Azharuzaman Bin Wahab v Timbalan Menteri dalam Negeri Kementerian dalam Negeri Malaysia (BA-44-103-08/2023)

1.

PENGARAH PUSAT PEMULIHAN AKHLAK

KETUA POLIS NEGARA, MALAYSIA …APPELLANT BACKGROUND OF THE CASE [ 1 ] The application was heard on the 23rd of January 2024 and this court had dismissed the application. The reasons for the dismissal are set out below. [ 2 ] A detention order dated 24.3.2023 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 procedural non-compliance with the Act and the Federal Constitution. THE ISSUES [ 3 ] The applicant’s counsel in his written submission raised three issues viz. -

Procedural non-compliance when the detention order is defective for contradictions found in the first and second allegations of fact;

(ii) Non-compliance of section 3(2)(c) of the Act by DSP Saravanan a/l Divanantong when he failed to apply his mind correctly before allowing the applicant’s detention for investigation exceeding 14 days; and

(iii) The detention order is ex-facie defective as one of the drug trafficking location is non-existent i.e. “di tepi jalan sekitar hadapan Eco-Shop Marketing Sdn Bhd., Batu 3, Kuantan, Pahang”. THE LAW ON HABEAS CORPUS APPLICATIONS [ 4 ] Subsection 11C(1) of the Act allowed judicial review for non-compliance of any procedural requirement of the Act – “Judicial review of act or decision of Yang di-Pertuan Agong and Minister 11C. (1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.” (emphasis added) [ 5 ] Various decisions of the Federal Court had strictly applied such provisions as in the following case of Rovin Joty Kodeeswaran v. Lembaga Pencegahan Jenayah & Ors And Other Appeals1 - “[10] Judicial review on the decision of the tribunals exercising similar functions to the Board should not be questioned except on procedural non-compliance. Such discretion in determining the substantive / policy matter by the Board was outside the reach of the courts…” [ 6 ] The burden of proving compliance with the law and procedures is always on the Respondents. [see S.K. Tangakaliswaran v Timbalan Menteri Dalam Negeri & Ors.2, Muhammad Jailani Kasim v Timbalan 1 [2021] 4 CLJ 1 2 [2009] 6CLJ 705 Menteri Keselamatan Dalam Negeri Malaysia & Ors.3]. A detenu can also take advantage of any technical imperfections in the action taken by the detaining authorities. [see Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri & 1 Lagi SC4]. THE SUBMISSIONS AND FINDING First issue: The detention order is defective for contradictions in the first and second allegations of fact [ 7 ] Learned counsel submitted that the detention order is defective, confusing and prejudicial to the applicant as there are contradictions in the first and second allegations of fact. The first allegations of fact stated that the applicant had been involved in drug trafficking activities from end of March 2022 to 12 February 2023 not continuously (secara tidak berterusan). But in the second allegations of fact stated that the applicant’s sale of the drugs was carried out every day (“menjual dadah tersebut dengan kekerapan pada setiap hari”). [ 8 ] Learned counsel compared the allegations of fact in a detention order as similar to a charge in a criminal trial. As such, the applicant’s representation hearing under Article 151 of the Federal Constitution is defective which in turn would render the recommendation by the Advisory Board to the Yang di-Pertuan Agong under subsection 10(1) of the Act also defective. 3 [2006] 4 CLJ 687] 4 [1994] 4 CLJ 47, at p.55]. [ 9 ] Learned Senior Federal Counsel (“SFC”) argued that this issue is not an issue of procedural non-compliance but questioning the exercise of the Deputy Minister’s power in issuing a detention order under section 6(1) of the Act. Section 11C(1) of the Act prohibits judicial review of any act done or decision made by the Yang di-Pertuan Agong (“YDPA”) or the Minister in the exercise of their discretionary power in accordance with this Act. [ 10 ] It was also submitted that the purpose of the allegations of fact is to enable the applicant to make a representation before the Advisory Board concerning his detention. The mandatory procedure with regards to the grounds and allegations of fact on which his detention is based on is to furnish the applicant with the same under subsection 9(2) of the Act which was duly complied with in this case. [ 11 ] The allegations of fact are reproduced below for a clearer picture of the alleged contradictions – “PENGATAAN-PENGATAAN FAKTA YANG ATASNYA PERINTAH ITU DIASASKAN -

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati terlibat dengan aktiviti pengedaran dadah jenis pil kuda yang mengandungi dadah berbahaya jenis Methamphetamine sejak penghujung bulan Mac 2022 sehingga 12 Februari 2023 secara tidak berterusan di sekitar kawasan tepi jalan berhampiran Sekolah Menengah Kebangsaan Seri Damai, Kuantan, Pahang, di sekitar kawasan Kampung Seri Damai, Kuantan Pahang, di sekitar kawasan Taman Tas, Kuantan, Pahang, di tepi jalan sekitar hadapan rumah beralamat No.252-B, FELDA Sungai Panching Selatan, Kuantan, Pahang, di sekitar kawasan belakang Restoran Nasi Lemak Zaman, Jalan Kuantan-Gambang, Kuantan, Pahang, di tepi jalan sekitar hadapan Eco-Shop Marketing Sdn. Bhd., Batu 3, Kuantan, Pahang dan di sekitar kawasan Kampung Tengah, Kuantan, Pahang.

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati menjual dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dalam bentuk tongkol (10 peket plastik berisi 200 biji sepeket) dengan harga RM7,000.00 hingga RM8,000.00 setongkol, dalam bentuk peket (5 peket plastik berisi 200 biji sepeket) dengan harga RM3,500.00 hingga RM3,800.00, dalam bentuk peket (3 peket plastik berisi 200 biji sepeket) dengan harga RM2,000.00, dalam bentuk kandang (peket berisi 200 biji) dengan harga RM1,000.00 hingga RM1,200.00 sekandang dan dalam bentuk baris (tiub straw berisi 10 biji) dengan harga RM100.00 sebaris. Bahawa kamu juga mengaku menjual bekalan dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dengan kekerapan setiap hari.

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati membeli bekalan dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dalam bentuk kandang (peket berisi 200 biji) berharga RM700.00 sekandang dan dalam bentuk tiga (3) tongkol (peket berisi 2,000 biji setongkol) berharga RM18,000.00 daripada rakan-rakan sejenayah dan membuat pembungkusan semula dalam bentuk peket kecil pelbagai saiz bagi tujuan pengedaran. Bahawa kamu mengaku membeli bekalan dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dengan kekerapan satu (1) peket hingga tiga (3) kali seminggu bagi tujuan pengedaran kepada rakan-rakan sejenayah.

Bahawa kamu merupakan sebahagian dari sekumpulan besar orang didapati mengendalikan aktiviti pengedaran dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dengan merekrut rakan-rakan sejenayah sebagai pengedar dadah dengan membekalkan dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dalam bentuk tongkol (10 peket plastik berisi 200 biji sepeket) dengan harga RM7,000.00 hingga RM8,000.00 setongkol, dalam bentuk peket (5 peket plastik berisi 200 biji sepeket) dengan harga RM3,500.00 hingga RM3,800.00, dalam bentuk peket (3 peket plastik berisi 200 biji sepeket) dengan harga RM2,000.00, dalam bentuk kandang (peket berisi 200 biji) dengan harga RM1,000.00 hingga RM1,200.00 sekandang bagi tujuan pengedaran. Bahawa kamu juga didapati mempunyai rakan sejenayah yang berperanan sebagai penjaga stor simpanan dan sebagai penghantar bekalan (runner) dadah jenis Pil Kuda yang mengandungi dadah berbahaya jenis Methamphetamine dengan membayar upah RM500.00 kepada rakan sejenayah berkenaan bagi penghantaran bekalan dadah dalam sehari.” (emphasis added) [ 12 ] The court finds itself in agreement with learned SFC on this issue. The issue raised is not a procedural non-compliance issue. The applicant had been duly served and furnished with a copy of the grounds and allegations of fact together with the detention order as provided under subsection 9(2) of the Act. The applicant had been given the opportunity to make representation before the Advisory Board. A recommendation was duly submitted to the YDPA for his approval. [ 13 ] There is no provision in the Act on how the content of the grounds and allegations of fact should be narrated or then considered by the Advisory Board. As stated in Lee Kew Sang v Timbalan Menteri Dalam Negeri Malaysia & Ors5 “It is not for the courts to create procedural requirements because it is not the function of the courts to make law or rules.” 5 [2005] 3 CLJ 914, page 930-931 [ 14 ] In any case, the court found no contradictions between the two allegations of fact as each paragraph of the allegations refers to a different activity and all paragraphs must be read together to have a complete picture of the applicant’s involvement in drug trafficking activities. The first allegation refers to the different areas of the applicant’s drug trafficking activities in Kuantan, Pahang, not continuously simply means drug is not trafficked everyday in every area stated. The second allegation specifically focussed on the sale of drugs in different forms referred to as “tongkol, kandang, peket and baris” priced differently and sold every day without reference to any particular area. The third allegation detailed how the applicant bought his drug supply and repackaging the drugs for sale. The fourth allegation laid out how the applicant recruited accomplices for the storage and delivery of the drugs. Read together, no confusion there, thus the court finds no merit to the first issue. Second issue: Non-compliance of section 3(2)(c) of the Act by DSP Saravanan a/l Divanantong when he failed to apply his mind correctly before allowing the applicant’s detention for investigation exceeding 14 days. [ 15 ] It was submitted by learned counsel that the applicant’s case file submitted by the Investigation officer Inspector Abang Annuar bin Abang Kaderi (“IO/PDRM”) to DSP Saravanan a/l Divanantong (“DSP Saravanan”) was defective and incorrect. Learned counsel based this argument on an incorrect reference to the type of drug that the applicant was suspected to be trafficking. This can be seen at paragraph 4, line 9 and 10 of DSP Saravanan’s Affidavit (enclosure 12) where he stated the type of dangerous drug as ‘Heroin’. In the grounds and allegations of fact the type of dangerous drug is stated as ‘Methamphetamine’. [ 16 ] Learned counsel then questioned whether the applicant was actually involved with the trafficking of ‘Heroin’ or ‘Methamphetamine’? Consequently, it was argued that the report made by DSP Saravanan to ACP Mohamed Fadzil bin A. Rahman (“ACP Mohamed Fadzil”) which was submitted to the Minister under section 3(2)(c) of the Act was also defective. There was no Affidavit filed by DSP Saravanan to amend the incorrect reference in his Affidavit Jawapan. This shows that DSP Saravanan and ACP Mohamed Fadzil did not use their mind correctly in allowing the continued detention of the applicant. [ 17 ] On the other hand, learned SFC submitted that the incorrect reference of the drug type was a typing error. Although a correction was not made by DSP Saravanan, the mistake is not material to the case and did not prejudice the applicant. The learned SFC relied on the case of Tay Lay Beng v Menteri Hal-Ehwal Dalam Negeri & Anor6, PP v Chean Hua Sey & Ors7 and Mohd Fazli bin Md Daud v Timbalan Menteri Dalam Negeri & 2 Lagi8 as support for his argument. [ 18 ] It was also argued that the procedural requirement for detaining the applicant beyond 14 days under section 3(2)(c) of the Act is the reporting of the circumstances of the applicant’s arrest and detention to ACP Mohamed Fadzil and to the Minister. This was duly complied with by DSP Saravanan and ACP Mohamed Fadzil. The Minister had 6 [2004] 8 CLJ 674 7 [2008] 9 CLJ 657, para 8 [2022] 1 LNS 913, para 21 acknowledged receipt of the report in his Affidavit Jawapan, in paragraph 6 (enclosure 5). [ 19 ] Section 3(2)(c) of the Act requires the reporting of the circumstances of the applicant’s arrest and detention by a a police officer of or above the rank of DSP to the Inspector General of Police (”IGP”) or a police officer designated by him to be forwarded forthwith to the Minister. There is no provision that details what are the circumstances of an applicant’s arrest and detention that must be stated in such report. [ 20 ] A perusal of the IO/PDRM’s Affidavit (para 6, enclosure 9) shows that the investigation on the applicant’s involvement in drug trafficking activities could not be completed within 14 days; as such, a report of the circumstances of his arrest and detention was made to DSP Saravanan. In paragraph 5 of DSP Saravanan’s Affidavit (supra), he stated that upon his perusal of the applicant’s case file, he was satisfied that the investigation is yet to be completed and the applicant’s detention should be extended to more than 14 days. DSP Saravanan then complied with section 3(2)(c) of the Act by reporting the circumstances of his arrest and detention to ACP Mohamed Fadzli to be extended to the Minister. The mandatory procedural requirement was duly complied with thus far. [ 21 ] The court found that the incorrect reference of the type of drug in DSP Saravanan’s Affidavit i.e. Heroin instead of Methamphetamine be it a typing error or not is immaterial and not prejudicial to the applicant. At this stage, the investigation into the applicant’s drug trafficking activities with a substantial number of people is not yet complete. The investigation report by the IO/PDRM under section 3(3) of the Act was only completed on 3.3.2023 and sent to the Minister and inquiry officer of the Home Ministry (“IO/KDN”). [ 22 ] Only upon receipt of both the reports from the IO/PDRM and the IO/KDN under section 5(4) of the Act will the Minister consider the necessity to issue a detention order against the applicant. The type of dangerous drug stated in the IO/PDRM’s Affidavit Jawapan (para 14, enclosure 9) and the IO/KDN’s Affivadit Jawapan (para 12, enclosure 6) is Methamphetamine. The Minister in turn based his decision to issue a detention order on these two complete reports and not on the report of ACP Mohamed Fadzil and DSP Saravanan’s report. Thus, the type of dangerous drugs stated in the grounds and allegations of fact to the detention order is consistent with the finding of both the IO/PDRM and IO/KDN. The court finds no merit to this issue. Third issue: The detention order is ex-facie defective as one of the drug trafficking location is non-existent i.e. “di tepi jalan, sekitar hadapan Eco-Shop Marketing Sdn Bhd., Batu 3, Kuantan, Pahang”. [ 23 ] In the applicant’s Affidavit Sokongan (enclosure 3), photos of Eco-Shops in Pahang sourced from the company’s website were attached as “AH-2”. It was contended that none of the Eco-Shop’s stores in Kuantan showed an address as stated in the first paragraph of the allegations of fact i.e, Eco-Shop Marketing, Batu 3, Kuantan, Pahang (“the Eco-Shop”). Therefore, learned counsel submitted as the address does not exist, it renders the detention order ex-facie defective. [ 24 ] It was also argued that the IO/PDRM’s reply in his Affidavit Jawapan had failed to discharge the Respondent’s burden to answer a specific issue raised by the applicant. This in turn raised the question of whether the IO/PDRM had actually visited the place since no proof of the visit like a photograph of the area was not appended to his Affidavit Jawapan to challenge the applicant’s allegation. [ 25 ] Learned SFC maintained that this issue is also not a procedural non-compliance issue. As submitted before, the procedure under section 9 of the Act is the service and furnishing of the grounds and allegations of fact to the applicant for his representation before the Advisory Board. Learned SFC also argued the fact that the IO/PDRM had actually visited the place i.e. at the road side, around the front of Eco-Shop Marketing Sdn. Bhd, Batu 3, Kuantan, Pahang (para 36 of his Affidavit Jawapan). The emphasis is on “the road side, around the front of the Eco-Shop” (di tepi jalan, sekitar hadapan Eco-Shop), not the shop itself. On the other hand, the learned counsel had only obtained his information on his search the company’s website. [ 26 ] The court agrees with learned SFC’s argument that this is another non-issue of procedural compliance. On closer inspection, it is correct to say that the emphasis is on the “surrounding area in front of the shop, at the road side”; not the shop itself. This is consistent with the description of the other areas of drug trafficking activities listed such as “di sekitar kawasan Taman Tas, Kuantan, Pahang, di tepi jalan sekitar hadapan