PETALING JAYA - Those who find themselves sitting in prison for a period longer than their original sentence can be considered to have been unlawfully detained and have full recourse to the law.
According to Malaysian Bar Council president Christopher Leong, the first step would be to file a writ of habeas corpus to secure their release.
"A civil suit can be filed for damages at the same time. If they only became aware of it after or if the authorities refuse to agree with him, he can then sue the authorities for damages," said Leong when contacted by The Star Online.
Criminal defence lawyer Amer Hamzah Arshad also said that a writ of habeas corpus was the way to challenge the detention and secure the release of an overstaying prisoner.
"A writ of habeas corpus applies to any type of unlawful detention - if a person is kept in prison longer than their sentence, it becomes an unlawful detention. If a person is sentenced to one year in jail and they are in prison for one year and one day, that one day extra is an unlawful detention," said Amer.
It was reported that former Permodalan BSN Berhad chief executive officer Ahmad Skhri Ramli had been awarded RM322,000 (S$126,000) in damages after he "overstayed" in prison for 74 days.
Ahmad Shkri was fined RM150,000 in default of six months' jail for each charge and managed to pay RM220,000.
He was supposed to have been released on Dec 2, 2009, after serving jail time following the High Court's dismissal of his appeal and his failure to pay the remaining RM80,000, but was only released on Feb 18, 2010.
He was convicted of two counts of abetment in the short-selling of 202,000 AKN Technology Berhad shares six years ago.
Amer said the problem was not one of insufficient laws as the Malaysian legal system had the legislative framework to protect the rights of prisoners, such as that of access to counsel.
"All the mechanisms are in place. The issue is whether the authorities are doing all they can to ensure the affected person can get legal access," said Amer.
For example, he said, under the Criminal Procedure Code, a person had a right to notify their family and lawyer that they had been detained by the authorities.
"Access to counsel should not be an issue, but the question is whether they are being told of this right or being denied it," said Amer.
He said that a proper communication system should be set up between all the relevant authorities, including the courts, police, Immigration, the Prisons Department and other authorities to minimise confusion.
"This can be expanded by having a proper database containing the prisoner's complete file containing their date of release or other such conditions.
"Any court order has to be communicated to the relevant authorities," added Amer.
Asked if he knew if this was a common occurrence, Amer said similar incidents could have happened in the past due to administrative oversight.
Similar views were shared by Bar Council criminal law committee co-chairperson Rajpal Singh, who said cases of overstaying in jail were very rare.
"There could be situations where prisoners could have overstayed, but not known about because they did not know their rights," added Rajpal.
He said prisoners were often given discounts of their jail sentence for good behaviour.
"Let's say someone is sentenced to a nine-month prison sentence from the date of sentence.
The Prisons Department Director-General can give a three-month discount, or a discount of one-third of the original sentence, reducing it to six months. A discount of a sentence is at his discretion," said Rajpal.