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2021 MarsdenLR 2753
Judicial scrutiny of preventive detention mandates strict adherence to statutory provisions, with clear distinctions regarding the status of whistleblower protections not extending to mere associates.
Headnote:(A) Prevention of Crime Act 1959 – Sections 19A, 3(1A), 4(1)(a), 4(2)(a), 10(3)(b), and Whistleblower Protection Act 2010 – Application for a Writ of Habeas Corpus regarding a detention order issued against the Applicant – Non-compliance with procedural requirements under the relevant Acts is analyzed – The Applicant was found to not qualify as a whistleblower under the provisions of the Whistleblower Protection Act 2010, leading to dismissal of the habeas corpus application. (Paras 1, 46, 106)
Facts of the case: The Applicant's detention stemmed from alleged involvement in a syndicate smuggling Bangladeshi citizens, with subsequent detention orders issued under the Prevention of Crime Act 1959.
Findings of Court: Procedural non-compliance not established; the court dismissed the application citing valid statutory compliance by the Board.
Issues: Whether the Applicant's affidavit was valid under CPC; whether the Applicant was a whistleblower entitled to protections; and whether procedural compliances were observed in his detention.
Ratio Decidendi: The court reaffirmed that compliance with statutory provisions is essential for the legality of detention – Conflict in evidence regarding whistleblower status resolved against the Applicant due to lack of supporting testimony.
Result: Application for a Writ of Habeas Corpus dismissed.
JUDGMENT
(A) Introduction
[1] This is an application by the Applicant for a Writ of Habeas Corpus be issued for his release in respect of a Detention Order dated 14 May 2020 by the First Respondent under sub-section 19A(1) Prevention of Crime Act 1959.
[2] The reasons cited inter alia, for the application is for non-compliance with the Federal Constitution, the Prevention of Crime Act 1959 and the Whistleblower Protection Act 2010.
(B) Chronology Of Events
[3] On 17 March 2020, the Applicant was arrested at 3.10pm, in connection with Travers police station police report No 002187/20.
[4] On 18 March 2020, a warrant of detention against the Applicant for a period of 21 days commencing from 18 March 2020 was issued by the Magistrates court pursuant to s 4(1)(a) Prevention of Crime Act 1959 ("POCA").
[5] On 22 March 2020 the Applicant's file was referred to the Deputy Public Prosecutor (DPP) pursuant to s 3(1A) POCA.
[6] On 27 March 2020 a written statement from the DPP was obtained. On 2 April 2020 ASP Rethinam a/l Rajamanickam serves a complete report of investigation of the Applicant's case to Nor Jamilah Shuhadah binti Tohet, the Inquiry Officer, pursuant to s 4A POCA.
[7] On 7 April 2020 a warrant of detention is issued to detain the Applicant for a period of 38 days commencing 7 April 2020 by the Magistrates court pursuant to s 4(2)(a) POCA.
[8] On 8 April 2020 ASP Rethinam serves a complete report of investigation of the Applicant's case to the Crime Prevention Board pursuant to s 4A POCA.
[9] On 13 April 2020, the Inquiry Officer conducts an inquiry in respect of the Applicant pursuant to s 9 POCA. On 5 May 2020, the Inquiry Officer serves a report and findings of the case to the Crime Prevention Board pursuant to s 10(2) POCA.
[10] On 14 May 2020 the Crime Prevention Board met to consider the complete report and findings of the case against the Applicant pursuant to s 10(3) POCA.
[11] On the same day, the Crime Prevention Board confirms the findings of the Inquiry Officer pursuant to s 10(3)(b) POCA. On the same day the Crime Prevention Board informs the Deputy Registrar of Crime to register the name of the Applicant in the Register pursuant to s 12 POCA.
[12] On 14 May 2020, the Crime Prevention Board meets and is satisfied that the Applicant is part of a team of two persons or more who in association with each other and in pursuance of criminal activity, falls under the category of registrable persons under para 2, Part I, First Schedule POCA pursuant to s 10(3)(b) POCA.
[13] The criminal activity is that the Applicant is a member of a syndicate involved in arranging for accommodation, offices and employment for Bangladesh citizens smuggled into Malaysia as well as obtaining Temporary Work Passes and tourist visas by hacking the Malaysian Immigration System (my IMMs).
[14] On 14 May 2020 the Crime Prevention Board issues a detention order against the Applicant for a period of two (2) years commencing 14 May 2020 pursuant to s 19A POCA.
(C) Writ Of Habeas Corpus (Jurisdiction, Procedure And Juridical Basis)
[15] The courts power and jurisdiction to entertain applications for habeas corpus emanates from the inherent powers granted to the superior courts under the Schedule to the Courts of Judicature Act 1964 (Act 91) and the provisions of Chapter VIII of Part 2 of the Specific Relief Act 1950 (Act 137).
[16] The relevant procedure relating to judicial review is governed by O 53 of the Rules of court 2012.
[17] The rudimentary origins of the writ of habeas corpus can be traced back to the Magna Carta of King John which granted all free men immunity from illegal imprisonment although the co-relation between the Magna Carta and habeas corpus only took form with the enactment of the Habeas Corpus Acts of 1640 and 1679 in England.
[18] The founding fathers of America ensured that the concept and rights associated with the writ of habeas corpus featured prominently in the American Constitutio
