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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”

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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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