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2025 MarsdenLR 5804
ABDUL WAHAB, J
DASTHIGEER B MOHAMED ISMAIL – Plaintiff
Versus
KERAJAAN MALAYSIA & ANOR – Defendant
Valid remand orders must adhere to statutory requirements; unlawful detention cannot justify further remand or habeas corpus. Compliance with legal procedures ensures the protection of personal liberty.
Headnote:(A) Article 5(1) of the Federal Constitution - Section 117, Criminal Procedure Code - Remand orders must comply with statutory requirements; unlawful detention cannot justify further remand. The court noted that remand orders must be based on reasonable grounds and proper authority, with adherence to specified procedures, confirmed by judicial oversight to prevent abuse of liberty. (Paras 23, 56, 75)
(B) Habeas Corpus - A writ cannot be granted if the law permits a person's detention under a court order, as statutory compliance presumes legality until overturned. (Paras 12, 30)
Facts of the case:
The applicant's son was arrested and repeatedly remanded without proper authority, causing concern over the legality of his detention, prompting requests for habeas corpus applications based on alleged abuse of rights and judicial oversight failure.
Findings of Court:
The court recognized that the periods of unauthorized detention (January 30 to February 4) necessitated an adjustment in the remand order but rejected the habeas corpus applications due to a lawful authority basis for subsequent detentions under the Magistrates' Court.
Issues: The legitimacy of the remand orders and the allowance of habeas corpus applications was contested, particularly regarding the criteria and procedures mandated by law for such orders.
Ratio Decidendi: The court emphasized that remand orders must occur only under lawful grounds, and once set by a competent judicial authority, they remain valid until vacated; compliance with outlined legal procedures is necessary to maintain the integrity of the judicial system.
Result: The second application for habeas corpus was dismissed, although the remand period was shortened due to unlawful detention.
JUDGMENT
The tortuous facts of this application are as follows.
The applicant Dasthigeer bin Mohamed Ismail is the father of one Shahul Hameedbin Dasthigeer (the arrested person). The latter was arrested on December 19, 1999 pursuant to Kajang Police Report 424/99 lodged on January 10, 1999. On the next day, the Magistrates' Court remanded the applicant for one week until January 27, 1999 underremand order 57/99. The remand order was further extended for a period of 3 days until January 30, 1999. Notwithstanding that there was no further remand order, the applicant, according to his counsel, was kept in Police custody. According to his counsel, hewas brought before the Magistrate, charged and released on police bail of RM 4000 on February 4, 1999. As soon as bail was posted, he was re-arrested under Dang Wangi Police Report 177/99. He was remanded by the Kuala Lumpur Magistrate's Court until February10, 1999. This remand was extended to February 18, 1999.
On the next day, a habeas corpus application No. 44-4-99 (the first application) was filed by counsel on behalf of the applicant. The application was heard on 13th and 15th of February, 1999. The Court had rejected the habeas corpus application but exercised its revisionary powers to shorten the period of remand to February 15, 1999.
The arrested person wasreleased upon the order having been communicated, but within minutes of release, was re-arrested at 6.00 p.m. under Dang Wangi Police Report 33638/98 lodged on December 25, 1998. Because of intervening public holidays he was brought before the Magistrate'sCourt on February 18, 1999 where he was remanded to February 27, 1999.
The applicant filed another writ of habeas corpus (the second application) on February 25, 1999.
On February 27, 1999 he was released on police bailof RM2000 in respect of that Dang Wangi Police Report 33638/98. He was however arrested at the same time under Tun HS Lee Police Report 396/99 lodged on January 5, 1999, and on this separate report he was remanded until March 5, 1999.
TheKajang Police Report 424/99, Dang Wangi Police Report 177/99, Dang Wangi Police Report 33638/98 and Tun HS Lee Police Report 396/99 are classified under i) sections 392397Penal Codesections 302397Penal Codesections392397Penal Codesection 148Penal Code
The First Application.
Strictly speaking, the first application is not relevant to the current application. However the secondapplication repeats the basis of the first application as is evident from the supporting affidavit to the second application. In deference to counsel's request that a ruling on the questions of law involved is desirable, and since the same questionsare applicable in the second application, I accede to that request.
In his supporting affidavit to the first application the applicant had deposed that upon being informed of re-arrest of his son on February 4, 1999 under the Dang Wangi PoliceReport:
11 Dengan serta-merta saya telah mengarahkan Peguamcara saya untuk bertanya di Mahkamah Majistret Jalan Raja tentang lokasi anak saya. Sesalinan surat kepada Majistret Jalan Raja dikemukakan, ditunjukkankepada saya dan ditandakan di sini sebagai Ekshibit “DM-3”.
12 Pada had yang sama, Peguamcara saya telah pergi ke Mahkamah Majistret Jalan Raja di mana Tuan Pendaftar telah memaklumkan bahawa anak saya sebenarnyatelah dibawa ke Mahkamah Majistret Jalan Raja pada 3 hb Februari, 1999 dan telah direman. Perintah Reman diberikan oleh Puan Majistret Lailatul Zuraida binti Harun. Peguamcara saya telah pergi berjumpa dengan Puan Majistret dan Puan Majistret telah memberitahuPeguamcara saya untuk merujuk kepada Balai Polis, Jalan Dang Wangi.
13 Pada had yang sama juga iaitu 4 hb Februari, 1999 Peguamcara saya telah membuat pertanyaan di Balai Polis Jalan Dang Wangi. Seorang pegawai bernama KorporalLatipah telah mengesahkan kepada Peguamcara saya bahawa anak saya telah pun dibebaskan melalui jaminan polis pada 3 hb Februari, 1999 dan dia tidak tahu di mana dia berada tetapi kami bol
