JUDGMENT

Suffian LP:

The issue here is whether in a security case tried in accordance with the Internal (Security Cases) Regulations 1975, ("the regulations"), when the prosecution has closed its case, the Court is obliged to call on the accused to enter on his defence, even if the prosecution has not made out against him a case which, if unrebutted, would warrant his conviction.

This point was first argued before three of us, on 3 July 1979, when we reserved judgment. In the course of considering our draft judgment, we decided that it would be desirable to have a point of law of such importance as this re-argued before five Judges; and accordingly it was re-argued on 23 June 1980, in the presence of two additional members of the Court, namely our brothers Raja Azlan Shah CJ (Malaya), and Lee Hun Hoe CJ (Borneo).

At first this appeal was argued on behalf of the accused by Tengku Suleiman. The date of re-argument was fixed to enable him, who was then away overseas, to appear again before us. But as it happened, at the second hearing the accused were represented by Mr. Pasupathy and Mr. Victor Isaacs.

Tengku Suleiman, later Mr. Pasupathy, has been instructed only by the second accused. The Court has not been able to serve the appeal record on the first accused; and they were assigned to represent him and to argue on his behalf despite the fact that neither had received instructions, but the appeal to be limited at this stage only to consideration of the issue stated at the beginning of this judgment.

At the first hearing the Public Prosecutor was represented by Encik Sharkawi and at the second by Shaikh Daud.

The first accused was charged with having under his control in a security area a firearm contrary to s. 57(1) of the Internal Security Act 1960, and the second accused with being found in his company contrary to s. 58(2) of the same Act.

After the prosecution had closed its case, the learned trial Judge acquitted and discharged both accused, on the ground that the prosecution had not proved a prima facie case.

The Public Prosecutor contends that, this being a security case tried in accordance with the regulations, the learned trial Judge erred in not calling on the accused to enter on their defence, in view of reg. 13 which provides:

When the case for the prosecution is closed, the Court shall call on the accused to enter on his defence.

It will be observed that reg. 13 is diametrically opposed to s. 180 of the Criminal Procedure Code which governs ordinary trials and which provides that:

the Court, if it finds (at the end of the prosecution case) that no case against the accused has been made out which if unrebutted would warrant his conviction, shall record an order of acquittal, or, if it does not so find, shall call on the accused to enter on his defence.

If the accused had been tried in accordance with the Code, clearly the learned Judge was right in acting as he did. Was he right in acting as he did in this case, tried not under the Code but under the regulations?

What if in a security case all the prosecution did was to produce the accused, have the charge against him read and explained and then produce only formal evidence relating to exhibits? Should the Court then have to call on the accused to enter on his defence? Shaikh Daud's answer was that the Public Prosecutor would use reg. 13 responsibly and not in an absurd way.

What if the prosecution relied on a cautioned statement made by the accused as the only evidence against him and the trial Judge found that it had not been made voluntarily and declined to admit it in evidence? Would the Court be obliged to call on the accused to enter on his defence? Shaikh Daud submitted yes, for (he said) the accused's right to remain silent had not been taken away by the regulations, and if he remained silent and called no evidence, he would be entitled to be acquitted and discharged. But what if he gave evidence or called evidence and he or his witnesses in cross-examination made admission