JUDGMENT

Hashim Yeop Sani CJ (Malaya):

All three sets of appeals concern the interpretation of s. 11B of the Dangerous Drugs (Special Preventive Measures) Act 1985 (the Act). In each case the appellant was either detained pursuant to an order under s. 6(1) of the Act or detained pursuant to an extension order under s. 11A of the Act which order or extension order was revoked by the Deputy Minister of Home Affairs under s. 11B(1) of the Act and who then issued a fresh order purporting to act in each case under s. 11B(2) of the Act.

Apart from the habeas corpus proceedings which resulted in the present appeals, there were many other applications for orders of habeas corpus made before various High Court Judges. In every one of those proceedings s. 11B of the Act was considered in depth. The Judges were divided in their views.

The High Court, Penang (Dzaiddin J) in Penang High Court Criminal Application No. 44-69-89 granted orders of habeas corpus to five applicants holding that the Minister had no power to issue a fresh order of detention under s. 11B(2) of the Act. The Shah Alam High Court (Wan Yahya J) also granted the application for habeas corpus to an applicant in High Court Shah Alam Criminal Application No. 44-29-89 holding that s. 11B is not intended to empower the Minister to simultaneously revoke and issue a fresh order under s. 6(1) of the Act. The Alor Setar High Court (K.C. Vohrah J) granted a similar application in High Court Alor Setar Criminal Application No. 54-9-89 on the grounds that since the original detention order was invalid there is no power to revoke or to give a fresh detention order. The Ipoh High Court (Ong See Seng JC) in High Court Ipoh Criminal Application No. 44(54) 37-89 refused the habeas corpus application of one of the present appellants holding that under s. 11B of the Act the Minister has power to revoke an invalid order but the learned Judicial Commissioner did not however decide on the question whether the Minister has power to issue a fresh order. However this same Judge in High Court Ipoh Criminal Application No. 44(54)9-89 granted an order of habeas corpus holding that the Minister has no power to issue a fresh order under s. 11B(2) of the Act. Talalla JC in High Court Muar Criminal Application No. 44-39-1989 and Edgar Joseph Jr. J in High Court Penang Criminal Application No. 44-7-90 refused habeas corpus applications to the respective applicants (among the present appellants) on the grounds that the Minister has power under s. 11B of the Act to revoke any order and to issue a fresh order in place thereof. Finally, Shankar J in High Court Shah Alam Selangor Criminal Application No. 44-32-89 granted an application for habeas corpus holding similar views as those of Wan Yahya J.

In the present appeals Counsel for the appellants led by Mr. Karpal Singh for appellant Poh Chin Kay, submitted two points of law common to all. Firstly it was their contention that if the original detention order under s. 6(1) of the Act was rendered invalid by virtue of Tan Hoon Seng v. Minister of Home Affairs [1990] 1 CLJ (Rep) 271, then there was nothing for the Minister to revoke or to replace under s. 11B(2) of the Act. The argument was that if an order for detention is in the first place invalid or void ab initio there is nothing to revoke. In other words, they say, the power of revocation presupposes that the original detention order was a valid order and since the original detention orders were void or invalid because of Tan Hoon Seng, then there cannot be a fresh order made to replace it. In short the power to revoke an order and to replace it with a fresh order can only be exercised when the original detention order is a valid order.

In our view this argument cannot stand close scrutiny. In the first place Tan Hoon Seng never referred to the original detention order there as void or invalid. It made no such declaration. Secondly the use of the words "any order" in s. 11B(1) would seem to embrace all orders