Gordon Yong Lone Saint v Timbalan Menteri dalam Negeri, Malaysia (WA-25-337-09/2025)

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KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN

The Applicant was restricted to Bandar Prai, Daerah Seberang Prai Tengah, Pulau Pinang for a period of 2 years, pursuant to Restriction Order dated 20.6.2025 made under the Dangerous Drugs (Special Preventive Measures) Act 1985, (Act 316).

He now files the present judicial review proceedings seeking for the reliefs of declaration and/or certiorari to challenge the Restriction Order. The basis of his challenge are that the Restriction Order was issued in non-compliance with the mandatory procedure laid down in Act 316 and hence in violation of his constitutional rights.

An application to commence judicial review proceedings must be preceded with leave. (Order 53 r 3 of the Rules of Court 2012). The Attorney General Chambers, having served with the cause papers and who also represent the putative Respondents intimated that it wished to be heard on the matter. An affidavit affirmed by the Federal Counsel was filed and affirmed on 25.11.2025 to object to the leave application.

The Affidavit of the Federal Counsel states that on 18.11.2025, the said Restriction Order had been revoked pursuant a Revocation Order made pursuant to section 11B of the Act 316.

In view of the revocation, it is submitted that the matter before this court is now rendered academic as there is no subsisting Restriction Order for this court to review. In the circumstances, the the leave application sought by the Applicant ought not to be granted.

The Applicant however contends that Revocation Order had expressly stated that “Pembatalan ini tidak menjejaskan keesahan Perintah Sekatan sebelum ini.” In other words, although the Restriction Order was revoked, it did not affect the validity of the order made. The Restriction Order for all intents and purposes, was valid at the time of its issuance.

The Applicant further contends that the Revocation Order did not render the present application academic following the revocation. The Applicant’s counsel in his written submissions mentioned the fact that during the period of the Restriction Order, the Applicant was charged in the Magistrate’s Court in Bukit Mertajam with drug offences under the Dangerous Drugs Act 1952 and also for violating the conditions of the Restriction Order. In view of the charges, the validity of the Restriction Order is still a live issue.

However, these facts were not stated in any affidavit before this court. I am of the view that if the Applicant had intended to rely on these facts, he ought to have filed an affidavit to affirm these facts. This court cannot take cognizance of facts raised for the first time in counsel’s written submissions.

As matters stand, the undisputed factual evidence before this court is that there was a Restriction Order dated 20.6.2025 and the said order was revoked by a Revocation Order dated 18.11.2025. The critical question is whether the Revocation Order would now render the Applicant’s judicial review application academic.

I find merit in the argument advanced by Federal Counsel that the lis in this case has ceased to exist. The case of Ahmad Saidi bin Md Isa v Timbalan Menteri Hal Ehwal & Ors [2006] 3 MLJ 208 was cited in support of the argument. I find the case to be directly on point.

The Appellant in Ahmad Saidi sought for declaratory reliefs in respect of a restricted residence order against him. When the appeal came up for hearing before the Court of Appeal, the term of the restricted residence order had ended. The Respondent then contended that the appeal had become academic. The Court of Appeal held as follows: [4] We were entirely in agreement with learned senior federal counsel that the appeal was indeed academic. The subject matter of the appeal was the correctness of the restricted residence made against the appellant and to which he had been subject. That order having come to an end, there was no longer a valid lis before us for adjudication. Any views we may express about the validity or otherwise of the order would be wholly academic in the circumstances of this case. It will simply have no effect at all. It will mean that we would act in vain. And it is settled law that a court will not act in vain. Equally it is also settled that the court will not grant academic declarations…

Similarly, in the present proceedings, the Applicant seeks to question the validity and legality of the Restriction Order dated 20.6.2025, and seeks reliefs in consequence thereof.

However, the Restriction Order having now been revoked, by the Minister’s exercise of his statutory power under section 11B of the Act, the said Restriction Order ceases to have any legal effect. The Applicant is no longer affected by the Restriction Order. It has come to an end. He is no longer restricted to Bandar Prai, Daerah Seberang Perai Tengah, Pulau Pinang.

In the circumstances, it would serve no purpose for this court to rule on the legality or propriety of the Restriction Order. It would merely be an academic exercise with no practical effect.

The Applicant’s argument in rebuttal is that although the Restriction Order has been revoked, it does not annul the Restriction Order of 20.6.2025. The Restriction Order until its revocation on 18.11.2025, was validly issued.

In this regard, I agree with the Applicant. The Revocation Order does not have the effect of nullying the Restriction Order. The Restriction Order until its revocation, remained in effect. However, this submission does not answer the issue whether by virtue of the revocation, the judicial review application had become academic.

The Applicant cites the Federal Court case of Lei Meng v Insp Wayandiana Abdullah & Ors [2022] 3 CLJ 177 to contend that Ahmad Saidi has since been overruled.

I am of the view that contrary to the contention of the Applicant, Lei Meng did not overrule Ahmad Saidi. The decision of Lei Meng must be viewed in its proper context.

In Lei Meng the Appellants were detained under the Prevention of Crime Act 1959. They applied for habeas corpus on grounds that their arrest, remand and detention were unlawful. When the matter come on for hearing before the High Court, some of the Appellants had been released whilst some had their initial order of detention substituted with one under a different provision of the Act.

The High Court allowed the preliminary objection advanced that the applications for release are academic since the order upon which the habeas corpus application was premised was no longer in existence. A writ of habeas corpus can only be directed at a subsisting order of detention.

The Federal Court ruled that the appeals were not academic. The rationale was that the actual physical custody of the detainee under a subsisting detention order is not a pre-condition to the grant of the remedy of release under A. 5(2) of the Federal Constitution.

I am of the view that Lei Meng can be distinguished on the following grounds. Firstly, the case concerned a habeas corpus application, unlike the instant case. Secondly, the pronouncements of the Federal Court reflected that the consideration of the court was centred primarily on Article 5(2) of the Federal Constitution, a provision upon which writs of habeas corpus rely heavily on. The Federal Court held that the High Court was bound to perform its constitutional duty of review under Article 5(2) of the Federal Constitution by considering the legality of the detention at the point of filing the application for release. Thirdly, the Federal Court did not question nor criticize Ahmad Saidi to expressly overrule the decision.

Accordingly, I am of the view that Ahmad Saidi remains a good law.

I am also guided by the Federal Court’s decision in Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal [2020] 4 MLJ 773 and consider it to be authoritative on the academic issue.

The factual matrix of the case is one that is too well-known to be re-stated here. In view of the change in circumstances since the suit was filed, the Federal Court had to decide if the questions referred for its determination under section 84 of the Courts of Judicature Act 1964, had been rendered academic.

It held as follows: [51] The position is well established in Malaysia (see for instance Datuk Syed Kechik bin Syed Mohamed & Anor v The Board of Trustees of the Sabah Foundation & Ors and another appeal [1998] 2 MLJ 137). The meaning of ‘academic’ was explained in Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113 at para [9], per Augustine Paul FCJ: The test therefore, in deciding whether an appeal has become academic is to determine whether there is in existence a matter in actual controversy between the parties which will affect them in some way. If the answer to the question is in the affirmative the appeal cannot be said to have become academic. … [53] The question before us is this. In view of the fundamental changes in the governance of the judiciary with the departure of the second and third respondents, the stark issues as housed in the questions posed have now become blunted by consequential events. [54] It bears repeating that the illegality alleged has been superseded by subsequent events. As such, the subject matter of the dispute — the constitutionality of the judges holding their respective offices (second and third respondent) is no longer in existence. Their replacements have been made. What then is the dispute that needs to be resolved? [55] The outcome of the constitutional reference will not affect the positions of the parties at all. No order can be made to give effect to the issue. In other words, there is now no remedy that this court can order, to give effect to the applicant’s view on the constitutionality of the appointments. … [57] Although it is not unusual for the court to hear cases which may have become academic or hypothetical, this discretion is to be exercised sparingly. [58] The authorities indicate that in such a case, the court has a narrow discretion to proceed, for it is to be exercised with caution.

Bearing in mind the principles enunciated in Bar Council Malaysia, I find the present case falls squarely within the principles therein. The Applicant’s case for challenge has been superseded by the event of the Revocation Order. It would be a mere exercise in futility to hear a challenge against the Restriction Order. In doing so, this court will only be act in vain. Even if the Applicant succeeds, this court will merely be granting academic reliefs with no practical effect.

For the above reasons, the application for leave to commence judicial review proceedings is dismissed. I make no order as to costs. Dated: 12th June 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Applicant: Pn. Dzvuriyah bt Velayit Hussein (Pn. Hafizatul Shahirah bt Jamari together with her) Tetuan KL Chee & Co. Counsel for Putative Respondent: Puan Nur Syahidah binti Mohamad