PUTRAJAYA, April 27 — The Federal Court today ordered businessman Zaidi Kanapiah or better known as “Datuk Addy Kana” and two policemen who were detained under the Prevention of Crime Act (Poca) 1959 in connection with an illegal online gambling syndicate, be released immediately.
Chief Justice Tun Tengku Maimun Tuan Mat who chaired a five-member panel made the order after allowing the trio’s appeal over their applications for a writ of habeas corpus.
The others presiding on the bench were Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Zaleha Yusof, Datuk Seri Hasnah Mohammed Hashim and Datuk Rhodzariah Bujang.
Zaidi, Corporal Muhamad Amin Nur Rashid Mohamed Puad and Corporal Mohd Hairy Mohammad, all aged between 35 and 40 had appealed against the Kuala Lumpur High Court’s dismissal of their applications for a writ of habeas corpus for an immediate release.
Justice Tengku Maimun held that the respondents, namely the magistrate’s court, the Inspector-General of Police, the government and Assistant Superintendent Khairul Fairoz Rodzuan had not met the legal burden to justify the lawfulness of the trio’s detention.
“The appeals are allowed, the order of the High Court is set aside and the appellants’ application for a writ of habeas corpus is allowed. It is therefore directed that each of the appellants be released from custody forthwith,” said Justice Tengku Maimun.
Justice Tengku Maimun in her judgment said the arrest and detention of the appellants under Section 4 of POCA 1959 which stipulates the procedure before a magistrate, were unlawful.
She said since the initial detention was done on the basis of an unconstitutional “law”, hence there is no basis in law to detain the appellants.
“This effectively means that their life and personal liberty was not deprived in accordance with law under Article 5(1) of the Federal Constitution. Their detention is therefore unlawful and habeas corpus must issue as of right,” she said.
The top judge also stated that Sections 4(1) and 4(2) of POCA were unconstitutional as it contradicts the basic structure doctrine.
She said under both subsections (1) and (2), the magistrate is not entitled to apply his or her judicial mind nor exercise independent discretion to determine whether the remand application should be granted.
She said by binding the magistrate to the dictates of the Executive in the police and the public prosecutor, the law passed by Parliament seeks to override this particular feature.
“As such, subsections (1) and (2) of Section 4 of Poca are inconsistent with the Federal Constitution and are void. The presumption of constitutionality has been overcome rendering the said provisions liable to be struck down,” she said.
The Chief Justice further said gaming offences can hardly be considered anything close to organised violence, though it may perhaps be classified as organised crime.
“Organised crime is not necessarily equivalent to organised violence. For instance, white-collar crime committed by businesses and government professionals is a nonviolent crime. The respondents made no mention of ‘organised violence’ in their affidavit,” she added.
Earlier, Justices Tengku Maimun and Rhodzariah allowed the appeals while three other judges dissented.
However, the judges in the majority comprising Justices Ong, Zaleha and Hasnah afterwards concurred with the two judges after the appellants’ counsel Datuk Seri Gopal Sri Ram and Gobind Singh Deo raised the issue of non-compliance of the guidelines by the magistrate when issuing the remand order.
Justice Ong said after looking at the necessary clarification on the appeal record, the court discovered that there was nothing to show that the magistrate at the hearing of the remand application pursuant to Section 4(1) of the Act applied the remand to the guidelines laid out by the court.
“It is clear that the guidelines were not followed. Consequently, we (Justices Ong, Zaleha and Hasnah) are minded to allow the appeal in respect of that there was non-compliance with the guidelines,” he said.
The trio in their application, said their arrest and detention on October 11, 2020, under Section 4 (1) (c) of the Common Gaming Houses Act 1953 was illegal, has no basis, not compliance in procedure and mala fide and sought for an immediate release.
According to the police, the three and another man Goh Leong Yeong or Alvin Goh had been detained under Poca for two years at the Simpang Renggam Special Rehabilitation Centre (PPK) in Johor; Pokok Sena PPK in Kedah; and Bentong PPK in Pahang.
The orders against them were issued on November 25 and 26 the same year before all of them were brought before the Prevention of Crime Board (Home Ministry) for further action. — Bernama