Mohd Faizal Haris

[2005] 2 MLRA v. Timbalan Menteri Dalam Negeri, Malaysia & Ors i

MOHD FAIZAL HARIS

v.
TIMBALAN MENTERI DALAM NEGERI, MALAYSIA &
ORS
[2005] 2 MLRA 231

Federal Court, Putrajaya

Pajan Singh Gill, Richard Malanjum, Augustine Paul FCJJ
[Criminal Appeal No: 05-17-2005 (J)]
26 October 2005

Criminal Procedure: Habeas corpus — Application for — Unlawful detention —

Appellant detained at police station lockup for further investigations — Appellant
applied for habeas corpus to secure his release, on ground of alleged irregularities in
his arrest and detention — Pre-conditions of arrest and detention of a person under
s 3 Dangerous Drugs (Special Preventive Measures) Act 1985 — Whether a writ of
habeas corpus may be directed against current order of detention where the earlier arrest
is irregular

The appellant was arrested by one Constable Fauzi for the purpose of
investigation under s 3(1) of the Dangerous Drugs (Special Preventive
Measures) Act 1985 (‘the Act’). He was detained at a police station lockup
for further investigations. Assistant Superintendent of Police Jaafar later
authorised the further detention of the appellant under s 3(2)(b) of the Act.
Acting Superintendent of Police Shukaime is designated by the Inspector
General for the purpose of receiving the report of the circumstances of the
arrest and detention and to report the same to the Minister under s 3(2)(c) of the
Act. Subsequently, the Minister issued the detention order upon consideration
of the report of investigation of the police officer submitted to him under s
3(3) of the Act and the report of the inquiry officer as required by s 5(4) of the
Act. The appellant filed a writ of habeas corpus to secure his release, on the
ground of alleged irregularities in his arrest and detention under s 3(2). The
High Court dismissed the appellant's application. The appellant appealed. The
main issue to be decided is the extent to which, if any, a valid detention order
made against a person under s 6(1) of the Act could be vitiated by irregularities
in his arrest and detention under s 3 of the Act.

Held (dismissing the appellant’s appeal):

(1) Based on the facts of this case, there had been non-compliance with
the requirements of s 3(2)(a), (b) and (c) of the Act. There was nothing to
indicate that a police officer of or above the rank of inspector had authorised
the detention of the appellant for more than 24 hours in tune with s 3(2)
(a). Regarding the appellant’s detention under s 3(2)(b), it was for a period "
melebihi 48 jam " and in respect of s 3(2)(c), it was for a period " melebihi 14
hari ". They do not specify the precise period of days for which the appellant
 Mohd Faizal Haris
ii v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 2 MLRA

was to be detained under the two provisions. Thus, there had been procedural
irregularities in the detention of the appellant prior to the issue of the detention
order under s 6(1) of the Act the Minister.

(2) The precondition to the exercise of jurisdiction under s 6(1) of the Act
is, inter alia, only a consideration of the report of investigation. There is no
stipulation in s 6(1) that it must be the result of a valid detention. The report
of investigation therefore has no direct link with the detention. It could still be
considered by the Minister even if it contains a statement from a person whose
detention under s 3(1) of the Act is irregular. This is because just as in the case
of the use of illegally obtained evidence in a court of law, the Minister may also
use such evidence subject to the weight to be attached to it.

(3) Even if the report of investigation is prepared as the result of an illegal

arrest, the weight to be attached to it is a matter exclusively within the purview
of the Minister. The court will not be concerned with the use of the report
of investigation by the Minister. The consideration of a statement made by
an illegally detained person could not therefore be prohibited. Hence, the
legality of the detention of a person under s 3(2) of the Act is not a condition
precedent to the making of a detention order against him under s 6(1) of the
Act. A detention order can be made against a person under s 6(1) even when
his detention under s 3(2) was irregular.

(4) A writ of habeas corpus must be directed against the current order of
detention, even when the earlier arrest is irregular. Thus, where a detention
order has been made under s 6(1) of the Act, the writ of habeas corpus must
be directed only against that order even if the earlier arrest and detention are
irregular. Thus any irregularity in a detention order made under s 3(2) of the
Act when it has been superseded by one under s 6(1) is not a relevant matter
for consideration. A prior illegality which has ceased could not be the subject
matter of inquiry. Therefore, the detention order made against the appellant
under s 6(1) was regular.

Case(s) referred to:

Athanassiadis v. Government of Greece [1969] 3 All ER 293 (refd)
Balwant Singh v. RD Shah Director of Inspection Income Tax AIR [1969] Delhi 91
(refd)
Barnardo v. Ford [1892] AC 326 (refd)
Karam Singh v. Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 1 MLRA 412;
[1969] 2 MLJ 139 (refd)
Mohamed Ezam Mohd Noor v. Ketua Polis Negara & Ors [2002] 2 MLRA 46; [2002]
4 MLJ 449; [2002] 4 CLJ 309; [2002] 4 AMR 4053 (refd)
Ooi Ah Pua v. OC Criminal Investigation, Kedah Perlis [1975] 1 MLRA 75; [1975] 2
MLJ 198 (refd)
R v. Wishart [1910] 18 CCC 146 (refd)
 Mohd Faizal Haris
[2005] 2 MLRA v. Timbalan Menteri Dalam Negeri, Malaysia & Ors iii

Tan Boon Liat v. Menteri Hal Ehwal Dalam Negeri & Ors [1977] 1 MLRA 521; [1977]
2 MLJ 108 (refd)
Tan Yap Seng v. Ketua Polis Negara & Others [1991] 2 MLRH 570; [1991] 4 CLJ (Rep)
118 (refd)

Legislation referred to:

Dangerous Drugs (Special Preventive Measures) Act 1985, ss 3(1), (2)(a), (b),
(c), (3), 4, 5(4), 6(1)
Emergency (Public Order and Prevention of Crime) Ordinance 1969, s 4(1)
Internal Security Act 1960, ss 8(1), 73(1)

Other(s) referred to:

Field's Law of Evidence, 12th edn, vol 1, p 429
RJ Sharpe, The Law of Habeas Corpus, 2nd edn, pp 179, 180-181

Counsel:
For the appellant: RR Mahendran (K Sandrasegaran, Alvinthiren & Suresh T with
him); M/s RR Mahendran & Co
For the respondents: Tun Abdul Majid Tun Hamzah (Fadillah Begum Abdul Ghani &
Tengku Amir Zaki Tengku Abdul Rahman with him)
 Mohd Faizal Haris
iv v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 2 MLRA

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 Mohd Faizal Haris
[2005] 2 MLRA v. Timbalan Menteri Dalam Negeri, Malaysia & Ors 231

JUDGMENT

Augustine Paul FCJ:

[1] The dominant issue for determination in this case is the extent to which,
if any, a valid detention order made against a person under s 6(1) of the
Dangerous Drugs (Special Preventive Measures) Act 1985 ("the Act") can be
vitiated by irregularities in his arrest and detention under s 3 of the Act. All
references in this judgment to sections shall be to sections of the Act.

[2] Briefly stated the facts of the case in relation to the principal ground of
appeal of the appellant are that he was arrested by Constable Fauzi bin Khalid
on 13 April 24 at 3.45 pm for the purpose of investigation under s 3(1). He was
detained at the Tun HS Lee Police Station lockup for further investigations.
On 15 April 24 at 3pm Assistant Superintendent of Police Jaafar bin Hj Mat
authorised the further detention of the appellant under s 3(2)(b). The material
part of his authorisation reads as follows:

MAKA DENGAN DEMIKIAN, pada menjalankan kuasa-kuasa yang diberi

oleh

s 3(2)(b) Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985,

saya dengan ini memberi kebenaran untuk melanjutkan tempoh penahanan
orang yang dinyatakan di atas bagi jangkamasa tambahan melebihi 48 jam
mulai jam 1545 hrs pada 15 April 2004.

[3] Acting Superintendent of Police Shukaime bin Abu Samah is a police

officer designated by the Inspector General for the purpose of receiving the
report of the circumstances of the arrest and detention and to report the same
to the Minister under s 3(2)(c). In his affidavit affirmed on 10 January 2005,
he said:

Pada 22 April 2004, saya telah menerima laporan hal keadaan penangkapan
dan penahanan terhadap MOHAMAD FAIZAL BIN HARIS (selepas ini
disebut sebagai 'Pemohon') dari DEPUTI SUPERINTENDAN POLIS
BALJEET SINGH A/L KARTAR SINGH, seorang Pegawai Kanan Polis
yang bertugas di Jabatan Narkotik, Ibu Pejabat Polis Kontinjen Kuala Lumpur.

Setelah menerima laporan tersebut, saya telah mengkaji dan meneliti laporan
tersebut dan berpuashati bahawa terdapat sebab-sebab yang boleh dipercayai
bahawa ada alasan-alasan yang mematutkan pemohon ditahan di bawah

s 6(1) Akta tersebut. Oleh kerana itu, saya telah bersetuju bahawa penahanan
terhadap pemohon dilanjutkan melebihi 14 hari dengan tujuan untuk
meneruskan siasatan.

Pada 26 April 24 jam 8.35 petang, saya telah menyediakan laporan hal
keadaan penangkapan dan penahanan itu serta melaporkan keadaan tersebut
kepada Menteri Dalam Negeri.
 Mohd Faizal Haris
232 v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 2 MLRA

[4] On 11 June 2004 the Minister issued the detention order upon consideration
of the report of investigation of the police officer submitted to him under s 3(3)
and the report of the inquiry officer as required by s 5(4). It was served on the
appellant the same day. He filed a writ of habeas corpus on 13 September 2004
to secure his release.

[5] Learned counsel argued in the High Court that the irregularities in the
arrest and detention of the appellant under s 3(2) had vitiated the order of
detention issued by the Minister under s 6(1). The learned High Court Judge
did not agree with the submission and dismissed the application for the writ
of habeas corpus. In the appeal before us the argument was re-canvassed by the
appellant. It is necessary to reproduce the relevant provisions of the Act in
order to appreciate the argument advanced. They read as follows:

Section 3

(1) Any police officer may, without warrant, arrest and detain, for the purpose
of investigation, any person in respect of whom he has reason to believe there
are grounds which could justify his detention under subsection (1) of s 6.

(2) Any person arrested and detained under this section may be detained
in police custody for a period not exceeding sixty days without an order of
detention having been made in respect of him under subsection (1) of s 6.

Provided that:

(a) he shall not be detained for more than twenty four hours except with the
authority of a police officer of or above the rank of Inspector;

(b) he shall not be detained for more than forty eight hours except with the
authority of a police officer of or above the rank of Assistant Superintendent
of Police;

(c) he shall not be detained for more than fourteen days unless a police officer
of or above the rank of Deputy Superintendent has reported the circumstances
of the arrest and detention to the Inspector-General or to a police officer
designated by the Inspector-General in that behalf and the Inspector-General
or police officer so designated by him, as the case may be, shall forthwith
report the same to the Minister.

(3) The police officer making an investigation pertaining to a person arrested

and detained under this section shall cause a copy of the complete report of
the investigation to be submitted:

(a) to an inquiry officer appointed under subsection (1) of s 5; and

(b) to the Minister,

within such period as may be prescribed by the Minister by regulations made

under this Act.
 Mohd Faizal Haris
[2005] 2 MLRA v. Timbalan Menteri Dalam Negeri, Malaysia & Ors 233

Section 4

(1) For the purpose of satisfying the Minister that an order under subsection (1)
of s 6 should be made and for the purpose of enabling the Minister to furnish
a statement under para (b) of subsection (2) of s 9, a police officer making an
investigation under this Act may examine orally any person supposed to be
acquainted with the facts and circumstances of the case and shall reduce into
writing any statement made by the person so examined.

(2) Such person shall be bound to answer all questions relating to such case
put to him by such officer.

(3) A person making a statement under this section shall be legally bound
to state the truth, whether or not such statement is made wholly or partly in
answer to questions.

(4) A police officer examining a person under subsection (1) shall first inform
that person of the provisions of subsections (2) and (3).

(5) A statement made by any person under subsection (1) shall bear the date
and time of making thereof and shall be signed by the person making it or
affixed with his thumbprint, as the case may be, after it has been read to him in
the language in which it was made and after he has been given an opportunity
to make any corrections he may wish.

(6) The foregoing provisions of this section shall be without prejudice to the
provisions of subsection (3A) of s 3.

Section 5

(1) There shall be appointed by the Minister in writing such number of inquiry
officers as may be necessary for the purposes of this Act:

Provided that no police officer nor any person who is not legally qualified
shall be appointed to be an Inquiry Officer.

(2) Upon receiving the report under subsection (3) of s 3, the inquiry officer
shall inquire whether there are reasonable grounds for believing that such
person has been or is associated with any activity relating to or involving the
trafficking in dangerous drugs.

(3) An inquiry officer may, in his discretion, for the purpose of subsection (2):

(a) require the attendance before him of a person detained under s 3;

(b) procure and receive all such evidence, whether oral or in writing and
whether the same be admissible or not under any written law for the time
being in force relating to evidence or criminal procedure, which he may think
necessary or desirable;

(c) summon and examine witnesses on oath or affirmation, and may for those
purposes administer any oath or affirmation;
 Mohd Faizal Haris
234 v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 2 MLRA

(d) require the production of any document or other thing in his opinion
relevant to the case.

(4) An inquiry officer shall submit his report in writing to the Minister within
such period as may be prescribed by the Minister by regulations made under
this Act.

Section 6

(1) Whenever the Minister, after considering:

(a) the complete report of investigation submitted under subsection (3) of s

3; and

(b) the report of the inquiry officer submitted under subsection (4) of s 5, is
satisfied with respect to any person that such person has been or is associated
with any activity relating to or involving the trafficking in dangerous drugs, the
Minister may, if he is satisfied that it is necessary in the interest of public order
that such person be detained, by order (hereinafter referred to as a "detention
order") direct that such person be detained for a period not exceeding two
years.

[6] The procedural requirements of s 3(2)(a), (b) and (c) read together, as
they are required to be done so, are these. Under s 3(2)(a) no authorisation
is required to detain the person arrested under s 3(1) for the first 24 hours. A
detention for the next 24 hours requires the authority of a police officer of or
above the rank of inspector. After the expiry of the 48 hours the authority of
a police officer of or above the rank of Assistant Superintendent of Police is
required under s 3(2)(b) if the person detained is to be detained any further
for a period not exceeding 14 days. Section 3(2)(c) is in two parts. The first
part relates to the detention of a person beyond the 14-day period authorised
under s 3(2)(b). It cannot exceed 60 days from the date of the initial arrest. The
authority for detention for this period requires a report by a police officer of or
above the rank of Deputy Superintendent of Police to the Inspector General
or to a police officer designated by the Inspector General of the circumstances
of the arrest and detention. The second part requires the Inspector General
or the police officer so designated to further report the same to the Minister.
There is no stipulation that this report must be made within the 14-day period
as suggested in Tan Yap Seng v. Ketua Polis Negara & Others [1991] 2 MLRH 570;
[1991] 4 CLJ (Rep) 118 but there must be evidence of the actual date it was
made in order to determine whether it was done so "forthwith" as required by s
3(2)(c). It must be observed that as the detention under s 3(2)(b) shall not be " for
more than forty eight hours " and under s 3(2)(c) for not " more than fourteen
days " with the maximum having been prescribed they have in contemplation
a period of detention which is specific. Thus the authority for detention must
specify the precise period of days, not exceeding the permissible maximum, for
which detention has been authorised. This is significant in order to ensure that
a person is not detained unnecessarily.
 Mohd Faizal Haris
[2005] 2 MLRA v. Timbalan Menteri Dalam Negeri, Malaysia & Ors 235

[7] The facts of the case as enunciated earlier reveal that there has been non-
compliance with the requirements of s 3(2)(a), (b) and (c). There is no evidence
on record to show compliance with s. 3(2)(a) in that there is nothing to indicate
that a police officer of or above the rank of inspector had authorised the
detention of the appellant for more than 24 hours. The authority to detain the
appellant under s 3(2)(b) and (c) is general. With regard to the detention under
s 3(2)(b) it is for a period " melebihi 48 jam " and in respect of s 3(2)(c) it is for
a period " melebihi 14 hari ". They do not specify the precise period of days for
which the appellant is to be detained under the two provisions. It follows that
there have been procedural irregularities in the detention of the appellant prior
to the issue of the detention order under s 6(1) by the Minister. This raises the
question of whether the irregularities vitiate the subsequent regular detention
order issued by the Minister.

[8] In order to resolve the issue under discussion reference may be made to The
Law Of Habeas Corpus, 2nd edn, by RJ Sharpe which says at pp 180-181:

A prisoner may apply for the writ from the very moment of arrest ('A person
may apply while in the custody of a constable, immediately upon being
arrested, and need not wait until he is incarcerated' per Rinfret J, Re Isbell [1929]
52 CCC 170 at 173 (SCC)), and in that sense, he may challenge the legality
of his arrest (Examples of cases where habeas corpus was used to challenge
a warrant of arrest are: R v. Downey [1845] 15 LJMC 29; Re Waters [1888]
6 NZLR 545; Ex p Archambault [1910] 16 CCC 433 (Que KB)). However,
where there have been valid proceedings subsequent to the arrest, which are
offered in justification of the detention, the prisoner will not usually be able to
get redress (Ex p Scott [1829] 9 B & C 446; R v. Weil [1882] 9 QBD 701 (CA);
Re Parisot [1888] 5 TLR 344; R v. O/C Depot Battalion, RASC Colchester, ex p
Elliot [1949] 1 All ER 373; R v. Whitesides [1904] 8 CCC 478 (Ont CA); R v.
Lee Chu [1909] 14 CCC 322 (NSSC); Re Webber [1912] 19 CCC 515 (NSSC);
Re Gaudin [1915] 34 NZLR 401; R v. Gage [1916] 26 CCC 385 (Ont HC); R
v. Gigliotti [1936] 65 CCC 55 (Ont SC); R v. Haagestrom [1942] 78 CCC 332
(BCSC)). The reason for this is twofold. First, there is the rule that habeas
corpus only calls for justification of the detention at present. The second is to
be found in the law of criminal procedure. It is a general principle that where
an accused person has been illegally arrested and brought before a court for
trial, the court will not lack jurisdiction over the person on account of the
illegal arrest (R v. Hughes [1879] 4 QBD 614 (Cr Cas Res'd). The Canadian
cases, a few of which go the other way, are collected by Tremeaar, Criminal
Code (6 ed 1964), 709-11. See also Leachinsky v. Christie [1945] 2 All ER
395 at 403-4 per Scott LJ (varied [1947] AC 573): 'Neither the committing
magistrate nor the trial court will lose jurisdiction merely because the prisoner
has been arrested in circumstances which, for any of the reasons I have stated,
was unlawful, although the fact may well influence discretion as to bail; but
the person so wronged will have his cause of action against the person who
arrested him unlawfully; and in an action for false imprisonment every harm
to the plaintiff casually (sic) resulting from the original wrong will be a matter
for the jury to consider in assessing the quantum of general damages). There
may be grounds for appeal, or evidence may be rendered inadmissible, but
the validity of the proceedings is not affected. It may be, of course, that the
 Mohd Faizal Haris
236 v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 2 MLRA

wording of a statute requires a proper arrest as a condition precedent to the

valid exercise of jurisdiction. In such a case, relief will be afforded on habeas
corpus (See eg, R v. Wishart [1910] 18 CCC 146 (Ont CA), a case under the
Fugitive Offenders Act 1881 (Imp)), but this is nothing more than the use of
habeas corpus to achieve jurisdiction review. Apart from such an exceptional
case, it has been consistently held that the applicant cannot complain of an
irregular arrest when presently held on some other proper authority.

[9] It is therefore clear that generally a writ of habeas corpus must be directed
against the current order of detention even when the earlier arrest is irregular
(see Athanassiadis v. Government of Greece [1969] 3 All ER 293; Ooi Ah Pua v. OC
Criminal Investigation, Kedah Perlis [1975] 1 MLRA 75; [1975] 2 MLJ 198). The
exception to this rule can be gathered from the judgment of the Ontario Court
of Appeal in R v. Wishart [1910] 18 CCC 146 referred to in the passage from JR
Sharpe cited earlier. In that case s 8 of the Fugitive Offenders Act 1906 came
up for consideration. It reads as follows:
Whenever a warrant has been issued in a part of His Majesty's dominions
for the apprehension of a fugitive from that part who is or is suspected to be
in or on the way to Canada, the Governor-General or a Judge of a Court, if
satisfied that the warrant was issued by some person having lawful authority
to issue the same, may indorse such warrant in manner provided by this Act,
and the warrant so indorsed shall be a sufficient authority to apprehend the
fugitive and bring him before a magistrate.

[10] The fugitive was apprehended in Ireland and brought before the Police
Magistrate in Canada without the warrant having been indorsed as provided by
s 8. In his application for a writ of habeas corpus he claimed that the indorsement
of the warrant was a condition precedent to the exercise of jurisdiction by
the Magistrate and since it was not done so his arrest was unlawful with the
result that the Magistrate had no jurisdiction to enter upon the inquiry. His
application was allowed and he was discharged. The principle of law that can
be gleaned from this case is that where there is a statutory condition precedent
to the making of an arrest it must be complied with in order to render the
arrest lawful. In support of this view reference may be made to Tan Boon Liat v.
Menteri Hal Ehwal Dalam Negeri & Ors [1977] 1 MLRA 521; [1977] 2 MLJ 108
where Suffian LP said at p 109:
In Karam Singh after the order of detention had been made against him, the
Minister was required to do certain things, which Mr Karam Singh complained
the Minister had not done. Here, on the other hand, the condition for the
detention of the appellants after the period of three months is fundamental;
that condition had to be satisfied before the order could be made; it was
a condition precedent. Before the appellants could be further detained
beyond three months the Board must have made recommendations on their
representations. That condition precedent has not been satisfied and in my
judgment their continued detention after that period was therefore unlawful,
since it was not, in the words of art 5(1), 'in accordance with law.
 Mohd Faizal Haris
[2005] 2 MLRA v. Timbalan Menteri Dalam Negeri, Malaysia & Ors 237

[11] It follows that it is only when the wording of a statute requires a proper
arrest as a condition precedent to the making of a subsequent detention order
can a person make a valid complaint of the detention.

[12] The precondition to the exercise of jurisdiction under s 6(1) is, inter alia,
only a consideration of the report of investigation. There is no stipulation in
s 6(1) that it must be the result of a valid detention. The preparation of the
report is governed by s 4 pursuant to which any person may be examined and
it is not confined to an examination of only the detained person. The report
of investigation therefore has no direct link with the detention; the only one
being that it may contain a statement from the detained person. It can still
be considered by the Minister even if it contains a statement from a person
whose detention under s 3(1) is irregular. This is because just as in the case
of the use of illegally obtained evidence in a court of law the Minister may
also use such evidence subject to the weight to be attached to it. In this regard
reference may be made to Field's Law of Evidence, 12th edn, vol 1 where it says,
on the authority of Balwant Singh v. RD Shah Director of Inspection Income Tax
AIR [1969] Delhi 91, at p 429:
It is true that in appropriate cases the court may order restoration of the
property illegally seized but so far as the use of information gathered as a
result of such seizure is concerned, the court,or the appropriate authority, has
in any case, acting within the law, the power to call for such information and
property and use the same in evidence The information gathered, therefore,
can otherwise be reached by the courts or other concerned authorities. the
records and information gathered as a result of illegal search and seizure
can be used subject to the value to be attached to it or its admissibility in
accordance with the law relating to evidence. (emphasis added)

[13] It must be observed that in view of the subjective nature of the exercise
of discretion by the Minister in ordering detention as enunciated in Karam
Singh v. Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 1 MLRA 412; [1969]
2 MLJ 139 the court is not to concern itself with the vagueness, sufficiency or
relevancy of the grounds of detention. Thus even if the report of investigation
was prepared as the result of an illegal arrest the weight to be attached to it
is a matter exclusively within the purview of the Minister. The court will not
be concerned with the use of the report of investigation by the Minister. The
consideration of a statement made by an illegally detained person cannot
therefore be prohibited. The result is that the legality of the detention of a
person under s 3(2) is not a condition precedent to the making of a detention
order against him under s 6(1).

[14] The corollary is that a detention order can be made against a person under
s 6(1) even when his detention under s 3(2) was irregular. The general rule that
a writ of habeas corpus must be directed against the current order of detention
therefore applies where a detention under s 6(1) has been made subsequent to
an arrest and detention under s 3(1) and (2). It follows that where a detention
order has been made unders 6(1) the writ of habeas corpus must be directed only
 Mohd Faizal Haris
238 v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 2 MLRA

against that order even if the earlier arrest and detention are irregular. This
view is supported by Barnardo v. Ford [1892] AC 326 where Lord Halsbury said
that he could not agree to the proposition that if a court is satisfied that illegal
detention has ceased before application for the writ has been made, nevertheless
the writ might issue in order to vindicate the authority of the court against a
person who has once, though not at the time of the issue of the writ, unlawfully
detained another or wrongfully parted with the custody of another. Thus any
irregularity in a detention order made under s 3(2) when it has been superseded
by one under s 6(1) is not a relevant matter for consideration. In this regard The
Law of Habeas Corpus 2nd edn, by RJ Sharpe says at p 179:
It has been held consistently that the relevant time at which the detention
of the prisoner must be justified is the time at which the court considers the
return to the writ. This rule means that nothing which has happened before
the present cause of detention took effect will be relevant to the issue before
the court, unless by reason of some special consideration arising from the
particular proceedings.

And at p 186:
On the present state of the law, in almost every instance, the relevant time at
which the detention is to be justified is the time at which the court considers
the case. Prior illegality will not be relevant unless by reason of some special
rule derived from the particular nature of the proceedings involved.

[15] Therefore a prior illegality which has ceased cannot be the subject matter
of inquiry. That would also be the conclusion in the case of a detention order
made under s 8(1) of the Internal Security Act 1960 and s 4(1) of the Emergency
(Public Order and Prevention of Crime) Ordinance 1969 subsequent to an
arrest and detention made under both the statutes. It is perhaps appropriate to
refer to Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 where it
was held that an order of detention made under s 8(1) of the Internal Security
Act 1960 is not tainted by an illegality or irregularity in the s 73 detention.
However, the conclusion was reached not on the rationale as discussed in
this judgment but on the principles enunciated in Karam Singh v. Menteri Hal
Ehwal Dalam Negeri, Malaysia [1969] 1 MLRA 412; [1969] 2 MLJ 129. Such
an approach would leave unanswered the effect of procedural irregularities in
an earlier detention which has been superseded by another detention order. Be
that as it may, that case made it clear that a court has no jurisdiction to hear a
writ filed against the police for irregularities in a detention order under s 73(1)
of the Internal Security Act 1960 when it had been superseded by one under
s 8(1) thereby bringing into sharp focus the propriety of the judgment of this
court in Mohamed Ezam Mohd Noor v. Ketua Polis Negara & Ors [2002] 2 MLRA
46; [2002] 4 MLJ 449; [2002] 4 CLJ 309; [2002] 4 AMR 4053. The rationale
underlying this judgment would, with respect, render the stand taken in the
latter case unsustainable in law.
 Mohd Faizal Haris
[2005] 2 MLRA v. Timbalan Menteri Dalam Negeri, Malaysia & Ors 239

[16] By reason of the foregoing the prior irregularities in the detention of the
appellant under s 3(2) are not relevant to a consideration of the legality of
the detention order made under s 6(1). The detention order made against the
appellant under s 6(1) is regular. In the upshot we dismissed the appeal.
 Mohd Faizal Haris
240 v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 2 MLRA

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