Bin Haji Mohamed Ali and Another v.

Public Prosecutor

Judicial Committee of the Privy Council (U.K.), 29 July 1968

Appeal No. 20 of 1967 by special leave from a judgment (October 5, 1966) of the Federal
Court of Malaysia (Wee Chong Jin C.J., Tan Ah Tah and Ambrose JJ.) dismissing the appeals
of the first appellant, Osman Bin Haji Mohamed Ali, and the second appellant, Harun Bin Said
alias Tahir, against their conviction (October 20, 1965) in the High Court of Singapore (Chua
J.) of the murder of Susie Choo Kay Hoi, Juliet Goh Hwee Kuang and Yasin Bin Kesit, and
affirming the sentences of death passed on the appellant by Cha J.

The facts are stated in the judgment of their Lordships.

The judgment of their Lordships was delivered by Viscount Dilhorne.

On October 20, 1965, the appellants were convicted in the High Court of Singapore under the Penal
Code of the murder of three civilians and sentenced to death. Their appeals to the Federal Court of
Malaysia were dismissed on October 5, 1966, and they now appeal by special leave.

On March 10, 1965, at 3.7 p.m. an explosion took place in a building called MacDonald House in
Orchard Street, one of the main streets of Singapore. The Hongkong and Shanghai Banking
corporation occupied part of the building. Other parts were occupied by other persons including the
Australian High Commission.

Just before the explosion took place, a witness at the trial said he saw a Malayan Airways canvas
travelling bag on the floor of the mezzanine floor. Smoke was coming from the bag and he heard a
hissing noise. The explosion killed two girl secretaries employed by the bank and injured a driver who
died two days later. The appellants were charged with the murder of these three persons.

Later examination of the building showed that the explosive used was 20 to 25 lbs pounds of
nitroglycerine.

Three days later, at about 8 a.m., on March 13, the appellants were rescued from the sea some
distance from Singapore by a bumboat man. He saw them in the sea clinging to a plank.The second
appellant told him that he and the first appellant were fishermen and had been fishing when their boat
had been capsized by another boat. He swore that neither of the appellants was wearing uniform and
that one of them was bare bodied and wearing a pair of darkish trousers and the other a sports shirt
and pair of long trousers.

A marine police boat came up and the appellants were taken on board it. The police officer on board
gave evidence that the appellants were dressed as the bumboat man had said and that they had no
identification papers. He said that they told him that they were fishermen. The appellants were taken to
the marine police station. The police sergeant at the station said that they told him they came from
Indonesia and had been fishing. He too said that they were dressed as the bumboat man had said.

Later that morning the appellants were seen by an inspector of police. He gave evidence that the first
appellant told him that he was a fisherman and that the second appellant said that he was a farmer.
He also said that they were dressed as the bumboat man had said.

Evidence was also given that when they were admitted to prison they were dressed in this fashion and
not in uniform. In prison they were allowed to mix with Indonesian prisoners some of whom were
wearing jungle green uniform. After that the appellants were seen in uniform.

At 1.25 p.m. on March 13, Inspector Hill interviewed the first appellant and after cautioning him put a
number of questions to him. The first appellant told him that he had come from Java and had come to
Singapore at about 11 a.m. on March 10; that after he and the second appellant had had their lunch,
they had gone into a building and up some steps and that they had each placed a bundle containing
explosives on the steps before reaching the first floor; that the second appellant had lit the fuse and
that they had then left the building. He said that this had happened at about 3 p.m.

At 2.35 p.m. the same day the first appellant was charged with the murder of the three persons killed
by the explosion. He was again cautioned and he then made a statement saying that he had come to
Singapore at about 11 a.m. On March 10, that he had gone with the second appellant to look for a
target, that he and the second appellant had placed "two bundles of explosives on stairs before
reaching the first floor," that the second appellant had lit the fuse and that after that they had left and
taken a bus.

In neither of these statements did the first appellant claim to be a member of the Indonesian armed
forces.

At about 4.20 p.m. Assistant Superintendent Khosa interviewed the second appellant at the marine
police station. In answer to questions put to him after caution, he said that he had come to Singapore
on March 10 with the first appellant, that after lunch they had gone to a building and placed two
bundles on a staircase, that he had lit the fuse at about 3 p.m., and that after leaving the building he
had got on a bus. Later that day he was charged with the murders, and after caution, he made a
statement repeating what he had already said and also saying that he had come to Singapore on the
instructions of "Kommando Operasi Tertinggi'" and that his instructions were as a sworn soldier to
carry a parcel and light it "at the electric power station ... or any other building."

At 6.15 p.m., the first appellant had an interview with Mr. Yeo, then Fourth Magistrate. He told him that
he was a member of the Indonesian Army and that he had come to give the magistrate information
with regard to the duties he had been instructed to perform by his superiors. After the magistrate had
satisfied himself that this appellant wished to make a voluntary statement, what the appellant said was
recorded. In substance he repeated what he had already said but he added that he had been
instructed by Lt. Paulus Subekti to cause trouble in Singapore.

On March 18, the appellants were picked out at an identification parade by a bus conductor. His bus
had gone down Orchard Road just before the explosion and he said that at the traffic lights beyond the
bus stop by the Hongkong and Shanghai Bank the appellants boarded his bus. He said that they were
then dressed in civilian clothes.

The appellants were tried in the High Court by Chua J. sitting alone in accordance with the provisions
of the Emergency (Criminal Trials) Regulations, 1964.

The first point taken by Mr. Le Quesne was that these Regulations were inconsistent with the Federal
Constitution of Malaysia and so had no validity. In March, 1965, Singapore was part of the Federation.
The regulations, inter alia, dispensed with the requirement of a preliminary inquiry before trial,
restricted the granting of bail and made provision for trial by a judge sitting alone.

Article 8 (1) of the Constitution provides that all persons are equal before the law and entitled to the
equal protection of the law. Mr. Le Quesne contended that the emergency regulations amounted to a
denial of the equal protection of the law since persons tried under the regulations were deprived of the
benefits of the procedure under the Criminal Procedure Code and so were treated not equally but
differently from persons tried under that Code. He therefore contended that they were inconsistent with
the Constitution and so invalid.

By article 150 of the Constitution the Yang di-Pertuan Agong was given power in certain
circumstances to issue a proclamation of emergency, and, while such a proclamation was in force,
Parliament was given power by Article 150 (5) notwithstanding anything in the Constitution to make
laws with respect to any matter if it appeared to Parliament that the law was required by reason of the
emergency. Article 150 (6) provided that subject to Article 150 (6A) (which is not relevant to this case),
no provision of any Act of Parliament so passed should be invalid on the ground of inconsistency with
any provision of the Constitution.
Pursuant to the powers given by this article, the Emergency (Essential Powers) Act, 1964, was passed.
This gave the Yang di-Pertuan Agong wide powers of making regulations, called in the Act the
Essential Regulations, which he considered desirable or expedient for securing public safety, the
defence of the Federation, the maintenance of public order and of supplies and services essential to
the life of the community.

The Act expressly stated that the Essential Regulations might provide for amending, suspending or
modifying any written law, and by section 2 (4) declared that the Essential Regulations should have
effect notwithstanding anything inconsistent therewith contained in any written law other than the Act
itself or in any instrument having effect by virtue of any written law other than the Act itself.

Mr. Le Quesne did not seek to challenge the validity of the Act. He contended that the words "written
law" in the Act were not, despite the Interpretation and General Clauses Ordinance, 1948, to be
interpreted as including the Constitution. He pointed out that Article 150 (5) of the Constitution itself
distinguished between the Constitution and written law.

In the Ordinance it is stated that "written law" means all Acts of Parliament, Ordinances and
Enactments in force in the Federation or any part thereof and all subsidiary legislation made
thereunder, and includes the Federal Constitution.

The Emergency (Criminal Trials) Regulations 1964 were made under the Emergency (Essential
Powers) Act, 1964, and if it were the case that the Regulations were inconsistent with the Constitution,
nevertheless if "written law" in section 2 (4) of the Act includes the Constitution, the validity of the
regulations cannot be impeached.

Their Lordships can find nothing in the context which requires them to give a different meaning to the
words "written law" from that prescribed by the Ordinance and they do not consider that the words of
article 150 (5) , "any provision of this Constitution or of any written law" are any indication that the
words "written law" in the Act were intended to have any different meaning to that stated in the
Ordinance.

For these reasons their Lordships are unable to accept this contention.

At the opening of the trial counsel for the appellants asserted that they were both members of the
Indonesian armed forces and that they were entitled to the protection of the Geneva Convention
Relative to the Treatment of Prisoners of War, 1949. In 1962 the Geneva Conventions Act was passed
in the Federation of Malaya to give effect to this, among other, Conventions.

Section 4 (1) of this Act provides, inter alia, that the court before which a protected prisoner of war is
brought up for trial for any offence shall not proceed with the trial until it is proved to the satisfaction of
the court that a notice giving the full name and description of the accused and other details about him
including the offence with which he is charged and the court before which the trial is to take place and
the time and place of trial has been served not less than three weeks previously on the protecting
power and on the accused and the prisoner's representative.

In support of this contention the first appellant gave evidence that he was a member of the Indonesian
armed forces, a corporal in the "Korps Kommando Operasi" regular force. He swore that when they
had been rescued from the sea, he and the second appellant had been wearing uniform. He said that
his and the second appellant's identity cards had been in plastic bags which were lost when their
sampan sank. The second appellant also gave evidence that he was a member of the Korps
Kommando Operasi and that he was wearing military uniform when he was rescued. He also said that
he had not been allowed by his commander to wear his identity disc. After hearing evidence from the
bumboat man and the other witnesses who had seen the appellants shortly after their rescue as to the
appellants' clothing, the learned judge ruled that the appellants were not entitled to the status of
prisoners of war. He said that the evidence was overwhelming that when they were rescued they were
not wearing uniform. He also found that they first claimed to be fishermen while later on one claimed to
be a farmer. He held that they had failed to discharge the onus of proving that they were members of
the regular armed forces of Indonesia and that he had no doubt that they were not members of the
regular armed forces of Indonesia.

He added that if they were members of the Indonesian armed forces, they were not in his opinion
entitled to the status of prisoners of war.

"In my view" he said "members of enemy armed forces, who are combatants and who
come here with the assumption of the semblance of peaceful pursuits divesting
themselves of the character or appearance of soldiers and are captured, such
persons are not entitled to the privileges of prisoners of war."
After the hearing of the appeal by the Federal Court affidavits were filed on behalf of the appellants
sworn by two officers of the Indonesian Army, stating that the appellants had since March 1965 been
members of the Indonesian armed forces and serving in units under the "Kommando Mandala Siaga"
and documents purporting to be their personal military records were produced.

None of this information was obtainable during confrontation between Indonesia and Singapore or
prior to the hearing of the appeal by the Federal Court.

At the trial both appellants retracted the statements they had made. They said that they had left
Indonesia on March 13, and that their sampan had sunk while they were on their way to a place in
Singapore to collect a boat.

Mr. Le Quesne argued that the information obtained from Indonesia showed that the judge's
conclusion that the appellants were not members of the Indonesian armed forces was wrong and,
having found that they were not telling the truth about that, he consequently rejected their alibi defence.

Even if it be the case that they were at the time members of the Indonesian armed forces and that the
judge's conclusion that they were not was wrong, there were in their Lordships' opinion ample grounds
for the rejection of the alibi defence. Their Lordships see no such reason to suppose that the learned
judge's conclusion materially contributed to the rejection of the alibi defence which conflicted with the
statements that each of the appellants had made immediately after capture.

Mr. Le Quesne further argued that as the appellants had retracted their statements, they should not
under the law of Malaysia have been admitted in evidence unless there was some evidence to
corroborate them.This argument was advanced before and rejected by the Federal Court. In support of
it certain Indian cases were cited. The Federal Court adopted the view of the Malayan Union Court of
Appeal in Yap Sow Keong v. Public Prosecutor, [1947] M.J.L. 90, where it was said that an accused
person can be convicted on his own confession, even when it is retracted, if the court is satisfied of its
truth; and where the Court said it did not agree with the Indian decisions which lay down that before a
person can be convicted on his retracted confession, there must be corroborative evidence to support
it.

In their Lordships' opinion if, contrary to the view of the Federal Court, corroborative evidence is
required, it was present in this case. The evidence of the bus conductor which was accepted by Chua
J. corroborates the statements made by each of the appellants that when they left the building they got
on a bus.

Mr. Le Quesne also argued that the appellants were prisoners of war within the Geneva Convention
and that the requirements of that Convention were not complied with, with the result that there was a
mistrial.

Article 2 of the Convention provides that it shall apply to all cases of declared war or of any armed
conflict which may arise between two or more of the High Contracting Parties, even if the state of war
is not recognised by one of them. At the commencement of the trial Crown counsel submitted that
there was no state of war or armed conflict between Indonesia and Malaysia at the time, but when
Chua J . said that in his view there was a state of armed conflict Crown counsel did not pursue the
matter. The first question dealt with by the Federal Court was whether or not the Convention was
applicable to Singapore. That Court declined to decide the question which, they said, had not been
raised before the trial judge and that court dealt with the appeal on the assumption that the
Convention was applicable to Singapore. Mr. French for the respondent sought to argue before the
board that it was not, but as this question had not been raised at the trial, he was not given leave to do
so.

The appeal was therefore heard on the basis that the Convention applied to Singapore and that at the
time there was a state of armed conflict between Indonesia and Malaysia.

The issue to be determined is whether, in the circumstances of this case, the appellants were entitled
to the protection of the Convention. The view of Chua J. on this has already been stated. The Federal
Court held that there could not

"be the least doubt that the explosion at MacDonald House was not only an act of
sabotage but one totally unconnected with the necessities of war."
They went on to say:
"It seems to us clear beyond doubt that under International Law a member of the
armed forces of a party to the conflict who, out of uniform and in civilian clothing, sets
off explosives in the territory of the other party to the conflict in a non-military building
in which civilians are doing work unconnected with any war effort forfeits his right on
capture to be treated as a prisoner of war."
They consequently held that the appellants were not prisoners of war within the meaning of the
Convention.

It is first necessary to consider the regulations annexed to the Hague Convention concerning the Laws
and Customs of War on Land of 1907. The first section of those regulations is headed "Of
Belligerents" and Article 1 is the first article in that section and in the chapter headed "The Status of
Belligerents." It reads as follows :

"The laws, rights, and duties of war apply not only to the army, but also to militia and volunteer corps
fulfilling the following conditions: (1) They must sign to be commanded by a person responsible for his
subordinates; (2) To have a fixed distinctive sign recognisable at a distance; (3) To carry arms openly;
and (4) They must conduct their operations in accordance with the laws and customs of war. In
countries where militia or volunteer corps constitute the army, or form part of it, they are included
under the denomination 'army'".

Chapter II of this section is headed "Prisoners of War". The Regulations do not in terms say that a
person with the status of belligerent is on capture entitled to be treated as a prisoner of war, but that is
clearly implied. As Dr. Jean Pictet said in the "Commentary on the Geneva Convention" published by
the Red Cross in 1960 at p. 46:

"Once one is accorded the status of a belligerent, one is bound by the obligations of
the laws of war, and entitled to the rights which they confer. The most important of
these is the right, following capture, to be recognised as a prisoner of war."
Article 29 of the Regulations reads as follows:
"A person can only be considered a spy when, acting clandestinely or on false
pretences, he obtains or endeavours to obtain information in the zone of operations of
a belligerent, with the intention of communicating it to the hostile party. Accordingly,
soldiers not wearing a disguise who have penetrated into the zone of operations of the
hostile army, for the purpose of obtaining information, are not considered spies ..."
Article 31 says:
"A spy who, after rejoining the army to which he belongs, is subsequently recaptured
by the enemy, is treated as a prisoner of war ..."
These two articles show that soldiers who spy and are captured when wearing a disguise are not
entitled to be treated as prisoners of war. In War Rights on Land by Mr. J. M. Spaight, published in
1911 the following appears at p. 203 :
"The spy is usually a soldier who has abandoned the recognised badge of his craft
and his nation and adopted some disguise to shield his real character and intent. He
has thrown away the insignia of his status, the evidence of his brotherhood among
 fighting men ... The spy in modern war is usually a soldier who dons civilian dress, or
the uniform of the enemy, or of a neutral country ..."
Article 4 of the Geneva Convention added a number of new categories of persons entitled to treatment
as prisoners of war. It is only necessary to refer to Article 4A, sub-paragraphs (1), (2) and (3). They
read as follows:
"A. Prisoners of war, in the sense of the present Convention, are persons belonging to
one of the following categories, who have fallen into the power of the enemy: (1)
Members of the armed forces of a party to the conflict as well as members of militias
or volunteer corps forming part of such armed forces; (2) Members of other militias
and members of other volunteer corps, including those of organised resistance
movements, belonging to a party to the conflict and operating in or outside their own
territory, even if this territory is occupied, provided that such militias or volunteer corps,
including such organised resistance movements, fulfil the following conditions: (a) that
of being commanded by a person responsible for his subordinates; (b) that of having a
fixed distinctive sign recognisable at a distance; (c) that of carrying arms openly; (d)
that of conducting their operations in accordance with the laws and customs of war; (3)
Members of regular forces who profess allegiance to a government or an authority not
recognised by the detaining Power."
The wording of sub-paragraphs (1) and (2) is clearly modelled on Article 1 of the Hague Regulations.
The conditions which have to be fulfilled by militias and volunteer corps not forming part of the army or
armed forces are the same.

There is no indication in the Convention that its intention was to extend the protection given to soldiers
beyond that given by the regulations; and in the Manual of Military Law, Part III (1958), in paragraph
96 it is stated:

"Should regular combatants fail to comply with these four conditions, they may in
certain cases become unprivileged belligerents. This would mean that they would not
be entitled to the status of prisoners of war upon their capture. Thus regular members
of the armed forces who are caught as spies are not entitled to be treated as
prisoners of war."
On this basis the conclusion must be drawn 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 .

In neither the Hague Regulations nor in the Geneva Convention is it expressly stated that a member of
the armed forces has to be wearing uniform when captured to be entitled to be so treated. In the case
of certain militias and volunteer corps certain conditions have to be fulfilled in relation to those bodies
for a member of them to be entitled to treatment as a prisoner of war. It is not, however, stated that
such a member must at the time of his capture be wearing "a fixed distinctive sign recognisable at a
distance."

International law, however, recognises the necessity of distinguishing between belligerents and
peaceful inhabitants. "The separation of armies and peaceful inhabitants" wrote Spaight in War Rights
on Land at p. 37, "is perhaps the greatest triumph of international law. Its effect in mitigating the evils
of war has been incalculable." Although paragraph 86 of the Manual of Military Law recognises that
the distinction has become increasingly blurred, it is still the case that each of these classes has
distinct rights and duties.

For the "fixed distinctive sign to be recognisable at a distance" to serve any useful purpose, it must be
worn by members of the militias or volunteer corps to which the four conditions apply. It would be
anomalous if the requirement for recognition of a belligerent, with its accompanying right to treatment
as a prisoner of war, only existed in relation to members of such forces and there was no such
requirement in relation to members of the armed forces. All four conditions are present in relation to
the armed forces of a country or, as Professor Lauterpacht in Oppenheim's International Law, 7th ed.
(1952), volume II, at p. 259, calls them, "the organised armed forces". In War Rights on Land Mr.
Spaight says, at p. 56, in relation to Article 1 of the Regulations: "The four conditions must be united to
secure recognition of belligerent status." Pictet in the Commentary on the Geneva Convention says, at
p. 48: "The qualification of belligerent is subject to these four conditions being fulfilled," and, at p. 63,
in relation to sub-paragraph (3) of Article 4A:
"These 'regular armed forces' have all the material characteristics and all the attributes of armed
forces in the sense of sub-paragraph (1): they wear uniform, they have an organised hierarchy and
they know and respect the laws and customs of war."

In relation to troops landed behind enemy lines, Professor Lauterpacht in Oppenheim's International
Law says, at p. 259, that so long as they

"... are members of the organised forces of the enemy and wear uniform, they are
entitled to be treated as regular combatants even if they operate singly."
Thus considerable importance attaches to the wearing of uniform or a fixed distinctive sign when
engaging in hostilities. In an article in the British Year Book of International Law 1951, by Major R. A.
Baxter, entitled "So-called 'Unprivileged Belligerency'; Spies, Guerrillas and Saboteurs" the author, at
p. 343, says:
"The correct legal formulation is, it is submitted, that armed and unarmed hostilities,
wherever occurring, committed by persons other than those entitled to be treated as
prisoners of war or peaceful civilians merely deprive such individuals of a protection
they might otherwise enjoy under international law and place them virtually at the
power of the enemy. 'Unlawful belligerency' is actually 'unprivileged belligerency'.
International law deliberately neglects to protect unprivileged belligerents because of
the danger their acts present to their opponents. The peril to the enemy inherent in
attempts to obtain secret information or to sabotage his facilities and in attacks by
persons whom he often cannot distinguish from the peaceful population is sufficient to
require the recognition of wide retaliatory powers. As a rough-and-ready way of
distinguishing open warfare and dangerous dissimulation, the character of the clothing
worn by the accused has assumed major importance. The soldier in uniform or the
member of the volunteer corps with his distinctive sign have a protected status upon
capture, whilst other belligerents not so identified do not benefit from any
comprehensive scheme of protection."
In his Legal Controls of International Conflict (1954) Professor Julius Stone, at p. 549, in relation to the
distinction between privileged or "protected" or "lawful" and unprivileged or "unprotected" or "unlawful"
belligerents or combatants, says:
"The latter distinction draws the line between those personnel who, on capture, are
entitled under international law to certain minimal treatment as prisoners of war, and
those not entitled to such protection. 'Non-combatants' who engaged in hostilities are
one of the classes deprived of such protection, but there are also many others. These
include notably military personnel who conduct hostilities without conforming to the
requirements of Article 1 of the Hague Regulations ('guerillas' in the strict sense),
spies and saboteurs. Such unprivileged belligerents, though not condemned by
international law, are not protected by it, but are left to the discretion of the belligerent
threatened by their activities."
At p. 563 he wrote :
"It is clear, for example, that the donning of disguise by military personnel (for instance
of prisoners of war for purposes of escape) does not destroy their status as privileged
belligerents."
In a footnote to p. 563 he says:
"... the greater difficulty of the position of 'evaders' is a practical one, namely, that the
circumstances place upon them the burden, a very heavy one, except in cases of
escaped prisoners of war, of showing that they are not spies or saboteurs."
This seems to indicate that he regarded the donning of civilian clothes by soldiers to commit sabotage
as depriving them of the status of privileged belligerents.

In this appeal it is not necessary to attempt to define all the circumstances in which a person coming
within the terms of Article I of the Regulations and of Article 4 of the Convention as a member of an
army or armed force ceases to enjoy the right to be treated as a prisoner of war. The question to be
decided is whether members of such a force who engage in sabotage while in civilian clothes and who
are captured so dressed are entitled to be treated as protected by the Convention.

In paragraph 96 of the Manual of Military Law it is stated that: "Members of the armed forces caught in
civilian clothing while acting as saboteurs in enemy territory are in a position analogous to that of
spies." And in paragraph 331:
 "If they are disguised in civilian clothing or in the uniform of the army by which they
are caught or that of an ally of that army, they are in the same position as spies. If
caught in their own uniform, they are entitled to be treated as prisoners of war."
In The Law of Land Warfare (1956) the American equivalent to the Manual of Military Law, the
following paragraph appears:
"74. Necessity of Uniform. Members of the armed forces of a party to the conflict and
members of militias or volunteer corps forming part of such armed forces lose their
right to be treated as prisoners of war whenever they deliberately conceal their status
in order to pass behind the military lines of the enemy for the purpose of gathering
military information or for the purpose of waging war by destruction of life or property.
Putting on civilian clothes or the uniform of the enemy are examples of concealment
of the status of a member of the armed forces."
In Ex parte Quirin, (1942) 317 U.S. 1, the United States Supreme Court had to consider motions for
leave to file petitions for writs of habeas corpus. The case related to a number of Germans who during
the course of the last war landed in uniform on the shores of the United States with explosives for the
purpose of sabotage. On landing they put on civilian clothes. They were captured. In the course of
delivering the judgment of the Supreme Court, Chief Justice Stone said, (1942) 317 U.S. 1, 31:
"The spy who secretly and without uniform passes the military lines of a belligerent in
time of war, seeking to gather military information and communicate it to the enemy,
or any enemy combatant who without uniform comes secretly through the lines for the
purpose of waging war by destruction of life or property, are familiar examples of
belligerents who are generally deemed not to be entitled to the status of prisoners of
war ..."
and, ibid. 37:
"By passing our boundaries for such purposes without uniform or other emblem
signifying their belligerent status, or by discarding that means of identification after
entry, such enemies become unlawful belligerents subject to trial and punishment."
In the light of the passages cited above, their lordships are of the opinion that under international law it
is clear that the appellants, if they were members of the Indonesian armed forces, were not entitled to
be treated on capture as prisoners of war under the Geneva Convention when they had landed to
commit sabotage and had been dressed in civilian clothes both when they had placed the explosives
and lit them and when they were arrested. In their opinion Chua J. and the Federal Court were right in
rejecting the appellants' plea on this ground.

Mr. Le Quesne further contended that the appellants' act in placing the explosives was a legitimate act
of war and that they could not therefore be tried for murder. The Federal Court in rejecting the
appellants' plea, appear to have done so partly on the ground that placing the explosives in
MacDonald House, "a non-military building in which civilians are doing work unconnected with any war
effort" was not a legitimate act of war. "The immunity of non-combatants from direct attack is one of
the fundamental rules of the International Law of war" and "Non-combatants are not, under existing
International Law, a legitimate military objective" (Professor Lauterpacht in Oppenheim, at p. 524 and
525).

As, if they were members of the Indonesian armed forces, in their Lordships' opinion, they forfeited
their rights under the Convention by engaging in sabotage in civilian clothes, it is not necessary to
consider whether they also forfeited them by breach of the laws and customs of war by their attack on
a non-military building in which there were civilians. Having forfeited their rights, there was in their
lordships' view no room for the application of Article 5 of the Convention and, not being entitled to
protection under the Convention, the appellants' conviction for murder committed by them when
dressed as civilians and within the jurisdiction of Singapore cannot be invalidated.

For these reasons, their Lordships were of the opinion that the appeals should be dismissed.