Lee Hun Hoe CJ (Borneo)

(delivering the judgment of the Court): This appeal against the dismissal of an application for habeas corpus and the refusal to grant a declaration that a warrant of committal issued by the Deputy Registrar is invalid and bad in law may be compendiously stated as raising the question of jurisdiction of this court.

On May 18, 1976 appellant was convicted on three charges under the Prevention of Corruption Act, 1961, and sentenced to one year's imprisonment on the first charge and two years each on the second and third charges, the sentences to run concurrently. He was also ordered to pay $225,000 to UMNO (United Malay National Organisation), Selangor. On January 24, 1977 in a separate trial he was convicted on two charges under sections 458 and 109 of the Penal Code and sentenced to six months' imprisonment on the first charge and a fine of $15,000 on the second charge. In both cases he appealed to this court. On June 10, 1977 in Federal Court Criminal Appeal No. 19 of 1976, "the first appeal"(1) was dismissed and the sentences were confirmed except that this court ordered the sum of $250,000 to be paid to the Federal Government as fine and not to UMNO, Selangor. On December 6, 1977 in Federal Court Criminal Appeal No. 11 of 1977, in respect of "the second appeal",(2) this court enhanced the sentences from six months to four years' imprisonment on the first charge and instead of a fine of $15,000 imposed three years' imprisonment on the second charge, the sentences to run concurrently. He was granted bail pending his appeal to the Privy Council for special leave to appeal to the Yang di-Pertuan Agong. It should be made clear that both appeals were heard by this court on different dates. In both appeals the sentences were stated to run concurrently to denote, as the learned judge rightly pointed out, concurrent effect in each of the cases and not between the cases. Following the dismissal by the Privy Council of the appellant's application for special leave the Registrar, High Court, Kuala Lumpur, issued two separate warrants of committal both dated February 28, 1978 in respect of the two appeals. Appellant commenced his sentence on March 1, 1978. The learned judge referred to problems in the apprehension of appellant after the Privy Council refused him special leave to appeal.

By paragraph 2 of a letter ref: PN.O.123/15 dated August 14, 1979 to the Chief Registrar, the Solicitor-General stated:—

"2. I have now been informed that the Prison Authorities take the view that the sentences in respect of all the cases were ordered to run concurrently. I do not know whether this is correct for if my memory serves me right, it was clearly made known by the court that the sentences in respect of Criminal Appeal No. 11 of 1977 should take effect upon the completion of the sentences in respect of Federal Court Criminal Appeal No. 19 of 1976."

When the letter was referred to the Lord President he consulted Wan Suleiman F.J. and Wan Hamzah J. who sat with him in the second appeal. They looked at the letter, the order and the warrant of committal. They were clearly not satisfied that the order and the warrant of committal reflected the decision of this court to have the sentences in Federal Court Criminal Appeal No. 11 of 1977 to commence on the expiration of the sentences in Federal Court Criminal Appeal No. 19 of 1976. On the direction of the Lord President, the Deputy Registrar, High Court, Kuala Lumpur, rectified what the Attorney-General considered to be an inadvertent omission by issuing a fresh warrant of committal on August 29, 1979 backdated to February 28, 1978. The fresh warrant of committal is word for word the same as the earlier warrant of committal except for those words to make clear that "these sentences (are) to commence on the expiration of the sentence imposed on him by the High Court and affirmed by this court in Federal Court Criminal Appeal No. 19 of 1976." Appellant was informed verbally by t