Adi Helmie Bin a Razak v 1. ) Menteri dalam Negeri (AB-44-8-02/2024)

PENGUASA PUSAT PEMULIHAN AKHLAK

KERAJAAN MALAYSIA ...RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT [1] An application for the issuance of a Writ Habeas Corpus by this Court was made vide a Notice of Motion dated 5.2.2024 by the Applicant, Adi Helmie Bin A Razak, in accordance with the provisions of Art. 5(2) of the Federal Constitution and s.365 of the Criminal Procedure Code. The Applicant is a detainee at Pusat Pemulihan Akhlak Batu Gajah, Perak (“PPA Batu Gajah”) for a period of 2 years from 25.9.2023 as stated in the Detention Order dated the same that was issued by the Deputy Minister of Home Affairs under s.6(1) Dangerous Drugs (Special Preventive Measures) Act 1985 [Act 316] (“the Act”). BACKGROUND OF THE DETENTION ORDER [2] The details of the Applicant’s detention can be found in the Afidavit Jawapan in Encl. 8 duly affirmed by Police Insp. G/25864 Sri Jai Selva Dasan A/L Balakrishnan (“Insp. Jai”), the Investigation Officer of Jabatan S/N W4jamUadj0d66Hzp1bCnw Siasatan Jenayah Narkotik, Ibu Pejabat Polis Kontinjen, Kuantan, Pahang as follows: i. the Applicant was arrested under the provision of s.3(1) of the Act on 29.7.2023 at 1.30 pm at the road in front of Flesh & Blood Barber Company, Jalan Besar, 25000 Kuantan, Pahang; ii. on 30.7.2023 at 1.00 pm, Insp Jai approved the Applicant’s detention for more than 24 hours in accordance with the provision of s.3(2)(a) of the Act; iii. subsequently, Insp Jai on 31.7.2023 at 1.15pm obtained Assistant Superintendent of Police (ASP) Al Taufek Bin Osman’s approval to detain the Applicant for more than 48 hours in accordance with s. 3(2)(b) of the Act; iv. on 2.8.2023 at 9.00 am at Bilik Soal Siasat, Lokap Berpusat Indera Mahkota, Kuantan, Insp Jai met the Applicant to record his statement under s.4 of the Act and the recording was done in accordance with the provisions of the Act without prejudicing the Applicant’s rights (refer to paragraphs 10-12 of Encl. 8); v. on 7.8.2023 as the investigation was unable to be completed within the time frame, Insp Jai reported the Applicant’s arrest and detention to Deputy Superintendent of Police (DSP) Woon Khoon Ming for approval to detain him for more than 14 days. Pursuant thereto, on 7.8.2023, DSP Woon Khoon Ming reported the Applicant’s arrest and detention to Assistant Commissioner of Police (ACP) Shahidi Bin Abdullah for approval to detain the Applicant for more than 14 days in S/N W4jamUadj0d66Hzp1bCnw accordance with s. 3(2)(c) of the Act to complete investigations; vi. then ACP Shahidi Bin Abdullah on 8.8.2023 reported the Applicant’s arrest and detention to the Minister of Home Affairs; vii. in order to complete the investigations on the Applicant, statements were recorded from a number of witnesses under the provision of s.4 of the Act without any inducement, threats or promises. The statements were recorded on 6.8.2023 at 11.30 am, on 9.8.2023 at 10.00 am and 11.45 am, and on 10.8.2024 at 10.00 am. In the mean time, steps were taken to locate additional witnesses for the Applicant’s case (refer to paragraphs 13-14 and 15(h) of Encl. 8); viii. on 17.8.2023 Insp Jai was informed that all efforts to locate more witnesses against the Applicant had been exhausted and therefore, he decided to complete the investigation paper based on all the evidence gathered at that stage; and ix. on 18.8.2023, Insp Jai referred the complete report of his investigation to the Minister of Home Affairs and Inquiry Officer under the provision of s.3(3) of the Act. [3] In Afidavit Jawapan Datuk Seri Dr. Shamsul Anuar Bin Nasarah (Encl. 5), Deputy Minister of Home Affairs at the material time (“the Deputy Minister of Home Affairs”), he confirmed receiving the report from ACP Shahidi Bin Abdullah on 8.8.2023 regarding the Applicant’s arrest and detention. On 18.8.2023, the Deputy Minister of Home Affairs received the complete police report of investigations under s.3(3) of the Act from Insp. S/N W4jamUadj0d66Hzp1bCnw Jai. Then on 5.9.2023, the Deputy Minister of Home Affairs received the report of the Inquiry Officer, Nur Syakirin Binti Yaccob, under s. 5(4) of the Act. [4] Having perused and considering both reports abovementioned, the Deputy Minister of Home Affairs was satisfied that there were reasonable grounds for believing that the Applicant had been involved in or associated with activitities relating to or involving the trafficking of dangerous drugs as defined in s.2 of the Dangerous Drugs Act 1952 [Act 234] (DDA) and that the Applicant was a member of a substantial body of persons who conducted dangerous drugs trafficking activities as provided for under Art. 149 of the Federal Constitution and its Preamble. The Deputy Minister of Home Affairs was further satisfied that the Applicant’s involvement in such activities from the period of early January 2020 until early June 2023 were actions that were prejudicial to public order in Malaysia and therefore, a Detention Order under s.6(1) of the Act was necessary in the interest of public order to be made against the Applicant (refer to paragraph 8 of Encl. 5). [5] The Deputy Minister of Home Affairs subsequently directed his officer, Nur Faziana Binti Zakaria to prepare the Detention Order and the grounds for his detention and allegations of fact on which the Detention Order is based in accordance with the decision of the Deputy Minister of Home Affairs to detain the Applicant for a period of two (2) years at the PPA, Batu Gajah. [6] On 25.9.2023, the Deputy Minister of Home Affairs had perused the documents aforementioned and being satisfied that the documents had been prepared in accordance with his requirements, decision and full S/N W4jamUadj0d66Hzp1bCnw satisfaction, the Deputy Minister of Home Affairs had affixed his signature on the Detention Order and dated the same. Nur Faziana Binti Zakaria had also signed the grounds for detention and allegations of fact which she prepared and attached to the Detention Order (refer to paragraph 10 of Encl. 5 and Exhibit “DSDSAN-1” therein). [7] On 25.9.2023, at 11.30 pm at Lokap Berpusat Indera Mahkota Kuantan, Pahang, Insp. Jai had served and fully explained to the Applicant his rights under the law and the contents of the Detention Order, grounds for detention and allegations of fact under s.6(1) of the Act and gave him three (3) copies of the Borang Representasi Berkaitan Dengan Perintah Tahanan (“the Borang I”) under Kaedah 3(1) Kaedah-Kaedah Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) (Prosedur Lembaga Penasihat) 1987 (“the Rules”). The Applicant was also told by Insp Jai that he had the option of not signing the Detention Order if he did not understand the contents therein. The Applicant admitted he understood the contents of the Detention Order, grounds for detention and allegations of fact and indicated so by affixing his signature and thumb-print on page 2 of the Detention Order. The Applicant also informed Insp. Jai that he would make a representation to the Advisory Board by filling up the Borang I. However, the Applicant left the “ruangan representasi” incomplete as he wanted to think about what he would write in regard to his representation to the Advisory Board. He also indicated on Borang I that he would attend the representation at the Advisory Board hearing. Afterwards, due to security reasons and the late hour upon which the documents were served, the Applicant could only be brought to PPA Batu Gajah, Perak on 26.9.2023 and the Applicant had stayed overnight at the lock-up on 25.9.2023. The Applicant was brought to PPA Batu Gajah as soon as practicable on the next day. S/N W4jamUadj0d66Hzp1bCnw ISSUES TO BE TRIED [8] The Applicant had raised 7 issues to be decided by this Court as follows:

Isu Pertama: Sama ada terdapat kelewatan oleh Pegawai Penyiasat Polis dalam mengemukakan laporan lengkap penyiasatan kepada Timbalan Menteri Dalam Negeri?

Isu Kedua: Sama ada terdapat kelewatan oleh Pegawai Inkuiri dalam mengemukakan laporan siasatan kepada Timbalan Menteri Dalam Negeri?

Isu Ketiga: Sama ada terdapat kelewatan oleh Timbalan Menteri Dalam Negeri dalam mengeluarkan Perintah Tahanan bertarikh 25.9.2023 terhadap Pemohon?

Isu Keempat: Sama ada terdapat ketidakpatuhan kepada Perkara 149 Perlembagaan Persekutuan dibaca bersama Mukadimah Akta 316 bahawa Pemohon bukan merupakan sebahagian daripada sekumpulan besar orang?

Isu Kelima: Sama ada terdapat ketidakpatuhan kepada subseksyen 3(2)(a) Akta 316 iaitu Insp Sri Jai Selva Dasan A/L Balakrishnan telah gagal untuk mempertimbangkan penglibatan Pemohon dengan sekumpulan besar orang semasa membenarkan penahanan lanjutan ke atas Pemohon melebihi dua puluh empat (24) jam?

Isu Keenam: Sama ada terdapat ketidakpatuhan kepada subseksyen 3(2)(b) Akta 316 iaitu ASL Al Taufek bin Osman telah gagal untuk mempertimbangkan penglibatan Pemohon dengan sekumpulan besar orang semasa membenarkan penahanan lanjutan ke atas Pemohon melebihi empat puluh lapan (48) jam?

Isu Ketujuh: Sama ada terdapat ketidakpatuhan kepada subseksyen 3(2)(c) Akta 316? [9] These issues could be summarised accordingly as follows: i. alleged delay in submitting the police investigations report to the Deputy Minister of Home Affairs; ii. alleged delay in submitting the Inquiry Officer’s report to the Deputy Minister of Home Affairs; S/N W4jamUadj0d66Hzp1bCnw iii. alleged delay of the Deputy Minister of Home Affairs in issuing the Detention Order dated 25.9.2023; iv. alleged non-compliance with Art. 149 read with the Preamble of Act 316 in considering whether the Applicant was a member of a substantial body of persons; and v. alleged non-compliance with the provisions of ss. 3(2)(a), (b) and (c) of the Act in considering whether the Applicant was a member of a substantial body of persons. EVALUATION AND FINDINGS OF THE COURT [10] The burden of proof in an application for a Writ of Habeas Corpus lies on the detaining authority throughout that the detention is lawful. In the case of SK Tangakaliswaran Krishnan v. Menteri Dalam Negeri, Malaysia & Ors [2009] 2 MLRA 631 the Court of Appeal referred to Indian cases and also stated: "In my considered judgment the point at stake falls to be resolved with reference to the principles governing the burden of proof in an application for habeas corpus. It is settled law that on an application for habeas corpus the burden of satisfying the court that the detention is lawful lies throughout on the detaining authority. See, Chng Suan Tze v. The Minister of Home Affairs & Ors And Other Appeals [1988] 1 MLRA 486; [1989] 1 MLJ 69. In Mohinuddin v. District Magistrate, Beed AIR [1987] SC 1977, the Supreme Court of India observed as follows in the context of art 22 of the Indian Constitution from which is drawn our art 151: It is enough for the detainee to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This Court on more occasions than one has dealt with the question and it is now wellsettled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detainee was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in art 22(5)." S/N W4jamUadj0d66Hzp1bCnw [11] Therefore, it is trite that in an application for the issuance of a Writ of Habeas Corpus, the Court has to scrutinise whether the issues raised to oppose the detention of an individual i.e detenu, are based on any non-compliance with procedures. However, if no such procedures existed, there is no issue of non-compliance with procedures. In the case of Lee Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914, the Federal Court stated at page 930 that: "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 the 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 requirement 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 non-compliance thereof and only then that the courts should consider whether, on the facts, there has been non-compliance." [Emphasis added] [12] I will now deal with the issues raised by the Applicant in this application as summarised in paragraph 9 above as they mostly overlap with each other. The issues were actually in regard to alleged delays in submitting reports by the Investigation Officer, by the Inquiry Officer, delay in issuing the Detention Order by the Deputy Minister of Home Affairs, failure to properly consider whether the Applicant was a member of a substantial body of persons involved in dangerous drugs trafficking activities and non-compliance with the provisions of s.3 of the Act in considering the said issue. Therefore, I will further shorten this Grounds of S/N W4jamUadj0d66Hzp1bCnw Judgment by taking the first 2 issues together in the discussions on issues of delays in submitting reports to the Deputy Minister of Home Affairs. i. Alleged delay in submitting the police investigations report and the Inquiry Officer’s report to the Deputy Minister of Home Affairs [13] It was submitted that Insp. Jai’s affidavit did not explain the delay of 21 days in submitting his report to the the Deputy Minister of Home Affairs because the chronology of events from 29.7.2023 to 18.8.2023 and reasons given in Encl. 8 were not credible. Additionally, the Inquiry Officer’s report had taken 19 days to be prepared and submitted to the Deputy Minister of Home Affairs. Therefore, it was contended that the Respondents had been in breach of the principle laid out in the case of

Chua Kian Voon v. Menteri Dalam Negeri Malaysia & Ors [2020] 1 MLJ The Federal Court in that case decided that the respondents must prove that the process of preparing the reports was made at “convenient speed” and there must also be credible reasons given on why the reports could not be forwarded at “convenient speed”. [14] The Applicant submitted that the Federal Court in the later case of Dinesh Tanaphil v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356 agreed with Chua Kian Voon’s (supra) decision and did not follow the decision in the case of Tamilarasan Subramaniam v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] 6 MLJ 147 where despite the time of 36 days taken to submit the complete police investigations report, the Federal Court held it was not an inordinate delay as it was still within the time frame of 60 days provided under the law. The Applicant further relied on the decision in Lock Wee Kock v Menteri Hal Ehwal Dalam Negeri & Anor [1993] 3 MLJ 691 in support of his argument that S/N W4jamUadj0d66Hzp1bCnw the Minister possesses the discretion to determine the time-frame for the Investigation Officer and Inquiry Officer to complete investigations into such a case. Reference had been made to s.54(2) of the Interpretation Act 1948 and 1967. [15] The Applicant submitted that in the reasons given by Insp Jai, the last progressive action to record statements of witnesses was on 10.8.2023 (paragraph 15(h)(xiii) and then he merely updated the case file until 18.8.2023. There were no details given of what were the roles and interests of the witnesses that he had been trying to locate. Moreover, Insp. Jai was involved in other narcotics operations and attending briefings which could not be used as reasonable grounds for delay. Additionally, it was argued that the Inquiry Officer’s reason given for the delay from 24.8.2023 to 5.9.2023 was not credible grounds because she stated in paragraph 15(f)(vii) to (xiii) of Encl. 11 that she had been in touch with the police to locate the whereabouts of other witnesses when Insp. Jai had been unable to locate any more witnesses after 10.8.2023, and that she had a heavy workload as she had other files to deal with. [16] Section 5(3) of the Act provides:

An Inquiry Officer may, in his discretion, for the purpose of subsection (2)-

require the attendance before him of a person detained under section 3;

procure and receive all such evidence, whether oral or in writing and whether the same be admissible or not under any written law for the time being in force relating to evidence or criminal procedure, which he may think necessary or desirable;

summon and examine witnesses on oath or affirmation, and may for those purposes administer any oath or affirmation;

require the production of any document or other thing in his opinion relevant to the case. [17] The Respondents submitted in paragraphs 12-15 of their written submissions that - “[12] … Pihak Responden menghujahkan bahawa Mahkamah Yang Mulia ini perlu mengambil kira bahawa tangkapan dan tahanan Pemohon adalah satu undang-undang pencegahan yang mana Pemohon tidak dikemukakan kepada Mahkamah bagi membela diri. Oleh yang demikian, satu proses siasatan yang teliti perlu dibuat yang mana Pegawai Penyiasat perlu sedaya upaya mengesan saksi-saksi bagi menyokong siasatan mereka. Namun begitu, tiada keperluan untuk Pegawai Penyiasat menyatakan dengan jelas dan terperinci jumlah dan peranan saksi-saksi yang telah dikesan dan/atau perlu dikesan memandangkan ia adalah keterangan sulit yang perlu dilindungi di bawah Seksyen 14 Akta tersebut. Selain daripada itu, berdasarkan nature kes dibawah Akta tersebut yang melibatkan isu-isu sensitif dan keselamatan memerlukan arahan dan pantauan daripada pihak atasan bagi memastikan laporan lengkap siasatan yang berkualiti dikemukakan kepada TMDN untuk pertimbangan. … [14] Berdasarkan kepada peruntukan di atas, adalah jelas bahawa Pegawai Siasatan KDN mempunyai kuasa untuk menerima apa sahaja keterangan bertulis atau lisan yang difikirkan perlu atau dikehendaki. Pegawai Siasatan KDN tidak terikat untuk menerima saksi-saksi Pegawai Penyiasat Polis sahaja, malah Pegawai Siasatan KDN boleh memanggil lebih saksi sekiranya dirasakan perlu. Sekiranya Pegawai Siasatan KDN terikat untuk menerima saksi-saksi polis sahaja, dimanakah kebebasan Pegawai Siasatan KDN dalam membuat inkuiri terhadap Pemohon? Sudah tentu ini bertentangan dengan niat Parlimen dalam menggubal undang-undang Akta tersebut yang mana peranan Pegawai Siasatan KDN yang berkelulusan Ijazah Sarjana Undang-Undang adalah sebagai satu mekanisme check and balance kepada kuasa pihak Polis dibawah Akta tersebut. Oleh yang demikian, pihak Pemohon jelas sekali terkhilaf apabila menganggap bahawa Pegawai Siasatan KDN telah mengetahui status pengesanan saksi-saksi lain bagi kes Pemohon seawal 18-08-2023 dan bukannya 04-09-2023 memandangkan dalam proses membuat siasatan dan inkuiri, sebagaimana yang telah dijelaskan, Pegawai Inkuiri boleh saja memanggil saksi-saksi lain yang mungkin sebelum ini tidak timbul dalam siasatan Pegawai Penyiasat Polis.

Sehubungan dengan itu, pihak Responden sekali lagi menegaskan bahawa tempoh masa yang diambil oleh Pegawai Penyiasat Polis dan Pegawai Siasatan KDN adalah dalam tempoh kesegeraan praktik, munasabah dan tidak berlebihan dan masih dalam tempoh yang dibenarkan oleh undang-undang serta boleh dibezakan dengan kes Chua Kian Voon (supra). Justeru, isu yang dibangkitkan oleh Pemohon berkaitan kelewatan Pegawai Penyiasat Polis dan Pegawai Siasatan KDN adalah tidak bermerit dan tidak wajar sama sekali.”. [18] The Act does not define “convenient speed” and therefore, Courts would refer to s.54(2) of the Interpretation Act 1948 and 1967 to determine “computation of time” which should be done “with all convenient speed” as stated in Tai Choi Yu v. The Government of Malaysia & Ors [1994] 1 MLJ 677. The Supreme Court held that “convenient speed” means reasonable time within which an act has to be done, but always having regard to the facts and peculiar circumstances of each case. That case also referred to Ex-Parte Austo Pty Ltd [1985] 2 QDR 1 which explained the phrase "all convenient speed" as follows: "What will be "all convenient speed" will depend upon the facts and peculiar circumstances of each case”. [19] The Federal Court in a recent decision dated 27.3.2024 in the case of Sugenthiran A/L Paramasivam v TMDN & 3 yang lain (NO.05(HC)- 97-05/2021(A)) did not follow Tamilarasan Subramaniam (supra) in regard to the issue of computation of time and held that Awang Sari Lasikan should be followed instead. Nevertheless, I refer to the judgment in paragraph 40 in Sugenthiran’s Case which recognised the important role of the Investigations Officer (and arguably the Inquiry Officer) as follows: “[40] The whole purpose of the investigations under section 6 of Act 316 is towards a preparation of a report for the Minister to decide whether a detention or restriction order needs to be issued against a detainee. Here, the investigating officer, as the inquiry officer would be investigating the allegations of fact and S/N W4jamUadj0d66Hzp1bCnw basis reached by the police officer as set out in his report under section 3. His sole function is to investigate whether there are “reasonable grounds for believing that such person has been or is associated with any activity relating to or involving the trafficking in dangerous drugs”, as provided in section 6. This is an extremely important function with an equally onerous responsibility which must be undertaken with the utmost care and observance of the twin rules of natural justice; that is, the rule against bias and the right to be heard. This right is implicitly recognised and safeguarded in Article 151, as set out in the earlier part of this judgment.”. [Emphasis added] [20] Therefore, having perused both affidavits of the officers, I was satisfied that the alleged “delay” had been sufficiently explained from the chronology of events laid out by both officers (Encls. 8 and 11) and all actions had been taken at “convenient speed”. Moreover, the Court also considered that when the Inquiry Officer received the investigations report, it was already Friday. She had to make preparations to travel to Kuantan from Putrajaya to interview the Applicant and the police had to be given time to locate witnesses that she would need to see. An Inquiry Officer is not a police officer and would not have easy access to potential witnesses and would need the assistance of the police in carrying out her tasks. The Inquiry Officer would have to verify the information in the police investigations report before him or her and these preparations and processes were time-consuming. I also agreed with the submissions of the Respondents above and that they have acted within the most practicable time, reasonable and not inordinate delay to produce the reports for the consideration of the Deputy Minister of Home Affairs in the 60-days allowed by law. The Court found that there was no merit on this issue raised by the Applicant (issues No. (i) and (ii)). ii. Alleged delay of the Deputy Minister of Home Affairs in issuing the Detention Order dated 25.9.2023 S/N W4jamUadj0d66Hzp1bCnw [21] Notably the Act does not provide a time-frame for the Minister to make his decision on whether to issue a Detention Order after the reports under ss. 3(3) and 5(4) had been received. The Respondents submitted that ss. 54(2) of the Interpretation Act 1948 and 1967 did not apply because there is no such provision in s.6(1) of the Act. They relied on the case of Lee Kew Sang (supra) where it was stated: “... 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 non-compliance thereof and only then that the courts should consider whether, on the facts, there has been non-compliance." [22] The Respondents submitted that it was pure afterthought on the part of the Applicant to raise this issue belatedly when it was not replied to after the Respondents had filed a detailed Afidavit Jawapan of the Deputy Minister of Home Affairs. Hence, the Respondents had been severely affected by the later allegations from the statements made from the Bar. The Respondents referred to the case of Keng Kien Hock v Timbalan Menteri Keselamatan Dalam Negeri Malaysia and other appeals [2007] 5 MLJ 611 where the Court of Appeal considered the Supreme Court’s decision in Phua Hing Lai v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors And Other Appeals [1990] 1 MLJ 173 and Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors v Liau Nyun Fui [1991] 1 MLJ 350 which stated: “[8] It is clear based on the principles enunciated in the above mentioned two cases; the applicable approach to be adopted is firstly, the appropriate test is not on the delay in carrying out the legal obligation but rather on whether the legal obligation was carried out with all convenient speed. S/N W4jamUadj0d66Hzp1bCnw [9] Under the circumstances of the case, in other words, it is whether the minister or deputy minister has acted reasonably. And, secondly, the burden of establishing the performance of the legal obligation under such circumstances remained on the applicant, the restricted person and never shifted to the respondent, the minister.” [Emphasis added] [23] The Court had considered the respective submissions of the parties and agreed with the Respondents’ views that the law does not provide any time-frame for compliance by the Minister in regard to the Detention Order under s.6(1) and in line with the decision in Lew Kew Sang’s Case (supra), ss. 54(2) of the Interpretation Act 1948 and 1967 did not apply. Hence, the Court did not find any merit on this issue as well. iii. Alleged non-compliance with Art. 149 read with the Preamble of Act 316 in considering whether the Applicant was a member of a substantial body of persons [24] On this issue, the Applicant in my view dealt with the merits of the case rather than on procedural non-compliance of the law. Nevertheless, the Court considered the evidence and submissions of the parties in order to decide the issue. It is the Court’s considered view that the third and fourth issues could be dealt together as it is pertaining to the same issue in regard to “a substantial body of persons” in Art. 149 of the Federal Constitution read with the Preamble of Act 316 and ss.3(2)(a) – (c) of the Act. It was submitted by the Applicant that the Respondents had failed to establish the role of the Applicant in a substantial body of persons when the respective remand orders were applied for and obtained by Insp. Jai from his superiors. Moreover, there was an application by the Respondents to set aside one of their own Afidavit Jawapan, leaving a fatal gap in the Respondents’ case. S/N W4jamUadj0d66Hzp1bCnw [25] Earlier, the Respondents had successfully applied to set aside the Afidavit Jawapan of ACP Shahidi Bin Abdullah (Encl. 6) because when they were preparing the submissions, it was realised that this Afidavit Jawapan was signed on 2.2.2024 when the Applicant’s Notis Usul was actually dated 5.2.2024. The Applicant took this to mean that the Respondents had fabricated the case against him and there was mala fide on the part of the Respondents. In comparison, for instance, Insp Jai’s Afidavit Jawapan (Encl. 8) was affirmed on 19.3.2024 and the Deputy Minister’s Afidavit Jawapan (Encl. 5) was affirmed on 8.3.2024. After hearing the application in Encl. 21, the Court decided to set aside Encl. as it was clearly defective in respect of the date it was affirmed. The Court did not consider the contents of Encl. 6 in arriving at its decision in the substantive hearing of Encl. 1. [26] However, the Court agreed with the Respondents’ submission that there was no break in the chain of evidence when the Respondents were investigating (ss. 3(2)(a) – (c) of the Act) the role of the Applicant and whether he was a member of a substantial body of persons. This was because during police investigations, there was ample evidence of the Applicant’s role in the substantial body of persons involved in dangerous drugs trafficking activities as defined in s.2 of the DDA 1952 from the following affidavits, namely: i. Afidavit Jawapan of the Arresting Officer, Insp. Polis Abang Anuar Bin Abang Kaderi (Encl. 7); ii. Afidavit Jawapan of Insp. Jai (Encl. 8); iii. Afidavit Jawapan of the Supervising Officer, ASP Al Taufek (Enc. 9); and iv. Afidavit Jawapan of the Supervising Officer, DSP Woon Khoon Ming (Enc. 10). S/N W4jamUadj0d66Hzp1bCnw [27] Earlier, I had laid out the chronology of events wherein after compliance with s.3(2)(a) of the Act, Insp Jai on 31.7.2023 had obtained ASP Al Taufek Bin Osman’s approval to detain the Applicant for more than 48 hours in accordance with s. 3(2)(b) of the Act. Then, on 7.8.2023 as the investigation was unable to be completed within the time frame, Insp Jai reported the Applicant’s arrest and detention to DSP Woon Khoon Ming for approval to detain him for more than 14 days. On the same day, DSP Woon Khoon Ming reported the Applicant’s arrest and detention to ACP Shahidi Bin Abdullah for approval to detain the Applicant for more than 14 days in accordance with s. 3(2)(c) of the Act to complete investigations. On the next day, ACP Shahidi Bin Abdullah reported the Applicant’s arrest and detention to the Minister of Home Affairs. Paragraphs 5-8 of Insp Jai’s Afidavit Jawapan (Encl. 8) laid out the chronology of the dates and steps taken in compliance with the provisions of s.3(2) of the Act and as the Investigation Officer, he has personal knowledge and knew of the movement of the case file which contained the information and intelligence gathered from the respective witnesses, until an order under s.6(1) was granted after the report under s.3(3) was prepared and completed by him to be presented to the Deputy Minister for consideration on the merits. I was satisfied that the non-consideration of ACP Shahidi Bin Abdullah’s defective Afidavit Jawapan did not in any way weaken the Respondent’s case as his role was attested to by Insp. Jai in Encl. 8. [28] Pursuant thereto, the Inquiry Officer had conducted an independent investigation into the matter to determine the role of the Applicant and whether he was a member of a substantial body of persons involved in dangerous drugs trafficking activities as defined in s.2 of the DDA 1952 (refer to her findings in paragraph 13 onwards of Encl. 11). The Inquiry Officer’s report under s.5(4) of the Act was eventually dealt with by the S/N W4jamUadj0d66Hzp1bCnw Deputy Minister of Home Affairs and the result was that the Detention Order was issued on 25.9.2023. [29] In respect of this issue of substantial body of persons, I refer to the case of Sanjeev Singh Gill A/L Ranjit Singh v Timbalan Menteri Dalam Negeri & Lain-lain [2022] 1 LNS 274. The High Court in that case decided that the phrase “membeli bekalan dadah berbahaya daripada pengedar dadah tempatan” was insufficient to denotethe applicant as a member of a substantial body of persons involved in the dangerous drugs trafficking activities which threatened security of the nation. The allegations of facts in the detention order therein did not meet the requirements of the guidelines stated in the Federal Court decision of Selva Vinayagam A/L Sures v. Timbalan Menteri Dalam Negeri, Malaysia & Ors. [2021] CLJ 29, [2021] 1 MLJ 601 particularly the element of involvement in a substantial body of persons. [30] In Selva Vinayagam’s Case (supra), the Federal Court held that:

The power under s 6(1) of the DDSPMA could only be exercised if three key ingredients were set out in the grounds of the detention order and allegations of fact, namely: (a) the activity which had been taken or was being threatened by a substantial body of persons related to or involved the trafficking in dangerous drugs; (b) the person to be detained was a member of a substantial body of persons; and (c) the Minister was satisfied that it was necessary in the interest of public order that the person concerned be subjected to preventive detention. The omission to set out all the three vital ingredients in the instant case indicated that the first respondent’s mind was not applied to the question of the S/N W4jamUadj0d66Hzp1bCnw appellant’s preventive detention. There was a failure to comply strictly with the letter of the rule of law. Consequently, the first respondent’s exercise of power in the circumstances of this case was bad in law. The detention order was a nullity for being ultra vires art 149 and the DDSPMA (see paras 47 & 50– 51). [31] Vernon Ong FJ (as His Lordship then was) in delivering the judgment of the apex court stated: “[44] What is meant by the phrase 'a substantial body of persons'? The word 'substantial' has been defined by the Oxford Advanced Learner's Dictionary 5th edn as 'large in amount or value; considerable'; 'considerable' is defined as 'great in number or size'. 'Body' is defined as 'a group of people working or acting as a unit (see Oxford Advanced Learner's Dictionary 5th edn) or as '[a] number of individuals spoken of collectively, usually associated for a common purpose, joined in a certain cause or united by some common tie.' (See Words, Phrases & Maxims - Legally & Judicially Defined Vol. 2. Anandan Krishnan, LexisNexis 2008). The word 'person' refers to a human being as an individual or a human being, especially not identified (See Oxford Advanced Learner's Dictionary 4th edn). In the light of the foregoing, we think that the phrase 'a substantial body of persons' refer to a large number of individuals acting in concert or working together for a common purpose. In the context of Act 316, we think that it refers to action which is prejudicial to public order which has been taken or is being threatened by a large number of individuals acting together in the trafficking in dangerous drugs. [45] Notably, sub-s. 6(1) refers to two factors –

authorises the Minister to exercise his power to make a detention order if he is satisfied that such person is involved in illicit drug trafficking activities and that (ii) it is necessary in the interest of public order to make the detention order. What is significant is the omission to refer to the involvement of 'a substantial body of persons' in relation to the public order element; which scope is clearly stated in the preamble as 'action which is prejudicial to public order... has been taken... by a substantial body of persons?'. … [47] For the foregoing reasons, we think that the respondent’s argument that the long title and preamble is not relevant for the purposes of interpreting sub-s. 6(1) is incongruous. It is clear that the power under sub-s. 6(1) may only S/N W4jamUadj0d66Hzp1bCnw be exercised if the following three key ingredients are set out in the grounds of the detention order and allegations of fact. One, that the activity which has been taken or is being threatened by a substantial body of persons relates to or involves the trafficking in dangerous drugs. Two, that the detenu is a member of a substantial body of persons. Three, that the Minister is satisfied that it is necessary in the interest of public order that the detenu be subject to preventive detention.”. [Emphasis added] [32] Coming back to the present case, based on paragraphs 8, 12, 13 and 14 of the Afidavit Jawapan of the Deputy Minister (Encl. 5), I was satisfied that the Deputy Minister had clearly applied his mind to the facts and considered that the Applicant was involved as a member of a substantial body of persons acting in concert or working together for a common purpose prejudicial to public order, namely relating to or involvement in the trafficking in dangerous drugs. This Court noted that the Federal Court on 20.6.2023 in Muhamad Fais Bin Abd Aziz v Timbalan Menteri Dalam Negeri Kementerian Dalam Negeri & 2 Yang Lain (Mahkamah Persekutuan No. Rayuan: 05(HC)-16-02/2023) had set aside the order of the High Court which refused the issuance of a Writ of Habeas Corpus where the allegations of facts did not mention “a substantial body of persons”. As far as I am aware, there is no written grounds of judgment of the Federal Court. The High Court grounds of judgment in that case showed the following facts: “ALASAN-ALASAN YANG ATASNYA PERINTAH ITU DIBUAT Bahawa kamu pernah ada kaitan dengan apa-apa 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 Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine seperti yang tersenarai di bawah Jadual Pertama, Bahagian III, Akta Dadah Berbahaya 1952 (Akta 234). Oleh itu, tindakan kamu telah memudaratkan ketenteraman awam dan tindakan di bawah Akta Ddaah S/N W4jamUadj0d66Hzp1bCnw Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 perlu diambil ke atas kamu. PENGATAAN-PENGATAAN FAKTA YANG ATASNYA PERINTAH ITU DIASASKAN:

Bahawa kamu didapati terlibat dengan aktiviti pengedaran dadah berbahaya jenis Pil Kuda yang mengandungi dadah jenis Methamphetamine sejak awal bulan September 2020 hingga awal bulan Julai 2021 secara tidak berterusan di sekitar kawasan Jalan Kampung Bonggol Kemunting, Tanah Merah, Kelantan dan di sekitar kawasan tepi jalan Kampung Bonggol Jenereh, Tanah Merah, Kelantan.

Bahawa kamu didapati menjual dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dalam bentuk straw (1 biji) berharga RM10.00 setiub, dalam bentuk baris (10 biji sebaris) berharga RM75.00 hingga RM80.00 sebaris, dalam bentuk peket (100 biji sepeket) berharga RM450.00 hingga RM500.00 sepeket dan dalam bentuk kandang (200 biji satu kandang) berharga RM850.00 hingga RM900.00 satu kandang).

Bahawa kamu didapati membeli bekalan dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dalam bentuk peket (100 biji sepeket) berharga RM400.00 sepeket daripada pengedar dadah tempatan dan membuat pembungkusan semula ke dalam bentuk peket kecil pelbagai saiz bagi tujuan pengedaran." [33] Reverting to the case of Sanjeev Singh Gill (supra), the High Court in deciding that the conditions in Selva Vinayagam (supra) were not complied with, stated: “[24] Mahkamah ini telah meneliti pengataan-pengataan fakta yang atasnya Perintah Tahanan tersebut diasaskan yang menyatakan seperti berikut: "1. Bahawa kamu didapati terlibat dengan aktiviti pengedaran dadah berbahaya jenis Heroin sejak pertengahan bulan Mei 2019 hingga 20 Disember 2020 secara tidak berterusan di sekitar kawasan Kampung Baru Kamunting, Taiping, Perak.

Bahawa kamu didapati menjual dadah berbahaya jenis Heroin dalam bentuk peket (anggaran berat 56.0 gram sepeket) berharga RM700.00 hingga RM800.00 sepeket.

Bahawa kamu didapati membeli bekalan dadah berbahaya jenis Heroin dalam bentuk peket daripada pengedar dadah tempatan bagi tujuan pengedaran." S/N W4jamUadj0d66Hzp1bCnw … [28] Walau bagaimanapun, Mahkamah ini mendapati bahawa sekadar kewujudan frasa 'membeli bekalan dadah berbahaya jenis Heroin dalam Bentuk peket daripada pengedar dadah tempatan' adalah tidak mencukupi untuk mencapai maksud penglibatan sekumpulan besar orang dalam aktiviti pengedaran dadah tersebut yang dikatakan memudaratkan ketenteraman awam.”. [34] In Selva Vinayam (supra), the Federal Court held that the powers under 6(1) of the Act may only be invoked if the 3 elements have been stated in the grounds and allegations of facts (attached to the detention order). The Federal Court stated further: “[28] Therefore, whilst art. 149 authorises the abridgement of fundamental rights, there are two built-in constitutional safeguards provided by cl. (1) of art.

151.

Restrictions on preventive detention

Where any law or ordinance made or promulgated in pursuance of this part provides for preventive detention:

the authority on whose order any person is detained under that law or ordinance shall, as soon as may be, inform him of the grounds for his detention and, subject to Clause (3), the allegations of fact on which the order is based, and shall give him the opportunity of making representations against the order as soon as may be; …”. [Emphasis added] [35] In this regard, I refer to the High Court decision in the case of Mohd Hakim Bin Yusoff v MDN & Lain-lain [2022] 1 LNS 1350 where it stated- “[12] The preamble made reference to the activities of drug trafficking that has happened and continue to happen in this country. In section 2 of the Act, trafficking have the same meaning as is assigned to it under the Dangerous Drugs Act 1952 - "trafficking" includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, S/N W4jamUadj0d66Hzp1bCnw transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act;" … [14] The activities included in the interpretation of drug trafficking generally, cannot be carried out by one person. For example, 'buy' or 'sell' involves at least 2 persons (usually more as it often involves a distributor or agent). To 'manufacture' requires a supply of the raw goods/substance, other chemicals or ingredients to turn it into a finished product and demand from users for the finished product. The chain of drug trafficking would involve a substantial number of persons; a syndicate to operate successfully. A person acting alone in drug trafficking may be possible if he deals with organic materials such as cannabis where he may be able to plant the tree, cultivate and sell the finished product like dried leaves. It is too far-fetched to say the same for synthetic drugs as the need for drug materials and chemicals would require suppliers and the use of a lab.”. [36] Additionally, in the case of Mohd Redzuan B Omar v. Timbalan Menteri Dalam Negeri Dan 1 Lagi [2022] 1 LNS 880 the Federal Court stated: “[30] We agree with the rationale in Selva Vinayagam (supra). However, having regard to the issues argued before us it is opportune to distinguish Selva Vinayagam (supra) and this appeal on the facts and the law. Careful scrutiny of the facts and the documentary evidence of this appeal shows that it is distinguishable from Selva Vinayagam (supra). The most obvious distinguishing fact is that in this appeal there are expressed statements that the appellant was not acting alone. This is reflected in para. 22 of the affidavit in reply of the Deputy Minister: … [32] The statement of facts in Selva Vinayagam (supra), however, is devoid of any facts stating that he was acting in association with a substantial body of persons: [33] In this appeal, the three ingredients as laid out by Justice Vernon Ong in Selva Vinayagam (supra) have been fulfilled. The appellant had carried out the illegal activity, namely, the trafficking of dangerous drugs in association with a substantial body of persons. Secondly, the appellant is a member of a substantial body of persons. Thirdly and most importantly, the Minister is satisfied that it is necessary in the interest of public order S/N W4jamUadj0d66Hzp1bCnw that the appellant be subject to preventive detention. On the facts in this appeal, there is clear evidence that the appellant was not acting alone in the illegal activity of drug trafficking as averred in the affidavits. [34] Hence, to apply the rationale enunciated in Selva Vinayagam (supra) to determine whether the procedures have been complied with by the authorities, the courts must examine the affidavits and the statement of facts with great scrutiny which will reveal whether the appellant was acting alone or in association with a substantial body of persons.”. [37] In the present case, the Alasan-Alasan dan Pengataan-Pengataan Fakta under s.6(1) of the Act stated: “ALASAN-ALASAN YANG ATASNYA PERINTAH ITU DIBUAT Bahawa kamu merupakan sebahagian dari sekumpulan besar orang pernah ada kaitan dengan apa-apa 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 berbahaya jenis Heroin, dadah jenis Syabu yang mengandungi dadah berbahaya jenis Methamphetarnine dan dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine seperti yang tersenarai di bawah Jadual Pertama, Bahagian III, Akta Dadah Berbahaya 1952 (Akta 234). Oleh itu, tindakan kamu telah memudaratkan ketenteraman awam dan tindakan di bawah Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 perlu diambil ke atas kamu. PENGATAAN-PENGATAAN FAKTA YANG ATASNYA PERINTAH ITU DIASASKAN:

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati terlibat dengan aktiviti pengedaran dadah berbahaya jenis Heroin, dadah jenis Syabu yang mengandungi dadah berbahaya jenis Methamphetarnine dan dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine sejak awal bulan Januari 2020 sehingga bulan Jun 2023 secara tidak berterusan di sekitar kawasan tepi jalan Kampung Bukit Rangin, Kuantan, Pahang, di sekitar kawasan FELDA Sungai Panching Selatan, Kuantan, Pahang, di sekitar kawasan tepi jalan di hadapan rumah beralamat No. 252-B FELDA Sungai Panching Selatan, Kuantan Pahang, di sekitar kawasan Restoran Murtabak Luwait, Perkampungan Pandan Damai 1, Kuantan, Pahang S/N W4jamUadj0d66Hzp1bCnw dan di sekitar kawasan ladang kelapa sawit FELDA Sungai Panching timur, Kuantan, Pahang.

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati menjual dadah berbahaya jenis Heroin sebanyak 1 paun (anggaran berat 450.0 gram) berharga RM5,000.00 hingga RM8,000.00 sepeket.

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati menjual dadah jenis Syabu yang mengandungi dadah berbahaya jenis Methamphetamine dalam bentuk peket (anggaran berat 50.0 gram) dengan harga RM2,000.00 hingga RM2,300.00 sepeket.

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati menjual dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dalam bentuk peket (berisi 200 biji) berharga RM850.00 hingga RM1,000.00 sepeket.

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati menjual dadah berbahaya jenis Heroin sebanyak 1 paun hingga 2 paun (anggaran berat 450.0 gram) berharga RM7,000.00 sepaun daripada rakan sejenayah bagi tujuan pengedaran. Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati mendapatkan bekalan dadah jenis Heroin daripada rakan sejenayah dengan kekerapan satu (1) kali seminggu untuk tujuan pengedaran.

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati membeli bekalan dadah jenis Syabu yang mengandungi dadah berbahaya jenis Methamphetamine dalam bentuk peket (anggaran berat 50.0 gram) dengan harga RM10,000.00 sebanyak lima (5) daripada rakan sejenayah bagi tujuan pengedaran. Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati mendapatkan bekalan dadah jenis Syabu daripada rakan sejenayah dengan kekerapan satu (1) kali seminggu untuk tujuan pengedaran.

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati membeli bekalan dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dalam bentuk peket (berisi 200 biji) sebanyak lima(5) peket berharga RM4,000.00 sebanyak lima

peket daripada rakan sejenayah bagi tujuan pengedaran. Bahawa kamu didapati mendapatkan bekalan dadah jenis Pil Kuda daripada rakan sejenayah dengan kekerapan satu (1) kali seminggu untuk tujuan pengedaran. S/N W4jamUadj0d66Hzp1bCnw

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati mengendalikan aktiviti pengedaran dadah jenis Heroin, dadah jenis Syabu yang mengandungi dadah berbahaya jenis Methamphetarnine dan dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dengan merekrut rakan-rakan sejenayah sebagai orang tengah (runner) untuk membantu kamu menjual dadah milik kamu dengan memberi upah RM50.00 bagi setiap transaksi penghantaran. [38] In paragraphs 8, 12, 13 and 14 of the Afidavit Jawapan of the Deputy Minister of Home Affairs (Encl. 5), stated succinctly that he was satisfied the Applicant did not act alone but he was carrying on as part of a substantial body of persons involved in the trafficking of dangerous drugs as provided for under Art. 149 of the Federal Constitution. He was also satisfied that it was necessary in the interest of public order that the person concerned be subjected to preventive detention under s.6(1) of the Act. Therefore, the 3 conditions in Selva Vinayagam Sures (supra) had been fulfilled. The Applicant did not file any affidavit in opposition of the deputy Minister’s affidavit in reply. [39] From the grounds and allegations of fact upon which the Applicant was found guilty, the Court found that the Applicant was heavily involved in dealing with 3 types of dangerous drugs and he would buy them from his accomplices in various sizes about once weekly for purposes of trafficking. The Applicant also recruited others into the syndicate as runners to help him sell his drugs where he would give RM50.00 to the runner as “upah”. [40] I also found that the Inquiry Officer had complied with the obligations under the law and conducted the necessary interviews with the Applicant and other sources (witnesses) to verify the allegations against him. The S/N W4jamUadj0d66Hzp1bCnw Inquiry Officer was also satisfied that the Applicant did not act alone but he was carrying on as part of a substantial body of persons involved in the trafficking of dangerous drugs as provided for under Art. 149 of the Federal Constitution. [41] Nevertheless, despite the detailed contents of the numerous affidavits filed by the Respondents, I found to my surprise that the Applicant did not file any affidavit to oppose the contents of those affidavits and the facts stated therein. I have no reason not to accept the affidavits of the Respondents as they have discharged their obligations under the law with strict compliance. In SK Tangakaliswaran Krishnan (supra) the Federal Court stated: “[4] There appears to be a sharp conflict in and between the affidavit evidence produced by the respondents in answer to the appellant's application for habeas corpus. The first respondent in para. 15 of his affidavit dated 31 March 2009 categorically states that the Board had not as at the date of his affidavit made its recommendations to the Yang di-Pertuan Agong. This however is contradicted by the secretary to the Board who in his affidavit of 20 April 2009 states that the Board's recommendations were made to His Majesty on 13 January 2009. It is significant that even after the secretary to the Board had filed his affidavit, no attempt was made to explain the discrepancy in the dates. How then is the issue to be resolved? … [6] So too here. It is for the respondents to prove that the constitutional and statutory safeguards embodied in art. 151 and s. 6(1) were strictly complied with. The liberty of an individual should not be infringed upon even to the slightest extent without proof that the impugned infringement is in accordance with the Constitution and statute. When considering whether a restraint upon liberty is in accordance with law it is to the evidence furnished by the detaining authority that a court must turn in the usual way. And where that evidence is by way of affidavit the court is not spared the task of subjecting its contents to the same tests as in any other case, if not to stricter scrutiny since the case concerns the violation of a constitutionally guaranteed protection. One of the tests that a court applies to test allegations in affidavits is to see whether they are contradictory in nature. See, Eng Mee Yong & Ors v Letchumanan [1979] 1 LNS 18…”. [Emphasis added] S/N W4jamUadj0d66Hzp1bCnw [42] The Court found further that apart from Encl. 6 which had been set aside and not considered, all the other affidavits affirmed by the Respondents were consistent and did not conflict with one another in respect of the Applicant’s detention. I did not find any non-compliance with the law. Moreover, they were only carrying out their duties as public servants and it had not been shown by the Applicant that they have mala fide intention against him. The Court may also invoke the provision of s.114(e) of the Evidence Act 1950 which states: "Section 114. Court may presume existence of certain fact. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

(a)....

that judicial and official acts have been regularly performed;.." [43] In the case of Pau Kiu Chuong v. The Deputy Minister of Home Affairs, Malaysia & Ors [Criminal Application No: 44-156-2011], the High Court stated: “…Fourthly, it is also settled law that an application for a writ of habeas corpus is normally decided after a trial based on affidavits and it is for the court to determine based on the conflicting affidavits filed by the parties concerned as to which deposition contained in which affidavit ought to be believed and accepted and which deposition ought to be disbelieved and rejected (see the case of Ng Hong Choon v. Timbalan Menteri Hal Ehwal Dalam Negeri & 1 Lagi [1994] 4 CLJ 47).

The court found that the depositions of the respondents' representatives were consistent throughout and there was no contradiction in their depositions;

The court was of the view that they had no reason to lie in their depositions. They are public officers who were merely performing their official duties as S/N W4jamUadj0d66Hzp1bCnw opposed to the applicant who was an interested witness and was not averse to lying in order to secure his release (see Su Yu Min v. Ketua Polis Negeri & Ors. [2005] 3 CLJ 875, supra, Tey Ai Lee @ Alice ley (Kuala Lumpur Criminal Application No.: 44-98-2011 and Suthagar s/o Rajamoney v. The Deputy Minister of Home Affairs, Malaysia (Kuala Lumpur Criminal Application No.: 44- 130-2011), supra)…”. [44] It is trite law that an applicant is entiltled to take advantage of any non-compliance by the respondents. Nevertheless, what is sauce for the goose is sauce for the gander. The Applicant did not file any affidavit to rebut the facts stated and allegations of the Respondents in their Afidavit Jawapan where he had ample time to do so. In the case of Ng Hee Thong & Anor v Public Bank Bhd [2000] 2 MLJ 29, the Court of Appeal held that “Now, it is a well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted…”. [45] The Court noted that the Applicant was well-represented at the hearing of the representation before the Advisory Board and at the hearing in the High Court. It cannot be said then that he was not advised by counsel in regard to the implications of not rebutting the Respondents’ affidavits. [46] Lastly, I will address a point brought up in his Afidavit Sokongan that he could not see very well. I quote: “9. Ingin saya nyatakan disini bahawa saya menghadapi masalah rabun dan silau yang sangat teruk sehinggakan hanya dapat membaca dengan bantuan cermin mata milik saya sahaja. Semasa rakaman percakapan saya dibuat, saya tidak memakai cermin mata dan tidak dibekalkan dengan cermin mata milik saya. Itulah sebab saya memohon kepada INSP SRI JAI SELVA DASAN A/L BALAKRISHNAN (G/25864) untuk membacakan dan menerangkan semula keterangan saya seperti yang saya nyatakan di para 8 Afidavit Sokongan ini.”. S/N W4jamUadj0d66Hzp1bCnw [47] In Encl. 12, i.e. the Afidavit Jawapan Pegawai yang Menjaga at the PPA in Batu Gajah, he stated that he had explained the procedures to the Applicant and no complaint about his eyesight was ever raised to the said officer. Aditionally, Insp Jai’s averment in paragraph 31 at page 22 of Encl. 8 where he stated that the Applicant could read very well and there was no problem with his eyesight, was also never responded to by the Applicant: Ng Hee Thong’s Case (supra). CONCLUSION [48] Premised upon the following considerations, the Court was satisfied that the Respondents had discharged their legal burden and that they have complied with the requirements of the laws and procedures as provided for under the Federal Constitution and the Act. There was no merit in the application. Hence, the court dismissed the application for a Writ of Habeas Corpus to be issued in respect of the Applicant. Dated 9 September 2024 Sgd. Noor Ruwena Binti Md. Nurdin Judicial Commissioner High Court of Malaya, Taiping S/N W4jamUadj0d66Hzp1bCnw For the Applicant: Dato' Amirul Ridzuan Bin Hanif with Ms Nur Syafiah Athirah bt Ahmad Syafique and Ms. Anasuha Atiqah Binti Mat Saidi (The Law Office of Amirul & Athirah, Kuala Lumpur). For the Respondents: FC Pn. Nur Syahidah Binti Mohamad Kamil (Pejabat Penasihat Undang-Undang, Kementerian Dalam Negeri, Putrajaya) S/N W4jamUadj0d66Hzp1bCnw