The court upheld that a writ of habeas corpus cannot be issued for detention transitioned from preventive to judicial after filing under SOSMA, despite procedural non-compliance in initial detention.

[1]The Applicant applied for a writ of Habeas Corpus to be issued against his detention by the police under subsection 4(5) Security Offences (Special Measures) Act 2012 Act 747] (“ SOSMA ”) and the Anti-Trafficking In Persons And Anti-Smuggling of Migrants Act 2007 [Act 670] (“ATIPSOM”).

[2]The Application was filed by way of a Notice of Motion dated 1.7.2023 (Enclosure 1) supported by the Affidavit affirmed by the Deponent who is the Applicant’s wife (Enclosure 2) and also filed together with a Certificate of Urgency (Enclosure 3). The Application was first mentioned on 4.7.2023, and the Application was fixed for Hearing on 13.7.2023.

[3]On the Hearing date of the Application (13.7.2023), this Court was informed that the Applicant has been charged under section 26DATIPSOMCourt at Baling on 12.7.2023, which was a day before the Hearing date before this Court, and the Applicant was denied bail by the Sessions Court pursuant to section 13 of SOSMAsection 4(5)SOSMACourt.

[4]The Applicant however submitted that although the Applicant is no longer detained under section 4(5)SOSMAcourt, the Application cannot be rendered academic. Whereas the Respondent submitted that upon the Applicant being charged in court and remanded, this Court no longer has the jurisdiction to issue a writ of Habeas Corpus, as the Application has now become academic.

[5]This Court then fix 20.7.2023 for the decision on the issue raised by both parties on whether the Application has been rendered academic or not. However, on the date of the decision, the Respondent submitted that they no longer pursue the matter but instead, what the Respondent is objecting to at this juncture was that even if the Applicant’s detention is found to be unlawful, this Court cannot issue a writ of Habeas Corpus as the Applicant is no longer being detained under a preventive order but instead is being remanded under an order of the court. To seek a release from such detention, the Applicant should apply to be released on bail pursuant to the provision of section 13 of SOSMA

[6]At the end of the submission on the objection by the Respondents, this Court decided that the decision on the matter raised by the Respondents shall be decided upon the completion of the Hearing of the Application on merits. Both parties then submitted on the merits of the Application which went on for 2 days (20.7.2023 and 26.7.2023) and this Court then fixed 31.7.2023 for the decision of the Application.

[7]On 31.7.2023, this Court decided that the Application of the Applicant as in Enclosure 1 for a writ of Habeas Corpus to be issued against his detention be dismissed. Dissatisfied with the decision of this Court, the Applicant filed an appeal to the Federal Court.

FACTS OF THE CASE

[8]On 22.6.2023 at around 11 am, ASP Che Intan binti Subri arrested the Applicant together with three other detainees (2 males and 1 female) at Pejabat Cawangan D7, Bahagian Siasatan Jenayah, Ibu Pejabat Polis Daerah Kota Setar, Kedah. He was arrested pursuant to section 4SOSMAsection 26AATIPSOMsection 28ACriminal Procedure Code

[9]ASP Che Intan binti Subri then obtained from the Applicant the contact number of the Applicant’s wife (Foo Li Yuan) and lawyer (Khoo Wan Ching). She attempted to contact the Applicant’s wife two times to inform her of the Applicant’s arrest and detention, however, her calls were unanswered. She then contacted Khoo Wan Ching and Khoo Wan Ching then arrived at Ibu Pejabat Polis Daerah Kota Setar, Kedah at about 4 pm. ASP Che Intan binti Subri informed Khoo Wan Ching of the Applicant’s arrest under section 4SOSMA

[10]On the same day, ASP Che Intan binti Subri applied to ACP Ahmad Shukri bin Mat Akhir, after having been satisfied that the investigation against the Applicant cannot be completed within twenty-four hours, for the detention of the Applicant to be extended for a period of not more than twenty-eight days pursuant to subsection 4(5) SOSMA subsection 4(5)

[11]ASP Che Intan binti Subri had also applie