PUTRAJAYA: 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 a massive illegal online gambling syndicate were ordered to be released immediately by the Federal Court.
Chief Justice Tun Tengku Maimun Tuan Mat, who chaired a five-member panel, made the order yesterday after allowing the trio’s appeal over their application for a writ of habeas corpus.
The others presiding on the bench were Federal Court judges Vernon Ong Lam Kiat, Zaleha Yusof, Hasnah Mohammed Hashim and 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 application 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 justice in her judgment said the arrest and detention of the appellants under Section 4 of Poca, 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.
The top judge also stated that Sections 4(1) and 4(2) of Poca were unconstitutional as they contradict 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 of independence.
“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 could 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 non-violent 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 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 Oct 11,2020 under Section 4 (1) (c) of the Common Gaming Houses Act 1953 were illegal, had no basis, no 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 Nov 25 and 26 the same year before all of them were brought before the Prevention of Crime Board (Home Ministry) for further action.
Since Oct 2 last year, the Malaysian Anti-Corruption Commission (MACC) had arrested more than 20 people, including eight police officers and personnel, as well as Goh and Addy Kanna.
They were suspected to have carried out money laundering as well as being involved in forex and Macau scams run by a syndicate from China.
On Oct 11, all were released on MACC bail but Addy Kanna and two others were then detained by police while Goh fled the MACC headquarters.
Goh was finally apprehended at a holiday resort in Pahang on Oct 27.