JUDGMENT

FC Thomson LP:

This appellant was convicted in the High Court in Malaya at Johore on 21 November 1964 for unlawful control of a firearm in contravention of s. 57(1) of the Internal Security Act, 1960, and for consorting with armed persons in contravention of s. 58 (1) of the same Act and was sentenced to death in respect of each offence.

He appealed against these convictions. On 14 December 1964, we dismissed his appeal and stated we would give our reasons for doing so later. We now proceed to do so.

The charges against the appellant were as follows:-

First charge: That you between 7.30am on 17 August 1964 and 11.30am, on 23 August 1964 in the Security Area as proclaimed by the Yang di-Pertuan Agong, vide FLN 245 dated 17 August 1964, namely Kg Senai, in the District of Pontian, in the State of Johore, without lawful excuse had under your control a firearm, to wit, one shotgun No H 41378 without lawful authority and that you have thereby committed an offence punishable under s. 57(1) (a) of the Internal Security Act, 1960.

Second charge

That you between 7.30am, on 17 August 1964, and 11.30am, on 23 August 1964 in a Security Area as proclaimed by the Yang di-Pertuan Agong vide FLN 245 dated 17 August 1964 consorted with members of the Indonesian Armed Forces who carried firearms and ammunition in contravention of the provisions of s. 57 of the Internal Security Act 1960, in circumstances which raised a reasonable presumption that you intended to act with such members of the said Indonesian Armed Forces in a manner prejudicial to public security and that you have thereby committed an offence punishable under s. 58(1) of the said Act.

At the trial there was really very little controversy as to the facts of the case and indeed the defence did not produce a scrap of evidence to contradict the prosecution witnesses as to the material events, all of which occurred on 22 and 23 August 1964.

On the evening of 22 August Abdul Jalil, a fisherman, was returning with his son to his home on the Sungei Senai near Pontian when his son, who was rowing, invited his attention to two Chinese on the banks of the river. One of them was the appellant. He was holding a sten gun and he called the witness to him. The witness went up to the appellant and the other man, who was also carrying a firearm, and they caught hold of his sampan and asked him to take them to a place some miles upstream. Just then nine other people, all carrying arms, came out of the surrounding vegetation. The whole party then consisted of four Chinese (including the appellant) one Bugis and six Javanese. They asked the witness to take them to Singapore and when he was unwilling they asked him to take them to Indonesia. He said he would do so but that he must first go to his house. The whole party got into his boat and he took them to a spot near his house. There he told them to leave their arms in his boat. He then took three of them to his house and the other eight to a neighbouring hut and gave them food and drink. The next morning he went to the police station at Pekan Nanas and reported the matter and then led a party of soldiers to where he had left the visitors.

His evidence was supported in all material particulars by his son, a boy of 14 years of age, but it is only fair to the appellant to say that the Judge was not satisfied as to the reliability of this witness who was apparently very nervous in Court.

Lieutenant Abbas bin Mohamed Yunus of the Malay Regiment said that on the morning of 23 August with a platoon of 33 men he was led by the witness Abdul Jalil to his house on the Sungei Senai. As they approached three men ran out of it. The soldiers fired on them but they escaped. The soldiers then approached a neighbouring hut. They threw handgrenades into it and called on any persons in hiding to come out or else they would be shot. On this four Chinese dressed in under-clothes came out of the long grass near the hut. They were unarmed and they surren