Amir Suffian Bin Shadaan v Timbalan Menteri dalam Negeri Malaysia (BA-44-119-09/2023)

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KETUA POLIS NEGARA …RESPONDEN-RESPONDEN RULING Enclosure 23 Introduction [1] The respondents applied under Order 3 Rule 5 of the Court Rules 2012 (Rules 2012) for leave to file a corrective affidavit out of time and a stay of proceeding on the hearing of the Applicant's writ for habeas corpus pending the outcome of this Application. [2] The learned counsel for the Applicant's main objection to the Respondent's Application is that the respondents made the Application after the close of the affidavit evidence. The Applicant also argued that the mistake was not a typographical error—instead, an attempt to file additional evidence through an affidavit at the close of affidavit evidence. [3] Having perused the written submissions filed by both parties regarding Enclosure 23, specifically paragraph 6 of the Applicant's counsel written submission in reply dated 11.1.2024 in Enclosure 28 (first submission), the Respondent's written submission dated 19.1.2024 in Enclosure 34, the Applicant's Additional Written Submissions dated 23.1.2024 in Enclosure 34 (second submission), and enclosure 38 (Third Submission), the Affidavits filed in respect of Enclosure 1 and Enclosure 23, the Court make the following rulings:

The Application as in enclosure 23 is allowed.

Order in terms. Grounds of Ruling [4] The Applicant raised the following issues in opposing the

The Application is against Order 1 Rule 2 Rules 2012, which Rules 2012 does not apply to criminal proceedings. The Supreme Court decision in Ng Hoon Choon v Timbalan Menteri Hal Ehwal Dalam Negeri [1994] 3 MLJ 285 is referred to.

The Applicant's Counsel also alleged that the mistake on the inquiry date is not a typographical error as submitted by the Respondent's counsel, but a material conflict regarding the inquiry date that if the inquiry took place on 19.6.2023, there was no reason for another inquiry conducted on 25.6.2023 as submitted by the Applicant's counsel;

The authorities, as decided in Tay Lay Beng v Menteri Hal Ehwal Dalam Negeri & Anor [2004] 8 CLJ 674 and PP v Chean Hua Sey & Ors [2008] 9 CLJ 657 referred by the Respondent's counsel should be distinguished and did not apply to the instant case.

The Respondent's Application is intended to adduce new evidence. [5] On 17.1.2024, the Court requested both counsels to update the status of Enclosure 23. [6] Both counsels requested another date. At the outset, the Applicant's counsel indicated that he had filed the written submission regarding Enclosure 23 and would stand by that submission. [7] On the other hand, the Respondent's counsel sought the Court's indulgence of another date to file a written submission on Enclosure 23, which the Court allowed. Subsequently, the Court fixed 24.1.2024 for clarification and decision of Enclosure 23. [8] Following this, the hearing of the main case regarding the Applicant's Application for a writ of habeas corpus has not commenced. Even if 17.1.2024 was deemed the hearing date of enclosure 1, the Court found that the respondents filed the Application for leave 13 days before the hearing date. According to the Supreme Court in Ng Hoon Choon v Timbalan Menteri Dalam Negeri [1994] 3 MLJ 285, the Court, amongst others, held that both parties in a Writ of habeas corpus application can file an affidavit, usually two days before the hearing date. Thus, the 13- day period taken by the Respondents in this case to file the Application in enclosure 23 is acceptable to this Court. [9] Based on the Applicant's written submission, the counsel alleged that the respondents had taken up the issue of the ambiguity regarding the date of inquiry after the Applicant raised it in their submission dated 11.1.2024. [10] Be that as it may, the court document showed that the respondents filed the Application for leave to file a corrective affidavit on 4.1.2024 way before the Applicant's counsel even raised the issue in his written submission. [11] Thus, this dismisses the Applicant's counsel argument that the Respondent's attempt to file Enclosure 23 was an afterthought. [12] In this case, the paramount issue is whether the mistake in paragraph 10 of Enclosure 8 is indeed a typographical error submitted by the Respondent's counsel or an attempt to adduce additional affidavit evidence as argued by the Applicant's counsel. [13] The Applicant's counsel heavily relied on their argument based on the Supreme Court decision in Ng Hoon Choon (supra). [14] Having analysed the case of Ng Hoon Choon (supra), the Court found that it is trite that Rule 2012 applies to a case of this nature. It is critical for the Court to emphasise that the facts of the case in Ng Hoon Choon are distinguishable as it is a case concerned with the respondents' Application to admit additional and corrective affidavits after the issue of non-compliance of proviso (c) to s 3(2)(c) of the Dangerous Drugs (Special Preventive Measures) Act 1985 ("the Act") was raised by the counsel for the Applicant at the hearing on the writ of habeas corpus commenced. The trial Court allowed an adjournment. The Respondent filed the affidavits ten months later, and the hearing proceeded, with the trial court later dismissing the motion. In considering the appeal, the Supreme Court had to deal with the issue of whether the trial court could accept the Respondent's additional evidence in the form of an additional affidavit at such a late stage of the proceedings. Not only that, the Supreme Court found that the respondents failed to comply with the mandatory requirement of proviso (c) to s 3(2)(c) of the Dangerous Drugs (Special Preventive Measures) Act 1985 ("the Act") where Wan Yahya SCJ, on page 294 held that "It follows the principle against any attempt to adduce additional affidavit evidence, especially after the aggrieved party has closed its case in cases affecting the liberty of the subject, must be applied even greater vigilance by the trial court." [15] However, this is not the case here. Enclosure 23 is merely an application for leave to file a corrective affidavit. The instant case does not involve a rectification of the non-compliance of proviso (c) to s 3(2)(c) of the Act. Most importantly, the merit of the Application of writ of habeas corpus has yet to commence when the respondents applied for leave to file the corrective Affidavit. [16] Hence, in considering the extent to which the principles in the Supreme Court decision in Ng Hong Choon (supra) apply to the facts of the instant case, the Court has to exercise great caution. [17] Whilst the Federal Court case in Jayaganesan a/l Ramakrishnan v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 6 MLJ 697 is not applicable as the fact in the case is relatively different from the fact of the instant case. Here, there is an application for leave to file the corrective Affidavit, which differs from the case in Jayaganesan a/l Ramakrishnan (supra), where the counsel attempted to rectify the "glaring" error in the warden's Affidavit by making an oral submission from the bar. [18] Having scrutinised the facts of the instant case holistically, the Court, based on the available evidence from the documents, without a doubt, found that the mistake was a typographical error. [19] The inquiry date conducted by the Inquiry Officer was 25.6.2023, as affirmed by the Inquiry Officer – see paragraph 7 and further correctly reiterated in paragraph 15 of the Inquiry officer's Affidavit. There is a typographical error in paragraph 10 of the same Affidavit when the inquiry officer mistakenly referred to 19.6.2023 as the inquiry date. 19.6.2023 is when the investigation officer, police inspector PUU A/L Akau, prepared the complete investigation report for submission to the Home Minister consistent with the police officer's averment in paragraph 5 of his Affidavit in Enclosure 13. Further, the Affidavit affirmed by Datuk Sri Dr Shamsul Anuar bin Nasarah, the Deputy Home Minister, as seen in paragraph 7 of the Affidavit in reply, fortifies the fact that 19.6.2023 is the date of the complete investigation report prepared by the police inspector PUU A/l Akau. [20] Bearing in mind Order 1A Rules 2012, the Court is mindful that the interest of justice should prevail over technical non-compliance with the Rules. The Court allows the respondents' Application to put the facts into the correct perspective. The Application does not prejudice the Applicant, and it does not mislead the Applicant. The mistake is not fatal, and it did not cause an adverse effect on the Applicant. Date : January 2024 (DR HAZLINA HUSSAIN) Pesuruhjaya Kehakiman Mahkamah Tinggi Shah Alam Counsel : PB EN. HAZIQ ABDULLAH BIN ABDUL AZIZ HAZIQ AZIZ (KUALA LUMPUR TIMBALAN MENTERI DALAM NEGERI MALAYSIA Pejabat Penasihat Undang-Undang, Kementerian Dalam Negeri, Putrajaya (PUTRAJAYA)