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Page 1 of 23 FEDERAL COURT CRIMINAL APPEAL NO: 05(HC)-153-11/2020 (W) High Court of Malaya at Kuala Lumpur Criminal Application No. WA-44-207-10/2020 ZAIDI BIN KANAPIAH … APPELLANT
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Federal Court of Malaysia27 Apr 202105(HC)-153-11/2020(W);05(HC)-155-11/2020(W);05(HC)-156-11/2020(W)
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“her the insertion of paragraph 5 of the First Schedule to POCA 1959 is invalid? [31] The appellants’ argument is that the Minister abused the power entrusted to him by s 22 POCA 1959 by including the Common Gaming Houses Act 1953 (CGHA 1953) as paragraph 5 of the First Schedule is based on two grounds – (i) the Ministe”
“said written judgments. Suffice it to say that the habeas corpus applications are directed against the legality of the remand orders made by the Magistrate pursuant to sub-s 4(1) of the Prevention of Crime Act 1959 (POCA 1959) under which the appellants were remanded for a period of twenty-one days for their alleged in”
“ri Dalam Negeri, Malaysia & Ors [2021] 1 MLJ 601 (FC)). [13] The mandatory remand period of twenty-one days under sub-s 4(1) s a clear departure from the ordinary remand procedure under s 117 of the Criminal Procedure Code (CPC) where (i) the Magistrate has the discretion whether to refuse or grant a remand order; and”
“tantial number of citizens to fear, organised violence against persons or property; And Whereas Parliament considers it necessary to stop such action; Now, Therefore, pursuant to Article 149 of the Federal Constitution It Is Enacted by the parliament of Malaysia as follows:’ [Emphasis added] [38] Equally pertinent is t”
“n; Now, Therefore, pursuant to Article 149 of the Federal Constitution It Is Enacted by the parliament of Malaysia as follows:’ [Emphasis added] [38] Equally pertinent is the fact that the original POCA Ordinance provided for unlawful gaming as a registrable category on the following terms – ‘5. All persons habitually”
“s to see that the Executive acts within the law and does not encroach unnecessarily into the realm of liberty of the subject (see Re Datuk James Wong Kim Min; Minister of Home Affairs, Malaysia & Ors [1976] MLRA 132, 145, 146 (FC)). Whatever safeguards Page 7 of 23 that are provided by law against the improper exercise”
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Page 1 of 23 FEDERAL COURT CRIMINAL APPEAL NO: 05(HC)-153-11/2020 (W) High Court of Malaya at Kuala Lumpur Criminal Application No. WA-44-207-10/2020 ZAIDI BIN KANAPIAH … APPELLANT
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KERAJAAN MALAYSIA … RESPONDENTS Heard together with FEDERAL COURT CRIMINAL APPEAL NO: 05(HC)-155-11/2020 (W) High Court of Malaya at Kuala Lumpur Criminal Application No. WA-44-206-10/2020 MOHD HAIRY BIN MOHAMMAD … APPELLANT
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KERAJAAN MALAYSIA … RESPONDENTS Page 2 of 23 FEDERAL COURT CRIMINAL APPEAL NO: 05(HC)-156-11/2020 (W) High Court of Malaya at Kuala Lumpur Criminal Application No. WA-44-208-10/2020 MUHAMAD AMIN NUR RASHID BIN MOHAMED PUAD … APPELLANT
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KERAJAAN MALAYSIA … RESPONDENTS CORAM TENGKU MAIMUN TUAN MAT, CJ VERNON ONG LAM KIAT, FCJ ZALEHA YUSOF, FCJ HASNAH MOHAMMED HASHIM, FCJ RHODZARIAH BUJANG, FCJ Page 3 of 23 GROUNDS OF JUDGMENT [1] I have had the benefit of perusing the separate written judgments of Tengku Maimun Tuan Mat CJ and Hasnah Mohammed Hashim FCJ. [2] I do not think that it is necessary to set out the background to the three appeals as they have been comprehensively dealt with in the aforesaid written judgments. Suffice it to say that the habeas corpus applications are directed against the legality of the remand orders made by the Magistrate pursuant to sub-s 4(1) of the Prevention of Crime Act 1959 (POCA 1959) under which the appellants were remanded for a period of twenty-one days for their alleged involvement in an on-line gaming syndicate (“sindiket judi atas talian”). There are five common issues that were canvased in these appeals. First Issue – Whether the appeals are academic? [3] The first issue is a preliminary point and it is this: it is the respondents’ argument that the three appeals are academic – because by the time the habeas corpus application came up for hearing in the High Court, the sub-s 4(1) remand order had already been superseded by another remand order of thirty-eight days under sub-s 4(2) POCA 1959. As such, there was no live issue before the High Court to adjudicate. The respondents’ preliminary objection in the High Court was upheld by the learned Judicial Commissioner. Page 4 of 23 [4] On this preliminary issue, I am in agreement with the erudite views expressed by the learned Chief Justice in her written judgment. Accordingly, I would also overrule the respondents’ preliminary objection. Second Issue – Whether s 4 POCA 1959 is unconstitutional? [5] Whilst my learned sisters Zaleha Yusof and Hasnah Mohammed Hashim FCJJ and I are in agreement that s 4 POCA is not unconstitutional, our reasons for arriving at this decision are at variance in certain aspects. [6] In my view, it must first be recognised that Malaysia is a federal parliamentary constitutional monarchy. Under our constitutional scheme, the rule of constitutional supremacy as opposed to parliamentary supremacy is upheld. This is underscored in art 4(1) of the FC where it is declared that “[t]his Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall to the extent of the inconsistency be void.” In this connection, I am inclined to agree with the following views of the learned Chief Justice expressed in her written judgment: i. That the power of constitutional review is inherent in the Courts by constitutional design. The drafters of the FC had in mind certain basic principles which ought to form the bedrock of this country and that under art 159(1), Parliament may amend certain provisions of it without amending the central tenets of the FC. This is a safeguard as couched in the wide language of the first limb of art 4(1) to cast away any attempt to cause to FC to implode on itself by abuse of the legislative process. Page 5 of 23 ii. That the FC is not self-executing and that the Judiciary is the mechanism through which the supremacy of the FC is protected and upheld pursuant to art 4(1) of the FC; iii. That the essence of the FC is the notion of separation of powers between the Executive, Legislature and Judicial branches of government; a concept accepted and recognised by Raja Azlan Shah FJ in Loh Kooi Choon (supra) at p 188. Any attempt by federal law to override or undermine this concept is inconsistent with the FC; iv. That Parliament can define and elaborate the jurisdiction of the Courts but it cannot legislate to the extent that it violates the constitutional right of judicial review contained under the second limb of art 4(1) of the FC; and v. That it is not ipso facto contrary to our FC for this Court to refer to foreign doctrines or jurisprudence, where relevant. [7] However, I am not inclined to agree with the conclusion expressed by the learned Chief Justice in her written judgment that s 4 of POCA 1959 in particular sub-ss (1) and (2) are void for being inconsistent with the FC. I say this for the reasons that follow. [8] The appellants’ main argument is that s 4 violates the doctrine of separation of powers by requiring the Magistrate (the judicial arm) to act upon the dictate of the Executive. In the context of sub-s 4(1), the appellants’ contention is that once a person arrested is taken before a Magistrate, the Magistrate ‘shall’ order the remand of twenty-one days. According to learned counsel, the only predicate is the production, by the police of a statement in writing – setting out the matters required in the sub-section. Once confronted Page 6 of 23 with the statement, the Magistrate is, to use the words of learned counsel, ‘bound hand and foot to act as a mere rubber stamp and make the order of remand of twenty-one days under sub-s 4(1). [9] The appellants’ argument is predicated on the notion that the Magistrate is without any discretion in the matter. In my view, whether the Magistrate is with or without discretion is a matter of construction to be given to the provisions of s 4 POCA 1959. [10] At the forefront of this discussion, it should be borne in mind that the POCA 1959 is an enactment sanctioned under art 149 of the FC. The purpose of Art. 149 is to enable Parliament, once any one or more of the six categories of action enumerated under paras. (a) to (f) of Clause (1) has occurred, to make laws providing not only for its suppression but also for preventing its recurrence. Where such an Act of Parliament confers power on the Executive to act in a manner inconsistent with Article 5, 9, 10 or 13, the action must be taken bona fide for the purpose of stopping or preventing action of the kind envisaged under the Act (see Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50, 54, (PC)). It goes without saying that the preventive detention of a person without trial is a serious invasion of a person’s right to life and personal liberty under art 5 of the FC. [11] Be that as it may, one of the functions of the Courts is to interpret the law. An inherent part of this function is to see that the Executive acts within the law and does not encroach unnecessarily into the realm of liberty of the subject (see Re Datuk James Wong Kim Min; Minister of Home Affairs, Malaysia & Ors [1976] MLRA 132, 145, 146 (FC)). Whatever safeguards Page 7 of 23 that are provided by law against the improper exercise of such power must be vigorously enforced by the Courts. As such, strict compliance with statutory requirements must be observed in depriving a person of his liberty. The material provisions of the law authorizing preventive detention must be strictly construed and safeguards which the law provides for the protection of any citizen must be liberally interpreted. [12] Where power is vested in the Executive to deprive the liberty of a person on its subjective satisfaction with reference to the specified matters, and if that satisfaction is stated to be based on a number of grounds or for a variety of reasons all taken together, and if some out of them are found to be non-existent or irrelevant, the very exercise of that power is bad. Therefore, strict compliance with the letter of the rule of law is the essence of the matter. (See Selva Vinayagam Sures v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] 1 MLJ 601 (FC)). [13] The mandatory remand period of twenty-one days under sub-s 4(1) s a clear departure from the ordinary remand procedure under s 117 of the Criminal Procedure Code (CPC) where (i) the Magistrate has the discretion whether to refuse or grant a remand order; and (ii) if the Magistrate decides that a remand is warranted, the Magistrate has the discretion to order that a person be remanded for a period (subject to a stipulated maximum number of days) which the Magistrate consider is necessary and reasonable for the purposes of investigations in relation to the matter in respect of which the person has been arrested. The length of remand under sub-s 117(2) CPC provides that in less serious offences, a remand of up to 4 days on the first application and not more than 3 days on the second application; and for Page 8 of 23 capital and other serious offences, a remand of not more than 7 days on the first application and not more than 7 days on the second application. [14] The appellant’s argument is that the making of a remand order under sub-s 4(1) is mandatory and therefore subjugates the Magistrate’s judicial power. The appellant’s argument presupposes that the Magistrate has no discretion but to grant the remand order once the sub-s 4(1) written statement is produced at the remand hearing. Even though sub-s 4(1) appear to be couched in mandatory language, a careful reading of this sub-section belies the appellant’s argument. [15] Sub-section 4(1) which reads ‘[w]here any person is taken before a Magistrate under subsection 3(2) the Magistrate shall –’ is predicated on a person arrested under sub-s 3(1) being taken before a Magistrate for the purpose of an application for a remand order. This is indicative of a two-tier process under which a person must have been arrested under sub-s 3(1) prior to that person being produced before a Magistrate for a remand application. It follows that the sub-s 4(1) remand application is not applicable in the case of any person arrested under any other enactment (e.g., the CPC). [16] Accordingly, before proceeding to consider the remand application under sub-s 4(1), it is incumbent upon the Magistrate to satisfy himself that the person produced before him is indeed a person arrested under sub-s 3(1). Page 9 of 23 Distinction between purpose and grounds of arrest and detention [17] The foregoing is significant because a police officer may only arrest a person under sub-s 3(1) ‘if he has reason to believe that grounds exist which would justify the holding of an inquiry into the case of that person under this Act’. This phrase underscores the purpose for the arrest. The purpose for effecting an arrest under sub-s 3(1) is a distinct and separate matter from the grounds for holding that belief. The word ‘grounds’ in this phrase refers to facts on which the particular purpose of the arrest is based (see Karam Singh v Menteri Hal Ehwal dalam Negeri, Malaysia [1969] 2 MLJ 129(FC); minority judgment of Abdul Malek Ahmad JCS (as he then was) in Gurcharan Singh Bachittar Singh v Penguasa Tempat Tahanan Perlindungan Kemunting, Taiping & Ors [2000] 1 CLJ 625 (CA) at 648- 656; Badrul Zaman PS Md Zakariah v Superintendent, Preventive Detention Centre, Kamunting & Ors [2011] 4 CLJ 873). [18] In like vein, the purpose underlying the application for a remand order under sub-s 4(1) is – ‘that there are grounds for believing that the name of the person should be entered on the Register’. The word ‘grounds’ in this phrase also refers to the facts on which the particular purpose for the remand is premised. [19] Sub-section 4(1)(a) provides for the production of a written statement by the police stating that there are grounds for believing that the name of the person arrested should be entered on the Register. However, the making of an order for remand is not automatic merely upon a written statement being produced. On a plain reading of this provision, it is clear that there are prerequisites or elements to be fulfilled before the making of the remand Page 10 of 23 orders sought. In my considered view, the elements of sub-s 4(1) are objective. Consequently, the Magistrate is entitled to review the sufficiency and reasonableness of the police officer’s grounds for believing that the appellant’s name should be entered on the Register. [20] In conducting the review, the Magistrate is not interested in detailed information. However, it is incumbent on the respondent to provide some amount of facts and particulars in order to satisfy the Magistrate that there is some basis for the arrest under sub-s 3(1) and remand under sub-s 4(1). This is important because the discretion of the police to arrest and to detain pursuant to a remand order is not absolute. Put another way, the decision of a police officer, namely, whether he has the prerequisite ‘grounds for believing’ under an application for remand, is objectively justiciable. [21] The burden is on the respondents to satisfy the Magistrate that the preconditions constituting sub-s 4(1) POCA 1959 – which set out the jurisdictional threshold requisite to the exercise of the power of remand – have been met. Accordingly, the Magistrate is duty bound to exercise his discretion judicially in order to ensure that all the legal, procedural and constitutional safeguards are strictly complied with before making the remand order. [22] For the foregoing reasons, I agree with the views expressed by the learned Chief Justice that Jaideep is not authority for the proposition that the Magistrate does not exercise judicial power under s 4 POCA 1959 as the issue of the constitutional validity of s 4 was not raised in Jaideep. Page 11 of 23 [23] Whilst on this subject, I think that it is important to reiterate that the discretionary powers of the police to arrest and detain are not absolute. In the light of the duty of a Magistrate to exercise his discretion judicially in order to ensure strict compliance with legal, procedural and constitutional safeguards, Magistrates are advised to closely adhere to the following guidelines when considering a remand application under sub-s 4(1) of POCA
1959
[Precursor to Remand Application under sub-s 4(1) POCA 1959] [24] The production of the person before a Magistrate for remand under sub-s 4(1) is preceded by the arrest of the person under sub-s 3(1). The police officer’s decision to arrest a person without warrant under sub-s 3(1), namely, that he has ‘reason to believe that grounds exist which would justify the holding of an inquiry into the case of that person’ under the POCA 1959 is objectively justiciable. The police has the burden of satisfying the Magistrate that the preconditions constituting sub-s 3(1), s 28A of the CPC and art 5(3) FC which set out the jurisdictional threshold requisite to the exercise of the power of arrest have been complied with. Matters to be considered in an application for remand under sub-s 4(1) POCA 1959. [25] The Magistrate must be satisfied that the arrest was carried out in accordance with law – see art 5(3) FC and s 28A CPC. This is done by questioning the person arrested and perusing the police diary: Page 12 of 23
i
(i) That the person was produced before the Magistrate within 24 hours of arrest (sub-s 3(2) POCA 1959);
Subparagraph
(ii) That the person arrested was informed of the grounds of his arrest by the police officer making the arrest (art 5(3) FC);
Subparagraph
(iii) That before commencing any questioning or recording of any statement, the police officer has informed the person of his right -
a
(a) to communicate with a relative or friend to inform of his whereabouts; and
b
(b) to communicate and consult and be defended by a legal practitioner of his choice (s 28A CPC);
Subparagraph
(iv) That the police diary discloses sufficient facts and particulars to support the arresting officer’s belief that ‘grounds exist which would justify the holding of an inquiry into the case of the person arrested’ under sub-s 3(1) POCA 1959. The grounds should also corroborate the belief that the person is a member of any of the registrable categories under Part I of the First Schedule POCA; and
v
(v) The registrable category in question should be clearly stated in the police diary. [26] If the Magistrate is not satisfied that the arrest was carried out in accordance with law, the Magistrate should reject the application for remand and direct the person’s immediate release. Page 13 of 23 [27] If the arrest was carried out in accordance with law, the Magistrate should then proceed to satisfy himself that the sub-s 4(1) written statement contains sufficient facts and particulars to substantiate the grounds for believing that the name of the person should be entered on the Register. The relevant matters to be considered include the following:
i
(i) whether there are sufficient facts and particulars to show in what manner the person arrested has acted or is about to act in relation to the matter for which he has been arrested;
Subparagraph
(ii) whether there are sufficient facts and particulars to show in what manner the person arrested is a member of a substantial body of persons* to cause, or to cause a substantial body of citizens to fear, organised violence against persons or property; *(e.g., a cartel, syndicate, association, gang, triad, or group)
Subparagraph
(iii) whether the written statement has identified which particular registrable category in Part I of the First Schedule the person should be registered under;
Subparagraph
(iv) whether the action or threatened action falls within that particular registrable category;
v
(v) whether the registrable category identified in the written statement is the same as that stated in the arresting officer’s police diary under sub-s 3(1); and
Subparagraph
(vi) whether the written statement discloses any reasonable grounds to support the belief that the name of the person arrested should be entered on the Register; Page 14 of 23 [28] If any of the necessary ingredients are not satisfied, the Magistrate should direct that the person be released forthwith. If, however, all the necessary ingredients have been satisfied, the Magistrate shall make an order for the remand of the person under sub-s 4(1)(a) POCA 1959. The Magistrate should also record the reasons for his decision in a concise and comprehensive manner. [29] For the foregoing reasons, the question of s 4 of POCA 1959 requiring the Magistrate to act on the dictate of the Executive thereby violating the doctrine of separation of powers does not arise. Accordingly, the appellants’ argument that s 4 is not unconstitutional is without merit. [30] At the hearing of these appeals, I wanted to ascertain whether the Magistrate had adhered to the guidelines at the hearing of the remand applications. I requested Senior Federal Counsel (‘SFC’) on behalf of the respondents and counsel for the appellants to ascertain whether the Magistrate in this case had adhered to the guidelines adumbrated above before making the remand orders. Upon checking the appeal record, both SFC and counsel for the appellants confirmed that there was nothing in the appeal record to indicate that the Magistrate had adhered to the guidelines to ensure strict compliance with legal, procedural and constitutional safeguards. In the light of this fact, I am constrained to hold that the remand orders made against the appellants were not made in compliance with the provisions of sub-s 4(1) POCA. As such, the remand orders under sub-s 4(1) are bad in law, null and void. On this ground alone I would allow the three appeals and issue the writ of habeas corpus in respect of all three appellants. Page 15 of 23 Third Issue – Whether the insertion of paragraph 5 of the First Schedule to POCA 1959 is invalid? [31] The appellants’ argument is that the Minister abused the power entrusted to him by s 22 POCA 1959 by including the Common Gaming Houses Act 1953 (CGHA 1953) as paragraph 5 of the First Schedule is based on two grounds – (i) the Minister’s power is parametered by art 149 as well as the recitals to the POCA 1959, and (ii) gaming by itself does no come within art 149(1)(a) FC. [32] On this issue, I am in accord with the reasons proffered by my learned sister Hasnah Mohammed Hashim FCJ in her written judgment. Paragraph 5 of the First Schedule to POCA 1959 relates to unlawful gambling. In contrast, the CGHA 1953 is an enactment dealing with the suppression of unlicensed common gaming houses, public gaming, and public lotteries. As such, the appellants’ argument is misconceived in fact and in law. I would answer this question in the negative. Fourth Issue – Whether the remand of the appellants is infected with mala fides? [33] On this issue, I am also in agreement with the reasons proffered by my learned sister Hasnah Mohammed Hashim FCJ in her written judgment. The question is answered in the negative. Page 16 of 23 Fifth Issue – Whether the allegations made against the appellants do not come within the scope of POCA 1959 because it is not a crime of ‘organised violence’? [34] In essence, the appellants’ argument is that the allegations of the appellants’ involvement with online gambling is not a matter that falls within the description of the crime of ‘organised violence’ which is a postulate to warrant the exercise of the detaining power. [35] The argument is predicated on the words ‘organised violence’ which appears in the long title to the POCA 1959. According to learned counsel, the crime of online gambling has no nexus to the object or purpose of POCA 1959 as expressed in its long title. Gambling, including illegal gaming is not of a pervading character that disturbs the general peace, tranquility and order of society and therefore does not affect public order, a fortiori it cannot come within the phrase ‘organised violence against persons or property’ which governs the spirit and intendment of POCA 1959. As such, it was argued that the detention is based on grounds that are alien to the object and purpose of the POCA 1959. [36] For context, it is necessary to read Paragraph 5 of the First Schedule which refers to – “All persons concerned in the organization and promotion of unlawful gaming”. The word ‘gaming’ ‘… which is substantially the same in meaning as ‘gambling,’ has been defined to be a contract between two or more persons by which they agree to play by certain rules at cards, dice, or other contrivance and that one shall be the loser and the other the winner (Words, Phrases & Maxims – Legally & Judicially Defined, Anandan Krishnan, LexisNexis at para. [G0023]). Page 17 of 23 [37] At the heart of this argument is the question of whether the crime of online gaming can be said to be ‘organised violence against persons or property’. In this connection, it is important to appreciate the legislative history of POCA 1959 and the related provisions. POCA 1959 was first enacted as an Ordinance (F.M. Ordinance No. 13 of 1959) in 1959. At the tabling of the Prevention of Crime Bill on 19.2.1959, the Minister of Interior and Justice made reference to the purpose of the Bill being designed to deal with ‘… secret society members, gangsters, thugs, extortioners, opium dealers, pimps and keepers of brothels and gambling dens’, and the need ‘… to protect society and prevent criminal associations developing into a dangerous menace…’. In 2014, POCA 1959 was made a law pursuant to art 149 of the FC through the insertion of the long title which reads: ‘Whereas action has been taken and further action is threatened by a substantial body of persons both inside and outside Malaysia to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property; And Whereas Parliament considers it necessary to stop such action; Now, Therefore, pursuant to Article 149 of the Federal Constitution It Is Enacted by the parliament of Malaysia as follows:’ [Emphasis added] [38] Equally pertinent is the fact that the original POCA Ordinance provided for unlawful gaming as a registrable category on the following terms – ‘5. All persons habitually concerned in the organisation and promotion of unlawful gaming.’ [Emphasis added] Page 18 of 23 Paragraph 5 was amended by deleting the word ‘habitually’ pursuant to the Prevention of Crime (Amendment of First and Second Schedule) Order 2014 [P.U. (A) 122/2014] to read as follows: ‘5. All persons concerned in the organisation and promotion of unlawful gaming.’ [39] So, to return to the central issue – whether the crime of unlawful gaming falls within the category of ‘organised violence against persons or property’. The word ‘organised’ means ‘arranged or planned well in the way mentioned’. As an adjective, it is ‘involving large numbers of people who work together to do something in a way that has been carefully planned’ (Oxford Learner Dictionaries). [40] The word ‘violence’ literally means ‘behaviour involving physical force that is intended to hurt, damage, or kill somebody or something’; physical or emotional force and energy; to damage something or have a bad effect on it (Oxford Learner’s Dictionaries). ‘Violence’ has also been defined as consistent of a pattern of coercive behaviours used by a competent adult to establish and maintain power and control over about competent adult taking the form of physical and psychological damage to the person (N. Özbaci and z. Erkan: Metaphors for Violence, Coll. Antropol. 39(2015) 1: 193-201). In this light, it can be appreciated that there are two aspects to violence - physical and non-physical. [41] In the context of the POCA 1959, the phrase ‘organised violence against persons or property’ must be juxtaposed with the meaning of the word ‘unlawful gaming’. The words ‘unlawful gaming’ is not defined in the Page 19 of 23 POCA 1959. It may, however, be instructive to consider Sir William Blackstone’s reflections on the policy perspectives and practices of his class on gaming: ‘Luxury naturally [leads to] … gaming, which is generally introduced to supply or retrieve the expenses occasioned by the former: it being a kind of tacit confession that the company engaged therein do, in general, exceed the bounds of their respective fortunes; and therefore, they cast lots to determine upon whom the ruin shall at present fall, that the rest may be saved a little longer. But, taken in any light, it is an offence of the most alarming nature; tending by necessary consequences to promote public idleness, theft, and debauchery among those of a lower class: and, among persons of a superior rank, it hath frequently been attended with the sudden ruin and desolation of ancient and opulent families, an abandoned prostitution of every principle of honour and virtue, and too often hath ended in self-murder’ (G. R. Blakey, (1985). Gaming, Lotteries, and Wagering: The Pre-Revolutionary Roots of the Law of Gambling, Rutgers L.J. 16(2), 211). [42] In the old days, gambling ‘farms’ existed in Malaya from the beginning of British colonial rule; but as their inherent evil was soon realised, they were underground after the authorities banned their activities. Gambling farms resurfaced in 1943 after they were temporarily licensed by the Japanese during the Japanese Occupation. However, with the return of the British in 1945, gambling farms went underground again. As gambling continues to operate outside the law, Chinese secret societies got into the act by giving ‘protection’ to the gambling syndicates from the law. (The Triads Chinese Secret Societies in 1950s Malaya & Singapore: Comber. L. (2009). Talisman Publishing Pte Ltd & Singapore Heritage Society. pp 49-52). [43] According to Jay Albanese in his book Organized Crime in America
Subsection
(1985) Anderson Publishing Co., gambling (a type of gaming; gambling and Page 20 of 23 gaming are sometimes used interchangeably) is within the category of ‘the provision of illicit services’ which forms part of the characteristics of organized crime. Gaming has also been characterized as a category of vice crimes related to organized groups apart from prostitution, narcotics trafficking, obscenity and pornography (Denny F. Pace & Jimmie C. Styles
Subsection
(1983), Organized Crime: Concepts and Control, 2nd Edition, Prentice-Hall Inc.). [44] The co-authors of a paper entitled Ferentzy, Peter & Turner, Nigel
Subsection
(2009) Gambling and organized crime – A review of the literature. Journal of Gambling Issues. 23. 111-155 at p 119, opined that: ‘As mentioned, organized crimes as we have come to understand it emerged with the advent of modern communication and travel technologies. Yet there has been some continuity and, whether organized or “disorganized,” and whether or not gambling served as the main source of income, the criminal underworld has been dominated by gambles since well before the 20th century… The predominant correlation between gambling and crime is also the most obvious …’ (Emphasis added) The paper also reported the findings of another researcher that gambling is a key component of many criminal organisations at p 126: ‘Illegal gambling, while appearing to be a minor part of a Traditional Organized Crime (TOC) network, is actually a foundation upon which most other illicit activities are supported. Illegal bookmaking, card dens and video gambling machines are Traditional Organized Crime’s main source of revenue. Illegal gambling and related crimes such as loansharking, money laundering and corruption provide working capital to invest in more legitimate enterprises, thereby strengthening their entire illicit operation’. (Emphasis added) Page 21 of 23 The Straits Times (Singapore) dated 21 October 2020 also reported that illegal operators of illegal gaming ‘… are often connected to the underworld or triads.’ and that because there are ‘several layers of middlemen and runners, it would be difficult for the enforcement authorities to track or identify the read masterminds.’ [45] That illegal gaming is pernicious, debilitating and deleterious to the socioeconomic and heath of persons and families which also directly impacts society as a whole is also noted as follows: In view of the potential benefits of legalized gambling, there are also detrimental impacts of both legal and illegal gambling. Health expenditures include and are not limited to psychological treatment costs for gambling disorder, medical prescriptions for gamblers and family members, family therapy, and emergency treatment for suicidal attempts stemming from inability to cope with heavy gambling debts. There are also associations found between problem gambling and chronic physical conditions. Problem gamblers often exhibit high levels of comorbid mental health disorders and engage in substance abuse. All these would contribute to healthcare costs at individual and societal levels. Other financial costs to the gambler and family members include debts arising from problem gambling, personal bankruptcies, disruption or loss of employment, reduced household savings, poverty, and reduced household spending on other essential goods and services. Reduced spending by household on non-gambling related goods and services would affect other sectors of the economy such as other leisure and entertainment services. Another potential economic cost would be reduced productivity at work if the employee is distracted by gambling-related activities which will in turn affect the organization’s productivity (Loo, J.M.Y., Phua, K.L. (2016) Gambling participation and policies in Malaysia. Asian J of Gambling Issues and Public Health 6, 3.; see also G. R Blakey, (1985). Gaming, Lotteries, and Wagering: The Pre-Revolutionary Roots of the Law of Gambling, Rutgers L.J. 16(2), 211). Page 22 of 23 [46] In the light of the above observations, it cannot be gainsaid that the association of illegal gaming activities with organised violence is irrefutable. On this issue, I am also in agreement with the views expressed by my learned sister Hasnah Mohammed Hashim FCJ in her written judgment. Conclusion [47] For the foregoing reasons, I am of the view that (i) s 4 of POCA 1959 is not unconstitutional, (ii) the appellants’ argument that the Minister abused the power entrusted to him under s 22 POCA 1959 by including the CGHA 1953 as paragraph 5 of the First Schedule is without merit, (iii) the appellants’ allegation that the remand is infected with mala fides has not been made out, and (iv) online gaming is a matter that falls within the description of the crime of ‘organised violence’. [48] However, as stated above, I am of the view that the appeals should be allowed in terms of paragraph 7 of the Notice of Motion and that writs of habeas corpus be issued on this ground and this ground alone – that the making of a remand order under sub-s 4(1) POCA 1959 is not a mechanical exercise. The Magistrate is required to exercise her judicial mind to ensure that there is strict compliance with legal, procedural and constitutional safeguards before making such order. In this instance, there is nothing in the appeal record to indicate that the Magistrate had satisfied herself that that all legal, procedural and constitutional safeguards have been complied with before making the remand orders against the appellants. Accordingly, the remand orders are bad in law, null and void. The appeals are allowed and the orders of the High Court are set aside. Page 23 of 23 (Vernon Ong) Judge Federal Court Malaysia
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