Bin Haji Mohamed Ali and Another v. Public Prosecutor

Court	Judicial Committee of the Privy Council, Great Britain (UK)
Case number	Appeal No. 20 of 1967
Decision title	Appeal No. 20 of 1967 by special leave from a judgment (October 5, 1966) of the Federal Court of Malaysia
Decision date	29 July 1968
Parties	Osman Bin Haji Mohamed Ali Harun Bin Said, alias Tahir Public Prosecutor
Categories	War crimes
Keywords	Prisoners of war; combatant/non-combatant; law of armed conflict
Links	Appeal judgment of the Judicial Committee of the Privy Council, Great Britain (UK)
Other countries involved	Malaysia

Summary

On 20 October 1965, Osman Bin Haji Mohamed Ali and Harun Bin Said, members of the Indonesian army, were found guilty for the murder of Susie Choo Kay Hoi, Juliet Goh Hwee Kuang and Yasin Bin Kesit. The deaths resulted from an explosion of the MacDonald House in Orchard Street, one of the main streets of Singapore. The accused were sentenced to death.

They appealed the decision by special leave to the Judicial Committee of the Privy Council. The Judicial Committee dismissed the appeal. It held that the appellants were not entitled to the protection generally afforded to army members when captured by the opposing army (protection for prisoners of war). The protection was refused because the appellants had committed acts of sabotage and were dressed in civilian clothes (not in uniform) at the time they planted the explosives and detonated them, as well as when they were arrested.

Procedural history

On 20 October 1965, the High Court of Singapore convicted Osman Bin Haji Mohamed Ali and Harun Bin Said alias Tahir for the murder of Susie Choo Kay Hoi, Juliet Goh Hwee Kuang and Yasin Bin Kesit. The High Court sentenced each of the accused to death.

The accused persons appealed. On 5 October 1966, the Federal Court of Malaysia dismissed the appeal. The accused appealed by special leave.

Legally relevant facts

On 10 March 1965, around 3 p.m., an explosion took place in Singapore in a building called MacDonald House. The explosion killed two secretaries and injured a driver who died two days later.

On 13 March 1965, the accused were rescued from the sea some distance from Singapore by a bumboat man. They were brought to the marine police station where they were interviewed.

On 18 March 1965, the accused were picked out at an identification parade by a bus conductor who had seen them just before the explosion.

Core legal questions

Are members of armed forces who engage in sabotage while wearing civilian clothes and who are captured wearing those clothes, entitled to be treated as persons protected by the Geneva Convention (III) Relative to the Treatment of Victims of War?

Specific legal rules and provisions

Geneva Convention (III) Relative to the Treatment of Prisoners of War, 1950:

Article 2 - Application
Article 4 - Prisoners of war

Geneva Conventions Act, 1962:

Section 4(1) (Notice)

The Hague Convention (IV) and its annex: Regulations concerning the Laws and Customs of War on Land, 1907:

Article 1 - The Status of Belligerents
Article 29 - Spies
Article 31 - Spies

Court's holding and analysis

The Judicial Committee of the Privy Council dismissed the appeal.

Firstly, the Judicial Committee stated that the Emergency Essential Powers Act was not ‘unconstitutional’ because it did not lead to denial of equal protection of the law (p. 3).

Secondly, in respect of the question of whether the appellants should have been treated as prisoners of war, the Judicial Committee held ‘that it does not suffice in every case to establish membership of an armed force to become entitled on capture to treatment as a prisoner of war’ (p. 6). In addition, the Judicial Committee held that even though neither the Hague Regulations nor Geneva Convention III requires a member of an armed force to wear a uniform in order to qualify for protection, it emphasised that international law recognises the necessity of distinguishing between belligerents and peaceful inhabitants (p. 6). The Judicial Committee, therefore, held that the appellants were not entitled to the status of prisoners of war because they purportedly committed sabotage and were dressed in civilian clothes at the moment they placed the explosives and lit them, and at the time of their arrest (p. 8).