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MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI … · dan Seksyen 11 Akta Dadah Berbahaya...
Transcript of MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI … · dan Seksyen 11 Akta Dadah Berbahaya...
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MAHKAMAH TINGGI MALAYA DI SHAH ALAM
DALAM NEGERI SELANGOR DARUL EHSAN
PERMOHONAN JENAYAH NO.: BA-44-186-07/2017
Dalam Perkara Mengenai Perkara 5, Perkara
149 Dan Perkara 151 Perlembagaan
Persekutuan
DAN
Dalam Perkara Mengenai Seksyen 3 dan 6,
dan Seksyen 11 Akta Dadah Berbahaya
(Langkah-Langkah Pencegahan Khas) 1985
DAN
Dalam Perkara Mengenai Seksyen 4, 5, 9, 16
dan 17 Akta Dadah Berbahaya (Langkah-
Langkah Pencegahan Khas) 1985
DAN
Dalam Perkara Permohonan Habeas Corpus
selaras dengan BAB XXXVI Kanun Acara
Jenayah (Akta 593)
ANTARA
PARTIBAN A/L PANISILO
(No. KP: 801027-14-6019) …PEMOHON
DAN
1. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA
2. PENGUASA KANAN, PUSAT PEMULIHAN AKHLAK
SIMPANG RENGGAM, JOHOR
…RESPONDAN-RESPONDAN
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INTRODUCTION
1] This is an application for a writ of habeas corpus by the detenu
who is currently being detained for a period of two years commencing
from 26.5.2017 pursuant to an order dated on the same day made under
s.6(1) of the Dangerous Drugs (Special Preventive Measures) Act
1985 ('the Act').
Chronology of events
2] The detenu was arrested on 6.4.2017 under s.3(1) of the Act.
Inspector of Police (“Insp”) Zulkifli Bin Mohd Daud (“IO”) conducted the
relevant investigation and after having completed the investigation he
submitted a complete report of the investigation to the Inquiry Officer
(“IQO”) Dzul Iswari Bin Mohd Jaafar and the Deputy Minister of Home
Affairs (“DMHA”) on 3.5.2017 pursuant to s.3(3)(a) and (b) of the Act.
3] Meanwhile Deputy Superintendent of Police (“DSP”) Ahmad
Dahuri Bin Mohamed Isa deposed that on 14.4.2017 he received the
case file concerning the circumstances of the arrest and detention of the
detenu from Insp Zulkifli Bin Mohd Daud. Having perused the said case
file, he forwarded the same to Deputy Commissioner of Police (“DCP”)
Dato’ Pahlawan Mohd Dzuraidi Bin Ibrahim the designated officer
appointed by the Inspector General of Police pursuant to s.3(2)(c) of the
Act. Thereafter DSP Ahmad Dahuri authorised a further detention of the
detenu in accordance with s.3(3)(c) of the Act.
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4] DCP Dato’ Pahlawan Mohd Dzuraidi Bin Ibrahim deposed that
having received the case file on 14.4.2017 and perused the same and
reported it to the DMHA on 17.4.2017 pursuant to s.3(2)(c) of the Act.
5] The IQO deposed that he received the complete report of the
investigation from the IO in accordance with s.3(3)(a) of the Act on
3.5.2017 and personally conducted an inquiry on the detenu. The detenu
was present and examined. According to the IQO the detenu was able to
understand the Malay language however, he procured the assistance of
a Tamil interpreter one Sergeant Kumaravelu A/L Mariappan as was
requested by the detenu. Having completed the inquiry, the IQO
prepared and forwarded a written report to the DMHA in accordance with
s.3(4) of the Act on 23.5.2017.
6] The DMHA Datuk Nur Jazlan Bin Mohamed deposed that he
received the followings:
6.1 a report concerning the circumstances of the arrest and
detention of the detenu from DCP Dato’ Pahlawan Mohd
Dzuraidi Bin Ibrahim on 17.4.2017;
6.2 a complete report of the investigation from the IO on
3.5.2017; and
6.3 a written report from the IQO on 23.5.2017.
7] Having studied the reports from the IO and the IQO he was
satisfied that the detenu has been associated with activities involving
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drug trafficking and that it was necessary in the interest of public order to
place the detenu under detention for a period of two years.
8] He then directed his officer one Mohd Adzharuddien Bin Baharom
to prepare the Detention Order (“DO”) and the Allegations of Fact (“AF”).
Mohd Adzharuddien thereafter prepared three copies of the DO and AF
and he signed the DO on the same day authorising the detention of the
detenu for a period of two years commencing from 26.5.2017 at Pusat
Pemulihan Akhlak Simpang Rengam, Johor (“PPA”) under s.6(1) of the
Act.
9] The IO further deposed that on 26.5.2017 at 3.15pm at Lokap
Berpusat Kuala Lumpur, Jinjang, Kuala Lumpur, he met the detenu and
procured a Tamil interpreter one Detective Sergeant Major (“DSM”)
Letchumanarajan as the detenu required an interpreter notwithstanding
he understood the Malay language. The IO then explained the contents
of the DO, the AF and Form I to the detenu through DSM
Letchumanarajan and only after he was satisfied that the detenu
understood the contents of the DO, the AF and Form I, he served a copy
of the DO, the AF and three copies of Form I on the detenu. According
to the IO, the detenu acknowledged by signing on the overleaf of the DO
as well as on Form I. The detenu chose to make representations and
wished to be present before the Advisory Board as well as be
represented by an advocate and will address the Advisory Board in
Tamil language.
10] The detenu was transported to the PPA on 27.5.2017 and was
placed under the custody of the IO at the Lokap Berpusat Kuala Lumpur,
Jinjang, Kuala Lumpur prior to that.
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11] At the PPA the detenu was met by Superintendent of Prison (“OIC
PPA”) Azman Bin Mohd Ali who is also the Officer in charge of the PPA
where the detenu was again reminded of his rights to make
representations through an interpreter one Harun Bin Musa who is a
warder and a Tamil interpreter based at the PPA. The detenu was asked
whether he wanted to add anything to his representations and he
responded in the affirmative. He was given a blank sheet of paper
(“note”) where he wrote himself in Malay language which reads as
follows:
“RAYUAN
SAYA MERAYU AGAR DI BEBASKAN KERANA SAYA TIDAK
TERLIBAT DENGAN DADAH. DAN MOHON DIBEBASKAN.”.
12] Thereafter the detenu handed over two copies of Form I and the
said note to the OIC PPA and the latter caused the documents to be
forwarded to the Secretary of the Advisory Board.
13] The Secretary of the Advisory Board Mastura Binti Abu Bakar
(“Secretary”) deposed that she received Form I and the note on
30.5.2017 and on 1.6.2017 the Advisory Board issued a notice Form II to
notify the detenu of the date, time and venue of the hearing of his
representations which was scheduled on 15.6.2017 at 9.00am at the
PPA.
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14] On the hearing date the detenu was present and was represented.
His counsel however sought an adjournment to inspect some documents
and was allowed and the hearing was adjourned to 19.7.2017.
According to the Secretary the detenu was also informed orally of the
date of the next hearing as well as another Form II was issued and sent
to PPA to be served on the detenu.
15] On 19.7.2017 the counsel sought for another postponement in the
presence of the detenu. The reason cited was to obtain a document. The
hearing was adjourned to 9.8.2017. The detenu was informed orally and
by notice Form II.
16] On 9.8.2017 the hearing commenced and lasted for a day. One
Detective Sergeant K Saundarajan A/L Krishnan acted as Tamil
interpreter. At the hearing the IO testified as well as the detenu himself
and submissions were made.
17] On 14.8.2017 the Advisory Board having considered the detenu’s
representations, had made the recommendations to the Yang di-Pertuan
Agong and on 13.9.2017 the latter confirmed the detention.
The Law
Mala fide and procedural impropriety
18] In Karam Singh v. Menteri Hal Ehwal Dalam Negeri, Malaysia
[1969] 2 MLJ 129 at the High Court, Ibrahim J at p.130 stated as
follows:
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“In Basu's Commentary on the Constitution of India, 5th Edition, vol. 2, under
the heading "Onus where imprisonment or detention is challenged" the
following passage appears at page 90:–
"Where a person who has been deprived of his liberty challenges the
detention by a petition for habeas corpus, it is for the authority who has
detained him to show that the person has been detained in exercise of a valid
legal power. Once that is shown, it is for the detenu to show that the power
has been exercised mala fide or improperly.".
….
Under the heading "When is an order mala fide" Basu at page 153 of the
same volume and edition of his Commentary says:–
"An order of detention is mala fide if it is made for a 'collateral' or 'ulterior'
purpose, i.e. a purpose other than what the Legislature had in view in passing
the law of preventive detention (i.e., prevention of acts prejudicial to the
security of the State, maintenance of public order and so on). There is a mala
fide exercise of the power if the grounds upon which the order is based are
not proper or relevant grounds which would justify detention under the
provisions of the law itself, or when it appears that the authority making the
order did not apply his mind to it at all, or made it for a purpose other than that
mentioned in the detention order.
The question of mala fides has to be decided with reference to the facts of
each case and the observations in one case cannot be regarded as a
precedent in dealing with other cases.
The onus of proving mala fides is upon the detenu, and the trend of recent
decisions shows that it is not likely that the detenu may succeed in many
cases.".
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On appeal to the Federal Court, Azmi LP at p.138 agreed with Ibrahim J
where His Lordship said,
“In my view, the passage from Basu cited by the learned judge correctly
expresses the law as to burden of proof, namely, that it is for the authority
who has detained the detainee to show that the latter has been detained in
exercise of a valid power. Once that is shown it is for the detainee to show
that the power has been exercised mala fide or improperly, which means that
it is made for a "collateral" or "ulterior" purpose i.e. a purpose other than those
set out in article 151, and in this case for a purpose other than for preventing
the detainee from doing acts prejudicial to the security of Malaysia.
The learned judge was of the view that the order of detention was made in
exercise of a valid power and therefore the burden was shifted to the detainee
to show that it was made mala fide or improperly.”.
19] On 24.8.1989 amendments were made to the Internal Security Act
1960, the Emergency (Public Order and Prevention of Crime) Ordinance
1969 and the Dangerous Drugs (Special Preventive Measures) Act 1985
where the DO may only be challenged on procedural impropriety. In Lee
Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005]
3 CLJ 914 the Federal Court speaking through Abdul Hamid Mohamad
FCJ at p.930 stated as follows:
“The cases appear to show that there were various grounds on which the
detention orders were challenged of which mala fide appears to be the most
important ground. Courts appear to have placed lesser importance on
procedural non-compliance unless the requirement is mandatory in nature.
The amendments appear to have reversed the position and in so doing limited
the ground to only one i.e., non-compliance with procedural requirements.
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In our view, courts must give effect to the amendments. That being the law, it
is the duty of the courts to apply them. So, in a habeas corpus application
where the detention order of the Minister made under s. 4(1) of the Ordinance
or, for that matter, the equivalent ss. in ISA 1960 and DD(SPM) Act 1985, the
first thing that the courts should do is to see whether the ground forwarded is
one that falls within the meaning of procedural non-compliance or not. To
determine the question, the courts should look at the provisions of the law or
the rules that lay down the procedural requirements. It is not for the courts to
create procedural requirements because it is not the function of the courts to
make law or rules. If there is no such procedural requirement then there
cannot be non-compliance thereof. Only if there is that there can be
noncompliance thereof and only then that the courts should consider whether,
on the facts, there has been non-compliance.”.
20] And in Manoharan Malayalam & Yang Lain lwn. Menteri
Keselamatan Dalam Negeri & Satu Lagi [2009] 4 CLJ 679 Alauddin
Mohd Sheriff PCA speaking for the Federal Court at p.683 had this to
say,
“Beban bagi rayuan ini terletak dibahu perayu untuk mernbuktikan pihak
berkuasa telah tidak mematuhi kaedah-kaedah prosedur dan pihak perayu
perlu memahami bahawa ‘mala fide’ bukanlah satu ‘procedural non-
compliance’ bagi mencabar perintah tahanan tersebut di bawah s. 8(1)
AKDN.”.
The Federal Court followed its previous decision in Abd Razak
Baharudin & Ors v. Ketua Polis Negara & Ors and Another Appeal
[2005] 4 CLJ 445.
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21] Therefore, as at Manoharan (supra) a detenu would not be able to
cite mala fide as a ground to seek for his release from an unlawful
detention. It was not a procedural non-compliance.
22] However, in L Rajanderan R Letchumanan v. Timbalan Menteri
Dalam Negeri, Malaysia & Ors [2010] 7 CLJ 653 Abdull Hamid
Embong FCJ at p.660 stated as follows –
“A writ of habeas corpus must be directed only against the current detention
order even if the earlier arrest of the detainee is irregular. The court is also not
concerned with the vagueness, sufficiency or relevancy of the grounds of
detention which is the sphere of the subjective exercise of the Minister’s
discretion under the various executive detention legislations unless mala fide
on his part is shown.”.
23] I am unable to find any other reported decision of the apex court
subsequent to L Rajanderan (supra). Therefore, unless I err, a detenu is
still able to cite mala fide apart from procedural non-compliance. If my
reading is correct, L Rajanderan (supra) has departed from Lee Kew
Sang (supra), Manoharan (supra) and Abd Razak Baharudin (supra).
Arrest for purpose of investigation and Detention Order issued by the Minister
24] There have been no changes since Mohd. Faizal Haris v.
Timbalan Menteri Dalam Negeri, Malaysia [2005] 4 CLJ 613 where
the Federal Court at p.628 held as follows:
“The corollary is that a detention order can be made against a person under s.
6(1) even when his detention under s. 3(2) was irregular. The general rule that
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a writ of habeas corpus must be directed against the current order of
detention therefore applies where a detention under s. 6(1) has been made
subsequent to an arrest and detention under s. 3(1) and (2). It follows that
where a detention order has been made under s. 6(1) the writ of habeas
corpus must be directed only against that order even if the earlier arrest and
detention are irregular.”.
25] Keeping in the forefront of my mind the authorities aforesaid, I
shall now examine whether the grounds raised by the detenu will attract
a writ of habeas corpus.
Issues and analysis
26] The detenu in his affidavit in support raised a number of issues
ranging from the time of his arrest up to the Advisory Board’s
proceedings however during the oral submissions, the learned counsel
for the detenu confined himself to four issues.
Delay in issuing the DO
27] The learned counsel for the detenu submitted that the DMHA failed
to give any explanation for the delay of about three days in issuing or
signing the DO i.e. on 26.5.2017. It was submitted that after having been
satisfied on 23.5.2017 that the detenu should be detained, he only
signed the DO on 26.5.2017 therefore, there was a delay of about three
days. As such there has been a non-compliance with s.6(1) of the Act.
References were made to the cases of Kumaran Suppiah v. Dato’ Noh
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Hj Omar & Anor [2006] 4 CLJ 675; Lee Kew Sang v. Timbalan
Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914; Muhammad
Jailani Kasim v. Timbalan Menteri Keselamatan Dalam Negeri,
Malaysia & Ors [2006] 4 CLJ 687; Re Datuk James Wong Kim Min;
Minister of Home Affairs, Malaysia & Ors v. Datuk James Wong Kim
Min [1976] 1 LNS 129; and Order 41 of the Rules of Court 2012.
28] It was further submitted that the DMHA ought to have issued the
DO on 23.5.2017 itself. He referred to the case of Phua Hing Lai & Ors
v Timbalan Menteri Hal-Ehwal Dalam Negeri, Malaysia & Ors [1990]
1 CLJ 420 where when a provision does not provide a time frame for an
act to be done, the act must be done with all convenient speed. The
case of Timbalan Menteri Hal-Ehwal Dalam Negeri, Malaysia v. Liau
Nyun Fui & Ors [1991] 1 CLJ 458 was also cited in support of the
submission.
29] In response, the learned Federal Counsel submitted that the
detenu misunderstood the DMHA’s averments in paragraphs 7 – 11 of
his affidavit. From those averments the DMHA never averred that he has
arrived at his satisfaction to issue the DO on 23.5.2017. It was further
submitted that there was no such thing as the “satisfaction date” and the
date of the issuance of DO. She referred to the case of Lim Siong v.
Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors [2008]
7 CLJ 40; N Ramakrishnan P Nagasamy v Timbalan Menteri
Keselamatan Dalam Negeri, Malaysia & Ors [2008] 7 CLJ 480; and
M. Sekaran A/L Maniam v Menteri Dalam Negeri & 2 Lagi
(Mahkamah Persekutuan Rayuan Jenayah No: 05-214-10/20(B)).
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30] The impugned averment of the DMHA’s affidavit is reproduced as
follows:
“7. Pada 03-05-2017, saya telah menerima laporan lengkap penyiasatan
yang berkaitan dengan aktiviti Pemohon daripada INSPEKTOR POLIS
ZULKIFLI BIN MOHD DAUD iaitu Pegawai Penyiasat Polis di bawah seksyen
3(3) Akta tersebut. Selanjutnya, pada 23-05-2017 saya telah menerima
laporan di bawah seksyen 5(4) Akta tersebut daripada Pegawai Siasatan
Kementerian Dalam Negeri, DZUL ISWARI BIN MOHD JAAFAR. Daripada
penilitian saya terhadap kedua-dua laporan tersebut, saya telah berpuas hati
bahawa Pemohon pernah ada kaitan dengan aktiviti yang berhubungan
dengan atau yang melibatkan dengan pengedaran dadah berbahaya seperti
yang ditakrifkan di bawah seksyen 2 Akta Dadah Berbahaya 1952 (Akta 234)
iaitu mengedar dadah jenis Heroin seperti yang tersenarai di bawah Jadual
Pertama, Bahagian III, Akta Dadah Berbahaya 1952 (Akta 234). Penglibatan
Pemohon telah memudaratkan ketenteraman awam dan tindakan di bawah
Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 perlu
diambil ke atas Pemohon.
8. Seterusnya, saya telah membuat satu Perintah Tahanan di bawah
seksyen 6(1) Akta tersebut bertarikh 26-05-2017 terhadap Pemohon yang
telah mengarahkan supaya Pemohon ditahan bagi tempoh dua (2) tahun
mulai 26-05-2017 di Pusat Pemulihan Akhlak Simpang Rengam, Johor. Saya
tidak dapat menzahirkan fail kes berkenaan aktiviti Pemohon kerana
berpendapat dengan berbuat demikian adalah bertentangan dengan
kepentingan negara menurut seksyen 14 Akta tersebut dan Perkara 151(3)
Perlembagaan Persekutuan. Oleh yang demikian, saya menuntut
keistimewaan dan perlindungan di bawah peruntukan-peruntukan undang-
undang tersebut.”.
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31] Nowhere did the DMHA aver that he has arrived at his satisfaction
on 23.5.2017 and only dated the DO on 25.5.2017. I could not find
anywhere suggesting the same. In paragraph 10 the DMHA averred the
following:
“10. Selanjutnya, atas arahan saya, pegawai saya bernama MOHD
ADZHARUDDIEN BIN BAHAROM telah menyediakan Perintah Tahanan
tersebut, pernyataan mengenai alasan-alasan yang atasnya Perintah itu
dibuat dan pengataan-pengataan fakta yang atasnya Perintah itu diasaskan.
MOHD ADZHARUDDIEN BIN BAHAROM kemudiannya telah melaksanakan
arahan saya tersebut dengan menyediakan 3 salinan Perintah Tahanan
tersebut dan 3 salinan pernyataan mengenai alasan-alasan yang atasnya
Perintah itu dibuat dan pengataan-pengataan fakta yang atasnya Perintah itu
diasaskan untuk semakan saya. Saya kemudian telah meneliti semula
dokumen-dokumen tersebut dan saya berpuas hati bahawa ia menepati
dengan kehendak saya dan kepuasan hati saya sebelum ini iaitu Pemohon
perlu ditahan selama dua (2) tahun mulai 26-05-2017 di Pusat Pemulihan
Akhlak Simpang Rengam, Johor kerana Pemohon pernah ada kaitan dengan
aktiviti yang berhubungan dengan atau yang melibatkan dengan pengedaran
dadah berbahaya seperti yang ditakrifkan di bawah seksyen 2 Akta Dadah
Berbahaya 1952 (Akta 234) iaitu mengedar dadah jenis Heroin seperti yang
tersenarai di bawah Jadual Pertama, Bahagian III, Akta Dadah Berbahaya
1952 (Akta 234) dan adalah perlu bagi ketenteraman awam supaya Pemohon
ditahan. Ekoran daripada itu, saya telah menurunkan tandatangan saya pada
ketiga-tiga salinan Perintah Tahanan tersebut serta meletakkan tarikh pada
ruangan Perintah Tahanan tersebut diperbuat.”.
32] It is clear that the DMHA complied with the requirements stipulated
under s.6(1) of the Act. The DO was signed on the same day with the
commencement date of the detention. There is no requirement in s.6(1)
of the Act to mandate the DMHA to state on what day/date he arrived at
his satisfaction before he decided to issue the DO.
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33] I would be able to appreciate the learned counsel for the detenu’s
argument if the commencement date is subsequent to the date of
issuance. But that is not the case here. Therefore, the case of Kumaran
Suppiah (supra) he relied on is not relevant for this purpose. This issue
was considered in Lim Siong (supra) and N Ramakrishnan (supra) and
I have no reasons to depart.
34] Perhaps I should mention before I move to the next issue as
regards the issue whether an explanation should be given for the gap
between the date of the DO and its commencement date I wish to refer
to a later Federal Court decision after Kumaran Suppiah (supra) where
the Federal Court opined that there was no legal obligation to explain the
delay. In Timbalan Menteri Keselamatan Dalam Negeri, Malaysia &
Ors v. Arasa Kumaran [2006] 6 MLJ 689 at p.700 Augustine Paul FCJ
said as follows –
“There is one other matter that requires to be addressed. While this case was
awaiting judgment by us learned counsel drew our attention to the recent
judgment of this court in Kumaran Suppiah v Dato’ Noh bin Haji Omar & Ors
[2006] 6 MLJ 393 (Federal Court Criminal Appeal No 05-38-2006 (J)) where it
was held that when a detention order is made to take effect subsequent to the
date on which it was made the delay must be explained. He said that as there
was a delay in the date of commencement of the detention order in this case
the delay must be explained. As that was not done the appeal must be
dismissed. However when we sat to hear the argument on this issue, learned
counsel withdrew the objection. It must be observed that when the detention
order was made in this case there was no legal obligation on the appellants to
explain the delay in the effective date of the detention order. Accordingly, it is
our view that learned counsel took the correct stand in withdrawing the
objection.”.
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35] It is to be noted however that the DO in Kumaran Suppiah (supra)
was signed on 17.12.2004 and the date of commencement was
26.12.2004 while in Arasa Kumaran (supra) the DO was signed on
5.11.2004 and to commence from 6.11.2004. I believe a one-day gap
does not make much difference and would not attract the application of
s.54(2) of the Interpretation Act.
Proceedings at the Advisory Board was flawed
36] The learned counsel for the detenu submitted that the detenu and
his counsel were asked to leave the proceedings after making the
submission and that the detenu and his counsel were not allowed to
hear the submission by the Conducting Officer hence, was not able to
rebut the same. And the Conducting Officer should be the one to claim
the protection and privilege for non-disclosure under s.14 of the Act, it
was not for the Secretary to say so. Since there was no affidavit affirmed
by the Conducting Officer the proceedings was flawed and will render
the detention illegal.
37] He referred to Article 151 of the Federal Constitution which
provides for opportunity to be given to the detenu to make
representations and that the Board must consider any representations
made by him. S.10 of the Act too provides that the Board shall consider
his representations. Thus, there was no effective representations from
the detenu. References were made to the cases of Hoo Thian Siong v.
Public Prosecutor [1988] 1 CLJ (Rep) 583; Kamaruzaman Bin
Yahaya v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1997]
5 MLJ 256; Lim Kui Hin v. Public Prosecutor [2012] MLJU 1595; and
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Vimal Raj A/L Kumarasamy v. Menteri Dalam Negeri & Ors [2017]
MLJU 2070.
38] The learned Federal Counsel in her submission referred to rule
10(2) of the Dangerous Drugs (Special Preventive Measures) (Advisory
Board Procedure) Rules 1987 (“Rules 1987”) which gives the discretion
to the Advisory Board to exclude the detenu or his counsel or both from
hearing the evidence of any witness or whether any document or other
information should be made available to them. This discretionary power
is subject to considerations of security.
39] Here, the Secretary has deposed that for reasons of national
interest the Board decided to hear the Conducting Officer’s presentation
of the case in the absence of the detenu and his counsel or else the
identities of the witnesses will be disclosed when the statements were
read out. And the evidence contained in the documents produced could
not be disclosed to the detenu and his counsel. Therefore, she has
rightly claimed the privilege and the protection under s.14 of the Act. In
support thereof the learned Federal Counsel cited the cases of
Manimaran A/L Veloo v. Timbalan Menteri Keselamatan Dalam
Negeri, Malaysia and Anor [2007] MLJU 398; Sugumaran A/L
Murugasoo v. Timbalan Menteri Keselamatan Dalam Negeri,
Malaysia & Ors [2008] MLJU 399; Yap Chian Loon v. Timbalan
Menteri Keselamatan Dalam Negeri, Malaysia & Anor [2007] MLJU
399; and Article 151(3) of the Federal Constitution.
40] Rule 10 of Rules 1987 provides as follows:
“10. Procedure where no express provision.
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(1) Subject to the provisions of the Act and these Rules, where any matter
is not expressly provided for by these Rules, the Board may regulate its own
procedure.
(2) In particular, but without prejudice to the generality of paragraph (1),
the Board may, having regard to considerations of security, in its discretion
determine-
(a) whether the evidence of any witness should be heard in the
presence of a detained person or his representative or both;
(b) whether any police officer should be required to appear before
the Board in the presence of a detained person or his
representative, or both; and
(c) whether any document or other information should be made
available or disclosed to a detained person or his representative,
or both.”.
41] I do not see any ambiguity in this provision which would justify a
different interpretation to be given or to read words into it. In Tan Weng
Chiang v PP [1992] 2 MLJ 625 the court dealt with r. 10(2) of the
Essential (Security Cases) Regulations 1975. Mohd. Azmi SCJ at page
630 said,
“Where the meaning of words in the statute is plain and unambiguous, judges
should not invent fancy ambiguities. This principle, though enunciated by Lord
Diplock in Duport Steels Ltd & Ors v Sirs & Ors at p 541 in legislation
involving industrial relation, is in our view equally appropriate, subject to the
golden rule, in legislation made under emergency power to curtail or modify
existing legislation on the power and jurisdiction of the court in criminal law
and procedure. Clear and unambiguous words must exist in such modification
or exclusion of the existing powers and jurisdiction of the court. In interpreting
19
reg 10(2), the duty of the court is therefore limited to interpreting the words
used by the legislature.”.
42] Clear expressed words are employed giving the Advisory Board
the discretion to exclude the detenu and/or his representative (counsel)
when any police officer or witness testifies during the hearing but of
course subject to security considerations. Here, the Secretary has
affirmed an affidavit dated 8.12.2017 where in paragraph 4 she deposed
that the detenu and his counsel were requested to leave when the
Conducting Officer presented his case. As the Rules 1987 gives the
discretion to the Advisory Board, the Secretary would be the proper
person to affirm the affidavit when the privilege and the protection under
s.14 of the Act and Article 151(3) of the Federal Constitution are sought.
43] This issue was considered in Manimaran (supra) and Yap Chian
Loon (supra) and I have no reasons to disagree. No doubt rule 10 deals
with procedure but it is not the kind of procedure directing, imposing or
specifying what the Advisory Board should do where if there is any
breach it would invite the writ to be issued. However, if the security
consideration is lacking then that may amount to non-compliance of
procedure or rather mala fide.
No investigation under s.3(1) and (3) of the Act
44] The detenu alleged that there was no investigation carried out by
the IO as required under s.3(1) and (3) of the Act on him and other
witnesses hence, the complete report of the investigation which the IO
20
submitted to the IQO and the DMHA was a farce and defective and it
follows that the DO is equally defective. Therefore, this renders his
detention unlawful. He insisted that he never admitted to any
involvement in activities relating to drug or drug trafficking and this was
made known to the IO when the IO recorded his statement. He
substantiated this by exhibiting his statement which was recorded by the
IO under s.4(4) of the Act (exhibit “PP-1”).
45] The learned counsel for the detenu pointed out that the IO merely
collected and examined intelligence statements and documents and the
IO then deposed that based on the detenu’s statement and documents
related to drug trafficking activities the police have sufficient evidence
that the detenu has been associated with trafficking in heroin. All these,
the learned counsel submitted, were not investigation as envisaged in
s.3(1) and (3) of the Act and therefore the report which the IO sent up to
the IQO and the DMHA was not a complete report of the investigation.
He referred to Kamar Azmen Bin Abd Rahman v. Ketua Polis Negara
& Ors [2016] 6 MLJU 1151 and Bunya AK Jalong v Public
Prosecutor [2015] MLRA 491.
46] The learned Federal Counsel in her opposing argument, submitted
that s.4(4) of the Act employs the word “may” with regard to the manner
of the investigation. Nevertheless, the IO has deposed that he had
obtained evidence from witnesses and such evidence and other
intelligence information cannot be disclosed to the detenu as the
witnesses could be exposed and the intelligence information was
confidential. The IO claimed protection under s.14 of the Act and Article
151(3) of the Federal Constitution.
21
47] In addition the learned Federal Counsel referred to L Rajanderan
R Letchumanan v. Timbalan Menteri Dalam Negeri, Malaysia & Ors
[2010] 7 CLJ 653 where the Federal Court among others, held that the
manner on conducting the investigations has no direct link with the DO.
She also referred to the Federal Court decision in Mohd Faizal Haris v
Timbalan Menteri Dalam Negeri, Malaysia [2005] 4 CLJ 613.
48] She further submitted that Bunya AK Jalong v Public
Prosecutor (supra) discussed investigation for purposes of prosecution
as opposed to preventive detention.
49] For the purposes of this argument what is required for the DMHA
to consider before issuing the DO is the complete report of investigation
under s.3(3) of the Act. The IO in his affidavit affirmed on 29.8.2017
(paragraphs 4 – 10) and 8.12.2017 (paragraphs 4 – 5) stating that he
had –
(a) recorded a statement from the detenu on 10.4.2017;
(b) recorded statements from other witnesses; and
(c) obtained documents relating to the detenu’s drug trafficking
activities.
If all these do not amount to an investigation, I do not know what else
would. In Lock Wee Kock v Menteri Hal Ehwal Dalam Negeri & Anor
[1993] 3 MLJ 691 at page 694 Eusoff Chin SCJ (as he then was) said
as follows:
22
"These provisions give the police the power to detain an arrested person in
police custody for a period not exceeding 60 days. During this period, the
police investigating officer must complete his investigation by examining and
recording statements from the arrested person and others acquainted with the
facts and circumstances of the case, and to collect documents or other things
material to the investigation, complete his report and submit one copy of it to
the inquiry officer appointed under s 5 of the Act and one to the Minister.".
In Chong Kim Loy v. Timbalan Menteri Dalam Negeri, Malaysia &
Anor [1989] 3 MLJ 121 at p.125 Edgar Joseph Jr J (as he then was)
had this to say,
“The third point taken on behalf of the applicant was this: it was said that
although the applicant's wife had, by para 7 of her affidavit affirmed to on 11
October 1988 (en 2) filed in support of the motion herein, stated that 'no
investigations whatsoever had been carried out by the police or anyone during
the applicant's detention at the Muar police station', the police officer making
the investigation for purposes of submitting a complete report to the inquiry
officer and the Minister under the provisions of s 3(3) had not gone on affidavit
to deny the allegation with the result that the applicant's continued detention
was unlawful.
For convenience, I shall reproduce s 3(3); it reads as follows:
The police officer making an investigation pertaining to a person arrested and
detained under this section shall cause a copy of the complete report of the
investigation to be submitted–
(a) to an inquiry officer appointed under subsection (1), of section 5; and
(b) to the Minister,
within such period as may be prescribed by the Minister by regulations made
under this Act.
23
A scrutiny of the record provided shows that Senior Assistant Commissioner
of Police Suleiman bin Mohd Hassan, the Chief Police Officer, Johore, and, at
the material time the Deputy Director Anti-Narcotics Division, Police
Headquarters, Bukit Aman, Kuala Lumpur, and the officer designated by the
Inspector General of Police to receive reports of arrests and detentions under
s 3 of the Act and to report the circumstances of the same to the Minister, had
by para 3 of his affidavit affirmed to on 9 November 1988 (en 10) categorically
stated that, and I quote him:
Investigations were carried out by the police within the period permitted under
s 3(3) of the Act and upon completion, on 30 July 1987, the police submitted
a detailed report of the investigations relating to the conduct and activities of
the applicant to the inquiry officer and to the Ministry of Home Affairs.
In my view this puts paid to this particular ground advanced on behalf of the
applicant.”.
In L Rajanderan R Letchumanan (supra) Abdull Hamid Embong FCJ
referring to s.6(1)(a) of the Act at p.661 had this to say,
“The manner on conducting the investigations and arrests at this stage, is
neither a condition precedent nor a matter which has a direct link with the
detention order and thus not a ground for judicial review.”.
50] Here, the IO did conduct the investigation and put up the complete
report of the investigation which was duly submitted to the IQO and the
DMHA. Thus, I do not see any non-compliance.
24
Delay in forwarding Form I
51] The learned counsel for the detenu pointed out that the OIC PPA
averred that he received the documents on 27.05.2017 and forwarded
two copies of Form I and the note to the Secretary who confirmed
receiving them on 30.05.2017. There was a delay of about three days.
Rule 3(4) of Rules 1987 provides that the Form I should be forthwith
forwarded to the Secretary but here it was not so, hence there ought to
be an explanation. The case of SK Tangakaliswaran Krishnan v.
Menteri Dalam Negeri, Malaysia & Ors [2009] 6 CLJ 705 and Menteri
Dalam Negeri & Ors v Gopal a/l R Subramaniam [2017] 4 MLJ 1 were
referred to.
52] The learned Federal Counsel pointed out that this issue was not
pleaded nevertheless she argued that the detenu was not prejudiced.
She relied on Timbalan Menteri Keselamatan Dalam Negeri, Malaysia
v. Ong Beng Chuan [2006] 4 CLJ 703.
53] In relation to the provisions in the Rules 1987, the detenu in his
affidavit in support dated 10.7.2017 pleaded as follows:
“13. Setelah saya dinasihati oleh peguambela saya, saya menyatakan
bahawa saya tidak dimaklumkan bahawa saya berhak untuk membuat
rayuan (representasi) kepada Lembaga Penasihat dan justeru itu ia
adalah satu pelanggaran kepada Seksyen 9(1) Akta berkenaan serta
kaedah 3, 4, 5 dan 6 Kaedah-Kaedah Dadah Berbahaya (Langkah-
Langkah Pencegahan Khas) (Prosedur Lembaga Penasihat) 1987.
15. Saya juga menyatakan bahawa perintah tahanan saya yang
diserahkan kepada saya, hak-hak yang diperuntukkan di bawah Akta
25
tersebut, Kaedah-Kaedah Dadah Berbahaya (Langkah-Langkah
Pencegahan Khas) (Prosedur Lembaga Penasihat) 1987 dan
Perlembagaan Persekutuan tidak diikuti. Saya juga menyatakan
bahawa saya tidak diserahkan dengan borang-borang yang mencukupi
untuk tujuan representasi oleh pegawai PPA Simpang Rengam. Saya
sesungguhnya menyatakan bahawa telah berlaku pelanggaran
terhadap Perkara 151 Perlembagaan Persekutuan.
16. Saya juga menyatakan bahawa tangkapan saya serta Penahanan
selanjutnya di PPA Simpang Renggam adalah tidak sah di sisi undang-
undang dan tidak teratur di atas alasan-alasan berikut: -
….
(c) terdapat pelanggaran terhadap Kaedah 3, 4, 5 dan 6 Kaedah-
Kaedah Dadah Berbahaya (Langkah-Langkah Pencegahan
Khas) (Prosedur Lembaga Penasihat) 1987; saya tidak
diberitahu tentang hak representasi dan tidak diserahkan
dengan dokumen-dokumen yang perlu.”.
In his affidavit in reply dated 15.11.2017 his averments were confined to
the hearing before the Advisory Board.
54] Rule 3(4) of the Rules 1987 provides as follows:
“(4) The Officer in Charge of the Police District where the detention order
was served or the Officer in Charge, as the case may be, who receives any
written representation in Form I shall forthwith forward such representation to
the Secretary.”.
26
55] Nowhere in his affidavits he made specific allegation with regard to
the delay. I am mindful of what was said by Azmi LP in Karam Singh
(supra) at p.138 quoting from Basu,
“… that it is for the authority who has detained the detainee to show that the
latter has been detained in exercise of a valid power.”.
56] In Mat v. Inspector-General of Police, Malaysia & Anor [1974] 1
MLJ 131 at p.132 Azmi LP had occasion to deal with this issue and held
as follows:
“It was also contended that the copy delivered to the appellant was not signed
by the Minister. It would have been better if the copy handed to the appellant
had also been signed by the Minister but the fact that the copy was not signed
or certified to be true, in our view, in the circumstances of the case, did not
make the service ineffective. There is for instance no allegation that the
copy handed over to the appellant was different from the original signed
by the Minister. We would therefore conclude that the cancelling order has
been properly served and therefore effective. It would appear from the
affidavit of A.S.P. Haji Junid that he had served Tan Sri Ghazali's restriction
order in the same manner. There is, however, no complaint in the service
of this restriction order. Since in our view the cancelling order had been
properly served the second part of the first ground must necessarily fail.
Similarly the second ground of appeal also failed.”.
(Emphasis added)
57] However, I am also aware of the decision of the Supreme Court in
Ng Hong Choon v. Timbalan Menteri Hal Ehwal Dalam Negeri &
Anor [1994] 3 MLJ 285 where Wan Yahya SCJ at p.293 held as follows:
27
“Even in normal rules on pleadings, a party may raise a point of law at the trial
itself even though it had not been specifically pleaded. See Independent
Automatic Sales Ltd v Knowles & Foster [1962] 3 All ER 27; [1962] 1 WLR
974.
Under the circumstances, we consider that the applicant was sufficiently
entitled to raise an issue of law as one of his grounds in respect of an
allegation of non-compliance with the mandatory provisions of the Act.”.
58] The OIC PPA averred that he forwarded the relevant documents
on the same day i.e. 27.05.2017 to the Secretary. However, the
Secretary only received them on 30.05.2017.
59] The word ‘forthwith’ was extensively discussed by the Federal
Court in Gopal (supra) and reference was made to Maxwell in
Interpretation of Statutes (11th Ed) at p 341. Therein a passage from
the judgment of Cockburn CJ Queen v The Justice of Berkshire (1879) 4
QBD 469 was quoted. The learned CJ said as follows:
“The words forthwith and immediately have the same meaning. They are
stronger than the expression within a reasonable time and imply prompt,
vigorous action, without any delay and whether, there has been such action is
a question of fact having regard to the circumstances of the particular case.”.
Prasad Abraham FCJ delivering the judgment concluded at p.10 by
holding as follows –
“Having considered all the cases and the comments of the learned authors
referred to aforesaid, we would hold that the word ‘forthwith’ in s 10(2) of
28
the POCA is to be construed as ‘as soon as reasonably practicable’ having
considered all the facts of the case and not ‘then and there’ or ‘immediate’.
We would direct that in all applications for habeas corpus grounded on s
10(2) of the POCA, revolving around the word ‘forthwith’ the court should
approach the said applications in the following manner viz:
(a) if the facts of the case show that there was a delay in the officer having
custody of the applicant in serving a copy of the finding of the inquiry
officer on that person, the court must then look at the affidavit of the
respondent to ascertain whether the respondent has explained the
delay sufficiently; and
(b) the court then must consider in the circumstances of the case and the
explanation for the delay, whether the officer acted without
unreasonable delay and as soon as practicable.”.
So this involves issues of facts as opposed to law, the need to explain to
my mind will only arise when there is a complaint and it is factual. As I
have adverted to earlier there is no complaint specifically raised by the
detenu in his affidavits as far as the three days’ lapse was concerned.
He has every opportunity to single it out when he affirmed an affidavit in
reply on 15.11.2017. Had he raised it surely the OIC PPA would
respond.
60] HT Ong CJ in Karam Singh (supra) at p.141 stated as follows –
“In this appeal the first of the issues raised concerns the onus of proof. It was
urged that, on the proper interpretation of clause (2) of article 5 of the
Constitution, the party to satisfy the court that the detention is lawful is the
respondent. With respect, I take the same view as Suffian F.J. who has dealt
29
with this question at length. Paraphrasing what was said by Lord Macmillan in
Liversidge v Anderson [1942] AC 206 (at p 258), in my opinion, production by
the respondent Minister of an order of detention by him, ex facie regular and
duly authenticated, constitutes a peremptory defence to any complaint of
unlawful detention and places on the complainant the burden of
establishing that the order is unwarranted, defective or otherwise
invalid.”.
(Emphasis added)
61] In Tan Chin Haw & 2 Ors v. Menteri Hal Ehwal Dalam Negeri,
Malaysia & Anor [1994] 1 LNS 157 T. Selventhiranathan JC (as he
then was) had this to say,
“Section 366 of the CPC requires every application to bring up before the
Court a person alleged to be illegally or improperly detained in custody to be
supported by affidavit stating where and by whom the person is detained and,
so far as they are known, the facts relating to such detention, with the object
of satisfying the Court that there is probable ground for supposing that such
person is detained against his will and without just cause [emphasis mine].
Surely Counsel for the applicant cannot be serious in contending that the
Supreme Court intended by that single sentence in Karpal Singh to displace
the onus upon the applicant of first satisfying the Court under that section of
the existence of facts [emphasis mine] giving probable ground for supposing
that the applicant is detained against his will and without just cause on the
mere ipse dixit of the applicant or his Counsel in general terms that the
detention of the applicant is in contravention of the law. If that contention were
sustainable, there would be no need for applicants to file copious affidavits in
applications for orders of habeas corpus enumerating facts relating to a
breach of, or non-compliance with, the law in question where a single
sentence would suffice to place the burden on the detaining authority to show
that the detention is lawful in all procedural respects without first being
apprised of the facts upon which the application is purportedly based.”.
30
62] I am in agreement with the views expressed above. Lest I am
wrong and that the burden still lies with the OIC PPA to state how the
relevant documents were forwarded, who served them on the Secretary
and why the documents reached the Secretary on 30.05.2017, a gap of
three days to my mind is still within the meaning of ‘forthwith’ bearing in
mind 27.05.2017 was a Saturday and 30.05.2017 was a Tuesday.
Saturday is a public holiday for both Putrajaya and Johor whilst Sunday
is a public holiday for Putrajaya but a working day for Johor. The only
common working day for both States is Monday. The Form I and the
note were delivered on the next day.
Conclusion
63] Based on the reasons discussed I hold that the detention of the
detenu under s.6(1) of the Act is valid and hereby dismiss the application
for a writ of habeas corpus.
(DATO’ SRI TUN ABD MAJID BIN DATO’ HAJI TUN HAMZAH) Judicial Commissioner
High Court Malaya Shah Alam
Date: 28 FEBRUARY 2018
31
Counsel Solicitors:-
For the Applicant : Danial bin Amir
MESSRS ZAFRI & PARTNERS Advocates & Solicitors
SA 09-06, Menara Paragon,
Persiaran Bestari, Cyber 11,
63000 Cyberjaya
Selangor
Ruj :
Tel : 03-8689 4160
Fax : 03-8706 4161
For the Respondents : Hemy Annerina PEJABAT PENASIHAT UNDANG-UNDANG, KEMENTERIAN DALAM NEGERI Aras 5, Blok D1, Kompleks D,
Pusat Pentadbiran Kerajaan Persekutuan
62546 Putrajaya
Tel : 03-8886 8575
Faks : 03-8889 4042