SEJAHRATUL DURSINA @ CHOMEL BINTI ABDULLAH V KERAJAAN MALAYSIA & 3 ORS.

1 SEJAHRATUL DURSINA v. KERAJAAN MALAYSIA & ORS FEDERAL COURT, PUTRAJAYA ABDUL HAMID MOHAMAD, FCJ; PAJAN SINGH GILL, FCJ; ALAUDDIN MOHD SHERIFF, FCJ; RICHARD MALANJUM, FCJ; AUGUSTINE PAUL, FCJ CRIMINAL APPEAL NO: 05-54-2002 (B) 28 OCTOBER 2005 [2006] 1 CLJ 593 PREVENTIVE DETENTION : Detention - Application for habeas corpus - Appellant detained under s. 73(3) Internal Security Act 1960 - Restriction order issued by Minister against appellant - Whether writ of habeas corpus available to appellant - Whether appellant a restrictee rather than a detainee - Material date to be considered for purpose of deciding legality of an order of detention - Whether writ of habeas corpus nugatory - Criminal Procedure Code, s. 365 - Federal Constitution, art. 5(2) The appellant was arrested under s. 73(1) of the Internal Security Act 1960 ('ISA') . The appellant's mother filed an application pursuant to s. 365 of the Criminal Procedure Code ('CPC') for the issue of a writ of habeas corpus releasing the appellant. The application was heard on 4, 7 and 12 June 2002, a period during which the appellant was still under detention under s. 73(3) of the ISA . On 12 June 2002, the High Court fixed the date of the case's decision on 14 June 2002. On the same date (12 June 2002), the Minister, in exercise of the powers given to him by virtue of s. 8(5) of the ISA , issued a restriction order against the appellant. On 14 June 2002, just before the learned High Court judge delivered her decision, she was informed that the appellant had been placed under a restriction order issued on 12 June 2002. The learned High Court judge dismissed the application on the g round that the application for habeas corpus was no longer maintainable as the appellant was no longer under detention. The learned High Court judge, in the event she was wrong in so holding, also dealt with the grounds of the application and found that they were without merits. Hence, the present appeal by the appellant to this court. Held (dismissing the appeal): Per Abdul Hamid Mohamad FCJ: (1) A writ of habeas corpus is only available to a person who is being physically detained unlawfully. He must be i n actual custody. A person subjected to a restriction order is not being physically detained, imprisoned or in custody and as such, a writ of habeas corpus is not available to him. In the instant appeal, it was clear that the appellant, being a restrictee rather than a detainee, could not avail herself of the writ of habeas corpus. (Kerajaan Malaysia & Ors v. Nasharuddin Nasir folld Cheow Siong Chin v. Menteri Dalam Negeri & Ors folld) (paras 20, 23 & 24) (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 hearing, there should not, or could not, be a separation of 2 the date of hearing from the date of the decision. The date fixed for a decision in fact forms part of the hearing; the hearing of an application certainly includes the decision thereof. (paras 25 & 26) (3) Even though the appellant's mother had prayed for other orders in her app lication, the only remedy that could be applied for under art. 5(2) of the Federal Constitution and s. 365 of the CPC was that of habeas corpus. Since the court could not, in the circumstances of the case, make the only order that it could have made ie, to release the appellant - for the simple reason that she was not under detention at the point of time when the court was to make the order - the writ of habeas corpus became nugatory. (paras 27 & 28) Bahasa Malaysia translation of headnotes Perayu telah ditahan di bawah s. 73(1) Akta Keselamatan Dalam Negeri 1960 ('ISA') . Ibu perayu kemudian memfailkan permohonan di bawah s. 365 Kanun Prosedur Jenayah bagi mendapatkan writ habeas corpus bagi membebaskan perayu. Permohonan didengar pada 4, 7 dan 12 Jun 2002, iaitu di dalam tempoh perayu masih berada dalam tahanan di bawah s. 73(3) ISA. Pada 12 Jun 2002, Mahkamah Tinggi menetapkan bahawa keputusan kes akan diberikan pada 14 Jun 2002. Pada tarikh yang sama (12 Jun 2002), Menteri, dalam melaksanakan kuasa yang diberikan kepadanya di bawah s. 8(5) ISA , mengeluarkan perintah sekatan terhadap perayu. Pada 14 Jun 2002, sejuru s sebelum yang arif hakim Mahkamah Tinggi menyampaikan keputusannya, beliau diberitahu bahawa perayu telah diletakkan di bawah perintah sekatan yang dikeluarkan pada 12 Jun 2002. Yang arif hakim menolak permohonan atas alasan bahawa permohonan untuk habeas corpus sudah tidak wajar oleh kerana perayu bukan lagi berada di bawah tahanan. Namun begitu, diandaikan keputusannya itu silap, yang arif hakim telah meneliti alasan -alasan permohonan dan mendapati bahawa alasan -alasan tersebut adalah tidak bermerit. Maka itu, perayu merayu ke mahkamah ini. Diputuskan (menolak rayuan) Oleh Abdul Hamid Mohamad HMP: (1) Writ habeas corpus hanya boleh diberi kepada orang yang ditahan secara fisikal dan secara tidak sah. Beliau harus sebenarnya berada di dalam tahanan. Seseor ang yang tertakluk kepada perintah sekatan tidak ditahan secara fisikal atau terpenjara atau berada di dalam tahanan dan kerana itu writ habeas corpus tidaklah layak baginya. Dalam rayuan semasa, jelas bahawa perayu, sebagai seorang yang disekat, dan bukan seorang yang ditahan, tidak berhak mendapatkan writ habeas corpus. (Kerajaan Malaysia & Ors v. Nasharuddin Nasir diikuti; Cheow Siong Chin v. Menteri Dalam Negeri & Ors diikuti) (2) Walaupun perayu berhujah bahawa tarikh material yang perlu dipertimbangkan bagi maksud memutuskan keesahan sesuatu perintah tahanan di dalam permohonan habeas corpus bukanlah tarikh keputusan tetapi adalah tarikh pendengaran, tidak harus ada perbezaan di antara tarikh pendengaran dan tarikh keputusan. Tarikh yang ditetapkan untuk keputusan pada hakikatnya adalah sebahagian dari pendengaran; manakala pendengaran sesuatu permohonan tentunya merangkumi keputusannya sekali. (3) Walaupun ibu perayu dalam permohonannya juga memohon perintah -perintah lain, satu - satunya remedi yang boleh dipohon di bawah art. 5(2) Perlembagaan Persekutuan dan s. 365 Kanun Prosedur Jenayah adalah habeas corpus. Oleh kerana mahkamah, dalam halkeada an 3 kes, tidak boleh membuat satu - satunya perintah yang boleh dibuatnya, iaitu membebaskan perayu - atas alasan mudah bahawa beliau tidak berada di bawah tahanan pada waktu mahkamah sepatutnya membuat perintah tersebut - maka writ habeas corpus menjadi sesuatu yang sia-sia. Case(s) referred to: Cheow Siong Chin v. Menteri Dalam Negeri & Ors [1985] CLJ 59 (Rep); [1985] 1 CLJ 229; [1985] 2 MLJ 196 (foll) Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 FC (foll) Mohamad Ezam Mohd Noor v. Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309 FC (refd) PP v. Ottavio Quattrocchi [2003] 2 CLJ 613 CA (refd) Re Onkar Shrian [1969] 1 LNS 155; [1970] 1 MLJ 28 (foll) Legislation referred to: Criminal Procedure Code, s. 365 Federal Constitution, arts. 5(2), (3) Internal Security Act 1960, s. 8(5), 73(1), (3) Counsel: For the appellants - Edmund Bon Tai Soon (Saiful Izham Ramli & Nik Mohamed Ikhwan Nik Mahamud with him); M/s Saiful Kasri & Assoc. For the respondents - Mohamad Hanafiah Zakaria (Suhaimi Ibrahim, Raja Rozela Raja Toran & Najib Zakaria). Reported by Suresh Nathan JUDGMENT Abdul Hamid Mohamad FCJ: [1] The appellant was arrested on 17 April 2002 under s. 73(1) of the Internal Security Act 1960 ("ISA"). 4 [2] On 9 May 2002, an originati ng motion was filed by her mother praying for the following orders. 1. That access be given to her counsel to take instruction from her pursuant to art. 5(3) of the Federal Constitution and, for that purpose, the appellant be brought to court. 2. Further and in the alternative that the appellant be produced in court and to be released. 3. Further and after the appellant is released, that she will not be arrested and/or detained again. 4. Other orders and/or direction that the court deems fit to make. [3] The application was heard on 4, 7 and 12 June 2002. During that period the appellant was still under detention pursuant to s. 73(3) of the ISA. [4] On 12 June 2002, the High Court fixed the case for its decision on 14 June 2002. [5] On the same date (12 June 2002) the Minister in exercise of the powers given to h im by s. 8(5) of the ISA issued a restriction order on the appellant. [6] On 14 June 2002, just before the learned judge delivered her decision, learned counsel for the respondents informed her of the fact that the appellant had been placed under a restriction order issued on 12 June 2002. The learned judge dismissed the application. Th e appellant appealed to this court. [7] The judgment is in two parts. In the first part the learned judge dealt with the issue that the application for habeas corpus was no longer maintainable as the appellant was no longer under detention. She dismissed the application on that ground. [8] In the second part, in case she was wrong in so holding, she dealt with the grounds of the application and, finding that they were without merits, held that the application should be dismissed too. [9] We decided to hear the argument on the first issue first ie, whether the appeal was maintainable in view of the fact that the appellant was no longer under detention. [10] Learned counsel for the appellant argued that the appeal was maintainable. He argued that the relevant and material date to be considered for the purpose of deciding the legality of an order of detention in a habeas corpus application was the date when the application was heard. As in this case, on the dates the application was heard, the appellant was stil l under detention (under s. 73 ) the High Court had the jurisdiction to entertain and decide on the application, even though on the date of the decision, the appellant was no longer under detention. While admitting that the law was not settled, he submitted that there was no authority which supported the proposition that the relevant da te was the date of the decision of the application. He distinguished the case ofCheow Siong Chin v. Menteri Dalam Negeri & Ors [1985] CLJ 59 (Rep); [1985] 1 CLJ 229 ; [1985] 2 MLJ 196 on the ground that, in that case, the application for the issue of the writ of habeas corpus was filed after the restriction order had been issued and served. He also distingu ished Kerajaan Malaysia & Ors. v. Nasharuddin bin Nasir [2004] 1 CLJ 81 (FC) on the ground that in tha t case the application 5 for the issue of the writ of habeas corpus was filed prior to the issue of the detention order under s. 8, the application was heard and the decision was given after the issue of the detention order. [11] In the alternative, learned counsel argued that this court should proceed to hear the appeal on all the grounds raised in the petition of appeal because there were important questions for the determination of this court. The questions, according to him are:- (a) which affect the personal liberty of a person; (b) which revolve around points of constitutional law; (c) which requires a scrutiny of the constitutionality and legality of section 73(1)(b) ISA; (d) which requires a scrutiny of the application of the ISA in respect of the Appellant; (e) which requires an interpretation of this Court's decision in Ezam (on the objective and subjective test and on the access to counsel point); and, (f) which reconsiders this Court's decision in Nasharuddin (on the jurisdiction point). It is likely that these issues would have to be resolved in the near future as there is currently a large number of similar cases which are anticipated, and many ISA detainees detained under similar circumstances. This is also a public interest case where the Appellant (who is the wife of an ISA detainee) was the first woman detained under the ISA for her alleged involvement with the Kumpulan Militan Malaysia (KMM). [12] The learned counsel relied heavily on Mohamad Ezam bin Mohd. Noor v. Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309 (FC) and argued that, in that case, this court went so far as to issue the writ of habeas corpus and order the release of the detainees despite the detainees not being in the custody of the police. Learned counsel also argued that in the instant appeal, there was (and is) a valid High Court judgment which was wro ng in the light of Mohamad Ezam (supra) as the learned judge applied the subjective test which was the wrong test. The learned judge's judgment in the instant appeal must be reversed to correct the miscarriage of justice. It was further argued that the iss uance of the restriction order was calculated to frustrate the proceedings. This amounted to an interference with the administration of justice and contempt of court. The respondents could not be allowed to benefit from their wrongdoing. [13] This is an ap plication for the issue of a writ of habeas corpus, pursuant to s. 365 of the Criminal Procedure Code ("CPC"). That section, inter alia, provides:- 365. The High Court may whenever it thinks fit direct:- (i) that any person who; (a)... (b) is alleged to be illegally or improperly detained in public or private custody within the 6 limits of the Federation, be set at liberty. [14] Besides, art. 5(2) of the Federal Constitution provides:- 5 (1)... (2) where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful shall order him to be produced before the court and release him. [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 detained "illegally or imprope rly", 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. [16] A number of cases were referred to us. I think, the case of Re Onkar Shrian [1969] 1 LNS 155; [1970] 1 MLJ 28, a judgment of the High Court of Singapore is very pertinent on this issue. In that case, the applicant was arrested in Singapore for an offence alleg ed 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, t he applicant appeared in the Magistrates Court where the 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 f or 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 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 confinement. We shall not repeat the reasons given by the learned judge which can be found at pp. 30-31 of the report. [18] Indeed, in Nasharuddin (supra) Steve Shim (CJ Sabah & Sarawak) had made it clear , at p. 89:- It is trite law that the remedy of habeas corpus is intended to facilitate the release of persons actually in unlawful custody. It is the fact of detention which gives the court its jurisdiction (see Barnado v. Ford [1892] AC 326. The observat ion made by Choor Singh in Re Onkar Shrian [1969] 1 LNS 155 ; [1970] 1 MLJ 28 is particularly instructi ve. (emphasis added) [19] The learned Chief Judge (Sabah & Sarawak) then quoted part of the judgment of Choor Singh J, and concluded at pp. 90 of the report:- In the result, Choor Singh J took the position that a writ of habeas corpus had to be addressed 7 to the person or authority 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 precisely the position in the instant case. Here, the facts show that when the application came up for full argument befo re the court, the police no longer had 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 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. [20] We entirely agree with his views. So, the writ of habeas corpus is only available to a person who is being physically detained unlawfully. He must be in actual custody. [21] Does a person under an order of restricted residence fall under the category of persons being physically detained or in actual custody? [22] This issue has also been answered by the Supreme Court in Cheow Siong Chin (supra). In that case, orders had been made under the Restrictive Residence Enactment (a) requiring the appellant to reside in the town of Gua Musang for a period of three years from the date of the order and (b) directing him to be placed under police supervision for the same period. The appellant applied for a writ of habeas corpus to challenge the orders made against him. The application was dismissed by the High Court and the appellant appealed to the Supreme Court. The Supreme Court held that the re straint imposed by reason of an order of restricted residence under the Restricted Residence Enactment did not constitute detention of such a nature so as to attract the application of the writ of habeas corpus. The writ of habeas corpus was therefore not available to the appellant in the circumstances. Abdoolcader SCJ (delivering the judgment of the court), having referred to the judgments of the courts in Singapore, India, England and the United States, concluded at p. 98:- On a consideration of the autho rities we have adumbrated, none of which, except for two, were referred to in the court below or before us, we are of the view that the restraint imposed by reason of an order of restricted residence under the Enactment does not constitute detention of such a nature as to attract the application of the writ of habeas corpus. The writ of habeas corpus is accordingly not available to the appellant in the circumstances.... [23] It is clear from the judgment of the Supreme Court that a person who is subjected t o a restriction order is not being physically detained, imprisoned or in custody and as such a writ of habeas corpus is not available to him. The learned judge did suggest that the appellant in that case may seek other remedies eg certiorari. [24] Having c onsidered these authorities with which we entirely agree, it is clear that the appellant in the instant appeal, being a restrictee rather than a detainee cannot avail herself of the writ of habeas corpus. [25] However, it was argued by learned counsel for the appellant that the material time for consideration is not the date of the decision but the date of hearing. [26] First, we do not think we should or could separate the date of hearing from the date of 8 decision. The date fixed for a decision in fact for ms part of the hearing. As always happens, even on the date fixed for decision, counsel still seek, and are usually allowed, unless the request is unreasonable, to make further submissions or to clarify a fact or to bring to the court's attention of a newl y discovered authority or, as in this case, to inform the court of the latest development. The hearing of an application certainly includes the decision thereof. [27] Secondly, what is more important is that the only remedy that can be applied for under art. 5(2) of the Constitution and s. 365 of the CPC is habeas corpus and nothing else. Of course, the appellant has put in other prayers, for an order for access to be given to the appellant's solicitors to meet her and for an order that the appellant, after being released, shall not be arrested or detained again. The fact that the appellant has also put in those prayers does not change the law. Instead, those prayers are contrary to law in an application for habeas corpus. In a habeas corpus application, the court has no jurisdiction under art. 5(2) of the Constitution and s. 365 of the CPC to make those other orders. The remedy may lie somewhere else. [28] So, if the court could not, in the circumstances of the case, make the only order that it may make, ie, to release the appellant, for the simple reason that she was, at the point of time when the court was to make the order, not under detention, the writ of habeas corpus becomes nugatory, just as the court cannot sentence a dead man to deat h. It is no argument to say that he was alive during the trial but died just before the court delivers its judgment. The arguments clearly has no merits. [29] It was also argued that there was and is a judgment in existence that justifies the detention which must be put right. If learned counsel is of that opinion, there is nothing to stop him from choosing the proper procedure for such a determination. All that is said here is that a habeas corpus application is not the proper method and habeas corpus is n ot the remedy. [30] It was also argued that the Minister in issuing the restriction order commits contempt of court because, by doing so, he prevents the court from deciding the case. With respect, we find the argument most preposterous. Does the Public Pr osecutor commit contempt of court when he withdraws the charge against an accused person in the middle of a trial or on the date fixed for decision? Does the police commit contempt of court if, at the expiry of the 60 days' detention under s. 73 of the ISA, the detainee is released, no detention order being made against him by the Mini ster under s. 8? Does an appellant who withdraws his appeal on the date fixed for the hearing of his appeal commit contempt of court for the same reason? Do parties in a civil suit or appeal commit contempt of court when, on the date fixed for the decision, they report to the court that they had amicably settled the case and ask for the case or appeal to be struck out? The answer is obvious: No. [31] We do not think it is necessary to discuss all the cases referred to us regarding the circumstances under which courts do decide on matters though academic. However, we will discuss some of them, which we consider to be more relevant. [32] The learned counsel for the appellant relied very heavily on Mohamad Ezam (supra) in urging us to hear the appeal on its merits. He argued that in Mohamad Ezam (supra) , even though one of the appellants had been released, the court went on to hear the appeal on its merits and even issued the writ of habeas corpus. He read to us the order made by Mohamad