Ellin Anak Masing v R [Sarawak, Supreme Court.]
|Obsolete Court (Malaysia)
|22 March 1948
|22 March 1948
|Case No. 193
Belligerent Occupation — Judicial Functions of Occupant — Determination of Criminal Appeals — Judicial Function not Exercised by Courts — Irregularity — Validity after Resumption of Control by Legitimate Sovereign — Law of Sarawak.
Belligerent Occupation — Judgments of Appellate Court Established by Occupant — Hague Regulations, Articles 23 and 43 — Irregularity of Judgment According to Local Law — Validity after Resumption of Control by Local Sovereign — Conviction by Local Court — Appeal against Conviction to Court of Occupant — Law of Sarawak.
The Facts.—The appellant was convicted on December 4, 1941, in the Resident's Court, Third Division, at Sarikei, of the offence of murder in contravention of section 302 of the Penal Code, and was sentenced to death, subject to the confirmation of the Supreme Court. An appeal was lodged on December 14, 1941, but before that appeal could be heard the Japanese forces had occupied Kuching, the capital of Sarawak.
Shortly after the Japanese forces occupied Kuching, the appellant was taken before a Japanese police officer, named Takai, in the Central Police Station and sentenced to ten years' imprisonment in respect of the offence of which he had been convicted by the Resident's Court. It appears that no civil Courts were functioning at that time, and that it was not until some three months later—April 1942—that they began to function.
On the resumption of control by the sovereign of Sarawak the appellate proceedings, interrupted in January 1942, were resumed. It was contended by the accused, now an appellant in name only, that the Court had no jurisdiction because his appeal had already been dealt with by a Court whose judgments made in accordance with international law the local courts were obliged to respect.
Held: that the conviction should be confirmed. When the appeal was dealt with in January 1942 there were no competent courts functioning in Sarawak which could entertain the appeal and therefore the local Court was under no obligation to respect the decision made by the Japanese officer to substitute for the death sentence a term of imprisonment. The Court said:
“It is a fundamental principle of international law that military occupation involves no transfer of sovereignty; but a military occupant acquires certain rights and becomes subject to certain duties. The British interpretation of Article 23 (h) of the Hague...
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