JUDGMENT

Harun Hashim SCJ:

The appellant was first arrested on 27 October 1987 at Kuala Lumpur under s. 73(1) of the Internal Security Act 1960 (ISA). On 19 December 1987 he was served with a detention order issued by the Minister of Home Affairs under s. 8(1) ISA to be detained at Tempat Tahanan Perlindungan, Taiping for a period of two years commencing from 19 December 1987.

On 12 January 1988 the appellant applied for an order of habeas corpus in the High Court at Ipoh. On 9 March 1988 Peh J granted the application and the appellant was released. About nine hours later he was re-arrested at Nibong Tebal, Pulau Pinang under s. 73(1) ISA and subsequently served with a detention order issued by the Minister of Home Affairs under s. 8(1) ISA to be detained at the Tempat Tahanan Perlindungan, Taiping for a period of two years commencing from 16 April 1988.

On 10 March 1988, the Public Prosecutor, on behalf of the respondents, appealed against the order of Peh J. On 17 March 1988 the appellant applied for an order of habeas corpus in the High Court at Ipoh on the grounds that his rearrest and continued detention are unlawful. Ab. Malek J heard the application on 20 & 21 April 1988 and adjourned the matter to 27 July 1988.

By then two events had intervened:

(a) This Court on 19 July 1988 allowed the appeal by the Public Prosecutor against the order of Peh J in respect of the first detention order; and

(b) The Minister of Home Affairs on 26 July 1988 cancelled the second detention order of 16 April 1988 under s. 81(3) ISA.

Ab. Malek J had in fact reserved judgment to 26 May 1988 and subsequently to June and July to await the decision of the appeal from Peh J. On 27 July 1988 he heard further evidence and argument and held that in view of the two events, he had no alternative but to dismiss the appellant's application for an order of habeas corpus . Hence this appeal.

In an application for an order of habeas corpus it is true that the detaining authority has to show that the detention of the subject is lawful. In the present case what was argued before Malek J and adjourned for judgment to 27 July 1988 was the validity of the second detention order. The validity of the first detention order had already been fully argued, considered and upheld by this Court on 19 July 1988 and accordingly the matter should not be reagitated again.

We are of the view that the interventions of:

(a) The release of the appellant following the decision of Peh J on 9 March 1988;

(b) The re-arrest of the appellant on 9 March 1988;

(c) The allegation of contempt of Court by the re-arrest; and

(d) The issuance of the second detention order on 16 April 1988 and the contention that thereby the first detention order was revoked by implication;

did not in any way affect the validity of the first detention order.

The motion dated 17 March 1988 was based on the validity or otherwise of the second detention order. On 27 July 1988 since the second detention order had by then no longer existed the motion of the appellant was therefore correctly dismissed by Malek J.

For the reasons we have stated, we would dismiss the appeal.