Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 MarsdenLR 2755

FEDERAL COURT PUTRAJAYA
ZAIDI KANAPIAH – Appellant
Versus
ASP KHAIRUL FAIROZ RODZUAN & ORS AND OTHER APPEALS – Respondent
[Criminal Appeal Nos: 05(HC)-153-11-2020(W) 05(HC)-155-11-2020(W) & 05(HC)-156-11-2020(W)]

Petitioner Advocates:Gopal Sri Ram,Gobind Singh Deo,Jacky Loi Yap Loong,Nur Aminathul Mardiah Md Nor,Sara Ann Chay,Yasmeen Soh-Sha Nisse,Meneesha Kaur,Tiffani Chin,Manvir Singh,Marcus Lee & How Li ,Respondent Advocate: Muhammad Sinti,Zulkipli Abdullah,Nur Jihan Mohd Azman,Shahidah Nafisah Leman,Muhamad Safuan Azhar

The court ruled that section 4 of the Prevention of Crime Act 1959 is unconstitutional as it mandates detention without judicial discretion, violating the separation of powers and fundamental rights under the Federal Constitution.

Headnote:(A) Federal Constitution - Article 4 - Prevention of Crime Act 1959 - Constitutionality of s 4 - The court evaluated the legality of detention under POCA and enforced the principle of separation of powers, declaring s 4 unconstitutional due to lack of judicial discretion - The principle of judicial review under art 5(2) was reaffirmed, establishing the duty of the courts to scrutinize and ensure lawful detention - The appeals were allowed, and the appellants released from custody as their rights were violated by unconstitutional laws. (Paras 116-118)

(B) Judicial Authority - The Magistrate's role in the remand process under s 4 POCA must align with judicial standards, maintaining the constitutional safeguards established under the Federal Constitution. (Paras 93, 319)

Facts of the case: The appeals were initiated concerning detentions made under POCA, challenging the constitutionality of s 4, specifically regarding the detention orders and allegations of bad faith due to the appellants' roles as witnesses in ongoing investigations. (Paras 3-6)

Findings of Court: The court concluded that s 4 POCA violated principles of separation of powers by mandating a mandatory remand without judicial discretion, hence unconstitutional and nullified. The court emphasized that the statutory safeguards for judicial independence must be maintained. (Paras 4, 116, 118)

Issues: The primary issues concerned the constitutionality of s 4 of POCA and the lawful basis for the appellants' continued detention amidst claims of conflict with the judicial powers conferred by the FC and allegations of mala fide actions by the arresting authorities. (Paras 3, 8)

Ratio Decidendi: The court asserted that the judicial power vested in the judiciary cannot be curtailed by legislative enactments that infringe upon fundamental rights, thus ensuring judicial independence must be free from executive dictate. (Paras 90, 91)

Result: The appeals were allowed, writs of habeas corpus issued for the appellants' release. (Paras 118, 319)

Judgement Key Points

Key Points: - The Federal Court ruled that section 4 of the Prevention of Crime Act 1959 (POCA) is constitutional, as it does not violate separation of powers or Article 121 of the Federal Constitution (!) (!) (!) (!) . - The majority held that Magistrates exercise judicial discretion under s 4 POCA to ensure compliance with legal, procedural, and constitutional safeguards before issuing remand orders (!) (!) (!) (!) . - The appeals were allowed solely because there was no evidence in the record that the Magistrate exercised discretion judicially in issuing the remand orders under s 4(1) POCA, rendering them invalid (!) (!) (!) (!) . - The preliminary objection that the appeals are academic was overruled, as habeas corpus applications must address the detention as a cumulative transaction (!) (!) (!) (!) . - Unlawful gaming under para 5 of the First Schedule to POCA falls within "organised violence against persons or property" under Article 149(1)(a) of the Federal Constitution (!) (!) (!) . - The basic structure doctrine does not apply to the Malaysian Federal Constitution, as confirmed in prior cases like Loh Kooi Choon (!) (!) (!) . - No mala fides was established in the appellants' detention, as they were suspects in MACC investigations, not mere witnesses (!) (!) (!) . - Writs of habeas corpus were issued for the appellants' release specifically in respect of the remand orders under s 4 POCA (!) (!) (!) (!) .

What is the constitutionality of section 4 of the Prevention of Crime Act 1959?

Are the appeals academic due to subsequent remand orders?

Does section 4 of POCA violate the separation of powers under Article 121 of the Federal Constitution?

JUDGMENT

Hasnah Mohammed Hashim FCJ:

Introduction

[1] The central issue in these appeals is the constitutionality of s 4 of the Prevention of Crime Act 1959 (" POCA "). The Federal Constitution (" FC ") is the heartbeat of this great Nation defining the Legislature, Executive, and Judiciary parameters, intricately woven yet profoundly independent of each other. The sanctity of the must be respected, jealously protected, staunchly defended, and guarded at all times.

The Appeals

[2] The appeals emanated from the decision of the learned Judicial Commissioner (JC) made on 2 November 2020. The learned JC dismissed the appellants' applications for a writ of habeas corpus as he was satisfied that the detention orders issued by the Magistrate against the appellants were lawfully made. Aggrieved by the decision of the High Court the appellants filed their respective appeals.

[3] We heard the oral submissions of the respective counsel for the parties on 28 December 2020. As we needed time to consider the submissions of the parties we had indicated to the parties that we will inform them of our decision once we are ready to do so. This is the decision of the majority and the reasons for having so decided.

The Facts

[4] The appeals concern the arrest and detention of three individuals (collectively referred to as "the appellants"). Zaidi Kanapiah, the appellant in Appeal No: 05(HC)-153-11-2020(W) is a businessman. Mohd Hairy Mohammad the appellant in Appeal No: 05(HC)-155-11-2020(W) and Muhamad Amin Nur Rashid Mohamed Puad, the appellant in Appeal No: 05(HC)-156-11-2020(W) are police officers. The appellants were arrested pursuant to sub-section 3(1) of POCA on 13 October 2020.

[5] The appellants were detained under sub-section 4(1) of POCA for an initial period of 21 days from 14 October 2020 to 3 November 2020. On 30 October 2020, the police obtained a further remand order under sub-section 4(2) of for a further 38 days detention until 6 December 2020.

[6] Pursuant to an Order issued under ss 19A (1) of POCA the appellants were further remanded for a period of two years from 25 November 2020. The appellant, Zaidi Kanapiah is detained in Pusat Pemulihan Khas (PPK) Pokok Sena Kedah, Mohd Hairy Mohammad is detained in PPK Bentong, Pahang and Muhamad Amin Nur Rashid Mohamed Puad is detained in PPK Simpang Renggam, Kluang, Johor.

The High Court

[7] The appellants filed in the High Court applications for a writ of habeas corpus ad subjiciendum et recipiendum. At the High Court it was argued by learned appellants' counsels that the detention violated the rights of the appellants and that the applications for habeas corpus should be allowed for the following reasons:

(i) The detention by the police was made in bad faith or mala fide, as the appellants are material witnesses in on-going investigations conducted by the Malaysian Anti-Corruption Commission (MACC). The appellants have been made scapegoats as they are material witnesses in relation to investigations being conducted by MACC with regards to alleged corrupt practice amongst members of the Royal Malaysian Police Force (PDRM) in online gambling activities known as the Macau Scam;
(ii) The detention is procedurally improper and/or in breach of the appellants' constitutional right to be informed of their grounds of arrest as provided under cl 5 of art 5 of the FC as the applicants were never notified of their grounds of arrest; and
(iii) The detention is illegal and/or irrational as the respondents failed to show that any grounds exist justifying the holding of an inquiry into the appellants under sub-section 3(1) POCA .

[8] The learned JC found that the appellants failed to prove any evidence of mala fide as it was only their allegation that they have been detained by the police to shut them up from revealing information to the MACC. He reached the conclusion that the appellants are suspects in the MACC's investigations and not witnesses as claimed. He explained in his written judgment:

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