'Theresa Chong v. Kin Khoon & Co.

[1976]
256 (Gill CJ.)

upon what in his opinion, is for the good of the community. A It seems clear that the present contract does not fit
He must be content to apply, either directly or by way of into any of the traditional pigeon holes. It was on the
analogy the principles laid down in previous decisions. He basis of those arguments that the learned trial judge
must e~pound, not expand, this particular branch of law.
found that the contract between the plaintiffs and the
Secondly, even though the contract is one which prima facie
falls under one of the recognized heads of public policy, it defendant was not illegal. In my judgment the learned
will not be held illegal unless its harmful qualities are in- judge was quite right in taking that view.
disputable. The doctrine, as . Lord ~tlci'n remark~d in. a I would dismiss this appeal with costs.
leading case(•) 'should only be mvoked m clear cases m which
the harm to' the public is substantially incontestable, and B Ali and Ong Hock Sim F.JJ. concurred.
does not depend upon the idiosyncratic inferences of a few
judicial minds. . . . In popular language ... the contract should Appeal dismissed.
be given the benefit of the doubt."
Solicitors: Lim Ewe Hock; Maxwell, Keni'on,
Counsel for the appellant also referred us to Cowdy & Jones.
section 24 of the Contracts Act 1950 which provides
as follows:
"The consideration or object of an agreement is lawful, un- C
less- PUBLIC PROSECUTOR v. LOO CHOON FATI
(a) it is forbidden by a law;
{b) it is of such a nature that, if permitted, it would defeat (R.Cr.J. (Hashim Yeop A. Sani J.) January 29, 1976)
any law; {lpoh - Perak Criminal Revision No. 6 of 1976)
(c) it is fraudulent; Criminal Law and Procedure - Sentence - Offence of
(d) it involves or implies injury to the person or property possession of dangerous drugs - Factors to be taken into
of another; or consideration in assessing sentence - Public interest - Whe-
(e) the court regards it as immoral, or opposed to public D ther provi'sion for binding over under s. 294 Criminal Pro-
policy. cedure Code applicable - Criminal Procedure Code (F.M.S.
In each of the above cases, the consideration or object of an Cap. 6), ss. 173A and 294.
agreement is said to be unlawful. Every agreement of which Dangerous Drugs - Possession -- Sentence.
the object or consideration is unlawful i;; void."
In this case the respondent had pleaded guilty to a charge
It is to be observed that section 24 deals with of possession of dangerous drugs. In mitigation he stated
such consideration and objects of a contract as are that this was his first offence and that he was threatened
that if d~ not sell the drugs he would be assaulted. He
unlawful and therefore illegal. This section is in E was bound over under section 294 of the Criminal Procedure
pari moteria with section 23 of the Indian Contract Code. The r:ase came before the High Court in rev,ision.
Act. Pollock and Mulla on the Indian Contract Act Held: (1) the discretion to order a bond under section
(8th Edition) in its commentary on section 23 under 294 of the Criminal Procedure Code cannot be applied to an
the heading "Oppo~ed to Public Policy" says this: offence under section 12(2) of the Dangerous Drugs Or-
"The general head of public policy covers, in English law, dinance, 1952 because there is an alternative punishment of
a wide range of topics. Agreements may offend against either a fine or imprisonment provided in that section;
public policy by tending to the prejudice of the State in (2) in the circumstances of this case a sentence of six
time of war (trading with enemies, etc.), by tending to the F months' imprisonment would be appropriate.
perversion or abuse of municipal justice (stifling prosecutions, {Editorial Note: See decision of Abdoolcader J. at p. 267
champerty and maintenance) or, in private life, by attempting post.]
to impose inconveni.ent and unreasonable restrictio·ns on the
free choice of individuals in marriage, or their liberty to Cases referred to:-
exercise any lawful trade or calling. . . . It is now understood (1) Heng K,im Khoon v. Public Prosecutor [l 972]
that the doctrine of public policy will not be extended beyond M.L.J. 30.
the classes of cases already covered by it. No court ca·n
invent a new head of public policy." (2) Rex v. Kenneth John Ball 35 Cr.App.R. 164.
(3) Rex v. Grondkowski [1946] 1 All E.R. 560, 561.
The arguments put forward by counsel for the G (4) Public Prosecutor v. Idris [1955] M.LJ. 234, 235.
respondent in contesting the appeal may be summarised (5) Re Eng Chong Lam [1964] M.LJ. 10.
as follows. The defendant did not plead that the (6) Public Prosecutor v. Tan Eng Hock Il970] 2 M.L.J.
contract was void as being opposed to public policy. 15.
For the court to take cognizance of illegality the (7) Re Badri bin Abas {1971] 1 M.L.J. 202, 203.
transaction must be illegal on the face of it. Not being CRIMINAL REVISION.
registered as a remisier is not contrary to public policy
because the bye-laws of the Stock Exchange are the H Wan Abdul Majid bin Won Hamid (Deputy
bye-laws of a private body which have no force of Public Prosecutor) for the applicant.
law. They are binding on the plaintiffs but not on Paramjit Singh for the respondent.
the defendant. If the plaintiffs were dealing with an Hashim Yeop A. Sani J. (delivering oral judgment):
unregistered remisier they were committing a breach of The facts of the case are that on May 20, 1975 at
bye-law 97 of the Stock Exchange Rules which provides about 11.20 a.m. a Police constable, P.C. 58206, arrested
for a penalty. But their dealing with such a remisier the accused in Kampong Jawa, Ipoh, and from his
did not make the contract illegal as being opposed to I person were recovered 13 plastic tubes containing
public policy. 3 grammes of what was suspected to be heroin. 'The
I do not think there is any merit in the argument accused was released on bail the following day. The
that illegality was not pleaded because a court is bound chemist's report tendered in the Sessions Court, Ipoh.
to take cognizance of it if it is of the opinion that the on November 25, 1975 showed only 1.2 grammes of
contract is void on the ground of being contrary to heroin contained in 13 plastic tubes. The Special
public policy. But I entirely agree with the rest of the President amended the original charge as to the amount
arguments put forward by counsel for the respondent. of heroin although this is not reflected in the certified
 Public Prusecutor v. Loo Oloon Fatt
258 (Hashim Yeop A. SaDi J.) (1976]

a convicted person will also normally bring up pro- A
blems of family hardship and the other usual problems
of living. In such a situation the courts might per-
haps find it difficult to decide as to what sentence
should be imposed so that the convicted person may
not be further burdened with additional hardship.
This in my view i~ a wrong approach. The co~rect
approach is to strike a balance, as far as po.ss1ble, B here what was said by the late Sharma J. in Re
between the interests of the public and the interests
of the accused. Lord Goddard L.C.J. in Rex v.
Grondkowski<- 3> offered some good advice when he
said:-
"The judge must consider the interests of justice as well as
the interests of the prisoners. It is too often nowadays
thought or seems to be thought, that the interests of justice
means ~nly the interests of the prisoners."
Coming back to the instant case, the court below
thought it fit that the accused be bound over under
section 294 of the Criminal Procedure Code. It would
seem to me quite clear that on the terms of section 294
of the Criminal Procedure Code the discretion to order
a bond under that section cannot be applied to an
offence under section 12(2) of the Dangerous Drugs D and his mother have been living in a slum area in-
Ordinance, 1952 because there is an alternative punish-
ment of either a fine or imprisonment provided in that
section. The two primary prerequisites which must
be satisfied first before the court can proceed to con-
sider whether to exercise its discretion to order a
bond under section 294 of the Criminal Procedure
Code are that (1) the accused is not a youthful offender E accused and his plea in mitigation that he was in fact
and (2) he has been convicted of an offence punish-
able with imprisonment. The distinction between sec-
tion 294 and section 173A of the Criminal Procedure
Code was made a long time ago in Public Prosecutor
v. ldrisi- 4> by Thomson J. (as he then was) and which
was reiterated in the judgment of Gill J. (as. he then
was) in Re Eng Chong Lam.< 5> The question now
is should the order of binding over of the accused F future good conduct. H an order to bind over the
here be substituted by a similar order under secti~n
173A of the Criminal Procedure Code because he 1s
a first offender or a youthful offender or that he
said he was «forced" to commit the offence? Having
regard to the nature of the offence, the circumstances
of the case and the mitigation of the accused and
the probation report I think not.
The types of cases and the set of circumstances
where section 173A of the Criminal Procedure Code
can appropriately be applied are by no means exhaus-
tive. In addition to what has been said in Pubfic
Prosecutor v. Tan Eng Hock< 6> and in Re Bodri bin
A lxd,n as to when it would be appropriate to exercise H frequently
the discretion under that section I would say that in
respect of offences for possession of drugs in rela-
tively small quantities the court ought also to consider-
(1) whether the court is of the opinion that the accused
is an addict and in need of rehabilitation since
the object of punishment is twofold, i.e. to pre-
vent others from following the example and at I as also a long prison sentence would be inappropriate.
the same time to reform the accused;
(2) whether any person (in the case of an accused
who is a young offender whether any of his
parents or guardian) has come forward to the
court willing and able to undertake to rehabilitate
him; and
(3) whether the commission of such offence is not
rampant and that a deterrent punishment is not
really called for.
Needless to say, the court should not simply jump
at exercising the powers under section 173A of the
Criminal Procedure Code simply because the accused
is a youthful offender and he says he regrets what he
has done. It would be useful, I th.ink, if I repeat
Badri bin Abas (with which I wholeheartedly agree)
as a word of caution on the exercise of discretion
under section 173A of the Criminal Procedure Code
in that an exercise of discretion under this section
requires a considerable sense of responsibility and
courts should not allow themselves to be misled into
C applying this section by any misplaced sense of leniency
or sympathy. That section is not meant to be applied
indiscriminately to all first offenders who .say they
regret what they have done and ask for leniency.
In the present case according to the probation
report the accused is an only son who will be 21
years old in less than 2 months time. His mother
had been separated from his father. The accused
fested with ..gangsters" and "drug addicts." At the
time the probation report was written the accused
was a painter earning $6 a day and the mother was
a maidservant earning about $60 per month.
Having regard to the background report on the
peddling drugs although he said he was forced to do
so, I consider that the order to bind him over with
his mother as the surety is clearly and manifestly
inadequate not only considering the nature of the
offence and the circumstances under which it was
committed but also considering that such bond is in-
effective under the circumstances as an assurance of
accused here is not appropriate either under section
173A or section 294 of the Criminal Procedure Code
what is then the proper sentence to be passed on him?
Lawton L.J. in Re James Henry Sorgeantt.•> at page
77 referred to the classical principles of sentencing.
namely, retribution, deterrence, prevention and reha-
G bilitation, and said that the court ought always to
have these four classical principles in mind and apply
them to the facts of the case to .see which of them bas
the greatest importance in the case. On retribution
Lawton L.J. said:
"The Old Testament concept of an eye for an eye and tooth
for tooth no longer plays any part in our criminal law.
There is, however, another aspect of retribution which is
overlooked; it is that society, through the courts,
must show its abhorrence of particular types of crime and
the only way in which the courts can show this is by the
sentences they pass. The courts do not have to reflect public
opinion. On the other hand courts must not disregard it.
Perhaps the main duty of the court is to lead public opinion."
Considering the background of the accused in
the instant case fining him would also be ineffective
Therefore it is my considered view that in this case
a sentence of imprisonment of six months will be
appropriate in the hope that "his memory of the
clanging of prison gates" will keep him from this
crime in the future. The sentence of the Special
President is accordingly substituted.
Order accordingly.