Alexander A/L Ganapragasam v 1. ) Timbalan Menteri dalam Negeri,Malaysia (BA-44-294-11/2022)

1.

PENGUASA PUSAT PEMULIHAN AKHLAK

KETUA POLIS NEGARA, MALAYSIA …RESPONDENTS [ 1 ] The application was heard on the 7th of July 2023 and this court had dismissed the application. The reasons for the dismissal are set out below. BACKGROUND OF THE CASE [ 2 ] A detention order dated 14.6.2022 was issued by the Deputy Minister of Home Affairs (“the Deputy Minister”) against the applicant under section 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (“the Act”), ordering that the applicant be detained at Pusat Pemulihan Akhlak Batu Gajah, Perak for two (2) years with effect from the date of the detention order. The applicant applied for a writ of habeas corpus citing non-compliance with the Act and the Federal Constitution. THE ISSUES [ 3 ] The applicant’s counsel in his written submission raised four issues viz. -

(i) Non-compliance of Article 149 of the Federal Constitution and the preamble to the Act – that the grounds and allegation of facts appended to the detention order did not show the applicant’s involvement with a ‘substantial body of persons’ in drug trafficking activities that endangers public order;

Bahawa kamu didapati terlibat dengan aktiviti pengedaran dadah berbahaya jenis Syabu yang mengandungi dadah berbahaya jenis Methamphetamine sejak hujung tahun 2019 sehingga Mac 2022 secara tidak berterusan di sekitar kawasan tepi jalan Medan Angsana, Farlim, Pulau Pinang, di sekitar kawasan tepi jalan berhampiran Tropicana 218 Macalister, Georgetown, Pulau Pinang, di sekitar kawasan Blok J, Flat Padang Tembak, Ayer Itam, Pulau Pinang dan di sekitar kawasan Flat Jalan Padang Tembak, Ayer Itam, Pulau Pinang.

Bahawa kamu didapati menjual dadah berbahaya jenis Syabu yang mengandungi dadah berbahaya jenis Methamphetamine dalam bentuk peket (anggaran berat 0.5 gram sepeket) berharga RM50.00 sepeket dan dalam bentuk peket (anggaran berat 3.0 gram sepeket) berharga RM180.00 sepeket.

Bahawa kamu didapati membeli bekalan dadah jenis Syabu yang mengandungi dadah berbahaya jenis Methamphetamine dalam bentuk peket (anggaran berat 25.0 gram sepeket) berharga RM950.00 sepeket daripada rakan sejenayah dan membuat pembungkusan semula dalam bentuk peket kecil pelbagai saiz bagi tujuan pengedaran. (emphasis added) [ 11 ] The court finds that the grounds and allegations of fact read together with the Deputy Minister’s Affidavit (supra) clearly stated his satisfaction that the applicant’s drug trafficking activity was together with a substantial body of persons and justified the issuance of the detention order. [ 12 ] The detailed allegations of fact showed the applicant did not act alone which was reflected by the length of time of his drug trafficking activities of over two years which would need constant supply from drug trafficking networks and syndicates that manufactured the synthetic drug involving a substantial body of persons along the chain of drug trafficking. The facts in this case is clearly distinguishable from the facts in Selva Vinayagam. ISSUE OF DELAY IN SUBMITTING REPORTS TO THE DEPUTY MINISTER Second issue: Delay of 24 days taken by the Investigation Officer (“IO PDRM”) to submit a complete report under subsection 3(3) of the Act to the Deputy Minister and Inquiry Officer, Home Ministry (“PSKDN”) had prejudiced the applicant when it also caused delay in the issuance of the applicant’s detention order by the Deputy Minister. Third issue: Delay of 13 days taken by the PSKDN to submit a complete report under subsection 5(2) of the Act to the Deputy Minister had prejudiced the applicant when it also caused delay in the issuance of the applicant’s detention order by the Deputy Minister. [ 13 ] Learned counsel argued that the explanation by the IO PDRM for taking 24 days to submit a complete report under subsection 3(3) of the Act was not credible and the time taken is not compatible with convenient speed thus amounts to a non-compliance of the Act. It was argued that the explanation put forth in paragraph 14(g) of the IO PDRM Affidavit Jawapan dated 22.12.2022 did not justify the delay in preparing a report as he had already recorded statements from witnesses as early as 28.4.2022. Learned counsel relied on the decision in Chua Kian Voon v MDN Malaysia & Ors7 and TMDN Malaysia & Anor v Awang Sari bin Lasikan8. [ 14 ] Learned counsel use the same argument on the credibility of the PSKDN’s explanation for the 13 days taken to submit a report under subsection 5(4) of the Act to the Deputy Minister. Learned counsel relying on the same cases of Chua Kian Voon and Awang Sari (supra) submitted that the explanation is not credible and should not be accepted. 7 [2020] 1 CLJ 747 8 [05(HC)-69-04/2021(B) [ 15 ] Meanwhile, learned SFC also relying on Awang Sari’s decision (supra) and Vignasevaran A/L John Joseph v TMDN Malaysia & Ors9 argued that each case needs to be examined on its own merit. It was submitted that the explanation of the IO PDRM when scrutinized showed detailed and clear explanation of his actions and is reasonable and credible. Similarly, the PSKDN’s explanation stated in paragraph 10 and 13 of her Affidavit Jawapan dated 20.12.2022 is equally credible and should be accepted. [ 16 ] The court agrees with learned SFC’s submission that the IO’s explanation in his Affidavit Jawapan at paragraph 14(e) to be reasonable and credible. The need to look for other witnesses is important in preventive detention cases to ensure a complete investigation to aid the Minister in his decision whether to issue a detention order or not. [ 17 ] The difficulty in the search for witnesses was clearly explained in paragraph 15 of the IO’s Affidavit Jawapan such as the witnesses do not have a known permanent address to avoid being traced by the police. The decision not to continue tracing witnesses is not one to be taken lightly or in haste in view of the nature of preventive detention. Thus, the court finds no merit to this issue. [ 18 ] The explanation put forth by the PSKDN in paragraph 10 and 13 of her Affidavit Jawapan (supra) is credible and acceptable. The court 9 [2021] 1LNS 918 finds that the time taken for her to prepare her reports are reasonable in the circumstances and there was no undue delay on her part. Did The Alleged Delay In Submitting Reports By The IO PDRM And PSKDN Prejudiced The Applicant When It Causes Delay In The Issuance Of The Detention Order By The Deputy Minister [ 19 ] It was argued by learned counsel that the alleged delay in submitting reports by IO PDRM and PSKDN resulted in the delay by the Deputy Minister to issue a detention order against the applicant. [ 20 ] Learned SFC submitted that there is no provision or a prescribed time for the Minister to issue a detention order after receiving both reports from the IO PDRM and PSKDN under subsection 3(3) and 5(4) of the Act. Relying on the decisions in Kannan Supramaniam v MDN & Ors10 and N.Ramakrishnan P.Nagasamy v Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors11, it was argued that the issue of non-compliance does not arise in this instance. [ 21 ] In N.Ramakrishnan P.Nagasamy (supra) it was stated – by Nallini Pathmanathan J (as she then was) - “[28] It therefore follows that there is no requirement that the Minister set out or specify the date when he was ‘satisfied’ because it is the date of the detention order. It would therefore follow that there was a gap of some four days between the day when the Minister 10 [2019] 1LNS 1744 11 [2008] 7 CLJ 480 received the report from the inquiry officer on 2 August 2006 and the issuance of the order on 6 August 2006. There is no requirement that the Minister must make his decision on whether or not to exercise his discretion immediately upon receiving the relevant reports. That would attract the criticism of failing to give any adequate consideration to the reports which is a crucial part of the basis for his decision.” (emphasis added) [ 22 ] The court agrees with learned SFC that there is no requirement for the Minister to issue a detention order within any prescribed time under subsection 6(1) of the Act. There is no merit to this issue. Fourth issue: Failure of the IO PDRM and Bukit Aman to supply the applicant’s cautioned statement to his counsel upon request is a violation of Article 151(1)(a) of the Federal Constitution. [ 23 ] Relying on the cases referred to in paragraph 84 and 85 of his written submission, learned counsel argued that denying the applicant of his own statement contravened Article 151(1)(a) of the Federal Constitution. [ 24 ] It was pointed out by the learned SFC that the applicant had never requested for a copy of his written statement before, during or after it was recorded (paragraph 21 IO PDRM’s Affidavit Jawapan). It was not a procedural requirement under the Act and to do so would take it out of the scope of the Act – Lee Kew Sang v TMDN & Ors12. 12 [2005] 3CLJ 914 [ 25 ] The Act provides for the procedures in recording an applicant’s statement under section 4. It is not a procedure that a copy of the detenu’s recorded statement be served on him. [ 26 ] Section 9(2) of the Act only provides for the following to be served to the applicant for the purpose of his representation before the Advisory Board – “(2) For the purpose of enabling a person to make representations under subsection (1) he shall, at the time of the service on him of the order—

(a) be informed of his right to make representations to an Advisory Board under subsection (1); and

(b) be furnished by the Minister with a statement in writing—

(i) of the grounds on which the order is made;