Kee Wen Wei v Public Prosecutor

Appellant(s): Kee Wen Wei

Respondent(s): Pendakwa Raya

• YA Datuk Noorin binti Badaruddin
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Datuk Meor Hashimi bin Abdul Hamid

• The appellant was subject to a police supervision order issued under section 15 of the Prevention of Crime Act 1959 (POCA) on 4 March 2020, requiring him to remain at his residence between 8.00 p.m. and 6.00 a.m.
• On 28 November 2020, police found the appellant absent from his registered residence during an inspection, leading to a charge under section 15(4) POCA for breaching the supervision condition.
• The appellant was convicted by the Magistrate and sentenced to 27 months' imprisonment; his appeal to the High Court was dismissed, prompting a further appeal to the Court of Appeal on a question of law concerning the effect of the Federal Court's decision in Nivesh Nair Mohan (which declared the remand procedure under section 4 POCA unconstitutional) on supervision orders issued under section 15.

• Whether a declaration of unconstitutionality of section 4 POCA (governing remand procedure) automatically invalidates a supervision order issued under section 15 POCA, given that a section 4 remand is a procedural prerequisite to registration and subsequent supervision.
• Whether the doctrine of prospective overruling applies to limit the temporal effect of the Nivesh Nair Mohan ruling, such that supervision orders issued before that decision remain valid and operative.
• Whether the appellant's conviction under section 15(4) POCA could stand despite his constitutional challenge, given that the supervision order was never set aside by a competent court.

• The Court held that the constitutional invalidation of section 4 POCA does not automatically nullify a supervision order validly issued under the distinct statutory power in section 15, as the two provisions serve different legal functions within the same Act.
• Applying the doctrine of prospective overruling (as affirmed in ASP Poonnam E Keling and Aminah Ahmad), the Court held that the Nivesh Nair Mohan ruling does not retrospectively invalidate the supervision order, which was issued and operative before that decision was delivered.
• As the supervision order was never set aside by a competent court and remained operative during the material period, the appellant failed to establish any basis for setting aside his conviction; the appeal was dismissed and the conviction and sentence of 27 months' imprisonment were affirmed.