Judge Nallini Pathmanathan said the High Court could also inquire into the legality of arrest even if the Poca board had issued detention orders or the detainees had been freed.
In a ground-breaking decision, Nallini said the right to challenge unlawful detention and obtain an order of release was protected under Article 5(2) the Federal Constitution.
That provision states that once a complaint has been filed in the High Court, the detainee will be produced and a judge must make inquiries and order a release if the detention is illegal.
“The correct legal position is that the actual physical custody of the detainee under a subsisting detention order only is not a precondition to the granting of the remedy of release under Article 5(2),” she said in her 130-page judgment.
She said Article 5(2) would be frustrated as a person could be detained for a length of time unlawfully, and released just before the hearing of his application for habeas corpus
A senior federal counsel representing the government submitted last month that the habeas corpus application appeal by 25 Chinese nationals was academic as they had been freed in the middle of last year after six months’ detention in a Bentong prison.
The High Court dismissed their applications in late December 2020 as a magistrate’s remand order had been overtaken by the subsequent detention order by the board.
The 25 were picked up in November and December 2020, and police obtained a first remand order for 21 days and an extension for another 38 days under Poca to investigate them for alleged online gambling activities.
The Poca board then ordered them to be detained at the prison.
A three-ember bench chaired by Chief Justice Tengku Maimun Tuan Mat went on to rule on Jan 7 that Poca cannot be used to detain those linked to online gambling.
Tengku Maimun said online gambling did not fall under the definition of “organised” or “violent” crimes, stipulated under Article 149(1)(a) of the constitution.
The bench, consisting of Nalini and Mohd Zawawi Salleh, also ordered the immigration authorities who held the 25 at their Kemayan depot to free them immediately.
Lawyer Jacky Loi, a counsel for the appellants, said this landmark ruling revealed that the court will spring into action to look into complaints of a prolonged unlawful detention that was taking place.
“The judgment marks a pivotal development in Malaysian law which emphasised that individual liberties must be respected,” he said.
Counsel A Srimurugan said the judgment had wide implications as the government was open to suits for unlawful arrest and false imprisonment if a remand order before a magistrate and a subsequent detention order had no legal basis.
“Police could no longer do slipshod investigations before or after detaining suspects under any preventive law,” he said.
Gobind Singh Deo, Mohd Haijan Omar, Tiew Way Keng, Loh Suk Hwa, Marcus Lee, Lim Jin Wen, Ho Cheng En and S Prekas were the other lawyers who appeared for the Chinese nationals.
Senior federal counsel Muhmmad Sinti, Farah Ezlin Yusop Khan, Nur Jihan Mohd Azman, Farasyeriza Md Zabani and Anasuha Atiqah Mat Saidi represented the government.