the then Court of Criminal Appeal in 1963. Two police constables had information about a car being involved in a serious offence and tried to detain the car, though not charging or arresting the two men in it, and it was held that though there was a duty on the constables to preserve for use in court evidence of a crime, that duty did not authorise them to prevent the removal of the car in the circumstances.

It was in Reg. v. Lushington, Ex parte Otto [1894] 1 Q.B. 420 that it was laid down that constables have a power and duty to retain for use in court things which may be evidence of crime and which have come into their possession without wrong on their part. In that case there were proceedings for extradition and the articles had been produced by the owner under a subpoena duces tecum.

How then do these decided cases assist in this case? Let us take the main points of the evidence. There is suspected the serious crime of murder; the plaintiffs’ documents came into the hands of the police because they were handed to them by the first plaintiff; no one has been arrested or detained for the crime, and the plaintiffs are not shown by any evidence before me to be concerned in that crime; the police believe that the documents will be of evidential or potential evidential value, though no grounds are shown to support this belief; the plaintiffs particularly want their passports and their detention amounts to a restriction on their free movement from this country, a restriction which is laid upon persons who are not charged with any offence or shown to be implicated in the suspected*698 offence. These are the relevant circumstances, and I hope I have not omitted anything.

The question, narrowed down, therefore, is this: have the police common law powers to detain documents, which they believe will be useful evidentially in a suspected crime, from the owners, who have not been charged or arrested or shown to be implicated in the suspected crime?

The cases I have been referred to relating to search warrants limit the powers to keep the goods or papers found on the search to those connected evidentially with stolen property and which are believed, on reasonable grounds, to be so connected in order to support a charge against the owners or those associated with them. The other cases relate to the right to retain documents in proceedings which have been begun and which may form part of the evidence in those proceedings.

Taking all these matters into account, I am persuaded that there is no right vested in the police at common law to retain documents and passports belonging to persons not shown to be concerned in the suspected crime and where no reasonable grounds of belief that these documents will be useful evidentially in some crime are shown. To decide otherwise would be to accord to the police powers to take charge of property which they believe might be of evidential value irrespective of any connection the owners might have with the crime.

The final point concerns the equitable jurisdiction which I have to exercise. It is exceptional to grant, before trial of the action, an interlocutory injunction which gives substantially the relief claimed in the action, and in particular to make a mandatory order. Furthermore, before doing so, the court must be quite clear that the right exists. In this case, my opinion being that the defendant has no right to keep these documents from the plaintiffs, and as the legality of his actions has to be tested at the time of his refusal to deliver up – that appears in the Chic Fashions case – I can see no reason to delay enforcement of what I believe to be the plaintiffs’ rights. The order will therefore go.

Order accordingly. (L. N. W. )

Representation

Solicitors: Lawford & Co.; Solicitor, Metropolitan Police.

The defendant appealed.

The grounds of appeal were: (1) that the judge was wrong in law in holding that police officers had no common law powers to detain documents which they believed would be useful evidentially in a suspected crime, unless the owners of the documents had either been charged or arrested, or had been shown to be implicated in the suspected crime; (2) that the judge was wrong in law in holding that it was incumbent on the police officers to disclose in their affidavits, sworn for the purpose of interlocutory proceedings, the grounds for their belief that the documents were of evidential value in connection with the suspected crime; (3) that the judge was wrong in the exercise of his equitable jurisdiction in granting to the plaintiffs the relief claimed upon an interlocutory application.

*699

John Leonard Q.C. and Anthony Lewisohn for the appellant defendant. This is a murder investigation by the police. The original point of taking the plaintiffs’ passports was to prevent them getting out of the country. It is conceded that this is no justification. The passports were handed to the police voluntarily. Their retention is justified by their potential evidential value. The best evidence rule requires the production of the originals.

1. Police officers who lawfully acquire possession of articles which they have reasonable grounds to believe may be of evidential value in a criminal investigation can retain them until the articles are used in evidence or for a reasonable time. 2. A bare statement that a defendant has reasonable grounds for belief is a sufficient answer to an interlocutory application for the return of articles so acquired. 3. If the police are wrong and they have no reasonable grounds for retaining the articles they are liable in damages.

Suppose A borrows a knife from B, stabs someone with that knife and having so committed murder disappears and cannot be found. The knife is traced by the police who take it away before A is discovered. B demands the return of the knife. It would be absurd if the police were bound to return the knife to B, who may be implicated as an accessory. It is sufficient if it is reasonably needed as evidence.

Articles can be taken as an incident to a search warrant although not included in it: Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 Q.B. 299. Cases reviewed in that case establish the power of the police to retain articles which may be used in evidence, e.g., Dillon v. O’Brien and Davis (1887)16 Cox C.C. 245. In Elias v. Pasmore [1934] 2 K.B. 164 the documents were on the premises but not in the possession of Hannington.

The statutory power of search is contained in section 26 (1) and (3) of the Theft Act, 1968. Impeding police inquiries in the case of murder could amount to an offence under section 4 of the Criminal Law Act, 1967. The right to retain articles cannot depend on whether a charge is ultimately made against anyone, or upon whether a conviction is obtained: see per Lord Denning M.R. in Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 Q.B. 299, 312. The “best evidence” rule must be complied with; the original document must be produced if possible.

The restrictions on the powers of the police are: (1) the retention must be for a reasonable time; (2) one has to balance the interests of the individual who owns the article and the seriousness of the case. The current situation with regard to crime and the police must be regarded. The interlocutory order made means that the police have not had time to complete their investigations. Pringle v. Bremner and Sterling (1867) 5 Macph. H.L. 55 illustrates the principle of the interests of the state in prosecuting criminals.

The principle contended for does not depend on the fact that she documents were voluntarily handed over; the police obtained them lawfully. It is conceded that there must be a limit on what can be done without a search warrant. One cannot get a search warrant in a murder case.

The limitation on the powers of the police in Reg. v. Waterfield[1964] l Q.B. 164 went too far. The question there was whether the police were acting in the course of their duty. Reg. v. Lushington, Ex parte Otto [1894] 1 Q.B. 420 lays down the principle of the power of the police to*700 retain articles lawfully in their possession which may be evidence of a crime.

[Edmund Davies L.J. referred to articles by Professor P. J. Fitzgerald, “The Arrest of a Motor Car” (1965) Criminal Law Review, p. 23, and by Professor E. C. S. Wade, “Police Search” (1934) 50 Law Quarterly Review, p. 354.]

Levine v. O’Keefe [1930] V.L.R. 70 which was cited in Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 Q.B. 299 was decided before Elias v. Pasmore [1934] 2 K.B. 164.

In summary, any discussion as to the right of the police to seize goods is irrelevant. The police could not have got a search warrant in this case. The only common law right to a search warrant was in the case of larceny. There are two functions of search warrants for stolen goods. One is to provide evidence; the other is to recover goods. The right of the police is independent of the outcome of the investigation. The right to retain possession must have a point of termination. If there is no charge or prosecution that must be at the point, which had not been reached here, when a reasonable time has elapsed.

Anthony Lester for the plaintiffs. It is conceded that the burden is on the defendant to show that he lawfully detained the plaintiffs’ goods. The detention must be justified at the time of the taking or at the time of the request for the return. The defendant here took as a bailee but lie committed a trespass when he refused to return the goods. Halsbury’s Laws of England, 3rd ed., Vol. 38 (1962), para. 1283 defines detinue. If the detention is to be justified, the taking must also be justified. It must be the same justification in each case.

There are eight elements in this case which make it unusual: (1) there has been no prosecution; (2) no arrest; (3) no application for a search warrant; (4) no suggestion by the defendant that the documents were the fruits or instruments of any crime; (5) no allegation that they were evidence of any crime committed by the plaintiffs; (6) no suggestion that they were necessary and material evidence against anyone; (7) the passports have unique characteristics in that they affect liberty of movement and, like driving licences, they speak as to very few facts; (8) it is admitted that, in the circumstances of this case, the police would have no right to search for or seize documents. There are competing interests here: of the community through the police and of the individual citizen. It is necessary to have a clear standard at common law, especially since there are no safeguards in any written constitution.

Entick v. Carrington (1765)19 State Tr. 1029 is the basic case. At p. 1073 Lord Camden lays down the law. It is precisely this case.

As to the illustration of the knife given for the appellant, as the law now stands the police would have to return the knife. One can only search or seize by virtue of a warrant, a search warrant or warrant of arrest. A warrant of arrest would allow the taking of articles as evidence if they were in the possession of the person arrested. Warrants of search and arrest give safeguards; there must be reasonable grounds for suspicion.

The stolen goods cases. In Price v. Messenger (1802) 2 Bos. & P. 158 a search warrant protected goods specified in the warrant and also goods reasonably believed to have been specified. Crozier v. Cundey (1827) 6B. & C. 232 shows that though the terms of the warrant can be extended this must not be unreasonable. The cases are reviewed in Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 Q.B. 299. The Theft Act, 1968, goes beyond that case.

There are three special features at common law in the case of stolen goods: (1) ex hypothesi they may not belong to the person from whom they are taken; (2) they are stolen; (3) there is an interest in their being returned to their true owner.

The need for a search warrant provides four safeguards: (1) a sworn statement made to a magistrate; (2) a deposition of reasonable belief that the goods were stolen and were in possession of a particular person at a particular place; (3) if the warrant was improperly granted, the citizen can be protected; (4) the warrant limits the extent of search and seizure.

In warrantless searches the police must have reasonable grounds for belief that the items seized are either the fruits of a crime committed by a person from whom they are taken or instruments of such a crime or necessary or material evidence of such a crime. The principle of reasonableness is inherent in the search warrant situation.

Other search warrant cases. In Pringle v. Bremner and Stirling (1867) 5 Macph. H.L. 55, the search went beyond the warrant. Lord Chelmsford indicated that the legality of the seizure would depend upon the outcome of the proceedings. Reliance is put on Gordon v. Chief Commissioner of Metropolitan Police [1910] 2 K.B. 1080, 1094, where the coins were not shown to be material evidence. One can only search or seize by virtue of a warrant, a search warrant or warrant of arrest. These warrants give safeguards; there must be reasonable grounds for suspicion. The irony of the plaintiffs’ present position if the police contention is right is that they have less protection than if there were a warrant. There have been cases where the property has been returned pending the trial.

King v. The Queen [1969] 1 A.C. 304 reinforces the importance of complying with a search warrant. It shows that if the warrant is exceeded there is an illegality. It also illustrates how different is the stricter American view as to the admissibility of illegally obtained evidence. As we have looser rules as to admissibility, we should have stricter safeguards as to obtaining evidence. Reg. v. Barnett (1829) 3 C. & P. 600 is one of the many cases showing that money or goods taken which are not material to the charge must be returned. The test is: is it material to the charge?

Arrest warrant cases. One can hardly imagine a clearer case than Dillon v. O’Brien and Davis (1887) 16 Cox C.C. 245 where the doctrine of hot pursuit arises. This was the only case relied upon in Elias v. Pas more [1934] 2 K.B. 164 for a much wider proposition. It is essential that the person concerned from whom the property is taken is the suspected criminal. Parliament, as late as 1967, has addressed its mind to these problems and has set out the limits: see sections 4 (1) and 2 of the Criminal Law Act, 1967, and also section 26 of the Theft Act, 1968. This is the answer to the knife point. It is very significant that Parliament has gone no further. One must not extend the law beyond the safeguards applied to accused persons. To allow the police the wide powers which they claim, where there is no arrest or charge, is highly dangerous. Reliance*702 is put on Entick v. Carrington, 19 State Tr. 1029, where similar issues were raised.

Elias v. Pasmore [1934] 2 K.B. 164, 173, is expressed very widely and is inconsistent with Dillon v. O’Brien, 16 Cox C.C. 245. If pressed it would be contended that Elias v. Pasmore was wrongly decided. It was a case involving sedition and the documents were conceded to be relevant. If Elias v. Pasmore [1934] 2 K.B. 164 was based on the width of the principle of Horridge J., at p. 173, it was wrongly decided. Professor Wade’s article, “Police Search” in 50 L.Q.R. 354, is a valuable criticism of that case. The present case goes beyond Elias v. Pasmore in that there has been no arrest. Although Reg. v. Waterfield [1964] 1 Q.B. 164 is in the plaintiffs’ favour in that it is the only case in English law in which the police have taken property without a warrant and had to give it back, the reasons of the court were not fully given and it should be limited to its own circumstances. It is very far from the present case, although it is the one case where there was no warrant. The doctrine of “hot pursuit” may sometimes apply. The police would not get a search warrant here.

The American authorities. Boyd v. United States (1886) 116 U.S. 616 showed that constitutional provisions for the security of person and property, such as the Fourth Amendment dealing with the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” should be liberally construed. We have the same standard as the American Fourth Amendment, although we do not go so far. If there is any doubt as to the law it should be resolved in favour of the citizen. The importance of the fundamental right secured by the Fourth Amendment was emphasised in Weeks v. United States (1914) 232 U.S. 383, 392, 393. No English case has been found which is inconsistent with Weeks v. United States. In The Warden of Maryland Penitentiary v. Hayden (1967) 387 U.S. 294 the seizure was allowed; previously the instruments of a crime could be seized, but not the evidence. Chimel v. State of California (1969) U.S. (23L.Ed 2d 685) shows how far American law goes in protecting the accused.

All the American cases concerned the accused person. It would never have occurred to them that the same safeguards should not apply to a person not even accused, [Reference was made to Christie v. Leachinsky [1947] A.C. 573, per Viscount Simon at p. 584.]

In seizing goods, either one must have a warrant, or, if there is no warrant, there must be the same safeguards as if there was a warrant. The plaintiffs must be given reasonable grounds for the retention of the property at the time of the taking or the request. Retention cannot be justified without reasons being given.

In summary, the two issues of search and seizure should be kept separate. The question of the legality of searches depends upon the entry onto property. If there is no warrant, the same safeguards must be observed as are contained in actual search warrants.

As to seizure, on the cases the citizen or the police can only seize property pursuant to a search warrant or warrant of arrest or a Christie v. Leachinsky [1947] A.C. 573 arrest. It is essential that the legality of what has been done can be tested. The burden is on the police authority to justify. In Elias v. Pasmore [1934] 2 K.B. 164 there was a warrant. It is conceded*703 that in search and arrest cases, searches and seizures have been allowed beyond the warrant, but subject to the necessary conditions which the warrant contains. These are cases where there are reasonable grounds for believing that the articles seized may be material evidence for the trial in respect of a crime for which the warrant was issued or some similar crime was committed by a person from whom the article was taken. So far as third parties are concerned outside those implicated, they would be liable to produce evidence on subpoena and if they destroyed the evidence they would be liable under the Criminal Law Act, 1967. To extend the power of search and seizure to innocent third parties would be to deprive persons not accused of any crime to a greater restraint than if there were a warrant. If they cannot be seized without consent, they cannot be retained against the owner’s will. The American Fourth Amendment sets out the principle of the Entick v. Carrington position, 19 State Tr. 1029. That case has stood for two centuries. It should still stand.

The documents here relate to personal liberty. It is not suggested that they are material evidence. The police cannot unlawfully retain property on the basis of the best evidence rule. If ever there was a case which did not require an extension of police powers it is this. The documents were handed over voluntarily.

Leonard Q.C. in reply. It is fundamental to this case that the documents were handed over voluntarily. Entick v. Carrington, 19 State Tr. 1029 is very far from the present case. It is conceded that if the police had entered the house without permission, it would have been unlawful. It is a very different matter where they were given permission. The mischief that the common law has been guarding against is the entry into a man’s house and turning over his papers. As there was no trespass, provided the police have some need to retain the documents, they can keep them. Prima facie the police are committing a tort, but the documents are being kept for their evidentiary value. The police might be embarrassed by having to disclose reasons for their value as evidence.

Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 Q.B. 299 makes it clear that provided the police have the right to go on the premises, they have the right to go beyond the warrant and seize other goods: see per Lord Denning, at p. 313. The element of criminal association is not necessary. The limitations are a reasonable belief that a felony has been committed and that it is material evidence. The interests of the citizen must be set against the seriousness of the offence.

[Lord Denning M.R. Have the police got to say why the goods or documents are reasonably required?]

No. Common sense must be relied upon. The fact that the retention of the passports immobilise the holders is an advantage to the police. It is inherent in the judgments in Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 Q.B. 299 that the police may sometimes be justified in seizing property where there is no prosecution. A subpoena duces tecum is no help to the police where proceedings have not yet begun.

Reg. v. Waterfield [1964] 1 Q.B. 164 unreasonably hampers the activities of the police. It was either wrongly decided or depends on its own particular facts. In King v. The Queen [1969] 1 A.C. 304, Lord Hodson,*704 at p. 315, cited the opinion of Lord Cooper in Lawrie v. Muir, 1950 S.C. (J.) 19, 26, 27. The American cases are based on their constitution. They do not provide much help in this case.

The common law is a developing organism. Reasonable grounds for believing that a criminal offence has been committed and that the goods or documents are of reasonable evidentiary value is the test.

Cur. adv. vult.

October 29. The following judgments were read. LORD DENNING M.R.

On June 22, 1967, a woman named Mastoora Begum came from Pakistan to England to join her husband here. His name was Mohammed Sharif. They lived together in a house in Oxford with the husband’s father and mother, whose names are Abdul Ghani and Razia Begum. In November, 1968, the wife disappeared. No one has seen her since. In April, 1969, the husband left England and went back, presumably to Pakistan. The husband’s sister then came to England and stayed with her father and mother at the same house in Oxford.

The police made inquiries about the disappearance of the wife which led them to the belief that she had been murdered. On June 13, 1969, two detective officers from Scotland Yard – Chief Superintendent Jones and Detective Sergeant Laing – went to the house in Oxford where the husband’s father and mother and their daughter were living. The father asked the officers in. One of them questioned him about the disappearance of his son’s wife. The other searched the house. The police asked the father for their passports. He handed them his own and his wife’s passports. They took them away. They also took some letters received from other members of the family. On June 19, the police returned to the house and asked for the daughter’s passport. Her father gave it to them.

In July, 1969, the father instructed solicitors to ask for the return of the passports and other articles. The police refused to return them. On August 13, 1969, the father and mother and the daughter issued a writ against the chief superintendent, the defendant, and served with it a statement of claim asking for a mandatory order that the defendant do forthwith deliver up the passports and letters. Detective Sergeant Laing made an affidavit, saying:

“The information I have obtained as a result of my inquiries into the circumstances surrounding the disappearance of the said Mastoora Begum leads me to believe that she has been murdered and that the crime was committed in 1968 and I am of opinion that the inquiries now being undertaken will lead to the apprehension of those concerned in her murder.

In the course of the inquiries Chief Superintendent Jones and myself acquired possession (inter alia) of the passports of the three plaintiffs, two letters from Mr. Ghani’s daughter, Nassim Akhtar, and three letters from his nephew, Subba Saddique. I believe that in the event of charges being preferred some of the documents will be of evidential value and others certainly of potential evidential value.”

*705 As to the husband’s sister, the affidavit said that she “was not in the United Kingdom at the time of the disappearance of the said Mastoora Begum, but there has been conduct on her part which was designed to impede police inquiries.”

Detective Chief Superintendent Jones concurred in that affidavit, and said:

“I believe that the documents referred to therein to be important in themselves, but insofar as the passports are concerned, I also sincerely believe that all these plaintiffs can be of considerable assistance to me in my inquiries, and that, if they leave the United Kingdom, they may not return.”

Neither affidavit alleged any belief that any of the plaintiffs was implicated in the suspected murder. Talbot J., held, ante, p. 698C-E, that the police had no right to retain the passports or letters and made a mandatory order for their return. The police officers appeal to this court. The case raises matters of importance on which there is very little direct authority in our books.

The first thing to notice is that the police officers had no search warrant. The reason is simple. No magistrate – no judge even – has any power to issue a search warrant for murder. He can issue a search warrant for stolen goods and for some statutory offences, such as coinage. But not for murder. Not to dig for the body. Nor to look for the axe, the gun or the poison dregs. The police have to get the consent of the householder to enter if they can: or, if not, do it by stealth or by force. Somehow they seem to manage. No decent person refuses them permission. If he does, he is probably implicated in some way or other. So the police risk an action for trespass. It is not much risk.

The second thing to notice is that the police officers kept the passports and letters without the consent of the holders. Mr. Leonard suggested that they took them with consent. This is a little far-fetched. Here were two police officers asking a Pakistani for the passports of himself and his wife. Of course he handed them to them. It would look bad for him if he did not. He bowed to their authority. Even if he consented to their looking at the passports, he did not consent to their keeping them. Even if he did consent to their keeping them, it was only for a while: and he could withdraw it at any time. As in fact he did. So it is all the same. They detain the passports without his consent.

The third thing to notice is that no one has been arrested for the murder or charged with it. The police officers believe that the woman has been murdered. They say so. In addition, although they do not say so, they must, I think, suspect that these three may in some way be implicated in it. Otherwise they would not hold on to the passports or papers as they do. But they have not arrested anyone or charged anyone. I can understand it. It would not be right for them to make an arrest or lay a charge unless the grounds were pretty strong.

So we have a case where the police officers, in investigating a murder, have seized property without a warrant and without making an arrest and have retained it without the consent of the party from whom they took it. Their justification is that they believe it to be of “evidential*706 value” on a prosecution for murder. Is this a sufficient justification in law?

I would start by considering the law where police officers enter a man’s house by virtue of a warrant, or arrest a man lawfully, with or without a warrant, for a serious offence. I take it to be settled law, without citing cases, that the officers are entitled to take any goods which they find in his possession or in his house which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary. Such appears from the speech of Lord Chelmsford L.C., in Pringle v. Bremner and Stirling (1867) 5 Macph., H.L. 55, 60 and Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 Q.B. 299.

Accepting those cases, I turn to two cases where the police acted against a man without the authority of a warrant or of an arrest. The first is Elias v. Pasmore. It is reported in [1934] 2 K.B. 164, but the facts are given more fully in (1934) 50 T.L.R. 196. Police officers there entered a house in Great Russell Street, of which Elias was the tenant. The police officers had only a warrant for the arrest of a man called Hannington. They had reasonable ground for believing that he had been guilty of sedition by attempting to cause disaffection among the police. They knew he was in the house. They entered and arrested him. They had no search warrant, authorising them to search the house. No search warrant is permissible to search for seditious papers. That is plain ever since since Entick v. Carrington (1765) 19 State Tr. 1029. Whilst there, however, they searched the place, seized a number of seditious papers and took them to Scotland Yard. These papers implicated, not only Hannington, but also Elias. They showed that Elias had been inciting Hannington to commit sedition. The police prosecuted first Hannington and second Elias. The papers were used at the trial of Elias. Both men were convicted. Elias afterwards said that the police had no right to take his papers and brought an action for their return and for damages for their detention. Horridge J. rejected the claim. He said [1934] 2 K.B. 164, 173: “The interests of the state must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence of a crime committed by anyone.”

I confess that I think those words “by anyone” go too far. The decision itself can be justified on the ground that the papers bowed that Elias was implicated in the crime of sedition committed by Hannington. If they had only implicated Elias in some other crime, such as blackmail or libel, I do not think the police officers would have been entitled to seize them. For that would be a flat contradiction of Entick v. Carrington, 19 State Tr. 1029. The common law does not permit police officers, or anyone else, to ransack anyone’s house, or to search for papers or articles therein, or to search his person, simply to see if he may have committed some crime or other. If police officers should so do, they would be guilty of a trespass. Even if they should find something incriminating against him, I should have thought that the court would not allow it to be used in evidence against him if the conduct of the police*707 officers was so oppressive that it would not be right to allow the Crown to rely upon it: see King v. The Queen [1969] 1 A.C. 304.

The other case is Reg. v. Waterfield [1964] 1 Q.B. 164. Two men named Lynn and Waterfield assaulted a man in King’s Lynn. Lynn wounded another man. They drove off in Waterfield’s car. Lynn drove it dangerously and ran into a brick wall. They parked it in the Market Place and went off. The police sergeant was anxious to examine it so as to obtain evidence of the collision with the wall. He told two police constables to keep watch on it and not let it go as he wanted to examine it. He told them it had been involved in a serious offence. At 7.30 p.m. Lynn came back and wanted to drive the car off. The police constable told him it had to remain where it was. Waterfield, the owner of the car, then came up and said to the police officer: “You cannot impound my car.” He told Lynn to drive it away. One of the police officers stood in the path of the car. Waterfieid said: “Drive at him, he will get out of the way.” Lynn did drive forward. The officer jumped aside. The car was driven away.

Lynn was charged with assaulting the police officer in the execution of his duty, and Waterfield with commanding it. The jury convicted them both. They appealed. The Court of Criminal Appeal (consisting of Lord Parker C.J., Ashworth J. and Hinchcliffe J.) allowed the appeal, and said, at p. 171:

“It is to be noted that neither [Lynn nor Waterfield] had been charged or was under arrest and accordingly the decision in Dillon v. O’Brien and Davis (1887) 16 Cox C.C. 245, does not assist the prosecution.

It was contended that the two police constables were acting in the execution of a duty to preserve for use in court evidence of a crime, and in a sense they were, but the execution of that duty did not in the view of this court authorise them to prevent the removal of the car in the circumstances. In the course of argument instances were suggested where difficulty might arise if a police officer were not entitled to prevent removal of an article which had been used in the course of a crime, for instance, an axe used by a murderer and thrown away by him. Such a case can be decided If and when it arises. …”

The court did, however, go on to certify, at p. 172, that a point of law of general public importance was involved, namely,

“… whether at common law a constable, without making a prior charge or arrest, has the duty to detain as prospective evidence any property found in a public place and which he has reasonable grounds to believe to be material evidence to prove the commission of a crime.”

The police did not ask for leave to appeal to the House of Lords. Lynn and Waterfield had been convicted on other grounds. No doubt the police at King’s Lynn did not wish to put the ratepayers to the expense of an appeal, simply to clear up the law.

*708

The decision causes me some misgiving. I expect that the car bore traces of its impact with the brick wall. The police had reason to believe that Lynn and Waterfield were implicated in a crime of which the marks on the car might be most material evidence at the trial. If Lynn and Waterfield were allowed to drive the car away, they might very well remove or obliterate all incriminating evidence. My comment on that case is this: The law should not allow wrongdoers to destroy evidence against them when it can be prevented. Test it by an instance put in argument. The robbers of a bank “borrow” a private car and use it in their raid, and escape. They abandon it by the roadside. The police find the car, i.e., the instrument of the crime, and want to examine it for finger prints. The owner of the “borrowed” car comes up and demands the return of it. He says he will drive it away and not allow them to examine it. Cannot the police say to him: “Nay, you cannot have it until we have examined it?” I should have thought they could. His conduct makes him look like an accessory after the fact, if not before it. At any rate it is quite unreasonable. Even though the raiders have not yet been caught, arrested or charged, nevertheless the police should be able to do whatever is necessary and reasonable to preserve the evidence of the crime. The Court of Criminal Appeal did not tell how Reg. v. Waterfield [1964] 1 Q.B. 164, is to be distinguished from such a case. The court simply said, at p. 171, that the police constables were under no duty “to prevent removal of the car in the circumstance.” They did not tell us what was the “circumstance” which took it out of the general rule. It may have been sufficient. I do not know.

Other instances were put in argument to test the position when no one had been arrested or charged. Edmund Davies L.J. drew from his unrivalled experience and told us that the great train robbers, when they were in hiding at Leatherslade Farm, used a saucer belonging to the farmer and gave the cat its milk. When seeking for the gang, before they were caught, the police officers took the saucer so as to examine it for finger prints. Could the farmer have said to them: “No, it is mine. You shall not have it?” Clearly not. His conduct might well lead them to think that he was trying to shield the gang. At any rate fit would have been quite unreasonable.

What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual his privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied:

First:

The police officers must have reasonable grounds for believing that a serious offence has been committed – so serious that it is of the first importance that the offenders should be caught and brought to justice.

Second:

The police officers must have reasonable grounds for believing*709 that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).

Third:

The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.

Fourth:

The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.

Finally:

The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.

Tested by these criteria, I do not think the police officers are entitled to hold on to these passports or letters. They may have reasonable grounds for believing that the woman has been murdered. But they have not shown reasonable grounds for believing that these passports and letters are material evidence to prove the commission of the murder. All they say is that they are of “evidential value,” whatever that may mean. Nor have they shown reasonable grounds for believing that the plaintiffs are in any way implicated in a crime, or accessory to it. In any case, they have held them quite long enough. They have no doubt made photographs of them, and that should suffice.

It was suggested that a mandatory order should not be made for their return. The case, it was said, should go for trial, and the officers made liable in damages if they are wrong. But I think their affidavits fall so far short of any justification for retention that they should be ordered to return them forthwith. I cannot help feeling that the real reason why the passports have not been returned is because the officers wish to prevent the plaintiffs from leaving this country pending police inquiries. That is not a legitimate ground for holding them. Either they have grounds for arresting them, or they have not. If they have not, the plaintiffs should be allowed to leave – even if it means they are fleeing from the reach of justice. A man’s liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest grounds. It must not be taken away on a suspicion which is not grave enough to warrant his arrest.

I would, therefore, dismiss the appeal.

EDMUND DAVIES L.J.

Having already had the advantage of considering the judgment delivered by the Master of the Rolls, I have to say that I agree with it and cannot usefully add anything. I accordingly concur in holding that this appeal should be dismissed.*710 Sir GORDON WILLMER. I also agree.

Representation

Solicitors: E.O. Lane; Lawford & Co.

Appeal dismissed with costs. Leave to appeal. By consent, stay of execution for 14 days. (A. H. B. )

© 2011 Sweet & Maxwell

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PS: Izamov is my Russian name, technically, just like Gary Kasparov, Karpov for the World Class Chess Grand Masters.

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Treating Statutes as ‘Sui Generis’ or ‘Pari Materia’ in Loh Kooi Choon [1977] 2 MLJ 187 (FCJ Raja Azlan Shah) against Tarmizi bin Yacob & Anor v Public Prosecutor and another appeal (ARIFIN ZAKARIA CJ (MALAYA), RICHARD MALANJUM CJ (SABAH AND SARAWAK) AND JAMES FOONG FCJ) – CRIMINAL APPEAL NOS 05–37 OF 2004 (W) AND 05–38 OF 2004 (W) 27 July 2010

October 2, 2011 360 comments

[1977] 2 MLJ 187

LOH KOOI CHOON v GOVERNMENT OF MALAYSIA

FC KUALA LUMPUR

ALI, RAJA AZLAN SHAH AND WAN SULEIMAN FJJ

FEDERAL COURT CIVIL APPEAL NO 157 OF 1975

7 June 1977

Constitutional Law — Fundamental liberties — Liberty of person — Amendment of Constitution with retrospective effect — Whether valid — Restrictive Residence Enactment (FMS Cap 39) — Federal Constitution, Articles 5, 7 and 159

In this case the appellant had been arrested and detained under a warrant issued under the provisions of the Restricted Residence Enactment. The appellant had not been produced before a Magistrate within twenty-four hours of his arrest. He claimed damages but it was held that no action could be brought against the police officer as he was acting in compliance with a warrant issued by a competent authority. The appellant appealed but before the appeal was heard the Federal Constitution was amended by Act A354/76 which provided in effect that Article 5(4) of the Constitution shall not apply to the arrest or detention of any person under the existing law relating to restricted residence and that this amendment shall have effect from Merdeka Day. It was argued that the amendment was unconstitutional.

Held:

  • (1)

Parliament can alter the entrenched provisions of Article 5(4) to remove the provision relating to the production before a Magistrate of any arrested person under the Restricted Residence Enactment as long as the process of constitutional amendment as laid down in Article 159(3) is complied with. When that is done it becomes an integral part of the Constitution; it is the supreme law, and accordingly it cannot be said to be at variance with itself;

  • (2)

if Parliament retrospectively affects vested rights or pending proceedings, then it would be the duty of an appellate court to apply the law prevailing on the date of appeal before it. Subject to the constitutional limitation of Article 7 of the Constitution, to wit, protection against retrospective criminal laws and repeated trials, Parliament would be within the ambit of its competence if it deems fit to legislate retrospectively.

Editorial Note

In view of the demise of Ali F.J. the court asked both counsel for the parties under section 42 of the Courts of Judicature Act, 1964 whether they consented to accept judgments by the remaining judges of the court, it being understood that if there was no majority opinion the proceedings should be re-heard. Both counsel consented.

Cases referred to

Vacher & Sons Ltd v London Society of Compositors [1913] AC 107 118

Henry v Geopresco International Ltd [1975] 2 All ER 702 718

Assa Singh v Mentri Besar, Johore [1969] 2 MLJ 30

IC Golak Nath & Ors v State of Punjab & Ors [1967] 2 SCR 762

Sri Sankari Prasad Singh Dee v Union of India and State of Bihar [1952] SCR 89

Sajjan Singh v State of Rajasthan [1965] 1 SCR 933

Kasavananda Bharati v State of Kerala [1973] SCR Supp 1

Adegbenro v Akintola & Anor [1963] 3 All ER 544 551

Hinds v The Queen [1976] 2 WLR 366 373

In re Pulborough School Board, Bourke v Nutt [1894] I QB 725 737

Barber v Pigden [1937] 1 KB 664 673

Letang v Cooper [1964] 2 All ER 929 933

Latikiro of Buganda v AG [1960] 3 All ER 849 851

1977 2 MLJ 187 at 188

Black Clanson v Papierwerke [1975] 1 All ER 810 815

FEDERAL COURT

Raja Abdul Aziz Addruse ( Dr Yaacob Hussain Merican with him) for the appellant.

Lim Beng Choon (Senior Federal Counsel) for the respondent.

RAJA AZLAN SHAH FJ

It is clear that the question at issue is fraught with political controversy. No doubt the appellant and other persons hold strong views one way or the other on the justice of the impugned Act. I should add that right now no feature of our system of government has caused so much discussion, received so much criticism, and been so frequently misunderstood, than the duties assigned to the courts and the functions which they discharge in guarding the Constitution. For that reason and also because it is rarely that this court is faced with a constitutional question of this kind it is desirable at the outset to make clear the functions of the courts.

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

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

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

The Constitution is not a mere collection of pious platitudes.It is the supreme law of the land embodying 3 basic concepts: One of them is that the individual has certain fundamental rights upon which not even the power of the State may encroach. The second is the distribution of sovereign power between the States and the Federation, that the 13 States shall exercise sovereign power in local matters and the nation in matters affecting the country at large. The third is that no single man or body shall exercise complete sovereign power, but that it shall be distributed among the Executive, Legislative and Judicial branches of government, compendiously expressed in modem terms that we are a government of laws, not of men.

Clause (4) of Article 5 of the Constitution prescribes that a person arrested must be taken before a magistrate within 24 hours so that an independent authority exercising judicial powers may without delay apply its mind to his case. This safeguard is to a large extent covered by the provisions of the Criminal Procedure Code but its incorporation in the Constitution is deemed essential for assuring the minorities that their rights would be constitutionally guaranteed and that they shall not entertain any apprehension of the alleged despotism and arbitrariness of the majority and legislative omnipotence.This safeguard equally applies to any person arrested under the Restricted Residence Enactment (Cap. 39) (see Assa Singh v Mentri Besar, Johore [1969] 2 MLJ 30 “but evidently difficulties have arisen in the practical application of the enactment and hence the need for the amendment.” (see [1976] 2 MLJ xcii).

The question is how safe are the provisions in clause (4) of Article 5 from change. This question arose in a case which the Supreme Court in India in IC Golak Nath & Ors v State of Punjab & Ors [1967] 2 SCR 762 considered en banc. The same question had arisen twice before in India. On the first occasion in Sri Sankari Prasad Singh Deo v Union of India and State of Bihar [1952] SCR 89 the Supreme Court considered the validity of the Constitution First Amendment Act in 1950. One of the arguments against the validity of the amendment was that the power of amendment granted by the Constitution to Parliament did not extend to the abridgment or removal of any of the fundamental rights because such a law would be hit by Article 13 and void. This argument was not accepted. On the second occasion in Sajjan Singh v State of Rajasthan [1965] 1 SCR 933 the Seventeenth Amendment was challenged but this argument, though faintly argued, was not accepted by three judges who constituted the majority. In Golak Nath, supra, another challenge to the same amendment was made and succeeded. By a bare majority of 6:5 it was held that the powers of amendment did not extend to the taking away and abridging of the fundamental rights on the basis that there was no distinction between the Constitution and ordinary law. An Indian writer [ Tripathi on ‘Amending The Constitution’. has aptly summarised theGolak Nath constitutional crisis as an intellectual crisis in reality. He said:

“It does not seem to be a rash hypothesis that if any one around there could successfully state the distinction between the constitution and ordinary law in clear juridical terms at least one judge would have deserted the company of the majority and the power of Parliament to amend the fundamental rights would not have remained eclipsed for six long years …”

Six years later the Supreme Court in Kasavananda Bharati v State of Kerala [1973] SCR Supp 1 had no difficulty in overruling Golak Nath practically without any dissent.

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

1977 2 MLJ 187 at 189

is to be interpreted and applied, and this wording “can never be overridden by the extraneous principles of other Constitutions” — see Adegbenro v Akintola & 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.

Counsel for the appellant before us urged that any amendment affecting the fundamentality of the Constitution should be avoided at all costs. According to him that part of the Constitution must not be touched.In my view, a distinction must be made between those parts of the Constitution which the framers thought should not suffer change and those that can be changed.

Our Constitution prescribes four different methods for amendment of the different provisions of the Constitution:

  • (1)

Some parts of the Constitution can be amended by a simple majority in both Houses of Parliament such as that required for the passing of any ordinary law. They are enumerated in clause (4) of Article 159. and are specifically excluded from the purview of Article 159;

  • (2)

The amending clause (5) of Article 159 which requires a two-thirds majority in both Houses of Parliament and the consent of the Conference of Rulers;

  • (3)

The amending clause (2) of Article 161E which is of special interest to East Malaysia and which requires a two-thirds majority in both Houses of Parliament and the consent of the Governor of the East Malaysian State in question;

  • (4)

The amending clause (3) of Article 159 which requires a majority of two-thirds in both Houses of Parliament.

(For a detailed study of the subject, reference may be made to Tun Suffian, Art Introduction to the Constitution of Malaysia, 2nd edition, Chapter 21).

It is therefore plain that the framers of our Constitution prudently realised that future context of things and experience would need a change in the Constitution, and they, accordingly, armed Parliament with “power of formal amendment”. They must be taken to have intended that, while the Constitution must be as solid and permanent as we can make it, there is no permanence in it. There should be a certain amount of flexibility so as to allow the country’s growth. In any event, they must be taken to have intended that it can be adapted to changing conditions, and that the power of amendment is an essential means of adaptation. A Constitution has to work not only in the environment in which it was drafted but also centuries later. “The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation or property in the generations which are to follow … It is the living, and not the dead, that are to be accommodated.” (Thomas Paine, Rights of Man).

As fundamental rights are not the same as ordinary rights, they can only be suspended or abridged in the special manner provided for it in the Constitution. In my opinion, the purpose of enacting a written Constitution is partly to entrench the most important constitutional provisions against repeal and amendment in any way other than by a specially prescribed procedure. Their Lordships of the Privy Council in Hinds v The Queen [1976] 2 WLR 366 373took the view that constitutions based on the Westminster model, in particular the provisions dealing with fundamental rights, form part of the substantive law of the state and until amended by whatever special procedure is laid down in the constitution for this purpose, impose a fetter upon the exercise by the legislature of the plenitude of its legislative power. A passage from the speech of Lord Diplock who delivered the majority judgment is apposite (page 374):

“One final general observation: where, as in the instant case, a constitution on the Westminster model represents the final step in the attainment of full independence by the peoples of a former colony or protectorate, the constitution provides machinery whereby any of its provisions, whether relating to fundamental rights and freedoms or to the structure of government and the allocation to its various organs of legislative, executive or judicial powers, may be altered by those peoples through their elected representatives in the Parliament acting by specified majorities, which is generally all that is required, though exceptionally as respects some provisions the alteration may be subject also to confirmation by a direct vote of the majority of the peoples themselves. The purpose served by this machinery for ‘entrenchment’ is to ensure that those provisions which were regarded as important safeguards by the political parties in Jamaica, minority and majority alike, who took part in the negotiations which led up to the constitution, should not be altered without mature consideration by the Parliament and the consent of a larger proportion of its members than the bare majority required for ordinary laws. So in deciding whether any provisons of a law passed by the Parliament of Jamaica as an ordinary law are inconsistent with the Constitution of Jamaica, neither the courts of Jamaica nor their Lordships’ Board are concerned with the propriety or expediency of the law impugned. They are concerned solely with whether those provisions, however reasonable and expedient, are of such a character that they conflict with an entrenched provision of the Constitution and so can be validly passed only after the Constitution has been amended by the method laid down by it for altering that entrenched provision.”

The framers of our Constitution have incorporated fundamental rights in Part II thereof and made them inviolable by ordinary legislation. Unless there is a clear intention to the contrary, it is difficult to visualise that they also intended to make those rights inviolable by constitutional amendment. Had it been intended to save those rights from the operation of clause (3) of Article 159, it would have been perfectly easy to make that intention clear by adding a proviso to that effect. I am inclined to think that they must have had in mind what is of more frequent occurrence, that is, invasion of fundamental rights by the legislative and executive organs of the State by means of laws, rules and regulations made in exercise of legislative power and not the abridgment of such rights by amendment of the Constitution itself in exercise of the power of constitutional amendment. That power, though it has been entrusted to Parliament, has been so hedged about with restrictions that its exercise can only be made after”mature consideration by Parliament and the consent of a larger proportion of its members than the bare majority required for ordinary laws.”

1977 2 MLJ 187 at 190

There have also been strong arguments in support of a doctrine of implied restrictions on the power of constitutional amendment. A short answer to the fallacy of this doctrine is that it concedes to the court a more potent power of constitutional amendment through judicial legislation than the organ formally and clearly chosen by the Constitution for the exercise of the amending power.

I concede that Parliament can alter the entrenched provisions of clause (4) of Article 5, to wit, removing the provision relating to production before the magistrate of any arrested person under the Restricted Residence Enactment as long as the process of constitutional amendment as laid down in clause (3) of Article 159 is complied with. When that is done it becomes an integral part of the Constitution, it is the supreme law, and accordingly it cannot be said to be at variance with itself. A passage from the Privy Council judgment in Hinds v. The Queen, supra, is of some assistance (page 392):

“That the Parliament of Jamaica has power to create a court … is not open to doubt, but if any of the provisions doing so conflict with the Constitution in its present form, then it could only do so effectively if the Constitution was first amended so as to secure that there ceased to be any inconsistency between the provisions and the Constitution …”

This reasoning, in my view, is based on the premise that the Constitution as the supreme law, unchangeable by ordinary means, is distinct from ordinary law and as such cannot be inconsistent with itself. It is the supreme law because it settles the norms of corporate behaviour and the principle of good government. This is so because the Federation of Malaya, and later, Malaysia, began with the acceptance of the Constitution by the nine Malay States and the former Settlements of Penang and Melaka, by the acceptance of it by Sabah and Sarawak that entered the Federation in 1963, as “the supreme law of the Federation … “(clause 1 of Article 4).It is thus the most vital working document which we created and possess. If it is urged that the Constitution is on the same level with ordinary law, then the Constitution is an absurd attempt on the part of the framers, to limit a power, in its own nature illimitable.In the context of clause (1) of Article 160, “law” must be taken to mean law made in exercise of ordinary legislative power and not made in exercise of the power of constitutional amendment under clause (3) of Article 159, with the result that clause (1) of Article 4 does not affect amendments made under clause (3) of Article 159.

In conclusion, I hold that clause (4) of Article 5 is nothing but a constitutional protection which can be taken away or abridged only in the manner in which the Constitution provides. There is a world of difference between legislative immunity and a constitutional guarantee. The Constitution, by its very nature, creates the distinction. A constitutional guarantee cannot be wiped out by a simple legislative process as opposed to constitutional amendment.

Can an amendment of a clause in the Constitution operate with retrospective effect? It was strenuously contended for the appellant that a law which takes away vested right must be presumed to be intended not to operate retrospectively for the simple reason that subsequent change in the law would not prejudice such right. I accept this statement, for which authority is to be found in many cases. But my decision is based on the language of section 4 of the Constitution (Amendment) Act, 1976 (Act A354) which reads:

“Provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day.”

In so far as an Act of Parliament is concerned, the rule of construction is that in order to determine whether it is retrospective in its operation, the language of the Act itself must be looked into bearing in mind that an Act is not to be construed retrospectively unless it is clear that such was the intention of Parliament. If such was the intention that the Act was to be given retrospective effect even in respect of substantive right or pending proceeding, the courts have no alternative but to give effect to the Act even though the consequences might appear harsh and unjust.

The principle that parties are to be governed by the law in force on the date when an action is instituted and any subsequent amendment or alteration cannot affect vested right or pending proceeding, must always be read subject to the corollary that Parliament can always expressly provide that vested right or pending proceeding be affected by the amendment of the law.

If Parliament retrospectively affects vested right or pending proceeding, then it would be the duty of an appellate court to apply the law prevailing on the date of appeal before it. There is abundant authority for the proposition that an appellate court is entitled to take into consideration facts and events which have come into existence since the judgment under appeal was delivered: see In re Pulborough School Board, Bourke v Hutt [1894] I QB 725 737 and Barber v Pigden [1937] 1 KB 664 673.

It cannot be gainsaid that Parliament is endowed with plenary powers of legislation and that it is within the ambit of its competence to legislate with prospective or retrospective effect. Retrospective legislation is one of the incidents of plenary legislative powers and as such is not required to be spelt out in the Constitution. Subject to the constitutional limitation of Article 7 of the Constitution, to wit, protection against retrospective criminal laws and repeated trials, Parliament would be within the ambit of its competence if it deems fit to legislate retrospectively. There is no such restriction of legislative power with regard to restrictive residence. In the absence of any constitutional provision against retrospective legislation with regard to restrictive residence it is not right to argue that Parliament should apply such a restriction. “The ultimate touchstone of constitutionality is the Constitution itself and not any general principle outside it” — per Frankfurter J.

The appeal is dismissed. No order as to costs.

WAN SULEIMAN FJ

The appellant was the plaintiff in High Court K.L. Civil Suit No. 729 of 1973.

By a Summons-in-Chambers under Order 25 rule 2 of the Rules of the Supreme Court the following points of law raised in the defence of the respondent/defendant came up for determination before the trial:—

1977 2 MLJ 187 at 191

  • (a)

whether the arrest of the plaintiff by the defendant, or its agents or servants on the 19th day of September, 1972 and subsequent detention of the plaintiff without him being produced before a magistrate within 24 hours is lawful by reason only of the validity of the warrant issued by the Minister of Home Affairs dated 13th day of September, 1972 under which the plaintiff was arrested, taking into account the provisions of section 32 of the Police Act No. 41 of 1967 and section 27 of the Prisons Ordinance No. 81 of 1952 and read with section 6 and/or section 39 of the Government Proceedings Ordinance, 1956; and

  • (b)

whether the plaintiff’s claim is bad in law by reason only of the failure on the part of the plaintiff to cite the servant and/or the agent of the defendant in his Statement of Claim.

The agreed facts of the case as set out in the judgment of the learned trial judge are as follows:—

On or about September 19, 1972, the Government of Malaysia by its servants or agents arrested the plaintiff under the authority of a Warrant of Arrest and Detention issued pursuant to the provisions of the Restricted Residence Enactment (F.M.S. Cap. 39) and thereafter detained the plaintiff at the Alor Star prison. On November 21 the same year, the plaintiff caused to be made to the High Court at Alor Star an application for an order that a Writ of Habeas Corpus ad Subjiciendum be issued directing the commissioner of Prisons, Malaysia, to have the plaintiff’s body produced before the said court or, alternatively, for an order that the said Commissioner to show cause as to why the plaintiff should not be set at liberty. The documents pertaining to the said application were served on the said Commissioner of Prisons and on the Minister of Home Affairs on or about November 24, 1972. Before the application was set for hearing, i.e. on November 29, 1972, the plaintiff was released and allowed to return to his house at about 9.00 a.m. However, at about 4.00 p.m. on the same day, the plaintiff was re-arrested under a fresh Warrant of Arrest and Detention issued by the Minister of Home Affairs. The plaintiff accordingly claims damages against the defendant for wrongful imprisonment or detention from September 19 to November 29, 1972. He also claims for exemplary damages in respect of the second arrest and detention.

The learned trial judge held on the first issue, that since the omission on the part of the Police Officer and the Prison Officer in not producing the plaintiff before a magistrate within 24 hours of his arrest was an act in compliance with a warrant issued by a competent authority, they are protected from liability in tort by section 32(1) of the Police Act, 1967 and section 27 of the Prisons Ordinance, 1952. In consequence his Lordship held that no proceedings for damages against them personally can be maintained, so that the defendant in Civil Suit No. 729 of 1973 i.e. the Government of Malaysia is also protected from being sued by virtue of section 6(1) of the Government Proceedings Ordinance, 1956 read in conjunction with section 39 of the same Ordinance.

On the second issue his Lordship held for the reasons given in his judgment that the Statement of Claim was nor bad in law.

The appellant/plaintiff was ordered to pay costs of the application. The hearing before the learned judge was on October 17, 1975 and judgment delivered the following day.

In the memorandum of appeal, learned counsel for the appellant relied largely on the decision of this court in Assa Singh v Mentri Besctr Johore [1969] 2 MLJ 30. In that case this court held that though the Restricted Residence Enactment authorising the detention and/or the deprivation of liberty of movement of the subject did not have provisions similar to those in clauses (3) and (4) of Article 5 of the Constitution, this did not make it unconstitutional; and that despite such inconsistency with the Constitution, the Enactment was in force, but it must be applied with such adaptations as might be necessary to bring it into accord with the Constitution. It was also held that the provisions of clauses (3) and (4) of Article 5 of the Constitution should be read into the provisions of the Enactment.

The memorandum of appeal was filed on or about the 24th of June, 1976. However, with effect from August 27, 1976 Act A354/76 made the following amendment to Article 5(4) of the Constitution by adding this proviso to that clause:—

“Provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day.”

The result of this amendment if valid would be to reverse with retrospective effect the decision in Assa Singh’s case.

Raja Abdul Aziz for the appellant submitted that the overall effect of the old Article 5 would have opened Government to a suit for wrongful imprisonment in this case, but the retrospective operation of the amendment if validly made would be to give Government complete protection.

The preliminary point therefore taken by learned counsel was — Is this amendment A354/76 constitutional? Raja Abdul Aziz’s submission is briefly this:

Under Article 159, the Constitution may be amended by federal law. A law passed to amend the Constitution is law within the meaning of the term “law” in Article 4 of the Constitution, that unlike the Indian Constitution, because of the manner in which the Indian Article 383 is worded, there is no distinction between a law passed under our Article 159 and a law passed under any other Article of our Constitution.

Article 13(1) of the Indian Constitution reads:

“All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, (i.e. Part III ‘Fundamental Liberties’) shall, to the extent of such inconsistency, be void.”

Article 13(2) provides that any future law enacted by any authority in India which takes away or abridges

1977 2 MLJ 187 at 192

rights conferred by Part III and any provision thereof shall be void to the extent of such contravention.

The definition of law in Article 13(3), though it includes both the ordinary legislative power of Parliament and such other matters as customs and usages, does not include a law amending the Constitution which is placed on an independent footing under Article 368. (See Basu’s Commentary on the Constitution of India, 5th Ed. Vol. 1).

It has been held that the Indian Parliament is competent to make amendments in derogation of fundamental rights by an amending Act in conformity with the requirements of Article 368. (5) (See also Kesavananda Bharati v State of Kerala [1973] SCR Supp 1).

In this country, Federal law, he points out, includes (under Article 160) any Act of Parliament. A law passed under Article 159 would have to follow the same legislative procedure as is prescribed in Article 66, like any other Act of Parliament, before it becomes Federal law.He arrives at the conclusion that the power under Article 159, though seemingly wide, is in truth non-existent since any law passed to amend the Constitution must inevitably be inconsistent with the Constitution, and must therefore because of Article 4, be void.

He then referred to three decisions: Letang v Cooper [1967] 2 SCR 762, Latikiro of Buganda v AG [1952] SCR 89 and Black Clauson v Papierwerke [1965] 1 SCR 933 as aids to construction best summed up in the headnote to the last mentioned authority thus:

“Where there is an ambiguity in a statute the court may have regard to the report of a Committee presented to Parliament containing proposals to legislation which resulted in the amendment of the statute, in order to determine the ‘mischief’ which the statute was intended to remedy.”

Having thus laid the foundation, he then referred to various paragraphs of the Report of the Federation of Malaya Constitutional Commission 1957, particularly paras. 161 and 162. The substance of his arguments, if I understand him aright, is that the Fundamental Rights provision constituted a guarantee and once having been so guaranteed, cannot be amended. Whilst conceding that these fundamental liberties are not absolute, he relies on the wording of Articles 7(1), 9(3) and 10 as support for the proposition that the power of Parliament to pass laws to restrict these freedoms must be circumscribed by or be subject to the provisos to be found in Part II only. For instance, Parliament could pass laws to punish the subject for acts or omissions, or to enhance punishment, but not retrospectively (Article 7(1)). The right of every citizen to move freely throughout the country and to reside in any part of it may be modified or be circumscribed by law only for the purposes set out in Articles 9(2) and 9(3). Again the right to freedom of speech guaranteed by Article 10(1)(a), to assemble peaceably by Article 10(1)(b) and to form associations by Article 10(1)(c) can only be restricted by laws passed in accordance with clauses 2(a), 2(b), 2(c) and (3) respectively.

Article 149 is relied upon as another buttress to his argument that the guarantees in Part II of the Constitution cannot be whittled away except under the stringent limitations imposed by the Constitution itself. Clause (1) thereof specifically permits such legislation against subversion to be passed “notwithstanding that it is inconsistent with any of the provisions, inter alia, of Articles 5, 9 or 10”; in other words, without specific provision on that behalf written into the Constitution, there can be no amendment made to Articles 5, 9 or 10 or the other Articles on Fundamental Liberties coming within Part II of the Constitution.

Whilst I would agree that the word “law” in Article 4 means all laws which Parliament is competent to pass, including federal laws passed to amend the Constitution, I fail to note any ambiguity when Articles 4 and 159 are read together.

Paragraph 80 of the Constitutional Commission Report, as one would expect, considered this important matter, and recommended that “the method of amending the Constitution should be neither so difficult as to produce frustration nor so easy as to weaken seriously the safeguards which the Constitution provides”. Article 159(3) provides that (except for the provisions of lesser importance set out in clause 4) all amendments require the support of the votes of not less than ⅔ of the total number of members in each House.

Not only was amendment by a special majority in both Houses recommended by the drafters of the Constitution. One should also look at another provision of the Constitution to see what happens when the special requirements of Article 159 have been satisfied. Like any other Bill, a Constitution amending Bill would become law (under Article 66(5)) on being assented to by the Yang Dipertuan Agung, and as Senior Federal Counsel rightly points out, thenceforth becomes part of the Constitution, becomes integrated therein. The situation therefore cannot arise where it can ever be said to be inconsistent with the Constitution.

A more intriguing point raised was that there can be by implication parts of the Constitution which cannot be subject to any form of amendment whatsoever. In taking this line of reasoning, Raja Abdul Aziz appeared to be advancing the majority decision in an Indian Supreme Court decision of Golaknath v State of Punjab [1967] 2 SCR 762 wherein 6 out of a special Bench of 11 judges had overruled previous decisions and taken the view that though there is no express exception from the ambit of Article 368, the Fundamental Rights included in Part III of the Indian Constitution cannot, by its very nature be subject to the process of amendment provided for in Article 368, and that if any of such rights is to be amended, a new constituent Assembly must be convened for making a new Constitution or for radically changing it. (See Basu’s Commentary on the Constitution of India, 5th Edition, Vol. 5, page 495).

In the later decision of the Supreme Court Kesavananda v The State of Kerala [1973] SCR Supp 1, it was held inter alia at page 4, by a majority:

  • (i)

The decision of the majority in Golaknath that the word “law” in Article 13(2) include amendments

1977 2 MLJ 187 at 193

to the Constitution and that the article operated as a limitation upon the power to amend the Constitution in Article 368 is erroneous and is over-ruled;

  • (ii)

The power of amendment is plenary (full or complete). It includes within itself the power to add, alter or repeal the various articles of the Constitution, including those fundamental rights;

  • (iii)

The power to amend does not include the power to alter the basic structure or frame-work of the Constitution so as to change its identity;

  • (iv)

(Which on the face of it seems to be inconsistent with issue (iii): There are no inherent or implied limitations on the power of amendment under Article 368.

Only issues (i) and (ii) are relevant for the purposes of this appeal. I have referred to issues (iii) and (iv) because counsel for appellant has thought fit to broaden the scope of his arguments by reference to them.

It should be noted that the judges supporting the majority view are not the same in all four issues. That there should be such a diversity of views among the leading jurists in India show that what appears at first to be a straightforward matter of interpretation of the written word has become complicated by the doctrine of “basic structure or framework”, those parts of the Constitution which are regarded by proponents of this doctrine as being of special sanctity.

Thus Sikri C.J. was (at page 164) “driven to the conclusion that the expression ‘amendment of this Constitution’ in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to fundamental rights, it would mean that while fundamental rights cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest.” and at page 165 — “The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same.” The basic structure, he said, consists of: (1) Supremacy of the Constitution; (2) Republican and Democratic form of Government; (3) Secular character of the Constitution; (4) separation of powers between the Legislature, the executive and the judiciary; and (5) Federal character of the Constitution.

The restriction upon the amending power of the Indian Parliament, according to this view arises from what is contained in the Preamble to the Indian Constitution.

Coming back to the issue before us, there is thus persuasive authority that whilst abrogation of the fundamental rights may not come within the ambit of our Article 159, reasonable abridgement of such rights are constitutional; that Parliament should decide when such amendment is necessary and it is not for this court to question the wisdom or need for such amendment.

I do not feel that the issue before this court would call for my view on whether there are indeed inherent or implied limitations to the power of amendment under Article 159, and must perforce confine myself to the issue before us viz. is the amendment to the fundamental right set out in Article 5 by Act A354/76 constitutional?Nor do I feel called upon to answer the broader issue of whether the power to amend includes the power to abrogate a fundamental right.

The power to amend would not, in this country, be restricted by anything set out in a Preamble for there is no Preamble to our Constitution. It seems to me to be clear that if there is to be any restriction to the right to amend any of the fundamental rights set out in Part II, such restriction would have been.set out in one of the various clauses of Article 159 itself.

Another point raised by learned counsel for the appellant is the constitutional validity of this retrospective amendment. Counsel concedes that this is not a criminal matter so that there is no question of violating Article 7. His reference to the Corpus Juris Secundum, Vol. 16A, page 90, on Retrospective Laws does not further his cause, for even in the U.S., in the absence of express provision in the U.S. Constitution, no law is invalid merely because it is retrospective in operation (see page 94, section 415).

Mr. Lim has drawn our attention to a passage in Bindra’s Interpretation of Statutes, 6th Ed., page 862, where under the heading “Prospective and retrospective operation” the following excerpt is relevant:

“Constitutional provisions, like statutes, always operate prospectively and not retrospectively unless words used … clearly indicate that a retrospective intention is intended …

But an express intention that a constitution shall operate retrospectively will be enforced. Nor will a retrospective intention clearly manifest be avoided by consideration of inconvenience or hardship.”

The effect of this amendment to Article 5 is to deprive the appellant of the protection afforded to him by the ruling of this court in Assa Singh’s case, that he cannot sue for damages for what would otherwise be unlawful detention for the period ending November 29, 1972, since it is clear that this amendment is constitutionally valid.

This appeal in substance questions the validity of a law made by Parliament, in the words of Article 4(3) of the Constitution, “on the ground that it makes provision with respect to any matter with respect to which Parliament … has no power to make laws …” What Raja Abdul Aziz says amounts to this: Parliament cannot amend any of the Fundamental Liberties Articles beyond what is expressly permitted by Part II itself. I should therefore treat this appeal as a proceeding for a declaration such as is envisaged in Article 4(3) and I declare that the amendment to Article 5(4) by Act A354/76 is valid.

I would therefore dismiss the appeal. No order as to costs.

Appeal dismissed.

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

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

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

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

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

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

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

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

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

    4 MLJ 1 at 3

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

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

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

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

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

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

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

Cases referred to

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

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

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

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

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

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

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

Legislation referred to

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

Penal Code s 34

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

Richard Malanjum FCJ (delivering judgment of the court)
INTRODUCTION

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

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

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

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together as the appellants.

FACTUAL BACKGROUNDS

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

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

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

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

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

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

4 MLJ 1 at 7

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

[10] It was therefore agreed during the briefing:

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

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

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

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

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

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

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

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

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

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

[20] The transaction between PW10 and the appellants were witnessed by Chief Inspector Fisol (‘PW5′) who led the police that night and Det Cpl Rosdi (‘PW8′). They were about 10–15 meters away from the car of PW10. They identified the first appellant as a tall, well-built man wearing a red short–sleeve T–shirt and dark jeans while the second appellant was wearing a white T–shirt and dark pants.

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

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

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

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

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

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

4 MLJ 1 at 10

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

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

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

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

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

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

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

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

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

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

ISSUE OF CONSENT ON THE AMENDED CHARGE

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

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

4 MLJ 1 at 12

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

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

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

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

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

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

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

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

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

4 MLJ 1 at 13

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

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

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

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

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

…

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

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

4 MLJ 1 at 14

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

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

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

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

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

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

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

4 MLJ 1 at 15

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

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

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

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

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

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

Appeals dismissed and appellant’s conviction and sentence affirmed.
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IN PARI MATERIA

IN PARI MATERIA. Upon the same matter or subject. Statutes in pari materia are to be construed together. are to be construed together.

[Latin, Of the same matter; on the same subject.] The phrase used in connection with two laws relating to the same subject matter that must be analyzed with each other.

For example, the federal gift tax provisions supplement the federal estate tax provisions. The two are in pari materia and must be read together because the gift tax provisions were enacted to prevent the avoidance of estate taxes.

http://www.answers.com/topic/pari-materia

(sū’ī’ jĕn’ər-ĭs, sū’ē)
adj.
Being the only example of its kind; unique: “sui generis works like Mary Chesnut’s Civil War diary”(Linda Orr).

Sui generis ( /ˌsuːaɪ ˈdʒɛnərɪs/;[1] Latin: [ˈsʊ.iː ˈɡɛnɛrɪs]) is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics.[2] The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept.

http://en.wikipedia.org/wiki/Sui_Generis_%28Latin_expression%29

Adj. 1. sui generis– constituting a class of its own; unique; “a history book sui generis”; “sui generis works like Mary Chestnut’s Civil War diary”

single – existing alone or consisting of one entity or part or aspect or individual; “upon the hill stood a single tower”; “had but a single thought which was to escape”; “a single survivor”; “a single serving”; “a single lens”; “a single thickness”
Based on WordNet 3.0, Farlex clipart collection. © 2003-2008 Princeton University, Farlex Inc.

http://www.thefreedictionary.com/sui+generis

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