WONG ONG HUA & ANOR v. PP & ORS
HIGH COURT MALAYA, KUALA LUMPUR
WAN AHMAD FARID SALLEH J
[ORIGINATING SUMMONS NO: WA-24-45-09-2021]
5 APRIL 2023
[2023] CLJ JT (10)

Abstract – (i) Although an extradition proceeding under s. 20 of the Extradition Act 1992 ('EA') is a committal proceeding, it is not entirely an administrative action devoid of judicial power. This can be seen in sub-ss. 1(b) and 1(c) of s. 20 on the issues of law that call for a judicial determination by the Sessions Court; and (ii) The word 'direction' by the Minister in s. 20 of the EA, which gives the impression that a Minister who is neither a judge nor a judicial personage can direct a judge of the Sessions Court to commit the fugitive criminal to prison to await the order by the Minister for his surrender, rendered the said exercise ultra vires art. 121 of the Federal Constitution ('FC'). It offends the doctrine of separation of powers which is contained in art. 4(1) of the FC.

CRIMINAL PROCEDURE: Extradition – Proceedings – Fugitive criminals – Minister made order under s. 4 of Extradition Act 1992 directing procedures under s. 20 to be applied to proceedings – Whether contravened art. 121 of Federal Constitution – Whether offended doctrine of separation of powers – Whether ss. 4 and 20 unconstitutional, null and void – Whether impugned sections ought to be struck down

CRIMINAL LAW: Extradition – Fugitive criminals – Request made under art. 11 of Extradition Treaty between Government of United States and Government of Malaysia – Minister made order under s. 4 of Extradition Act 1992 directing procedures under s. 20 to be applied to proceedings – Whether contravened art. 121 of Federal Constitution – Whether offended doctrine of separation of powers – Whether ss. 4 and 20 unconstitutional, null and void – Whether impugned sections ought to be struck down

CONSTITUTIONAL LAW: Federal Constitution – Article 121(1) – Whether contravened – Extradition proceedings – Request made under art. 11 of Extradition Treaty between Government of United States and Government of Malaysia- Minister made order under s. 4 of Extradition Act 1992 directing procedures under s. 20 to be applied to proceedings – Whether contravened art. 121 of Federal Constitution – Whether offended doctrine of separation of powers – Whether ss. 4 and 20 unconstitutional, null and void – Whether impugned sections ought to be struck down