Aireen Shazna Amir Binti Amir v Pendakwa Raya (BA-44-69-04/2025)

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KERAJAAN MALAYSIA ...RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT 26/12/2025 08:52:16 Kand. 28 S/N 0qj0bawntUS9zrO2ieG8XQ

The Applicant, Aireen Shazna Amir binti Amir filed an Application for a writ of Habeas Corpus to challenge the Detention Order (DO) dated 16.8.2024 issued by the first Respondent under the Dangerous Drugs (Special Preventive Measures) Act 1985 (the Act), where the Applicant is now detained for two years at Pusat Pemulihan Akhlak (PPA) Batu Gajah, Perak Darul Ridzuan from the date of the DO.

Having heard the oral submissions of both counsels and considered the documents and written submissions filed herein, the Court decided to dismiss the Application for the following reasons: the Respondent had complied with the procedural requirements under the Act, and the Applicant's challenges to the DO had no merit.

The grounds on which this Court arrived at its decision are set out below.

The Applicant's counsel raises three main issues, and the Court consolidated issues (i) and (ii) together as they involve the same question of law. The main contention by the Applicant is that the Respondents failed to comply with the S/N 0qj0bawntUS9zrO2ieG8XQ procedural requirements under the Act, particularly as follows:

Non-compliance with sections 3(3) and 5(4) of the Act, wherein the Police Investigation Officer and the KDN's Inquiry Officer failed to act with convenient speed in preparing the Investigation Report and the Inquiry Report, respectively.

(ii) Non-compliance with Rule 3(2) of the Dangerous Drugs (Special Preventive Measures)(Advisory Board Procedure) Rules 1987 (the Rules). PRINCIPLES OF LAW ON HABEAS CORPUS

The apex court in Kerajaan Malaysia & Ors v Nasharuddin Nasir [2004] 1 CLJ 81 decided that habeas corpus is a remedy to assist the release of a person from unlawful custody, as decided by Steve Shim FCJ: "It is a trite law that the remedy of habeas corpus is intended to facilitate the release of a person actually in unlawful custody. It is the fact of detention and nothing else which gives the Court its jurisdiction."

The principles of law derived from the apex Court regarding the challenges to the DO are settled. This Court is mindful of the Federal court's pronouncements, which emphasise that a detainee can challenge the DO only on grounds of S/N 0qj0bawntUS9zrO2ieG8XQ procedural non-compliance with the Act. See Lock Wee Kock v Menteri Hal Ehwal Dalam Negeri & Anor [1993] 4 CLJ 211; [1993] 3 MLJ 691.

Historically, the Parliament amended the Act in 1989, inserting section 11C by the amendment Act A738. With the amendment, the parameter for challenging the DO is restricted to non-compliance with procedural requirements relative to previous challenges, including issues such as mala fide detention.

The apex Court decided a landmark decision in Lew Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914, Abdul Hamid FCJ (as he then was), which relates to the amendment of the Act, in delivering the judgment of the Federal Court, held as follows:

Further, the decision in Lew Kew Seng (supra) has been followed by another landmark decision after the decision, as S/N 0qj0bawntUS9zrO2ieG8XQ seen in Chua Kian Voon v. Menteri Dalam Negeri Malaysia & Ors [2020] 1 CLJ 747, where the Federal Court held: "[67] Section 5(4) of the 1985 Act allows the Minister to prescribe regulations stipulating time but as apparent from the above, the Minister has not done so. We then turned to s. 54(2) of the Interpretation Acts 1948 and 1967 which stipulates that where no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion requires. Simply put, for any matter where time has not by law been prescribed, such matter ought to be completed as soon as practicable and without inordinate delay. [68] As the burden to prove the detention was lawful lies on the detaining authority, whether the report was completed with convenient speed or without inordinate delay remains a matter for the detaining authority ie, the respondents, to establish. It is trite that where there is delay on the part of the respondents to complete the report with "convenient speed", it is incumbent upon the respondents to discharge the burden of proffering a satisfactory explanation for the delay. Thus, as we have alluded to earlier, if there is no explanation given, the Court will assume that there are no reasons. S/N 0qj0bawntUS9zrO2ieG8XQ [69] We accordingly examined the evidence on record particularly the affidavits deposed by the inquiry officer, Nadia binti Mohd Izhar. We found none of her affidavits nor do any other affidavits from the respondents provide any credible reasons for the 21-day delay. The only reasons she gave in paras. 7 and 8 of her Affidavit in reply dated 13 September 2018 were that she could only conduct physical examination on the Appellant because she needed to read the file, examine the documents and the other subjects (witnesses). These, with respect, hardly constitute reasons because they are procedural matters which every other inquiry officer in her place would have to perform. The Court cannot simply accede to the inquiry officer's plea of heavy workload as basis for the delay to conduct Inquiry against the Appellant under s. 5(2) of the 1985 Act. If this plea were to be accepted, it would become a source of justification for prolonged and unacceptable delay in conducting the Inquiry and this would impair the interest of the

The burden is on the Respondent to prove compliance with the law and procedures of the Act as decided in SK Tangakaliswaran Krishnan v. Menteri Dalam Negeri, Malaysia [2010] 1 MLJ 149, where Gopal Sri Ram FCJ held: “[5]...It is settled law that on an application of "habeas corpus" the burden of satisfying the Court that the S/N 0qj0bawntUS9zrO2ieG8XQ detention is lawful lies through the detaining authority. See, Chng Suan Tze v. The Minister of Home Affairs & Ors and Other Appeals [1988] 1 LNS 162. 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 draw our art. 151: It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the [2023] 1 LNS 2587 Legal Network Series 4 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 that one has dealt with the question and it is now well settled that it is incumbent on the state to satisfy the Court that the detention of the petitioner / detenu was legal and in conformity not only the mandatory provisions of Act 316 but also strictly in accord with the constitutional safeguards embodies in Ar. 22(5)”.

Bearing in mind the above fundamental principles of law, this Court must determine, based on the issues raised by the Applicant and the documents before the Court, whether the Respondent has successfully discharged the onus of proving compliance with the procedural requirements of the Act.

This is especially crucial because preventive detention is the most basic deprivation of personal liberty, and the burden lies solely on the Respondents to prove that the detention was S/N 0qj0bawntUS9zrO2ieG8XQ lawful under the Act. In Zaidi bin Kanapiah v ASP Khairul bin Rozduan and other cases [2021] 3 MLJ 759, YAA Tengku Maimun (CJ) held as follows: "[4] I remind myself of the cardinal principles on habeas corpus that the burden to justify the legality of a detention rests on the detaining authority (see the pronouncements of this Court in Chua Kian Voon v Menteri Dalam Negeri & Ors [2020] 1 CLJ 747 ('Chua Kian Voon') at paragraph 14 and SK Takaliswaran Krishnan v Menteri Dalam Negeri, Malaysia [2009] 6 CLJ 705, at paragraph 5). [5] The above principle is in accord with the very language of Article 5(2) of the FC having regard to the words 'unless satisfied that the detention is lawful'. The burden is constitutionally thrusted upon the detaining authority to establish to the Court's satisfaction that any given detention is lawful." THE COURT ANALYSIS AND FINDING Issue (i) Non-compliance with sections 3(3) and 5(4) of the Act, wherein the Police Investigation Officer and the KDN's Inquiry Officer failed to act with convenient speed in preparing the Investigation Report and the Inquiry Report, respectively. S/N 0qj0bawntUS9zrO2ieG8XQ

The Applicant's counsel essentially argued that the period of 21 days taken for the Police IO to prepare the Investigation Report did not show that the Police IO had taken action at a convenient speed, as the explanation given by the police officer in paragraph 15 of his Affidavit, affirmed on 16.5.2025, was not credible.

Whilst the KDN's IO/Inquiry Officer also failed to comply with section 5(4), as there was an alleged delay of 3 days for the KDN's IO to start the Inquiry with the Applicant after receiving the Investigation Report from the Police Investigation Officer on 10.7.2024. The explanation provided by the said officer, as stated in paragraph 10 of her Affidavit, dated 14.5.2025, was not credible.

The Applicant's counsel cited the often-quoted landmark decision in Chua Kian Voon (supra) and strongly urged the Court to follow the said decision.

The Federal Court in that case ruled that the Applicant's detention was unlawful. The apex Court did not accept the Inquiry Officer's plea of a heavy workload to justify the delay in conducting the Inquiry. The Federal Court further held that if the Court accedes to such an explanation as credible, it would protract the delay in conducting the investigation and impact the Detainee's interest, as had been said by Mohd Zawawi Salleh FCJ as follows: S/N 0qj0bawntUS9zrO2ieG8XQ "(69) These, with respect, hardly constitute reasons because they are procedural matters which every other inquiry officer in her place would have to perform. The Court cannot simply accede to the inquiry officer's plea of heavy workload as a basis for the delay to conduct Inquiry against the Appellant under Section 5(2) of the 1985 Act. If this plea were accepted, it would become a source of justification for prolonged and unacceptable delay in conducting the Inquiry and this would impair the interest of the Appellant.

For the reasons aforementioned and in the absence of credible reasons for the delay, we had no option but to conclude that the 21- day delay in the time taken for the inquiry officer to conduct her Inquiry against the Appellant was inordinate and not with "convenient speed". This, to us was another reason rendering the detention unlawful." (emphasis added)

The Federal Counsel (FC) for the Respondents, on the other hand, disagrees with the Applicant's contention that the explanations given by both the Police Inspector and the KDN's officers were not credible.

Instead, the FC argued that the Respondents had complied with the procedural requirements under the Act. S/N 0qj0bawntUS9zrO2ieG8XQ Furthermore, the FC argued that as the Police Inspector and the KDN's officer prepared the reports within 60 days from the Applicant's arrest and the first Respondent also issued the DO within the prescribed period in the Act, the DO is valid according to the Act, citing the Federal Court decision in Muhammad Redzuan Omar v Timbalan Menteri Dalam Negeri Malaysia & Another [2023] 2 CLJ 859 and Timbalan Menteri Dalam Negeri v Awang Sari bin Lasikan 05(HC)-69-

Now, the issue raised by the Applicant's counsel primarily concerns the time taken by the Police Inspector and the KDN's Investigation Officer to prepare their reports, and whether the officers provided a credible explanation. See Chua Kian Voon (supra).

The approach this Court takes in addressing the issue at hand is to inquire into and determine the legality of the detention, as succinctly held in the most recent Federal Court decision. See Noor Kayes Hashim Ullah @ Noor Kayes Binti Hasmullah (UNHCR No: 354-23-1882646) v Timbalan Menteri Dalam Negeri, Malaysia, Komandan Depoh Tahanan Imigresen Tanah Merah, Kelantan Darul Naim & Kerajaan Malaysia, Criminal Appeal No. 05(HC)-140-10/2024(D).

Accordingly, the Court is to apply the propositions laid down in Lew Kew Seng (supra) and Chua Kian Voon (supra), S/N 0qj0bawntUS9zrO2ieG8XQ bearing in mind the crucial distinctions between the facts in those cases and the present case.

To do that, this Court must first determine the procedural requirement under sections 3(3) and 5(4) of the Act and decide whether the time taken for the officers to prepare the respective Investigation Report and the Inquiry Report, and clarified in the Affidavits, was credible for the Respondents to justify the compliance with sections 3(3) and 5(4) of the Act.

Sections 3(3) and 5(4) of the Act principally provide that an Investigation Officer and the KDN's officer must submit their reports to the Minister within the period as prescribed by the Minister.

Section 22 of the Act further empowers the Minister to prescribe, by regulation, a specific period within which the Police IO and the KDN's officer must submit the report to the Minister.

The Minister has not issued any regulations regarding the operation of sections 3(3) and 5(4) of the Act. In the absence of the prescribed period under those provisions of the Act, the reference to the Interpretation Acts becomes relevant to facilitate the operation of those provisions. S/N 0qj0bawntUS9zrO2ieG8XQ

Applying section 54(2) of the Interpretation Acts to those provisions means the officers must prepare the report with all convenient speed.

Hence, what is "convenient speed" depends on the facts and peculiar circumstances of each case, as stated by Mohd Eusoff Chin SCJ in Tai Choi Yu v. Government of Malaysia [1994] 2 CLJ 174 as follows: "What is 'convenient speed' has been held by the Courts to mean reasonable time within which an act has to be done, but always having regard to the facts and peculiar circumstances of each case."

Thus, as it depends on the facts and circumstances of each case, the applicant/Detainee typically raises technical issues in an application for Habeas Corpus to challenge the time taken by the Police Investigation Officer and the KDN officer in preparing the Investigation and Inquiry reports, respectively. For instance, in Chua Kian Voon (supra), the delay in preparing the report, attributed to a heavy workload, was considered not credible.

It is instructive for this Court to refer to the recent apex court decision, which reflects the latest development on the judicial interpretation of sections 3(3) and 5(4) of the Act. S/N 0qj0bawntUS9zrO2ieG8XQ

In Muhammad Redzuan Omar v. Timbalan Menteri Dalam Negeri, Malaysia & Anor [2023] 2 CLJ 859, the apex court had shed light on the interpretation of sections 3(3) and 5(4) of the Act and section 54(2) of the Interpretations Act.

After having analysed the provisions of the Act holistically and considering section 3(2) of the Act which the Court in Chia Kian Voon (supra) did not address, the apex court has made it more evident that in the absence of any regulation issued by the Minister to prescribe a specific period for the submission of the inquiry reports, the DO is legal and valid so long as the investigating officers prepared the reports (investigation and inquiry reports) within 60 days before the issuance of the DO. Hasnah Mohammed Hashim FCJ (now Chief Judge of Malaya), on page 877, delivering the judgment of the Federal Court, held as follows: "[45] The detention order of the Minister pursuant to section 6 of the Act must be made within the prescribed 60-days as prescribed by subsection 3(2). Hence, if the number of days taken for investigation, Inquiry and submission of the reports of the IO and Inquiry Officer totalled to more than the prescribed 60-days the Minister cannot issue the detention order as the detention order issued beyond the prescribed 60-days for the purposes of the investigation and Inquiry is illegal. S/N 0qj0bawntUS9zrO2ieG8XQ [46] In respect of s. 5(4) of the Act and the delay in submission of the report, s. 54(2) of Act 388 was referred to and relied upon by the Federal Court. Section 54(2) of the aforesaid Act provides where no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion requires. Section 54 of Act 388 reads:

In computing time for any written law: (2) Where no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion arises. (emphasis added) [47] For any matter where time has not been prescribed by written law, such matter ought to be completed as soon as practicable and without inordinate delay. However, we find it necessary to emphasise that the provision of s. 5(4) of the Act must not be read in isolation from the other provisions in the Act in the determination of non-compliance with the procedure as set out under the Act. Section 3(2) of the Act prescribed the period of detention of 60 days must be taken into consideration in determining the compliance or non-compliance with the procedures as provided under the Act. One cannot and must not turn a blind eye to the existence and the importance of the maximum period of detention S/N 0qj0bawntUS9zrO2ieG8XQ without warrant of arrest for the purposes of investigation and Inquiry as provided under s. 3(2) of the Act in the Application of the other provisions of the Act. The provision of s. 3(2) of the Act gives the police power to conduct an investigation and Inquiry within the prescribed 60 days period" (emphasis added)

Returning to the issue at hand, the Court examined the respective affidavits submitted by the Police Inspector who prepared the Investigation Report and the KDN officer who prepared the Inquiry Report.

This is critically important, as the Respondent bears the burden of establishing that the detention is lawful. Hence, whether the officers had carried out the investigations with convenient speed or undue delay is for the Respondent to establish in the Affidavits filed in this case.

Based on paragraph 14 of the Affidavit of Police Inspector, although the officer took 21 days to complete and prepare his investigation report, he took swift action by first recording statements from the witnesses the day after the Applicant was arrested.

While the KDN's Inquiry/Investigation officer received the Investigation report from the Police Investigation Officer on 10.7.2024, she began her investigation with the Applicant on 12.7.2024. S/N 0qj0bawntUS9zrO2ieG8XQ

The Applicant's counsel argued that there was a 3-day delay from the date the Inquiry Officer received the investigation report from the police.

The Inquiry Officer explained in detail the time taken to carry out her Inquiry as stated in paragraph 10 of her Affidavit, affirmed on 14.5.2025.

Having examined the Affidavits, the Court is satisfied that the officers had given a credible explanation in the Affidavits to justify the time taken to prepare the report. From the Affidavit, it is shown that as soon as the officer received the Investigation Report from the Police IO, the officer took immediate and necessary action in preparation for the Inquiry Report.

The officer, in fact, travelled to Perlis to conduct the Inquiry with the Applicant and other witnesses involved in the Applicant's case, which started on 12.7.2025. Hence, the Court opined that there was indeed no undue delay in this case.

Applying the decision in Muhammad Redzuan Omar (supra) to the facts of the present case, there is no dispute that the Police Investigation Officer and the Inquiry Officer had prepared their respective reports before the 60 days had S/N 0qj0bawntUS9zrO2ieG8XQ lapsed. Hence, the Court found no merit in the Applicant's challenge on the issues (a) and (b) raised by the Applicant.

The second issue raised by the Applicant is the Respondent's failure to comply with Rule 3(2) of the Rules, where the Applicant's counsel's main contention is the alleged contradiction between Form 1 of the one served on the Applicant and the copy served on the Secretary of the Advisory Board. See the Affidavit of Police Inspector Muhammad Taufiq bin Ibrahim, affirmed on 16.5.2025.

Thus, the counsel contended that such failure had raised an inference favourable to the Applicant, relying on the decision in Joon Yong Hau v Timbalan Menteri Dalam Negeri Malaysia & 2 lagi [2019] CLJU 1635 and Vishnu Telagan v Timbalan Menteri Dalam Negeri Malaysia & 2 lagi [2019] 9

Now, the issue before this Court is whether the Applicant's contention has merit. For ease of reference, the Court reproduced Rule 3(2) of the Rules involved in this case. "Procedure for making representations 3(2). A detained person who desires to make any representation shall complete Form 1 and shall forward two copies of the completed Form 1 duly signed by him to the Secretary through the Officer in Charge of the S/N 0qj0bawntUS9zrO2ieG8XQ Police District where the detention order was served or the Officer in Charge of the place of detention."

The Court accordingly considered the Affidavit of Police Inspector Muhammad Taufiq bin Ibrahim, affirmed on 16.5.2025, in which he stated that the Applicant had sought assistance from the Inspector filling in one of the Form 1 statements that "Subjek Memohon Dikenakan Sekatan" which he had overlooked to state in the Form 1 which he had served on the Applicant, which is the subject matter of the issue raised by the Applicant.

For the Court to agree with the Applicant's counsel's contention, the Court must determine whether there is non-compliance with a mandatory procedure under the Act, as alleged by the counsel.

The Court is reminded of the crucial judicial proposition laid down in Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors v Ong Beng Chuan [2006] 4 CLJ 703, namely that it is vital first to determine the procedural requirements under the Act, specifically whether they are mandatory or directory.

The mandatory requirement is a significant consideration in the matter, and failure to comply with it would render the DO invalid. The breach of a directory procedural requirement would not be crucial, provided that there is substantial S/N 0qj0bawntUS9zrO2ieG8XQ compliance with the rules and that the Detainee suffers no prejudice.

Now, to what extent did the Police Inspector's mistake prejudice the Applicant regarding his right to make a representation to the Advisory Board under the Act?

Based on the Affidavit of Mohamad Haziq bin Mohd Fauri, Secretary of the Advisory Board, dated 16.5.2025, he stated that on 27.9.2024, the Board prepared recommendations for the YDPA to consider, which included continuing the DO and suspending it for the Applicant to be restricted as applied by the Applicant.

The Applicant did not deny Mohammad Haziq bin Mohd Fauri's Affidavit, and the Court is of the view that the Police Inspector's mistake did not prejudice the Applicant's right to representation. See Ng Hee Thong & Anor v Public Bank Berhad [1995] 1 CLJ 609.

Hence, the Court ruled that the Applicant's contention on issue (iii) is devoid of merit.

Based on the above analysis, the Court concludes that the Respondents have complied with all the procedural requirements under the Act. S/N 0qj0bawntUS9zrO2ieG8XQ

Therefore, the Court found that the Applicant's detention is lawful and dismissed this Application. Dated: 26 Disember 2025 Sgd. (Y.A. DR HAZLINA BINTI HUSSAIN) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR DARUL EHSAN Counsel for the Appellant: En. Mohd Hakim bin Hamron Counsel for the Respondent: FC Tuan Ng Xiang Hua S/N 0qj0bawntUS9zrO2ieG8XQ