The Book of Prof Shad.docx

3 manner and condition of detention in lau lee eng v

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3 Manner and condition of detention : In Lau Lee Eng v Minister [1972] 2 MLJ 4 the manner and condition of detention were alleged to be oppressive. Habeas corpus was denied 123 . In Rajeshkanna Marimuthu v Tn Hj Abd Wahab [2004] 5 MLJ 155 an arrestee under Section 39(B) of the DDA 1952 on a non-bailable, capital charge complained of inhuman, cruel and degrading treatment and conditions of detention. Among other things he complained he was held with another person for 22 hours a day in a cell only 12’ x 5’ feet inclusive of toilet space. The court took note of Madjai Sanusi [2005] 5 MLJ 116, Lau Lek Eng v Minister [1972] 1 LNS, Morgan Perumal v Ketua Inspektor [1996] 3 MLJ 281 that the manner and condition of detention does not alter the legality of a valid order of detention. In departing from the above cases, the learned judge expressed the admirable view that if a prisoner is subjected to cruel treatment he may come to the High Court and move the court to order the prison authorities to stop that treatment. The learned judge implied that habeas corpus is inappropriate at this stage and other remedies are more suitable. If the ill treatment continues, habeas corpus ought to be issued. He observed that it cannot be said that as long as the prisoner is in prison pursuant to a lawful 122 See also Sukumaran s/o Sundram [1995] 2 MLJ 247; Mohd Amin Mohd Yusoh [1995] 1 CLJ 94 . 123 But for a contrary approach in India see Sunil Batra (No. 2) v Delhi AIR 1980 SC 1579 120
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order, the conditions, if unlawful, under which the imprisonment is being carried out do not matter. A lawful detention that commences as a perfectly legal detention can become unlawful if it is carried out improperly. Though these laudable statements were obiter because in the end the judge found that no rules had been violated and habeas corpus was refused, Gengadharan, JC’s views surely reflect the human rights temperament of the age. When a court orders imprisonment and imposes a penalty authorized by the law, any other punishment or ill- treatment that is not legally sanctioned is surely a violation of Article 5(1). 4 Refusal of bail : As in the Singapore case of Re Onkar Shrian [1970] 1 MLJ 28, In Malaysia too habea s corpus is generally not available to anyone who wishes to question the refusal of bail or the terms of bail. The judicial view is that a person on bail is not in actual custody and therefore not eligible for habeas corpus. However, in the UK and India 124 , these are grounds for the writ and rightly so because interference with personal liberty is involved. The writ is only available to a person who is being physically detained unlawfully. 5 Restricted residence : Most unsatisfactorily the courts have held that a person who is under an order of restricted residence could not avail himself of the writ: Cheow Siong Chin v Menteri [1986] 2 MLJ 235; Sejahratul Dursina @ Chomel Abdullah v Kerajaan [2006] 1 MLJ 405.
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