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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 Kertas 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 : Jabatan Department Fakulti Faculty Universti University

:

PROF. DR. HUSSEIN AHMAD

:

KEPENGETUAAN

:

INSTITUT PENGETUA

:

PENDIDIKAN

:

UNIVERSITI MALAYA

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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, KUALA LUMPUR SALLEH ABAS CJ (MALAYA) HASHIM YEOP SANI FJ SYED AGIL BARAKBAH FJ [CIVIL APPEAL NO. 286 OF 1983] 16 JANUARY 1984 |320| JUDGMENT Hashim Yeop Sani FJ: This appeal arose out of a student's dissatisfaction about the Malaysian Examinations Council's decision to annul his Sijil Tinggi Pelajaran Malaysia results awarded 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 the circumstances leading to a discovery of the scribbled notes on his table and secondly he was not given an opportunity to be heard before his examination results 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 results endorsed on the slip. He appealed for a review of this annulment to the Malaysian 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 meantime 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 Penang 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 all his results in the 1982 examination. The power of the Council is apparently contained in s. 9 of the Act which reads as follows: The Council shall, in relation to a specified examination, enjoy the prerogative of awarding and withdrawing certificates, withholding and cancelling the results of any candidate, and barring any person from taking the examination. The order to disqualify his examination 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

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provides that leave to apply for an order of certiorari shall not be granted unless made within six weeks after the date of the proceeding objected to except where 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 decision 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 delay. Briefly his explanation was that by 6 July 1983 the appellant had already been 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 attention 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. Looking at the explanation we cannot honestly say that the Judge was wrong in rejecting the explanation as being unsatisfactory. The meat of the complaint of the appellant is contained in para. 14 of his affidavit (p. 9) supporting his application 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 proper manner as the application in the notice of motion was for leave to apply for an order of certiorari. The application in the notice of motion itself being out 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 with 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 first consideration of the Judge is relevant. Since the Judge rejected the explanation for the delay it follows that the Court had no jurisdiction to hear the application for leave for an order |322| of certiorari. Whether the application for an order of certiorari had merits or not was irrelevant. This principle is implicit 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 because Order 53 r. 1A of the Rules of the High Court 1980 expressly directs that leave shall not be granted "unless the application is made within six weeks after the date of the proceeding". There are constraints which may or may not be necessary 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 ) that leave to apply for judicial review will be refused only if there has been "undue 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.

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[1987] CLJ 760 (Rep)

[1987] 1 CLJ 588

LONGMAN (M) SDN. BHD. v. PUSTAKA DELTA PELAJARAN SDN. BHD. HIGH COURT MALAYA, KUALA LUMPUR GUNN CHIT TUAN J [CIVIL SUIT NO. C 615 OF 1981] 22 SEPTEMBER 1986 COPYRIGHT: Action by plaintiff for infringement of copyright in a text-book translated from English to Bahasa Malaysia - General arrangements, language and features and errors similar to plaintiff's text - Whether book protected under Copyright 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 copyright 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 contended that they were sole owners of the copyright in a book entitled "Kursus Ulangkaji 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 the reprint edition was published in 1980 or closer to 1979. Since 1979, the plaintiff 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 affected after the defendant had brought out their book in 1980. The defendant's book was entitled "Kursus Lengkap Peperiksaan SPM Rampaian Sains"; the general arrangements, 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 whether 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 the quality rather than the quantity of the pirated parts produced. The diagrams and tables are very vital parts of the plaintiff's book and that a substantial part had therefore been reproduced in the defendant's book. [3] The copyists of the 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 ride on the efforts of the original author and artist. [4] The parts taken were done animo furandi, that is with an intention on the part of the copyists of saving themselves time and labour. [5] The defendant's use of the parts taken into the defendant's book was such as to compete with and affect the sales of the plaintiff's book as a result of which the plaintiff had to decide not to publish further editions. |761| [6] The injunction was granted and the defendant was ordered 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 sums found due with interest thereon.

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Cases referred to: Byrne v. Statist Company [1914] 1 KB 622 Scott v. Stanford Limited [1867] 3 Equity Cases 718, 720, 724 Ladbroke (Football) Ltd v. William Hill (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

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[1998] 1 CLJ 285
FAIRVIEW SCHOOLS BHD v. INDRANI RAJARATNAM&ORS COURT OF APPEAL, KUALA LUMPUR MAHADEV SHANKAR JCA MOKHTAR SIDIN JCA DENIS ONG JCA [CIVIL APPEAL NO: W-02-763 OF 1996] 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 application 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 High 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 Schools, and another such notice on behalf of 57 persons who were contributories each holding 50 shares in the company. Mr. Davidson was instructed to represent them as counsel. They (the opposing contributories and creditors) opposed the petition. 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 company. He was the only person who appeared to support the petition. He had earlier filed a civil suit against the company which was still pending. After being served 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 into court RM50,000 by way of deposit as security for costs and expenses incidental to this appeal; (iii) that the costs of this application be paid by the respondents in any event. These respondents who were the petitioners in the court below are hereafter referred to as "the petitioners". Another motion was filed by one Pargash Singh and Chee Soo Teng (the proposed interveners) praying that they be 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 contributories of the company in the sense that each held 50 shares in the company. 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 and creditors. On 3 July 1997 Chian Ngook For filed an affidavit exhibiting the resolution 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 motion to intervene first. Raja Aziz, as counsel for the proposed intervener referred us to s. 289 of the

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Companies Act 1965 (the Act) which encourages the court to have regard to the wishes 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 Act and referred to Palmer's Company Law (Twentieth Edn.) at p. 701 . Infraco obtained the order to windup because Wei Giap was unable to pay its debt. Some of the creditors opposing the petition had filed affidavits in the High Court claiming that if Wei Giap was allowed to continue to operate, their chances of recovery would be greater. These creditors had not filed any independent appeal. The only 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 before us are not the same. Raja Aziz said that in addition to the proposed interveners he also represented the opposing contributories and creditors, on whose behalf a submission had been made to the

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[1989] 2 CLJ 176 (Rep)

[1989] 1 CLJ 1091

NATIONAL UNION OF TEACHERS IN INDEPENDENT SCHOOLS, WEST MALAYSIA v. HAN CHIANG HIGH SCHOOL, PENANG HIGH COURT MALAYA, KUALA LUMPUR EUSOFF CHIN J [CIVIL APPEAL NO. R8-16-18-88] 27 JANUARY 1989 |177| JUDGMENT Eusoff Chin J: The appellant in this 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 Industrial Relations Act 1967 (IRA) for 9 questions of law to be referred to the High 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 Industrial Relations Act 1967 (the Act) has no relation to the locus standi of the union when (on its own finding) at least as at the date of the hearing the applicant represented at least 35 of its members in Court. 3. Whether or not the Industrial Court erred in law when it concluded that "... all the teachers who were union members therein had either resigned from the union or had left the school because their contracts were not renewed ..." without evidence being led by the respondent on whether or not there are in fact union members still in the employ of 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 para. 7) "... all the teachers who were union members therein had ... left the school because their contracts were not renewed." When (at para. 5 ) it had held that "... 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 in 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 failing to take into account the undisputed fact and its own finding that at least the thirtyfive teachers whose dismissals were the subject matter of another trade dispute pending adjudication before another division of the Industrial Court were and are members of the applicant at all material times. 6. ... 7. ... |178|

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8. ... 9. ... Before me there was some arguments as to the jurisdiction and powers of the High Court when hearing an appeal under s. 33A of the Industrial Relations Act , i.e. whether the High Court is limited to determine only questions referred 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 Court a question of law: (a) which arose in the course of the proceedings; (b) the 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 determine 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 considers just or necessary. It appears that on the application of any party to the proceedings in which the award is made, the Industrial Court is not bound to refer any question of law to the High Court under s. 33A(1) of the Industrial Relations Act , unless the Industrial Court is satisfied that that question is one which fulfils all the conditions provided in that section. In exercising its power to refer or not to refer a question to the High Court, the Industrial Court will 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 each question referred to the High Court will be treated as a ground of appeal. Under subsection (5) of s. 33A of the Industrial Relations Act , the High Court will 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") and the National Union of Teachers in Independent Schools, West Malaysia (hereinafter referred to as "the union") over their failure to conclude a collective agreement 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 Chinese students who are unable to get admittance into the national type schools. It employed 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 managing committee of his/her acceptance within one week from the date the renewal of the 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 employment. |179|

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Some of the teachers' contracts have been renewed under these terms for more than twenty years. During the year 1985/86, the school had in its employ eighty-three teachers. Sometime in 1985, fifty-three of these teachers joined 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 response to the union's claim for recognition and, on 28 August 1985 the union reported the matter to the Director General of Industrial Relations. By a notice dated 23 August 1986, the Minister of Labour accorded recognition to the union and directed the school to take notice of such recognition under s. 9(5) of the Act . On 21 October 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 decided not to renew the contracts of all the teachers who were members of the union. Each of these teachers received identical notices, as follows: Dear Sir/Madam, As instructed by the board of directors, we would like to inform you that your service agreement with the school will be expired on 31 December 1986. The board of directors would like to take this opportunity to thank you 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, the High Court in Penang granted injunction prayed for by the union. The school then 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 added that the Industrial 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 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 school and the union were then locked in two disputes - one was a dispute over a collective agreement on wages and terms and conditions of employment for the teachers 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 referred 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 teachers was referred to the Industrial Court on, 14 August 1987. In the instant case, the Industrial Court is concerned only with the dispute over the collective agreement. The dispute over the alleged wrongful dismissal of thirty-five teachers is before another division of the Court. At the hearing in the Industrial Court on 27 July 1987 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 that 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 school then relied on the case of Reading&Bates (M) Sdn. Bhd., Miri v. Sarawak Union of Lands |180| & Offshore Drilling Workers [1987] 1 ILR 299 to support its contention. The union, on

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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 company 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 between the company and the union on collective agreement. The Industrial Court here 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 Industrial 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 dispute 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 award in respect of the dispute on 27 February 1988, when the question of locus standi of the union was heard by the 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 the conclusion that the teachers' services had been lawfully terminated. This Industrial Court had no jurisdiction to determine that dispute, because that very dispute had not been referred to it by the Minister, 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 evidence. 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 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 shall 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 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, 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 have 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 with costs, quash the award and make the further order that another division of the Industrial Court shall hear this dispute.

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[1997] 4 CLJ 25
NORDIN YUSMADI YUSOFF v. PUBLIC PROSECUTOR COURT OF APPEAL, KUALA LUMPUR SHAIK DAUD ISMAIL JCA AHMAD FAIRUZ JCA MOKHTAR SIDIN JCA [CRIMINAL APPEAL NO: W-09-60-95] 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 an 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 pleaded 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 Henry Gurney School until he reaches the age of 21 years. Although the learned Sessions Judge did not specifically set out under which provisions of the law she acted, she presumably did so under s. 40 of the Juvenile Courts Act 1947, (hereinafter referred to as 'the Act') . Appellant was accordingly sent to the Henry Gurney 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 dissatisfied with the sentence imposed by the Sessions Court filed a notice of appeal 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 date the appellant had been released from the Henry Gurney School. The learned Judge 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 1995. 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 other sentence, and that s. 40 of the Act has no relevance. The learned Sessions Judge 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 follows: Walaupun apa yang telah dilakukan oleh Tertuduh adalah sesuatu yang serius yang tidak sepatutnya dimaafkan Mahkamah berpendapat hukuman minima jika disabitkan dengan kesalahan merogol iaitu 5 tahun penjara adalah berat bagi Tertuduh. Tertuduh dalam usianya yang muda seharusnya diberi peluang untuk memperbaiki dirinya. Dengan menghantarkannya ke penjara dalam usia yang begitu muda tidak akan mendatangkan apaapa kebaikan kepada Tertuduh malahan akan mendatangkan kemudaratan kepadanya. |31| In view of what she had said above, the learned Sessions Judge 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 appellant detained in the Henry Gurney School until he reaches the age of 21 years.

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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 powers 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 exercised 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 twenty-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 our 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 word juvenile here must mean juvenile as defined in s. 2 of the Act to mean, "a person who has attained the age of seven years and is under the age of eighteen. The 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 us 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 to 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 years 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 appellant was twenty years old when he was charged in the Sessions Court, we are of the 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 prison but in cases where the Court is of the view, after |32| considering all relevant factors pertaining to that particular case, that it would be undesirable to send him to prison and to expose him to hardened criminals, a Sessions Court or 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 youthful 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 learned 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 would 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 sentence, the learned Judge cited the case of PP v. Yap Hut Seng [1985] 2 MLJ 143 , also case of rape committed by a young offender. In that case I had the occasion, as 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 two very young sisters and in the course of committing the rape, violence was used and he also robbed them of their meagre

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jewelleries at knife point. He was convicted on two charges of rape and two charges 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 of 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 to 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 learned 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 , just 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 act 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 ought not to be disturbed. |33| Before leaving this matter, we would like to touch 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 Henry Gurney School and was in fact a free person for a period of ten months. He had, 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 date of the appeal, he may have violated the second limb of art. 7 of the Federal Constitution . Article 7 provides that: (1) No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person 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 effect 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 conviction upon one charge, and the appellant had, therefore, "suffered a greater punishment 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 date of the appeal. For the above reasons, we are of the view that, in the circumstances of this case, the learned Judge sitting in an appellate position ought not to have interfered with the discretion of the learned Session Judge. We allowed the appeal, set aside the sentence of five years imprisonment, and ordered the appellant to be released forthwith.

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[1995] 3 CLJ 279
TAN TEK SENG v. SURUHANJAYA PERKHIDMATAN PENDIDIKAN&ANOR. HIGH COURT MALAYA, JOHOR BAHRU DATO' HJ. ABDUL MALIK BIN HJ. ISHAK J [CIVIL SUIT NO. 22-35-1992] 31 MARCH 1995 |280| JUDGMENT Hj. Abdul Malik bin Hj. Ishak J: The plaintiff was the senior assistant of Sekolah Rendah Jenis Kebangsaan (Cina) Tuan Poon, Simpang Rengam (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 plaintiff wrongly as the headmaster of Sekolah Rendah Jenis Kebangsaan Cina, Kangkar Baru, Yong Peng). He was arrested by the Anti Corruption Agency and charged with two counts of criminal breach of trust by public servant under s. 409 of the Penal Code at the Sessions Court, Muar, Johor and as a result of which he was interdicted 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 or on both counts) and sentenced him to six (6) months' imprisonment. The plaintiff lodged an appeal and the High Court, Muar, Johor heard the appeal on 6 December 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 conditionally upon his entering into a bond to be of good behaviour for a period of 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 recommended that the plaintiff be reduced in rank (demoted) with the consequential downgrading of his salary scheme. That letter is produced below for ease of reference: |281| Jabatan Pendidikan Negeri Johor, Jalan Tun Abdul Razak, 80604 Johor Bahru, Johor. Sulit Ruj. Tuan: SPP.z. 60/1/12-43138/(30) Ruj. Kami: JPNJ/FP.SULIT.68254/(95) Tarikh: 10 April 1990 Setiausaha, Suruhanjaya Perkhidmatan Pendidikan, Tingkat 21.32 dan 33, Bangunan Menara Dato' Onn, Pusat Dagangan Dunia Putra, 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 Perkhidmatan Pendidikan Kategori Bl (Di tempatkan Khas untuk penyandang atas Tanggagaji Guru Besar, Sekolah Rendah Gred 'B'/Penolong Kanan, Sekolah Rendah Gred 'A' Pegawai Perkhidmatan Pendidikan Kat. C2, Tingkatan Khas.) Adalah saya dengan hormatnya 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 rayuan oleh Encik Tan Chee Meng @ Tan Tek Seng di Mahkamah Tinggi, Muar pada 1 April 1990 didapati bahawa Mahkamah Tinggi telah

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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 1990 dibawah Seksyen 173A(2)(b) Kanun Keseksaan dengan ikatan bon berjumlah RM5,000 tanpa penjamin. Bersama-sama ini disertakan satu salinan fotostat Perintah Mahkamah daripada Penolong Kanan Pendaftar, Mahkamah Tinggi Muar Cr. Appeal No. 52-2-88 bertarikh 3 April 1990 untuk tatapan dan tindakan tuan selanjutnya. Syor Pengarah Pendidikan Johor. Memandangkan pegawai tersebut telah dilepaskan oleh Mahkamah dengan bersyarat supaya berkelakuan baik selama 3 tahun mulai dari 1 April 1990 dan dengan ikatan bon sebanyak RM5,000 tanpa penjamin, Jabatan ini berpendapat bahawa pegawai tersebut disifatkan sebagai berkelakuan yang telah menjatuhkan 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 kenaikan 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 Rendah Gred 'A' Pegawai Perkhidmatan Pendidikan Kategori C2 Tingkatan Khas maka Jabatan ini mengesyorkan supaya Encik Tan Chee Meng @ Tan Tek Seng diturunkan pangkat dan gajinya dari jawatan Penolong Kanan Sekolah Rendah Gred 'A' Pegawai Perkhidmatan Pendidikan Kategori C2 Tingkatan Khas (khas untuk Penyandang) ke jawatan Guru Biasa Pegawai Perkhidmatan Pendidikan Kategori Bl Tingkatan Biasa. |282| Sekian, terima kasih. 'Berkhidmat Untuk Negara' Saya yang menurut perintah, Sdg. (Haji Mahfor bin Baba) Pengarah Pendidikan Johor. s.k. Ketua Setiausaha, Kementerian 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 Timbul. 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 worded in the following terms: Urusetia. Suruhanjaya Perkhidmatan Pendidikan, (Education Service Commission), Tingkat 21. 32 dan 33, Bangunan Menara Dato' Onn, Pusat Dagangan Dunia Putra, Jalan Tun Ismail, 50526 Kuala Lumpur. Ruj. Tuan: Ruj. Kami: SPP.Z. 60/1/12-43138/(43) Tarikh : 8 Mei 1990 Encik Tan Chee Meng @ Tan Teck Seng, Melalui dan Salinan:

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Pengarah Pendidikan, Jabatan Pendidikan Johor, 80604 Johor Bahru. Tuan, Tindakan Tatatertib Saya diarah menyatakan iaitu Suruhanjaya Perkhidmatan Pendidikan selaku Pihakberkuasa Tatatertib bagi pegawai-pegawai dalam Perkhidmatan Pendidikan telah menerima laporan dari Ketua Jabatan tuan bahawa tuan sebagai seorang pegawai yang berjawatan Pegawai Perkhidmatan Pendidikan Kategori C2 Tingkatan Khas (Khas Untuk Penyandang) yang bertugas sebagai |283| Penolong Kanan di Sekolah Rendah 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 boleh dihukum di bawah Seksyen 409 Kanun Keseksaan . Mahkamah Sesyen Muar, Johor pada 2 Julai 1988 telah memutuskan tuan disabitkan bersalah dan dijatuhkan hukuman penjara selama 6 bulan. 2. Tuan telah mengemukakan rayuan ke Mahkamah Tinggi Muar, Johor dan Mahkamah tersebut pada 1 April 1990 telah mengenepikan hukuman penjara 6 bulan yang telah dijatuhkan oleh Mahkamah Sesyen Muar, Johor ke atas tuan dan Mahkamah Tinggi tersebut memutuskan tuan dikenakan ikat jamin berkelakuan baik selama tempoh 3 tahun mulai 1 April 1990 di bawah s. 173A(2)(b) Kanun Keseksaan dengan bon jaminan sebanyak RM5,000 tanpa penjamin. Dengan sabitan tersebut, tuan telah menjatuhkan reputasi Perkhidmatan Awam iaitu kesalahan di bawah Perintah 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 hukuman tatatertib buang kerja berkuatkuasa mulai 7 May 1990. Sekian. Saya yang menurut perintah, Sdg. (Dato' Shahbudin bin Imam Mohamad) Setiausaha, Suruhanjaya Perkhidmatan Pendidikan, Malaysia, The plaintiff wasted no time and wrote a letter of appeal dated 18 May 1990 to the Setiausaha, Suruhanjaya Perkhidmatan Pendidikan Malaysia imploring that the punishment in the form of dismissal be reviewed and substituted with a lesser punishment stressing particularly that the High Court, 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.

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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 saya telah dikenakan hukuman tatatertib buang kerja. Dengan ini saya ingin memohon jasa baik tuan merayu terhadap hukuman itu supaya ianya dapat diringankan berdasarkan 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 dibebaskan dengan bersyarat dan diikat jamin supaya berkelakuan baik selama tempoh tiga 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 hampir keseluruhan umur dewasa saya telah ditumpukan sepenuhnya untuk kepentingan negara. 2.4. Saya sekarang berumur 52 tahun, sudah tua, kurang tenaga dan tiada berpeluang lagi untuk mendapatkan kerja lain jika perkhidmatan saya ini ditamatkan. 2.5. Saya masih mempunyai tanggongan yang berat dan menanggong anak-anak bersekolah, seorang bapa yang sudah uzur yang tinggal bersama dan lebih-lebih mempunyai isteri yang tidak bekerja. Segala simpanan wang yang ada telah kehabisan kerana 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 depan keluarga saya kecuali perkhidmatan saya dengan kerajaan. 2.9. Saya juga tidak 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 Suruhanjaya akan menimbangkan semula kes saya ini dan demi untuk mendapatkan semula kes saya ini dan demi untuk mendapatkan pertimbangan peri kemanusian berilah peluang kepada saya untuk bernafas sebelum mengakhiri Hayat saya dengan meringankan sedikit hukuman yang telah dikenakan itu. Saya penuh berharap moga-moga pertimbangan 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 penuh harapan, Saya, yang benar Sdg. Tan Chee Meng

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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 followed by a short letter of reply from the Setiausaha, Suruhanjaya Perkhidmatan Pendidikan confirming that the dismissal was final and this letter is reproduced below for scrutiny: Urusetia, Suruhanjaya Perkhidmatan Pendidikan, (Education Service Commission), Tingkat 21.32 dan 33, Bangunan Menara Dato' Onn, Pusat Dagangan Dunia 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 merujuk kepada surat tuan bertarikh 18 Mei 1990 dan dimaklumkan bahawa keputusan Suruhanjaya ini yang disampaikan melalui surat dalam kandungan SPP.Z.60/1/1243138/(43) bertarikh 8 Mei 1990 adalah muktamad. Sekian. Saya Yang Menurut perintah, Sdg. (Haji Othman bin Haji Ismail) b.p. Setiausaha, Suruhanjaya Perkhidmatan Pendidikan, Malaysia. S.k.: Ketua Setiausaha, Kementerian Pendidikan Malaysia, Unit Tatatertib, Paras 6, Blok 'J', Pusat Bandar Damansara, 50604 Kuala Lumpur. Pengarah 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 under 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') General Orders 1980 ("GO") and, if the reply was in the positive, the dismissal was said to be perfectly legitimate and effected according to law. The word "conviction" 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 provisions of sub-section (ii)(b) of s. 173A of the CPC which are pertinent to the 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 Court 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 charged, or to the

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trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other 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 order either: (b) discharging the offender conditionally on his entering into a bond with or without sureties, to be of good behaviour and to appear for the conviction to be recorded and for sentence when called upon at any time during such period, 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 conveniently 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 record the conviction; (d) and consideration has to be given to the character, antecedents, age, health, mental condition of the offender, the trivial nature of the offence, and any extenuating circumstances of the offence; (e) Where it is inexpedient 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. 173A 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 prescribed punishment and it is to be observed that where it is proposed to exercise 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 power is to be exercised the Court shall not proceed to conviction. On the same page, 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 offender 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. Abdoolcader 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 of s. 294 and s. 173A of the Code is that the latter is normally intended to be utilised in cases of minor import and calling for exceptionally mild treatment affecting adult and youthful offenders alike where the nature of the offence, the extenuating circumstances of the case and factors peculiar to the offender in question justify and perhaps even require that no conviction be recorded against him, so that although he is either admonished or cautioned or discharged

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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 authorities cited above that a binding over under s. 173A(ii)(b) of the CPC does not carry with it the stigma of being a criminal. But all the same the Court in proceeding to award the binding over under s. 173A(ii)(b) of the CPC must first find that the charge is proved. It is this point that has been seriously canvassed before me by Encik Abdul Rashid bin Haji Daud, the learned Senior Federal Counsel for 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) of the CPC means that the plaintiff was found guilty by the High Court, Muar, Johor. Indeed that was an illuminating submission. Now, s. 173A(ii)(b) of the CPC envisages 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 before the Court proceeds to sentencing, the offender's background particularly "the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed" will have to be taken into account singularly 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 exceeding three years with or without sureties. It is within this period not exceeding three years that the offender must behave himself otherwise he would be called upon at any time for the conviction to be recorded and for sentencing forthwith. Paragraph 3 of the GO defines "conviction" to include "a finding or an order 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 there must also be a concurrent finding of guilt. This must surely be the interpretation 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 conditionally. I am reminded, at this juncture, of what Viscount Simonds said in Kirkness v. John Hudson&Co. Ltd. [1955] AC 696 , at p. 712 to the effect that if a Judge '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 understood 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 simple 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 doubt as to whether the word does or does not include specified matters. As Viscount Dilhorne said: It is a familiar device of a draftsman to state expressly that certain matters are to be treated as coming within a definition to avoid argument 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 that 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 Magistrate's Court, Kajang for an offence under s. 353 of the Penal Code for which he

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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. 31209. On 20 December 1971, Mr. S.W. Moreira, Deputy Chief Police Officer, Selangor in his letter addressed to and served upon the plaintiff, suspended the plaintiff's service with effect from 16 December 1971 the date the plaintiff was found guilty in the Magistrate's Court at Kajang. Mr. Moreira who wrote for and on behalf of the Chief Police Officer, Selangor stated that as the plaintiff was found 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 good behaviour for two years under s. 173A of the CPC , he (plaintiff) was therefore suspended from duties without pay with effect from 16 December 1971. At the time the plaintiff was suspended from service he was on the permanent and pensionable establishment drawing a salary of RM230 per month with RM10 increment per annum 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 notice signed by the Chief Police Officer, Selangor. The plaintiff submitted representations but he was dismissed without being given an oral hearing. The plaintiff then brought an action for a declaration that his dismissal was void and inoperative on the ground that as the Chief Police Officer had no power to appoint constables, 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 proviso that cl. (1) of Art. 135 shall not apply to a case where a member of the public services was dismissed or reduced in rank by an authority in pursuance of a power 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". The Government of Malaysia appealed to the Federal Court and the Federal Court held that the proviso operated to validate the plaintiff's dismissal [1977] 2 MLJ 254 . The plaintiff appealed from that decision. The Privy Council [1979] 2 MLJ 276 in dismissing the appeal and affirming the Federal Court's decision held, inter alia, that the Legislature clearly intended to give retrospective effect to the amendment and to secure that no action started after Merdeka Day, whether proceeding 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 Federal 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 pleaded guilty under s. 353 of the Penal Code in his capacity as a police constable and was discharged conditionally upon his entering into a bond in the sum of RM500 for a period of two years under s. 173A(ii)(b) of the CPC . Here, the plaintiff was charged on two counts under s. 409 of the Penal Code before the Sessions 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 Haniff bin Omar&Anor . (supra), the dismissal notice signed by the Chief Police Officer, Selangor to the plaintiff was in the following terms:

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I am hereby directed to inform you that I intend to take an action to dismiss you 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 execute 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 days with effect from the date of receipt of this letter. Your representation should be in writing addressed to me. Sgd. Mohd. Haniff bin Omar, Chief Police Officer, 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 the words employed by the State Education Director of Johor in the letter dated 10 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 impression, rightly so, that the plaintiffs in both these cases were convicted accordingly. Of pertinence and what Encik T. Balaskanda for the plaintiff submitted was his exception to the use of words "Dengan sabitan tersebut ..." in reference to the binding over under s. 173A(ii)(b) of the CPC in the letter of the Setiausaha, 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 clearly wrong because the facts were misinterpreted. It appears and it is the basis of 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 under paras. 33 and 35 of the GO . It is also his case that the order of the High Court, Muar, Johor creates a situation whereby para. 4(2)(d) of the GO can be invoked. |290| For ease of reference, paras. 33 and 35 of the GO are reproduced below: Procedure in 33 . Where criminal proceedings against an officer result in his 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 submit the same to the Appropriate Disciplinary Authority together with full particulars of the officer's past record of service and recommendation of the Head of Department as to whether the officer should be dismissed from the service or otherwise 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) Notwithstanding 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 Disciplinary 34(1) , the Appropriate Disciplinary Authority is of the opinion that the officer Authority merits dismissal or reduction in rank, it may forthwith direct accordingly, or if in cases it is of the opinion that the officer should be inflicted with a lesser punishment of conviction, or otherwise dealt with, the Disciplinary Authority may forthwith inflict upon detention etc. the officer such lesser punishment or deal with him in such manner as it may deem fit.

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(2) If as a result of the lesser punishment the officer is not dismissed, the question of his emoluments during the period of his suspension shall be at the discretion 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 the 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 tantamount to a finding of guilt but the Court would not be inclined to record a conviction before binding over the plaintiff conditionally thereto. And since there was a finding of guilt, it would squarely fall within the ambit of the definition of word "conviction" in para. 3 of the GO and, consequently, the Setiausaha, Suruhanjaya Perkhidmatan Pendidikan, Malaysia was correct when he decided to dismiss the plaintiff. The dismissal against the plaintiff was part and parcel of the 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 Haniff 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. 173A(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. Mohamed Haniff bin Omar&Anor . (supra), yet Viscount Dilhorne in his judgment set out the facts in this manner: The appellant was appointed a police constable in the 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 guilty and he was discharged conditionally upon his entering into a bond in the sum 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 December 1971, the date of which he had pleaded guilty, on account of his conviction on that charge. |291| On 28 December 1971 the Chief Police Officer at Selangor wrote to the appellant saying that he intended to take action to dismiss the appellant from the Royal Malaysian Police on account of his conviction and telling him that he could make any representations with regard thereto in writing within fourteen days. The use of the words "on account of his conviction on that charge" by Viscount Dilhorne to describe the plaintiff/appellant there who was bound over under s. 173A(ii)(b) of the CPC was intentional and reflective that before a binding over under that section was imposed the individual must have been found guilty and convicted thereof. Likewise, in the instant case, the plaintiff must 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 "conviction" 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 the 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 tantamount to the plaintiff conducting "himself in such manner as to bring the public service 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.

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It is germane to mention that the words underlined in para. (a) of cl. (2) of Art. 135 of the Federal Constitution and reproduced below: No member of such service as aforesaid shall be dismissed or reduced in rank without being given a reasonable 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 reduced in rank on the ground of conduct in respect of which a criminal charge has been 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 being given a reasonable opportunity of being heard" does not arise. This is also the case for the dismissal of the plaintiff in the instant case when the Setiausaha, 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 supreme law of the country to dismiss a member of the public service "on the ground 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 the plaintiff can be dismissed "on the ground of conduct" or by conducting "himself in such manner as to bring the public service into disrepute or to bring discredit thereto." For the reasons adumbrated above, the question posed would be answered in the positive and, consequently, the dismissal of the plaintiff was perfectly legitimate and effected according to law.

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[2000] 1 CLJ 393
MEOR ATIQULRAHMAN ISHAK&YANG LAIN lwn. FATIMAH SIHI&YANG LAIN MAHKAMAH TINGGI MALAYA, 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 beradik berusia sembilan tahun dan lapan tahun, bekas penuntut darjah tiga dan darjah dua di Sekolah Kebangsaan Serting Hilir (FELDA) Bandar Baru Serting, Negeri Sembilan. Plaintif 1 sepupu mereka dan belajar di darjah lima. Mereka mengambil tindakan undangundang ini melalui bapa/bapa saudara mereka. Defendan 1 ialah Gurubesar 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 kepala, ditumbuk dan diaibkan oleh Gurubesar perempuan sekolah itu. Akhirnya mereka dibuang sekolah kerana degil memakai serban bertentangan dengan peraturan pakaian seragam sekolah. Pelantar tindakan ini ialah: mereka dibuang sekolah bertentangan dengan kebebasan berugama, larangan membezabezakan kerana ugama, kaum, keturunan dan tempat lahir; mereka dibuang sekolah tanpa diberi peluang untuk didengar yang bertentangan dengan prinsip keadilan semulajadi dan dengan demikian dinafikan peluang untuk merayu; mereka dibuang sekolah kerana didorong oleh niat jahat/mala fide tanpa menimbangkan hukuman yang lebih ringan seperti menggantung sekolah; mereka dibuang sekolah atas dua perintah yang dikeluarkan, pertama oleh Jawatankuasa Persatuan Ibubapa Guru Sekolah dan kedua oleh Gurubesar. Oleh yang demikian, plaintif-plaintif memohon perintah mahkamah supaya mengisytiharkan pembuangan sekolah itu tidak sah, terbatal dan tidak berkesan dan mereka hendaklah diterima semula belajar di sekolah itu. Defendan-defendan dalam pembelaannya menegaskan bahawa plaintif-plaintif dengan memakai serban di sekolah telah melanggar peraturan 3(f), (v) Peraturan Sekolah 1997 dan sebagai Gurubesar yang bertanggungjawab ke atas keseluruhan disiplin sekolah beliau telah bertindak membuang mereka dari sekolah selaras dengan kuasa yang diberi oleh undangundang. Mereka telah diberi peluang secukupnya untuk didengar walaupun tiada prosiding dijalankan yang memerlukan plaintif-plaintif diberi hak untuk didengar. Kes ini menonjolkan persoalan sama ada seorang pelajar sekolah yang memakai serban di samping memakai pakaian seragam sekolah boleh dibuang sekolah kerana memakai serban. |398| Gurubesar dikatakan telah membuang sekolah pelajar itu menurut kuasa undang-undang yang diberi kepadanya di bawah Peraturan Sekolah 1997, Sekolah Kebangsaan Serting (FELDA) Bandar Baru Serting. Peraturan Sekolah 1997 ini telah disediakan oleh Gurubesar menurut Surat Pekeliling Ikhtisas Bil. 9/1975, Kementerian Pelajaran yang antara lain menghendaki:

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4. Peraturan-peraturan Sekolah (School Rules) yang Bertulis untuk Murid-Murid: Tindakan oleh tiap-tiap Sekolah. Lampiran C. Setiap sekolah hendaklah mempunyai peraturan-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 bilik guru dan juga di papan kenyataan sekolah. ... Gurubesar hendaklah meneliti semula dan membaharui peraturan sekolah mereka dan untuk panduan mereka itu senarai perkara-perkara yang patut ditimbangkan mengikut keadaan sekolah adalah disertakan dalam Lampiran C. Gurubesar boleh juga menimbangkan perkaraperkara lain yang tidak ada dalam Senarai itu mengikut keadaan sekolah masing-masing. Peraturan Sekolah 1997, Sekolah Kebangsaan Serting (FELDA) yang disediakan oleh Gurubesar itu antara lain memperuntukkan: 3. Pakaian a. Semua murid diwajibkan memakai pakaian seragam sekolah dengan lengkap dan kemas. b. ... c. seluar panjang bagi murid 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 kaki putih dan samping warna biru gelap. (ii) ... g. Murid perempuan (i) Baju kurung putih, tudung putih, kasut putih dan sarung kaki putih. (ii) ... |399| i. Larangan pakaian (i) Semua murid dilarang memakai jubah, turban (serban), topi, ketayap dan purdah. (ii) ... Peraturan Sekolah 1997 ini dipetik dari Pakaian Seragam Murid-Murid Sekolah Surat Pekeliling Ikhtisas Bil. 3/1983 yang menyatakan: 2. Peraturan pakaian seragam murid-murid sekolah adalah seperti berikut: 2.1 Sekolah Rendah 2.1.1 Pakaian Murid-Murid Lelaki Seluar (i) Seluar bagi murid-murid lelaki 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 'pinafore tunic' berwama biru tua (navy blue) dan labuhnya hendaklah sampai ke lutut. Baju Kurung dan Kain Sarung

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Murid-murid perempuan boleh juga memakai baju kurung sekiranya dikehendaki oleh ibu bapa/penjaga mereka dengan syarat baju kurung itu berwarna putih dan kain sarung berwarna biru tua. 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 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 Tingkat Enam) adalah seluar pendek atau seluar panjang sekiranya dikehendaki oleh mereka 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 Perempuan Pinafore Tunic Pinafore tunic adalah berwarna torquoise dan labuhnya hendaklah 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. Labuh skirt hendaklah sampai ke paras lutut. Baju Kurung dan Kain Sarung Murid-murid perempuan Sekolah Menengah juga dibenarkan memakai baju kurung berwarna putih 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 dengan muridmurid yang memakainya. Surat Pekeliling ini dikeluarkan oleh Bahagian Sekolah-Sekolah b.p. Ketua Setiausaha Kementerian Pelajaran Malaysia. Peraturan pakaian seragam sekolah dipaparkan dengan tujuan untuk menyelam alir pemikiran, kefahaman dan halatujuan pembuat dasar di Kementerian Pendidikan mengenai Perlembagaan Persekutuan dan status ugama Islam di Negara ini. Ulasan pertama saya mengenai Peraturan Pakaian Seragam Sekolah ini ialah peruntukan pakaian seluar pendek bagi murid lelaki dan pakaian pinafore tunic bagi murid perempuan di Sekolah Menengah adalah membelakangkan ugama Islam di mana yang dahulu dikemudiankan dan yang kemudian didahulukan dan tidak selari dengan Perlembagaan Persekutuan. Murid lelaki dikehendaki memakai seluar pendek tetapi diberi pilihan memakai seluar panjang. Murid perempuan pula dikehendaki memakai pinafore tunic dan blouse (skirt bagi Tingkatan VI) tetapi diberi pilihan memakai baju kurung dan kain sarung atau tudung/mini telekung. Sepatutnya pakaian murid lelaki ialah seluar panjang dengan memberi pilihan memakai seluar pendek dan pakaian murid perempuan |401| ialah baju kurung, kain sarung dan tudung/telekung dengan memberi pilihan memakai pinafore tunic dan blouse atau

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skirt. Dengan cara sedemikian peraturan pakaian seragam ini akan selari dengan Perkara 3 Perlembagaan Persekutuan yang berbunyi: Islam ialah ugama bagi Persekutuan; tetapi ugama-ugama lain boleh diamalkan dengan aman dan damai di mana-mana bahagian Persekutuan. Soalan: Apakah makna 'Islam' dan 'ugama' dalam Perlembagaan ini? Islam sebagai ad-deen merangkumi keseluruhan aktiviti kehidupan manusia dari 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 Injil. Islam ugama sejagat yang boleh diterima oleh semua ugama lain. Menurut S. Abdul 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, moral or judicial." Menurut The Holy Quran New Revised Edition n. 434 p. 155 by Abdullah Yusuf Ali: Islam is not sectarian, non racial, non doctrinal and is a universal 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 menurut Kamus Dewan ed. 3 ialah "kepercayaan pada Tuhan dan sifat-sifat serta kekuasaan Tuhan dan penerimaan ajaran dan perintahnya, kepercayaan pada Yang Maha Kuasa: ugama Islam, ugama Kristian". Ugama/religion menurut Concise Oxford Dictionary 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 Perlembagaan India untuk mencari makna 'ugama' yang sepatutnya lebih tepat dan relevan jika saya rujuk kepada Perlembagaan Pakistan yang tiada dalam Perpustakaan Mahkamah. |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 Buddhism 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 for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extent even to matters of food and dress - Constitution 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 Persekutuan tetapi ugama-ugama lain boleh diamalkan dengan aman dan damai" bermakna Islam adalah ugama utama di antara ugamaugama lain yang dianuti di negara ini seperti Kristian, Buddha, Hindu dan selainnya. Islam bukan setaraf dengan ugama lain, bukan duduk berganding bahu atau berdiri sama tegak. Ia duduk di atas, ia berjalan dahulu, terletak di tempat medan dan suaranya lantang kedengaran.

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Islam ibarat pokok jati - tinggi, teguh dan terampil. Jika bukan sedemikian Islam bukanlah ugama bagi Persekutuan tetapi adalah salah satu di antara beberapa ugama yang dianuti di negara ini dan setiap orang sama-sama bebas mengamalkan manamana ugama yang dianutinya, tiada lebih satu dari yang lain. Peruntukan 'Islam ialah ugama bagi Persekutuan' hendaklah ditakrif dan ditinjau tujuannya dengan membaca bersama peruntukan lain dalam Perlembagaan khususnya Perkara 89, 152, 153 dan 14. Perkara 89 memelihara tanah rezab orang Melayu terus menerus kekal sebagai rezab orang Melayu melainkan dipinda oleh undang-undang yang diluluskan dengan kelebihan undi 2/3. Perkara 152 menetapkan bahasa kebangsaan ialah Bahasa Melayu dengan syarat tiada larangan menggunakan bahasa lain. Perkara 153 memelihara kedudukan istimewa orang Melayu dan bumiputra di Sabah dan Sarawak. Perkara 14 menetapkan perolehan kewarganegaraan berdasarkan kepada ciri kelahiran di negara ini asalkan ibu atau bapanya pemastautin tetap atau pada masa kelahirannya ia tidak menjadi warganegara mana-mana negara lain. Perkara 89,152 dan 153 memberi keistimewaan kepada orang Melayu dan bumiputra manakala Perkara 14 memberi keistimewaan kepada orang bukan Melayu. |403| Saya jejak kata-kata bijaksana YAA Raja Azlan Shah Ag LP dalam kes Dato' Menteri Osman bin Baginda&Anor v. Dato' Ombi Syed Alwi bin Syed Idrus [1984] 1 CLJ 28; [1981] 1 MLJ 29: In interpreting the Constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a Constitution being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way - "with less rigidity and more generosity than other Acts" (see Minister of Home Affairs v. Fisher)". Saya sedia maklum dan terikat menerima stare decisis keputusan kes Hjh. Halimatussaadiah bte Hj. Kamaruddin v. Public Services Commission Malaysia and Anor [1994] 3 CLJ 532; [1994] 3 MLJ 61. Dalam kes itu plaintif, seorang kerani di pejabat Penasihat Undang-Undang Negeri Perak memakai purdah di waktu pejabat yang dilarang memakainya menurut Surat Pekeliling yang berbunyi: "apa-apa pakaian yang menutup muka tidak boleh dipakai semasa bekerja." Plaintif diberi notis tunjuk sebab dan beliau menjawab menurut surah 24 Quran seorang perempuan Muslim wajib menutup mukanya kecuali mata dan beliau memakai purdah untuk mengelakkan fitnah dan beliau berhak menganuti 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-undang am berkaitan dengan ketenteraman awam, kesihatan awam, atau kemoralan. Larangan terhadap seseorang pegawai awam wanita untuk memakai pakaian yang menutup mukanya semasa bekerja tidak menjejaskan hak perlembagaan perayu untuk mengamalkan ugamanya. Pemakaian purdah tidak kena mengena dengan hak perlembagaan Perayu untuk menganuti dan mengamalkan ugama Islam.

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Hakim bicara menerima pendapat Mufti Wilayah Persekutuan bahawa Islam tidak melarang perempuan Muslim memakai purdah dan Islam tidak pula mewajibkannya memakai purdah, seterusnya hakim bicara berkata tiada apaapa yang menyalahi undang-undang dalam membuat syarat tentang pakaian yang harus dipakai oleh pegawai Kerajaan semasa bekerja demi tatatertib perkhidmatan asalkan syarat itu tidak bertentangan dengan ketenteraman awam, akhlak atau kesihatan. Saya juga sedia maklum dan terikat menerima keputusan kes Che Omar bin Che Soh v. PP [1988] 2 MLJ 55 yang memutuskan: the term 'Islam' or 'Islamic religion' in Article 3 of the Federal Constitution 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 (Increased Penalties) Act 1971 - yang bukannya hudud atau qiisas menurut ugama Islam - bertentangan dengan "Islam ialah ugama bagi Persekutuan" dan kerananya hukuman 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 sustain the submission that punishment of death for the offence of drug trafficking or any other offence, will be void as being unconstitutional." Dengan segala hormatnya kes memakai purdah berbeza dengan kes memakai serban. Seorang yang memakai purdah yang memperlihatkan kedua matanya sahaja seperti dalam kes Hjh. Halimatussaadiah tidak dapat dicam atau dikenalpasti, sifulan atau sifulan, lelaki atau perempuan. Seorang yang memakai serban boleh dicam. Seorang yang memakai purdah sedemikian boleh menjejaskan keselamatan awam tetapi tidak bagi seorang yang memakai serban. Saya percaya itulah yang dimaksudkan dengan "kebebasan ugama tidak mutlak kerana perkara 11(5) Perlembagaan tidak membenarkan sebarang tindakan yang bertentangan dengan ketenteraan awam, kesihatan awam atau moral" yang terkandung dalam penghakiman kes itu. Dengan hormatnya fakta kes dalam kes hukuman mati 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 undangundang sibil tapi tak sah di sisi undang-undang syarak, maka hukuman itu sah menurut Perlembagaan. Tetapi di sini memakai serban adalah sah di sisi hukum syarak dan tidak pula taksah di sisi undang-undang sibil bagi orang Muslim maupun bagi 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 "with less rigidity and more generosity than other Acts" dan sesuai pula dengan kata dua petikan YAA Tun Salleh Abbas sendiri yang berkata "kalau Islam bermakna rituals and ceremonies" maka ada kes tetapi jika Islam bermakna an all-embracing concept maka tiada kes. Pendapat saya bukan bersifat menyangkal, saya sekadar memperlihatkan pandangan dari sudut dan kacamata lain yang kehijauan. Sebenarnya ruang itu terbuka sebagaimana ditanya: |405|

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Q. What DOES "Islam is the religion of the Federation" mean in Article 3(1) of the 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). Sekarang saya ingin menyahut soalan itu dan menjawab: A: Mungkin kes ini, apabila muktamad nanti. Perlembagaan dalam kontek memberi keistimewaan kepada orang Melayu dan Raja-Raja Melayu dan sebagai quid pro quo telah mendaulatkan Islam menjadi ugama Persekutuan dan memertabatkan Bahasa Melayu menjadi bahasa kebangsaan. Bahasa Melayu bukan Bahasa Malaysia dan bukan juga Bahasa Kebangsaan (sebagai katanama khas) atau bahasa rasmi. Pada nada yang sama Islam bukan ugama rasmi Persekutuan sepertimana Bahasa Melayu bukan bahasa rasmi Persekutuan. Pada pengertian saya Islam sebagai ugama rasmi dengan menambah "rasmi" kepada 'ugama' akan menyempitkan keluasan dan kesejagatan/universaliti Islam kepada perbuatan rituals and ceremonies 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 mengiktiraf 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 sebahagian dan hilang sebahagian. Saya menjejak pandangan Lord Denning pada mentafsir Perlembagaan "to ascertain for ourselves what purpose the founding fathers of our Constitution had in mind when our Constitutioual laws were drafted and not, in accordance with the usual practice base our interpretative function on the printed letters of the legislation alone." Perlembagaan Persekutuan adalah hasil adunan cendikiawan dan pakar undang-undang dari England, Australia, India dan Pakistan. Mereka menyediakan laporan yang diberi nama Laporan Reid Commission dan laporan ini adalah pandangan mereka setelah mendengar perbincangan, persetujuan dan pertelingkahan antara Kerajaan British, Raja- Raja Melayu dan Parti Perikatan Malaya. Laporan itu berkata: We have considered the question whether there should be any statement in the Constitution to the effect that Islam should be the State religion. There was universal agreement that if any such provisions were inserted 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 shall not impose any disability on non Muslim nationals professing and practising their 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 position in the States with regard to recognition of Islam. Raja-Raja Melayu menuntut supaya dimasukkan peruntukan "The Muslim or Islamic faith be the established religion of the Federation" suatu tuntutan untuk mengiktiraf kedaulatan Islam, pada masa dahulu, ketika itu dan akan datang. Perlembagaan Persekutuan didasarkan kepada Laporan ini dan digubal seperti yang sedia ada. Peruntukan Perkara 3 mempunyai makna:

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1. Islam ialah ugama bagi Malaysia yang terdiri dan kaum Melayu yang berugama Islam, Cina, India dan selainnya yang berugama Buddha, Hindu, Kristian dan selainnya. 2. Malaysia ialah negara sekular, iaitu mengamalkan undang-undang sibil dan common law yang mengatasi hukum syarak tetapi tidaklah menjadi tak sah setiap undang-undang yang selari dengan hukum Syarak jika ia tidak bertentangan dengan Perlembagaan. 3. Malaysia boleh melaksanakan hukum Syarak terhadap orang Islam yang tidak bertentangan dengan Perlembagaan. 4. Malaysia tidak boleh melaksanakan hukum Syarak terhadap orang bukan Islam. Deraf Perlembagaan itu tidak menyebut tentang Islam walaupun Raja-Raja Melayu adalah ketua ugama dan ketua adat di Negeri masing-masing. Negeri Kedah melaksanakan hukum syarak ke atas orang Islam secara berdaulat dan mutlak sebelum dijajah tetapi kemudiannya disekat kepada perkara mengenai undang-undang keluarga, hartanah dan pewarisan. Saya percaya Negeri Melayu 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 Islam as a complete way of life. Saya tidak berfikir begitu. Peruntukan Islam sebagai ugama Persekutuan hendaklah diberi tafsiran yang sewajarnya. Ia bermakna Kerajaan bertanggungjawab memelihara menyemarak dan mengembangkan Islam sepertimana yang termampu dilakukan oleh Kerajaan sekarang seperti mendirikan masjid dan pusat dakwah, menganjurkan musabaqah al Quran, menghafal al Quran, menyekat perbuatan mungkar seperti mengharamkan minuman keras, perjudian, pelacuran dan menyekat budaya |407| kuning dan sepatutnya termasuk membuat undang-undang bagi menjamin rumah-rumah ibadat ugama-ugama lain tidak melebihi atau bersaing dengan Masjid Negara/Negeri dari segi lokasi dan keterampilan, saiz dan bentuk yang keterlaluan, ataupun terlalu banyak dan di merata-rata tempat yang takterkawal. Ugama-ugama lain hendaklah diatur-suai dan dihalatuju ke arah yang menjamin supaya ia diamalkan dengan aman dan damai dan tidak menggugat kedudukan utama ugama Islam bukan saja pada zaman ini tetapi yang lebih penting untuk zaman akan datang dan berterusan. Saya khuatir pembuat dasar di Kementerian Pendidikan kurang cermat pada menetapkan pakaian seluar pendek bagi murid lelaki di Sekolah Menengah dan pakaian pinafore tunic dan blouse atau skirt bagi murid perempuan di Sekolah Menengah. Saya percaya penganut ugama Kristian dan ugama lain tidak membantah pakaian sempurna bagi murid sekolah dan pakaian seluar panjang dan pakaian kain dan baju kurung adalah pakaian yang sempurna dan sesuai. Mereka walau bagaimanapun di beri pilihan. Islam menetapkan pakaian bagi orang Muslim sebagaimana firman Allah dalam Surah Al A'Raaf ayat 26: 26. Hai anak Adam, sesungguhnya kami telah menurunkan kepadamu pakaian untuk menutup auratmu dan pakaian indah untuk perhiasan. Dan pakaian takwa itulah yang paling baik. Yang demikian itu adalah sebahagian dari tanda-tanda kekuasaan Allah, mudahmudahan mereka selalu ingat. dan hadis Rasulallah yang berbunyi: Seorang lelaki tidak boleh memandang aurat lelaki dan seorang perempuan tidak boleh memandang aurat perempuan. Aurat ialah bahagian tertentu pada tubuh manusia yang wajib ditutup atau wajib dilindungi dari pandangan orang ajnabi. Bagi lelaki, jika ia sudah akil baligh auratnya ialah bahagian di antara pusat dan lutut sebagaimana sabda Rasulallah:

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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 dan perempuan wajib memelihara auratnya dengan sempurna lebih dari apa yang diwajibkan ke atas lelaki sebagaimana sabda Rasulallah: Tidak halal bagi perempuan yang beriman dengan Allah dan hari akhirat mendedahkan kedua tangannya kecuali setakat 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 Kementerian Pendidikan sedar atau disedarkan tentang kaedah pakaian bagi orang Muslim dan mengutamakan Islam sebagai ugama Persekutuan, Kementerian Pendidikan tidak akan mewajibkan pakaian seluar pendek bagi murid lelaki dengan pilihan seluar panjang atau mewajibkan pakaian pinafore tunic dan blouse bagi murid perempuan dengan pilihan memakai baju kurung dan kain sarung serta tudung/ telekung. Peraturan pakaian seragam sekolah Bil. 3/1983 tersebut adalah songsang dan takselari dengan Perlembagaan dan menurut Perkara 4, Perlembagaan ini adalah undangundang utama Persekutuan dan apa-apa undang-undang yang diluluskan selepas Hari Merdeka dan yang takselari dengan Perlembagaan ini hendaklah terbatal setakat yang takselari itu. Peraturan tersebut adalah terbatal. Adanya pilihan untuk memakai seluar panjang atau baju kurung dan kain sarung tidak dapat menyelamatkan atau menjadikan 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), topi, ketayap dan purdah." Gurubesar telah melampaui kuasanya dengan menentukan dasar/policy mengenai pakaian seragam sekolah yang terletak hak kepada Kementerian saja. Gurubesar kononnya membuat larangan itu berdasarkan kepada Surat Pekeliling Ikhtisas Bil. 9/1995 yang membenarkan: "Gurubesar boleh juga menimbangkan perkara-perkara lain yang tidak ada dalam senarai itu mengikut keadaan sekolah masing-masing." Gurubesar cuba menjustifikasikan larangan itu dengan berkata masyarakat tempatan berasal dari pelbagai keturunan dan budaya. Anak mereka datang ke sekolah dengan topi lebar keliling, topi lebar di depan, pakai songkok jaw, pakaian lilit kepala ala orang Kelantan. Saya tolak alasan itu kerana kalau itu masalahnya kenapa pula serban yang dilarang. Alasan itu tidak termakan akal. Gurubesar telah membuat peraturan melarang murid memakai serban dan purdah di mana Kementerian tidak melarang pakaian tersebut dalam Peraturan Pakaian Seragam Bil. 3/1983. Ini menjadikan larangan itu tidak sah, terbatal dan tidak berkesan. Gurubesar tidak boleh membuang sekolah plaintif 1, plaintif 2 dan plaintif 3 berdasarkan kepada larangan memakai serban itu. Seterusnya peraturan ini setakat mana ia melarang murid lelaki memakai turban (serban) adalah juga terbatal dan tidak sah kerana ia melarang murid lelaki Sikh memakai turban. Gurubesar mungkin tidak berniat demikian tetapi itulah yang tersurat. |409| Hj. Ismail Sajad b. Sejat (SD3) seorang Timbalan Pengarah Urusan Pelajar, Bahagian Sekolah di Kementerian Pendidikan berkata tidak terdapat peruntukan dalam Peraturan yang membolehkan murid sekolah memakai serban sama ada aliran sekolah biasa atau aliran

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sekolah ugama. Selama 19 tahun perkhidmatannya beliau tidak pernah membaca peraturan mengenainya. Apabila disoal balas beliau berkata tidak juga terdapat Peraturan yang melarang murid memakai serban. Walaupun demikian, dasar Kementerian tidak membenarkan murid memakai serban. Apabila ditanya kenapa murid kaum Sikh boleh memakai turban tetapi murid Islam tidak boleh memakai serban, beliau tidak dapat menjawab. Beliau pun tidak pasti sama ada Gurubesar boleh melarang murid memakai serban berpandukan perenggan 4.1 Peraturan itu. Saksi menambah Gurubesar boleh membuat Peraturan yang selari dengan Peraturan/ Pekeliling Kementerian Pendidikan. Malangnya Gurubesar tidak membuat Peraturan yang selari dengan Peraturan/Pekeliling Kementerian atau merujuk peraturan melarang pakaian turban/serban itu kepada Jabatan atau Kementerian Pendidikan. Plaintif 1 menerangkan kepada mahkamah dugaan dan cabaran yang dihadapi kerana memakai serban di sekolah. Dia berkata Gurubesar melarangnya memakai serban tetapi dia enggan kerana mengikut sunnah Rasulallah. Gurubesar menyuruhnya menanggalkan serban dan memakai songkok. Dia enggan. Pada 2 September 1997 Gurubesar suruh dia tanggalkan serban dan berkata kalau hendak sekolah di sini pakai songkok, kalau tidak pergi balik. Diapun balik. Pada esoknya di perhimpunan pagi dan penyampaian hadiah plaintif 1 menerima hadiah dari Gurubesar. Ketika itu Gurubesar mengetuk kepalanya dengan pensil sambil berkata 'masih tak tukar serban lagi' dan menyuruhnya balik. Dia pun balik. Pada 4 September 1997 selepas perhimpunan dan semasa dalam perjalanan ke kelas, Gurubesar terjumpa plaintif 1 dan mengetuknya dengan fail keras di pipi dan menjentiknya 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 mengambil peperiksaan dan sedang menjawab soalan No. 14 Gurubesar datang dan bertanya 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 ini 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 berkata setakat Gurubesar ada menghampiri plaintif 1 tetapi taktahu apa berlaku antara mereka dan tidak melihat apa-apa kejadian. Saya dapati cikgu ini melindungi |410| sesuatu maka mahkamah mencatatkan: "saksi tidak menjawab kerana dia tidak senang hati hendak menyatakan sesuatu." Saya percaya plaintif 1 dikasari, penjaganya (SP1) diberitahu, laporan polis dibuat, malahan Gurubesar pun tidak menafikan bulat-bulat. Gurubesar membuat helah dia cuma tunjukkan pensil ke kepala plaintif 1, dia hanya gesel pipi plaintif 1 dengan manila kad dan tidak menumbuknya. Tindakan Gurubesar terhadap plaintif 1 mirip kepada sikap membenci. Pada penelitian saya bukan murid itu yang dibenci tetapi kedegilannya yang dihasut oleh penjaganya supaya tetap berkeras memakai serban kerana mengikut sunnah Rasulallah. Gurubesar merasa kuasanya sebagai Gurubesar dicabar, dia dikafirkan kerana melarang murid itu memakai serban, Kementerian dipersalahkan kerana melantik beliau, seorang perempuan, menjadi Gurubesar. Keangkuhan penjaga kononnya serban itu lambang keluarga (keluarga Syed) menyakitkan hati. Dia tidak mahu bertemu penjaga. Penjaga 'mengajar' Gurubesar dengan suratnya di ms 22 DBD. Akibatnya ketiga-tiga pelajar ini ibarat si kancil mati terpijak disebabkan dua gajah bergaduh. Yang satu jahil dan yang satu lagi angkuh. Saya dapati Gurubesar jahil tentang pakaian serban bagi orang Islam dan mempersendakannya (serban dikatakan turban ms 27

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DBD) dan penjaga pula angkuh dengan keturunannya dan ketaksuban memakai serban yang hukumnya sunnat dipakai. Kalau tidak manakan dua orang Muslim, kedua-dua pendidik yang telah berkhidmat selama 21 tahun dan 25 tahun tidak dapat menyelesaikan masalah pakaian itu yang jika dipakai dapat pahala jika tidak dipakai tidak berdosa. Kemuncak dari pertembungan dua insan yang jahil, angkuh dan sama-sama degil dan bermusuhan itu Gurubesar telah menghantar surat bertarikh 4 Ogos 1997 kepada penjaga (ms 24 dan 25 DBD) supaya pakaian serban murid-murid itu diganti dengan songkok untuk mengelakkan tindakan disiplin diambil. Perkara ini dibawa kepada Jawatankuasa Persatuan Ibubapa Guru Sekolah itu dan PIBG memutuskan dalam surat bertarikh 5 September 1997 (ms 35 DBD) "menghendaki mengeluarkan atau menukarkan anak-anak bawah jagaan tuan dari sekolah ini." DAN pada 3 November 1997 Gurubesar menghantar surat membuang sekolah ketiga-tiga murid tersebut. Adalah diperhatikan dua surat terakhir Gurubesar merupakan surat memberitahu keputusan iaitu menukarkan sekolah dan membuang sekolah. Surat Gurubesar sebelum itu mengarahkan pakaian serban murid-murid itu diganti dengan songkok "untuk mengelakkan tindakan disiplin diambil". TETAPI langkah tindakan disiplin tidak diambil; Gurubesar tidak memberi notis untuk tunjuk sebab, atau memberi peluang untuk didengar. Sekiranya 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 tetapi ia sunnah Rasulallah dan orang Muslim wajib mengikut sunnah Rasulallah dan bahawasanya beliau adalah contoh pemimpin yang terbaik. Penjaga mungkin juga menerangkan pakaian serban menyentuh akidah sebagaimana murid kaum Sikh memakai turban yang jika tidak dipakai tidak juga jatuh 'murtad'. Mahkamah ini percaya sekiranya 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 muridmurid itu tidak dapat pertimbangan sewajarnya dan seterusnya tidak juga mendapat pertimbangan sewajarnya untuk dikenakan hukum selain dari dibuang sekolah. Dikatakan tiga murid ini disiksa dua kali, sekali oleh PIBG sekolah yang menyuruh mereka bertukar ke sekolah lain dan sekali lagi oleh Gurubesar yang membuang mereka dari sekolah. Saya tidak sependapat mereka dihukum dua kali atau menerima bala dua kali kerana tiga murid itu tidak bertukar ke sekolah lain sehingga setelah dibuang sekolah. Pembuangan sekolah murid sekolah tidak sama dengan pembuangan kerja pekerja awam yang tertakluk kepada Perintah Am atau pekerja swasta yang tertakluk kepada kontrak perkhidmatan. Bagi murid sekolah tidak ada peraturan sedemikian. Walaupun begitu, mahkamah di negara ini telah mengiktiraf common law di England supaya melaksanakan prinsip keadilan semulajadi/ natural justice seperti 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 menamakan rules of natural justice kepada procedural impropriety untuk merangkumi pengkhianatan kepada undang-undang substantif atau prosedural: Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374.

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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 penghakiman ini. Jawapan saya begini: Tidak sempurna iman seseorang Muslim itu jika dia ditanya apa hukumnya bagi seorang Muslim melarang orang Muslim memakai serban lantas dia menjawab hukumnya sunnat atau harus. Jika terus didesak untuk menjawabnya maka saya jawab setiap orang Muslim ada hak untuk menganut dan |412| mengamalkan ugamanya sebagaimana terjamin di bawah Perkara 11(1) Perlembagaan dan melarang orang Muslim memakainya adalah bertentangan dengan Perkara 3 dan 11 Perlembagaan dan tak sah dan terbatal. Larangan itu tidak berkaitan dengan undang-undang am mengenai ketenteraman awam, kesihatan awam atau akhlak di bawah Perkara 11(5) yang mengatasi Perkara 3 dan Perkara 11 Perlembagaan. Sebaik-baik tindakan ialah mencegah kemungkaran, tidak memaksakan sesuatu yang baik kecuali dengan contoh 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 kerana orang Melayu takut kepada Bahasa Melayu dan orang Muslim takut kepada Islam. Mereka bertindak apa kata orang. Mereka tidak bertindak apa kata diri.

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[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: The 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 rape on a girl aged 15 years 10 months, an offence punishable under s. 376 of the Penal Code . Under the fifth description of the definition of rape in s. 375 of the 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 appellant having committed rape on the girl between 15 November 1993 and 21 January 1994 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 of the rattan. To be noted is that in her grounds of decision, the Judge, in amending 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 January 1994. But the charge upon which he was called to make his defence and upon which he was convicted was one single charge of rape. A pertinent question that arises is, upon which particular offence, which particular act of rape, was the accused convicted and sentenced? The offence of rape in law is one single act of unlawful sexual intercourse. It is not a continuing offence (see Ali Hyder v. Emperor [1939] 40 CR LJ 280 ). The charge should have been split by way of amendment for each offence or the prosecution should have been directed to elect upon which 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 reverting 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 upon 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 her grounds of decision, stated that the prosecution had made out a prima facie case against the appellant and yet, notwithstanding the decision in Khoo Hi Chiang v. PP [1994] 2 CLJ 151; [1994] 1 MLJ 265 and now the majority decision in Arulpragasan 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 calling the appellant to make his defence. Specifically, he pointed out that the Judge 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 which contradicts her evidence, the many contradictions and inconsistencies in her evidence and between her evidence and the evidence of other witnesses, the evidence of prosecution witness Dr. Shahrom who made a medical examination on SP3 and who said he disbelieved SP3 when

39

she told him that she had been raped once when the medical evidence showed she had had multiple sexual intercourses. A perusal of the learned Judge's written grounds 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 evidence 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 judgment her evaluation. |477| She did so but only after she had stated and considered 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 evaluate the prosecution evidence before she called upon the appellant to make his defence. Looking at the judgment as a whole, it may be said that she did generally evaluate the evidence and her finding that the incidents of sexual intercourse did take place can be justified. However, it is unfortunate that her evaluation of SP3's evidence did not pay attention, which was necessary, to the contradictions 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 that 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 training became close to the appellant and assisted him in his shop, Mahendran's Sports Centre. She used to sleep nights at the office of the shop together with SP4, her schoolmate. She stated that towards the end of the November 1993 school holidays 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 his 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 divorce 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 incident of rape, this time in the bathroom of the accused's shop. She said that it took place on a day quite near to her 16th birthday and she felt that it was in January 1994. She also gave evidence of another sexual connection with him which she said took place after her 16th birthday. In addition she testified that at various 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 three 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 appellant and SP3 were unusually close, with many incidents of their behaving like lovers. |478|

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The learned Judge made a finding that SP3 had sexual intercourse with the appellant thrice. Medical evidence did establish that SP3 had multiple intercourses but 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 incidents of intercourse constituted rape as they took place before SP3's 16th birthday 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 prosecutrix, 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 place 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 categorical that both acts took place in 1993. Her evidence clearly showed her uncertainty about the dates. But this is not all. The learned Judge failed to consider discrepancies in the police report of SP3 made on 4 April 1994, some 2275 months after her birthday. The report contradicts her evidence as to the times when the incidents 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 recorded the police report of SP3 (P4) in regard to the discrepancies in the dates. SP13 told the Court that SP3 had difficulty in fixing the time of the event. She said 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 her statement and the police report. She stated that the discrepancy was as regards fixing the date of incident - in the police report the date of incident was January 1994 whereas in the statement SP3 had fixed the date of the incident as being at the end of November 1993. SP13 said that she realised that the discrepancy was important as after 22 January 1994, SP3 was 16. ("Perbezaan itu ialah tentang 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 discrepancy as to the date; it made all the difference whether the two incidents of intercourse 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 Bahasa 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 where 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 merely 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 panggil saya buat kerja di pejabatnya dengan (SP4). Pada malam itu kami bertiga bermalam di situ, di mana Mahendran telah menyetubuhi saya tanpa kerelaan saya dan suruh 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 saya disetubuhi sebelum Hari Raya lalu).

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It can be seen in the police report that the acts of intercourse took place before in January 1994, flatly contradicting the evidence of SP3 on very material particulars. Was the first act of intercourse at the end of November 1993 or January 1994? If it was in January was it before her 16th birthday which was celebrated 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 forced 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 place before her 16th birthday. And that leads me to the issue of duplicity of charges. 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 is 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 different places and clearly two different distinct offences and two separate charges 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 Court 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 under 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 is 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 of 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 female was aged below 16. The law has to take its course. I have to resolve the doubt in favour of the appellant and accordingly I allow the appeal. I set aside the conviction and sentence.

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[1999] 3 CLJ 494
PP v. ROSLAN IMUN HIGH COURT MALAYA, JOHOR BAHRU ABDUL MALIK ISHAK J [CRIMINAL REVISION NO: 43-3-99] 17 JULY 1999 |496| JUDGMENT Abdul Malik Ishak J: The New Straits 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 front 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 caption: 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 these eye catching phrases and the stories that unfolded thereto. The learned Sessions Court judge Madam Siti Mariah bte Hj. Ahmad in her wisdom imposed the maximum 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 section 335, voluntarily causes grievous hurt by means of any instrument for shooting, 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 substance, or by means of any substance which it is deleterious to the human body to inhale, 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 shall 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 for the record of proceedings for the purpose of satisfying myself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of the Sessions Court in question. 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 Lordship succinctly said that: |497| ... the powers of the High Court in revision are exercisable at the discretion of the court and that discretion is untrammelled and free, so as to be fairly exercised according to the exigencies of each case.

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Was the revision necessary? This was a case where the accused, a grass cutter and an exconvict, who was just released from prison on 16 February 1999 after serving 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 1999 by violently shoving a 60 cm stick up the anus of his victim, a young innocent 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 case. 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 revise 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 in 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 bicycle alone on the pretext of asking for help. At that time, the accused was carrying 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 fell unconscious. Having successfully overpowered the young school boy, the accused then used a 60 cm stick with its leaves and branches protruding and forcefully shoved it into the school boy's anus. That must have been very painful. When the 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 when 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 ground 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 the 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 surface of the chest skin puncturing the |498| school boy's urinal bladder and rupturing his small and large intestines with severe tears in the anus. Medically speaking 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 with diaphragmatic perforation at the anterior attachment. Multiple abrasions on the school boy's chest was also detected. Part of the stick under the sternal skin 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 tear and urinary bladder; with repair of the ileal serosa, appendicectomy, diaphragmatic tear repair with proximal sigmoid loop colostomy and suprapubic cystostomy. 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

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general ward. It was said that post operatively the schoolboy's recovery was uneventful. Psychiatric follow up was accorded to the schoolboy. On 26 June 1999, the schoolboy was discharged from hospital and his follow up was scheduled on 8 July 1999. Distal looporgram was conducted on the schoolboy on 12 July 1999. In my judgment, shoving a stick of that length forcefully into the anus of the schoolboy with the other end located at the surface of the chest skin was done deliberately and it constituted violence of the highest degree. As an instrument within the meaning of s. 326 of the Penal Code, the stick shoved into the anus of that schoolboy in that fashion was likely to cause death. It was an unimaginable act, a behaviour of the dastardly. Indeed the accused found it fashionable to do so. In his cautioned statement, the accused admitted to that dastardly act on the innocent schoolboy. Surprisingly, in his cautioned statement too the accused proclaimed 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 died. 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 investigation papers of the Kulai episode with photographs of the deceased boy. The accused on being shown the photographs of the Kulai episode in the investigation papers unabashedly admitted to being responsible for that heinous crime also. Both the deputy public prosecutors submitted that the accused was not charged for that Kulai episode and that was the end of the matter as the powers of the prosecution 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 prejudice of the accused unless he has had an opportunity of being heard, either personally 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 addition to the 20 years' jail sentence imposed by the Sessions Court. In repenting, the unrepresented accused said: "Hopefully, Allah will forgive me for my sins." The accused further said as follows: I understand that I must be punished severely for committing such a heinous act. I am remorseful and deeply regret my actions. I agree that the sentence passed by the Sessions Court was inadequate. Therefore, I want the court to order that I be whipped 20 times so that I can cleanse my sins. In my years of service, I have yet to come across a case of this nature. In India, the quantum of punishment for cutting off a wife's nose for intriguing with another man depends on the time of the commission of the grievous hurt, whether committed instantly or long after the husband had found himself dishonoured (Sulamut Russooa [1865] 4 WR (Cr) 17). The case of Jamil Hasan [1974] Cri 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 with his teeth, and the High Court confirmed the conviction and sentence of rigorous 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 punishments were meted out accordingly (Ismail Umar [1938] 40 Bom. LR 832; 39 Cr. LJ 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 stick

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forcefully measuring 60 cm long into the anus of the schoolboy that went right in towards the chest level must surely be documented as the first case of its kind in Malaysia. It was cruelty at its height; beyond words or description. The pain, agony, trauma that the schoolboy went through cannot be put into words. Whipping, as an additional sentence to that of 20 years' imprisonment, must surely be the best anecdote for the accused. It would definitely deter the accused and others 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| whipping were to be imposed it should be effective and that to award three strokes were said to be useless. The Court of Criminal Appeal of Singapore comprising of Murray-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 sentence of whipping should be imposed only when there was evidence of a substantial degree of actual physical violence. Buhagiar J in Mohamed Ali v. Public Prosecutor [1956] 22 MLJ 84 echoed the same sentiments. In Yong Pak Yong v. Public Prosecutor [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 were undoubtedly involved such as secret society extortion demands, the thug who has not had occasion to implement his threat of violence deserved corporal punishment in the form of whipping just as much as if he had inflicted it. It is interesting 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 legally 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 contrary 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 initially but fortunately it was clarified by the Singapore case of Chai Ah Kau v. Public Prosecutor [1974] 2 MLJ 191. In that case, the accused was charged for armed robbery in one court in the morning and that court sentenced him to 18 months' imprisonment 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 sentenced the accused to three years' imprisonment and 10 strokes of the rattan. The Singapore Court of Appeal held that since the offender was an adult and since there 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 sentenced to death; (c) males whom the court considers to be more than 50 years of age. Paragraph (c) of s. 289 of the CPC is widely worded so as to provide for cases 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 the medical officer who would be required to examine the offender and submit a medical 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 whipping shall not be inflicted unless a Medical Officer is present and certifies that 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

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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 stopped. But in the case of a youthful offender (s. 290(iii) of the CPC), a Medical 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 be inflicted unless it appears to the court that the offender is in a fit state of health to undergo the ordeal. Section 291(i) of the CPC enacts that in the event a sentence of whipping is wholly or partially prevented from being executed the offender shall be kept in custody till the Court which passed the sentence can 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 sentence 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 been sentenced for the same offence. The court must always act within the law. Section 291(ii) of the CPC enacts that the court is not authorised to inflict imprisonment for a term exceeding that to which the accused is liable by law or which the said court is competent to inflict. Reverting back to the factual matrix of 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 not for the timely arrival of the boy's father. The police investigations were quite 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 accused hands and when the stall owner enquired, the accused angrily retorted that he had just slaughtered a chicken. The behaviour of the accused after the commission of the offence must certainly be considered by this court. In Raja Izzuddin 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 schoolboy had just undergone circumcision and the medical report reads as follows: Penis healing, circumcised penis. |502| Just imagine, a young schoolboy who had just 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. Unbearable. The despicable act of the accused cannot be condoned by this court. Young citizens must be protected from the likes of people like the accused. The imposition of the sentence of whipping on the accused in addition to the custodial 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 accused just because he had pleaded guilty before the learned Sessions Court judge. The discount in sentencing of between one-quarter to one-third as propounded by the 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 crime committed by the accused - its high degree of physical violence and the pressing need to protect the nation's young citizens must certainly override everything 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.

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Certainly, this was a case of public importance and this court is entitled to react 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 featured in the local newspapers and this court would fail in its duty if the sentence was not revised to reflect the gravity and magnitude of the offence. It has been 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 Kerala [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 AIR [1954] SC 726, 728, [1954] Cr. LJ 1808; Ram Chandra v. State [1969] Cr. LJ 112, 113, AIR [1969] Bom 20; Anadi Sahu v. Surendra Naik [1969] Cr. LJ 499, 500, AIR [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 [1971] Cr. LJ 137 (Raj)). The revisionary court usually accepts the findings on questions 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 can 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 trial 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 revised to add the additional punishment of whipping; and the word "whipping" in the Penal Code does not include whipping with a cat-o'-nine tails (Wong Siew v. Public 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 should influence the sentencers, the principles and guidelines the sentencers should follow, the factors that the sentencers should take into account, have been well documented and indicated by the appellant decisions. Indeed Taylor J in the same 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 operate in the direction of severity and others such as leniency to first offenders which operate in the other direction and where, as frequently happens, a number 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 English 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 certain considerations; the first and foremost is the public interest. The criminal law 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 with each case calling for and requiring individual consideration. Lawton J recognised 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

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at p. 187 favourably spoke of Lawton J's "delightful analysis of the classic principles of sentencing and general aspects of punishment ..." in Reg v. J.H. Sargeant (supra). The presence of aggravating features are likely to influence the court to put uppermost in its mind the demands of deterrence. The present revision 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 difficult to detect, that the public feels especially afraid of the type of offence, that the offender abused a position of trust and that others may need to be deterred 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 in Koh Seng Wah v. Public Prosecutor [1966] 1 MLJ 12 of "cool and calculated" frauds; 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 Wah 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 the dangers of handing out lenient sentences to persons convicted of serious offences. Since deterrence and prevention assume positions in the forefront for sentencing, his Lordship the late Abdoolcader J (who retired as SCJ) in relation to an 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 over for two years remarked that to deal with those offenders by way of binding them over would "be about as useful and effective as clouting a cobra with a clothes-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 "clouted" with whipping of 20 strokes of the cane. The author by the name of Franklin Zimring in an article entitled "From Perspectives on Deterrence" NIMH Monograph 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 penalty produce an extra measure of deterrence, trebling the penalty will do still better. To me, deterrence is functional as a technique of crime control and prevention. Professor Packer once said (Packer, at Limits of Criminal Sanction, at p. 149 [Stanford University Press, 1968]) that "people who commit crimes appear to share the prevalent impression that punishment is an unpleasantness that is best avoided." Indeed to threaten an offender with punishment is to some extent a very promising strategy of influencing behaviour. Mere threat is not enough. To make the threat of punishment a reality, the courts must punish severely those offenders that are caught and charged. A large and diverse |505| vocabulary has developed on the motives for punishment. To me a deterrent punishment is justified as a means of expressing society's retributive feelings as a method of incalculating 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 order 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.

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Lest I be accused of an oversight, I must now revert to the punishment as prescribed in s. 326 of the Penal Code. It reads: ... shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine 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 Prosecutor v. Man bin Ismail [1939] 8 MLJ (FMSR) 207 remarked that the words "shall be liable to" gave the court an absolute discretion as to whether it shall award 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 Ordinance 1952 which enacted that the accused "shall be liable to imprisonment for a term 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' imprisonment as his Lordship felt that the three years' imprisonment was a minimum mandatory 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 witnesses. 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 despicable and unforgiveable. It was so grave that it outweighs the mitigating factors which have been advanced by the accused before the learned Sessions Court judge. For the reasons adumbrated above, I unhesitantly revised the sentence imposed by the learned Sessions Court judge. I ruled and it was my judgment that the 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 prosecutors while the documentary exhibits to remain with this court forthwith. |506| Addendum After I had revised the case and passed sentence accordingly, the learned 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 inadequate sentence imposed by the learned Sessions Court judge - in obvious reference to the failure of the learned Sessions Court judge to impose whipping. These appeals 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 June 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 his sins; (2) the accused himself told this court and undertook to withdraw his appeal lodged in regard to the purported excessive sentence imposed by the learned Sessions Court judge; (3) the learned deputy public prosecutors too undertook to withdraw their appeal in regard to the inadequate sentence imposed by the learned Sessions Court judge as they have achieved their desired goals through this revision, an exercise of discretion by this court to safeguard public interests.

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[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 FEBRUARY 1996 |630| JUDGMENT This is an appeal by the Public Prosecutor against the orders made by the Juvenile Court. The respondent, a juvenile, was originally charged with murder of one Ahmad Farid bin Mat Saleh @ Mohamad on the 28 November 1992 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 offender 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 probation 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 time of the offence the offender was 16 years and 1 month old. He was borned on 21 October 1976. Briefly, the facts were that on 28 November 1992 at about 4.00 pm 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 be going after his twin brother who looked alike and was then in the town, the offender returned to the town armed himself with a knife. On arrival at the bus stand near Kelantan Hotel, the offender was confronted by the deceased. They exchanged 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 haemorrhagic 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 states: Where a Juvenile Court by or before which a juvenile is found guilty of an offence other than homicide is of the opinion that having regard to the circumstances, 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 probation 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) aforesaid, placing the offender under probation was wrongly made and must be set aside. With regard to the order of compensation under (iii) the law stipulates that 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:

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(3) Where a Court thinks that a charge against a juvenile is proved, the Court may 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 juvenile. (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 opportunity to be heard. (Emphasis added). The provisions are precise and unambiguous. They 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 agreeable to pay the compensation. So, in the absence of any inquiry as regard her affordability 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 failure of justice which cannot be cured and makes the order invalid. Therefore, the 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 offender under the care of his guardian under s. 12(l)(d) with a more appropriate order in order to reflect the seriousness of the offence, submitted that the Juvenile Court had failed to take into account public interest in making the order. He 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 Magistrate'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 respondent, 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 suitable cases, even a boy under the age of 16 could be ordered to be imprisoned. However, 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 protection of children and young persons. On proof of an offence, the Juvenile Court shall, in addition to any other powers exercisable by virtue of this Act or any other law for the time being in force, have power under s. 12(l) : (a) to admonish 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 imposed; (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 and 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 the 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, subject to s. 15(2) , impose upon him any term of imprisonment which could be awarded by a Sessions Court or, if the Court considers that its powers are inadequate, commit him to the High Court for sentence.

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|633| There are, however, restrictions on punishment of children and young persons under the Act. Section 15 provides: (1) No child shall be sentenced or ordered to be imprisoned for any offence or be committed to prison in default of payment of a fine, damages or costs. (2) No young person shall be sentenced or ordered 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 imprisoned 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 this case. The offender was charged with an offence of culpable homicide not amounting to murder under s. 304 first limb of the Penal Code , which carries a punishment of imprisonment for a term which may extend to 20 years and shall also liable to fine. At the material time the offender was a young person, being above 14 and under 18 years of age, and at the hearing of this appeal he was 19 years and eight months old. For the purpose of this appeal, the relevant age to be considered by the Court is the age when the offender committed the offence and not the age at the time of the appeal. There can be not the smallest room for doubt that this offence is very serious indeed and the offender should be seriously dealt with. A valuable life was sacrified at the hand of the offender. If not for his age, I would not hesitate to send him to imprisonment. In the circumstances of this case, I do not consider a sentence of imprisonment is approriate and called for. Bellamy J in Tukiran bin Taib v. Public Prosecutor [1955] 21 MLJ 24 at page 25 said: It has been stressed by this Court that it is very desirable that young 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 that it would be more beneficial to the accused, and in the long run to the community 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 good 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 the facts and the offence charged. The offender had been detained for two years nine days when he was charged for murder. I take that into consideration in assessing 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 approved school rather than to prison. |634| I therefore quash the order made by the Juvenile Court, and order that the offender be committed to Henry Gurney School until he attains the age of 21 under ss. 21(1)(f) and 40 of the Act .

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[1994] 4 CLJ 637
ZAZLIN ZAHIRA KAMARULZAMAN (BUDAK) MENUNTUT MELALUI BAPA DAN PENJAGANYA KAMARULZAMAN 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 kecederaan yang dialami oleh plaintif pertama semasa ia berada di sekolah. Oleh kerana plaintif pertama semasa mengambil tindakan ini di bawah umur ia mengambil tindakan ini melalui bapanya iaitu plaintif kedua. Defendan pertama adalah guru darjah 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 diberikan, pada 19 Mac 1985 plaintif pertama yang pada masa itu berumur lebih Kurang tujuh tahun, pelajar Darjah Satu T di Sekolah Kebangsaan Taman Selayang, Selayang. Beliau baru sahaja tiga bulan masuk ke sekolah tersebut. Pada hari tersebut di sebelah pagi (masa sebenar didapati pertikaian di antara plaintif dan defendan, walau bagaimanapun ini tidak mustahak) beliau berada di bilik darjah untuk kelas muzik yang diajar oleh defendan pertama. Tidak dipertikaikan bahawa kelas muzik adalah satu mata pelajaran di dalam darjah tersebut apabila sistem KBSR diperkenalkan ke semua sekolah pada tahun 1984. Juga tidak dipertikaikan bahawa defendan pertama adalah seorang guru muzik yang terlatih setelah menghadiri beberapa kursus di sekolah-sekolah dan maktabmaktab apabila sistem KBSR akan dan telah diperkenalkan. Defendan pertama juga telah dilatih cara-cara mengajar muzik di sekolah-sekolah. Beliau juga seorang guru lepasan maktab yang menunjukkan ia seorang 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 Keretapi" di mana semua murid darjah Satu T mengambil bahagian. Defendan pertama telah memberi arahan bagaimana pergerakan murid-murid mengikut rentak muzik. Adalah jelas dari keterangan kedua-dua belah pihak bahawa defendan pertama telah mengarahkan murid-murid memasukkan bangku tempat duduk di bawah meja tulis masingmasing dan pergerakan "gerabak keretapi'' mengelilingi meja-meja murid dan bukan mencelah di antara meja. Semasa muzik dimainkan murid-murid memulakan pergerakan gerabak keretapi dari belakang bilik darjah berjalan keliling bilik darjah. Apabila tamat satu pusingan dan semasa gerabak keretapi berada di belakang bilik darjah iaitu tempat permulaan, plaintif pertama telah terjatuh dan akibatnya tangannya telah patah. Adalah jelas kepada saya bahawa semasa membuat gerabak tiap-tiap murid dikehendaki memegang bahu murid di hadapannya. Apabila defendan pertama sedar bahawa plaintif pertama terjatuh dan cedera serta menangis defendan pertama telah membantu plaintif pertama untuk berdiri dan memimpinnya ke meja guru di mana tangan plaintif pertama telah diletakkan di atas meja guru. Dia kemudian meminta bantuan dari seorang lagi guru untuk membungkus tangan plaintif pertama dengan surat khabar supaya jangan bengkok. Defendan pertama juga telah memberitahu guru besar sekolah tersebut (SD2) yang telah mengarahkan defendan pertama

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dan guru yang seorang lagi membawa plaintif pertama ke Hospital Besar Kuala Lumpur. Guru besar sekolah tersebut telah memberitahu ibubapa plaintif pertama. Di hospital plaintif pertama telah dimasukkan ke wad kecemasan ditunggu oleh defendan pertama dan guru yang seorang lagi sehingga ibubapa plaintif pertama sampai. Selepas |639| itu defendan pertama dan guru yang seorang lagi balik ke sekolah untuk meneruskan tugas mereka. Tidak dipertikaikan bahawa tangan kanan plaintif pertama telah patah semasa ia terjatuh itu dan tangannnya dibungkus dengan plaster of paris. Ia juga telah dimasukkan ke dalam wad selama satu malam. Akibat kemalangan itu tangan kanan plaintif pertama dibedah dan terdapat parut di tempat pembedahan tersebut. Plaintif pertama juga telah menyatakan bahawa tangan kanannya selepas kejadian itu telah lemah dan ia tidak boleh memulis lamalama dengan tangan tersebut. Tangan tersebut juga didapati pendek sedikit. Plaintif telah mengambil 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 bidangkuasa Mahkamah Majistret. Saya telah bertanya kepada Peguam plaintif kenapa tindakan ini di Mahkamah Tinggi dan bukannya di Mahkamah Majistret. Peguam sendiri tidak dapat memberi jawapan. Oleh kerana memandangkan perbicaraan kes ini telah dijalankan dan kes ini adalah satu kes yang lama iaitu kes tahuh 1988 saya telah meneruskan perbicaraan kes ini. Walau bagaimanapun saya telah memberitahu Peguam plaintif bahawa sekiranya plaintif berjaya di dalam tuntutannya ia hanya berhak mendapatkan kos yang diberikan di dalam Mahkamah Majistret. Di dalam penyata tuntutannya plaintif telah menimbulkan kecuaian yang telah dilakukan oleh defendan 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 muzik dimainkan; (b) Defendan pertama tidak memberi arahan atau amaran supaya murid-murid tidak tolakmenolak atau berlari-lari dan keluar dari barisan semasa gerakan mengikut rentak muzik; dan (c) Defendan pertama tidak memberi penyeliaan yang mencukupi supaya tidak ada kemalangan berlaku. Plaintif tidak meneruskan yang lain setelah mendengar keterangan bahawa semasa kejadian itu berlaku bukanlah murid-murid sedang melaku satu permainan tetapi mengambil bahagian dalam kelas muzik yang biasanya diadakan dalam bilik darjah itu sendiri. Adalah jelas bahawa semasa bergerak murid-murid bukanlah mencelah-celah antara meja-meja dan bangku-bangku, tetapi di tempat lapang mengelilingi meja-meja dan bangku-bangku. Adalah jelas defendan pertama telah mengajar muzik sebagaimana ia dilatih. Pihak plaintif di dalam penghujahannya telah menyatakan bahawa di dalam sesuatu kes di mana melibatkan kanak-kanak yang masih mentah tidak ada "contributory negligence". Ia telah merujuk kepada kes Abraham v. Choo Jit Fung&Anor. [1966] 1 MLJ 97 . Pada pendapat saya apa yang dinyatakan oleh Mahkamah di dalam kes tersebut bahawa adalah jelas mengikut keterangan bahawa kecuaian sepenuhnya ke atas defendan kerana kelakuan kanak-kanak di dalam kes tersebut adalah seperti kanak-kanak biasa apabila melintasi jalan. Prinsip bahawa yang menyatakan tidak ada "contributory negligence" tidaklah benar. Walau bagaimanapun saya berpendapat bahawa kes tersebut tidak terpakai di dalam kes pada hari ini kerana fakta yang berlainan.

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Di dalam kes pada hari ini saya berpendapat bahawa prinsip yang dinyatakan di dalam kes Government of Malaysia&Ors. v. Jumat bin Mahmud&Anor. [1977] 2 MLJ 103 adalah 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 reasonable care for the safety of the pupil. The duty is aptly described by the learned 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) required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to (the pupil). This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex hypothesi (the teacher) should reasonably have foreseen. In that case 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 suggested that the particular teacher had some difficulties in maintaining discipline in the past and that, on the day in question, the blow which caused serious injuries 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 torts of his/her pupil, but only on proof that he/she had failed to exercise reasonable care in controlling the pupil such as would 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. In the present case, in considering whether or not the appellants were in breach of their duty of care to the plaintiff it was necessary for the trial Judge to consider first whether the risks of injury to the plaintiff were reasonably foreseeable and secondly, assuming it was, whether the appellants took reasonable steps to protect the plaintiff against those risks. ... Berasaskan prinsip yang dinyatakan di atas saya sekarang meneliti keterangan sama ada defendan pertama telah cuai di dalam menjalankan penyeliaan dan pengawasan untuk menghindar kecederaan yang dialami oleh plaintif pertama. Eloklah saya mengambil keterangan plaintif pertama tanpa mengambilkira keterangan defendan sama ada plaintif telah berjaya membuktikan kecuaian defendan pertama. Plaintif pertama telah menyatakan bahawa sebelum pergerakan mengikut muzik defendan pertama tidak ada memberi pesanan atau arahan supaya murid-murid tidak berlari atau tolakmenolak semasa melakukan gerakan mengikut muzik tersebut. Perlu diingat di sini bahawa 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

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muzik itu merupakan satu kelas yang boleh diramalkan satu kelas yang merbahaya yang boleh menyebabkan kecederaan kepada murid-murid? Apa yang jelas kepada saya perkakas yang digunakan semasa kelas tersebut ialah keset dan radio keset di mana murid-murid tidak terlibat langsung dengan perkakas tersebut. Dengan itu adalah jelas kepada saya tidak ada perkakas yang merbahaya yang telah diberikan kepada murid-murid bahkan tidak ada perkakas langsung yang telah diberikan kepada murid-murid. Dengan itu adakah pesanan dan arahan untuk tidak berlari dan tolak-menolak perlu diberi pada setiap kali kelas muzik diadakan mengambilkira bahawa kelas muzik telah selalu diadakan sebelum daripada itu. Penyeliaan di dalam bilik-bilik darjah oleh guru-guru bergantung kepada keadaan sesuatu kes itu mengambilkira 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 Ibrahim&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 over his pupils when they are in the school premises, either in the classroom or the playground. The degree of supervision depends on the circumstances of each case, such as the age of the pupils and what they are doing at the material time. If the teacher knows that the pupils are engaged in doing acts which are likely to |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 di atas adalah jelas kepada saya bahawa di dalam sesuatu kelas biasa yang tidak merbahaya dan tidak boleh diramalkan mendatangkan apa-apa kecederaan seperti di dalam kelas matematik atau muzik, pada pendapat saya tidak perlu arahan atau amaran diberikan pada setiap kali kelas tersebut hendak dimulakan. Pada pendapat saya adalah memadai pengawasan biasa dibuat oleh guru berkenaan sebagaimana yang dinyatakan oleh Y.A. Raja Azlan, HMP (ia semasa itu) di muka surat 105 di dalam kes Government of Malaysia&Ors. v. Jumat bin Mahmud&Anor. (rujukan di atas): The sole question in the present case is a question of causation. In my judgment it cannot be said that the particular teacher carelessly exposed the plaintiff to injury of the class or type that could reasonably have been foreseen. If the injury which resulted was injury by the sharp end of a pencil, then for the appellants to be liable they must have foreseen injury by the sharp end of a pencil. A pencil is not a dangerous article. All pupils use pencils in classrooms. Indeed the 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 stretch 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 attentive in class all the time - it cannot be said that it was reasonably foreseeable 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 evidence and inference that more probably than not constant vigilance in the classroom would have prevented the injury which the plaintiff in fact received. ... Di atas sebab-sebab yang telah dinyatakan saya berpendapat plaintif tanpa mengambilkira keterangan defendan telah gagal membuktikan defendan pertama telah cuai untuk menyelia darjah tersebut. Sekiranya, keterangan defendan diambilkira ini lebih menyulitkan kes plaintif. Di dalam keterangannya defendan pertama menyatakan sebelum lagu muzik "Gerabak Keretapi" dan murid-murid dikehendaki bergerak mengikut muzik dia telah mengarahkan murid-murid

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untuk memasukkan kerusi-kerusi di bawah meja. Kemudian dia telah meminta murid-murid untuk berbaris di belakang bilik darjah dan memberitahu bagaimana gerakan mengikut muzik patut dilakukan. Dia juga mengingatkan murid supaya jangan tolak-menolak, berlari ataupun keluar daripada barisan. Selepas membuat arahan tersebut defendan pertama memainkan muzik lagu "Gerabak Keretapi" dan murid-murid mula bergerak keliling bilik darjah padamulanya tetapi semakin lama menjadi rancak. Semasa berbaris murid-murid dikehendaki memegang bahu murid di hadapan. Di dalam pusingan pertama defendan pertama telah nampak plaintif pertama keluar dari barisan dan berlari. Dia telah menegur plaintif supaya jangan berlari-lari nanti terjatuh. Apabila barisan murid-murid sampai di belakang bilik darjah setelah melakukan 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 dinyatakan oleh plaintif pertama. Dengan itu jelas ada pertelingkahan keterangan defendan pertama dengan plaintif pertama. Keterangan siapakah yang patut diambilkira? Yang jelas kepada saya semasa kejadian ini berlaku plaintif pertama baru berumur tujuh tahun dan kejadian ini berlaku sembilan tahun yang lalu. Saya mengambilkira 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 memberikan keterangan menyatakan yang plaintif pertama berada di hospital selama satu malam sahaja. Dengan itu pada pendapat saya plaintif pertama tidak ingat arahan-arahan yang dibuat oleh defendan pertama ataupun ia tidak mendengar arahan-arahan yang |642| telah diberikan oleh defendan pertama kerana kegairahannya mengambil bahagian dalam kelas muzik. Di atas sebab-sebab yang dinyatakan saya berpendapat bahawa "on the balance of probabilities" defendan pertama telahpun memberikan arahan yang sewajarnya. Dengan itu plaintif telah gagal membuktikan yang defendan pertama telah cuai. Dengan itu saya menolak tuntutan plaintif. Kos kepada defendan.

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[1982] CLJ 841 (Rep)

[1982] 2 CLJ 502

YOGESWARI NADARAJAH&ANOR. v. GOVERNMENT OF MALAYSIA&ORS. HIGH COURT MALAYA, SEREMBAN WONG KIM FATT JC [CIVIL SUIT NO. 263 OF 1978] 14 MAY 1981 |842| JUDGMENT Wong Kim Fatt JC: The first plaintiff in this case was at all material times a Standard II pupil of Sekolah Rendah Jenis Kebangsaan (Tamil), Gemas, Negeri Sembilan. She alleged in her statement of claim that on or about 7 november 1975 at about 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 threw 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 this 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 Managers as the servants or agents of the first defendants, and the third defendant as 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 Gemas. 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 she 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 Form 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 several hibiscus plants in the school compound. These plants were occasionally trimmed 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 remember if the teachers scolded them for playing with the branches. Before the incident the children sometimes played with the twigs and branches. G. Kanantrin, aged 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 the stick at Muniandy it accidently hit the left eye of the first plaintiff. The stick 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 were hibiscus plants in the area where he was playing. These plants were trimmed from time to time and the trimmed branches were left on the ground. He did not see pieces of wood as big as the one thrown by him. Muniandy picked up the 3" stick first. At the time

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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 defendants 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 against such risk. |843| The undisputed evidence is that the two school boys were throwing a stick at each other behind the toilet of the school compound. It is also not in dispute that the stick or twig accidently struck the left eye of the first 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 their duty to keep the compound safe. In my Judgement, the twigs by themselves were not dangerous objects, just as tables, desks and chairs which one would find in a school. It would not be reasonable to expect the defendants to assign a teacher 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 foreseeable risks of bodily injuries. In the circumstances I hold that the risk of injuries to the first plaintiff was not reasonably foreseeable. The law relating to the 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 bin Mahmud&Anor. [1977] 2 MLJ 103 , at 104: The law does not attach strict liability on a school teacher for the torts of his/her pupil, but only on proof that he/she had failed to exercise reasonable care in controlling the pupil such as would 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 Bourhill v.Young [1943] AC 92 , Denning LJ (as he then was) in King v. Phillips [1953] 1 QB 429 , and the Privy Council in The Wagon Mound [1961] AC 388 , have expressed 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 materialised was damage by fire, then for the defendants to be liable he must have been 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 that the damage sustained must not only be caused by the wrongful act, but must be 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 logical and reasonable inference, and not mere speculation or conjecture, that the school teacher's act contributed to the injury. And, of course, in deciding this 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 case such as the present he must adduce direct or circumstantial evidence which tends 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 permits a logical and reasonable inference that the defendant's conduct had some effect in producing the injury is a question of law which this Court can decide. Bradford v. Robinson Rentals, Ltd [1967] 1 All ER 267 illustrates the working of these 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 made.

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[1998] 3 CLJ 893
SRI INAI (PULAU PINANG) SDN BHD v. YONG YIT SWEE&ORS HIGH COURT MALAYA, PULAU PINANG ABDUL HAMID MOHAMAD J [CIVIL APPEAL NO: 12-46-95] 8 DECEMBER 1997 |896| JUDGMENT Abdul Hamid Mohamad J: There were nine connected civil suits in the Sessions Court ie, Summons No: 53-25-92 to 5333-92. The plaintiff in each case was different, but the defendants were the same. All the nine cases were consolidated and tried together. The learned Sessions Court judge gave judgment for each of the plaintiffs against both the defendants, the liability between the two defendants being apportioned equally. Both the defendants appealed separately. The first defendant's (Sri Inai (Pulau Pinang) Sdn. Bhd. which will be referred to as "Sri Inai") appeal was registered as Civil Appeal No: 12-46-95. The second defendant's (Majlis Perbandaran Pulau Pinang which will be referred to as "MPPP") was registered 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 Court judge. (a) MPPP is a local authority under the Local Government Act 1976. It 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 the same name. (c) MPPP rented the said premises to Sri Inai to be used and was used as a hostel for students attending the school. (d) The tenancy was obtained by way of tender. It was for a term of two years and was subsequently further extended for one year on the same terms, until 19 December 1989. (e) The building had 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 frame and partition walls of brick. (f) During the material time, the top floor was 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 adjacent to the Forms 3 and 4 rooms, but this had been permanently sealed with floorboards. |897| (h) All the windows had been fitted with fixed grilles or BRC mesh 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 one on the first floor. (j) There was no fire alarm. (k) There was no emergency lighting 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 plaintiffs are either the injured students or the personal representatives of the deceased students.

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(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 loose 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 evidence 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 the 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) would have recommended a total of nine fire extinguishers per floor, including water fire extinguishers. (p) She also accepted the evidence of PW3 that there should have been at least two protected staircases from the first floor; there should 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 acquainted with escape routes, which was never done. Decision Of The Sessions Court Judge 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 fire was a forseeable risk. In the approval letter of the MPPP, condition (e) was that the premises was to be used as a hostel and "subject to approvals from the relevant 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 taking out the fire insurance. The wardens were not given any instructions regarding 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 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 of the teacher must commensurate with his/her opportunity and ability to protect the pupil from dangers 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 care of own children. Applying that principle to the facts of the case she found that Sri Inai, having undertaken to accomodate the students in the premises was under a duty to protect them from known dangers that should be apprehended, eg, fire. On the facts she found Sri Inai negligent and liable to the plaintiffs. Secondly, the learned Sessions Court 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 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 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 reasonable care or skill on

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the part of any person concerned with the construction alteration, repair or maintenance of 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. 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 local authority entrusted with the responsibility to enforce it. She also found MPPP liable in its capacity as landlord. She relied on |899| Tok Jwee Kee v. Tay Ah Hock&Sons Ltd.&Town Council Johore Baru[1969] 1 MLJ 195 FC and Anns&Ors v. London Borough of Meton [1977] 2 All ER 492 . She also disagreed with the submissions of the learned counsel for MPPP that s. 95(2) of the Street, Drainage and Building Act 1974 (SDBA) offered a complete immunity to MPPP. My Judgment General First, let me say that I accept the findings of facts of the learned Sessions Court 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 she 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 evidence which she did. I find no reason why this court, as an appellate court, should differ from her findings. Secondly, I must also point out that I agree with her 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. Learned counsel for Sri Inai submitted that the more probable cause of the fire was 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 Court judge. She said at p. 388 of the Appeal Record: According to PW3, since the fire originated from the roof void, there were only two plausible causes. ie, electrical 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 circuit 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 generated would depend on the electrical rating of the appliance connected to the circuit. 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 working.

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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 opinion as to the two plausible causes of the fire was reasonable and unchallenged, and I accept it. |900| What I understand from this passage is that, first, according to the evidence of PW3 there are two possible causes of the fire: (i) electrical fault and (ii) stray fireworks. As regards electrical fault there are two possible causes: (i) resistive heating and (ii) short circuit. She accepted the evidence of PW3 who ruled out short circuit as the cause of "electrical fault". That left her with only one possible cause of "electrical fault" which was "resistive 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 generated would depend on the electrical rating of the appliance connected to the circuit. 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 working". The only difference I can see between the finding of the learned Sessions Court judge as to the cause of the fire (other then stray fireworks) and that submitted 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" resulting from "dirty or loose connection in an electrical circuit". Learned counsel for Sri Inai submitted that it was due to "a short circuit due to old and faulty state of wiring and resistance system". I find the ground as submitted by the leaned counsel for Sri Inai rather confusing. PW3, whose expert evidence was accepted by the learned Sessions Court judge, with whom, on this point I have no reason to disagree, explained very clearly about "short circuit" and "resistive heating". He said at p. 321 of Part A of the Appeal Record (12-51-95). There are 2 basic types of electrical faults which can give rise to fire. The first involves damage to cable insulations resulting in he conductors coming into contact with each 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 electrical appliances, the electricity is used by the elements in the appliance to generate heat. In a working electrical appliance that heat is generated by using a property of electricity which is to do with the fact that if one applies resistance to the circuit ie, make it more difficult for the electricity to flow, that resistance 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 copper 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 distribution wiring is made up of a number of different lengths of cable |901| joined together at junction boxes. All of those connection points are potential weak each points in an electrical circuit. If the conductors are in good condition and if the connecting terminals are tight, there is very little resistance to the flow 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 atmospheric oxidation can also become dirty. Either of these conditions

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imposes a resistance to the flow of electricity and in a way analogous to the workings of the element in a working appliance, heating will occur at these weak points. It is called resistive heating. The amount of heat generated at such a fault 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 because the amount of heat generated is proportional to the square of the size of current. 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 or a fan. In this building the only potential appliances I found capable of generating this sort of fault were the water heaters in the 2 bathrooms, although I understand 1 of them was inoperable. In short, "short circuit" and "resistive heating" are two different things. They are two different types of "electrical fault". "Resistive heating" does not cause a "short circuit", as submitted by learned counsel for Sri Inai. The learned Sessions Court judge had given her reasons why she preferred the evidence of PW3 and why she accepted his evidence which I do not wish to repeat. I have no reason to disagree either with her reasons or her finding. In any event, whether the fire was caused by resistive heating or short 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 and safeguards. Negligence Of MPPP The main thrust of the argument of learned counsel for Sri Inai was that MPPP was negligent. Therefore, Sri Inai was not or even if negligent, it was only to a lesser extent. That being the case I have to discuss 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 landlord. This is what she said at p. 282 of the Record of Appeal, Part A: I accept the submission for the plaintiffs that the 2nd defendant (MPPP - added) was liable for injury and damage by their failure to enforce the provisions of UBBL in 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 Anns&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 Sessions 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 whether, faced with this kind of situation, a court should consider MPPP's liability for negligence in its dual capacities separately or together. I am of the view that it should be considered separately. I will give my reason by way of an illustration: A is a traffic police man. It is part of his duty to enforce traffic laws. But he also

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drives, either in the course of duty or otherwise. If he is involved in an accident 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 whether 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 policemen 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 authority. 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 reason, it is my view that, in this case, MPPP's negligence should be separately considered under its two capacities. Section 3 Civil Law Act 1956 Before going any further 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 far 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 England 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 render necessary. Learned counsel for MPPP raised this issue when he argued that the 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 was decided after 7 April 1956. That case concerned a local authority, not a landlord, but the argument applies now when I am considering the negligence of MPPP as 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 issue now. This provision always gives me problems. On the one hand it is the law of 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 provision. 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 occasion 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 Appeal and was dismissed on 6 January 1997. I was told that no written judgment had been given so far. So I do not really know what the Court of Appeal thought about what I said there. And this is what I said: My humble view is that the provision of s. 3 of the Civil Law Act 1956 as it stands today, is the law of Malaysia. Courts in Malaysia have no choice but to apply it. So, I will have to consider 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

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April 1956 by any written law in force in Malaysia, the court shall, in West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on 7 April 1956. |904| However, the said common law and the rules of equity 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 render necessary. In my view the approach 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, and the rules of equity as administered in England on 7 April 1956. Having done that the court should consider whether "local circumstances" and "local inhabitants" permit its application, as such. If it is "permissible" the court should apply 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 the 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 free to formulate Malaysia's own common law. In so doing, the court is at liberty to look at any source of law, local or otherwise, be it common law of, or the rules 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 this 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 April 1956. First I will reproduce a passage from Charlesworth on Negligence 4th Edn (1962) : Liability of vendor or lessor. Neither a vendor nor a lessor of property 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 course 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 premises which he sells or lets. That position is so even if he is himself the person who has put the house into that condition and, of course, has knowledge of the dangerous condition in which it is. It follows that, if he is not under|905| any such obligation to the lessee or purchaser, equally he is not under any obligation 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 vendor 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 rule remains; some development of the law has however taken place in relation to lessors and in relation to vendors who build and sell.

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The lessor. The general rule was that, apart from any express or implied contract, 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 safe, whether at the commencement of the tenancy or during its continuance. "A landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumble-down house; and the tenants' remedy is upon his 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 against the landlord if he were injured by reason of their lack of repair. This was because it was well settled, in the case of the letting of unfurnished houses or flats, 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 letting, or would be maintained in repair during the tenancy. The letting of a furnished house or rooms was an exception to the general rule, such an agreement containing an implied condition that the premises and furniture within them were fit for immediate occupation or use at the beginning of the tenancy. Should they not be so fit, the tenant could terminate the tenancy or sue for damages in respect of any injuries sustained or loss and damage suffered. At common law, the lease transferred all obligations towards third parties from the landlord to the tenant. 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 on them. This remained the situation even where the landlord had taken upon himself contractually the obligation of keeping the premises in repair Cavalier v. Pope [1906] AC 428 established that such a contract being res inter alios acta, did not confer upon strangers to it any rights against the |906| landlord which they 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 carry out repair but also malfeasance, such as his negligence in installing an unventilated gas geyser in a bathroom, putting the user at great risk of carbon monoxide poisoning. His immunity even extended to give protection in respect of negligent 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 overruled those decisions which had held the landlord immune from liability in respect 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 been 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 Act 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 default 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 might reasonably be expected to be affected by defects in the premises, retains the limitation by defining defects in section 4(3) as those arising from an act or omission which constitutes a failure by the landlord to

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carry out his obligations for maintenance or repair. Neither of these sections imposed 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 suffered damage on premises retained by the former in his own occupation has already been considered above. He will be liable in tort under the Occupiers' Liability Act 1957. The case of a plaintiff who suffers damage while on adjoining premises, 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 judgment of the learned Sessions Court judge was that she did not follow these authorities. |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, the landlord is under no duty to his tenant or any other person who enters the demised premises during the tenancy, to take care that the premises is safe, whether at the commencement of the tenancy or during its continuance. The lease transfers 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 demised premises is exempted from liability for any dangers existing on them. In England one of the first steps in the erosion of this immunity of the lessor came from the decision of the House of Lords in A.C. Billings&Sons v. Riden[1958] AC 240 . (Note the date). In England today, the immunity has largely disappeared, principally in consequence of legislation, namely the Occupiers Liability Act 1957 and Defective Premises Act 1972 (both English Statutes). However the decision in Cavalier v. Pope [1906] AC 428 is still the law, in England, where the facts fall 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 legislations there. In my view the common law as on 7 April 1956 is as stated by the learned 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 any reason why I should invoke the proviso to s. 3(1) of the Civil Law Act 1956 "to make such qualifications as local circumstances render necessary." So, the question is whether there is any express or implied contract for MPPP to provide the 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 penuntutpenuntut dan kegunaannya adalah tertakluk kepada kelulusan daripada Jabatan-Jabatan yang berkenaan termasuk penukaran kegunaan serta keperluan dari segi perlindungan kebakaran jika perlu". It is true that under para. (g) of the Agreement Sri Inai covenanted to permit MPPP and its agents to enter and view the state and condition of the said premises and to execute and do any repairs alterations or painting to the said premises. This is further followed by para. (b) of cl. 4 which gives MPPP a discretion to execute and do any repair to the said premises. |908| So, first, MPPP has a discretion whether to do any repair or not. Secondly, 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

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prevention. That is the responsibility of Sri Inai, as clearly stated in the letter 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 case, 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 UBBL 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 alarm 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 the provisions. It is not disputed that the By-Laws came into force on 1 January 1986. By-Law 134 provides: 134. For the purpose of this Part every building or compartment shall be regarded according to its use or intended use as falling within 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 separately: By-Law 254 provides: 254. Buildings which on the date of commencement of 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 comply with Parts VII and VIII of these By-laws within (a) one year from the date of commencement of these By-laws in the case of buildings up to three storeys; and (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 for which building purpose Title compartment is intended to be group used. I Small Private dwelling house residential detached or semidetached (not including a flat or terrace house) not comprising more than (1) a ground storey; (2) one upper storey; and (3) a basement storey or basement storeys

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II Institutional Hospital, school or other similar establishment used as living accommodation for, or for treatment, care or maintenance of, persons suffering from disabilities due to illness or old age or other physical or mental disability or under the age of 5 years, where such persons sleep in the premises III Other residential Accommodation for residential purpose other than any premises comprised in groups I and II. |910| In the Seventh Schedule, the following are listed under "Other Residential": Hotels, Flats, Dormitories. In the Tenth Schedule the following are listed under "Small Residential": private dwelling house, Terrace Type and Semi Detached, Hotels, Hostels and Dormitories are under "Other Residential". 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 residential". This is because MPPP took the view that the requirements for "other residential" were not applicable because MPPP classified the premises under "small residential". 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 By-laws can apply to a particular building, the building must: (1) be used or intended 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 or 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 VII and VIII apply. The problem arises because of the use of the "and" in by-law 254. 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 disjunctively. My reasons are as follows: First, to interpret that by-law conjunctively 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. Secondly, 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 conditions (classification under by-law 134 and exceeding 18.5 meters). |911| Thirdly, the word "building is repeated after the word "and" twice making it clear that that clause refers to different categories of "building". Fourthly, only a disjunctive 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 Northman Barnet Council [1978] 1 WLR 221 quoted in United Hokkien Cemeteries, Penang v. Majlis Perbandaran, Pulau Pinang [1979] 2 MLJ 12 FC. Fifthly, Sharma J in Public Prosecutor v. Syarikat Perusahaan Makanan Haiwan Bekerjasama [1969] 2 MLJ 250 said: "It is occasionally necessary to read the conjunction "and" as if it were "or" so that the meaning and the intent of the legislature can be carried out". I think this Is such a case.

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Sixthly, by-law 134 provides: For the purpose of this Part every building ... shall be regarded according to its use or intended use as falling within one of the 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 incident. MPPP rented it to be used as a hostel. So, it is clear that it can only fall under purpose group "other residential" in the Fifth Schedule. Seventhly, in the Seventh Schedule "Other residential" includes "dormitories". In the Eight Schedule "Other residential" includes "dormitories" and "boarding houses." MPPP took the position that the by-law was not applicable because MPPP classified the premises as "small residential". With respect this classification by MPPP is wrong in law, defeats the purpose of the by-law, promotes hazards rather than safety. It was also not disputed that the provisions of UBBL were not complied with eg, by-laws 166, 167, 168, 172, 174, 225, 237 and 10th Schedule, all concerning security 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 negligent for the failure to do so. |912| Here again we are faced with the problem arising 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 supervising work for purposes of the building regulations to avoid putting any future inhabitant of a building under threat of avoidable injury to person or health by reason of any defect. This duty was elaborated in the well-known case of Anns v. Merton 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 [1991] 1 AC 398 some thirteen years after it had received their approval. The extensive 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 fact it owed no duty at all. Lord Keith in Murphy said and was quoted by the learned authors: Not having heard argument upon the matter, I prefer to reserve my opinion on the question whether any duty at all exists. So far as I am aware, there 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 byelaws. If and when such a case arises, that question may require further consideration. 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 "Builders and Local Authorities" and not a word was written on the liability of local 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 negligence on a local authority for failure to secure compliance with building bylaws.

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Having also read some other reference books, I am of the view that the common law 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 financed by the public at large to be liable for damage and injury suffered in a building (especially if not owned by the local authority.) purely on the ground that the local authority, as a local authority, has failed to ensure that the house 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 of possession by the developers. Obviously, it is done without approval as approval 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 with the by-laws. But I do not think the law should go so far as to hold that the local authority is liable for negligence for not ensuring that the by-laws are complied with in all such cases. Take another example. The police has power to summon any motorist for exceeding speed limits. Assuming that an accident occurs and 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 that the police (ie, the Government of Malaysia) should also be held liable for negligence 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 that MPPP, as a local authority, is not liable for failure to ensure compliance with UBBL. However, this should not be taken as an excuse for authorities not to enforce 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 action, 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 made thereunder or by reason of the fact that such building works or the plans thereof are subject to inspection and approval by the State Authority, local authority, or such public officer or officer or employee of the State Authority or the local authority and nothing in this Act or any by-laws made thereunder shall make |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-laws made thereunder are complied with or that plans, certificates and notices submitted 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 learned 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 conjunctively ie, the first part of the subsection ending with the words "... of the local authority" and the part beginning with the words "... and nothing in this Act ...". 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, in so far as it is pertinent to this case: (a) The first part exempts the local authority 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 negligence 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 under the Common Law. However, this finding is academic in view of my earlier finding 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 SDBA as it was argued extensively for consideration of the higher courts. |915| Tok Jwee Kee I think I have to say a few words about the case of Tok Jwee Kee v. Tay Ah Hock&Sons Ltd Town Council, Johore Baru [1969] 1 MLJ 195 FC. To try to keep this judgment as short as possible, I will only reproduce one portion of the judgment which is relevant to the present case, at p. 201: Therefore, if any breach by the council of its duty under section 145 (either through oversight, ineptitude, indifference to the low or worse) results in damage to the owner of any adjoining land in a residential zone such as the plaintiff, he has, in my judgment, 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 shall refuse to approve the plan of any new building ... unless such plan is in conformity with the approved plan. On this point, I agree with the submission of the learned counsel for MPPP that the effect of this judgment has been legislatively reversed by the Municipal and Town Boards (Amendment) Act 1975 which, by virtue of s. 6(1) and (2) introduced a new s. 92B into the Johore Town Boards Enactment (Johore Enactment No 118) . The relevant portion of the new s. 92B would then 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, works or the plans thereof are subject to inspection and approval by the Town Board and President. This section is in pari materia with s. 95(2) of SDBA . On similar facts MPPP would also be saved by s. 95(2) .

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In any event, I think that that case is distinguishable from the present case. In that case the court was concerned with a fact situation where the Council approved 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 Inai The argument of the learned Council for Sri Inai was, first, to shift the blame to MPPP. Secondly, he argued that there was contributory negligence on the parts 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 dealt 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 repeat either. I agree with the decision and reasoning of the learned Sessions Court 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 judgment of the learned Sessions Court judge, with which I agree: In the case of Government of Malaysia&Ors. v. Jumat bin Mahmud&Anor [1977] 2 MLJ 103 , the Federal 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 commensurate 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 that which a careful father with a very large family would take care of his own children. Applying this principle to the facts, I found that the 1st defendant having undertaken to accommodate the students in the premises was under a duty to protect them from known dangers or those that should be apprehended. For the reasons set out the danger from fire was definitely one which was foreseeable, and had the 1st defendant taken the steps or perhaps even some of the measures on fire prevention and fire safety recommended by PW3, damage could have been minimised, if not averted. It was obvious from the evidence of the students that they only became aware of the fire after it had been burning for some time. Had an alarm been installed, they may have been aware of it earlier and gained valuable time 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 been taken had the persons in charge applied their minds to the risk of fire or obtained 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 decision and reasoning that Sri Inai is also liable under the head of "occupiers" liability. 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 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 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 reasonable care or skill on the part of any person concerned with the construction, alteration, repair or maintenance of

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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 liable for failure to comply with the by-laws. This is because MPPP, the local authority 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 hold Sri Inai liable on this ground. However, I do not think that Sri Inai can escape the responsibility imposed by MPP in the letter dated 19 December 1986 to Mr. E.M. Augustine, on behalf of Sri Inai (Rekod Rayuan kes 12-51-95 Bahagian A muka surat 439). Among other things it was made clear by MPPP that the premises was 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 found 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 apportionment 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 findings 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 judge. |918| Conclusion In the circumstances, Appeal No. 12-46-95 is dismissed with costs here and in the court below. The order of the learned Session's Court judge is varied to the extent that the appellant therein (Sri Inai) is wholly liable 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 learned Session's Court judge. Deposit to be paid to the respondents towards taxed costs. Appeal No. 12-51-95 is allowed with costs here and in the court below. Deposit to be refunded to the appellant (MPPP).

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[1996] 2 CLJ 90
PUBLIC PROSECUTOR v. NORDIN YUSMADI HIGH COURT MALAYA, KUALA LUMPUR DATO' K C VOHRAH 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 years 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 plea of guilt on the offence of rape under s 376 and she ordered him to be detained 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 Sessions Court under the second limb of s. 40 of the Juvenile Courts Act 1947 (Revised Courts Act 1947 (Revised - Act 90) although the respondent was not a "Juvenile" within the meaning of the said Act. It is not clear whether the additional power under the second limb of s. 40 is only available where the person before the 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 the clear terms of s 376 of the Penal Code which indicate that a mandatory term of imprisonment of between 5 to 20 years has to be meted on an offender who has committed rape and the fact that the Judge of the Sessions Court had convicted him 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 the offender "shall be punished with imprisonment". On 23 July 1984 the Federal Court had occasion to construe the words "shall be punished with imprisonment" appearing in s. 193 of the Penal Code . The Federal Court in that case, on a reference 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 reference the whole order of the Federal Court is reproduced below: THE FEDERAL COURT OF MALAYSIA HOLDEN AT IPOH (Appellate Jurisdiction) FEDERAL COURT CRIMINAL APPLICATION NO: 9 OF 1984 Penang High Court Criminal Appeal No. 73 of 1983 Between

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|93| Public Prosecutor ... Applicant And Agambaran s/o Kanee ... Respondent CORAM: 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, MALAYSIA 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 the Applicant and in the presence of Mr. S. Anthonysamy of Counsel for the Respondent 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 Prosecutor 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 Counsel as aforesaid IT IS ORDERED that this Application for leave to refer questions of law of public interest under s. 66 of the Courts of Judicature Act, 1964 namely: (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 the 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 impose 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 Lin SENIOR ASSISTANT REGISTRAR SUPREME COURT MALAYSIA Although no written grounds were given for the Judgment it does appear that the Federal Court rested its decision obviously on the clear meaning of words "shall be punished with imprisonment"; 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 imprisonment to 6 months" appearing in s. 3(a) of the Vagrants and Decrepit Persons 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 regards the phrase "shall be punished with imprisonment": If the legislature had intended that all persons convicted of an offence against this s. 3(a) of the Vagrants and Decrepit Persons Enactment should be sent to prison whatever the circumstances may be, it would have used the expression "shall be punished with imprisonment", which is to be found so frequently in our Penal Code. In PP v. Leonard Glenn Francis [1989] 2 MLJ 158 the President of the Sessions Court had ordered the accused, after convicting him, to be bound over in the sum of RM10,000 with

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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 section provided that the offender "shall be punished with imprisonment for a term which may extend to fourteen years and with whipping with no less than six strokes". Edgar Joseph Jr. J (as he then was) said at 161: With respect, in my view the learned president was clearly in error. Once a conviction is recorded in respect 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 than 6 strokes. In the present case there can be no doubt that a term of imprisonment had to be imposed by the Judge on the respondent who was found guilty and convicted on the charge of rape. The minimum term of imprisonment shall be not less 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 the seventh to have had forcible sex with the victim that night. The learned Judge of the Sessions Court commented that because of his youth at the time of the commission of the offence the respondent must have surely been aroused when he saw 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 right from wrong; and he had forcible sex with the young girl. Rape is a serious offence 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 persons found guilty of rape can plead that they were young when they committed the offence and ask for lenient sentences and then be dealt with leniently. The probation report on which the learned President relied also refers to the fact that the 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 respondent or any other offender may be a first offender and young but those factors alone do not entitle him to be treated with leniency. To my mind the need to deter others in the public interest must supersede other considerations. As is well known rape cases are very difficult to prove and rape victims especially young 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 the 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 sentences. 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 the respondent had participated in a group like a pack of animals to rape the poor innocent girl. But in weighing and apportioning a mandatory term of imprisonment between five to ten years I had to and did take into account his relative youth, 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.

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[1997] 2 ILR 146 SEKOLAH MENENGAH HIN HUA, KLANG v. YU TING YING INDUSTRIAL COURT, KUALA LUMPUR CHAIRMAN: YUSSOF AHMAD 2/4-572/91 (7 DECEMBER 1991) 3, 4 APRIL 1993, 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. The 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 December 1996. Learned Counsel for the claimant was asked to submit written submission before 30 December 1996 but did not do so until 8 January 1997. Learned Counsel 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 walked out on her job. It also pleaded that the claimant was inefficient and disobeyed 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 abandoned the justification of inefficiency and disobeying instruction. The company in this case is a private Chinese School and the claimant was a teacher. The claimant 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 abolished. She testified also that specialised teachers were employed on a permanent basis. The claimant was a specialised teacher in Chinese Language and Music and therefore must be a permanent teacher. The question of renewing her contract in 1990 therefore should not have arisen. But as will be seen later the School's principal witness contended she wanted to discuss the issue of renewal of her contract with the claimant and this arose as a result of the claimant's refusal to become the School's- Dancing Society teacher. The School further contended by refusing to attend the discussion the claimant had automatically dismissed herself. In any event on the strength of the authority in the case of Hang Chin High School/Paining Ha Cawing Associated Schools Association v. The National Union of Teachers 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 fixed terms contracts." On the issue whether it was the School who dismissed the claimant or the claimant who voluntarily left her job there were conflicting evidence 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 School would like to discuss the issue of the renewal of her contract. It was the evidence of the witness that the claimant refused to accept the letter and did not see the principal to discuss the matter. She then said the letter was sent by post. She then wrote

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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 that the claimant refused to accept it and did not see the principal to discuss the issue of the renewal of her contract. It also stated that the School had written to her another letter on 26 October 1990 (as will be seen later this letter was 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 explanation. It is also the evidence of the witness that the claimant did not come to 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 terminated her employment orally and through Cl. 3. Her evidence was that in the morning 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 trouble in the School and was asked to resign. When she was asked what the principal meant she said it was regarding the sponsoring of a teacher from the School to attend a brass band course in Taiwan. The claimant denied refusing to accept CO6 and receiving CO8. It is the submission of learned Counsel for the claimant that the letters CO6 and CO8 were written by the School "to cover up the fact that 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 that it written C1. 3 dated 26 October 1990. This letter said as follows: The contract of employment dated 8 November 1989 between you and Sekolah Menengah Hin Hua will expire on 30 November 1990. Kindly go the departments concerned in our school 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 are 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. The 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 the School to return the property of the School in her possession on 2 November 1990. 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 letter 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 witness. It is the School's submission that the claimant voluntarily left her employment. 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 permanent teacher the non-renewal of her contract amounted to dismissal. The School has not submitted in the alternative that if the

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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 emotional 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 method; 4. She refused to teach the dance society in 1990. The Court is satisfied that only complaint No. 4 is of a serious nature. The first three complaints were minor and in any event they took place in the first year of her service. They were not serious enough to stop the School renewing her contract in 1990. With regard to the complaint that she refused to teach the dance class in 1990 that claimant's reply is that she was under no contractual obligation to teach the dance class. It is true that this was not stated in her appointment letter (CO1). However the claimant is a music graduate from the National Taiwan Academy of Arts. She 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 dance society. However the School did not insist by ordering her to continue to teach 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 one 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 attention and this is according to the claimant by asking her to resign failing which she would be dismissed. To be fair, according to the School the claimant refused to see the principal to discuss this and refused to accept the letter inviting 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 version on the circumstances leading to her dismissal. The School had decided to terminate her employment and invite her to resign. When she refused C1. 3 was written. It cannot be denied that C1. 3 amounted to a dismissal letter. However the School 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. These 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 misconduct. In this case the claimant refused to teach the dance class. It is a lawful instruction. 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 dismissal 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 with 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 existed between the claimant and the School. Her compensation is as follows:

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

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[1997] 2 ILR 34
BANDAR PENGGARAM ASSOCIATES CHINESE SCHOOLS, JOHOR v. GAN CHIN PIAW&ANOR. INDUSTRIAL COURT, KUALA LUMPUR CHAIRPERSON: SITI SALEHA SHEIKH ABU BAKAR 6/4-335/95 (22 SEPTEMBER 1995) 14 MAY 1997 AWARD NO. 213 OF 1997 [14 MAY 1997] The dispute emanates 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 1994 while the 2nd. claimant was informed on 12 December 1994 that his position as a teacher had been terminated. At the outset of the proceedings on 31 March 1997, 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 jurisdiction to inquire into a contract of service for a fixed period, which has expired. Consequently the Court heard the preliminary issue raised and by a ruling handed down and dated 22 April 1997 dismissed the preliminary objection and ruled that it has the jurisdiction to hear the dispute between the parties. On 12 May 1997 the claimant's Counsel wrote a letter to the Court which stated as follows: 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 : 07.05.1997 Tuan Pendaftar Mahkamah Perusahaan, (Kementerian Sumber Manusia) Jalan Mahkamah Persekutuan, 50544 Kuala Lumpur. Tuan, Per:Kes No: 6/4-335/95 Pertikaian Diantara Bandar Penggaram Associated Chinese Schools, Johor (Sekolah Menengah Cina Jalan Tanjung Laboh) Dan Gan Chin Piaw&Soon Boon Teong Kami merujuk kepada perkara tersebut di atas dan surat tuan bertarikh 29.04.1997. Sukacita dimaklumkan bahawa kedua-dua pihak telah dapat mencapai penyelesaian di luar mahkamah terma-terma adalah seperti yang dinyatakan dalam surat bertarikh 30.04.1997 dan 06.05.1997. Maka kedua-dua claimant menarik balik kesemua tuntutan mereka dan memohon tarikh sebutan yang ditetapkan pada 16hb, Mei 1997 dilapangkan. Kerjasama tuan adalah sangat dihargai. Yang benar, tandatangan. In view of the claimants' requests to withdraw their claims the Court accordingly strikes off the case.

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[1983] CLJ 350 (Rep) [1983] 1 CLJ 73
RAMLI ZAKARIA&ORS. v. THE GOVERNMENT OF MALAYSIA FEDERAL COURT, KOTA BHARU SUFFIAN 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 dispute. The appellants are a group of 86 vocational school teachers who, in response to an advertisement in the local press, submitted their applications for teacher training and were successful. Letters of offer (surat tawaran) dated 16 January 1969 for teacher training were sent to them. One of the conditions stated in the letter of offer relates to the pay they would receive upon completion of the 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 material for purposes of this case reads: 3(b) Syarat-syarat bayaran selepas tamat latihan Selepas tamat kursus DUA tahun dan selepas lulus sekali lagi Pemeriksaan Doktor, tuan/ puan akan di terima sebagai guru dalam Tingkatan Gaji Yang di Persatukan dan di undang mengikut syarat-syarat Perkhidmatan bagi Peraturan Gaji Yang di Persatukan itu. Tuan/ Puan akan di beri jawatan sabagai seorang guru oleh Lembaga Pengurus atau Lembaga Pengelola sekolah-sekolah yang berkenaan dan tidak akan di anggap sabagai pekerja Kerajaan. Tuan/Puan juga di haruskan boleh di tempatkan 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 completion 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 relating thereto. You will be employed as a teacher by the relevant School Board of Governors or Management and shall not be treated as a civil servant. One of the other 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 plaintiffs were asked to do an extra year specialist course of training. Upon graduation 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 they 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 1972. By letter Perlantikan Kejawatan Sementara dated 21 September 1972 (AB 27-28), the appellants were

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offered a new scale T2 under the Aziz scheme with a starting salary of RM370. This according to the appellants would still be lower than the salary they would have got if they had been placed first under UTS and then opted into Aziz. The appellants claim that there was a breach of the agreement and pray for an order declaring 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 entered into between the appellants and the respondent the only salary scale in force relating to trained teachers applicable to the appellants was the UTS scale but on completion of the course of training the UTS was no longer in existence. The only salary scale in force then was the salary scale under the Aziz scheme. In this appeal the appellants rely on the following grounds: That the learned Judge erred in law and in fact in (1) upholding the respondent's plea that the contract could not be fulfilled on account of frustration and that it had been discharged (2) not accepting the submission of the appellants that Circular 10/1971 did not apply to the appellants who were then not yet Government servants. (3) not following the decision of Thambipillai v. The Government of Malaysia [1969] Vol. 2 MLJ p. 206 . (4) holding Service Circular 10/1971 as having the force of law 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 dealing 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. Reference was made to Clause 1(c) thereof. We see no reason to disagree. In our view the agreement has spelt out quite clearly that the employment was to be at the option of the respondent exercisable at any time within twelve calendar months of the completion of the course. A student required to serve was to be appointed 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 relating 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 the 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 however 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 execution of the contract the consensus ad idem of both parties as regards the salary scale related to the UTS and hence posed to himself this question: "Can the defendants of their own motion alter the scale to one of a different character from what 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 Judge found substance in this plea. It is common ground that on the coming into force of the Aziz scheme the UTS was abolished. The Aziz scheme was embodied in Circular 10/1971 (15 December 1971). It is stipulated under para. 2 of the circular that teachers will only be recruited to the Education Service under the scheme. 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. After due consideration the Judge concluded that the contract between the parties was

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frustrated. He further concluded that in consequence the respondent could not legally place the appellants under UTS and to do so would be illegal. Reference was made by the Judge to the case of C.B. Reilly v. The King [1934] AC 176 , to support his finding that the respondent could not within the law employ the appellants under the UTS and the contract was therefore discharged. The appellants have contended that there was no frustration of the contract. C.B. Reilly's case, they 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 appellants have also contended that if there was to be a frustration of the contract it 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 substance founded on contract and to succeed in their claim fundamentally they have to establish that there was a breach of the contract. It is not in dispute that 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 unforeseen by the parties that UTS would cease to be in force at the time of the appellants' employment. It is also clear that it was not in the minds of the parties that the UTS would be reviewed and substituted or replaced by another salary scheme as had happened in this particular case. In the present case the appellants are not questioning the Government's right to accept the recommendation of a salaries commission and to effect changes in the terms and conditions of any particular service. The question therefore is if another salary scale is substituted and such scale would cover the appellants should they, if required to serve, be not 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 being in force relating thereto? We are not strictly concerned with the terms and conditions applicable to the post. They are not in issue. The sole issue here is the salary or rather the salary scale in particular the quantum. What we therefore 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 Government of the Aziz Report it became impossible for the respondent to perform that part of its contractual obligation and that therefore the contract was discharged by frustration. Assuming there was in law frustration, then in that event the Judge was perfectly right in holding that the contract was discharged on ground of impossibility of performance. With respect we do not agree. We are inclined to think that there was no frustration and the reason is that it was capable of 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 with discharge by frustration in "The Law of Contract in Malaysia and Singapore - Cases and Commentary" by Visu Sinnadurai at p. 487/8 reads:

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A contract is frustrated when there is a change in the circumstances which renders a contract legally or physically impossible of performance. According to the House of Lords in the case of Joseph Constantine Steamship Line, Ltd. v. Imperial Smelting Corpn. Ltd. [1942] AC 154 , the doctrine `is only a special case of the discharge of contracts by an impossibility of performance arising after the contract 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 impossible, 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 define the word 'impossible'. However, it appears that the wording of the section envisages 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 supervening and subsequent to the formation of the contract. Furthermore, it should be some event which the promisor could not prevent, as a 'self-induced frustration' does not discharge a party of his contractual obligation. Maritime National Fish, 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 performance impossible. Before answering the question we would refer to the English law with 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 follows: 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 follows: If the literal words of the contract were to be enforced in the changed circumstances, would this involve fundamental or radical change from the obligation originally undertaken? In this case Lord Radcliffe said: ... frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do ... There must be ... such a change in the significance of the obligation that the thing undertaken would, if performed, be a different 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, (Ibid 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 transmute the job the contractor had undertaken into a job of a different kind, which the 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 stated: 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 contract, and of the relevant surrounding circumstances when the contract was made', [1956] AC 696 , 720 -721 (per Lord Reid). From this construction the Court should reach an impression of the scope of the original obligation, that is, the Court should ascertain what the parties would be required to do in order to fulfil their literal promises in the original circumstances. This impression will depend on the Court's estimate of what performance would have required in time, labour, money and materials, if there had been no change in the circumstances existing at the time the contract was made. The Court should then examine the situation existing after the

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occurrence of the event alleged to have frustrated the contract, and ascertain what would be the obligation of the parties if the words of the contract were enforced in the new circumstances. Having discovered what was the original 'obligation' and what would be the new 'obligation' if the contract were still binding in the new circumstances, the last step in the process is for the Court to compare the two obligations in order to decide whether the new obligation is a 'radical' or 'fundamental', change from the original obligation, Per Lord Reid, in Tsakiroglou&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 whether 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. Was 'performance ... fundamentally different in a commercial sense'? (Ibid at p. 119). 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 not within the scope of the contract so construed'. [1956] AC 696 , 721. It is submitted that the House of Lords has accepted the view that the test for frustration 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 presumed 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 automatically 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 change of circumstances but the changed circumstances do not render a fundamental or radical change in the obligation originally undertaken to make the performance 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 circumstances namely the substitution of a new salary scale under the Aziz scheme and the abolition 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 respondent should not be allowed to rely on frustration if it itself created the frustration, that is, if it was a self-induced frustration. The appellants have alleged 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 the Government is the deciding authority and the power is provided by law. Such authority cannot be made subject to any agreement that may be entered into between 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 there was no question of any self-induced frustration. Basically the question remains 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 actual effect of the promises of the parties construed in the light of the new circumstances. As a first step in the enquiry we would consider the status of the Service Circular. It is to be observed that the Judge has said and we quote: The UTS upon coming into force of the Aziz Scheme has been suspended and from the date of Circular No. 10 of 1971 (13 December 1971) which embodied the Aziz Scheme, it is stipulated under Clause 2 that teachers will

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only be recruited to the Education Service under the Scheme. This Aziz Scheme was adopted by the Government and gazetted as a result of the Aziz Commission report. The Commission was appointed by the Yang di-Pertuan Agong under the Commission 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 completed their enquiry submitted their report and which was accepted by the Government in the form of Service Circular No. 10/1971 aforesaid". Clearly the Service Circular came to be issued after the Government had approved the Aziz Commission Recommendations. The Commission was an independent body established under an Act of Parliament and charged by law with specific terms of reference. One of its functions was to submit recommendations on salary schemes relating to teachers to form not only the basis of a revision of salaries of those in the service but also to provide terms and conditions of service and salary scales for new teachers. In our view, the Judge made a correct finding of law when he held that the conditions of appointment and conditions of service as embodied in Service Circular 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 Government 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 any particular person or group of persons. Neither was it the object of the respondent to escape performance of a contractual obligation under any contract. The Government accepted the Aziz recommendations and in fact put into force an improved salary scale and it was applicable to the appellants. Thus the UTS was abolished 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 performed. It is also the appellants' contention that the contract was not frustrated and that the respondent could perform the contract but the respondent must amend 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 appellants' contention that the Circular could not apply to them as throughout the Circular 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, recruitment of teachers into the existing 'Government Education and Teaching Services' and the 'Unified Teaching Service' shall be suspended and, thereafter, teachers 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 Federated Malay States, 1936. And para. 1 of the Circular reads: Following the recommendations of the Royal Commission on the Teaching Services, West Malaysia (the Aziz Commission), the Government has set up the 'Education Service'. The Education Service 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 reasonably required of them. Paragraph 2 sets out the four categories of the education service and category T relates to the appellants. The salary scales are to be found on pp. 61 and 62 of the circular.

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Apart from para. 3 of the Circular which provides that "thereafter, teachers will only be recruited to the Education Service referred to in para. 1 above ..." there is revealed that as from the date when the Circular came into force the intake of teachers to the teaching service would be in accordance with the terms and conditions and salary scales provided under the Circular. This is reinforced by the provisions which govern the terms such as "entry qualifications", "application", "probationary period" and so forth. These provisions clearly invalidate the appellants' contention that the appellants were not covered by Service Circular 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 Thambipillai's case we do not see how that decision could support the appellants' contention. 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 more than a mere declaration of policy. The same cannot clearly be said of Service Circular 10 of 1971. Paragraph 1 of the Service Circular reinforced by para. 127 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 circular. The only remaining point raised by the appellants is that they should first 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 anomaly 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 the 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 appellants claim as disclosed from the pleadings. Moreover, we so not see how the appellants 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 had not erred in law and in fact in arriving at his decision. We ourselves have reached the same conclusion although for somewhat different reasons. Accordingly we would dismiss this appeal with costs.

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[1984] 1 CLJ 152 (Rep)

[1984] 1 CLJ 239

HEADMISTRESS, METHODIST GIRLS SCHOOL&ORS. v. THE HEADMASTER, ANGLO-CHINESE PRIMARY SCHOOL, LAHAT ROAD, IPOH&ANOR. FEDERAL COURT, KUALA LUMPUR SALLEH ABAS CJ (MALAYA) 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 1973 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 Primary 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 driver) for damages and they in turn brought in the respondents (Headmaster of the school and the Government) as the third party claiming for a contribution in the event of lability being found against them on the ground that they as school authorities were also partly liable for allowing the bus to enter the school compound. |153| The trial Judge found the appellants wholly liable and awarded the plaintiff a sum of RM20,000 as general damages and another sum of RM794 as special damages and dismissed the appellants' claim for contribution against the respondents with costs. The appellants are unhappy that the learned Judge dismissed their claim for contribution and hence this appeal. The issue raised by their Counsel in this appeal in this: whether the respondents, being the school authorities, in the circumstances of this case, were guilty of contributory negligence in allowing 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 way as to leave a wide open square space (referred to herein as "the square") in the middle as the school playground. In the centre of the square stands a twostorey building used as the school assembly hall. The principal's office is in the first block right opposite of this hall. At the entrance of the school compound there is a gate, from which a drive-way past a house on the left leads to the square. Outside the gate there is a church. Parents' cars are not allowed to come into the square to pick up their children. The school authorities insisted that they wait for their children outside the school gate by the church. However, teachers' cars are allowed to come in and park in the square and school buses, of which there were only two, were also allowed to come into the square to drop and pick up children. Since this accident, buses are no longer allowed in and since then the school authorities have now posted a big notice board at the entrance prohibiting 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 come and stop in front of the principal's office to drop children. After that it would reverse and turn in the direction of the church and then park in front of the principal's office to wait for the children. It was during the course of dropping 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 but its side was also bounded by an iron

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railing. As the bus was being negligently driven, there was hardly any space left 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 plaintiff 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 authorities, are under a duty to keep the school premises safe. They knew that the road was extremely narrow and looking after children being their regular function, 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 preventing 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 them to manoeuvre. We find ourselves extremely difficult to hold the school authorities free from any blame. In our view they must share the blame with the appellants. But the question is at what proportion? In view of the fact that their fault 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 appellants, 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 school 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 Court below and order that the appeal deposit should be refunded.

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[1989] 2 CLJ 176 (Rep)

[1989] 1 CLJ 1091

NATIONAL UNION OF TEACHERS IN INDEPENDENT SCHOOLS, WEST MALAYSIA v. HAN CHIANG HIGH SCHOOL, PENANG HIGH COURT MALAYA, KUALA LUMPUR EUSOFF CHIN J [CIVIL APPEAL NO. R8-16-18-88] 27 JANUARY 1989 |177| JUDGMENT Eusoff Chin J: The appellant in this 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 Industrial Relations Act 1967 (IRA) for 9 questions of law to be referred to the High 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 Industrial Relations Act 1967 (the Act) has no relation to the locus standi of the union when (on its own finding) at least as at the date of the hearing the applicant represented at least 35 of its members in Court. 3. Whether or not the Industrial Court erred in law when it concluded that "... all the teachers who were union members therein had either resigned from the union or had left the school because their contracts were not renewed ..." without evidence being led by the respondent on whether or not there are in fact union members still in the employ of 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 para. 7) "... all the teachers who were union members therein had ... left the school because their contracts were not renewed." When (at para. 5 ) it had held that "... 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 in 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 failing to take into account the undisputed fact and its own finding that at least the thirtyfive teachers whose dismissals were the subject matter of another trade dispute pending adjudication before another division of the Industrial Court were and are members of the applicant at all material times. 6. ... 7. ... |178|

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8. ... 9. ... Before me there was some arguments as to the jurisdiction and powers of the High Court when hearing an appeal under s. 33A of the Industrial Relations Act , i.e. whether the High Court is limited to determine only questions referred 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 Court a question of law: (a) which arose in the course of the proceedings; (b) the 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 determine 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 considers just or necessary. It appears that on the application of any party to the proceedings in which the award is made, the Industrial Court is not bound to refer any question of law to the High Court under s. 33A(1) of the Industrial Relations Act , unless the Industrial Court is satisfied that that question is one which fulfils all the conditions provided in that section. In exercising its power to refer or not to refer a question to the High Court, the Industrial Court will 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 each question referred to the High Court will be treated as a ground of appeal. Under subsection (5) of s. 33A of the Industrial Relations Act , the High Court will 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") and the National Union of Teachers in Independent Schools, West Malaysia (hereinafter referred to as "the union") over their failure to conclude a collective agreement 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 Chinese students who are unable to get admittance into the national type schools. It employed 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 managing committee of his/her acceptance within one week from the date the renewal of the contract is offerred. Otherwise the offer is deemed to have been rejected.

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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 employment. |179| Some of the teachers' contracts have been renewed under these terms for more than twenty years. During the year 1985/86, the school had in its employ eighty-three teachers. Sometime in 1985, fifty-three of these teachers joined 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 response to the union's claim for recognition and, on 28 August 1985 the union reported the matter to the Director General of Industrial Relations. By a notice dated 23 August 1986, the Minister of Labour accorded recognition to the union and directed the school to take notice of such recognition under s. 9(5) of the Act . On 21 October 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 decided not to renew the contracts of all the teachers who were members of the union. Each of these teachers received identical notices, as follows: Dear Sir/Madam, As instructed by the board of directors, we would like to inform you that your service agreement with the school will be expired on 31 December 1986. The board of directors would like to take this opportunity to thank you 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, the High Court in Penang granted injunction prayed for by the union. The school then 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 added that the Industrial 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 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 school and the union were then locked in two disputes - one was a dispute over a collective agreement on wages and terms and conditions of employment for the teachers 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 referred 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 teachers was referred to the Industrial Court on, 14 August 1987. In the instant case, the Industrial Court is concerned only with the dispute over the collective agreement. The dispute over the alleged wrongful dismissal of thirty-five teachers is before another division of the Court. At the hearing in the Industrial Court on 27 July 1987 and 28 January 1988, the school raised a preliminary issue that the union had no locus standi to represent the teachers in the instant

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case, as it contended that 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 school then relied on the case of Reading&Bates (M) Sdn. Bhd., Miri v. Sarawak Union of Lands |180| & Offshore Drilling Workers [1987] 1 ILR 299 to support its contention. The union, on 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 company 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 between the company and the union on collective agreement. The Industrial Court here 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 Industrial 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 dispute 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 award in respect of the dispute on 27 February 1988, when the question of locus standi of the union was heard by the 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 the conclusion that the teachers' services had been lawfully terminated. This Industrial Court had no jurisdiction to determine that dispute, because that very dispute had not been referred to it by the Minister, 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 evidence. 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 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 shall 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 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, 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 have 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 with costs, quash the award and make the further order that another division of the Industrial Court shall hear this dispute.

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[1998] 5 CLJ 400
LIM TENG LENG v. PP HIGH COURT SABAH&SARAWAK, KUCHING IAN HC CHIN J [CRIMINAL APPEAL NO: 42-01-98-I] 3 APRIL 1998 JUDGMENT Ian HC Chin J: This is an appeal by Lim 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") under 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 April 1996 the child complained to her class teacher Suriani binti Rahim ("the teacher") 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 it 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 did 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 tell this teacher that the child had problem sitting down. It was only then that it was decided to take the child to the hospital but the hospital attendant requested a police report be first made before the child can be treated. A police report was then made by the teacher and the child was later taken to the hospital by 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 stepfather. Dr Clarence Choo examined her on 26 April and concluded that there was penile 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 examination. 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 said 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 sexual disease which may have caused the infection of the vagina. In any event there 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 accused carried her from her room to another room when her mother was working and while 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 before she told the teacher the incident which placed it on 25 April. She described she cried in pain but the sound was stifled by the accused putting his hand and her clothing over her mouth. Her other evidence touched on her complaint to the teacher, the trip to the hospital and to the police station all of which are not matters of dispute. The mother of the child also testified for the prosecution and it is her evidence that the defence placed reliance on for its contention that the accused

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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 accused, cast a doubt in the case of the prosecution. Learned counsel's submission was fastened on the fact that the evidence of the mother was not impeached. Whether 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 stepfather 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 child was two years old. However, the mother when cross-examined, gave evidence which the learned Sessions Court judge in her judgment discredited and which judgment I will advert to later. The evidence of the mother elicited by cross-examination are these: [The child] did not sleep with me. I was residing at Pending when the child was born. We continued to stay at Pending after I married the accused. The family moved back to Bako two years ago. The house we stay in Bako belongs 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 brother 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. Suraiya 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 had 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 shift. My company had a punch card system. (A document shown). This is my punch card. 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 and 26th. I was also at home on April 24th and I slept with [the accused] in the same room. I disagree with [the child] when she said that I was working on the night 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 adopt [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 stomach ache that day. The school teacher was not present. [The child] never informed me that [the accused] disturbed her. Aminah came to Court with me today. Suraiya is almost as tall as me. I made a mistake Aminah did not come to Court today. The police did not record any statement from me regarding this case. The police 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 disturbed [the child] because I was always in the house.

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Suraiya is alright with [the accused]. But not [the child]. My father likes my husband. Aminah also likes [the accused]. Clearly, those evidence are exculpatory of the accused and the learned Sessions Court judge was also of that view because 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 1950, 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, 1996. [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 around 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 was 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 disagree 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 following evidence: I disbelieve [the child] when she told me the reason of her admission. 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 month. 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 certain questions when cross-examined and (2) the failure of the defence to produce through the mother the punch card to show that she was off-work at the relevant time 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 was also of the view that the mother was not an entirely disinterested party resulting in her evidence requiring corroboration if it was to be acted upon, relying on Liow Siow Long v. PP [1970] MLJ 40. It was thus that she commented on the failure of the mother to produce the punch card. In PP v. Kang Ho Soh, it was, inter 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 truthful. 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 that they should not have called him. As to this I hold that merely because the prosecution has called a witness it does not follow that he must be accepted as truthful. Teh

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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 that conclusion. What then is the law regarding the issue? The various stages of the 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 statements 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 should have been interviewed and her statement recorded regarding her whereabout during the time the rape took place. This is important in many aspects. If the mother 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 was or was not working that night and there will be record to establish that. If the mother's statement showed that she was in fact working night shift, the mother 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 material 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 worked 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 working 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 of the child but exposing the prosecution's case to the danger of not knowing what 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 statements would have been taken from all potential witnesses. It is only after a statement had been taken from the mother that the prosecution would be able to tell whether the mother was or was not telling the truth when she said she was in the bedroom when the rape was alleged to have taken place. But that alone should not mean the end of the case for the prosecution. The overall evidence ought to be looked at. It has also to be considered whether the learned Sessions Court judge was 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 home, then it would be in the interest of justice that the truth ought to be revealed. Section 154 of the Evidence Act 1950, would come into play. That section says: 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 which contradicts what the mother said in court, then it is the duty of the prosecution to invoke s. 154 of the Evidence Act 1950, in order to put questions to the 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. 812, to be this: Principle. A party may with the permission of the Court, put leading questions to the witness under the provisions of s. 143 or cross-examine him as to the matter mentioned in ss. 145 and

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146. The rule, which excludes leading questions, is chiefly founded on the assumption 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 either 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 party is held to recommend him as worthy of credence, and so it is not in general open to him to test his credit, or impeach his truthfulness. But there exist cases in which the rule should be relaxed at the discretion of the Court, as for instance, where there is a surprise, the witness unexpectedly turning hostile, in which and in other cases the right of examination ex adverso is given. And when the defence has elicited new matter from a witness for the prosecution in cross-examination, the Court may, under this section, permit the prosecution to test the witness's veracity on this point by cross-examining in turn. A witness, whether 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 the purpose of placing the witness fairly and completely before the court. The said 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 not depend upon hostility. The discretion should be exercised liberally whenever it appears to Court that due to the demeanour, attitude way of answering question 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 with caution. It should not be exercised without sufficient reason. The reason should be stated because, by offering a witness, a party is held to recommend him as worthy of credence and so, in general, it is not open to him to test the witness's credit or impeach his truthfulness. Where reasons are not recorded, it would not be a case of valid exercise of discretion under Section 154 of the Evidence Act. Sarkar on Evidence, vol. 2, 14th edn, p. 2082, elaborated on the situation of an unfavourable prosecution witness in these terms: It is not open to the prosecution in a criminal trial to cross-examine their own witness unless the court 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 with 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 declare him hostile [Parameshwar v. R, 99 IC 705: A 1926 P316]. It is the established practice that a court would not allow a party to question him under s. 154 until 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]. It is not right for the public prosecutor to declare a prosecution witness hostile. The only way in dealing with witnesses who go back on their statements or testify in a way which is frankly against the interest of the party calling them lies with the judge. It is the duty of the public prosecutor to formally ask the leave of the court to crossexamine the offending witness both in regard to the evidence 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, there must be some material to show that he is not speaking the truth or has resiled from his earlier statement [Gopal Krishnan v. State, 1981 Cri LJ NOC 160 (Delhi)]

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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 knowing 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: Testimonies of PW7 [the mother] Your Honour, the primary intention of the prosecution calling 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 of PW4 and the only person who can give accurate testimony on PW4's age, the prosecution therefore has no alternative except to call her. Nevertheless, on the part where she (PW7) told the court that she was at home and sleeping with the accused at the time the incident took place, I would like to humbly urge and beg This Honourable court not to consider and to attach no weight to this piece of testimony on the ground that she (PW7) is an INTERESTED PARTY to this case. Your Honour, PW7 is the present wife of the accused and being in such a position, she is surely to give evidence in favour of the accused. Moreover, the prosecution could not challenge her evidence as she was called by the prosecution and the prosecution was also in a position whereby the prosecution could not impeach her credit as the prosecution requires her (PW7's) evidence on the age of the victim (PW4). The position taken by the prosecutor shows that he was labouring under a misapprehension 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 you 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 counsel for the accused. That, in my opinion, is an erroneous view of the law as can be 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 witness 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 witness is not to be rejected either in whole or in part. lt is not also to be rejected so far as it is in favour of the party calling a witness, nor is it to be rejected so far as it is in favour of the opposite party. When a witness is cross-examined and contradicted with the leave of the court by the party calling him, his evidence cannot be washed off altogether. The judge may, after reading and considering the evidence as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his statement which is creditworthy. See in Sarkar on Evidence, vol. 2, 14th edn, p. 2085. I have earlier when referring to PP v. Kang Ho Soh remarked that no authority was cited for the proposition of law there stated, which is 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 truthful. However, it seems to me that the authority for that proposition can be found in Babu Ram v. R, A [1937] A 754. The relevant part of the judgment of that case, in which a person was charged with receiving a stolen buffalo, reads:

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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 Jagannath sold the buffalo and executed the receipt, and the prosecution made no application 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 Judge bases his general proposition that a party is bound by the evidence of a witness 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 circumstances a Court which is deciding a question of fact may say that a party produces 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 do not think that it is possible to go further than that. Nor do I know of any rule 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 application 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 mention that this Court has more than once complained that public prosecutors have not produced witnesses who alleged they had knowledge of the facts or who might 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 witnesses, their position would be impossible. In the first place it would be urged that they had not done their duty because they had failed to produce the witness even 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 bound by the witness' statement. In this case presumably as the receipt was in existence and purported to have been drawn up by Wazir Khan, the prosecution felt that it was only fair that they should produce Wazir Khan before the Magistrate who might then be in a position to say whether he was or was not speaking the truth. It by no means follow that they themselves relied upon his evidence in any particular 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 accused 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-examined or impeached. The court, notwithstanding the lack of cross-examination or impeachment, is entitled to ascertain the truth or otherwise of the evidence of the prosecution witness. In this regard the learned Sessions Court judge did not err. 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 truth before the court can embark on an exercise of discrediting the witness. If there was a statement recorded under s. 112(i) of the Criminal Procedure Code which 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 show 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 which 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 conclusion that the mother was not telling the truth,

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one cannot find any fault there. As for the reason (2), the learned Sessions Court judge had observed the spectacle of the mother producing a punch card to supposedly support her assertion that she was off-duty and was with the accused during the period but the punch card was discovered to be for another period. This spectacle, apart from supporting the learned Sessions Court judge decision that the mother was eager to help the accused, also justified the conclusion that if the 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 mother, because she is the prosecution witness, was supposedly a witness of truth, the learned Session Court judge was entitled to conclude from her demeanour and from her failure to produce the relevant punch card that she was not a truthful 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 she was in the house at the relevant time. Mr. John Shek had also submitted on other 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 prosecution. It is to those grounds that I will now turn to. Whether The Learned Sessions 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 convicting 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 case the accused was convicted of rape when there was a direct conflict of evidence between the accused and the complainant as regards whether there was consent for the intercourse. The trial judge believed the complainant that she was frightened into submission and concluded that: "I could not but come to the conclusion 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 "corroboration" 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 complainant'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 been a case where the learned Judge had in mind the risk of convicting without corroboration, but nevertheless decided to do so because he was convinced of the truth of the complainant's evidence, nevertheless they do not think that the conviction 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 uncorroborated, that the case against the accused is established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary 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 that any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his

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evidence may be received, though not given on oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. Provided that, where evidence 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 evidence is corroborated by some other material evidence in support thereof implicating him. Where the evidence of the child witness is received upon [oath] as in this case, there is [no] rule of law demanding that such evidence should be corroborated. 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 rape 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 cautioned 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 danger of acting on uncorroborated evidence. Mr. John Shek did not refer to the passage and therefore had not said how it can be said that it does not reveal the fact 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 had erred in concluding that there was corroboration when there was none. Did the learned Sessions Court judge require corroborative evidence? Mr. John Shek did not point to any particular passage of the judgment where the learned Sessions Court 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 child 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 corroboration. However, the term "corroboration" or "corroborated" was used several times in her judgment after she had warned herself of the danger of convicting 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 rape and the learned Sessions Court judge concluded that it was true in these words: 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] evidence that she experienced pain in her private part when the accused was positioned on top of her and also after he got off from her. She said that she experienced this pain when she is sitting or walking. She felt the pain on the next morning. 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 the patient. According to him the top of the vagina appeared red and the uterus and cervics were painful to touch. These show that the pain experienced by [the child] was not feigned but genuine. For the reasons given in the above, I am satisfied that there was sexual intercourse and penetration. The learned Sessions Court judge was mindful of the fact that she must be satisfied beyond reasonable doubt that the child was telling the truth when she complained of pain. The learned Sessions Court judge proceeded to make such a finding after giving the reasons, none of which can be faulted. What the evidence showed was that the pain was continuing even up

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to the time the doctor examined the child. Such a finding was necessary as a result 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 object which the learned Sessions Court judge discounted. It was in the context of establishing 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 finding of fact that her observation on the pain suffered by [the child] is corroborated 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 term. 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 child. Is There Evidence To Establish Beyond Reasonable Doubt That It Was The Accused Who Raped The Child? The contentions of the accused in relation to this ground are that (1) there was no evidence of penetration and (2) there was no evidence 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 of penile penetration had relied on the medical evidence that came from Dr. Clarence Choo who gave evidence that it was more probable than not that there was penile penetration because of the fresh tear in the hymen which happened within seven days of his examination. Though he had earlier when crossexamined said that the tear could have been caused by penile penetration or by fingers or by wood but he later ruled out the latter two because of the redness in the vagina and because 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 find the report of the test. The learned Sessions Court judge also took into account 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 sit 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 the private part, to satisfy herself that there was sexual intercourse. Against these evidence, Mr. John Shek submitted that a case beyond reasonable doubt had not 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 presence of spermatozoa and (4) the evidence of the mother that she was at home when 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 with 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.

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As for ground (2), the learned Sessions Court Judge had accepted the fact that the 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 police 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 can be drawn and it should not cast any doubt on the case for the prosecution. Learned counsel did not raise the matter of the loss of the spermatozoa test result in the lower court, ground (3), and consequently the learned Sessions Court judge 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 must be viewed with the evidence of the fresh tears of the vagina. There was at that stage of the case no evidence to suggest that any thing else other than the penis of the accused that caused the tears of the vagina. As for the evidence of the 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 which I could find no fault in her conclusion. Again, I am of the view that the evidence of the mother did not prevent a case beyond reasonable doubt from arising at the close of the case for the prosecution. I turn now to the question of whether 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 proved beyond reasonable doubt that it was the accused who had sexual intercourse with the child. I have already dealt with the grounds and concluded that they have no merits. Therefore, this contention of learned counsel that there was no evidence beyond reasonable doubt that it was the accused who raped the child also has no merit. It was perfectly within the law for the learned Sessions Court judge to have accepted the evidence of the child that it was the accused who had raped her. Mr. John Shek had argued that the learned Sessions Court judge should have insisted on corroboration of the evidence of the child. However, learned counsel had by referring to various authorities conceded that corroboration was not as a matter of law required. The learned Sessions Court judge had addressed herself on all the points raised by learned counsel concerning (1) the evidence of the 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 teacher, (3) the statement by the child to the teacher and (4) the medical report which I had earlier mentioned and which the learned Sessions Court judge had dismissed as not raising any doubt as to the existence of a case beyond reasonable doubt 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 which I will not detail them here but which I would have dealt with by the conclusions that I have already arrived at. It suffice for me to say that they have

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already been addressed by me. The other grounds that I have to deal with are directed specifically at the way the learned Sessions Court judge considered the evidence 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 evidence adduced by the defence and which the learned Sessions Court judge had dealt with, in my view, exhaustively. The accused gave a statement from the dock and this 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 sister-in-law of the accused testified for the defence. The learned Sessions Court judge 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 surrounding this part of her judgment, viz: Accused elected to give an unsworn statement. He said that he really did not do it as he had told the court in a trial within trial. To corroborate his claim of innocence, defence called DW2 ... who is the sister-in-law of the accused and the aunt of [the child]. DW2 testified in evidence in chief that she was staying together with [the mother], the accused, [the child] and her late father in the same house owned by her late father. She had 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. DW2 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 went to school on the morning when she made a complaint to her teacher. It was a Friday. She claimed that she was at home on the night before ie, Thursday. She claimed 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 accused returned home at around 10.30p.m. She retired to her bedroom between 12 midnight and 1.00a.m. while [the mother] and the accused went inside their own bedroom. When she went inside her bedroom she saw that [the child] was already asleep 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 scolded him and she does not believe that something had happened. She reiterated that 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 passed away in August 1996. According to DW2 the police had neither interviewed her 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 up sometime ago. She used to work when her mother was alive but she has stopped working since her mother had passed away in 1995. She has been staying in her late father's house even before her relation with the first husband had broke up. We heard from her that she was a housewife in April 1996. She claimed that her

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father who was paralysed and looked after by her, supported her and the two children 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 everyone in the family, her own family included, ate together. DW2 admitted that her relationship with the accused is good. However, she would not support him if he 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 her sister and she is now remarried. She however agreed that the accused bought the food provisions and that around the time of 1996 until she remarried, she depended on the accused for support. She agreed that she needed to have good relation 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 remarried in July 1996 and she is still living in the same house. Asked what movie she was watching on that night. DW2 cannot remember the title of the movie. She remember that she was at home that night. She testified that after returning home 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 suggested that she was only guessing the date when she said that she was with her sister 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 offence 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 insisting 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 help the accused because she and her family had to some extent depended on the accused for livelihood. She disagreed that she was guessing when she said the day was Thursday 23rd. In re-examination, DW2 said that she stayed at home after 8.00p.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 is 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 Wednesday night when she mentioned malam Khamis. Defence contended that the accused's unsworn evidence is supported by the evidence of PW7 and DW2, hence it is not a mere denial. As far as PW7's evidence is concerned, I have earlier given my reasons 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 DW2 were very close to each other having stayed together and the latter seeing [the child] growing up and sharing the same bedroom. Be that as it may, I have strong 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 her insistence that, prior to her father's death in August 1996, she and her two children were supported by her late father from his savings and that her new husband is supporting her now after she remarried in July 1996, the fact remained that she was a housewife since 1995 after her mother's death and she was still a housewife in 1996, and that she and the two children ate the food that were bought 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 testified in evidence in chief that her sister PW7 was at home on 23rd and 24th. In cross-examination she said she was referring to Thursday 23rd. In re-examination she 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 she cannot even

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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 [the child] had also said that the incident happened the night before she complained 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 that PW1 would thereby frame the Accused. It is also significant that this allegation has never been put to PW1 in crossexamination. In light of the above and bearing in mind that DW2 had for more than one year, cater the foods bought with the money given by the accused and the fact that they are still staying together on good terms in the same house, I disbelieve DW2 when she claimed that nothing had happened at all. The medical evidence has established beyond reasonable doubt that [the child] was subjected to sexual intercourse by penile penetration. I believe the doctor who had explained why the hymen tear could not be caused by wood 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 according to [the child], she was raped by her stepfather, the accused person. I strongly 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 statement. Moreover, any denial made by the accused therein would not and could not be challenged 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 although an accused person is within his legal rights when he elects to make a statement 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. The 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 his defence, and have the opportunity of making his explanation of the circumstances proved against him. True, his statement was not made on oath, and that he was not liable to be cross-examined by the prosecuting counsel, and what he said was 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 circumstances 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 totality 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.

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Whether Questions Should Have Been Allowed? Mr. John Shek submitted that the learned 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 counsel 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 on 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 that she depended on her father. A: I agree that my brother-in-law buys the food everything. 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 livelihood. 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 to elicit from DW2 as a result of the said cross-examination. Mr. John Shek argued that the prosecution should not have been allowed to question DW2 in the manner 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-examination that tended to revealing the truth. Whatever questions that have been put in cross-examination by the prosecution were, I am of the view, within the limit laid down by ss. 143 and 146 of the Evidence Act 1950. DW2 was pressed to answer whether 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 her 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 process 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 able to say what law was infringed when the questions and answers, supra, were allowed. Whether There Was Miscarriage Of Justice Mr. John Shek had submitted that the learned Sessions Court judge was unfair, unjust and prejudicial to the accused when she, in the concluding part of her judgment, made the following remark, viz:

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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 circumstances proved against him. Instead he just relied on PW7 [the mother] and DW2 whose evidence I have evaluated and attached very little weight thereto. Having regard to the totality 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. Learned counsel submitted that "there is no possibility for the appellant to make any explanation to the amended charge framed by the learned trial Sessions Court judge herself." I will deal first with the question of the amendment of the charge which was referred to and contended by learned counsel to be 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, judgment was reserved to be delivered on 15 October 1997 but this was changed to 19 October 1997 on which date the learned Sessions Court judge amended the said part 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 charge, 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 witnesses. The court then adjourned to 27 October 1997 whence the stand-in counsel informed the learned Sessions Court judge that the defence did not want to recall any witnesses. The court then delivered its judgment and convicted the accused. 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 [1962] 28 MLJ 388. Salamah binte Abdullah&Anor case concerns a situation where a more 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 was 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 substituted. 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 the prosecution. This is expressly provided by Section 173(h) of the Code which, indeed, not merely authorises but positively requires the Court to consider the charge 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 not illegal in the sense that it was not in accordance with the Code but in my view it was in the circumstances unjust. The court had ruled that it was unfair because it had relied on the evidence of the accused to amend the charge when the law 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 to 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 have been perfectly entitled to say that the offence had been proved to be committed within the time specified in the charge that was amended at the close of the case 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

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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 that a charge should contain particulars as to time, place and person, viz: The charge shall contain such particulars as to the time and place of the alleged offence and the person, if any, against whom or the thing, if any, in respect of which 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 the 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 think 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. where 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 "within 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 learned counsel, the facts there are also radically different. Anyway, the court there held that it was in order to amend the charge after the defence was called though 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 explanation to the amended charge framed by the learned trial Sessions Court judge herself," I do not see how this submission can be sustained. The accused declined to exercise 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 submitted that the sentence was too severe and that the learned Sessions Court judge had failed to consider the background of the accused. The learned Sessions Court judge had sentenced the accused to 13 years imprisonment and one stroke of whipping. Learned counsel did not refer to the court any case to show the sentencing trend. The same learned Sessions Court judge had in another case (Criminal Appeal 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 in the interest of justice that the sentence in this case, after a full trial, should 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 side as she only imposed a single stroke of whipping. Since the learned deputy public 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 accused is a first offender, (2) the long prison sentence would cause hardship to the 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 parasite to society, a shorter sentence should be imposed. I am of the view that those

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matters, urged by learned counsel, cannot out-weigh the seriousness of the offence. It is because that it is so easy for this sort of offence to be committed and because it is almost impossible for any child to defend herself against rape that a deterrent sentence is called for in order that such offence should be stopped. 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.

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[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 Magistrate of having used criminal force on one eight year old girl ("the child") with 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 that he between January 1991 and July 1991, between 7.15 a.m. and 5.45 p.m. in Sekolah Rendah Tanjong Batu Darat, Tawau, used criminal force on the child intending thereby to outrage her modesty. The charge reads: Bahawa anda, antara bulan Januari 1991 hingga bulan Julai 1991, antara jam 7.15 pagi hinggi 5.45 petang sepanjang 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 of the prosecution are these. The mother of Siti Salwa Bte Kamil ("the child") testified that on 16 July 1991 at about 9.30 a.m. the child came home with 5 school friends. She heard one of the children said: "Makcik, si Salwa selalu kena tangkap 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 often 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 asked 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 on 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 the 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 and 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 part of the child. This happened 5 times. The first of which took place in the class room and this was in the afternoon during the time which the child was supposed 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

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and the day was not ascertained. The fifth time took place during a school period and in the accused's house where the child was brought there in a van by the accused. 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 teacher. PW3 confirmed that the child had explained to her and other classmates as 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 that 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 mathematic 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 thereafter 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 but the notes of proceeding do not show what the report stated and neither was the medical report produced though reference was made to it by the prosecution, the defence and the learned Magistrate. It is from these references and the answers elicited from the doctor when being examined as a witness that it could be guessed 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 could be seen by anyone who happened to be at the verandah and by anyone at certain building away from the class room. He produced similar evidence with regards to the library where three of the acts were alleged to have taken place. A relative 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 was also produced that the children of the accused, who lived with the accused, attended 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. Grounds of Appeal Mr. Mirdin Mamdin, Counsel for the accused, both at the trial and 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 reference 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 child to outrage her modesty. The charge related the school as being the place where the offence was alleged to have been committed. Though the charge was not more 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

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without any objection from Mr. Mirdin Mamdin, tending to show that the accused had on five different occasions committed similar act at the school library (three times), at the classroom and in the house of the accused. It ought to be observed that s. 164(i) of the Criminal Procedure Code allows not more than three similar 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 the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. Therefore, at most, the accused could only have been charged and tried at one trial with three of the alleged offences. Mr. Mirdin Mamdin's attack was directed at the evidence of the alleged offence 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 convicted 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 place 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 though 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 thereto 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 such) which the learned Magistrate imparted into her judgment and which she gathered as a result of her, what I can term as, investigation by her revisiting the school on her own after the close of the case. As a result of her visit, which was made some two and a half years after the date of the alleged offences, she disbelieved the accused as to the visibility of the library and the class room to people 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: Although, however, judges and juries may, in arriving at decisions, use their general information and that knowledge of the common affairs of life which men of ordinary 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 need mention one other unsatisfactory feature of this case before I make my decision as regards this appeal. The learned Magistrate treated the evidence of PW3 that 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 evidence is only corroboration of the child's evidence if the charge is for the offence 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 justice, I allow the appeal and set aside the conviction and

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sentence. However, there should be a retrial, which I so order, of the accused on the following three charges which shall be tried together by another Magistrate, viz: Pertama, Bahawa kamu, di-dalam tempoh masa antara bulan Januari 1991 hingga bulan Julai 1991, antara jam 7.15 pagi hingga 5.45 petang, bertempat dil Pusat Sumber 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 s. 354 Kanun Kesiksaan . Kedua, Bahawa kamu, di-dalam tempoh masa antara bulan Januari 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, 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 dihuhum di bawah s. 354 Kanun Kesiksaan . Ketiga: Bahawa kamu, di-dalam tempoh masa antara bulan Januari 1991 hingga bulan Julai 1991, antara jam lebih kurang 7.15 pagi hingga 5.45 petang dirumah kamu di Air Panas, 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 s. 354 Kanun Kesiksaan . There is just one final matter which I would 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. 133A 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 evidence 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 employed in ascertaining whether a child should give evidence on oath or affirmation or 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.

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[1981] 1 LNS 13 FADZIL BIN MOHAMED NOOR v. UNIVERSITI TEKNOLOGI MALAYSIA
FEDERAL COURT, KUALA LUMPUR Raja Azlan Shah CJ (Malaya), Abdul Hamid FJ&Abdoolcader J [Civil Appeal No. 128 of 1980] 22 May&16 June 1981 Raja Azlan Shah CJ: This 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 shall call "the University") of the appellant was ultra vires, illegal and void and that the appellant is entitled to be paid his salary and all emoluments as from the date of the purported dismissal. The appellant was during the material period 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 Election. As he found the period insufficient he sent a telegram requesting for extension 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 committee 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 explanation. After a period of 8 months the appellant received a letter dated 13 February 1979, stating that the University Council at its meeting held on 22 January 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 excerpts of the said letter: Encik Fadzil bin Mohd. Noor, Pusat Pengajian Kemanusiaan, Universiti Teknologi Malaya. Tuan, Adalah dimaklumkan Majlis Universiti Teknologi Malaysia telah pun mengadakan satu Mesyuarat Khas pada 22 Januari 1979, bagi menimbangkan perakuan yang dikemukakan oleh Lembaga Jawatankuasa Tatatertib mengenai tuduhan bahawa tuan telah mengengkari arahan pihak Universiti dan seterusnya tidak hadir bertugas tanpa kebenaran daripada 26 Jun hingga 10 Julail 1978. ... Setelah mengkaji perkara ini dengan teliti Majlis telah mendapati bahawa adalah sabit kesalahan tuan terhadap tuduhan mengengkari arahan pihak Universiti dan seterusnya tidak hadir bertugas tanpa kebenaran daripada 26 Jun 1978, hingga 10 Julai 1978.

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... Oleh demikian dengan sabitnya kesalahan tuan itu Majlis berpendapat tidaklah ada jalan lain yang sesuai diamoil melainkan tuan dibuang kerja. Dengan itu inilah di-maklumkan bahawa tuan adalah dibuang oleh oleh Majlis Universiti Teknologi Malaysia mulai daripada 15 Februari 1979. Yang benar, Sd. (Ainuddin bin Abdul Wahid) Naib Cansellor. b.p. Majlis Universiti Teknologi Malaysia. On 17 July 1979, the appellant filed a specially endorsed writ in which he asked for a declaration mentioned above. On 8 August 1979, he unsuccessfully applied by way of summons-in-chambers for summary judgment in terms of the statement of claim. The argument on the appeal ranged over wide matters, but as it developed it became apparent that the appeal should be disposed of on a ground relating to ultra vires and that it was unnecessary to call on Counsel to argue other issues. The question 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 set out in the judgment of the learned Judge, that the whole matter was dealt with by the disciplinary committee, purporting to act as the delegate of the University 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 disciplinary 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 dissatisfied with the decision of the disciplinary committee to the University Council and 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 Constitution. Section 4(1)(m) and s. 16 of the Constitution of the University were also referred to and applied. The difficulty in the way of this conclusion is that 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 provisions in some detail: Section 7(1) upon the coming into force of the Incorporation Order ... a University ... established ... and shall be deemed to have been constituted a body corporate ... with full power and authority ... (e) to exercise, discharge and perform all such powers, duties and functions as may be conferred or imposed on the University by this Act or the Constitution.

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(2) The powers conferred on a University by subsection (1) shall, unless otherwise expressly provided by this Act or the Constitution, be exercised by the University Council. Section 16A(1) Subject to subsection (4), the disciplinary authority 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-Chancellor; and (b) two members of the University Council elected by the University Council. (2) In the exercise of its disciplinary functions, the disciplinary committee shall have the power to take such disciplinary action and impose such disciplinary 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 staff, 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 proper. Section 16C(1) The University Council shall have the power to make such disciplinary rules as it deems necessary or expedient to provide for the discipline of the members of the staff, ...; the disciplinary rules made under this subsection shall be published in the Gazette... (3) The disciplinary rules made under this section shall create such disciplinary offences and provide for such disciplinary punishments as the University Council may deem appropriate, and the punishments so provided may extend to dismissal or reduction in rank in the case of members 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 disciplinary rules, contained in a detailed and elaborate code which prescribes the procedure, which is fair and appropriate, to be followed when there is an allegation 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 University Council. Therefore at the material time there were no disciplinary rules, and as such, no known disciplinary offences created and no known disciplinary punishments 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 University (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 appoint, promote and discipline officers, teachers and staff of tile University;

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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 disciplinary 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 University, and may exercise all the powers conferred on the University, save in so far as they are by this Constitution or the Statutes, Acts and Regulations conferred on some other Authority or body or on some officer of the University: ... This provision in the Constitution constitutes the University Council as the executive body of the University and not the disciplinary authority and must necessarily be limited in scope and read in the light of the relevant provisions of the 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-General 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 incorporating statute is prohibited not by the express or implied prohibition of the Legislature 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 has to follow proper procedure as prescribed by law before condemning an erring member of the staff. If it goes outside its limit of operation, or is not warranted by it, then any decision made by it is ultra vires. To elaborate somewhat, the 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 of the Act enacts "unless otherwise expressly provided by this Act or the Constitution." 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 vested in the disciplinary committee alone. That committee must itself take the responsibility 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 in this matter is as an appellate body exercising judicial function for the determination of appeals from any decisions of the disciplinary committee. It is, therefore, 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 their respective jurisdiction, we are of the opinion That the purported exercise of jurisdiction by the University Council in dismissing the appellant was ultra vires its powers. The University Council was purporting to do the very thing which, 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 committee, the power of disciplinary dismissal was still vested in the University Council. As such

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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 case, dismissal is governed by the law of contract inter partes and there is no right 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 part to play. The administrative law remedies, such as a declaration that the dismissal is ultra vires is not available; no order for reinstatement can be made. The most that can be obtained is damages, if the dismissal is wrongfull. In Malloch v. Aberdeen Corporation [1981] 2 MLJ 1, Lord Wilberforce took that point to mean "cases in which there is no element of public employment or service, no support 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 pointed 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 conferred on him by statute which converted him from being a public servant holding office at the pleasure of a public authority into a servant who, by virtue of his statutory position, had implied into that position the right to be hero. Lord Wilberforce 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 requirements of natural justice is often found. ... A comparative list of situations 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 test, looks illogical and even bizarre. Lord Wilberforce’ s speech is important because it opens the way for there to be a general application of the principles of natural justice to the employment relationship. Clearly this is not a straight-forward 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 protection of a hearing before the appropriate disciplinary authority, including the 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 declaratory relief, enabling him to retain his employment, and continued eligibility to be paid his salary and all emoluments from the date of the purported dismissal. The point is, here, the appellant’ s employment had never been terminated. It would be open to the University at any time hereafter to dismiss him if it so chooses to do and does so in a lawful manner. Until it chooses to do that the appellant’ s contract of employment will continue. We find it hard to believe that in a field of employment such as the present, the Legislature can really be said to have intended 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 rejected. 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 therefore the Court ought to be very cautious in treating it under O. 14. We are disposed to agree with that argument for this reason; not that cases depending on the interpretation of a statute or

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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 procedure 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 Colleges 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 other class of action. The only point is that as everybody knows the pertinent legislation is long and complicated. But it is not sufficient under an O. 14 case to 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 taken under the Acts is quite obviously an unarguable point, and the Court is satisfied 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: (see Harry Tong Lee Hwa v. Yong Kah Chin [1981] 2 MLJ 1). In Esso Standard Malaya Bhd. v. Southern Cross Airways (M) Bhd. [1971] 1 MLJ 168. I pointed out that in an O. 14 case, where it turned on the construction of a few documents, and the Court was only concerned with what, in its judgment, was the true construction, there could be no reason to go formally to trial where no further facts could emerge which would throw any light on the documents that had to be construed. We think we can safely apply that principle to the present case. On the view we have taken of the construction of Act 30 of 1971, and the Constitution of the University, the University had an absolutely hopeless case. The only function of the Court is jus dicere and to ascertain the intention of Parliament from the words used in the statutes and nothing more. No useful purpose would then be served to go formally to trial. We accordingly allowed the appeal.

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[1997] 3 CLJ Supp 176 YUNUS M HANIFF v. MAJLIS INSTITUT TEKNOLOGI MARA HIGH COURT 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 Institute of Technology of the Segamat Branch in Johore and has been with the said institution 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 proceeded to Bangladesh (despite being told not to take leave from 10 December 1990 - 15 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 elaborated that as he had a balance of 22 days of annual leave to his credit he intended to utilise those days for the leave period from 3 December 1990 until 28 December 1990. The subsequent 93 days were supposed to be covered by the no pay leave. The applicant alleged that prior to his leave he was assisted by his colleagues and encouraged by the administrative section of ITM to pursue his dreams to go overseas. What with no indication that his application of no pay leave would be 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 returned 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 permission from his head of department; 3. that he had ignored the direction of the principal of ITM Melaka to return and resume duties; and 4. that he had been on leave from 10 December 1991 until 15 December 1991 without prior permission from the principal of the Academic Affairs Division. The relevant provisions of the 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) 1980 punishable under Perintah Am 36 of the same Bab D . An enquiry was held sometime 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 was to quash the decision as communicated in that 15 May 1991 letter which revealed 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 of decisions or actions of public bodies irrespective of the nature of their function be it administrative, judicial or quasi-judicial. In fact the underlying

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principle is that the jurisdiction of the High Court to grant an order of certiorari 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 Hingun ). Having perused the available documentation I found the following factors to be the basis of the allegations of this application, namely that: 1. Encik Arshad 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 been provided as per the letter dated 15 May 1991. Whether the above allegations were correct and the complaints justified, it was therefore necessary for me to scrutinise 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 November 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 leave without pay. 4. ITM D, a letter dated 23 November 1990 from the director of ITM 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 Hashim 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 dated 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 directing him to return to work or face disciplinary proceedings. 9. ITM H, a memo dated 15 January 1991 from the Ketua Kursus complaining of pressure of work to others 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 Jawatankuasa Tatatertib Kakitangan Cawangan Melaka informing the applicant that a report had been received from the Timbalan Pengetua (HEA) and that a disciplinary proceeding 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 the 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 minutes of the persons in attendance on 14 May 1991 for purposes of the disciplinary proceedings chaired by En. Arshad bin Hashim.

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14. Exhibit I, a letter dated 15 May 1991 from En. Arshad bin Hashim informing him of the outcome of the disciplinary proceedings (the relevant letter to be quashed). 16. ITM S, a letter dated 22 May 1991 from the applicant submitting his appeal as regards the decision made on 14 May 1991. After considering the facts particularly 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 the disciplinary board. The assertion that the complainant and the chairman was one and the same person was found to be baseless. With allegation 1 being incorrect, it followed that allegation 2 too was unfounded. We now proceed to allegations 3 and 4. However defiant the applicant was to his employers and however irresponsibly 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 justice, 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 propounded that "All that natural justice requires is that the person charged with making the decision should act fairly". My duty without more and central to the issue 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 Federal Constitution ). So, what is natural justice? Jemuri Serjan SCJ in Shamsiah bte 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 common law rules, namely, (a) the right to be heard (audi alteram partem): the principle 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 against bias (nemo debet esse judex in propria sua causa): the principle that a decisionmaker must be disinterested or unbiased in the matter to be decided. (see also 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 ). To summarise, natural justice essentially may be split into two parts viz. the right to be heard by the aggrieved party and that biasness against him was not detected during the trial. It is only after that that fair play may operate effectively (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 accused man to know the case which is made against him. He must know what evidence 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 being heard may be of little value if the individual is kept in the dark as to the evidence against him and is not given an opportunity to deal with it. The right to know the material on which the authority is going to base its decision is an element of the right to

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defend oneself. If without disclosing any evidence to the party, the authority takes it into its consideration, and decides the matter against the party, then the decision is vitiated for it amounts to denial of a real and effective opportunity 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 Immigration, Malaysia&Ors. [1987] 1 MLJ 134 ). In the present case in no uncertain terms the applicant had been given all the necessary warnings, the opportunity to rehabilitate and the opportunity to explain his actions (see the exhibits). He must know that all the available evidence will point to him having left the country 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 December 1990 were cancelled; 4. no reprieve of leave whether for the five days or 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 the fact that his exit out of Malaysia was without prior permission; 7. by so asking 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 fulfilling the precondition of an opportunity of being heard. This opportunity as envisaged in Art. 135(2) of the Federal Constitution would include the opportunity to deny his guilt and establish his innocence, the opportunity to defend himself by refuting the evidence to be considered against him and to make the pertinent representations regarding any proposed punishment ( Isman bin Osman v. Government Of Malaysia [1973] 2 MLJ 143 ). The reasons for the disciplinary proceedings 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 that not only was he obtrusively indifferent to the instructions of his superiors but 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 would 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 Polis 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 being heard orally). His letter merely justified his shocking behaviour without really rebutting the charges. The Rule Against Bias In B. Surinder Singh Kanda the Privy Council at p. 173 remarked that the court would not go into the likelihood of prejudice. The risk of it was enough. This is so as the aggrieved party

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will definitely feel that he had been unfairly treated and placed in a disadvantageous position in the event the other party had access to the arbitrator without 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 determining the existence of bias on the part of a tribunal or any member of it is 'reasonable 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 which the question of bias arises, the context being all important. Thus 'reasonable suspicion of bias' means suspicion that is well founded and of sufficient gravity 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 present 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 and Others [1937] 2 KB 309 at p. 344 which reads: It makes no difference whether he then discussed the case with them or not; the risk that a respondent may influence 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 such any indiscretion on the part of the latter as alleged was non-existent. Had the complainant been one and the same person I would have been inclined to immediately agree with the applicant's complaints in that there was bias. Whether applying the test of De Souza Lionel Jerone v. Attorney General which is more stringent than Cooper v. Wilson or that of the latter, neither did I find any suspicion 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 the Timbalan Pengetua at the proceedings. It is therefore not encumbent on me to probe into irrelevant territories which the contesting parties have not complained about. It must be an implicit acknowledgment by the applicant that the complainant was merely present during the meeting session and not during the deliberation and decision making session. Looking at it in an oblique way, the fact that he 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 Lack Of Explanation In The Letter Dated 15 May 1991 The court in Rohana bte Ariffin enunciated that in certain cases reasons must be provided for despite the strong 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 reasons 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 bodies in untenable positions. To supply reasons even for obvious cases not only will create a mammoth breakdown in the administration of discipline but will be stretching the provision of s. 4(2) Perintah-Perintah Am Pegawai Awam (Kelakuan Tatatertib) Bab "D" 1980 to its limits. A perusal will show that there is absolutely no statutory or procedural requirement that reasons must be offered for all cases. It is only by reason of the dictation of natural justice, with the sole purpose of

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rendering an aggrieved person assistance in his desire to appeal, which is an ongoing exercise in the disciplinary proceeding process, that some flexibility is permitted. It is inevitable in our system of justice, built within it, is the right 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 form of appeal. With that being so, to acquiesce to the suggestion of having to supply reasons for all cases, regardless of its complexity, will naturally lead to the neutralising of Rohana bte Ariffin. Moreover, apart from affecting the administrative 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 Others [1968] AC 997 ; Minister of Labour, Malaysia&Chan Meng Yuen and Another Appeal [1992] 2 MLJ 337 ). One must also bear in mind that at common law there is absolutely 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 cases 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 professional 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 employment sought, the duties and benefits of parties, responsibilities and its perimeters, 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, and to pretend naivety and ignorance of the repercussion of any act of disobedience certainly lacked imagination. The results therefore were not unexpected bearing in mind his refusal to reply specifically to the charges, inspite of the abundant 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 this case suffering a lack of complexity as regards the facts the sentence too lacked severity. The withdrawal of his salary for the period of 29 December 1990 until 31 March 1991 was no loss to him as it was in tandem with his request for a no 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 rejected 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 that she was the solicitor and representative of the respondent in this application, with the facts attested to, either based on her knowledge and/or obtained from the documents kept by her. By this affirmation I was satisfied that not only was 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 wanting? Without her affidavit the respondent would have been put in an embarrassing position as only a minimum number of documents were submitted by them perhaps with the foresight of depending largely on the exhibits attached to her affidavit. 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

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possibilities especially in relation to information which she was privy to, without having to refer to documents or possibly to information prior to her retention, thus qualifying as a witness. The Legal Profession Act 1976 which provides the Legal Profession (Practice and Etiquette) Rules 1978 in particular r. 28 no advocate or solicitor is to appear in a case where he or she is a witness. In this 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 under the law particularly when the situation warrants it. Under O. 38 r. 2(3) in any 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 Plastics 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 themselves counsels ( Million Group Credir Sdn. Bhd. v. Lee Shoo Koon&5 Ors. [1985] 1 CLJ 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 2522 ; Perwira Affin Bank Bhd (Dahulunya Dikenali Sebagai Perwira Habib Bank Malaysia 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 so as to avoid being placed in awkward positions that could compromise their representative 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 position.

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[1982] CLJ 228 (Rep)

[1982] 1 CLJ 150a

MOHD. RAIHAN IBRAHIM&ANOR. v. THE GOVERNMENT OF MALAYSIA&ORS. FEDERAL COURT, KUALA LUMPUR RAJA AZLAN SHAH CJ (MALAYA) SYED OTHMAN FJ SALLEH ABAS FJ [CIVIL APPEAL NO. 179 OF 1979] 6 OCTOBER 1980&21 FEBRUARY 1981 TORT: Negligence - Duty of teacher to exercise supervision over pupils - Guidelines School premises, class room or play ground - Degree of supervision - Proper instructions of use of agricultural tools - Conditions of tools - Whether teacher guilty of negligence Warning to pupils - Whether sufficient warning given. This was appeal against the decision of the High Court, Seremban which dismissed the appellant's claim for damages in respect of personal injuries suffered by him during a practical agricultural class on 15 March 1971. The appeal was limited to the question of liability only as in the event of liability against in the event of established general damages 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 practical agricultural class under the supervision of a lady teacher, Mrs. Hau Kan Yong. The pupils who were simply told to pick up a agricultural tools such as spades, changkols and baskets from the store-room were marched to a place to complete making vegetables beds. The appellant used a spade to raise the level of the bed while his fellow pupil Raja Aminuddin who worked on the next bed used a changkol 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 appellant 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 who was sitted about 4 yards away from the appellant under a tree was then not looking at the pupils and only turned to the direction when she heard someone calling out for her and she saw the appellant holding his head and bleeding. The appellant suffered a 2275 lacerated wound over the right parietal bone and a depressed 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 crossexamination at the trial said that she had generally warned the pupils to be careful and not to fool around when using the instruments. She admitted that as a safety 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 Raja Aminuddin was negligent, but the Court was not concerned with his responsibility, what it had to determine was whether the

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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 supervision 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 material 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 take 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 established that the pupils were of young age and in jovial mood. [4] This was not a case 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 not prevent the injury from being inflicted because of the stupidity of a pupil whose 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 that pupils were positioned within such distance between them to avoid injuries from 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 from sustaining the injury and that their teacher did not check the condition of the 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 1st and 3rd respondents - Mah Weng Kwai, SFC; M/s. Nahappan, Muthu&Peri For the 2nd respondent - S. Periasamy.

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[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 1981] 19 FEBRUARY 1982 |248| JUDGMENT Suffian LP (Malaysia): This is an application by the appellant for conditional leave to appeal to His Majesty from a judgment of this Court. |249| The appellant is a teacher at Sekolah Rendah Jenis Kebangsaan (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 education authority to cancel the order, but was not successful. On 11 April 1980, the Secretary General of the Ministry of Education directed him to present himself to the Headmaster of the school in Jerteh as early as possible. He again refused. On 14 April 1980, he filed a suit in the High Court, Kuala Lumpur, asking for 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 Education Service Commission on 9 June 1980, sent him a notice to show cause why he should not be dismissed from the teaching service. The notice also carried several charges against him relating to acts allegedly in violation of several provisions of the Public Officer (Behaviour and Discipline) Regulations, also known as General Orders Cap. D. The several charges against the appellant are concerned primarily with his not complying with the transfer order and with his subsequent conduct. 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 Education Service Commission, the respondents, for alleged contempt of Court. The grounds 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 action 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 calculated to hinder the Court in the administration of justice, adversely affecting the authority and dignity of the Court; and (4) the action of the respondents clearly 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 for 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 applicant's Counsel publication was

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in fact intimation to the applicant of charges of a departmental character proposed to be brought against him. And in another passage of his judgment he said: Examined in the light of Lord Diplock's definition of contempt of Court cited earlier [i.e. Attorney-General v. Times Newspaper Ltd. [1973] 3 All ER 54 ] the conduct of the Education Service Commission in relation to the civil suit (which) applicant 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 does it inhibit citizens from availing themselves of that system for the settlement 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 Choon for the respondents opposed the application on the ground that the decision appealed from was a decision as to the effect of the Constitution and therefore barred by s. 74 (3)(a) of the Courts of Judicature Act . Alternatively he argued that 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 nature 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 involve 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 detention would have to be borne by the appellant, not the Government. Lastly he said that this case is from its nature a fit one for appeal within para. (iii) of sub-section (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 trial 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 civil action for an attachment against a person not a party to the action, for contempt of Court in the publication of comments calculated to prejudice the fair trial 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 application could be brought to the Court of Appeal. There was a divorce suit and application was made by notice of motion for a writ of attachment for contempt of Court 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 him in the assertion of his right in the Court. Cotton LJ said at p. 63: It is conceded that [what Tuohy did] was a wrongful act, otherwise there could be no fine or imprisonment. And when you concede that it is a wrongful act, you find, although [the motion] is headed in the divorce action, it is not a proceeding in the 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 Judge himself.

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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 criminal cases ... The Singapore High Court has also held that contempt of Court is a criminal matter. In Re Abdul Aziz's Application [1964] MLJ 64 Rose CJ said at 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 observation of Wills J in the King v. Parke [1903] 2 KB 441 |251| at p. 441 where he says that procedure in matters pending on the civil side 'would afford no assistance in the present discussion'. By this he must clearly be taken to have meant that contempt of Court falls on the criminal side of the jurisdiction. In PP v. Lee Ah Keh&Ors. [1968] 1 MLJ 22 Ali J, as he then was, recognized that contempt of 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 offence ... 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 classified 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 disobedience to the judgments, orders or other process of the Court, and involving a private injury. The alleged contempt here is clearly of the first and not of the second 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 in 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, this application is dismissed with costs.

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[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 years with effect from date of sentence - Accused thought victim was above 15 years 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 Sessions 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 conviction and sentence of 5 years imprisonment with effect from date of sentence. Held: 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 the sentence was manifestly excessive or inadequate or that in fixing the sentence, the lower Court had failed to adequately consider all the relevant factors either for or against the respondent. [Conviction and sentence affirmed. Order ac- cordingly].

Case referred to: PP v. Teh Ah Cheng [1976] 2 MLJ 187 (refd) Legislation referred to: Criminal Procedure Code, s. 289(c) Penal Code, s. 376 For the public prosecutor - Murtazadi, DPP For the respondent - Ravi; M/s. Xavier, Ravi&SarjitSidhu

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[1995] 3 CLJ 386
NMY lwn. PENGETUA, PUSAT PEMULIHAN GADIS, TAMAN SERI PUTERI, REMBAU, NEGERI SEMBILAN 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 Prosedur Jenayah (KPJ) dan Perkara 5(2) Perlembagaan Persekutuan untuk suatu perintah habeas corpus oleh Pendek bt Ahmad supaya Mahkamah ini membebaskan cucunya, seorang gadis juvana yang berumur 16 tahun 3 bulan (Selepas ini disebut "NMY" demi untuk menjaga kepentingan juvana ini) pada masa ini, daripada Pusat Pemulihan Gadis, Taman Sri Puteri, Rembau, Negeri Sembilan. Fakta kes, seperti yang terdapat daripada affidavit Pendek bt Ahmad, Mumtaj Begum bt Mohd Sultan dan juga NMY adalah seperti berikut: Pada 24 Oktober 1994 bapa kepada NMY, Mohd Yusop bin Baijuri, telah membuat satu permohonan, seperti eksibit "MB1", di bawah s. 8(2) Akta Perlindungan Wanita dan Gadis 1973 (selepas ini disebut "Akta") di Mahkamah Majistret, Kuala Lumpur, supaya NMY diletakkan di bawah jagaan pelindung di tempat perlindungan Jabatan Kebajikan Masyarakat. Di atas permohonan ini Majistret berkenaan pada hari yang sama, telah mengarahkan supaya satu laporan penyiasatan mengikut s. 8(3) Akta dikemukakan kepada Mahkamah yang sama pada 23 November 1994. Sementara menunggu laporan penyiasatan tersebut Mahkamah Majistret berkenaan telah mengeluarkan satu waran tahanan untuk menempatkan NMY di Taman Seri Puteri, Rembau, Negeri Sembilan di bawah s. 8(2) Akta seperti di eksibit "MB2". Pada 23 November 1994, laporan penyiasatan telah dikemukakan kepada Mahkamah Majistret berkenaan seperti yang diarahkan pada 24 Oktober 1994. Satu laporan akhlak bapa NMY telah juga dikemukakan kepada Mahkamah Majistret pada hari yang sama. Semasa pendengaran 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 perintah 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 30 November 1994. Sementara itu Mahkamah Majistret melanjutkan waran tahanan bertarikh 24 Oktober 1994 ("MB2") kepada 30 November 1994. Pada 30 November 1994 laporan latar belakang Pendek bt Ahmad dikemukakan kepada Mahkamah Magistret. Laporan tersebut tidak menyokong permohonan Pendek bt Ahmad. Di |389| peringkat ini Peguam bagi pihak Pendek bt Ahmad memohon untuk menyoal balas Encik Tee Ah Kow, Timbalan Pengarah Jabatan Kebajikan Masyarakat Melaka, iaitu pegawai yang menyediakan laporan tersebut. Mahkamah Majistret seterusnya menangguhkan

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pendengaran kes tersebut kepada pukul 3.00 petang hari yang sama untuk tujuan soal balas itu. Apabila Mahkamah Majistret bersidang semula untuk tujuan soal balas itu, Peguam Encik Karpal Singh memaklumkan kepada Majistret bahawa bapa kepada NMY ingin menarik balik permohonan beliau ("MB1") yang asal itu. Bapa NMY mengesahkan secara lisan penarikan balik permohonan itu atas alasan lebih elok bagi beliau menjaga anaknya sendiri dan beliau ingin menyekolahkan anaknya semula di mana-mana tempat yang sesuai. Di peringkat ini Majistret telah menangguhkan kes untuk keputusannya kepada 30 Disember 1994 dan seterusnya melanjutkan lagi waran tahanan "MB2" kepada 30 Disember 1994. Di atas waran tahanan lanjutan inilah Pendek bt Ahmad memohon supaya suatu writ habeas corpus dikeluarkan atas sebab ianya tidak sah di sisi undang-undang dan tidak berasaskan apa-apa authoriti perundangan yang sah oleh kerana penahanan gadis tersebut telah melampaui tempoh masa satu bulan daripada 24 Oktober 1994 dan juga kerana bapa gadis tersebut sendiri telah 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 habeas corpus yang kerap kali difailkan di Mahkamah Tinggi oleh kerana dalam kes ini gadis NMY yang dikatakan ditahan tanpa mengikuti peruntukan perundangan itu sendiri menyatakan melalui affidavitnya bahawa dia tidak berhasrat atau memberi kebenaran kepada neneknya supaya dia dikeluarkan dari Taman Sri Puteri, Rembau, Negeri Sembilan. Gadis tersebut juga mengatakan dia tidak dimaklumkan oleh neneknya 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 tersebut tidak berhasrat dilepaskan tidak bererti Mahkamah ini tidak boleh teruskan pendengaran prosiding habeas corpus ini. Beliau merujuk kepada perkara 5(2) Perlembagaan 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 enquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the Court and release him. Kuasa untuk membuat 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 berhujah bahawa isu gadis tidak memberikan keizinannya kepada Pendek bt. Ahmad tidak boleh menghalang Puan Pendek bt Ahmad untuk membuat permohonan ini. Beliau merujuk kepada kes Ram Kumar v. District Magistrate AIR 1966 Punjab 51, di mana di 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 personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. |390|

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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 behalf, by a friend or relation for this reason that such a person is in a position 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 which go to show whether or not the detention or custody is illegal. The answer to 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 establishes 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 appear to be so rare as to be almost non-existent. In the present case, the question 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 Singh juga menghujahkan bahawa gadis NMY tersebut tidak boleh memberi persetujuannya kepada suatu perintah yang salah di sisi undang-undang. Beliau merujuk kepada Ratanlal's Criminal Procedure Code Chapter XXXVII di muka surat 445 di bawah clasue (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 clause, if it can be shown that the person arrested was at the time of hearing of the 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 Mahkamah ini meneliti affidavit dan surat NMY tersebut dengan berhati-hati sebab beliau menghujahkan gadis tersebut bukan seorang yang bebas pada masa ini. Saya bersetuju adalah menjadi beban responden untuk membuktikan tahanan itu adalah sah di sisi undang-undang lihat Karpal Singh v. Inspector General of Police&Ors. [1989] 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 bin 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 legal 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 purpose.

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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 (beliau pada ketika itu) memutuskan: |391| Held: (4) the detention of the applicant 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 detention was followed with extreme regularity and therefore the Court should not allow the imprisonment to continue. To hold to the contrary would in effect mean that the Minister had power to continue the detention of one who is being illegally detained. Encik Zulkifli Nordin turut menghujahkan isu-isu yang sama dibangkitkan oleh Encik Karpal Singh. Bagi pihak responden pula Puan Zaitun Zawiyah bt Puteh, Peguam Kanan Persekutuan yang dibantu oleh Encik Bahzain bin Idris menghujahkan bahawa gadis NMY tersebut bukan ditahan oleh responden tetapi ditahan di tempat responden atas perintah Mahkamah Majistret bertarikh 24 Oktober 1994. - "MB1" Beliau menghujahkan bahawa perintah tahanan lanjutan daripada 23 November kepada 30 November 1994 yang dibuat oleh Mahkamah Majistret berkenaan timbul akibat tindakan Peguam Encik Karpal Singh dan Zulkifli Nordin sendiri yang memohon supaya Majistret membuat perintah dengan tujuan supaya Puan Pendek bt Ahmad dapat menjaga gadis tersebut. Dihujahkan sekiranya permohonan oleh kedua-dua Peguam ini tidak dibuat pada ketika itu Mahkamah Majistret mungkin akan membuat perintah sewajarnya mengikut peruntukan yang ada di bawah s. 8(4) Akta. Kes ini dirumitkan 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 tersebut telah menarik balik permohonan asalnya di bawah s. 8(2) Akta Majistret yang bijaksana 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) Akta yang berbunyi seperti berikut: 8(1) Any female person under the age of twenty-one years whom the Court of a Magistrate believes to have been ill-treated or neglected and exposed to moral danger and to need protection, may subject to subsection (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 lawful 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 the Court order such female person 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 submitted to the Court for determining whether a warrant under paragaraph (a) or any order under paragraph (b) or (d) of subsection (4) may be made in respect of such female person.

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(3) Every enquiry for purpose of s. 7 or subsection (1) or (2) of this section shall be made by the protector and completed within a period not exceeding one month 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 enquiry 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 section: |392| (a) by warrant issued by the Court order such female person to be detained in a place of refuge for a period of three years from the date of the admission of such female person into the place of refuge pursuant to s. 7 or subsection (1) or (2) of this section: Provided that the board of visitors of the place detained 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 person 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 appropriate committing such female person for a specified period not exceeding three years from the date of the order to the care of a person whether a relative or 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 not exceeding three years from the date of the order to exercise proper care and guardianship over her; or (d) make an order placing such female person for a specified period not exceeding three years from the date of the order under the supervision of a Social Welfare Officer appointed for the purpose by the Court. Beliau berhujah apa yang diperlukan ialah supaya suatu penyiasatan dibuat dan laporan disediakan oleh pelindung dalam masa tidak melebihi satu bulan daripada tarikh gadis tersebut dimasukkan ke Taman Sri Puteri itu. Ini telah diikuti dan dipatuhi oleh pelindung. Jadi, perintah lanjutan oleh Majistret hanya dibuat oleh Mahkamah 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 kepada sesiapa yang difikirkan "fit and proper" untuk menjaga gadis tersebut. Tidak ada peruntukan di bawah Akta tersebut yang memerlukan Majistret membuat perintahnya dalam masa satu bulan. Saya berpendapat: Memang "trite law" bahawa di dalam kes permohonan habeas corpus Mahkamah perlu memberi tafsiran yang sebenarnya (strict interpretation) kepada peruntukan undang-undang dan prosedur dan sekiranya ada apa-apa keraguan Mahkamah sepatutnya memberi faedah itu kepada subjek yang berkenaan lihat Andrew s/o Thamboosamy v. Supt. of Pudu Prisons [1976] 2 MLJ 136, di mukasurat 168.

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Dalam hal ini Mahkamah perlu juga melihat kepada s. 366 Kanun Prosedur Jenayah yang berbunyi: Every application to bring up before the Court a person detained on 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, with the object of satisfying the Court that there is possible ground for supposing that such person is detained against her will and without just cause. (penekanan dibuat oleh saya) Bolehkah dikatakan gadis tersebut ditahan tanpa kebenarannya dan tanpa sebab yang munasabah? Affidavit gadis tersebut sendiri yang tidak dicabar, menyatakan beliau ingin tinggal di Taman Sri Puteri, Rembau. Dari affidavit itu adalah jelas sekali gadis tersebut bukan ditahan tanpa kebenarannya. |393| Hujahan bahawa perintah tahanan lanjutan yang dibuat oleh Majistret yang dikatakan oleh Puan Pendek bt Ahmad adalah tidak mengikut undang-undang tidak dapat saya terima walaupun bapa gadis itu telah menarik balik permohonan asalnya di bawah s. 8(2) Akta. Jika dilihat kepada s. 8(1) Akta perbezaan dengan s. 8(2) adalah 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 gadis di bawah umur 18 tahun. Di bawah s. 8(1) Akta, jika Mahkamah Majistret mempercayai seseorang gadis di bawah umur 21 tahun telah tidak dijaga dengan baik atau terdedah kepada bahaya moral dan memerlukan perlindungan, Mahkamah Majistret boleh 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 Mahkamah Majistret telah berpuas hati pada 30 November 1994, bahawa gadis tersebut memerlukan perlindungan walupun bapanya telah menarik balik permohonannya. Mahkamah Majistret dengan itu boleh bertindak dengan sendirinya di bawah s. 8(1) Akta demi menjaga keselamatan dan kebajikan gadis NMY tersebut. Ini juga bererti Mahkamah Majistret berkenaan berhak untuk mengkaji dan menimbangkan apa-apa laporan penyiasatan yang telah disediakan oleh pelindung di bawah s. 8(3) Akta. Dalam kes ini Majistret yang bijaksana telah menangguhkan kes kepada 30 Disember 1994, untuk tujuan menentukan siapa orang sewajarnya samada seorang saudara atau tidak, yang difikirkan patut untuk menjaga gadis tersebut dan beliau sudah tentu perlu menimbang laporan pelindung terlebih dahulu. Untuk membolehkan Majistret berbuat demikian, saya fikir tidak salah bagi Majistret menangguhkan kes ini selama satu bulan daripada 30 November sehingga 30 Disember 1994 dan di dalam keadaan kes ini, adalah bukan tidak munasabah. Tidak ada peruntukan di bawah s. 8 Akta yang memerlukan Majistret bertindak serta merta apabila beliau menerima laporan daripada pelindung di bawah s. 8(3) Akta. Tetapi ini bukanlah bererti Mahkamah Majistret boleh sengaja melambat-lambatkan membuat keputusannya. Penangguhan pertama daripada 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.

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Tidak dinafikan bahawa keputusan dan kebajikan gadis tersebut merupakan perkara yang sangat perlu dipertimbangkan oleh Mahkamah. Kes yang dirujukan oleh Encik Karpal Singh dalam Rantanlal's CPC supra , di muka surat 444 perenggan enam menyokong pendapat ini. Ia berbunyi seperti berikut: The underlying principle of every writ of habeas corpus under this section is to ensure the protection and well-being of the person brought before the Court under the writ. The real interest and well-being of the person ought to be only the determining but the sole consideration. 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 must take them into consideration. Kes Bhola Nath v. District Magistrate AIR [1959] Punjab 236 juga mementingkan kebajikan orang yang ditahan lebih daripada penahanan 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 perenggan 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 person to demand the writ, but that does not necessarily imply that the writ must issue in all cases. The issuance of the writ of habeas corpus is within the judicial discretion of this Court. This Court may grant a writ "whenever it thinks fit". The provisions of s. 491 make it abundantly clear, that the power is discretionary. 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 minor children - if he is otherwise an unsuitable person and if the interest of the child would suffer by the change of the custody. Begitu juga, di dalam kes Madhya Bharat High Court [1952] Cri. LJ page 578 diputuskan: Where a minor is illegally or improperly detained, the High Court would interfere by way of habeas corpus but the interest of the minor is a paramount consideration and the High Court 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 necessary 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 kes ini sekarang berumur 16 tahun 3 bulan dan telah menjelaskan di dalam affidavitnya sebab-sebab demi keselamatan dan kebajikannya mengapa dia masih lagi ingin dan rela tinggal di Pusat Perlindungan Taman Sri Puteri, Rembau dan tidak mahu dikeluarkan dari situ. Dalam keadaan kes ini saya rasa amat perlu Mahkamah membenarkan hasrat gadis NMY ini demi menjaga kepentingannya. Satu perkara lagi yang perlu saya putuskan ialah mengenai s. 367 Kanun Prosedur Jenayah yang berbunyi: The affidavit required by the last preceding section shall be made by the person detained 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.

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Dalam hal ini saya mendapati sukar untuk menerima sebagai fakta bahawa Pendek bt Ahmad membuat affidavitnya itu "untuk pihak pemohon/gadis" tersebut kerana gadis tersebut kini dalam tahanan dan ia akan melibatkan banyak masa untuk membawa seorang Pesuruhjaya Sumpah ke Pusat Pemulihan Gadis Taman Sri Puteri, Rembau. Jika diperhatikan, alamat Pendek bt Ahmad adalah di Alor Gajah, Melaka dan beliau membuat 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 Pendek 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 sebab untuk menganggap gadis NMY tersebut ditahan tanpa keizinannya dan tanpa sebab yang munasabah seperti yang dimaksudkan di bawah s. 365 Kanun Prosedur Jenayah. Oleh itu di atas sebab-sebab seperti yang dinyatakan di atas, permohonan ini ditolak.

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[1992] 2 CLJ 467 (Rep)

[1992] 1 CLJ 413

HJH. HALIMATUSSAADIAH KAMARUDDIN v. PUBLIC SERVICE COMMISSION MALAYSIA&ANOR. HIGH 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 Government of Malaysia offered the plaintiff an appointment as a clerk. One of the conditions in the offer letter stated: Sepanjang perkhidmatan Tuan/Puan, Tuan/Puan akan setiap masa tertakluk kepada PerintahPerintah Am Kerajaan, Pekeliling-Pekeliling dan lain-lain peraturan mengenai pekerjaan, kelakuan dan syarat-syarat perkhidmatan pegawai-pegawai dalam Perkhidmatan Awam yang dikeluarkan dari masa kesemasa. (English translation) In the course of your service, you will be at all times subject to Government General Orders, Circulars and other regulations in respect of work, behaviour and conditions of service of officers in the Public Service issued from time to time. On 18 February 1985, the Government issued service circular No. 2 of 1985 (hereinafter referred to as the circular) on the subject of dress code for Government officers. Paragraph 2.2 of the circular prescribed for lady officers the following dress to be worn when on duty during office hours: 2.2 Pakaian Wanita 2.2.1 Pakaian Kebangsaan atau pakaian kaum masing-masing yang sesuai dipakai semasa bekerja. "Jeans", "slacks" seluar pendek dan apa-apa pakaian yang menutup muka tidak boleh dipakai semasa bekerja. (English translation) Women's Attire National Dress or dress of respective races suitably worn at work. Jeans, slacks, shorts and any attire covering the face cannot be worn when 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 Perkhidmatan Bil. 2 tahun 1985 diedarkan untuk makluman dan tindakan Tuan/Puan sewajarnya. Sayugia diingatkan bahawa tindakan tatatertib boleh diambil terhadap mana-mana pegawai yang tidak mematuhi pekeliling ini.

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t.t. Penasihat Undang-undang Negeri Perak The plaintiff and other staff of the State Legal Adviser's office had initialled this minute acknowledging that they had 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 wears '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 exposes 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 cover her face. She refused to comply with this requirement of the circular giving the 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 plaintiff 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 classified as belonging to "officers in Group C" in the Government service. The Chairman of the Disciplinary Board for Group C officers, at the Attorney General's office, 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) (Chapter "D") General Orders, 1980 (hereinafter referred to as G.O.'D') that proceedings for dismissal from the public service should be taken against the plaintiff. 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 disciplinary proceeding in the matter, consider whether the breach of discipline complained 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 added) The disciplinary board for Group C officers in the Government service was established 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 Constitution . 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 Article 135 and Article 139 and Article 141A , all the powers and functions of the Public Services Commission or the Education Service Commission established under Article 139 and Article 141A , other than the power of first appointment to the permanent or pensionable establishment, may be exercised by a board appointed by the Yang di Pertuan Agong.

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(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 referred to under that paragraph, such power or function shall so long as it remains a power or function to be exercised by the board, cease to be exercisable by said Commission. (Emphasis added) However, reg. 3(2) of the Public Services Disciplinary 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 power of dismissal and reduction in rank. Because of this reg. 3(2) , the disciplinary 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 referred to the Public Services Commission (PSC) for further action. |471| The relevant provisions of G.O.'D' 26 are as follows: Procedure in cases meriting punishment 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 unsatisfactory work or misconduct and such work or misconduct, in the opinion of the Disciplinary Authority, merits dismissal or reduction in rank, the provisions of the following paragraphs shall apply. (2) The Appropriate Disciplinary Authority shall, after considering all the available information in its possession that there is a prima facie case for dismissal or reduction in rank, cause to be sent 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 proposed 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 receipt of the letter a representation containing grounds upon which he relies to exculpate himself. (4) If the officer does not furnish any representation within the 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 following letter to the plaintiff: SULIT Puan Halimatussaadiah bte Haji Kamarudin Melalui: 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. Dato' Lamin b. Haji Mohd. Yunus) Puan, Kenyataan Alasan-alasan Membuang Kerja Saya memaklumkan iaitu berikutan dengan laporan yang diterima, maka Suruhanjaya ini sebagai Pihak Berkuasa Tatatertib yang berkenaan telah membuat keputusan untuk mengambil tindakan tatatertib dengan tujuan buang kerja terhadap Puan di bawah Perintah

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Am 26, Perintah-perintah Am Pegawai Awam (Kelakuan dan Tatatertib) (Bab 'D'), 1980 atas pertuduhan berikut: Bahawa Puan Halimatussaadiah bte Haji Kamarudin yang bertugas sebagai Pegawai Kerani Am, Jabatan Penasihat Undang-undang Negeri Perak, 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 kepada Puan melalui Edaran Penasihat Undangundang Negeri Perak bertarikh 18 April 1985. Perbuatan Puan itu adalah satu kesalahan yang tidak bertanggungjawab dan engkar 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 Pegawai Awam (Kelakuan dan Tatatertib) (Bab 'D'), 1980 , Puan adalah diminta mengemukakan: (a) Jawapan kepada pertuduhan ini; dan (b) Hujah-hujah sebagai pembelaan diri mengapa tindakan tatatertib buang kerja tidak boleh diambil terhadap Puan sekarang. Jawapan dan hujah-hujah pembelaan diri Puan itu hendaklah dikemukakan kepada Setiausaha, Suruhanjaya Perkhidmatan Awam melalui Ketua Jabatan Puan dalam tempoh dua puluh (20) hari daripada tarikh Puan menerima surat ini. Sekiranya Puan tidak memberi sebarang jawapan dalam tempoh masa yang ditetapkan itu, Puan akan dianggap sebagai tidak hendak mengemukakan sebarang pembelaan diri dan perkara ini akan diputuskan atas keteranganketerangan yang ada sekarang ini sahaja. 3. Sila Puan akui penerimaan surat ini. Berkhidmat Untuk Negara Saya yang menurut perintah, t.t (Dato' Nik Badli Shah Bin Dato' Nik Abdullah) Setiausaha, Suruhanjaya Perkhidmatan Awam, Malaysia. The plaintiff gave a 21 page reply explaining why she must continue to wear the purdah quoting verses from the Qu'ran and hadith. On 16 December 1986, the PSC sent her the following letter dismissing the plaintiff from the service: Sulit Puan Halimatussaadiah bt. Ruj.Kami: SPA. Sulit. Hj. Kamaruddin, 80223/3/(30) Tarikh: 16 Disember 1986 14 Raibul Akhir 1407 Melalui: dan Salinan: Y. Bhg. Peguam Negara, Jabatan Peguam Negara, Malaysia, Tingkat 11-15, 18-21, Bangunan Bank Rakyat, Jalan Tangsi, 50512 Kuala Lumpur.

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Puan, Keputusan Lembaga Tatatertib Suruhanjaya Perkhidmatan Awam Saya diarah menarik perhatian kepada surat Suruhanjaya ini bil. SPA.SULIT.80223/3/(16) bertarikh 5 Ogos 1986 meminta Puan mengemukakan hujah-hujah bagi membebaskan diri Puan daripada tindakan tatatertib dengan tujuan buang kerja yang akan diambil ke atas Puan di bawah Perintah Am 26, Perintah-perintah Am Pegawai Awam (Kelakuan dan Tatatertib) (Bab 'D'), 1980 . Puan telah mengemukakan jawapan sebagai pembelaan diri menerusi surat Puan bertarikh 30 Ogos 86. |473| 2. Dimaklumkan bahawa Suruhanjaya Perkhidmatan Awam dalam mesyuaratnya yang telah diadakan pada 10 November 1986 setelah menimbangkan dengan teliti kes Puan itu pada keseluruhannya telah memutuskan bahawa Puan dikenakan hukuman buang kerja berkuatkuasa dengan serta-merta. 'Berkhidmat Untuk Negara' Saya yang menurut perintah, t.t. Farizan bin Darus Bahagian Naik Pangkat/Tatatertib, b.p. Setiausaha, Suruhanjaya Perkhidmatan Awam, Malaysia. On 26 October 1987, the plaintiff filed this application seeking the 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 in contravention of Article 11(1) of the Federal Constitution; (ii) A declaration that the plaintiff's purported dismissal from service is null and void, inoperative and of no consequence; (iii) A declaration that the plaintiff is still a member of the general public service of the Federation; (iv) An order that the plaintiff 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 lawfully due to the plaintiff from the date of her purported dismissal and same be paid to her; (vi) Interest in the rate of 6% per annum on the adjudged sum from 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 in the procedure adopted by the first defendant in attempting to initiate disciplinary proceedings against the plaintiff in that the first defendant should have stated the grounds upon which it was intended to take disciplinary action and not 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. Disciplinary proceedings had in fact already commenced when it was decided to proceed against the plaintiff under reg. 26(1) . The plaintiff further pleads that due to the said material irregularities mentioned hereinbefore she was absolved from having to reply to the said show cause letter. (b) The ground upon which the plaintiff's purported dismissal is based is in contravention of the plaintiff's constitutional right to practice the Islamic religion as contained in the Quran, Hadith and the teaching of the Ulamak and Hukaman Islam. The plaintiff pleads her use of the purdah during office hours did not conflict with her duties. |474| (c) The first defendant

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has failed to comply with the mandatory provisions of General Order 24 of the Public 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 Circular 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 is procedurally defective. In Chief Constable of North Wales v. Evans, [1982] 3 AER 141 , the House of Lords held: Judicial review is not an appeal from a decision but a review of the manner in which the decision was made, and, therefore, the Court is not entitled on an application for judicial review to consider whether 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 guise of preventing the abuse of power, be itself guilty of usurping power. As regards 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 charge in disciplinary actions under reg. 30(2) concerns matters of form rather than 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 she in any way prevented from furnishing the first respondent with the written representation. In any event , the charge contained all the necessary grounds for the proposed dismissal which enabled the appellant to prepare her written representation 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 inoperative. Karpal Singh for the plaintiff submitted that the appropriate disciplinary 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 the words "Disciplinary Authority" contained in O. 3 of G.O.'D' , which states as follows: "Disciplinary Authority" means the appropriate Service Commission whose jurisdiction extends to the service of which the said officer is a member in accordance with the provisions of Part X of the Constitution , and includes an officer or a board of officers in the public service by whom the Commission's function relating to disciplinary control is exercisable in pursuance of Clauses (5A), (5B) or (6A) of Article 144 of the Constitution . (Emphasis added). I note that the chairman of the disciplinary board for 'officers in Group C' in the Attorney General's Chambers who is the Attorney General himself, as provided under para. 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 dismissal. Since the definition of "disciplinary authority" includes 'a board of officers' appointed by the Yang di-Pertuan Agong under Clause (5B) of Article 144 of the Federal Constitution , I find the provision of O. 24 of G.O.'D' was sufficiently complied with when a letter dated 24 August 1985 addressed to the |475|

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Secretary of the PSC signed by the Administrative Officer in the Attorney General'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 memaklumkan bahawa Jabatan ini ada menerima laporan bahawa Cik Halimatussaadiah bte Hj. Kamaruddin, Pegawai Kerani Am di Pejabat Penasihat Undang-undang Negeri Perak, Ipoh, Perak, telah melanggar peraturan pakaian semasa bekerja sebagaimana ditetapkan dibawah Pekeliling Perkhidmatan Bil. 2 Tahun 1985. Setelah meneliti laporan tersebut dan semua maklumat yang berkaitan, maka Pengerusi Lembaga Tatatertib Jawatan Kumpulan 'C', Jabatan Peguam Negara, berpuashati bahawa pegawai ini seharusnya 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 the 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 against the plaintiff started when a report was received by the disciplinary board for 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 of the action begun by the disciplinary board for officers in Group C of the Attorney 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 further proceedings taken against the plaintiff by the PSC. His decision under O. 24 of G.O.'D' is not required to be conveyed to the plaintiff or to any one else. The purpose of O. 24 of the G.O.'D' is quite clear. When the chairman of the appropriate 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 disciplinary offence committed, and decides whether under the circumstances, proceedings should be taken with a view to dismissal or not. For these reasons, Karpal Singh's argument on this issue must fail. Karpal Singh raised the issue that the name of the officer or person who lodged a complaint or report to the disciplinary board for officers in Group C in the Attorney General's Chambers was never disclosed to the plaintiff. With respect, I do not agree that this is the requirement 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 the 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 inquire 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 issue 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 not require the PSC to make such finding. What the PSC is required to decide is whether the explanation given by the plaintiff, had exculpated the plaintiff to the satisfaction of the PSC. On the issue that para. 2.2.1 of the Circular prohibited any dress "yang menutup muka" (which covers the face), Karpal Singh submitted that what is prohibited is a dress which completely covers the whole face, which he thought was a reasonable requirement since the

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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 because 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 completely and consequently did not contravene the provision of this circular. Karpal Singh conceded that on authorities, Government of Malaysia v. Rosalind Oh Lee Pek Inn [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 certainly 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 agree with the view taken by Encik Pritam Singh. DW1, Encik Wan Ibrahim bin Wan Ahmad, 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 words "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 the nose or mouth is exposed, while the rest of the face is covered, I would say that the circular has not been complied with. It was held in Laws v. London Chronicle (Indicator Newspapers Ltd.) [1959] 2 AER 285 that the wilful disobedience of a lawful and reasonable order is itself a ground for dismissal as it is settled law that an employee repudiates his contract of service if he wilfully disobeys 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 issue of whether the directive contained in para. 2.2.1 prohibiting the wearing of a dress covering the face is lawful and reasonable. Article 11(1) of the Federal 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 propogate it. The plaintiff said in evidence that since 1983 she had been wearing the 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 hadith she believed that the face, except the eyes must also be covered to avoid "fitnah". The Dato' Mufti Wilayah Persekutuan Dato' Haji Abdul Kadir b. Talib (herein referred to as Dato' Mufti) who holds a Master in Islamic Studies, Azhar University, and who has held posts as Pegawai Ugama Negeri Johor, Lecturer in Islamic Studies at University Kebangsaan, Deputy Director Pusat Islam in Jabatan Perdana Menteri and Pakar Rujuk Hal Ehwal Islam dan Dakwah at Pusat Islam, and since 21 March 1991, the post of the Mufti for Wilayah Persekutuan, agreed that the Quran 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

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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 of 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 herself to judge. The Dato' Mufti gave this fatwa after making references to the verses 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 far as he could remember, none of them ever covered their faces until recently when Arqam leaders started telling their young wives and encouraged their women followers to cover their faces. The Dato' Mufti gave evidence that purdah was a customary 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 her to wear a purdah. According to him, the Quran does not anywhere mention 'purdah'. The Quran, on the other hand, expressly prohibits a Muslim woman who performs the tawaf (ceremonial walking round the Ka'aba) or while praying, from covering 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 Islam 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 evidence 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 the 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 was already in the witness stand, and had answered questions put to him without hesitation 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, Sunnah, Ijma and the views of early Imams and Jurists both in Arabic and Bahasa Malaysia. 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 down the apparels to be worn by Muslim women. I have myself read the authorities produced 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 Abdullah 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 Muslim women. Even the plaintiff's own witness No. 2, Tuan Haji Hassan b. Haji Salleh is of the same views as expressed by the Dato' Mufti. I therefore accept the opinions expressed by the Dato' Mufti in this Court. In the State of Bombay v. Narsu Appa Mali, [1953] AIR Bombay, 84 Chagla CJ stated: Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith, and belief. If religious practices run counter to public order, morality or health ... then the religious practices must give way before the good of the people of the State as a whole." Article 11(5) of the Federal Constitution states:

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11(5). This Article does not authorise any act contrary to any general law relating to public order, public health or public morality. |478| The language of Article 11 of the Federal Constitution clearly shows that the article is intended to protect absolutely the religious beliefs of the people but in exercising religious practices, Article 11(5) also clearly forbids any act which may lead to public 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 under Article 160 of the Federal Constitution to include any custom or usage having the force of law in the Federation or any part thereof. It was stated in evidence by Dato' Ariffin bin Zakaria that the office of the State Legal Adviser Perak deals with files relating to government secrets, the handling of which is governed by the Official Secrets Act (Act 88) . The identity of a person wearing the 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 for him to identify the plaintiff by just looking at the eyes, and when this question was put to him, there were three persons in Court wearing the purdah. If, therefore, 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 are required to wear name tags, the wearing of a name tag does not reflect the true 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 that there is nothing illegal in the government's laying down conditions for clothings to be worn by government officers while at work for the sake of discipline of the service, provided the conditions do not militate against public order, morality or health. In other words, so long as the conditions imposed do not violate ethical principles, or do not subvert public order, or morality or health which 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 imposed are unconstitutional. This is so even though the conditions imposed may restrict to some extent, the religious practices of some of its officers. Under the circumstances, I hold that the term of para. 2.2.1 of the circular is indeed lawful and reasonable and must be obeyed. Disobedience by an officer to such lawful and reasonable directive or order of the Government would justify the taking of disciplinary action against him or her by the appropriate disciplinary authority. I therefore dismiss the plaintiff's application with costs.

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[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 Responden 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 dengan Kerajaan Malaysia pada 14hb. Ogos 1986. Mengikut kehendak gerenti insuran tersebut Perayu telah pun membuat bayaran sebanyak RM20,354.30 kepada Kerajaan Malaysia. Pada 22hb. April 1991 Perayu telah membuat tuntutan wang sejumlah itu daripada Responden di bawah perjanjian tanggungrugi itu. Tuntutan Perayu di Mahkamah 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 penyelesain bayaran, dan kos. Responden di dalam Pernyataan Pembelaannya mengaku menandatangani perjanjian surat tanggungrugi pada 28hb. September 1986 tetapi menyatakan bahawa perjanjian tanggungrugi tersebut adalah terhadap satu kontrak pembinaan yang dikenalpasti sebagai kontrak No. JKR/LKTP/PHG/P/8/1986 dan dengan yang demikian adalah tidak tertanggung terhadap tuntutan Perayu itu. Responden mengaku menerima surat tuntutan dari Perayu bertarikh 22hb. April 1991 tetapi tidak tertanggung kerana ianya adalah terhadap kontrak No. JKR/LKTP/PHG/P/7/86. Dengan yang demikian nampaknya isunya ialah sama ada Responden tertanggung untuk menanggungrugi 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 perbicaraan di hadapan Hakim, Mahkamah Sesyen, kontrak No. JKR/LKTP/PHG/P/7/86 (eksibit P-15") ialah untuk membina dan menyiapkan dua (2) blok bangunan sekolah, kantin, 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 ialah Le-Subazi Sdn. Bhd. Eksibit "P-1" ialah gerenti insuran atau gerenti perlaksanaan yang ditandatangani oleh Perayu dengan Kerajaan Malaysia bertarikh 14hb. Ogos 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 sebanyak RM41,836.38 dalam tempoh tiga bulan selepas menerima satu notis bertulis menghendaki Perayu membayar kepada Kerajaan di atas apa-apa perlanggaran oleh kontraktor terhadap kewajipannya di bawah kontrak tersebut. Mengikut eksibit "P-3" pula ianya ialah penjanjian tanggungrugi yang ditandatangani oleh Responden mengaku untuk menanggungrugi Perayu yang telah memberi gerenti kepada Kerajaan Malaysia setakat RM41,836.38 untuk meliputi perlaksaan sempurna kontraktor Le-Subazi Sdn. Bhd bersabit dengan membina dan menyiapkan dua (2) blok bangunan sekolah, kantin, padang dan lain-

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lain kerja bersangkutan di Sekolah Kebangsaan Lepar III dan sembilan (9) buah rumah 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/7/1986. Maka dengan ini jelaslah bahawa pembelaan Responden adalah tidak berasas kerana 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 seperti yang dinyatakan di dalam pembelaannya. Daripada keterangan bagi pihak Perayu, telah dibuktikan bahawa melalui eksibit "P-4" dan "P-24" Perayu telah menjelaskan kepada Kerajaan Malaysia melalui MBB Cek No. 024038 bertarikh 10hb. November 1989 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 perbicaraan di hadapan Hakim, Responden telah tidak mengemukakan apa-apa keterangan di atas alasan tiada kes untuk dijawab. Dari bukti-bukti yang terkumpul itu Hakim telah menolak tuntutan Perayu terhadap Responden dan rayuan ini adalah terhadap keputusan Hakim tersebut. Melalui alasan penghakimannya, Majistret menolak tuntutan Perayu kerana Perayu telah gagal membuktikan satu kes prima facie ke atas 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 dokumen-dokumen bagi pihak Kerajaan Malaysia sendiri mendedahkan bahawa keseluruhan projek yang di beri kepada Kontraktor, Le-Subazi telah pun disempurnakan dan diperbetulkan sehingga menyebabkan pihak Kerajaan Malaysia mengeluarkan satu sijil perlaksanaan pembaikan kecacatan pada projek, yang bertarikh 27hb. Februari 1990. Sijil ini terdapat di halaman 132 rekod rayuan Jilid I, iaitu eksibit "SMS-1" kepada affidavit balasan Responden yang diikrarkan pada 19hb. Mei 1993 bagi menentang permohonan Perayu di peringkat interlokutori antara Perayu dengan Responden. Eksibit "SMS-1" ini tidak diketengahkan sebagai eksibit dalam perbicaraan penuh di hadapan Majistret tetapi di ketengahkan di dalam hujah peguam-peguam yang mewakili kedua-dua pihak. Dengan yang demikian ia tidak boleh menjadi keterangan di dalam kes yang di hadapan Majistret. Dengan yang demikian Majistret telah tersalah arah apabila menerimanya sebagai keterangan dalam kes. Tetapi kalau pun eksibit ini diketengahkan sebagai eksibit dalam kes, ianya menyentuh hal antara Kerajaan Malaysia dengan kontraktor dan sama ada ianya "unconscionable dan unjustifiable" atau tidak dipihak Kerajaan Malaysia menuntut dari Perayu berasaskan gerenti insuran, itu satu persoalan lain yang tidak boleh menjejaskan hak Perayu menuntut daripada Responden di bawah perjanjian tanggungrugi jika benar-benar di bawah undang-undang Perayu mempunyai hak ke atasnya. Di dalam alasan penghakimannya, 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 diberi oleh Perayu kepada Kerajaan Malaysia adalah satu "on demand performance bond" dan dengan yang demikian Perayu adalah terikat untuk memenuhi tanggungjawabnya di bawah gerenti insuran tersebut dengan membuat bayaran yang dituntut kepada Kerajaan Malaysia, terus menidakkan hak Perayu ke atas Responden di bawah perjanjian tanggungrugi. Ini semata-mata kerana ketiadaan sifat perimanusia Kerajaan

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Malaysia terhadap Perayu yang telah membuat pembayaran kepadanya tanpa lengah. Pada pandangan saya fikiran Majistret telah terkeliru oleh isu eksibit "SMS-1" di dalam prosiding interlocutori dengan isu sebenarnya yang di hadapannya. Isu sebenar 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 ditandatanganinya 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 oleh Perayu itu. Ini Responden telah gagal buktikan sama ada melalui keterangan yang dikemukakan oleh saksi-saksi Perayu atau keterangannya sendiri. Sebaliknya Perayu telah membuktikan bahawa surat perjanjian tanggungrugi adalah terhadap kontrak No. JKR/LKTP/PHG/P/7/86. Mengikut klausa 1 eksibit "P-3" tersebut, Responden telah bersetuju membuat tanggungrugi kepada Perayu terhadap kesemua tindakan, prosiding, liabiliti, tuntutan, kerugian, kos dan perbelanjaan yang akibat dari gerenti insuran tersebut. Tuntutan Perayu ke atas Responden adalah akibat dari tanggungan 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 Perayu 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 membuktikan tuntutannya terhadap faedah dan kos saperti yang khusus diperuntukan di dalam klausa-klausa 1 dan 3 kepada eksibit "P-3" tersebut. Dengan yang demikian di atas asas yang salah Majistrate telah tersalah di dalam membuat keputusanya menolak tuntutan Perayu. Saperti yang dikatakan awal tadi Majistret telah salah terima eksibit "SMS-1" dan hasilnya telah mengecewakan Perayu di dalam tuntutannya terhadap Responden. Eksibit "SMS-1" ini terkandung di dalam afidavit balasan Responden yang tertera di halaman 126 rekod rayuan Jilid 1. Afidavit dan eksibit ini tidak timbul melalui keterangan saksi di dalam perbicaraan tetapi hanya timbul semasa berhujah. Di hadapan Majistret peguam Perayu sekerasnya membangkang di atas percubaan peguam Responden membuat rujukan kepada affidavit ini. Majistret menolak bangkangan ini saperti yang dinyatakan di halaman 66 rekod rayuan Jilid 1 saperti berikut: "It is axiomatic that parties in a trial should have a free hand to introduce whatever documents they wish to in order to support their case provided always it is in accordance with the rules of the court. Affidavit evidence are sworn testimony. It is even more powerful than the pleadings prepared by the solicitors". Persoalannya di sini sama ada kemasukan afidavit ini sebagai keterangan di lakukan mengikut kehendak peraturan mahkamah. Tidak dinafikan bahawa sesuatu afidavit itu adalah keterangan bersumpah. Tatapi dengan memasukannya secara sedemikian ia menidakkan hak Perayu untuk menyoalbalas deponen afidavit 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 menyoalbalas deponen afidavit tersebut. Soal memberi peluang kepada Perayu "to blow hot and cold at two stages" melalui cara yang telah dilakukan oleh peguam Responden di dalam hal ini adalah tidak berbangkit langsung. Di dalam hal ini Majistret telah tersalah

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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 oleh Majistret di dalam alasan penghakimannya. Tidak dinafikan bahawa afidavit di dalam prosiding belum selesai merupakan satu pliding saperti juga pernyataan tuntutan dan pernyataan pembelaan. Dengan yang demikian Aturan 18 kaedah 8 (1) (b) Kaedah-Kaedah Mahkamah Tinggi 1980 yang menyentuh hal pliding adalah juga terpakai kepada afidavit. Tetapi persoalannya di sini bagaimana caranya untuk afidavit yang digunakan di dalam prosiding interlokutori boleh diterima sebagai keterangan didalam perbicaraan penuh saperti keterangan-kerangan yang lain. Ianya walaupun merupakan kenyataan bersumpah tidak secara bagitu sahaja boleh diterima sebagai keterangan oleh kerana ianya adalah suatu afidavit. Proses untuk menghalalkannya digunakan sebagai keterangan yang boleh diterima, di dalam perbicaraan melalui keterangan lisan saksi perlu dipatuhi. Tetapi di dalam hal ini ianya tidak dipatuhi mengikut cara yang saya sebutkan awal tadi. Jika afidavit tidak boleh diterima sebagai keterangan semestinyalah juga akan eksibit-eksibit yang berkaitan dan terkandung di dalamnya. Di hadapan saya di dalam rayuan ini, peguam Responden berhujah mempertahankan keputusan salah Majistret tersebut dengan berhujah bahawa eksibit "SMS-1" merupakan dokumen kerajaan dan dengan yang demikian ianya adalah dokumen awam yang tidak boleh disembunyikan daripada pengtahuan Mahkamah di dalam membuat keputusan secara adil. Soal menyembunyikannya tidak timbul. Masalahnya bagaimana supaya ianya boleh dianggap sebagai keterangan yang boleh diterima? Mengapa tidak Responden sebagai deponen di panggil untuk secara formal memberi 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 seseorang Majistret semasa menjalankan perbicaraan penuh tidak boleh mengambilkira keterangan yang diperolehinya di luar prosiding yang sedang dijalankan itu. Juga isu kejutan kepada Perayu adalah tidak relevan di sini kerana isunya ialah sama ada apa yang dikemukakan itu merupakan satu keterangan yang boleh diterima mengikut undang-undang. Kemudian peguam Responden berhujah bahawa kewujudan eksibit "SMS-1" ini telah ditanyakan kepada SP2 Narayanan s/o KSA Narayanan saperti yang terdapat di halaman 19 rekod rayuan Jilid 1. Saya cuba mencarinya tetapi tidak kedpatan. 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 telah salah ditulis di dalam nota keterangan. Apa yang dimaksudkan ialah surat bertarikh 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 Responden. Cara begini sahaja tidak menjadikan eksibit berkenaan sebagai satu keterangan yang boleh diterima. Pembuat eksibit "SMS-1" ialah SP3. Hujahan peguam seterusnya meletakan beban memasukan eksibit tersebut ke bahu Perayu adalah tanpa asas langsung. Dengan yang demikian prinsip pemakaian seksyen 114 (g) Akta Keterangan 1950 tidak berbangkit. Ia merupakan pembelaan Responden. Jika demikian beban bukti adalah terpikul olehnya. Walaubagaimanapun isu ini tidak berbangkit di dalam plidingnya. Ia menafikan tanggungannya di atas alasan bahawa perjanjian tanggungrugi adalah terhadap kontrak yang lain yang telah dibuktikan oleh Perayu sebaliknya.

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Berasaskan kepada pendapat saya saperti dia atas adalah nyata sekali bahawa Perayu telah membuktikan kesnya ke atas Responden dan tanpa salah arah dan salah terima 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 diketepikan. Penghakiman kepada Perayu. Tarikh: 16 Mac 1998 (DATO’ ABDUL KADIR BIN SULAIMAN) HAJI Hakim Bagi pihak Perayu: Encik Chandrasekar, Tetuan Nik Hussain & Partners, Peguambela & Peguamcara, Tingkat 27, Menara Promet, Jalan Sultan Ismail, 50250 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

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