Abdullah Bin Tubon v 1. Timbalan Menteri dalam Negeri, Malaysia (BA-25-79-12/2018)

1.

PENGARAH KANAN PUSAT PEMULIHAN AKHLAK

KERAJAAN MALAYSIA … RESPONDENTS JUDGMENT (Substantive Judicial Review Application)

This judicial review application (This Application) concerns a direction (Direction) issued by the Deputy Minister of Home Affairs (1st Respondent) under s 7(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDSPMA) to suspend a detention order of the applicant (Applicant). The novel issue that arises in This Application is whether there is a mandatory procedural requirement under s 7(1) read with s 6(3)(f) DDSPMA for the 1st Respondent to state specifically the police station for the Applicant to report himself and to sign the police register book (Police Register) on every Monday between 8.00 am. and 6.00 pm. during the enforcement of the Direction. 2

The Applicant, a former police officer, had been arrested and detained under s 3(1) DDSPMA on the ground that he was believed to have been or was associated with trafficking in dangerous drugs.

On 13.12.2017, the 1st Respondent issued a detention order under s 6(1) DDSPMA to detain the Applicant in a rehabilitation center in Simpang Rengam, Johore or any other place as directed from time to time, for a period of two years from 13.12.2017 (Detention Order).

4.

the operation of the Detention Order is suspended from 20.9.2018; and

the Applicant is required to report to the Officer in Charge of the Police District, Hulu Langat, Selangor (Hulu Langat’s OCPD) before 11 pm., 20.9.2018 to be subject to the following restrictions and conditions -

the Applicant shall reside in Mukim Kajang, Hulu Langat District,

the Applicant shall not transfer his residence to any other area without the written authority of the Chief Police Officer of Selangor (Selangor’s CPO); 3

the Applicant shall not leave the area to which he is restricted without the written authority of Selangor’s CPO;

the Applicant shall at all times keep Hulu Langat’s OCPD notified of the Applicant’s residential address;

the Applicant shall report himself and sign the Police Register at a nearby (berhampiran) police station on every Monday between 8.00 am. and 6.00 pm. [Paragraph (e) Direction];

the Applicant shall remain in his house in the area to which he is restricted from 8.00 pm. until 6.00 am. unless he obtains special permission from Hulu Langat’s OCPD;

an electronic monitoring device may be attached to the

the Applicant shall keep the peace and be of good behavior. C. This Application

The Applicant had obtained leave from my learned predecessor to file This Application for, among others, an order of certiorari to quash the Direction. D. Scope of judicial review of directions to suspend detention orders under s 7(1) DDSPMA

Section 11D(a) to (d) DDSPMA has provided a wide definition of “judicial review” which includes an application for an order of certiorari. 4

The scope of the court’s power of judicial review of directions to suspend detention orders under s 7(1) DDSPMA is circumscribed by s 11C DDSPMA as follows: “Judicial review of act or decision of Yang di-Pertuan Agong and Minister 11C(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.” (emphasis added). Premised on s 11C DDSPMA, the court can only allow a judicial review application of a direction to suspend a detention order under s 7(1) DDSPMA (by issuing a certiorari order to quash the direction) if the Minister has failed to comply with a mandatory procedural requirement imposed by DDSPMA. I refer to the following two judgments of the Federal Court delivered by Augustine Paul FCJ -

it is decided in Muhammad Jailani Kasim v Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors [2006] 4 CLJ 687, at [8] - “[8] It follows that if a detention is procured by steps which are not regular the court is empowered to set aside the detention order. It means that every step which is necessary for the making of a detention order is subject to review by the court. The effect of a breach of such procedural requirements had been considered in 5 a number of cases. See, for example, Puvaneswaran v. Menteri Hal Ehwal Dalam Negeri Malaysia & Anor [1991] 2 CLJ 1199; [1991] 3 CLJ (Rep) 649; Low Teng Hai v. Menteri Dalam Negeri, Malaysia & Others [1992] 2 CLJ 1037; [1992] 2 CLJ (Rep) 816 and Aw Ngoh Leang v. Inspector General of Police [1993] 1 CLJ 373. It has been recognised in these cases that a procedural requirement may be mandatory or directory. A mandatory requirement is one that goes to the root of the matter and is of direct relevance to the detention order. The breach of a mandatory requirement will render the detention order invalid without the need to establish any prejudice. The breach of a procedural requirement which is directory will not be significant provided that there is substantial compliance with the rules with no prejudice having been suffered by the detainee. However it must be observed that the power of the court to intervene is limited to only matters of compliance of the [DDSPMA] which reads as follows: … It is clear that the section restricts judicial review to only questions on compliance with any procedural requirement governing any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power. Such procedural requirements can only be ones that will go to the root of the matter and be of direct relevance to the making of the detention order. The section only refers to a question of compliance with procedural requirements without subjecting it to any prejudice having been suffered. The test, therefore, in determining whether a breach can be subjected to judicial review is whether it is in compliance with any procedural requirement governing any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with the Act without the need to establish any prejudice. Such a determination will be greatly facilitated, though not decisively, by a consideration of the effect of the statutory 6 provision that has been breached, that is to say, whether it is mandatory or directory in nature.” (emphasis added); and

Muhammad Jailani Kasim has been followed in Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors v Ong Beng Chuan [2006] 4 CLJ 703, at [6].

A direction to suspend a detention order of any person pursuant to s 7(1) DDSPMA made by a “Minister” (defined in s 2 DDSPMA to mean the Minister charged with the responsibility for internal security) constitutes a deprivation of the person’s personal liberty which is provided in Article 5(1) of the Federal Constitution. Hence, the Minister has the legal and evidential burden to prove that the Minister’s direction to suspend a detention order has complied with all the mandatory procedural requirements as provided in DDSPMA. E. Whether s 6(3) DDSPMA provides for mandatory procedural requirements

The Statement filed in support of This Application pursuant to O 53 r 3(2) of the Rules of Court 2012 had averred that the 1st Respondent had breached many procedural requirements under DDSPMA in issuing the Direction. However, the Applicant’s learned counsel, Encik Najib Bin Zakaria, in his written and oral submission, had only advanced one ground in support of This Application. According to Encik Najib, when the 1st Respondent issued the Direction, the 1st Respondent had breached a mandatory procedural requirement provided in s 6(3)(e) DDSPMA. This is because, as contended by Encik Najib, Paragraph (e) Direction did not 7 specify which police station for the Applicant to report himself and to sign the Police Register.

The sole issue which arises for the determination of this court is whether there is a mandatory procedural requirement under s 7(1) read with s 6(3)(f) DDSPMA for the 1st Respondent to state specifically the police station for the Applicant to report himself and to sign the Police Register. This is a novel question because Encik Najib and Encik Muhamad Safuan Bin Azahar [the learned Federal Counsel who appears for all the respondents in This Application (Respondents)] are not able to find any previous Malaysian case which has decided on this issue. My own research is also not successful in revealing any previous Malaysian case regarding this question.

I reproduce below the relevant parts of ss 6 and 7 DDSPMA: “Power to order detention and restriction of persons 6(1) Whenever the Minister, after considering -

the complete report of investigation submitted under subsection 3(3); and

the report of the Inquiry Officer submitted under subsection 5(4), is satisfied with respect to any person that such person has been or is associated with any activity relating to or involving the trafficking in dangerous drugs, the Minister may, if he is satisfied that it is necessary in the interest of public order that such person be detained, by order (hereinafter referred to as a “detention order”) direct that such person be detained for a period not exceeding two years. … 8

If the Minister is satisfied that for the purpose mentioned in subsection (1) it is necessary that control and supervision should be exercised over any person or that restrictions and conditions should be imposed upon that person in respect of his activities, freedom of movement or places of residence or employment, but for that purpose it is unnecessary to detain him, he may make an order (hereinafter referred to as a “restriction order”) imposing upon that person (hereinafter referred to as a “restricted person”) all or any of the following restrictions and conditions:

that he shall be subject to the supervision of the police for any period not exceeding two years;

that he shall reside within the limits of any State or any Federal Territory or any area thereof specified in the restriction order;

that he shall not transfer his residence to any other area without the written authority of the Chief Police Officer of the State or Federal Territory concerned;

that except in so far as may be otherwise provided by the restriction order, he shall not leave the area within which he resides without the written authority of the Chief Police Officer of the State or Federal Territory concerned;

that he shall at all times keep the Officer in Charge of the Police District in which he resides notified of the house or place in which he resides;

that he shall at such time or times as may be specified in the restriction order present himself at the nearest police station;

that he shall remain within doors, or within such area as may be defined in the restriction order, between such hours as may be 9 specified in the restriction order, unless he obtains special permission to the contrary from the Officer in Charge of the Police District;

that except in so far as may be otherwise provided by the restriction order, he shall not enter any area specified in the restriction order; (ha) that he shall use only equipment and facilities of communication which are declared to and approved by the Chief Police Officer of the State or Federal Territory of the area in which he is required to reside as may be provided in the restriction order. (hb) that except so far as may be otherwise provided by the restriction order, he shall not access the internet; (hc) that he shall be attached with an electronic monitoring device;

that he shall keep the peace and be of good behaviour;

that he shall enter into a bond, with or without sureties as the Minister may direct and in such amount as may be specified in the restriction order, for his due compliance with the restrictions and conditions imposed on him by the restriction order. …

The Minister may, from time to time, by notice in writing served on a person who is the subject of a restriction order, vary, cancel or add to any restrictions or conditions imposed upon that person by that order, and the restrictions or conditions so varied and any additional restrictions or conditions so imposed shall, unless sooner cancelled, continue in force for the unexpired portion of the period specified under subsection (4) or under subsection 11A(1). … Suspension of detention orders 7(1) The Minister may, at any time, direct that the operation of any detention order be suspended subject to all or any of the restrictions and conditions which he is empowered by subsection 6(3) to impose 10 by a restriction order, and subject, if the Minister so directs, to the requirement that the person against whom the detention order was made shall enter into a bond as provided in subsection 6(4).

Where a detention order is suspended as aforesaid, subsection 6(6) shall have effect as if the restrictions and conditions on which the detention order is suspended were restrictions and conditions imposed by a restriction order.” (emphasis added).

I am of the considered view that when the Minister issues a direction to suspend a detention order under s 7(1) DDSPMA, the restrictions and conditions provided in s 6(3)(a) to (j) DDSPMA [Section 6(3) Restrictions and Conditions] do not constitute mandatory procedural requirements which must be complied with by the Minister when the Minister decides to issue the direction. This opinion is premised on the following reasons:

the permissive term “may” in s 7(1) DDSPMA makes it clear that the Minister has a discretionary power to direct a suspension of a detention order or otherwise. If the Minister exercises such a discretionary power to direct a suspension of a detention order, the Minister “may” issue the direction “subject to all or any” of Section 6(3) Restrictions and Conditions. Accordingly, based on the wording of s 7(1) DDSPMA, Section 6(3) Restrictions and Conditions cannot constitute mandatory procedural requirements which must be complied with by the Minister before the Minister decides to issue a direction to suspend a detention order; and 11

according to s 7(2) read with s 6(6) DDSPMA, after the Minister has made a direction to suspend a detention order, the Minister has a discretionary power to “vary, cancel or add to” any of Section 6(3) Restrictions and Conditions which have been imposed in the direction. It is therefore clear that Section 6(3) Restrictions and Conditions cannot constitute mandatory procedural requirements under DDSPMA for the Minister’s issuance of a direction to suspend a detention order because the Minister has a discretion to vary, cancel or add to the Section 6(3) Restrictions and Conditions stated in the direction. A mandatory procedural requirement provided by DDSPMA cannot be varied or cancelled by the Minister.

Based on the reasons explained in the above paragraph 12, when the 1st Respondent issued the Direction, the 1st Respondent had a discretionary power to issue the Direction “subject to all or any” of Section 6(3) Restrictions and Conditions. In other words, the 1st Respondent was not mandatorily required to comply with s 6(3)(f) DDSPMA when the 1st Respondent issued the Direction.

Additionally or alternatively, I am satisfied that the 1st Respondent has not breached s 6(3)(f) DDSPMA because the contents of Paragraph (e) Direction have complied with s 6(3)(f) DDSPMA in form and substance. There is nothing in s 6(3)(f) DDSPMA which requires the 1st Respondent to specify a particular police station for the Applicant to report to and to sign the Police Register. 12 F. Court’s decision

In the interest of justice, I have perused all the affidavits of the Applicant and Respondents which have been filed in This Application. I am not able to find any breach of mandatory procedural requirements under DDSPMA by the 1st Respondent when the 1st Respondent issued the Direction.

Premised on the above reasons, the 1st Respondent has discharged the legal and evidential burden to satisfy this court that the Direction is valid. Hence, This Application is dismissed. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 22 NOVEMBER 2019 Counsel for Applicant: Encik Najib Bin Zakaria (Messrs Najib Zakaria, Hisham & Co.) Counsel for Respondents: Encik Muhamad Safuan Bin Azahar (Federal Counsel) (Ministry of Home Affairs)