DENESH A/L SENTILVASAN 1. LEMBAGA PENCEGAHAN JENAYAH 2. PENGUASA KANAN, PUSAT PEMULIHAN KHAS, BENTONG, PAHANG

DENESH A/L SENTILVASAN 1. LEMBAGA PENCEGAHAN JENAYAH 2. PENGUASA KANAN, PUSAT PEMULIHAN KHAS, BENTONG, PAHANG

The detaining authority failed to comply with mandatory constitutional and statutory procedural safeguards (Article 151 and POCA provisions and regulations), failed to discharge the burden of proof (including failure to file material affidavits), failed to register required identifying particulars (photo and fingerprints) and failed to act with all convenient speed in submitting Form 4A; as a result the detention was unlawful and habeas corpus was granted, with immediate release of the applicant.

Citation
BA-44-238-08/2019 (Mahkamah Tinggi)
Parties
Pemohon: Denesh A/L Sentilvasan; Responden: Lembaga Pencegahan Jenayah; Responden: Penguasa Kanan, Pusat Pemulihan Khas Bentong, Pahang
Court
High Court
Jurisdiction
Malaysia
Judgment Date
30 January 2019
Case Number
BA-44-238-08/2019 (Mahkamah Tinggi)
Procedural Posture
Habeas Corpus (preventive Detention Under POCA 1959) / High Court Judgment (shah Alam, 12 July 2020)
Outcome
Application allowed; habeas corpus granted; detention declared unlawful; applicant released immediately.
Legal Topics
Habeas Corpus, Prevention of Crime Act 1959 (poca), Advisory Board Procedure, Registration Requirements (photo and Fingerprints), Delay in Investigation Report (form 4 A), Burden of Proof
Source Language
Malay/English
Constitutional Law Criminal Law Administrative Law Preventive Detention Habeas Corpus Prevention of Crime Act 1959 (poca) Advisory Board Procedure Registration Requirements (photo and Fingerprints) +2 more

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Parties

Denesh A/L Sentilvasan

Pemohon

Lembaga Pencegahan Jenayah

Responden

Penguasa Kanan, Pusat Pemulihan Khas Bentong, Pahang

Responden

Procedural Posture

Habeas Corpus (preventive Detention Under POCA 1959) / High Court Judgment (shah Alam, 12 July 2020)

Legal Issues

  1. 1 Non‑compliance with Article 151(1)/(2) of the Federal Constitution and Regulation 9(1) — presence and participation of a police officer (ASP Rasha) during advisory board representation and failure of that officer to file affidavit
  2. 2 Failure of detaining authority to discharge burden of proof in habeas corpus application
  3. 3 Whether Lembaga Pencegahan Jenayah acted ultra vires under section 10A(2) (issue not pressed in applicant's supporting affidavit)

Ratio Decidendi

The detaining authority failed to comply with mandatory constitutional and statutory procedural safeguards (Article 151 and POCA provisions and regulations), failed to discharge the burden of proof (including failure to file material affidavits), failed to register required identifying particulars (photo and fingerprints) and failed to act with all convenient speed in submitting Form 4A; as a result the detention was unlawful and habeas corpus was granted, with immediate release of the applicant.

Court Disposition

Application allowed; habeas corpus granted; detention declared unlawful; applicant released immediately.

Orders

  • Habeas corpus granted
  • Applicant to be released immediately from detention