Suffian LP:

[1] On 30 October 1974, Datuk James Wong Kim Min, the applicant in the lower Court and respondent before us (the detainee), was arrested by police officers at his home in Sarawak. He was arrested under reg 7(1) of the Preservation of Public Security Regulations. After his arrest, he was escorted to Peninsular Malaysia and held in Kuala Lumpur. On 28 December 1974, detention order addressed to the Superintendent of Prison, Taiping, Perak, and made by the Federal Secretary, Sarawak, under para (1) of reg 2 of the Preservation of Public Security (Detention) Regulations, 1962, which I shall refer to simply as PPSR, was served on him in Kuala Lumpur.

[2] On 3 January 1975, the Federal Secretary, Sarawak, signed a Removal Order under para 5 of reg 2 of PPSR directing that the detainee be removed from Taiping Prison, Perak, to Kamunting Detention Camp, Perak, Peninsular Malaysia.

[3] It will be noted that when the detention order was made, the detainee was outside Sarawak and he has throughout been detained outside Sarawak.

[4] The detainee applied ex parte for a writ of habeas corpus under s 3 of the Prerogative Remedies Ordinance (Sarawak Cap 47), citing as respondents the Minister of Home Affairs, Malaysia, the Federal Secretary, Sarawak, and the officer in charge of Kamunting Detention Centre, Taiping, Perak. (These respondents are appellants before us).

[5] Formal hearing of the application began before Seah J in Kuching on 3 March 1975.

[6] Datuk Marshall submitted that the detention was unlawful and that the application should be allowed on ten grounds, of which the second ground reads:

"(2) Assuming that the Federal Secretary, Sarawak had the authority to issue such a Detention Order, the PPSR being an exclusively Sarawak law, could only authorise him to detain a person who was in Sarawak at the time when the said Order was made."

[7] The learned trial Judge dealt only with ground 2. He held that the Preservation of Public Security Ordinance (PPSO) enacted by the Sarawak Legislature and PPSR made under it before Malaysia Day were before Malaysia Day limited in their operation to the colony of Sarawak only; that after Malaysia Day they still had no legal force outside the state of Sarawak although Sarawak is one of the component states of Malaysia; that at the time when the detention order was made by the Federal Secretary, Sarawak, the detainee was not in Sarawak but in Kuala Lumpur; and that therefore the order of detention was unlawful.

[8] At the conclusion of the hearing on 7 March 1975, the learned Judge delivered a brief oral judgment announcing his decision and ordering that the detainee be produced before the Court on Monday, 10 March 1975, at 2.15pm to be released. The detainee was duly produced before the Court and he was formally released.

[9] In his grounds since reported at [1975] 1 MLRH 213, [1975] 2 MLJ 244 the learned trial Judge said that in view of his decision on the second ground, it was unnecessary for him to deal with the other nine grounds.

[10] The Minister, the Federal Secretary and the officer in charge of Kamunting Detention Camp appeal against the learned Judge's order. This appeal has been made under sub-section (3) of s 3 of the Prerogative Remedies Ordinance (Sarawak Cap 47), but under paragraph (b) of that subsection this appeal "shall not affect the right of the detainee to remain discharged in pursuance of the order under appeal and to remain at large regardless of the decision on appeal." In view of this, Datuk Marshall raised the preliminary objection that the Court should not proceed to hear the appeal, as the matter was now, he said purely academic and it was not the Court's function to enrich the law reports on hypothetical questions. We overruled the objection, because this is a test case which should settle similar legal questions arising in the future.

[11] The relevant Sarawak law applicable has been set out in full in the judgment of the learned Chief Justice, Borneo, and t