Raja Azlan Shah CJ (Malaya)

(delivering the judgment of the Court): The appellant was convicted of 3 charges under section 57(1) of the Internal Security Act, 1960, to wit, in control of a 7.65 Walther automatic pistol, a 9 mm Erfurt 96 automatic Luger pistol and a 6.35 Beretta automatic pistol; in control of six rounds of 9 mm ammunition, five rounds of .32 ammunition, and 2 primed hand grenades; and in possession of 35 rounds of 9 mm ammunition, and 29 rounds of .32 ammunition. He put up 25 grounds of appeal some of which overlapped. In our opinion there was no ground whatever upon which the appeal could be allowed. Consequently we dismissed the appeal. We now deal with the main points raised in the petition of appeal.

First, the preliminary objection. It was contended by Mr. Jagjit Singh on behalf of the appellant that the Attorney-General had exercised his discretion improperly and/or unlawfully in charging the accused with offences under the Internal Security Act. He argued that at the worst the appellant was only a common criminal and there was nothing to suggest that this was a case against national security. The short answer can be found in the judgment of the Privy Council in Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50. The accused in Teh Cheng Poh's case was also charged under the Internal Security Act, in fact under the same section of the Act (section 57(1) for possession of firearm in a security area). The difference between the two cases lies only in the fact that whereas in Teh Cheng Poh's case the accused was found in possession of a revolver and ammunition in the course of a search by a police patrol instituted as a result of a phone call complaining about the robbery, the appellant in the present case was found in possession of arms and ammunitions as described above following a gun battle between a police party and a group of armed men. We feel that what Lord Diplock said in the judgment of the Privy Council in Teh Cheng Poh's case provides a complete answer to the preliminary objection raised by the appellant. The Attorney-General had an unfettered discretion in the matter. Lord Diplock at page 56 said:

"If indeed the Attorney General was possessed of a discretion to choose between prosecuting the appellant for an offence against section 57(1) of the Internal Security Act, 1964, or for an offence under the Arms Act, 1960, and the Firearms (Increased Penalties) Act, 1971, there is no material on which to found an argument that in the instant case he exercised it unlawfully. But, in their Lordships' view, although he had a choice whether to charge the appellant with an offence of unlawful possession of a firearm and ammunition at all instead of proceeding with a charge of armed robbery (which was also brought against the appellant but not proceeded with), once he decided to charge the appellant with unlawful possession of a firearm and ammunition he had no option but to frame the charge under the Internal Security Act, 1960."

The other main point raised on behalf of the appellant which seemed to be also implied in a number of other grounds set out in the memorandum of appeal was that the trial judge should have found that the appellant was unconscious when the police party found him in the hall of the premises where the gun battle took place. The line of argument was that because of the fact that the appellant sustained not less than seven gunshot wounds and was suffocated by gas fumes from gas shells thrown into the building by the police party, he was in a state of unconsciousness when he was found by the police party. Therefore he cannot be said to be in conscious possession or control of any of the weapons or ammunition supposedly found on him. Looking at the line of defence in the court below it can be seen from the records that the defence took pains to establish that the appellant was either unconscious or at least semi-conscious when he was found. It was for this purpose that the doctor (DW2)