1. By Areej Torla
areej@iium.edu.my

2. Malaysian Legal History
1. Straits Settlements
2. Malay States
3. Borneo States

4. Straits Settlements
1. Penang (Prince of Wales Island),
2. Malacca
3. Singapore

5. 


1771: Sultan Muhammad Jiwa (Sultan of Kedah) sought
help from the British East India Company (EAC) to solve
succession dispute in Kedah.
1778: EAC sought permanent possession of Penang but
the Sultan refused.
1786: Sultan agreed to give Penang to British on certain
conditions (eg protection against Siam --Treaty of 1786)

6. 

Article 1: That the Honourable Company shall
be the guardian of the seas; and whatever
may come to attack the king shall be an
enemy to the Honourable Company
Article 6: If any enemy come to attack us
(Kedah) by land and we require assistance
from the Honourable Company of men, arms
or ammunition, the Honourable Company
shall supply us at our expenses.

7. 


1786, July 15: Francis Light landed in Penang.
Named the island ‘Prince of Wales Island’.
1790: British refused to give protection
against Siam.
1791: Sultan attempted to repossess Penang
but failed.

8. 



Sultan was forced to enter into this
agreement
Confirmed cession of island
No promise of protection
In return, Sultan will receive 6000 Spanish
dollars annually

9. 

1800: EAC acquired PW in perpetuity in order
to have complete control over Penang port
Sultan to receive another 10000 dollars
annually

10. 




This period lasted for 20 years (between 1786 –
1807).
There was no proper law and order within this
period.
British claimed the island was uninhabited when
it took possession of the island.
But within 3 years of occupation, the population
increased to 10000 people.
So there was a need for a proper law and order.

11. 
Letter to Francis Light 26 Jan 1788:

“to preserve good order in the settlement
and to impose appropriate punishment like
imprisonment or other common
punishment so far as the inhabitants not
British subjects are concerned”

12. 


Francis Light appealed to BOD of EAC to
establish a proper legal system in Penang.
This was declined because there was no
proper mandate from the King of England.
However, EAC introduced the Regulation of
1794 which dealt only with the mode of trial
of criminal cases and their character of
punishment. (reintroduced what was
mentioned in the letter to Francis Light)

13. 



Civil cases (less than $10) – by penghulu
Civil & criminal cases (serious cases) –
Magistrate with Superintendent
Murder cases – Court Marshall (for army)
Execution of death penalty must be with
approval of Governor General of India)

14. 



For British subjects:
A British subject who commits a wrong
cannot be tried in court. Must be sent back to
Bengal.
E.g. Case of James Sudd (1793)
Sudd committed murder, deported and tried
in Bengal. Was found not guilty because of
insufficient evidence.

15. 
Case of Ahpoe and Kehin (1797)

Guilty of adultery which was a serious offence
at that time.
Punishment: Heads were shaved, made to
stand in public place for certain hours in a
day.


16. 


He was the first qualified judge in Penang
Was practising law in Calcutta
He wrote a letter expressed dissatisfaction
over the poor administration of justice.

18. 
FINALLY, a proper legal system was
introduced by virtue of the RCJ granted by
King George III in 25 March 1807.

By virtue of RCJ, English law was formally and
officially introduced into Penang

19. 
Issue: Whether Penang was ceded or settled

Regina v Willan, Maxwell (Recoder):

“If the new acquisition be an uninhabited country
found out by British subject and occupied, the law of
England, so far as it is applicable become, on the
foundation of the settlement the law of the land, but
if it be an inhabited country obtained by conquest or
cession, the law in existence at the time of its
acquisition, continues in force, until changed by a new
sovereign.”

20. Doctrine of Imposition
 Also “doctrine of reception”
 To determine whether the colonial law is applicable in the
colony
 Ceded or settled territory?
Ceded territories:
 Inhabited, sovereign
 Local law shall continue in force until changed by the new
sovereign
Settled territories:
 Uninhabited, terra nullius
 No law in force
 Apply English law

21. 

Hackett J:
An island virtually uninhabited is occupied
and settled by British subjects in the name of
the King of England.

22. 


Maxwell R:
It was neither a colony of British subject in the
ordinary sense of the expression, nor can it be
said to have been an inhabited country when
ceded, because four Malay families were found
encamped upon it when it was first occupied by
us. It was a desert island belonging to the Rajah
of Quedah, and ceded by that prince in 1786…
At the time when it became a British possession
it was without inhabitants to claim the right of
being governed by any existing laws and without
tribunal to enforce any…

23. 
Immaterial to consider whether Penang should
be regarded as ceded or settled territory for
there is no trace of any laws having been
established there before it was acquired by EAC.

In either view, the law of England must be taken
to be the governing law so far as it is applicable
to the circumstances of the place and modified
in its application by these circumstances.

24. 
Tun Sri Lanang in “Sejarah Melayu” and Old
Register of Survey 1795:

– the island was inhabited since 1700

25. 
Q: Comment on issues regarding the status
and existing laws of Penang when it became a
British possession.

Q: Describe the period of legal chaos
No proper law & order
Magistrates were not legally trained
Exclusion of British subjects




26. 
Granted by King George III on 25 March 1807.

Established the Court of Judicature Prince of
Wales Island in Penang

27. 

Consists of Governor, 3 Councillors, and
Judge (“Recorder of Prince of Wales Island”).
Jurisdiction:
 (a) Civil;
 (b) Criminal in so far as local circumstances will
admit.

28. 
The court also acts as an Ecclesiastical Court
so far as the several religions, manner and
custom of the inhabitants will admit.

(Note: In England, there was a separate court run by the church
administering
ecclesiastical
laws
–matters
relating
to
marriage, matrimonial causes, will and estate of deceased persons).

29. 




To be exercised only over residents of the
Settlement
Can grant Probate and Letters of
Administration
Exercises authority over estates of infants
and lunatics
Power to execute punishment
No appeal from this court but may apply for
mitigation of sentence to King in Council

30. 
The Charter formally introduced the general
law of England (as it existed in 1807) into
Penang.

The object of the Charter is to protect the
natives from oppression and injustice… (per
Stanley R, in Kamoo v Bassett)

31. 




Kamoo v Bassett
In the Goods of Abdullah
Reg v Willans
Fatimah v Logan
Ong Cheng Neo v Yeap Cheah Neo

33. 

Case on assault and battery. Happened
before RCJ (during the period of legal chaos).
Damages claimed was $600 but was awarded
only $150.

34. 
Issue: whether a Muslim may dispose of his
entire property through a will created by him
during his lifetime.

Ct held that English Law was introduced into
Penang by the first RCJ.

Therefore a Muslim could give away all of his
property by will as allowed by English law –
though not allowed by Muslim law.

-- Muslim law was ignored

35. 
Court held that English criminal law applied in
Penang by virtue of the 1st RCJ so as to enable
a foreign worker to be imprisoned with hard
labour for leaving his job in breach of
contract.

36. 

Hackett J:
Either on the settlement of the island or if not
then by the Charter of 1807, the law of
England was introduced into Penang and
became the law of the land, and that all who
settled here became subject to that law.

37. 




Issue: whether will to be determined
according to Muslim or English law?
Argument in favour of Muslim law:
Penang was part of Kedah, a Muslim state.
Islamic law continued in force in the island
until altered by competent authority
Even after introduction of RCJ, there is no
proof that the law has been altered.

38. 



Hackett J rejected the argument:
Penang was an uninhabited island
Before the RCJ was granted there were no
known body of laws in Penang.
-- Muslim law was ignored

39. 


Issue: whether a Chinese can make a devise
giving property for charity which benefited
only himself and his family.
Judge: “it does not seem to fall within any
definition of a charitable purpose or use…”
--Chinese custom disregarded.