Public Prosecutor v. Oie Hee Koi and connected appeals

Court	Judicial Committee of the Privy Council, Great Britain (UK)
Decision title	Judgment
Decision date	4 December 1967
Parties	Public Prosecutor Oie Hee Koi Ooi Wan Yui (aka Woi Kam Chin) Others
Keywords	Duty of allegiance; law of armed conflict; prisoners of war (nationality)
Links	Judgment

Summary

During the fighting between Indonesia and Malaysia, twelve Malaysian Chinese members of the Indonesian Air Force who were heavily armed, infiltrated into Malaysia (ten by parachute and two by boat). They were arrested, convicted pursuant to Malaysian law and sentenced to death. The Federal Court of Malaysia held that two members were protected pursuant to international law, in particular the Geneva Prisoners of War Convention of 1949. On appeal, the Judicial Committee of the Privy Council decided that they were not protected under the 1949 Geneva Convention because they were nationals of Malaysia (the state that detained them). Therefore, they could be prosecuted under national law for offences against that law.

Procedural history

Twelve members of an armed force of paratroopers under the command of the Indonesian Air Force were captured in Malaysia, convicted of offences under the 1960 Internal Security Act, and sentenced to death.

All the accused appealed against their convictions.

Their appeals were dismissed and the convictions were upheld by the Federal Court of Malaysia save in two cases, namely that of Oie Hee Koi (Appeal No. 16 of 1967) and that of Ooi Wan Yui (Appeal No. 17 of 1967). In these cases, the Court held that the accused were prisoners of war within the meaning of the 1949 Geneva Convention on the treatment of prisoners of war and were therefore entitled to protection.

The Prosecutor appealed to the Privy Council against that decision. The ten accused whose convictions were confirmed also appealed.

Legally relevant facts

During the Indonesian Confrontation campaign against Malaysia, twelve members of an armed force of Indonesian paratroops under the command of the Indonesian Air Force were dropped by parachute or by boat in Malaysia. They had in their possession a fire-arm, ammunition, two hand grenades, food rations and other military equipment. They were all captured after having infiltrated into Malaysian territory.

The accused were Malaysian Chinese, all born in or settled in Malaysia.

Core legal questions

Are the accused entitled to protection as prisoners of war by virtue of the 1949 Geneva Convention relative to the treatment of prisoners of war?

Specific legal rules and provisions

Geneva Convention (III), 1949:

Article 82 - Applicable legislation
Article 85 - Offences committed before capture
Article 87 - Penalties

Internal Security Act No. 82, 1960, Malaysia:

Section 47(1) - Proclamation of security areas
Section 57 - Offences relating to fire-arms, ammunition and explosives
Section 58 - Consorting with person carrying or having possession of arms or explosives

Criminal Procedure Code, Malaysia:

Section 152(1) - Form of charge
Section 153(1) - Particulars as to time, place and person
Section 156 - Effect of errors

Geneva Conventions Act 1962, Malaysia:

Section 2 - Interpretation
Section 4 - Notice of trial of protected person to be served on protecting power

Court's holding and analysis

The Judicial Committee of the Privy Council began its analysis by noting that the Geneva Conventions Act of 1962 did ‘not indicate directly whether or not a protected prisoner of war includes nationals of, or persons owing allegiance to, the captor state’ (p. 3).

After close examination of the Geneva Convention relative to the treatment of prisoners of war and commonly accepted international law, the Judicial Committee reached the conclusion that the Geneva Convention ‘does not extend the protection given to prisoners of war to nationals of the detaining power’ and to ‘persons who, though not nationals of, owe a duty of allegiance to the detaining power’ (p. 6). Moreover, the Judicial Committee pointed out that none of the accused (with the exception of one) claimed that they enjoy protection under the Geneva Convention. Therefore, the Judicial Committee held that when ‘accused did not raise a doubt no question of mistrial arises’ (p. 4). The Judicial Committee reached the conclusion that there ‘was nothing to show that the accused were protected prisoners of war or to raise a doubt whether they were or were not’ (p. 6).

In respect of the Internal Security Act, the Judicial Committee refused to apply it to members of the regular Indonesian armed forces fighting as such in Malaysia. It ruled that the Act was part of the domestic law, and was ‘not directed at the military forces of a hostile power attacking Malaysia’ (p. 7). Therefore, the accused as members of such forces were not subject to domestic criminal law. Accordingly, the Judicial Committee reached the conclusion that the convictions under section 58 of the Internal security Act could not stand.

Further analysis

‘Oie Hee Koi case, Judicial Committee of the Privy Council (UK), 4 December 1967’, International Committee of the Red Cross (ICRC).

J. G. Collier, ‘International Law. Malaysian Geneva Conventions Act. Prisoners of War Convention. Whether Nationals of Detaining Power Entitled to Protection. Whether Persons Wearing Civilian Clothing Entitled to Protection’, The Cambridge Law Journal, April 1969,Vol. 27(1), pp.4-6.

‘Notes and Comments’, American Journal of International Law, April 1969, Vol. 63(2), pp. 290-292.

A. Ibrahim, ‘Traditional Asian Approaches: A Malaysian View’, Australian Year Book of International Law, 1980, Vol. 46, pp. 223-224.

Ka Ho Tse, ‘The Relevancy of Nationality to the Right to Prisoner of War Status’, Chinese Journal of International Law, July 2009, Vol. 8(2), pp. 395-421.

Instruments cited

Geneva Convention (III), 1949.
Internal Security Act No. 82, 1960, Malaysia.
Criminal Procedure Code, Malaysia.
Geneva Conventions Act 1962, Malaysia.

Additional materials

‘Judicial Committee of the Privy Council (U.K) - Public Prosecutor v. Oie Hee Koi and connected appeals’, Geneva Academy of international humanitarian law and human rights.

Social media links

A. G. Hamid and K. M. Sein, ‘Judicial Application of International Law in Malaysia, an Analysis’, The Malaysian Bar, 31 March 2006.

A. Govindasamy, ‘International Law 2005 Q3’, Jurisprudence UM, 3 February 2011.