JUDGMENT

This is an application by Teng Howe Sing (“the applicant”) for a writ of habeas corpus.

The application is supported by theaffidavit of the applicant affirmed on 21 April, 1999.

An affidavit in reply was affirmed by ACP Samsudin bin Sulaiman on 5 May 1999.

An affidavit balas was affirmed by Mohd. Zawawi bin Abdul Rahim on 5 May 1999.

An affidavit jawapan was affirmed by Chief Inspector Anthony Abell on 4 May 1999 (“Chief Inspector Anthony Abell's affidavit”).

An affidavit jawapan was affirmed by Inspector Alekzandra bin Dawam on 4 May1999 (“the first affidavit of Inspector Alekzandra”).

An affidavit jawapan was affirmed by Awg. Armadajaya b. Awg. Mahmud, the Deputy Public Prosecutor (“the DPP”), on 4 May 1999.

An affidavit tambahanwas affirmed by Awg. Armadajaya b. Awg. Mahmud, the DPP, on 6 May 1999.

An affidavit tambahan was affirmed by Mohd. Zawawi bin Abdul Rahim on 11 May 1999.

An affidavit tambahan was affirmed by Inspector Alekzandra binDawam on 11 May 1999 (“the second affidavit of Inspector Alekzandra”).

An affidavit balas was affirmed by ASP Kamaludin bin Kassim on 13 May 1999.

I have considered the submissions of the learned counsel forthe applicant and the learned DPP for the respondents and the affidavits. I shall now give my judgment.

In Sazali bin Mat Noh v. Timbalan Menteri Dalam Negeri & Ors. (1999) 1 MLJ 9 His Lordship KC VohrahJ. at pages 13 to 15 said:-

“As was pointed out by the great judge, the late Abdoolcader J. (as he then was) in Yeap Hock Seng v. Minister for Home Affairs, Malaysia & Ors.(1975) 2 MLJ 279 at p. 281:-

The grant of habeas corpus is as of right and not in the discretion of the court as in the case of such extraordinary legal remedies as certiorari, prohibition and mandamus.It is a writ of right against which no privilege of person or place can be of any avail (R v. Pell and Offly 84 ER 720). The heavy musketry of the law will always be brought to bear upon any suggestion of unlawful invasion orinfringement of the personal liberty of an individual in the form of habeas corpus and kindred orders where necessary to grant relief when warranted. It was aptly put in the American case of State ex rel Evans v. Broaddus 245Mo 123 at p.140 that at least in times of peace every human power must give way to the writ of habeas corpus and no prison door is stout enough to stand in its way.

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The learned judge examined several cases including the EnglishCourt of Appeal decision in the English Court of Appeal, R v. Governor of Pentonville Prison & Anor. ex p Azam (1974) AC 18 (at pp 24-29), which was affirmed by the House of Lords sub nom Azam v. Secretaryof State for the Home Department (at pp 58-75) and stated in respect of the Court of Appeal decision:

The Court of Appeal unanimously held that a person is entitled to seek a writ of habeas corpusas of right and is not obliged to rely on the less convenient remedy of appeal or any other alternative remedy provided by statute.

Abdoolcader J. emphasized the principle laid down by Lord Denning MR and Buckleyand Stephenson LJJ, to the effect that the existence of an alternative remedy however convenient, beneficial and effectual does not prevent the issue of a writ of habeas corpus and that it is open to the court notwithstanding to examine the legality of the impugneddetention.”

As such, I am of the view that it was proper for the applicant to file the writ of habeas corpus and it is open to this court to examine the legality of the remand.

I shall now set out the facts.

On 17 March 1999 at about 7.50 p.m. the applicant and another person were arrested by a party of police led by ASP Kamaluddin b. Kassim at Jalan Kai Peng, Jalan Tuanku Osman, Sibu.

On 18 March 1999 Inspector Alekzandra bin Dawammade an application for remand under section 117Criminal Procedure Code1999.

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