any other suit, action or other legal proceedings relating to or arising out of any act done or decision made by the Board in accordance with this Act. (Emphasis added) [11] In Lee Kew Sang v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 2 MLJ 631; [2005] 3 CLJ 914, it was held : 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 that matter, the equivalent sections 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 requirements because it is not the function of the 5 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] This decision was followed in Abdul Razak bin Baharudin & Ors v Ketua Polis Negara & Ors and another appeal [2006] 1 MLJ 320; [2005] 4 CLJ 445. [13] The parameters of the court in applications of this nature were also set out in Mohd Faizal bin Haris v Timbalan Menteri Dalam Negeri Malaysia & Ors [2006] 1 MLJ 309; [2005] 4 CLJ 613, as follows : The general rule that a writ of habeas corpus must be directed against the current order of detention therefore applies where a detention under s 6(1) has been made subsequent to an arrest and detention under s 3(1) and (2). It follows that where a detention order has been made under s. 6(1) the writ of habeas corpus must be directed only against that order even if the earlier arrest and detention are irregular. This view is supported by Barnardo v Ford [1892] AC 326 where Lord Halsbury said that he could not agree to the proposition that if a court is satisfied that illegal detention has ceased before application for the writ has been made, nevertheless the writ might issue in order to vindicate the authority of the court against a person who has once, though not at the time of the issue of the writ, unlawfully detained another or wrongfully parted with the custody of another. Thus any irregularity in a detention order made under s 3(2) when it has been superseded by one under s 6(1) is not a relevant matter for consideration. In this regard The Law of Habeas Corpus (2nd Ed) by RJ Sharpe says at p 179: It has been held consistently that the relevant time at which the detention of the prisoner must be justified is the time at which the court considers the return to the writ. This rule means that nothing which has happened before the present cause of detention took effect will be relevant to the issue before the court, unless by reason of some special consideration arising from the particular proceedings. 6 And at p 186: On the present state of the law, in almost every instance, the relevant time at which the detention is to be justified is the time at which the court considers the case. Prior illegality will not be relevant unless by reason of some special rule derived from the particular nature of the proceedings involved. Therefore a prior illegality which has ceased cannot be the subject matter of inquiry. That would also be the conclusion in the case of a detention order made under s 8(1) of the Internal Security Act 1960 and s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 subsequent to an arrest and detention made under both the statutes. It is perhaps appropriate to refer to Kerajaan Malaysia & Ors v Nasharuddin Nasir [2004] 1 CLJ 81 where it was held that an order of detention made under s 8(1) of the Internal Security Act 1960 is not tainted by an illegality or irregularity in the s 73 detention. However, the conclusion was reached not on the rationale as discussed in this judgment but on the principles enunciated in Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129;; [1969] 1 LNS 65. Such an approach would leave unanswered the effect of procedural irregularities in an earlier detention which has been superseded by another detention order. Be that as it may, that case made it clear that a court has no jurisdiction to hear a writ filed against the police for irregularities in a detention order under ss 73(1) of the Internal Security Act 1960 when it had been superseded by one under ss 8(1) thereby bringing into sharp focus the propriety of the judgment of this court in Mohamed Ezam Mohd Noor v Ketua Polis Negara & Ors [2002] 4 CLJ 309. The rationale underlying this judgment would, with respect, render the stand taken in the latter case unsustainable in law. (Emphasis added) [14] It is thus clear that the court is not to look to the substance or merits of the decision made but it must confine itself to the issue of whether there has been a breach of any procedural requirements in the relevant legislation. D) ANALYSIS, FINDINGS AND DECISION [15] As alluded to earlier, the sole issue for determination is whether the fact that the Grounds of Detention and Statement or Allegation of 7 Facts (“Dokumen Alasan dan Pengataan Fakta”) were signed by the Assistant Secretary of the Prevention of Crime Board (“the Board”) instead of the Chairman had resulted in an infringement of section 19A of the Prevention of Crime Act 1959 (“POCA”) and therefore had prejudiced the Detention Order (“D.O”)? [16] Learned counsel for the Applicant submitted that it is the Chairman of the Board who must sign the said Grounds of Detention and Statement of Allegations of Facts or (“Dokumen Alasan dan Pengataan Fakta”). The Chairman has no power to delegate this responsibility to the Assistant Secretary. It was submitted therefore that section 19A had been infringed and thus the D.O was invalidated. [17] Section 19A POCA is set out as follows : Detention orders 19A. (1) The Board may, after considering the report of the Inquiry Officer submitted under section 10 and the outcome of any review under section 11, direct that any registered person be detained under a detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time, if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime. ( Emphasis added) [18] A perusal of section 19A POCA will indicate that the mandatory procedural requirements to be complied by the Board before making a D.O is to : i) consider the report of the Inquiry Officer; ii) outcome of any review under section 11; and iii) be satisfied that a detention is necessary in the interests of public order, public security or prevention of crime. [19] From a perusal of the section itself, it is clear that there is nothing that makes mandatory any requirement for the Chairman of 8 the Board to sign the Grounds of Detention and Statement of Facts (“Alasan dan Pengataan Fakta”). [20] A consideration of the affidavit of the Chairman of the Board affirmed on 20.3.2017 indicates that the Board was satisfied that the detention of the Applicant was necessary in the interests of public order and the prevention of crime. The mandatory requirements of section 19A was therefore fulfilled by the Board. [21] The significance of the Grounds of Detention and the Statement or Allegation of Facts is to facilitate the Applicant in making effective representations to the Board. A perusal of the relevant affidavits filed indicates that the Applicant was accorded the right to make effective representations to the Board. [22] This fact is effectively borne out by the affidavit in reply of Mastura Binti Abu Bakar, the Secretary to the Board (“Secretary”) affirmed on 12.5.2017 in which was set out the steps taken leading up to the Applicant being accorded the opportunity to make representations. [23] The said affidavit of the Secretary indicated that the representation of the Applicant against his D.O made through Borang 1 under sub-regulation 3(2) of the Prevention of Crime (Advisory Board Procedure) Regulations 2014 [P.U. (A) 86/2014], hereinafter, (“the Regulations”) were received by the Advisory Board on 18.8.2016. [24] The said affidavit further stated that on 29.8.2016, the Advisory Board sent a Notice of Hearing of Representation under sub-regulation 5(1) of the Regulations (“Borang 2”) to the Pusat Pemulihan Khas, Simpang Renggam, Kluang, Johor in order to be served on the Applicant informing him of the date, time and place the Advisory Board would sit to hear his representations. [25] On 29.8.2016, the Advisory Board sent an Order to Produce the Detainee pursuant to sub-regulation 6(1) of the Regulations (“Borang 3”) to the Pusat Pemulihan Khas, Simpang Renggam, Kluang, Johor 9 to be served on the Commandant of the Detention Centre to duly produce the Applicant before the Advisory Board which was to sit and hear the representations on 7.9.2016 at 9.00 a.m. [26] The Applicant however, requested for an adjournment on the said date in order to engage legal counsel to represent him. This request was agreed to by the Advisory Board who then verbally informed the Applicant of the fresh hearing date on 11.10.2016. After complying with all the necessary procedural steps, the hearing of the representation took place on 11.10.2016 at 9.00a.m. at the Pusat Pemulihan Khas, Simpang Renggam, Kluang, Johor. [27] The Applicant was therefore accorded every opportunity to present his representations as required. The Applicant was not prejudiced in any manner. There was therefore no infringement of section 19A POCA or Article 151 of the Federal Constitution as alleged. [28] It was also clear from the affidavits filed that the said Assistant Secretary to the Board acted on the instructions and directions of the Board in preparing the said Grounds of Detention and Statement of Facts and that the Board had carefully examined the details thereof before instructing the said Assistant Secretary to sign the said Grounds of Detention and Statement of Facts. [29] This fact was fortified by the words, “Dengan arahan Lembaga Pencegahan Jenayah” at the signature portion of the said Grounds of Detention and Statement of Facts annexed as exhibit “DAK 3” to the affidavit of the said Chairman of the Board affirmed on 20.3.2017. [30] A perusal of paragraphs 13 and 14 of the affidavit of the Chairman of the Board affirmed on the same date will reveal that Shela Vengirasamy, the Assistant Secretary of the Board, was instructed to prepare the said Grounds of Detention and Statement of Facts on the express instructions of the Board and only when the Board was satisfied after examining the document, was she instructed to sign on it. 10 [31] Under all the circumstances therefore it was evident that the said Assistant Secretary to the Board had not acted unilaterally in making any decision but acted instead on the express instructions and under authority of the Board in preparing and placing her signature on the said Grounds of Detention and Statement or Allegation of Facts. There was therefore no issue regarding delegation of any powers that arose. [32] In the unreported cases of Ruthran a/l Ravi v Timbalan Menteri Dalam Negeri, Malaysia dan 3 lagi, High Court of Malaya in Malacca, Criminal Application No: 25-16-10/2016 and Gopi a/l Inchara @ Inthiran v Timbalan Menteri Dalam Negeri, Malaysia dan 3 lagi, High Court of Malaya in Seremban, Criminal Application No: 44-19-09/2016, similar issues were canvassed where it was held that there was no contravention of the provisions of the Dangerous Drugs (Special Preventive Measures) Act 1985 where the Assistant Secretary had prepared and signed the Statement of Facts under the direction of the Deputy Minister. [33] The fact that these cases involved the Dangerous Drugs (Special Preventive Measures) Act 1985 and not the POCA ought not to make any difference in principle. The material fact is that the Applicant was accorded the right to make effective representations and was not prejudiced in any manner. [34] In the premises, the Notice of Motion is dismissed. Dated : 26th November 2017 ~ SIGNED ~ (COLLIN LAWRENCE SEQUERAH) Judge High Court of Malaya Johor Bahru 11 COUNSELS : Counsel for the Applicant : Mr. Najib Zakaria Messrs. Najib Zakaria, Hisham & Co. Advocates & Solicitors No. 11-1, Jalan Pinggiran Putra 4A/4 Desa Pinggiran Putra, 43000 Kajang Selangor Darul Ehsan T : 03-89280987 F : 03-89280956 Counsel for the Respondents : TPR Puan Adilah Binti Roslan Pejabat Penasihat Undang-Undang Kementerian Dalam Negeri Aras 5, Blok D1, Parcel D