Preventive detention laws must be strictly construed; online gambling does not fall under POCA as it is not linked to organized violence, emphasizing the need for precise legislative action.

Nallini Pathmanathan FCJ:

Introduction

[1] There are two series of cumulative appeals before us relating to preventive detention under the Prevention of Crimes Ordinance 1959 ('POCA') brought by all the appellants, who were detainees at the time of the filing of their applications for habeas corpus and other declaratory relief. The periods of detention have since expired, although all the appellants were in detention at the time of the disposal of their appeals before the High Court.

[2] The first set of appeals deals with six cases, while the second set of appeals deals with nineteen cases. In both sets of appeals, the appellants were detained under POCA in relation to 'the organization and implementation of online gambling' which was stated to be in contravention of the provisions of POCA.

The High Court

[3] Both sets of cases were heard before two different judges of the High Court of Malaya in Kuala Lumpur. The set of six appeals sought to challenge the remand and detention of the appellants under s 4(1)(a) POCA, although the application cited s 4 as well as all the provisions of POCA, and further sought declarations that the arrest and remand of these detainees was unlawful because online gambling did not fall within the purview or scope of POCA. It was further contended that POCA did not apply to foreign nationals.

[4] The set of nineteen appeals sought to challenge the detention of the appellants under s 19 of POCA. It also sought declarations that the detention of these appellants was unlawful because online gambling did not fall within the purview or scope of POCA. Similarly, it was contended that POCA did not apply to foreign nationals.

[5] It is evident that the primary basis for challenge in both sets of appeals is identical, namely that online gambling does not fall within the purview of POCA and secondly that POCA does not apply to foreign nationals.

[6] In the first set of six appeals, the additional issue of the applications being academic, as the relevant period of remand and detention under s 4(1)(a) POCA having expired, was also raised.

[7] At first instance, both judges dismissed all the applications filed by the applicants. The first set of six applications was dismissed on the preliminary point of the applications being academic. Notwithstanding this, the High Court Judge went to determine one of the substantive points in issue, namely that POCA does apply to foreign national and not only to Malaysian citizens.

[8] As for the set of nineteen applications the other High Court Judge similarly dismissed the applications. The issue of the applications being academic did not arise as the applicants were then in detention.

The Federal Court

[9] On appeal, this issue of both sets of appeals being academic, as the relevant periods of detention had expired, was raised before us. This resulted in three identical primary issues being raised before us namely:

(i) By way of a preliminary issue raised by the detaining authority, ie the respondents: Whether the appeals as a whole were academic. The rationale behind this being that an application for release or habeas corpus can only be directed at the presently subsisting order of detention. If that detention has expired then the issue becomes academic;

(ii) Whether online gambling simpliciter falls within the scope of POCA; and

(iii) Whether POCA applies to non-nationals or foreign nationals or is restricted to Malaysian citizens.

[10] We dealt with both sets of appeals together, namely the set of six appeals, as well as the nineteen appeals, because the issues raised were the same. At the end of the hearing, we issued a brief unanimous judgment as follows:

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"On the preliminary issue of the Appeals being Academic:

(a) We agree with the decision in Zaidi Kanapiah that the appeals are not academic because the applications have to be looked at or considered from the date of the filing of the applications for habeas corpus under art 5(2) of the Federal Constitution ; secondly it