Shaik Daud Ismail JCA:

I have had the opportunity of reading the judgment of Siti Norma Yaakob JCA in draft and I concur with her judgment.

Siti Norma Yaakob JCA:

This appeal was argued as a test case as it involved an issue common to two other appeals, also fixed for hearing before us, namely Criminal Appeals Nos: A-05-19-98 and C-05-40-98, based on similar fact situations, although all three appeals involved different appellants and respondents and the decisions appealed against were made by different judges, two from the High Court at Taiping and the other at Temerloh. Additionally there has been conflicting decisions made over the same issue by the High Court sitting at different places. See the cases of Mohd Shahriman Mohd Khairil v. PP & Anor [1998] 2 CLJ 855 and Wong Kon That & Ors v. Ketua Commandan Pusat Serenti Karangan, Kulim & Anor [1999] 1 CLJ 897; [1998] 3 MLJ 380. The common issue raised is whether a writ of habeas corpus or an order of certiorari would lie to question the decision of a magistrate made pursuant to s. 6(1)(a) of the Drug Dependants (Treatment and Rehabilitation) Act 1983 ("the Act").

The similar fact situations arose in the following manner. All the appellants in the three appeals were arrested by the police at various places as suspected drug dependants. This set in motion the machinery provided by Part 2 of the Act and the respective magistrates acting under s. 6(1)(a) of the Act held separate inquiries and ordered all the appellants to be detained for two years at various rehabilitation centres to undergo treatment and rehabilitation.

Dissatisfied with the magistrates' detention orders, all the appellants filed separate applications for writs of habeas corpus to be issued against the named respondents under Chapter XXXVI of the Criminal Procedure Code, to secure their immediate releases.

At the hearing of the respective applications, the respective respondents raised a common preliminary point that the appellants had adopted the wrong procedure to secure their releases by way of habeas corpus. The respondents contended that the appellants should have sought orders of certiorari instead to quash the magistrates' decisions ordering their detentions. The courts below upheld the preliminary objection, ruled that the appellants had adopted the wrong procedure and dismissed the appellants' applications without hearing their merits. It is against such orders that the three appeals are founded.

In the case of the instant appellant, two affidavits have been filed, one in support of the application for habeas corpus and the other in rebuttal. The supporting affidavit is made by the appellant's father who swore to the fact that the appellant was detained by the police on 16 September 1997 as a suspected drug dependant and produced before the magistrate at Sitiawan on 29 September 1997. After holding an inquiry, the magistrate ordered him to be detained for a period of two years at the Pusat Serenti, Sungai Petani, Kedah. In seeking his son's release, the appellant's father alleges that the detention order was illegally and unjustifiably made by the magistrate as she had failed to comply with the mandatory provisions of Part 2 of the Act. This has been strenuously denied in the affidavit in rebuttal sworn by the particular magistrate who made the detention order.

Before us, Mr. Athimulan, of Counsel for the appellant, argued that habeas corpus is the right remedy as it secures the immediate release of the appellant from unlawful detention. This is so as the procedure for obtaining it is less cumbersome. Unlike the order for certiorari, no leave is necessary before the application for habeas corpus can be heard on its merit. Moreover as the issue involves the personal liberty of the appellant, a fundamental right guaranteed by art. 5 of the Federal Constitution, the Court below should be less stringent in its approach and should not be unduly bothered by a procedural objection placed before