Gobind Singh Deo, one of the three lawyers who appeared for the trio, said it had been presumed that a remand application would “automatically” be granted by a magistrate upon production of a statement by a police officer.
Gobind also told FMT it was assumed that magistrates were empowered to look into the merit of remand applications sought by police under Section 4 of Poca.
He was commenting on a written judgment by Federal Court judge Vernon Ong Lam Kiat that magistrates must strictly comply with the law, including the Federal Constitution, when deciding to grant or refuse remand applications sought by police to detain suspects for investigations under a preventive law.
The Federal Court had allowed a habeas corpus appeal to free a businessman with the “Datuk” title and two policemen over their alleged involvement in online gambling and the Macau scam.
Zaidi Kanapiah, also known as Addy Kana, and police corporals Mohd Hairy Mohamad and Muhammad Amin Nur Rashid Mohamad Puad had been ordered last year to be placed in three separate detention centres for two years under Poca.
Federal Court judges Ong, Zaleha Yusof and Hasnah Mohammed Hashim held as constitutional Section 4(1) of Poca, which lays down the procedures on the granting of remand orders.
However, the judges who formed the minority – Chief Justice Tengku Maimun Tuan Mat and Rhodzariah Bujang – held that Section 4(1) was unconstitutional as it removed the judicial power of the court and violated the doctrine of separation of powers.
Ong said a magistrate hearing a remand application should question the person arrested and peruse the police diary.
He said the magistrate must also ensure that the person is produced before him or her within 24 hours of arrest under Poca.
The person arrested must be informed of the grounds of his arrest and the right to be defended by a lawyer of his choice, he said.
Additionally, the police diary must disclose sufficient facts and particulars to support the arresting officer’s belief that “grounds exist which would justify the holding of an inquiry into the case of the person arrested” under Poca.
“If the magistrate is not satisfied that the arrest was carried out in accordance with law, the magistrate should reject the application for remand and direct the person’s immediate release,” he said.
“The magistrate should also record the reasons for the decision in a concise and comprehensive manner”.
Lawyers Gopal Sri Ram and Jacky Loi Yap Loong also appeared for the trio.
Zaidi, Hairy and Amin filed a writ of habeas corpus in the High Court last year, claiming that police detained them to keep them from revealing information to the Malaysian Anti-Corruption Commission (MACC).
However, judicial commissioner Aslam Zainuddin dismissed their application after ruling that their detention was procedurally proper as all the requirements under Section 4 of Poca had been complied with.
Police had detained the trio on Oct 14 and first obtained a 21-day remand order from the magistrate to investigate their activities, and an extension of 38 days that expired on Dec 6, 2020.