PUTRAJAYA: The Federal Court today ordered businessman 'Datuk Addy Kana' and two policemen who were detained in connection with the Macau scam syndicate and online gambling activities to be released.
The businessman, whose real name is Zaidi Kanapiah, Corporal Hairy Mohammad and Corporal Muhammad Amin Nur Rashid Mohamed Puad were detained under the Prevention of Crime Act 1959 (Poca) as they were the main suspects in the infamous syndicate.
A five-member bench led by Chief Justice Tun Tengku Maimun Tuan Mat allowed the trio's appeal for a writ of habeas corpus for their immediate release.
The decision was delivered via Zoom.
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.
Tengku Maimun in her decision said Sections 4(1) and 4(2) of Poca were unconstitutional.
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.
"As such, subsections (1) and (2) of Section 4 of Poca are inconsistent with the Federal Constitution and are void," she said.
She said since the initial detention was done on basis of an unconstitutional 'law', accordingly there was no basis in law to detain the appellants.
Tengku Maimun had also in her judgement said the respondents namely the magistrate's court, the Inspector-General of Police, the government and Assistant Superintendent Khairul Fairoz Rodzuan, had made no mention of 'organised violence' in their affidavit in support of their application for the detention.
The top judge said gaming offences can hardly be considered anything close to organised violence, though it may perhaps be classified as organised crime.
She added that organised crime was not necessarily equivalent to violence.
"The respondents have not met the legal burden to justify the lawfulness of the appellants' detention," she said.
Initially, the court dismissed the appeal in a 3-2 majority decision with Tengku Maimun and Rhodzariah in the minority.
However, the judges in the majority comprising Vernon, Zaleha and Hasnah later concurred with the two judges after the appellants' counsel raised the issue of non-compliance of the guidelines by the magistrate when issuing the remand order.
Vernon 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 the guidelines were not followed.
"Consequently, we (Vernon, Zaleha and Hasnah) are minded to allow the appeal in respect of that there was non-compliance with the guidelines," he said.
Lawyers Datuk Seri Gopal Sri Ram and Gobind Singh Deo appeared for the appellants.
On Nov 20 last year, the High Court dismissed the trio's applications for a writ of habeas corpus for an immediate release.
They had on the same day filed an appeal at the Federal Court against dismissal of their bid.
In the application which they filed separately, they had sought for an order that their arrest and detention on Oct 11, 2020, under Section 4 (1) (c) of the Common Gaming Houses Act 1953 was illegal, had no basis, was not in compliance with the procedure and was mala fide.
They had also sought an order that the remand order against them dated Oct 14, 2020, by the Kuala Lumpur magistrate's court for a period of 21 days under Section 4(1)(a) of Poca was illegal, had no basis and was mala fide.
They were first arrested on Oct 11 last year, and was produced before the magistrate on Oct 14, the same year when the court ordered their remand for a period of 21 days
On Oct 30 last year, magistrate M. Mageswary had also allowed the police's application to extend the remand period against the three for another 38 days until Dec 6 the same year.
According to the police, the suspects were being detained for two years under Poca.
The order was issued on Nov 25 and 26 last year by the Prevention of Crime Board (Home Ministry).
