JUDGMENT

Thomson LP:

This is another appeal arising out of the Indonesian invasion near Labis on the night of 1 or 2 September 1964, with which we were concerned in the case of Tan Hua Lam v. PP [1966] 1 MLJ 147.

On the morning of 4 September the present appellant was arrested and he was thought to have been one of the armed men who had left by parachute the aircraft which figured in that case. He was prosecuted on three charges under the Internal Security Act, 1960. These charges were as follows:

First Charge: That you between 2.00 a.m. on 2 September 1964 and 12.00 noon on 4 September 1964, in a Security Area as proclaimed by the Yang di-Pertuan Agong vide Federal LN 245 of 17 August 1964, namely 2'bd milestone Labis/Paya Merah Road, Labis in the District of Segamat, in the State of Johore, 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 thereby committed an offence punishable under s. 58(1) of the Internal Security Act, 1960.

Second Charge: That you at about 2.00 a.m. on 2 September 1964, in a Security Area as proclaimed by the Yang di-Pertuan Agong by Federal LN 245 dated 17 August 1964, namely 2'bd milestone, Labis/Paya Merah Road, Labis, in the District of Segamat, in the State of Johore, without lawful excuse had in your possession of firearm, to wit, a sten gun, without lawful authority and that you have thereby committed an offence punishable under s. 57(1)(a) of the Internal Security Act, 1960.

Third Charge: That you at about 2.00 a.m. on 2 September 1964, in a Security Area as proclaimed by the Yang di-Pertuan Agong by Federal LN 245 dated 17 August 1964, namely 2'bd milestone, Labis/Paya Merah Road, Labis, in the District of Segamat, in the State of Johore, without lawful excuse had in your possession ammunition, to wit, 300 rounds of 9 mm ammunition and two handgrenades, without lawful authority and that you have thereby committed an offence punishable under s. 57(1)(b) of the Internal Security Act, 1960."

With regard to the first of these charges, the dates are wrong and the charge was at no time amended. This in itself, however, is without importance. As was observed by Atkin J in the case of Severo Dossi [1918], 13 Cr App R 158, 159.

From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence.

In the event the appellant was convicted on all three charges and was sentenced to death.

Against these convictions he has now appealed.

The prosecution evidence was as follows and, as regards events prior to the arrest of the appellant, that evidence has never been contradicted by him except on one point when he was giving evidence in the course of the trial in connection with the admissibility of a statement alleged to have been made to the police, for when after the close of the prosecution case he was called on to make his defence he remained silent.

First there was the evidence of Lieutenant Sutikno, the Commanding Officer of the jumping party in the aircraft, and of two of the Indonesian soldiers who were members of the party all of whom were captured after landing and were subsequently treated as prisoners of war under the Geneva Conventions.

Lieutenant Sutikno said that on 1 September 1964, in Jakarta he was ordered to proceed to Malaysia in charge of a party of 47 men of whom 34 were Indonesian soldiers and 14 were Malaysians. The appellant was one of the latter. The party left Jakarta and proceeded to Medan. They left Medan about 9 p.m. Every member of the party then carried a firearm of some sort, ammunition, two handgrenades and other equipment including a compass and a whistle. He thought the appellant'