Wong Zia How 1. ) INSPEKTOR MOHAMAD FIRDAUS BIN MAT TAHAR 2. ) MAJISTRET MAHKAMAH MAJISRET SHAH ALAM 3. ) KETUA POLIS NEGARA 4. ) KERAJAAN MALAYSIA

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (CRIMINAL DIVISION) IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA CRIMINAL APPLICATION NO. WA — 44 — 71 — 04/2021 BETWEEN WONG ZIA HOW APPLICANT AND INSPEKTOR MOHAMAD FIRDAUS BIN MAT TAHAR MAJISTRET MAHKAMAH MAJISRET SHAH ALAM KETUA POLIS NEGARA KERAJAAN MALAYSIA RESPONDENTS JUDGMENT Introduction [1] The applicant had through a Notice of Motion sought for a writ of habeas corpus, and to be released from his detention under the Prevention of Crime Act 1959 (‘POCA 1959’). | had dismissed his application based on the grounds that | shall now elaborate. Facts [2] [3] The applicant was arrested by the first respondent on 30 March 2021 at the Mutiara Damansara police station, under the provisions of section 3(1) POCA 1959. He was alleged of being involved in unlawful gaming activities. The first respondent had on the following day applied to the second respondent to detain the applicant for a period of twenty-one days from 31 March 2021 under section 4(1) POCA 1959. The application was allowed. That was not the end of it, as the applicant was subsequently ordered to be detained for a further thirty-eight days from 19 April 2021, pursuant to another application made by the first respondent to the second respondent on that day. This application was premised on section 4(2)(a) POCA 1959. The applicant’s application and grounds [4] The applicant had sought for the following reliefs: (a) That his arrest under sections 3, 4 and/or-any provisions under POCA 1959 is invalid, unsubstantiated, irregular and mala fide; (b) That his arrest falls outside the scope of POCA 1959 and that the Act does not apply to him; [5] [6] (d) That the inclusion of unlawful gaming under paragraph 5, Part 1, Schedule 1 under POCA 1959 by the Minister was ultra vires and outside the scope of POCA 1959; and For a writ of habeas corpus to be issued. The applicant has raised the following grounds in support of his application: (i) (ii) (iit) That section 4 POCA 1959 contravenes the doctrine of separation of powers, as the Executive, acting through the police and public prosecutor dictates the Judiciary the mandated result of a proceeding in contravention of Article 121 of the Federal Constitution (‘FC’); The alleged act that the applicant was detained for, namely unlawful gaming activities, falls outside the ambit of Item 5, Part 1, Schedule 1 POCA 1959 and Article 149(1)(a) FC; and There were no investigation diary or facts relating to the activities allegedly committed by the applicant leading to his arrest in contravention of section 4(1)(a) POCA 1959. The applicant's counsel had at the hearing of this application on 6 May 2021 opted to focus on the third ground only. His decision was apt as the Federal Court had just before the hearing in the case of Zaidi Kanapiah v ASP Khairul Fairoz Rodzuan & Ors and other appeals [2021] 5 CLJ 581, ruled on [7] [8] the same issues raised under the first and second ground. These issues are therefore moot as the apex court had in essence dismissed these grounds. In alleging that there were no investigation diary or facts relating to the alleged activities of the applicant presented to the second respondent, the applicant contended that the first respondent had failed to prove that the applicant had committed the alleged crime. The applicant also alleged that the first respondent had also failed to present his reasons to the second respondent to justify holding an enquiry against the applicant under POCA. The applicant submitted that these omissions transgressed the provisions of section 4(1)(a) and 4(2)(a) POCA 1959. Learned counsel for the applicant referred to Vernon Ong FCJ’s judgment in the Zaidi Kanapiah case (supra), where his lordship set out matters that are to be considered by the Magistrate in an application for remand under section 4(1) POCA 1959. The relevant passage is as follows: “Matters to be considered in an application for remand under sub-section 4(1) POCA 1959 [144] The Magistrate must be satisfied that the arrest was carried out in accordance with law - see art. 5(3) FC and s. 28A CPC. This is done by questioning the person arrested and perusing the police diary: (i) (ii) (iii) (iv) (v) That the person was produced before the Magistrate within 24 hours of arrest (sub-s, 3(2) POCA 1959 ); That the person arrested was informed of the grounds of his arrest by the police officer making the arrest (art. 5(3) FC); That before commencing any questioning or recording of any statement, the police officer has informed the person of his right: (a) to communicate with a relative or friend to inform of his whereabouts; and (b) to communicate and consult and be defended by a legal practitioner of his choice (s. 28A CPC ); That 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 of the person arrested” under sub-s. 3(1) POCA 1959. The grounds should also corroborate the belief that the person is a member of any of the registrable categories under Part | of the First Schedule POCA; and The registrable category in question should be clearly stated in the police diary. [145] If the Magistrate is not satisfied that the arrest was carried out in accordance with law, the Magistrate should reject the application for remand and direct the person's immediate release. [146] If the arrest was carried out in accordance with law, the Magistrate should then proceed to satisfy himself that the sub-s. 4(1) written statement contains sufficient facts and particulars to substantiate the grounds for believing that the name of the person should be entered on the Register. The relevant matters to be considered include the following: (i) whether there are sufficient facts and particulars to show in what manner the person arrested has acted or is about to act in relation to the matter for which he has been arrested; (ii) whether there are sufficient facts and particulars to show in what manner the person arrested is a member of a substantial body of persons* to cause, or to cause a substantial body of citizens to fear, organised violence against persons or property; *(e.g., a cartel, syndicate, association, gang, triad, or group) [9] (iii) whether the written statement has identified which particular registrable category in Part | of the First Schedule the person should be registered under; (iv) whether the action or threatened action falls within that particular registrable category; (v) whether the registrable category identified in the written statement is the same as that stated in the arresting officer's police diary under sub-s. 3(1); and (vi) whether the written statement discloses any reasonable grounds to support the belief that the name of the person arrested should be entered on the Register; [147] If any of the necessary ingredients are not satisfied, the Magistrate should direct that the person be released forthwith. If, however, all the necessary ingredients have been satisfied, the Magistrate shall make an order for the remand of the person under sub-s. 4(1)(a) POCA 1959. The Magistrate should also record the reasons for his decision in a concise and comprehensive manner.” [645-646] The applicant alluded to the first respondent's affidavits and highlighted that there was no evidence to suggest that he had produced his police diary to the second respondent when making the applications for remand. Learned counsel for the applicant in referring to Vernon Ong FCJ’s judgment as highlighted earlier, submitted that it was mandatory for the first [10] respondent to produce his police diary disclosing sufficient facts to support his belief that there were grounds to justify detaining the applicant under POCA 1959. The respondents in response asserted that it had adhered to the requirements under sections 4(1) and 4(2) POCA 1959. It was contended that the first respondent as the investigating officer had in his affidavit set out comprehensively the steps and action that he had taken from the time that the applicant was arrested on the 30 March 2021 until his production before the second respondent the following day, where the order to detain the applicant under section 4(1) POCA 1959 was made. The first respondent had also in another affidavit set out the procedure and action that he had taken in producing the applicant before the second respondent on 19 April 2021 when seeking to detain the applicant under section 4(2) POCA 1959. Learned counsel for the respondents submitted that there is no requirement for the first respondent to produce his police diary and that it would suffice for him to just produce the necessary statements in writing as required under sections 4(1) and 4(2) POCA 1959. Findings [11] The pertinent issue is whether there was a need for the first respondent's police diary to be produced before the second respondent when making the applications under sections 4(1) and 4(2) POCA 1959. These sections read as follows: Procedure before Magistrate 4. (1) Whenever any person is taken before a Magistrate under subsection 3(2) the Magistrate shall - (a) on production of a statement in writing signed by a police officer not below the rank of Inspector Stating that there are grounds for 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 (b) if no such statement is produced, and there are no other grounds on which the person is lawfully detained, direct his release. (2) Any person remanded under paragraph (1)(a) shall, unless sooner released, on or before the expiry of the period for which he is remanded be taken before a Magistrate, who shall- (a) on production of - (i) | astatement in writing signed by the Public Prosecutor stating that in his opinion sufficient evidence exists to justify the holding of an inquiry under section 9; and [12] [13] (ii) a statement in writing signed by a police officer not below the rank of Assistant Superintendent stating that it is intended to hold an inquiry into the case of that person under section 9, order the person to be remanded in custody for a period of thirty-eight days; or (b) if no such statements are produced, and there are no other grounds on which the person is lawfully detained, direct his release. A plain reading of sections 4(1) and 4(2) POCCA 1959 shows that there is no requirement for any police diary to be produced before the Magistrate. The only document that needs to be produced before the Magistrate is the statement in writing by the relevant police officer and public prosecutor. I am of the view that the guidelines set out by Vernon Ong FCJ are obiter dicta and that his lordship had set out the guidelines in an advisory form. | am fortified in my view as his lordship had in the preceding paragraph stated as follows: [142] Whilst on this subject, | think that it is important to reiterate that the discretionary powers of the police to arrest and detain are not absolute, In the light of the duty of a Magistrate to exercise his discretion judicially in order to ensure strict compliance with legal, procedural and 10 [14] [15] [16] constitutional safeguards, Magistrates are advised to closely adhere to the following guidelines when considering a remand application under subs 4(1) of POCA 1959.” [645] (emphasis added) The guidelines set out by his lordship are indeed meticulous and in my opinion would serve as additional measures that a Magistrate can undertake when considering an application under sections 4(1) and 4(2) POCA 1959. These guidelines will undoubtedly provide more information and may assist a Magistrate to exercise his or her discretion judicially. They may also serve to ensure that the police comes well prepared before making the application. Guidelines are however by definition a statement or a plan to determine a course of action and are not legally binding, as opposed to statutory requirements, which are mandatory. 1 am of the opinion that only the statement in writing by the relevant police officer and the public prosecutor needs to be mandatorily produced for an application under section 4(1) and 4(2) POCA 1959, and that a failure to produce the police diary is not fatal. |] have perused the affidavits by the first respondent and had, in particular, focused on his written statements. | am satisfied that the first respondent had adduced sufficient facts and particulars that will enable the second respondent to judicially 11 exercise her discretion when making the order to remand the applicant under section 4(1) POCA 1959. | am also satisfied that the procedural requirements under sections 4(1) and 4(2) POCA 1959 have been dutifully adhered to. [17] | had in view of these considerations held that there are no merits to the applicants application and had as such dismissed the application. Dated: 12 July 2021. (Mohamed Zaini Mazlan) Judge High Court of Malaya (Criminal Division) Kuala Lumpur Counsel for the applicant Jacky Loi, Lim Chi Chau, Lim Jin Wen & PG Cyril [Messrs Lim Chi Chau & Co] Counsel for the respondents Zulkipli Abdullah SFC 12