The court affirmed that the legality of detention must be assessed from the date of the habeas corpus application, ensuring judicial scrutiny even if the detainee is released or detained under different provisions.

Introduction

[1] The Motion filed by the applicant is for;

a) an Order that the arrest, detention and deportation of the applicant is illegal, defective and a nullity;

b) an Order for Habeas Corpus is granted for the immediate release of the applicant from the detention of the 2nd respondent;

c) an Order or such further reliefs that the Court deems fit.

Facts Of The Case

[2] The applicant was arrested on 18 August 2022 by the police on his way back to Subang Jaya after meeting his uncle. It was discovered by the police that the alcohol level in his body was 151 mg above the permissible level. The applicant was then brought to the Traffic Department of the South Klang police station for further investigation and was granted police bail before being charged in Court.

[3] On 3 November 2022 the applicant was charged at the Klang Magistrate Court Criminal (4) for an offence under s 45A of the Road Transport Act whereby the applicant duly pleaded guilty and sentenced to a fine of RM 10,000, in default 5 months jail and also a one-day jail sentence. The fine was paid on the same day and the applicant was sent to Kajang Prison to undergo the one-day jail sentence.

[4] At about 8.30 pm on 3 November 2022 the applicant was detained from the Kajang Prison under s 35 of the Immigration Act 1959/63 (Act 155) by an Immigration Officer acting under the instruction of the Deputy Assistant Director of Immigration with the detention reported in Kajang Report 035871/22.

[5] On 4 November 2022 a Detention Notice was issued against the applicant under s 35 of Act 155 in relation to the detention police report with the applicant placed at the Bukit Jalil Immigration Detention Depot. At the time of this detention the applicant's temporary work visitation pass (Pas Lawatan Kerja Sementara PLKS) was still valid until 20 November 2022.

[6] The employer of the applicant being Syarikat Cemerlang (KJM) Sdn Bhd (Company No: 778559-X) on 9 November 2022 applied online for a renewal of the working permit and paid all necessaries with the extension sought to be for the duration of 20 November 2022 to 20 November 2023.

[7] On 11 November 2022 the employer of the applicant sent an appeal for the release of the applicant to the 1st respondent but then received a rejection of the appeal from the respondent on 29 November 2022.

[8] After the lapse of the temporary work visitation pass on 20 November 2022, an Order for Detention was issued on 30 November 2022 under s 34(1)(a) of Act 155 and reg 29 of the Immigration Regulations together with Order for Removal under s 56(2) of Act 155.

[9] Penultimately the applicant was sent back to his home country Vietnam on 6 January 2023.

Law On Habeas Corpus

[10] The respondents argue that this Motion is not pursuable as the applicant has been sent back to Vietnam and a challenge should only be directed against a current detention order, with no detention order being present as of now. In essence the argument is of the matter now being academic. Reliance is placed by the respondents on the authority of Goh Leong Yong v. ASP Khairul Fairoz Rodzuan & Ors ; in emphasising this position.

[11] The Federal Court in Lei Meng v. Inspektor Wayandiana Abdullah & Ors and Other Appeals ; ; [2022] 2 AMR 733 has extensively deliberated on this issue and decided that a detenu still retains the liberty to be heard after the lapse of his detention order or of being now detained under a different provision.

[12] The Motion for habeas corpus should be examined at the point of the filing of the Motion and treated as a single overarching transaction a