JUDGMENT

Augustine Paul J:

This is a motion for a writ of habeas corpus filed by Mohd Nazir bin Badar Shair ("the applicant") against the three respondents. The motion was supported by an affidavit affirmed by the applicant's mother, one Che Ton binti Judin. The respondents filed a total of 11 affidavits in support of their case.

When the motion was called up for hearing before me on 13 March 2000 learned counsel for the applicant raised a preliminary objection to the effect that three of the affidavits filed by the respondents were defective as the jurats were not properly placed. The three affidavits are encls. 12, 13 and 17 of the court file. In support of his objection he relied on the case of Voon Mow Chen v. Menteri Dalam Negeri & Anor [1993] 4 CLJ 195. In his reply the learned senior federal counsel contended that the Rules of the High Court 1980 ("the RHC") do not say that the whole jurat must be on the same page. He then proceeded to raise a preliminary objection himself with respect to the affidavit filed in support of the motion. He referred to the case of Syed Ali bin Mohamed Kutti v. Menteri Dalam Negeri Malaysia & Anor [1998] 2 J Cr 449 and contended that the affidavit affirmed by the applicant's mother does not comply with the requirements of s. 367 of the Criminal Procedure Code.

I shall first deal with the objection raised by the applicant. In the case of encls. 12 and 17 the jurat begins on the page where the substantive part of the affidavit ends and concludes on a fresh page. In the case of encl. 13 the jurat is on a completely new page. This, as contended by learned counsel for the applicant, offends the proposition laid down in Voon Mow Chen where Vincent Ng JC (as he then was) said at p. 198:

It is this Court's view that the reason that the jurat of an affidavit should not begin and end on a fresh page but rather should immediately follow the end of a substantive or spill-over of the last substantive averment of the deposition, is in order to ensure that there is sufficient indication that the jurat relates directly to the deposition. This is also in order to obviate the possibility of abuse by any party who may pre-execute jurats of affidavits in the absence of any averments for attachment to subsequently prepared averments.

On account of this, it was held in the case of Amanah International Finance Bhd v. Thien Juk Cheung & Ors Suit No KG 392 of 1986 (High Court Kuching, Haidar J) 4 September 1989 that the affidavit of X was defective as the jurat of the affidavit began and ended on a fresh page and did not follow immediately after the end of the deposition. I wholly agree and subscribe to the ratio in this case and I hold to be defective, such similar affidavits filed by the respondent here.

It is my view that it is the ratio of this ruling, that is to say, that the jurat of an affidavit should not begin and end on a fresh page, which would compel a person to ensure that the jurat begins immediately after the end of the substantive part of the affidavit notwithstanding the part of the page where it ends. In such circumstances there is every possibility that the jurat will spill over onto the next page as has happened in this case in encls. 12 and 17. If this is also to be penalised a person who drafts an affidavit will have to take meticulous care to ensure that the substantive part of the affidavit ends at the top of the last page so as to leave sufficient space on the same page to accommodate the whole jurat. Thus a drafter may find himself in the unenviable position of adding additional, though irrelevant, material to his affidavit or removing matters that are relevant in order to make room for the jurat. Alternatively, he may land up using up precious time in adjusting the spacing of the various paragraphs of his affidavit so as not fall foul of the law. It may be comparatively easier to achieve this result with a word processor. But it must be remembered there are still many, particularly the