The High Court cannot issue a writ of Habeas Corpus once an applicant is charged and remanded, despite earlier procedural violations under SOSMA.

Introduction

[1] The Applicant applied for a writ of Habeas Corpus to be issued against his detention by the police under subsection 4(5) of the 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 July 2023 (encl 1) supported by the Affidavit affirmed by the Deponent who is the Applicant's wife (encl 2) and also filed together with a Certificate of Urgency (encl 3). The Application was first mentioned on 4 July 2023, and the Application was fixed for Hearing on 13 July 2023.

[3] On the Hearing date of the Application (13 July 2023), this Court was informed that the Applicant has been charged under s 26D of ATIPSOM in the Sessions Court at Baling on 12 July 2023, which was a day before the Hearing date before this Court, and the Applicant was denied bail by the Sessions Court pursuant to s 13 of SOSMA . Hence the Applicant's detention under s 4(5) of has expired upon him being charged in Court.

[4] The Applicant however submitted that although the Applicant is no longer detained under s 4(5) of SOSMA , but instead remanded under an order of the Court, 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 July 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 s 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 July 2023 and 26 July 2023) and this Court then fixed 31 July 2023 for the decision of the Application.

[7] On 31 July 2023, this Court decided that the Application of the Applicant as in encl 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 June 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