Eusoffe Abdoolcader SCJ:

The primary issue for determination in this appeal is the question whether a quantitative restraint of the liberty of an individual by way of his confinement within a given perimeter can attract the constitutional writ of habeas corpus.

The brief facts of this matter are that the appellant was arrested under an order made on 21 June 1984 by the Deputy Minister of Home Affairs under the Restricted Residence Enactment (FMS Cap 39) (`the Enactment') and detained initially in police custody and then in prison. The grounds of his detention were that as a registered dealer in commodity trading he had in 1983 cheated the public by giving false promises and making false declarations as a result of which many investors sustained considerable financial loss. Representations were made by and on his behalf against this order but to no avail and on 27 August 1984 the Deputy Minister made another order under s. 2(ii) of the Enactment requiring the appellant to reside in the town of Gua Musang in Kelantan for a period of three years from the date of the order, and also a further order under s. 2A(i) of the Enactment directing him to be placed under police supervision for the same period. These two orders were served on the appellant at Pudu Prison on 3 September 1984 and he was then taken to Gua Musang pursuant thereto.

The appellant took out a motion under s. 365 of the Criminal Procedure Code on 28 September 1984 for a writ of habeas corpus to challenge the orders made under the Enactment on the grounds that the allegations against him were false, no enquiry had been held before the orders were made and that in any event the provisions of the Enactment were not applicable to the circumstances of his case. At the outset of the hearing Senior Federal Counsel appearing for the respondents raised the preliminary point that the application for habeas corpus was misconceived as the applicant was not under detention or in custody. After hearing argument on this point Gunn Chit Tuan J, on 26 October 1984 upheld the objection taken and dismissed the appellant's application for habeas corpus, a quo this appeal emanates.

The question of quantitative restraint such as that posed for consideration in these proceedings should strictly be distinguished from curtailment of freedom in a qualitative context where this relates not so much to confinement within a designated area as to restriction imposed on a person's right to live and to come and go as he pleases, as in the case of a person released from actual physical custody but put on a bail bond, but the underlying principle would appear to be the same in both cases. In Reg. v. Coleshill Justices, Ex parte Davies [1971] 1 WLR 1684 it was said (at p. 1686) that an application for habeas corpus had become academic, as the applicants had in the meantime been released on bail. The Singapore High Court held in Re Onkar Shrian [1969] that a person at large on bail after his arrest is not entitled to a writ of habeas corpus because he was not then detained in custody. It has also been conclusively resolved in several Canadian cases that the writ is only available where the applicant is in actual physical custody, and not when he is on bail, and we need only refer to two decisions of the Supreme Court of Canada, Re Isbell [1930] SCR 62 (at p. 65) and Masella v. Langlais [1955] SCR 263 (at p. 271)

In considering whether in relation to restricted residence under the Enactment habeas corpus lies, it would be just as well to remember that the application in these proceedings was made under the provisions of s. 365(i)(b) of the Criminal Procedure Code which specifically refer to illegal or improper detention in public or private custody. In Barnardo v. Ford [1892] AC 326 Lord Watson said (at p. 333):

The remedy of habeas corpus is, in my opinion, intended to facilitate the release of persons actually detained in unlawful custody ... it is the fact of detention, and nothing else, wh