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2024 MarsdenLR 1156
COURT OF APPEAL PUTRAJAYA
AZIZAH NAWAWI, JCA
PP & ORS – Appellant
Versus
WONG ONG HUA & ANOR – Respondent
[Civil Appeal No: W-01(A)-66-02/2023]
Sections 4 and 20 of the Extradition Act 1992 are unconstitutional as they infringe on judicial independence and violate the separation of powers under the Federal Constitution.
Headnote:(A) Extradition Act 1992 - Sections 4 and 20 - Federal Constitution - Articles 4(1), 5(1) and (2), 8(1) and (2), 9(1) and (2), 121(1) - The High Court declared ss 4 and 20 of the Extradition Act unconstitutional, asserting they contravene judicial independence. (Paras 28, 29)
(B) Judicial Power - The court held that the Sessions Court's role under s 20 is not purely administrative, as it requires legal determinations, thus infringing the separation of powers doctrine. (Paras 13, 14)
(C) Extradition Proceedings - The court distinguished between ss 19 and 20 of the EA, emphasizing the necessity of a prima facie case under s 19. (Paras 21, 24)
Facts of the case:
The respondents, suspected fugitives, challenged the constitutionality of the extradition process initiated under the EA 1992, which they claimed violated their rights. (Paras 2-10)
Findings of Court:
The court found the provisions of the EA 1992 unconstitutional as they compromised judicial independence, leading to the decision being set aside. (Paras 16, 47)
Issues: The main issue was whether the procedures under ss 4 and 20 of the EA 1992 violated the Federal Constitution. (Paras 30, 31)
Ratio Decidendi: The court concluded that sections 4 and 20 of the EA 1992 are unconstitutional as they infringe upon the judiciary's independence and violate the separation of powers. (Paras 35, 46)
Result: The appeal was allowed, and the High Court's decision was set aside. (Para 47)
Introduction
[1] This is an appeal against the decision of the learned High Court Judge delivered on 26 January 2023 which allowed the respondents' Originating Summons ("OS"), inter alia, seeking the following reliefs:
(a) A declaration that ss 4 and 20 of the Extradition Act 1992 are unconstitutional, null, void and of no effect being in contravention of art 4(1) of the Federal Constitution;
(b) A declaration that ss 4 and 20 of the Extradition Act 1992 are unconstitutional, null, void and of no effect being in contravention of art 5(1) and (2) of the Federal Constitution;
(c) A declaration that ss 4 and 20 of the Extradition Act 1992 are unconstitutional, null, void and of no effect being in contravention of art 8(1) and (2) of the Federal Constitution;
(d) A declaration that ss 4 and 20 of the Extradition Act 1992 are unconstitutional, null, void and of no effect being in contravention of art 9(1) and (2) of the Federal Constitution; and
(e) A declaration that ss 4 and 20 of the Extradition Act 1992 are unconstitutional, null, void and of no effect being in contravention of art 121(1) of the Federal Constitution.
The Salient Facts
[2] The respondents are suspected to be fugitive criminals and were arrested on 14 September 2020.
[3] The respondents were arrested by the police executing a Provisional Warrant of Apprehension ("PWA") under s 13(1)(b) of the Extradition Act 1992 (" EA 1992") issued by the Kuala Lumpur Magistrates Court on 11 September 2020.
[4] The PWA was issued at the request by the Government of the United States of America ("the US Government") dated 3 September 2020 to the Government of Malaysia ("GOM"). The request was made under art 11 of an Extradition Treaty dated 3 August 1995 between the US Government and GOM ("the Treaty").
[5] The respondents were then remanded by the Kuala Lumpur Magistrates Court for a period of 60 days pursuant to s 16(1) of the EA 1992.
[6] On 8 October 2020, the Minister of Home Affairs ("the Minister"), issued an order and signified to the Magistrate that the US Government had made a requisition for the return of the respondents pursuant to s 12 of the EA 1992.
[7] On 8 October 2020, the Minister also made an order under s 4 of the EA 1992 to the Sessions Court Judge, giving direction that the procedures under s 20 is to be applied to the extradition proceedings (the "Prima Facie Exclusion Order"). The said Order reads as follows:
"To a Judge of a Sessions Court , Whereas, in the exercise of the powers conferred upon me by virtue of s 4 of the Extradition Act 1992 [Act 479], I, Dato' Seri Hamzah bin Zainudin, the Minister of Home Affair, do hereby direct that the procedures under s 20 of the [Act 479] be applied in relation to the extradition request from the Government of United States of America for the case of Wong Ong Hua (Nric No: 740704-08-5051) and Ling Yang Ching (Nric No: 880509-08-5173) who are accused of the following offences within the jurisdiction of United States of America...".
[8] On 13 October 2020, the Magistrate ordered that the proceedings be transmitted to the Sessions Court , and the remand of the respondents were extended until their appearance before the Sessions Court in accordance with s 16(2) of the EA 1992.
[9] On 9 February 2021, the respondents were granted bail on the condition that they each provide a bail bond of RM500,000.00 with two sureties. The respondents complied with this condition and are now released on bail.
[10] On 14 September 2021, the respondents instituted the OS in the High Court , and applied for a stay of the extradition proceedings in the Sessions Court pending the hearing and disposal of the OS at the High Court .
[11] On 23 June 2022, an application to strike out the respondent's OS was dismissed by the High Court .
[12] On 26 January 2023, learned High Court Judge allowed prayer (1) to (5) of the OS whereas prayer (6) and (7) were dismissed with no order as to cost.
Decision Of The High Court
