Hashim Yeop A Sani J:

Subject was arrested by the Police on 26 December 1974. Due to intervening public holidays subject was brought before the magistrate on 28 December, 1974 under s. 117 of the Criminal Procedure Code. On 7 January 1975 subject was charged in the Magistrate's Court, Alor Star for abetment in an armed robbery alleged to have been committed on 26 December 1974 i.e. the date of the arrest aforesaid. The offence in respect of which subject is charged is punishable under the Firearms (Increased Penalties) Act, 1971 and non-bailable. Subject is now in remand at the Alor Star prison.

Applicant is the father of subject. In his affidavit dated 5 January 1975 applicant states that he tried to see his son after the arrest but was prevented from doing so by the Police. On 30 December 1974 he instructed his solicitors and on the same day the solicitors wrote to the respondent to ask if Counsel could see subject at 12.30 p.m. the same day (Exh. AP1 in affidavit). The respondent replied that the time and date was not suitable and stated that any other date or time may be arranged with the OCPD Alor Star (Exh. AP2 in affidavit). The affidavit further states that on the same day that he sent the letter (AP1) Counsel saw the respondent and 2 January 1975 was fixed as a suitable date for the appointment for Counsel to see subject 2 January 1975 was a Thursday and therefore a half day for government departments in Kedah. Counsel went to the police station at various times in the morning of that day together with applicant and others but neither subject nor the respondent was there. Being a half day Counsel returned to his office at 1.30 p.m. He wrote a letter to the respondent (Exh. AP3) alleging breach of Article 5(3) of the Constitution.

On behalf of the respondent the Deputy Officer in Charge, Criminal Investigations, Kedah/Perlis swore an affidavit dated 8 January 1975 which states that the applicant made his first attempt to see subject only on 30 December 1974 (which is denied by the applicant). On 2 January 1975 subject was accompanying the police to certain places in Kedah in connection with other police reports and did not return to the police station until 3 p.m. that day. The significant parts of the affidavit are at paras. 6 and 10 which state as follows:

6. The applicant's solicitor was told by the police on 30 December 1974 to the effect that investigation was still in progress but it might be possible for him to see Ooi Chooi Toh on 2 January 1975.

10. The police only refused a visit by the applicant's solicitor while Ooi Chooi Toh was under interrogation. After investigation was completed Ooi Chooi Toh was allowed to consult the solicitor.

The proposition submitted by Counsel for applicant is simply this: (1) the right of subject to consult and be defended by Counsel of his choice commenced immediately after his arrest; (2) this right is an unqualified right and the denial by the police of this right has rendered the detention unlawful. Subject is therefore entitled to release.

Counsel for applicant urged the Court to compare this right with the equivalent right under the United States Constitution. In my view it is futile to compare any of the rights protected in Part II of our Constitution to their equivalents under the Constitution of the United States for the simple reason that almost all rights under the Constitution of the United States are in absolute terms whereas under our Constitution most if not all (except the right with regard to freedom against slavery under Art. (6) are in qualified terms.

To begin with it should be noted that Art. 5(3) of our Constitution does not introduce an entirely new right but merely re-states a right which had existed in some form before the Constitution. Section 255 of the Criminal Procedure Code (FMS Cap. 6) and s. 250 of the Criminal Procedure Code (SS Cap. 21) already granted to "every person accused before any criminal Court" the right to be defe