Lee Mau Seng v Minister for Home Affairs, Singapore and Another

• Jurisdiction: Singapore
• Judge: Wee Chong Jin CJ
• Judgment Date: 13 July 1971
• Neutral Citation: [1971] SGHC 10
• Docket Number: Originating Motion No 13 of 1971
• Date: 13 July 1971
• Year: 1971
• Published date: 19 September 2003
• Plaintiff Counsel: Dato' David Marshall and Amarjit Singh (David Marshall)
• Citation: [1971] SGHC 10
• Defendant Counsel: Tan Boon Teik, S Rajendran and Mabel Tai (Attorney General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Whether remedy of habeas corpus available,Whether order of detention ultra vires Art 151 of Constitution,Discretionary powers,Order of detention stating four grounds in alternative for detaining applicant for two years,Detention under Internal Security Act and denial of constitutional right to legal counsel,Whether inconsistent for person detained without trial to retain constitutional right to consult legal practitioner of choice,Whether judicial enquiry into sufficiency of grounds to justify detention allowed,Administrative Law,Judicial review of procedure,Article 151 Federal Constitution (FM 26 of 1963),Habeas corpus,Detention under Internal Security Act,Rights of person detained,Whether mala fides a justiciable issue in context of Internal Security Act,Whether s 8(1) of Internal Security Act required President to act in accordance with advice of Cabinet or to act in his discretion,President,Internal Security Act (Cap 115, 1970 Ed),Article 5 Federal Constitution (FM 26 of 1963), Section 74 Internal Security Act (Cap 115, 1970 Ed),Administrative detention,Constitutional Law,Whether order of detention invalid for ambiguity or duplicity,Article 5(1) of Constitution of the Republic of Singapore (RS(A) 14 of 1966), Section 8(1) Internal Security Act (Cap 115, 1970 Ed)

This is an application by Lee Mau Seng (hereinafter referred to as the applicant) for a writ of habeas corpus ad subjiciendum. The applicant was arrested without warrant by a police officer on 2 May 1971 at his home and detained at the Central Police Station. He remained in police custody until 22 May 1971 when an order dated 22 May 1971 directing that he be forthwith detained for a period of two years at the Holding Centre - Central Police Station - was made by the Minister for Home Affairs.

From the date of his arrest on 2 May 1971 until after the order of detention was made on 22 May 1971 the applicant was denied by the authorities access to his solicitors in spite of requests by his solicitors for access to him to enable them to take his instructions and to advise him in regard to his arrest and detention by the police.

The order of detention, which was made under s 8(1) of the Internal Security Act (Cap 115, 1970 Ed), is as follows:

The Internal Security Act, Cap 115, 1970 Ed

Order of Detention under s 8(1)(a)

To: The Director of Prisons,

Singapore

and to: The Commissioner of Police, Singapore, all other police officers and to all others whom it may concern.

Whereas the President of the Republic of Singapore is satisfied with respect to the undermentioned person that, with a view to preventing that person from acting in any manner prejudicial to the security of Singapore or any part thereof or to the maintenance of public order or essential services therein, it is necessary to make the following Order:

Now, therefore, in exercise of the powers conferred by s 8(1)(a) of the Internal Security Act (Cap 115), the Minister for Home Affairs, by this Order, hereby orders that

LEE MAU SENG

NRIC No 1134018/J

of 319-M, Bukit Timah Road

be forthwith detained for a period of two years:

And, in exercise of the powers conferred by s 8(2) of the Internal Security Act, Cap 115, the Minister for Home Affairs hereby directs that the said LEE MAU SENG be detained at Holding Centre - Central Police Station or at such other place as he may from time to time direct.

Made at Singapore this 22 May 1971.

Sd: SR Nathan A-G Permanent Secretary,

Ministry of Home Affairs,

Singapore.

A copy of the order of detention was served on the applicant on 22 May 1971 and at the same time he was furnished with a statement in writing as required by s 11 of the Internal Security Act (hereinafter referred to as the Act). This statement is as follows:

Statement required under s 11(2)(b) of the Internal Security Act 1970

Detainee`s Name: LEE MAU SENG

Grounds on which an order of detention is made:

Since 1970, you, as the General Manager/Managing Director of the Nanyang Siang Pau, Singapore, have consciously, knowingly and willingly veered the editorial policy of the said paper to (a) one of glamourising Communism and (b) stirring up communal and chauvinistic sentiments over Chinese language, education and culture.

ALLEGATIONS OF FACT:

1 Under your management control, the Nanyang Siang Pau has deliberately and systematically instilled admiration for the Communist system. This has been achieved by presenting the Communist system as one free from blemishes. And whilst endorsing its policies, you have highlighted in the domestic news pages the more unsavoury aspects of Singapore life.

(2) You have utilized the Nanyang Siang Pau to arouse communal sentiments over the Chinese language, education and culture, and created the impression that Chinese language and education are fighting desperately for survival in Singapore against a Government hostile to the Chinese.

(3) In your campaign to work up disruptive and dangerous emotions, you have continuously echoed in the Nanyang Siang Pau the pro-Communist cry that Singapore`s independence was `phoney` by maliciously referring to Singapore as having undergone `150 years of colonial fetters` and that Singapore has not `in fact enjoyed real political freedom`.

(4) You have used deliberate falsehood to whip up communal fears and openly incite communal hatred against the Government.

Dated at Singapore this 22 May 1971.

By Direction,

of the Minister for Home Affairs.

Sd SR Nathan

A-G Permanent Secretary,

Ministry of Home Affairs.

The material provisions of ss 8 and 11 of the Act are as follows:

Section 8(1)

If the President is satisfied with respect to any person that, with a view to preventing that person from acting in any manner prejudicial to the security of Singapore or any part thereof or to the maintenance of public order or essential services therein, it is necessary to do so, the Minister shall make an order -

(a) directing that such person be detained for any period not exceeding two years;

Section 11(1)

A copy of every order made by the Minister under para (a) of sub-s (1) of s 8 shall as soon as may be after the making thereof be served on the person to whom it relates, and every such person shall be entitled to make representations against the order to an advisory board.

(2) For the purpose of enabling a person to make representations under sub-s (1) he shall, within fourteen days of the service on him of the order -

(a) be informed of his right to make representations to an advisory board under sub-s (1); and

(b) be furnished by the Minister with a statement in writing -

(i) of the grounds on which the order is made;

(ii) of the allegations of fact on which the order is based; and

(iii) of such other particulars, if any, as he may in the opinion of the Minister reasonably require in order to make his representations to the advisory board.

Sections 9 and 12 of the Act are also relevant sections and they are in the following terms:

Section 9

Whenever any person is detained under any order made under para (a) of sub-s (1) of s 8 he shall, in accordance with art 151 of the Constitution of Malaysia, as soon as may be -

(a) be informed of the ground of his detention;

(b) subject to cl (3) of the said Article (which provides that no authority may be required to disclose fact whose disclosure would in its opinion be against the national interest) be informed of the allegations of fact on which the order is based; and

(c) be given the opportunity of making representations against the order as soon as may be.

Section 12(1)

Whenever any person has made any representations under sub-s (1) of s 11 to an advisory board, the advisory board shall, within three months of the date on which such person was detained, consider such representations and make recommendations thereon to the President.

Section 12(2)

Upon considering the recommendations of the advisory board under this section the President may give the Minister such directions, if any, as he thinks fit regarding the order made by the Minister; and every decision of the President thereon shall, subject to the provisions of s 13, be final, and shall not be called into question in any court.

Two main but unrelated issues are raised by the applicant in these proceedings. The first is that from the time of his arrest and for 20 days thereafter his constitutional right to be allowed to consult a legal practitioner of his choice has been denied to him and the denial of this constitutional right amounted to an abuse of power such as would have justified an order for his release. The second is that the order of detention made on 22 May 1971 is void or invalid because (a) on the face of the order itself it is ambiguous and ultra viresand (b) the grounds on which the order was made and the allegations of fact on which the order was based are vague, inadequate and irrelevant and (c) the order of detention was made in bad faith and, therefore, his detention is illegal or unlawful.

These issues are important constitutional issues involving the liberty of the subject and require consideration of art 5, art 149(1) and art 151 of the Constitution of Malaysia as applicable to Singapore (hereinafter referred to as `the Constitution`) as well as those sections of the Act which have earlier been referred to.

Article 5 of the Constitution provides as follows:

(1) No person shall be deprived of his life or personal liberty save in accordance with law.

(2) Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.

(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

(4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate`s authority.

(5) Clauses (3) and (4) do not apply to an enemy alien.

Article 149(1) of the Constitution provides as follows:

If an Act of Parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside Singapore -

(a) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property; or

(b) to excite disaffection against the President or the Government; or

(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence; or

(d) to procure the alteration, otherwise than by lawful means, or anything by law established; or

(e) which is prejudicial to the security of Singapore or any part thereof,

any provision of

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