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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