GOH LEONG YONG v. ASP KHAIRUL FAIROZ RODZUAN & ORS

Goh Leong Yong v.
ASP Khairul Fairoz Rodzu an

[2021] 8 CLJ & Ors 331
A GOH LEONG YONG v. ASP KHAIRUL FAIROZ RODZUAN

& ORS
FEDERAL COURT, PUTRAJAYA
VERNON ONG LAM KIAT FCJ
ABDUL RAHMAN SEBLI FCJ
B
ZABARIAH MOHD YUSOF FCJ
[CRIMINAL APPEAL NO: 05(HC)-158-11-2020(W)]
30 JULY 2021
CONSTITUTIONAL LAW: Legislation – Constitutionality – Powers of court –

C Whether s. 4 of Prevention of Crime Act 1959 (‘POCA’) breached art. 121 of Federal
Constitution – Whether s. 4 of POCA constitutional – Whether Parliament
encroached into power of court by prescribing 21 days remand period under s. 4(1)(a)
of POCA – Whether power of Federal Court to depart from its earlier decision must
be exercised sparingly
D
CRIMINAL PROCEDURE: Habeas corpus – Application for – Detenu detained
under different statutes at different period of time – Writ of habeas corpus filed
against detention order under s. 4(1)(a) of Prevention of Crime Act 1959 – Whether
challenge correctly directed to current detention order – Whether detenu already
released when application filed – Whether subject of detention order under s. 4(1)(a)
E no longer issue
CRIMINAL PROCEDURE: Habeas corpus – Detention – Validity – Detention
order under s. 4(1)(a) of Prevention of Crime Act 1959 – Whether detention order
complied with requirements under s. 4(1)(a) – Whether detenu informed of grounds
of arrest – Whether detention order valid and lawful – Whether there was mala fides
F
in detention – Whether mala fides in arrest amounted to procedural non-compliance
The appellant was arrested by the Malaysian Anti-Corruption Commission
(‘MACC’) on 2 October 2020 and was held under remand from 3 October
2020 until 11 October 2020. He was released on MACC bail on 11 October
G 2020. On 27 October 2020, the appellant was arrested by the police in
relation to Cheras Report: 027048-27049/19 (‘Cheras report’) for an alleged
offence under s. 4(1)(c) of the Common Gaming Houses Act 1953 (‘CGHA’).
He was under remand from 27 October 2020 until 29 October 2020 and, on
29 October 2020, the appellant was arrested under another report for the
same alleged offence under s. 4(1)(c) of the CGHA. On 30 October 2020, the
H
appellant was arrested under s. 3(1) of the Prevention of Crime Act 1959
(‘POCA’) by the first respondent. On 31 October 2020, the second
respondent (‘Magistrate’) ordered the appellant to be remanded for 21 days
from 31 October 2020 until 20 November 2020 under s. 4(1)(a) of the POCA
based on the Cheras report. The appellant filed for writ of habeas corpus, on
I 3 November 2020, at the High Court. At that point in time, the appellant
was detained under s. 4(1)(a). The habeas corpus application was fixed for
hearing on 16 November 2020. However, on 13 November 2020, before the
332 Current Law Journal [2021] 8 CLJ
expiry of 21 days remand order (20 November 2020), the first and third A
respondents appeared before the Magistrate and obtained an order for the
appellant to be remanded for a further 38 days, from 13 November 2020
under s. 4(2)(a) of the POCA. When the application for habeas corpus came
up for hearing on 16 November 2020, the respondents took a preliminary
objection on the ground that the application for the writ of habeas corpus B
against the detention under s. 4(1)(a) had been rendered academic by reason
of 38 days remand order under s. 4(2)(a) granted by the Magistrate. The High
Court, in upholding the preliminary objection, dismissed the application on
the same day. Dissatisfied, the appellant lodged this appeal contending, inter
alia, that: (i) it was not open to a court moved for habeas corpus to entertain C
preliminary objections by reason of the imperative language of art. 5(2) of
the Federal Constitution (‘FC’). In any event, the application was not
academic as a matter of law. The real question in habeas corpus was whether
the detention is lawful (‘academic point’); (ii) s. 4 of the POCA under which
the detention was made is unconstitutional; (iii) the detention was tainted
D
with mala fides; (iv) the exercise of the Minister of his power under s. 22 of
the POCA by including the CGHA in item 5 of the First Schedule to POCA
was ultra vires the spirit and intendment, as expressed in the recitals to POCA
read with art. 149 of the FC; (v) the statement of facts delivered under
s. 4(1)(a) did not bring the appellant’s case within the recitals of POCA;
(vi) the Magistrate failed to adhere to the guidelines stated by Vernon Ong E
FCJ in Zaidi Kanapiah v. ASP Khairul Fairoz Rodzuan & Ors And Other Appeals
(‘Zaidi Kanapiah’) and hence, there had been procedural non-compliance
which rendered the detention of the appellant under s. 4(1)(a) as unlawful.
Held (dismissing appeal)
F
Per Zabariah Mohd Yusof FCJ (for the majority):
(1) Article 5(2) of the FC provides that, where an individual has been
unlawfully detained, he may complain to the High Court or any judge
of the High Court and the court must investigate into the complaint. The
operative words in the aforesaid provisions are, ‘unlawfully detained’, G
‘illegally detained’ or ‘improperly detained’. When a person is no longer
‘detained’ (ie, he has already been released under that particular
detention order), there is no issue of the writ of habeas corpus to be
issued, as there is no ‘authority’ or ‘body’ that detained him any longer.
His release is therefore no longer an issue, and the court does not have
H
jurisdiction to determine the matter if a person is no longer detained.
(paras 11 & 14)
(2) The challenge by the appellant was on the detention under s. 4(1)(a) of
the POCA. However, the facts showed that, when the application for
habeas corpus was brought before the High Court on 13 November 2020, I
the appellant was no longer detained under s. 4(1)(a). By then, he was
detained under s. 4(2)(a) for 38 days and the subject of detention, for
adjudication under s. 4(1)(a), no longer existed. Hence, the preliminary
Goh Leong Yong v. ASP Khairul Fairoz Rodzu an
[2021] 8 CLJ & Ors 333
A objection on the application for the writ of habeas corpus against the
detention of the appellant under s. 4(1)(a) of the POCA was with merits.
(paras 17 & 51)
(3) In determining the legality of any detention order in an application for
the writ of habeas corpus, the following must be fulfilled, namely: (i) that
B
the writ of habeas corpus must be directed against the current order of
detention; and (ii) to determine what is the condition precedent under
the provision of the law pursuant to which the detention order was
issued. (para 22)
C
(4) In an application for a writ of habeas corpus, the remedy is the release
of the detainee from the detaining authority. If it is proven that the
detention of the detenu is unlawful because of procedural non-
compliance of conditions precedent of the relevant statute, a release of
the detenu is, off course, inevitable. There may also be the issue of more
than one detention order issued by different detention authorities for
D
different period of time, not to mention the different provisions of the
statute in which the detention order was issued, in which, different
consideration of condition precedent applies. Therefore, it was pertinent
for the appellant to properly direct his challenge to the current detention
order. The facts showed that, on the day of the decision, the appellant
E was no longer under detention under s. 4(1)(a), hence the application for
habeas corpus for the detention under s. 4(1)(a) was no longer relevant and
academic. The High Court Judge did not err in this respect. (paras 39
& 48)
(5) In order to determine the validity of the detention, the first point of
F
reference is the requirements under the provision of s. 4(1)(a) of the
POCA itself, namely: (i) production of a statement in writing; (ii) the
statement in writing is signed by a police officer not below the rank of
an Inspector; (iii) the said statement in writing must state that there are
grounds for believing that the name of that person should be entered on
G the Register. (paras 57 & 58)
(6) The statement in exh. KFR-5, the affidavit affirmed by the first
respondent, was the statement in writing signed by a police officer not
below the rank of Inspector and was thus, in line with the requirement
of the provision under s. 4(1)(a) of the POCA. The application of s. 28A
H of the Criminal Procedure Code (‘CPC’) read with s. 4 of the POCA had
also been met wherein the first respondent, in the affidavit, had
stated that he had duly informed the detenu of the grounds of his arrest.
Section 4(1)(a) does not require a detailed grounds to be provided in the
statement in writing and neither does it involved the production of any
I evidence. Suffice it states the police has ‘reasons to believe there are
grounds …’. Therefore, the remand order for 21 days issued by the A
Magistrate on 31 October 2020, for the appellant to be remanded from
31 October 2020 until 20 November 2020 under s. 4(1)(a) of the POCA
was valid and lawful. (paras 59-62 & 64)
(7) The statutory procedure for the remand to be given for 38 days had been
B
complied with. The first respondent had affirmed three affidavits in
reply, in which it was stated and showed that the procedural
requirements of s. 4(2)(a)(i) and (ii) had been complied with, when he
appeared before the Magistrate before the expiry of the 21-day remand
period under s. 4(1)(a). He had produced before the Magistrate: (i) a
statement in writing signed by the DPP Yusaini Ameer stating that, in C
his opinion, sufficient evidence existed to justify the holding of an
enquiry under s. 9; and (ii) a statement in writing signed by the first
respondent stating that it was intended to hold an enquiry in the case of
the appellant under s. 9. Hence, there was no procedural non-compliance
by the respondents for the detention under s. 4(2)(a). (paras 66 & 67) D
(8) Article 74(1) of the FC gives Parliament the power to make laws with
respect to any of the matters enumerated in the Federal List or the
Concurrent List. Clearly, the jurisdiction and powers of the courts
(except the Syariah Courts) are within the Legislative List, List 1 -
Federal List in the Ninth Schedule, meaning, Parliament can legislate E
with regards to jurisdiction and powers of the courts. As far as the POCA
is concerned, art. 149 of the FC vests Parliament with the power to
legislate and prescribe the period of 21 days in the remand order to be
granted by a Magistrate under s. 4(1)(a) of the same. By prescribing the
remand period, Parliament does not encroach into the power of the F
court as it is within Parliament’s power to do so. The court’s duty is to
interpret the law according to what the statute provides. Hence, s. 4 of
the POCA is constitutional. (paras 78, 79, 93 & 97)
(9) It was the intention of Parliament since 1959, to include unlawful
gaming as one of the categories under POCA. Parliament in its wisdom G
saw the necessity more than 60 years ago to include the organisation and
promotion of unlawful gaming activities due to an upsurge of
undesirable criminal activity, causing the public to live in fear. More so
with the advent of a real or virtual technology information in the
cyberworld, the organisation and promotion of unlawful gaming have H
become sophisticated and tricky to detect. Section 22 gives the Minister
(as agent of the third respondent) power to amend the schedules to the
POCA. This is a delegated legislative power but is not unfettered.
Paragraph 5 of Part I of the First Schedule has been in existence as early
as 1959 since the promulgation of the POCA. The word ‘habitually’ was I
deleted in 2014 vide the Prevention of Crime (Amendment of First and
Second Schedule) Order 2014, everything else remains the same. With
the deletion, now stands the present para. 5. (paras 100 & 103-105)
[2021] 8 CLJ & Ors 335
A (10) The meaning of ‘organised violence against persons or property’ is not

to be viewed in a narrow sense but through the context of the entire
scheme of the POCA. There is a nexus between unlawful gambling and
criminal organisations. Unlawful gaming activity and its domino effects
on society and public order should never be underestimated. It was
B never the intention of the Legislature to include the CGHA under the
POCA and neither was it included in the Schedule to the same. Thus,
the argument that the inclusion of unlawful gaming in the Schedule to
POCA was unconstitutional, had no merits. The activities of the
appellant in unlawful gambling were indeed a threat to public order
C
which led to social problems and criminal activities. Therefore, the
statement of facts as produced by the first respondent before the
Magistrate for the detention under s. 4(1)(a) was within the scope of the
First Schedule, Part 1, para. 5 of the POCA. (paras 106, 109 & 111)
(11) There was no issue of mala fide in the arrest of the appellant under the
D POCA. The arrest and detention of the appellant under the MACC was
separate and distinct from the arrest and detention under the POCA. The
MACC has its own regulatory statutes in conducting investigations
which is within their jurisdiction like the MACC Act 2009 and the
AMLATFA 2001. The appellant failed to show mala fide as it was only
E
his allegation that the police had detained to shut him up from revealing
information to the MACC. Further, the contention by the detenu that
their arrest was mala fide did not amount to a procedural non-
compliance. (paras 117 & 121)
(12) In an application for a writ of habeas corpus, the determination of
F whether a particular preventive detention is lawful or not, depends on
what is the statutory requirement under the particular Act under which
the appellant was detained and whether there has been statutory non-
compliance. In this case, it was s. 4(1)(a) of the POCA. The procedure
of granting remand under the CPC is not applicable when dealing with
G
remand under the POCA. The POCA is a special law that deals with
remand with a view for detention under preventive law, whilst the CPC
deals with remand under punitive laws which deals with remand for
purposes of investigations with a view of charging the detainee. Hence,
the remand procedure under the CPC was not applicable for remand
under the POCA. (paras 124 & 126)
H
Per Abdul Rahman Sebli FCJ (supporting):
(1) Judicial power has never been removed from the two High Courts at any
time, either before or after the 1988 amendment, and is still vested in
the two High Courts by virtue of art. 121(1) of the FC, the extent of
I which remains the same before and after the removal of the words,
which is, ‘as provided by federal law’ (before the amendment) and ‘as
conferred by or under federal law’ (after the amendment). The removal
of judicial power from the two High Courts can only be done by
removing the whole of art. 121(1) from the FC, and not merely by A
removing few words from the article although they are words of
significant import. They may be differently worded, but they mean the
same thing. Therefore, to say that the 1988 amendment had removed the
judicial power of the two High Courts was a gross distortion of the law
and the facts. In fact, by applying to the High Court for the writ of habeas B
corpus, the appellant recognised that the High Court of Malaya had the
jurisdiction and power to grant the relief sought. (paras 143, 145 & 146)
(2) A decision that is rendered per incuriam is a decision that fails to apply
a relevant statutory provision or ignores a binding precedent. It is settled
law that this court has the power to depart from its earlier decision when C
it is right to do so. The argument that s. 4 of the POCA is
unconstitutional ignored the fact that the majority in Zaidi Kanapiah had
ruled otherwise. The appellant in the present appeal wanted the court to
depart from Zaidi Kanapiah on the constitutionality of s. 4 of the POCA,
where the decision was against him by a majority of 3:2, yet on the D
academic issue, which was decided in his favour by a majority of 4:1,
he wants the court to desist from doing so. (paras 153, 154, 159 & 161)
(3) In Zaidi Kanapiah, the majority had decided that the issue of the legality
of the appellant’s detention was not academic despite the fact that his
detention period of 21 days issued under s. 4(1)(a) of the POCA had E
expired by the time his application for the writ of habeas corpus was
heard. A minority judgment does not have any force of law. However,
while it is of great importance to maintain consistency in the decisions
of the apex court for the sake of finality in the law and to preserve public
confidence in the Judiciary, there is no difference in law between a F
judgment delivered by a smaller bench and a judgment delivered by a
larger bench. It is the correctness of the decision that counts and not the
size of the bench, large or small. It has never been the law in Malaysia
that a smaller bench of the apex court cannot depart from the decision
of a larger bench. The appellant was therefore off tangent when he said G
that the decision of a smaller bench that does not follow the decision of
a larger bench in a previous case would be a decision that is given per
incuriam. Although certainty is important, justice would be the
paramount consideration when deciding a case. (paras 168, 170, 172 &
182)
H
(4) The present appeal had become academic by virtue of the fact that the
appellant was no longer being physically detained pursuant to the
remand order issued by the Magistrate under s. 4(1)(a) of the POCA.
The High Court was therefore correct in dismissing the appellant’s
application for the writ of habeas corpus. The court rejected the argument I
that, being a smaller bench of three judges, this panel could not depart
from the decision of the larger bench of five judges in Zaidi Kanapiah on
the academic issue. Such power to depart must be exercised very
[2021] 8 CLJ & Ors 337
A sparingly by this court given the dangerous consequences of the exercise

of such power, but having done so, the court was bound by duty to
depart from Zaidi Kanapiah on the academic issue as there were
compelling enough reasons to render the decision unsustainable. (paras
193 & 194)
B
Per Vernon Ong Lam Kiat FCJ (dissenting):
(1) In a habeas corpus hearing, the burden is on the respondents to show to
the court that the detention is lawful, in that, it complies with all legal,
procedural and constitutional safeguards. In this appeal, however, as in
C
Zaidi Kanapiah, it was not a detention order that was challenged, but a
remand order made by a Magistrate, under s. 4(1) of the POCA. This
was not a challenge against an administrative or ministerial detention
order. This distinction was critical to note. (para 202)
(2) The issues raised by the appellant in the written submission had already
D been adjudicated and decided by this court in Zaidi Kanapiah. This court
held that s. 4 of the POCA is not unconstitutional. The fact of a
supervening detention or remand does not render the habeas corpus
application academic. That the court is required in law to enquire into
the lawfulness of the detention or remand which forms the subject matter
E
of the habeas corpus application. The same can be said for the remaining
two issues on mala fides and abuse of power. This court in Zaidi Kanapiah
had issued writs of habeas corpus on the ground that the respondents
failed to show that the Magistrate had exercised her discretion judicially
to ensure that all legal, procedural and constitutional safeguards have
been complied with. The law on the issues, as laid down by this court
F
in Zaidi Kanapiah, is settled and accordingly, the appeal was allowed and
writ of habeas corpus was issued. (paras 203 & 204)
Bahasa Melayu Headnotes
Perayu ditangkap oleh Suruhanjaya Pencegahan Rasuah Malaysia (‘SPRM’)
G pada 2 Oktober 2020 dan direman dari 3 Oktober 2020 hingga 11 Oktober
2020. Dia dilepaskan atas jaminan SPRM pada 11 Oktober 2020. Pada
27 Oktober 2020, perayu ditangkap polis berkaitan laporan Cheras: 027048-
27049/19 (‘laporan Cheras’) untuk kesalahan bawah s. 4(1)(c) Akta Rumah
Perjudian Terbuka 1953 (‘Akta 1953’). Dia direman dari 27 Oktober 2020
H hingga 29 Oktober 2020 dan, pada 29 Oktober 2020, perayu ditangkap
bawah satu lagi laporan atas kesalahan sama bawah s. 4(1)(c) Akta 1953.
Pada 30 Oktober 2020, perayu ditangkap bawah s. 3(1) Akta Pencegahan
Jenayah 1959 (‘APJ’) oleh responden pertama. Pada 31 Oktober 2020,
responden kedua (‘Majistret’) memerintahkan agar perayu direman untuk 21
hari, dari 31 Oktober 2020 sehingga 20 November 2020, bawah s. 4(1)(a)
I
APJ berdasarkan laporan Cheras. Perayu memfailkan writ habeas corpus pada
3 November 2020 di Mahkamah Tinggi. Pada ketika itu, perayu ditahan
bawah s. 4(1)(a). Permohonan habeas corpus ditetapkan untuk pendengaran
pada 16 November 2020. Walau bagaimanapun, pada 13 November 2020, A

sebelum perintah reman 21 hari (20 November 2020) luput, responden
pertama dan ketiga hadir di hadapan Majistret dan memperoleh satu perintah
agar perayu direman lanjut 38 hari dari 13 November 2020 bawah s. 4(2)(a)
APJ. Apabila permohonan habeas corpus didengar pada 16 November 2020,
responden-responden membangkitkan bantahan awalan atas alasan bahawa B
permohonan writ habeas corpus terhadap penahanan bawah s. 4(1)(a) telah
menjadi akademik disebabkan perintah reman 38 hari bawah s. 4(2)(a) oleh
Majistret. Mahkamah Tinggi, mengekalkan bantahan awalan itu, menolak
permohonan pada hari sama. Tidak berpuas hati, perayu memfailkan rayuan
ini dengan menghujahkan, antara lain: (i) tidak terbuka untuk mahkamah C
apabila habeas corpus dipohon, untuk melayan bantahan awalan atas alasan
bahasa penting per. 5(2) Perlembagaan Persekutuan (‘PP’). Walau apa pun,
penggunaannya tidak berbentuk akademik dari segi undang-undang. Soalan
sebenar dalam habeas corpus adalah sama ada penahanan tersebut sah
(‘isu akademik’); (ii) s. 4 APJ, yang bawahnya penahanan tersebut dibuat,
D
tidak berperlembagaan; (iii) penahanan tersebut terpalit dengan mala fides;
(iv) pelaksanaan kuasa oleh Menteri bawah s. 22 APJ dengan memasukkan
Akta 1953 dalam perkara 5 Jadual Pertama APJ adalah ultra vires semangat
dan niat yang dinyatakan dalam kata mula APJ dibaca bersama-sama dengan
per. 149 PP; (v) kenyataan fakta yang dikemukakan bawah s. 4(1)(a) tidak
menjurus kes perayu dalam rangkuman kata mula APJ; (vi) Majistret gagal E
mematuhi panduan yang dinyatakan oleh Vernon Ong HMP dalam kes
Zaidi Kanapiah v. ASP Khairul Fairoz Rodzuan & Ors And Other Appeals
(‘Zaidi Kanapiah’) dan oleh itu, berlaku ketidakpatuhan prosedur menjadikan
penahanan perayu bawah s. 4(1)(a) tidak sah.
F
Diputuskan (menolak rayuan)
Oleh Zabariah Mohd Yusof HMP (keputusan majoriti):
(1) Perkara 5(2) PP memperuntukkan bahawa apabila seorang individu
ditahan secara tidak sah, dia boleh mengadu ke Mahkamah Tinggi atau
mana-mana Hakim Mahkamah Tinggi dan mahkamah perlu menyiasat G
aduan tersebut. Perkataan operatif dalam peruntukan-peruntukan
tersebut ialah, ‘ditahan secara tidak sah’, ‘ditahan secara salah’ atau
‘ditahan secara tidak wajar’. Apabila seseorang tidak lagi ‘ditahan’ (iaitu,
dia telah dilepaskan bawah perintah tahanan tertentu itu), tidak wujud
isu pengeluaran writ habeas corpus, kerana tiada lagi ‘pihak berkuasa’
H
atau ‘badan’ yang menahannya lagi. Pelepasannya, oleh itu, bukan lagi
menjadi isu, dan mahkamah tiada bidang kuasa menentukan perkara itu
jika seseorang tidak lagi dalam tahanan.
(2) Cabaran oleh perayu adalah atas penahanan bawah s. 4(1) APJ. Walau
bagaimanapun, fakta menunjukkan bahawa, apabila permohonan habeas I
corpus dibawa ke Mahkamah Tinggi pada 13 November 2020, perayu
bukan lagi dalam tahanan bawah s. 4(1)(a). Pada masa itu, dia ditahan
[2021] 8 CLJ & Ors 339
A bawah s. 4(2)(a) selama 38 hari dan perkara penahanan, untuk

penghakiman bawah s. 4(1)(a), tidak lagi wujud. Oleh itu, bantahan
awalan atas permohonan untuk writ habeas corpus terhadap penahanan
perayu bawah s. 4(1)(a) APJ bermerit.
(3) Apabila menentukan kesahan apa-apa perintah tahanan dalam
B
permohonan writ habeas corpus, perkara-perkara berikut perlu dipenuhi,
iaitu: (i) writ habeas corpus mesti diarahkan terhadap penahanan semasa;
dan (ii) untuk menentukan apakah syarat duluan bawah peruntukan
undang-undang berikutan mana perintah penahanan dikeluarkan.
C
(4) Dalam permohonan writ habeas corpus, remedi adalah pelepasan orang
yang ditahan daripada pihak berkuasa yang menahan. Jika dibuktikan
bahawa penahanan orang yang ditahan tidak sah kerana ketidakpatuhan
prosedur syarat-syarat duluan statut yang berkenaan, pelepasan orang
yang ditahan, sememangnya, tidak boleh dihalang. Mungkin juga ada isu
berkaitan lebih daripada satu perintah penahanan dikeluarkan oleh
D
pihak berkuasa menahan yang berlainan untuk tempoh yang berbeza,
serta peruntukan-peruntukan statut yang berlainan yang berkaitannya
perintah penahanan dikeluarkan, yang mana, pertimbangan syarat
duluan yang berlainan diguna pakai. Oleh itu, penting untuk perayu
mengarahkan cabarannya dengan wajar pada perintah tahanan semasa.
E Fakta menunjukkan bahawa, pada hari keputusan, perayu bukan lagi
dalam penahanan bawah s. 4(1)(a), oleh itu, permohonan untuk habeas
corpus untuk penahanan bawah s. 4(1)(a) bukan lagi relevan dan
akademik. Hakim Mahkamah Tinggi tidak terkhilaf dalam hal ini.
(5) Dalam menentukan kesahan penahanan, perkara rujukan pertama
F
adalah keperluan bawah peruntukan s. 4(1)(a) APJ sendiri, iaitu:
(i) pengemukaan pernyataan bertulis; (ii) pernyataan bertulis yang
ditandatangani oleh pegawai polis berpangkat tidak rendah daripada
Inspektor; dan (iii) pernyataan bertulis tersebut mesti menyatakan
terdapat alasan-alasan untuk mempercayai bahawa nama orang tersebut
G patut dicatatkan dalam Daftar.
(6) Pernyataan dalam eksh. KFR-5, afidavit yang diikrarkan oleh responden
pertama, adalah pernyataan bertulis yang ditandatangani oleh pegawai
polis berpangkat tidak rendah daripada Inspektor dan oleh itu, sejajar
dengan keperluan peruntukan bawah s. 4(1)(a) APJ. Penggunaan s. 28A
H Kanun Tatacara Jenayah (‘KTJ’) dibaca bersama-sama dengan s. 4 APJ
juga dipatuhi apabila responden pertama, dalam afidavit, menyatakan
bahawa dia telah memaklumkan sewajarnya pada tahanan, alasan-alasan
penangkapannya. Seksyen 4(1)(a) tidak memerlukan alasan-alasan
terperinci diberikan dalam pernyataan bertulis itu dan juga tidak
I melibatkan pengemukaan apa-apa keterangan. Mencukupi jika
dinyatakan polis mempunyai ‘sebab-sebab untuk mempercayai terdapat
alasan-alasan…’. Oleh itu, perintah reman untuk 21 hari yang
dikeluarkan Majistret pada 31 Oktober 2020, untuk perayu direman dari A

31 Oktober 2020 sehingga 20 November 2020 bawah s. 4(1)(a) APJ,
adalah sah dan mengikut undang-undang.
(7) Prosedur statutori untuk reman diberi selama 38 hari telah dipatuhi.
Responden pertama mengikrarkan tiga afidavit balasan, dan dalamnya
B
dinyatakan dan ditunjukkan bahawa keperluan prosedur s. 4(2)(a)(i) dan
(ii) telah dipatuhi, apabila dia hadir di hadapan Majistret sebelum
tempoh reman 21 hari bawah s. 4(1)(a) luput. Dia mengemukakan pada
Majistret: (i) pernyataan bertulis ditandatangani oleh DPP Yusaini
Ameer menyatakan bahawa, pada pendapatnya, keterangan mencukupi
wujud untuk menjustifikasi siasatan dijalankan bawah s. 9; dan C
(ii) pernyataan bertulis ditandatangani oleh responden pertama
menyatakan bahawa diniatkan untuk siasatan dijalankan dalam kes
perayu bawah s. 9. Oleh itu, tiada ketidakpatuhan prosedur oleh
responden-responden untuk penahanan bawah s. 4(2)(a).
D
(8) Perkara 74(1) PP memberi Parlimen kuasa membuat undang-undang
berkaitan apa-apa perkara yang dinyatakan dalam Senarai Persekutuan
atau Senarai Bersama. Jelas, bidang kuasa dan kuasa mahkamah-
mahkamah (kecuali Mahkamah Syariah) adalah dalam rangkuman
Senarai Kehakiman, Senarai 1 – Senarai Persekutuan dalam Jadual
Kesembilan, yang bermaksud, Parlimen boleh menggubal berkaitan E
bidang kuasa dan kuasa-kuasa mahkamah. Setakat yang berkaitan APJ,
per. 149 PP meletakkan hak pada Parlimen dengan kuasa untuk
menggubal dan memperuntukkan tempoh 21 hari dalam perintah reman
yang diberi oleh Majistret bawah s. 4(1)(a) yang sama. Dengan
memperuntukkan perintah reman, Parlimen tidak mencerobohi kuasa F
mahkamah kerana itu adalah dalam kuasa Parlimen. Tugas mahkamah
adalah mentafsir undang-undang seperti yang diperuntukkan dalam
statut. Oleh itu, s. 4 APJ berperlembagaan.
(9) Niat Parlimen semenjak 1959 adalah agar perjudian haram dimasukkan
sebagai salah satu kategori bawah APJ. Parlimen, dengan bijak, melihat G
keperluan itu lebih 60 tahun dahulu untuk memasukkan perancangan
dan promosi aktiviti-aktiviti perjudian haram disebabkan peningkatan
mendadak aktiviti jenayah yang tidak diingini, mengakibatkan orang
awam hidup dalam ketakutan. Lebih-lebih lagi, dengan kemunculan
teknologi maklumat secara hakiki atau maya di alam siber, perancangan H
dan promosi perjudian haram menjadi lebih canggih dan sukar dikesan.
Seksyen 22 memberi Menteri (sebagai ejen responden ketiga) kuasa
meminda jadual-jadual dalam APJ. Ini adalah kuasa perundangan yang
diwakilkan tetapi itu bukan tanpa batasan. Perenggan 5 Bahagian I
Jadual 1 telah wujud seawal 1959 sejak pengisytiharan APJ. Perkataan I
[2021] 8 CLJ & Ors 341
A ‘habitually’ dipadamkan pada 2014 melalui Perintah Pencegahan

Jenayah (Pindaan Jadual Pertama dan Kedua) 2014, kesemua yang lain
kekal sama. Dengan pemadaman itu, tinggal perenggan 5 yang ada
sekarang.
(10) Maksud ‘keganasan yang dirancang terhadap orang atau harta’ tidak
B
boleh ditafsir secara sempit tetapi dalam konteks keseluruhan skema
APJ. Terdapat kaitan antara perjudian haram dan organisasi jenayah.
Aktiviti perjudian haram dan kesan domino pada masyarakat dan
ketenteraman awam tidak boleh diperkecilkan sama sekali. Tidak
pernah menjadi niat perundangan untuk memasukkan Akta 1953 bawah
C APJ atau memasukkannya dalam Jadual yang sama. Oleh itu, hujahan
bahawa kemasukan perjudian haram dalam Jadual APJ tidak
berperlembagaan, tidak bermerit. Aktiviti-aktiviti perayu dalam
perjudian haram sememangnya menjadi ancaman pada ketenteraman
awam yang menjurus pada masalah sosial dan aktiviti-aktiviti jenayah.
D Oleh itu, pernyataan fakta yang dikemukakan responden pertama di
hadapan Majistret untuk penahanan bawah s. 4(1)(a) adalah dalam ruang
litup skop Jadual Pertama, Bahagian 1, perenggan 5 APJ.
(11) Tiada isu mala fide dalam penangkapan perayu bawah APJ. Penangkapan
dan penahanan perayu bawah SPRM adalah berasingan dan berbeza
E daripada penangkapan dan penahanan bawah APJ. SPRM mempunyai
statut-statut peraturannya sendiri apabila menjalankan siasatan yang
terangkum dalam bidang kuasa mereka seperti Akta SPRM 2009 dan
AMLATFA 2001. Perayu gagal menunjukkan mala fide kerana itu hanya
dakwaan bahawa polis telah menahannya untuk menghalangnya
F daripada mendedahkan maklumat pada SPRM. Selanjutnya, hujahan
orang yang ditahan bahawa penangkapan mereka adalah mala fide tidak
terjumlah pada ketidakpatuhan prosedur.
(12) Dalam permohonan writ habeas corpus, penentuan sama ada penahanan
pencegahan sah atau tidak, bergantung pada apakah keperluan statutori
G bawah Akta mana perayu ditahan dan sama ada terdapat ketidakpatuhan
statutori. Dalam kes ini, itu adalah s. 4(1)(a) APJ. Prosedur
mendapatkan perintah reman bawah KTJ tidak terpakai apabila
melibatkan reman bawah APJ. APJ adalah undang-undang khas yang
berkait dengan reman dengan niat untuk penahanan bawah undang-
H undang pencegahan, sementara KTJ berkait dengan reman bawah
undang-undang menghukum yang berkait dengan reman untuk tujuan
siasatan dengan niat untuk mempertuduh orang yang ditahan. Oleh itu,
prosedur reman bawah KTJ tidak terpakai dalam reman bawah APJ.
I
Oleh Abdul Rahman Sebli HMP (menyokong): A
(1) Kuasa kehakiman tidak pernah disingkir daripada kedua-dua Mahkamah

Tinggi pada bila-bila masa, sama ada sebelum atau selepas pindaan, dan
masih terletak hak pada kedua-dua Mahkamah Tinggi melalui
per. 121(1) PP, yang hadnya kekal sama sebelum dan selepas
B
penyingkiran perkataan-perkataan, iaitu, ‘as provided by federal law’
(sebelum pindaan) dan ‘as conferred by or under federal law’ (selepas
pindaan). Penyingkiran kuasa kehakiman daripada kedua-dua
Mahkamah Tinggi hanya boleh dibuat dengan membuang keseluruhan
per. 121(1) daripada PP, dan bukan hanya dengan membuang beberapa
perkataan daripada fasal tersebut walaupun itu adalah perkataan- C
perkataan penting. Walaupun berbeza, maksudnya sama. Oleh itu,
menyatakan pindaan 1988 telah menyingkir kuasa kehakiman kedua-dua
Mahkamah Tinggi adalah putar belit teruk undang-undang dan fakta.
Sebenarnya, dengan memohon writ habeas corpus daripada Mahkamah
Tinggi, perayu mengiktiraf bahawa Mahkamah Tinggi Malaya D
mempunyai bidang kuasa dan kuasa memberi relief yang dipohon.
(2) Keputusan yang diberi per incuriam adalah keputusan yang gagal
menggunakan peruntukan statutori relevan atau tidak mengendahkan
duluan yang mengikat. Menjadi undang-undang matan bahawa
mahkamah ini mempunyai kuasa untuk menyimpang daripada E
keputusan terdahulu apabila betul untuk berbuat demikian. Hujahan
bahawa s. 4 APJ adalah berperlembagaan tidak mengendahkan fakta
bahawa majoriti dalam kes Zaidi Kanapiah memutuskan sebaliknya.
Perayu dalam kes ini menghendaki mahkamah menyimpang daripada
Zaidi Kanapiah berkaitan keperlembagaan s. 4 APJ, yang keputusan F
tersebut bertentangan dengannya dengan majoriti 3:2, tetapi berkaitan
isu akademik, yang diputuskan berpihak padanya dengan majoriti 4:1,
dia mahukan mahkamah tidak berbuat demikian.
(3) Dalam kes Zaidi Kanapiah, majoriti memutuskan bahawa isu kesahan
penahanan perayu tidak akademik walaupun fakta penahanannya selama G
21 hari dikeluarkan bawah s. 4(1)(a) APJ telah luput pada masa
permohonan writ habeas corpus didengar. Penghakiman minoriti tidak
mempunyai apa-apa kesan undang-undang. Walau bagaimanapun,
walaupun penting untuk mengekalkan kekonsistenan dalam keputusan-
keputusan mahkamah tertinggi semata-mata untuk kemuktamadan H
undang-undang dan mengekalkan keyakinan awam terhadap kehakiman,
tiada perbezaan dari segi undang-undang antara penghakiman yang
diberi oleh sidang hakim lebih kecil dan penghakiman yang diberi oleh
sidang hakim yang lebih besar. Yang penting, keputusan itu betul dan
bukan saiz sidang hakim, besar atau kecil. Bukan undang-undang di I
Malaysia bahawa sidang hakim mahkamah tertinggi yang lebih kecil
tidak boleh menyimpang daripada keputusan sidang yang lebih besar.
Perayu, oleh itu, menyimpang apabila menyatakan bahawa keputusan
[2021] 8 CLJ & Ors 343
A sidang hakim yang lebih kecil yang tidak mengikuti keputusan sidang
lebih besar dalam kes terdahulu adalah keputusan yang diberi per
incuriam. Walaupun kepastian adalah penting, keadilan adalah
pertimbangan utama apabila memutuskan sesuatu kes.
(4) Rayuan ini menjadi akademik berikutan fakta bahawa perayu tidak lagi
B
ditahan secara fizikal menurut perintah reman yang dikeluarkan oleh
Majistret bawah s. 4(1)(a) APJ. Mahkamah Tinggi, oleh itu, betul
apabila menolak permohonan perayu untuk writ habeas corpus.
Mahkamah menolak hujahan bahawa sebagai sidang kecil dengan tiga
hakim, panel ini tidak boleh menyimpang daripada keputusan sidang
C besar lima hakim dalam Zaidi Kanapiah atas isu akademik. Kuasa untuk
menyimpang sebegitu perlu dilaksanakan dengan berhati-hati oleh
mahkamah ini kerana bahaya pelaksanaan kuasa sedemikian, tetapi
apabila itu dibuat, mahkamah terikat dengan kewajipan untuk
menyimpang daripada Zaidi Kanapiah atas isu akademik kerana terdapat
D sebab mendesak yang mencukupi untuk menjadikan keputusan itu tidak
boleh dikekalkan.
Oleh Vernon Ong Lam Kiat HMP (menentang):
(1) Dalam perbicaraan habeas corpus, beban terletak pada responden-
E
responden untuk menunjukkan pada mahkamah bahawa penahanan
adalah sah, iaitu, mematuhi kesemua perlindungan undang-undang,
prosedur dan perlembagaan. Walau bagaimanapun, dalam rayuan ini,
seperti dalam Zaidi Kanapiah, bukan perintah penahanan yang dicabar,
tetapi perintah reman yang dibuat oleh Majistret, bawah s. 4(1)(a) APJ.
Ini bukan cabaran terhadap perintah penahanan pentadbiran atau
F
Menteri. Perbezaan ini perlu diteliti secara kritikal.
(2) Isu-isu yang dibangkitkan oleh perayu dalam hujahan bertulis telah pun
dihakimi dan diputuskan oleh mahkamah ini dalam Zaidi Kanapiah.
Mahkamah ini memutuskan bahawa s. 4 APJ tidak berperlembagaan.
Fakta wujudnya penahanan atau reman tidak menjadikan permohonan
G
habeas corpus akademik. Mahkamah ini diperlukan dari segi undang-
undang untuk menyiasat tentang kesahan penahanan atau reman yang
membentuk perkara permohonan. Perkara yang sama boleh dikatakan
terhadap dua isu lagi berkaitan mala fides dan penyalahgunaan kuasa.
Mahkamah ini dalam Zaidi Kanapiah telah mengeluarkan writ habeas
H corpus atas alasan responden-responden gagal menunjukkan bahawa
Majistret telah melaksanakan budi bicaranya secara kehakiman untuk
memastikan kesemua perlindungan undang-undang, prosedur dan
perlembagaan telah dipatuhi. Undang-undang berkaitan isu-isu yang
dikemukakan di mahkamah ini dalam Zaidi Kanapiah adalah matan dan
I dengan itu, rayuan ini dibenarkan dan writ habeas corpus dikeluarkan.
Case(s) referred to: A

A.R. Antulay v. R.S. Nayak And Another [1988] 1 MLJ (Crl) 501 (refd)
Abdul Razak Baharudin & Ors v. Ketua Polis Negara & Ors And Another Appeal [2005]
4 CLJ 445 FC (refd)
Ahmad Saidi Md Isa v. Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia & Ors
[2006] 1 CLJ 977 CA (refd)
Alma Nudo Atenza v. PP & Another Appeal [2019] 5 CLJ 780 FC (dist) B
Anderton v. Ryan [1985] 2 All ER 355 (refd)
Arulpragasan Sundaraju v. PP [1996] 4 CLJ 597 FC (refd)
Asia Pacific Higher Learning Sdn Bhd v. Majlis Perubatan Malaysia & Anor [2020]
3 CLJ 153 FC (refd)
Cheow Siong Chin v. Menteri Dalam Negeri, Malaysia & Ors [1985] 1 CLJ 229; [1985]
C
CLJ (Rep) 59 SC (refd)
Conway v. Rimmer [1968] AC 919 (refd)
Dalip Bhagwan Singh v. PP [1997] 4 CLJ 645 FC (refd)
Duncan v. Cammell, Laird & Co Ltd [1942] 1 All ER 58 (refd)
Esso Petroleum Co Ltd v. Harper’s Garage (Stourport) Ltd [1967] 1 All ER 699 (refd)
Fuller v. AG of Belize [2011] 79 WIR 173 (refd) D
Gibson v. Government of the United States of America [2007] 1 WLR 2367; [2007] UKPC
52 (refd)
Huddersfield Police Authority v. Watson [1947] 2 All ER 193 (refd)
Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals
[2018] 3 CLJ 145 FC (dist)
JRI Resources Sdn Bhd v. Kuwait Finance House (Malaysia) Bhd; President Of Association E
Of Islamic Banking Institutions Malaysia & Anor (Interveners) [2019] 5 CLJ 569 FC (dist)
Kam Teck Soon v. Timbalan Menteri Dalam Negeri, Malaysia & Ors And Other Appeals
[2003] 1 CLJ 225 FC (refd)
Kanyu Sayal v. District Magistrate, Darjeeling AIR 1974 SC 510 (refd)
Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 FC (refd)
Koh Yoke Koon v. Minister For Home Affairs, Malaysia & Anor [1987] 1 LNS 67 HC (refd) F
Kumpulan Perangsang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11 SC (refd)
L Rajanderan R Letchumanan v. Timbalan Menteri Dalam Negeri Malaysia & Ors [2010]
7 CLJ 653 FC (refd)
Lee Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914
FC (refd)
Letitia Bosman v. PP & Other Appeals [2020] 8 CLJ 147 FC (refd) G
Loh Kooi Choon v. Government of Malaysia [1975] 1 LNS 90 FC (refd)
Manoharan Malayalam & Yang Lain lwn. Menteri Keselamatan Dalam Negeri Malaysia
& Satu Lagi [2009] 4 CLJ 679 FC (refd)
Maria Chin Abdullah v. Ketua Pengarah Imigresen & Anor [2021] 2 CLJ 579 FC (refd)
Mohamad Ezam Mohd Noor v. Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309
FC (ovrd) H
Mohd Faizal Haris v. Timbalan Menteri Dalam Negeri Malaysia & Ors [2005] 4 CLJ
613 FC (refd)
Morelle Ltd v. Wakeling [1955] 2 QB 379 (refd)
Muhammad Jailani Kasim v. Timbalan Menteri Keselamatan Dalam Negeri, Malaysia
& Ors [2006] 4 CLJ 687 FC (dist)
I
[2021] 8 CLJ & Ors 345
A Ong Ah Chuan v. PP [1980] 1 LNS 181 PC (refd)

Ostime v. Australian Mutual Provident Society [1960] AC 459 (refd)
Pengarah Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd
[1978] 1 LNS 143 FC (refd)
Peninsula Securities Ltd v. Dunnes Stores (Bangor) Ltd [2020] UKSC 36 (refd)
Phang Chin Hock v. PP [1979] 1 LNS 67 FC (refd)
B PP v. Chew Siew Luan [1982] CLJ 354; [1982] CLJ (Rep) 285 FC (refd)
PP v. Chu Beow Hin [1982] CLJ 110; [1982] CLJ (Rep) 288 FC (refd)
PP v. Ismail Yusof [1979] 1 LNS 75 FC (refd)
PP v. Kok Wah Kuan [2007] 6 CLJ 341 FC (refd)
PP v. Lau Kee Hoo [1983] 1 CLJ 21; [1983] CLJ (Rep) 336 FC (refd)
PP v. Ooi Khai Chin & Anor [1978] 1 LNS 161 FC (refd)
C
R v. Shivpuri [1986] 2 All ER 334 (refd)
Re Application Of Tan Boon Liat @ Allen; Tan Boon Liat v. Menteri Hal Ehwal Dalam
Negeri, Malaysia & Ors [1976] 1 LNS 126 HC (refd)
Re Onkar Shrian [1969] 1 LNS 155 HC (refd)
Reg v. National Insurance Commissioner, Ex parte Hudson [1972] AC 944 (refd)
D
Rovin Joty Kodeeswaran v. Lembaga Pencegahan Jenayah & Ors And Other Appeals
[2021] 4 CLJ 1 FC (refd)
Sejahratul Dursina v. Kerajaan Malaysia & Ors [2006] 1 CLJ 593 FC (refd)
Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case [2017]
5 CLJ 526 FC (dist)
Siddharam Satlingappa Mhetre v. State of Maharashtra [2011] 1 SC 694 (refd)
E Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 FC (refd)
Tan Sri Raja Khalid Raja Harun v. The Inspector-General Of Police [1987] 2 CLJ 470;
[1987] CLJ (Rep) 1014 HC (refd)
Tan Ying Hong v. Tan Sian San & Ors [2010] 2 CLJ 269 FC (refd)
Theresa Lim Chin Chin & Ors v. Inspector General Of Police [1988] 1 LNS 132 SC (dist)
Thomas John Bernado v. Ford [1982] AC 326 (refd)
F Timbalan Menteri Keselamatan Dalam Negeri Malaysia & Ors v. Arasa Kumaran [2006]
4 CLJ 847 FC (refd)
Vacher & Sons Ltd v. London Society of Compositors [1913] AC 107 (refd)
Yong Tshu Khin & Anor v. Dahan Cipta Sdn Bhd & Anor And Other Applications [2021]
1 CLJ 631 FC (refd)
Zaidi Kanapiah v. ASP Khairul Fairoz Rodzuan & Ors And Other Appeals [2021] 5 CLJ
G 581 FC (refd)
Legislation referred to:
Common Gaming Houses Act 1953, ss. 4(1)(c), 27
Courts of Judicature Act 1964, s. 66
Criminal Procedure Code, ss. 28A, 365, 366
H Dangerous Drugs (Special Preventive Measures) Act 1985, ss. 3(1), (2)(a), (b), (c),
5, 6(1)(a), 16
Dangerous Drugs Act 1952, s. 39B(2)
Emergency (Public Order and Prevention of Crime) Ordinance 5, 1969, ss. 3(1),
4(1), 7C(1), 7D(c)
Federal Constitution, arts. 4(1), 5(1), (2), 74(1), 121(1), 128, 149(1)(f), 151(3), 159,
I Ninth Schedule List I item 4
Internal Security Act 1960 (repealed), ss. 8(1), 16, 57(1), 73(1)(a), (b) A
Interpretation Acts 1948 and 1967, s. 35
Legal Profession Act 1976, s. 46A(1)
Prevention of Crime Act 1959, ss. 3(1), 4(1)(a), (2)(a)(i), (ii), 9, 22, First Schedule
Part 1 item 5
For the appellant - Gopal Sri Ram, Gobind Singh Deo, Jacky Loi Yap Loong, Yasmeen B
Soh Sha-Nisse, Peter Siew, Jin Wen, Maneesha Kaur & Mannvir Singh; M/s TY Teh
& Partners
For the respondent - Farah Ezlin Yusop Khan, Muhammad Sinti & Nur Jihan Mohd
Azman; SFCs
[Editor’s note: Appeal from High Court, Kuala Lumpur; Criminal Application No: WA-44-216- C
11-2020 (affirmed).]
Reported by S Barathi
JUDGMENT
D
Zabariah Mohd Yusof FCJ (majority):
Background
[1] The appeal herein is against the decision of the High Court which had
dismissed the application by Goh Leong Yong (the appellant) for the writ of
E
habeas corpus against the detention of the appellant under s. 4(1)(a) of
Prevention of Crime Act 1959 (POCA).
[2] The appellant was arrested by the Malaysian Anti-Corruption
Commission (MACC) on 2 October 2020. He was held under remand from
3 October 2020 until 11 October 2020. He was released on MACC bail on F
11 October 2020.
[3] On 27 October 2020, the appellant was arrested by the police in
relation to Cheras Report: 027048-27049/19 for an alleged offence under
s. 4(1)(c) of the Common Gaming Houses Act 1953 (CGHA). He was under
remand from 27 October 2020 until 29 October 2020. G
[4] On 29 October 2020, the appellant was arrested under another report
for the same alleged offence under s. 4(1)(c) of the CGHA, by the
investigating officer (IO), Inspector Faizal bin Anuar.
[5] On 30 October 2020, the appellant was arrested under s. 3(1) of POCA H
by the first respondent. On 31 October 2020, the second respondent ordered
the appellant to be remanded for 21 days from 31 October 2020 until
20 November 2020 under s. 4(1)(a) of POCA. The remand order dated
31 October 2020 under s. 4(1)(a) of POCA was ordered by the second
respondent based on 2019 Cheras report.
I
[2021] 8 CLJ & Ors 347
A At The High Court

[6] The appellant filed for writ of habeas corpus on 3 November 2020. At
that point in time, the appellant was detained under s. 4(1)(a). The return date
as can be seen on the notice of motion in the High Court was on
9 November 2020.
B
[7] The habeas corpus application was fixed for hearing on 16 November
2020. However, on 13 November 2020, before the expiry of 21 days remand
order (20 November 2020), the first and third respondents appeared before
the second respondent and obtained an order for the appellant to be
C
remanded for a further 38 days from 13 November 2020 under s. 4(2)(a) of
POCA.
[8] When the application for habeas corpus came up for hearing on
16 November 2020, counsel for the respondents took a preliminary objection
on the ground that the application for the writ of habeas corpus against the
D detention under s. 4(1)(a) had been rendered academic by reason of 38 days
remand order under s. 4(2)(a) granted by the Magistrate. The High Court in
upholding the preliminary objection, dismissed the application on the same
day based on the following reasons:
(i) The application for the writ of habeas corpus against the detention under
E s. 4(1)(a) dated 31 October 2020, has been rendered academic by reason
of the order by the second respondent under s. 4(2)(a) dated
13 November 2020, and hence the detention order under s. 4(1)(a) is no
longer a live issue;
(ii) The order by the second respondent on 13 November 2020 for the
F appellant to be remanded under s. 4(2)(a), effectively ended the earlier
order dated 31 October 2020. Based on this sequent of events, the court
was of the opinion that the challenge by the appellant against the
detention order dated 31 October 2020 under s. 4(1)(a) was no longer
relevant and had become academic;
G
(iii) Based on the authorities of, inter alia, the case of Ahmad Saidi Md Isa
v. Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia & Ors [2006] 1 CLJ
977, the High Court held that the subject matter of the appeal was the
validity of the first detention under s. 4(1)(a) which had lapsed by the
time the second detention order issued against the detenu under
H s. 4(2)(a). As the detention order under s. 4(1)(a) has ended, there was
no longer a valid lis before the court for adjudication. Any views which
the court may express about the validity or otherwise of the said order
under s. 4(1)(a) would be wholly academic, given the current order then,
was under s. 4(2)(a).
I
(iv) Reliance on the ratio in the case of L Rajanderan R Letchumanan A

v. Timbalan Menteri Dalam Negeri Malaysia & Ors [2010] 7 CLJ 653, at
p. 660 where the Federal Court said:
The cases referred to above illustrate the principles upon which the
courts will consider in allowing for judicial review on an executive
detention. It may be stated this way. A writ of Habeas Corpus must B
be directed only against the current detention order even if the
earlier arrest of the detainee is irregular ...
(v) Hence, the application for the writ of habeas corpus was dismissed as the
application for the writ of habeas corpus for the detention under s. 4(1)(a)
has been rendered academic. C
At The Federal Court

[9] Dissatisfied with the decision, the appellant lodged this appeal to the
Federal Court. Before us, counsel for the appellant advances the following
submissions in support of his appeal: D
(i) It is not open to a court moved for habeas corpus to entertain preliminary
objections by reason of the imperative language of art. 5(2) of the
Federal Constitution (FC). In any event, the application was not
academic as a matter of law. The real question in habeas corpus is
whether the detention is lawful (Mohamad Ezam Mohd Noor v. Ketua Polis E
Negara & Other Appeals [2002] 4 CLJ 309; [2002] 4 MLJ 449)
(the academic point);
(ii) Section 4 of POCA under which the detention was made is
unconstitutional;
F
(iii) The detention was tainted with mala fides;
(iv) The exercise of the Minister of his power under s. 22 of POCA by
including the Common Gaming Houses Act 1953 (CGHA) in item 5 of
the First Schedule to POCA is ultra vires the spirit and intendment as
expressed in the recitals to POCA read with art. 149 FC; G
(v) The statement of facts delivered under s. 4(1)(a) does not bring the
appellant’s case within the recitals of POCA;
(vi) The Magistrate failed to adhere to the guidelines as stated by learned
Vernon Ong FCJ in Zaidi Kanapiah v. ASP Khairul Fairoz Rodzuan & Ors H
And Other Appeals [2021] 5 CLJ 581 and hence there has been procedural
non compliance which renders the detention of the appellant under
s. 4(1)(a) as unlawful.
I
[2021] 8 CLJ & Ors 349
A Decision
The Academic Point
[10] The argument pertaining to the “academic point” stems from the
decision of the High Court which held that, the challenge on the remand
B order under s. 4(1)(a) of POCA is academic on 16 November 2021, as on that
date, the detention of the appellant under the said section has lapsed. Before
the expiry of the detention of 21 days under s. 4(1)(a) of POCA, the appellant
was detained under s. 4(2)(a) of the same for 38 days. Hence the High Court
was of the view that the application had been rendered academic by reason
C
of the second detention order and the first detention under the remand order
for 21 days is no longer a live issue.
[11] Article 5(2) of the FC provides that where an individual who has been
unlawfully detained, he may complaint to the High Court or any judge of the
High Court and the court must investigate into the complaint.
D [12] In this regard, s. 365 of the Criminal Procedure Code provides that:
365. The High Court may whenever it thinks fit direct-
(a) That any person who:
(i) is detained in any prison within the limits of Malaysia on a
E warrant of extradition whether under the Extradition Act 1992
(Act 479); or
(ii) is alleged to be illegally or improperly detained in public or
private custody within the limits of Malaysia,
be set at liberty;
F
(b) That any defendant in custody under a writ of attachment be
brought before the Court to be dealt with according to law.
(emphasis added)
[13] The form of application is provided for in s. 366 which provides as
G follows:
366. Every application to bring up before the Court a person detained on
a warrant of extradition or alleged to be illegally or improperly detained
in custody shall be supported by affidavit stating where and by whom the
person detained and, so far as they are known, the facts relating to the
H detention, with the object of satisfying the Court that there is probable
ground for supposing that the person is detained against his will and
without just cause. (emphasis added)
[14] The operative words in the aforesaid provisions are, “unlawfully
detained”, “illegally detained” or “improperly detained”. Writ of habeas
I corpus is only available to a person who is being physically detained
unlawfully (Thomas John Bernado v. Ford [1982] AC 326). In an application
for a writ of habeas corpus, the remedy is for the release of the persons A
unlawfully detained, and nothing else. When a person is no longer
“detained” (ie, he has already been released under that particular detention
order), there is no issue of the writ of habeas corpus to be issued, as there is
no “authority” or “body” that detained him any longer. His release is
therefore no longer an issue. A writ of habeas corpus has to be addressed to B
the person or authority having actual physical custody of the person alleged
to be detained illegally. It is used primarily to secure the release of a person
detained unlawfully or without legal justification. The court does not have
jurisdiction to determine the matter if a person is no longer detained. Support
for this proposition can be found in Re Onkar Shrian [1969] 1 LNS 155; C
[1970] 1 MLJ 28 where the court held that:
Where the personal freedom of an individual is wrongly interfered with
by another, the release of the former from illegal detention may be
effected by habeas corpus. The illegal detention of a subject, that is a
detention or imprisonment which is incapable of legal justification, is the
D
basis of jurisdiction in habeas corpus. (emphasis added)
[15] The ratio in Re Onkar Shrian (supra), was adopted in subsequent
landmark cases of this court in preventive detention, as in Kerajaan Malaysia
& Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 where Steve Shim CJSS at p. 89
said that: E
It is trite law that the remedy of habeas corpus is intended to facilitate the
release of persons actually detained in unlawful custody. It is the fact of
detention which gives the court its jurisdiction. (emphasis added)
[16] Abdul Hamid Mohammad FCJ (as he then was), in Sejahratul Dursina
v. Kerajaan Malaysia & Ors [2006] 1 CLJ 593, agreed with the views as F
expressed by Steve Shim FCJ in Nasharuddin Nasir (supra) and referred to
s. 365 of the CPC and art. 5(2) of the FC in which His Lordship said:
[15] Under both provisions, only one remedy is provided ie, to set the
detainee at liberty or to release him which actually means the same thing.
Indeed, that is what habeas corpus is about: to release a person who is being G
detained “illegally or improperly”, to quote the words of s. 365(a)(ii) of
the CPC. The person must be under detention. Only then can he be
released if the detention is found to be illegal or improper.
(emphasis added)
[17] The challenge by the appellant in the present appeal is on the detention H
under s. 4(1)(a) of POCA where the facts show that when the application for
habeas corpus was brought before the High Court on 13 November 2020, the
appellant was no longer detained under s. 4(1)(a) of the same. By then, he
was detained under s. 4(2)(a) for 38 days. Hence, the subject of detention
(or the lis), for adjudication under s. 4(1)(a), no longer exists. I
[2021] 8 CLJ & Ors 351
A [18] The principle established in Mohd Faizal Haris v. Timbalan Menteri

Dalam Negeri Malaysia & Ors [2005] 4 CLJ 613 and L Rajanderan
R Letchumanan v. Timbalan Menteri Dalam Negeri [2010] 7 CLJ 653; [2018]
Supp MLJ 393, is that a writ of habeas corpus must be directed against the
current order of detention. Following that, in the determination of whether
B a detention is unlawful, the court must consider whether there has been a
procedural non-compliance of statutory condition precedent for the current
detention. Given that:
(i) the condition precedent under the law pursuant to which the detention
is made may vary according to the law under which the detention was
C made; and
(ii) the only remedy for an application for habeas corpus is for the release of
the detainee under detention,
it follows that the application for the writ of habeas corpus must be directed
D to the current detention order. If the detainee is no longer detained under the
provision in which the application for habeas corpus was made, then the
application is rendered academic, because there is no body to be released.
Consequently, such application is rendered academic.
[19] Counsel for the appellant submitted that the ratio on the academic
E point in L Rajanderan R Letchumanan v. Timbalan Menteri Dalam Negeri [2010]
7 CLJ 653; [2018] Supp MLJ 393 and Mohd Faizal Haris v. Timbalan Menteri
Dalam Negeri Malaysia & Ors [2005] 4 CLJ 613 is no longer applicable, in
view of the decision in Mohamad Ezam & Anor v. Ketua Polis Negara [2001]
4 CLJ 701. This was also the view expressed by the majority (on the
F academic point) in Zaidi Kanapiah (supra), where four out of the five judges
were unanimous on the academic point, in that, the fact that the earlier
detention under s. 4(1)(a) of POCA for 21 days has ended, does not render
the challenge on such detention as being academic, despite it has been
superseded by another detention order under s. 4(2)(a) of POCA. It was held
as a live issue despite the 21 days detention has lapsed and the detenu was
G
being detained under s. 4(2)(a) for 38 days.
[20] Counsel for the appellant further urged this court to depart from
Mohamad Faizal Haris (supra), L Rajanderan R Letchumanan (supra), and to
adopt Mohamad Ezam (supra), in determining the academic point. In this
H regard, it is pertinent to see the rationale why Mohd Faizal Haris (supra),
established the general rule that the challenge in an application for a habeas
corpus hearing must be directed at the current preventive order.
[21] The dominant issue in Mohd Faizal Haris (supra), is whether a valid
detention order made against a person under s. 6(1) of the Dangerous Drugs
I (Special Preventive Measures) Act 1985 (the Act) can be vitiated by
irregularities in his arrest and detention under s. 3 of the Act. To appreciate
the argument, one needs to look at the statutory requirements of the Act in
determining whether there has been procedural non-compliance of statutory A

requirement for the detention to be unlawful, which had been explained
extensively in Mohd Faizal Haris (supra), which I can do no better but to
reproduce hereinbelow:
Under s. 3(2)(a) there is no authorisation required to detain the person
arrested under s. 3(1) for the first 24 hours. A detention for the next 24 B
hours requires the authority of a police officer of or above the rank of an
Inspector. After the expiry of the 48 hours, the authority of or above the
rank of Assistant Superintendent of Police is required under s. 3(2)(b) if
the person detained is to be detained any further for a period not
exceeding 14 days. Section 3(2)(c) is in two parts. The first part relates to
C
the detention of a person beyond the 14-day period authorised under
s. 3(2)(b). It cannot exceed 60 days from the date of the initial arrest. The
authority for detention for this period requires a report by a police officer
of or above the rank of Deputy Superintendent of Police to the Inspector
General or to a police officer designated by the Inspector General of the
circumstances of the arrest and detention. The second part requires the
D
Inspector General or the police officer so designated to further report the
same to the Minister. There is no stipulation that this report must be
made within the 14-day period as suggested in Tan Yap Seng v. Ketua Polis
Negara & Ors [1991] 2 CLJ 1400; [1991] 4 CLJ (Rep) 118 ... but there must
be evidence of the actual date it was made in order to determine whether
it was done so ‘forthwith’ as required by s. 3(2)(c). It must be observed E
that as the detention under s. 3(2)(b) shall not be “.... more than forty
eight hours ...” and under s. 3(2) for not “... more than fourteen days...”
with the maximum having been prescribed they have in contemplation a
period of detention which is specific. The authority for detention must
specify the precise period of days, not exceeding the permissible
maximum, for which detention has been authorised. This is significant in F
order to ensure that a person is not detained unnecessarily.
The facts of the case as enunciated earlier reveal that there has been non-compliance
with the requirements of s. 3(2)(a), (b) and (c). There is no evidence on record
to show compliance with s. 3(2)(a) in that there is nothing to indicate that
a police officer of or above the rank of inspector had authorised the G
detention of the appellant for more than 24 hours. The authority to detain
the appellant under s. 3(2)(b) and (c) is general. With regard to the
detention under s. 3(2)(b) it is for a period “melebihi 48 jam ...” and in
respect of s. 2(c) it is for a period “melebihi 14 hari ...”. They do not specify
the precise period of days for which the appellant is to be detained under
the two provisions. It follows that there have been procedural irregularities in the H
detention of the appellant prior to the issue of the detention order under s. 6(1) by
the Minister. This raises the question of whether the irregularities vitiate the subsequent
regular detention order issued by the Minister. (emphasis added)
It was further held in Mohd Faizal Haris (supra), that:
[5] It is only when the wording of a statute requires a proper arrest as a I
condition precedent to the making of a subsequent detention order can
a person make a valid complaint of the detention.
[2021] 8 CLJ & Ors 353
A At p. 628 of the report:

... Thus even if the report of investigation was prepared as a result of an
illegal arrest the weight to be attached to it is a matter exclusively within
the purview of the Minister. The court will not be concerned with the use
of the report of investigation by the Minister. The consideration of a
B statement made by an illegally detained person cannot therefore be
prohibited. The result is that the legality of the detention of a person
under s. 3(2) is not a condition precedent to the making of a detention
order against him under s. 6(1).
The corollary is that a detention order can be made against a person
C
under s. 6(1) even when his detention under s. 3(2) was irregular. The
general rule that a writ of habeas corpus must be directed against the current
order of detention therefore applies where the detention under s. 6(1) has
been made subsequent to an arrest and detention under s. 3(1) and (2).
It follows that where a detention order has been made under s. 6(1) the
writ of habeas corpus must be directed only against that order even if the
D earlier arrest and detention is irregular. This view is supported by Barnado
v. Ford [1892] AC 326 where Lord Halsbury said that he could not agree
to the proposition that if a court is satisfied that illegal detention has
ceased before application for the writ has been made, nevertheless the writ
might issue in order to vindicate the authority of the court against a
person who has once, though not at the time of the issue of the writ,
E unlawfully detained another or wrongfully parted with the custody of
another.
[22] Given the general rule and principle established by Mohd Faizal Haris
(supra), in determining the legality of any detention order in an application
for the writ of habeas corpus, the following must be fulfilled, namely:
F
(i) that the writ of habeas corpus must be directed against the current order
of detention; and
(ii) to determine what is the condition precedent under the provision of the
law pursuant to which the detention order was issued.
G In Mohd Faizal Harris (supra) the “current” detention order (then) was under
s. 6 of the Act. Despite the non-compliance of procedural requirements
under s. 3(2)(a), (b) and (c) of the Act, it was held that, as the wording of the
statute under s. 6(1) of the Act did not require a proper arrest as a condition
precedent to the making of a subsequent detention order under s. 6(1), the
H appellant cannot make a valid complaint of the detention under s. 6(1). The
court held further:
[6] The precondition to the exercise of jurisdiction under s. 6(1) is, inter alia,
only a consideration of the report of investigation. There is no stipulation
in s. 6(1) that it must be the result of a valid detention. The report of
I investigation therefore has no direct link with the detention. It can still be
considered by the Minister even if it contains a statement from a person
whose detention under s. 3(1) is irregular. This is because just as in the A

case of the use of illegally obtained evidence subject to the weight to be
attached to it.
[7] ... the result is that the legality of the detention of a person under
s. 3(2) is not a condition precedent to the making of a detention order against him
under s. 6(1). A detention order can be made against a person under s. 6(1) B
even when his detention under s. 3(2) was irregular.
[8] Generally a writ of habeas corpus must be directed against the current order of
detention even when the earlier arrest is irregular. It follows that where a detention
order has been made under s. 6(1) the writ of habeas corpus must be directed only
against that order even if the earlier arrest and detention are irregular. Thus any
C
irregularity in a detention order made under s. 3(2) when it had been superseded
by one under s. 6(1) is not a relevant matter for consideration. A prior illegality which
has ceased cannot be the subject of inquiry.
[9] By reason of the foregoing the prior irregularities in the detention of
the appellant under s. 3(2) were not relevant to a consideration of the
legality of the detention order made under s. 6(1). The detention order D
made against the appellant under s. 6(1) was regular. (emphasis added)
[23] In Mohd Faizal Haris (supra), the precondition to the exercise of the
Minister’s power to order a detention under s. 6(1) of the Act was merely
to consider the reports of investigation made by the police and the inquiry
officer and there was no necessity to explain the sequence of events that had E
transpired prior to the making of the order.
[24] Still on the academic point, as early as 2010, this court in
L Rajanderan R Letchumanan v. Timbalan Menteri Dalam Negeri [2010] 7 CLJ
653; [2018] Supp MLJ 393 was urged to depart from Mohd Faizal Haris
F
(supra), to which was refused for the following reasons:
[9] ... A writ of habeas corpus must be directed only against the current
detention order even if the earlier arrest of the detainee is irregular. The
court is also not concerned with the vagueness, sufficiency or relevancy
of the grounds of detention which is the sphere of subjective exercise of
the Minister’s discretion under the various executive detention G
legislations unless mala fide on his part is shown (see Karam Singh v.
Menteri Hal Ehwal Dalam Negeri [1969] 1 LNS 65 see also Minister of Home
Affairs, Malaysia & Anor v. Karpal Singh [1988] 3 MLJ 29). Any questions
on the legality or propriety of the arrest or detention of a detainee at the
investigative stage is not a relevant consideration nor is it a pre-condition
H
to the order of detention of the Minister.
[10] Only when statute requires an act to be a condition precedent to the
making of a detention order can a valid complaint made against that
detention. Under the Act there are two conditions precedent for the
Minister to consider before making the detention order. These are found
in s. 6(1) of the Act which states that: I
[2021] 8 CLJ & Ors 355
A 6. Power to order detention and restriction of powers

(1) Whenever the Minister, after considering:
(a) the complete report of investigation submitted under
subsection (3) of s. 3 and
B (b) the report of the Inquiry Officer submitted under subsection

(4) of s. 5,
is satisfied with respect to any person that such person has been or is
associated with any activity relating to or involving the trafficking in
dangerous drugs, the Minister may, if he is satisfied that it is necessary
in the interest of public order that such person be detained, by order
C
(hereinafter referred to as a “detention order”) direct that such person be
detained for a period not exceeding two years.
[11] The scheme under the Act (similarly under POPOC) is that before
a detention order is directed, the police would need to conduct an
investigation which includes the power to detain any suspected persons.
D The manner on conducting the investigations and arrests at this stage, is
neither a condition precedent nor a matter which has a direct link with
the detention order and thus not a ground for judicial review ...
(emphasis added)
[25] This court in L Rajanderan R Letchumanan (supra), held that the
E
academic point is neither new nor novel as it has been considered in Mohd
Faizal Haris (supra), and Timbalan Menteri Keselamatan Dalam Negeri Malaysia
& Ors v. Arasa Kumaran [2006] 4 CLJ 847.
[26] The decisions in Mohd Faizal Haris (supra) & L Rajanderan
F R Letchumanan (supra) are in contrast to the decision in the case of
Muhammad Jailani Kasim v. Timbalan Menteri Keselamatan Dalam Negeri,
Malaysia & Ors [2006] 4 CLJ 687 which is a detention under the Dangerous
Drugs (Special Preventive Measures) Act 1985. However, one must
understand the reason for the decision in Mohammad Jailani Kassim (supra)
and it certainly is not a departure from the ratio in Mohd Faizal Haris (supra).
G
This is “a challenge on the omission of the inquiry officer to adduce any
evidence by way of affidavit to show that an inquiry was conducted by a
proper and qualified inquiry officer to prepare a report under s. 5 of the Act
for the consideration of the Minister. The Federal Court held that it has been
recognised in a number of cases that a procedural requirement may be
H mandatory or directory. A mandatory requirement is one that goes to the
root of the matter and is of direct relevance to the detention order. The
breach of a mandatory requirement will render the detention order invalid
without the need to establish prejudice ... the power of the court to intervene
is limited to only matters of compliance with procedural requirements ...”
I since the report of the inquiry officer is a statutory pre-condition under s. 5
to the exercise of the Minister’s powers of detention under s. 6(1) of the Act,
the failure to produce any evidence to prove that the inquiry officer had A
complied with that requirement under s. 5 or to support “the role that he
played” under that section, is a clear breach of a statutory procedural
requirement and thus subject to judicial review. This is unlike the situation
in Mohd Faizal Haris (supra) as the concern is s. 3. The report of the inquiry
officer under s. 5 in Mohammad Jailani Kassim (supra) was held by the Federal B
Court as a necessary and mandatory pre-condition to the exercise of the
Minister’s power under s. 6(1) of the Act since the law requires the Minister
to consider that report before issuing a detention order. As such, affidavits
need to be filed to answer the allegation that the inquiry officer had not
conducted any investigations. And since there was no explanation from the C
inquiry officer to show the role played by him, the regularity of the current
detention by the Minister was itself subject to judicial review. The defect thus
is not the illegality of the prior detention under s. 3 (as in Mohd Faizal Haris)
that affects the current detention order of the Minister itself.
[27] L Rajanderan R Letchumanan (supra), also held that previous cases such D
as Koh Yoke Koon v. Minister For Home Affairs, Malaysia & Anor [1987] 1 LNS
67, which held that a detention made against a suspect who had been illegally
detained by the police at the investigation stage is subject to judicial review,
was considered as no longer good law since this is not a procedural
non-compliance of a condition precedent to nullify the detention order. E
(see also Lee Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors
[2005] 3 CLJ 914).
[28] This court in L Rajanderan R Letchumanan (supra), reasoned that the
exclusion to produce affidavits of the arresting officer who exercised his
power of detention under s. 3(2)(a) and (b), is not a defect that may vitiate F
the detention order under s. 6, as that is not a condition precedent under the
same.
[29] Given that the only remedy in an application for the writ of habeas
corpus is the release of the detainee from the detention, if the detainee is no
longer under detention, the writ of habeas corpus ought not to issue. From the G
three separate orders given by the judges in Mohamad Ezam (supra), at the end
of the appeal, goes to show that habeas corpus is only available to persons who
are detained. In that case, the second appellant had earlier been released. The
order by Mohamed Dzaiddin CJ that “the appellants be released”, which on
the face of it appears to refer to all the appellants, including the second H
appellant who had since been released from police detention. However, the
order by the learned Chief Justice in using the word “appellants” in Mohamad
Ezam (supra), could not have meant as including the second appellant who had
since been released. Steve Shim CJSS released the appellants only in relation
to the unlawful detention under s. 73(1) ISA but no order as to the detention I
by the Minister under s. 8 ISA, which supports the proposition that an
[2021] 8 CLJ & Ors 357
A application for habeas corpus ought to be directed to the current detention

order. Abdul Malek Ahmad FCJ and Siti Norma Yaakob FCJ, in their
respective orders, specifically referred to the first, third, fourth and fifth
appellants. Both did not order the release of the second appellant.
[30] Four out of the five judges in Zaidi Kanapiah (supra) held that the issue
B
on the validity of the earlier detention under s. 4(1)(a) is not academic,
despite it already lapsed and a fresh detention under s. 4(2)(a) was in force,
at the material time. The effect of the order granted by Vernon Ong FCJ,
Hasnah FCJ and Zaleha Yusof FCJ which ordered the release of the
appellants from the detention under s. 4(1)(a) of POCA is that Their
C Lordships were granting the release of the appellants under the said section
when they were no longer detained under the same. Heavy reliance was
placed on Mohamad Ezam (supra) in support of the academic issue in Zaidi
Kanapiah (supra). Mohamed Ezam concerned the preliminary issues of
whether:
D
(i) the second appellant’s appeal was academic as he had since been
released from police detention; and
(ii) the remaining applications for habeas corpus ought not to have been
directed against the respondent (the Inspector General of Police) but
E
against the Minister of Home Affairs (“the Minister”) because the
appellants were no longer being detained by the respondent under s. 73
ISA but at the behest of the Minister under s. 8(1) ISA.
The panel in Mohamed Ezam decided that the appeal was not academic
without really going into the basis that the application of habeas corpus should
F be directed against the relevant detaining authority at that point in time, ie,
the Minister. However, it is to be noted that Steve Shim CJSS only released
the appellants from the detention under s. 73(1) ISA when His Lordship
made findings that the detention under s. 73(1) ISA was unlawful, but there
were no findings as far as the detention of the appellant by the Minister under
s. 8 ISA is concerned. This is evident from the judgment at p. 345
G
para c-d, which I reproduced below, which essentially and impliedly meant
that the application for habeas corpus ought to be directed against the Minister
and not the police in that case:
For all the reasons stated, I find it appropriate to agree with the learned
H
Chief Justice and my learned brother and sister judges in holding that the
detentions of the appellants by the police under s. 73(1) of the Act are
therefore unlawful. In that context, I agree that the appeals should be allowed and
the appellants released accordingly. However, as the undisputed facts show that the
appellants ie, 1st, 3rd, 4th and 5th appellants have now been detained by order of
the Minister under s. 8 of the Act, the issue of whether or not to grant the writ of
I habeas corpus for their release from current detention does not concern us. That is
a matter of a different exercise. (emphasis added)
[31] This court in L Rajandren R Letchumanan (supra) referred to Mohd A

Faizal Haris (supra), but did not refer to Mohamad Ezam (supra) and did not
address art. 5(2) FC. Mohammad Ezam (supra) referred to, and considered
art. 5(2) FC. Be that as it may, it is to be observed that Mohd Faizal Haris
(supra) was decided after Mohamad Ezam (supra). It is a later decision than
Mohamed Ezam (supra). The panel in Mohd Faizal Haris (supra) considered and B
overruled Mohamad Ezam (supra) and was of the view that the stand taken by
the panel in Mohamad Ezam (supra), is unsustainable, as can be seen from
their judgment which is as follows:
In Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 where it
was held that an order of detention made under s. 8(1) of the ISA 1960 C
is not tainted by an illegality or irregularity in the s. 73 detention. However
the conclusion was reached not on the rationale as discussed in this
judgment but on the principles enunciated in Karam Singh v. Menteri Hal
Ehwal Dalam Negeri Malaysia [1969] 2 MLJ 129. Such an approach would
leave unanswered the effect of procedural irregularities in an earlier
detention which has been superseded by another detention order. Be that D
as it may, that case made it clear that a court has no jurisdiction to hear
a writ filed against the police for irregularities in a detention order under
s. 73(1) ISA when it had been superseded by one under s. 8(1) thereby
bringing sharp focus the propriety of the judgment of this court in Mohd
Ezam. The rational underlying this judgment would, with respect, render
the stand taken in the later case unsustainable. E
[32] The panel of three judges (Dzaiddin CJ, Steve Shim CJSS, Siti Norma
Yaacob, FCJ) in Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ
81 were part of the five panel of judges (Mohd Dzaiddin CJ, Wan Adnan
Ismail PCA, Steve Shim CJSS, Abdul Malek Ahmad FCJ, Siti Norma
F
Yaacob FCJ) in Mohamad Ezam (supra), who had earlier unanimously agreed
with the judgment of Abdul Malek Ahmad FCJ in Mohamad Ezam (supra) on
the academic point. These three panel of judges in Nasharuddin Nasir (supra)
however reversed themselves from their earlier stand in Mohamad Ezam
(supra), when Steve Shim CJSS delivering the FC judgment at p. 90 paras a-
d in Nasharuddin Nasir said that where a person is no longer under detention G
then the issuance of a writ of habeas corpus is an impossibility. The courts
should not hear the application, as the court has no jurisdiction to do so. That
is the situation faced by the court in Nasharuddin Nasir (supra). There the
custody was no longer with the police but had been transferred to the
Minister upon the issuance of a detention order under s. 8 of the ISA. In H
contrast with Mohamed Ezam, despite the custody was no longer with the
police but had been transferred to the Minister upon the issuance of a
detention order under s. 8 of the ISA, the panel there was of the view that
the application is not academic and still was a live issue.
I
[2021] 8 CLJ & Ors 359
A [33] The three panel of judges in Nasharuddin Nasir (supra), held that the
legality or illegality of the detention under s. 73 was irrelevant in
determining the legality or illegality of the detention order by the Minister
under s. 8 (refer to pp. 99-100 of the judgment). To that extent Mohamad
Ezam (supra), has been overruled by Nasharuddin Nasir (supra). I am of the
B view that the position taken by Nasharuddin Nasir (supra), on this issue is the
preferred stand.
[34] In addition, a scrutiny of the judgment of Steve Shim CJSS in
Mohamed Ezam (supra) discloses that the reasons in the determination of the
legality of the detention under s. 73(1) of the ISA is no different from what
C has been posited by Mohd Faizal Harris (supra), ie, for the detention to be
unlawful, the court has to scrutinise the condition precedent for the detention
under the relevant provision. In Mohamed Ezam (supra), His Lordship
disagreed that s. 73(1) ISA and s. 8 of the ISA are inextricably connected,
ie, they are wholly dependent on each other – that there has to be a police
D investigation under s. 73 before the Minister can properly exercise his
discretion to issue a detention order under s. 8 or conversely, that no
detention order under s. 8 can properly be issued by the Minister without
the necessary investigation by the police under s. 73. His Lordship was of
the view that, in the exercise of the Minister’s discretion, he need not
E
necessarily have to consider and rely on police investigation under s. 73.
His Lordship further held that “if it was the intention of Parliament to
impose a mandatory obligation on the part of the Minister to consider the
police investigation under s. 73 ISA before he could issue a detention order
under s. 8 ISA, Parliament would have expressly provided for it as she did
F in the Dangerous Drugs (Preventive Measures) Act 1985”, wherein s. 3(1)
states:
3(1). Any police officer may, without warrant, arrest and detain, for the
purpose of investigation, any person in respect of whom he has reason
to believe there are grounds which could justify his detention under
G subsection (1) of s. 6.
And s. 6(1) states:
Whenever the minister, after considering:
(a) the complete report of the investigation submitted under subsection
(3) of s. 3; and
H
(b) the report of the Inquiry Officer submitted under subsection (4) of
s. 5,
is satisfied with respect to any person that such person has been or is
associated with any activity relating to or involving the trafficking in
I dangerous drugs, the Minister may, if he is satisfied that it is necessary
in the interest of public order that such person be detained, by order
(hereinafter referred to as a “detention order”) direct that such person be
detained for a period not exceeding two years from the date of such
order.
To detain a person under the Dangerous Drugs (Preventive Measures) Act, A

it is a mandatory obligation on the Minister to consider the police
investigations or reports submitted to him. This is evident from s. 6(1)(a) of
the Act. Such similar express provisions are conspicuously absent in s. 8 ISA
or s. 73 of the ISA.
B
[35] Examined in the context stated, Steve Shim CJSS in Mohamed Ezam
(supra) departed from the view expressed in Tan Sri Raja Khalid Raja Harun
v. The Inspector-General Of Police [1987] 2 CLJ 470; [1987] CLJ (Rep) 1014;
and Theresa Lim Chin Chin & Ors v. Inspector General of Police [1988] 1 LNS
132. The latter two cases held that ss. 73(1) and s. 8 of the ISA are so
inextricably connected that the subjective test should be applied to both C
provisions which mean that the court cannot require the police officer to
prove to the court the sufficiency of the reason for his belief under s. 73(1)
and whether or not the allegations in the said report on which the s. 8
detention order was based, were sufficient or relevant, was a matter to be
decided by the Minister. If he was satisfied on a subjective basis that the D
appellant’s activities had threatened national security, it was not open to the
court to examine the sufficiency or relevance of the allegations contained in
the report.
In Mohamed Ezam (supra), which Steve Shim CJSS was of the view that the
objective test is applicable to s. 73(1), His Lordship explained the E
preconditions in s. 73(1), which has to be fulfilled, where the police officer
must have reason to believe:
(i) that there are grounds which would justify detention of the detainee
under s. 8; and
F
(ii) that the detainee has acted or is about to act or is likely to act in any
manner prejudicial to the security of Malaysia or any part thereof or to
the maintenance of essential services therein or to the economic life
thereof.
In the end, His Lordship found that there was sufficient compliance with G
s. 73(1)(a) from the affidavits filed, that at the time of their arrests, the
detainees were told that they were arrested and detained for having acted in
a manner likely to prejudice the security of the country. But as for the
requirements under s. 73(1)(b), it has not been met. Here, the burden is on
the respondent to satisfy the court by way of material evidence that the H
detaining authority had reason to believe that the detainees had acted or were
about to act or were likely to act in a manner prejudicial to the security of
Malaysia. A thorough perusal of the affidavits filed by the respondent finds
them to contain nothing more than bare denials in response to the allegations
contained in the affidavits affirmed by the respective appellants. This is
I
hardly surprising given his reliance on s. 16 of the Act and art. 151(3) of the
Constitution. No particulars have been disclosed in the respondent’s
affidavits to show that the appellants had acted or were about to act or were
[2021] 8 CLJ & Ors 361
A likely to act in any manner prejudicial to the security of Malaysia, etc. In

the circumstances, the requirements under s. 73(1)(b) has not been discharged
by the respondent. Furthermore, the matters disclosed in those affidavits do
not seem to have any bearing on the press statement issued by the Inspector-
General of Police. In effect, the respondent failed to discharge the initial
B burden of satisfying the court as to the jurisdictional threshold requisite under
s. 73(1). Hence His Lordship held that the detention of the appellants by the
police under s. 73(1) of the Act are therefore unlawful.
[36] Thus, from the aforesaid, even in Mohamed Ezam, Steve Shim CJSS
referred to the condition precedent as found in s. 73(1) ISA in deciding on
C the legality of the detention order under the said section.
[37] Counsel for the appellant argued that if the Bench in Nasharuddin Nasir
(supra), wished to alter the view they had unanimously adopted in Mohamad
Ezam (supra), it should have referred the matter to a differently constituted
Bench for argument. I do not see that argument as having any merit. There
D
is no prohibition for a judge to depart from his previous decision when it
appears legally right to do so, although as a matter of policy such exercise
ought to be done sparingly. However, too rigid an adherence to precedent
may lead to injustice in a particular case and also unduly restrict the
development of the laws. (Lord Gardiner LC in “Practice Statement (Judicial
E Precedent) 1966”). If the judges found that there was error in law resulting to
injustice, it is indeed the duty of the Federal Court Judge to correct and
ensure justice by departing from the previous decided cases (Azahar
Mohamed CJM in Asia Pacific Higher Learning Sdn Bhd v. Majlis Perubatan
Malaysia & Anor [2020] 3 CLJ 153; [2020] 1 MLRA 653).
F
[38] The majority judgment (on the academic point) in Zaidi Kanapiah
(supra), when addressing the academic point held that:
[215] Ezam when read properly and in context posits the ratio decidendi that
the legality of a detention or detentions must be viewed as a single
overarching transaction. This is because the legality of the detention
G must be addressed at the time the application for habeas corpus was made.
The subsequent release (and by extrapolation the extended detention) in
light of a finding of lawfulness or unlawfulness of the initial detention
renders the entire issue of detention a live matter
...
H
[229] The judgments in Kanyu Sayal and Theresa Lim coherently flow with
the line of reasoning adopted by this court in Ezam. The foregoing
authorities establish the proposition that when a person is detained, the
legality of his detention is to be adjudicated by reference to the date the
application for a writ of habeas corpus is filed. The detaining authorities are
I
not permitted to “shift the goal post” – so to speak – by alleging that
further or subsequent detentions have been made with a view to render
the argument on the impugned detention academic. In other words, the
detaining authority cannot rely on subsequent detentions to circumvent
the illegality of the initial remand or detention under challenge at the time A
of filing of the writ of habeas corpus. Accepting such an argument would
amount to condoning an abuse of the process of the court and would
unduly narrow the interpretation of art. 5(2) – a safeguard of a
fundamental liberty – against settled constitutional cannons of
interpretation. It would also render the safeguard in art. 5(2) illusory.
B
(emphasis added)
[39] I disagree with the proposition that the legality of a detention or
detentions must be viewed as a single overarching transaction. It is
misconceived to say that the detaining authority relies on subsequent
detentions to circumvent the illegality of the initial remand or detention C
under challenge at the time of filing of the writ of habeas corpus. It is trite
principle of law that, in an application for a writ of habeas corpus, the remedy
is the release of the detainee from the detaining authority. If it is proven that
the detention of the detenu is unlawful because of procedural non-compliance
of conditions precedent of the relevant statute, a release of the detenu is, off D
course, inevitable. There may also be the issue of more than one detention
order issued by different detention authorities for different period of time,
not to mention the different provisions of the statute in which the detention
order was issued in which different consideration of condition precedent
applies. Therefore, it is pertinent for the appellant to properly direct his
E
challenge to the current detention order. It is to be observed that Mohamed
Ezam (supra), Nasharuddin Nasir (supra) and Theresa Lim Chin Chin (supra)
concerned detention under s. 8 and s. 73(1). Theresa Lim Chin Chin (supra)
and Re Tan Sri Raja Khalid Raja Harun (supra) held that s. 8 and s. 73(1) are
inextricably connected, which Steve Shim CJSS in Nasharuddin Nasir
disagreed. In Nasharuddin Nasir (supra), His Lordship held that even when the F
detenu was still in custody at the date of the decision but pursuant to an order
of a different authority (ie, the Minister), the court has no jurisdiction to hear
an application for habeas corpus directed at another authority (ie, the police)
which can be seen at p. 90 paras a-d:
... a writ of habeas corpus had to be addressed to the person or authority G
having actual physical custody of the person alleged to be detained
illegally. That, in my view, represents a correct statement of the law. In
a situation where the court finds it impossible to issue the writ because
the person or authority no longer has custody of the detainee, it should
not hear the application. Indeed, it has no jurisdiction to do so. This is
H
precisely the position in the instant case. Here, the facts show that when
the application came up for full argument before the court, the police no
longer had the custody of the respondent. Custody had been transferred
to the Minister upon the issuance of a detention order under s. 8 of the
ISA. In the circumstances, it would have been appropriate for the
I
[2021] 8 CLJ & Ors 363
A respondent to file a fresh notice of motion for a writ against the detention
order issued by the Minister. In the absence of such a motion, the court
had embarked on a misconceived course of action in assuming
jurisdiction.
(See also Sehjaratul Dursina (supra))
B
Hence how can both detentions (under ss. 73(1) and 8 ISA) be considered as
a “single overarching transaction”?
[40] It is to be observed that in Mohamed Ezam, the panel therein did not
explain why they ruled that the detention of the appellant under s. 73(1) ISA
C was a live issue and not academic despite he was no longer detained under
the said section, but by the Minister under s. 8 ISA. This is evident from the
judgment at p. 346:
... the prosecution team, raised two preliminary issues. The first was that
the second appellant, who had been released four days earlier, was no
D
longer a person being restrained of his personal liberty and the second was
that the remaining appellants were then being detained under the powers
of the Minister of Home Affairs (hereinafter “the Minister”) under s. 8(1)
of the Internal Security Act 1960 (hereinafter “the ISA”).
As for the first preliminary objection, he stressed that since the second
appellant had been released, his appeal was no longer a living issue and
E was purely academic. As for the second preliminary objection, he
reiterated that the other four appellants were no longer under police
custody as the Minister had ordered them to be detained under s. 8(1)
of the ISA with effect from 2 June 2001. This undisputed fact makes
mockery, he said, of the fact that the applications for habeas corpus are
directed not against the Minister but against the Inspector General of
F
Police (hereinafter “the IGP”) as the respondent. Since they were no
longer under police custody under s. 73 of the ISA, he added, the appeal
has been rendered academic. The appropriate course of action, he
suggested, was to file a writ of habeas corpus against the Minister.
Reference was made to Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors
G v. Karpal Singh [1992] 1 CLJ 36; [1992] 1 CLJ (Rep) 212 and Re P.E. Long
@ Jimmy & Ors; P.E. Long & Ors. v. Menteri Hal Ehwal Dalam Negeri Malaysia
& Ors [1976] 2 MLJ 133 to buttress his arguments.
In reply, Sulaiman Abdullah for the appellants submitted that as regards
the first issue, the second appellant is facing a High Court order declaring
H his detention to be lawful and should he decide to take civil proceedings,
the parties would remain the same and it could amount to res judicata.
All previous habeas corpus cases had decided that s. 73 and s. 8 of the ISA
were inextricably linked. The Minister, he argued, made the order under
s. 8 based on the police investigations while the appellants were being
detained under s. 73 of the ISA. The validity of the High Court decision
I
was therefore a live issue.
After a short recess, we unanimously held that the issue is still alive in view of the A
finding of the High Court that the detentions of the five appellants are lawful and
decided that there was no merit to the preliminary objections. We accordingly ordered
the appeals to proceed on the next hearing date.
(emphasis added)
B
[41] Further, the majority (on the academic point) in Zaidi Kanapiah (supra),
finds support on the academic point when it referred to the Privy Council
decision in Fuller v. AG of Belize [2011] 79 WIR 173 in stating that habeas
corpus application is not academic merely because the detainees were released
on bail (para 204).
C
[42] That particular passage is not to be taken out of context, as it refers
to the legality of bail which depends on the legality of the detention. The
central issue in the appeal of Fuller v. AG of Belize (supra) relates to the extent
of the jurisdiction of the Supreme Court of Belize on an application for habeas
corpus in an extradition case. One of the features of the case is the fact that
there was inordinate delay which render the application of the extradition an D
abuse of process, which in essence was the basis of the appellant’s application
for habeas corpus.
[43] The application of the habeas corpus was against the backdrop of the
English Extradition Act 1870 which was extended to Belize. The Act
E
provides for a scheme of extradition of a person whose presence is required
in a foreign country to stand trial in respect of a criminal offence for which
he is charged. The detention in Fuller v. AG of Belize (supra), is not pursuant
to a preventive detention under preventive laws. It is detention under
punitive laws. Hence the consideration in the application for habeas corpus
there, was in a different context and is not applicable to our present appeal F
where the application for habeas corpus is circumscribed by the provisions of
POCA which is enacted under art. 149 of the FC. In approaching the present
appeal, the court must be guided by the clear words of the FC and the
provisions of POCA (Theresa Lim Chin Chin (supra)).
G
[44] In any event, firstly, bail is never an issue in preventive detention in
our case. Secondly, this court has established that a person on bail is not
“under custody or physically detained” that would attract the application for
habeas corpus under preventive detention laws. Abdul Hamid Mohammad
FCJ (as he then was), in Sejahratul Dursina (supra), after agreeing with the
views as expressed by Steve Shim FCJ in Nasharuddin Nasir (supra) where His H
Lordship referred to s. 365 of the Criminal Procedure Code and art. 5(2) of
the FC said:
[15] Under both provisions (s. 365 CPC and art 5(2) of the FC), only one
remedy is provided ie, to set the detainee at liberty or to release him which
actually means the same thing. Indeed, that is what habeas corpus is about: I
to release a person who is being detained “illegally or improperly”, to
[2021] 8 CLJ & Ors 365
A quote the words of s. 365(a)(ii) of the CPC. The person must be under
detention. Only then can he be released if the detention is found to be
illegal or improper.
[16] A number of cases were referred to us. I think, the case of Re Onkar
Shrian [1970] 1 MLJ 28, a judgment of the High Court of Singapore is
B very pertinent on this issue. In that case, the applicant was arrested in
Singapore for an offence alleged to have been committed in Kuala
Lumpur, Malaysia. He was produced before a Magistrate in Singapore on
the same day. On the same day, the applicant was released on cash bail
and the proceedings were adjourned to the following day. On the
following day, the applicant appeared in the magistrates Court where the
C deputy Public Prosecutor applied for an order to return the applicant to
Malaysia. The application was opposed by the applicant. The court
adjourned to another date to enable the applicant to apply for habeas
corpus. The applicant applied for an order that the writ of habeas corpus be
issued against the respondent (The Magistrate) to produce the applicant
and thereafter to be released. It must be noted that during the material
D time, ie, when the application was made and heard, the applicant was on
bail and “not in actual custody”.
[17] Choor Singh J dismissed the application on the ground that a person
at large on bail is not detained in custody so as to be entitled to the writ
of habeas corpus which is issued only when the applicant is in illegal
E confinement. (emphasis added)
[45] In like vein, Abdoolcader SCJ in Cheow Siong Chin v. Menteri Dalam
Negeri, Malaysia & Ors [1985] 1 CLJ 229; [1985] CLJ (Rep) 59 held that a
person under restrictive preventive order is not “physically detained,
imprisoned or in custody” and hence it is not of a nature to attract the
F application of the writ of habeas corpus. It was held that “partial custody” is
not the nature of custody envisaged in an application for habeas corpus. It was
suggested by the learned judge that the appellant may seek other remedies.
[46] It was also argued by counsel for the appellant, that the material date
to be considered for the purpose of deciding the legality of an order of
G detention in a habeas corpus application is the return date, which, in this case
is 9 November 2020. The majority (on the academic point) in Zaidi Kanapiah
held at para. [229] that “The judgments in Kanyu Sayal and Theresa Lim Chin
Chin (supra), flow with the line of reasoning adopted by this court in Ezam”
to establish the proposition that when a person is detained, the legality of his
H detention is to be adjudicated by reference to the date the application for a
writ of habeas corpus is filed.
[47] The case of Kanyu Sayal v. District Magistrate, Darjeeling AIR 1974 SC
510 referred to in Zaidi Kanapiah (supra) cited various Indian authorities
which are at odds with each other as to which date is the correct date to be
I taken to determine the legality of the detention of the detainee is to be
adjudicated. This issue as to when the legality of the detention in a habeas A

corpus application is to be adjudicated, has been determined by this court in
Sejahratul Dursina (supra) when it held that:
(2) Although the appellant argued that the material date to be considered
for the purpose of deciding the legality of an order of detention in a habeas
corpus application was not the date of the decision but the date of the B
hearing, there should not, or could not, be a separation of the date of
hearing from the date of the decision. The date fixed for decision fact
forms part of the hearing; the hearing of an application certainly includes
the decision thereof.
[48] The stand taken by Sejahratul Dursina (supra) is the preferred view as C
the court is addressing the application of the writ of habeas corpus on the day
of the decision. The facts of the present appeal show that, on the day of the
decision, the appellant is no longer under detention under s. 4(1)(a), hence
the application for habeas corpus for the detention under s. 4(1)(a) is no longer
relevant and academic. The learned High Court Judge did not err in this D
respect.
[49] It is to be observed that the issue in Theresa Lim Chin Chin (supra) is
not on the legality of detention to be adjudicated by reference to the date the
application for a writ of habeas corpus is filed. The focus in Theresa Lim Chin
Chin (supra) was on the issue of the constitutionality of s. 73 of the Internal E
Security Act 1960 (ISA) as it does not comply with art. 151 of the FC, ie,
the provision for informing a detainee of the grounds of his detention and
allegations of facts constituting the grounds. It was contended by the
appellant therein, that s. 73 is void and as such the arrest and detention of
the appellants are illegal. It was argued by the appellants that the arrest by F
the police under s. 73 is subject to judicial scrutiny especially on the grounds
to justify the detention of the appellant. There it was also argued that, there
are two stages of detention, namely under ss. 73 and 8 of the ISA. The
appellant contended that the prohibition of disclosure of evidence or
information by the authorities premised under s. 16 of the Act was only
G
limited to the detention under s. 8 and not s. 73. Hence impliedly there is
nothing in the provision which prohibits the disclosure of evidence or
information for the arrest under s. 73. However, the court was not persuaded
by such argument and held that the “arrest and detention by the police and
detention pursuant to a ministerial order or further detention after the matter
has been considered by the Advisory Board as one continuous process H
beginning with the initial arrest and detention under s. 73 ... it is within one
scheme of the preventive detention legislation”. Consequently it was held
that s. 16 of the Act encompass detention under ss. 73 and 8 as they are
within one scheme of preventive detention legislation. It was in that context
that Theresa Lim Chin Chin (supra) was decided that the arrest under s. 73 and I
the detention under s. 8 is to be considered as one scheme. This was not in
[2021] 8 CLJ & Ors 367
A the context of the academic point as in the present appeal and neither was
it in the context of the proposition of the legality of detention is to be
adjudicated by reference to the date the application for a writ of habeas corpus
was filed. The findings in Theresa Lim Chin Chin (supra) went on the premise
that s. 8 and s. 73 of the ISA are inextricably linked and consequently s. 16
B of the ISA and art. 151(3) of the Constitution applied which would have the
effect of denying the courts the power to review the detention as they could
not enquire into the evidence which led to the detention.
[50] Based on the aforesaid, Mohd Faizal Haris (supra), L Rajandren R
Letchumanan (supra) are still good law. Steve Shim CJSS’s decision in
C Mohamad Ezam (supra) which held that the detention under s. 73(1) was
unlawful premised on non compliance of s. 73(1) (b) was actually in line with
the ratio in Mohd Faizal Harris, ie, that a detention under any provision of the
law must fulfill the condition precedent for it to be lawful. The three panel
of judges which presided in Mohamed Ezam also presided in Nasharuddin Nasir
D (supra) and their decisions, although following the principles in Karam Singh
(supra) (which held that a court has no jurisdiction to hear a writ filed against
the police for irregularities in a detention order under s. 73(1) ISA when it
had been superseded by one under s. 8(1)), contradicted their decision in
Mohamed Ezam (supra), but in line with that of Mohd Faizal Haris (supra).
E [51] Given the aforesaid, on the academic point, the preliminary objection
on the application for the writ of habeas corpus against the detention of the
appellant under s. 4(1)(a) of POCA by the Senior Federal Counsel has merits.
The issuance of the writ of habeas corpus would not serve any purpose for the
detention under s. 4(1)(a) as it has already ended when it was brought before
F the High Court. Such a challenge has been rendered academic. An
application for a writ of habeas corpus must be directed towards the current
detention order. The principle as enunciated by Mohd Faizal Haris (supra) and
L Rajandren (supra) is still relevant and remain as good law. The learned trial
judge did not err when His Lordship upheld the preliminary objections of the
G
respondent on the academic point.
Whether Section 4 Of POCA Was Complied With In The Detention Of The
Appellant
[52] To determine whether the earlier detention under s. 4(1)(a) was
lawful, the said section is referred to, in order to determine what are the
H statutory requirements that need to be fulfilled before the remand order for
21 days can be granted.
[53] It is the relevant statutory provisions of POCA that lay down the
procedural requirement that must be referred to, by the courts in determining
whether the detention under s. 4(1)(a) of POCA is unlawful. It is not for the
I
courts to create procedural requirement because it is not the function of the
courts to make law/rules. If there is no procedural non compliance, the
detention cannot be unlawful.
[54] In Lee Kew Sang (supra), the appellant was detained under the order by A
the Deputy Minister of Home Affairs. The detention order was pursuant to
s. 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance
5, 1969 (the Ordinance). The appellant applied for the issuance of the writ
of habeas corpus. He contended that the order was invalid on the following
grounds: B
(i) The Deputy Minister failed to consider whether criminal prosecution

ought to be taken against him; and
(ii) The ground of detention was stale and remote in point of law to support
the detention under the Ordinance. C
The application was dismissed at first instance. The appellant appealed to the
Federal Court. At the Federal Court, the panel expressed concerns that
similar cases involving challenges to detention under the Ordinance or any
preventive detention laws were often decided without reference to relevant
statutory provisions with the result that the statutory provisions were not D
given effect. In Lee Kew Sang (supra), it was with regards to the amendments
which was done to the Ordinance where more often than not the amendments
were not given effect to.
[55] The Federal Court held that both grounds forwarded by the appellant
were clearly not within the ambit of the term “procedural non compliance”. E
There does not appear to be any provision in the law or the rules, and neither
was the court shown such a provision that requires the Minister to consider
whether criminal prosecution ought to be taken against the appellant or that
the order must be made within a certain period from the date of the alleged
criminal acts. There has been no procedural requirement, that there can F
never be non-compliance thereof.
[56] The Federal Court held that the grounds are not such that could be
relied on, in an application for habeas corpus by virtue of ss. 7C(1) and 7D(c)
of the Ordinance. On this ground alone, the court in Lee Kew Sang (supra),
held that the application should have been dismissed by the learned trial G
judge.
[57] Coming back to the appeal that is before us, to determine whether the
detention of the detenu under s. 4(1)(a) of POCA was valid, the first point
of reference is the provision of s. 4(1)(a) of POCA itself.
H
[58] There are three requirements which is provided by s. 4(1)(a) of POCA,
namely:
(i) production of a statement in writing;
(ii) the statement in writing is signed by a police officer not below the rank
I
of an inspector;
(iii) the said statement in writing must state that there are grounds for
believing that the name of that person should be entered on the Register.
[2021] 8 CLJ & Ors 369
A [59] In this regard, ASP Khairol Fairoz bin Rodzuan, the first respondent
affirmed an affidavit which is in encl. 15, in which he affirmed that he had
produced a statement in writing by a police officer by the rank of an ASP
which states that there are grounds for believing that the name of the
appellant should be entered on the Register, before the Magistrate on
B 30 November 2020. The relevant exh. “KFR-5” which is “the statement in
writing signed by a police officer not below the rank of inspector” is attached
to the affidavit.
[60] The statement in exh. “KFR-5” which was produced before the
Magistrate is in line with the requirement of the provision under s. 4(1)(a)
C of POCA.
[61] On the issue of the application of s. 28A of the CPC to be read with
s. 4 of POCA, this has also been met. If one is to peruse the averment by
ASP Khairul Faizol, in para 7 of the affidavit in relation to the same, states
that he had duly informed the detenu of the grounds of his arrest as required.
D
[62] Premised on s. 4(1)(a) of the Act, it does not require a detailed grounds
to be provided in the statement in writing and neither does it involved the
production of any evidence. Suffice it states the police has “reasons to believe
there are grounds ...”. In the Federal Court case of Kam Teck Soon
E
v. Timbalan Menteri Dalam Negeri, Malaysia & Ors And Other Appeals [2003]
1 CLJ 225 p. 235; [2007] 1 MLJ 225 at p. 321, where it concerns the arrest
of the appellants pursuant to s. 3(1) of the Emergency (Public Order and
Prevention of Crime) Ordinance 1969, it was held that:
Furthermore, s. 3(1) only requires arresting officer to have “reason to
F
believe that there are grounds ...” It does not require the grounds to be
informed to the arrested person. And even if it is required because
art. 5(3) of the Constitution, ... what the arresting officer had informed
the appellant was sufficient compliance with art 5(3) ...
Obviously the appellant must have known in substance the reason for his
arrest ie, that he was arrested because there were grounds which would
G justify his detention under s. 4(1) of the Ordinance.
[63] Hence the statement in writing by ASP Khairul Faizol in exh. “KFR
5” is regular and suffice to fulfil the requirement of s. 4(1)(a) as the statement
in writing states to his reasons to believe that there are grounds for believing
that the name of that appellant should be entered on the Register. When the
H
statement of the police officer dated 30 October 2020 as stated in the affidavit
was produced before the Magistrate at the time when the application for
remand for 21 days under s. 4(1)(a) of POCA was conducted, the pre-
conditions and procedural requirement stipulated by the said provision have
been met.
I
[64] Therefore the remand order for 21 days issued by the Magistrate on A
31 October 2020, for the appellant to be remanded from 31 October 2020
until 20 November 2020 under s. 4(1)(a) of POCA is valid and lawful.
[65] Counsel for the appellant in his written submissions contends that the
appellant is also challenging the detention under s. 4(2)(a) on the basis that
B
it is groundless, procedural non-compliance and mala fide. However, the
challenge of detention under s. 4(2)(a) was not addressed in the High Court.
The basis of the challenge then was against the detention under s. 4(1)(a)
when at that point in time the appellant was detained under s. 4(2)(a). In fact,
the argument on the academic point at the High Court and in oral arguments
before us pivoted on the challenge of detention under s. 4(1)(a) only. C
Similarly the grounds of the learned High Court Judge reflected only the
challenge on the detention under s. 4(1)(a).
[66] In any event, on the detention under s. 4(2)(a), ASP Khairul Fairoz bin
Rodzuan has affirmed three affidavits in reply in encl. 15 of the appeal
D
records with particular reference to pp. 53-64, 116-119, 121-127 which
stated and show that the procedural requirements of s. 4(2)(a)(i) and (ii) has
been complied with, when he appeared before the Magistrate before the
expiry of the 21 days remand period under s. 4(1)(a). He had produced before
the Magistrate:
E
(i) a statement in writing signed by the DPP Yusaini Ameer stating that in
his opinion sufficient evidence exists to justify the holding of an enquiry
under s. 9;
(ii) a statement in writing signed by ASP Khairul Fairoz stating that it is
intended to hold an enquiry in the case of the appellant under s. 9. F
On that basis, the Magistrate had granted a further remand of 38 days against
the appellant. Therefore as far as the statutory procedure is concerned for the
remand to be given for 38 days, it has been complied with.
[67] Given the aforesaid, assuming that the challenge on the detention
G
under s. 4(1)(a) is not academic (which I am of the view that it is), there is
no procedural non-compliance by the respondents in the detention of the
appellant under s. 4(1)(a). Similarly, there is no procedural non-compliance
by the respondents for the detention under s. 4(2)(a). The detention of the
appellant under both sections are therefore lawful.
H
[68] Premised on the above, as far as the academic point is concerned, the
respondent’s argument has merits. The learned High Court Judge did not err
when he dismissed the application for the writ of habeas corpus grounded on
the academic point as the challenge was against the detention under s. 4(1)(a)
which had expired.
I
[2021] 8 CLJ & Ors 371
A Whether Section 4 Of POCA Under Which The Detention Was Made Is

Unconstitutional
[69] This issue was addressed extensively by the panel in the case of Zaidi
Kanapiah (supra). Although I am in agreement with the conclusion of the
majority that s. 4 of POCA is not unconstitutional, however I am at variance
B
with the reasoning of the majority in arriving to such a finding.
[70] The appellant challenge the constitutionality of s. 4 of POCA premised
on the fact that the said section dictates to the Magistrate that a remand order
for 21 days shall be given upon the production of the appellant before the
C
Magistrate. It was submitted by counsel for the appellant that s. 4 requires
the Magistrate which is the judicial arm under art. 121 of the FC to act upon
the imperative dictate of the Executive. The said section deprives the
Magistrate of any discretion in exercising its powers when setting out the
matters in the section. In the words of counsel for the appellant “Once
confronted with the statement, the Magistrate is bound hand and foot to act
D
as a mere rubber stamp and make the order. The only predicate is the
production; in the first instance by the police and in the second by the Public
Prosecutor of a statement in writing when determining the application for
remand under s. 4(1)(a).”
E
[71] The minority judgment in Zaidi Kanapiah (supra) was of the view that
s. 4(1)(a) is unconstitutional, as Parliament has encroached on powers of the
Judiciary by dictating to the Magistrate a fixed period of 21 days to be
granted in the remand order. The majority however maintained that under
s. 4(1)(a), the Magistrate still has a discretion in deciding whether to grant
or not the remand under 21 days. The majority argued that the Magistrate
F
is not deprived of his/her discretion provided certain procedures are
complied with.
[72] Learned counsel for the appellant also contended that s. 4 is contrary
to the provision of art. 121 which provides that judicial power shall be vested
with the courts. Learned counsel for the appellant urged the courts to read
G
art. 121 as it was, before the amendment in 1988, namely with the words
“shall be vested” still present in the said article.
[73] The majority in Zaidi Kanapiah (supra) has addressed this specific issue
when it said:
H [99] To interpret a law based on a provision that no longer reflects the
position of the law no longer in existence by virtue of an amendment, is
misconceived and defies not only the canons of construction and
interpretation but legal logic as well. To do so will create a fallacious
precedent that will inevitably lead to unprecedented consequences. The
absence of the words “judicial powers” under art. 121 FC does not in any
I
manner or form emasculate the powers of the courts. Au contraire, the
jurisdiction and powers of the Judiciary remain intact with the Judiciary.
Until and unless cl. (1) art. 121 FC is amended, the jurisdiction and A
powers of the courts are as conferred by Federal law. Thus, it necessarily
follows the jurisdiction and powers of the courts under POCA do not
violate the amended art. 121 FC.
[74] I entirely agree with the decision of the majority that one must read
the law as it stands at the time, not based on a provision that no longer B
reflects the position of the law and no longer in existence by virtue of an
amendment. One can only read the provision as amended. In this regard,
s. 35 of the Interpretation Acts 1948 and 1967 (Act 388) applies, which
provides inter alia that a reference to a particular written law is a reference
to that law as amended or extended from time to time. Unless and until it C
is further amended or challenged under art. 128 of the FC or struck down,
it remains valid as it is.
[75] We must be reminded that courts are creatures of statutes, and their
powers and jurisdiction are derived from federal law (art. 121 FC) which is
enforced at that point in time. POCA is a federal law and hence that is where D
the Magistrate derives his/her power in adjudicating under POCA.
[76] Learned counsel for the appellant submitted that, as s. 4 deprives the
Magistrate of a discretion to decide on the period of days for the remand,
shows that Parliament has transgressed on the judicial power, hence the said
section is unconstitutional. E
[77] Such a contention is without merit. In this regard, I refer to the

decision of this court in Letitia Bosman v. PP & Other Appeals [2020] 8 CLJ
147 where Azahar Mohamed CJM delivering the majority decision, where
the challenge was in relation to the mandatory death penalty as contained in
F
s. 39B(2) of the Dangerous Drugs Act 1952. There, it was also argued that
the impugned provision deprived the courts of the discretion to impose any
other sentence. Azahar Mohamad CJM held that:
Evidently, Parliament derives its legislative power from the FC. The power
to legislate is a plenary power vested in parliament. The issue of legislative
G
competency is to be decided by reference to matters falling within
Parliament’s power to legislate. What is important in the setting of the
present appeals is that the constitutional scheme of the FC empowers
Parliament, the legislative branch of the Government to make laws with
respect to any of the matters enumerated in Clause (1) art. 74 of the FC
and the federal List as set out in the Ninth Schedule. The constitutional H
provisions highlight the fundamental principle relating to the power of
Parliament to make law in respect of a particular matter pursuant to the
FC. In this regard, Item 4 of the federal List provides for “civil and
criminal law”, including in paragraph (h) “creation of offences in respect
of any of the matters included in the Federal List or dealt with by federal
law”. I
...
[2021] 8 CLJ & Ors 373
A [52] In the present appeals, Parliament is empowered by the FC to make

laws in respect of the creation of offences, which in my opinion is a broad
head or field of legislation over which Parliament can operate. The word
“offence” is not defined in the FC and no definition appears in the
Interpretation and General Clauses Ordinance 1948. The word “offence”
in the PC denotes a thing made punishable by the Code or any other law
B (s. 40). The word is also defined in the CPC as any act or omission made
punishable by law (Section 2). The word “offence is a general word of
wide amplitude. Applying the principles applicable to the interpretation of
the legislative lists that I have discussed above, the widest possible
construction must be put upon the word “offence”. In my opinion,
parliament’s legislative power to create “offence” includes the power to
C
legislate on ancillary matters that can be fairly and reasonably be included
in the entry “Offence”. Creation of offences serves no purpose in the
administration of justice without punishment for its commission. So
construed, there could be no doubt, to my mind, that the word “offence”
includes “punishment”. “Punishment” has a rational connection to the
D
subject of “Offence”. In my opinion to prescribe measures of punishment
is an integral part to legislate offence. Therefore, there can be no doubt
that it is well within the realm of the legislative’s power to enact the
impugned provisions. I have already discussed the decision of the High
Court of Australia in Palling at [43]-[45]. As can be seen the important
point that Barwick CJ is making is this: “it is beyond question that the
E Parliament can prescribe such penalty as it thinks fit for the offences,
which it creates.
[57] It can be seen from the foregoing analysis that the power to prescribe
punishments is an integral part of the power to enact the offences for
which the prescribed punishments are to apply. Thus the power conferred
upon Parliament to create offences also enables it to prescribe the
F
punishment to be inflicted on those persons who have been found guilty
of that conduct. In the exercise of its legislative power, parliament may
fully prescribe a fixed punishment to be imposed by the courts upon the
offender found guilty. On the other hand, the judiciary having
determined the criminal liability of an accused based on the law, has a
G duty to pass sentence according to law enacted by the legislature.
[67] By prescribing a mandatory death penalty on the cases covered in these appeals,
Parliament did not encroach into the power of the Court as it is within their power
to do so. This connotes a respect to the doctrine of separation of power and
complements the independence and impartiality of the Court. As such, the court as
a guardian of constitution is expected to give effect to law duly passed by Parliament.
H
(emphasis added)
[78] Article 74(1) FC gives Parliament power to make laws with respect to
any of the matters enumerated in the Federal List or the Concurrent List.
Amongst the matters in the Federal List of Ninth Schedule are, inter alia,
I item 4 as reproduced which states:
4. Civil and criminal law and procedure and the administration of justice, A
including:
(a) Constitution and organization of all courts other than Syariah
Courts;
(b) Jurisdiction and powers of all such courts;
B
...
Clearly from the aforesaid provisions of the FC, the jurisdiction and powers
of the courts (except the Syariah Courts) are within the Legislative List, List
1-Federal List in the Ninth Schedule, meaning Parliament can legislate with
regards to jurisdiction and powers of the courts. In addition, art. 149 confers C
power to Parliament to enact POCA.
[79] Thus the FC has conferred upon Parliament the power to legislate on
jurisdiction and powers of the courts. In fact art. 121 of the FC stipulates
where the powers of the courts are derived from. As far as POCA is
concerned, art. 149 FC vests Parliament with the power to legislate and D
prescribe the period of 21 days in the remand order to be granted by a
Magistrate under s. 4(1)(a) of the same.
[80] In Letitia Bosman (supra), the essence of the contention by the
appellants therein was that the power to determine the appropriate
E
punishment on convicted criminals is part of the judicial power and only the
Judiciary can exercise such function. Therefore, it was argued that it is not
for Parliament to encroach on judicial power by stipulating in the law the
punishment of death sentence on convicted criminals thus depriving the
courts of judicial discretion.
F
[81] Similarly, in the present appeal, the contention by the appellant is
that, by removing the discretion of the courts in determining the remand
period under s. 4(1)(a) of POCA is violative of art. 121 FC and the doctrine
of separation of powers.
[82] Azahar Mohamad CJM in Letitia Bosman (supra) referred to the G
decision of this court in PP v. Lau Kee Hoo [1983] 1 CLJ 21; [1983] CLJ (Rep)
336; [1983] 1 MLJ 157 where the court considered the constitutionality of
the mandatory death sentence provided by statute, whether it violated art.
121. This involved s. 57(1) of the ISA 1960 which prescribed a mandatory
death sentence for offence having ammunition under one’s possession and H
control in a security area without lawful authority. This court upheld this law
as being consistent with art. 5(1) and rejected the contention that the
provision tantamount to the Legislature usurping the powers of the Judiciary.
In this regard, the cautionary words of Lord Diplock in Ong Ah Chuan v. PP
[1980] 1 LNS 181; [1081] AC 648 which was a Privy Council decision, was
I
referred to at p. 72 of Lau Kee Hoo (supra) as to the effect of accepting the
argument of the appellant:
[2021] 8 CLJ & Ors 375
A If it were valid, the argument of the appellant (that the mandatory death
sentence) under the impugned section of the law which imposed a
mandatory fixed or minimum penalty even when it was not capital – an
extreme position which counsel was anxious to disclaim.
[83] Barwick CJ in Ong Ah Chuan (supra) emphasised that such a discretion
B to impose the measure of punishment is indeed a legislative decision. “If
Parliament chooses to deny the court such a discretion, and to impose such
a duty, ... the court must obey the statute in this respect assuming its validity
in other respects. It is not, ... a breach of the Constitution not to confide any
discretion to the court as to the penalty imposed.”
C [84] Thus, it is misconceived to state that Parliament has encroached on the
powers of the Judiciary, when it enacted laws that provide mandatory
sentences or a fixed period of remand to be imposed on detainees. The FC,
which is the supreme law of the Federation provides in the Legislative List,
List 1-Federal List in the Ninth Schedule, the powers conferred to
D Parliament to legislate on matters such as jurisdiction and powers of courts.
It is completely within the jurisdiction of Parliament to do so. In our present
context, art. 149 of the FC provides power to Parliament to legislate on
POCA.
[85] Article 121 specifically provides that the courts derive its powers from
E federal law. The relevant exercise of judicial powers consists of the
application of the law by the court according to the terms of the law. As
POCA is a federal law, it is for the courts to construe its provision in
accordance to what it says. In other words, it is for the Magistrate to follow
what s. 4(1)(a) states, ie, the granting of the 21 days remand period upon the
F condition precedent being fulfilled under the said provision.
[86] Counsel for the appellant also submitted that the amendment to
art. 121 by way of Act A 704 is a nullity because it reduces the judicial arm
from a separate and independent organ of Government to a subordinate or
subjugate to Parliament, and it ought to be struck down. This, according to
G counsel for the appellant, cuts across the doctrine of separation of power as
which is part of the basic structure of the FC. This appears to be a collateral
attack on Act A 704 which cannot be countenanced, when there is no specific
challenge to the amendment to art. 121.
[87] Counsel for the appellant referred to Semenyih Jaya Sdn Bhd
H
v. Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 5 CLJ 526;
[2017] 3 MLJ 561; Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam
Perak & Ors And Other Appeals [2018] 3 CLJ 145; [2018] 1 MLJ 545; JRI
Resources Sdn Bhd v. Kuwait Finance House (Malaysia) Bhd; President Of
Association Of Islamic Banking Institutions Malaysia & Anor (Interveners) [2019]
I 5 CLJ 569; [2019] 3 MLJ 561; Alma Nudo Atenza v. PP & Another Appeal
[2019] 5 CLJ 780; [2019] 4 MLJ 1. It was submitted that courts can prevent
Parliament from destroying the “basic structure” of the FC (for this, counsel A
referred to Sivarasa Rasiah (supra)). While the FC does not specifically
explicate what the doctrine of basic structure signifies, it is open to scrutiny,
not only for clear cut violation of the doctrines or principles that constitute
the constitutional foundation.
B
[88] On the basic structure doctrine, the majority judgments in Maria Chin
Abdullah v. Ketua Pengarah Imigresen & Anor [2021] 2 CLJ 579, Rovin Joty
Kodeeswaran v. Lembaga Pencegahan Jenayah & Ors And Other Appeals [2021]
4 CLJ 1; [2021] 3 MLRA 260 and Zaidi Kanapiah (supra) have addressed this
doctrine extensively by referring to the judgment of the learned Raja Azlan
Shah FJ in Loh Kooi Choon v. Government Of Malaysia [1975] 1 LNS 90; C
[1977] 2 MLJ 187 and Suffian LP in Phang Chin Hock v. PP [1979] 1 LNS
67; [1980] 1 MLJ 70, which had consistently rejected the doctrine. It is
already settled that basic structure doctrine has no place in our jurisprudence.
Therefore, I will not dwell on it in this judgment.
D
[89] However, it was argued by the appellant that, in Malaysia, there is no
necessity to resort to the theory of an implied limitation upon the power of
Parliament to amend a provision of the FC to give effect to the basic structure
doctrine. This is because, that doctrine is integrated into the FC by way of
art. 4(1) which employs the phrase “inconsistent with this Constitution”.
Article 4(1) does not say “inconsistent with any provision of this E
Constitution”.
[90] It is also submitted by the appellant that a harmonious result is
obtained by interpreting art. 4(1) and art. 159 through the application of
either the direct consequence test or by applying the pith and substance canon
F
of construction. Accordingly, where federal law amends a provision of the
Constitution and a challenge is taken that the amendment violates the basic
structure, the court must make that determination by asking whether the
direct and inevitable consequence of the amending law is to impact upon the
basic structure.
G
[91] In my view, this does not answer as to how one determines which
provision of the FC constitutes basic structure and not amenable to
amendment. Article 159 FC expressly provides for the procedure on
amendment upon the fulfilment of certain requirements. How does one read
art. 159 harmoniously with art. 4 (which, according to counsel for the
appellant that it had been impliedly integrated the basic structure doctrine) H
to determine whether an impugned provision is unconstitutional? Raja Azlan
Shah FCJ in Loh Kooi Choon (supra) clearly has said that the constitutionality
of any provision is premised on the provision of the FC, not premised on any
concepts or doctrine which are outside the FC. In any event, I do not see the
relevance of the basic structure doctrine to be applicable to our present I
appeal because such a doctrine is only relevant when the constitutionality of
a law passed by Parliament seeking to amend the FC is challenged. In that
[2021] 8 CLJ & Ors 377
A situation, applying the doctrine, the court may rule that the provision which
sought to be amended forms part of the basic structure of the FC which
cannot be amended. Here, s. 4 of POCA does not seek to amend the FC,
rendering the basic structure doctrine irrelevant and inapplicable.
[92] Moreover, the cases of Semenyih Jaya Sdn Bhd v. Pentadbir Tanah
B
Daerah Hulu Langat & Another Case [2017] 5 CLJ 526; [2017] 4 MLRA 554,
Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other
Appeals [2018] 3 CLJ 145; [2018] 2 MLRA 1, JRI Resources Sdn Bhd v. Kuwait
Finance House (Malaysia) Bhd; President Of Association Of Islamic Banking
Institutions Malaysia & Anor (Interveners) [2019] 5 CLJ 569; [2019] 3 MLRA
C 87; Alma Nudo Atenza v. PP & Another Appeal [2019] 5 CLJ 780; [2019] 3
MLRA 1 referred to, by the learned counsel for the appellant are
incomparable to the case at present because the relevant legislations which
were in issue in the aforesaid cases have got nothing to do with preventive
laws enacted under art. 149, as in our present case.
D
[93] As far as the role of the courts is concerned, its duty is to interpret the
law according to what the statute provides. The powers of the courts are
derived from federal law as prescribed under art. 121. If that is not so, then
where do the courts derive its powers? It certainly is not from the basic
structure doctrine. As such, the court’s role is to interpret laws enacted by
E Parliament.
[94] It was submitted by the appellant that Suffian LP in Phang Chin Hock
(supra) sought to follow Raja Azlan Shah FJ in Loh Kooi Choon (supra) in
rejecting the basic structure doctrine without regard to the opposite view of
Wan Suleiman FCJ on the point of art. 159 and art. 4(1) of the FC, that the
F
word “law” in art. 4(1) includes constitutional amendment Acts under
art. 159. Suffian LP reasoned out that if it is correct that amendments made
to the FC are valid only if it is consistent with the existing provisions in the
FC, then obviously no change can be made to the FC, which renders art. 159
superfluous. I agree with the statement by Suffian LP in Phang Chin Hock
G (supra) on the meaning of the word “law” in art. 4(1). The panel in Phang
Chin Hock (supra), which consisted of Suffian LP, Wan Suleiman and Syed
Othman FJJ expressed a unanimous decision. There were no contrary views
expressed by Wan Suleiman FJ when he said:
I fail to note any ambiguity when arts. 4 and 159 are read together.
H
His Lordship did not say that he disagreed with Raja Azlan Shah FJ on this
issue, in fact His Lordship said:
The power to amend would not, be restricted by anything set out in the
Preamble for there is no Preamble to our Constitution. IT seems to me
I
to be clear that if there is to be any restriction to the right to amend any
of the fundamental rights set out in part II, such restriction would have
been set out in one of the various clauses of art 159 itself.
[95] With regards to the law on preventive detention, our Federal Court in A
Loh Kooi Choon (supra) held that:
The question whether the impugned act is harsh and unjust is a question
of policy to be debated and decided by parliament and therefore not meet
for judicial determination. To sustain it would cut very deeply into the
very being of Parliament. Our courts ought not to enter this political B
thicket, even in such a worthwhile cause as the fundamental rights
guaranteed by the Constitution, for as was said by Lord Mc Naghten in
Vacher and Sons Ltd v. London Society of Compositors [1913] AC 107, 118:
Some people may think the policy of the act is unwise and even
dangerous to the community. Some may think it add variance at C
principles which have long been held sacred. But a judicial tribunal
has nothing to do with the policy of any act which may be called
upon to interpret. That may be a matter for private judgment. The
duty of the court, and its only duty, is to expound the language
of the act in accordance with the settled rules of construction. It
is, I apprehend, as unwise as it is unprofitable to cavil at the policy D
of an act of Parliament, or to pass a covert censure on the
Legislature.
[96] It must be reminded that the laws in relation to preventive detention
is different from ordinary criminal laws. Premised on this basis, the approach
in the application and the interpretation of such laws is distinct from the E
ordinary detention under the normal criminal law. Parliament has expressed
its intent when legislating POCA from the preamble that it was enacted under
art. 149 of the FC.
[97] Given the aforesaid, it is my view that s. 4 of POCA is constitutional.
The FC has empowered Parliament to legislate on the jurisdiction and F
powers of the court under art. 74 and to legislate POCA under art. 149, in
this case prescribing the 21 days remand under s. 4(1)(a). Powers of the
courts are derived from federal law (art. 121) and POCA is one of them. By
prescribing the 21 days remand period under s. 4(1)(a), Parliament does not
encroach into the power of the court as it is within Parliament’s power to G
do so. Parliament’s power is conferred by the FC, which is the supreme law
of the Federation.
Whether The Exercise Of The Minister Of His Power Under Section 22 Including
The Common Gaming Houses Act 1953 (CGHA) In Item 5 Of The First Schedule
To POCA is ultra vires The Spirit And Intendment As Expressed In The Recitals H
To POCA Read With Article 149;
Whether The Statement Of Facts Delivered Under Section 4(1)(a) Does Not Bring
The Detenu’s Case Within The Recitals Of POCA
[98] Essentially, it is the appellant’s contention that the Minister abused I
the power to enact subsidiary legislation conferred upon him by s. 22 of
POCA by including the Common Gaming House Act 1953 (CGHA) as
item 5 of the First Schedule to POCA by employing the phrase “unlawful
gaming”.
[2021] 8 CLJ & Ors 379
A [99] Counsel for the appellant also submitted that exh. KFR-5 in
encl. 15 of the appeal records which sets out the statement of facts which
were relied on, to warrant the detention in “KFR-5” do not come within the
description of a crime of “organised violence” to warrant the exercise of the
detaining power.
B
[100] Section 22 gives the Minister (as agent of the third respondent) power
to amend the Schedules to POCA. This is a delegated legislative power. But
it is not unfettered as the law treats unfettered power or discretion as a
contradiction in terms because there are legal limits to every power. Raja
Azlan Shah FJ in the seminal decision of the Federal Court in Pengarah
C Tanah dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd [1978]
1 LNS 143; [1979] 1 MLJ 135, Raja Azlan Shah Ag CJ expressed in a
passage which has remained inviolable, that:
Unfettered discretion is a contradiction in terms. Every legal power must have
legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement
D that a discretion should be exercised for a proper purpose, and that it should not be
exercised unreasonably. In other words, every discretion cannot be free from
legal restraint, where it is wrongly exercised, it becomes the duty of the
court to intervene. The courts are the only defence of the liberty of the
subject against departmental aggression ... (emphasis added)
E [101] So that there is no violation of the doctrine of excessive delegation,

Parliament has in the recital to POCA provided the governing policy, so as
to curb violation of the doctrine of excessive delegation. The exercise of the
delegated power is therefore constrained by the purpose for which POCA
was enacted. It is the appellant’s submission that the inclusion of the CGHA
F
as item 5 runs counter to the purpose for which POCA was enacted. This is
therefore a case of use of a power for an improper purpose.
[102] It was also argued as to the Schedule to POCA, that the inclusion of
“unlawful gaming” in item 5 of Part I of the First Schedule of POCA falls
beyond the ambit of “organised violence” against persons or property. It was
G contended that by incorporating “unlawful gaming” the Minister had abused
his power under s. 22 of POCA as unlawful gaming is not a crime which can
be classified as being one that falls within the category of an organised
violence. Further, it was argued that gambling is not of a pervading character
disturbing the general peace, tranquillity and order of society and therefore
H
does not affect public order, thus a fortiori it cannot come within the phrase
“organised violence against persons or property” which governs the spirit
and intendment of POCA. The Minister had wrongly classified it as coming
within the recital as prescribed by the FC and by doing so had acted ultra vires
POCA.
I Section 22 POCA provides:
The Minister may, by order published in the Gazette, amend the Schedules.
Part 1 of the First Schedule of POCA lists the Registrable Categories as A

follows:
(1) All members of unlawful societies which:
(i) use Triad ritual; or
(ii) are constituted or used for purposes involving the commission of B
offences that are seizable under the law for the time being in force
relating to criminal procedure; or
(iii) maintain secrecy as to their objects.
(2) Persons who belong to or consort with any group, body, gang or
association of two or more persons who associate for purposes which C
include the commission of offences under the Penal Code.
(3) All traffickers in dangerous drugs, including persons who live wholly
or in part on the proceeds of drug trafficking.
(4) All traffickers in persons, including persons who live wholly or in part
D
on the proceeds of trafficking in persons.
(5) All persons concerned in the organisation and promotion of unlawful
gaming.
(6) All smugglers of migrants, including persons who live wholly or in part
on the proceeds of smuggling of migrants. E
(7) Persons who recruit, or agree to recruit, another person to be a member
of an unlawful society or a gang or to participate in the commission of
an offence.
(8) Persons who engage in the commission or support of terrorist acts
under the Penal Code. F
(emphasis added)
[103] Historically, item 5 of Part I of the First Schedule has been in
existence as early as 1959 since the promulgation of POCA. This was when
Act A1459 which amended POCA into preventive law was laid down,
G
debated and passed by Parliament. This was even before art. 121 FC was
amended. Originally it reads as follows:
5. All persons habitually concerned in the organisation and promotion
of unlawful gaming.
(emphasis added) H
[104] The word “habitually” was deleted in 2014 vide the Prevention of
Crime (Amendment of First and Second Schedule) Order 2014 [P.U.(A)
122/2014] everything else remains the same. With the deletion, now stands
the present item 5.
I
[2021] 8 CLJ & Ors 381
A [105] Given the aforesaid, it was the intention of Parliament since 1959, to
include unlawful gaming as one of the categories under POCA. Parliament
in its wisdom saw the necessity more than sixty years ago to include the
organisation and promotion of unlawful gaming activities due to an upsurge
of undesirable criminal activity, causing the public to live in fear. More so
B with the advent of a real or virtual technology information in the cyberworld,
the organisation and promotion of unlawful gaming have become
sophisticated and tricky to detect. “Secret societies, triads and gangsters of
yesteryears have morphed into criminal syndicates and cartels involved in
forgery, theft, embezzlement and fraud. It is inconceivable to deny
C
Parliament to address these criminal activities through legislation” (as per
Hasnah FCJ in Zaidi Kanapiah (supra).
[106] The meaning of “organised violence against persons or property” is
not to be viewed in a narrow sense as suggested by learned counsel of the
appellant but through the context of the entire scheme of POCA. There is a
D nexus between unlawful gambling and criminal organisations. Organised
crime groups or syndicates often run illegal gambling operations and the
money derived from these illegal gambling operations are being used to fund
other criminal activities, as in human trafficking, prostitutions, drugs and
weapons, not to mention tax evasion and money laundering. It also
E
propagates the rise of unlicensed loan sharks. These gambling operators and
loan shark uses threats and violence against its gambling and drug customers
to force compliance. Unlawful gaming activity and its domino effects on
society and public order should never be underestimated. As time progresses,
unlawful gaming activity has evolved into a much more sophisticated illicit
activity that even in this present day constitutes a threat to family
F
institutions, social life, public order and safety. The involvement of
organised crime in the business of gambling has, on occasion, led to the
corruption of law enforcement officers and other government officers in
today’s society. Unlawful gaming activity has significant influences on
society and is also critical on public health issue.
G
[107] The aforesaid meets the intent of the Legislature, as its long title
expressed, when it enact POCA, namely for effectual prevention of crime
throughout Malaysia and for the control of criminals, members of secret
societies, terrorists and other undesirable persons, and for matters incidental
thereto.
H
[108] The CGHA, on the other hand is legislated to suppress and control
common gaming houses, public gaming and public lotteries. Unlike POCA,
CGHA regulates lawful gaming by the issuance of a license by the Minister
of Finance under s. 27, which authorises a company registered under the
I
Companies Act 1965 to promote and organise gaming.
[109] It was never the intention of the Legislature to include the CGHA A
under POCA and neither was it included in the Schedule to the same as
suggested by the appellant. Thus, the argument of learned counsel for the
appellant that the inclusion of unlawful gaming in the Schedule to POCA is
unconstitutional has no merits for the reasons I have stated above.
B
[110] Premised on the statement in writing signed by ASP Khairol Fairoz
bin Rodzuan in encl. 15, pursuant to s. 4(1)(a), show the activities of the
appellant fall under the scope of the item as stated under the First Schedule,
Part 1, item 5 of POCA which states:
5. All persons concerned in the organization and promotion of unlawful
C
gaming.
The activities also fall under the scope of the items listed under art. 149(1)(f)
FC, namely:
(f) which is prejudicial to public order in, or the security of, the Federation
or any part thereof, D
The definition of “public order” has been discussed at length in

Re Application Of Tan Boon Liat @ Allen; Tan Boon Liat v. Menteri Hal Ehwal
Dalam Negeri, Malaysia & Ors [1976] 1 LNS 126, at pp. 5-6.
[111] The activities of the appellant in unlawful gambling is indeed a threat E
to public order which leads to social problems and criminal activities.
Therefore the statement of facts as produced by ASP Khairol Fairoz bin
Rodzuan before the Magistrate for the detention under s. 4(1)(a) is within the
scope of the First Schedule, Part 1, item 5 of POCA.
The Recital Of POCA Did Not Set Out In Full Clause (1) Of Article 149 FC F
[112] The recital of POCA reads:
Whereas action has been taken and further action is threatened by a
substantial body of persons both inside and outside Malaysia to cause,
or to cause a substantial number of citizens to fear, organized violence
against persons or property; G
And Whereas Parliament considers it necessary to stop such action;

[113] It is the argument of learned counsel that the failure of Parliament to
incorporate in the recital to the Act the complete cl. (1) of art. 149 FC
prescribing the intent and purpose would necessarily mean that the POCA H
is invalid and therefore unconstitutional.
[114] I am not persuaded by such an argument that would result in POCA
as being invalid and unconstitutional purely on the technical ground that its
recital failed to set out in full cl. (1) of art. 149 FC. So long as the Act in
question is passed pursuant to art. 149 and the recital to the Act refers to a I
[2021] 8 CLJ & Ors 383
A permissible item listed therein, the requirement of art. 149 is met. The same
was also addressed by the majority judgment in Zaidi Kanapiah (supra) when
it said that:
With respect, we are unable to agree with learned counsel for the
Appellants.
B
[113] The long title of an Act recites the intent and purpose of the Act.
The preamble of POCA recited the purpose of the Act which is prevent
any incursion or threat by a substantial body of persons within and
outside Malaysia causing a substantial number of citizens to fear
organised violence against persons or property. There is therefore no
C fundamental flaw in the Preamble as suggested by the Appellants to the
extent that POCA be declared unconstitutional.
[115] Therefore, this argument by counsel for the appellant has no merits.
Whether The Detention Was Tainted With Mala Fides
D [116] The appellant contends that the detention was tainted with mala fide
because the police officers making the arrest and recommending the
detention were also subject of an inquiry by MACC into their corrupt
activities. The appellants are material witnesses in that inquiry.
[117] There is no issue of mala fide in the arrest of the appellant under
E POCA. The arrest and detention of the appellant under the MACC is separate
and distinct from the arrest and detention under POCA. The MACC has its
own regulatory statutes in conducting investigations which is within their
jurisdiction like the MACC Act 2009 and the AMLATFA 2001. The
appellant has failed to show mala fide as it was only his allegation that the
F police have detained to shut him up from revealing information to the
MACC.
[118] Bearing in mind the principles in determining whether the detention
of the detenu is lawful and the grounds relied on, is mala fide, this court in
Lee Kew Sang (supra) held that:
G
[2] The cases decided prior to the amendments, ie, 24 August 1989,
showed various grounds upon which the detention orders were
challenged. Mala fide appeared to be the most important ground. Courts
seemed to place lesser importance on procedural non-compliance unless
the requirement was mandatory in nature. However, the amendments
H appear to have reversed the position by limiting the ground to only one
ground – non-compliance with procedural requirements.
[119] The only ground accepted to challenge the impropriety of the
detention is procedural non-compliance of the procedures as set out in the
Act pursuant to which the detainee was detained.
I
[120] In Abdul Razak Baharudin & Ors v. Ketua Polis Negara & Ors And Another A
Appeal [2005] 4 CLJ 445, this court held that:
So the test, whether subjective or objective, used to determine whether
mala fide has or has not been shown is of no relevance now, in a challenge
against an act done under s. 8. When mala fide itself is no longer an issue
under s. 8, the test is clearly no longer relevant. The issue now under B
s. 8 is whether a procedural requirement has or has not been complied ...
Further in Manoharan Malayalam & Yang Lain lwn. Menteri Keselamatan Dalam
Negeri Malaysia & Satu Lagi [2009] 4 CLJ 679 this court reiterate the stand
by the court that mala fide does not amount to statutory non-compliance.
C
[121] Given the clear authorities as aforesaid, such contention by the detenu
that their arrest is mala fide does not amount to a procedural non compliance.
It has not been shown that there is no procedural non-compliance in the
detention of the appellant.
The Guidelines In Zaidi Kanapiah (Supra) By Vernon Ong FCJ D
[122] Parties submitted before us on the viability of the guidelines which
was posited by Vernon Ong FCJ in Zaidi Kanapiah (supra) which can be found
at paras. 144-147 and submitted that the respondent failed to fulfil the
guidelines when granting the remand period of 21 days.
E
[123] Counsel for the appellant submitted that these guidelines as stated by
Vernon Ong FCJ was merely reiterating what is already in the law. However,
the SFC submitted that, the issue of guidelines for the Magistrates which
relates to “Matters to be considered in an application for remand under sub-
s. 4(1) of POCA” is clearly per incuriam as, firstly, it was never an issue and
neither did parties address it at the hearing of the appeal of Zaidi Kanapiah F
(supra). Secondly, SFC submitted that the guidelines state procedures which
are over and above than what is required to be done by the Magistrate in
issuing the 21 days’ remand under s. 4(1)(a).
[124] My view is this: taking the queue from the cases which I had referred
G
to, in the earlier paragraphs of this judgment, especially Lee Kee Sang (supra)
in an application for a writ of habeas corpus, the determination of whether a
particular preventive detention is lawful or not, depends on what is the
statutory requirement as required under the particular Act under which the
appellant was detained and that whether there has been statutory non
compliance. In this case it is s. 4(1)(a) of POCA. H
[125] Section 4(1)(a) provides the requirements for the remand of 21 days
to be granted, which is:
(a) the production of a statement in writing signed by a police officer
not below the rank of Inspector stating that there are grounds for I
believing that the name of that person should be entered on the
Register, remand the person in police custody for a period of
twenty-one days; or
[2021] 8 CLJ & Ors 385
A (b) if no such statement is produced, and there are no other grounds

on which the person is lawfully detained, direct his release.
Those are the two requirements required for the 21-days remand to be
granted. Nothing more and nothing less, because that is what the law says.
That is the approach that is to be taken when dealing with an application for
B the writ of habeas corpus under preventive detention. The validity of the prior
arrest before that, is of no consequence because that is not the requirement
for the 21-days remand to be given. Issues like the police diary discloses
sufficient facts and particulars to support the arresting officer’s belief that
“grounds exist which would justify the holding of an inquiry into the case
C of the person arrested” are not procedural requirement under the said
section.
[126] It is also to be borne in mind that the procedure of granting remand
under the Criminal Procedure Code is not applicable when dealing with
remand under POCA. POCA is a special law that deals with remand with a
D view for detention under preventive law. The Criminal Procedure Code
deals with remand under punitive laws which deal with remand for purposes
of investigations with a view of charging the detainee. Hence the remand
procedure under the Criminal Procedural Code is not applicable for remand
under POCA. The cardinal rule of interpretation of generalibus specialia
E derogant applies where a special provision is made in a special statute, that
special provision excludes the operation of a general law. (Refer to the
Federal Court decision in PP v. Chew Siew Luan [1982] CLJ 354; [1982] CLJ
(Rep) 285; PP v. Chu Beow Hin [1982] CLJ 110; [1982] CLJ (Rep) 288 at
p. 291).
F [127] In any event, with the greatest of respect to my learned brother,
Vernon Ong FCJ, the procedures as set out in Zaidi Kanapiah (supra) are
merely guidelines and it cannot override and replace the statutory
requirements as mandated by s. 4 of POCA because those are procedures
provided by law. Hence, in determining the detention under s. 4(1)(a), the
G procedure to be adopted is the one as provided for under s. 4(1)(a).
[128] The guidelines go against the very principle as stated in Lee Kew Sang
(supra) when determining whether a particular detention has complied with
statutory requirement as mandated by the relevant section in the Act, in
determining whether the detention is lawful or not. Therefore the guidelines
H are per incuriam.
Conclusion
[129] With regards to the challenge on the detention under s. 4(1)(a), based
on the authorities as discussed in the earlier paragraphs, the challenge of the
I detention of the appellant under s. 4(1)(a) is academic as the detention has
come to an end and the appellant is no longer detained under the said section.
In addition, there is no procedural non-compliance of any statutory A

requirements in the detention of the appellant under the provision of
s. 4(1)(a) of POCA.
[130] Section 4 of POCA is not unconstitutional. It does not breach art.121
of the FC. Parliament is empowered by the FC to legislate laws prescribing
B
for jurisdiction of the courts under art. 74, generally and art. 149 specifically
for POCA. By prescribing a period of 21 days for remand under s. 4(1)(a)
of POCA, Parliament did not encroach into the power of the court as it is
within their power to do so, which power was conferred by the FC, the
supreme law of the Federation. Hence it cannot be said to breach the doctrine
of separation of power, in fact it complements the independence and C
impartiality of the court.
[131] Given the aforesaid, the appeal by the appellant is dismissed.
[132] My learned brother, Abdul Rahman Sebli FCJ has read this judgment
and has expressed his agreement, to form the majority judgment of this court. D
Abdul Rahman Sebli FCJ (supporting):
[133] I have read the judgment of my learned sister Justice Zabariah Mohd
Yusof in draft and I agree with the reasoning and the decision reached. In
support of the judgment, I shall touch first of all on a significant issue of law
E
raised by Datuk Seri Gopal Sri Ram which I think needs elaboration in view
of the frequency in which the issue had been raised of late. This relates in
particular to para. [10] of learned counsel’s written submissions dated 2 April
2021 where he said this:
10. The majority in Maria Chin Abdullah v. Ketua Pengarah Imigresen [2021] F
1 MLJ 750 [13A TAB 130] and Rovin Joty v. Lembaga Pencegahan Jenayah
[2021] MLJU 195 [13AB TAB 129] overlooked the principles laid down
in Semenyih Jaya, Indira Gandhi and Alma Nudo and wrongly sought to limit
itself to the peculiar facts of those cases. The court disobeyed judicial
courtesy by departing from the decision of a bench of 9 Justices in Alma
Nudo on the issue of separation of powers. See Asia Pacific Higher Learning G
v. Majlis Perubatan Malaysia [2020] 2 MLJ 1, KS Puttaswamy v. Union of India
[2015] 8 SCC 735 and Siddharam Satlingappa Mhetre v. State of Maharashtra
[2011] 1 SCC 694.
[134] Quite clearly the contention is that the majority decisions of this court
in Maria Chin Abdullah v. Ketua Pengarah Imigresen & Anor [2021] 2 CLJ H
579
(“Maria Chin”) and Rovin Joty Kodeeswaran v. Lembaga Pencegahan Jenayah &
Ors And Other Appeals [2021] 4 CLJ 1 (“Rovin Joty”) were given per incuriam,
ie, wrongly decided on the ground that they “overlooked” the principles laid
down in Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat &
I
Another Case [2017] 5 CLJ 526 (“Semenyih Jaya”), Indira Gandhi Mutho
v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ
145 (“Indira Gandhi”) and Alma Nudo Atenza v. PP & Another Appeal [2019]
[2021] 8 CLJ & Ors 387
A 5 CLJ 780 (“Alma Nudo”), and for that reason the two cases are not to be
treated as authorities on the issue of separation of powers which, according
to counsel, is a basic structure of the Federal Constitution (“the
Constitution”) as propounded in Semenyih Jaya, Indira Gandhi and Alma
Nudo.
B
[135] The premise of the argument is that any law that violates the basic
structure doctrine violates the sanctity of the Constitution and is therefore
null and void. In relation to the present case, the argument targets s. 4 of the
Prevention of Crime Act 1959 (“POCA”).
C
[136] The origin of the argument can be traced back to the amendment to
art. 121(1) of the Constitution which came into force on 10 June 1988.
Learned counsel’s contention is that the amendment is unconstitutional as it
impinges on the doctrine of separation of powers by “removing” judicial
power from the two High Courts, no doubt inspired by the obiter dictum of
Zainun Ali FCJ in Semenyih Jaya and Indira Gandhi. Learned counsel went
D
so far as to argue that art. 121(1) must be read as it stood before its
amendment on 10 June 1988, where it provided that “the judicial power of
the Federation shall be vested in two High Courts of co-ordinate jurisdiction
and status”.
E
[137] The pith and substance of counsel’s argument is that Parliament has
no power, not even by way of art. 159 of the Constitution, to amend any
“basic structure” of the Constitution, in the present case to amend art. 121(1)
to remove the judicial power of the two High Courts. I understand the
argument to mean that all basic structures of the Constitution, whatever they
are and wherever they are to be found in the Constitution, must forever and
F
for better or for worse remain untouched by Parliament and that in violation
of that doctrine, Parliament has removed judicial power from the two High
Courts by amending art. 121(1) of the Constitution.
[138] In order to put right what he perceives to be a wrong done by
Parliament, learned counsel has moved this court in para. 8 of his written
G
submissions to make an order that Act A704, which amended art. 121(1) of
the Constitution, be struck down as being unconstitutional and therefore null
and void and of no effect. This is how the point was raised in the
submissions:
H 8. Because judicial power cannot be removed from the judiciary by way

of amendment of the Constitution, Act A704 which cut into the judicial
power and reduced the judicial arm from an equal partner in Government
to a subordinate of Parliament is violative of the basic structure of the
Constitution and is therefore null and void and of no effect. The detenu
respectfully moves for a finding to this effect and for an order that Act
I A704 be struck down. It is therefore submitted with respect that the
validity of s. 4 must be tested against art. 121 as it stood before 10 June
1988.
[139] If the application were to be allowed, the amendment to art. 121(1) A

would be nullified and the language of the article would be reverted to its
pre-amendment language, which is to stipulate in express terms that the
judicial power of the Federation shall be vested in the two High Courts of
co-ordinate jurisdiction and status. From the appellant’s perspective, the
application if allowed would be to render s. 4 of POCA null and void as it B
would then be in violation of the doctrine of separation of powers by taking
away the discretionary power of the Magistrate in granting the remand
orders, which in turn would be a breach of the basic structure doctrine.
[140] I must say at once and with due respect to Datuk Seri Gopal Sri Ram
that the application is frivolous and must be dismissed. In the first place, C
learned counsel has not explained how the removal of the words “the judicial
power of the Federation shall be vested in two High Courts of co-ordinate
jurisdiction and status” from art. 121(1) of the Constitution has the effect of
removing or divesting judicial power from the two High Courts. To remove
judicial power from the two High Courts means to take away judicial power D
from the two High Courts and leaving them with no judicial power to
exercise.
[141] That cannot be factually correct. Judicial power has never been
removed from the two High Courts and will remain vested in the two High
Courts for as long as art. 121(1) is still embedded in the Constitution. There E
is nothing in art. 121(1) that can be construed as vesting judicial power on
any other body other than the two High Courts and the inferior courts after
the amendment came into force on 10 June 1988. On the contrary, the article
expressly confers jurisdiction and powers on the two High Courts and the
inferior courts. Obviously counsel was focusing only on what the amendment F
has removed from art. 121(1) and ignoring what it retains.
[142] The flaw in counsel’s argument is in assuming that the two High
Courts have been stripped bare of their judicial power by the removal of
those words from art. 121(1), turning them into emperors without clothes.
The contention is as good as saying that with effect from 10 June 1988, the G
two High Courts, namely the High Court of Malaya and the High Court of
Sabah and Sarawak ceased to exist, with the attendant consequence that all
decisions and orders that the two High Courts made after that date could
potentially be declared null and void. Herein lies the fallacy (and danger) of
counsel’s argument. It is based on a wrong assumption. H
[143] The truth is, judicial power has never been removed from the two
High Courts at any time either before or after the amendment to art. 121(1).
The removal of judicial power from the two High Courts can only be done
by removing the whole of art. 121(1) from the Constitution, and not merely
by removing those few words from the article although, admittedly, they are I
words of significant import.
[2021] 8 CLJ & Ors 389
A [144] It is pertinent to note, if only to be repetitive, that while the 1988

amendment removed those words from art. 121(1), importantly it also
retains that part of the provision which confers on the two High Courts their
jurisdiction and powers as may be conferred by or under federal law.
Parliament would not have legislated in that fashion if the intention was to
B remove judicial power from the two High Courts. The intention clearly was
to retain the judicial power of the two High Courts.
[145] For this reason, it is futile for the appellant to argue that those words
were taken out by Parliament for the purpose of removing the judicial power
of the two High Courts. With or without those words, judicial power is still
C vested in the two High Courts by virtue of art. 121(1) of the Constitution,
the extent of which remains the same before and after the removal of those
words, which is, “as provided by federal law” (before the amendment) and
“as conferred by or under federal law” (after the amendment). No more, no
less. They may be differently worded but they mean the same thing.
D
[146] Therefore, to say that the 1988 amendment has removed the judicial
power of the two High Courts is a gross distortion of the law and the facts.
In fact, by applying to the High Court for the writ of habeas corpus, the
appellant recognised that the High Court of Malaya had the jurisdiction and
power to grant the relief that he sought for. He cannot now turn around and
E say otherwise just because the decision was not to his liking.
[147] We were told that the decisions in Maria Chin and Rovin Joty were
wrongly decided, but we were not told what exactly are the principles
forming the ratio decidendi of Semenyih Jaya, Indira Gandhi and Alma Nudo
that this court in Maria Chin and Rovin Joty had “overlooked” and in what
F
way the alleged oversight has rendered the decisions in the two cases per
incuriam. I would want to believe that learned counsel is not suggesting that
Maria Chin and Rovin Joty have no morsel of a value as precedent.
[148] In line with his contention that Maria Chin and Rovin Joty were
decided per incuriam, counsel’s argument proceeded on the basis that s. 4 of
G
POCA was enacted in violation of the basic structure doctrine and therefore
void as it takes away judicial discretion from the hands of the Magistrate
when issuing the remand orders for a fixed and non-negotiable period of
21 days under sub-s. 4(1)(a) and a further fixed and non-negotiable period of
38 days under sub-s. 4(2)(a), totaling 59 days.
H
[149] It was a regurgitation of the “basic structure” argument that was
presented before three different panels of this court in Maria Chin, Rovin Joty,
and more recently in Zaidi Kanapiah v. ASP Khairul Fairoz Rodzuan & Ors and
Other Appeals [2021] 5 CLJ 581 (“Zaidi Kanapiah”) which argument was
rejected by all three panels, albeit by majority decisions. This is in addition
I
to the earlier decision of this court in Letitia Bosman v. PP & Other Appeals
[2020] 8 CLJ 147; [2020] 5 MLJ 277, which rejected similar line of
argument, in that case by a majority of 8:1.
[150] The present appeal is the fifth time in less than two years that the same A
argument was presented before this court. In Zaidi Kanapiah, Hasnah
Mohammed Hashim FCJ delivering the majority judgment of the court
emphatically ruled that the basic structure doctrine has no place in Malaysia.
The choice is either to put the ghost of the basic structure doctrine to rest
or to persist. B
[151] The per incuriam rule that learned counsel relied on to impugn this
court’s decisions in Maria Chin and Rovin Joty is a principle developed by
the English courts in relaxation of the doctrine of stare decisis or binding
judicial precedent. In Morelle Ltd v. Wakeling [1955] 2 QB 379 Sir Raymond
Evershed MR of the English Court of Appeal said that as a general rule the C
only cases in which decisions should be held to have been given per incuriam
are:
(i) those decisions given in ignorance or forgetfulness of some inconsistent
statutory provision; or
D
(ii) some authority binding on the court concerned
so that in such cases some part of the decision or some step in the reasoning
on which it is based is found, on that account to be demonstrably wrong.
[152] In the earlier case of Huddersfield Police Authority v. Watson [1947]
E
2 All ER 193 Lord Goddard, CJ of the King’s Bench Division observed:
Where a case or statute had not been brought to the court’s attention and
the court gave the decision in ignorance or forgetfulness of the existence
of the case or statute, it would be a decision rendered in per incuriam.
[153] Thus, a decision that is rendered per incuriam is a decision that fails F
to apply a relevant statutory provision or ignores a binding precedent. Going
by the definition of “per incuriam” given in Morelle Ltd and Huddersfield Police
Authority, it is perplexing how it can be said that Maria Chin and Rovin Joty
were decided per incuriam. In the first place, this court in the two cases was
not strictly bound by the doctrine of stare decisis such that it must abide by G
the decisions in Semenyih Jaya, Indira Gandhi and Alma Nudo. Secondly,
counsel has not shown which “inconsistent statutory provision” this court in
Maria Chin and Rovin Joty had forgotten or was ignorant of.
[154] As for the correctness of the two decisions, it is really a matter of
opinion which can be set right by a subsequent bench if the decisions are H
found to be demonstrably wrong, but not on account of the stare decisis rule.
It is settled law that this court has the power to depart from its earlier
decision when it is right to do so. That is what this court did in PP v. Ooi
Khai Chin & Anor [1978] 1 LNS 161; [1979] 1 MLJ 112; PP v. Ismail Yusof
[1979] 1 LNS 75; [1979] 2 MLJ 119; Arulpragasan Sundaraju v. PP [1996] I
4 CLJ 597; [1997] 1 MLJ 1; Sivarasa Rasiah v. Badan Peguam Malaysia & Anor
[2010] 3 CLJ 507; and Tan Ying Hong v. Tan Sian San & Ors [2010] 2 CLJ
269, to cite just five instances.
[2021] 8 CLJ & Ors 391
A [155] In Sivarasa Rasiah, the case that opened the floodgates for the
application of the basic structure doctrine in Malaysia, this court departed
from the decision of the former Federal Court in Loh Kooi Choon
v. Government of Malaysia [1975] 1 LNS 90; [1977] 2 MLJ 187. In that case,
the former Federal Court had rejected outright the Indian basic structure
B doctrine that Mr Loh Kooi Choon attempted to introduce into this country,
and the apex court decision stood for some 33 years and was followed by
later decisions of this court before it was discarded by Sivarasa Rasiah in
2010.
[156] In departing from Loh Kooi Choon, Gopal Sri Ram FCJ who delivered
C the decision of the court relied primarily on the ground that the former
Federal Court’s reliance on the observations by Lord Mcnaghten in Vacher
& Sons Ltd v. London Society of Compositors [1913] AC 107, 118 was misplaced
as the remarks there were made in the context of a country whose Parliament
is supreme, unlike Malaysia where the Constitution is supreme.
D
[157] It needs to be pointed out that the basic structure doctrine had no
application in Sivarasa Rasiah as the case did not involve any amendment to
the Constitution, which is an essential feature of the doctrine. There the court
was only concerned with the constitutionality of s. 46A(1) of the Legal
Profession Act 1976, an ordinary law, which prohibited the appellant from
E being elected to the Bar Council. The question of the constitutionality of any
provision of the Constitution did not arise for the court’s consideration.
[158] In PP v. Kok Wah Kuan [2007] 6 CLJ 341, this is what Richard
Malanjum CJ (Sabah and Sarawak), who was a member of the three-judge
bench in Sivarasa Rasiah, said on the doctrine of binding judicial precedent:
F
The doctrine of binding judicial precedent exists to promote the principle
of justice that like cases should be decided alike. It also seeks to ensure
certainty, stability and predictability in the judicial process. There can be
no denying that the existence of this doctrine imposes some rigidity in the
law and limits judicial choices. But one must not ignore the fact that some
G flexibility and manoeuvrability still exist.
Though a superior court is generally reluctant to disregard its own
precedents, it does have the power ‘to refuse to follow’ its earlier decisions
or to cite them with disapproval. Our Federal Court has, on some
occasions, overruled itself. High Court judges occasionally refuse to
H follow other High Court decisions. An inferior court can manoeuvre
around a binding decision through a host of indirect techniques.
[159] Counsel appears to be suggesting that the time is ripe for this court to
depart from Maria Chin and Rovin Joty and to reinstate Sivarasa Rasiah,
Semenyih Jaya, Indira Gandhi and Alma Nudo. I am not prepared to accept the
I idea. Counsel’s argument that s. 4 of POCA is unconstitutional ignores the
fact that the majority in Zaidi Kanapiah had ruled otherwise. It is an attempt
to persuade us to depart from the 3:2 majority decision in that case, which
decided that s. 4 of POCA is constitutional.
[160] Lest we forget, there is high authority to say that we cannot do so. In A
Kumpulan Perangsang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11; [1997]
1 MLJ 789 Gopal Sri Ram JCA (as he then was) delivering the decision of
the then Supreme Court had this to say:
Counsel for the appellant, however, invited us to depart from the majority
views expressed in Rama Chandran and to uphold the minority judgment B
of Wan Yahya FCJ. We must emphatically reject this invitation for two
reasons.
First, although Rama Chandran was decided by a majority, it is
nevertheless a decision of this court. Contrary to any view that may be
held in any quarter, this court is bound by its own decisions, whether C
arrived at unanimously or by a majority. And the correctness of the
decisions of this court may not be called into question save and except
before a larger bench of this court specially convened by or upon the
direction of the Chief Justice. It is therefore not open for one division of
this court to reverse the decision of another division given in the earlier
case. If a contrary situation be permitted, then no decision of the apex D
court will be safe as precedent and uncertainty in law will prevail. For like
reasons, the Court of Appeal is bound by its own decisions. See Hendry
v. De Cruz [1949] MLJ (Supp) 25.
In dealing with an argument such as that presented before us, it is useful
to remind ourselves of the basic philosophy of our common law. That E
philosophy is housed in the expression ‘certainty through precedent’. Its
main object is to enable members of the public to organize their affairs
in accordance with law and for legal advisers to advise their clients with
fair accuracy about the state of the law in order to avoid wasteful and
unnecessary litigation. A rule by which one division of this court is not
to be bound by the decisions of another division will therefore undermine F
the very foundations upon which our common law rests and cannot
therefore be countenanced.
Second, and more importantly, we accept that for the reasons set forth
herein, the majority judgments in Rama Chandran are correct and that the
minority judgment of Wan Yahya FCJ is wrong. To merely say that G
because a reasonable tribunal would have found the dismissal to have
been unjust and leave the matter there without more is to abdicate the
judicial review function entrusted to the superior courts by the Federal
Constitution and Parliament.
[161] The saving grace is that the second reason above, which the learned
H
judge described as more important than the first, implies that the majority
view in the earlier case can still be departed from if it is an incorrect decision.
In the case before us, the appellant wants the best of both worlds. He wants
us to depart from Zaidi Kanapiah on the constitutionality of s. 4 of POCA
where the decision was against him by a majority of 3:2, yet on the academic
issue which was decided in his favour by a majority of 4:1, he wants us to I
desist from doing so. Either way it is his way or no way.
[2021] 8 CLJ & Ors 393
A [162] On the issue of larger and smaller benches of the Federal Court, it was
the submission of learned counsel for the appellant that the majority in Maria
Chin and Rovin Joty had disobeyed judicial courtesy by departing from Alma
Nudo, stressing the point that Alma Nudo was decided by a bench of nine
judges whereas Maria Chin and Rovin Joty were decided by smaller benches
B of seven and five judges, and that too by majority of 4:3 and 4:1 respectively.
Size does matter to the appellant.
[163] Like the doctrine of basic structure which originates from India, the
principle that size does matter is also a principle that originates from the
subcontinent, as can be seen from the Indian Supreme Court case of A.R.
C Antulay v. R.S. Nayak And Another [1988] 1 MLJ (Crl) 501 where Sabyasachi
Mukharji J (later Chief Justice of India) in his majority judgment said:
43. The principle that the size of the Bench – whether it is comprised of
two or three or more Judges – does not matter, was enunciated in Young
v. Bristol Aeroplane Co. Ltd [1944] 2 All E.R. 293, 300 and followed by Justice
D Chinnappa Reddy in Javed Ahmed Abdul Hamid Pawala v. State of
Maharashtra [1985] 2 S.C.R. 8: [1985] 1 S.C.C 275: 1984 S.C.C. (Crl) 653
where it has been held that a Division Bench of three judges should not
overrule a Division Bench of two judges, has not been followed in our
Courts. According to well settled law and various decisions of this Court,
it is also well settled that a Full Bench or a Constitution Bench decision
E as in 1952 S.C.R. 284: A.I.R. 1952 S.C. 75: 1952 Crl. L.J. 510, was binding
on the Constitution Bench because it was a Bench of seven Judges.
44. The principle in England that the size of the Bench does not matter,
is clearly brought out in the decision of Evershed, MR. in the case of
Morelle v. Wakeling Morelle v. Wakeling [1955] 1 All E.R. 708, 718-F. The law
F laid down by this Court is somewhat different. There is a hierarchy within
the Court itself here, where larger Benches overrule smaller Benches. See
the observations of this Court in Mattulal v. Radhe v. Radhe Lal Mattulal
v. Radhe Lal [1975] 1 S.C.R. 127: [1974] 2 S.C.C. 365: A.I.R. 1974 S.C. 1596,
Union of India v. K.S. Subramaniam Union of India v. K.S. Subramaniam
[1977] 1 S.C.R. 87, 92: [1976] 3 S.C.C. 677, 681: A.I.R. 1976 S.C. 2433 and
G State of U.P. v. Ram Chandra Trivedi [1977] 1 S.C.R 462, 475: [1976] 4 S.C.C.
52, 64. A.I.R. 1976 S.C. 2547. This is the practice followed by this Court
and now it is a crystallised rule of law. See in this connection, as
mentioned hereinbefore, the observations of the State of Orissa v. Titaghur
Paper Mills State of Orissa v. Titaghur Paper Mills [1985] 3 S.C.R 26: 1985
S.C.C. (Supp) 280.
H
[164] Incidentally it was my learned sister Justice Zabariah Mohd Yusof
who wrote the majority judgment in Rovin Joty and myself who wrote the
majority judgment in Maria Chin. The criticism leveled against the two
judgments was pursued with vigour in the present appeal. Learned counsel
reminded us not to “tamper” with the decision in Zaidi Kanapiah on the
I
academic issue or else we are going to set the law into “great disorder”. This
is what learned counsel said (verbatim from the zoom recording of the
proceedings):
What Zaidi bin Kanapiah did was by majority of four judges..sorry majority A
of three judges ... 3-2. It’s a five-man bench, five justice bench, 3-2,
majority of 3-2. So the majority decision stands today. If Your Lordships
and my Lady are going to tamper with it, then you are going to set the
law into great disorder ... Err ... thats my first point. The second point I
make is, that there is the doctrine of ... err ... err ... prospective overruling
does not apply and I cannot over emphasise..I cannot with great respect B
over emphasise the necessity to adhere to precedent. If I could just share
the screen one judgment from the Indian Supreme Court by Justice Dr
Bhandari the case of Siddharam and the State of Maharashtra paragraph 138.
[165] Paragraph 138 of the judgment in Siddharam Satlingappa Mhetre v. State
of Maharashtra [2011] 1 SC 694 that learned counsel referred to reads as C
follows:
138. The analysis of English and Indian law clearly leads to the irresistible
conclusion that not only the judgment of the larger strength is binding
on a judgment of a smaller strength but the judgment of a co-equal
strength is also binding on a Bench of Judges of co-equal strength. In the D
instant case, judgments mentioned in paras 124 and 125 are by two or
three Judges of this Court. These judgments have clearly ignored the
Constitution Bench judgment of this Court in Sibbia case which has
comprehensively dealt with all the facets of anticipatory bail enumerated
under Section 438 CrPC. Consequently, all the judgments mentioned in
paras 124 and 125 of this judgment are per incuriam. E
[166] On the strength of the above dicta by Dr Dalveer Bhandari J of the

Indian Supreme Court, counsel concluded his oral submissions with the
following proposition:
So ... (inaudible) where you do not follow the judgment of a larger bench F
then the decision of the smaller bench is regarded as per incuriam ...
[167] With due respect, to accept the proposition is to desecrate the meaning
of “per incuriam” given in Morelle Ltd and Huddersfield Police Authority. There
is nothing in the two judgments to say that where a smaller bench does not
follow the judgment of a larger bench, the decision will be rendered G
per incuriam. If counsel had wanted us to depart from the generality of the
per incuriam rule, he had not proffered any reason why we should do so.
Instead, what counsel was trying to impress upon us was that being a smaller
bench of three judges, this panel cannot depart from the decision of the larger
panel of five judges in Zaidi Kanapiah as to do so would render our decision H
on the academic issue per incuriam.
[168] In Zaidi Kanapiah, the majority (four of the five judges) had decided
that the issue of the legality of the appellant’s detention was not academic
despite the fact that his detention period of 21 days issued under s. 4(1)(a)
of POCA had expired by the time his application for the writ of habeas corpus I
was heard.
[2021] 8 CLJ & Ors 395
A [169] In that case, the learned Chief Justice in her minority judgment
(majority on the academic issue) spoke of the difference between larger and
smaller benches and the doctrine of stare decisis. This was how the learned
Chief Justice eruditely expressed her opinion at paras. 206-211:
[206] This court in Faizal Haris thus effectively overruled Ezam. Given the
B line of argument and the divergent views on the two lines of authorities,
it is pertinent to examine the law on this subject.
[207] The first point is on the difference between larger and smaller
benches. In this regard, this is what Peh Swee Chin FCJ observed in Dalip
Bhagwan Singh v. PP [1997] 4 CLJ 645; [1998] 1 MLJ 1 (“Dhalip”), at
C p. 662 (CLJ) p. 14 (MLJ):
In this connection, the question of a “full court” or a panel of the
Federal Court comprising more than three members as compared
with the ordinarily constituted coram of three members of the
same court, arises for consideration. In view of the reasons about
D
departing from its previous decisions advanced above, the effect or
weight of a decision of a “full court” and that of an ordinary coram
is the same by necessary implication. A full court or a panel larger
than the ordinary coram is usually indicated such as when an
unusually difficult or controversial question of law is involved, or
a question arises as to whether a previous decision of the Federal
E Court ought to be overruled.
[208] The above passage, to my mind, establishes two principles. Firstly,
strictly speaking within the context of our written law, there is no
difference in law between a judgment delivered by a smaller bench or a
larger bench. This may be inferred from s. 77 of the CJA which provides
that “proceedings shall be decided in accordance with the opinion of the
F
majority of the judges comprising the court”. In terms of written law
therefore, the number of judges from case to case does not strictly matter.
This is because the majority judgment of the court generally becomes law
and binding precedent in all subsequent cases. It is therefore not a ground
per se to overrule a subsequent decision of the smaller bench which had
G departed from the larger bench.
[209] Be that as it may, the second portion of the passage establishes that
the number of judges from case to case is nonetheless relevant in terms
of the principles of stare decisis – a principle followed assiduously by our
courts for nearly a century though it is not expressly contained in our
written law. Viewed from this angle, the above dictum of Peh Swee Chin
H FCJ suggests that the strength and size of a bench in a previous case is
one relevant factor when determining whether or not that previous
decision ought to be followed in a subsequent case.
[210] Minimally, the non-compliance of a smaller bench of the same court
in a subsequent case to a decision of the court delivered by a larger bench
I in the previous case goes to judicial integrity and courtesy. Dhalip
explained the circumstances in which the apex court ought to depart from
its previous decisions which is an exercise not governed by the FC or
statute. While it is true that there is no legal basis in written law to hold A
a smaller bench to the decision of a larger bench in a previous decision,
it is a matter of stare decisis and judicial policy aimed at preserving public
confidence in the Judiciary.
[211] The importance of adherence to the doctrine of stare decisis lies in
the fact that it has become the cornerstone of the common law practiced B
in this country. It is fundamental that decisions of the courts, especially
of the apex court, ought to be consistent, in the interests of finality and
certainty in the law. Otherwise, the public and lawyers who have regulated
their affairs in reliance on a ratio decidendi before it is overruled will face
difficulty and confusion in organizing their affairs around such judgments
and this in turn will affect public confidence in the Judiciary (see Dato’ Tan C
Heng Chew v. Tan Kim Hor & Another Appeal [2006] 1 CLJ 577; [2006] 2 MLJ
293; PP v. Datuk Tan Cheng Swee & Anor [1980] 1 LNS 58; [1980] 2 MLJ
276. See also Kerajaan Malaysia & Ors v. Tay Chai Huat [2012] 3 CLJ 577;
[2012] 3 MLJ 149. If a smaller bench in one case refuses to follow a
decision of a larger bench in a previous case deciding the same point of
law, the correctness of the decision of that smaller bench ought to be D
subjected to a higher scrutiny by a subsequent panel of the court – more
so in constitutional cases and cases involving fundamental liberties.
[170] I am mindful that a minority judgment does not have any force of law
(Yong Tshu Khin & Anor v. Dahan Cipta Sdn Bhd & Anor And Other Applications
[2021] 1 CLJ 631; [2021] 1 MLJ 478) but I am attracted by two propositions E
of law expounded by the learned Chief Justice in her judgment which I shall
embrace as my own. The first is that while it is of great importance to
maintain consistency in the decisions of the apex court for the sake of finality
in the law and to preserve public confidence in the Judiciary, there is no
difference in law between a judgment delivered by a smaller bench and a F
judgment delivered by a larger bench.
[171] The second is that if a smaller bench in one case refuses to follow the
decision of a larger bench in a previous case deciding the same point of law,
the correctness of the decision of that smaller bench ought to be subjected to
greater scrutiny by a subsequent panel of the court. G
[172] What the second proposition postulates is that it is the correctness of

the decision that counts and not the size of the bench, large or small. It has
never been the law in Malaysia that a smaller bench of the apex court cannot
depart from the decision of a larger bench. This appears to be the position
in the UK as well. In Conway v. Rimmer [1968] AC 919 a five member bench H
of the House of Lords comprising Lord Reid, Lord Morris of Borth-Y-Guest,
Lord Hodson, Lord Pearce and Lord Upjohn overruled the decision of a
seven member bench of the same House in Duncan v. Cammell, Laird & Co Ltd
[1942] 1 All ER 58 comprising Viscount Simon LC, Lord Thankerton, Lord
Russell of Killowen, Lord Macmillan, Lord Wright, Lord Porter and Lord I
Clauson. Learned counsel for the appellant was therefore off tangent when
[2021] 8 CLJ & Ors 397
A he said that the decision of a smaller bench that does not follow the decision
of a larger bench in a previous case would be a decision that is given per
incuriam.
[173] In the case of Dalip Bhagwan Singh v. PP [1997] 4 CLJ 645; [1998] 1
MLJ 1 (“Dalip Bhagwan Singh”) that the learned Chief Justice referred to in
B
Zaidi Kanapiah, one of the questions of law posed for this court’s
determination by way of a reference under the old s. 66 (since repealed) of
the Courts of Judicature Act 1964, and which may be indirectly relevant
(if at all) to the issues raised by the appellant in the present appeal, was as
follows:
C
In an appeal against acquittal at the close of the case of the Prosecution,
can an Appellate Judge refuse to apply with or without assigning any
reason, the latest decision of the Supreme Court on a point of law and
adopt an earlier decision of the Federal Court?
[174] Implicit in the question is the existence of a conflict between an earlier
D
decision of the Federal Court and a later decision of the Supreme Court. The
question for the court’s determination was, which decision of the apex court
should the High Court sitting in its appellate jurisdiction apply, the latest
decision of the Supreme Court or the earlier decision of the Federal Court?
That is the context in which the decision in Dalip Bhagwan Singh is to be
E understood.
[175] Having considered the authorities, this court answered the question in
the negative, that is to say, an appellate judge cannot refuse to apply, with
or without assigning any reason, the latest decision of the Supreme Court on
a point of law and adopt an earlier decision of its forerunner the Federal
F
Court.
[176] The proposition of law formulated by this court in that case was that
when two decisions of the apex court collide on a point of law, the later
decision prevails over the earlier. That is the ratio decidendi of the case and
G
it only applies to courts below the apex court. This court’s observations on
the issue of larger and smaller benches of the Federal Court must be taken
as obiter dicta as it was not essential for the court to decide on the issue in
determining the answer to the reference question, which is reproduced again
below for ease of reference:
H In an appeal against acquittal at the close of the case of the Prosecution,
can an Appellate Judge refuse to apply with or without assigning any
reason, the latest decision of the Supreme Court on a point of law and
adopt an earlier decision of the Federal Court?
[177] Obiter dictum is a Latin expression which means that which is said
I en passant (in passing), an incidental statement. Observations made by the
judge in the course of his judgment, but which are not essential for the
decision reached are obiter dicta. Ratio decidendi on the other hand refers to
the principle of law formulated by the judge for the purpose of deciding the A
problem before him. It is essential to distinguish between ratio decidendi and
obiter dictum as ratio decidendi is the binding part of the case but not obiter
dictum. As I said in Maria Chin, care must be taken to separate the wheat
from the chaff.
B
[178] Persuasive as the observations in Dalip Bhagwan Singh may be on the
issue of smaller and larger benches, it needs to be appreciated that this court
in that case was not called upon to decide whether a smaller bench of the
Federal Court can depart from the decision of a larger bench. That was not
the issue before the court in that case. Rather, the issue before the court was
whether the High Court sitting in its appellate jurisdiction could refuse to C
apply the latest decision of the apex court in preference to its earlier decision.
In short, Dalip Bhagwan Singh was concerned with the doctrine of stare decisis
which, as I mentioned, applies only to courts below the Federal Court. As
for the Federal Court itself, it is only constrained by the per incuriam rule.
D
[179] Be that as it may, given the persuasive value of Dalip Bhagwan Singh
on the three issues raised by the appellant, namely larger versus smaller
benches, judicial precedent and the per incuriam rule, I am taking the liberty
and it will not be out of place in my view to reproduce in extenso the
following observations by Peh Swee Chin FCJ which provide useful and
comprehensive guidance on all three issues: E
The doctrine of stare decisis or the rule of judicial precedent dictates that
a court other than the highest court is obliged generally to follow the
decisions of the courts at a higher or the same level in the court structure
subject to certain exceptions affecting especially the Court of Appeal.
F
The said exceptions are as decided in Young v. Bristol Aeroplane Co. Ltd
[1944] KB 718. The part of the decision in Young v. Bristol Aeroplane in
regard to the said exceptions to the rule of judicial precedent ought to be
accepted by us as part of the common law applicable by virtue of Civil Law
Act 1956, vide its s. 3.
To recap, the relevant ratio decidendi in Young v. Bristol Aeroplane’s case is G
that there are 3 exceptions to the general rule that the Court of Appeal
is bound by its own decisions or by decisions of courts of co-ordinate
jurisdiction such as the Court of Exchequer Chamber. The three
exceptions are first, a decision of Court of Appeal given per incuriam need
not be followed, secondly, when faced with a conflict of past decisions
of Court of Appeal, or a court of co-ordinate jurisdiction, it may choose H
which to follow irrespective of whether either of the conflicting decisions
is an earlier case or a later one, thirdly, it ought not to follow its own
previous decision when it is expressly or by necessary implication
overruled by the House of Lords, or it cannot stand with a decision of
the House of Lords. There are of course further possible exceptions in
I
[2021] 8 CLJ & Ors 399
A addition to the three exceptions in Young v. Bristol Aeroplane when there

may be cases the circumstances of which cry out for such new exceptions
so long as they are inconsistent with the 3 exceptions in Young v. Bristol
Aeroplane.
A few words need to be said about a decision of Court of Appeal made
B per incuriam as mentioned above. The words “per incuriam” are to be
interpreted narrowly to mean as per Sir Raymond Evershed, MR in Morelle
v. Wakeling [1955] 2 QB 379, 406 as a “decision given in ignorance or
forgetfulness of some inconsistent statutory provision or of some
authority binding in the court concerned so that in such cases, some part
of the decision or some step in the reasoning on which it is based, is
C found on that account to be demonstrably wrong.” It should be borne in
mind the year of the Morelle’s case is 1955 whereas s. 3 of the Civil Law
Act was enacted in 1956. The ratio in Morelle’s case is also part of the
common law applicable to us.
In this connection, it is interesting to refer to Cassell & Co. v. Broome [1972]
D AC 1027, 1054. It was held that courts in the lower tiers below the Court
of Appeal could not rely on the per incuriam rule applied by the Court of
Appeal for itself, but could choose between two conflicting decisions. We
may add that they may choose, whatever the dates of the conflicting
decisions, as such dates do not matter to the Court of Appeal itself.
The rule of judicial precedent in relation to the House of Lords was stated
E in London Tramways v. London County Council [1898] AC 375 that it was
bound by its own previous decision in the interests of finality and
certainty of the law, but a previous decision could be questioned by the
House when it conflicted with another decision of the House or when it
was made per incuriam, and that the correction of error was normally
dependent on the legislative process.
F
However, in 1966, Lord Gardiner LC made the following statement on
behalf of himself and all the Lords of Appeal in Ordinary commonly
known as the “Practice Statement (Judicial Precedent) 1966” which is set
out below:
G LORD GARDINER LC: Their Lordships regard the use of

precedent as an indispensable foundation upon which to decide
what is the law and its application to individual cases.
It provides at least some degree of certainty upon which
individuals can rely in the conduct of their affairs, as well as a basis
for orderly development of legal rules.
H
Their Lordship nevertheless recognize that too rigid an adherence to
precedent may lead to injustice in a particular case and also unduly restrict
the proper development of the law.
They propose, therefore, to modify their present practice and, while
I treating former decisions of this House as normally binding, to depart
from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing A

retrospectively the basis on which contracts, settlements of property and
fiscal arrangements have been entered into and also the need especially
for certainty to the criminal law.
This announcement is not intended to affect the use of precedent
elsewhere than this House. B
Experience in the United Kingdom has shown that the power “to depart
from a previous decision when it appears right to do so” has been used
very sparingly.
In Malaysia, the Federal Court and its forerunner ie Supreme Court, after
all appeals to the Privy Council were abolished, has never refused to C
depart from its own decision when it appeared right to do so, see the
above-mentioned Federal Court’s cases on the question of burden of
proof at the close of prosecution case.
Though the Practice Statement (Judicial Precedent) 1966, of the House
of Lords is not binding at all on us, it has indeed and in practice been D
followed, though such power to depart from its own previous decision has
been exercised sparingly also. It is right that we in the Federal Court,
should have this power to do so but it is suggested that it should be used
very sparingly on the important reason of the consequences of such
overruling involved for it can not be lost on the mind of anybody that
a lot of people have regulated their affairs in reliance on a ratio decidendi E
before it is overruled. In certain circumstances, it would be more prudent
to call for legislative intervention. On the other hand, the power to do
so depart is indicated (subject to a concurrent consideration of the
question of the consequences), when a former decision which is sought
to be overruled is wrong, uncertain, unjust or outmoded or obsolete in
the modern conditions. F
In this connection, the question of a “full court” or a panel of Federal

Court comprising more than 3 members as compared with the ordinarily
constituted quorum of 3 members of the same court, arises for
consideration. In view of the reasons about departing from its previous
decisions advanced above, the effect or weight of a decision of a “full G
court” and that of an ordinary quorum is the same by necessary
implication. A full court or a panel larger than the ordinary quorum is
usually indicated such as when an unusually difficult or controversial
question of law is involved, or a question arises as to whether a previous
decision of the Federal Court ought to be overruled.
H
If the House of Lords, and by analogy, the Federal Court, departs from
its previous decision when it is right to do so in the circumstances set out
above, then also by necessary implication, its decision represents the
present state of the law. When two decisions of the Federal Court
conflict, on a point of law, the later decision therefore, for the same
reasons, prevails over the earlier decision. I
[2021] 8 CLJ & Ors 401
A [180] The reference to the highest court in the first paragraph of the above
excerpts is a reference to the Federal Court, which reinforces the view that
the apex court is not subject to the doctrine of stare decisis or the rule of
binding judicial precedent.
[181] The need for certainty in judicial decisions by the apex court was also
B
discussed in Asia Pacific Higher Learning Sdn Bhd v. Majlis Perubatan Malaysia
& Anor [2020] 3 CLJ 153 where Azahar Mohamed CJ (Malaya) in his
supporting judgment said:
[79] ... Any decision of the Federal Court must be treated with utmost
deference. More significantly, in my opinion, it is not a good policy for
C us at the highest court of the land to leave the law in a state of
uncertainty by departing from our recent decisions. That will put us in a
bad light as the Federal Court will then purports to be in a state of
quandary when deciding a case. It is also a bad policy for us to keep the
law in such a state of uncertainty particularly upon a question of
interpretation ...
D
[81] As one would expect, even though judges should not follow previous
decisions blindly as stated in Chiu Wing Wa & Ors v. Ong Beng Cheng [1994]
1 CLJ 313; [1994] 1 MLJ 89 because some facts of the previous case might
not apply to the present case despite the same term used, a situation
where Federal Court decisions change like a swinging pendulum is
E nevertheless best avoided to ensure finality and certainty of the law.
Definiteness and certainty of the legal position are essential conditions for
the growth of the rule of law (see: The Bengal Immunity Community Limited
v. The State of Bihar [1955] 2 SCR 603).
[82] Now, I am not saying that the Federal Court should never depart
F from an earlier decision. I recognize that while continuity and consistency
are conducive to the smooth evolution of the rule of law, hesitancy to
set right deviations will retard its growth. Although certainty is important,
justice would be the paramount consideration when deciding a case. If
judges found that there was error in law resulting to injustice, it is the
duty of the Federal Court Judges to correct and ensure justice by
G departing from the previous decided cases. Bhagwati J, in Distributors
(Baroda) Pvt Ltd v. Union of India and Ors AIR [1985] DC 1585 observed:
... It is essential that there should be continuity and consistency in
judicial decisions and law should be certain and definite. It is
almost as important that the law should be settled permanently as
H that it should be correctly. But there may be circumstances where
public interest demands that the previous decision be reviewed and
reconsidered. The doctrine of stare decisis should not deter the
Court from overruling an earlier decision, if it is satisfied that such
decision manifestly wrong or proceeds upon a mistaken
assumption in regard to existence or continuance of a statutory
I provision or is contrary.
To another decision of the Court. “It was Jackson, J. who said in A

his dissenting opinion in Massachussetts v. United States [1947] 333
U.S. 611: I see no reason why I should be consciously wrong today
because I was unconsciously wrong yesterday”. Lord Denning also
said to the same effect in Ostime v. Australian Mutual Provident Society
[1960] AC 459: “The doctrine of precedent does not compel your
Lordships to follow the wrong path until you fall over the edge of B
the cliff”.
[83] Indeed, the doctrine of stare decisis dictates that as a matter of a
general rule of great importance the Federal Court is bound by its own
previous decisions. However, there are exceptional circumstances that
allow them to depart from the earlier decision, but such power must be C
used sparingly (see: Kumpulan Perangsang Selangor Bhd v. Zaid Mohd Noh
[1997] 2 CLJ 11; [1977] 1 MLJ 789, Dalip Bhagwan Singh v. PP [1997] 4 CLJ
645; [1998] 1 MLJ 1 and Merck Sharp Dohme Group & Anor v. Hovid Bhd
[2019] 9 CLJ 1. It would be prudent to exercise such power when a former
decision, which is sought to be overruled, is wrong, uncertain, unjust,
outmoded or absolete in the modern conditions. D
[182] The words of wisdom of the learned CJ (Malaya) in para. [82] above
bears repetition, that although certainty is important, justice would be the
paramount consideration when deciding a case. Nothing can be closer to the
truth. Indeed, as Lord Denning said in Ostime v. Australian Mutual Provident
Society [1960] AC 459: E
The doctrine of precedent does not compel your Lordships to follow the
wrong path until you fall over the edge of the cliff.
[183] In Reg v. National Insurance Commissioner, Ex parte Hudson [1972] AC
944, 966, this is what Lord Reid said in relation to the question whether the F
House of Lords should adhere rigidly to precedent:
The old view was that any departure from rigid adherences to precedent
would weaken [the certainty of the law]. I did not and do not accept that
view. It is notorious that where an existing decision is disapproved but
cannot be overruled courts tend to distinguish it on inadequate grounds. G
I do not think that they act wrongly in doing so: they are only adopting
the less bad of the only alternatives open to them. But this is bound to
add to uncertainty for no one can say in advance whether in a particular
case the court will or will not feel bound to follow the old unsatisfactory
decision. On balance it seems to me that overruling such a decision will
promote and not impair the certainty of the law. H
[184] Lord Reid of course went on to say that this certainty will be impaired
unless the practice is used sparingly, adding that he would not however seek
to categorise cases in which it should or cases in which it should not. In
Gibson v. Government of the United States of America [2007] 1 WLR 2367;
[2007] UKPC 52, Lord Brown of Eaton-Under-Heywood delivering the I
majority decision of the Judicial Committee of the Privy Council spoke in
similar vein when he said:
[2021] 8 CLJ & Ors 403
A 22. The third issue frankly is the difficult one on this appeal and on this
issue, clearly, there is room for two views. There are, indeed, powerful
arguments available to both sides. Stare decisis is an important principle.
The virtues of certainty and finality hardly need emphasis or elaboration.
As Lord Wilberforce said in Fitzleet Estates Ltd v. Cherry [1977] 1 WLR
1345, 1349:
B
Nothing could be more undesirable ... than to permit litigants, after
a decision has been given by this House with all appearance of
finality, to return to this House in the hope that a differently
constituted committee might be persuaded to take the view which
its predecessors rejected. True that the earlier decision was by a
C majority: I say nothing as to its correctness or as to the validity of
the reasoning by which it was supported. That there were two
eminently possible views is shown by the support for each by at any
rate two members of the House. But doubtful issues have to be
resolved and the law knows no better way of resolving them than
by the considered majority opinion of the ultimate tribunal.
D
But the principle is not an absolute one. In the Privy Council it never was.
And since the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 the
House of Lords too has been free to depart from its own previous
decisions. As Lord Bingham of Cornhill recently said in Horton v. Sadler
[2007] 1 AC 307, 323, para 29:
E As made clear in the [Practice Statement] former decisions of the
House are normally binding. But too rigid adherence to precedent
may lead to injustice in a particular case and unduly restrict the
development of the law. The House will depart from a previous
decision where it appears right to do so.
F [185] In the recent case of Peninsula Securities Ltd v. Dunnes Stores (Bangor)
Ltd [2020] UKSC 36, the UK Supreme Court departed from the House of
Lords decision in Esso Petroleum Co Ltd v. Harper’s Garage (Stourport) Ltd
[1967] 1 All ER 699 because the pre-existing freedom test favoured by the
majority in the Esso case did not deserve its place in the doctrine of restraint
G of trade and had been consistently criticised over many years and scarcely
defended, and had been rejected in many other common law jurisdictions.
[186] Another example where the House of Lords departed from its earlier
decision is R v. Shivpuri [1986] 2 All ER 334 where it overruled its own
decision in Anderton v. Ryan [1985] 2 All ER 355. In that case, Lord
H Hailsham of St Marylebone LC in the course of his judgment made the
following observations, amongst others:
The first comment I make is that I believe that this is the first time that
the 1966 Practice Statement (Note) [1966] 3 All ER 77, [1966] 1 WLR
1234) has been applied to a decision as recent as that in Anderton v. Ryan
I [1985] 2 All ER 355, [1985] AC 560. Ordinarily I have been loath to take
so bold a step, even though I may have entertained privately the thought
that such a case so recently and so carefully considered and supported by A

two such powerfully reasoned judgments was nevertheless seriously open
to question. Quite clearly a departure from recent decisions by means of
the 1966 Practice Statement has dangers of its own which are too obvious
to need elaboration. But there is obviously much to be said for the view
about to be addressed by my noble and learned friend that ’If a serious
error embodied in a decision of this House has distorted the law, the B
sooner it is corrected the better’. This consideration must be of all the
greater force when the error, as in the present case, to be corrected by a
palinode composed by one of the original authors of the majority
judgment.
[187] Coming back to the present case, my learned sister Justice Zabariah C
Mohd Yusof has pointed out in her judgment that this court in Mohd Faizal
Haris v. Timbalan Menteri Dalam Negeri Malaysia & Ors [2005] 4 CLJ 613
(“Faizal Haris”) had departed from Mohamad Ezam Mohd Noor v. Ketua Polis
Negara & Other Appeals [2002] 4 CLJ 309 (“Mohamad Ezam”) by following
its earlier decision in Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] D
1 CLJ 81 (“Nasharuddin Nasir”).
[188] In Nasharuddin Nasir, the three-member bench comprising Mohamed
Dzaiddin Abdullah CJ, Steve Shim CJ (Sabah and Sarawak) and Siti Norma
Yaakob FCJ who made up three of the five member bench in Mohamad Ezam
had in fact resiled from the position that they took in that case, although they E
did not say so explicitly. This is clear from the judgment of Steve Shim CJ
(Sabah and Sarawak) who delivered the unanimous decision of the court.
This is what His Lordship said:
It is trite law that the remedy of habeas corpus is intended to facilitate the
release of persons actually detained in unlawful custody. It is the fact of F
detention which gives the court its jurisdiction (see Barnado v. Ford [1892]
AC 326). The observation by Choor Singh J in Re Onkar Shrian [1969] 1
LNS 155; [1970] 1 MLJ 28 is particularly instructive. He said:
Where the personal freedom of an individual is wrongly interfered
with by another, the release of the former from illegal detention G
may be effected by habeas corpus. The illegal detention of a subject,
that is a detention or imprisonment which is capable of legal
justification, is the basis of jurisdiction in habeas corpus.
The learned judge also quoted with approval the following passage in
Short & Mellor’s Practice on the Crown side, 2nd edn at p. 309:
H
The primary object of the writ is for the purpose of bringing the
body into court, and therefore, if that is impossible, the writ ought
not to issue. It should not be used punitively but only remedially.
In R v. Barnado [1892] AC 316, Lord Halsbury said that he could
not agree to the proposition that if a court is satisfied that illegal
detention has ceased before application for the writ has been I
made, nevertheless the writ might issue in order to vindicate the
[2021] 8 CLJ & Ors 405
A authority of the court against a person who has once, though not
at the time of the issue of the writ, unlawfully detained another
or wrongfully parted with the custody of another. In this the rest
of the court agreed.
In the result, Choor Singh J took the position that a writ of habeas corpus
B had to be addressed to the person or authority having actual custody of
the person allegedly to be detained illegally. That, in my view, represents
a correct statement of the law. In a situation where the court finds it
impossible to issue the writ because the person or authority no longer has
custody of the detainee, it should not hear the application. Indeed, it has
no jurisdiction to do so.
C
[189] Whichever way one looks at it, this later position that their Lordships
and Ladyship took conflicted with the position that they previously took in
Mohamad Ezam where the court speaking through Abdul Malek Ahmad FCJ
(as he then was) held that since the basis for the detention orders signed by
the Minister under s. 8 of the Internal Security Act 1960 (“the ISA”) was
D the outcome of the police investigation carried out on the appellants whilst
they were being detained under s. 73 of the ISA, the correctness of the
decision of the High Court (that the appellants’ detention by the police under
s. 73 of the ISA was lawful) remained a live issue and not academic.
[190] In the result, this court in Mohamad Ezam dismissed the preliminary
E
objection raised by the respondents that the second appellant’s appeal was
academic because he had been released from detention. It is inconceivable
that the three judges in Nasharuddin Nasir had made the decision in ignorance
or forgetfulness of their earlier decision in Mohamad Ezam as the case was
brought to their attention. Thus the possibility cannot be ruled out that they
F realised they had made a wrong call in Mohamad Ezam. In any event, it is
not the appellant’s case that the decision in Nasharuddin Nasir was made
per incuriam, ie, wrongly decided.
[191] It is not clear if this change of position by the three judges in
Nasharuddin Nasir was brought to the court’s attention in Zaidi Kanapiah but
G
it is certainly not reflected in both the majority and minority judgments
where all five judges wrote separate judgments. This raises doubts whether
the majority (four of the five judges) in Zaidi Kanapiah would still have
followed Mohamad Ezam on the academic issue had they been made aware
of the change of position taken by Dzaiddin Abdullah CJ, Steve Shim CJ
H (Sabah and Sarawak) and Siti Norma Yaakob FCJ in Nasharuddin Nasir.
[192] Nasharuddin Nasir was endorsed by Faizal Haris in the following terms
by Augustine Paul FCJ who delivered the unanimous decision of the court:
Be that as it may, that case made it clear that a court has no jurisdiction
I to hear a writ filed against the police for irregularities in a detention order
under s. 73(1) of the Internal Security Act 1960 when it had been
superseded by one under s. 8(1) thereby bringing into sharp focus the
propriety of the judgment of this court in Mohamed Ezam Mohd Noor A

v. Ketua Polis Negara & Ors [2002] 4 CLJ 309. The rationale underlying this
judgment would, with respect, render the stand taken in the later case
unsustainable in law.
[193] For all the reasons aforesaid, I concur with my learned sister Justice
Zabariah Mohd Yusof that the present appeal has become academic. Indeed B
it has, by virtue of the fact that the appellant is no longer being physically
detained pursuant to the remand order issued by the Magistrate under
s. 4(1)(a) of POCA. The High Court was therefore correct in dismissing the
appellant’s application for the writ of habeas corpus.
[194] I reject counsel’s argument that being a smaller bench of three judges, C
this panel cannot depart from the decision of the larger bench of five judges
in Zaidi Kanapiah on the academic issue. I have reminded myself that such
power to depart must be exercised very sparingly by this court given the
dangerous consequences of the exercise of such power, but having done so,
I feel bound by duty to depart from Zaidi Kanapiah on the academic issue as D
there are compelling enough reasons to render the decision unsustainable.
[195] The decisions of this court in Faizal Haris, Nasharuddin Nasir and all
other cases decided along the same line are reaffirmed. Mohamad Ezam must
stand overruled. My learned sister Justice Zabariah Mohd Yusof has had
sight of this supporting judgment in draft and has agreed to it. E
Vernon Ong Lam Kiat FCJ (dissenting):

[196] The hearing of this appeal was originally scheduled on 26 April 2021.
It was adjourned at the request of appellant’s counsel pending the decision
of this court in Zaidi Kanapiah v. ASP Khairul Fairoz Rodzuan & Ors And Other F
Appeals [2021] 5 CLJ 581. The application for adjournment was made on the
ground that the issues raised in the High Court are identical to the issues
raised in Zaidi Kanapiah. Zaidi Kanapiah was heard in December 2020 and
the decision was delivered on 27 April 2021.
[197] At the hearing of this appeal, learned counsel for the appellant Datuk G
Seri Gopal Sri Ram addressed the court on two main points – (i) the
academic issue and (ii) the non-compliance with the guidelines laid down by
this court in Zaidi Kanapiah.
[198] Learned counsel argued that the academic issue also came up in Zaidi
H
Kanapiah where three justices concurred with the Chief Justice on this point;
whilst Justice Hasnah’s stand on this point was not unequivocal, Justice
Hasnah nevertheless opined that in the interest of justice, the appellant should
be heard on the legality of the remand order issued against the appellants.
I
[2021] 8 CLJ & Ors 407
A [199] Learned counsel’s argument on the second issue was succinct and
direct to the point. It is this: the Magistrate granting the s. 4(1) remand order
did not exercise her discretion judicially to ensure that all the legal,
procedural, and constitutional safeguards have been complied with before
making the remand order. In particular, learned counsel argued that the
B respondents failed to discharge their burden of showing that the Magistrate
did in fact exercise her discretion judicially at the hearing of the remand
application under s. 4(1) POCA. As such, the Magistrate failed to adhere to
the guidelines laid down by this court in Zaidi Kanapiah.
[200] Apart from these two main points, there were three other points raised
C in the appellant’s written submissions, to wit, (i) constitutionality of s. 4
POCA; (ii) mala fides; and (iii) abuse of power.
[201] In reply, learned Senior Federal Counsel for the respondents
submitted that (i) the guidelines in Zaidi Kanapiah are per incuriam, (ii) the
guidelines impose an additional burden with repercussions on the
D
respondents, (iii) ss. 3 and 4 POCA was sufficient to provide the Magistrate
with judicial power. Secondly, it was also argued that the guidelines should
only have prospective effect. There are many cases involving many detainees
and if the guidelines were not prospective, they would result in fresh
applications for habeas corpus and the Magistrate would be made a respondent
E to these proceedings. Thirdly, SFC argued that the Magistrate cannot be
named as a respondent in a habeas corpus proceeding as it might affect his
impartiality.
Decision
F [202] The factual matrix and the legal issues obtain in this appeal and that
in Zaidi Kanapiah are similar. In a habeas corpus hearing, the burden is on the
respondents to show the court that the detention is lawful in that it complies
with all legal, procedural and constitutional safeguards.In this appeal,
however, as in Zaidi Kanapiah, it is not a detention order that is challenged
but a remand order made under s. 4(1) POCA. It is a remand order made by
G
a Magistrate, a judicial officer acting in a judicial capacity at the hearing of
a remand application. This is not a challenge against an administrative or
ministerial detention order. This distinction is critical to note.
[203] The issues raised by the appellant in the written submission have
H already been adjudicated and decided by this court in Zaidi Kanapiah.
This court held that s. 4 POCA is not unconstitutional. That the fact of a
supervening detention or remand does not render the habeas corpus
application academic. That the court is required in law to enquire into the
lawfulness of the detention or remand which forms the subject matter of
the habeas corpus application. The same can be said for the remaining
I
two issues on mala fides and abuse of power.
[204] More pertinently, this court in Zaidi Kanapiah has issued writs of A
habeas corpus on the ground that the respondents failed to show that the
Magistrate had exercised her discretion judicially to ensure that all legal,
procedural and constitutional safeguards have been complied with. I was
a member of the panel in Zaidi Kanapiah and I am not inclined to adopt
a different position. In my view, the law on the issues as laid down by this B
court in Zaidi Kanapiah is settled. I therefore agree with the submissions
of learned counsel for the appellants Datuk Seri Gopal Sri Ram and Gobind
Singh Deo. Accordingly, I would allow the appeal and issue a writ of
habeas corpus.
C

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Goh Leong Yong v.

ASP Khairul Fairoz Rodzu an

A GOH LEONG YONG v. ASP KHAIRUL FAIROZ RODZUAN

CONSTITUTIONAL LAW: Legislation – Constitutionality – Powers of court –

A (10) The meaning of ‘organised violence against persons or property’ is not

A sparingly by this court given the dangerous consequences of the exercise

pada 16 November 2020. Walau bagaimanapun, pada 13 November 2020, A

A bawah s. 4(2)(a) selama 38 hari dan perkara penahanan, untuk

dikeluarkan Majistret pada 31 Oktober 2020, untuk perayu direman dari A

A ‘habitually’ dipadamkan pada 2014 melalui Perintah Pencegahan

Oleh Abdul Rahman Sebli HMP (menyokong): A

(1) Kuasa kehakiman tidak pernah disingkir daripada kedua-dua Mahkamah

Case(s) referred to: A

A Ong Ah Chuan v. PP [1980] 1 LNS 181 PC (refd)

A At The High Court

(iv) Reliance on the ratio in the case of L Rajanderan R Letchumanan A

At The Federal Court

A [18] The principle established in Mohd Faizal Haris v. Timbalan Menteri

determining whether there has been procedural non-compliance of statutory A

A At p. 628 of the report:

whose detention under s. 3(1) is irregular. This is because just as in the A

A 6. Power to order detention and restriction of powers

B (b) the report of the Inquiry Officer submitted under subsection

A application for habeas corpus ought to be directed to the current detention

[31] This court in L Rajandren R Letchumanan (supra) referred to Mohd A

To detain a person under the Dangerous Drugs (Preventive Measures) Act, A

A likely to act in any manner prejudicial to the security of Malaysia, etc. In

adjudicated. This issue as to when the legality of the detention in a habeas A

(i) The Deputy Minister failed to consider whether criminal prosecution

A Whether Section 4 Of POCA Under Which The Detention Was Made Is

[77] Such a contention is without merit. In this regard, I refer to the

A [52] In the present appeals, Parliament is empowered by the FC to make

E [101] So that there is no violation of the doctrine of excessive delegation,

Part 1 of the First Schedule of POCA lists the Registrable Categories as A

The definition of “public order” has been discussed at length in

And Whereas Parliament considers it necessary to stop such action;

A (b) if no such statement is produced, and there are no other grounds

In addition, there is no procedural non-compliance of any statutory A

H 8. Because judicial power cannot be removed from the judiciary by way

[139] If the application were to be allowed, the amendment to art. 121(1) A

A [144] It is pertinent to note, if only to be repetitive, that while the 1988

[166] On the strength of the above dicta by Dr Dalveer Bhandari J of the

[172] What the second proposition postulates is that it is the correctness of

A addition to the three exceptions in Young v. Bristol Aeroplane when there

G LORD GARDINER LC: Their Lordships regard the use of

In this connection they will bear in mind the danger of disturbing A

In this connection, the question of a “full court” or a panel of Federal

To another decision of the Court. “It was Jackson, J. who said in A

that such a case so recently and so carefully considered and supported by A

propriety of the judgment of this court in Mohamed Ezam Mohd Noor A

Vernon Ong Lam Kiat FCJ (dissenting):

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