1 Program Sarjana Kepengetuaan Institut Pengetua, Universiti Malaya TUGASAN KURSUS 4 PERUNDANGAN PERSEKOLAHAN Nama Calon Name of Candidate

No. Matrik Matric number No. Kad Pengenalan Tajuk K ertas Projek Title of Project Paper : AZMAN BIN ADNAN : PGE99021 : : 650705-01-6139 KOLEKSI KES-KES MAHKAMAH BERKAITAN PENDIDIKAN DI MALAYSIA Nama Pensyarah Name of Lecturer Bidang Pengkhususan Area of Specialisation : Jab atan Department Fakulti Faculty Universti University : PROF. DR. HUSSEIN AHMAD : KEPENGETUAAN : INSTITUT PENGETUA : PENDIDIKAN : UNIVERSITI MALAYA

2 Kertas Projek Untuk Semester 2 Sesi 2000/2001 [1984] 1 CLJ 320 (Rep) [1984] 1 CLJ 232 RAVINDRAN P. MUTHUKRISHNAN v. MALAYSIAN EXAMINATIONS COUNCIL FEDERAL COURT, KUAL A LUMPUR SALLEH ABAS CJ (MALAYA) HASHIM YEOP SANI FJ SYED AGIL BARAKBAH FJ [CIVI L APPEAL NO. 286 OF 1983] 16 JANUARY 1984 |320| JUDGMENT Hashim Yeop Sani FJ: Th is appeal arose out of a student's dissatisfaction about the Malaysian Examinati ons Council's decision to annul his Sijil Tinggi Pelajaran Malaysia results awar ded to him in 1982. The Council apparently did this based on the undisputed fact that his scribbled notes |321| were found on his table during an examination on a Chemistry paper. Basically his complaint was that he had already explained th e circumstances leading to a discovery of the scribbled notes on his table and s econdly he was not given an opportunity to be heard before his examination resul ts were annulled by the Council. On 17 March 1983 the STP results were released and the appellant obtained the results slip with annulment of the Chemistry resu lts endorsed on the slip. He appealed for a review of this annulment to the Mala ysian Examinations Council in his letter dated 27 March 1983. On 3 June 1983 he wrote again to the Council to expedite the hearing of his appeal. In the meantim e the appellant had applied for a place in the local universities as well as in the University of Singapore. Ultimately only the Universiti Sains Malaysia Penan g offered him a place in the Science Course Year 1. On 9 July 1983 the Malaysian Examinations Council notified the appellant that the Council in exercise of its powers under s. 9 of the Malaysian Examinations Council Act 1980 had annulled a ll his results in the 1982 examination. The power of the Council is apparently c ontained in s. 9 of the Act which reads as follows: The Council shall, in relati on to a specified examination, enjoy the prerogative of awarding and withdrawing certificates, withholding and cancelling the results of any candidate, and barr ing any person from taking the examination. The order to disqualify his examinat ion results was made by the Council on 6 July 1983. He received the order on 15 July 1983. Order 53 r. 1A of the Rules of the High Court, 1980

3 provides that leave to apply for an order of certiorari shall not be granted unl ess made within six weeks after the date of the proceeding objected to except wh ere the delay is accounted for to the satisfaction of the Court or Judge to whom the application is made. Therefore if time began from the date the Council's de cision was served, that is on 15 July 1983, then the period expired on 22 August 1983 in which case the application was 8 days out of time. If time was computed from the date of the decision of the Council, then the application would be 13 days out of time. The trial Judge heard the appellant's explanation for the dela y. Briefly his explanation was that by 6 July 1983 the appellant had already bee n admitted into the Universiti Sains Penang. It was also stated in his affidavit that the notification of the Council was not brought to his solicitor's attenti on until much later. The explanation for the delay was not accepted by the trial Judge and he ruled that the delay had not been satisfactorily explained. Lookin g at the explanation we cannot honestly say that the Judge was wrong in rejectin g the explanation as being unsatisfactory. The meat of the complaint of the appe llant is contained in para. 14 of his affidavit (p. 9) supporting his applicatio n for leave which affidavit also purported to apply for an enlargement of time. It is clear that the application for an enlargement of time was not made in a pr oper manner as the application in the notice of motion was for leave to apply fo r an order of certiorari. The application in the notice of motion itself being o ut of time was therefore not properly before the Court. The Judge dealt with two aspects of what he thought was the issue before him. Firstly he dealt with the reason for the delay in applying for an enlargement of time. Secondly he dealt w ith the merits of the case if the explanation for the delay was accepted. In our view the whole issue is clearly one of jurisdiction. In the event only the firs t consideration of the Judge is relevant. Since the Judge rejected the explanati on for the delay it follows that the Court had no jurisdiction to hear the appli cation for leave for an order |322| of certiorari. Whether the application for a n order of certiorari had merits or not was irrelevant. This principle is implic it in Mersing Omnibus Sdn. Bhd. v. Minister of Labour and Manpower [1983] 2 MLJ 54 . There has been no jurisdiction to hear the application for certiorari becau se Order 53 r. 1A of the Rules of the High Court 1980 expressly directs that lea ve shall not be granted "unless the application is made within six weeks after t he date of the proceeding". There are constraints which may or may not be necess ary but brought about by a technicality of procedure but which the Court has to enforce. A more enlightened situation would seem to obtain from the new English Supreme Court Practice (1979) which brought forth the provision ( O. 53 r. 4 ) t hat leave to apply for judicial review will be refused only if there has been "u ndue delay" or "unreasonable delay" in making the application. But the Rules of the High Court, 1980 are our own rules of procedure and we must abide by them as they appear. Appeal dismissed with costs.

4 [1987] CLJ 760 (Rep) [1987] 1 CLJ 588 LONGMAN (M) SDN. BHD. v. PUSTAKA DELTA PELAJARAN SDN. BHD. HIGH COURT MALAYA, KU ALA LUMPUR GUNN CHIT TUAN J [CIVIL SUIT NO. C 615 OF 1981] 22 SEPTEMBER 1986 COP YRIGHT: Action by plaintiff for infringement of copyright in a text-book transla ted from English to Bahasa Malaysia - General arrangements, language and feature s and errors similar to plaintiff's text - Whether book protected under Copyrigh t Act 1969 - Substantial part of plaintiff's book - Whether within meaning of s. 8(1) of the Act . This was an action by the plaintiff for infringement of copyr ight in a text-book which was translated from a manuscript in English to Bahasa Malaysia by 3 Malay translators who were commissioned by it. The plaintiff conte nded that they were sole owners of the copyright in a book entitled "Kursus Ulan gkaji Rampaian Sains" ("the said book"). The plaintiff first published the said book in 1979 and it was a book of general science for students preparing for the SPM examinations. The Bahasa Malaysia version was first published in 1979 and t he reprint edition was published in 1980 or closer to 1979. Since 1979, the plai ntiff has not assigned the copyright to anyone nor has a licence been granted by the plaintiff to anyone to publish or reproduce it. 50,000 copies of the first edition of the said book were sold quickly but sale of the reprint was badly aff ected after the defendant had brought out their book in 1980. The defendant's bo ok was entitled "Kursus Lengkap Peperiksaan SPM Rampaian Sains"; the general arr angements, language and features and errors of which are similar to those of the said book. Held: [1] The plaintiff's book as a whole was original and protected by copyright under the Copyright Act 1969 ("the Act") . [2] In considering whet her what had been copied amounted to a substantial part of the plaintiff's book within the meaning of s. 8(1) of the Act , what the Court had to consider was th e quality rather than the quantity of the pirated parts produced. The diagrams a nd tables are very vital parts of the plaintiff's book and that a substantial pa rt had therefore been reproduced in the defendant's book. [3] The copyists of th e relevant diagrams were relieved of the necessity of using their own skill and labour in reproducing those tables and diagrams and had therefore taken a free r ide on the efforts of the original author and artist. [4] The parts taken were d one animo furandi, that is with an intention on the part of the copyists of savi ng themselves time and labour. [5] The defendant's use of the parts taken into t he defendant's book was such as to compete with and affect the sales of the plai ntiff's book as a result of which the plaintiff had to decide not to publish fur ther editions. |761| [6] The injunction was granted and the defendant was ordere d to deliver up all infringing copies and plates. An inquiry was also ordered as to damages or at plaintiff's option an account of profits and payments of all s ums found due with interest thereon.

5 Cases referred to: Byrne v. Statist Company [1914] 1 KB 622 Scott v. Stanford Li mited [1867] 3 Equity Cases 718, 720, 724 Ladbroke (Football) Ltd v. William Hil l (Football) Ltd. [1964] 1 WLR 273 Legislation referred to: Copyright Act 1969 , s. 2(1) , 3 , 4, 4(2), 4(2)(a), 4(2)(b) , 5 , 8(1) , 12(1) For the plaintiff - S.F.Wong M/s. Shearn Delamore&Co. For the defendant - Choong Yik Son; M/s. Syarikat Choong Yik Son

6 [1998] 1 CLJ 285 FAIRVIEW SCHOOLS BHD v. INDRANI RAJARATNAM&ORS COURT OF APPEAL, KUALA LUMPUR MAH ADEV SHANKAR JCA MOKHTAR SIDIN JCA DENIS ONG JCA [CIVIL APPEAL NO: W-02-763 OF 1 996] 15 NOVEMBER 1997 |304| JUDGMENT Mahadev Shankar JCA: Judgment 1 This is an appeal against an order to wind-up the appellant (the company). The company's ap plication in the High Court for a stay of the winding-up proceedings was refused . The appeal was initially listed for hearing on 30 August 1997. |305| In the Hi gh Court Messrs. Azhar&Wong filed a notice of intention to appear on petition on behalf of 98 "creditors" whose children were then studying in the Fairview Scho ols, and another such notice on behalf of 57 persons who were contributories eac h holding 50 shares in the company. Mr. Davidson was instructed to represent the m as counsel. They (the opposing contributories and creditors) opposed the petit ion. So did the company. There was no conflict of interest. The petitioners were also contributories of the company. Mr. P.S. Sundram owned no shares in the com pany. He was the only person who appeared to support the petition. He had earlie r filed a civil suit against the company which was still pending. After being se rved the appeal record the respondents filed a motion praying for an order that: (i) the appeal be struck out on the ground that the persons who had brought it had no locus standi; (ii) alternatively that the directors of the company pay in to court RM50,000 by way of deposit as security for costs and expenses incidenta l to this appeal; (iii) that the costs of this application be paid by the respon dents in any event. These respondents who were the petitioners in the court belo w are hereafter referred to as "the petitioners". Another motion was filed by on e Pargash Singh and Chee Soo Teng (the proposed interveners) praying that they b e permitted to intervene in this appeal. At all material times, the children of the proposed interveners had been pupils in the schools, and both of them were c ontributories of the company in the sense that each held 50 shares in the compan y. Their names were not included in either of the lists of persons intending to appear in the High Court. Pargash Singh and Chee Soo Teng claimed in this appeal that they would be representing the interests of the opposing contributories an d creditors. On 3 July 1997 Chian Ngook For filed an affidavit exhibiting the re solution of the board of directors made on 10 December 1996 that the company do prosecute this appeal and Azman Davidson&Co. be appointed to act for the company . The appeal eventually came up for disposal on 6 October 1997. We heard the mot ion to intervene first. Raja Aziz, as counsel for the proposed intervener referr ed us to s. 289 of the

7 Companies Act 1965 (the Act) which encourages the court to have regard to the wi shes of the creditors and contributories "as |306| to all matters relating to a winding-up". He also referred to Wei Giap Construction Co. (Ptd) Ltd. v. Intraco Ltd. [1979] 2 MLJ 4 @ p. 6 where D'Cotta J dealt with s. 289 of the Singapore A ct and referred to Palmer's Company Law (Twentieth Edn.) at p. 701 . Infraco obt ained the order to windup because Wei Giap was unable to pay its debt. Some of t he creditors opposing the petition had filed affidavits in the High Court claimi ng that if Wei Giap was allowed to continue to operate, their chances of recover y would be greater. These creditors had not filed any independent appeal. The on ly named appellant on record against the winding-up order was Wei Giap, and the opposing creditors were not separately represented in the appeal. The issues bef ore us are not the same. Raja Aziz said that in addition to the proposed interve ners he also represented the opposing contributories and creditors, on whose beh alf a submission had been made to the

8 [1989] 2 CLJ 176 (Rep) [1989] 1 CLJ 1091 NATIONAL UNION OF TEACHERS IN INDEPENDENT SCHOOLS, WEST MALAYSIA v. HAN CHIANG H IGH SCHOOL, PENANG HIGH COURT MALAYA, KUALA LUMPUR EUSOFF CHIN J [CIVIL APPEAL N O. R8-16-18-88] 27 JANUARY 1989 |177| JUDGMENT Eusoff Chin J: The appellant in t his case being dissatisfied with award No. 49/88 handed down by the Chairman of the Industrial Court on 27 February 1988, had applied under s. 33A(1) of the Ind ustrial Relations Act 1967 (IRA) for 9 questions of law to be referred to the Hi gh Court. On 4 May 1988, the Industrial Court granted leave, and agreed to refer to the High Court 4 of the 9 questions which are as follows: 1. ... 2. Whether or not the Industrial Court erred in law when it is held that s. 32 of the Indus trial Relations Act 1967 (the Act) has no relation to the locus standi of the un ion when (on its own finding) at least as at the date of the hearing the applica nt represented at least 35 of its members in Court. 3. Whether or not the Indust rial Court erred in law when it concluded that "... all the teachers who were un ion members therein had either resigned from the union or had left the school be cause their contracts were not renewed ..." without evidence being led by the re spondent on whether or not there are in fact union members still in the employ o f the respondent at any particular point in time or date. 4. Whether or not the Industrial Court in law and or exceeded its jurisdiction in holding that (at par a. 7) "... all the teachers who were union members therein had ... left the scho ol because their contracts were not renewed." When (at para. 5 ) it had held tha t "... thirty-five (of the teachers) had their services terminated by way of non -renewal of their contracts ..." since the reference by the Minister of Labour i n question under which the Industrial Court purported to make the said award was a trade dispute between the applicant and the respondent over failure to reach a collective agreement on terms and conditions of employment. 5. Whether or not in making the said award the Industrial Court misdirected itself in law in faili ng to take into account the undisputed fact and its own finding that at least th e thirtyfive teachers whose dismissals were the subject matter of another trade dispute pending adjudication before another division of the Industrial Court wer e and are members of the applicant at all material times. 6. ... 7. ... |178|

9 8. ... 9. ... Before me there was some arguments as to the jurisdiction and powe rs of the High Court when hearing an appeal under s. 33A of the Industrial Relat ions Act , i.e. whether the High Court is limited to determine only questions re ferred to it. For the purposes of this appeal it is sufficient to quote s. 33A(1 ) and (5) of the Industrial Relations Act which states: 33A. (1) Where the Court has made an award under s. 30(1) it may, in its discretion, on the application of any party to the proceedings in which the award was made, refer to the High C ourt a question of law: (a) which arose in the course of the proceedings; (b) th e determination of which by the Court has affected the award, (c) which, in the opinion of the Court, is of sufficient importance to merit such reference; and ( d) the determination of which by the Court raises, in the opinion of the Court, sufficient doubt to merit such reference. (5) The High Court shall hear and dete rmine the question referred to it under this section as if the reference were an appeal to the High Court against the award of the Court, and may, consequently, confirm, vary, substitute or quash the award, or make such other order as it co nsiders just or necessary. It appears that on the application of any party to th e proceedings in which the award is made, the Industrial Court is not bound to r efer any question of law to the High Court under s. 33A(1) of the Industrial Rel ations Act , unless the Industrial Court is satisfied that that question is one which fulfils all the conditions provided in that section. In exercising its pow er to refer or not to refer a question to the High Court, the Industrial Court w ill have to do so judiciously. But once a question is referred to the High Court , the reference will be treated as if it were an appeal to the High Court, and e ach question referred to the High Court will be treated as a ground of appeal. U nder subsection (5) of s. 33A of the Industrial Relations Act , the High Court w ill hear and determine the reference as if it is hearing an appeal form a lower Court. The facts of the case under appeal are as follows: The dispute is between the Han Chiang High School, Penang (hereinafter referred to as "the school") an d the National Union of Teachers in Independent Schools, West Malaysia (hereinaf ter referred to as "the union") over their failure to conclude a collective agre ement on wages and terms and conditions binding on them. Han Chiang High School, Penang was first established in 1951. Its main objective is to cater for Chines e students who are unable to get admittance into the national type schools. It e mployed teachers on a fixed term basis, subject to renewal on terms as follows: In the event of this contract being renewed, the teacher must notify the managin g committee of his/her acceptance within one week from the date the renewal of t he contract is offerred. Otherwise the offer is deemed to have been rejected. 6. If anyone does not receive any offer of the contract being renewed by the date of expiry of the contract, it will mean that his/her service has been terminated . The school takes no responsibility to inform him/her cessation of his/her empl oyment. |179|

10 Some of the teachers' contracts have been renewed under these terms for more tha n twenty years. During the year 1985/86, the school had in its employ eighty-thr ee teachers. Sometime in 1985, fifty-three of these teachers joined the union an d, on 2 July 1985, the union submitted to the school a claim for recognition und er s. 9(2) of the Industrial Relations Act 1967 . There was no response to the u nion's claim for recognition and, on 28 August 1985 the union reported the matte r to the Director General of Industrial Relations. By a notice dated 23 August 1 986, the Minister of Labour accorded recognition to the union and directed the s chool to take notice of such recognition under s. 9(5) of the Act . On 21 Octobe r 1986, the union submitted a proposal on wages and terms and conditions to the school with a view to entering into a collective agreement binding on them. But there was no response to the union's proposal. On 28 November 1986, the school d ecided not to renew the contracts of all the teachers who were members of the un ion. Each of these teachers received identical notices, as follows: Dear Sir/Mad am, As instructed by the board of directors, we would like to inform you that yo ur service agreement with the school will be expired on 31 December 1986. The bo ard of directors would like to take this opportunity to thank you for your servi ce to the school. On 17 December 1986, the union applied to the High Court, Pena ng for an injunction restraining the school from terminating the services of the teachers who were served with the notice. On 2 January 1987, the High Court in Penang granted injunction prayed for by the union. The school then filed an appe al against the decision of the High Court. In 14 July 1987, the Supreme Court al lowed the appeal of the school and set aside the injunction of 2 July 1987. In i ts written judgment dated 23 November 1987, the Supreme Court added that the Ind ustrial Court was the proper forum to deal with complaints of wrongful dismissal since it was empowered by the Act to order the employer to reinstate the workma n to his former position or a similar position if the Industrial Court should ho ld that the dismissal was without just cause or excuse. The school and the union were then locked in two disputes - one was a dispute over a collective agreemen t on wages and terms and conditions of employment for the teachers employed in t he school, and the other was a dispute over the alleged wrongful dismissal of th irty-five teachers. The dispute over collective agreement was referred to the In dustrial Court by the Minister of Labour on 12 January 1987 for adjudication and the dispute over alleged wrongful dismissal of thirty-five teachers was referre d to the Industrial Court on, 14 August 1987. In the instant case, the Industria l Court is concerned only with the dispute over the collective agreement. The di spute over the alleged wrongful dismissal of thirty-five teachers is before anot her division of the Court. At the hearing in the Industrial Court on 27 July 198 7 and 28 January 1988, the school raised a preliminary issue that the union had no locus standi to represent the teachers in the instant case, as it contended t hat none. of the teachers in the school was a member of the union because out of fifty-three teachers who were members of the union, eighteen had resigned from the union on various dates and thirty-five had their contracts terminated. The s chool then relied on the case of Reading&Bates (M) Sdn. Bhd., Miri v. Sarawak Un ion of Lands |180| & Offshore Drilling Workers [1987] 1 ILR 299 to support its c ontention. The union, on

11 the other hand, submitted otherwise, contending that the case of Reading&Bates ( M) Sdn. Bhd. could be distinguished, as there was no closures of the school here . In Reading&Bates (M) Sdn. Bhd., the Industrial Court held that, since the comp any had closed down and all its employees had left its service, the union had no locus standi as it did not represent anyone in the company over the dispute bet ween the company and the union on collective agreement. The Industrial Court her e made a finding that although the school had not closed down, and was still in operation at the date of hearing, there was not a teacher employed by the school who was a union member because those who were union members had either resigned from the union or because their contracts were not renewed by the school. The I ndustrial Court held that the union could not represent and act in a dispute on behalf of the school teachers who were not its members or no longer its members, and so the union had no locus standi before the Court. As stated earlier, the d ispute concerning the alleged wrongful dismissal of the thirty-five teachers who were union members was referred to another division of the Industrial Court by the Minister on 14 August 1987. That division had not determined and made an awa rd in respect of the dispute on 27 February 1988, when the question of locus sta ndi of the union was heard by the Industrial Court. In holding that the union ha s no locus standi because it no longer had any member, the Industrial Court was in fact adjudicating the dispute of wrongful dismissal of the teachers who were union members, and had come to the conclusion that the teachers' services had be en lawfully terminated. This Industrial Court had no jurisdiction to determine t hat dispute, because that very dispute had not been referred to it by the Minist er, but to another division of the Industrial Court to adjudicate. Further, the finding by the Court that the union had no members was wholly unsupported by evi dence. The Court had therefore reached that finding by assuming erroneously that because no union member was present before it on 27 February 1988, the union ha d no member to represent. It was argued before me that the Industrial Court had to make its award without delay under s. 30(3) of the Industrial Relations Act w hich states : 30.(3) The Court shall make its award without delay and where prac ticable within thirty days from the date of reference to it of the trade dispute or of a reference to it under s. 30(3) . The dispute over the collective agreem ent was referred to the Industrial Court by the Minister on 12 January 1987 and the award on locus standi of the union was made on 27 February 1988. As it is, t here had been already some delay. But under the circumstances, since the Industr ial Court had knowledge that the dispute over the wrongful dismissal and the rei nstatement of teachers was being inquired into by another division of the Indust rial Court, the Court should have stayed further proceedings on the question of locus standi of the union until final determination of the dispute over the rein statement. I allow the appeal with costs, quash the award and make the further o rder that another division of the Industrial Court shall hear this dispute.

12 [1997] 4 CLJ 25 NORDIN YUSMADI YUSOFF v. PUBLIC PROSECUTOR COURT OF APPEAL, KUALA LUMPUR SHAIK D AUD ISMAIL JCA AHMAD FAIRUZ JCA MOKHTAR SIDIN JCA [CRIMINAL APPEAL NO: W-09-60-9 5] 18 JUNE 1997 |30| JUDGMENT Shaik Daud Ismail JCA: The appellant was convicted on 24 February 1994 by the Sessions Court Kuala Lumpur of a statutory rape of a n underage girl, who was then 15 years 11 months, an offence under s. 376 of the Penal Code . The appellant was then 19 years old, a first offender and he had p leaded guilty to the charge. In view of his age the learned Sessions Court Judge called for a probation report on the appellant and after considering the report and the facts of the case, she ordered the appellant to be detained in the Henr y Gurney School until he reaches the age of 21 years. Although the learned Sessi ons Judge did not specifically set out under which provisions of the law she act ed, she presumably did so under s. 40 of the Juvenile Courts Act 1947, (hereinaf ter referred to as 'the Act') . Appellant was accordingly sent to the Henry Gurn ey School and he served his detention there until he reached 21 years of age and was released on 16 January 1995. In the meantime the Public Prosecutor being di ssatisfied with the sentence imposed by the Sessions Court filed a notice of app eal to the High Court on 3 March 1994. Unfortunately the appeal was never heard promptly as it should have been, but was heard on 27 November 1995, by which dat e the appellant had been released from the Henry Gurney School. The learned Judg e allowed the appeal, set aside the order of the Sessions Court, and imposed the minimum term of imprisonment of 5 years as provided by s. 376 of the Penal Code , which term was to commence from the date of the order that is 27 November 199 5. The learned Judge was of the view that pursuant to the mandatory provision of s. 376 of the Penal Code , the Sessions Court was wrong in law to impose any ot her sentence, and that s. 40 of the Act has no relevance. The learned Sessions J udge took into consideration the facts of the case, the probation report on the appellant, the fact that he pleaded guilty and was a first offender and also the serious nature of the offence and she concluded in her grounds of judgment as f ollows: Walaupun apa yang telah dilakukan oleh Tertuduh adalah sesuatu yang seri us yang tidak sepatutnya dimaafkan Mahkamah berpendapat hukuman minima jika disa bitkan dengan kesalahan merogol iaitu 5 tahun penjara adalah berat bagi Tertuduh . Tertuduh dalam usianya yang muda seharusnya diberi peluang untuk memperbaiki d irinya. Dengan menghantarkannya ke penjara dalam usia yang begitu muda tidak aka n mendatangkan apaapa kebaikan kepada Tertuduh malahan akan mendatangkan kemudar atan kepadanya. |31| In view of what she had said above, the learned Sessions Ju dge while appreciating the serious nature of the offence was of the view that in the circumstances of the case, it would be more appropriate to have the appella nt detained in the Henry Gurney School until he reaches the age of 21 years.

13 The issue before this appeal is whether s. 40 of the Act is applicable in cases of this nature. This section confers special powers of the Juvenile Court on the High Court, a Sessions Court and a Court of a Magistrate of the First Class in respect of juveniles and persons of eighteen years and under twentyone years. It provides that: Nothing in this Act other than ss. 15 and 16 shall affect the po wers of the High Court and all the powers which may be exercised under this Act by a Juvenile Court in respect of a juvenile offender may in like manner be exer cised by the High Court; and, in addition, the High Court, a Sessions Court and a Court of Magistrate of the First Class shall have power to order the detention , in a Henry Gurney School, up to but not after his attainment of the age of twe nty-one years, of any person who has attained the age of eighteen years but has not attained the age of twenty-one years at the date of making such order. On ou r reading of this section we find that there are two limbs to it. The first limb provides that the section does not affect the powers of the High Court and all powers which may be exercised under the Act by a Juvenile Court in respect of a juvenile offender may in the like manner be exercised by the High Court. The wor d juvenile here must mean juvenile as defined in s. 2 of the Act to mean, "a per son who has attained the age of seven years and is under the age of eighteen. Th e second limb of the section confers upon the High Court, a Sessions Court and a Court of a Magistrate of the First Class powers to order detention, in a Henry Gurney School, up to but not after his attainment of the age of twenty-one years , of any person who has attained the age of eighteen years but has not attained the age of twentyone years at the date of making such order. It seems clear to u s that the second limb is an additional power under the section conferred on the High Court, a Sessions Court and a Court of the Magistrate of the First Class t o order the detention of any person, not confined to a juvenile as in the first limb. Therefore, on a proper reading of the second limb of s. 40 of the Act , we are of the view that it relates to any person as long as he is above eighteen y ears and under twenty-one years at the date of the making of such order. Taking into consideration the facts of the present case on appeal, and since the appell ant was twenty years old when he was charged in the Sessions Court, we are of th e view that the second limb of s. 40 of the Act squarely applies to him. We are of the view that although a youth of above the age of eighteen can be sent to pr ison but in cases where the Court is of the view, after |32| considering all rel evant factors pertaining to that particular case, that it would be undesirable t o send him to prison and to expose him to hardened criminals, a Sessions Court o r a Magistrate of the First Class, is conferred with the special and additional powers to act under the second limb of s. 40 of the Act , and order such youthfu l offenders to be detained in a Henry Gurney School until he attained the age of twenty-one years, provided that at the time of the making of the order, he was between the ages of eighteen years and below twenty-one years. We are, therefore , of the view that, in the circumstances of this case, it was proper for the lea rned Sessions Judge to act under the second limb of s. 40 of the Act . She came to this conclusion after considering every aspect of the case. In our view, it w ould be wrong to say that, in view of the mandatory nature of s. 376 Penal Code , s. 40 of the Act is irrelevant. We hold that s. 40 of the Act is relevant and applicable even in cases where sentences of imprisonment is mandatory, provided the circumstances of the case justifies it. When imposing the five years sentenc e, the learned Judge cited the case of PP v. Yap Hut Seng [1985] 2 MLJ 143 , als o case of rape committed by a young offender. In that case I had the occasion, a s a High Court Judge, to say that in specific cases the Courts should not place too much emphasis on the fact that the offender was young and a first timer but public interest demands that in such cases a deterrent sentence be imposed. The facts of that case are distinguishable. There the respondent committed rape on t wo very young sisters and in the course of committing the rape, violence was use d and he also robbed them of their meagre

14 jewelleries at knife point. He was convicted on two charges of rape and two char ges of armed robbery. The facts of the present case are far different. There are elements of consent by the complainant, although this is not relevant in view o f her age. The facts also showed that she did not report the incident to anyone until her father threatened her. A medical examination of the complainant on the same day revealed that she was suffering from a venereal disease which further suggest that she must have indulged in sexual activities before this particular incident. Having considered all these, the learned Sessions Judge rightly came t o the conclusion that it would be appropriate and in her best interest to order the appellant to be detained under the second limb of s. 40 of the Act . The lea rned Senior Federal Counsel appearing for the respondent while conceding that s. 40 of the Act is applicable to convictions under s. 376 of the Penal Code , jus t as the provisions of s. 173 and 294 of the Criminal Procedure Code , questions whether the facts of the present case justifies the learned Sessions Judge to a ct under s. 40 of the Act . We are of the view that after considering the facts of this case, we agree that the learned Sessions Judge was justified to exercise her discretion to act under s. 40 of the Act and we feel that this discretion o ught not to be disturbed. |33| Before leaving this matter, we would like to touc h on one other aspect of this case. As we stated earlier, when the learned Judge imposed the five years imprisonment the appellant had been released from the He nry Gurney School and was in fact a free person for a period of ten months. He h ad, therefore, served the order imposed by the Sessions Judge. In our view, when the learned Judge imposed a sentence of imprisonment of five years from the dat e of the appeal, he may have violated the second limb of art. 7 of the Federal C onstitution . Article 7 provides that: (1) No person shall be punished for an ac t or omission which was not punishable by law when it was done or made, and no p erson shall suffer greater punishment for an offence than was prescribed by law at the time it was committed. In imposing the five years imprisonment to take ef fect from 27 November 1995 after the appellant had served the order of detention , the appellant had, more or less, been imposed two sets of sentences from a con viction upon one charge, and the appellant had, therefore, "suffered a greater p unishment for an offence than was prescribed by law." Although the learned Judge said that he took into consideration the time spent in the Henry Gurney School, this to our mind, is not reflected in the sentence which took effect from the d ate of the appeal. For the above reasons, we are of the view that, in the circum stances of this case, the learned Judge sitting in an appellate position ought n ot to have interfered with the discretion of the learned Session Judge. We allow ed the appeal, set aside the sentence of five years imprisonment, and ordered th e appellant to be released forthwith.

15 [1995] 3 CLJ 279 TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN&ANOR. HIGH COURT MALAYA, JOH OR BAHRU DATO' HJ. ABDUL MALIK BIN HJ. ISHAK J [CIVIL SUIT NO. 22-35-1992] 31 MA RCH 1995 |280| JUDGMENT Hj. Abdul Malik bin Hj. Ishak J: The plaintiff was the s enior assistant of Sekolah Rendah Jenis Kebangsaan (Cina) Tuan Poon, Simpang Ren gam (see agreed bundle marked 'B' at p. 4 and compare it with the agreed bundle marked 'A' at p. 6 of para. 4 of the statement of claim which described the plai ntiff wrongly as the headmaster of Sekolah Rendah Jenis Kebangsaan Cina, Kangkar Baru, Yong Peng). He was arrested by the Anti Corruption Agency and charged wit h two counts of criminal breach of trust by public servant under s. 409 of the P enal Code at the Sessions Court, Muar, Johor and as a result of which he was int erdicted w.e.f. 2 July 1988 (see agreed bundle (B) at p. 8). On 2 July 1988, the Sessions Court, Muar, Johor convicted the plaintiff (not clear whether on one o r on both counts) and sentenced him to six (6) months' imprisonment. The plainti ff lodged an appeal and the High Court, Muar, Johor heard the appeal on 6 Decemb er 1989 and adjourned it for decision on 1 April 1990 where it gave decision in favour of the plaintiff. The High Court, Muar, Johor bound over the plaintiff co nditionally upon his entering into a bond to be of good behaviour for a period o f three years under s. 173A(ii)(b) of the Criminal Procedure Code ("CPC") in the sum of RM5,000 without sureties. Unfortunately, there was no written decision. Be that as it may, the State Education Director of Johor in his letter dated 10 April 1990 to the Setiausaha Suruhanjaya Perkhidmatan Pendidikan, Kuala Lumpur r ecommended that the plaintiff be reduced in rank (demoted) with the consequentia l downgrading of his salary scheme. That letter is produced below for ease of re ference: |281| Jabatan Pendidikan Negeri Johor, Jalan Tun Abdul Razak, 80604 Joh or Bahru, Johor. Sulit Ruj. Tuan: SPP.z. 60/1/12-43138/(30) Ruj. Kami: JPNJ/FP.S ULIT.68254/(95) Tarikh: 10 April 1990 Setiausaha, Suruhanjaya Perkhidmatan Pendi dikan, Tingkat 21.32 dan 33, Bangunan Menara Dato' Onn, Pusat Dagangan Dunia Put ra, Jalan Tun Ismail, 50526 Kuala Lumpur. (u.p. Encik Mohd. Zin Bin Ahmad) Tuan, Tindakan Tatatertib Terhadap Encik Tan Chee Meng @ Tan Tek Seng Pegawai Perkhid matan Pendidikan Kategori Bl (Di tempatkan Khas untuk penyandang atas Tanggagaji Guru Besar, Sekolah Rendah Gred 'B'/Penolong Kanan, Sekolah Rendah Gred 'A' Peg awai Perkhidmatan Pendidikan Kat. C2, Tingkatan Khas.) Adalah saya dengan hormat nya merujuk kepada surat tuan Bil. SPP.z.60/1/12-43138/(38) bertarikh 16 Januari 1990 mengenai perkara di atas. 2. Dimaklumkan iaitu dalam perbicaraan kes rayua n oleh Encik Tan Chee Meng @ Tan Tek Seng di Mahkamah Tinggi, Muar pada 1 April 1990 didapati bahawa Mahkamah Tinggi telah

16 memerintah rayuan pegawai tersebut diterima. Hukuman dan sabitan yang dikenakan keatasnya oleh Mahkamah Sesyen Muar diketepikan dan digantikan beliau dilepaskan dengan bersyarat supaya berkelakuan baik selama 3 tahun dari tarikh 1 April 199 0 dibawah Seksyen 173A(2)(b) Kanun Keseksaan dengan ikatan bon berjumlah RM5,000 tanpa penjamin. Bersama-sama ini disertakan satu salinan fotostat Perintah Mahk amah daripada Penolong Kanan Pendaftar, Mahkamah Tinggi Muar Cr. Appeal No. 52-2 -88 bertarikh 3 April 1990 untuk tatapan dan tindakan tuan selanjutnya. Syor Pen garah Pendidikan Johor. Memandangkan pegawai tersebut telah dilepaskan oleh Mahk amah dengan bersyarat supaya berkelakuan baik selama 3 tahun mulai dari 1 April 1990 dan dengan ikatan bon sebanyak RM5,000 tanpa penjamin, Jabatan ini berpenda pat bahawa pegawai tersebut disifatkan sebagai berkelakuan yang telah menjatuhka n reputasi perkhidmatan awam iaitu bertentangan dengan Perintah Am 4(2)(d) Bab ' D' 1980 . Kejujurannya dalam pentadbiran Kewangan sekolah adalah diragukan. Pada pandangan Jabatan ini beliau tidak lagi sesuai untuk menyandang jawatan kenaika n pangkat samada jawatan Guru Besar atau Penolong Kanan di sekolah. Oleh kerana beliau adalah seorang pegawai yang telah ditempatkan atas tanggagaji Khas untuk penyandang sebagai Guru Besar Sekolah Rendah Gred `B'/Penolong Kanan Sekolah Ren dah Gred 'A' Pegawai Perkhidmatan Pendidikan Kategori C2 Tingkatan Khas maka Jab atan ini mengesyorkan supaya Encik Tan Chee Meng @ Tan Tek Seng diturunkan pangk at dan gajinya dari jawatan Penolong Kanan Sekolah Rendah Gred 'A' Pegawai Perkh idmatan Pendidikan Kategori C2 Tingkatan Khas (khas untuk Penyandang) ke jawatan Guru Biasa Pegawai Perkhidmatan Pendidikan Kategori Bl Tingkatan Biasa. |282| S ekian, terima kasih. 'Berkhidmat Untuk Negara' Saya yang menurut perintah, Sdg. (Haji Mahfor bin Baba) Pengarah Pendidikan Johor. s.k. Ketua Setiausaha, Kemente rian Pendidikan Malaysia, Unit Tatatertib, Bahagian Perjawatan dan Perkhidmatan, Paras 6, Block 'J', Pusat Bandar Damansara, 50604 Kuala Lumpur. Surat tuan Bil. KP.S (TT) 0163/13 SJ. 438 (44) bertarikh 24 March 1990 adalah dirujuk. Fail Tim bul. The Setiausaha, Suruhanjaya Perkhidmatan Pendidikan, Malaysia in his letter dated 8 May 1990 addressed to the plaintiff via the State Education Director of Johor decided to dismiss the plaintiff w.e.f. 7 May 1990. That letter was worde d in the following terms: Urusetia. Suruhanjaya Perkhidmatan Pendidikan, (Educat ion Service Commission), Tingkat 21. 32 dan 33, Bangunan Menara Dato' Onn, Pusat Dagangan Dunia Putra, Jalan Tun Ismail, 50526 Kuala Lumpur. Ruj. Tuan: Ruj. Kam i: SPP.Z. 60/1/12-43138/(43) Tarikh : 8 Mei 1990 Encik Tan Chee Meng @ Tan Teck Seng, Melalui dan Salinan:

17 Pengarah Pendidikan, Jabatan Pendidikan Johor, 80604 Johor Bahru. Tuan, Tindakan Tatatertib Saya diarah menyatakan iaitu Suruhanjaya Perkhidmatan Pendidikan sel aku Pihakberkuasa Tatatertib bagi pegawai-pegawai dalam Perkhidmatan Pendidikan telah menerima laporan dari Ketua Jabatan tuan bahawa tuan sebagai seorang pegaw ai yang berjawatan Pegawai Perkhidmatan Pendidikan Kategori C2 Tingkatan Khas (K has Untuk Penyandang) yang bertugas sebagai |283| Penolong Kanan di Sekolah Rend ah Jenis Kebangsaan (Cina) Tuan Poon Simpang Rengam, Johor telah ditangkap oleh Badan Pencegah Rasuah Johor pada 30 April 1986 dan dihadapkan ke Mahkamah Sesyen Muar, Johor pada 3 Mei 1986 atas tuduhan pecah amanah iaitu kesalahan yang bole h dihukum di bawah Seksyen 409 Kanun Keseksaan . Mahkamah Sesyen Muar, Johor pad a 2 Julai 1988 telah memutuskan tuan disabitkan bersalah dan dijatuhkan hukuman penjara selama 6 bulan. 2. Tuan telah mengemukakan rayuan ke Mahkamah Tinggi Mua r, Johor dan Mahkamah tersebut pada 1 April 1990 telah mengenepikan hukuman penj ara 6 bulan yang telah dijatuhkan oleh Mahkamah Sesyen Muar, Johor ke atas tuan dan Mahkamah Tinggi tersebut memutuskan tuan dikenakan ikat jamin berkelakuan ba ik selama tempoh 3 tahun mulai 1 April 1990 di bawah s. 173A(2)(b) Kanun Keseksa an dengan bon jaminan sebanyak RM5,000 tanpa penjamin. Dengan sabitan tersebut, tuan telah menjatuhkan reputasi Perkhidmatan Awam iaitu kesalahan di bawah Perin tah Am 4(2)(d) Perintah-Perintah Am Pegawai Awam (Kelakuan dan Tatatertib) (Bab 'D') 1980 . 3. Setelah menimbang laporan di atas dan berdasarkan kepada Perintah Am 33 dan 35(1) Bab 'D' 1980 , Suruhanjaya ini memutuskan tuan dikenakan hukuma n tatatertib buang kerja berkuatkuasa mulai 7 May 1990. Sekian. Saya yang menuru t perintah, Sdg. (Dato' Shahbudin bin Imam Mohamad) Setiausaha, Suruhanjaya Perk hidmatan Pendidikan, Malaysia, The plaintiff wasted no time and wrote a letter o f appeal dated 18 May 1990 to the Setiausaha, Suruhanjaya Perkhidmatan Pendidika n Malaysia imploring that the punishment in the form of dismissal be reviewed an d substituted with a lesser punishment stressing particularly that the High Cour t, Muar, Johor had discharged him conditionally under s. 173A(ii)(b) of the CPC . For convenience, the plaintiff's letter of appeal is reproduced below: 18 May 1990 Tan Tek Seng @ Tan Chee Meng, 6 Jalan Leban, 83000 Batu Pahat. Setiausaha, Suruhanjaya Perkhidmatan Pendidikan, Malaysia, Tingkat 21, 32 dan 33 Menara Dato Onn, Pusat Dagangan Dunia Putra (PWTC), Jalan Tun Ismail, 50526 Kuala Lumpur.

18 Tuan, Per: Tindakan Tataterib Buang Kerja En. Tan Tek Seng @ Tan Chee Meng bekas PPP Kat. C2 Tingkatan Khas Surat tuan SPP.Z.60/1/12-43138/(43) bertarikh 8 Mei 1990 yang dikemukakan melalui Pengarah Pendidikan Johor adalah dirujuk. |284| 2. Saya merasa sedih dan amat dukacita membaca surat tuan yang menyatakan bahawa s aya telah dikenakan hukuman tatatertib buang kerja. Dengan ini saya ingin memoho n jasa baik tuan merayu terhadap hukuman itu supaya ianya dapat diringankan berd asarkan kepada Perintah Am 35(1) dan (2) dengan alasan seperti dibawah ini. 2.1 Adalah dirasai bahawa keputusan tuan itu amatlah berat jika di bandingkan dengan keputusan yang dijatuhkan oleh Mahkamah Tinggi, Muar. Kes saya ini telah dibeba skan dengan bersyarat dan diikat jamin supaya berkelakuan baik selama tempoh tig a tahun mengikut seksyen 173A(2)(b) (Tanpa Rekod) Aturcara Kanun Jenayah dengan bon yang berjumlah RM5,000 tanpa penjamin. 2.2. Pihak Suruhanjaya belum memberi peluang kepada saya untuk membela diri dan mendengar hujah-hujah di atas tuduhan -tuduhan yang dikenakan kepada saya. 2.3. Saya memohon simpati dan pertimbangan tuan kerana saya telah berkhidmat dalam bidang pendidikan lebih 32 tahun dan ham pir keseluruhan umur dewasa saya telah ditumpukan sepenuhnya untuk kepentingan n egara. 2.4. Saya sekarang berumur 52 tahun, sudah tua, kurang tenaga dan tiada b erpeluang lagi untuk mendapatkan kerja lain jika perkhidmatan saya ini ditamatka n. 2.5. Saya masih mempunyai tanggongan yang berat dan menanggong anak-anak bers ekolah, seorang bapa yang sudah uzur yang tinggal bersama dan lebih-lebih mempun yai isteri yang tidak bekerja. Segala simpanan wang yang ada telah kehabisan ker ana saya tidak mempunyai gaji sejak 2 Julai 1988. 2.6. Rumah kediaman saya masih dalam ansoran. Saya dikehendaki membayar sebanyak RM585 sebulan kepada Malayan Banking. 2.7. Saya mengidap sakit gastrik yang teruk dan terpaksa menelan pill " Zantac" tiap-tiap hari untuk menahan kesakitan perut. Belanja satu pil ialah dua ringgit sehari. 2.8. Saya tidak mempunyai harta benda pun untuk menjamin masa d epan keluarga saya kecuali perkhidmatan saya dengan kerajaan. 2.9. Saya juga tid ak lama lagi akan bersara wajib apabila genap 55 tahun dalam tahun 1993. Dengan alasan-alasan yang dinyatakan di atas saya merayu sekali lagi agar pihak Suruhan jaya akan menimbangkan semula kes saya ini dan demi untuk mendapatkan semula kes saya ini dan demi untuk mendapatkan pertimbangan peri kemanusian berilah peluan g kepada saya untuk bernafas sebelum mengakhiri Hayat saya dengan meringankan se dikit hukuman yang telah dikenakan itu. Saya penuh berharap moga-moga pertimbang an tuan itu akan diberkati dan bagi saya bagaikan "mati akan hidup semula" dan " Nabi Muhamad Pun Dapat Memaafkan Umatnya". Sekian sahaja semoga permohonan saya ini akan mendapat pertimbangan yang istimewa dari pihak Suruhanjaya. Dengan penu h harapan, Saya, yang benar Sdg. Tan Chee Meng

19 S.K. 1. Ketua Setiausaha, Kementerian Pendidikan Malaysia, Bahagian Tatatertib, Paras 6, Blok 'J', |285| Pusat Bandar Damansara, 50604 Kuala Lumpur. 2. Pengarah Pendidikan Johor, Jabatan Pendidikan Johor, 80604 Johor Bahru. This was followe d by a short letter of reply from the Setiausaha, Suruhanjaya Perkhidmatan Pendi dikan confirming that the dismissal was final and this letter is reproduced belo w for scrutiny: Urusetia, Suruhanjaya Perkhidmatan Pendidikan, (Education Servic e Commission), Tingkat 21.32 dan 33, Bangunan Menara Dato' Onn, Pusat Dagangan D unia Putra, Jalan Tun Ismail, 50526 Kuala Lumpur. Ruj. Tuan: Ruj. Kami: SPP.Z.60 /1/12-43138/(49) Tarikh : 28 Mei 1990 Encik Tan Chee Meng @ Tan Tek Seng, No. 6, Jalan Leban, 83000 Batu Pahat, Johor. Tuan, Tindakan Tatatertib Adalah saya mer ujuk kepada surat tuan bertarikh 18 Mei 1990 dan dimaklumkan bahawa keputusan Su ruhanjaya ini yang disampaikan melalui surat dalam kandungan SPP.Z.60/1/1243138/ (43) bertarikh 8 Mei 1990 adalah muktamad. Sekian. Saya Yang Menurut perintah, S dg. (Haji Othman bin Haji Ismail) b.p. Setiausaha, Suruhanjaya Perkhidmatan Pend idikan, Malaysia. S.k.: Ketua Setiausaha, Kementerian Pendidikan Malaysia, Unit Tatatertib, Paras 6, Blok 'J', Pusat Bandar Damansara, 50604 Kuala Lumpur. Penga rah Pendidikan, Jabatan Pendidikan Johor, 80604 Johor Bahru. (Fail tuan: JPNJ/FP . SULIT 68254). |286| At the outset, both parties agreed that there was only one issue which would decide the whole case without having to call witnesses. That issue is this: Whether the binding order made by the High Court, Muar, Johor und er s. 173A(ii)(b) of the CPC could be construed as a "conviction" under paras. 3 , 33 and 35 of the Public Officers (Conduct And Discipline) (Chapter 'D') Gener al Orders 1980 ("GO") and, if the reply was in the positive, the dismissal was s aid to be perfectly legitimate and effected according to law. The word "convicti on" is not defined in the CPC , but it is defined in the GO to include a finding or an order involving a finding of guilt by a criminal court in Malaysia. The p rovisions of sub-section (ii)(b) of s. 173A of the CPC which are pertinent to th e matter now under consideration are reproduced below: 173A (ii) When any person is charged before the Court with an offence punishable by such Court, and the C ourt finds that the charge is proved, but is of opinion that, having regard, to the character, antecedents, age, health or mental condition of the person charge d, or to the

20 trivial nature of the offence, or to the extenuating circumstances under which t he offence was committed, it is inexpedient to inflict any punishment or any oth er than a nominal punishment or that it is expedient to release the offender on probation, the Court may, without proceeding to record a conviction, make an ord er either: (b) discharging the offender conditionally on his entering into a bon d with or without sureties, to be of good behaviour and to appear for the convic tion to be recorded and for sentence when called upon at any time during such pe riod, not exceeding three years, as may be specified in the order. The essential pre-requisites for the application of s. 173A(ii)(b) of the CPC can convenientl y be summarised as follows: (a) applicable to all offenders irrespective of age; (b) where the Court finds that the charge is proved; (c) but inclined not to re cord the conviction; (d) and consideration has to be given to the character, ant ecedents, age, health, mental condition of the offender, the trivial nature of t he offence, and any extenuating circumstances of the offence; (e) Where it is in expedient to inflict any punishment or any other than a nominal punishment; and (f) the bond period shall not exceed three years. It is now necessary to cite a few cases to show the judicial thinking of some of the Judges before me on s. 17 3A of the CPC . Thomson J, (as he then was) in Public Prosecutor v. Idris [1955] 21 MLJ 34 had this to say of s. 173A of the CPC: Section 173A is applicable in all cases triable in the Magistrate's Court irrespective of the nature of the pr escribed punishment and it is to be observed that where it is proposed to exerci se the powers given by it, the Court should not proceed to conviction. |287| Ali J, (as he then was) in Public Prosecutor v. Onn [1969] 1 MLJ 4 was more direct and to the point. His Lordship said: Section 173A is clear in terms that when po wer is to be exercised the Court shall not proceed to conviction. On the same pa ge, his Lordship continued further and this is the crucial part: Since sentence follows conviction it must, therefore, be the intention of the Legislature that whenever a bond is ordered under this section , nothing which savours of a form of punishment should be inflicted upon the offender. A condition requiring the o ffender to be of good behaviour in para. (b) has no punitive effect inasmuch as it merely enjoins the offender to behave like any other law-abiding citizen. Abd oolcader J, (as he then was) in Public Prosecutor v. Yeong Yin Chey [1976] 2 MLJ 267 had good things to say about s. 173A of the CPC . This was what he said: I would think that the essential difference in the application of the provisions o f s. 294 and s. 173A of the Code is that the latter is normally intended to be u tilised in cases of minor import and calling for exceptionally mild treatment af fecting adult and youthful offenders alike where the nature of the offence, the extenuating circumstances of the case and factors peculiar to the offender in qu estion justify and perhaps even require that no conviction be recorded against h im, so that although he is either admonished or cautioned or discharged

21 conditionally as provided therein there remains no blemish or stain against him by reason of a conviction being recorded. It is patently clear from the authorit ies cited above that a binding over under s. 173A(ii)(b) of the CPC does not car ry with it the stigma of being a criminal. But all the same the Court in proceed ing to award the binding over under s. 173A(ii)(b) of the CPC must first find th at the charge is proved. It is this point that has been seriously canvassed befo re me by Encik Abdul Rashid bin Haji Daud, the learned Senior Federal Counsel fo r the defendants. He says that I am breaking new ground and that the requirement that the Court must first find that the charge is proved under s. 173A(ii)(b) o f the CPC means that the plaintiff was found guilty by the High Court, Muar, Joh or. Indeed that was an illuminating submission. Now, s. 173A(ii)(b) of the CPC e nvisages a situation where the charge against an offender has been proved before the Court trying him and that Court must make a finding to that effect. But bef ore the Court proceeds to sentencing, the offender's background particularly "th e character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances un der which the offence was committed" will have to be taken into account singular ly or jointly. It is only at this stage that the Court will then proceed to the next step and this is to bind the offender for good behaviour for a period not e xceeding three years with or without sureties. It is within this period not exce eding three years that the offender must behave himself otherwise he would be ca lled upon at any time for the conviction to be recorded and for sentencing forth with. Paragraph 3 of the GO defines "conviction" to include "a finding or an ord er involving a finding of guilt by a criminal court in Malaysia". That the Court must first find that the charge has been proved would necessarily mean that the re must also be a concurrent finding of guilt. This must surely be the interpret ation to be attached to s. 173A(ii)(b) of the CPC . To construe otherwise would fly in the face of the clear words in that section, viz "the Court may, without proceeding to record a conviction" make an order to discharge the offender condi tionally. I am reminded, at this juncture, of what Viscount Simonds said in Kirk ness v. John Hudson&Co. Ltd. [1955] AC 696 , at p. 712 to the effect that if a J udge 'forms his |288| own clear judgment and does not think that the words are " fairly and equally open to divers meanings" he is not entitled to say that there is an ambiguity. Since the word "conviction" is defined in the GO, it must be u nderstood in that stipulated sense (see for example R v. Britton [1967] 2 QB 51) . In my judgment, the word "conviction" in para. 3 of the GO is defined in simp le terms without bringing in other terms which need definitions of their own. It is a clarifying definition because it is drafted in such a way so as to avoid d oubt as to whether the word does or does not include specified matters. As Visco unt Dilhorne said: It is a familiar device of a draftsman to state expressly tha t certain matters are to be treated as coming within a definition to avoid argum ent on whether they did or not (see IRC v. Parker [1966] AC 141, at p. 161) . It must be emphasised that Public Prosecutor v. Idris (supra), Public Prosecutor v . Onn (supra), and Public Prosecutor v. Yeong Yin Choy (supra) did not consider s. 173A(ii)(b) of the CPC in the context of the GO and it is this difference tha t distinguished those cases with the facts of the present case. The plaintiff in Zainal bin Hashim v. Mohamed Haniff bin Omar&Anor. [1975] 2 MLJ 262 joined the service in the Police Force in 1962. On 29 April 1971 he was charged in the Magi strate's Court, Kajang for an offence under s. 353 of the Penal Code for which h e

22 pleaded guilty. He was discharged conditionally upon his entering into a bond in the sum of RM500 for a period of two years under s. 173(ii)(b) of the CPC . At the material time, the plaintiff was serving in Kajang as police constable No. 3 1209. On 20 December 1971, Mr. S.W. Moreira, Deputy Chief Police Officer, Selang or in his letter addressed to and served upon the plaintiff, suspended the plain tiff's service with effect from 16 December 1971 the date the plaintiff was foun d guilty in the Magistrate's Court at Kajang. Mr. Moreira who wrote for and on b ehalf of the Chief Police Officer, Selangor stated that as the plaintiff was fou nd guilty of the charge under s. 353 Penal Code at the Lower Court, Kajang on 16 December 1971 and was ordered to execute a bond in the sum of RM500 to be of go od behaviour for two years under s. 173A of the CPC , he (plaintiff) was therefo re suspended from duties without pay with effect from 16 December 1971. At the t ime the plaintiff was suspended from service he was on the permanent and pension able establishment drawing a salary of RM230 per month with RM10 increment per a nnum and a Tamil language allowance of RM15 per month. Subsequent to the letter of suspension the plaintiff was, on 28 December 1971 served with a dismissal not ice signed by the Chief Police Officer, Selangor. The plaintiff submitted repres entations but he was dismissed without being given an oral hearing. The plaintif f then brought an action for a declaration that his dismissal was void and inope rative on the ground that as the Chief Police Officer had no power to appoint co nstables, dismissal of a constable by him contravened Art. 135(1) of the Federal Constitution . Abdul Hamid J, (as his Lordship then was) found in favour of the plaintiff. Subsequently, the Federal Constitution was amended by adding a provi so that cl. (1) of Art. 135 shall not apply to a case where a member of the publ ic services was dismissed or reduced in rank by an authority in pursuance of a p ower delegated to it by a Commission and it was provided that the proviso "shall be deemed to have been an integral part of this clause as from Merdeka Day". Th e Government of Malaysia appealed to the Federal Court and the Federal Court hel d that the proviso operated to validate the plaintiff's dismissal [1977] 2 MLJ 2 54 . The plaintiff appealed from that decision. The Privy Council [1979] 2 MLJ 2 76 in dismissing the appeal and affirming the Federal Court's decision held, int er alia, that the Legislature clearly intended to give retrospective effect to t he amendment and to secure that no action started after Merdeka Day, whether pro ceeding or not started when the amendment |289| was made, should succeed on the ground that the power to dismiss had not been exercised by someone with power to appoint. It made no difference that the action started had got to the stage of judgment being given and was under appeal when the amendment was made. The Feder al Court therefore rightly allowed the appeal from the High Court on this ground . On the facts, Zainal bin Hashim v. Mohamed Haniff bin Omar&Anor . (supra) were almost on all fours with the present case. There the plaintiff/appellant had pl eaded guilty under s. 353 of the Penal Code in his capacity as a police constabl e and was discharged conditionally upon his entering into a bond in the sum of R M500 for a period of two years under s. 173A(ii)(b) of the CPC . Here, the plain tiff was charged on two counts under s. 409 of the Penal Code before the Session s Court, Muar, Johor and was tried (not clear from the agreed bundles 'A' and 'B '), and sentenced to six (6) months' imprisonment. It was only on appeal before the High Court, Muar, Johor that the plaintiff was discharged conditionally upon his entering into a bond in the sum of RM5,000 without sureties for a period of three years under s. 173A(ii)(b) of the CPC . In Zainal Bin Hashim v. Mohamed H aniff bin Omar&Anor . (supra), the dismissal notice signed by the Chief Police O fficer, Selangor to the plaintiff was in the following terms:

23 I am hereby directed to inform you that I intend to take an action to dismiss yo u from the Royal Malaysian Police Force for having been found guilty of a charge at the Lower Court, Kajang on 16 December 1971 and for having been ordered to e xecute a bond of RM500 to be of good behaviour for a period of 2 years under s. 173A(ii)(b) Criminal Procedure Code. You are therefore given the opportunity to make any representation in respect of the above matter within a period of 14 day s with effect from the date of receipt of this letter. Your representation shoul d be in writing addressed to me. Sgd. Mohd. Haniff bin Omar, Chief Police Office r, Selangor. The words employed by the Chief Police Officer like "... for having found guilty of a charge at the Lower Court, Kajang ..." when contrasted with t he words employed by the State Education Director of Johor in the letter dated 1 0 April 1990 to the Setiausaha Suruhanjaya Perkhidmatan Pendidikan, Kuala Lumpur as reproduced in the early part of this judgment especially words like "Hukuman dan sabitan yang dikenakan ke atasnya oleh Mahkamah Sesyen Muar ..." gave the i mpression, rightly so, that the plaintiffs in both these cases were convicted ac cordingly. Of pertinence and what Encik T. Balaskanda for the plaintiff submitte d was his exception to the use of words "Dengan sabitan tersebut ..." in referen ce to the binding over under s. 173A(ii)(b) of the CPC in the letter of the Seti ausaha, Suruhanjaya Perkhidmatan Pendidikan, Malaysia addressed to the plaintiff through the State Education Director of Johor. He submitted that if those words were the basis for the dismissal of the plaintiff then such dismissal was clear ly wrong because the facts were misinterpreted. It appears and it is the basis o f Encik Abdul Rashid Hj. Daud's submission that once the High Court, Muar, Johor finds that the charge is proved then the defendants are entitled to proceed und er paras. 33 and 35 of the GO . It is also his case that the order of the High C ourt, Muar, Johor creates a situation whereby para. 4(2)(d) of the GO can be inv oked. |290| For ease of reference, paras. 33 and 35 of the GO are reproduced bel ow: Procedure in 33 . Where criminal proceedings against an officer result in hi s conviction, or where case his appeal against his conviction has been dismissed , the Head of Department of conviction concerned shall apply to the Registrar or Senior Assistant Registrar of the relevant Court for a copy of the judgment of the Court. Upon receipt of the said judgment, the Head of Department shall submi t the same to the Appropriate Disciplinary Authority together with full particul ars of the officer's past record of service and recommendation of the Head of De partment as to whether the officer should be dismissed from the service or other wise dealt with depending on the nature and gravity of the offence committed in relation to the degree of disrepute which it brings to the service. 35. (1) Notw ithstanding anything in General Order 23 , if after considering the report Power of and documents submitted by the Head of Department in General Order 33 and Di sciplinary 34(1) , the Appropriate Disciplinary Authority is of the opinion that the officer Authority merits dismissal or reduction in rank, it may forthwith d irect accordingly, or if in cases it is of the opinion that the officer should b e inflicted with a lesser punishment of conviction, or otherwise dealt with, the Disciplinary Authority may forthwith inflict upon detention etc. the officer su ch lesser punishment or deal with him in such manner as it may deem fit.

24 (2) If as a result of the lesser punishment the officer is not dismissed, the qu estion of his emoluments during the period of his suspension shall be at the dis cretion of the Director General of Public Services. For expediency, para. 4(2)(d ) of the GO is reproduced herewith: Conduct himself in such manner as to bring t he public service into disrepute or to bring discredit thereto. In my judgment, a finding that the charge was proved under s. 173A(ii)(b) of the CPC would tanta mount to a finding of guilt but the Court would not be inclined to record a conv iction before binding over the plaintiff conditionally thereto. And since there was a finding of guilt, it would squarely fall within the ambit of the definitio n of word "conviction" in para. 3 of the GO and, consequently, the Setiausaha, S uruhanjaya Perkhidmatan Pendidikan, Malaysia was correct when he decided to dism iss the plaintiff. The dismissal against the plaintiff was part and parcel of th e several forms of punishment as stipulated in para. 36 of the GO . Incidentally , his Lordship Abdul Hamid J, (as he then was) in Zainal bin Hashim v. Mohamed H aniff bin Omar&Anor . (supra) described the plaintiff there as having been found guilty of a charge under s. 353 of the Penal Code and was bound over under s. 1 73A(ii)(b) of the CPC , a situation akin to that of the present case. Though the issue raised in the present case was not ventilated in Zainal bin Hashim v. Moh amed Haniff bin Omar&Anor . (supra), yet Viscount Dilhorne in his judgment set o ut the facts in this manner: The appellant was appointed a police constable in t he Royal Malaysian Police Force on 1 March 1962. In 1971 he was charged with an offence under s. 353 of the Penal Code of Malaysia. To that charge he pleaded gu ilty and he was discharged conditionally upon his entering into a bond in the su m of RM500 for a period of two years. On 22 December 1971 he received notice by letter dated 20 December, that he was suspended from duty with effect from 16 De cember 1971, the date of which he had pleaded guilty, on account of his convicti on on that charge. |291| On 28 December 1971 the Chief Police Officer at Selango r wrote to the appellant saying that he intended to take action to dismiss the a ppellant from the Royal Malaysian Police on account of his conviction and tellin g him that he could make any representations with regard thereto in writing with in fourteen days. The use of the words "on account of his conviction on that cha rge" by Viscount Dilhorne to describe the plaintiff/appellant there who was boun d over under s. 173A(ii)(b) of the CPC was intentional and reflective that befor e a binding over under that section was imposed the individual must have been fo und guilty and convicted thereof. Likewise, in the instant case, the plaintiff m ust have been found guilty and convicted before he was bound over under s. 173A( ii)(b) of CPC and at this stage of binding over the conviction was not recorded so as to give the plaintiff the chance to turn over a new leaf. The word "convic tion" is defined in para. 3 of the GO restrictively and is confined to a finding of guilt without a conviction being recorded. Thus, as stated earlier before th e finding of guilt is arrived at there must first be finding that the charge has been proved. That finding of guilt under s. 409 of the Penal Code was tantamoun t to the plaintiff conducting "himself in such manner as to bring the public ser vice into disrepute or to bring discredit thereto" (see para. 4(2)(d) of the GO) . This must surely be the thinking behind the dismissal of the plaintiff.

25 It is germane to mention that the words underlined in para. (a) of cl. (2) of Ar t. 135 of the Federal Constitution and reproduced below: No member of such servi ce as aforesaid shall be dismissed or reduced in rank without being given a reas onable opportunity of being heard: Provided that this Clause shall not apply to the following cases: (a) where a member of such a service is dismissed or reduce d in rank on the ground of conduct in respect of which a criminal charge has bee n proved against him. are identical to the words as underlined and employed in s . 173A(ii) of the CPC which reads as follows: When any person is charged before the Court with an offence punishable by such Court, and the Court finds that the charge is proved, ... and consequently, the question of dismissal "without bein g given a reasonable opportunity of being heard" does not arise. This is also th e case for the dismissal of the plaintiff in the instant case when the Setiausah a, Suruhanjaya Perkhidmatan Pendidikan, Malaysia resorted to paras. 33 and 35 in dismissing him. The underlined words in para. (a) of cl. (2) of Art. 135 of the Federal Constitution patently show the attitude of the Government through the s upreme law of the country to dismiss a member of the public service "on the grou nd of conduct in respect of which a criminal charge has been proved against him. " There appears to be no necessity for the Court to record a conviction before t he plaintiff can be dismissed "on the ground of conduct" or by conducting "himse lf in such manner as to bring the public service into disrepute or to bring disc redit thereto." For the reasons adumbrated above, the question posed would be an swered in the positive and, consequently, the dismissal of the plaintiff was per fectly legitimate and effected according to law.

26 [2000] 1 CLJ 393 MEOR ATIQULRAHMAN ISHAK&YANG LAIN lwn. FATIMAH SIHI&YANG LAIN MAHKAMAH TINGGI MA LAYA, SEREMBAN MOHD NOOR ABDULLAH H [SAMAN NO: 22-13-98] 15 DISEMBER 1999 |397| PENGHAKIMAN Mohd Noor Abdullah H: Plaintif 2 dan plaintif 3 adalah dua adik bera dik berusia sembilan tahun dan lapan tahun, bekas penuntut darjah tiga dan darja h dua di Sekolah Kebangsaan Serting Hilir (FELDA) Bandar Baru Serting, Negeri Se mbilan. Plaintif 1 sepupu mereka dan belajar di darjah lima. Mereka mengambil ti ndakan undangundang ini melalui bapa/bapa saudara mereka. Defendan 1 ialah Gurub esar sekolah itu. Mereka mendakwa telah dibuang sekolah kerana memakai serban di sekolah di samping memakai pakaian seragam sekolah. Dalam pernyata tuntutannya mereka mendakwa telah dihalau dari sekolah kerana memakai serban, diketuk di kep ala, ditumbuk dan diaibkan oleh Gurubesar perempuan sekolah itu. Akhirnya mereka dibuang sekolah kerana degil memakai serban bertentangan dengan peraturan pakai an seragam sekolah. Pelantar tindakan ini ialah: mereka dibuang sekolah bertenta ngan dengan kebebasan berugama, larangan membezabezakan kerana ugama, kaum, ketu runan dan tempat lahir; mereka dibuang sekolah tanpa diberi peluang untuk dideng ar yang bertentangan dengan prinsip keadilan semulajadi dan dengan demikian dina fikan peluang untuk merayu; mereka dibuang sekolah kerana didorong oleh niat jah at/mala fide tanpa menimbangkan hukuman yang lebih ringan seperti menggantung se kolah; mereka dibuang sekolah atas dua perintah yang dikeluarkan, pertama oleh J awatankuasa Persatuan Ibubapa Guru Sekolah dan kedua oleh Gurubesar. Oleh yang d emikian, plaintif-plaintif memohon perintah mahkamah supaya mengisytiharkan pemb uangan sekolah itu tidak sah, terbatal dan tidak berkesan dan mereka hendaklah d iterima semula belajar di sekolah itu. Defendan-defendan dalam pembelaannya mene gaskan bahawa plaintif-plaintif dengan memakai serban di sekolah telah melanggar peraturan 3(f), (v) Peraturan Sekolah 1997 dan sebagai Gurubesar yang bertanggu ngjawab ke atas keseluruhan disiplin sekolah beliau telah bertindak membuang mer eka dari sekolah selaras dengan kuasa yang diberi oleh undangundang. Mereka tela h diberi peluang secukupnya untuk didengar walaupun tiada prosiding dijalankan y ang memerlukan plaintif-plaintif diberi hak untuk didengar. Kes ini menonjolkan persoalan sama ada seorang pelajar sekolah yang memakai serban di samping memaka i pakaian seragam sekolah boleh dibuang sekolah kerana memakai serban. |398| Gur ubesar dikatakan telah membuang sekolah pelajar itu menurut kuasa undang-undang yang diberi kepadanya di bawah Peraturan Sekolah 1997, Sekolah Kebangsaan Sertin g (FELDA) Bandar Baru Serting. Peraturan Sekolah 1997 ini telah disediakan oleh Gurubesar menurut Surat Pekeliling Ikhtisas Bil. 9/1975, Kementerian Pelajaran y ang antara lain menghendaki:

27 4. Peraturan-peraturan Sekolah (School Rules) yang Bertulis untuk Murid-Murid: T indakan oleh tiap-tiap Sekolah. Lampiran C. Setiap sekolah hendaklah mempunyai p eraturan-peraturan sekolah masingmasing secara bertulis. Peraturan itu hendaklah mengandungi maksud yang jelas dan tiap-tiap murid mestilah mengetahuinya. Satu salinan peraturan sekolah hendaklah dipamerkan di tiap-tiap bilik darjah di bili k guru dan juga di papan kenyataan sekolah. ... Gurubesar hendaklah meneliti sem ula dan membaharui peraturan sekolah mereka dan untuk panduan mereka itu senarai perkara-perkara yang patut ditimbangkan mengikut keadaan sekolah adalah diserta kan dalam Lampiran C. Gurubesar boleh juga menimbangkan perkaraperkara lain yang tidak ada dalam Senarai itu mengikut keadaan sekolah masing-masing. Peraturan S ekolah 1997, Sekolah Kebangsaan Serting (FELDA) yang disediakan oleh Gurubesar i tu antara lain memperuntukkan: 3. Pakaian a. Semua murid diwajibkan memakai paka ian seragam sekolah dengan lengkap dan kemas. b. ... c. seluar panjang bagi muri d lelaki dan kain bagi murid perempuan - warna biru gelap (blue black). d. ... e . ... f. Murid lelaki (i) Baju putih lengan pendek, kasut getah putih, sarung ka ki putih dan samping warna biru gelap. (ii) ... g. Murid perempuan (i) Baju kuru ng putih, tudung putih, kasut putih dan sarung kaki putih. (ii) ... |399| i. Lar angan pakaian (i) Semua murid dilarang memakai jubah, turban (serban), topi, ket ayap dan purdah. (ii) ... Peraturan Sekolah 1997 ini dipetik dari Pakaian Seraga m Murid-Murid Sekolah Surat Pekeliling Ikhtisas Bil. 3/1983 yang menyatakan: 2. Peraturan pakaian seragam murid-murid sekolah adalah seperti berikut: 2.1 Sekola h Rendah 2.1.1 Pakaian Murid-Murid Lelaki Seluar (i) Seluar bagi murid-murid lel aki ialah seluar pendek berwarna biru tua (navy blue). Seluar panjang yang sama warnanya boleh dipakai sekiranya dikehendaki oleh ibu bapa/penjaga mereka. (ii) ... 2.1.2 Pakaian Murid-Murid Perempuan Pakaian murid-murid perempuan adalah 'pi nafore tunic' berwama biru tua (navy blue) dan labuhnya hendaklah sampai ke lutu t. Baju Kurung dan Kain Sarung

28 Murid-murid perempuan boleh juga memakai baju kurung sekiranya dikehendaki oleh ibu bapa/penjaga mereka dengan syarat baju kurung itu berwarna putih dan kain sa rung berwarna biru tua. Tudung/Mini Telekung Murid-murid perempuan juga dibenark an memakai tudung/mini telekung dengan syarat tudung itu berbentuk tiga segi 2 s ama dan tudung/mini telekung berwarna putih, berukuran sesuai dengan muridmurid yang memakainya. 2.2 Sekolah Menengah 2.2.1 Pakaian Murid-Murid Lelaki Seluar (i ) Seluar bagi murid-murid Sekolah Menengah (Tingkatan Peralihan hingga ke Tingka t Enam) adalah seluar pendek atau seluar panjang sekiranya dikehendaki oleh mere ka atau ibubapa/penjaga mereka. Warna bagi seluar pendek atau panjang ini adalah hijau ke hitamhitaman (dark olive). |400| (ii) ... 2.2.2 Pakaian Murid-Murid Pe rempuan Pinafore Tunic Pinafore tunic adalah berwarna torquoise dan labuhnya hen daklah sampai ke paras lutut. Blouse Blouse adalah berwarna putih dan berlengan. Murid-Murid Perempuan Tingkatan VI Pakaian bagi murid-murid perempuan Tingkatan VI adalah sket (skirt) berwarna turquoise dan blouse berlengan berwama putih. L abuh skirt hendaklah sampai ke paras lutut. Baju Kurung dan Kain Sarung Murid-mu rid perempuan Sekolah Menengah juga dibenarkan memakai baju kurung berwarna puti h dan kain sarung berwarna torquoise. Tudung/Mini Telekung Murid-murid perempuan juga dibenarkan memakai tudung/mini telekung dengan syarat tudung itu berbentuk tiga segi 2 sama dan tudung/mini telekung berwarna putih, berukuran sesuai deng an muridmurid yang memakainya. Surat Pekeliling ini dikeluarkan oleh Bahagian Se kolah-Sekolah b.p. Ketua Setiausaha Kementerian Pelajaran Malaysia. Peraturan pa kaian seragam sekolah dipaparkan dengan tujuan untuk menyelam alir pemikiran, ke fahaman dan halatujuan pembuat dasar di Kementerian Pendidikan mengenai Perlemba gaan Persekutuan dan status ugama Islam di Negara ini. Ulasan pertama saya menge nai Peraturan Pakaian Seragam Sekolah ini ialah peruntukan pakaian seluar pendek bagi murid lelaki dan pakaian pinafore tunic bagi murid perempuan di Sekolah Me nengah adalah membelakangkan ugama Islam di mana yang dahulu dikemudiankan dan y ang kemudian didahulukan dan tidak selari dengan Perlembagaan Persekutuan. Murid lelaki dikehendaki memakai seluar pendek tetapi diberi pilihan memakai seluar p anjang. Murid perempuan pula dikehendaki memakai pinafore tunic dan blouse (skir t bagi Tingkatan VI) tetapi diberi pilihan memakai baju kurung dan kain sarung a tau tudung/mini telekung. Sepatutnya pakaian murid lelaki ialah seluar panjang d engan memberi pilihan memakai seluar pendek dan pakaian murid perempuan |401| ia lah baju kurung, kain sarung dan tudung/telekung dengan memberi pilihan memakai pinafore tunic dan blouse atau

29 skirt. Dengan cara sedemikian peraturan pakaian seragam ini akan selari dengan P erkara 3 Perlembagaan Persekutuan yang berbunyi: Islam ialah ugama bagi Persekut uan; tetapi ugama-ugama lain boleh diamalkan dengan aman dan damai di mana-mana bahagian Persekutuan. Soalan: Apakah makna 'Islam' dan 'ugama' dalam Perlembagaa n ini? Islam sebagai ad-deen merangkumi keseluruhan aktiviti kehidupan manusia d ari lahir sehingga mati, dan bangun pagi hingga ke tidur malam yang ditunjukkan oleh Rasulallah yang mendapat wahyu dari Allah dan termaktub dalam Quran. Ugama Islam memperakui ugama Yahudi dan Kristian dan mengiktiraf Taurat, Zabur dan Inj il. Islam ugama sejagat yang boleh diterima oleh semua ugama lain. Menurut S. Ab dul A'la Maududi dalam buku The Islamic Law and Constitution, 7th Ed. March 1980 . "There can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities , may they be private or public, legal, political. economic, social, cultural, m oral or judicial." Menurut The Holy Quran New Revised Edition n. 434 p. 155 by A bdullah Yusuf Ali: Islam is not sectarian, non racial, non doctrinal and is a un iversal religion. Islam is just submission to the will of Allah. This implies (1 ) Faith, (2) doing right, being an example to others to do right, and having the power to see that the right prevails, (3) eschewing wrong, being an example to others to eschew wrong and having the powers to see that wrong and injustice are defeated. Islam therefore lives not for itself, but for mankind. Ugama/Agama me nurut Kamus Dewan ed. 3 ialah "kepercayaan pada Tuhan dan sifat-sifat serta keku asaan Tuhan dan penerimaan ajaran dan perintahnya, kepercayaan pada Yang Maha Ku asa: ugama Islam, ugama Kristian". Ugama/religion menurut Concise Oxford Diction ary 9th ed. ialah 'the belief in a superhuman controlling power, especially in a personal God or gods entitled to obedience and worship.' Saya rujuk kepada Perl embagaan India untuk mencari makna 'ugama' yang sepatutnya lebih tepat dan relev an jika saya rujuk kepada Perlembagaan Pakistan yang tiada dalam Perpustakaan Ma hkamah. |402| Religion is a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Bud dhism and Jainism which do not believe in god or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it will not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay down a code of ethical rules f or its followers to accept, it might prescribe rituals and observances, ceremoni es and modes of worship which are regarded as integral parts of religion and the se forms and observances might extent even to matters of food and dress - Consti tution of India, Art 25. Religion, meaning of - (Words and Phrases - "Religion") [AIR 1954 SC 282 Vol. 41 CN 68] Pada pendapat saya "Islam ialah ugama bagi Pers ekutuan tetapi ugama-ugama lain boleh diamalkan dengan aman dan damai" bermakna Islam adalah ugama utama di antara ugamaugama lain yang dianuti di negara ini se perti Kristian, Buddha, Hindu dan selainnya. Islam bukan setaraf dengan ugama la in, bukan duduk berganding bahu atau berdiri sama tegak. Ia duduk di atas, ia be rjalan dahulu, terletak di tempat medan dan suaranya lantang kedengaran.

30 Islam ibarat pokok jati - tinggi, teguh dan terampil. Jika bukan sedemikian Isla m bukanlah ugama bagi Persekutuan tetapi adalah salah satu di antara beberapa ug ama yang dianuti di negara ini dan setiap orang sama-sama bebas mengamalkan mana mana ugama yang dianutinya, tiada lebih satu dari yang lain. Peruntukan 'Islam i alah ugama bagi Persekutuan' hendaklah ditakrif dan ditinjau tujuannya dengan me mbaca bersama peruntukan lain dalam Perlembagaan khususnya Perkara 89, 152, 153 dan 14. Perkara 89 memelihara tanah rezab orang Melayu terus menerus kekal sebag ai rezab orang Melayu melainkan dipinda oleh undang-undang yang diluluskan denga n kelebihan undi 2/3. Perkara 152 menetapkan bahasa kebangsaan ialah Bahasa Mela yu dengan syarat tiada larangan menggunakan bahasa lain. Perkara 153 memelihara kedudukan istimewa orang Melayu dan bumiputra di Sabah dan Sarawak. Perkara 14 m enetapkan perolehan kewarganegaraan berdasarkan kepada ciri kelahiran di negara ini asalkan ibu atau bapanya pemastautin tetap atau pada masa kelahirannya ia ti dak menjadi warganegara mana-mana negara lain. Perkara 89,152 dan 153 memberi ke istimewaan kepada orang Melayu dan bumiputra manakala Perkara 14 memberi keistim ewaan kepada orang bukan Melayu. |403| Saya jejak kata-kata bijaksana YAA Raja A zlan Shah Ag LP dalam kes Dato' Menteri Osman bin Baginda&Anor v. Dato' Ombi Sye d Alwi bin Syed Idrus [1984] 1 CLJ 28; [1981] 1 MLJ 29: In interpreting the Cons titution two points must be borne in mind. First, judicial precedent plays a les ser part than is normal in matters of ordinary statutory interpretation. Secondl y, a Constitution being a living piece of legislation, its provisions must be co nstrued broadly and not in a pedantic way - "with less rigidity and more generos ity than other Acts" (see Minister of Home Affairs v. Fisher)". Saya sedia maklu m dan terikat menerima stare decisis keputusan kes Hjh. Halimatussaadiah bte Hj. Kamaruddin v. Public Services Commission Malaysia and Anor [1994] 3 CLJ 532; [1 994] 3 MLJ 61. Dalam kes itu plaintif, seorang kerani di pejabat Penasihat Undan g-Undang Negeri Perak memakai purdah di waktu pejabat yang dilarang memakainya m enurut Surat Pekeliling yang berbunyi: "apa-apa pakaian yang menutup muka tidak boleh dipakai semasa bekerja." Plaintif diberi notis tunjuk sebab dan beliau men jawab menurut surah 24 Quran seorang perempuan Muslim wajib menutup mukanya kecu ali mata dan beliau memakai purdah untuk mengelakkan fitnah dan beliau berhak me nganuti ugamanya menurut Perlembagaan. Diputuskan: Kebebasan ugama yang dijamin di bawah Perkara 11(1) Perlembagaan Persekutuan tidak mutlak kerana Perkara 11(5 ) tidak membenarkan sebarang tindakan yang bertentangan dengan sebarang undang-u ndang am berkaitan dengan ketenteraman awam, kesihatan awam, atau kemoralan. Lar angan terhadap seseorang pegawai awam wanita untuk memakai pakaian yang menutup mukanya semasa bekerja tidak menjejaskan hak perlembagaan perayu untuk mengamalk an ugamanya. Pemakaian purdah tidak kena mengena dengan hak perlembagaan Perayu untuk menganuti dan mengamalkan ugama Islam.

31 Hakim bicara menerima pendapat Mufti Wilayah Persekutuan bahawa Islam tidak mela rang perempuan Muslim memakai purdah dan Islam tidak pula mewajibkannya memakai purdah, seterusnya hakim bicara berkata tiada apaapa yang menyalahi undang-undan g dalam membuat syarat tentang pakaian yang harus dipakai oleh pegawai Kerajaan semasa bekerja demi tatatertib perkhidmatan asalkan syarat itu tidak bertentanga n dengan ketenteraman awam, akhlak atau kesihatan. Saya juga sedia maklum dan te rikat menerima keputusan kes Che Omar bin Che Soh v. PP [1988] 2 MLJ 55 yang mem utuskan: the term 'Islam' or 'Islamic religion' in Article 3 of the Federal Cons titution in the context means only such acts as relate to rituals and ceremonies . |404| Dalam kes itu persoalan yang perlu diputuskan ialah: adakah menjatuhkan hukuman mati mandatori di bawah Akta Dadah Berbahaya atau di bawah Fire Arms (In creased Penalties) Act 1971 - yang bukannya hudud atau qiisas menurut ugama Isla m - bertentangan dengan "Islam ialah ugama bagi Persekutuan" dan kerananya hukum an itu taksah dan takberperlembagaan. YAA Salleh Abbas LP memutuskan: "It would thus appear that not much reliance can be placed on the wording of art. 3 to sus tain the submission that punishment of death for the offence of drug trafficking or any other offence, will be void as being unconstitutional." Dengan segala ho rmatnya kes memakai purdah berbeza dengan kes memakai serban. Seorang yang memak ai purdah yang memperlihatkan kedua matanya sahaja seperti dalam kes Hjh. Halima tussaadiah tidak dapat dicam atau dikenalpasti, sifulan atau sifulan, lelaki ata u perempuan. Seorang yang memakai serban boleh dicam. Seorang yang memakai purda h sedemikian boleh menjejaskan keselamatan awam tetapi tidak bagi seorang yang m emakai serban. Saya percaya itulah yang dimaksudkan dengan "kebebasan ugama tida k mutlak kerana perkara 11(5) Perlembagaan tidak membenarkan sebarang tindakan y ang bertentangan dengan ketenteraan awam, kesihatan awam atau moral" yang terkan dung dalam penghakiman kes itu. Dengan hormatnya fakta kes dalam kes hukuman mat i mandatori itu dan isu pokok yang di pertikaikan adalah jauh berbeza dengan kes yang sedang dibicarakan. Di sana hukuman mati mandatory adalah sah di sisi unda ngundang sibil tapi tak sah di sisi undang-undang syarak, maka hukuman itu sah m enurut Perlembagaan. Tetapi di sini memakai serban adalah sah di sisi hukum syar ak dan tidak pula taksah di sisi undang-undang sibil bagi orang Muslim maupun ba gi orang bukan Muslim maka memakai serban adalah sah menurut Perlembagaan. Saya percaya Tun Salleh Abbas, Ketua Hakim Negara ketika itu dan ahli Dewan Undangan Negeri Terengganu sekarang boleh memaafkan saya kerana ingin dengan rasa rendah diri dan kerdil memberi pendapat yang menyimpang, sesuai dengan saranan YAA Raja Azlan Shah Ag LP bahawa Perlembagaan itu hidup dan patut diberi pentafsiran "wi th less rigidity and more generosity than other Acts" dan sesuai pula dengan kat a dua petikan YAA Tun Salleh Abbas sendiri yang berkata "kalau Islam bermakna ri tuals and ceremonies" maka ada kes tetapi jika Islam bermakna an all-embracing c oncept maka tiada kes. Pendapat saya bukan bersifat menyangkal, saya sekadar mem perlihatkan pandangan dari sudut dan kacamata lain yang kehijauan. Sebenarnya ru ang itu terbuka sebagaimana ditanya: |405|

32 Q. What DOES "Islam is the religion of the Federation" mean in Article 3(1) of t he Constitution of Malaysia? A. That must await another day, another case. (The religion of the Federation by Professor L.A. Sheridan [1988] 2 MLJ XIII). Sekara ng saya ingin menyahut soalan itu dan menjawab: A: Mungkin kes ini, apabila mukt amad nanti. Perlembagaan dalam kontek memberi keistimewaan kepada orang Melayu d an Raja-Raja Melayu dan sebagai quid pro quo telah mendaulatkan Islam menjadi ug ama Persekutuan dan memertabatkan Bahasa Melayu menjadi bahasa kebangsaan. Bahas a Melayu bukan Bahasa Malaysia dan bukan juga Bahasa Kebangsaan (sebagai katanam a khas) atau bahasa rasmi. Pada nada yang sama Islam bukan ugama rasmi Persekutu an sepertimana Bahasa Melayu bukan bahasa rasmi Persekutuan. Pada pengertian say a Islam sebagai ugama rasmi dengan menambah "rasmi" kepada 'ugama' akan menyempi tkan keluasan dan kesejagatan/universaliti Islam kepada perbuatan rituals and ce remonies sahaja seperti menepung tawar, membaca doa, membaca yaasin serta tahlil dan mengupacarakan hari sambutan Islam. Saya tidak menduga dan menyangka orang Melayu dan Raja-Raja Melayu dahulu sanggup bersetuju untuk memberi dan mengiktir af kewarganegaraan orang bukan Melayu berdasarkan kelahiran dan sebagai balasan Islam dijadikan ugama Persekutuan tetapi terbatas kepada rituals and ceremonies sahaja. Islam berdaulat sebelum dijajah dan tidak berdaulat lagi semasa dijajah. Mereka menuntut kedaulatan itu dikembalikan selepas dijajah. Mereka dapat sebah agian dan hilang sebahagian. Saya menjejak pandangan Lord Denning pada mentafsir Perlembagaan "to ascertain for ourselves what purpose the founding fathers of o ur Constitution had in mind when our Constitutioual laws were drafted and not, i n accordance with the usual practice base our interpretative function on the pri nted letters of the legislation alone." Perlembagaan Persekutuan adalah hasil ad unan cendikiawan dan pakar undang-undang dari England, Australia, India dan Paki stan. Mereka menyediakan laporan yang diberi nama Laporan Reid Commission dan la poran ini adalah pandangan mereka setelah mendengar perbincangan, persetujuan da n pertelingkahan antara Kerajaan British, Raja- Raja Melayu dan Parti Perikatan Malaya. Laporan itu berkata: We have considered the question whether there shoul d be any statement in the Constitution to the effect that Islam should be the St ate religion. There was universal agreement that if any such provisions were ins erted it must be made clear that it would not in any way affect the civil rights of non Muslims. In the memorandum submitted by the Alliance it was stated: |406 | the religion of Malaysia shall be Islam. The observance of this principle shal l not impose any disability on non Muslim nationals professing and practising th eir own religions and shall not imply the state is not a secular state. There is nothing in the draft Constitution to affect the continuance of the present posi tion in the States with regard to recognition of Islam. Raja-Raja Melayu menuntu t supaya dimasukkan peruntukan "The Muslim or Islamic faith be the established r eligion of the Federation" suatu tuntutan untuk mengiktiraf kedaulatan Islam, pa da masa dahulu, ketika itu dan akan datang. Perlembagaan Persekutuan didasarkan kepada Laporan ini dan digubal seperti yang sedia ada. Peruntukan Perkara 3 memp unyai makna:

33 1. Islam ialah ugama bagi Malaysia yang terdiri dan kaum Melayu yang berugama Is lam, Cina, India dan selainnya yang berugama Buddha, Hindu, Kristian dan selainn ya. 2. Malaysia ialah negara sekular, iaitu mengamalkan undang-undang sibil dan common law yang mengatasi hukum syarak tetapi tidaklah menjadi tak sah setiap un dang-undang yang selari dengan hukum Syarak jika ia tidak bertentangan dengan Pe rlembagaan. 3. Malaysia boleh melaksanakan hukum Syarak terhadap orang Islam yan g tidak bertentangan dengan Perlembagaan. 4. Malaysia tidak boleh melaksanakan h ukum Syarak terhadap orang bukan Islam. Deraf Perlembagaan itu tidak menyebut te ntang Islam walaupun Raja-Raja Melayu adalah ketua ugama dan ketua adat di Neger i masing-masing. Negeri Kedah melaksanakan hukum syarak ke atas orang Islam seca ra berdaulat dan mutlak sebelum dijajah tetapi kemudiannya disekat kepada perkar a mengenai undang-undang keluarga, hartanah dan pewarisan. Saya percaya Negeri M elayu Bersekutu pun begitu. Adalah suatu penghinaan kepada Raja-Raja Melayu yang mendesak dimasukkan "the Muslim or Islamic faith be the established religion of the Federation", "Islam should be the State religion" jika hasil perjuangan itu sekadar menelurkan Islamic rituals and ceremonies sahaja dan bukan addeen al Is lam as a complete way of life. Saya tidak berfikir begitu. Peruntukan Islam seba gai ugama Persekutuan hendaklah diberi tafsiran yang sewajarnya. Ia bermakna Ker ajaan bertanggungjawab memelihara menyemarak dan mengembangkan Islam sepertimana yang termampu dilakukan oleh Kerajaan sekarang seperti mendirikan masjid dan pu sat dakwah, menganjurkan musabaqah al Quran, menghafal al Quran, menyekat perbua tan mungkar seperti mengharamkan minuman keras, perjudian, pelacuran dan menyeka t budaya |407| kuning dan sepatutnya termasuk membuat undang-undang bagi menjami n rumah-rumah ibadat ugama-ugama lain tidak melebihi atau bersaing dengan Masjid Negara/Negeri dari segi lokasi dan keterampilan, saiz dan bentuk yang keterlalu an, ataupun terlalu banyak dan di merata-rata tempat yang takterkawal. Ugama-uga ma lain hendaklah diatur-suai dan dihalatuju ke arah yang menjamin supaya ia dia malkan dengan aman dan damai dan tidak menggugat kedudukan utama ugama Islam buk an saja pada zaman ini tetapi yang lebih penting untuk zaman akan datang dan ber terusan. Saya khuatir pembuat dasar di Kementerian Pendidikan kurang cermat pada menetapkan pakaian seluar pendek bagi murid lelaki di Sekolah Menengah dan paka ian pinafore tunic dan blouse atau skirt bagi murid perempuan di Sekolah Menenga h. Saya percaya penganut ugama Kristian dan ugama lain tidak membantah pakaian s empurna bagi murid sekolah dan pakaian seluar panjang dan pakaian kain dan baju kurung adalah pakaian yang sempurna dan sesuai. Mereka walau bagaimanapun di ber i pilihan. Islam menetapkan pakaian bagi orang Muslim sebagaimana firman Allah d alam Surah Al A'Raaf ayat 26: 26. Hai anak Adam, sesungguhnya kami telah menurun kan kepadamu pakaian untuk menutup auratmu dan pakaian indah untuk perhiasan. Da n pakaian takwa itulah yang paling baik. Yang demikian itu adalah sebahagian dar i tanda-tanda kekuasaan Allah, mudahmudahan mereka selalu ingat. dan hadis Rasul allah yang berbunyi: Seorang lelaki tidak boleh memandang aurat lelaki dan seora ng perempuan tidak boleh memandang aurat perempuan. Aurat ialah bahagian tertent u pada tubuh manusia yang wajib ditutup atau wajib dilindungi dari pandangan ora ng ajnabi. Bagi lelaki, jika ia sudah akil baligh auratnya ialah bahagian di ant ara pusat dan lutut sebagaimana sabda Rasulallah:

34 Bahagian atas daripada lutut adalah aurat dan terkebawah dari pusat juga aurat. Jangan kamu dedahkan paha dan jangan memandang paha orang hidup atau orang mati. Bagi perempuan pula syarak menetapkan aurat perempuan lebih dari aurat lelaki d an perempuan wajib memelihara auratnya dengan sempurna lebih dari apa yang diwaj ibkan ke atas lelaki sebagaimana sabda Rasulallah: Tidak halal bagi perempuan ya ng beriman dengan Allah dan hari akhirat mendedahkan kedua tangannya kecuali set akat ini sahaja. Dan Rasulallah memegang separuh tangannya. |408| Gadis apabila kedatangan haid tidak layak menzahir tubuhnya kecuali muka dan dua tapak tangan hingga sendi pergelangan tangan. Saya percaya seandainya pembuat dasar di Kement erian Pendidikan sedar atau disedarkan tentang kaedah pakaian bagi orang Muslim dan mengutamakan Islam sebagai ugama Persekutuan, Kementerian Pendidikan tidak a kan mewajibkan pakaian seluar pendek bagi murid lelaki dengan pilihan seluar pan jang atau mewajibkan pakaian pinafore tunic dan blouse bagi murid perempuan deng an pilihan memakai baju kurung dan kain sarung serta tudung/ telekung. Peraturan pakaian seragam sekolah Bil. 3/1983 tersebut adalah songsang dan takselari deng an Perlembagaan dan menurut Perkara 4, Perlembagaan ini adalah undangundang utam a Persekutuan dan apa-apa undang-undang yang diluluskan selepas Hari Merdeka dan yang takselari dengan Perlembagaan ini hendaklah terbatal setakat yang takselar i itu. Peraturan tersebut adalah terbatal. Adanya pilihan untuk memakai seluar p anjang atau baju kurung dan kain sarung tidak dapat menyelamatkan atau menjadika n sah Peraturan tersebut. Saya balik kepada Gurubesar yang menyediakan Peraturan Sekolah 1997 Sekolah Kebangsaan Serting (FELDA). Pada hemat saya Gurubesar ini tiada bidang kuasa untuk "melarang semua murid memakai jubah, turban (serban), t opi, ketayap dan purdah." Gurubesar telah melampaui kuasanya dengan menentukan d asar/policy mengenai pakaian seragam sekolah yang terletak hak kepada Kementeria n saja. Gurubesar kononnya membuat larangan itu berdasarkan kepada Surat Pekelil ing Ikhtisas Bil. 9/1995 yang membenarkan: "Gurubesar boleh juga menimbangkan pe rkara-perkara lain yang tidak ada dalam senarai itu mengikut keadaan sekolah mas ing-masing." Gurubesar cuba menjustifikasikan larangan itu dengan berkata masyar akat tempatan berasal dari pelbagai keturunan dan budaya. Anak mereka datang ke sekolah dengan topi lebar keliling, topi lebar di depan, pakai songkok jaw, paka ian lilit kepala ala orang Kelantan. Saya tolak alasan itu kerana kalau itu masa lahnya kenapa pula serban yang dilarang. Alasan itu tidak termakan akal. Gurubes ar telah membuat peraturan melarang murid memakai serban dan purdah di mana Keme nterian tidak melarang pakaian tersebut dalam Peraturan Pakaian Seragam Bil. 3/1 983. Ini menjadikan larangan itu tidak sah, terbatal dan tidak berkesan. Gurubes ar tidak boleh membuang sekolah plaintif 1, plaintif 2 dan plaintif 3 berdasarka n kepada larangan memakai serban itu. Seterusnya peraturan ini setakat mana ia m elarang murid lelaki memakai turban (serban) adalah juga terbatal dan tidak sah kerana ia melarang murid lelaki Sikh memakai turban. Gurubesar mungkin tidak ber niat demikian tetapi itulah yang tersurat. |409| Hj. Ismail Sajad b. Sejat (SD3) seorang Timbalan Pengarah Urusan Pelajar, Bahagian Sekolah di Kementerian Pendi dikan berkata tidak terdapat peruntukan dalam Peraturan yang membolehkan murid s ekolah memakai serban sama ada aliran sekolah biasa atau aliran

35 sekolah ugama. Selama 19 tahun perkhidmatannya beliau tidak pernah membaca perat uran mengenainya. Apabila disoal balas beliau berkata tidak juga terdapat Peratu ran yang melarang murid memakai serban. Walaupun demikian, dasar Kementerian tid ak membenarkan murid memakai serban. Apabila ditanya kenapa murid kaum Sikh bole h memakai turban tetapi murid Islam tidak boleh memakai serban, beliau tidak dap at menjawab. Beliau pun tidak pasti sama ada Gurubesar boleh melarang murid mema kai serban berpandukan perenggan 4.1 Peraturan itu. Saksi menambah Gurubesar bol eh membuat Peraturan yang selari dengan Peraturan/ Pekeliling Kementerian Pendid ikan. Malangnya Gurubesar tidak membuat Peraturan yang selari dengan Peraturan/P ekeliling Kementerian atau merujuk peraturan melarang pakaian turban/serban itu kepada Jabatan atau Kementerian Pendidikan. Plaintif 1 menerangkan kepada mahkam ah dugaan dan cabaran yang dihadapi kerana memakai serban di sekolah. Dia berkat a Gurubesar melarangnya memakai serban tetapi dia enggan kerana mengikut sunnah Rasulallah. Gurubesar menyuruhnya menanggalkan serban dan memakai songkok. Dia e nggan. Pada 2 September 1997 Gurubesar suruh dia tanggalkan serban dan berkata k alau hendak sekolah di sini pakai songkok, kalau tidak pergi balik. Diapun balik . Pada esoknya di perhimpunan pagi dan penyampaian hadiah plaintif 1 menerima ha diah dari Gurubesar. Ketika itu Gurubesar mengetuk kepalanya dengan pensil sambi l berkata 'masih tak tukar serban lagi' dan menyuruhnya balik. Dia pun balik. Pa da 4 September 1997 selepas perhimpunan dan semasa dalam perjalanan ke kelas, Gu rubesar terjumpa plaintif 1 dan mengetuknya dengan fail keras di pipi dan menjen tiknya di dahi serta menyuruhnya balik. Dia pun balik. Antara 6 hingga 14 beliau pergi ke sekolah tetapi dihalau balik setiap hari. Akhirnya pada 27 semasa meng ambil peperiksaan dan sedang menjawab soalan No. 14 Gurubesar datang dan bertany a kenapa degil sangat sambil menumbuk muka sebelah kanan plaintif 1 dan terkena cincin dan mencederakan. Dia disuruh balik dan tidak habis menjawab soalan. Biar terang-terang saya katakan saya percaya keterangan murid berusia 13 tahun ini. Saya amati keterangannya, cara, gaya dan perilakunya semasa memberi keterangan. Sebab kedua ialah Dr. Ishak b. Abdullah (SP2) mengesahkan ada memeriksa murid in i pada 27 dan mendapati 'blue black di sebelah kanan temporal region' muka murid ini. Kecederaan itu boleh disebabkan kena tumbuk yang ada pakai cincin. Anihnya Cikgu Rosiah bt. Suhud (SP4) yang mengawasi peperiksaan pada 27 itu berani berk ata setakat Gurubesar ada menghampiri plaintif 1 tetapi taktahu apa berlaku anta ra mereka dan tidak melihat apa-apa kejadian. Saya dapati cikgu ini melindungi | 410| sesuatu maka mahkamah mencatatkan: "saksi tidak menjawab kerana dia tidak s enang hati hendak menyatakan sesuatu." Saya percaya plaintif 1 dikasari, penjaga nya (SP1) diberitahu, laporan polis dibuat, malahan Gurubesar pun tidak menafika n bulat-bulat. Gurubesar membuat helah dia cuma tunjukkan pensil ke kepala plain tif 1, dia hanya gesel pipi plaintif 1 dengan manila kad dan tidak menumbuknya. Tindakan Gurubesar terhadap plaintif 1 mirip kepada sikap membenci. Pada penelit ian saya bukan murid itu yang dibenci tetapi kedegilannya yang dihasut oleh penj aganya supaya tetap berkeras memakai serban kerana mengikut sunnah Rasulallah. G urubesar merasa kuasanya sebagai Gurubesar dicabar, dia dikafirkan kerana melara ng murid itu memakai serban, Kementerian dipersalahkan kerana melantik beliau, s eorang perempuan, menjadi Gurubesar. Keangkuhan penjaga kononnya serban itu lamb ang keluarga (keluarga Syed) menyakitkan hati. Dia tidak mahu bertemu penjaga. P enjaga 'mengajar' Gurubesar dengan suratnya di ms 22 DBD. Akibatnya ketiga-tiga pelajar ini ibarat si kancil mati terpijak disebabkan dua gajah bergaduh. Yang s atu jahil dan yang satu lagi angkuh. Saya dapati Gurubesar jahil tentang pakaian serban bagi orang Islam dan mempersendakannya (serban dikatakan turban ms 27

36 DBD) dan penjaga pula angkuh dengan keturunannya dan ketaksuban memakai serban y ang hukumnya sunnat dipakai. Kalau tidak manakan dua orang Muslim, kedua-dua pen didik yang telah berkhidmat selama 21 tahun dan 25 tahun tidak dapat menyelesaik an masalah pakaian itu yang jika dipakai dapat pahala jika tidak dipakai tidak b erdosa. Kemuncak dari pertembungan dua insan yang jahil, angkuh dan sama-sama de gil dan bermusuhan itu Gurubesar telah menghantar surat bertarikh 4 Ogos 1997 ke pada penjaga (ms 24 dan 25 DBD) supaya pakaian serban murid-murid itu diganti de ngan songkok untuk mengelakkan tindakan disiplin diambil. Perkara ini dibawa kep ada Jawatankuasa Persatuan Ibubapa Guru Sekolah itu dan PIBG memutuskan dalam su rat bertarikh 5 September 1997 (ms 35 DBD) "menghendaki mengeluarkan atau menuka rkan anak-anak bawah jagaan tuan dari sekolah ini." DAN pada 3 November 1997 Gur ubesar menghantar surat membuang sekolah ketiga-tiga murid tersebut. Adalah dipe rhatikan dua surat terakhir Gurubesar merupakan surat memberitahu keputusan iait u menukarkan sekolah dan membuang sekolah. Surat Gurubesar sebelum itu mengarahk an pakaian serban murid-murid itu diganti dengan songkok "untuk mengelakkan tind akan disiplin diambil". TETAPI langkah tindakan disiplin tidak diambil; Gurubesa r tidak memberi notis untuk tunjuk sebab, atau memberi peluang untuk didengar. S ekiranya diberi peluang itu mungkin penjaga membangkitkan bidangkuasa Gurubesar membuat peraturan melarang pakaian serban, atau menjelaskan hukum pakaian serban itu ialah |411| sunnat iaitu dibuat dapat pahala ditinggalkan tidak berdosa tet api ia sunnah Rasulallah dan orang Muslim wajib mengikut sunnah Rasulallah dan b ahawasanya beliau adalah contoh pemimpin yang terbaik. Penjaga mungkin juga mene rangkan pakaian serban menyentuh akidah sebagaimana murid kaum Sikh memakai turb an yang jika tidak dipakai tidak juga jatuh 'murtad'. Mahkamah ini percaya sekir anya Gurubesar mendengar perkara-perkara di atas beliau tidak mungkin bertindak begitu drastik sehingga menggelapkan masa depan tiga murid ini yang prestasinya cemerlang, cerah dan berpotensi. Dengan tidak memberi peluang untuk didengar mur idmurid itu tidak dapat pertimbangan sewajarnya dan seterusnya tidak juga mendap at pertimbangan sewajarnya untuk dikenakan hukum selain dari dibuang sekolah. Di katakan tiga murid ini disiksa dua kali, sekali oleh PIBG sekolah yang menyuruh mereka bertukar ke sekolah lain dan sekali lagi oleh Gurubesar yang membuang mer eka dari sekolah. Saya tidak sependapat mereka dihukum dua kali atau menerima ba la dua kali kerana tiga murid itu tidak bertukar ke sekolah lain sehingga setela h dibuang sekolah. Pembuangan sekolah murid sekolah tidak sama dengan pembuangan kerja pekerja awam yang tertakluk kepada Perintah Am atau pekerja swasta yang t ertakluk kepada kontrak perkhidmatan. Bagi murid sekolah tidak ada peraturan sed emikian. Walaupun begitu, mahkamah di negara ini telah mengiktiraf common law di England supaya melaksanakan prinsip keadilan semulajadi/ natural justice sepert i audi alterarn partem, nemo judex in causa sua atau peluang untuk didengar dan merayu dan yang menuduh tidak boleh menghakim. Lihat Kanda v. The Government of the Federation of Malaya [1962] MLJ 169. Dan prinsip ini boleh diperluaskan dan tidak tertutup: Raja Malek Muzaffar Shah v. Setiausaha Suruhanjaya Pasukan Polis [1995] 1 CLJ 619; [1995] 1 MLJ 308. Lord Diplock memberi nafas baru dengan mena makan rules of natural justice kepada procedural impropriety untuk merangkumi pe ngkhianatan kepada undang-undang substantif atau prosedural: Council of Civil Se rvice Unions v. Minister for the Civil Service [1985] AC 374.

37 Tiga murid sekolah ini tidak mendapat keadilan kerana tidak diberi peluang untuk didengar melalui penjaganya. Saya putuskan pembuangan sekolah mereka tidak sah, terbatal dan tidak berkesan. Saya perintahkan mereka diterima balik di sekolah itu dan memerintahkan defendan membayar gantirugi dan kos. Untuk menyempurnakan dan menghias penghakiman ini saya menjawab persoalan yang ditanya pada awal peng hakiman ini. Jawapan saya begini: Tidak sempurna iman seseorang Muslim itu jika dia ditanya apa hukumnya bagi seorang Muslim melarang orang Muslim memakai serba n lantas dia menjawab hukumnya sunnat atau harus. Jika terus didesak untuk menja wabnya maka saya jawab setiap orang Muslim ada hak untuk menganut dan |412| meng amalkan ugamanya sebagaimana terjamin di bawah Perkara 11(1) Perlembagaan dan me larang orang Muslim memakainya adalah bertentangan dengan Perkara 3 dan 11 Perle mbagaan dan tak sah dan terbatal. Larangan itu tidak berkaitan dengan undang-und ang am mengenai ketenteraman awam, kesihatan awam atau akhlak di bawah Perkara 1 1(5) yang mengatasi Perkara 3 dan Perkara 11 Perlembagaan. Sebaik-baik tindakan ialah mencegah kemungkaran, tidak memaksakan sesuatu yang baik kecuali dengan co ntoh yang baik dan sebaik-baik ketakbuatan/ omission ialah tidak melarang orang untuk berbuat baik. Lebih makmur tidak dilarang orang Muslim memakai serban dan menutup aurat. Biarlah mereka menjadi contoh yang baik. Masalah ini timbul keran a orang Melayu takut kepada Bahasa Melayu dan orang Muslim takut kepada Islam. M ereka bertindak apa kata orang. Mereka tidak bertindak apa kata diri.

38 [1997] 1 CLJ Supp 473 MAHENDRAN MANIKAM v. PUBLIC PROSECUTOR HIGH COURT MALAYA, KUALA LUMPUR KC VOHRAH J [CRIMINAL APPEAL NO: 42-4-95] 6 SEPTEMBER 1996 |475| JUDGMENT KC Vohrah J: Th e appellant was charged that between 15 November and January 1994 at the office in Mahendran's Sports Centre 1994 at Sentul Pasar, Kuala Lumpur he committed rap e on a girl aged 15 years 10 months, an offence punishable under s. 376 of the P enal Code . Under the fifth description of the definition of rape in s. 375 of t he Penal Code , a man commits rape who has sexual intercourse with a woman with or without her consent when she is under 16 years of age. The prosecutrix (SP3) in this case was born on 22 January 1978. At the close of the prosecution's case the learned Judge of the Sessions Court amended the charge to one of the appell ant having committed rape on the girl between 15 November 1993 and 21 January 19 94 at the office in Mahendran's Sports Centre. |476| The appellant was convicted on the amended charge and sentenced to 10 years imprisonment and four strokes o f the rattan. To be noted is that in her grounds of decision, the Judge, in amen ding the charge at the close of the case for the prosecution, mentioned that the accused had raped the girl twice during the period 15 November 1993 to 21 Janua ry 1994. But the charge upon which he was called to make his defence and upon wh ich he was convicted was one single charge of rape. A pertinent question that ar ises is, upon which particular offence, which particular act of rape, was the ac cused convicted and sentenced? The offence of rape in law is one single act of u nlawful sexual intercourse. It is not a continuing offence (see Ali Hyder v. Emp eror [1939] 40 CR LJ 280 ). The charge should have been split by way of amendmen t for each offence or the prosecution should have been directed to elect upon wh ich offence the trial should have proceeded (see R v. Jones 59 Cr App R 120 and see ss. 158 , 173(h) and 376 of the Criminal Procedure Code ). I shall be revert ing to this issue of duplicity of charges later in the judgment. Karpal Singh's main contention in the appeal is that the learned Judge should not have called u pon the appellant to make his defence as the prosecution had not proved its case beyond a reasonable doubt. His argument is that the Judge had confusingly, in h er grounds of decision, stated that the prosecution had made out a prima facie c ase against the appellant and yet, notwithstanding the decision in Khoo Hi Chian g v. PP [1994] 2 CLJ 151; [1994] 1 MLJ 265 and now the majority decision in Arul pragasan Sandaraju v. PP [1996] 4 CLJ 597 affirming Khoo Hi Chiang , she had in fact failed to make a maximum evaluation of the prosecution evidence before call ing the appellant to make his defence. Specifically, he pointed out that the Jud ge failed to evaluate the evidence of SP3 in the light of several aspects of the evidence that were adduced, which included, inter alia , a late police report w hich contradicts her evidence, the many contradictions and inconsistencies in he r evidence and between her evidence and the evidence of other witnesses, the evi dence of prosecution witness Dr. Shahrom who made a medical examination on SP3 a nd who said he disbelieved SP3 when

39 she told him that she had been raped once when the medical evidence showed she h ad had multiple sexual intercourses. A perusal of the learned Judge's written gr ounds of decision does show that she did merely narrate the prosecution evidence at the close of the case of the prosecution without any evaluation of the evide nce after which she stated that a prima facie case beyond a reasonable doubt had been made out. But that is not to say that she did not set out in her written j udgment her evaluation. |477| She did so but only after she had stated and consi dered the defence evidence which was a denial that he had any sexual intercourse with SP3. That may have been the form or style she chose to write her judgment and the point to consider then is whether that does give an indication she did e valuate the prosecution evidence before she called upon the appellant to make hi s defence. Looking at the judgment as a whole, it may be said that she did gener ally evaluate the evidence and her finding that the incidents of sexual intercou rse did take place can be justified. However, it is unfortunate that her evaluat ion of SP3's evidence did not pay attention, which was necessary, to the contrad ictions in the approximate times when the sexual intercourses took place having regard to the fact that SP3 celebrated her 16 birthday on 22 January 1994 and th at any intercourse after that date which was consensual does not constitute rape . The evidence of SP3 was that she was a student of Sekolah Menengah Bandar Baru Sentul in 1993 and 1994 and that she took part in the game of hockey where she represented the school and a team called Kelab Bakat Kuala Lumpur. She said that the hockey coach for both the school and the club was the appellant. During tra ining became close to the appellant and assisted him in his shop, Mahendran's Sp orts Centre. She used to sleep nights at the office of the shop together with SP 4, her schoolmate. She stated that towards the end of the November 1993 school h olidays she worked for the appellant and during one night she spent in the shop the appellant fondled and kissed her on the sofa. She testified that SP4 was not aware of it as she was asleep. She stated that she felt the appellant insert hi s male member into her private part and she was naked at that time. While having the connection the appellant told her that he loved her and that he wanted to d ivorce his wife to marry her and she said that she was willing to marry him. Her further evidence was that after this incident of rape there was another inciden t of rape, this time in the bathroom of the accused's shop. She said that it too k place on a day quite near to her 16th birthday and she felt that it was in Jan uary 1994. She also gave evidence of another sexual connection with him which sh e said took place after her 16th birthday. In addition she testified that at var ious times during the time the appellant was coaching the team he had kissed and fondled her. Though there was no evidence by others including SP4 as to the thr ee incidents of intercourse, there were several girls who gave evidence relating to the conduct of the appellant that he kissed and fondled them and that the ap pellant and SP3 were unusually close, with many incidents of their behaving like lovers. |478|

40 The learned Judge made a finding that SP3 had sexual intercourse with the appell ant thrice. Medical evidence did establish that SP3 had multiple intercourses bu t the medical evidence related to the clinical examination of the girl some 2275 months after her 16th birthday. The learned Judge also held that two of these i ncidents of intercourse constituted rape as they took place before SP3's 16th bi rthday whereas the third incident of intercourse took place after her birthday. It is clear, however, that she relied solely on the evidence of SP3, the prosecu trix, for her findings on the approximate times of the sexual intercourses. The learned Judge should have noticed that while SP3 had stated that one act took pl ace before 1994 and the other act took place on a day near her birthday and that she felt this was in January 1994 yet under cross-examination she was categoric al that both acts took place in 1993. Her evidence clearly showed her uncertaint y about the dates. But this is not all. The learned Judge failed to consider dis crepancies in the police report of SP3 made on 4 April 1994, some 2275 months af ter her birthday. The report contradicts her evidence as to the times when the i ncidents of intercourse took place. It is also clear that she did not take into account the evidence of SP13, chief inspector Zaiton, who was the one who record ed the police report of SP3 (P4) in regard to the discrepancies in the dates. SP 13 told the Court that SP3 had difficulty in fixing the time of the event. She s aid that she subsequently took a statement from her under s. 112 of the Criminal Procedure Code and she had to do it twice as there was a discrepancy between he r statement and the police report. She stated that the discrepancy was as regard s fixing the date of incident - in the police report the date of incident was Ja nuary 1994 whereas in the statement SP3 had fixed the date of the incident as be ing at the end of November 1993. SP13 said that she realised that the discrepanc y was important as after 22 January 1994, SP3 was 16. ("Perbezaan itu ialah tent ang anggaran tarikh kejadian - dalam laporan polis pengadu mendakwa dalam bulan Januari 1994 tetapi dalam percakapan yang diambil pada 24 Mei 1994 dia beritahu tarikh anggaran kejadian berlaku adalah pada penghujung bulan November 1993. Ini adalah penting. Selepas 22 Januari 1994, umur (SP3) genap 16 tahun"). Inspector Zaiton was quite right when she said that it was important to clarify the discr epancy as to the date; it made all the difference whether the two incidents of i ntercourse which the learned Judge said constituted rapes were indeed statutory rapes or mere acts of consensual sex between two parties above 16. |479| This is what the prosecutrix said in her police report (certified translation from Baha sa Malaysia) in regard to the acts of sexual intercourse which she had with the appellant: One day, in the month of January 1994, Mahendran asked me to do some work in his office together with (SP4). That night the three of us slept there w here Mahendran had sexual intercourse with me without my consent and told me not to tell anyone. This happened twice at the same place and beside that I was mer ely being fondled and kissed. The last time I had sexual intercourse was during the last Hari Raya. (Pada suatu hari, dalam bulan Januari, 1994, Mahendran pangg il saya buat kerja di pejabatnya dengan (SP4). Pada malam itu kami bertiga berma lam di situ, di mana Mahendran telah menyetubuhi saya tanpa kerelaan saya dan su ruh saya jangan beritahu sesiapa. Kejadian ini berulang sebanyak 2 kali lagi di tempat yang sama dan di samping itu saya cuma diraba dan dicium. Kali terakhir s aya disetubuhi sebelum Hari Raya lalu).

41 It can be seen in the police report that the acts of intercourse took place befo re in January 1994, flatly contradicting the evidence of SP3 on very material pa rticulars. Was the first act of intercourse at the end of November 1993 or Janua ry 1994? If it was in January was it before her 16th birthday which was celebrat ed on 22 January 1994 or after her birthday? There is clearly uncertainty as to whether the sexual connections took place before or after her 16th birthday. If any of the acts took place after her 16th birthday were they consensual or force d upon her? The issue of whether the first two connections were consensual were not dealt with by the learned Judge as she considered that the acts had taken pl ace before her 16th birthday. And that leads me to the issue of duplicity of cha rges. Under s. 163 of the Criminal Procedure Code for every distinct offence of which any person is accused there shall be a separate charge. As was pointed out earlier, the offence of rape is not a continuing offence; the offence of rape i s one single act of unlawful sexual intercourse. The prosecution's case related to two acts of unlawful sexual intercourse on two different dates and at two dif ferent places and clearly two different distinct offences and two separate charg es ought to have been framed against the appellant. Ordinarily the duplicity in a charge may be treated as a mere irregularity unless the duplicity consists of two alternative charges in the charge and it is impossible for the defendant to know with certainty with what he was charged and of what he was convicted (see C ourt of Appeal case of See Yew Poo v. PP [1949] MLJ 131 relying on Yap Leow Swee v. PP [1937] MLJ 225 , PP v. Mohamed Fathi [1979] 2 MLJ 75 , Ramachandran v. PP [1972] 2 MLJ 183 ; see however R v. Jones 59 Cr App R 120 . |480| In the case u nder review although the accused was convicted on one offence of rape under one charge, the learned Judge had taken into account two acts of sexual intercourse under one charge. As was discussed earlier in the judgment what is not certain i s the time when the two acts of sexual intercourse took place, whether before or after the 16th birthday of SP3. This is thus not a case of the only issue being one of duplicity of charges. The issue of duplicity and of its consequences are subsumed under a more and obvious fundamental infirmity that goes to the root o f the offence of rape of a female under the age of 16 - that there is reasonable doubt as to whether the two acts of sexual intercourse took place when the fema le was aged below 16. The law has to take its course. I have to resolve the doub t in favour of the appellant and accordingly I allow the appeal. I set aside the conviction and sentence.

42 [1999] 3 CLJ 494 PP v. ROSLAN IMUN HIGH COURT MALAYA, JOHOR BAHRU ABDUL MALIK ISHAK J [CRIMINAL R EVISION NO: 43-3-99] 17 JULY 1999 |496| JUDGMENT Abdul Malik Ishak J: The New St raits Times dated 14 July 1999 carried a front page report and the photograph of the accused with the caption: Grass cutter jailed 20 years for causing grievous hurt to school boy. The Star too in its edition dated 14 July 1999 carried the report and the photograph of the accused with an eye catching caption, in its fr ont page: Monster jailed. The popular Malay daily, Utusan Malaysia, in its front page report dated 14 July 1999 carried the photograph of the accused with the c aption: Bekas banduan sula murid di penjara 20 tahun. (An ex-convict who impaled student jailed 20 years) Public interests must have been visibly stirred by the se eye catching phrases and the stories that unfolded thereto. The learned Sessi ons Court judge Madam Siti Mariah bte Hj. Ahmad in her wisdom imposed the maximu m 20 years' imprisonment on the accused for an offence under s. 326 of the Penal Code. That section is worded thus: Whoever, except in the case provided by sect ion 335, voluntarily causes grievous hurt by means of any instrument for shootin g, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substanc e, or by means of any substance which it is deleterious to the human body to inh ale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for a term which may extend to twenty years, and s hall also be liable to fine or to whipping. In exercising my revisionary powers under ss. 323(i) of the Criminal Procedure Code (FMS Cap 6) ("CPC"), I called fo r the record of proceedings for the purpose of satisfying myself as to the corre ctness, legality or propriety of any finding, sentence or order recorded or pass ed, and as to the regularity of any proceedings of the Sessions Court in questio n. In Re Soo Leot [1956] 22 MLJ 54, Buhagiar J dutifully followed the principles laid down by Jenkins CJ in Emperor v. Lachiram ILR 28 Bom. 533, and his Lordshi p succinctly said that: |497| ... the powers of the High Court in revision are e xercisable at the discretion of the court and that discretion is untrammelled an d free, so as to be fairly exercised according to the exigencies of each case.

43 Was the revision necessary? This was a case where the accused, a grass cutter an d an exconvict, who was just released from prison on 16 February 1999 after serv ing a 20 year jail sentence for raping a minor who subsequently died in 1985 and for that he was charged under s. 304 of the Penal Code before the High Court in Muar on 16 October 1985, had the audacity to commit a heinous crime on 1 June 1 999 by violently shoving a 60 cm stick up the anus of his victim, a young innoce nt schoolboy. The reporters had a field day and without them I would not know of the seriousness of the offence and there would not be a need to revise this cas e. The innocent schoolboy, aged 12, survived the ordeal. Clearly the accused is a devil with a human mask. Without a doubt, the accused had committed a heinous and inhuman offence causing inexplicable pain and trauma to that schoolboy. The medical report makes for an interesting reading. It took the doctors 5275 hours to surgically remove the stick from the boy's anus. Society has to be protected from monsters like the accused. This court has a duty, nay an onerous one, to re vise the order of the Sessions Court to suit the facts of the case. The offence was committed on 1 June 1999 at about 5pm to 6pm along Jalan Tun Ibrahim, Bandar Tenggara, Kota Tinggi and it was the swift action of the police that resulted i n the arrest of the accused on the same day in his house in Bandar Tenggara. On that fateful day, the accused had stopped that schoolboy who was riding his bicy cle alone on the pretext of asking for help. At that time, the accused was carry ing a sack of durians and he had asked the schoolboy for assistance to transport the durian fruits on the bicycle ridden by the school boy to a nearby bush. The school boy willingly obliged not knowing what was in store for him. On arrival at the designated place, the accused repeatedly punched the schoolboy until he f ell unconscious. Having successfully overpowered the young school boy, the accus ed then used a 60 cm stick with its leaves and branches protruding and forcefull y shoved it into the school boy's anus. That must have been very painful. When t he schoolboy recovered consciousness, he could not move and he experienced sharp pain and profuse bleeding in his anus. At that time, the accused was no longer in sight. The boy's father Abdul Razak Rahmat had gone out to look for his son w hen his son did not return home by 6.30pm. That frantic search proved fruitful. Abdul Razak Rahmat managed to trace his son who was at that time lying on the gr ound with his pants pulled down and the stick was seen protruding from his son's anus with blood oozing out profusely. The medical report showed that 5 cm of th e stick was seen protruding out from the schoolboy's anus with minimal bleeding, which by then had dried. The other end of the stick went right up to the surfac e of the chest skin puncturing the |498| school boy's urinal bladder and rupturi ng his small and large intestines with severe tears in the anus. Medically speak ing there was an anterior anal tear about 1 cm with a perforated urinary bladder at both its anterior and posterior walls. Ileal serosal tears with haematoma at the middle 1/3 were detected at two places. There was a greater omentum tear wi th diaphragmatic perforation at the anterior attachment. Multiple abrasions on t he school boy's chest was also detected. Part of the stick under the sternal ski n from the xiphisternum to below the suprasternal notch measured 15 cm long. The doctors too found two twigs in the bladder with a few leaves in the peritoneal cavity. The surgical operation on the school boy was conducted successfully and the operation was focussed on: Exploratory laparotomy with repair of the anal te ar and urinary bladder; with repair of the ileal serosa, appendicectomy, diaphra gmatic tear repair with proximal sigmoid loop colostomy and suprapubic cystostom y. After the operation, the school boy was kept in the ICU ward for two days for management purposes. On the third day of the schoolboy's stay in the hospital, he was transferred to the

44 general ward. It was said that post operatively the schoolboy's recovery was une ventful. Psychiatric follow up was accorded to the schoolboy. On 26 June 1999, t he schoolboy was discharged from hospital and his follow up was scheduled on 8 J uly 1999. Distal looporgram was conducted on the schoolboy on 12 July 1999. In m y judgment, shoving a stick of that length forcefully into the anus of the schoo lboy with the other end located at the surface of the chest skin was done delibe rately and it constituted violence of the highest degree. As an instrument withi n the meaning of s. 326 of the Penal Code, the stick shoved into the anus of tha t schoolboy in that fashion was likely to cause death. It was an unimaginable ac t, a behaviour of the dastardly. Indeed the accused found it fashionable to do s o. In his cautioned statement, the accused admitted to that dastardly act on the innocent schoolboy. Surprisingly, in his cautioned statement too the accused pr oclaimed to the whole world at large that he did the same thing to another young boy in Kulai at the Shell petrol station in April 1999 and that boy had since d ied. Both the deputy public prosecutors in the persons of Mr. Teo Say Eng and Mr . Ishak Mohd Yusof jumped up to the occasion and in open court showed me the inv estigation papers of the Kulai episode with photographs of the deceased boy. The accused on being shown the photographs of the Kulai episode in the investigatio n papers unabashedly admitted to being responsible for that heinous crime also. Both the deputy public prosecutors submitted that the accused was not charged fo r that Kulai episode and that was the end of the matter as the powers of the pro secution are beyond the realms of the courts. |499| As stated earlier s. 326 of the Penal Code carries a sentence of 20 years' jail, a fine or whipping. Section 288(i) of the CPC gives this court the power to order whipping not exceeding 24 strokes in the case of an adult recalcitrant like the accused. Section 325(ii) of the CPC enacts that no order under this section shall be made to the prejudic e of the accused unless he has had an opportunity of being heard, either persona lly or by advocate, in his own defence. Having accorded the accused the right to address the court, the accused said that he deserved to be given the rotan in a ddition to the 20 years' jail sentence imposed by the Sessions Court. In repenti ng, the unrepresented accused said: "Hopefully, Allah will forgive me for my sin s." The accused further said as follows: I understand that I must be punished se verely for committing such a heinous act. I am remorseful and deeply regret my a ctions. I agree that the sentence passed by the Sessions Court was inadequate. T herefore, I want the court to order that I be whipped 20 times so that I can cle anse my sins. In my years of service, I have yet to come across a case of this n ature. In India, the quantum of punishment for cutting off a wife's nose for int riguing with another man depends on the time of the commission of the grievous h urt, whether committed instantly or long after the husband had found himself dis honoured (Sulamut Russooa [1865] 4 WR (Cr) 17). The case of Jamil Hasan [1974] C ri LJ 867 All which followed the case of Chaurasi Manjhi [1970] Cri LJ 1235 (Pat ) was quite unique. There the accused had bit off the tip of his wife's nose wit h his teeth, and the High Court confirmed the conviction and sentence of rigorou s imprisonment for a period of one year. In India, there were many cases of nose cutting and these cases showed deliberate designs of brutality and adequate pun ishments were meted out accordingly (Ismail Umar [1938] 40 Bom. LR 832; 39 Cr. L J 928; [1938] AIR (B) 430). I hope there would not be any cases of nose cutting in Malaysia. The accused here is an exception to the general rule. Pushing a sti ck

45 forcefully measuring 60 cm long into the anus of the schoolboy that went right i n towards the chest level must surely be documented as the first case of its kin d in Malaysia. It was cruelty at its height; beyond words or description. The pa in, agony, trauma that the schoolboy went through cannot be put into words. Whip ping, as an additional sentence to that of 20 years' imprisonment, must surely b e the best anecdote for the accused. It would definitely deter the accused and o thers of his ilk who are bent on committing the same offence in the near future. The lawbooks are replete with authorities on whipping. I will now cite a few of them. Adams J in Ja'afar&Ors v. Public Prosecutor [1961] 27 MLJ 186 laid down a principle that is worth repeating. There his Lordship said that if |500| whippi ng were to be imposed it should be effective and that to award three strokes wer e said to be useless. The Court of Criminal Appeal of Singapore comprising of Mu rray-Aynsley CJ, Brown and Buttrose JJ in Lim Thian Hen&Ors v. Regina; Tan Beng Seng v. Regina; Chua Ah Seng v. Regina [1953] 19 MLJ 213 aptly said that the sen tence of whipping should be imposed only when there was evidence of a substantia l degree of actual physical violence. Buhagiar J in Mohamed Ali v. Public Prosec utor [1956] 22 MLJ 84 echoed the same sentiments. In Yong Pak Yong v. Public Pro secutor [1959] 25 MLJ 176, Good J emphasised that in cases where no violence was actually used, or brutality actually shown, but where violence and brutality we re undoubtedly involved such as secret society extortion demands, the thug who h as not had occasion to implement his threat of violence deserved corporal punish ment in the form of whipping just as much as if he had inflicted it. It is inter esting to note that s. 288(v) of the CPC enacts that when a person is convicted at one trial of any two or more distinct offences any two or more of which are l egally punishable by whipping, the combined sentences of whipping awarded by the Court for any such offence shall not, anything in any written law to the contra ry notwithstanding, exceed a total number of twenty-four strokes in the case of adults and ten strokes in the case of youthful offenders. The crucial words "at one trial" appearing in s. 288(v) of the CPC gave rise to some problems initiall y but fortunately it was clarified by the Singapore case of Chai Ah Kau v. Publi c Prosecutor [1974] 2 MLJ 191. In that case, the accused was charged for armed r obbery in one court in the morning and that court sentenced him to 18 months' im prisonment and 10 strokes of the rattan. On the same day, he was produced in the same court for another offence of armed robbery and this time the court sentenc ed the accused to three years' imprisonment and 10 strokes of the rattan. The Si ngapore Court of Appeal held that since the offender was an adult and since ther e were two separate trials, the total of 20 strokes was well within the maximum of 48 strokes. I might as well point out that under s. 289 of the CPC, there are three categories of persons who cannot be whipped: (a) females; (b) males sente nced to death; (c) males whom the court considers to be more than 50 years of ag e. Paragraph (c) of s. 289 of the CPC is widely worded so as to provide for case s where the offenders could not produce identification documents to verify their ages. In such an eventuality, the practice has been to refer the offender to th e medical officer who would be required to examine the offender and submit a med ical report thereto. |501| Whipping must be carried out in one go, it cannot be executed on instalment basis. Under s. 290(i) of the CPC, the punishment of whip ping shall not be inflicted unless a Medical Officer is present and certifies th at the offender is in a fit state of health to undergo such punishment. Section 290(ii) of the CPC further enacts that if, during the execution of a sentence of

46 whipping, a Medical Officer certifies that the offender is not in a fit state of health to undergo the remainder of the sentence the whipping shall be finally s topped. But in the case of a youthful offender (s. 290(iii) of the CPC), a Medic al Officer need not be present at the time of the execution of whipping when the whipping is inflicted under s. 293 of the CPC, however the whipping shall not b e inflicted unless it appears to the court that the offender is in a fit state o f health to undergo the ordeal. Section 291(i) of the CPC enacts that in the eve nt a sentence of whipping is wholly or partially prevented from being executed t he offender shall be kept in custody till the Court which passed the sentence ca n revise it, and the said Court may in its discretion either remit such sentence or sentence the offender in lieu of whipping or in lieu of so much of the sente nce of whipping as was not executed to imprisonment for a term which may extend to 12 months, which may be in addition to any other punishment to which he has b een sentenced for the same offence. The court must always act within the law. Se ction 291(ii) of the CPC enacts that the court is not authorised to inflict impr isonment for a term exceeding that to which the accused is liable by law or whic h the said court is competent to inflict. Reverting back to the factual matrix o f the case, the callousness on the part of the accused can readily be seen when he left the schoolboy at the scene to die. That would be the obvious result if n ot for the timely arrival of the boy's father. The police investigations were qu ite thorough. It seemed that soon after committing the offence, the accused had gone to a road side stall and ordered iced tea. There were blood stains on the a ccused hands and when the stall owner enquired, the accused angrily retorted tha t he had just slaughtered a chicken. The behaviour of the accused after the comm ission of the offence must certainly be considered by this court. In Raja Izzudd in Shah v. Public Prosecutor [1979] 1 MLJ 270, the fact that the offender there had repented was given due weight and was considered by the appellate judge. So was a show of remorse in Vennel&Ors. v. Public Prosecutor [1985] 1 MLJ 459, 460 that was demonstrated after the offence was committed was also considered to be pertinent and relevant. Another important factor to note would be this. The scho olboy had just undergone circumcision and the medical report reads as follows: P enis healing, circumcised penis. |502| Just imagine, a young schoolboy who had j ust been circumcised was subjected to abuse of his anus with a 60 cm long stick that was shoved forcibly up to his chest level. The pain must be unimaginable. U nbearable. The despicable act of the accused cannot be condoned by this court. Y oung citizens must be protected from the likes of people like the accused. The i mposition of the sentence of whipping on the accused in addition to the custodia l sentence would serve as a painful reminder to the accused that crime does not pay. This was not the case where this court should give a discount to the accuse d just because he had pleaded guilty before the learned Sessions Court judge. Th e discount in sentencing of between one-quarter to one-third as propounded by th e Supreme Court in Mohamed Abdullah Ang Swee Kang v. Public Prosecutor [1988] 1 MLJ 167 cannot be vigorously applied to the accused as a matter of right. The cr ime committed by the accused - its high degree of physical violence and the pres sing need to protect the nation's young citizens must certainly override everyth ing else. There was no redeeming feature in favour of the accused for this court to consider. I did say in Public Prosecutor v. Doraigunaraju a/l Krishnan [1993 ] 3 CLJ 664, 666 that: The Court must be sensitive and must endeavour to impose the right sentence for the criminality of the accused.

47 Certainly, this was a case of public importance and this court is entitled to re act on perusal of the newspaper reports (Nadir Khan v. State [1975] Cr. LR (SC) 434; [1975] (2) SCC 406; [1975] Cr. AR (SC) 231). This case was prominently feat ured in the local newspapers and this court would fail in its duty if the senten ce was not revised to reflect the gravity and magnitude of the offence. It has b een said, since time immemorial, that in special and exceptional circumstances, the revisional court is entitled to go into the question of fact and do justice, but this power must be sparingly exercised (Kechan Velayudhan v. State of Keral a [1961] 1 Cr. LJ 70 (75), AIR [1961] Ker. 8; Jagir Kaur v. Jaswant Singh [1963] 2 Cr. LJ 413, 417, AIR [1963] SC 1521; Narayan Tewari v. State of West Bengal A IR [1954] SC 726, 728, [1954] Cr. LJ 1808; Ram Chandra v. State [1969] Cr. LJ 11 2, 113, AIR [1969] Bom 20; Anadi Sahu v. Surendra Naik [1969] Cr. LJ 499, 500, A IR [1969] Orissa 70; Digendra Kumar v. Tarini Charan [1970] Cr. LJ 1212 (Tripura ); Ngangon Tomba v. Sri Maibam AIR [1970] Manipur 79; and Chandmal v. State [197 1] Cr. LJ 137 (Raj)). The revisionary court usually accepts the findings on ques tions of facts recorded by a subordinate court unless the finding is manifestly perverse or patently erroneous (Prem Chand v. State [1960] Cr. LJ 317, 318; Prem Kumar v. State [1967] Raj LW 217; and Mathura Prasad v. Mulli [1966] Jab LJ 449 ). I venture to say that the power of interference is to be exercised sparingly and only when there appears to have been a miscarriage of justice or a perverse and unreasonable decision or |503| sentence (Chandrika Prasad v. Mohammad Jafar 41 Cr. LJ 891, 893, AIR [1941] Oudh 7). The revisionary power of the court too c an be exercised when the trial court perfunctorily appreciated the grain of the evidence adduced before it or the trial court had acted capriciously or the tria l court made a finding which was based on inadmissible evidence (Smt Hansabai v. Balkrishna [1981] Cr. LJ 110 (Kant)). It is to do justice that this case was re vised to add the additional punishment of whipping; and the word "whipping" in t he Penal Code does not include whipping with a cat-o'-nine tails (Wong Siew v. P ublic Prosecutor [1933] 1 MC 154) but rather the rattan used for whipping shall be not more than half an inch in diameter (s. 288(iii) of the CPC). Taylor J in Low Oi Lin v. Rex [1949] 15 MLJ 210, at p. 211 once said that: "It is impossible to lay down rules for fixing sentences". But to me the considerations that shou ld influence the sentencers, the principles and guidelines the sentencers should follow, the factors that the sentencers should take into account, have been wel l documented and indicated by the appellant decisions. Indeed Taylor J in the sa me case proceeded to say at p. 211 of the report: There are certain factors such as prevalence, difficulty of detection and injury to the public revenue which o perate in the direction of severity and others such as leniency to first offende rs which operate in the other direction and where, as frequently happens, a numb er of these factors apply in one case the Court must balance them as best it can . Perhaps the best guide can be found in the judgment of Hilbery J in the Englis h case of R v. Ball [1951] 33 Cr. App. R. 164 at p. 165 where his Lordship said: In deciding the appropriate sentence, a court should always be guided by certai n considerations; the first and foremost is the public interest. The criminal la w is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. Sentencing is acknowledged to be a difficult task wi th each case calling for and requiring individual consideration. Lawton J recogn ised the "classical principles of sentencing" in Reg v. J. H. Sargeant [1975] 60 Cr. App. R. 74 and at p. 77 his Lordship summed up the principles in four words : retribution, deterrence, prevention and rehabilitation. The late Abdoolcader J (who retired as SCJ) in Public Prosecutor v. Teb Ah Cheng [1976] 2 MLJ 186

48 at p. 187 favourably spoke of Lawton J's "delightful analysis of the classic pri nciples of sentencing and general aspects of punishment ..." in Reg v. J.H. Sarg eant (supra). The presence of aggravating features are likely to influence the c ourt to put uppermost in its mind the demands of deterrence. The present revisio n was such a case and was not an exception. Aggravating features would take |504 | the following forms: that the offence was premeditated and well executed, that the offender has previous convictions, that the offence is of a type that is di fficult to detect, that the public feels especially afraid of the type of offenc e, that the offender abused a position of trust and that others may need to be d eterred from committing such an offence. I must say that if any of such features are present - the list does not purport to be exhaustive, then the offender can expect to be dealt with sternly. Examples of aggravating features can be seen i n Koh Seng Wah v. Public Prosecutor [1966] 1 MLJ 12 of "cool and calculated" fra uds; in Mohamed Noor v. Public Prosecutor [1966] 2 MLJ 173 where the offence was prevalent and the accused had a previous similar conviction; and in Tay Choo Wa h v. Public Prosecutor [1976] 2 MLJ 95 where there was an abuse of a position of trust. That visionary Judge, the late Abdoolcader J (who retired as SCJ) saw th e dangers of handing out lenient sentences to persons convicted of serious offen ces. Since deterrence and prevention assume positions in the forefront for sente ncing, his Lordship the late Abdoolcader J (who retired as SCJ) in relation to a n appeal which involved an 18 year old male found in possession of a pistol and six rounds of ammunition where the Sessions Court at Ipoh bound the offender ove r for two years remarked that to deal with those offenders by way of binding the m over would "be about as useful and effective as clouting a cobra with a clothe s-peg" (Public Prosecutor v. Teh Ah Cheng [1976] 2 MLJ 186 at p. 188). The cobra in the present revision would undoubtedly be the accused and he needed to be "c louted" with whipping of 20 strokes of the cane. The author by the name of Frank lin Zimring in an article entitled "From Perspectives on Deterrence" NIMH Monogr aph Series, January 1971, Part II, Deterrent Motives and Crime Control Policies, at p. 11 remarked: ... (t)here seems to be a tendency for people, ... to think in a straight line about the deterrent effect of sanctions. If penalties have a deterrent effect in one situation, they will have a deterrent effect in all; if some people are deterred by threats, then all will respond; if doubling a penalt y produce an extra measure of deterrence, trebling the penalty will do still bet ter. To me, deterrence is functional as a technique of crime control and prevent ion. Professor Packer once said (Packer, at Limits of Criminal Sanction, at p. 1 49 [Stanford University Press, 1968]) that "people who commit crimes appear to s hare the prevalent impression that punishment is an unpleasantness that is best avoided." Indeed to threaten an offender with punishment is to some extent a ver y promising strategy of influencing behaviour. Mere threat is not enough. To mak e the threat of punishment a reality, the courts must punish severely those offe nders that are caught and charged. A large and diverse |505| vocabulary has deve loped on the motives for punishment. To me a deterrent punishment is justified a s a means of expressing society's retributive feelings as a method of incalculat ing respect for law and order. The only effective way to suppress crime, in the circumstances of the present revision, would be to impose a severe penalty. In o rder to ensure the curative effects of a threat, the courts must make the threat unpleasant and that is another way of saying that the sentence will have to be severe and harsh.

49 Lest I be accused of an oversight, I must now revert to the punishment as prescr ibed in s. 326 of the Penal Code. It reads: ... shall be punished with imprisonm ent for a term which may extend to twenty years, and shall also be liable to fin e or to whipping. and the words "shall be punished" require the court to impose a mandatory term of imprisonment, be it for one day. While Aitken J in Public Pr osecutor v. Man bin Ismail [1939] 8 MLJ (FMSR) 207 remarked that the words "shal l be liable to" gave the court an absolute discretion as to whether it shall awa rd a sentence of imprisonment or dispose of the case under s. 294 of the CPC. In Public Prosecutor v. Yeoh Eng Khuan [1976] 1 MLJ 238, Abdoolcader J (who later rose to be SCJ) had occasion to deal with s. 39A of the Dangerous Drugs Ordinanc e 1952 which enacted that the accused "shall be liable to imprisonment for a ter m not exceeding fourteen years and not less than three years", and his Lordship substituted the binding over under s. 294 of the CPC with three years' imprisonm ent as his Lordship felt that the three years' imprisonment was a minimum mandat ory term. This was a crime that was committed in a callous and calculated manner . It was orchestrated in late evening in a lonely road where there were no eye w itnesses. Fortunately, the schoolboy survived to tell his harrowing tale. There was absolutely no reason for the accused to have done what he had done. It was d espicable and unforgiveable. It was so grave that it outweighs the mitigating fa ctors which have been advanced by the accused before the learned Sessions Court judge. For the reasons adumbrated above, I unhesitantly revised the sentence imp osed by the learned Sessions Court judge. I ruled and it was my judgment that th e sentence of 20 years' imprisonment to run with effect from the date of arrest of the accused on 1 June 1999 as imposed by the learned Sessions Court judge be and are hereby confirmed. In addition to that, I too ordered that the accused be whipped with 20 strokes of the rattan following the provisions of the CPC. All the exhibits to be returned to the police through the learned deputy public pros ecutors while the documentary exhibits to remain with this court forthwith. |506 | Addendum After I had revised the case and passed sentence accordingly, the lea rned deputy public prosecutors informed me that the accused had filed an appeal against excessive sentence imposed by the learned Sessions Court judge. Not only that, the prosecution too had filed a notice of appeal in regard to the inadequ ate sentence imposed by the learned Sessions Court judge - in obvious reference to the failure of the learned Sessions Court judge to impose whipping. These app eals have now become academic for the following reasons: (1) the accused himself craved to this court to confirm the 20 years' imprisonment with effect from 1 J une 1999 as imposed by the learned Sessions Court judge and begged this court to impose an additional sentence of 20 strokes of the rattan in order to appease h is sins; (2) the accused himself told this court and undertook to withdraw his a ppeal lodged in regard to the purported excessive sentence imposed by the learne d Sessions Court judge; (3) the learned deputy public prosecutors too undertook to withdraw their appeal in regard to the inadequate sentence imposed by the lea rned Sessions Court judge as they have achieved their desired goals through this revision, an exercise of discretion by this court to safeguard public interests .

50 [1996] 3 CLJ 629 PUBLIC PROSECUTOR v SAIFUL AFIKIN MOHD FIRUS HIGH COURT MALAYA, KOTA BHARU DATO' NIK HASHIM NIK AB RAHMAN JC [CRIMINAL APPEAL (JUVENILE) NO: 41-32-95] 29 FEBRUA RY 1996 |630| JUDGMENT This is an appeal by the Public Prosecutor against the or ders made by the Juvenile Court. The respondent, a juvenile, was originally char ged with murder of one Ahmad Farid bin Mat Saleh @ Mohamad on the 28 November 19 92 under s. 302 of the Penal Code . However, the charge was subsequently amended by the prosecution to that of culpable homicide not amounting to murder under s . 304 first limb of the same Code . The respondent pleaded guilty to the latter charge and the Court made the following orders against him that: (i) the offende r be placed under the care of his parents for a period of two years under s. 12( l)(d) Juvenile Courts Act 1947 ('Act'); (ii) the offender be placed under a prob ation order for two years, under s. 21(l) of the Act , and (iii) the guardian of the offender to pay RM1,500 to the deceased's parents as compensation. At the t ime of the offence the offender was 16 years and 1 month old. He was borned on 2 1 October 1976. Briefly, the facts were that on 28 November 1992 at about 4.00 p m the offender met the deceased at Hankyu Supermarket, Kota Bharu. They set eyes on each other, and the offender became scared. The offender claimed that he was chased by the deceased and his friends. Fearing that the deceased |631| might b e going after his twin brother who looked alike and was then in the town, the of fender returned to the town armed himself with a knife. On arrival at the bus st and near Kelantan Hotel, the offender was confronted by the deceased. They excha nged blows. In the course of the fight, the offender stabbed the deceased on the right neck with the knife. The deceased who was then 19, died due to acute haem orrhagic shock. The offender threw away the knife in a well but it was recovered subsequently. The offender surrendered himself. On going through the records, I find that the foregoing orders (ii) and (iii) are defective, in that they were made not in accordance with the provisions of the Act. It appears to me that the Probation Order cannot be made in homicide cases. Section 21(l) of the Act stat es: Where a Juvenile Court by or before which a juvenile is found guilty of an o ffence other than homicide is of the opinion that having regard to the circumsta nces, including the nature of the offence and the character of the offender, it is expedient to do so, the Court may, instead of sentencing him, make a probatio n order. (Emphasis added). The offence under appeal is a clear-cut homicide case under s. 304 of the Penal Code . That being so, the Order imposed under (ii) af oresaid, placing the offender under probation was wrongly made and must be set a side. With regard to the order of compensation under (iii) the law stipulates th at an opportunity to be heard must be given to the parent or guardian before an order of compensation is made against him. Section 13 of the same Act provides:

51 (3) Where a Court thinks that a charge against a juvenile is proved, the Court m ay make an order on the parent or guardian under this section for the payment of compensation or costs or requiring him to give security for the good behaviour of the juvenile, without proceeding to record a finding of guilt against the juv enile. (4) An order under this section may be made against a parent or guardian who, having been required to attend, has failed to do so, but, save as aforesaid , no such order shall be made without giving the parent or guardian an opportuni ty to be heard. (Emphasis added). The provisions are precise and unambiguous. Th ey are there to be followed and complied with. However, the records do not show that such an opportunity was given. The offender's mother was present during the proceeding. She was not examined, neither was she asked whether she was agreeab le to pay the compensation. So, in the absence of any inquiry as regard her affo rdability to pay, the Juvenile Court fell into a serious error when it made the order of compensation against her. In my view, such an irregularity renders a fa ilure of justice which cannot be cured and makes the order invalid. Therefore, t he order (iii) must also be set aside. |632| Encik Zameri bin Mat Nawang for the Public Prosecutor, in urging the Court to substitute the order placing the offe nder under the care of his guardian under s. 12(l)(d) with a more appropriate or der in order to reflect the seriousness of the offence, submitted that the Juven ile Court had failed to take into account public interest in making the order. H e cited the Singapore case of Ang Chin Sang v. Public Prosecutor [1970] 2 MLJ 6 in support. In that case, a boy under 16 years of age was convicted by a Magistr ate's Court for an offence punishable under s. 3 of the Punishment for Vandalism Act 1966 , and was sentenced to three months imprisonment and three strokes of the cane. The sentence was affirmed on appeal. Learned Counsel for the responden t, Encik Mohd. Apandi Ali, however, contended that the case was not relevant for consideration as there was no equivalent Act in Malaysia. The Vandalism Act is "an Act to provide for exemplary punishment for acts of vandalism". With respect , Ang's case was cited by the learned Deputy as an example to show that in suita ble cases, even a boy under the age of 16 could be ordered to be imprisoned. How ever, that case was decided based on the law in Singapore. Unlike the Vandalism Act 1966, the Juvenile Courts Act 1947 is an Act to provide for the care and pro tection of children and young persons. On proof of an offence, the Juvenile Cour t shall, in addition to any other powers exercisable by virtue of this Act or an y other law for the time being in force, have power under s. 12(l) : (a) to admo nish and discharge the offender; (b) to discharge the offender upon his entering into a bond to be of good behaviour and to comply with such order as may be imp osed; (c) to convict the offender to the care of a relative or other fit person; (d) to order his parent or guardian to execute a bond to exercise proper care a nd guardianship; (e) without making any other order, or in addition to an order under para (c) or (d), to make a probation order under s. 21 ; (f) to order the offender to be sent to an approved school or Henry Gurney School; (g) to order t he offender to pay a fine, compensation or costs; and (h) where the offender is a young person and the offence is punishable with imprisonment the Court may, su bject to s. 15(2) , impose upon him any term of imprisonment which could be awar ded by a Sessions Court or, if the Court considers that its powers are inadequat e, commit him to the High Court for sentence.

52 |633| There are, however, restrictions on punishment of children and young perso ns under the Act. Section 15 provides: (1) No child shall be sentenced or ordere d to be imprisoned for any offence or be committed to prison in default of payme nt of a fine, damages or costs. (2) No young person shall be sentenced or ordere d to be imprisoned if he can be suitably dealt with in any other way whether by probation, fine, or committed to a place of detention, approved school, or Henry Gurney School, or otherwise. (3) A young person sentenced or ordered to be impr isoned shall not be allowed to associate with adult prisoners. (Emphasis added). The issue before the Court now is whether the Order placing the offender under the care of his parents under s. 12(i)(d) is suitable in the circumstances of th is case. The offender was charged with an offence of culpable homicide not amoun ting to murder under s. 304 first limb of the Penal Code , which carries a punis hment of imprisonment for a term which may extend to 20 years and shall also lia ble to fine. At the material time the offender was a young person, being above 1 4 and under 18 years of age, and at the hearing of this appeal he was 19 years a nd eight months old. For the purpose of this appeal, the relevant age to be cons idered by the Court is the age when the offender committed the offence and not t he age at the time of the appeal. There can be not the smallest room for doubt t hat this offence is very serious indeed and the offender should be seriously dea lt with. A valuable life was sacrified at the hand of the offender. If not for h is age, I would not hesitate to send him to imprisonment. In the circumstances o f this case, I do not consider a sentence of imprisonment is approriate and call ed for. Bellamy J in Tukiran bin Taib v. Public Prosecutor [1955] 21 MLJ 24 at p age 25 said: It has been stressed by this Court that it is very desirable that y oung offenders, that is, offenders between the ages of 17 and 21 years, who are also first offenders, should be kept out of prison, if possible ... I consider t hat it would be more beneficial to the accused, and in the long run to the commu nity at large, to send him to an advanced approved school rather than to prison ... Though the Tukiran's case was decided 41 years ago, I consider it is still g ood law, and I would adopt the same approach in deciding the case under appeal. To my mind, the order under s. 12(l)(d) is not suitable and commensurable with t he facts and the offence charged. The offender had been detained for two years n ine days when he was charged for murder. I take that into consideration in asses sing a suitable order against him. (see Muharam bin Anson v. Public Prosecutor [ 1981] 1 MLJ 222 FC) . The offender is also a first offender. The end of justice, in my view, would suitably be served if the offender is sent to an advanced app roved school rather than to prison. |634| I therefore quash the order made by th e Juvenile Court, and order that the offender be committed to Henry Gurney Schoo l until he attains the age of 21 under ss. 21(1)(f) and 40 of the Act .

53 [1994] 4 CLJ 637 ZAZLIN ZAHIRA KAMARULZAMAN (BUDAK) MENUNTUT MELALUI BAPA DAN PENJAGANYA KAMARULZ AMAN MOHD ALI lwn. LOUIS MARIE NEUBE RT. AMBROSE J. AMBROSE&LAGI MAHKAMAH TINGGI MALAYA, KUALA LUMPUR DATUK HJ. MOKHTAR BIN HJ. SIDIN H. [GUAMAN SIVIL NO. S5-21 -47-1988] 23 SEPTEMBER 1994 |638| ALASAN PENGHAKIMAN Hj. Mokhtar Bin Hj. Sidin H : Ini adalah tuntutan daripada plaintif ke atas ketiga-tiga defendan di atas kec ederaan yang dialami oleh plaintif pertama semasa ia berada di sekolah. Oleh ker ana plaintif pertama semasa mengambil tindakan ini di bawah umur ia mengambil ti ndakan ini melalui bapanya iaitu plaintif kedua. Defendan pertama adalah guru da rjah di mana kejadian itu berlaku. Defendan kedua pula ialah guru besar sekolah di mana kejadian itu berlaku. Defendan ketiga pula ialah Kerajaan Malaysia iaitu majikan kepada defendan pertama dan kedua. Mengikut keterangan yang telah diber ikan, pada 19 Mac 1985 plaintif pertama yang pada masa itu berumur lebih Kurang tujuh tahun, pelajar Darjah Satu T di Sekolah Kebangsaan Taman Selayang, Selayan g. Beliau baru sahaja tiga bulan masuk ke sekolah tersebut. Pada hari tersebut d i sebelah pagi (masa sebenar didapati pertikaian di antara plaintif dan defendan , walau bagaimanapun ini tidak mustahak) beliau berada di bilik darjah untuk kel as muzik yang diajar oleh defendan pertama. Tidak dipertikaikan bahawa kelas muz ik adalah satu mata pelajaran di dalam darjah tersebut apabila sistem KBSR diper kenalkan ke semua sekolah pada tahun 1984. Juga tidak dipertikaikan bahawa defen dan pertama adalah seorang guru muzik yang terlatih setelah menghadiri beberapa kursus di sekolah-sekolah dan maktabmaktab apabila sistem KBSR akan dan telah di perkenalkan. Defendan pertama juga telah dilatih cara-cara mengajar muzik di sek olah-sekolah. Beliau juga seorang guru lepasan maktab yang menunjukkan ia seoran g yang terlatih. Juga tidak dipertikaikan murid yang berada di dalam Kelas Satu T berjumlah 39 orang. Mengikut keterangan, yang juga tidak dipertikaikan, bahawa pada hari tersebut defendan pertama telah mengajar muzik bertajuk "Gerabak Kere tapi" di mana semua murid darjah Satu T mengambil bahagian. Defendan pertama tel ah memberi arahan bagaimana pergerakan murid-murid mengikut rentak muzik. Adalah jelas dari keterangan kedua-dua belah pihak bahawa defendan pertama telah menga rahkan murid-murid memasukkan bangku tempat duduk di bawah meja tulis masingmasi ng dan pergerakan "gerabak keretapi'' mengelilingi meja-meja murid dan bukan men celah di antara meja. Semasa muzik dimainkan murid-murid memulakan pergerakan ge rabak keretapi dari belakang bilik darjah berjalan keliling bilik darjah. Apabil a tamat satu pusingan dan semasa gerabak keretapi berada di belakang bilik darja h iaitu tempat permulaan, plaintif pertama telah terjatuh dan akibatnya tanganny a telah patah. Adalah jelas kepada saya bahawa semasa membuat gerabak tiap-tiap murid dikehendaki memegang bahu murid di hadapannya. Apabila defendan pertama se dar bahawa plaintif pertama terjatuh dan cedera serta menangis defendan pertama telah membantu plaintif pertama untuk berdiri dan memimpinnya ke meja guru di ma na tangan plaintif pertama telah diletakkan di atas meja guru. Dia kemudian memi nta bantuan dari seorang lagi guru untuk membungkus tangan plaintif pertama deng an surat khabar supaya jangan bengkok. Defendan pertama juga telah memberitahu g uru besar sekolah tersebut (SD2) yang telah mengarahkan defendan pertama

54 dan guru yang seorang lagi membawa plaintif pertama ke Hospital Besar Kuala Lump ur. Guru besar sekolah tersebut telah memberitahu ibubapa plaintif pertama. Di h ospital plaintif pertama telah dimasukkan ke wad kecemasan ditunggu oleh defenda n pertama dan guru yang seorang lagi sehingga ibubapa plaintif pertama sampai. S elepas |639| itu defendan pertama dan guru yang seorang lagi balik ke sekolah un tuk meneruskan tugas mereka. Tidak dipertikaikan bahawa tangan kanan plaintif pe rtama telah patah semasa ia terjatuh itu dan tangannnya dibungkus dengan plaster of paris. Ia juga telah dimasukkan ke dalam wad selama satu malam. Akibat kemal angan itu tangan kanan plaintif pertama dibedah dan terdapat parut di tempat pem bedahan tersebut. Plaintif pertama juga telah menyatakan bahawa tangan kanannya selepas kejadian itu telah lemah dan ia tidak boleh memulis lamalama dengan tang an tersebut. Tangan tersebut juga didapati pendek sedikit. Plaintif telah mengam bil tindakan ke atas defendan di atas kejadian tersebut dan menuntut gantirugi. Adalah jelas kepada saya setelah perbicaraan dijalankan tuntutan plaintif tidak melebihi RM25,000. Mengikut jumlah tuntutan itu ianya adalah tuntutan di dalam b idangkuasa Mahkamah Majistret. Saya telah bertanya kepada Peguam plaintif kenapa tindakan ini di Mahkamah Tinggi dan bukannya di Mahkamah Majistret. Peguam send iri tidak dapat memberi jawapan. Oleh kerana memandangkan perbicaraan kes ini te lah dijalankan dan kes ini adalah satu kes yang lama iaitu kes tahuh 1988 saya t elah meneruskan perbicaraan kes ini. Walau bagaimanapun saya telah memberitahu P eguam plaintif bahawa sekiranya plaintif berjaya di dalam tuntutannya ia hanya b erhak mendapatkan kos yang diberikan di dalam Mahkamah Majistret. Di dalam penya ta tuntutannya plaintif telah menimbulkan kecuaian yang telah dilakukan oleh def endan pertama dan kedua. Walau bagaimanapun di dalam keterangan dan penghujahan plaintif hanya menimbulkan kecuaian defendan pertama sahaja seperti berikut: (a) Defendan pertama tidak memberi arahan dan taklimat yang secukupnya sebelum muzi k dimainkan; (b) Defendan pertama tidak memberi arahan atau amaran supaya muridmurid tidak tolakmenolak atau berlari-lari dan keluar dari barisan semasa geraka n mengikut rentak muzik; dan (c) Defendan pertama tidak memberi penyeliaan yang mencukupi supaya tidak ada kemalangan berlaku. Plaintif tidak meneruskan yang la in setelah mendengar keterangan bahawa semasa kejadian itu berlaku bukanlah muri d-murid sedang melaku satu permainan tetapi mengambil bahagian dalam kelas muzik yang biasanya diadakan dalam bilik darjah itu sendiri. Adalah jelas bahawa sema sa bergerak murid-murid bukanlah mencelah-celah antara meja-meja dan bangku-bang ku, tetapi di tempat lapang mengelilingi meja-meja dan bangku-bangku. Adalah jel as defendan pertama telah mengajar muzik sebagaimana ia dilatih. Pihak plaintif di dalam penghujahannya telah menyatakan bahawa di dalam sesuatu kes di mana mel ibatkan kanak-kanak yang masih mentah tidak ada "contributory negligence". Ia te lah merujuk kepada kes Abraham v. Choo Jit Fung&Anor. [1966] 1 MLJ 97 . Pada pen dapat saya apa yang dinyatakan oleh Mahkamah di dalam kes tersebut bahawa adalah jelas mengikut keterangan bahawa kecuaian sepenuhnya ke atas defendan kerana ke lakuan kanak-kanak di dalam kes tersebut adalah seperti kanak-kanak biasa apabil a melintasi jalan. Prinsip bahawa yang menyatakan tidak ada "contributory neglig ence" tidaklah benar. Walau bagaimanapun saya berpendapat bahawa kes tersebut ti dak terpakai di dalam kes pada hari ini kerana fakta yang berlainan.

55 Di dalam kes pada hari ini saya berpendapat bahawa prinsip yang dinyatakan di da lam kes Government of Malaysia&Ors. v. Jumat bin Mahmud&Anor. [1977] 2 MLJ 103 a dalah terpakai. Prinsip itu dinyatakan oleh Y.A. Raja Azlan, HMP (ia semasa itu) di muka surat 104 seperti berikut: It is accepted that by reason of the special relationship of teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care, for the safety of the pupil. The duty of care on the part of the teacher to the plaintiff must commensurate with his/her opportunity and ability to protect |640| the pupil from damages that are known or that should be apprehended and the duty of care required is that which a careful father with a very large family would take of his own children (see Ricketts v. Erith Borough Council) . It is not a duty of insurance against harm but only a duty to take r easonable care for the safety of the pupil. The duty is aptly described by the l earned Chief Justice of Victoria in the judgment of the Full Court in Richards v . State of Victoria when he said: The duty of care owed by (the teacher) require d only that he should take such measures as in all the circumstances were reason able to prevent physical injury to (the pupil). This duty not being one to insur e against injury, but to take reasonable care to prevent it, required no more th an the taking of reasonable steps to protect the plaintiff against risks of inju ry which ex hypothesi (the teacher) should reasonably have foreseen. In that cas e the plaintiff suffered brain damage as a result of a fist fight which occurred at a High School in a classroom and in the presence of a teacher. Evidence sugg ested that the particular teacher had some difficulties in maintaining disciplin e in the past and that, on the day in question, the blow which caused serious in juries to the plaintiff had been preceded by an argument, a scuffle, and then a fight. The law does not attach strict liability on a school teacher for the tort s of his/her pupil, but only on proof that he/she had failed to exercise reasona ble care in controlling the pupil such as would have avoided the injury to the p laintiff. Since that is a matter of evidence and inference, great care needs to be taken to see that the breach of the duty of care must be causally related to the injury received. In the present case, in considering whether or not the appe llants were in breach of their duty of care to the plaintiff it was necessary fo r the trial Judge to consider first whether the risks of injury to the plaintiff were reasonably foreseeable and secondly, assuming it was, whether the appellan ts took reasonable steps to protect the plaintiff against those risks. ... Beras askan prinsip yang dinyatakan di atas saya sekarang meneliti keterangan sama ada defendan pertama telah cuai di dalam menjalankan penyeliaan dan pengawasan untu k menghindar kecederaan yang dialami oleh plaintif pertama. Eloklah saya mengamb il keterangan plaintif pertama tanpa mengambilkira keterangan defendan sama ada plaintif telah berjaya membuktikan kecuaian defendan pertama. Plaintif pertama t elah menyatakan bahawa sebelum pergerakan mengikut muzik defendan pertama tidak ada memberi pesanan atau arahan supaya murid-murid tidak berlari atau tolakmenol ak semasa melakukan gerakan mengikut muzik tersebut. Perlu diingat di sini bahaw a tiap-tiap kelas muzik diadakan di dalam bilik darjan sendiri dan ini bukanlah kelas muzik yang diadakan bagi darjah tersebut kerana kelas muzik merupakan satu mata pelajaran di dalam sistem KBSR. Adakah kelas

56 muzik itu merupakan satu kelas yang boleh diramalkan satu kelas yang merbahaya y ang boleh menyebabkan kecederaan kepada murid-murid? Apa yang jelas kepada saya perkakas yang digunakan semasa kelas tersebut ialah keset dan radio keset di man a murid-murid tidak terlibat langsung dengan perkakas tersebut. Dengan itu adala h jelas kepada saya tidak ada perkakas yang merbahaya yang telah diberikan kepad a murid-murid bahkan tidak ada perkakas langsung yang telah diberikan kepada mur id-murid. Dengan itu adakah pesanan dan arahan untuk tidak berlari dan tolak-men olak perlu diberi pada setiap kali kelas muzik diadakan mengambilkira bahawa kel as muzik telah selalu diadakan sebelum daripada itu. Penyeliaan di dalam bilik-b ilik darjah oleh guru-guru bergantung kepada keadaan sesuatu kes itu mengambilki ra umur murid-murid berkenaan dan apa yang sedang mereka lakukan. Ini dinyatakan oleh Y.A. Salleh Abas, HMP (ia semasa itu) di dalam kes Mohamed Raihan bin Ibra him&Anor. v. Government of Malaysia&Ors. [1981] 2 MLJ 27 di mana ia berkata: It is settled law that a school teacher is under a duty to exercise supervision ove r his pupils when they are in the school premises, either in the classroom or th e playground. The degree of supervision depends on the circumstances of each cas e, such as the age of the pupils and what they are doing at the material time. I f the teacher knows that the pupils are engaged in doing acts which are likely t o |641| cause injuries to one another, the teacher is under a duty to take steps to ensure the safety of the acts. ... Mengambil prinsip yang telah dinyatakan d i atas adalah jelas kepada saya bahawa di dalam sesuatu kelas biasa yang tidak m erbahaya dan tidak boleh diramalkan mendatangkan apa-apa kecederaan seperti di d alam kelas matematik atau muzik, pada pendapat saya tidak perlu arahan atau amar an diberikan pada setiap kali kelas tersebut hendak dimulakan. Pada pendapat say a adalah memadai pengawasan biasa dibuat oleh guru berkenaan sebagaimana yang di nyatakan oleh Y.A. Raja Azlan, HMP (ia semasa itu) di muka surat 105 di dalam ke s Government of Malaysia&Ors. v. Jumat bin Mahmud&Anor. (rujukan di atas): The s ole question in the present case is a question of causation. In my judgment it c annot be said that the particular teacher carelessly exposed the plaintiff to in jury of the class or type that could reasonably have been foreseen. If the injur y which resulted was injury by the sharp end of a pencil, then for the appellant s to be liable they must have foreseen injury by the sharp end of a pencil. A pe ncil is not a dangerous article. All pupils use pencils in classrooms. Indeed th e trial Judge accepted appellants' contention that to say that there was a duty by them to instruct each and every pupil on the proper use of a pencil was to st retch things to a ridiculous extent. Again, assuming the injury to the plaintiff 's eye was in fact caused by a wrongful act of the teacher - for not being atten tive in class all the time - it cannot be said that it was reasonably foreseeabl e that the injury of this class or character was a reasonably foreseeable result of such a wrongful act. In my opinion, I cannot conclude as a matter of evidenc e and inference that more probably than not constant vigilance in the classroom would have prevented the injury which the plaintiff in fact received. ... Di ata s sebab-sebab yang telah dinyatakan saya berpendapat plaintif tanpa mengambilkir a keterangan defendan telah gagal membuktikan defendan pertama telah cuai untuk menyelia darjah tersebut. Sekiranya, keterangan defendan diambilkira ini lebih m enyulitkan kes plaintif. Di dalam keterangannya defendan pertama menyatakan sebe lum lagu muzik "Gerabak Keretapi" dan murid-murid dikehendaki bergerak mengikut muzik dia telah mengarahkan murid-murid

57 untuk memasukkan kerusi-kerusi di bawah meja. Kemudian dia telah meminta murid-m urid untuk berbaris di belakang bilik darjah dan memberitahu bagaimana gerakan m engikut muzik patut dilakukan. Dia juga mengingatkan murid supaya jangan tolak-m enolak, berlari ataupun keluar daripada barisan. Selepas membuat arahan tersebut defendan pertama memainkan muzik lagu "Gerabak Keretapi" dan murid-murid mula b ergerak keliling bilik darjah padamulanya tetapi semakin lama menjadi rancak. Se masa berbaris murid-murid dikehendaki memegang bahu murid di hadapan. Di dalam p usingan pertama defendan pertama telah nampak plaintif pertama keluar dari baris an dan berlari. Dia telah menegur plaintif supaya jangan berlari-lari nanti terj atuh. Apabila barisan murid-murid sampai di belakang bilik darjah setelah melaku kan satu pusingan defendan pertama nampak plaintif pertama cuba masuk ke barisan dan semasa itu ia jatuh. Selepas itu apa yang dinyatakan oleh plaintif pertama diakui oleh defendan pertama. Plaintif telah berhujah mengatakan bahawa defendan pertama telah cuai kerana tidak ada memberi apa-apa arahan sebagaimana yang din yatakan oleh plaintif pertama. Dengan itu jelas ada pertelingkahan keterangan de fendan pertama dengan plaintif pertama. Keterangan siapakah yang patut diambilki ra? Yang jelas kepada saya semasa kejadian ini berlaku plaintif pertama baru ber umur tujuh tahun dan kejadian ini berlaku sembilan tahun yang lalu. Saya mengamb ilkira ingatan seorang kanak-kanak pada kebiasaannya. Di dalam keterangan beliau sendiri ada menunjukkan ia telah lupa insiden yang berlaku. Dia menyatakan yang dia berada di hospital selama dua malam padahal ibu dan bapanya yang telah memb erikan keterangan menyatakan yang plaintif pertama berada di hospital selama sat u malam sahaja. Dengan itu pada pendapat saya plaintif pertama tidak ingat araha n-arahan yang dibuat oleh defendan pertama ataupun ia tidak mendengar arahan-ara han yang |642| telah diberikan oleh defendan pertama kerana kegairahannya mengam bil bahagian dalam kelas muzik. Di atas sebab-sebab yang dinyatakan saya berpend apat bahawa "on the balance of probabilities" defendan pertama telahpun memberik an arahan yang sewajarnya. Dengan itu plaintif telah gagal membuktikan yang defe ndan pertama telah cuai. Dengan itu saya menolak tuntutan plaintif. Kos kepada d efendan.

58 [1982] CLJ 841 (Rep) [1982] 2 CLJ 502 YOGESWARI NADARAJAH&ANOR. v. GOVERNMENT OF MALAYSIA&ORS. HIGH COURT MALAYA, SERE MBAN WONG KIM FATT JC [CIVIL SUIT NO. 263 OF 1978] 14 MAY 1981 |842| JUDGMENT Wo ng Kim Fatt JC: The first plaintiff in this case was at all material times a Sta ndard II pupil of Sekolah Rendah Jenis Kebangsaan (Tamil), Gemas, Negeri Sembila n. She alleged in her statement of claim that on or about 7 november 1975 at abo ut 7.25 a.m. just before school began, she was lawfully standing at the field of the school when one of the pupils of the school by the name of G. Kanantrin thr ew a cut off branch or stalk from the school hibiscus hedge and injured her left eye as a result of which it had to be removed. She and her mother had brought t his suit for damages against the first defendants the Government of Malaysia as the owners and occupiers of the school, the second defendants the Board of Manag ers as the servants or agents of the first defendants, and the third defendant a s the headmaster and occupier of the school. The defendants denied liability and contended that the plaintiffs had no cause of action against them. The evidence of the first plaintiff was that she was a Standard II pupil of the school in Ge mas. On or about 7 November 1975 she went to the school and before school began that day she was injured in her left eye. At about 7.25 a.m. when her sister and she were coming to the school she was struck in her left eye by a stick while s he was walking near the school toilet. She saw the stick coming towards her but did not have time to avoid it. After the incident her left eye was removed. The first plaintiff called Thanaletchumi d/o Thambusamy, who had just finished her F orm V Examination, to give evidence on her behalf. Thanaletchumi testified that in 1975 she was a pupil in the school. She was near the first plaintiff when she was injured by a piece of wood. Thanaletchumi said in evidence a boy picked up a stick from a hibiscus plant and threw the stick at another boy. There were sev eral hibiscus plants in the school compound. These plants were occasionally trim med and the twigs and branches were left on the ground. She did not know if the children were allowed to play with these branches freely and she could not remem ber if the teachers scolded them for playing with the branches. Before the incid ent the children sometimes played with the twigs and branches. G. Kanantrin, age d 15 years, a pupil of the school, gave evidence on behalf of the defendants. He said that in November 1975 he was a pupil of the school and at about 7.25 a.m. on 7 November 1975 he was playing with a pupil by the name of Muniandy, throwing sticks at each other behind the toilet of the school compound. When he threw th e stick at Muniandy it accidently hit the left eye of the first plaintiff. The s tick was about 3" long and its diameter was about 275", as big as his finger. It was a dry stick and he did not know where Muniandy got the stick from. On cross -examination by learned Counsel for the plaintiffs, Kanantrin said that there we re hibiscus plants in the area where he was playing. These plants were trimmed f rom time to time and the trimmed branches were left on the ground. He did not se e pieces of wood as big as the one thrown by him. Muniandy picked up the 3" stic k first. At the time

59 when Kanantrin was playing with the sticks, there were no pupils around. He said that he has been told by his teachers before not to play with the sticks. From these facts two issues must be considered in deciding whether or not the defenda nts had breached their duty of care to the first plaintiff, that is whether the risk of injuries to the first plaintiff was reasonably foreseeable, and, if so, whether the defendants took reasonable steps to protect the first plaintiff agai nst such risk. |843| The undisputed evidence is that the two school boys were th rowing a stick at each other behind the toilet of the school compound. It is als o not in dispute that the stick or twig accidently struck the left eye of the fi rst plaintiff. Learned Counsel for the plaintiffs submitted that the defendants should have cleared the sticks and twigs from the school compound. Failure to do so would constitute negligence on the part of the defendants and that it was th eir duty to keep the compound safe. In my Judgement, the twigs by themselves wer e not dangerous objects, just as tables, desks and chairs which one would find i n a school. It would not be reasonable to expect the defendants to assign a teac her to supervise or control the playing activities of the pupils. In the present case, there is no evidence to show that the defendants had created a situation or were aware of such a situation which exposed the first plaintiff to foreseeab le risks of bodily injuries. In the circumstances I hold that the risk of injuri es to the first plaintiff was not reasonably foreseeable. The law relating to th e question of schools and their duty of care to the pupils has been well stated by Raja Azlan Shah FJ (as he then was) in Government of Malaysia&Ors. v. Jumat b in Mahmud&Anor. [1977] 2 MLJ 103 , at 104: The law does not attach strict liabil ity on a school teacher for the torts of his/her pupil, but only on proof that h e/she had failed to exercise reasonable care in controlling the pupil such as wo uld have avoided the injury to the plaintiff. Since that is a matter of evidence and inference, great care needs to be taken to see that the breach of the duty of care must be causally related to the injury received. Thus Lord Porter in Bou rhill v.Young [1943] AC 92 , Denning LJ (as he then was) in King v. Phillips [19 53] 1 QB 429 , and the Privy Council in The Wagon Mound [1961] AC 388 , have exp ressed the view that the test of liability for shock is foreseeability of injury by shock. In The Wagon Mound, supra, it was held that if the damage which mater ialised was damage by fire, then for the defendants to be liable he must have be en able to anticipate damage by fire; that he could anticipate damage by fouling the wharf's slipways was held not to be enough. Since that case the principle t hat the damage sustained must not only be caused by the wrongful act, but must b e damage of a class of character reasonably foreseeable as a possible result of that act is now firmly established. There must be testimony from which it is a l ogical and reasonable inference, and not mere speculation or conjecture, that th e school teacher's act contributed to the injury. And, of course, in deciding th is matter, it is relevant to take into account common experience in a big school classroom consisting of 40 pupils. Therefore for a plaintiff to succeed in a ca se such as the present he must adduce direct or circumstantial evidence which te nds to show not only how the accident happened but also that the injury was the result of some conduct on the part of the defendant. Whether the evidence permit s a logical and reasonable inference that the defendant's conduct had some effec t in producing the injury is a question of law which this Court can decide. Brad ford v. Robinson Rentals, Ltd [1967] 1 All ER 267 illustrates the working of the se principles. For the above reasons, the claim is dismissed. As to the question of costs, I think this is a proper case that no order as to costs should be mad e.

60 [1998] 3 CLJ 893 SRI INAI (PULAU PINANG) SDN BHD v. YONG YIT SWEE&ORS HIGH COURT MALAYA, PULAU PI NANG ABDUL HAMID MOHAMAD J [CIVIL APPEAL NO: 12-46-95] 8 DECEMBER 1997 |896| JUD GMENT Abdul Hamid Mohamad J: There were nine connected civil suits in the Sessio ns Court ie, Summons No: 53-25-92 to 5333-92. The plaintiff in each case was dif ferent, but the defendants were the same. All the nine cases were consolidated a nd tried together. The learned Sessions Court judge gave judgment for each of th e plaintiffs against both the defendants, the liability between the two defendan ts being apportioned equally. Both the defendants appealed separately. The first defendant's (Sri Inai (Pulau Pinang) Sdn. Bhd. which will be referred to as "Sr i Inai") appeal was registered as Civil Appeal No: 12-46-95. The second defendan t's (Majlis Perbandaran Pulau Pinang which will be referred to as "MPPP") was re gistered as Civil Appeal No: 12-5195. Findings Of Facts Of The Learned Sessions Court Judge I will now summarise the findings of facts of the learned Sessions C ourt judge. (a) MPPP is a local authority under the Local Government Act 1976. I t was also the owner of the premises known as No. 1, Jalan Park, Pulau Pinang (" the said premises"). (b) Sri Inai is a company which runs a private school of th e same name. (c) MPPP rented the said premises to Sri Inai to be used and was us ed as a hostel for students attending the school. (d) The tenancy was obtained b y way of tender. It was for a term of two years and was subsequently further ext ended for one year on the same terms, until 19 December 1989. (e) The building h ad been in existence even before 1922. It was a two-storey building. The ground floor was made of brick with a mortar covering. The first floor was of timber fr ame and partition walls of brick. (f) During the material time, the top floor wa s occupied by 13 students attending Form 3 to Form 5 and the ground floor by two wardens. (g) There was only one staircase leading from the upstairs hall to the ground floor. The only staircase which gave direct access to a final exit was a djacent to the Forms 3 and 4 rooms, but this had been permanently sealed with fl oorboards. |897| (h) All the windows had been fitted with fixed grilles or BRC m esh except for one on the first floor from which PW2 jumped. There were no other secondary exits although there was no shortage of exits on the ground floor. (i ) There were three dry powder fire extinguishers, two on the ground floor and on e on the first floor. (j) There was no fire alarm. (k) There was no emergency li ghting in the entire building. (1) On 16 February 1989, a fire broke out at the premises, resulting in death of four students and injuring five others. The plai ntiffs are either the injured students or the personal representatives of the de ceased students.

61 (m) The fire had originated from the roof void. The learned Sessions Court judge accepted two possible causes of the fire ie, electrical fault due to dirty or l oose connection in an electrical circuit particularly that of the water heaters and, secondly, stray fireworks (spent fireworks were found on the ground and the fire occurred during the Chinese New Year period). (n) She accepted the evidenc e of PW3 (a fire expert) that if the staircase adjacent to Forms 3 and 4 had not been sealed off, there might have been no loss of life. (o) She also accepted t he opinion of PW3 that except for the one in the kitchen, the fire extinguishers were not placed on exit routes. Further, if there was a fire survey, he (PW3) w ould have recommended a total of nine fire extinguishers per floor, including wa ter fire extinguishers. (p) She also accepted the evidence of PW3 that there sho uld have been at least two protected staircases from the first floor; there shou ld have been a hose reel with a reliable supply of water and smoke detectors at ceiling level on both floors and in the roof void. Fire drills should have been conducted and the students taught to use fire fighting equipments and be acquain ted with escape routes, which was never done. Decision Of The Sessions Court Jud ge As stated earlier she found both defendants liable on equal basis. As regards Sri Inai her gounds were: First, the learned Sessions Court judge held that fir e was a forseeable risk. In the approval letter of the MPPP, condition (e) was t hat the premises was to be used as a hostel and "subject to approvals from the r elevant authorities regarding the change of usage and the requirements regarding prevention of |898| fire, if necessary" (my translation). Sri Inai did nothing to ensure compliance of these conditions. It did not consult the fire department regarding fire prevention measures although it complied with condition (f) by t aking out the fire insurance. The wardens were not given any instructions regard ing fire safety. She relied on the principle enunciated by the Federal Court in Government of Malaysia Ors v. Jumat bin Mahmud&Anor [1977] 2 MLJ 103 . That case says that by reason of the special relationship between teacher and pupil, a sc hool teacher owes a duty to the pupil to take reasonable care for the safety of the pupil. The duty of care on the part of of the teacher must commensurate with his/her opportunity and ability to protect the pupil from dangers that are know n or that should be apprehended and the duty of care required is that which a ca reful father with a very large family would take care of own children. Applying that principle to the facts of the case she found that Sri Inai, having undertak en to accomodate the students in the premises was under a duty to protect them f rom known dangers that should be apprehended, eg, fire. On the facts she found S ri Inai negligent and liable to the plaintiffs. Secondly, the learned Sessions C ourt judge also found that Sri Inai was also liable under the head of "occupiers liability". This is what she said at p. 274: I also accepted the submissions of learned counsel for the plaintiffs that the 1st defendant was liable under the head of occupier's liability. The case of Maclenan v. Segar [1917] 2 KB 325 was relied on. There it was held that 'Where the occupier of premises agrees for rew ard that a person shall have the right to enter and use them for a mutually cont emplated purpose, the contract between the parties (unless it provides to the co ntrary) contains an implied warranty that the premises are as safe for that purp ose as reasonable care and skill on the part of any one can make them. The rule is subject to the limitation that the defendant is not to be held responsible fo r defects which could not have been discovered by reasonable care or skill on

62 the part of any person concerned with the construction alteration, repair or mai ntenance of the premises'. Applying this principle to the facts, the 1st defenda nt was also liable for breach of the warranty that the premises were as safe for the purpose of a hostel as reasonable care and skill on the part of anyone coul d make them. Thirdly, the learned Session's Court judge also found that Sri Inai had contravened the provisions of the Uniform Building By-Laws 1986 (UBBL). As regards MPPP she found that MPPP had a dual capacity, first as a local authority and, secondly, as a landlord. The learned Sessions Court judge found that MPPP was liable for failure to enforce the provisions of UBBL in its capacity as a lo cal authority entrusted with the responsibility to enforce it. She also found MP PP liable in its capacity as landlord. She relied on |899| Tok Jwee Kee v. Tay A h Hock&Sons Ltd.&Town Council Johore Baru[1969] 1 MLJ 195 FC and Anns&Ors v. Lon don Borough of Meton [1977] 2 All ER 492 . She also disagreed with the submissio ns of the learned counsel for MPPP that s. 95(2) of the Street, Drainage and Bui lding Act 1974 (SDBA) offered a complete immunity to MPPP. My Judgment General F irst, let me say that I accept the findings of facts of the learned Sessions Cou rt judge. Besides her finding about the possible causes of the fire which I will discuss in greater detail, I accept her reasons why she found those facts as sh e did. She had discussed the evidence in great detail, gave her reasons why she accepted the evidence of PW3 over other witnesses and why she accepted the evide nce which she did. I find no reason why this court, as an appellate court, shoul d differ from her findings. Secondly, I must also point out that I agree with he r observation that the defence of Sri Inai was to try to shift the blame to MPPP . Cause Of Fire It was argued that the learned Sessions Court judge was wrong in her finding as to what had caused the fire and, consequently, was wrong in her finding as to the apportionment of liability as between the Sri Inai and MPPP. L earned counsel for Sri Inai submitted that the more probable cause of the fire w as a short circuit due to old and faulty state of wiring and resistive system. I think I have to reproduce that part of the judgment of the learned Sessions Cou rt judge. She said at p. 388 of the Appeal Record: According to PW3, since the f ire originated from the roof void, there were only two plausible causes. ie, ele ctrical fault or ignition of part of the roof structure by a stray firework. Two possible causes were resistive heating or short circuit. He ruled out a short c ircuit as there was no evidence of a blown fuse. Resistive heating results from a dirty or loose connection in an electrical circuit, and the amount of heat gen erated would depend on the electrical rating of the appliance connected to the c ircuit. In the instant case, the only appliances capable of generating this sort of fault were the water heaters, of which only the one in the Form 5 room was w orking.

63 There is no dispute that spent fireworks were found in the grounds and that the fire occurred in the Chinese New Year period. Based on the evidence, PW3's opini on as to the two plausible causes of the fire was reasonable and unchallenged, a nd I accept it. |900| What I understand from this passage is that, first, accord ing to the evidence of PW3 there are two possible causes of the fire: (i) electr ical fault and (ii) stray fireworks. As regards electrical fault there are two p ossible causes: (i) resistive heating and (ii) short circuit. She accepted the e vidence of PW3 who ruled out short circuit as the cause of "electrical fault". T hat left her with only one possible cause of "electrical fault" which was "resis tive heating". Then she went on to explain that resistive heating "results from a dirty or loose connection n an electrical circuit, and the amount of heat gene rated would depend on the electrical rating of the appliance connected to the ci rcuit. In the instant case, the only appliances capable of generating this sort of fault were the water heaters, of which only the one in Form 5 room was workin g". The only difference I can see between the finding of the learned Sessions Co urt judge as to the cause of the fire (other then stray fireworks) and that subm itted by learned counsel for Sri Inai is that, the learned Sessions Court judge ruled out short circuit but found that it was due to "resistive heating" resulti ng from "dirty or loose connection in an electrical circuit". Learned counsel fo r Sri Inai submitted that it was due to "a short circuit due to old and faulty s tate of wiring and resistance system". I find the ground as submitted by the lea ned counsel for Sri Inai rather confusing. PW3, whose expert evidence was accept ed by the learned Sessions Court judge, with whom, on this point I have no reaso n to disagree, explained very clearly about "short circuit" and "resistive heati ng". He said at p. 321 of Part A of the Appeal Record (12-51-95). There are 2 ba sic types of electrical faults which can give rise to fire. The first involves d amage to cable insulations resulting in he conductors coming into contact with e ach other and causing arcing which will eventually lead to a short circuit which blows the fuse. The 2nd type is known as resistive heating. When we use electri cal appliances, the electricity is used by the elements in the appliance to gene rate heat. In a working electrical appliance that heat is generated by using a p roperty of electricity which is to do with the fact that if one applies resistan ce to the circuit ie, make it more difficult for the electricity to flow, that r esistance causes that part of the circuit to become hot. Normally, all parts of the electricity leading up to the working applianced are provided with usually c opper conductors with have little or no resistance to the passage of electrical current. It is very rare for an electrical installation for the appliance to be connected directly to the supply. There are usually many connections eg, at the distribution board, at the outlet socket in the plug itself and at the appliance . In addition, it is normal to find in electrical installations that the distrib ution wiring is made up of a number of different lengths of cable |901| joined t ogether at junction boxes. All of those connection points are potential weak eac h points in an electrical circuit. If the conductors are in good condition and i f the connecting terminals are tight, there is very little resistance to the flo w of electricity an those parts will act almost in the same way as a continuous length of cable. In practice, those joints can sometimes become loose and with a tmospheric oxidation can also become dirty. Either of these conditions

64 imposes a resistance to the flow of electricity and in a way analogous to the wo rkings of the element in a working appliance, heating will occur at these weak p oints. It is called resistive heating. The amount of heat generated at such a fa ult is related to the amount of current trying to pass through the fault. It is related to the electrical rating of the appliance connected to the circuit becau se the amount of heat generated is proportional to the square of the size of cur rent. It means heavily rated appliances have a much more severe effect at these faults then an appliance which draws little current such as a lighting circuit o r a fan. In this building the only potential appliances I found capable of gener ating this sort of fault were the water heaters in the 2 bathrooms, although I u nderstand 1 of them was inoperable. In short, "short circuit" and "resistive hea ting" are two different things. They are two different types of "electrical faul t". "Resistive heating" does not cause a "short circuit", as submitted by learne d counsel for Sri Inai. The learned Sessions Court judge had given her reasons w hy she preferred the evidence of PW3 and why she accepted his evidence which I d o not wish to repeat. I have no reason to disagree either with her reasons or he r finding. In any event, whether the fire was caused by resistive heating or sho rt circuit or stray fireworks makes no difference to the plaintiff's case. This is because the plaintiffs are not alleging negligence against the defendants for causing the fire, but for failure to provide reasonable fire safety measures an d safeguards. Negligence Of MPPP The main thrust of the argument of learned coun sel for Sri Inai was that MPPP was negligent. Therefore, Sri Inai was not or eve n if negligent, it was only to a lesser extent. That being the case I have to di scuss and decide on the negligence of MPPP first. |902| The Approach The learned Session's Court judge found MPPP negligent as a local authority and also as a l andlord. This is what she said at p. 282 of the Record of Appeal, Part A: I acce pt the submission for the plaintiffs that the 2nd defendant (MPPP - added) was l iable for injury and damage by their failure to enforce the provisions of UBBL i n their capacity as local authority entrusted with that responsibility and also in their capacity as landlord. Then she went on to discuss and rely on Tok Jwee Kee v. Tay Ah Hock&Sons Ltd.&Town Council Johore Baru [1969] 1 MLJ 195 FC and An ns&Ors v. London Borough of Meton [1977] 2 All ER 492 . In both those cases the local authorities were not landlords. They were held liable as local authorities . I agree with the submission of learned counsel for MPPP that the learned Sessi ons Court judge did not really cover the issue of MPPP's liability as landlord, per se, but as landlordcum-local authority. I gave serious thoughts as to whethe r, faced with this kind of situation, a court should consider MPPP's liability f or negligence in its dual capacities separately or together. I am of the view th at it should be considered separately. I will give my reason by way of an illust ration: A is a traffic police man. It is part of his duty to enforce traffic law s. But he also

65 drives, either in the course of duty or otherwise. If he is involved in an accid ent and the issue is whether he is negligent or not, he is and should be treated like any other driver, not as a driver-cum-traffic policeman. The question will then be whether as a driver he owes a duty of care to other road-users and whet her as a reasonable driver he had done everything he could possibly do to avoid the accident. The law does not say, as I understand it, that as a traffic police men he owes a higher duty of care to other road users or that he should do more than other drivers to avoid the accident just because he is the enforcement auth ority. To say otherwise would be most unfair and unreasonable. It is not who the driver is but how a vehicle is driven which causes an accident. It is also not who the driver is which determines the seriousness of the injury. For that reaso n, it is my view that, in this case, MPPP's negligence should be separately cons idered under its two capacities. Section 3 Civil Law Act 1956 Before going any f urther I will have to deal with this thorny problem first. This arises from the provision of s. 3 of the Civil Law Act 1956 which provides: |903| 3(1) Save so f ar as other provision has been made or may hereafter be made by any written law in force in Malaysia, the court shall (a) in West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in Engla nd on the 7th day of April, 1956, (b) ... (c) ... Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances re nder necessary. Learned counsel for MPPP raised this issue when he argued that t he learned Sessions Court judge should not have followed the case of Anns&Others v. London Borough of Merton [1977] 2 All ER 492 on the ground that that case wa s decided after 7 April 1956. That case concerned a local authority, not a landl ord, but the argument applies now when I am considering the negligence of MPPP a s a landlord as it does as a local authority. Because in both situations we are applying the Common Law of England. Therefore I might as well deal with this iss ue now. This provision always gives me problems. On the one hand it is the law o f this country. It has to be complied. On the other hand, courts in this country , except on very rare occasions, do not seem to pay any attention to this provis ion. Instead the courts appear to apply the Common Law of England, irrespective of the date of the decision as if that provision does not exist at all. I had oc casion to consider this problem once. This was in the case of Napline Sdn Bhd v. Jones Lang Wooton [1995] 1 CLJ 865 . That case went on appeal to the Court of A ppeal and was dismissed on 6 January 1997. I was told that no written judgment h ad been given so far. So I do not really know what the Court of Appeal thought a bout what I said there. And this is what I said: My humble view is that the prov ision of s. 3 of the Civil Law Act 1956 as it stands today, is the law of Malays ia. Courts in Malaysia have no choice but to apply it. So, I will have to consid er the provision of s. 3 of the Civil Act 1956 . That section says clearly that save so far as other provision has been made prior to or may be made after 7

66 April 1956 by any written law in force in Malaysia, the court shall, in West Mal aysia or any part thereof, apply the common law of England and the rules of equi ty as administered in England on 7 April 1956. |904| However, the said common la w and the rules of equity shall be applied so far only as the circumstances of t he States of Malaysia and their respective inhabitants permit and subject to suc h qualifications as local circumstances render necessary. In my view the approac h that the court should take is first to determine whether there is any written law in force in Malaysia. If there is, the the court need not look anywhere else . If there is none, then the court should determine what is the common law of, a nd the rules of equity as administered in England on 7 April 1956. Having done t hat the court should consider whether "local circumstances" and "local inhabitan ts" permit its application, as such. If it is "permissible" the court should app ly it. If not, I am of the view that, the court is free to reject it totally or adopt any part which is "permissible", the court should by it. If not, I am of t he view that, the court is free to reject it totally or adopt any part which is "persible", with or without qualification. Where the court rejects it totally or in part, then there being no written law in force in Malaysia, the court is fre e to formulate Malaysia's own common law. In so doing, the court is at liberty t o look at any source of law, local or otherwise, be it common law of, or the rul es of equity as administered in England after 7 April 1956, principles of common law in other countries, Islamic law of common application or common customs of the people of Malaysia. Under the provision of s. 3 of the Civil Law Act 1956 , I think, that it is the way the Malaysian common law should develop. In taking t his approach I find that the most difficult thing to do is to determine what is the common law of England on 7 April 1956 on negligent misstatement or omission. I am still of the same view. Law As On 7 April 1956: Re Landlord The problem as in Napline is to determine the Common Law of England on the subject as on 7 Apr il 1956. First I will reproduce a passage from Charlesworth on Negligence 4th Ed n (1962) : Liability of vendor or lessor. Neither a vendor nor a lessor of prope rty is under any liability for its dangerous condition after he has parted with possession to the purchaser of lessee. 'The authorities show that if a landlord, or if a vendor of property, sells or lets a house which is defective to such an extent to be a danger to the tenant and his family, or the purchaser, and of co urse to other persons entering the house he is absolved from liability; he is is not under any duty in law resulting from the defective condition of the premise s which he sells or lets. That position is so even if he is himself the person w ho has put the house into that condition and, of course, has knowledge of the da ngerous condition in which it is. It follows that, if he is not under|905| any s uch obligation to the lessee or purchaser, equally he is not under any obligatio n to a stranger who happens to be visiting the premises.' The 9th Edn (1997) of the same book explains the development of the law in England very clearly, at p. 505 to 507: Traditionally, apart from contract or implied warranty, neither a v endor or a lessor of property was under any tortious liability for its dangerous condition once he had parted with its possession to the purchaser or lessee. In the case of a vendor who is not the builder of the property this traditional ru le remains; some development of the law has however taken place in relation to l essors and in relation to vendors who build and sell.

67 The lessor. The general rule was that, apart from any express or implied contrac t, the landlord was under no duty to his tenant or any other persons who entered the demised premises during the tenancy, to take care that the premises were sa fe, whether at the commencement of the tenancy or during its continuance. "A lan dlord who lets a house in a dangerous state is not liable to the tenant's custom ers or guests for accidents happening during the term; for, fraud apart, there i s no law against letting a tumble-down house; and the tenants' remedy is upon hi s contract, if any." Accordingly, unless the tenant had an express contract that the landlord would keep the demised premises in repair, he had no remedy agains t the landlord if he were injured by reason of their lack of repair. This was be cause it was well settled, in the case of the letting of unfurnished houses or f lats, that there was no implied term of the contract on the part of the landlord that either the premises were fit for habitation at the commencement of the let ting, or would be maintained in repair during the tenancy. The letting of a furn ished house or rooms was an exception to the general rule, such an agreement con taining an implied condition that the premises and furniture within them were fi t for immediate occupation or use at the beginning of the tenancy. Should they n ot be so fit, the tenant could terminate the tenancy or sue for damages in respe ct of any injuries sustained or loss and damage suffered. At common law, the lea se transferred all obligations towards third parties from the landlord to the te nant. As a result, the landlord, who could no longer be regarded as the occupier of the demised premises, was exempted from liability for any dangers existing o n them. This remained the situation even where the landlord had taken upon himse lf contractually the obligation of keeping the premises in repair Cavalier v. Po pe [1906] AC 428 established that such a contract being res inter alios acta, di d not confer upon strangers to it any rights against the |906| landlord which th ey would not have had in any event. Thus the landlord's immunity was at one time complete and covered not only nonfeasance such as his omission negligently to c arry out repair but also malfeasance, such as his negligence in installing an un ventilated gas geyser in a bathroom, putting the user at great risk of carbon mo noxide poisoning. His immunity even extended to give protection in respect of ne gligent acts or omissions which had taken place before or after the demise. One of the first steps in the erosion of this immunity of the lessor from actions in negligence was taken in A.C. Billings&Sons v. Riden, where the House of Lords o verruled those decisions which had held the landlord immune from liability in re spect of dangers he had positively created after the demise. Today the immunity has largely disappeared, principally in consequence of the legislation discussed below, but it should be noted that while the decision in Cavalier v. Pope has b een reversed as regards situations falling within the Acts of 1957 and 1972, it is still the law where the facts fall outside their scope. As was pointed out in Rimmer v. Liverpool City Council, ... section 4(1) of the Occupiers Liability A ct 1957, and section 4(1) of the Defective Premises Act 1972, which replaced and extended it, imposed a liability only on landlords who are under an obligation to repair and maintain the tenant's premises and only for defects in maintenance and repair. Section 4(1) of the Act of 1957 limited a landlord's liability to d efault in carrying out his obligations for maintenance and repair, section 4(1) of the Act of 1972, while it extends the ambit of the duty to all persons who mi ght reasonably be expected to be affected by defects in the premises, retains th e limitation by defining defects in section 4(3) as those arising from an act or omission which constitutes a failure by the landlord to

68 carry out his obligations for maintenance or repair. Neither of these sections i mposed on a landlord any duty in respect of the state of a tenant's premises at the date of the letting. The liability of the lessor where the plaintiff has suf fered damage on premises retained by the former in his own occupation has alread y been considered above. He will be liable in tort under the Occupiers' Liabilit y Act 1957. The case of a plaintiff who suffers damage while on adjoining premis es, as a result of the defective condition of premises retained by the lessor in his occupation is considered at the end of the chapter. Cavalier v. Pope [1906] AC 428 and Bottomley&Another v. Parrister and Another [1931] 1 KB 28 were also cited by learned counsel for MPPP. Indeed, one of his complaints against the jud gment of the learned Sessions Court judge was that she did not follow these auth orities. |907| As can be seen from these authorities, the general rule is that ( it appears that in England "was"), apart from any express or implied contract, t he landlord is under no duty to his tenant or any other person who enters the de mised premises during the tenancy, to take care that the premises is safe, wheth er at the commencement of the tenancy or during its continuance. The lease trans fers all obligations towards third parties from the landlord to the tenant. As a result, the landlord, who can no longer be regarded as the occupier of the demi sed premises is exempted from liability for any dangers existing on them. In Eng land one of the first steps in the erosion of this immunity of the lessor came f rom the decision of the House of Lords in A.C. Billings&Sons v. Riden[1958] AC 2 40 . (Note the date). In England today, the immunity has largely disappeared, pr incipally in consequence of legislation, namely the Occupiers Liability Act 1957 and Defective Premises Act 1972 (both English Statutes). However the decision i n Cavalier v. Pope [1906] AC 428 is still the law, in England, where the facts f all outside the scope of the said legislation. This reminds us of the danger of following post 1956 English cases which were in fact decided based on new legisl ations there. In my view the common law as on 7 April 1956 is as stated by the l earned authors referred to above and as stated in Cavalier v. Pope [1906] AC 428 and Bottomley&Another v. Barrister and Another [1931] 1 KB 28 . I do not see an y reason why I should invoke the proviso to s. 3(1) of the Civil Law Act 1956 "t o make such qualifications as local circumstances render necessary." So, the que stion is whether there is any express or implied contract for MPPP to provide th e additional staircase etc to comply with the requirements of UBBL. It is clear to me that there is none. Indeed, MPPP'S letter of 19 December 1986 very clearly states "kegunaan yang dibenarkan - Hendaklah diguna sebagai asrama untuk para p enuntutpenuntut dan kegunaannya adalah tertakluk kepada kelulusan daripada Jabat an-Jabatan yang berkenaan termasuk penukaran kegunaan serta keperluan dari segi perlindungan kebakaran jika perlu". It is true that under para. (g) of the Agree ment Sri Inai covenanted to permit MPPP and its agents to enter and view the sta te and condition of the said premises and to execute and do any repairs alterati ons or painting to the said premises. This is further followed by para. (b) of c l. 4 which gives MPPP a discretion to execute and do any repair to the said prem ises. |908| So, first, MPPP has a discretion whether to do any repair or not. Se condly, on the facts of this case, in my view "repairs" can only mean restoring to good condition of any damage or wear and tear. It cannot mean to renovate to comply with the requirements of UBBL regarding fire

69 prevention. That is the responsibility of Sri Inai, as clearly stated in the let ter of 19 December 1986, of course with the written permission of MPPP (para. (h ) of the said letter). In conclusion, it is my view that on the facts of this ca se, there is no express or implied contract for the MPPP to do any renovation to comply with the requirements of fire prevention. As such, I am of the view that MPPP is not liable as a landlord. MPPP As A Local Authority Now we come to the issue whether MPPP as a local authority, is negligent for failure to apply UBBL to the premises and to see to it that Sri Inai complies with it. (a) Whether UBB L applies to the said premises UBBL came into force on 1 January 1986. Parts VII , VIII and IX and the Schedules deal, basically, with fire requirements, fire al arm etc. The first question is whether UBBL applies to the said premises. Though rather lengthy, for purpose of clarity, it is necessary to reproduce some of th e provisions. It is not disputed that the By-Laws came into force on 1 January 1 986. By-Law 134 provides: 134. For the purpose of this Part every building or co mpartment shall be regarded according to its use or intended use as falling with in one of the purpose groups set out in the Fifth Schedule to these By-laws and, where a building is divided into compartments, used or intended to be used for different purposes, the purpose group of each compatment shall be determined sep arately: By-Law 254 provides: 254. Buildings which on the date of commencement o f these By-laws have been erected, or in the course of being erected or have not been erected but plans have been submitted and approved, and which according to by-law 134 fall within, the classification of Place of assembly, Shop, Office, Other |909| Residential and buildings exceeding 18.5 meters and buildings which are classified as hazardous or special risks shall be modified or altered to com ply with Parts VII and VIII of these By-laws within (a) one year from the date o f commencement of these By-laws in the case of buildings up to three storeys; an d (b) three years from the date of commencement of these By-laws in the case of buildings exceeding three storeys. The Fifth Schedule provides for "designation of purpose groups". Group I, II and III as described as follows: FIFTH SCHEDULE DESIGNATION OF PURPOSE GROUPS (By-law 134, 138) Number of Descriptive Purposes f or which building purpose Title compartment is intended to be group used. I Smal l Private dwelling house residential detached or semidetached (not including a f lat or terrace house) not comprising more than (1) a ground storey; (2) one uppe r storey; and (3) a basement storey or basement storeys

70 II Institutional Hospital, school or other similar establishment used as living accommodation for, or for treatment, care or maintenance of, persons suffering f rom disabilities due to illness or old age or other physical or mental disabilit y or under the age of 5 years, where such persons sleep in the premises III Othe r residential Accommodation for residential purpose other than any premises comp rised in groups I and II. |910| In the Seventh Schedule, the following are liste d under "Other Residential": Hotels, Flats, Dormitories. In the Tenth Schedule t he following are listed under "Small Residential": private dwelling house, Terra ce Type and Semi Detached, Hotels, Hostels and Dormitories are under "Other Resi dential". It is not disputed that that UBBL is in force in Penang and that MPPP is the authority which enforces it. The first dispute is over classification of the said premiss, whether it comes under "small residential" or "other residenti al". This is because MPPP took the view that the requirements for "other residen tial" were not applicable because MPPP classified the premises under "small resi dential". On this point, the dispute is whether By-law 254 is to be interpreted conjunctively or disjunctively. If it is interpreted conjunctively as submitted by the learned counsel for MPPP it means that before Parts VII and VIII of the B y-laws can apply to a particular building, the building must: (1) be used or int ended to be used for one of the purpose groups set out in Fifth Schedule, AND (2 ) it must exceed 18.5 m. in height; AND (3) it must be classified as harzadous o r special risks. On the other hand if the provision is interpreted disjunctively , so long as the building falls under one of the three categories, then Parts VI I and VIII apply. The problem arises because of the use of the "and" in by-law 2 54. I agree with the learned Sessions Court judge who agreed with the submission of the learned counsel for the plaintiffs that by-law 254 should be read disjun ctively. My reasons are as follows: First, to interpret that by-law conjunctivel y will lead to an unreasonable, indeed a ridiculous result. It means that even a factory ("a place of assembly") need not fulfill fire requirements unless: (a) it exceeds 18.5 meters, and (b) it is classified as harzadous or special risk. S econdly, if every building has to be classified as harzadous or of special risk before the provision applies there would be no need to provide the other two con ditions (classification under by-law 134 and exceeding 18.5 meters). |911| Third ly, the word "building is repeated after the word "and" twice making it clear th at that clause refers to different categories of "building". Fourthly, only a di sjunctive interpretation will promote the general legislative purpose ie, public safety. I think this is a case which justifies the court to adopt the purposive approach of interpretation - see passage from judgment Lord Denning M.R. In Nor thman Barnet Council [1978] 1 WLR 221 quoted in United Hokkien Cemeteries, Penan g v. Majlis Perbandaran, Pulau Pinang [1979] 2 MLJ 12 FC. Fifthly, Sharma J in P ublic Prosecutor v. Syarikat Perusahaan Makanan Haiwan Bekerjasama [1969] 2 MLJ 250 said: "It is occasionally necessary to read the conjunction "and" as if it w ere "or" so that the meaning and the intent of the legislature can be carried ou t". I think this Is such a case.

71 Sixthly, by-law 134 provides: For the purpose of this Part every building ... sh all be regarded according to its use or intended use as falling within one of th e purpose groups set out in the Fifth Schedule ... There is no dispute that the said premises was used as a hostel since December 1986 until the date of the inc ident. MPPP rented it to be used as a hostel. So, it is clear that it can only f all under purpose group "other residential" in the Fifth Schedule. Seventhly, in the Seventh Schedule "Other residential" includes "dormitories". In the Eight S chedule "Other residential" includes "dormitories" and "boarding houses." MPPP t ook the position that the by-law was not applicable because MPPP classified the premises as "small residential". With respect this classification by MPPP is wro ng in law, defeats the purpose of the by-law, promotes hazards rather than safet y. It was also not disputed that the provisions of UBBL were not complied with e g, by-laws 166, 167, 168, 172, 174, 225, 237 and 10th Schedule, all concerning s ecurity measures in case of fire. Now we come back to the question whether MPPP, as local authority which was empowered to enforce the UBBL but did not enforce it (indeed by a wrong classification took the view that it was not applicable to the premises) and did not see to it that Sri Inai complied with it, was neglige nt for the failure to do so. |912| Here again we are faced with the problem aris ing from the provision of s. 3 of the Civil Law Act 1956 . First I will refer to Charlesworth&Percy on Negligence 9th Edn (1997) under the heading "liability of Vendors, lessors, Builders and Local Authorities" at p. 509 - 510 . There is a subheading intituled "local authorities". The learned authors said at p. 509: It was at one time thought that a duty of care was owed by the authority supervisi ng work for purposes of the building regulations to avoid putting any future inh abitant of a building under threat of avoidable injury to person or health by re ason of any defect. This duty was elaborated in the well-known case of Anns v. M erton London Borough [1978] AC 728 and a number of subsequent decisions. It was then rejected by the House of Lords in Murphy v. Brentwood District Council [199 1] 1 AC 398 some thirteen years after it had received their approval. The extens ive discussion of Anns in previous editions of this book is therefore superseded . As pointed out by the learned authors, in Murphy the local authority was only concerned with the scope of its duty of care; it did not seek to argue that in f act it owed no duty at all. Lord Keith in Murphy said and was quoted by the lear ned authors: Not having heard argument upon the matter, I prefer to reserve my o pinion on the question whether any duty at all exists. So far as I am aware, the re has not yet been any case of claims against a local authority based on injury to the person or health through a failure to secure compliance with building by elaws. If and when such a case arises, that question may require further conside ration. It is interesting to note that in the 1962 edition of the same book the same part is entitled "Liability of Vendor or Lessor". Missing are the words "Bu ilders and Local Authorities" and not a word was written on the liability of loc al authorities. This can only mean that until 1962 (six years after the 1956 cut -off date) the Common Law of England still did not impose a liability for neglig ence on a local authority for failure to secure compliance with building bylaws.

72 Having also read some other reference books, I am of the view that the common la w of England as on 7 April 1956 [Indeed even after Murphy [1991] did not impose a liability for negligence on a local authority for failure to secure compliance with building by-laws. |913| As a matter of policy, I also think that it would be too much a burden to place on the shoulders of a local authority which is fin anced by the public at large to be liable for damage and injury suffered in a bu ilding (especially if not owned by the local authority.) purely on the ground th at the local authority, as a local authority, has failed to ensure that the hous e owner or tenant complies with all by-laws. We see too often house buyers start knocking down the walls etc of their newly purchased and newly completed houses and do all kinds of renovations and extensions within weeks from the delivery o f possession by the developers. Obviously, it is done without approval as approv al cannot come that fast. Of course they breach the by-laws. Of course the local authority is empowered to and is under a duty to enforce the by-laws. Of course there is a failure on the part of the local authority to enforce compliance wit h the by-laws. But I do not think the law should go so far as to hold that the l ocal authority is liable for negligence for not ensuring that the by-laws are co mplied with in all such cases. Take another example. The police has power to sum mon any motorist for exceeding speed limits. Assuming that an accident occurs an d someone is injured and one of the causes is that the vehicle was travelling at an excessive speed, exceeding the speed limit at the place. Can it be argued th at the police (ie, the Government of Malaysia) should also be held liable for ne gligence for not ensuring that that vehicle did not exceed the speed limit? I do not think so. Indeed it should not be so. On these grounds I am of the view tha t MPPP, as a local authority, is not liable for failure to ensure compliance wit h UBBL. However, this should not be taken as an excuse for authorities not to en force laws they are under a duty to enforce. Laws are made to be enforced. Laws are only effective if they are strictly, consistently and continuously enforced. Section 95(2) SDBA Section 95(2) of the Street, Drainage and Building Act 1974 (SDBA) provides: (2) The State Authority, local authority and any public officer or officer or employee of the local authority shall not be subject to any actio n, claim, liabilities or demand whatsoever arising out of any building or other works carried out in accordance with the provisions of this Act or any by-laws m ade thereunder or by reason of the fact that such building works or the plans th ereof are subject to inspection and approval by the State Authority, local autho rity, or such public officer or officer or employee of the State Authority or th e local authority and nothing in this Act or any by-laws made thereunder shall m ake |914| it obligatory for building, building works or materials or the site of any proposed building to ascertain that the provisions of this Act or any by-la ws made thereunder are complied with or that plans, certificates and notices sub mitted to him are accurate. Learned counsel for MPPP submitted that this section provided a complete immunity to MPPP in the circumstances of this case. The lea rned Sessions Court judge disagreed with his submissions. It is again a question of interpretation.

73 The first question is whether the section is to be read disjunctively or conjunc tively ie, the first part of the subsection ending with the words "... of the lo cal authority" and the part beginning with the words "... and nothing in this Ac t ...". I am of the view that the subsectiqn should be read disjunctively. But, the question is, even if so read, what does it mean? To my mind it means this, i n so far as it is pertinent to this case: (a) The first part exempts the local a uthority from liabilities arising out of any building or other works carried out . (b) The second part exempts the local authority from the obligation to inspect any building ... to ascertain that the provisions of this Act any by-laws made thereunder are complied with. It is clear to me that this provision contains two distinct parts, but neither applies to the facts of this case. This is because the negligence alleged here is for failure to enforce the by-laws, not negligenc e arising out of works carried out or failure to inspect. In my judgment, s. 52( 2) of SDBA does not exempt MPPP from liability in this case, if it is liable und er the Common Law. However, this finding is academic in view of my earlier findi ng that MPPP, as a local authority, is not liable for negligence for failure to ensure compliance with UBBL. I nevertheless express my opinion on s. 52(2) of SD BA as it was argued extensively for consideration of the higher courts. |915| To k Jwee Kee I think I have to say a few words about the case of Tok Jwee Kee v. T ay Ah Hock&Sons Ltd Town Council, Johore Baru [1969] 1 MLJ 195 FC. To try to kee p this judgment as short as possible, I will only reproduce one portion of the j udgment which is relevant to the present case, at p. 201: Therefore, if any brea ch by the council of its duty under section 145 (either through oversight, inept itude, indifference to the low or worse) results in damage to the owner of any a djoining land in a residential zone such as the plaintiff, he has, in my judgmen t, a civil remedy for damages against the council. For easy reference s. 145 of the Johore Town Boards Enactment (Johore No. 118) provides: 145(i) The board sha ll refuse to approve the plan of any new building ... unless such plan is in con formity with the approved plan. On this point, I agree with the submission of th e learned counsel for MPPP that the effect of this judgment has been legislative ly reversed by the Municipal and Town Boards (Amendment) Act 1975 which, by virt ue of s. 6(1) and (2) introduced a new s. 92B into the Johore Town Boards Enactm ent (Johore Enactment No 118) . The relevant portion of the new s. 92B would the n read: The Town Board and President shall not be subject to any action, claim, liabilities or demand whatsoever ... by reason of the fact that such building, w orks or the plans thereof are subject to inspection and approval by the Town Boa rd and President. This section is in pari materia with s. 95(2) of SDBA . On sim ilar facts MPPP would also be saved by s. 95(2) .

74 In any event, I think that that case is distinguishable from the present case. I n that case the court was concerned with a fact situation where the Council appr oved a building plan not in conformity with the approved plan. In this case, it is for failure to ensure that the by-laws are complied with. Liability Of Sri In ai The argument of the learned Council for Sri Inai was, first, to shift the bla me to MPPP. Secondly, he argued that there was contributory negligence on the pa rts of the students. |916| On the first ground, learned counsel argued that the finding of learned Sessions Court judge on the cause of fire was wrong. I have d ealt extensively with this point and will not repeat. I have also discussed the issue of liability of MPPP as a landlord and as a local authority I shall not re peat either. I agree with the decision and reasoning of the learned Sessions Cou rt judge that Sri Inai is liable, first, on the principle that a teacher owes a duty of care to his students. For easy reference I reproduce that part of the ju dgment of the learned Sessions Court judge, with which I agree: In the case of G overnment of Malaysia&Ors. v. Jumat bin Mahmud&Anor [1977] 2 MLJ 103 , the Feder al Court held that by reason of the special relationship of teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care for the safety of the pupil. The duty of care on the part of teacher to the plaintiff must comm ensurate with his/her opportunity had ability to protect the pupil from dangers that are known or that should be apprehended and the duty of care required is th at which a careful father with a very large family would take care of his own ch ildren. Applying this principle to the facts, I found that the 1st defendant hav ing undertaken to accommodate the students in the premises was under a duty to p rotect them from known dangers or those that should be apprehended. For the reas ons set out the danger from fire was definitely one which was foreseeable, and h ad the 1st defendant taken the steps or perhaps even some of the measures on fir e prevention and fire safety recommended by PW3, damage could have been minimise d, if not averted. It was obvious from the evidence of the students that they on ly became aware of the fire after it had been burning for some time. Had an alar m been installed, they may have been aware of it earlier and gained valuable tim e in ensuring a safe exit. Doubtless, PW3's recommendations may have been given with the benefit of hindsight but in my view, some of the measures should have b een taken had the persons in charge applied their minds to the risk of fire or o btained the advice of the Fire Department. On the facts and the law, I found the 1st Defendant negligent and liable to the plaintiffs. I also agree with her dec ision and reasoning that Sri Inai is also liable under the head of "occupiers" l iability. Again I will just reproduce that part of the judgment. I also accepted the submissions of learned counsel for the plaintiffs that the 1st defendant wa s liable under the head of occupier's liability. The case of Maclenan v. Segar [ 1917] 2 KB 325 was relied on. There it was held that 'Where the occupier of prem ises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable |917| care and skill on the part of any one can make them. The rule is subject to the limitation that the defendant is not to be held responsible for defects which could not have been discovered by reaso nable care or skill on the part of any person concerned with the construction, a lteration, repair or maintenance of

75 the premises'. Applying this principle to the facts, the 1st defendant was also liable for breach of the warranty that the premises were as safe for the purpose of a hostel as reasonable care and skill on the part of anyone could make them. I must admit however that I have some difficulty deciding whether Sri Inai is l iable for failure to comply with the by-laws. This is because MPPP, the local au thority empowered to enforce the law, itself took the view that the by-laws were not applicable to the premises. In fairness to Sri Inai, I think I should not h old Sri Inai liable on this ground. However, I do not think that Sri Inai can es cape the responsibility imposed by MPP in the letter dated 19 December 1986 to M r. E.M. Augustine, on behalf of Sri Inai (Rekod Rayuan kes 12-51-95 Bahagian A m uka surat 439). Among other things it was made clear by MPPP that the premises w as to be used as a hostel for students and that the use was subject to approval from the relevant Departments. The learned Sessions Court judge had correctly fo und that Sri Inai had done nothing to comply with the conditions imposed by MPPP , except to take fire insurance. In the circumstances, the question of apportion ment between Sri Inai and MPPP does not arise. Sri Inai is liable, MPPP is not. Contributory Negligence By The Students This point was not argued in the appeal. I take it that it was abandoned. However, I wish to say that I agree with the f indings and reasons given by the learned Sessions Court judge. Quantum The issue of quantum of damages too was not argued in the appeal. Again I take it that it has been abandoned. I confirm the awards given by the learned Sessions Court ju dge. |918| Conclusion In the circumstances, Appeal No. 12-46-95 is dismissed wit h costs here and in the court below. The order of the learned Session's Court ju dge is varied to the extent that the appellant therein (Sri Inai) is wholly liab le for the injuries suffered by the respondents and, consequently, the appellant therein (Sri Inai) is ordered to pay the whole of the damages assessed by the l earned Session's Court judge. Deposit to be paid to the respondents towards taxe d costs. Appeal No. 12-51-95 is allowed with costs here and in the court below. Deposit to be refunded to the appellant (MPPP).

76 [1996] 2 CLJ 90 PUBLIC PROSECUTOR v. NORDIN YUSMADI HIGH COURT MALAYA, KUALA LUMPUR DATO' K C VO HRAH J [CRIMINAL SUIT NO. 42-11-94] 6 FEBRUARY 1996 |91| JUDGMENT K.C. Vohrah J: This is a case involving the rape of a girl below 16 years of age (she was 15 y ears 11 months) at the time of the offence and whether she gave consent for the sexual intercourse is irrelevant having regard to the sixth description under s. 375 of the Penal Code . The facts disclosed by the prosecution and admitted to by the respondent show, however, that she was forced to have sexual intercourse with him. The Judge of the Sessions Court convicted the |92| respondent on his p lea of guilt on the offence of rape under s 376 and she ordered him to be detain ed at a Henry Gurney School. The learned Judge did not indicate the provision of law she was acting under when she ordered the detention. The respondent was 19 years old when he committed the offence and it would appear that the Judge must have felt that she could exercise the additional power made available to the Ses sions Court under the second limb of s. 40 of the Juvenile Courts Act 1947 (Revi sed Courts Act 1947 (Revised - Act 90) although the respondent was not a "Juveni le" within the meaning of the said Act. It is not clear whether the additional p ower under the second limb of s. 40 is only available where the person before th e Court was a "juvenile" when the offence was committed but that does not arise to be decided upon in these proceedings as it is not relevant having regard to t he clear terms of s 376 of the Penal Code which indicate that a mandatory term o f imprisonment of between 5 to 20 years has to be meted on an offender who has c ommitted rape and the fact that the Judge of the Sessions Court had convicted hi m on the offence. Section 376 of the Penal Code reads 376. Whoever commits rape shall be punished with imprisonment for a term not less than five years and not more than twenty years, and shall also be liable to whipping. It will be noted t he offender "shall be punished with imprisonment". On 23 July 1984 the Federal C ourt had occasion to construe the words "shall be punished with imprisonment" ap pearing in s. 193 of the Penal Code . The Federal Court in that case, on a refer ence under the then s. 66 of the Courts of Judicature Act 1964 , gave an answer that it is mandatory in law to impose a sentence of imprisonment. For ease of re ference the whole order of the Federal Court is reproduced below: THE FEDERAL CO URT OF MALAYSIA HOLDEN AT IPOH (Appellate Jurisdiction) FEDERAL COURT CRIMINAL A PPLICATION NO: 9 OF 1984 Penang High Court Criminal Appeal No. 73 of 1983 Betwee n

77 |93| Public Prosecutor ... Applicant And Agambaran s/o Kanee ... Respondent CORA M: THE HONOURABLE TAN SRI DATO' ABDUL HAMID BIN HJ. OMAR, CHIEF JUSTICE MALAYA; THE HONOURABLE TAN SRI DATUK HASHIM BIN YEOP ABDULLAH SANI, JUDGE, FEDERAL COURT MALAYSIA THE HONOURABLE TAN SRI DATO' E.ABDOOLCADER, JUDGE, FEDERAL COURT, MALA YSIA IN OPEN COURT THIS 23RD DAY OF JULY 1984 ORDER UPON MOTION made unto Court this day by Mr. Fong Seng Yee, Deputy Public Prosecutor, for and on behalf of th e Applicant and in the presence of Mr. S. Anthonysamy of Counsel for the Respond ent AND UPON READING the Notice of Motion dated the 19 June 1984, the Affidavit of Fong Seng Yee affirmed on the 8 June 1984 and the certificate of the Public P rosecutor under s. 66(l) of the Courts of Judicature Act, 1964 dated the 8 June 1984 and all filed herein AND UPON HEARING the Deputy Public Prosecutor and Coun sel as aforesaid IT IS ORDERED that this Application for leave to refer question s of law of public interest under s. 66 of the Courts of Judicature Act, 1964 na mely: (a) Whether on a proper construction of the words "shall be punished with imprisonment" appearing in s. 193 of the Penal Code it is mandatory in law for t he Court to impose a sentence of imprisonment. (b) If the answer to question (a) is in the affirmative, then is it wrong in law for the learned Judge not to imp ose a sentence of imprisonment on the accused who was found guilty and convicted for an offence under s. 193 of the Penal Code . be and is hereby allowed AND IT IS LASTLY ORDERED that the answer to the questions above be in the affirmative. GIVEN under my hand and the seal of the Court this 23 July 1984. |94| Soo Ai Li n SENIOR ASSISTANT REGISTRAR SUPREME COURT MALAYSIA Although no written grounds were given for the Judgment it does appear that the Federal Court rested its dec ision obviously on the clear meaning of words "shall be punished with imprisonme nt"; that they connote that a term of imprisonment has to be mandatorily imposed . In this connection it is apposite to set out what Atkin J had to say in PP v. Man bin Ismail [1939] MLJ Rep 161 at 163 where the phrase "shall be liable to im prisonment to 6 months" appearing in s. 3(a) of the Vagrants and Decrepit Person s Enactment had to be construed. Atkin J said that the phrase gives the Court an absolute discretion as to whether it shall award a sentence of imprisonment or deal with the accused in the case under and in accordance with the probationary provisions of s. 294 of the Criminal Procedure Code . He added, however, as rega rds the phrase "shall be punished with imprisonment": If the legislature had int ended that all persons convicted of an offence against this s. 3(a) of the Vagra nts and Decrepit Persons Enactment should be sent to prison whatever the circums tances may be, it would have used the expression "shall be punished with impriso nment", which is to be found so frequently in our Penal Code. In PP v. Leonard G lenn Francis [1989] 2 MLJ 158 the President of the Sessions Court had ordered th e accused, after convicting him, to be bound over in the sum of RM10,000 with

78 two sureties for five years under s. 294 of the CPC after he was found guilty of an offence under s. 8 of the Firearms (Increased Penalties) Act 1971 . The sect ion provided that the offender "shall be punished with imprisonment for a term w hich may extend to fourteen years and with whipping with no less than six stroke s". Edgar Joseph Jr. J (as he then was) said at 161: With respect, in my view th e learned president was clearly in error. Once a conviction is recorded in respe ct of an offence under s. 8 of the Firearms (Increased Penalties) Act 1971 , the provisions of s. 294 of the Criminal Procedure Code are overriden and the Court must proceed to impose a sentence of imprisonment and whipping with not less th an 6 strokes. In the present case there can be no doubt that a term of imprisonm ent had to be imposed by the Judge on the respondent who was found guilty and co nvicted on the charge of rape. The minimum term of imprisonment shall be not les s than five years and that is clear from the peremptory language used in s. 376 . The punishment of whipping is however discretionary. |95| The respondent was t he seventh to have had forcible sex with the victim that night. The learned Judg e of the Sessions Court commented that because of his youth at the time of the c ommission of the offence the respondent must have surely been aroused when he sa w the others having sex with her. With respect to the Judge, the respondent was 19 years old then and surely must be credited with some intelligence to know rig ht from wrong; and he had forcible sex with the young girl. Rape is a serious of fence reflected in that Parliament has imposed a minimum of 5 years imprisonment for the offence. It cannot be treated lightly. It will be a sad day when person s found guilty of rape can plead that they were young when they committed the of fence and ask for lenient sentences and then be dealt with leniently. The probat ion report on which the learned President relied also refers to the fact that th e respondent is young and a first offender but to this the words of Shaik Daud J (as he then was) in PP v. Yap Huat Seng [1995] 415 at 416 are relevant: The res pondent or any other offender may be a first offender and young but those factor s alone do not entitle him to be treated with leniency. To my mind the need to d eter others in the public interest must supersede other considerations. As is we ll known rape cases are very difficult to prove and rape victims especially youn g victims, go through traumatic experience at the time of the offence and later, and also at the trial more often than not they become the accused rather than t he accuser. In view of this, to my mind, once such offence is proved the Courts must and should take very serious view and impose appropriate deterrent sentence s. The public would lose confidence in the Courts if lenient sentences are meted out for such offences. The offence committed was all the more serious because t he respondent had participated in a group like a pack of animals to rape the poo r innocent girl. But in weighing and apportioning a mandatory term of imprisonme nt between five to ten years I had to and did take into account his relative you th, the time spent in a Henry Gurney School and the fact that he pleaded guilty to the charge. I set aside the order of the Judge of the Sessions Court sending him to a Henry Gurney School and substituted a sentence of 5 years imprisonment.

79 [1997] 2 ILR 146 SEKOLAH MENENGAH HIN HUA, KLANG v. YU TING YING INDUSTRIAL COUR T, KUALA LUMPUR CHAIRMAN: YUSSOF AHMAD 2/4-572/91 (7 DECEMBER 1991) 3, 4 APRIL 1 993, 6 JUNE 1994, 7 JUNE, 16 DECEMBER 1996 AWARD NO. 240 1997 [27 MAY 1997] This is a very old case. The alleged dismissal took place at the end of 1990, The dispute was part heard on 3&4 March 1993 by a Chairman who had retired. I began hearing the dispute de novo on 6 June 1994. T he hearing was postponed so many times on the account of the illness of learned Counsel for both parties and the claimant. Hearing was only completed on 6 Decem ber 1996. Learned Counsel for the claimant was asked to submit written submissio n before 30 December 1996 but did not do so until 8 January 1997. Learned Counse l for the company submitted his submission on 14 April 1997. The claimant's case was that she was dismissed without just cause or excuse. The company from what can be made out from its statement in reply contended it was the claimant who wa lked out on her job. It also pleaded that the claimant was inefficient and disob eyed instruction given to her by her employer. However the company in its short submission only submitted on the issue of termination. It seemed to have abandon ed the justification of inefficiency and disobeying instruction. The company in this case is a private Chinese School and the claimant was a teacher. The claima nt joined the school in 1989 on a one year contract, The contract was renewed in 1990. However it was admitted by the principal witness of the school that from 1980 onwards the system of yearly contract of employment of teachers was abolish ed. She testified also that specialised teachers were employed on a permanent ba sis. The claimant was a specialised teacher in Chinese Language and Music and th erefore must be a permanent teacher. The question of renewing her contract in 19 90 therefore should not have arisen. But as will be seen later the School's prin cipal witness contended she wanted to discuss the issue of renewal of her contra ct with the claimant and this arose as a result of the claimant's refusal to bec ome the School's- Dancing Society teacher. The School further contended by refus ing to attend the discussion the claimant had automatically dismissed herself. I n any event on the strength of the authority in the case of Hang Chin High Schoo l/Paining Ha Cawing Associated Schools Association v. The National Union of Teac hers in Independent Schools West Malaysia [1988] 2 IL the claimant in law was a permanent employee. Her employment was "dressed up in the form of temporary fixe d terms contracts." On the issue whether it was the School who dismissed the cla imant or the claimant who voluntarily left her job there were conflicting eviden ce given by both parties. The evidence of the School was that on 20 October 1990 the School's Principal wrote a letter (CO6) to the claimant. The translation of the letter said because the claimant refused to teach the dancing class the Sch ool would like to discuss the issue of the renewal of her contract. It was the e vidence of the witness that the claimant refused to accept the letter and did no t see the principal to discuss the matter. She then said the letter was sent by post. She then wrote

80 another letter dated 29 October 1990 (CO8) and sent it by A.R. Registered Cover. The envelope was produced (CO7). In CO8 the School referred to CO6 and noted th at the claimant refused to accept it and did not see the principal to discuss th e issue of the renewal of her contract. It also stated that the School had writt en to her another letter on 26 October 1990 (as will be seen later this letter w as produced by the claimant as C1. 3) asking her to hand back all documents and that she refused to accept the letter. CO8 again asked the claimant for her expl anation. It is also the evidence of the witness that the claimant did not come t o the School when the first term of the 1990/1991 School session started. It is therefore the School's contention that it was the claimant who voluntarily left the School. The claimant's evidence on the other hand suggested the School termi nated her employment orally and through Cl. 3. Her evidence was that in the morn ing of 16 October 1990 the principal asked the claimant to see the principal in her office. When she reached the office she was told she had created a lot of tr ouble in the School and was asked to resign. When she was asked what the princip al meant she said it was regarding the sponsoring of a teacher from the School t o attend a brass band course in Taiwan. The claimant denied refusing to accept C O6 and receiving CO8. It is the submission of learned Counsel for the claimant t hat the letters CO6 and CO8 were written by the School "to cover up the fact tha t the School had already decided to dismiss the claimant". The Court would tend to agree with learned Counsel for the claimant. It is not denied by the School t hat it written C1. 3 dated 26 October 1990. This letter said as follows: The con tract of employment dated 8 November 1989 between you and Sekolah Menengah Hin H ua will expire on 30 November 1990. Kindly go the departments concerned in our s chool to hand over all matters before you leave the school. Thank you very much for the services you rendered. PIS. According to the Income Tax department, we a re obliged to retain the last month salary pending the clearance of your income tax. Please send the relevant duplicate receipt before we pay the same to you. T he claimant 'had refused to accept the letter. But the contents were made known to her by the School clerk (COW3) who read the letter to her when she came to th e School to return the property of the School in her possession on 2 November 19 90. It is therefore clear that by C1. 3 the School had terminated the claimant's contract. It had thanked her for her services and explained to her how her last month's salary would be dealt with. The School witness confirmed that the lette r was written but the claimant refused to accept it. The only mystery about this letter is that if the claimant had refused to accept it how learned Counsel for the claimant got the letter and produced it in Court through the School's witne ss. It is the School's submission that the claimant voluntarily left her employm ent. The Court on the evidence finds that it was the School who had not renewed her contract. Since the Court has also held that the claimant was in law a perma nent teacher the non-renewal of her contract amounted to dismissal. The School h as not submitted in the alternative that if the

81 Court finds that it was the School who dismissed the claimant then the dismissal was with just cause. From the evidence given by the witnesses of the School the complaints the School had against the claimant were: 1. The claimant was over e motional and was not able to control her class; 2. She slapped a pupil in 1989; 3. She was not able to pronounce Mandarin according to the new Hanyu Pinyi metho d; 4. She refused to teach the dance society in 1990. The Court is satisfied tha t only complaint No. 4 is of a serious nature. The first three complaints were m inor and in any event they took place in the first year of her service. They wer e not serious enough to stop the School renewing her contract in 1990. With rega rd to the complaint that she refused to teach the dance class in 1990 that claim ant's reply is that she was under no contractual obligation to teach the dance c lass. It is true that this was not stated in her appointment letter (CO1). Howev er the claimant is a music graduate from the National Taiwan Academy of Arts. Sh e taught Chinese Language and music in the School. In 1989 she taught the dance society. In 1990 she did not do so but instead was in charge of the brass band. The Court is the opinion that it was not proper for her to refuse to teach the d ance society. However the School did not insist by ordering her to continue to t each the dance society. Instead she was allowed to take charge of the brass band . The Court also feels that it was enough for the claimant to be in charge of on e extra mural activity i.e. the brass band. Again it was only at the end of the year that the School brought its displeasure on this score to the claimant's att ention and this is according to the claimant by asking her to resign failing whi ch she would be dismissed. To be fair, according to the School the claimant refu sed to see the principal to discuss this and refused to accept the letter inviti ng her to see the principal to discuss the matter. The Court has already earlier on made a finding that the School had dismissed the claimant. This is based on the Cl. 3. On the balance of probabilities the Court accepts the claimant's vers ion on the circumstances leading to her dismissal. The School had decided to ter minate her employment and invite her to resign. When she refused C1. 3 was writt en. It cannot be denied that C1. 3 amounted to a dismissal letter. However the S chool wrote CO6 and CO8 to show that it was the claimant who refused to discuss the issue of her refusal to teach the dance society and walked out of her job. T hese two letters cannot be reconciled with C1. 3 which had already dismissed her . Refusal to carry out lawful instructions of the employer is a serious miscondu ct. In this case the claimant refused to teach the dance class. It is a lawful i nstruction. However the Court feels that the School did not impress it upon the claimant that if she refused she may lose her job. The School allowed the state of affairs to carry on for one year. At the same time it allowed the claimant to take charge of the brass band. In the circumstances the Court feels that the di smissal by the School on this ground is not justified. However the claimant was not totally blameless. As a teacher she ought to have been more co-operative wit h the School authority and should not refuse to teach the dance society. If she had good reason to be excused from this duty she ought to have discussed it with the principal and reach an amicable arrangement. In the circumstances the Court orders that 30% should be deducted from the total compensation to be awarded to her, for her contributory misconduct. The Court considers monetary compensation is a more suitable remedy in this case considering the bad relationship that ex isted between the claimant and the School. Her compensation is as follows:

82 1. Backwages from the date of her dismissal 1 November 1990 until last date of h earing subjects to a maximum of 24 months; RM950 x 24 = RM22,800. 2. Compensatio n in lieu of reinstatement at the rate of one month's salary for each year of se rvice; RM950 x 2 = RM 1,900 RM24,700 Less 30% RM 7,410 RM17,290 The above mentio ned sum shall be paid to the claimant's solicitors within one month from the dat e of the award and the said solicitors shall release the said sum to the claimat upon receiving clearance form the Inland Revenue Board.

83 [1997] 2 ILR 34 BANDAR PENGGARAM ASSOCIATES CHINESE SCHOOLS, JOHOR v. GAN CHIN PIAW&ANOR. INDUST RIAL COURT, KUALA LUMPUR CHAIRPERSON: SITI SALEHA SHEIKH ABU BAKAR 6/4-335/95 (2 2 SEPTEMBER 1995) 14 MAY 1997 AWARD NO. 213 OF 1997 [14 MAY 1997] The dispute em anates from the dismissals of the claimants by the employer. The 1st. claimant's services as the deputy headmaster of the school was terminated on 30 November 1 994 while the 2nd. claimant was informed on 12 December 1994 that his position a s a teacher had been terminated. At the outset of the proceedings on 31 March 19 97, the employer's learned Counsel had raised a preliminary issue to the hearing of the dispute before the Court which is: That the Industrial Court has no juri sdiction to inquire into a contract of service for a fixed period, which has exp ired. Consequently the Court heard the preliminary issue raised and by a ruling handed down and dated 22 April 1997 dismissed the preliminary objection and rule d that it has the jurisdiction to hear the dispute between the parties. On 12 Ma y 1997 the claimant's Counsel wrote a letter to the Court which stated as follow s: K.Y. Teo&Associates Advocates&Solicitors 19A, Jalan Sulaiman, Tel: 07-4323103 83000 Batu Pahat, Johor. Fax: 07-4328103 Our Ref : KYT/CL/406/96 Date : 07.05.1 997 Tuan Pendaftar Mahkamah Perusahaan, (Kementerian Sumber Manusia) Jalan Mahka mah Persekutuan, 50544 Kuala Lumpur. Tuan, Per:Kes No: 6/4-335/95 Pertikaian Dia ntara Bandar Penggaram Associated Chinese Schools, Johor (Sekolah Menengah Cina Jalan Tanjung Laboh) Dan Gan Chin Piaw&Soon Boon Teong Kami merujuk kepada perka ra tersebut di atas dan surat tuan bertarikh 29.04.1997. Sukacita dimaklumkan ba hawa kedua-dua pihak telah dapat mencapai penyelesaian di luar mahkamah terma-te rma adalah seperti yang dinyatakan dalam surat bertarikh 30.04.1997 dan 06.05.19 97. Maka kedua-dua claimant menarik balik kesemua tuntutan mereka dan memohon ta rikh sebutan yang ditetapkan pada 16hb, Mei 1997 dilapangkan. Kerjasama tuan ada lah sangat dihargai. Yang benar, tandatangan. In view of the claimants' requests to withdraw their claims the Court accordingly strikes off the case.

84 [1983] CLJ 350 (Rep) [1983] 1 CLJ 73 RAMLI ZAKARIA&ORS. v. THE GOVERNMENT OF MALAYSIA FEDERAL COURT, KOTA BHARU SUFFI AN LP LEE HUN HOE CJ (BORNEO) ABDUL HAMID OMAR FJ [CIVIL APPEAL NO. 182 OF 1981] 12 AUGUST 1982 JUDGMENT Abdul Hamid FJ: This appeal is against the decision of Mohd. Zahir J (as he then was) dismissing the appellants' claim with costs. The sole issue before the learned Judge was whether the appellants were entitled to be placed under the Unified Teachers salary scale (UTS). The facts are not in di spute. The appellants are a group of 86 vocational school teachers who, in respo nse to an advertisement in the local press, submitted their applications for tea cher training and were successful. Letters of offer (surat tawaran) dated 16 Jan uary 1969 for teacher training were sent to them. One of the conditions stated i n the letter of offer relates to the pay they would receive upon completion of t he training. Each successful candidate had to complete a Form of Acceptance and sign a standard agreement. Condition 3(b) in the letter of offer which is materi al for purposes of this case reads: 3(b) Syarat-syarat bayaran selepas tamat lat ihan Selepas tamat kursus DUA tahun dan selepas lulus sekali lagi Pemeriksaan Do ktor, tuan/ puan akan di terima sebagai guru dalam Tingkatan Gaji Yang di Persat ukan dan di undang mengikut syarat-syarat Perkhidmatan bagi Peraturan Gaji Yang di Persatukan itu. Tuan/ Puan akan di beri jawatan sabagai seorang guru oleh Lem baga Pengurus atau Lembaga Pengelola sekolah-sekolah yang berkenaan dan tidak ak an di anggap sabagai pekerja Kerajaan. Tuan/Puan juga di haruskan boleh di tempa tkan di mana-mana jajahan di Tanah Melayu ini selama lima tahun dari masa tamat latihan mengikut syarat-syarat perjanjian tuan/puan dengan kerajaan. Translated it means: Conditions of pay after the completion of the course - after the compl etion of two year course and on passing medical examination you will be accepted as a teacher on the UTS scale and shall abide by the service conditions relatin g thereto. You will be employed as a teacher by the relevant School Board of Gov ernors or Management and shall not be treated as a civil servant. One of the oth er conditions is that upon acceptance of the offer each appellant was to execute an agreement in five copies (p. 508 AB). After the two years training the plain tiffs were asked to do an extra year specialist course of training. Upon graduat ion they were put on attachment on 1 April 1972 on a commencing salary of RM230 p.m. lower than UTS which was RM310 for men and RM275 for women. In this regard however it is to be observed that the appellants were placed on attachment as th ey had not then successfully completed their course of training. The payment of RM230 was merely an allowance. The date of completion of the course was 6 June 1 972. By letter Perlantikan Kejawatan Sementara dated 21 September 1972 (AB 27-28 ), the appellants were

85 offered a new scale T2 under the Aziz scheme with a starting salary of RM370. Th is according to the appellants would still be lower than the salary they would h ave got if they had been placed first under UTS and then opted into Aziz. The ap pellants claim that there was a breach of the agreement and pray for an order de claring that they are entitled to salaries and allowances in accordance with UTS as it existed on 1 May 1969. It is clear that at the time the agreement was ent ered into between the appellants and the respondent the only salary scale in for ce relating to trained teachers applicable to the appellants was the UTS scale b ut on completion of the course of training the UTS was no longer in existence. T he only salary scale in force then was the salary scale under the Aziz scheme. I n this appeal the appellants rely on the following grounds: That the learned Jud ge erred in law and in fact in (1) upholding the respondent's plea that the cont ract could not be fulfilled on account of frustration and that it had been disch arged (2) not accepting the submission of the appellants that Circular 10/1971 d id not apply to the appellants who were then not yet Government servants. (3) no t following the decision of Thambipillai v. The Government of Malaysia [1969] Vo l. 2 MLJ p. 206 . (4) holding Service Circular 10/1971 as having the force of la w at the material time. (5) ... (6) holding that r. 103 of Service Circular No. 10/1971 barred the appellants from being placed under the UTS scale. Before deal ing with the merits of the appeal, we would observe that the Judge has held that the agreement (AB5-8) provided not only for training but also for employment. R eference was made to Clause 1(c) thereof. We see no reason to disagree. In our v iew the agreement has spelt out quite clearly that the employment was to be at t he option of the respondent exercisable at any time within twelve calendar month s of the completion of the course. A student required to serve was to be appoint ed upon terms and conditions for the time being applicable to the post and at a salary in accordance with the scales of salaries for the time being in force rel ating thereto. The words "for the time being in force relating thereto" used in Clause 1(c) with reference to scales of salaries may be construed to mean that t he appellants were to be subject to whatever scales of salaries relating to the post of a trained teacher in force at the time of the employment. The Judge howe ver ruled this out and held that in the light of the respondent's admission the scale intended was the UTS. The Judge also held that at the time of the executio n of the contract the consensus ad idem of both parties as regards the salary sc ale related to the UTS and hence posed to himself this question: "Can the defend ants of their own motion alter the scale to one of a different character from wh at was agreed before?" Now, one of the respondent's defences in the Court below was that the contract could not be fulfilled on account of frustration and the J udge found substance in this plea. It is common ground that on the coming into f orce of the Aziz scheme the UTS was abolished. The Aziz scheme was embodied in C ircular 10/1971 (15 December 1971). It is stipulated under para. 2 of the circul ar that teachers will only be recruited to the Education Service under the schem e. The scheme was adopted by the Government upon acceptance of the report of the Aziz Commission appointed by the Yang di-Pertuan Agong under the Commission of Enquiry Act 1950 (PU (B) 41 - 27 January 1970) to review teachers' salaries. Aft er due consideration the Judge concluded that the contract between the parties w as

86 frustrated. He further concluded that in consequence the respondent could not le gally place the appellants under UTS and to do so would be illegal. Reference wa s made by the Judge to the case of C.B. Reilly v. The King [1934] AC 176 , to su pport his finding that the respondent could not within the law employ the appell ants under the UTS and the contract was therefore discharged. The appellants hav e contended that there was no frustration of the contract. C.B. Reilly's case, t hey said, cannot apply to the present case. It is submitted that the UTS was not abolished but merely suspended and was therefore still in existence. The appell ants have also contended that if there was to be a frustration of the contract i t had to be such that the whole of the contract could not be performed. In this case, they maintained, it was possible to amend circular 10/1971 to accommodate this group to enable performance of the contract. The appellants' case was in su bstance founded on contract and to succeed in their claim fundamentally they hav e to establish that there was a breach of the contract. It is not in dispute tha t they accepted the offer and executed the agreement as required under para. (b) of the letter of offer and it is their contention that one of the terms of the contract was that they should be placed on UTS if on completion of their course they were required by the respondent to serve. The Judge quite rightly held that it was the parties' consensus ad idem that the scale intended was the UTS. What seems clear to our mind is that it was outside the contemplation of and unfores een by the parties that UTS would cease to be in force at the time of the appell ants' employment. It is also clear that it was not in the minds of the parties t hat the UTS would be reviewed and substituted or replaced by another salary sche me as had happened in this particular case. In the present case the appellants a re not questioning the Government's right to accept the recommendation of a sala ries commission and to effect changes in the terms and conditions of any particu lar service. The question therefore is if another salary scale is substituted an d such scale would cover the appellants should they, if required to serve, be no t appointed upon the terms and conditions for the time being applicable to such post and at a salary in accordance with the scales of salaries for the time bein g in force relating thereto? We are not strictly concerned with the terms and co nditions applicable to the post. They are not in issue. The sole issue here is t he salary or rather the salary scale in particular the quantum. What we therefor e have to consider is whether by reason of the substitution of the salary scale as set out in Service Circular 10/1971 consequent upon the acceptance by the Gov ernment of the Aziz Report it became impossible for the respondent to perform th at part of its contractual obligation and that therefore the contract was discha rged by frustration. Assuming there was in law frustration, then in that event t he Judge was perfectly right in holding that the contract was discharged on grou nd of impossibility of performance. With respect we do not agree. We are incline d to think that there was no frustration and the reason is that it was capable o f being performed. The relevant provision on the doctrine of frustration is set out under our Contracts Act 1950, s. 57(2) which reads: (2) A contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. The introductory passage in a chapter dealing wi th discharge by frustration in "The Law of Contract in Malaysia and Singapore Cases and Commentary" by Visu Sinnadurai at p. 487/8 reads:

87 A contract is frustrated when there is a change in the circumstances which rende rs a contract legally or physically impossible of performance. According to the House of Lords in the case of Joseph Constantine Steamship Line, Ltd. v. Imperia l Smelting Corpn. Ltd. [1942] AC 154 , the doctrine `is only a special case of t he discharge of contracts by an impossibility of performance arising after the c ontract was made'. Section 57(2) of the Contracts Act, 1950 states the doctrine thus: A contract to do an act which, after the contract is made, becomes impossi ble, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. The Act does not defin e the word 'impossible'. However, it appears that the wording of the section env isages two main instances of frustration - when a contract to do an act becomes (a) impossible or (b) unlawful. It is clear that the frustration should be super vening and subsequent to the formation of the contract. Furthermore, it should b e some event which the promisor could not prevent, as a 'self-induced frustratio n' does not discharge a party of his contractual obligation. Maritime National F ish, Ltd. v. Ocean Trawlers, Ltd. [1935] AC 524 . With reference to the present case, the question is whether the change in the salary scale rendered performanc e impossible. Before answering the question we would refer to the English law wi th regard to the proper test of frustration. The law on this point is succinctly set out in "Chitty on Contracts - General Principles" 24th Edn., p. 658/9 as fo llows: In view of the decision of the House of Lords in Davis Contractors Ltd. v . Fareham UDC [1956] the proper test for frustration may be formulated as follow s: If the literal words of the contract were to be enforced in the changed circu mstances, would this involve fundamental or radical change from the obligation o riginally undertaken? In this case Lord Radcliffe said: ... frustration occurs w henever the law recognises that without default of either party a contractual ob ligation has become incapable of being performed because the circumstances in wh ich performance is called for would render it a thing radically different from t hat which was undertaken by the contract. Non haec in foedera veni. It was not t his that I promised to do ... There must be ... such a change in the significanc e of the obligation that the thing undertaken would, if performed, be a differen t thing from that contracted for [1956] AC 696 , 729. Lord Reid put the test for frustration in a similar way. 'The question is whether the contract which they did make is, on its true construction, wide enough to apply to the new situation : if it is not, then it is at an end'. (Ibid at p. 721). Later in his speech, (I bid at p. 723) he approved the words of Asquith LJ that the question is whether the events alleged to frustrate the contract were 'fundamental enough to transmu te the job the contractor had undertaken into a job of a different kind, which t he contract did not contemplate and to which it could not apply.' Parkinson (Sir Lindsay)&Co. Ltd. v. Comissioners of Works [1949] 2 KB 632 , 667. It would seem that the question is one of construction of the contract and in this regard we again refer to "Chitty on contracts" , same edition at p. 659/60 where it is sta ted: Both Lord Reid and Radcliffe emphasised that the first step was to construe 'the terms which are in the contract read in the light of the nature of the con tract, and of the relevant surrounding circumstances when the contract was made' , [1956] AC 696 , 720 -721 (per Lord Reid). From this construction the Court sho uld reach an impression of the scope of the original obligation, that is, the Co urt should ascertain what the parties would be required to do in order to fulfil their literal promises in the original circumstances. This impression will depe nd on the Court's estimate of what performance would have required in time, labo ur, money and materials, if there had been no change in the circumstances existi ng at the time the contract was made. The Court should then examine the situatio n existing after the

88 occurrence of the event alleged to have frustrated the contract, and ascertain w hat would be the obligation of the parties if the words of the contract were enf orced in the new circumstances. Having discovered what was the original 'obligat ion' and what would be the new 'obligation' if the contract were still binding i n the new circumstances, the last step in the process is for the Court to compar e the two obligations in order to decide whether the new obligation is a 'radica l' or 'fundamental', change from the original obligation, Per Lord Reid, in Tsak iroglou&Co. Ltd. v. Noblee Thorl GmbH, [1962] AC 93 at p. 118. It is not simply a question whether there has been a radical change in the circumstances, but whe ther there has been a radical change in the 'obligation' or the actual effect of the promises of the parties construed in the light of the new circumstances. Wa s 'performance ... fundamentally different in a commercial sense'? (Ibid at p. 1 19). Their Lordships also agreed that it is a matter of law [1956] AC 696 , 723 for the Court to construe the contract in the light of the facts existing at its formation and then 'to determine whether the ultimate situation ... is or is no t within the scope of the contract so construed'. [1956] AC 696 , 721. It is sub mitted that the House of Lords has accepted the view that the test for frustrati on is objective [1956] AC at p. 728 and that frustration is a matter of positive judicial intervention. It is not a subjective inquiry into the actual or presum ed intention of the parties, as was suggested by the older theory of the implied term, since the discharge of a contract on the ground of frustration occurs aut omatically upon the happening of the frustrating event, and does not depend upon any repudiation or other act of volition on the part of either party". In short it would appear that where after a contract has been entered into there is a ch ange of circumstances but the changed circumstances do not render a fundamental or radical change in the obligation originally undertaken to make the performanc e of the contract something radically different from that originally undertaken, the contract does not become impossible and it is not discharged by frustration . Before we embark upon an inquiry whether, in view of the change of circumstanc es namely the substitution of a new salary scale under the Aziz scheme and the a bolition of the UTS, there was frustration of the contract, it is appropriate at this point to consider the merit of the appellants' contention that the respond ent should not be allowed to rely on frustration if it itself created the frustr ation, that is, if it was a self-induced frustration. The appellants have allege d that the Government was the author of the Aziz scheme and itself effected the abolition of the UTS. We are unable to see substance in this argument because in matters relating to qualifications for appointments and conditions of service t he Government is the deciding authority and the power is provided by law. Such a uthority cannot be made subject to any agreement that may be entered into betwee n the Government and another. Instead such agreement must be read subject to the authority by law conferred upon the Government. It is our view therefore that t here was no question of any self-induced frustration. Basically the question rem ains whether in fact there was frustration of the contract. It is in this regard that the test laid down in Davis Contractors' case seems relevant. The test is an objective one to determine whether there has been a radical change in the act ual effect of the promises of the parties construed in the light of the new circ umstances. As a first step in the enquiry we would consider the status of the Se rvice Circular. It is to be observed that the Judge has said and we quote: The U TS upon coming into force of the Aziz Scheme has been suspended and from the dat e of Circular No. 10 of 1971 (13 December 1971) which embodied the Aziz Scheme, it is stipulated under Clause 2 that teachers will

89 only be recruited to the Education Service under the Scheme. This Aziz Scheme wa s adopted by the Government and gazetted as a result of the Aziz Commission repo rt. The Commission was appointed by the Yang di-Pertuan Agong under the Commissi on of Enquiry Act 1950 and gazetted in PU (B) 41 dated 27 January 1970 with the terms of reference generally to review teachers' salary. The Commission having c ompleted their enquiry submitted their report and which was accepted by the Gove rnment in the form of Service Circular No. 10/1971 aforesaid". Clearly the Servi ce Circular came to be issued after the Government had approved the Aziz Commiss ion Recommendations. The Commission was an independent body established under an Act of Parliament and charged by law with specific terms of reference. One of i ts functions was to submit recommendations on salary schemes relating to teacher s to form not only the basis of a revision of salaries of those in the service b ut also to provide terms and conditions of service and salary scales for new tea chers. In our view, the Judge made a correct finding of law when he held that th e conditions of appointment and conditions of service as embodied in Service Cir cular No. 10/1971 had the force of law. The Judge made this finding in the light particularly of Article 132(2) of the Federal Constitution which empowers the G overnment to regulate the terms and conditions of persons in the public service. The introduction by the Government of a new salary scale cannot be said to have been effected with a view to denying the right, contractual or otherwise, of an y particular person or group of persons. Neither was it the object of the respon dent to escape performance of a contractual obligation under any contract. The G overnment accepted the Aziz recommendations and in fact put into force an improv ed salary scale and it was applicable to the appellants. Thus the UTS was abolis hed and ceased to apply to the appellants. After that the appellants were given a higher commencing salary and a more favourable scale than that of the UTS. Our view is that it is wrong to say that the contract was not capable of being perf ormed. It is also the appellants' contention that the contract was not frustrate d and that the respondent could perform the contract but the respondent must ame nd Circular 10/1971 to accommodate them. We do not see the necessity to do that. The Circular was applicable to the appellants. We also see no merit in the appe llants' contention that the Circular could not apply to them as throughout the C ircular the word "employee" was used and they were not employees. Paragraph 3 of the Circular specifically provides that: 3. From the date of this Circular, rec ruitment of teachers into the existing 'Government Education and Teaching Servic es' and the 'Unified Teaching Service' shall be suspended and, thereafter, teach ers will only be recruited to the Education Service referred to in para. 1 above , except that Missionary Teachers may continue to be employed in accordance with reg. 24 of the Regulations for Aided English Schools in the Straits Settlements , 1936, and reg. 23 of the Regulations for Aided English Schools in the Federate d Malay States, 1936. And para. 1 of the Circular reads: Following the recommend ations of the Royal Commission on the Teaching Services, West Malaysia (the Aziz Commission), the Government has set up the 'Education Service'. The Education S ervice is an open service and its members, who will be known as 'Members of the Education Service' (hereinafter referred to as 'Members') will be directable and deployable to perform teaching, administration or other duties that may be reas onably required of them. Paragraph 2 sets out the four categories of the educati on service and category T relates to the appellants. The salary scales are to be found on pp. 61 and 62 of the circular.

90 Apart from para. 3 of the Circular which provides that "thereafter, teachers wil l only be recruited to the Education Service referred to in para. 1 above ..." t here is revealed that as from the date when the Circular came into force the int ake of teachers to the teaching service would be in accordance with the terms an d conditions and salary scales provided under the Circular. This is reinforced b y the provisions which govern the terms such as "entry qualifications", "applica tion", "probationary period" and so forth. These provisions clearly invalidate t he appellants' contention that the appellants were not covered by Service Circul ar 10/1971. It is a fact that they were eligible for direct intake under one of the categories provided thereunder. The appropriate category was T2. As for Tham bipillai's case we do not see how that decision could support the appellants' co ntention. In that case the learned Judge had regard to the nature and effect of that particular service circular when he held that the service circular was no m ore than a mere declaration of policy. The same cannot clearly be said of Servic e Circular 10 of 1971. Paragraph 1 of the Service Circular reinforced by para. 1 27 and 128 shows that the new terms and conditions of service as set out in the Circular supersede those rules and regulations which would cease to have effect and that steps were being taken to cancel and amend the relevant laws circulars, orders and instructions to being them in conformity with the terms of this circ ular. The only remaining point raised by the appellants is that they should firs t be placed on UTS and then be allowed to opt to the salary scale under the Aziz scheme. We are in sympathy with the appellants and we fully appreciate the anom aly they alleged has arisen, particularly where it affects the total emoluments compared to those who a year earlier were placed on UTS and later converted to t he Aziz salary scale. This is something that does not come within the purview of the Judge to deal with. The Judge quite rightly confined himself to the appella nts claim as disclosed from the pleadings. Moreover, we so not see how the appel lants could on one hand claim the Circular 10/1971 is not applicable to them and on the other sought to be placed, or at any rate, to be allowed to opt into the Aziz Scale. For the above reasons, it is our judgment that the learned Judge ha d not erred in law and in fact in arriving at his decision. We ourselves have re ached the same conclusion although for somewhat different reasons. Accordingly w e would dismiss this appeal with costs.

91 [1984] 1 CLJ 152 (Rep) [1984] 1 CLJ 239 HEADMISTRESS, METHODIST GIRLS SCHOOL&ORS. v. THE HEADMASTER, ANGLO-CHINESE PRIMA RY SCHOOL, LAHAT ROAD, IPOH&ANOR. FEDERAL COURT, KUALA LUMPUR SALLEH ABAS CJ (MA LAYA) ABDUL HAMID OMAR FJ EUSOFFE ABDOOLCADER FJ [CIVIL APPEAL NO. 198 OF 1982] 23 FEBRUARY 1984 |152| JUDGMENT Salleh Abas Acting Lord President: On 5 June 197 3 at about 12.30 p.m. the plaintiff, one Hew Wan Hoong, who was then an infant, aged 9 years old, whilst walking in the compound of his school (Anglo-Chinese Pr imary School) in order to go home was knocked down by a school bus. He sustained fairly serious injuries. He sued the appellants, (the bus owners, and the drive r) for damages and they in turn brought in the respondents (Headmaster of the sc hool and the Government) as the third party claiming for a contribution in the e vent of lability being found against them on the ground that they as school auth orities were also partly liable for allowing the bus to enter the school compoun d. |153| The trial Judge found the appellants wholly liable and awarded the plai ntiff a sum of RM20,000 as general damages and another sum of RM794 as special d amages and dismissed the appellants' claim for contribution against the responde nts with costs. The appellants are unhappy that the learned Judge dismissed thei r claim for contribution and hence this appeal. The issue raised by their Counse l in this appeal in this: whether the respondents, being the school authorities, in the circumstances of this case, were guilty of contributory negligence in al lowing the bus to enter the school compound. According to the sketch plan (p. 65 of AR) the school buildings consist of four separate blocks, built in such a wa y as to leave a wide open square space (referred to herein as "the square") in t he middle as the school playground. In the centre of the square stands a twostor ey building used as the school assembly hall. The principal's office is in the f irst block right opposite of this hall. At the entrance of the school compound t here is a gate, from which a drive-way past a house on the left leads to the squ are. Outside the gate there is a church. Parents' cars are not allowed to come i nto the square to pick up their children. The school authorities insisted that t hey wait for their children outside the school gate by the church. However, teac hers' cars are allowed to come in and park in the square and school buses, of wh ich there were only two, were also allowed to come into the square to drop and p ick up children. Since this accident, buses are no longer allowed in and since t hen the school authorities have now posted a big notice board at the entrance pr ohibiting vehicles from entering. This is the first time a vehicle accident ever occurred in the school compound. There is clear evidence that the bus would com e and stop in front of the principal's office to drop children. After that it wo uld reverse and turn in the direction of the church and then park in front of th e principal's office to wait for the children. It was during the course of dropp ing the children that the bus in the instant case hit the plaintiff who was then peacefully walking on the side of the road in order to go home after school was dismissed. He could not avoid being hit because the road was not only narrow bu t its side was also bounded by an iron

92 railing. As the bus was being negligently driven, there was hardly any space lef t for the plaintiff to manoeuvre between the railing and the bus. And, so he was hit and according to the evidence of a teacher who saw the accident, the plaint iff was sand-wiched between the bus and the railing. There being no dispute that the bus was at fault. The question is whether the school authorities were also at fault? As an owner and occupier of the premises the respondents, the school a uthorities, are under a duty to keep the school premises safe. They knew that th e road was extremely narrow and looking after children being their regular funct ion, they must have appreciated that the children, once dismissed from classes, tend to disperse in all directions in disorderly fashion regardless of cautions their teachers may have given them. The school authorities were correct in preve nting parents' cars from coming up to the school's square for safety reason but we do not understand why an exception was made in favour of the two school buses . Surely, buses being the bigger vehicles would pose a greater potential danger especially when the road is so narrow that there is hardly sufficient room for t hem to manoeuvre. We find ourselves extremely difficult to hold the school autho rities free from any blame. In our view they must share the blame with the appel lants. But the question is at what proportion? In view of the fact that their fa ult only consists of allowing the bus to come in, which is a privilege which the bus need not have to make use of, or a risk which it need not have to take, the blame on the school authorities should be a lesser degree than that of the appe llants, the bus owners and the driver. |154| We think it is fair and reasonable that the total liability be apportioned at 30% against the respondents (the scho ol authorities) and 70% against the appellants (the bus owners and the driver). We would, therefore, accordingly allow the appeal with costs both here and the C ourt below and order that the appeal deposit should be refunded.

93 [1989] 2 CLJ 176 (Rep) [1989] 1 CLJ 1091 NATIONAL UNION OF TEACHERS IN INDEPENDENT SCHOOLS, WEST MALAYSIA v. HAN CHIANG H IGH SCHOOL, PENANG HIGH COURT MALAYA, KUALA LUMPUR EUSOFF CHIN J [CIVIL APPEAL N O. R8-16-18-88] 27 JANUARY 1989 |177| JUDGMENT Eusoff Chin J: The appellant in t his case being dissatisfied with award No. 49/88 handed down by the Chairman of the Industrial Court on 27 February 1988, had applied under s. 33A(1) of the Ind ustrial Relations Act 1967 (IRA) for 9 questions of law to be referred to the Hi gh Court. On 4 May 1988, the Industrial Court granted leave, and agreed to refer to the High Court 4 of the 9 questions which are as follows: 1. ... 2. Whether or not the Industrial Court erred in law when it is held that s. 32 of the Indus trial Relations Act 1967 (the Act) has no relation to the locus standi of the un ion when (on its own finding) at least as at the date of the hearing the applica nt represented at least 35 of its members in Court. 3. Whether or not the Indust rial Court erred in law when it concluded that "... all the teachers who were un ion members therein had either resigned from the union or had left the school be cause their contracts were not renewed ..." without evidence being led by the re spondent on whether or not there are in fact union members still in the employ o f the respondent at any particular point in time or date. 4. Whether or not the Industrial Court in law and or exceeded its jurisdiction in holding that (at par a. 7) "... all the teachers who were union members therein had ... left the scho ol because their contracts were not renewed." When (at para. 5 ) it had held tha t "... thirty-five (of the teachers) had their services terminated by way of non -renewal of their contracts ..." since the reference by the Minister of Labour i n question under which the Industrial Court purported to make the said award was a trade dispute between the applicant and the respondent over failure to reach a collective agreement on terms and conditions of employment. 5. Whether or not in making the said award the Industrial Court misdirected itself in law in faili ng to take into account the undisputed fact and its own finding that at least th e thirtyfive teachers whose dismissals were the subject matter of another trade dispute pending adjudication before another division of the Industrial Court wer e and are members of the applicant at all material times. 6. ... 7. ... |178|

94 8. ... 9. ... Before me there was some arguments as to the jurisdiction and powe rs of the High Court when hearing an appeal under s. 33A of the Industrial Relat ions Act , i.e. whether the High Court is limited to determine only questions re ferred to it. For the purposes of this appeal it is sufficient to quote s. 33A(1 ) and (5) of the Industrial Relations Act which states: 33A. (1) Where the Court has made an award under s. 30(1) it may, in its discretion, on the application of any party to the proceedings in which the award was made, refer to the High C ourt a question of law: (a) which arose in the course of the proceedings; (b) th e determination of which by the Court has affected the award, (c) which, in the opinion of the Court, is of sufficient importance to merit such reference; and ( d) the determination of which by the Court raises, in the opinion of the Court, sufficient doubt to merit such reference. (5) The High Court shall hear and dete rmine the question referred to it under this section as if the reference were an appeal to the High Court against the award of the Court, and may, consequently, confirm, vary, substitute or quash the award, or make such other order as it co nsiders just or necessary. It appears that on the application of any party to th e proceedings in which the award is made, the Industrial Court is not bound to r efer any question of law to the High Court under s. 33A(1) of the Industrial Rel ations Act , unless the Industrial Court is satisfied that that question is one which fulfils all the conditions provided in that section. In exercising its pow er to refer or not to refer a question to the High Court, the Industrial Court w ill have to do so judiciously. But once a question is referred to the High Court , the reference will be treated as if it were an appeal to the High Court, and e ach question referred to the High Court will be treated as a ground of appeal. U nder subsection (5) of s. 33A of the Industrial Relations Act , the High Court w ill hear and determine the reference as if it is hearing an appeal form a lower Court. The facts of the case under appeal are as follows: The dispute is between the Han Chiang High School, Penang (hereinafter referred to as "the school") an d the National Union of Teachers in Independent Schools, West Malaysia (hereinaf ter referred to as "the union") over their failure to conclude a collective agre ement on wages and terms and conditions binding on them. Han Chiang High School, Penang was first established in 1951. Its main objective is to cater for Chines e students who are unable to get admittance into the national type schools. It e mployed teachers on a fixed term basis, subject to renewal on terms as follows: In the event of this contract being renewed, the teacher must notify the managin g committee of his/her acceptance within one week from the date the renewal of t he contract is offerred. Otherwise the offer is deemed to have been rejected.

95 6. If anyone does not receive any offer of the contract being renewed by the dat e of expiry of the contract, it will mean that his/her service has been terminat ed. The school takes no responsibility to inform him/her cessation of his/her em ployment. |179| Some of the teachers' contracts have been renewed under these te rms for more than twenty years. During the year 1985/86, the school had in its e mploy eighty-three teachers. Sometime in 1985, fifty-three of these teachers joi ned the union and, on 2 July 1985, the union submitted to the school a claim for recognition under s. 9(2) of the Industrial Relations Act 1967 . There was no r esponse to the union's claim for recognition and, on 28 August 1985 the union re ported the matter to the Director General of Industrial Relations. By a notice d ated 23 August 1986, the Minister of Labour accorded recognition to the union an d directed the school to take notice of such recognition under s. 9(5) of the Ac t . On 21 October 1986, the union submitted a proposal on wages and terms and co nditions to the school with a view to entering into a collective agreement bindi ng on them. But there was no response to the union's proposal. On 28 November 19 86, the school decided not to renew the contracts of all the teachers who were m embers of the union. Each of these teachers received identical notices, as follo ws: Dear Sir/Madam, As instructed by the board of directors, we would like to in form you that your service agreement with the school will be expired on 31 Decem ber 1986. The board of directors would like to take this opportunity to thank yo u for your service to the school. On 17 December 1986, the union applied to the High Court, Penang for an injunction restraining the school from terminating the services of the teachers who were served with the notice. On 2 January 1987, th e High Court in Penang granted injunction prayed for by the union. The school th en filed an appeal against the decision of the High Court. In 14 July 1987, the Supreme Court allowed the appeal of the school and set aside the injunction of 2 July 1987. In its written judgment dated 23 November 1987, the Supreme Court ad ded that the Industrial Court was the proper forum to deal with complaints of wr ongful dismissal since it was empowered by the Act to order the employer to rein state the workman to his former position or a similar position if the Industrial Court should hold that the dismissal was without just cause or excuse. The scho ol and the union were then locked in two disputes - one was a dispute over a col lective agreement on wages and terms and conditions of employment for the teache rs employed in the school, and the other was a dispute over the alleged wrongful dismissal of thirty-five teachers. The dispute over collective agreement was re ferred to the Industrial Court by the Minister of Labour on 12 January 1987 for adjudication and the dispute over alleged wrongful dismissal of thirty-five teac hers was referred to the Industrial Court on, 14 August 1987. In the instant cas e, the Industrial Court is concerned only with the dispute over the collective a greement. The dispute over the alleged wrongful dismissal of thirty-five teacher s is before another division of the Court. At the hearing in the Industrial Cour t on 27 July 1987 and 28 January 1988, the school raised a preliminary issue tha t the union had no locus standi to represent the teachers in the instant

96 case, as it contended that none. of the teachers in the school was a member of t he union because out of fifty-three teachers who were members of the union, eigh teen had resigned from the union on various dates and thirty-five had their cont racts terminated. The school then relied on the case of Reading&Bates (M) Sdn. B hd., Miri v. Sarawak Union of Lands |180| & Offshore Drilling Workers [1987] 1 I LR 299 to support its contention. The union, on the other hand, submitted otherw ise, contending that the case of Reading&Bates (M) Sdn. Bhd. could be distinguis hed, as there was no closures of the school here. In Reading&Bates (M) Sdn. Bhd. , the Industrial Court held that, since the company had closed down and all its employees had left its service, the union had no locus standi as it did not repr esent anyone in the company over the dispute between the company and the union o n collective agreement. The Industrial Court here made a finding that although t he school had not closed down, and was still in operation at the date of hearing , there was not a teacher employed by the school who was a union member because those who were union members had either resigned from the union or because their contracts were not renewed by the school. The Industrial Court held that the un ion could not represent and act in a dispute on behalf of the school teachers wh o were not its members or no longer its members, and so the union had no locus s tandi before the Court. As stated earlier, the dispute concerning the alleged wr ongful dismissal of the thirty-five teachers who were union members was referred to another division of the Industrial Court by the Minister on 14 August 1987. That division had not determined and made an award in respect of the dispute on 27 February 1988, when the question of locus standi of the union was heard by th e Industrial Court. In holding that the union has no locus standi because it no longer had any member, the Industrial Court was in fact adjudicating the dispute of wrongful dismissal of the teachers who were union members, and had come to t he conclusion that the teachers' services had been lawfully terminated. This Ind ustrial Court had no jurisdiction to determine that dispute, because that very d ispute had not been referred to it by the Minister, but to another division of t he Industrial Court to adjudicate. Further, the finding by the Court that the un ion had no members was wholly unsupported by evidence. The Court had therefore r eached that finding by assuming erroneously that because no union member was pre sent before it on 27 February 1988, the union had no member to represent. It was argued before me that the Industrial Court had to make its award without delay under s. 30(3) of the Industrial Relations Act which states : 30.(3) The Court s hall make its award without delay and where practicable within thirty days from the date of reference to it of the trade dispute or of a reference to it under s . 30(3) . The dispute over the collective agreement was referred to the Industri al Court by the Minister on 12 January 1987 and the award on locus standi of the union was made on 27 February 1988. As it is, there had been already some delay . But under the circumstances, since the Industrial Court had knowledge that the dispute over the wrongful dismissal and the reinstatement of teachers was being inquired into by another division of the Industrial Court, the Court should hav e stayed further proceedings on the question of locus standi of the union until final determination of the dispute over the reinstatement. I allow the appeal wi th costs, quash the award and make the further order that another division of th e Industrial Court shall hear this dispute.

97 [1998] 5 CLJ 400 LIM TENG LENG v. PP HIGH COURT SABAH&SARAWAK, KUCHING IAN HC CHIN J [CRIMINAL AP PEAL NO: 42-01-98-I] 3 APRIL 1998 JUDGMENT Ian HC Chin J: This is an appeal by L im Teng Leng @ Mohd Iskandar Lim Abdullah ("the accused") who was on 27 October 1997 convicted of the offence of rape of a nine year old girl ("the child") unde r s. 376 of the Penal Code and sentenced to 13 years imprisonment and one stroke of the rottan. The Evidence The evidence for the prosecution are these. On 25 A pril 1996 the child complained to her class teacher Suriani binti Rahim ("the te acher") that she was suffering pain in her private part and that it was bleeding . The underpant of the child was removed and examined by the teacher who found i t to have been washed but still had blood stain. The teacher saw blood stain at the front part of the child's uniform. The child, according to the teacher, was not able to sit down because of pain in her private part. The child after being questioned told the teacher that her stepfather got on top of her. The teacher d id not on that day take the child to the police station to make a police report because the principal, who must be consulted first, was not around. It was on 26 April that the child was taken to the hospital after another teacher came to te ll this teacher that the child had problem sitting down. It was only then that i t was decided to take the child to the hospital but the hospital attendant reque sted a police report be first made before the child can be treated. A police rep ort was then made by the teacher and the child was later taken to the hospital b y a woman inspector with a written request for the examination of the child. The woman inspector testified that the child told her she was raped by her stepfath er. Dr Clarence Choo examined her on 26 April and concluded that there was penil e penetration on account of the presence of fresh tears in the hymen and he was of the view that the tears could have happened within seven days of the examinat ion. The doctor also detected an offensive smelling yellowish vaginal discharge due to an infection but this was not stated in the medical report. The doctor sa id he cannot trace the result of the test for the presence of spermeatozoa. The accused was tested positive for sexual potency but he was not tested for any sex ual disease which may have caused the infection of the vagina. In any event ther e is no evidence of any test being conducted on the vaginal discharge. The child gave sworn evidence. She described how during one night in April 1996 the accus ed carried her from her room to another room when her mother was working and whi le her elder sister, her aunt and two cousins were asleep in the same room. She described how she was raped by the accused. She said it happened on the night be fore she told the teacher the incident which placed it on 25 April. She describe d she cried in pain but the sound was stifled by the accused putting his hand an d her clothing over her mouth. Her other evidence touched on her complaint to th e teacher, the trip to the hospital and to the police station all of which are n ot matters of dispute. The mother of the child also testified for the prosecutio n and it is her evidence that the defence placed reliance on for its contention that the accused

98 should have been acquitted at the close of the case for the prosecution. This is because her evidence, according to Mr. John Shek, learned counsel for the accus ed, cast a doubt in the case of the prosecution. Learned counsel's submission wa s fastened on the fact that the evidence of the mother was not impeached. Whethe r Unimpeached Evidence Must Be Accepted As The Truth? The mother testified that the child was in 1997 eleven years old and that the child disliked the stepfathe r and that she disobeyed him. The mother said the previous husband deserted her when she was conceived with the child. The mother married the accused when the c hild was two years old. However, the mother when cross-examined, gave evidence w hich the learned Sessions Court judge in her judgment discredited and which judg ment I will advert to later. The evidence of the mother elicited by cross-examin ation are these: [The child] did not sleep with me. I was residing at Pending wh en the child was born. We continued to stay at Pending after I married the accus ed. The family moved back to Bako two years ago. The house we stay in Bako belon gs to my family. My parents and my sisters were staying with us in Pending. Two siblings stayed with me. They were in their twenties. Aminah was aged 20+, my br other was aged 20 years old. All the family members moved back to Bako together with me. After the child was born, she slept with my mother. The child had never slept with me. The child slept with my sister after my mother passed away. Sura iya also did not sleep with me. She slept with my sister. My sister was married only this year. She is still staying with us. Suraiya, the child and my sister h ad always been sleeping in one room. In 1996 I was working for a company called Mega Scope Sdn. Bhd. I arranged the woods. I worked on shift - day and night shi ft. My company had a punch card system. (A document shown). This is my punch car d. I was on morning shift on 24th June 1996 from 6.30 a.m. till 4.30 p.m. I was off on 25th June 1996. I was off on 25 April 1996. I was on leave on April 24th - 25th 1996. I was at home on the night of April 25th and 26th. Ah Moh was also at home. We slept together in the same room on that two nights ie, April 25th an d 26th. I was also at home on April 24th and I slept with [the accused] in the s ame room. I disagree with [the child] when she said that I was working on the ni ght of April 24th, 25th and 26th. The child did not ever complain to me that she was disturbed by [the accused]. Relationship between [the child] and I is good. [The child] studied at Sekolah Gobel. One of the school teachers wanted to adop t [the child]. This was told to me by [the child]. I disagreed to adoption idea. I visited [the child] in the hospital together with my sister Aminah. I asked [ the child] why she was admitted. She replied that she had tooth extraction and s tomach ache that day. The school teacher was not present. [The child] never info rmed me that [the accused] disturbed her. Aminah came to Court with me today. Su raiya is almost as tall as me. I made a mistake Aminah did not come to Court tod ay. The police did not record any statement from me regarding this case. The pol ice never inquired me whether I was at home and slept in the same room with [the accused] on April 24th - 26th, 1996. I don't believe [the accused] had disturbe d [the child] because I was always in the house.

99 Suraiya is alright with [the accused]. But not [the child]. My father likes my h usband. Aminah also likes [the accused]. Clearly, those evidence are exculpatory of the accused and the learned Sessions Court judge was also of that view becau se she, in her judgment, dealt with that evidence on that footing. There was no application by the prosecution to invoke s. 154 or s. 155 of the Evidence Act 19 50, to question or impeach the mother. Instead, the prosecution was content with a normal re-examination of the mother which resulted in the following evidence of the mother, viz.: I was on leave on 24th April, 1996. It's an off day leave. I stayed at home and did not go anywhere. I slept at 1.00a.m. on 25th April, 199 6. [The accused] slept before me. I usually sleep around 1.00 a.m. I stay up to watch T.V. or listen to radio. On that particular night, Aminah was awake and we two were chatting. I disagree that Aminah and my two girls went to sleep at aro und 9.00 p.m. Suraiya and [the child] slept around 10.00 p.m. [The accused] was at home that night. I confirm that [the accused] had never informed that she was disturbed by the accused. I disagree that she did not tell me so because she wa s afraid of the accused. I agree that [the accused] did not like the accused. I disagree that [the child] disliked the accused because he had disturbed her. I d isagree that [the child] did not inform me because she was quiet by nature. The mother was also examined by the learned Session Court judge which yielded the fo llowing evidence: I disbelieve [the child] when she told me the reason of her ad mission. I checked with Cikgu Kadir and Cikgu Suriani and they informed me that she had stomach ache. I believed them, [the child] was hospitalised for one mont h. I asked the doctor who examined [the child] everyday, he replied "normal". I don't know his name. The learned Sessions Court judge discounted the evidence of the mother that was exculpatory of the accused because she was of the view that the mother was, for various reasons, not telling the truth. The reasons are: (1 ) the eagerness of the mother to help the accused by the way she answered certai n questions when cross-examined and (2) the failure of the defence to produce th rough the mother the punch card to show that she was off-work at the relevant ti me in question though the punch card of other period was produced. In coming to that conclusion she was of the view, on the authority of PP v. Kang Ho Soh [1993 ] 3 CLJ 2914; [1992] 2 MLJ 360, that just because the evidence of the mother was not challenged the court need not accept her evidence as being the truth. She w as also of the view that the mother was not an entirely disinterested party resu lting in her evidence requiring corroboration if it was to be acted upon, relyin g on Liow Siow Long v. PP [1970] MLJ 40. It was thus that she commented on the f ailure of the mother to produce the punch card. In PP v. Kang Ho Soh, it was, in ter alia, held that merely because the prosecution had called a witness who was not challenged or impeached, it did not follow that he must be accepted as truth ful. The relevant part of that judgment reads: The defence contends that because PW5 was not challenged or impeached the court should accept him as a witness of truth. If the prosecution was not relying upon his testimony it is contended th at they should not have called him. As to this I hold that merely because the pr osecution has called a witness it does not follow that he must be accepted as tr uthful. Teh

100 Chong Hock is the accused's brother-in-law. I was not satisfied with the manner in which he answered the questions put to him. I have reservations as to whether he is a truthful person. Unfortunately, no authority was cited in support of th at conclusion. What then is the law regarding the issue? The various stages of t he case have to be examined to see what ought to have been done. The prosecution must surely have orally examined all persons who are supposed to be acquainted with the facts and circumstances of the case and reduce into writing the stateme nts made by such persons as required by s. 112(i) of the Criminal Procedure Code . Since it was obvious from the child's evidence that the rape took place in the bedroom of the accused which was also the bedroom of the mother and it happened in the absence of the mother, it was of paramount importance that the mother sh ould have been interviewed and her statement recorded regarding her whereabout d uring the time the rape took place. This is important in many aspects. If the mo ther said she was at home and not working night shift as the child alleged, then it is a simple matter of checking with her employer as to whether the mother wa s or was not working that night and there will be record to establish that. If t he mother's statement showed that she was in fact working night shift, the mothe r should be called to give evidence to testify to that fact so that the child's evidence as to the mother working night shift will be corroboration in a very ma terial aspect. If the mother gives any evidence which is not in accord with her statements to the police, then she could be questioned or impeached and may even be charged for perjury. As the case revealed, the company where the mother work ed maintained a clock-in system for their workers and this means the punch card would be available to bear testimony as to the fact if in fact the mother was wo rking during that time. All these, according to the mother, were not done and it resulted in the prosecution calling the mother to give evidence as to the age o f the child but exposing the prosecution's case to the danger of not knowing wha t this witness was going to say in the witness box and with no statement of hers to remind her of what she had said to the police. No prosecution would call any witness if it is not sure what the witness evidence is going to be like and the prosecution should know what the evidence is going to be like because statement s would have been taken from all potential witnesses. It is only after a stateme nt had been taken from the mother that the prosecution would be able to tell whe ther the mother was or was not telling the truth when she said she was in the be droom when the rape was alleged to have taken place. But that alone should not m ean the end of the case for the prosecution. The overall evidence ought to be lo oked at. It has also to be considered whether the learned Sessions Court judge w as entitled to conclude that the mother, who was called by the prosecution, was not telling the truth. If the mother had in her statement said she was on night shift at the relevant time and then in court testified that she was not but at h ome, then it would be in the interest of justice that the truth ought to be reve aled. Section 154 of the Evidence Act 1950, would come into play. That section s ays: The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. If the prosecution was in possession of a statement made by the mother wh ich contradicts what the mother said in court, then it is the duty of the prosec ution to invoke s. 154 of the Evidence Act 1950, in order to put questions to th e mother that she had in her statement given contradictory facts. The principle behind the section is said by Woodroffe&Syed on Law of Evidence, 15th edn, p. 81 2, to be this: Principle. A party may with the permission of the Court, put lead ing questions to the witness under the provisions of s. 143 or cross-examine him as to the matter mentioned in ss. 145 and

101 146. The rule, which excludes leading questions, is chiefly founded on the assum ption that a witness must be taken to have a bias in favour of the party by whom he is called; whenever circumstances show that this is not the case and he is e ither hostile to that party or unwilling to give evidence, the judge may, in his discretion, allow the rule to be relaxed. Further, by offering a witness, a par ty is held to recommend him as worthy of credence, and so it is not in general o pen to him to test his credit, or impeach his truthfulness. But there exist case s in which the rule should be relaxed at the discretion of the Court, as for ins tance, where there is a surprise, the witness unexpectedly turning hostile, in w hich and in other cases the right of examination ex adverso is given. And when t he defence has elicited new matter from a witness for the prosecution in cross-e xamination, the Court may, under this section, permit the prosecution to test th e witness's veracity on this point by cross-examining in turn. A witness, whethe r of the one or the other party, ought not to receive more credit than he really deserves; the power of cross-examination is therefore sometimes necessary for t he purpose of placing the witness fairly and completely before the court. The sa id authors, at p. 819, remarked that the discretion is wide and unfettered, viz: The discretion of the Court under Section 154 is wide and unfettered; it does n ot depend upon hostility. The discretion should be exercised liberally whenever it appears to Court that due to the demeanour, attitude way of answering questio n of the witness or the tenor of his answers or other reasons permission should be given in the interest of justice. However, the said authors, at p. 824, also sounded the warning that the exercise of the discretion must be with sufficient reason. This is what they said: But the discretion has always to be exercised wi th caution. It should not be exercised without sufficient reason. The reason sho uld be stated because, by offering a witness, a party is held to recommend him a s worthy of credence and so, in general, it is not open to him to test the witne ss's credit or impeach his truthfulness. Where reasons are not recorded, it woul d not be a case of valid exercise of discretion under Section 154 of the Evidenc e Act. Sarkar on Evidence, vol. 2, 14th edn, p. 2082, elaborated on the situatio n of an unfavourable prosecution witness in these terms: It is not open to the p rosecution in a criminal trial to cross-examine their own witness unless the cou rt declares him to be a hostile witness [Jogdeo v. R, 1P 758: 71 IC 117: 25 CLJ 69]. Unless there is something in the deposition of a witness which conflicts wi th the earlier statements made by him which will afford ground for thinking that he has been gained over by the defence, the prosecution is not entitled to decl are him hostile [Parameshwar v. R, 99 IC 705: A 1926 P316]. It is the establishe d practice that a court would not allow a party to question him under s. 154 unt il it is satisfied that there is some hostility or adverseness displayed by the witness to the very party who has called him [In re Kalu Singh, A 1964 MP 30]. I t is not right for the public prosecutor to declare a prosecution witness hostil e. The only way in dealing with witnesses who go back on their statements or tes tify in a way which is frankly against the interest of the party calling them li es with the judge. It is the duty of the public prosecutor to formally ask the l eave of the court to crossexamine the offending witness both in regard to the ev idence he has already given which is complained about and also, if necessary, to put questions to him to discredit his testimony generally [Samar Ali v. 166 IC 323; A 1936 C675]. Before granting permission to treat a witness as hostile, the re must be some material to show that he is not speaking the truth or has resile d from his earlier statement [Gopal Krishnan v. State, 1981 Cri LJ NOC 160 (Delh i)]

102 In the present case, there is nothing in the record to show that the prosecution had asked for permission to put questions that could be put in crossexamination to the mother concerning her evidence that she was at home at the relevant time and that therefore the accused could not have raped the child without her knowi ng it. The reason for the omission that was proffered by the prosecuting officer can be found in his reply to the submission of no case to answer, viz: Testimon ies of PW7 [the mother] Your Honour, the primary intention of the prosecution ca lling this witness was to tell this Honourable court the age of the victim (PW4) in view that PW4 has no birth certificate. As this witness is the real mother o f PW4 and the only person who can give accurate testimony on PW4's age, the pros ecution therefore has no alternative except to call her. Nevertheless, on the pa rt where she (PW7) told the court that she was at home and sleeping with the acc used at the time the incident took place, I would like to humbly urge and beg Th is Honourable court not to consider and to attach no weight to this piece of tes timony on the ground that she (PW7) is an INTERESTED PARTY to this case. Your Ho nour, PW7 is the present wife of the accused and being in such a position, she i s surely to give evidence in favour of the accused. Moreover, the prosecution co uld not challenge her evidence as she was called by the prosecution and the pros ecution was also in a position whereby the prosecution could not impeach her cre dit as the prosecution requires her (PW7's) evidence on the age of the victim (P W4). The position taken by the prosecutor shows that he was labouring under a mi sapprehension of the law regarding the position of a prosecution witness who has been cross-examined or impeached. The prosecutor took the wrong view that if yo u cross-examine or impeach the mother, even her evidence as to age is also of no value. That appears also to be the stand taken by Mr. John Shek, learned counse l for the accused. That, in my opinion, is an erroneous view of the law as can b e seen from what was said in Prafulla v. R; 58 C 1404: 35 CWN 731: 53 CLJ 427: A 1931, C 401 (referred to in Sarkar on Evidence, vol 2, 14 edn), viz: ... Either party may rely on the evidence of a witness who is cross-examined by the party calling him. There is moreover no rule of law that if a jury thinks that a witne ss has been discredited on one point, they may not give credit to him on another . The rule of law is that it is for the jury to say. The evidence of such witnes s is not to be rejected either in whole or in part. lt is not also to be rejecte d so far as it is in favour of the party calling a witness, nor is it to be reje cted so far as it is in favour of the opposite party. When a witness is cross-ex amined and contradicted with the leave of the court by the party calling him, hi s evidence cannot be washed off altogether. The judge may, after reading and con sidering the evidence as a whole, with due caution and care, accept, in the ligh t of other evidence on the record, that part of his statement which is creditwor thy. See in Sarkar on Evidence, vol. 2, 14th edn, p. 2085. I have earlier when r eferring to PP v. Kang Ho Soh remarked that no authority was cited for the propo sition of law there stated, which is that merely because the prosecution had cal led a witness who was not challenged or impeached, it did not follow that he mus t be accepted as truthful. However, it seems to me that the authority for that p roposition can be found in Babu Ram v. R, A [1937] A 754. The relevant part of t he judgment of that case, in which a person was charged with receiving a stolen buffalo, reads:

103 The second point arises out of the evidence of Wazir Khan. He was produced as a witness by the prosecution. The learned Judge says that he has deposed that Jaga nnath sold the buffalo and executed the receipt, and the prosecution made no app lication to the Magistrate to the effect that the witness was hostile. I do not know upon what section of the Evidence Act or upon what other law the learned Ju dge bases his general proposition that a party is bound by the evidence of a wit ness whom he produces. No part of the statement of such a witness amounts as far as I know to be an admission on behalf of the party producing him. In some circ umstances a Court which is deciding a question of fact may say that a party prod uces a witness presumably because he believes that he is a witness of truth and, therefore, if the witness says something contrary to the interest of the party producing him, the statement must be regarded as having considerable weight. I d o not think that it is possible to go further than that. Nor do I know of any ru le of law that a party is not able to say that a witness produced by him is not speaking the truth upon some particular point unless he makes a written applicat ion to say that the witness is hostile. The provision of the Evidence Act allows a party with the consent of the Court to cross-examine his own witness. I may m ention that this Court has more than once complained that public prosecutors hav e not produced witnesses who alleged they had knowledge of the facts or who migh t have been supposed for some reason possibly to have knowledge of the facts. If it were argued that the prosecution were bound by the evidence of these witness es, their position would be impossible. In the first place it would be urged tha t they had not done their duty because they had failed to produce the witness ev en they did not believe that the witness was speaking the truth and on the other hand, if they did produce the witness, it would be urged that they would be bou nd by the witness' statement. In this case presumably as the receipt was in exis tence and purported to have been drawn up by Wazir Khan, the prosecution felt th at it was only fair that they should produce Wazir Khan before the Magistrate wh o might then be in a position to say whether he was or was not speaking the trut h. It by no means follow that they themselves relied upon his evidence in any pa rticular whatsoever, much less that it must be inferred because the prosecution produced the witness that he must have been speaking the truth and that the accu sed person was not guilty of the offence with which he was charged. I am also in agreement with the two cases just mentioned that there cannot be any automatic accreditation of truthfulness to a witness merely because he was not cross-exami ned or impeached. The court, notwithstanding the lack of cross-examination or im peachment, is entitled to ascertain the truth or otherwise of the evidence of th e prosecution witness. In this regard the learned Sessions Court judge did not e rr. But it must be borne in mind that since the prosecution produced the witness , it must be, that in the first instance, she is paraded as a witness of truth. Therefore, there must be some indication that the witness is not telling the tru th before the court can embark on an exercise of discrediting the witness. If th ere was a statement recorded under s. 112(i) of the Criminal Procedure Code whic h contradicts the witness testimony, that would be a sufficient starting point. However, there is none in this case and the learned Sessions Court judge had to, as mentioned early, rely on the fact of (1) the eagerness of the mother to help the accused by the way she answered certain questions when cross-examined and ( 2) the failure of the defence to produce through the mother the punch card to sh ow that she was off-work at the relevant time despite producing a punch card for other period to support her testimony that she was off-duty at the other period . The mother's evidence was also considered in the light of the other evidence w hich I will advert to when I consider the other grounds of appeal. In so far as relying on her observation of the demeanour of the mother to arrive at the concl usion that the mother was not telling the truth,

104 one cannot find any fault there. As for the reason (2), the learned Sessions Cou rt judge had observed the spectacle of the mother producing a punch card to supp osedly support her assertion that she was off-duty and was with the accused duri ng the period but the punch card was discovered to be for another period. This s pectacle, apart from supporting the learned Sessions Court judge decision that t he mother was eager to help the accused, also justified the conclusion that if t he mother wanted to be accepted as a truthful witness, she would surely be in a position to produce the relevant punch card but did not. Though ordinarily the m other, because she is the prosecution witness, was supposedly a witness of truth , the learned Session Court judge was entitled to conclude from her demeanour an d from her failure to produce the relevant punch card that she was not a truthfu l witness. Again, I am of the view that the learned Sessions Court judge did not err in discrediting the mother on this ground as regards her allegation that sh e was in the house at the relevant time. Mr. John Shek had also submitted on oth er grounds that the learned Sessions Court judge was wrong in concluding that a case beyond reasonable doubt was made out at the end of the case for the prosecu tion. It is to those grounds that I will now turn to. Whether The Learned Sessio ns Court Judge Had Warned Herself Of The Danger Of Convicting On Uncorroborated Evidence? Mr. John Shek had submitted, ground 3(c)(i) of the petition, that the learned Sessions Court Judge had failed to warn herself of the danger of convict ing without corroboration and that her mind on this matter had not been revealed , citing in support Chiu Nang Hong v. PP [1965] 31 MLJ 40. In Chiu Nang Hong's c ase the accused was convicted of rape when there was a direct conflict of eviden ce between the accused and the complainant as regards whether there was consent for the intercourse. The trial judge believed the complainant that she was frigh tened into submission and concluded that: "I could not but come to the conclusio n that she was speaking the truth and that in all the material circumstances her evidence was corroborated by the facts." It was urged in the Privy Council that the passage ought not to be accorded its ordinary meaning but rather that "corr oboration" was used in the sense that the circumstances were consistent with the complainant's story but the Privy Council declined to do so. The Privy Council concluded that the judge had convicted the accused on the basis that the complai nant's allegation was corroborated when it was not and the Privy Council further on in their judgment said this: Their Lordships would add that even had this be en a case where the learned Judge had in mind the risk of convicting without cor roboration, but nevertheless decided to do so because he was convinced of the tr uth of the complainant's evidence, nevertheless they do not think that the convi ction could have been left to stand. For in such a case a judge, sitting alone, should in their Lordships' view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorrob orated, that the case against the accused is established beyond any reasonable d oubt. No particular form of words is necessary for this purpose: what is necessa ry is that the judge's mind upon the matter should be clearly revealed. Did the learned Sessions Court judge warn herself in terms that satisfy the standard set by Chiu Nang Hong case? This is how the relevant part of her judgment sounded, viz: In the Law of Malaysia there is no rule of law which requires the evidence of a tender child must be corroborated. Section 133A of Evidence Act provides th at any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his

105 evidence may be received, though not given on oath, if, in the opinion of the co urt, he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. Provided that, where ev idence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evid ence is corroborated by some other material evidence in support thereof implicat ing him. Where the evidence of the child witness is received upon [oath] as in t his case, there is [no] rule of law demanding that such evidence should be corro borated. However, as a matter of prudence, the court is mindful of the danger of accepting evidence of child of tender age without corroboration. In cases of ra pe the court will also consider the children capacity of confusing fantasy with reality (Loo Chuan Huat v. PP [1971] 2 MLJ 167 FC). To all these I have cautione d myself when evaluating the evidence of [the child]. That passage, in my view, shows that the learned Sessions Court judge had amply warned herself of the dang er of acting on uncorroborated evidence. Mr. John Shek did not refer to the pass age and therefore had not said how it can be said that it does not reveal the fa ct that the learned Sessions Court judge's mind was clearly aware of the danger of convicting on uncorroborated evidence. There is, therefore, no merit in this ground of appeal. It was also submitted that the learned Sessions Court judge ha d erred in concluding that there was corroboration when there was none. Did the learned Sessions Court judge require corroborative evidence? Mr. John Shek did n ot point to any particular passage of the judgment where the learned Sessions Co urt Judge had said she required corroboration. In fact, by cautioning herself of the danger of uncorroborated evidence, supra, it would appear that she required no corroboration in the evidence of the child. Mr. John Shek had submitted that the police report and the teacher's testimony that she had been told by the chi ld that she (the child) was disturbed could not amount to corroboration. But the learned Sessions Court judge never referred to those evidence as amounting to c orroboration. However, the term "corroboration" or "corroborated" was used sever al times in her judgment after she had warned herself of the danger of convictin g on the uncorroborated evidence of the child. It remains to be examined in what context the terms were used. The child had complained of great pain after the r ape and the learned Sessions Court judge concluded that it was true in these wor ds: It is abundantly clear from the evidence of PW1 and PW5 that [the child] was in great pain on 25 April 1996. Their observation corroborates [the child's] ev idence that she experienced pain in her private part when the accused was positi oned on top of her and also after he got off from her. She said that she experie nced this pain when she is sitting or walking. She felt the pain on the next mor ning. To my mind the evidence which I have just described had corroborated [the child's] evidence that she suffered pain as the result of the sexual intercourse . She is further corroborated by PW2 who testified that it was very difficult to conduct speculum examination on the vagina because of the pain experienced by t he patient. According to him the top of the vagina appeared red and the uterus a nd cervics were painful to touch. These show that the pain experienced by [the c hild] was not feigned but genuine. For the reasons given in the above, I am sati sfied that there was sexual intercourse and penetration. The learned Sessions Co urt judge was mindful of the fact that she must be satisfied beyond reasonable d oubt that the child was telling the truth when she complained of pain. The learn ed Sessions Court judge proceeded to make such a finding after giving the reason s, none of which can be faulted. What the evidence showed was that the pain was continuing even up

106 to the time the doctor examined the child. Such a finding was necessary as a res ult of the submission of learned counsel at the lower court that the tear in the hymen was caused by the child falling off a bus or by fingers or by other objec t which the learned Sessions Court judge discounted. It was in the context of es tablishing pain that it was found that the child's evidence was corroborated by the two teachers and by the doctor. This is beyond doubt as the learned Sessions Court judge went on, further down the judgment to say: I had earlier made a fin ding of fact that her observation on the pain suffered by [the child] is corrobo rated by PW5, PW2 and PW19. In so far as the finding that it was the accused who raped the child, the learned Sessions Court judge did not once use the said ter m. It is clear to me that she required no corroboration. Therefore, the question of the learned Sessions Court judge acting on uncorroborated evidence does not arise. I turn now to the question of whether it was the accused who raped the ch ild. Is There Evidence To Establish Beyond Reasonable Doubt That It Was The Accu sed Who Raped The Child? The contentions of the accused in relation to this grou nd are that (1) there was no evidence of penetration and (2) there was no eviden ce that it was the accused who had sexual intercourse with the child. Was there penile penetration? The learned Sessions Court judge in regard to the question o f penile penetration had relied on the medical evidence that came from Dr. Clare nce Choo who gave evidence that it was more probable than not that there was pen ile penetration because of the fresh tear in the hymen which happened within sev en days of his examination. Though he had earlier when crossexamined said that t he tear could have been caused by penile penetration or by fingers or by wood bu t he later ruled out the latter two because of the redness in the vagina and bec ause of the absence of larceration. The doctor revealed when cross-examined that he took a wet smear to determine the presence of spermatozoa but he could not f ind the report of the test. The learned Sessions Court judge also took into acco unt the facts (1) that the child had told the teacher the incident, (2) that the teacher's observation of blood stain on the panty and the dress of the child, ( 3) that the observation of the other teachers of the inability of the child to s it upright due to the pain from the private part and (4) the observation of the doctor that the child recoiled with pain when there was an attempt to examine th e private part, to satisfy herself that there was sexual intercourse. Against th ese evidence, Mr. John Shek submitted that a case beyond reasonable doubt had no t been proved because (1) the doctor had said that there were only partial tears in the hymen which could be caused by any one of the three things, viz: penile penetration or finger or wood, (2) the doctor had said the pain could be due to the infection of the uterus contracted during the intercourse and yet there was no evidence that the accused was so infected, (3) the lost of the test for the p resence of spermatozoa and (4) the evidence of the mother that she was at home w hen the alleged rape took place but did not see any rape taking place. As for (1 ), the learned Sessions Court judge had, as I mentioned earlier, already dealt w ith it when she accepted the evidence of the doctor that the most probable cause of the tears of the hymen was penile penetration. Therefore, there is no doubt at the prosecution stage of the case that it was penile penetration.

107 As for ground (2), the learned Sessions Court Judge had accepted the fact that t he police were unaware of the finding of infection of the vagina as Dr. Clarence Choo did not testify that he had informed the police and consequently the polic e did not follow up with an examination of the accused though it was likely that the accused was the source of the infection. If the accused had been tested and there was a failure of the prosecution to produce the result of the test, then it could be inferred that the evidence if produced would be adverse to the case for the prosecution. However, the accused was not tested and no such inference c an be drawn and it should not cast any doubt on the case for the prosecution. Le arned counsel did not raise the matter of the loss of the spermatozoa test resul t in the lower court, ground (3), and consequently the learned Sessions Court ju dge did not have the opportunity to address her mind to this contention. However , she was aware of the missing result but was nevertheless satisfied that a case beyond reasonable doubt was made out. The absence of the result of the test mus t be viewed with the evidence of the fresh tears of the vagina. There was at tha t stage of the case no evidence to suggest that any thing else other than the pe nis of the accused that caused the tears of the vagina. As for the evidence of t he mother that she was at home and therefore did not see the accused raping the child, ground (4), this was dealt with by the learned Sessions Court judge when she discredited her for the reasons which I have already earlier gone into and w hich I could find no fault in her conclusion. Again, I am of the view that the e vidence of the mother did not prevent a case beyond reasonable doubt from arisin g at the close of the case for the prosecution. I turn now to the question of wh ether there was evidence that it was the accused who had sexual intercourse with the child. Who Raped The Child? Learned counsel had submitted the same grounds which I have enumerated earlier in support of his contention that it was not pro ved beyond reasonable doubt that it was the accused who had sexual intercourse w ith the child. I have already dealt with the grounds and concluded that they hav e no merits. Therefore, this contention of learned counsel that there was no evi dence beyond reasonable doubt that it was the accused who raped the child also h as no merit. It was perfectly within the law for the learned Sessions Court judg e to have accepted the evidence of the child that it was the accused who had rap ed her. Mr. John Shek had argued that the learned Sessions Court judge should ha ve insisted on corroboration of the evidence of the child. However, learned coun sel had by referring to various authorities conceded that corroboration was not as a matter of law required. The learned Sessions Court judge had addressed hers elf on all the points raised by learned counsel concerning (1) the evidence of t he child being contradicted by the mother and the child's inability to tell the time the rape took place, (1) the reason the police report was made by the teach er, (3) the statement by the child to the teacher and (4) the medical report whi ch I had earlier mentioned and which the learned Sessions Court judge had dismis sed as not raising any doubt as to the existence of a case beyond reasonable dou bt being established. I am of the view that the learned Sessions Court judge was right in her conclusion since she had the benefit of listening to the evidence and of observing the demeanour of the witnesses. There are grounds of appeal whi ch I will not detail them here but which I would have dealt with by the conclusi ons that I have already arrived at. It suffice for me to say that they have

108 already been addressed by me. The other grounds that I have to deal with are dir ected specifically at the way the learned Sessions Court judge considered the ev idence for the defence. Whether The Learned Sessions Court Judge Had Erred When She Disbelieved The Defence. It is necessary to state in some detail the evidenc e adduced by the defence and which the learned Sessions Court judge had dealt wi th, in my view, exhaustively. The accused gave a statement from the dock and thi s was all that he said: I reside at Lot 1238, Jalan Bako, Kuching. I denied the allegation of rape made by (the child). I really did not do it as I had told the Court in trial within the trial. The aunt (DW2) of the child and also the siste r-in-law of the accused testified for the defence. The learned Sessions Court ju dge summed up and dealt with the evidence in this manner and it would be best if what she said is reproduced here in order to appreciate the contentions surroun ding this part of her judgment, viz: Accused elected to give an unsworn statemen t. He said that he really did not do it as he had told the court in a trial with in trial. To corroborate his claim of innocence, defence called DW2 ... who is t he sister-in-law of the accused and the aunt of [the child]. DW2 testified in ev idence in chief that she was staying together with [the mother], the accused, [t he child] and her late father in the same house owned by her late father. She ha d stayed with [the child] in the house ever since [the child] was born and they have been sharing the same bedroom ever since [the child] was eight years old. D W2 said that she went to bed usually at between 12 midnight and 1.00a.m. because she stayed up to watch TV. DW2 said that [the child] looked normal when she wen t to school on the morning when she made a complaint to her teacher. It was a Fr iday. She claimed that she was at home on the night before ie, Thursday. She cla imed that [the mother] was also at home on 23rd and 24th but she cannot remember which month. According to her [the child] went to bed at between 8.00p.m. and 9 .00p.m. while she stayed up to watch TV with [the mother]. She said that the acc used returned home at around 10.30p.m. She retired to her bedroom between 12 mid night and 1.00a.m. while [the mother] and the accused went inside their own bedr oom. When she went inside her bedroom she saw that [the child] was already aslee p with her children. DW2 claimed that she and [the child] loved each other. She treated [the child] as her daughter having looked after her from young. She said that [the child] did not tell her about the incident and she surely would scold the Accused if he had done such a thing to [the child]. So far she had not scol ded him and she does not believe that something had happened. She reiterated tha t nothing had in fact happened in the house. At this juncture the court observed that witness looked downcast. She further testified that the accused continues to stay in the house after the alleged incident and even after her father had pa ssed away in August 1996. According to DW2 the police had neither interviewed he r nor recorded a statement from her in connection with this case. She said that she visited [the child] everyday in the hospital and [the child] never told her that she was raped by the accused. In cross-examination DW2 said that she had a boy aged eight and girl aged six from an unregistered marriage which had broke u p sometime ago. She used to work when her mother was alive but she has stopped w orking since her mother had passed away in 1995. She has been staying in her lat e father's house even before her relation with the first husband had broke up. W e heard from her that she was a housewife in April 1996. She claimed that her

109 father who was paralysed and looked after by her, supported her and the two chil dren from his saving. According to her the accused supported only his own family . However, the Accused gave money to [the mother] to buy food provisions and eve ryone in the family, her own family included, ate together. DW2 admitted that he r relationship with the accused is good. However, she would not support him if h e had done wrong. DW2 disagreed that she and her family depended on the accused for daily support since she is not working. She insisted that she depended on he r sister and she is now remarried. She however agreed that the accused bought th e food provisions and that around the time of 1996 until she remarried, she depe nded on the accused for support. She agreed that she needed to have good relatio n with the accused and PW7 because she and her family had to eat the food bought with the accused's money. DW2 also informed in evidence in cross that she has r emarried in July 1996 and she is still living in the same house. Asked what movi e she was watching on that night. DW2 cannot remember the title of the movie. Sh e remember that she was at home that night. She testified that after returning h ome the accused took his bath and dinner, chatted with friends who came to visit with him while she and PW7 watched TV together. She said that she did not know what the accused did only after he entered his bedroom. To the question that sug gested that she was only guessing the date when she said that she was with her s ister on Thursday night, DW2 replied that the day was Thursday and the date was 23rd. DW2 also said that she is aware of the nature and the punishment of the of fence the accused is charged with but she maintained that the accused did not do it because she was staying in the same house and she did not see it. In insisti ng that nothing had happened, DW2 said that the allegation came from the teacher (I believe she was referring to PW1). She disagreed that she felt obliged to he lp the accused because she and her family had to some extent depended on the acc used for livelihood. She disagreed that she was guessing when she said the day w as Thursday 23rd. In re-examination, DW2 said that she stayed at home after 8.00 p.m. every night. She also said that she does not depend on the accused anymore after she had remarried. She claimed that she would not help the accused if he i s in the wrong, especially if he had disturbed her niece. She further said that in local Malay, malam Khamis means Wednesday night. She was referring to Wednesd ay night when she mentioned malam Khamis. Defence contended that the accused's u nsworn evidence is supported by the evidence of PW7 and DW2, hence it is not a m ere denial. As far as PW7's evidence is concerned, I have earlier given my reaso ns why I disregard it and I do not intend to repeat it here. Having perused the evidence of DW2 and having observed her demeanour in court, I am led to believe that she is not a neutral party, either. I have no doubt that [the child] and DW 2 were very close to each other having stayed together and the latter seeing [th e child] growing up and sharing the same bedroom. Be that as it may, I have stro ng reasons to believe that DW2 had, out of her obligation (though she denied it) to the Accused, had to testify for her brother-in-law. First of all, despite he r insistence that, prior to her father's death in August 1996, she and her two c hildren were supported by her late father from his savings and that her new husb and is supporting her now after she remarried in July 1996, the fact remained th at she was a housewife since 1995 after her mother's death and she was still a h ousewife in 1996, and that she and the two children ate the food that were bough t by PW7 with the money provided by the Accused. That explained, I believe, why DW2 looked so miserably downcast when she testified for the Accused. DW2 testifi ed in evidence in chief that her sister PW7 was at home on 23rd and 24th. In cro ss-examination she said she was referring to Thursday 23rd. In re-examination sh e said malam Khamis means Wednesday night in local Malay. It should be observed that DW2 evidence on the dates are very evasive and unconvincing. First of all s he cannot even

110 remember the month. Secondly she referred to the day as Wednesday 23rd. There is undisputed evidence from PW1 that she received the complaint of pain from [the child] on 25 April, 1996 (which, according to the Almanac, is a Thursday) and [t he child] had also said that the incident happened the night before she complain ed to PW1. It is therefore clear that the dates in question are sometime between the night of April 24th and the wee hours of 25th. In the light of this, DW2's evidence pertaining to the date being 23rd of unknown month becomes unreliable. It is more likely that she was guessing the date. DW2 testified that nothing had happened. If it had she would have told off the accused and would not help him. She said that the accusation started with the teacher. I have earlier said that although PW1 had tried to adopt [the child] unsuccessfully, I do not believe th at PW1 would thereby frame the Accused. It is also significant that this allegat ion has never been put to PW1 in crossexamination. In light of the above and bea ring in mind that DW2 had for more than one year, cater the foods bought with th e money given by the accused and the fact that they are still staying together o n good terms in the same house, I disbelieve DW2 when she claimed that nothing h ad happened at all. The medical evidence has established beyond reasonable doubt that [the child] was subjected to sexual intercourse by penile penetration. I b elieve the doctor who had explained why the hymen tear could not be caused by wo od or by finger. Something had happened to [the child] between 24 and 25th April , 1996 at between the time she went to bed and the incident happened and accordi ng to [the child], she was raped by her stepfather, the accused person. I strong ly regard DW2 as less than honest when she said nothing happened. Accused's own testimony is brief to the extreme. In two short sentences he told the court that he did not do it as he had told the court in trial within trial. I do not think the evidence adduced in the trial within trial can be relied on because therein the parties are concerned with only the voluntariness of the cautioned statemen t. Moreover, any denial made by the accused therein would not and could not be c hallenged by the prosecution because that was not the question in issue. The law regarding an accused person electing to make a statement from the dock is dealt with in Udagan Alagan v. P.P. [1962] MLJ 39 wherein Thomson J said that althoug h an accused person is within his legal rights when he elects to make a statemen t from the dock instead of giving evidence from the witnessbox, in a case which must in the event depend on credibility, he takes his course at his own peril. T he rule was stated in Shimmin's case 15 Cox C.C. 122, 124 by Mr. Justice Cave in a passage which, so far as I am aware (and I am quite prepared to be told I am wrong), has never been criticised: A prisoner, though defended by counsel, may, if he chooses, himself make his statement to the jury. He ought to be heard in h is defence, and have the opportunity of making his explanation of the circumstan ces proved against him. True, his statement was not made on oath, and that he wa s not liable to be cross-examined by the prosecuting counsel, and what he said w as therefore not entitled to the same weight as sworn testimony. Faced with such a serious charge, it is interesting to see that the accused, other than denying committing the offence, has elected not to make an explanation of the circumsta nces proved against him. Instead he just relied on PW7 and DW2 whose evidence I have evaluated and attached very little weight thereto. Having regard to the tot ality of the case, I do not think the defence has cast a reasonable doubt on the prosecution's case. Accordingly I convict the accused as charged.

111 Whether Questions Should Have Been Allowed? Mr. John Shek submitted that the lea rned Sessions Court judge had disbelieved DW2 on the basis that DW2 felt obliged to help the accused since the accused had supported DW2 and her children when, according to learned counsel, there was no evidence of such support. Learned cou nsel submitted there was no such evidence because the evidence that was elicited in crossexamination should not have been allowed. This is what happened during the crossexamination of DW2 as the notes of proceedings reveal: P: Since you are not working, since you have to support your children and yourself, you depend o n the accused for daily support. A: I depend on my sister. I am now remarried. P : Around the time of 1996, until you remarried, you depended on the accused for support Defence Counsel: Put on record that the witness had already answered tha t she depended on her father. A: I agree that my brother-in-law buys the food ev erything. Q: Because the accused buys food everyday and you have to eat the food , therefore you need to have a good relationship with the accused. A: Yes. Also with my sister. Q: Do you agree that you also depend on Yong for your daily live lihood. A: Yes, after my father passed away, I don't now because I am remarried. I remarried on 15 July 1996. After I remarried I still stay in the same house. It will be recalled that the learned Sessions Court judge had concluded that DW2 and children had been supported by the accused which the prosecution was able t o elicit from DW2 as a result of the said cross-examination. Mr. John Shek argue d that the prosecution should not have been allowed to question DW2 in the manne r indicated by the notes of proceedings, supra, and if that had been done, there would not have been this evidence. Learned counsel did not elaborate under what law the learned Sessions Court judge was entitled to prevent a cross-examinatio n that tended to revealing the truth. Whatever questions that have been put in c ross-examination by the prosecution were, I am of the view, within the limit lai d down by ss. 143 and 146 of the Evidence Act 1950. DW2 was pressed to answer wh ether the accused supported her and her children in their livelihood during the time she was not able to do so and this was after DW2 had given evidence that he r father supported her when he was alive and when she remarried. The prosecution sought to narrow down her answers to specific period and it was due to this pro cess that it was revealed that DW2 was at the relevant time out of work and had depended on the accused. I am unable to see and learned counsel had not been abl e to say what law was infringed when the questions and answers, supra, were allo wed. Whether There Was Miscarriage Of Justice Mr. John Shek had submitted that t he learned Sessions Court judge was unfair, unjust and prejudicial to the accuse d when she, in the concluding part of her judgment, made the following remark, v iz:

112 Faced with such a serious charge, it is interesting to see that the accused, oth er than denying committing the offence, has elected not to make an explanation o f the circumstances proved against him. Instead he just relied on PW7 [the mothe r] and DW2 whose evidence I have evaluated and attached very little weight there to. Having regard to the totality of the case, I do not think the defence has ca st a reasonable doubt on the prosecution's case. Accordingly I convict the accus ed as charged. Learned counsel submitted that "there is no possibility for the a ppellant to make any explanation to the amended charge framed by the learned tri al Sessions Court judge herself." I will deal first with the question of the ame ndment of the charge which was referred to and contended by learned counsel to b e wrong. The initial charge stated the time of offence to be "on or sometime in April, 1996. This was, upon the application of the prosecution, amended to read: "on 24 April 1996 at 11.30pm thereabout". After the conclusion of the trial, ju dgment was reserved to be delivered on 15 October 1997 but this was changed to 1 9 October 1997 on which date the learned Sessions Court judge amended the said p art of the charge to read: "sometime between the night of 24 April 1996 and the wee hours of 25 April 1996". The accused after being explained the amended charg e, pleaded not guilty. The prosecution then informed the court that it does not propose to recall any witnesses while the accused stand-in counsel requested an adjournment to allow learned counsel to consider the question of the recall of w itnesses. The court then adjourned to 27 October 1997 whence the stand-in counse l informed the learned Sessions Court judge that the defence did not want to rec all any witnesses. The court then delivered its judgment and convicted the accus ed. Learned counsel submitted that the amendment was unjust and relied on PP v. Salamah binte Abdullah&Anor Case [1947] 13 MLJ 178 and PP v. Tan Kim Kang&Ors [1 962] 28 MLJ 388. Salamah binte Abdullah&Anor case concerns a situation where a m ore serious charge of theft in a dwelling house was substituted for the original charge of dishonest receiving at the close of the case for the defence and it w as based on the evidence of the accused in that case. The conviction on the new charge was quashed on appeal and a conviction for the original charge was substi tuted. It was in the context of those facts that the following judgment in that case must be viewed: Now the proper time to amend a charge is at the close of th e prosecution. This is expressly provided by Section 173(h) of the Code which, i ndeed, not merely authorises but positively requires the Court to consider the c harge at that stage and, if necessary, amend it. It is true that a charge can be altered at any stage and the alteration in this case, late though it was, is no t illegal in the sense that it was not in accordance with the Code but in my vie w it was in the circumstances unjust. The court had ruled that it was unfair bec ause it had relied on the evidence of the accused to amend the charge when the l aw requires the prosecution to prove its case. In the present case there was no substitution of a more serious charge for a lesser case. The amendment involves only restating the time frame differently within which the offence was alleged t o have been committed but which in effect was not materially different from what it was before the amendment. In fact the learned Sessions Court judge would hav e been perfectly entitled to say that the offence had been proved to be committe d within the time specified in the charge that was amended at the close of the c ase of the prosecution, that is, "on 24 April 1996 at 11.30pm thereabout". I had the occasion to deal with the matter of the specification of time of

113 the commission of offence in Willie Sodoi v. Public Prosecutor [1994] 3 CLJ 515, 517 where I said: It is laid down by s. 153(i) of the Criminal Procedure Code t hat a charge should contain particulars as to time, place and person, viz: The c harge shall contain such particulars as to the time and place of the alleged off ence and the person, if any, against whom or the thing, if any, in respect of wh ich it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. Therefore, a charge should at least state t he time the offence was alleged to have been committed. In this case, the charge alleges the offence to have been committed sometime in February 1991 which I th ink is reasonably sufficient notice of the matter charged. See Re Lim Yong Eng [ 1956] MLJ 79. Since a charge requires the date of the alleged commission of the offence to be stated, the evidence that go towards supporting the charge should likewise establish the approximate date in which the offence was committed. The evidence in this case failed to do so. They are not specific and accurate enough as to require the accused to enter upon his defence. How could anyone answer an allegation that he had on an unknown date stolen cocoa beans. I am inclined to agree with the observation of the Court in R. v. Hartley [1972] 2 QB 1, C.A. whe re it is said that where the words "on or about [the date] are used", to render a verdict of guilty lawful the offence must be shown to have been committed "wit hin some period which has a reasonable proximation to the date mentioned in the indictment." As for PP v. Tan Kim Kang&Ors case which was also relied on by lear ned counsel, the facts there are also radically different. Anyway, the court the re held that it was in order to amend the charge after the defence was called th ough it expressed the view that such a course should be taken with great caution . This case is also of no help to the case of the accused. Returning now to the contention that "there is no possibility for the appellant to make any explanati on to the amended charge framed by the learned trial Sessions Court judge hersel f," I do not see how this submission can be sustained. The accused declined to e xercise the right to recall the witnesses for examination that was opened to him and to explain and consequently to, on a balance of probabilities, cast a doubt in the case for the prosecution. I turn now to the final question which is that of the sentence. Whether The Sentence Was Inappropriate? Learned counsel had su bmitted that the sentence was too severe and that the learned Sessions Court jud ge had failed to consider the background of the accused. The learned Sessions Co urt judge had sentenced the accused to 13 years imprisonment and one stroke of w hipping. Learned counsel did not refer to the court any case to show the sentenc ing trend. The same learned Sessions Court judge had in another case (Criminal A ppeal No. 42-09-97-III(I)) sentenced an accused to ten years and five strokes of whipping but the accused in that case pleaded guilty. Surely, it would not be i n the interest of justice that the sentence in this case, after a full trial, sh ould be lesser than that imposed on an accused who had pleaded guilty. Therefore , if anything, the learned Sessions Court judge appeared to be on the lenient si de as she only imposed a single stroke of whipping. Since the learned deputy pub lic prosecutor, Mr. Suhaimi bin Ibrahim, did not urge the court to increase the whipping, I do not propose to increase the whipping. In so far as the background of the accused is concerned, Mr. John Shek had argued that because (1) the accu sed is a first offender, (2) the long prison sentence would cause hardship to th e family of the accused upon whom they are dependent for their livelihood and (3 ) the accused after serving such a long term would be too old to work and be a p arasite to society, a shorter sentence should be imposed. I am of the view that those

114 matters, urged by learned counsel, cannot out-weigh the seriousness of the offen ce. It is because that it is so easy for this sort of offence to be committed an d because it is almost impossible for any child to defend herself against rape t hat a deterrent sentence is called for in order that such offence should be stop ped. Any lesser sentence may not serve the purpose. Therefore, I am of the view that the sentence is neither excessive nor unlawful. Conclusion In the premises, I dismiss the appeal.

115 [1994] 2 CLJ 383 DABAL B. ANDING v. PUBLIC PROSECUTOR HIGH COURT, TAWAU TUAN IAN H.C. CHIN J. [CRIMINAL APPPEAL NO. T(42) - 11 OF 1993 ] 16 MARCH 1994 JUDGMENT Ian H.C. Chin J: The Charge This is an appeal by Dabal B. Anding ("the accused") who was on 26 July 1993 convicted by the learned Magis trate of having used criminal force on one eight year old girl ("the child") wit h the intention of outraging her modesty under s. 354 of the Penal Code and was sentenced to a term of imprisonment of 18 months. The charge against him was tha t he between January 1991 and July 1991, between 7.15 a.m. and 5.45 p.m. in Seko lah Rendah Tanjong Batu Darat, Tawau, used criminal force on the child intending thereby to outrage her modesty. The charge reads: Bahawa anda, antara bulan Jan uari 1991 hingga bulan Julai 1991, antara jam 7.15 pagi hinggi 5.45 petang sepan jang tempoh tersebut bertempat di dalam Sekolah Rendah Tanjong Batu Darat, dalam Daerah Tawau, di dalam Negeri Sabah. telah menggunakan kekerasan jenayah kepada Siti Salwa Bte Kamil, seorang gadis berumur 8 tahun, dengan niat mencabul yang boleh dihukum di bawah Seksyen 354 Kanun Kesiksaan . The Evidence The evidence o f the prosecution are these. The mother of Siti Salwa Bte Kamil ("the child") te stified that on 16 July 1991 at about 9.30 a.m. the child came home with 5 schoo l friends. She heard one of the children said: "Makcik, si Salwa selalu kena tan gkap basah oleh cikgunya", which, translated literally, means -"Aunty, Salwa is always caught wet by her teacher". She then tried to find out what the statement meant. This resulted in one of the school friends saying that the child was oft en called by the teacher into his room. Following further questioning, the child then told the mother that the accused pulled her panty down, that the accused a sked her to lie on the floor and that thereafter the accused laid on top of her. One or two of the school friends then said that the accused also passed urine o n the child which the child confirmed to the mother to be true. The mother made a police report on 17 July 1991. The child testified that the accused asked her to remain in the classroom while the rest of her classmates were sent away to th e padang for their physical education. When the accused and the child were alone , the accused locked the door of the class room, lifted the child onto a teacher 's table and laid the child on it. The accused removed the panty of the child an d unzipped his trousers fly. The accused thereafter took out his private parts, laid on top of the child and brushed his private parts against the private part of the child. The accused then ejaculated the sperm to the side of the private p art of the child. This happened 5 times. The first of which took place in the cl ass room and this was in the afternoon during the time which the child was suppo sed to have her physical education and which the accused was supposed to teach. The second, third and fourth time was in the school library where the time

116 and the day was not ascertained. The fifth time took place during a school perio d and in the accused's house where the child was brought there in a van by the a ccused. The sperm on the child was wiped with pages from a book. It was because her three classmates complained that she smelt of urine that she related to them what the accused did to her. She and her classmates on one occasion went to the toilet to wash away the sperm. The next witness ("PW3") to testify was a 9 year -old classmate of the child and the class monitor of which the accused was the t eacher. PW3 confirmed that the child had explained to her and other classmates a s to why she (the child) smelt of urine and this was because, the child had said to her, the accused had laid on her and then urinated on her. PW3 testified tha t she, other classmates and the child went to a toilet to help clean the clothes of the child and this was when she saw a sticky white substance on the child's clothes which PW3 described as urine. She said it was during the time of the mat hematic class which the accused was supposed to teach, but did not, that she saw the child and the accused went into the van of the accused and that they therea fter returned. One other relevant witness was one Dr. Darshan Singh who examined the child on 17 July 1991. The said doctor's medical report was read in Court b ut the notes of proceeding do not show what the report stated and neither was th e medical report produced though reference was made to it by the prosecution, th e defence and the learned Magistrate. It is from these references and the answer s elicited from the doctor when being examined as a witness that it could be gue ssed that the doctor had testified that the hymen of the child showed abrasions which were possibly caused by the rubbing together of two sexual organs. It was upon those evidence that I had just summarised that the accused was called upon to enter upon his defence. The accused testified and denied the alllegations. He testified that the class room where he was alleged to have committed the act co uld be seen by anyone who happened to be at the verandah and by anyone at certai n building away from the class room. He produced similar evidence with regards t o the library where three of the acts were alleged to have taken place. A relati ve came forward to testify that she was at all time in the house of the accused and that she had never seen the accused brought any school girl home. Evidence w as also produced that the children of the accused, who lived with the accused, a ttended morning and afternoon school. More of the facts will be stated when the grounds of the decision of the learned Magistrate is hereinafter referred to. Gr ounds of Appeal Mr. Mirdin Mamdin, Counsel for the accused, both at the trial an d in this appeal, had forwarded numerous grounds of appeal which I will not set out but I would have in this judgment dealt with them even if no pointed referen ce is made. Conclusions Since one distinct offence should be the subject-matter of one charge and since there is only one charge in this case, the accused must be taken to have been charged with one offence of using criminal force on the ch ild to outrage her modesty. The charge related the school as being the place whe re the offence was alleged to have been committed. Though the charge was not mor e specific as to the exact location in the school where the offence was alleged to have been committed, there was no complaint at the trial, nor at the appeal, by Mr. Mirdin Mamdin, a Counsel of experience in criminal cases. I can conclude, therefore, that the accused was not misled, prejudiced or embarassed since his Counsel was happy with the charge as it is. Though there was one charge for one offence, evidence was adduced, again

117 without any objection from Mr. Mirdin Mamdin, tending to show that the accused h ad on five different occasions committed similar act at the school library (thre e times), at the classroom and in the house of the accused. It ought to be obser ved that s. 164(i) of the Criminal Procedure Code allows not more than three sim ilar offences to be charged and tried together; the section reads: 164(i) When a person is accused of more offences than one of the same kind committed within t he space of twelve months from the first to the last of such offences, whether i n respect of the same person or not, he may be charged with and tried at one tri al for any number of them not exceeding three. Therefore, at most, the accused c ould only have been charged and tried at one trial with three of the alleged off ences. Mr. Mirdin Mamdin's attack was directed at the evidence of the alleged of fence committed in the house of the accused which was not even the subjectmatter of the charge. It has first to be ascertained whether the learned Magistrate co nvicted the accused of the offence in the house or of the other four offences in the school library and the class room. In her judgment, the learned Magistrate made a finding of fact that all 5 incidents, including that in the house, took p lace as alleged by the child. The conviction of the accused, it could be argued, was for the offence committed in the house of the accused for which he was not even charged for. The problem with this case is that the conviction handed down by the learned Magistrate was in fact in respect of all five offences even thoug h the accused was charged for only one offence. Even if it could be argued that the conviction was not for the offence in the house, the evidence relating there to had, nevertheless, weighed very heavily on the mind of the learned Magistrate to the prejudice of the accused because such evidence tend to suggest that the accused had a propensity for such offence. See Wong Kok Wah v. R [1955] MLJ 46 ; Habee Bur Rahman v. PP [1971] 2 MLJ 194 and PP v. Ong Kok Tan [1969] 1 MLJ 118 . Another unsatisfactory feature of this case is the "evidence" (not properly su ch) which the learned Magistrate imparted into her judgment and which she gather ed as a result of her, what I can term as, investigation by her revisiting the s chool on her own after the close of the case. As a result of her visit, which wa s made some two and a half years after the date of the alleged offences, she dis believed the accused as to the visibility of the library and the class room to p eople in nearby building and locations. This is wrong and to show that it is, I need only refer to Phipson on Evidence, 14th Edn., at para. 2-08 which says: Alt hough, however, judges and juries may, in arriving at decisions, use their gener al information and that knowledge of the common affairs of life which men of ord inary intelligence possess, they may not, as might juries formerly, act on their own private knowledge or belief regarding the facts of the particular case. I n eed mention one other unsatisfactory feature of this case before I make my decis ion as regards this appeal. The learned Magistrate treated the evidence of PW3 t hat she saw the accused took the child to his van, which resulted in the alleged offence in the house, as corroboration of the evidence of the child. Such evide nce is only corroboration of the child's evidence if the charge is for the offen ce in the house but, as mentioned earlier, the charge against the accused was in respect of the offence in the school. Given the many unsatisfactory features of this case, the cumulative effect of which was to occasion a miscarriage of just ice, I allow the appeal and set aside the conviction and

118 sentence. However, there should be a retrial, which I so order, of the accused o n the following three charges which shall be tried together by another Magistrat e, viz: Pertama, Bahawa kamu, di-dalam tempoh masa antara bulan Januari 1991 hin gga bulan Julai 1991, antara jam 7.15 pagi hingga 5.45 petang, bertempat dil Pus at Sumber dalam Sekolah Rendah Tanjong Batu Darat, dalam Daerah Tawau, di dalam Negeri Sabah, telah menggunakan kekerasan jenayah kepada Siti Salwa Bte Kamil, s eorang gadis berumur 8 tahun, dengan niat mencabul yang boleh dihukum di bawah s . 354 Kanun Kesiksaan . Kedua, Bahawa kamu, di-dalam tempoh masa antara bulan Ja nuari 1991 hingga bulan Julai 1991, antara jam lebih kurang 4.40 petang hingga 5 .00 petang, bertempat di Bilik Darjah 2H di Sekolah Rendah Tanjong Batu Darat, d alam Daerah Tawau, di dalam Negeri Sabah, telah menggunakan kekerasan jenayah ke pada Siti Salwa Bte Kamil, seorang gadis berumur 8 tahun, dengan niat mencabul y ang boleh dihuhum di bawah s. 354 Kanun Kesiksaan . Ketiga: Bahawa kamu, di-dala m tempoh masa antara bulan Januari 1991 hingga bulan Julai 1991, antara jam lebi h kurang 7.15 pagi hingga 5.45 petang dirumah kamu di Air Panas, dalam Daerah Ta wau, di dalam Negeri Sabah, telah menggunakan kekerasan jenayah kepada Siti Salw a bte Kamil, seorang gadis berumur 8 tahun, dengan niat mencabul yang boleh dihu kum di bawah s. 354 Kanun Kesiksaan . There is just one final matter which I wou ld like to draw the attention of the Judicial Officers of the Subordinate Courts in Sabah. The provisions governing the evidence of a child are s. 118 and s. 13 3A of the Evidence Act 1950 and these have to be read with the Oaths Ordinance ( Cap. 89) of Sabah . This has the effect that when a child is allowed to give evi dence not on oath or affirmation, the Court must caution the child "to speak the truth, the whole truth and nothing but the truth". As to the tests to be employ ed in ascertaining whether a child should give evidence on oath or affirmation o r after caution, the case of Kee Lik Tian v. PP [1984] 1 MLJ 306, at pp. 308-309 , provides valuable guides to which the Judicial Officers should refer to. That case also lays than that it is advisable to put on record as to what went on in the Court with regard to determination of whether a child should be allowed to give evidence.

119 [1981] 1 LNS 13 FADZIL BIN MOHAMED NOOR v. UNIVERSITI TEKNOLOGI MALAYSIA FEDERAL COURT, KUALA LUMPUR Raja Azlan Shah CJ (Malaya), Abdul Hamid FJ&Abdoolca der J [Civil Appeal No. 128 of 1980] 22 May&16 June 1981 Raja Azlan Shah CJ: Thi s appeal is against the judgment of the learned Judge dismissing an application by the plaintiff (appellant before us) for summary judgment in an action brought by the appellant against the Universiti Teknologi Malaysia (respondents before us) for a declaration that the purported dismissal by the respondents (whom we s hall call "the University") of the appellant was ultra vires, illegal and void a nd that the appellant is entitled to be paid his salary and all emoluments as fr om the date of the purported dismissal. The appellant was during the material pe riod an Assistant Lecturer employed by the University. He was granted leave for period 21 to 24 June 1978, for the purpose of participating in the General Elect ion. As he found the period insufficient he sent a telegram requesting for exten sion of leave which request was refused. Unfortunately, the letter refusing the leave was never received by the appellant but nevertheless he proceeded to go on leave without approval. On 13 July 1978, the secretary of the disciplinary comm ittee wrote a letter to the appellant to show cause in writing why disciplinary action should not be taken against him. On 25 July 1978 he replied giving his ex planation. After a period of 8 months the appellant received a letter dated 13 F ebruary 1979, stating that the University Council at its meeting held on 22 Janu ary 1979 considered the decision of the disciplinary committee on the complaint regarding the appellant s absence without leave and the University Council decided to terminate his employment with effect from 15 February 1979. We reproduce exce rpts of the said letter: Encik Fadzil bin Mohd. Noor, Pusat Pengajian Kemanusiaa n, Universiti Teknologi Malaya. Tuan, Adalah dimaklumkan Majlis Universiti Tekno logi Malaysia telah pun mengadakan satu Mesyuarat Khas pada 22 Januari 1979, bag i menimbangkan perakuan yang dikemukakan oleh Lembaga Jawatankuasa Tatatertib me ngenai tuduhan bahawa tuan telah mengengkari arahan pihak Universiti dan seterus nya tidak hadir bertugas tanpa kebenaran daripada 26 Jun hingga 10 Julail 1978. ... Setelah mengkaji perkara ini dengan teliti Majlis telah mendapati bahawa ada lah sabit kesalahan tuan terhadap tuduhan mengengkari arahan pihak Universiti da n seterusnya tidak hadir bertugas tanpa kebenaran daripada 26 Jun 1978, hingga 1 0 Julai 1978.

120 ... Oleh demikian dengan sabitnya kesalahan tuan itu Majlis berpendapat tidaklah ada jalan lain yang sesuai diamoil melainkan tuan dibuang kerja. Dengan itu ini lah di-maklumkan bahawa tuan adalah dibuang oleh oleh Majlis Universiti Teknolog i Malaysia mulai daripada 15 Februari 1979. Yang benar, Sd. (Ainuddin bin Abdul Wahid) Naib Cansellor. b.p. Majlis Universiti Teknologi Malaysia. On 17 July 197 9, the appellant filed a specially endorsed writ in which he asked for a declara tion mentioned above. On 8 August 1979, he unsuccessfully applied by way of summ ons-in-chambers for summary judgment in terms of the statement of claim. The arg ument on the appeal ranged over wide matters, but as it developed it became appa rent that the appeal should be disposed of on a ground relating to ultra vires a nd that it was unnecessary to call on Counsel to argue other issues. The questio n of whether or not the purported dismissal was validly made is now in substance the question raised in this appeal. It is plain from the course of events, as s et out in the judgment of the learned Judge, that the whole matter was dealt wit h by the disciplinary committee, purporting to act as the delegate of the Univer sity Council. Thus the question arises whether the disciplinary authority of the University in respect of a member of the staff was in law a delegated power of the disciplinary committee. The learned Judge seems to think that the disciplina ry authority is vested in the University Council and that the Council had power to delegate and did in fact delegate it to the disciplinary committee by virtue of s. 16A of the Universities and University Colleges Act 1971, (Act 30 of 1971) . He found some support for this conclusion in the language of subsection (5) of s. 16A of the Act which provides for the right of appeal of any person dissatis fied with the decision of the disciplinary committee to the University Council a nd which he construed as not restricting the power of the University Council to appoint or dismiss officers and staff of the University as conferred by its Cons titution. Section 4(1)(m) and s. 16 of the Constitution of the University were a lso referred to and applied. The difficulty in the way of this conclusion is tha t it finds no support from the language used in the Act or Constitution. We are of the view that this appeal turns ultimately, and we think exclusively, on the proper meaning and operation of ss. 7, 16A and 16C of Act 30 of 1971 and s. 4(1) (m) and s. 16 the Constitution of the University. We reproduce the relevant prov isions in some detail: Section 7(1) upon the coming into force of the Incorporat ion Order ... a University ... established ... and shall be deemed to have been constituted a body corporate ... with full power and authority ... (e) to exerci se, discharge and perform all such powers, duties and functions as may be confer red or imposed on the University by this Act or the Constitution.

121 (2) The powers conferred on a University by subsection (1) shall, unless otherwi se expressly provided by this Act or the Constitution, be exercised by the Unive rsity Council. Section 16A(1) Subject to subsection (4), the disciplinary author ity of the University in respect of every member of the staff, ... shall be the disciplinary committee of the University which shall consist of: (a) the Vice-Ch ancellor; and (b) two members of the University Council elected by the Universit y Council. (2) In the exercise of its disciplinary functions, the disciplinary c ommittee shall have the power to take such disciplinary action and impose such d isciplinary punishment as may be provided for under any disciplinary rules that may be made by the University Council under s. 16C ... (5) Any member of the sta ff, officer or employee of the University who is dissatisfied with the decision of the disciplinary committee or of any person or board delegated with functions , powers or duties under subsection (3) may appeal against such decision to the University Council which may give such decision thereon as it deems fit and prop er. Section 16C(1) The University Council shall have the power to make such disc iplinary rules as it deems necessary or expedient to provide for the discipline of the members of the staff, ...; the disciplinary rules made under this subsect ion shall be published in the Gazette... (3) The disciplinary rules made under t his section shall create such disciplinary offences and provide for such discipl inary punishments as the University Council may deem appropriate, and the punish ments so provided may extend to dismissal or reduction in rank in the case of me mbers of the staff, officers or employees of the University, and expulsion from the University in the case of students of the University. It may be noted the di sciplinary rules, contained in a detailed and elaborate code which prescribes th e procedure, which is fair and appropriate, to be followed when there is an alle gation of a disciplinary offence, were gazetted only on 15 February 1979, (PU(A) 22/79), that is on the same day the purported dismissal was made by the Univers ity Council. Therefore at the material time there were no disciplinary rules, an d as such, no known disciplinary offences created and no known disciplinary puni shments provided. The powers conferred on the University as defined in s. 7(1)(e ) of Act 30 of 1971, are enumerated in s. 4 of the Constitution of the Universit y (PU(A) 231 of. 1976): Subsection (1) reads: 4(1) The University shall, subject to the provisions of this Constitution, have the following powers: (m) to appoi nt, promote and discipline officers, teachers and staff of tile University;

122 By virtue of the provisions of ss. 7(2) and 16A of the Parent Act, disciplinary powers under this provision of the Constitution are exercisable only by the disc iplinary committee. The powers of the University Council are contained in s. 16 of the Constitution. It reads: The Council shall be the executive body of the Un iversity, and may exercise all the powers conferred on the University, save in s o far as they are by this Constitution or the Statutes, Acts and Regulations con ferred on some other Authority or body or on some officer of the University: ... This provision in the Constitution constitutes the University Council as the ex ecutive body of the University and not the disciplinary authority and must neces sarily be limited in scope and read in the light of the relevant provisions of t he enabling Act we have just referred to. The University was incorporated under Act 30 of 1971. It is a corporate body, and as such it can only do such acts as are authorised directly or indirectly by the statute creating it: see Attorney-G eneral v. Leeds Corporation [1929] 2 Ch 291. In Public Textiles Bhd. v. Lembaga Letrik Negara [1976] 2 MLJ 58 this Court said in relation to a corporation that whatever is not permitted expressly or by necessary implication by the incorpora ting statute is prohibited not by the express or implied prohibition of the Legi slature but by the principle of ultra vires. Therefore the university authority can only act in pursuance of the powers given to it by law. It follows that it h as to follow proper procedure as prescribed by law before condemning an erring m ember of the staff. If it goes outside its limit of operation, or is not warrant ed by it, then any decision made by it is ultra vires. To elaborate somewhat, th e University Council in the present case is the executive body of the University . It may exercise all the powers conferred on the University by Act 30 of 1971, or the Constitution. But such powers are circumscribed. Subsection (2) of s. 7 o f the Act enacts "unless otherwise expressly provided by this Act or the Constit ution." The general powers of the University Council do not by virtue of s. 16A of the Act extend to disciplinary matters. Such matters are conferred on and ves ted in the disciplinary committee alone. That committee must itself take the res ponsibility of deciding a disciplinary case, that is to say, the charge and the consequences of a positive finding upon it. The University Council s limited role i n this matter is as an appellate body exercising judicial function for the deter mination of appeals from any decisions of the disciplinary committee. It is, the refore, obvious that the functions of these two bodies are separate and distinct . The Act deals with the situation in language which could scarcely be plainer. And it pointedly omits any reference to delegation. It prescribes the bodies who are to be the disciplinary authority and the appellate authority. Such being th eir respective jurisdiction, we are of the opinion That the purported exercise o f jurisdiction by the University Council in dismissing the appellant was ultra v ires its powers. The University Council was purporting to do the very thing whic h, by Act 30 of 1971 and the Constitution, it was prohibited from doing. It was further argued that since there were no disciplinary rules at the material time and therefore no disciplinary action that could be taken by the disciplinary com mittee, the power of disciplinary dismissal was still vested in the University C ouncil. As such

123 the University Council could dismiss the appellant under the master and servant principle. In Ridge v. Baldwin [1963] 2 All ER 66 Lord Reid developed the point in an illuminating way. He said, inter alia, that in a pure master and servant c ase, dismissal is governed by the law of contract inter partes and there is no r ight to be heard. In other words, in a pure master and servant relationship, the principles of administrative law, including those of natural justice have no pa rt to play. The administrative law remedies, such as a declaration that the dism issal is ultra vires is not available; no order for reinstatement can be made. T he most that can be obtained is damages, if the dismissal is wrongfull. In Mallo ch v. Aberdeen Corporation [1981] 2 MLJ 1, Lord Wilberforce took that point to m ean "cases in which there is no element of public employment or service, no supp ort by statute, nothing in the nature of an office or a status which is capable of protection." In cases where such an element is present, Lord Wilberforce poin ted out that "there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared void." In that case the House of Lords held that a school teacher had a special status conferr ed on him by statute which converted him from being a public servant holding off ice at the pleasure of a public authority into a servant who, by virtue of his s tatutory position, had implied into that position the right to be hero. Lord Wil berforce stated (p. 1294): The argument that, once it is shown that the relevant relationship is that of master and servant, this is sufficient to exclude the r equirements of natural justice is often found. ... A comparative list of situati ons in which persons have been held entitled or not entitled to a hearing, or to observation of rules of natural justice, according to the master and servant te st, looks illogical and even bizarre. Lord Wilberforce s speech is important becaus e it opens the way for there to be a general application of the principles of na tural justice to the employment relationship. Clearly this is not a straight-for ward case of master and servant. The appellant as an Assistant Lecturer employed by the University, has a status supported by statute and is entitled to the pro tection of a hearing before the appropriate disciplinary authority, including th e right of appeal to the University Council from the decision of that authority. If that right is violated, as happened here, then the Court may allow declarato ry relief, enabling him to retain his employment, and continued eligibility to b e paid his salary and all emoluments from the date of the purported dismissal. T he point is, here, the appellant s employment had never been terminated. It would b e open to the University at any time hereafter to dismiss him if it so chooses t o do and does so in a lawful manner. Until it chooses to do that the appellant s co ntract of employment will continue. We find it hard to believe that in a field o f employment such as the present, the Legislature can really be said to have int ended that the appellant is ipso facto to be deprived of his employment without any regard for vested right. To say that there were no disciplinary rules under which he could be charged is an argument which has only to be stated to be rejec ted. We now consider the application for summary judgment. It was rightly raised by Counsel for the University that the case turns on the interpretation of the provisions of Act 30 of 1971 and the Constitution of the University, and therefo re the Court ought to be very cautious in treating it under O. 14. We are dispos ed to agree with that argument for this reason; not that cases depending on the interpretation of a statute or

124 statutes deserve any different treatment from that of any other case under O. 14 . An O. 14 order in the view we have always taken of it is a very stringent proc edure because it shuts the door of the Court to the defendant. The jurisdiction ought only to be exercised in proper cases. If the University and University Col leges Acts and related legislation come into an O. 14 case, no greater attention in principle is to be given by the Court to that class of action than to any ot her class of action. The only point is that as everybody knows the pertinent leg islation is long and complicated. But it is not sufficient under an O. 14 case t o flourish the title of the University and University Colleges Act, etc., in the face of the Court and say that is enough to give leave to defend. If a point ta ken under the Acts is quite obviously an unarguable point, and the Court is sati sfied that it is really unarguable, the Court has precisely the same duty under O. 14 as it has in any other case. The Court has the duty to apply the rule: (se e Harry Tong Lee Hwa v. Yong Kah Chin [1981] 2 MLJ 1). In Esso Standard Malaya B hd. v. Southern Cross Airways (M) Bhd. [1971] 1 MLJ 168. I pointed out that in a n O. 14 case, where it turned on the construction of a few documents, and the Co urt was only concerned with what, in its judgment, was the true construction, th ere could be no reason to go formally to trial where no further facts could emer ge which would throw any light on the documents that had to be construed. We thi nk we can safely apply that principle to the present case. On the view we have t aken of the construction of Act 30 of 1971, and the Constitution of the Universi ty, the University had an absolutely hopeless case. The only function of the Cou rt is jus dicere and to ascertain the intention of Parliament from the words use d in the statutes and nothing more. No useful purpose would then be served to go formally to trial. We accordingly allowed the appeal.

125 [1997] 3 CLJ Supp 176 YUNUS M HANIFF v. MAJLIS INSTITUT TEKNOLOGI MARA HIGH COUR T MALAYA, MELAKA SURIYADI HALIM OMAR J [ORIGINATING SUMMONS NO: 25-208 OF 1995] 5 SEPTEMBER 1997 JUDGMENT Suriyadi Halim Omar J: The applicant is a lecturer at the MARA Institut e of Technology of the Segamat Branch in Johore and has been with the said insti tution of higher learning (hereinafter referred to as 'ITM') since 1 July 1985. On 3 December 1990 he went on leave and on 10 December 1990 for personal proceed ed to Bangladesh (despite being told not to take leave from 10 December 1990 - 1 5 December 1990). Prior to that he had submitted his leave form stating that he wanted to go overseas from 3 December 1990 until 3 March 1991. He further elabor ated that as he had a balance of 22 days of annual leave to his credit he intend ed to utilise those days for the leave period from 3 December 1990 until 28 Dece mber 1990. The subsequent 93 days were supposed to be covered by the no pay leav e. The applicant alleged that prior to his leave he was assisted by his colleagu es and encouraged by the administrative section of ITM to pursue his dreams to g o overseas. What with no indication that his application of no pay leave would b e rejected, he then left the country despite being informed that for the period 10 December 1990 - 15 December 1990 all leaves had been cancelled. When he retur ned he was informed that disciplinary proceedings would be taken against him and four charges would be preferred. In a gist the essence of the four charges were : 1. that he had been absent from work without permission or with good reason; 2 . that he had gone overseas from 29 December 1990 until 30 March 1990 without pe rmission from his head of department; 3. that he had ignored the direction of th e principal of ITM Melaka to return and resume duties; and 4. that he had been o n leave from 10 December 1991 until 15 December 1991 without prior permission fr om the principal of the Academic Affairs Division. The relevant provisions of th e charges of which he had contravened were pursuant to Perintah Am 4(2)(g) and ( i) of the Perintah-Perintah Am Pegawai Awam (Kelakuan Dan Tatatertib) (Bab D) 19 80 punishable under Perintah Am 36 of the same Bab D . An enquiry was held somet ime on 14 May 1991 regarding the above charges. He was found to have contravened those provisions culminating in him suffering a loss of salary from 29 December 1990 until 31 March 1991 and reduction of rank to that of an ordinary lecturer (A20), drawing a mere salary of RM1,770, with effect from 15 March 1991 for two years. The results of this enquiry were communicated to him vide a letter dated 15 May 1991. The order sought for in this Originating Motion for a certiorari wa s to quash the decision as communicated in that 15 May 1991 letter which reveale d that the applicant had been found guilty and sentenced under Perintah Am 36(d) (h) Perintah-Perintah Am Pegawai Am (Kelakuan dan Tatatertib) (Bab D) 1980 . No doubt this remedy of certiorari which is discretionary in nature is in respect o f decisions or actions of public bodies irrespective of the nature of their func tion be it administrative, judicial or quasi-judicial. In fact the underlying

126 principle is that the jurisdiction of the High Court to grant an order of certio rari is supervisory in character and is exercisable over all inferior tribunals (see Haji Laugan Tarki bin Mohd. Noor v. Mahkamah Anak Negeri Penampang [1988] 2 MLJ 85 ; An Introduction To Administrative Law by Wan Azlan Ahmad and Mohsin Hi ngun ). Having perused the available documentation I found the following factors to be the basis of the allegations of this application, namely that: 1. Encik A rshad bin Hashim was the complainant of this case; 2. as he was the complainant it was improper for him to sit as the chairman in the disciplinary proceedings; 3. natural justice was not meted out to the applicant; and 4. no reasons had bee n provided as per the letter dated 15 May 1991. Whether the above allegations we re correct and the complaints justified, it was therefore necessary for me to sc rutinise the available evidence and go on a sojourn of the chronology of events leading to the eventual outcome on 14 May 1991 when the disciplinary board met. Below is the chronology of dates provided by documents which are intertwined and laced with these facts. 1. Exhibit B, the leave application form dated 13 Novem ber 1990. 2. ITM B (1st letter) dated 14 November 1990 from Sabariah bte Mahat ( Ketua Kursus) who felt inclined not to agree with the leave application. 3. ITM B (3rd letter) dated 16 November 1990 from En. Arshad bin Hashim as the Pengetua ITM Cawangan Melaka rejecting the dual application to go overseas and go on lea ve without pay. 4. ITM D, a letter dated 23 November 1990 from the director of I TM permitting him only a yearly leave of 22 days and rejecting the no pay leave application. 5. ITM C dated 23 November 1990, a circular stopping all lecturers taking leave from 10 December 1990 - 15 December 1990. 6. ITM B (2nd letter/memo ) dated 1 December 1990 revealing the Timbalan Pengetua telling En. Arshad bin H ashim that he had told the applicant not to go on leave from 10 December 1990 15 December 1990 7. ITM F, a letter from Bangladesh written by the applicant dat ed 7 January 1991 requesting ITM to reconsider his leave application. 8. ITM P, a letter dated 8 January 1991 from the Penolong Pendaftar Kanan ITM Melaka direc ting him to return to work or face disciplinary proceedings. 9. ITM H, a memo da ted 15 January 1991 from the Ketua Kursus complaining of pressure of work to oth ers due to the non-presence of the applicant. 10. ITM Q/Exh. D dated 7 February 1991 signed by En. Arshad bin Hashim as the Pengetua merangkap Pengerusi Jawatan kuasa Tatatertib Kakitangan Cawangan Melaka informing the applicant that a repor t had been received from the Timbalan Pengetua (HEA) and that a disciplinary pro ceeding was in the offing for purposes of terminating his services. 11. Exhibit E/G, a letter dated 8 April 1991 from En. Arshad bin Hashim as the chairman of t he disciplinary board to the applicant confirming that disciplinary proceedings will be initiated against him. 12. ITM R, a letter dated 19 April 1991 from the applicant to En. Arshad bin Hashim replying to Exh. E. 13. Exhibit F, the minute s of the persons in attendance on 14 May 1991 for purposes of the disciplinary p roceedings chaired by En. Arshad bin Hashim.

127 14. Exhibit I, a letter dated 15 May 1991 from En. Arshad bin Hashim informing h im of the outcome of the disciplinary proceedings (the relevant letter to be qua shed). 16. ITM S, a letter dated 22 May 1991 from the applicant submitting his a ppeal as regards the decision made on 14 May 1991. After considering the facts p articularly ITM Q/Exh. D, I was satisfied that the complainant in this case was the Timbalan Pengetua (HEA), with En. Arshad bin Hashim being the chairman of th e disciplinary board. The assertion that the complainant and the chairman was on e and the same person was found to be baseless. With allegation 1 being incorrec t, it followed that allegation 2 too was unfounded. We now proceed to allegation s 3 and 4. However defiant the applicant was to his employers and however irresp onsibly indifferent he was to the specific needs of the students and that of the country in general, with the respondent possibly nuturing a tinge of desire to punish him and to show him "who's boss", the requirements of the law must still be respected. Among the requirements is his right to be heard with fairness, any departure of which, particularly that which rejects the principles of natural j ustice, will invite a judicial review at the least (see Ridge v. Baldwin [1964] AC 40 ). Lord Diplock in Mahadevan v. Anandarajan&Others [1974] 1 MLJ 1 , 3 prop ounded that "All that natural justice requires is that the person charged with m aking the decision should act fairly". My duty without more and central to the i ssue at hand, was to ensure that the decision arrived at was pursuant to a fair hearing, within the ambit of the powers vested in me by Art. 121(1) of the Feder al Constitution ). So, what is natural justice? Jemuri Serjan SCJ in Shamsiah bt e Ahmad Sham v. Public Services Commission, Malaysia&Anor [1990] 3 MLJ 364 at p. 366 (para. E-G) enunciated that: Natural justice is a concept which involves co mmon law rules, namely, (a) the right to be heard (audi alteram partem): the pri nciple that a decision-maker must afford an opportunity to be heard to a person whose interests will be adversely affected by the decision, and (b) the rule aga inst bias (nemo debet esse judex in propria sua causa): the principle that a dec isionmaker must be disinterested or unbiased in the matter to be decided. (see a lso B. Surinder Singh Kanda v. The Government Of The Federation Of Malaya[1962] 28 MLJ 169 ; Phang Moh Shin v. Commissioner Of Police&Ors. [1967] 2 MLJ 186 ). T o summarise, natural justice essentially may be split into two parts viz. the ri ght to be heard by the aggrieved party and that biasness against him was not det ected during the trial. It is only after that that fair play may operate effecti vely (see Paul Wallis Furnell v. Whangarei High Schools Boards [1973] AC 660 ). Right To Be Heard To elucidate this point I refer to B. Surinder Singh Kanda at p. 172 para. I right where Lord Denning remarked: If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the a ccused man to know the case which is made against him. He must know what evidenc e has been given and what statements have been made affecting him : and then he must be given a fair opportunity to correct or contradict them. M.P. Jain Edn., 1996 Vol. 1 in Treatise On Administrative Law at p. 321 wrote: The right of bein g heard may be of little value if the individual is kept in the dark as to the e vidence against him and is not given an opportunity to deal with it. The right t o know the material on which the authority is going to base its decision is an e lement of the right to

128 defend oneself. If without disclosing any evidence to the party, the authority t akes it into its consideration, and decides the matter against the party, then t he decision is vitiated for it amounts to denial of a real and effective opportu nity to the party to meet the case against him. (see also Ketua Pengarah Kastam v. Ho Kwan Seng [1977] 2 MLJ 152 ; J.P. Berthelsen v. Director General Of Immigr ation, Malaysia&Ors. [1987] 1 MLJ 134 ). In the present case in no uncertain ter ms the applicant had been given all the necessary warnings, the opportunity to r ehabilitate and the opportunity to explain his actions (see the exhibits). He mu st know that all the available evidence will point to him having left the countr y defiantly. He had knowledge that: 1. vide letter dated 23 November 1990 (ITM D ) he was only granted 22 days leave; 2. his no pay leave of 93 days application was rejected; 3. as per ITM B (2nd letter/memo) dated 1 December 1990 supported by circular ITM C dated 23 November 1990 all leaves from 10 December 1990 - 15 D ecember 1990 were cancelled; 4. no reprieve of leave whether for the five days o r the no pay leave were granted to him; 5. he left for Bangladesh without prior approval; 6. the telegrams and letters received from Malaysia merely confirmed t he fact that his exit out of Malaysia was without prior permission; 7. by so ask ing for the extension of leave it merely confirmed his recalcitrant behaviour; 8 . disciplinary proceedings were impending when he returned; 9. apart from ITM R there was no reply to the show cause letter; and 10. he never requested for any oral hearing. Apart from the above knowledge, vide ITM R dated 19 April 1991 he was supposed to have answered all the accusations levelled against him, thus ful filling the precondition of an opportunity of being heard. This opportunity as e nvisaged in Art. 135(2) of the Federal Constitution would include the opportunit y to deny his guilt and establish his innocence, the opportunity to defend himse lf by refuting the evidence to be considered against him and to make the pertine nt representations regarding any proposed punishment ( Isman bin Osman v. Govern ment Of Malaysia [1973] 2 MLJ 143 ). The reasons for the disciplinary proceeding s were so obvious that it would have been absurd for him to even suggest that he was unaware or even caught unprepared for the proceedings. The facts showed tha t not only was he obtrusively indifferent to the instructions of his superiors b ut had defiantly left for Bangladesh. Despite being sufficiently warned (ITM P, ITM A and Exh. E/G) he still took a dim view of the outcome of the disciplinary proceedings by not requesting for documents nor for an oral hearing as reflected in his letter. Had he requested for an oral hearing but rebuffed perhaps he wou ld have been on stronger grounds as he then could allege that he was deprived of that right of hearing (see Ghazi b. Mohd Sawi v. Mohd Haniff b. Omar, Ketua Pol is Negara, Malaysia&Anor [1994] 2 CLJ 333 ; Lloyd and Others v. Mcmahon [1987] 1 AC 625/706 ). (In Najar Singh v. Government of Malaysia&Anor. [1974] 1 MLJ 138 the court held that the right of hearing did not necessarily mean the right of b eing heard orally). His letter merely justified his shocking behaviour without r eally rebutting the charges. The Rule Against Bias In B. Surinder Singh Kanda th e Privy Council at p. 173 remarked that the court would not go into the likeliho od of prejudice. The risk of it was enough. This is so as the aggrieved party

129 will definitely feel that he had been unfairly treated and placed in a disadvant ageous position in the event the other party had access to the arbitrator withou t his knowledge. In the case of De Souza Lionel Jerome v. Attorney General[1993] 1 SLR 882 under Held 1 is written these findings: The right test for determinin g the existence of bias on the part of a tribunal or any member of it is 'reason able suspicion of bias' seen through the eyes of a reasonable man with knowledge of all matters in evidence before the court where the decision of the tribunal is challenged. The standard of proof of suspicion may vary with the context in w hich the question of bias arises, the context being all important. Thus 'reasona ble suspicion of bias' means suspicion that is well founded and of sufficient gr avity in the circumstances of the case. In Rohana bte Ariffin&Anor v. Universiti Sains Malaysia [1989] 1 MLJ 487 the complainant i.e. one Mr. Ogle was in fact p resent throughout the deliberations and decision. On this point Edgar Joseph Jr. at p. 492 endorsed the words of Scott LJ as per the case of Cooper v. Wilson an d Others [1937] 2 KB 309 at p. 344 which reads: It makes no difference whether h e then discussed the case with them or not; the risk that a respondent may influ ence a court is so abhorrent to English notions of justice that the possibility of it or even the appearance of such a possibility is sufficient to deprive the decision of all judicial force, and to render it a nullity. In the present case, I found for a fact that the complainant was not En. Arshad bin Hashim and as su ch any indiscretion on the part of the latter as alleged was non-existent. Had t he complainant been one and the same person I would have been inclined to immedi ately agree with the applicant's complaints in that there was bias. Whether appl ying the test of De Souza Lionel Jerone v. Attorney General which is more string ent than Cooper v. Wilson or that of the latter, neither did I find any suspicio n of bias in this case that could be construed as well founded and sufficiently grave, nor its presence apparent. Distinguishable too to the case of Rohana bte Ariffin , is that no complaint was lodged before me regarding the presence of th e Timbalan Pengetua at the proceedings. It is therefore not encumbent on me to p robe into irrelevant territories which the contesting parties have not complaine d about. It must be an implicit acknowledgment by the applicant that the complai nant was merely present during the meeting session and not during the deliberati on and decision making session. Looking at it in an oblique way, the fact that h e was not dismissed showed that the Board had acted with extreme caution and had deliberated the facts to his advantage. On this score too the issue of the fear of the presence of bias is without foundation and therefore non-existent. The L ack Of Explanation In The Letter Dated 15 May 1991 The court in Rohana bte Ariff in enunciated that in certain cases reasons must be provided for despite the str ong opinion of Bhagawati J in Siemens Engineering and Manufacturing Co. v. Union of India AIR [1976] SC 1785 who remarked that in every quasi-judicial order rea sons must be supplied. By having this view watered down by Rohana bte Ariffin I take it that it was a recognition by his lordship Edgar Joseph Jr FCJ that such a requirement of supplying reasons in every case would place administrative bodi es in untenable positions. To supply reasons even for obvious cases not only wil l create a mammoth breakdown in the administration of discipline but will be str etching the provision of s. 4(2) Perintah-Perintah Am Pegawai Awam (Kelakuan Tat atertib) Bab "D" 1980 to its limits. A perusal will show that there is absolutel y no statutory or procedural requirement that reasons must be offered for all ca ses. It is only by reason of the dictation of natural justice, with the sole pur pose of

130 rendering an aggrieved person assistance in his desire to appeal, which is an on going exercise in the disciplinary proceeding process, that some flexibility is permitted. It is inevitable in our system of justice, built within it, is the ri ght of appeal or a system of supervision. It therefore follows that any decision emanating from a judicial or quasi-judicial body will invariably involve some f orm of appeal. With that being so, to acquiesce to the suggestion of having to s upply reasons for all cases, regardless of its complexity, will naturally lead t o the neutralising of Rohana bte Ariffin. Moreover, apart from affecting the adm inistrative machinery negatively, a mockery of the law may be the unhappy result . As it were I could not detect any authorities that have conclusively affirmed that failure to supply reasons in every decision must be equated with unfairness (see Padfield and Others v. Minister of Agriculture, Fisheries and Food and Oth ers [1968] AC 997 ; Minister of Labour, Malaysia&Chan Meng Yuen and Another Appe al [1992] 2 MLJ 337 ). One must also bear in mind that at common law there is ab solutely no general duty requiring the adjucating bodies to provide reasons for their decisions. Surely the application at hand must be one of the category of c ases where the adjudicating body is not required to supply reasons as envisaged by Edgar Joseph Jr FCJ. Any reasonable person could have guessed correctly that the applicant here could not have escaped the impending disciplinary proceeding. In an employment contract in particular where a potential recruit is a professi onal it is a misnomer to expect the latter to be unaware of the preconditions of his recruitment. It is only reasonable to presuppose knowledge of the employmen t sought, the duties and benefits of parties, responsibilities and its perimeter s, and sanctions for non-adherence of orders. For the latter factor of sanctions , it hardly need be stressed that the applicant had worked 12 years with ITM, an d to pretend naivety and ignorance of the repercussion of any act of disobedienc e certainly lacked imagination. The results therefore were not unexpected bearin g in mind his refusal to reply specifically to the charges, inspite of the abund ant damning evidence which showed his ever persistent defiance of the respondent when he took off for his overseas sojourn. It is a fact too that apart from thi s case suffering a lack of complexity as regards the facts the sentence too lack ed severity. The withdrawal of his salary for the period of 29 December 1990 unt il 31 March 1991 was no loss to him as it was in tandem with his request for a n o pay leave during that period. With regard to the second sentence he was merely reduced to an A20 lecturer for two years beginning from 15 May 1991 in spite of the initial information that he was supposed to face the severest of sentence i .e. a dismissal as provided in the general orders. On the above reasons I reject ed the application of certiorari with costs. With the main issue out of the way permit me to detract slightly to Encl. 6 in which is found the affidavit of Puan Jamilah bte Mohd Radzi, counsel for the respondent. She had clearly affirmed th at she was the solicitor and representative of the respondent in this applicatio n, with the facts attested to, either based on her knowledge and/or obtained fro m the documents kept by her. By this affirmation I was satisfied that not only w as she authorised but also aware of the facts as affirmed (see Sabah Bank Bhd. v . Pemborong Keningau Sdn. Bhd.&8 Ors. [1991] 3 CLJ 2590 ). On a reflection, what if I had rejected her affidavit in the event I had found certain requirements w anting? Without her affidavit the respondent would have been put in an embarrass ing position as only a minimum number of documents were submitted by them perhap s with the foresight of depending largely on the exhibits attached to her affida vit. No doubt this knowledge of the respondent's counsel fell squarely within O. 41 r. 5 of the Rules of the High Court 1980 but what created the consternation within me was the fact that despite this case being a highly contentious matter she unwittingly had affirmed an affidavit that was to be used in the proceedings . By virtue of that act she had exposed herself to many legal

131 possibilities especially in relation to information which she was privy to, with out having to refer to documents or possibly to information prior to her retenti on, thus qualifying as a witness. The Legal Profession Act 1976 which provides t he Legal Profession (Practice and Etiquette) Rules 1978 in particular r. 28 no a dvocate or solicitor is to appear in a case where he or she is a witness. In thi s case Puan Jamilah would have found herself in an embarassing position had the applicant applied to have her cross-examined for some reason or other e.g. where the cross-examination would be for a collateral purpose. No party in law may be denied that right to cross-examine the maker of an affidavit if permissible und er the law particularly when the situation warrants it. Under O. 38 r. 2(3) in a ny cause or matter ... on ... evidence ... given by affidavit ... the court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit (see Comet Products U.K. Ltd v. Hawkex Plas tics Ltd. and Another [1971] 2 QB 67 ; Gomez v. Gomez [1969] 1 MLJ 228 ). Courts through case laws have consistently harped on the undesirability of solicitors affirming and filing contentious affidavits in matters in which they are themsel ves counsels ( Million Group Credir Sdn. Bhd. v. Lee Shoo Koon&5 Ors. [1985] 1 C LJ 181 ; Seng Huat Hang Sdn. Bhd. v. Chee Seng&Co. Sdn. Bhd. [1986] 1 MLJ 348 ; Malayan Banking Bhd. v. Chua Keng Leng T/A New Fortune Enterprise [1991] 3 CLJ 2 522 ; Perwira Affin Bank Bhd (Dahulunya Dikenali Sebagai Perwira Habib Bank Mala ysia Bhd) v. Lorrain Esme [1996] 4 MLJ 656 ). It is on those above reasons that counsels should take heed and distance themselves from passionate involvements s o as to avoid being placed in awkward positions that could compromise their repr esentative capacity much to the detriment of their clients. In this case it was only by chance that she was not dragged into the affray despite her unique posit ion.

132 [1982] CLJ 228 (Rep) [1982] 1 CLJ 150a MOHD. RAIHAN IBRAHIM&ANOR. v. THE GOVERNMENT OF MALAYSIA&ORS. FEDERAL COURT, KUA LA LUMPUR RAJA AZLAN SHAH CJ (MALAYA) SYED OTHMAN FJ SALLEH ABAS FJ [CIVIL APPEA L NO. 179 OF 1979] 6 OCTOBER 1980&21 FEBRUARY 1981 TORT: Negligence - Duty of te acher to exercise supervision over pupils - Guidelines School premises, class ro om or play ground - Degree of supervision - Proper instructions of use of agricu ltural tools - Conditions of tools - Whether teacher guilty of negligence Warnin g to pupils - Whether sufficient warning given. This was appeal against the deci sion of the High Court, Seremban which dismissed the appellant's claim for damag es in respect of personal injuries suffered by him during a practical agricultur al class on 15 March 1971. The appeal was limited to the question of liability o nly as in the event of liability against in the event of established general dam ages of RM60,000 had already been agreed to by the parties. The appellant was at the material time a form one pupil of Sekolah Menengah Inggeris, Port Dickson. On the day in question, there were about 37-38 pupils who took part in the pract ical agricultural class under the supervision of a lady teacher, Mrs. Hau Kan Yo ng. The pupils who were simply told to pick up a agricultural tools such as spad es, changkols and baskets from the store-room were marched to a place to complet e making vegetables beds. The appellant used a spade to raise the level of the b ed while his fellow pupil Raja Aminuddin who worked on the next bed used a chang kol with a loose blade and with a 5 foot long handle to raise the earth. As they were very close to each other, the appellant asked Raja Aminuddin not to wield his changkol until he had completed levelling but Raja Aminuddin told the appell ant that he could not care less and continued to wield it and the appellant was accidentally struck on the head by the changkol. The teacher Mrs. Hau Kan Yong w ho was sitted about 4 yards away from the appellant under a tree was then not lo oking at the pupils and only turned to the direction when she heard someone call ing out for her and she saw the appellant holding his head and bleeding. The app ellant suffered a 2275 lacerated wound over the right parietal bone and a depres sed fracture of the same bone posteriorly. The appellant sued the respondent for damages on the ground that they had failed to provide supervision of the pupils who participated in the gardening class and also for having failed to instruct the said Raja Aminuddin in the proper use of a changkol. The teacher under cross examination at the trial said that she had generally warned the pupils to be car eful and not to fool around when using the instruments. She admitted that as a s afety measure either Raja Aminuddin or the appellant should not have been where they were as the appellant might be hit. Her excuse was that she did not see the appellant there before the accident and had she seen him she would not have let him to remained there. |229| Held: [1] In this case there was no doubt that Raj a Aminuddin was negligent, but the Court was not concerned with his responsibili ty, what it had to determine was whether the

133 respondents were guilty of negligence for not having provided proper supervision and for failing to give proper instruction as to be use of agricultural tools: [2] It is settled law that a school teacher was under a duty to exercise supervi sion over his pupils when they were in the school premises, either in the class room or the playground. The degree of supervision depended on the circumstances of each case, such as the age of the pupils and what they were doing at the mate rial time. If the teacher knew that the pupils were engaged in doing acts which were likely to cause injuries to one another, the teacher was under a duty to ta ke steps to ensure the safety of the acts. [3] The mere warning to the pupils to be careful did not amount to proper supervision, especially when it was establi shed that the pupils were of young age and in jovial mood. [4] This was not a ca se where the teacher, as in the case of Government of Malaysia&Ors. v. Jumat bin Mohamad&Anor [1977] 2 MLJ 103 , had provided sufficient supervision but could n ot prevent the injury from being inflicted because of the stupidity of a pupil w hose exuberant behaviour was unknown to the teacher. But this was a case where a teacher appreciating that the boys were handling dangerous instruments had not given sufficient warning as to their use nor had she taken steps to have seen th at pupils were positioned within such distance between them to avoid injuries fr om being inflicted. There is a world of difference between the use of a changkol and that of a pencil. [5] The respondents were therefore negligent for failing to take reasonable and proper steps to prevent the appellant under their case fr om sustaining the injury and that their teacher did not check the condition of t he garden tools nor provided a safe system of holding the gardening class. Case referred to: Government of Malaysia&Ors. v. Jumat bin Mohamed&Anor. [1977] 2 MLJ 103 For the appellant - Dato Wong Seng Chow; M/s. Shearn Delamore&Co. For the 1 st and 3rd respondents - Mah Weng Kwai, SFC; M/s. Nahappan, Muthu&Peri For the 2 nd respondent - S. Periasamy.

134 [1983] CLJ 248 (Rep) [1983] 2 CLJ 74a LOOT TING YEE v. TAN SRI SHEIKH HUSSEIN SHEIKH MOHAMED&ORS. FEDERAL COURT, KUALA LUMPUR SUFFIAN LP SALLEH ABAS FJ ABDUL HAMID OMAR FJ [CIVIL APPEAL NO. 12 OF 19 81] 19 FEBRUARY 1982 |248| JUDGMENT Suffian LP (Malaysia): This is an applicatio n by the appellant for conditional leave to appeal to His Majesty from a judgmen t of this Court. |249| The appellant is a teacher at Sekolah Rendah Jenis Kebang saan (China) Naam Kheung, Batu 3275, Jalan Cheras, Kuala Lumpur. He was ordered to go on transfer to Sekolah Rendah Jenis Kebangsaan (China) Chung Hwa, Jerteh, Trengganu. He refused to comply with the transfer order. He appealed to the educ ation authority to cancel the order, but was not successful. On 11 April 1980, t he Secretary General of the Ministry of Education directed him to present himsel f to the Headmaster of the school in Jerteh as early as possible. He again refus ed. On 14 April 1980, he filed a suit in the High Court, Kuala Lumpur, asking fo r a number of declarations, the main one being a declaration that the purported transfer was void and of no effect. While the suit was still pending the Educati on Service Commission on 9 June 1980, sent him a notice to show cause why he sho uld not be dismissed from the teaching service. The notice also carried several charges against him relating to acts allegedly in violation of several provision s of the Public Officer (Behaviour and Discipline) Regulations, also known as Ge neral Orders Cap. D. The several charges against the appellant are concerned pri marily with his not complying with the transfer order and with his subsequent co nduct. On 29 September 1980, the appellant applied to the High Court under O. 52 (3) of the Rules of the High Court 1980 to commit the eight members of the Educa tion Service Commission, the respondents, for alleged contempt of Court. The gro unds for the application for committal can be summarized briefly as follows: (1) knowing that there was a pending suit in the High Court for declarations on the purported order of transfer, the respondents had by sending the Notice to show cause prejudged the issues the subject matter of the pending suit; (2) the actio n of the respondents clearly interfered with the true course of justice and the lawful process of Court; (3) the actions of the respondents were clearly calcula ted to hinder the Court in the administration of justice, adversely affecting th e authority and dignity of the Court; and (4) the action of the respondents clea rly prejudiced the merits of the applicant's case pending before the Court. Wan Suleiman, FJ who sat in the High Court to hear the application held: that on the score of the restricted scope of publication alone, there cannot be contempt fo r by no stretch of the imagination can such publication pose any sort of risk of interference with the proper administration of justice. What was called by appl icant's Counsel publication was

135 in fact intimation to the applicant of charges of a departmental character propo sed to be brought against him. And in another passage of his judgment he said: E xamined in the light of Lord Diplock's definition of contempt of Court cited ear lier [i.e. Attorney-General v. Times Newspaper Ltd. [1973] 3 All ER 54 ] the con duct of the Education Service Commission in relation to the civil suit (which) a pplicant has filed neither tends to undermine the system for the administration of justice by Courts of law and the maintenance of public confidence in it nor d oes it inhibit citizens from availing themselves of that system for the settleme nt of their disputes. On appeal the Federal Court agreed with the learned trial Judge. The appellant being dissatisfied is desirous of appealing further to His Majesty - hence this application for leave to so appeal. |250| Mr. Lim Beng Choo n for the respondents opposed the application on the ground that the decision ap pealed from was a decision as to the effect of the Constitution and therefore ba rred by s. 74 (3)(a) of the Courts of Judicature Act . Alternatively he argued t hat the decision was one relating to a criminal matter and therefore, since the repeal by Act A328 in 1976 of para. (c) of sub-section (2) of s. 74 , no longer appealable to His Majesty. Finally he argued that the case was not from its natu re a fit one for appeal; but he did not press this last ground. Mr. Karpal Singh on behalf of the appellant argued that the decision appealed from did not invol ve interpreting the Constitution. In answer to the alternative argument he said that contempt was a civil matter, for the application to commit the respondents was made under O. 52 of the Rules of the High Court and if the respondents were committed they would be sent to a civil prison and the expenses of their detenti on would have to be borne by the appellant, not the Government. Lastly he said t hat this case is from its nature a fit one for appeal within para. (iii) of subsection (1) of s. 74 and therefore appealable. Thus the issue here is - whether or not the appellant may appeal beyond the Federal Court. Clearly if the matter is criminal, he may not. With respect we are of the opinion that the learned tri al Judge's decision was in a criminal matter and therefore there is no right of appeal beyond the Federal Court. In O'Shea v. O'Shea and Parnell ex parte Tuohy [1890] 1 PD 56 , the Court of Appeal held that an application by a party to a ci vil action for an attachment against a person not a party to the action, for con tempt of Court in the publication of comments calculated to prejudice the fair t rial of the action, is a "criminal cause or matter" within the meaning of s. 74 of the Judicature Act, 1973 ; and no appeal from an order made upon such applica tion could be brought to the Court of Appeal. There was a divorce suit and appli cation was made by notice of motion for a writ of attachment for contempt of Cou rt against Tuohy, for printing and publishing an article calculated to prejudice the petitioner in the divorce suit in the eyes of the public and to discredit h im in the assertion of his right in the Court. Cotton LJ said at p. 63: It is co nceded that [what Tuohy did] was a wrongful act, otherwise there could be no fin e or imprisonment. And when you concede that it is a wrongful act, you find, alt hough [the motion] is headed in the divorce action, it is not a proceeding in th e action ... , but an application to punish an attempt to induce the jury not to try the case properly, which is as much a criminal act as an attack upon the Ju dge himself.

136 In Ambard v. AG. for Trinidad and Tobago [1936] AC 322 Lord Atkin delivering the judgment of the Privy Council said at p. 329: ... interferences [i.e. with the administration of justice - whether they be interferences in particular civil or criminal cases] when they amount to contempt of Court, are quasicriminal acts, and orders punishing them should, generally speaking, be treated as orders in cr iminal cases ... The Singapore High Court has also held that contempt of Court i s a criminal matter. In Re Abdul Aziz's Application [1964] MLJ 64 Rose CJ said a t p. 65: It would seem to be clear that ... contempt of Court ... has long been regarded as a criminal matter. The observations of Lindley LJ and Lopes LJ in O' Shea v. O'Shea and Parnell , at pp. 64 and 65 are in point. As also is an observ ation of Wills J in the King v. Parke [1903] 2 KB 441 |251| at p. 441 where he s ays that procedure in matters pending on the civil side 'would afford no assista nce in the present discussion'. By this he must clearly be taken to have meant t hat contempt of Court falls on the criminal side of the jurisdiction. In PP v. L ee Ah Keh&Ors. [1968] 1 MLJ 22 Ali J, as he then was, recognized that contempt o f Court is a criminal offence, certainly if committed in the face of the Court. He cited with approval at p. 23 the head-note to In re Pollard [1868] 5 Moore NS . 111 which reads in part as follows: A contempt of Court being a criminal offen ce ... This is not to say however that all contempt are criminal, for, as stated by Halsbury's Laws of England, 4th Edn., para. 2 : Contempt of Court may be cla ssified either as (1) criminal contempt, consisting of words of acts obstructing , or tending to obstruct or interfere with, the administration of justice or (2) contempt in procedure, otherwise known as civil contempt, consisting of disobed ience to the judgments, orders or other process of the Court, and involving a pr ivate injury. The alleged contempt here is clearly of the first and not of the s econd kind. The fact that the application here was made under O. 52 of the Rules of the High Court, 1980 , and that if committed the respondents would be kept i n a Civil Prison at the expense not of Government but of the applicant does not in our judgment make any difference. As there is no appeal beyond the Court, thi s application is dismissed with costs.

137 [1993] 4 CLJ 279 PUBLIC PROSECUTOR v. SHARI ABD. WAHAD HIGH COURT, TAIPING DATO' HAJI ABDUL MALIK BIN HAJI ISHAK JC [CRIMINAL APPEAL NO. 51-189-92] 27 JUNE 1993 SENTENCE: Rape Statutory rape - Section 376 Penal Code - Trial Court sentenced accused to 5 ye ars with effect from date of sentence - Accused thought victim was above 15 year s of age in view of victim's voluptuous body - Accused was above 50 years of age - Rotan was spared - Section 289(c) Criminal Procedure Code. This was an appeal by the public prosecutor against the inadequacy of sentence passed by the Sessi ons Court, Lenggong on the respondent who was convicted for statutory rape under s. 376 of the Penal Code. The respondent also filed an appeal against his convi ction and sentence of 5 years imprisonment with effect from date of sentence. He ld: The Court did not interfere with the sentence imposed by the Sessions Court Judge as it had not been shown to the satisfaction of the appellate Court that t he sentence was manifestly excessive or inadequate or that in fixing the sentenc e, the lower Court had failed to adequately consider all the relevant factors ei ther for or against the respondent. [Conviction and sentence affirmed. Order accordingly]. Case referred to: PP v. Teh Ah Cheng [1976] 2 MLJ 187 (refd) Legislation referre d to: Criminal Procedure Code, s. 289(c) Penal Code, s. 376 For the public prose cutor - Murtazadi, DPP For the respondent - Ravi; M/s. Xavier, Ravi&SarjitSidhu

138 [1995] 3 CLJ 386 NMY lwn. PENGETUA, PUSAT PEMULIHAN GADIS, TAMAN SERI PUTERI, REMBAU, NEGERI SEMB ILAN MAHKAMAH TINGGI MALAYA, KUALA LUMPUR TUAN HASHIM BIN DATO' HAJI YUSOFF PK [ PERMOHONAN JENAYAH NO. 44-59-1994] 29 DISEMBER 1994 |388| PENGHAKIMAN Hashim bin Dato' Haji Yusoff PK: Ini adalah suatu permohonan di bawah Bab XXXVI Kanun Pros edur Jenayah (KPJ) dan Perkara 5(2) Perlembagaan Persekutuan untuk suatu perinta h habeas corpus oleh Pendek bt Ahmad supaya Mahkamah ini membebaskan cucunya, se orang gadis juvana yang berumur 16 tahun 3 bulan (Selepas ini disebut "NMY" demi untuk menjaga kepentingan juvana ini) pada masa ini, daripada Pusat Pemulihan G adis, Taman Sri Puteri, Rembau, Negeri Sembilan. Fakta kes, seperti yang terdapa t daripada affidavit Pendek bt Ahmad, Mumtaj Begum bt Mohd Sultan dan juga NMY a dalah seperti berikut: Pada 24 Oktober 1994 bapa kepada NMY, Mohd Yusop bin Baij uri, telah membuat satu permohonan, seperti eksibit "MB1", di bawah s. 8(2) Akta Perlindungan Wanita dan Gadis 1973 (selepas ini disebut "Akta") di Mahkamah Maj istret, Kuala Lumpur, supaya NMY diletakkan di bawah jagaan pelindung di tempat perlindungan Jabatan Kebajikan Masyarakat. Di atas permohonan ini Majistret berk enaan pada hari yang sama, telah mengarahkan supaya satu laporan penyiasatan men gikut s. 8(3) Akta dikemukakan kepada Mahkamah yang sama pada 23 November 1994. Sementara menunggu laporan penyiasatan tersebut Mahkamah Majistret berkenaan tel ah mengeluarkan satu waran tahanan untuk menempatkan NMY di Taman Seri Puteri, R embau, Negeri Sembilan di bawah s. 8(2) Akta seperti di eksibit "MB2". Pada 23 N ovember 1994, laporan penyiasatan telah dikemukakan kepada Mahkamah Majistret be rkenaan seperti yang diarahkan pada 24 Oktober 1994. Satu laporan akhlak bapa NM Y telah juga dikemukakan kepada Mahkamah Majistret pada hari yang sama. Semasa p endengaran dijalankan di dalam kamar Majistret, Peguam Encik Zulkifli Nordin dan Encik Karpal Singh telah memberitahu Majistret berkenaan bahawa mereka mewakili Pendek bt Ahmad dan memohon supaya Mahkamah Majistret mengeluarkan satu perinta h di bawah s. 8(4)(b) Akta supaya NMY diserahkan kepada Pendek bt Ahmad. Peguam Zulkifli Nordin seterusnya memohon kepada Mahkamah Majistret supaya satu laporan akhlak disediakan oleh Jabatan Kebajikan Masyarakat mengenai Pendek bt. Ahmad. Bagi tujuan ini Mahkamah Majistret berkenaan telah menangguhkan kes ini kepada 3 0 November 1994. Sementara itu Mahkamah Majistret melanjutkan waran tahanan bert arikh 24 Oktober 1994 ("MB2") kepada 30 November 1994. Pada 30 November 1994 lap oran latar belakang Pendek bt Ahmad dikemukakan kepada Mahkamah Magistret. Lapor an tersebut tidak menyokong permohonan Pendek bt Ahmad. Di |389| peringkat ini P eguam bagi pihak Pendek bt Ahmad memohon untuk menyoal balas Encik Tee Ah Kow, T imbalan Pengarah Jabatan Kebajikan Masyarakat Melaka, iaitu pegawai yang menyedi akan laporan tersebut. Mahkamah Majistret seterusnya menangguhkan

139 pendengaran kes tersebut kepada pukul 3.00 petang hari yang sama untuk tujuan so al balas itu. Apabila Mahkamah Majistret bersidang semula untuk tujuan soal bala s itu, Peguam Encik Karpal Singh memaklumkan kepada Majistret bahawa bapa kepada NMY ingin menarik balik permohonan beliau ("MB1") yang asal itu. Bapa NMY menge sahkan secara lisan penarikan balik permohonan itu atas alasan lebih elok bagi b eliau menjaga anaknya sendiri dan beliau ingin menyekolahkan anaknya semula di m ana-mana tempat yang sesuai. Di peringkat ini Majistret telah menangguhkan kes u ntuk keputusannya kepada 30 Disember 1994 dan seterusnya melanjutkan lagi waran tahanan "MB2" kepada 30 Disember 1994. Di atas waran tahanan lanjutan inilah Pen dek bt Ahmad memohon supaya suatu writ habeas corpus dikeluarkan atas sebab iany a tidak sah di sisi undang-undang dan tidak berasaskan apa-apa authoriti perunda ngan yang sah oleh kerana penahanan gadis tersebut telah melampaui tempoh masa s atu bulan daripada 24 Oktober 1994 dan juga kerana bapa gadis tersebut sendiri t elah menarik balik permohonannya yang dibuat di bawah s. 8(2) Akta dan oleh itu Majistret berkenaan tidak mempunyai bidangkuasa langsung untuk membuat perintah lanjutan tahanan gadis tersebut lagi. Kes ini agak berlainan daripada kes-kes ha beas corpus yang kerap kali difailkan di Mahkamah Tinggi oleh kerana dalam kes i ni gadis NMY yang dikatakan ditahan tanpa mengikuti peruntukan perundangan itu s endiri menyatakan melalui affidavitnya bahawa dia tidak berhasrat atau memberi k ebenaran kepada neneknya supaya dia dikeluarkan dari Taman Sri Puteri, Rembau, N egeri Sembilan. Gadis tersebut juga mengatakan dia tidak dimaklumkan oleh nenekn ya tentang permohonan ini atau mendapat persetujuannya untuk membuat permohonan tersebut. Ini dengan sendirinya menimbulkan isu samada permohonan habeas corpus boleh diteruskan apabila orang yang ditahan sendiri tidak berhasrat membuat atau menyokong permohonan sedemikian. Encik Karpal Singh menghujahkan fakta gadis te rsebut tidak berhasrat dilepaskan tidak bererti Mahkamah ini tidak boleh teruska n pendengaran prosiding habeas corpus ini. Beliau merujuk kepada perkara 5(2) Pe rlembagaan Persekutuan yang berbunyi: where complaint is made to a High Court or any Judge thereof that a person is being unlawfully detained the Court shall en quire into the complaint and, unless satisfied that the detention is lawful, sha ll order him to be produced before the Court and release him. Kuasa untuk membua t perintah yang dimaksudkan di bawah perkara 5(2) Perlembagaan itu juga terdapat di bawah s. 365 Kanun Prosidur Jenayah (KPJ). Peguam Encik Karpal Singh terus b erhujah bahawa isu gadis tidak memberikan keizinannya kepada Pendek bt. Ahmad ti dak boleh menghalang Puan Pendek bt Ahmad untuk membuat permohonan ini. Beliau m erujuk kepada kes Ram Kumar v. District Magistrate AIR 1966 Punjab 51, di mana d i muka surat 58 Hakim Mehar Singh menyatakan seperti berikut: The right that can be enforced "on his behalf" under Article 226 also shall ordinarily be the pers onal or individual right of the petitioner himself, though in the case of some o f the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. |390|

140 So that a petition for writ of habeas corpus under Article 226 can of course be filed by the person in detention or custody, and it can also be filed, on his be half, by a friend or relation for this reason that such a person is in a positio n to make an affidavit that the detenu himself is not able to move in the matter and with regard to the facts and circumstances rendering illegal the detention or custody. An utter stranger cannot possibly help the Court in this. He cannot explain why the detained person is himself not able to move in the matter and he cannnot possibly make an affidavit with regard to the facts and circumstances w hich go to show whether or not the detention or custody is illegal. The answer t o the question is that petition for writ of habeas corpus is ordinarily moved by the person detained or in custody and can be moved also by a friend or relation , but for the reasons stated, not by an utter stranger. In the rarest of cases, where the Court has been appraised of material which immediately and obviously e stablishes the illegality of the detention or custody, of course the Court will for the ends of justice, proceed to issue the necessary writ, direction or order and in such rare cases a stranger may come in, but such a contingency should ap pear to be so rare as to be almost non-existent. In the present case, the questi on as framed in broad terms does not arise, because the petitioner claims to be a friend of the detenu and there is nothing to show the contrary. Encik Karpal S ingh juga menghujahkan bahawa gadis NMY tersebut tidak boleh memberi persetujuan nya kepada suatu perintah yang salah di sisi undang-undang. Beliau merujuk kepad a Ratanlal's Criminal Procedure Code Chapter XXXVII di muka surat 445 di bawah c lasue (b) yang berbunyi: Whatever may be the defects in the procedure by which a person came to be in custody, it is sufficient answer to a rule under this clau se, if it can be shown that the person arrested was at the time of hearing of th e rule detained in legal custody. If a minor, even though with her own consent, remains, in the custody of a person, he must be held to have illegally detained her, if another person, who is better entitled in law to have the custody of the minor, desires to have that custody. Encik Karpal Singh seterusnys meminta Mahk amah ini meneliti affidavit dan surat NMY tersebut dengan berhati-hati sebab bel iau menghujahkan gadis tersebut bukan seorang yang bebas pada masa ini. Saya ber setuju adalah menjadi beban responden untuk membuktikan tahanan itu adalah sah d i sisi undang-undang lihat Karpal Singh v. Inspector General of Police&Ors. [198 9] 1 MLJ 184 di perenggan H bahagian kanan yang berbunyi: In an application for an order of habeas corpus , it is true that the detaining authority has to show that the detention of the subject is lawful. dan juga; Re Tan Sri Raja Khalid bi n Raja Harun Inspector General of Police v. Tan Sri Raja Khalid bin Raja Harun [ 1988] 1 MLJ 182. di mana Mahkamah Agung (pada masa itu) memutuskan: (1) where a person who has been deprived of his liberty challenges the detention, it is for the auhority to show that the person has been detained in exercise of a valid le gal power. Once that is shown, it is for the detainee to show that the power had been exercised mala fide or improperly or made for a collateral or ulterior pur pose.

141 Rujukan juga dibuat oleh Encik Karpal Singh kepada kes Koh Yoke Koon v. Minister of Home Affairs, Malaysia&Anor. [1988] 1 MLJ 45 di mana Edgar Joseph Jr. HMT (b eliau pada ketika itu) memutuskan: |391| Held: (4) the detention of the applican t under s. 4(1) was not procured by steps all of which were entirely regular nor was the Court satisfied that "every step in the process" which led to such dete ntion was followed with extreme regularity and therefore the Court should not al low the imprisonment to continue. To hold to the contrary would in effect mean t hat the Minister had power to continue the detention of one who is being illegal ly detained. Encik Zulkifli Nordin turut menghujahkan isu-isu yang sama dibangki tkan oleh Encik Karpal Singh. Bagi pihak responden pula Puan Zaitun Zawiyah bt P uteh, Peguam Kanan Persekutuan yang dibantu oleh Encik Bahzain bin Idris menghuj ahkan bahawa gadis NMY tersebut bukan ditahan oleh responden tetapi ditahan di t empat responden atas perintah Mahkamah Majistret bertarikh 24 Oktober 1994. - "M B1" Beliau menghujahkan bahawa perintah tahanan lanjutan daripada 23 November ke pada 30 November 1994 yang dibuat oleh Mahkamah Majistret berkenaan timbul akiba t tindakan Peguam Encik Karpal Singh dan Zulkifli Nordin sendiri yang memohon su paya Majistret membuat perintah dengan tujuan supaya Puan Pendek bt Ahmad dapat menjaga gadis tersebut. Dihujahkan sekiranya permohonan oleh kedua-dua Peguam in i tidak dibuat pada ketika itu Mahkamah Majistret mungkin akan membuat perintah sewajarnya mengikut peruntukan yang ada di bawah s. 8(4) Akta. Kes ini dirumitka n apabila bapa gadis tersebut menarik balik permohonannya yang asal itu pada 30 November 1994 apabila Mahkamah Majistret bersedia untuk mendengar permohonan itu seterusnya. Di sini Puan Zaitun Zawiyah menghujahkan walaupun bapa gadis terseb ut telah menarik balik permohonan asalnya di bawah s. 8(2) Akta Majistret yang b ijaksana masih boleh bertindak di bawah s. 8(1) Akta yang sama. Untuk memudahkan penjelasan perlu disebutkan di siini peruntukan di bawah s. 8(1) hingga (4) Akt a yang berbunyi seperti berikut: 8(1) Any female person under the age of twentyone years whom the Court of a Magistrate believes to have been ill-treated or ne glected and exposed to moral danger and to need protection, may subject to subse ction (6) by warrant issued by the Court be ordered to be removed to a place of refuge and there detained until an enquiry under subsection (3) to enquire into the circumstances of her case has been completed and a report of the enquiry has been submitted to the Court for determining whether any warrant or order may be made under subsection (4) in respect of such female person. (2) Where the lawfu l guardian of a female person under the age of eighteen years requests the Court of a Magistrate in writing to detain such female person in a place of refuge on the ground that the lawful guardian cannot exercise proper control over her and as a result she is exposed to moral danger the Court may by warrant issued by t he Court order such female person to be removed to a place of refuge and there d etained until an enquiry under subsection (3) to enquire into the circumstances of her case has been submitted to the Court for determining whether a warrant un der paragaraph (a) or any order under paragraph (b) or (d) of subsection (4) may be made in respect of such female person.

142 (3) Every enquiry for purpose of s. 7 or subsection (1) or (2) of this section s hall be made by the protector and completed within a period not exceeding one mo nth from the date of the admission of such female person to the place of refuge pursuant to s. 7 of subsection (1) or (2) of this section and a report of the en quiry shall be submitted immediately thererafter to the Court which caused such enquiry to be made. (4) If after the enquiry under s. 7 or subsection (1) or (2) of this section, the Court of a Magistrate is satisfied that such female person is in need of protection the Court may subject to the provisions of this sectio n: |392| (a) by warrant issued by the Court order such female person to be detai ned in a place of refuge for a period of three years from the date of the admiss ion of such female person into the place of refuge pursuant to s. 7 or subsectio n (1) or (2) of this section: Provided that the board of visitors of the place d etained may reduce the period of detention of such female person but so that no reduction shall be made which will have the effect of enabling such female perso n to be released from the place of refuge within twelve months from the date of the admission thereto as specified in this paragraph. (b) make an order where ap propriate committing such female person for a specified period not exceeding thr ee years from the date of the order to the care of a person whether a relative o r not who is willing and whom the Court considers to be a fit and proper person to undertake the care of such female person. (c) make an order where appropriate requiring her parent or guardian to enter into a bond for a specified period no t exceeding three years from the date of the order to exercise proper care and g uardianship over her; or (d) make an order placing such female person for a spec ified period not exceeding three years from the date of the order under the supe rvision of a Social Welfare Officer appointed for the purpose by the Court. Beli au berhujah apa yang diperlukan ialah supaya suatu penyiasatan dibuat dan lapora n disediakan oleh pelindung dalam masa tidak melebihi satu bulan daripada tarikh gadis tersebut dimasukkan ke Taman Sri Puteri itu. Ini telah diikuti dan dipatu hi oleh pelindung. Jadi, perintah lanjutan oleh Majistret hanya dibuat oleh Mahk amah untuk membolehkan Majistret yang bijaksana menerima laporan penyiasatan di bawah s. 8(3) Akta untuk tujuan memuaskan hatinya samada gadis tersebut perlukan perlindungan atau tidak dan seterusnya membuat perintah jagaan sewajarnya kepad a sesiapa yang difikirkan "fit and proper" untuk menjaga gadis tersebut. Tidak a da peruntukan di bawah Akta tersebut yang memerlukan Majistret membuat perintahn ya dalam masa satu bulan. Saya berpendapat: Memang "trite law" bahawa di dalam k es permohonan habeas corpus Mahkamah perlu memberi tafsiran yang sebenarnya (str ict interpretation) kepada peruntukan undang-undang dan prosedur dan sekiranya a da apa-apa keraguan Mahkamah sepatutnya memberi faedah itu kepada subjek yang be rkenaan lihat Andrew s/o Thamboosamy v. Supt. of Pudu Prisons [1976] 2 MLJ 136, di mukasurat 168.

143 Dalam hal ini Mahkamah perlu juga melihat kepada s. 366 Kanun Prosedur Jenayah y ang berbunyi: Every application to bring up before the Court a person detained o n a warrant of extradiction or alleged to be illegally or improperly detained in custody shall be supported by affidavit stating where and by whom the person is detained and, so far as they are known, the facts relating to such detention, w ith the object of satisfying the Court that there is possible ground for supposi ng that such person is detained against her will and without just cause. (peneka nan dibuat oleh saya) Bolehkah dikatakan gadis tersebut ditahan tanpa kebenarann ya dan tanpa sebab yang munasabah? Affidavit gadis tersebut sendiri yang tidak d icabar, menyatakan beliau ingin tinggal di Taman Sri Puteri, Rembau. Dari affida vit itu adalah jelas sekali gadis tersebut bukan ditahan tanpa kebenarannya. |39 3| Hujahan bahawa perintah tahanan lanjutan yang dibuat oleh Majistret yang dika takan oleh Puan Pendek bt Ahmad adalah tidak mengikut undang-undang tidak dapat saya terima walaupun bapa gadis itu telah menarik balik permohonan asalnya di ba wah s. 8(2) Akta. Jika dilihat kepada s. 8(1) Akta perbezaan dengan s. 8(2) adal ah jelas. Di bawah s. 8(1) Mahkamah Magistret boleh bertindak dengan sendirinya manakala di bawah s. 8(2) perlu ada permohonan oleh penjaga kepada seseorang gad is di bawah umur 18 tahun. Di bawah s. 8(1) Akta, jika Mahkamah Majistret memper cayai seseorang gadis di bawah umur 21 tahun telah tidak dijaga dengan baik atau terdedah kepada bahaya moral dan memerlukan perlindungan, Mahkamah Majistret bo leh melalui waran memerintahkan gadis tersebut ke suatu tempat perlindungan dan ditahan disitu sehingga suatu penyiasatan di bawah s. 8(3) dan laporan mengenai keadaan kesnya dapat dikemukakan di Mahkamah. Adalah jelas dalam kes ini Mahkama h Majistret telah berpuas hati pada 30 November 1994, bahawa gadis tersebut meme rlukan perlindungan walupun bapanya telah menarik balik permohonannya. Mahkamah Majistret dengan itu boleh bertindak dengan sendirinya di bawah s. 8(1) Akta dem i menjaga keselamatan dan kebajikan gadis NMY tersebut. Ini juga bererti Mahkama h Majistret berkenaan berhak untuk mengkaji dan menimbangkan apa-apa laporan pen yiasatan yang telah disediakan oleh pelindung di bawah s. 8(3) Akta. Dalam kes i ni Majistret yang bijaksana telah menangguhkan kes kepada 30 Disember 1994, untu k tujuan menentukan siapa orang sewajarnya samada seorang saudara atau tidak, ya ng difikirkan patut untuk menjaga gadis tersebut dan beliau sudah tentu perlu me nimbang laporan pelindung terlebih dahulu. Untuk membolehkan Majistret berbuat d emikian, saya fikir tidak salah bagi Majistret menangguhkan kes ini selama satu bulan daripada 30 November sehingga 30 Disember 1994 dan di dalam keadaan kes in i, adalah bukan tidak munasabah. Tidak ada peruntukan di bawah s. 8 Akta yang me merlukan Majistret bertindak serta merta apabila beliau menerima laporan daripad a pelindung di bawah s. 8(3) Akta. Tetapi ini bukanlah bererti Mahkamah Majistre t boleh sengaja melambat-lambatkan membuat keputusannya. Penangguhan pertama dar ipada 23 November 1994 adalah kerana permohonan Peguam bagi pihak Puan Pendek bt Ahmad. Penangguhan seterusnya daripada 30 November 1994 kepada 30 Disember 1994 adalah di atas budibicara Majistret yang bijaksana sendiri yang telah dibuatnya secara munasabah.

144 Tidak dinafikan bahawa keputusan dan kebajikan gadis tersebut merupakan perkara yang sangat perlu dipertimbangkan oleh Mahkamah. Kes yang dirujukan oleh Encik K arpal Singh dalam Rantanlal's CPC supra , di muka surat 444 perenggan enam menyo kong pendapat ini. Ia berbunyi seperti berikut: The underlying principle of ever y writ of habeas corpus under this section is to ensure the protection and wellbeing of the person brought before the Court under the writ. The real interest a nd well-being of the person ought to be only the determining but the sole consid eration. In dealing with a minor, the Court should have regard to the welfare of the infant irrespective of its age. Due regard must also be had to the ties of affection. If the infant is capable of forming intelligent opinions the Court mu st take them into consideration. Kes Bhola Nath v. District Magistrate AIR [1959 ] Punjab 236 juga mementingkan kebajikan orang yang ditahan lebih daripada penah anan yang menyalahi undang-undang terutama sekali di dalam kes orang-orang yang belum dewasa (minor). |394| Mahkamah dalam kes Bhola Nath, di muka surat 238 per enggan keempat sebelah kanan menyatakan: The writ of habeas corpus is, no doubt, a writ of right but not a writ of course. It is a constitutional right of a per son to demand the writ, but that does not necessarily imply that the writ must i ssue in all cases. The issuance of the writ of habeas corpus is within the judic ial discretion of this Court. This Court may grant a writ "whenever it thinks fi t". The provisions of s. 491 make it abundantly clear, that the power is discret ionary. The paramount consideration in all such cases must be the welfare of the minor. Courts will be justified in refusing to give the custody of the child to the father - although the father is ordinarily entitled to the custody of his m inor children - if he is otherwise an unsuitable person and if the interest of t he child would suffer by the change of the custody. Begitu juga, di dalam kes Ma dhya Bharat High Court [1952] Cri. LJ page 578 diputuskan: Where a minor is ille gally or improperly detained, the High Court would interfere by way of habeas co rpus but the interest of the minor is a paramount consideration and the High Cou rt would not use the powers under s. 491, if the remedy under the Guardians and Wards Act is more suitable. It is a rule of prudence that where an inquiry is ne cessary to ascertain what would be beneficial in the interest of the minors the local forum will be best suited for making such inquiry. Gadis tersebut dalam ke s ini sekarang berumur 16 tahun 3 bulan dan telah menjelaskan di dalam affidavit nya sebab-sebab demi keselamatan dan kebajikannya mengapa dia masih lagi ingin d an rela tinggal di Pusat Perlindungan Taman Sri Puteri, Rembau dan tidak mahu di keluarkan dari situ. Dalam keadaan kes ini saya rasa amat perlu Mahkamah membena rkan hasrat gadis NMY ini demi menjaga kepentingannya. Satu perkara lagi yang pe rlu saya putuskan ialah mengenai s. 367 Kanun Prosedur Jenayah yang berbunyi: Th e affidavit required by the last preceding section shall be made by the person d etained or alleged to be detained unless it be shown that by reason of restraint or coercion or other sufficient cause he is unable to make it, in which case it shall be made by some other person.

145 Dalam hal ini saya mendapati sukar untuk menerima sebagai fakta bahawa Pendek bt Ahmad membuat affidavitnya itu "untuk pihak pemohon/gadis" tersebut kerana gadi s tersebut kini dalam tahanan dan ia akan melibatkan banyak masa untuk membawa s eorang Pesuruhjaya Sumpah ke Pusat Pemulihan Gadis Taman Sri Puteri, Rembau. Jik a diperhatikan, alamat Pendek bt Ahmad adalah di Alor Gajah, Melaka dan beliau m embuat affidavitnya di hadapan Pesuruhjaya Sumpah di Kuala Lumpur. Tambahan pula , pihak Pusat Pemulihan dan gadis NMY sendiri tidak pernah dihubungi oleh Pendek bt Ahmad berhubung dengan permohonan ini. Oleh itu saya berpendapat affidavit P endek bt Ahmad dibuat bukan mengikut kehendak atau maksud s. 367 Kanun Prosedur Jenayah. Dari segala faktor kes ini saya berpuas hati bahawa tidak ada apa-apa s ebab untuk menganggap gadis NMY tersebut ditahan tanpa keizinannya dan tanpa seb ab yang munasabah seperti yang dimaksudkan di bawah s. 365 Kanun Prosedur Jenaya h. Oleh itu di atas sebab-sebab seperti yang dinyatakan di atas, permohonan ini ditolak.

146 [1992] 2 CLJ 467 (Rep) [1992] 1 CLJ 413 HJH. HALIMATUSSAADIAH KAMARUDDIN v. PUBLIC SERVICE COMMISSION MALAYSIA&ANOR. HIG H COURT MALAYA, KUALA LUMPUR EUSOFF CHIN J [CIVIL SUIT NO. R8- 21- 7 OF 1987] 20 JANUARY 1992 |469| JUDGMENT Mohd. Eusoff Chin J: On 23 February 1973, the Gover nment of Malaysia offered the plaintiff an appointment as a clerk. One of the co nditions in the offer letter stated: Sepanjang perkhidmatan Tuan/Puan, Tuan/Puan akan setiap masa tertakluk kepada PerintahPerintah Am Kerajaan, Pekeliling-Peke liling dan lain-lain peraturan mengenai pekerjaan, kelakuan dan syarat-syarat pe rkhidmatan pegawai-pegawai dalam Perkhidmatan Awam yang dikeluarkan dari masa ke semasa. (English translation) In the course of your service, you will be at all times subject to Government General Orders, Circulars and other regulations in r espect of work, behaviour and conditions of service of officers in the Public Se rvice issued from time to time. On 18 February 1985, the Government issued servi ce circular No. 2 of 1985 (hereinafter referred to as the circular) on the subje ct of dress code for Government officers. Paragraph 2.2 of the circular prescrib ed for lady officers the following dress to be worn when on duty during office h ours: 2.2 Pakaian Wanita 2.2.1 Pakaian Kebangsaan atau pakaian kaum masing-masin g yang sesuai dipakai semasa bekerja. "Jeans", "slacks" seluar pendek dan apa-ap a pakaian yang menutup muka tidak boleh dipakai semasa bekerja. (English transla tion) Women's Attire National Dress or dress of respective races suitably worn a t work. Jeans, slacks, shorts and any attire covering the face cannot be worn wh en on duty. When this circular was issued, the plaintiff was working as a clerk at the State Legal Adviser's office in Ipoh. The attention of the plaintiff and the staff of the State Legal Adviser's office was drawn to this circular by the then State Legal Adviser Perak, Encik Ariffin b. Zakaria, when he circulated the circular by his minute as follows: Semua Pegawai&Kakitangan, Pekeliling Perkhid matan Bil. 2 tahun 1985 diedarkan untuk makluman dan tindakan Tuan/Puan sewajarn ya. Sayugia diingatkan bahawa tindakan tatatertib boleh diambil terhadap mana-ma na pegawai yang tidak mematuhi pekeliling ini.

147 t.t. Penasihat Undang-undang Negeri Perak The plaintiff and other staff of the S tate Legal Adviser's office had initialled this minute acknowledging that they h ad seen this circular. The plaintiff was in the habit of wearing 'purdah' while doing work at the office. Even when attending this Court hearing, she still wear s 'purdah'. The purdah she wears is black in colour, which covers her whole body from the head down to the feet, except for a slit in the face covering, which e xposes her two eyes. |470| Encik Ariffin Zakaria advised the plaintiff to comply with the circular which is that the dress worn by the plaintiff should not cove r her face. She refused to comply with this requirement of the circular giving t he reason that as a Muslim, she was required by the Qu'ran and hadiths to cover her face. A report reached the State Legal Adviser's headquarters, which is the Attorney General's Department in Kuala Lumpur. A senior official of Pusat Islam, Jabatan Perdana Menteri, Dato' Haji Abdul Kadir bin Talib was sent to see the p laintiff in Ipoh. Dato' Kadir went with his wife to advise the plaintiff on the proper dress to be worn by Muslim women. Dato' Kadir advised the plaintiff that in Islam, women are required to cover the whole body except her face, palms and fingers and soles of the feet. In spite of this the plaintiff refused to expose her face while doing her work in the office. The plaintiff as a clerk was classi fied as belonging to "officers in Group C" in the Government service. The Chairm an of the Disciplinary Board for Group C officers, at the Attorney General's off ice, having considered the report on the plaintiff's refusal to comply with the circular, decided under O. 24 of the Public Officers (Conduct and Discipline) (C hapter "D") General Orders, 1980 (hereinafter referred to as G.O.'D') that proce edings for dismissal from the public service should be taken against the plainti ff. G.O.'D', O. 24 states: Disciplinary Authority to determine nature of offence . 24. In every case of an alleged breach of discipline by any officer except as provided for under General Order 27(a) and (b) , the Chairman of the Appropriate -Disciplinary Authority shall, in the first instance before commencing any disc iplinary proceeding in the matter, consider whether the breach of discipline com plained of is of a nature which merits a punishment of dismissal or reduction in rank or a punishment lesser than dismissal or reduction in rank. (Emphasis adde d) The disciplinary board for Group C officers in the Government service was est ablished by the Public Officers Disciplinary Board Regulations, 1972 . (PU(A)48/ 72) made by the Yang di Pertuan Agong under Article 144(5B) of the Federal Const itution . I quote the relevant provisions of this Article which are Article 144( 5B) (i) and (iv) : 144(5B)(i) Notwithstanding the provisions of Clause (1) of Ar ticle 135 and Article 139 and Article 141A , all the powers and functions of the Public Services Commission or the Education Service Commission established unde r Article 139 and Article 141A , other than the power of first appointment to th e permanent or pensionable establishment, may be exercised by a board appointed by the Yang di Pertuan Agong.

148 (iv) Where the Yang di-Pertuan Agong has appointed the board under paragraph (i) of this clause for the purpose of exercising any of the powers or functions ref erred to under that paragraph, such power or function shall so long as it remain s a power or function to be exercised by the board, cease to be exercisable by s aid Commission. (Emphasis added) However, reg. 3(2) of the Public Services Disci plinary Board Regulations 1972 states: 3.(2) No Board other than the Board which has jurisdiction over the officers in Group D shall exercise the disciplinary p ower of dismissal and reduction in rank. Because of this reg. 3(2) , the discipl inary board for Group C officers of the Attorney General's Department could not proceed to take disciplinary action against the plaintiff with a view to dismiss the plaintiff from Government service, and therefore, the matter had to be refe rred to the Public Services Commission (PSC) for further action. |471| The relev ant provisions of G.O.'D' 26 are as follows: Procedure in cases meriting punishm ent of dismissal or reduction in rank. 26.(1) Where it is represented to, or is found by, the Appropriate Disciplinary Authority that an officer is guilty of un satisfactory work or misconduct and such work or misconduct, in the opinion of t he Disciplinary Authority, merits dismissal or reduction in rank, the provisions of the following paragraphs shall apply. (2) The Appropriate Disciplinary Autho rity shall, after considering all the available information in its possession th at there is a prima facie case for dismissal or reduction in rank, cause to be s ent to the officer a statement in writing, prepared, if necessary, prepared with the aid of the Legal Department, of the ground or grounds on which it is propos ed to dismiss the officer or reduce him in rank and shall call upon him to state in writing within a period of not less than fourteen days from the date of rece ipt of the letter a representation containing grounds upon which he relies to ex culpate himself. (4) If the officer does not furnish any representation within t he specified time, or if he furnishes a representation which fails to exculpate himself to the satisfaction of the Appropriate Disciplinary Authority, it shall then proceed to consider and decide on the dismissal or reduction in rank of the officer (Emphasis added) Accordingly, on 5 August 1986, the PSC issued the foll owing letter to the plaintiff: SULIT Puan Halimatussaadiah bte Haji Kamarudin Me lalui: dan Salinan: Peguam Negara, Jabatan Peguam Negara Malaysia, Tingkat 11-15 , 18-21, Bangunan Bank Rakyat, Jalan Tangsi, 50512 Kuala Lumpur (u.p: Y.Bhg. Dat o' Lamin b. Haji Mohd. Yunus) Puan, Kenyataan Alasan-alasan Membuang Kerja Saya memaklumkan iaitu berikutan dengan laporan yang diterima, maka Suruhanjaya ini s ebagai Pihak Berkuasa Tatatertib yang berkenaan telah membuat keputusan untuk me ngambil tindakan tatatertib dengan tujuan buang kerja terhadap Puan di bawah Per intah

149 Am 26, Perintah-perintah Am Pegawai Awam (Kelakuan dan Tatatertib) (Bab 'D'), 19 80 atas pertuduhan berikut: Bahawa Puan Halimatussaadiah bte Haji Kamarudin yang bertugas sebagai Pegawai Kerani Am, Jabatan Penasihat Undang-undang Negeri Pera k, Ipoh telah didapati mulai 18 April 1985 hingga sekarang masih memakai pakaian yang menutup muka semasa bekerja di pejabat walaupun ianya bertentangan dengan Pekeliling Perkhidmatan Bil. 2 Tahun 1985 sebagaimana yang telah dimaklumkan kep ada Puan melalui Edaran Penasihat Undangundang Negeri Perak bertarikh 18 April 1 985. Perbuatan Puan itu adalah satu kesalahan yang tidak bertanggungjawab dan en gkar perintah atau berkelakuan dengan apa-apa cara yang boleh ditafsirkan dengan munasabah sebagai engkar perintah iaitu bertentangan dengan Perintah Am 4(2)(g) dan 4(2)(i), Perintah-perintah Am Pegawai Awam (Kelakuan dan Tatatertib) (Bab ' D'), 1980 . |472| 2. Mengikut kehendak Perintah Am 26(2), Perintah-perintah Am P egawai Awam (Kelakuan dan Tatatertib) (Bab 'D'), 1980 , Puan adalah diminta meng emukakan: (a) Jawapan kepada pertuduhan ini; dan (b) Hujah-hujah sebagai pembela an diri mengapa tindakan tatatertib buang kerja tidak boleh diambil terhadap Pua n sekarang. Jawapan dan hujah-hujah pembelaan diri Puan itu hendaklah dikemukaka n kepada Setiausaha, Suruhanjaya Perkhidmatan Awam melalui Ketua Jabatan Puan da lam tempoh dua puluh (20) hari daripada tarikh Puan menerima surat ini. Sekirany a Puan tidak memberi sebarang jawapan dalam tempoh masa yang ditetapkan itu, Pua n akan dianggap sebagai tidak hendak mengemukakan sebarang pembelaan diri dan pe rkara ini akan diputuskan atas keteranganketerangan yang ada sekarang ini sahaja . 3. Sila Puan akui penerimaan surat ini. Berkhidmat Untuk Negara Saya yang menu rut perintah, t.t (Dato' Nik Badli Shah Bin Dato' Nik Abdullah) Setiausaha, Suru hanjaya Perkhidmatan Awam, Malaysia. The plaintiff gave a 21 page reply explaini ng why she must continue to wear the purdah quoting verses from the Qu'ran and h adith. On 16 December 1986, the PSC sent her the following letter dismissing the plaintiff from the service: Sulit Puan Halimatussaadiah bt. Ruj.Kami: SPA. Suli t. Hj. Kamaruddin, 80223/3/(30) Tarikh: 16 Disember 1986 14 Raibul Akhir 1407 Me lalui: dan Salinan: Y. Bhg. Peguam Negara, Jabatan Peguam Negara, Malaysia, Ting kat 11-15, 18-21, Bangunan Bank Rakyat, Jalan Tangsi, 50512 Kuala Lumpur.

150 Puan, Keputusan Lembaga Tatatertib Suruhanjaya Perkhidmatan Awam Saya diarah men arik perhatian kepada surat Suruhanjaya ini bil. SPA.SULIT.80223/3/(16) bertarik h 5 Ogos 1986 meminta Puan mengemukakan hujah-hujah bagi membebaskan diri Puan d aripada tindakan tatatertib dengan tujuan buang kerja yang akan diambil ke atas Puan di bawah Perintah Am 26, Perintah-perintah Am Pegawai Awam (Kelakuan dan Ta tatertib) (Bab 'D'), 1980 . Puan telah mengemukakan jawapan sebagai pembelaan di ri menerusi surat Puan bertarikh 30 Ogos 86. |473| 2. Dimaklumkan bahawa Suruhan jaya Perkhidmatan Awam dalam mesyuaratnya yang telah diadakan pada 10 November 1 986 setelah menimbangkan dengan teliti kes Puan itu pada keseluruhannya telah me mutuskan bahawa Puan dikenakan hukuman buang kerja berkuatkuasa dengan serta-mer ta. 'Berkhidmat Untuk Negara' Saya yang menurut perintah, t.t. Farizan bin Darus Bahagian Naik Pangkat/Tatatertib, b.p. Setiausaha, Suruhanjaya Perkhidmatan Awa m, Malaysia. On 26 October 1987, the plaintiff filed this application seeking th e following reliefs: (i) A declaration that para. 2.2.1 of Service Circular No. 2 of 1985 which in effect prohibits the wearing of the purdah is null and void i n contravention of Article 11(1) of the Federal Constitution; (ii) A declaration that the plaintiff's purported dismissal from service is null and void, inopera tive and of no consequence; (iii) A declaration that the plaintiff is still a me mber of the general public service of the Federation; (iv) An order that the pla intiff be reinstated on the scale of salary she is lawfully entitled to; (v) An order that an account be taken of all salaries, enmoluments and other benefits l awfully due to the plaintiff from the date of her purported dismissal and same b e paid to her; (vi) Interest in the rate of 6% per annum on the adjudged sum fro m date of judgment to date of realisation; (vii) Costs and; (viii)Any further or other relief deemed fit and proper by the Honourable Court. The grounds of the application are: (a) The plaintiff contends there were material irregularities i n the procedure adopted by the first defendant in attempting to initiate discipl inary proceedings against the plaintiff in that the first defendant should have stated the grounds upon which it was intended to take disciplinary action and no t preferred a charge against the plaintiff as contained in the show cause letter dated 5 August, 1986. There is no such thing as requesting a public officer to show cause why disciplinary proceedings should not be taken against him. Discipl inary proceedings had in fact already commenced when it was decided to proceed a gainst the plaintiff under reg. 26(1) . The plaintiff further pleads that due to the said material irregularities mentioned hereinbefore she was absolved from h aving to reply to the said show cause letter. (b) The ground upon which the plai ntiff's purported dismissal is based is in contravention of the plaintiff's cons titutional right to practice the Islamic religion as contained in the Quran, Had ith and the teaching of the Ulamak and Hukaman Islam. The plaintiff pleads her u se of the purdah during office hours did not conflict with her duties. |474| (c) The first defendant

151 has failed to comply with the mandatory provisions of General Order 24 of the Pu blic Officers (Conduct and Discipline) (Chapter D) General Orders 1980 . (d) The first defendant has breached the rules of natural justice in failing to inform the plaintiff of the complaint against her. (e) Paragraph 2.2.1 of the Service C ircular No. 2 of 1985 is vague and uncertain. (f) The first defendant has failed to make a finding of guilt before imposing the punishment of dismissal, which i s procedurally defective. In Chief Constable of North Wales v. Evans, [1982] 3 A ER 141 , the House of Lords held: Judicial review is not an appeal from a decisi on but a review of the manner in which the decision was made, and, therefore, th e Court is not entitled on an application for judicial review to consider whethe r the decision itself was fair and reasonable. Judicial review is concerned, not with the decision, but with the decision-making process. Unless the restriction on the power of the Court is observed, the Court will in my view under the guis e of preventing the abuse of power, be itself guilty of usurping power. As regar ds the framing of the charge and grounds of dismissal to be given under G.O.'D', it was held by the Supreme Court in Shamsiah bt. Ahmad Sham v. Public Services Commissions, Malaysia&Anor. 1990, 3 MLJ, 364, at 366 as follows: The use of a ch arge in disciplinary actions under reg. 30(2) concerns matters of form rather th an substance and in our view the reference to a charge in the show cause letter did not in any way place the appellant in any disadvantageous position nor was s he in any way prevented from furnishing the first respondent with the written re presentation. In any event , the charge contained all the necessary grounds for the proposed dismissal which enabled the appellant to prepare her written repres entation accordingly. We did not think this trivial departure was serious enough as to vitiate the decision of the first respondent and render it void and inope rative. Karpal Singh for the plaintiff submitted that the appropriate disciplina ry authority had failed to give effect to the provision of order 24 of G.O.'D' . He further submitted that in this case the Chairman of the PSC should consider the complaint under this O. 24 first. He made a reference to the definition of t he words "Disciplinary Authority" contained in O. 3 of G.O.'D' , which states as follows: "Disciplinary Authority" means the appropriate Service Commission whos e jurisdiction extends to the service of which the said officer is a member in a ccordance with the provisions of Part X of the Constitution , and includes an of ficer or a board of officers in the public service by whom the Commission's func tion relating to disciplinary control is exercisable in pursuance of Clauses (5A ), (5B) or (6A) of Article 144 of the Constitution . (Emphasis added). I note th at the chairman of the disciplinary board for 'officers in Group C' in the Attor ney General's Chambers who is the Attorney General himself, as provided under pa ra. 1(v) of the Regulations , had already made a decision under order 24 of G.O. 'D' that this was a case which merited a disciplinary action with a view to dism issal. Since the definition of "disciplinary authority" includes 'a board of off icers' appointed by the Yang di-Pertuan Agong under Clause (5B) of Article 144 o f the Federal Constitution , I find the provision of O. 24 of G.O.'D' was suffic iently complied with when a letter dated 24 August 1985 addressed to the |475|

152 Secretary of the PSC signed by the Administrative Officer in the Attorney Genera l's Department under direction to convey that decision made under O. 24 of the G .O.'D' , para. 1 of which stated: Saya adalah diarah dengan hormatnya memaklumka n bahawa Jabatan ini ada menerima laporan bahawa Cik Halimatussaadiah bte Hj. Ka maruddin, Pegawai Kerani Am di Pejabat Penasihat Undang-undang Negeri Perak, Ipo h, Perak, telah melanggar peraturan pakaian semasa bekerja sebagaimana ditetapka n dibawah Pekeliling Perkhidmatan Bil. 2 Tahun 1985. Setelah meneliti laporan te rsebut dan semua maklumat yang berkaitan, maka Pengerusi Lembaga Tatatertib Jawa tan Kumpulan 'C', Jabatan Peguam Negara, berpuashati bahawa pegawai ini seharusn ya dikenakan tindakan tatatertib dengan tujuan buang kerja. (Emphasis added) The reason why this disciplinary board for officers in Group C sent this request to the PSC is because the board under reg. 3(2) of the Regulations did not have th e power of dismissal. Nevertheless, the chairman of the disciplinary authority ( or the board) had complied with O. 24 of G.O.'D' . The disciplinary action again st the plaintiff started when a report was received by the disciplinary board fo r Group C officers whose chairman, having considered the report, was of the view that the breach of disciplinary offence committed by the plaintiff merited the punishment of dismissal and the subsequent action of the PSC is a continuation o f the action begun by the disciplinary board for officers in Group C of the Atto rney General's Chambers. In any event the Chairman of the PSC must have decided this question under O. 24 of the G.O.'D' or else there would have been no furthe r proceedings taken against the plaintiff by the PSC. His decision under O. 24 o f G.O.'D' is not required to be conveyed to the plaintiff or to any one else. Th e purpose of O. 24 of the G.O.'D' is quite clear. When the chairman of the appro priate disciplinary board receives the report, he is not required to convene the board meeting. It is enough that he considers the gravity of the alleged discip linary offence committed, and decides whether under the circumstances, proceedin gs should be taken with a view to dismissal or not. For these reasons, Karpal Si ngh's argument on this issue must fail. Karpal Singh raised the issue that the n ame of the officer or person who lodged a complaint or report to the disciplinar y board for officers in Group C in the Attorney General's Chambers was never dis closed to the plaintiff. With respect, I do not agree that this is the requireme nt of O. 26 of the G.O.'D' . The opening words of this O. 26 states: Where it is represented to, or is found by the disciplinary authority ... Nowhere is found in the G.O.'D' that the name of the complainant is required to be disclosed to t he plaintiff or to anyone else. Most probably, the name of the complainant would be disclosed to the plaintiff if the PSC decided to appoint a committee to inqu ire into the complaint under O. 26(5) of the G.O.'D' . But this is a matter left to the wisdom of the PSC to decide, and if the PSC decided not to appoint such a committee, the Court shall not interfere with this decision. As regards the is sue of "finding of guilt" of the plaintiff before the PSC imposed the punishment of dismissal, I think it is perfectly clear that O. 26(4) of the G.O.'D' does n ot require the PSC to make such finding. What the PSC is required to decide is w hether the explanation given by the plaintiff, had exculpated the plaintiff to t he satisfaction of the PSC. On the issue that para. 2.2.1 of the Circular prohib ited any dress "yang menutup muka" (which covers the face), Karpal Singh submitt ed that what is prohibited is a dress which completely covers the whole face, wh ich he thought was a reasonable requirement since the

153 public officer concerned would not be able to perform her work because with the eyes covered, she would |476| not be able to see. He argued that in the case of plaintiff, she exposed her two eyes through a slit in the face covering and beca use of that she could still perform her duties in the office. Encik Karpal Singh , therefore, was of the view that the plaintiff did not cover her face completel y and consequently did not contravene the provision of this circular. Karpal Sin gh conceded that on authorities, Government of Malaysia v. Rosalind Oh Lee Pek I nn [1973] 1 MLJ, 222 and Rajion bin Hj. Sulaiman v. Government of Kelantan [1976 ] 1 MLJ, 118 , the contract between a public servant and the Government is of a special kind, as once appointed the government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute, statutory rules or administrative rules made by the government. But he said that the provision of para. 2.2.1 of the circular is vague and certainl y did not refer to purdah. Encik Pritam Singh for the defendants submitted that a face comprises the temple, eyes, nose, mouth, cheek and chin of a person, and that the covering of any of these parts of the face is prohibited. I tend to agr ee with the view taken by Encik Pritam Singh. DW1, Encik Wan Ibrahim bin Wan Ahm ad, Deputy Director, Service Division in the Public Services Department who was involved in the issuance of this circular said that the intention of para. 2.2.1 is that a woman officer must expose her entire face. The circular uses the word s "pakaian yang menutup muka tidak boleh dipakai ..." which means that face must not be covered. Therefore, if any part of the face, for example the eyes, or th e nose or mouth is exposed, while the rest of the face is covered, I would say t hat the circular has not been complied with. It was held in Laws v. London Chron icle (Indicator Newspapers Ltd.) [1959] 2 AER 285 that the wilful disobedience o f a lawful and reasonable order is itself a ground for dismissal as it is settle d law that an employee repudiates his contract of service if he wilfully disobey s the lawful and reasonable order of his employer. Disobedience is a deliberate flouting by a servant, and that by itself justifies dismissal. That brings the i ssue of whether the directive contained in para. 2.2.1 prohibiting the wearing o f a dress covering the face is lawful and reasonable. Article 11(1) of the Feder al Constitution states: Freedom of 11.(1) Every person has the right to profess and practise his religion religion. and, subject religion. to Clause (4), to pro pogate it. The plaintiff said in evidence that since 1983 she had been wearing t he purdah which covered the face except for the eyes. She admitted that Surah An Nur, ayat 30 and 31 of the Quran, and hadiths require that the whole body of a woman must be covered except for the forehead, eyes, nose, mouth, cheek and chin ; in other words the face. However, in her interpretation of the Quran and hadit h she believed that the face, except the eyes must also be covered to avoid "fit nah". The Dato' Mufti Wilayah Persekutuan Dato' Haji Abdul Kadir b. Talib (herei n referred to as Dato' Mufti) who holds a Master in Islamic Studies, Azhar Unive rsity, and who has held posts as Pegawai Ugama Negeri Johor, Lecturer in Islamic Studies at University Kebangsaan, Deputy Director Pusat Islam in Jabatan Perdan a Menteri and Pakar Rujuk Hal Ehwal Islam dan Dakwah at Pusat Islam, and since 2 1 March 1991, the post of the Mufti for Wilayah Persekutuan, agreed that the Qur an requires a Muslim woman to cover her body except the face, palms and fingers, and feet. Where a woman's face is painted with cosmetics to make

154 her exceptionally beautiful and attractive so that it evokes a sexual desire on all men who behold her beautiful face, which would invite "fitnah", and which in turn may cause a breach of the peace or lead to public disorder, then the woman is obliged to cover her face and |477| should only expose her face to members o f her family. She is allowed to use make up to beautify her face for her husband . Whether the woman's face is exceptionally beautiful is not for the woman herse lf to judge. The Dato' Mufti gave this fatwa after making references to the vers es in the Quran, hadiths and kitabs in Arabic and in Bahasa Malaysia. According to him Muslim women in Malaysia are not required to cover their faces, and as fa r as he could remember, none of them ever covered their faces until recently whe n Arqam leaders started telling their young wives and encouraged their women fol lowers to cover their faces. The Dato' Mufti gave evidence that purdah was a cus tomary dress worn by old Arab ladies even before the beginning of Islam. But the religion of Islam does not prohibit a Muslim woman from wearing, nor requires h er to wear a purdah. According to him, the Quran does not anywhere mention 'purd ah'. The Quran, on the other hand, expressly prohibits a Muslim woman who perfor ms the tawaf (ceremonial walking round the Ka'aba) or while praying, from coveri ng her face. It is in evidence that before submitting the circular for approval by the Cabinet, the Public Services Department had referred this question to the Pusat Islam in the Prime Minister's Department for an opinion, and the Pusat Is lam had replied that the terms of para. 2.2.1 of the circular, prohibiting women officers from covering their faces while on duty, was not against the practice and teachings of Islam in this country. The learned Dato' Mufti stated in eviden ce that as a Mufti, he issues fatwa on any religious issue, and if on any issue he considered it necessary to get further opinions, he would seek the views of t he fatwa committee of which he is the chairman. But in this case, he is certain of his opinion that in Islam, the dress to be worn by a Muslim woman would be as he had told the Court. He of course was willing to give his fatwa on this issue in writing, but I did not consider it necessary that he should do so since he w as already in the witness stand, and had answered questions put to him without h esitation and further, he had produced to the Court the authorities on which he relied and based his opinions which are the relevant verses from the Quran, Sunn ah, Ijma and the views of early Imams and Jurists both in Arabic and Bahasa Mala ysia. The Dato' Mufti has spent his whole life in the study and teaching of, and interpreting the Islamic law. At the moment, there is no written law laying dow n the apparels to be worn by Muslim women. I have myself read the authorities pr oduced by him to the Court, and I have no compelling reason why I should reject the views expressed by Dato' Haji Abdul Kadir who now is regarded as the highest Islamic authority in the Wilayah Persekutuan of Kuala Lumpur. DW5 Encik Abdulla h Fahlim, Ketua Pengarah Hal Ehwal Ugama Islam in Jabatan Perdana Menteri was of the same view as the Dato' Mufti as regards the proper dress to be worn by Musl im women. Even the plaintiff's own witness No. 2, Tuan Haji Hassan b. Haji Salle h is of the same views as expressed by the Dato' Mufti. I therefore accept the o pinions expressed by the Dato' Mufti in this Court. In the State of Bombay v. Na rsu Appa Mali, [1953] AIR Bombay, 84 Chagla CJ stated: Now a sharp distinction m ust be drawn between religious faith and belief and religious practices. What th e State protects is religious faith, and belief. If religious practices run coun ter to public order, morality or health ... then the religious practices must gi ve way before the good of the people of the State as a whole." Article 11(5) of the Federal Constitution states:

155 11(5). This Article does not authorise any act contrary to any general law relat ing to public order, public health or public morality. |478| The language of Art icle 11 of the Federal Constitution clearly shows that the article is intended t o protect absolutely the religious beliefs of the people but in exercising relig ious practices, Article 11(5) also clearly forbids any act which may lead to pub lic disorder, affect public health or public morality. The words used in Article 11(5) is not "written law" but 'general law'. The word "law" has been defined u nder Article 160 of the Federal Constitution to include any custom or usage havi ng the force of law in the Federation or any part thereof. It was stated in evid ence by Dato' Ariffin bin Zakaria that the office of the State Legal Adviser Per ak deals with files relating to government secrets, the handling of which is gov erned by the Official Secrets Act (Act 88) . The identity of a person wearing th e purdah is difficult to determine. The Dato' Mufti when called upon to identify the plaintiff in Court was unable to do so because he said it was impossible fo r him to identify the plaintiff by just looking at the eyes, and when this quest ion was put to him, there were three persons in Court wearing the purdah. If, th erefore, the purdah is allowed to be worn by lady officers during office hours, a stranger or person who is not an officer at a particular Government Office may enter that office wearing a purdah and pretending to be a lady officer working in that office, handles secret files kept there, and this can certainly lead to dangerous and disasterous results. Government secrets and governmental interests must be safeguarded and protected at all costs. Although government employees a re required to wear name tags, the wearing of a name tag does not reflect the tr ue identity of a purdah wearer. The purdah wearer could even be a man with false breasts and having a small kuali tied at his belly to represent a pregnant lady , and none in the office would be able to discover his true identity. I find tha t there is nothing illegal in the government's laying down conditions for clothi ngs to be worn by government officers while at work for the sake of discipline o f the service, provided the conditions do not militate against public order, mor ality or health. In other words, so long as the conditions imposed do not violat e ethical principles, or do not subvert public order, or morality or health whic h include those of its officers, there should be and can be, no objection to the Government's imposing such conditions on the grounds that the conditions impose d are unconstitutional. This is so even though the conditions imposed may restri ct to some extent, the religious practices of some of its officers. Under the ci rcumstances, I hold that the term of para. 2.2.1 of the circular is indeed lawfu l and reasonable and must be obeyed. Disobedience by an officer to such lawful a nd reasonable directive or order of the Government would justify the taking of d isciplinary action against him or her by the appropriate disciplinary authority. I therefore dismiss the plaintiff's application with costs.

156 [1998] 1 LNS 202 Mayban Assurance Berhad v. Sufian Mohd. Said HIGH COURT MALAYA, KUALA LUMPUR Y.A . DATO ABDUL KADIR BIN SULAIMAN HAJI [RAYUAN SIVIL NO. R1-11-127-96] 16 March 1998 PENGHAKIMAN Mengikut Pernyataan Tuntutan Perayu, pada 28hb. September 1996 Respo nden dan Defendan Kedua telah menandatangani satu perjanjian tanggungrugi dengan Perayu sebagai balasan Perayu memberi gerenti insuran kepada Kerajaan Malaysia berhubung dengan kerja kontrak oleh Le Subazi Sdn. Bhd mengikut kontrak No. JKR/ LKTP/PHG/P/7/86. Perjanjian gerenti insuran telah ditandatangani oleh Perayu den gan Kerajaan Malaysia pada 14hb. Ogos 1986. Mengikut kehendak gerenti insuran te rsebut Perayu telah pun membuat bayaran sebanyak RM20,354.30 kepada Kerajaan Mal aysia. Pada 22hb. April 1991 Perayu telah membuat tuntutan wang sejumlah itu dar ipada Responden di bawah perjanjian tanggungrugi itu. Tuntutan Perayu di Mahkama h Majistret Kuala Lumpur ialah terhadap wang RM20,354.30 itu bersama faedah pada kadar 9% di atas kadar prime setahun dari 22hb. April 1991 sehingga tarikh peny elesain bayaran, dan kos. Responden di dalam Pernyataan Pembelaannya mengaku men andatangani perjanjian surat tanggungrugi pada 28hb. September 1986 tetapi menya takan bahawa perjanjian tanggungrugi tersebut adalah terhadap satu kontrak pembi naan yang dikenalpasti sebagai kontrak No. JKR/LKTP/PHG/P/8/1986 dan dengan yang demikian adalah tidak tertanggung terhadap tuntutan Perayu itu. Responden menga ku menerima surat tuntutan dari Perayu bertarikh 22hb. April 1991 tetapi tidak t ertanggung kerana ianya adalah terhadap kontrak No. JKR/LKTP/PHG/P/7/86. Dengan yang demikian nampaknya isunya ialah sama ada Responden tertanggung untuk menang gungrugi Perayu terhadap kontrak pembinaan No. JKR/LKTP/PHG/P/7/86 saperti yang dituntut oleh Perayu ke atasnya itu. Mengikut bukti yang diperolehi di dalam per bicaraan di hadapan Hakim, Mahkamah Sesyen, kontrak No. JKR/LKTP/PHG/P/7/86 (eks ibit P-15") ialah untuk membina dan menyiapkan dua (2) blok bangunan sekolah, ka ntin, padang dan lain-lain kerja bersangkutan di Sekolah Kebangsaan Lepar Hilir III dan sembilan (9) buah rumah guru dan lain-lain kerja bersangkutan di Sekolah Kebangsaan Lepar Hilir I dan II, Kuatan, Pahang Darulmakmur. Nama pemborong ial ah Le-Subazi Sdn. Bhd. Eksibit "P-1" ialah gerenti insuran atau gerenti perlaksa naan yang ditandatangani oleh Perayu dengan Kerajaan Malaysia bertarikh 14hb. Og os 1986 yang menyebut bahawa perjanjian tersebut adalah tambahan kepada Kontrak No. JKR/LKTP/PHG/P/7/86 antara Le-Subazi Sdn. Bhd. dengan Kerajaan Malaysia. Di bawah perjanjian ini Perayu mengaku akan membayar kepada Kerajaan Malaysia seban yak RM41,836.38 dalam tempoh tiga bulan selepas menerima satu notis bertulis men ghendaki Perayu membayar kepada Kerajaan di atas apa-apa perlanggaran oleh kontr aktor terhadap kewajipannya di bawah kontrak tersebut. Mengikut eksibit "P-3" pu la ianya ialah penjanjian tanggungrugi yang ditandatangani oleh Responden mengak u untuk menanggungrugi Perayu yang telah memberi gerenti kepada Kerajaan Malaysi a setakat RM41,836.38 untuk meliputi perlaksaan sempurna kontraktor Le-Subazi Sd n. Bhd bersabit dengan membina dan menyiapkan dua (2) blok bangunan sekolah, kan tin, padang dan lain-

157 lain kerja bersangkutan di Sekolah Kebangsaan Lepar III dan sembilan (9) buah ru mah guru dan lain-lain kerja bersangkutan di Sekolah Kebangsaan Lepar I dan II, Kuantan, Pahang Darulmakmur yang dikenali sebagai kontrak No. JKR/LKTP/PHG/P/7/1 986. Maka dengan ini jelaslah bahawa pembelaan Responden adalah tidak berasas ke rana perjanjian tanggungrugi dan gerenti insuran yang berkenaan adalah berhubung dengan kontrak No. JKR/LKTP/PHG/P/7/1986 dan bukan JKR/LKTP/PHG/P/8/1986 sepert i yang dinyatakan di dalam pembelaannya. Daripada keterangan bagi pihak Perayu, telah dibuktikan bahawa melalui eksibit "P-4" dan "P-24" Perayu telah menjelaska n kepada Kerajaan Malaysia melalui MBB Cek No. 024038 bertarikh 10hb. November 1 989 wang sebanyak RM20,354.30 berasaskan tuntutan Kerajaan Malaysia saperti yang terkandung di dalam surat menyurat yang dibuktikan mengikut eksibit "P-6", "P-7 ", "P-8", "P-9", "P-10", "P-11", "P-12", "P-13", "P-22", dan "P-23". Di dalam pe rbicaraan di hadapan Hakim, Responden telah tidak mengemukakan apa-apa keteranga n di atas alasan tiada kes untuk dijawab. Dari bukti-bukti yang terkumpul itu Ha kim telah menolak tuntutan Perayu terhadap Responden dan rayuan ini adalah terha dap keputusan Hakim tersebut. Melalui alasan penghakimannya, Majistret menolak t untutan Perayu kerana Perayu telah gagal membuktikan satu kes prima facie ke ata s Responden. Alasannya ialah tindakan oleh pihak Kerajaan Malaysia menggerakkan perlaksanaan gerenti insuran atau gerenti perlaksanaan bertarikh 14hb. Ogos 1986 ke atas Perayu adalah "unconscionable and unjustifiable" kerana rekod dan dokum en-dokumen bagi pihak Kerajaan Malaysia sendiri mendedahkan bahawa keseluruhan p rojek yang di beri kepada Kontraktor, Le-Subazi telah pun disempurnakan dan dipe rbetulkan sehingga menyebabkan pihak Kerajaan Malaysia mengeluarkan satu sijil p erlaksanaan pembaikan kecacatan pada projek, yang bertarikh 27hb. Februari 1990. Sijil ini terdapat di halaman 132 rekod rayuan Jilid I, iaitu eksibit "SMS-1" k epada affidavit balasan Responden yang diikrarkan pada 19hb. Mei 1993 bagi menen tang permohonan Perayu di peringkat interlokutori antara Perayu dengan Responden . Eksibit "SMS-1" ini tidak diketengahkan sebagai eksibit dalam perbicaraan penu h di hadapan Majistret tetapi di ketengahkan di dalam hujah peguam-peguam yang m ewakili kedua-dua pihak. Dengan yang demikian ia tidak boleh menjadi keterangan di dalam kes yang di hadapan Majistret. Dengan yang demikian Majistret telah ter salah arah apabila menerimanya sebagai keterangan dalam kes. Tetapi kalau pun ek sibit ini diketengahkan sebagai eksibit dalam kes, ianya menyentuh hal antara Ke rajaan Malaysia dengan kontraktor dan sama ada ianya "unconscionable dan unjusti fiable" atau tidak dipihak Kerajaan Malaysia menuntut dari Perayu berasaskan ger enti insuran, itu satu persoalan lain yang tidak boleh menjejaskan hak Perayu me nuntut daripada Responden di bawah perjanjian tanggungrugi jika benar-benar di b awah undang-undang Perayu mempunyai hak ke atasnya. Di dalam alasan penghakimann ya, Majistret selepas memutuskan bahawa bersandarkan kes Esso Petroleum Malaysia Inc. lwn. Kargo Petroleum Sdn. Bhd. (1995) 1 AMR 189 dan Kirames Sdn. Bhd. lwn. Federal Land Development Authority (1991) 2 MLJ 198, gerenti insuran yang diber i oleh Perayu kepada Kerajaan Malaysia adalah satu "on demand performance bond" dan dengan yang demikian Perayu adalah terikat untuk memenuhi tanggungjawabnya d i bawah gerenti insuran tersebut dengan membuat bayaran yang dituntut kepada Ker ajaan Malaysia, terus menidakkan hak Perayu ke atas Responden di bawah perjanjia n tanggungrugi. Ini semata-mata kerana ketiadaan sifat perimanusia Kerajaan

158 Malaysia terhadap Perayu yang telah membuat pembayaran kepadanya tanpa lengah. P ada pandangan saya fikiran Majistret telah terkeliru oleh isu eksibit "SMS-1" di dalam prosiding interlocutori dengan isu sebenarnya yang di hadapannya. Isu seb enar di hadapannya ialah sama ada berasaskan perjanjian tanggungruji (eksibit "P -3") Responden adalah tertanggung kepada Perayu. Perlu diulangi bahawa pembelaan Responden melalui Pernyataan Pembelaannya hanyalah bahawa ia tidak tertanggung di atas tuntutan Perayu di sebabkan surat perjanjian tanggungrugi yang ditandata nganinya pada 28hb. September 1986 adalah terhadap kontrak No. JKR/LKTP/PHG/P/8/ 86 dan bukan terhadap kontrak No. JKR/LKTP/PHG/P/7/86 seperti yang dikatakan ole h Perayu itu. Ini Responden telah gagal buktikan sama ada melalui keterangan yan g dikemukakan oleh saksi-saksi Perayu atau keterangannya sendiri. Sebaliknya Per ayu telah membuktikan bahawa surat perjanjian tanggungrugi adalah terhadap kontr ak No. JKR/LKTP/PHG/P/7/86. Mengikut klausa 1 eksibit "P-3" tersebut, Responden telah bersetuju membuat tanggungrugi kepada Perayu terhadap kesemua tindakan, pr osiding, liabiliti, tuntutan, kerugian, kos dan perbelanjaan yang akibat dari ge renti insuran tersebut. Tuntutan Perayu ke atas Responden adalah akibat dari tan ggungan yang telah disempurnakan oleh Perayu kepada Kerajaan Malaysia berjumlah sebanyak RM20,354.30 saperti yang dibuktikan oleh eksibit-eksibit "P-4", "P-24", dan "P13". Responden juga telah mengakui menerima surat tuntutan daripada Peray u bertarikh 22hb. April 1991 yang merujuk kepada hal kontrak No. JKR/LKTP/PHG/7/ 86 yang Responden telah gagal menyatakan sebaliknya. Perayu juga telah berjaya m embuktikan tuntutannya terhadap faedah dan kos saperti yang khusus diperuntukan di dalam klausa-klausa 1 dan 3 kepada eksibit "P-3" tersebut. Dengan yang demiki an di atas asas yang salah Majistrate telah tersalah di dalam membuat keputusany a menolak tuntutan Perayu. Saperti yang dikatakan awal tadi Majistret telah sala h terima eksibit "SMS-1" dan hasilnya telah mengecewakan Perayu di dalam tuntuta nnya terhadap Responden. Eksibit "SMS-1" ini terkandung di dalam afidavit balasa n Responden yang tertera di halaman 126 rekod rayuan Jilid 1. Afidavit dan eksib it ini tidak timbul melalui keterangan saksi di dalam perbicaraan tetapi hanya t imbul semasa berhujah. Di hadapan Majistret peguam Perayu sekerasnya membangkang di atas percubaan peguam Responden membuat rujukan kepada affidavit ini. Majist ret menolak bangkangan ini saperti yang dinyatakan di halaman 66 rekod rayuan Ji lid 1 saperti berikut: "It is axiomatic that parties in a trial should have a fr ee hand to introduce whatever documents they wish to in order to support their c ase provided always it is in accordance with the rules of the court. Affidavit e vidence are sworn testimony. It is even more powerful than the pleadings prepare d by the solicitors". Persoalannya di sini sama ada kemasukan afidavit ini sebag ai keterangan di lakukan mengikut kehendak peraturan mahkamah. Tidak dinafikan b ahawa sesuatu afidavit itu adalah keterangan bersumpah. Tatapi dengan memasukann ya secara sedemikian ia menidakkan hak Perayu untuk menyoalbalas deponen afidavi t tersebut yang secara langsung telah melanggar tatasusila keadilan semulajadi. Lainlah jika ianya telah dimasukan sebagai satu keterangan di dalam perbicaraan melalui prosidur yang ditentukan dengan pihak Perayu diberi pilihan untuk menyoa lbalas deponen afidavit tersebut. Soal memberi peluang kepada Perayu "to blow ho t and cold at two stages" melalui cara yang telah dilakukan oleh peguam Responde n di dalam hal ini adalah tidak berbangkit langsung. Di dalam hal ini Majistret telah tersalah

159 mengertikan dikta di dalam kes Kwan Yoon Fatt & Sons Sdn. Bhd. & sorang lagi lwn . Trends Building Sdn. Bhd. & lain-lain (1994) 4 CLJ 996 saperti yang dicatat ol eh Majistret di dalam alasan penghakimannya. Tidak dinafikan bahawa afidavit di dalam prosiding belum selesai merupakan satu pliding saperti juga pernyataan tun tutan dan pernyataan pembelaan. Dengan yang demikian Aturan 18 kaedah 8 (1) (b) Kaedah-Kaedah Mahkamah Tinggi 1980 yang menyentuh hal pliding adalah juga terpak ai kepada afidavit. Tetapi persoalannya di sini bagaimana caranya untuk afidavit yang digunakan di dalam prosiding interlokutori boleh diterima sebagai keterang an didalam perbicaraan penuh saperti keterangan-kerangan yang lain. Ianya walaup un merupakan kenyataan bersumpah tidak secara bagitu sahaja boleh diterima sebag ai keterangan oleh kerana ianya adalah suatu afidavit. Proses untuk menghalalkan nya digunakan sebagai keterangan yang boleh diterima, di dalam perbicaraan melal ui keterangan lisan saksi perlu dipatuhi. Tetapi di dalam hal ini ianya tidak di patuhi mengikut cara yang saya sebutkan awal tadi. Jika afidavit tidak boleh dit erima sebagai keterangan semestinyalah juga akan eksibit-eksibit yang berkaitan dan terkandung di dalamnya. Di hadapan saya di dalam rayuan ini, peguam Responde n berhujah mempertahankan keputusan salah Majistret tersebut dengan berhujah bah awa eksibit "SMS-1" merupakan dokumen kerajaan dan dengan yang demikian ianya ad alah dokumen awam yang tidak boleh disembunyikan daripada pengtahuan Mahkamah di dalam membuat keputusan secara adil. Soal menyembunyikannya tidak timbul. Masal ahnya bagaimana supaya ianya boleh dianggap sebagai keterangan yang boleh diteri ma? Mengapa tidak Responden sebagai deponen di panggil untuk secara formal membe ri keterangan bersabit dengan afidavit dan eksibit-eksibitnya supaya ia memberi peluang kepada Perayu untuk menyoalbalas Responden? Isu prosiding interlokutori di jalankan di hadapan Majistret yang sama tidak harus ditimbulkan kerana seseor ang Majistret semasa menjalankan perbicaraan penuh tidak boleh mengambilkira ket erangan yang diperolehinya di luar prosiding yang sedang dijalankan itu. Juga is u kejutan kepada Perayu adalah tidak relevan di sini kerana isunya ialah sama ad a apa yang dikemukakan itu merupakan satu keterangan yang boleh diterima mengiku t undang-undang. Kemudian peguam Responden berhujah bahawa kewujudan eksibit "SM S-1" ini telah ditanyakan kepada SP2 Narayanan s/o KSA Narayanan saperti yang te rdapat di halaman 19 rekod rayuan Jilid 1. Saya cuba mencarinya tetapi tidak ked patan. Mungkin yang berikut dimaksudkan: "Letter dated 27/12/90 referred. During this period I was no longer with JKR. And I did not sign it". Saperti diketahui eksibit "SMS-1" bertarikh 27hb. Februari 1990 tetapi apa yang dikaitkan dengan keterangan SP2 ialah surat bertarikh 27hb. Disember 1990. Katakanlah tarikh tela h salah ditulis di dalam nota keterangan. Apa yang dimaksudkan ialah surat berta rikh 27hb. Februari 1990 dan surat ini ialah eksibit "SMS-1". Dari jawapan yang dibero oleh saksi ianya tidak memberi apa-apa kesan yang berfaedah kepada Respon den. Cara begini sahaja tidak menjadikan eksibit berkenaan sebagai satu keterang an yang boleh diterima. Pembuat eksibit "SMS-1" ialah SP3. Hujahan peguam seteru snya meletakan beban memasukan eksibit tersebut ke bahu Perayu adalah tanpa asas langsung. Dengan yang demikian prinsip pemakaian seksyen 114 (g) Akta Keteranga n 1950 tidak berbangkit. Ia merupakan pembelaan Responden. Jika demikian beban b ukti adalah terpikul olehnya. Walaubagaimanapun isu ini tidak berbangkit di dala m plidingnya. Ia menafikan tanggungannya di atas alasan bahawa perjanjian tanggu ngrugi adalah terhadap kontrak yang lain yang telah dibuktikan oleh Perayu sebal iknya.

160 Berasaskan kepada pendapat saya saperti dia atas adalah nyata sekali bahawa Pera yu telah membuktikan kesnya ke atas Responden dan tanpa salah arah dan salah ter ima keterangan oleh Majistret keputusannya sudah tentu tidak terjadi sedemikian. Dengan yang demikian rayuan Perayu adalah dibenarkan saperti yang dituntut. Kos di sini dan di Mahkamah Majistret. Keputusan Majisteret adalah dengan ini diket epikan. Penghakiman kepada Perayu. Tarikh: 16 Mac 1998 (DATO ABDUL KADIR BIN SULAIM AN) HAJI Hakim Bagi pihak Perayu: Encik Chandrasekar, Tetuan Nik Hussain & Partn ers, Peguambela & Peguamcara, Tingkat 27, Menara Promet, Jalan Sultan Ismail, 50 250 Kuala Lumpur Bagi pihak Responden: Encik Shamsuddin bin Haji Nawawi, Tetuan Shamsuddin & Co., Peguambela & Peguamcara, Lot 7.32, Tingkat 7, Pertama Kompleks , Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur