Gunn Chit Tuan SCJ:

[1] In a notice of motion entitled Federal Territory criminal Application No CR 54-20 of 1988 the Criminal Division of the High Court at Kuala Lumpur on 16 September 1988, ordered, inter alia, one Brain Robinson and one Brendan O'Shannassy of the Australian Customs Service and also one Vijayandran of the Royal Customs, Malaysia, to forthwith return all documents/files and any copies made of the documents seized by them belonging to Midford (Malaysia) Sdn Bhd and one U Mat.

[2] They as well as the Director General of the Royal Customs, Malaysia, and the Commonwealth of Australia and their servants/agents were also restrained from conducting any further illegal searches/seizures on the promises of Midford (Malaysia) Sdn Bhd, its employees, agents or partners.

[3] On 21 September 1988, the Director General of Royal Customs, Malaysia and the said Vijayandran of Royal Customs, Malaysia, applied by notice of motion for the whole order of the Court made on 16 September 1988, to be set aside on the grounds that the Court had no jurisdiction to grant the relief sought and that the proceedings adopted in applying for an injunction in a criminal application was misconceived in law as there are no provisions in the Criminal Procedure Code to enable the Court to grant the injunction sought.

[4] On 2 December 1988, the Commonwealth of Australia also applied by a notice of motion, inter alia, for the following orders:

1. That the Commonwealth of Australia be granted leave to appear in this action under protest, without prejudice to an application by it to set aside the original application and all its subsequent proceedings;

2. Alternatively, that the order dated 16 September 1988, be set aside;

on the grounds, inter alia, that the Commonwealth of Australia is not subject to the jurisdiction of the Court by reason of the fact that it is a foreign state recognised by the Supreme Head of the State of Malaysia and is clothed with sovereign immunity; and that there was no jurisdictional basis in law and/or in procedural basis for the action and/or the form and nature of the relief sought.

[5] Anuar J, who heard the said notice of motion dated 2 December 1988, noted that it was not disputed that the Commonwealth of Australia is a foreign sovereign state but it was contended by Mr Hira Singh, Counsel for the said Midford (Malaysia) Sdn Bhd and U Mat that the Commonwealth of Australia as well as the two Australian Customs officers did not enjoy pure absolute immunity. And the learned Judge on 15 June 1989, ruled that the Commonwealth of Australia was "not entitled to pure absolute immunity from the jurisdiction of the Malaysian Courts. The Court is fortified by the fact that if this case were to be in an English Court or if the Commonwealth of Australia were to be Malaysia in an Australian Court, the Commonwealth of Australia would not be granted the order asked for, especially the immunity from criminal jurisdiction of the Court."

[6] A notice of appeal was filed by the Commonwealth of Australia on 20 June 1989, and before us Mr Cecil Abraham, its Counsel, on the issue of sovereign immunity, referred to the following passage in the judgment of Viscount Finlay in Duff Development Co v. Kelantan Government [1924] AC 797:

It is settled law that it is for the Court to take judicial cognizance of the status of any foreign Government. If there can be any doubt on the matter the practice is for the Court to receive information from the appropriate department of His Majesty's Government, and the information so received is conclusive.

[7] Counsel also referred to Village Holdings Sdn Bhd v. Her Majesty in Right of Canada, [1988] 2 MLJ 656 in which case Shankar J in the High Court at Kuala Lumpur has recently accepted the certificate of the Secretary General of the Ministry of Foreign Affairs, Malaysia, and it was conceded in that case that the certificate was conclusive proof that Canada was a foreign sovereign state and that the Court sh