JUDGMENT

Zaharah Ibrahim FCJ:

Introduction

[1] This is an appeal by the appellants against the decision of the High Court which allowed the respondents application for a writ of habeas corpus to be issued for his release from detention pursuant to the warrant of committal issued by the Sessions Court pending the order for extradition by the 1st appellant.

[2] We heard the appeal on 26 April 2016 and allowed the appeal. We now give our reasons for that decision.

Background Facts

[3] The facts of this case are as set out below.

[4] A warrant of arrest dated 27 July 2012 was issued by the Bangkok Criminal Court against the respondent.

[5] Subsequently, the Government of Thailand made a request to the Government of Malaysia vide a letter of request dated 21 August 2013 for a temporary warrant of arrest to be issued against the respondent. The request was made under the Extradition Treaty concluded between Great Britain and Siam on 4 March 1911 and made applicable to Malaya (and later Malaysia) and the Government of the Kingdom of Thailand by way of Diplomatic Notes dated 17 October 1959 and recognised through the Extradition (Thailand) Order 1992 ("Thailand Order") made under the Extradition Act 1992 ("Extradition Act").

[6] On 27 August 2013, the Kuala Lumpur Magistrates Court issued a provisional warrant of arrest against the respondent under subsection 13(1) of the Extradition Act. The respondent was arrested. On 25 March 2013, an order was made for the transfer of the case to the Sessions Court and the respondent was ordered to be remanded until he was brought before the Sessions Court.

[7] On 12 November 2013, the Public Prosecutor made an application to have the respondent committed to prison pending the order of the Minister for Home Affairs (the 1st appellant) to surrender the respondent to the Government of Thailand. The warrant of committal was issued by the Sessions Court on 10 January 2014 ("Warrant of Committal").

[8] The respondent then filed an application for a writ of habeas corpus at the Kuala Lumpur High Court but the application was dismissed on 26 March 2014.

[9] An appeal was filed by the respondent to the Federal Court. On 26 August 2014, the Federal Court allowed the appeal and ordered the case to be re-heard before another High Court Judge as the decision made on 26 March 2014 was made without the benefit of the grounds of judgment of the Sessions Court Judge who issued the warrant of committal.

[10] The case was re-heard before another High Court Judge.

[11] References in this judgment to the proceedings in the High Court and the decision and order of the High Court are references to the proceedings before the second High Court Judge and to his decision and order.

At The High Court

[12] According to the learned High Court Judge, the four grounds raised before him by the counsel for the respondent were:

(1) issue of dual criminality;

(2) issue of rule of speciality;

(3) discrepancy in the weight of the drugs; and

(4) failure to prove a prima facie case as required by subsection 19(4) of the Extradition Act.

[13] In his grounds of judgment, the learned High Court Judge said:

"Meneliti Alasan Penghakiman Tuan HMS, saya berpuas hati atas alasan yang diberikan untuk isu-isu lain namun saya berkeputusan dan tidak bersetuju atas Isu 3 dan 4 dan tidak dapat menerima alasan oleh Tuan HMS atas isu "rule of speciality" dan "dual criminality" ini."

[14] The learned High Court Judge further said:

"Mahkamah ini melihat pada satu isu sahaja iaitu "rule of speciality" dan "dual criminality" selain dari tiadanya undertaking yang pihak kerajaan Thailand yang mereka akan hanya menuduh pemohon atas Bhg VI s 8(e) Akta Mahkamah ini merujuk kepada affidavit DPP Thailand ... menyatakan bahawa "If the alleged offender is apprehended or taken by any means, he will be notified of the additional charges and then be prosecuted ...""

[15] The learned High Court Judge found that the affidavits indicated that the respondent wou