The court held that a writ of habeas corpus is available even when the detainee is not in physical custody, emphasizing the legality of detention over physical presence.

[1] The appellant filed for the issue of a writ of habeas corpus. The application was dismissed by the learned Judge who agreed with the preliminary objection raised by the learned Senior Federal Counsel [SFC]; that such writ does not lie where the corpus is not or is no longer in physical detention. We disagree and these are our reasons.

Some Material Facts

[2] Pursuant to a detention order dated 30 August 2021 issued under the hand of the 1st respondent, the appellant was detained at Pusat Pemulihan Akhlak, Simpang Rengam, Johor for a period of two years. He is alleged to have been involved in activities related to trafficking of dangerous drugs as defined under s 2 of the Dangerous Drugs Act 1952 [Act 234]. Those activities were said to have threatened public order in which case action against him had to be taken under the Dangerous Drugs (Special Preventive Measures) Act 1985 [Act 316].

[3] On 21 January 2022, the 1st respondent issued a Suspension of the Detention Order leading the appellant to be "detained for a period of 2 years at Mukim Chin-Chin Daerah Jasin, Melaka" on a list of 8 restrictions or conditions concerning his movement and the need to report to the local police every Monday of the week. Although it is not clear if the appellant was in fact affixed with an electronic monitoring device or EMD, one of those conditions did specify that he was liable to be so affixed.

[4] The appellant moved the Court for a writ of habeas corpus on the grounds, inter alia, that his detention was invalid, null and void; that there was a breach of the provisions of the Federal Constitution and/or the Dangerous Drugs (Special Preventive Measures) Act 1985 [Act 316]; that the grounds for his detention were capricious, vague and without substance.

[5] On the hearing of the application, the learned SFC raised the preliminary objection of a wrong mode; that because the appellant was now restricted under a restriction order, the proper mode should have been an application for a judicial review seeking declaratory orders or such similar orders and not through a criminal application for an order of habeas corpus under s 365 of the Criminal Procedure Code [ CPC ]. The decisions in Kerajaan Malaysia & Ors v. Nasharuddin Nasir 2003 MarsdenLR 1013 ; 2004 MarsdenLR 1841 ; ; Sejahratul Dursina v. Kerajaan Malaysia & Ors 2005 MarsdenLR 2060 ; [2006] 1 MLJ 405; 2006 MarsdenLR 2917 ; ; Sureshwaran Rajoo v. Ketua Polis Negara & 3 Lagi 2015 MarsdenLR 932 ; 2014 MarsdenLR 23 , were cited in support.

Decision Of The High Court

[6] The learned Judge agreed; finding that since the appellant was no longer under imprisonment; neither was he physically detained in any detention centre, that he was in fact allowed to move about freely within the district of Jasin, there was no detention of "such a nature as to attract the application of a writ of habeas corpus and does not fall within the ambit of s 365 CPC ". The writ of habeas corpus was thus not available to the appellant.

Our Decision

[7] Under Dangerous Drugs (Special Preventive Measures) Act 1985 [Act 316], three types of orders may be issued, namely restriction order, detention order, and suspension of detention order:

Power to order detention and restriction of persons

6. (1) Whenever the Minister, after considering:

(a) the complete report of investigation submitted under subsection 3(3); and

(b) the report of the Inquiry Officer submitted under subsection 5(4), is satisfied with respect to any person that su