Important Note: This article is for general information and educational purposes only—not legal advice. It draws on the judgment of the High Court dated 22 May 2026, as reported by New Straits Times, Free Malaysia Today, and Malay Mail.
For illustration only
What a 40‑Day Overstay in Custody Means for Personal Liberty and Government Accountability
A Nigerian man who had served his sentence for drunk driving but continued to be detained for 40 days—first by the police and subsequently by the Immigration department—was recently awarded RM675,000 in damages by the Shah Alam High Court for unlawful detention.
Simon Adavize Momoh’s ordeal began when he was arrested on March 15, 2021 at a roadblock in Cheras, Kuala Lumpur. The 38-year-old, who is married to a Malaysian, subsequently pleaded guilty to drink driving—an offence under Section 45A (1) of the Road Transport Act 1987—and served one day in jail and paid a RM12,000 fine.
Instead of being released the next day, the father of two, was taken to Kajang Prison and held until 7 April 2021. He was then transferred to the Semenyih immigration detention centre, where he was kept for a further 16 days. During that time, his spouse visa was cancelled and a deportation order was issued against him.
What started as a one‑day sentence for Momoh turned into 40 days in custody. His confinement ended only after the Shah Alam High Court allowed his habeas corpus application on 23 April 2021.
Habeas Corpus (April 2021)
That application was heard before Justice Ab Karim Ab Rahman of the Shah Alam High Court. The judge allowed it and ordered Momoh’s immediate release.
Justice Ab Karim’s reasoning hinged on a single, critical failure. Under Article 5(4) of the Federal Constitution and Section 51(5) of the Immigration Act, a person arrested under immigration laws must be produced before a magistrate within 14 days for a remand order. No such application was ever made. The deputy public prosecutor confirmed as much in court. The judge ruled that this omission alone made the entire detention unlawful and unconstitutional, stating: “When there is none, that detention becomes non‑compliant under the Federal Constitution or under the Immigration Act.”
The Immigration authorities had attempted to justify the detention, but the judge rejected their arguments. The failure to seek a magistrate’s order within 14 days meant that continued custody, however labelled, had no lawful foundation. Momoh was released that evening (23 April 2021), bringing a 40‑day ordeal to a close.
Momoh also filed for a judicial review to challenge the cancellation of his spousal visa and the deportation order.
Judicial Review (June 2022)
On 2 June 2022, the Shah Alam High Court allowed Momoh’s judicial review application against the Immigration director‑general and the Home Minister. Judge Shahnaz Sulaiman quashed both the visa revocation and the deportation order.
Her reasoning rested on two distinct legal errors. The first concerned the scope of the Immigration Department’s power. The judge held that the director‑general can only cancel a non‑citizen’s pass if they have committed an offence under Section 56 of the Immigration Act. Momoh’s drink‑driving conviction was an offence under the Road Transport Act—not the Immigration Act. The director‑general had, as the judge put it, “exceeded his authority.” The cancellation was therefore illegal.
The second error was constitutional. After Momoh’s jail term ended, the Immigration Department continued to detain him without producing him before a magistrate to obtain a remand order. Under Article 5(4) of the Federal Constitution and Section 51(5) of the Immigration Act, that step must occur within 14 days. He was held for 28 days without the required remand order.
The court made no order as to costs, treating the matter as public interest litigation. Momoh’s lead counsel, Gurdial Singh Nijar, described the decision as clarifying an important point of law: so long as a non‑citizen holds a valid pass, they are not liable to be removed for an offence that falls outside the Immigration Act.
The Legal Errors
In Malaysia personal liberty is protected under Article 5(1) of the Federal Constitution. It states that no person shall be deprived of his personal liberty save in accordance with law. Once Momoh had served his sentence, there was no legal basis to hold him any longer. His continued custody was unlawful from the moment his one‑day jail term ended. The court confirmed that the detention was unconstitutional in the habeas corpus proceedings.
The visa cancellation and deportation order compounded the wrong. As the judicial review decision confirmed, the Immigration Department acted outside its legal powers. A man who had a lawful right to remain in Malaysia with his family was, for a period, treated as though he had none.
The Damages Awarded
In a separate action, Momoh filed a civil suit against the Government of Malaysia, the Home Ministry, the Immigration Department, and the Prisons Department for unlawful confinement. On 22 May 2026, High Court Judge Jamhirah Ali handed down the award:
- General damages: RM600,000, calculated at RM15,000 per day for the 40‑day period of unlawful detention.
- Exemplary damages: RM75,000.
- Costs: RM40,000.
- Total: RM715,000.
The exemplary damages award, though smaller in quantum, carries a distinct message. Exemplary damages are not compensatory; they are punitive. Momoh’s legal team described the decision as “a significant judicial affirmation of constitutional liberties, accountability, and the rule of law.”
The Attorney‑General’s Chambers is now reviewing the decision and considering an appeal. As of the date of writing, the award stands, and the legal principles it affirms remain good law.
Practical Takeaways
- Habeas corpus is a practical remedy. The High Court acted swiftly once the application was filed. The writ of habeas corpus is a process that can secure the release of a person unlawfully detained.
- Detention beyond sentence is a clear violation of Article 5. The moment a sentence is served, the legal basis for custody ends. It is an absolute rule. Enforcement agencies must have systems in place to ensure that a person is released when their sentence expires.
- Immigration powers must follow due process. The cancellation of a spouse visa and the issuance of a deportation order are serious executive acts. When they are done without proper legal foundation—as the judicial review decision confirmed—the courts will intervene.
- The state can be held liable in substantial damages for unlawful executive action. The RM15,000‑per‑day figure for general damages, coupled with the exemplary damages award, shows that violations of personal liberty carry a heavy financial cost.
- Effective coordination between enforcement agencies is essential to prevent constitutional violations. Momoh fell through the cracks between the police, the prison system, and the Immigration Department. Organisational failures of this kind can amount to constitutional violations, and the courts will hold the state accountable.
A Closing Thought
Momoh met every obligation the law imposed. He pleaded guilty. He served his sentence. He paid his fine. And then the system, which should have released him, held him for 40 more days. He challenged that detention through the courts. The High Court’s award is not just compensation for one man; it is a declaration that the state cannot, with impunity, deprive a person of liberty beyond what the law allows. For every enforcement officer, every immigration official, and every lawyer who works at the intersection of criminal justice and administrative power, the case is a clear, recent reminder: the courts will enforce the right to liberty.