Public Prosecutor v Khong Teng Khen & Anor [1976] 2 MLJ 166

Federal Court in Kuala Lumpur

Important application:
The law may classify persons, offences. It is consistent with Article 8 Facts: The accused had been charged for possession of firearms and ammunition under Section 57(1) of the Internal Security Act. In trial, the court held that the offence is related to security which falls under Emergency (Security Cases) Regulations 1975 and thus, the accused was tried under the Regulations 1975 instead of Criminal Procedure Code. The counsel asserted that the Regulations 1975 were unconstitutional and void. Since the validity of law arises, the trial court then referred the case to Federal Court. Issue: Whether the Emergency (Security Cases) Regulations 1975 are inconsistent with the Federal Constitution Judgment: By majority, the judges held that the Regulations are valid.

My reasons in using this case:

1. The law had been raised to be inconsistent with the Federal Constitution, which the fact is somehow similar as S.498 had been raised to be inconsistent with FC. 2. The judge had laid down that certain situations did not breach Article 8. 3. That certain situation include our current case, whereby S.498 only impose liability on male. 4. It falls within the situation stated in the judgment so Article 8 is not breached.

Principles:
[1976] 2 MLJ 166 at 170, --*(page 8 in Microsoft Words Document) Suffian LP, In short, the judge opined that the law may classify persons, offences into different categories and none of these classifications are inconsistent with Article 8.

Quote from the judge:[1976] 2 MLJ 166 at 170, --*(page 8 in Microsoft Words Document)
Suffian LP In my opinion, the law may classify persons into children, juveniles and adults, and provide different criteria for determining their criminal liability or the mode of trying them or punishing them if found guilty; the law may classify persons into women and men, or into wives and husbands, and provide different rights and liabilities attaching to the status of each class; the law may classify offences into different categories and provide that some offences be triable in a Magistrate's court, others in a Sessions Court, and yet others in the High Court; the law may provide that certain offences be triable even in a military court; fiscal law may divide a town into different areas andprovide that ratepayers in one area pay a higher or lower rate than those of another area, and in the case of income tax provide that millionaires pay more tax than others; and yet in my judgment in none of these cases can the law be said to violate Article 8. All that Article 8 guarantees is that a person in one class should be treated the same as another person in the same class, so that a juvenile must be tried like another juvenile, a ratepayer in one area should pay the same rate as paid by another ratepayer in the same area, and a millionaire the same income tax as another millionaire, and so on.

Application
S. 498 of the Penal Code imposes criminal liability on male part only. As quoted above, S.498 classify person into woman and man as well as attached liability to man only. These classifications are not inconsistent with the Article 8 as Article 8 only guarantees the person in one class should be treated the same as each other in the same class. Thus, S.498 of the Penal Code is not an unequal law and it does not breach Article 8(1) and (2) of the Federal Constitution.

Relevant Sections:
1. Article 8 of Federal Constitution, 2. S.498 of the Penal Code,

3. Section 57(1) of the Internal Security Act (Similarity: This section is the same with S.498 PC as it is raised by the counsel to be inconsistent with the rights given in Federal Constitution)

Important Notes:
Suffian LP in this case, *In the case he is Lord President*
*Now he is Former Lord President Full name: Tun Mohamed Suffian Hashim Age: 82, passed away on 26 September 2000* He is appointed as Lord President in year 1974 LP=Lord President