Reg v Willans

I was asked to read the case Regina v Willans and to figure out certain issues on the introduction of English Law to Malaysia – how it was brought in and what effects it had. This case is only a landmark for Malaysian and Singaporean Law as it highlighted the situation before and after the Charter of Justice 1807 was brought into Malaysia.

one frequently sees conversing together five people, of whom no two obey the same laws – R v Willans

Material Facts and Issues.

An agricultural labourer, Chivatean, absented himself from his service while under contract. Chivatean was sentenced to two months’ hard labour previously, for a similar offence and that upon completing his sentenced, he refused to return back to complete his contract.

As a result, he was apprehended again and brought before the magistrate again for the second time and the magistrate refused to adjudicate as he decided that he could not punish Chivatean again under 4 Geo IV C.34 for breaching the same contract a second time.

The issue is whether or not the magistrate’s refusal to adjudicate on this was well founded in Law (particularly what Law).

Why no Law could be considered lex loci in Penang when it was ceeded.

As Penang was ceeded by the Sultan of Kedah to a quasi-sovereign entity – EIC – the question of what law was lex loci at the time only applies to either British Law or Kedah Law. Based on the general rule of law, if an existing land was ceeded, the existing Law should continue for such time until changed by the new government; and if the land was empty, the Law of the occupiers should be used.

Unfortunately, Penang was neither a colony in the ordinary sense of the word as it was ceeded to the EIC by the Sultan of Kedah, nor was it uninhabited as there were several Malay families (most likely nomadic fishermen) encamped upon it when first occupied by the British.

While the British who came with Captain Francis Light were bound by British Law, the nature of their temporary occupancy on the island hardly suggests that the same Law applied to the rest of the inhabitants of the island. So, British Law was only considered the Law applied to the garrison and their people.

While the bulk of the early settlers were Chinese, Malays and Indians, none could establish their respective laws in a British possession and the few early English settlers were not there to establish a permanent settlement but were there in a temporary nature (possibly as traders or workmen).

While Kedah was the prior owner of the land, it is also not possible to assert that Kedah Law continued to be enforced on the island due to the lack of any legal institutions nor authority on the island at the time it was ceeded. Furthermore, it is difficult to hold a Christian government to adopt Islamic Law (that required Muslim Judges and witnesses) as the lex loci.

Therefore, neither Kedah Law, British Law, nor other Laws of the early settlers were considered lex loci at the time.

What Law applied in Penang in the first 20-odd years of being ceeded.

As a result of this situation, no clear law applied to the island during the early years and the Commandant of the garrison was left with the task of maintaining order amongst the early settlers.

Crime was punished by a kind of martial law that the GG considered appropriate to the offence. In personal matters, as may systems of law were in force as there were nationalities on the island tempered by the sense of natural justice of whichever magistrate constituted the Court of Appeal at the time.

Therefore, English Law was not even recognised as the law of its English inhabitants as reflected clearly in the way the place was first run.

What factual evidence refuted any contention that English Law ever applied in Penang at the time.

Captain Light was directed in 1788 to preserved good order in the settlement, not by punishing those who offended against it according to English or other Law but by confinement or other common punishment. This was largely due to the temporary nature of their settlement. For the non-British subjects, he generally sent them to Calcutta for trial for serious crimes.

However, the jurisdiction of the Calcutta courts did not extend to the island and in 1793 the AG there could not adjudicate over any serious criminal matters sent there from the island. This gap in legal jurisdiction allowed criminals to roam free on the island as late as 1805.

Even in case of Civil Laws, the evidence shows that slaves were openly bought and sold and taxes were imposed by sole authority of the local government. This opposed two principles of English Law – that makes a slave free within the jurisdiction of British Law, and that protects subjects from taxation without representation.

While there were Courts and Judges on the island before the Charter, the justice which they administered within their jurisdiction was not in accordance with the rules of English Law but merely according to their own notions of what was just.

What Law did the CoJ 1807 introduce into Penang.

It must be presumed that the CoJ 1807 was granted with the knowledge of the sad state of affairs on the island at the time.

Although the CoJ did not explicitly introduce English Law into Penang, it can be argued that the wording of the CoJ 1807 directed that it should be administered on the island and therefore, it introduced English Law into the island. The only issue then is to what extent did it introduce English Law.

What extent did the Law introduced by CoJ 1807 apply to Penang.

The extent to which English Law applied is then a matter of construction.

With regards to Criminal Law, the language of the CoJ 1807 is explicit that it requires the Courts to administer Criminal justice in such or the like manner and form or as nearly as the conditions and circumstances of the place and people will allow, as in England.

Based on this, the J concluded that the same must apply to Civil Law too. However, the wording of the CoJ 1807 directs the court to administer justice and right, without expressly stating what body of law is to be applied.

As the CoJ was issued from a competent authority in England, therefore, due to the lack of any other direction, it is presumed that English Law must apply.

What criteria determined whether 4 Geo IV C.34 was applicable in Penang.

The mischief that it was designed to prevent was in no way peculiar to any specific geographic locale. There was also an acute shortage of labour that made it difficult to replace any defaulting labourer.

Furthermore, the machinery by which the the mischief is remedied is in full force and operation in Penang as a result of all the Charters – both Justices of the Peace and a House of Correction. As both the mischief and the means to redress it exist both in England as in Penang, therefore the 4 Geo IV as law on the island must be enforced.

The principle is that the Act is applicable to the situation in Penang and the mechanism to administer it is present. Therefore, the Act must be enforced.

Whether Magistrate Willan’s refusal to adjudicate was founded in Law.

From the judgement, Magistrate Willan’s refusal to adjudicate is founded in Law under that of double jeopardy. However, it was not sufficiently well founded as he failed to account for the Mischief Rule – that is to ensure that the law corrects the mischief that it is supposed to correct.

By refusing to adjudicate, the magistrate would allow the wrong-doer to take advantage of his own wrong-doing, which is not what the law was intended to do. Therefore, the magistrate should have heard and adjudicated on the case.

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Shawn Tan

Chip Doctor, Chartered Engineer, Entrepreneur, Law Graduate.

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