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KUALA LUMPUR, April 21 — The Malaysian authorities have detained Nigerian man Simon Adavize Momoh for more than a month now, even after he had paid a fine and served his one-day jail term for a drink-driving offence.
Today, the Shah Alam High Court will hear the bid by his Malaysian wife Low Kar Hui to challenge the alleged unlawful detention and to secure his release.
What actually happened to Simon? Why has the 33-year-old man been kept apart from his wife and their two young Malaysian daughters aged eight and five? Why was he placed in detention even when he had a valid visa until October 14, 2022?
Low has now become the sole caregiver in this young Selangor family, after her husband was detained since March 15.
Here is a chronology of events, based on press statements by support group Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) and news reports and by referring to the Immigration Act and Road Transport Act, as well as additional verification yesterday by Simon’s lawyer V. Vemal Arasan to Malay Mail of the events:
March 15 — Simon was arrested at a roadblock in Cheras on suspicion of drink-driving. He was brought to the Kuala Lumpur Magistrate's Court, where he was charged under Section 45A(1) of the Road Transport Act.
(Section 45A(1) relates to the offence of driving with the alcohol concentration in the body being above the prescribed limit. An enhanced penalty was introduced in October 2020, where the penalty upon first conviction being a maximum jail term of two years and a fine of between RM10,000 and RM30,000. The penalty previously applicable before October 2020 was a fine of between RM1,000 and RM6,000 and a maximum jail term of one year.)
He pleaded guilty in court, paid a RM12,000 fine and served a symbolic one-day jail sentence.
His wife was told that he would be released at 5pm the same day, but he was not released. Instead, he was taken to the Kajang prison that same day where he was held until April 7 and then transferred on April 7 to the Immigration Department’s detention centre at Semenyih where he is still being held.
He was rearrested on March 15 by the Immigration Department under Section 35 of the Immigration Act. (According to Simon’s lawyer, this was only made known through an affidavit from the government on April 14.)
(Section 35 grants the powers to the immigration authorities or a senior police officer to arrest without warrant any person — who is reasonably believed to be a person liable to be removed from Malaysia under the Immigration Act — and to detain that person for a maximum period of 30 days in any prison, police station or immigration depot while waiting for a decision on whether an order for his removal from Malaysia should be made.)
April 1 — By this day, Simon had already been detained for 16 additional days (not including April 1), with his wife denied contact or access throughout the detention. On this day, his lawyer filed a habeas corpus petition affirmed by his wife at the Shah Alam High Court to challenge his alleged unlawful detention and to secure his release, along with a certificate of urgency to have the matter urgently heard by the courts.
The habeas corpus application named the Malaysian Prisons Department, the Immigration Department of Malaysia and the Home Ministry as respondents.
Prior to the filing of this habeas corpus bid, Simon’s wife made daily efforts to find out about his status and to seek his release, but was told that he was being held pending a Covid-19 test. Simon’s lawyer yesterday told Malay Mail that it was later made known following the habeas corpus petition that Simon had already been tested for Covid-19 on March 16 and had on April 18 tested negative.
April 7 — Simon’s lawyer received from the courts the sealed copy of the habeas corpus application, which was then served to the Attorney General’s Chambers and the three respondents.
April 9 — By this day (not including April 9), Simon had already been detained for 24 additional days or more than three weeks since his March 15 arrest. Today was initially scheduled for the Shah Alam High Court’s hearing of the habeas corpus application, but the hearing was deferred to April 15 due to the Attorney General’s Chambers’ request for time to respond to an affidavit by Simon’s wife.
April 12 — Simon’s wife writes to the Immigration director-general to appeal and seek for his release from the Semenyih detention centre.
In a statement on this day endorsed by 23 civil society organisations and 19 individuals, they urged the Malaysian government to immediately release Simon, noting that there has been a breach of his constitutional rights under Article 5 of the Federal Constitution to be informed why he had been arrested and to be allowed access to lawyers, as he was not informed nor given such access.
April 14 — Simon’s wife Low received an email from the Immigration Department’s Putrajaya headquarters, notifying her that her appeal has been rejected and asking her to liaise with the Semenyih immigration depot to arrange for flight tickets to deport Simon to Nigeria.
On this day, it was made known to Simon’s wife and his lawyer that the Immigration Department had cancelled his spouse visa on April 9 due to Section 8(3)(d) and via Section 9 of the Immigration Act and that the Immigration Department had also issued a deportation order dated April 12. (Under Section 9, the Immigration director-general has the power to cancel any pass which allows anyone to remain in Malaysia.)
Prior to the April 9 cancellation, Simon had a Long-Term Social Visit Pass or spouse visa that was still valid until October 14, 2022. As this long-term spouse visa allowed him to be in Malaysia but disallowed him from working here, he was a stay-at-home father for his two young children while his wife is the sole breadwinner.
If March 15 is not included in the tally, today would be the 30th day of Simon’s detention.
(Also on this day, Simon’s lawyer was initially told he would be able to meet with him, but upon arrival at the Semenyih detention centre was told that he would not be able to meet his client due to a power outage. An affidavit by the government filed in court due to the habeas corpus matter had said both the lawyer and Simon’s wife were previously not allowed access to him due to Covid-19 reasons.)
April 15 — On this day, the government at the court proceedings via a deputy public prosecutor said Simon was detained due to his status as a “prohibited immigrant” under Section 8(3)(d) of the Immigration Act.
(A check by Malay Mail showed that Section 8(3)(d) is one of the categories under the Immigration Act for “prohibited immigrants”. Under Section 8(3)(d), a person is a “prohibited immigrant” when a person has been convicted in any country or state of any offence and sentenced to imprisonment for any term and has not received a free pardon, AND who is deemed by the Immigration director-general to be an “undesirable immigrant”.
Also under Section 8(2), a “prohibited immigrant” is not allowed to remain in Malaysia, unless an exemption has been granted under Section 55 of the same law. Under Section 55, the home minister may order for the Immigration Act’s provisions to not apply to any person or any class of persons.)
During this court proceeding, Simon’s lawyer informed the High Court judge that he had no access to his client, with the judge then directing the Attorney General’s Chambers to ensure that the lawyer would have access to Simon.
The deputy public prosecutor gives an undertaking in court to ensure access by Simon’s lawyer to his client.
High Court fixes April 21 for the full hearing of the habeas corpus application.
April 16 — Vemal Arasan is able to meet Simon for the first time since becoming his lawyer. Only one person was allowed for this visit. It was only from this visit that Simon discovered — from his lawyer — that his visa had been cancelled and that an order had been issued to deport him.
April 18 — The Cathedral of St John the Evangelist — a Catholic church at Jalan Bukit Nanas in Kuala Lumpur which Simon attends — organised an online prayer vigil to pray for him and his family. On April 17, the church had released a statement calling for his release, describing him as a loving husband and doting father.
April 19 — Simon’s lawyer meets with him for the second time. Today is also the first time that Simon’s wife is meeting with him or has access to him since March 15. A commissioner of oaths was also present to enable Simon to affirm his affidavit for court proceedings.
April 21 — If March 15 is included and up to April 20, Simon would have already been detained for 37 days. Today is scheduled for the full hearing of his habeas corpus petition at the Shah Alam High Court before judge Datuk Ab Karim Ab Rahman.