JUDGMENT

Eusoffe Abdoolcader SCJ:

Viewed in the context and against the backdrop of previous proceedings instituted by the respondent to the like effect and which have since been disposed of, an appropriate and succinct caption to this present episode in the ineluctably protracted Sim Kie Chon sage would be `a case of new wine in an old bottle'. To exposit this requires a brief descent into the subcellars of its somewhat chequered history.

The respondent was tried and convicted on a charge under s. 57(1) of the Internal Security Act 1960 and sentenced to death by the High Court at Kuala Lumpur on 14 June 1983. His appeal to the Federal Court was dismissed on 26 October 1983, and on his case being referred for clemency to His Majesty the Yang di-Pertuan Agong under s. 281(c) of the Criminal Procedure Code (`the Code') for consideration in accordance with the provisions of Article 42 of the Constitution of Malaysia read with reg. 29 of the Essential (Security Cases) Regulations 1975 (`the Regulations'), the sentence of death was confirmed and ordered to be carried out and an order to this effect was issued by His Majesty on 20 April 1985. Pursuant thereto a warrant was issued setting the date for execution as 3 July 1985. The respondent then commenced an action on 2 July 1985 against the first and third appellants and the Pardons Boards, Malaysia instead of the second appellant for declarations impugning the rejection of clemency on the ground of discrimination in breach of article 8 of the Constitution. Harun Hashim J granted a stay of execution of the sentence on that very day but this was later lifted and the action struck out on an application by the defendants thereto. An application for a stay and an appeal against that decision were heard together and dismissed by the Supreme Court on 23 July 1985.

We pause to observe that the respondent had also previously applied to the High Court at Kuala Lumpur to adduce for the purposes of a petition for clemency further evidence and submissions in respect of his conviction in the substantive criminal proceedings in which he was convicted and sentenced to death. This was refused as it was virtually an attempt to re-open his conviction; an appeal to the Supreme Court was lodged but later abandoned. A fresh warrant of execution now fixed the date of execution for 15 August 1985.

The respondent then instituted the present suit against the first three appellants on 13 August 1985. His application for a stay of execution of the sentence was refused but the Yang di-Pertuan Agong in the exercise of the powers of clemency vested in him granted a respite pending the final disposal of these proceedings. The first three appellants applied to strike out the second appellant as a party and to set aside this action as an abuse of the process of the Court. Harun Hashim J dismissed this application on 17 October 1985 without, regrettably, giving any reasons or grounds for his decision but we are given to understand from the Bar that he indicated at the hearing that he thought there were triable issues. The appellants appealed and about ten days before the hearing of this appeal the respondent obtained an order from the learned Judge to join the fourth appellant as a party to this action and to amend the writ and statement of claim.

At the outset of the hearing of this appeal we acceded to a motion on behalf of the respondent to include the amended writ and statement of claim in the record of appeal. On the basis of his amended pleading the relief the respondent seeks is, briefly, for declarations to the effect that the fourth appellant which considered the respondent's case was not lawfully constituted, that the second appellant was the proper body for this purpose, that the decision of the Pardons Board dated the 20 April 1985 was void and legally ineffective, that the warrant or warrants of execution of sentence of death were equally void and of no effect and that the Pardons Board had acted unfai