Augustine Paul FCJ:

[1] This appeal was heard together with Federal Court Criminal Appeal No 05-12-2006(W). It raises for consideration the proper interpretation to be accorded to s. 3(3)(a) and (b) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ("the 1969 Ordinance") and the extent of the ratio decidendi of the recent judgment of this court in Mohd Faizal bin Haris v. Timbalan Menteri Dalam Negeri, Malaysia and Others [2005] 4 CLJ 613("Mohd Faizal bin Haris").

[2] On 8 September 2004 the respondent was arrested under the 1969 Ordinance. On 5 November 2004 a detention order was made against him under s. 4(1) of the 1969 Ordinance for a period of two years with effect from 6 November 2004. On 24 October 2005 he filed a motion for the issue of a writ of habeas corpus. On 12 January 2006 the High Court made an order for the issue of the writ. In making the order the learned judge of the High Court took the view that there was non-compliance by the police with the requirements of s. 3(3)(a) and (b) of the 1969 Ordinance thereby vitiating the order made by the Minister. Even though the defect, if any, occurred prior to the making of the detention order by the Minister the learned judge argued that he was not bound by the judgment of this court in Mohd Faizal bin Haris where it was held that a writ of habeas corpus must be directed against the current detention order when it has been made subsequent to a prior arrest and detention. The reason why the learned judge did not feel bound by the case of Mohd Faizal bin Haris is that the detention order in that case was not made under the 1969 Ordinance but under the Dangerous Drugs (Special Preventive Measures) Act 1985 ("the 1985 Act"). Subsequent to the issue of the writ of habeas corpus by the High Court a fresh detention order was made against the respondent for a period of two years and he is currently under detention.

[3] When the appeal came up for hearing before us learned counsel raised a preliminary objection to the effect that the appeal must be dismissed as it had become academic following the making of the second detention order against the respondent. In support he referred to cases such as Sun Life Assurance Co of Canada v. Jervis [1944] 1 All ER 469 and Ainsbury v. Millington [1987] 1 All ER 929. In his reply the learned Deputy Public Prosecutor referred to Karpal Singh v. Inspector General of Police & Ors [1989] 1 CLJ 134; [1989] 1 CLJ (Rep) 50, Public Prosecutor v. Karpal Singh Ram Singh & Another Case [1988] 2 CLJ 587; [1988] 1 CLJ (Rep) 249 and Rajoo Ramasamy v. Inspector General of Police & Ors [1990] 1 CLJ 888; [1990] 1 CLJ (Rep) 256 and said that the appeal had not been rendered academic. He then referred to R v. Secretary of State for the Home Department, ex parte Salem [1999] 2 All ER 42 and contended that even if the appeal had become academic it must still be heard in the public interest as the interpretation given to s. 3(3)(a) and (b) of the 1969 Ordinance and the manner in which Mohd Faizal bin Haris was applied by the learned judge will seriously affect other cases which are pending.

[4] In the recent judgment of this court in Metramac Corp Sdn Bhd v. Fawziah Holdings Sdn Bhd [2006] 3 CLJ 177 this court dealt with the circumstances in which a pending matter may be rendered academic at pp 188-189 in the following terms:

In dealing with the circumstances in which an appeal will be rendered academic and thereby not appealable, Viscount Simon LC said in Sun Life Assurance Co of Canada v. Jervis [1944] 1 All ER 469 at pp 470-471:

I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conund