Two Rohingya refugees, caught and convicted by the law, have been detained since September pending final disposal of a charge that they entered the country illegally.

Mohd Eman Husin Zahid Husin and Mohd Yunus Mohd Toyub are being held at the Simpang Renggam detention centre in Johor - where 300 detainees are on a hunger strike - until their case comes up for a new trial on Jan 4.

The duo had earlier been convicted separately by the Kulai magistrate's court for illegal entry under section 6(1)(c) of the Immigration Act.

Neither had legal representation during their trial, but both had informed the court that they held letters from the United Nations High Commissioner for Refugees (UNHCR) that recognise them as asylum seekers.

Malaysia is not a signatory to the UN Convention for Refugees - those given refugee status by UNHCR are not recognised by the government and are mostly considered illegal immigrants.

Their circumstances only came to light when the United Nations High Commissioner for Refugees in Kuala Lumpur contacted lawyer Amer Hamzah Arshad in mid-September to take up their case, under an ongoing arrangement.

Amer said he had successfully appealed to the Johor Baru High Court to quash their sentences.

He plans to request Attorney-General's Chambers to drop the charges since they possess valid protection papers, and because of the government's recent move to selectively recognise Muslim Rohingyas as refugees and be issued identity cards.

"They cannot be released immediately because a court process has started ... unless the charges are dropped," he said.

Error by court

Amer said Mohd Eman was arrested Sept 4 and charged on Sept 7.

"He pleaded guilty to the charge, but produced the UNHCR letter. The magistrate instructed the prosecuting officer to verify its authenticity," Amer said.

"However, after the court was told that the document was not valid, it sentenced him to four months jail and two strokes of the rotan."

Mohd Yunus was arrested on Aug 25 and charged on Sept 9 in the same court. He too pleaded guilty to entering the country illegally.

While asking the court for leniency, he had mentioned that he is a recognised asylum seeker. This apparently did not help his case, for he was sentenced to four months in jail and two strokes of the rotan.

When Amer took up the case, he submitted separate appeals on their behalf to the Johor Baru High Court Sept 16 on grounds that the recording of the pleas were "bad in law for non-compliance with the provisions of the criminal procedure code".

Justices KP Gengadharan and Azhar Mohamad respectively ruled that the magistrate had erred in handling the cases.

Refugees, not illegals

The duo have since pleaded not guilty to the charges and have claimed trial.

"In Eman's case, the judge decided that a trial date should have been set when he claimed he was a refugee, and that the magistrate should not have asked the prosecuting officer to verify the authenticity of his document," Amer said.

Amer added the Yunus' appeal succeeded because the High Court found that there had also been a breach when his plea was recorded.

There are currently between 10,000 to 15,000 Rohingyas in Malaysia, among an estimated 1.2 million illegal immigrants.

Criticism has often been levied against enforcement officers who, when arresting illegal immigrants, include refugees and asylum seekers without taking into consideration the validity of the UNHCR protection letters.