Suffian LP:

On 26 December 1974, at about 11.30 a.m. an armed robbery was committed by certain persons at the office of the Kubang Pasu Transport Co. at Jalan Tunku Ibrahim at Alor Star. Apparently the Police had advance information, of the robbery and they were lying in ambush near the scene. Soon after the robbery had started they exchanged fire with the robbers, during which one of the robbers was shot dead and another injured and captured. Later the same day Inspector Amiruddin arrested Ooi Chooi Toh aged 25 on suspicion of having been the person who stood guard downstairs during the robbery. He was arrested about 50 yards from the scene of the crime.

The 26 December was a Thursday, a half day in Kedah, while Friday the 27 was the usual weekly holiday. On the first working day after that Kedah weekend Saturday 28 December, the Inspector produced Ooi before a magistrate and applied under s. 117 of the Criminal Procedure Code for authority to detain Ooi in policy custody for a week until 3 January 1975. The magistrate was satisfied that police investigation could not be completed within 24 hours and granted the application.

Ooi's father the applicant (appellant before us) instructed solicitor Mr. Karpal Singh on Monday, 30 December. On the same day Mr. Karpal Singh wrote a letter to the OCCI, Kedah (respondent in the Court below and here), asking for permission to see Ooi at 12.30 p.m. that day so that he could take instructions. That very day one Mr. Gopal writing on behalf of the Kedah CPO wrote in reply, not denying Mr. Karpal Singh access to Ooi but merely regretting that the time and date given by Mr. Karpal Singh were not suitable and saying that, if Mr. Karpal Singh wished to see Ooi at any other date and time, he was to get in touch with the OCPD, Alor Star.

Apparently Mr. Karpal Singh had an interview with the Police during which he was told that investigations were still in progress and that it might be possible for him to see Ooi on 2 January 1975, but Mr. Karpal Singh was unable to see him that day despite calling several times at the police station.

According to Acting DSP Haji Junid bin A Aziz, Deputy OCCI, on that day (the second, another Thursday, a half day) Ooi led the police to certain places in connection with other reports and did not get back to the station until 3 p.m.

On 5 January Ooi's father (the applicant) filed notice of motion in the Alor Star High Court applying for a writ of habeas corpus

to issue directed to the OCCI to have Ooi's body brought before the Court. The application was made under cl (2) of article 5 of the Constitution and also under the Criminal Procedure Code. In his supporting affidavit the father maintained that his son's continued detention was unlawful because of the OCCI's refusal or failure to allow Mr. Karpal Singh to see the son for consultation as guaranteed by article 5(3) of the Constitution.

The motion was heard on 9 January before Hashim Yeop A Sani J who in a judgment which has been reported (see [1975] 1 MLJ 93 ) dismissed it. The applicant appeals to us.

The issue here is (according to Mr. Karpal Singh): when does the right of an arrested person to consult and be defended by a legal practitioner of his choice, accrue? Mr. Karpal Singh contends that it accrues at the moment of arrest. He asks this Court to give a ruling that will meet all cases. During the course of arguments we told him that it would be undesirable and very difficult for this Court to give such a ruling and that we would prefer to answer a specific question. Under pressure from us he then narrowed down the issue by contending that on 30 December itself (that is on the day he was first retained by Ooi's father) Ooi had the right to consult him (Mr Karpal Singh), and that as Ooi was denied that right his detention was unconstitutional, void, and that this Court should order Ooi's release, despite the fact that a preliminary enquiry against Ooi was due to begin on the day immediately