Raja Azlan Shah FJ:

In this appel which we dismissed the central issue was the time-honoured question of the constitutional right of an arrested person to counsel. When does such right begin?

The learned trial judge had this to say:

It will be seen that the law regarding the constitutional right to consult counsel must be reconciled with actual practice with regard to police investigations under the Criminal Procedure Code. seems to me that as the purpose of detention under s. 117 CPC is for the purpose of completing investigations and as the constitutional right to consult counsel 'should not be exercised to the detriment of investigation', then for so long as an arrested person is detained under s. 117 CPC he cannot exercise his right to consult counsel. I therefore hold that the right to consult counsel begins from the moment of arrest but the exercise of that right is postponed for so long as the arrested person is detained under s. 117 CPC.

In this case the request to consult counsel was made during the period the plaintiff was under detention under s. 117 CPC. The plaintiff, therefore, could not exercise his right at the material time and consequently there could not be a denial of such right.

The facts are not in dispute. On 8 August 1972. the plaintiff ("the appellant") and two other persons were arrested on suspicion of being involved in the theft of an electric generator. The legality of the arrest was not challenged. They were interrogated by Inspector Yahaya ("the first respondent") on the same day. As he could not complete his investigations, he brought the plaintiff and the two suspects before a magistrate the following morning and applied for and was granted an order of detention under s. 117 CPC until 19 August 1972 - a period of ten days. On the same day a person claiming to be from the legal firm of Messrs. Karpal Singh & Co. but not a lawyer visited the said inspector at his house with a letter which reads:

Inspector Yahya, Pendang Police Station, Pendang, KEDAH.

Dear Sir,

Re: Hashim bin Saud

We have been approached by Che Ramli bin Salleh, the father-in-law of the abovenamed to act for the abovenamed.

We understand the abovenamed has been detained by you on 8th instant.

We are instructed to apply to you for an opportunity to see the abovenamed for consultation as soon as possible.

Kindly inform us by return the exact time when our Mr. Karpal Singh could attend at the Police Station, Pendang, or elsewhere to interview the abovenamed.

Needless to say, the abovenamed has a constitutional right to consult a legal practitioner after his arrest. We would be grateful if you would grant our request.

Yours faithfully,"

Inspector Yahaya then asked for Mr. Karpal Singh's free dates or the dates on which he could see him. He was not able to give any date. Inspector Yahaya then wrote a note on the said letter.

You can see your client on 19 August 1972.

At that time Inspector Yahaya said that August 19 would be the earliest date convenient for appellant to see his counsel as he thought that investigations would have been completed by then. As matters then stood to accede to counsel's request would hamper investigations. If investigations could be completed sooner, he said he would have allowed counsel to see the appellant.

The appellant was however released on August 14, clearly four days before the expiry of the magistrate's order.

The short issue before us was whether the refusal to allow the appellant to consult his counsel during the period of police detention in spite of the magistrate's order was a breach of his constitutional right and rendered the said order unlawful. In those circumstances it was argued that the appellant had a right of action for damages for false imprisonment against the officer responsible for it and his superiors, that is, the Government of Malaysia, the second respondent.

I think it would be interesting to see how the constitutional right of an arrest