Sambasivam v Public Prosecutor, Federation of Malaya

APPEAL (No. 32 of 1949), by special leave, against an order of the Supreme Court of the Federation of Malaya (Court of Appeal) (Willan C.J., Hill and Wilkinson JJ.) (April 28, 1949) dismissing an appeal from a judgment of the Supreme Court of Johore (Storr J.) (March 22, 1949) whereby the appellant was convicted of carrying a firearm under reg. 4, sub-reg. 1 (a), of the Emergency Regulations, 1948, and sentenced to death.

The following facts are taken from the judgment of the Judicial Committee:- On the morning of September 13, 1948, the appellant, an Indian Tamil clerk, was travelling on foot in the State of Johore in the company of two Chinese. They met a party of three Malays and a fight ensued, in the course of which one of the Chinese was killed, and the appellant was seriously wounded. The other Chinese escaped and had not, apparently, been heard of since. The Malays, who were armed with knives, alleged that they had been fired on by the Chinese and that the appellant had drawn and pointed a revolver at one of them before he had been wounded and disarmed. In connexion with that incident the appellant was later charged with carrying a firearm and being in possession of ten rounds of ammunition. Those charges were preferred under reg. 4, sub-reg. 1, of the Emergency Regulations, 1948, which read as follows:-

“4. — (1.) Any person who carries or who has in his possession or under his control —

“(a) any fire-arm, not being a fire-arm which he is duly licensed to carry or possess under any other written law for the time being in force; or

“(b) any ammunition or explosives without lawful authority therefor, shall be guilty of an offence against these Regulations and shall on conviction be punished with death.”

By the Emergency (Criminal Trials) Regulations, 1948 (hereinafter referred to as the Trials Regulations), provision was made for a simplified procedure, without any preliminary inquiry, in the case of certain offences within the Federation. The applicability of the Trials Regulations, in so far as material, depended on a certificate being given under reg. 7 thereof, which was in these terms:-

“7. Where a person is charged with any offence against any written law and the Public Prosecutor certifies in writing that the case is a proper one for trial under these regulations, such case shall be tried and disposed of in accordance with the provisions of regs. 8 to 12 inclusive of these Regulations.”

By reg. 2 the expression “Public Prosecutor” included a Deputy Public Prosecutor. On November 25, 1948, Mr. McCall, admittedly a Deputy Public Prosecutor, purported to issue a certificate under reg. 7 relating to the offences charged against the appellant. It would be convenient to quote that document fully for its terms were important and it specified the charges on which the appellant was subsequently tried. It was signed by Mr. McCall and ran thus:-

“The Emergency (Criminal Trials) Regulations, 1948.

“I, William Martin McCall, Deputy Public Prosecutor, in accordance with the provisions of s. 7 of the Emergency (Criminal Trials) Regulations, 1948, hereby certify that the trial of Sivam alias Sambasivam s/o Narayanasamy on the following charges, namely:-

1. That he at about 10 a.m. on September 13, 1948, at Bukit Kepong, Muar, in the State of Johore, carried a .38 revolver which he was not duly licensed to carry, and he has thereby committed an offence punishable under reg. 4 (1) (a) of the Emergency Regulations, 1948; and

“2. That he at about 10 a.m. on September 13, 1948, at Bukit Kepong, Muar, in the State of Johore, had in his possession ten rounds of .38 ammunition without lawful authority therefor and he has thereby committed an offence punishable under reg. 4 (1) (b) of the Emergency Regulations, 1948,

“is a proper case for trial under the said Regulations and I hereby designate Johore Bahru as the place where such trial shall be held.

“Dated at Johore this 25th day of November, 1948.

“(Sgd.) W. Martin McCall,

Deputy Public Prosecutor for

Solicitor-General.”

On March 2, 1949, the appellant was tried under the emergency procedure prescribed by the Trial Regulations on both those charges in the Supreme Court at Johore Bahru before Laville J. and two assessors. On the second charge — that relating to the possession of ammunition and framed under reg. 4, sub-reg. 1 (b), of the Emergency Regulations — both assessors returned a verdict of not guilty and, the learned judge agreeing with that finding, the appellant was duly acquitted. On the first charge — that relating to the carrying of a firearm and framed under reg. 4, sub-reg. 1 (a) — the assessors also found the appellant not guilty but Laville J. disagreed with that finding and ordered a re-trial. That was done under s. 198 (ii) of the Criminal Procedure Code which provided: “If the court is unable to agree with the opinion of both assessors, …. the proceedings shall be stayed and a new trial held...