SPROULE J

Clause 7 of the Straits Settlements Fugitive Offenders' Order of 1904 provides as follows:-

"When the return of a prisoner is sought or ordered under this Order, and it is made to appear to a Police Court or to the Supreme Court that, by reason of the trivial nature of the case, it would, having regard to the distance, to the facilities of communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the prisoner either at all or until the expiration of a certain period, the Court may discharge the prisoner, either absolutely or on bail, or order that he shall not be returned until after the expiration of the period named in the Order, or may make such order in the premises as to the Court seems just.

Any order or refusal to make an order of discharge under this clause by a Police Court shall be subject to an appeal to the Supreme Court."

Now reference has been made to the decision in Reg v. Haji Sahid 9 SSLR 86. In coming to that decision Cox CJ seems to have relied upon the wording of the clause being 'by reason of the trivial nature of the case, and not of the offence'; he therefore, in effect, decided that the clause was broad enough to cover even a case where the prosecutor and his witnesses did not come down to meet or rebut a story told by the defendant to the Court of rendition, and that such a case was of a "trivial nature," however serious the offence charged might be.

The interpretation may or may not be an undue extension of the meaning of cl. 7. With very great respect, I think it went too far. The learned judge however clearly did not attempt to exclude from the operation of the clause a case where the offence charged was a trivial nature.

In the present case it is agreed on both sides that the defendant can only be liable at the outside to pay to the complainant thirty days' wages or $10 by way of compensation, which payment can be recovered as if it were a fine. If therefore the measure of penalty prescribed by the legislature be any criterion of the gravity or triviality of an offence (and I can think of no more just criterion), and if the present case be regarded as one of a criminal offence, I know of none more trivial under our law.

An examination of the Labour Contracts Ordinance of 1882 however (which Ordinance, I am informed by counsel, corresponds for the purposes of this case more or less exactly with the Selangor Labour Code, under which the defendant may or may not be liable to pay his $10) shews that it is not strictly an offence or a criminal matter which is being prosecuted against the defendant. The Ordinance, which especially saves ordinary civil remedies between master and servant, devises in addition, and for the protection of both, a simple and summary remedy for disputes between them. A domestic servant is for the purposes of the Ordinance on the same footing as a free coolie on monthly wages (as I understand the defendant to have been); and a master is just as liable to the defendant on a summons under the section here in question as a servant is, and as liable to be arrested for disobedience to such summons. Defendant is therefore before the Court in what is really a civil dispute prosecuted in quasi-criminal form, and this adds to the triviality of the case.

The learned Magistrate however justifies his order of rendition upon the ground that serious consequences might ensue, should offences of this nature (he assumes it is an offence) become prevalent, and estate labourers come to make light of the terms of their engagement. I am not quite sure that I understand the learned Magistrate's apprehension, or if he means that estate labourers in Selangor generally, or on the complainant's estate in particular, are waiting for defendant's discharge in this matter to leave without notice themselves and come to Singapore. If they are, there is no evidence that defendant is a party to any such intended law-breaking a