Rigby J:

This was an application for a Writ of Habeas Corpus to be directed to the Superintendent of Prisons, George Town, Penang, to produce the 30 applicants before the Court with a view to their discharge. At the herring of the application I granted an order nisi for the respondent to show cause why the order should not be made absolute, and an affidavit in reply was filed by the Controller of Immigration. Yesterday, after having heard the arguments of Counsel, I directed that the order be made absolute and the applicants be discharged from Prison. In view of the practical interest and importance of the matter I intimated that I would give in writing the reasons for my decision. I now do so.

By their affidavit the 30 applicants declared themselves to be members of the Revolutionary Government of the Republic of Indonesia: the first applicant being attached to the staff of the Ministry of Defence and holding the rank of Lieut - Colonel. They are members of a Revolutionary Indonesian Organisation bearing arms against the established Government of that country.

On 5 January 1960, they were found in a motor tongkang, and in possession of their arms, some distance off the coast of Province Wellesley and within the territorial waters of Malaya. Their motor tongkang was immobile at the time it was found. They were apprehended, brought to Penang and, in due course, charged with being in unlawful possession on of firearms and ammunition. Upon these two charges they were tried and, on 5 February, duly convicted. They were sentenced to a term of imprisonment. In addition to the term of imprisonment they were also fined sums of money in respect of both charges and, in default of payment of such fines, ordered to undergo further terms of imprisonment. The terms of imprisonment were ordered to run as from the date of their arrest, namely, 5 January. The learned Magistrate further ordered not only the confiscation of their firearms and ammunition, but also the confiscation of the tongkang - and all movables contained therein -in which they were found at the time they were apprehended. They appealed against their convictions and sentences, including, of course, the confiscation orders. Their appeals were heard by this Court on 5 May. After hearing the arguments of Counsel this Court, without prejudice to its final decision upon the validity or otherwise of the conviction itself, whilst upholding the substantive term of imprisonment imposed, set aside the fines imposed (and, by necessary implication, the terms of imprisonment in default of payment of such fines). As a result, since the applicants had served the substantive term of six months' imprisonment (allowing for the prescribed period of remission of prison sentences according to the Prison Regulations), they were released forthwith.

On the same day, 5 May, the applicants were issued by the Controller Of Immigration with Special Passes authorising each and every one of them to remain on the Island of Penang for a period of ten days pending their departure from Malaya, and to report their departure to the Immigration Department. These Special Passes were issued to them by the Controller under the provisions of reg. 14 of the Immigration Regulations. The grounds upon which they were issued and the reasons for issuing them, are not specified in the Passes themselves. But it is not unreasonable to assume that they were issued to them pending the result of their appeal against conviction.

Now the defence which the applicants had put forward throughout their trial and which, through their Counsel, they continued to urge at the hearing of the appeal, was that they were within the territorial waters of Malaya not of their own volition but because the motor engine of their boat had broken down and they had consequently drifted to the position where they were, in fact, found. The learned Magistrate concluded, and in my view correctly, that if they were able to establish that def