Izzat Hamzie Hafiz Bin Shrkawi v Timbalan Menteri dalam Negeri Kementerian dalam Negeri Malaysia (BA-44-160-06/2024)

(1) No person shall be deprived of his life or personal liberty save in accordance with law.

Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.

Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority: Provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day: Provided further that in its application to a person, other than a citizen, who is arrested or detained under the law relating to immigration, this Clause shall be read as if there were substituted for the words “without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey)” the words “within fourteen days”: And provided further that in the case of an arrest for an offence which is triable by a Syariah court, references in this Clause to a magistrate shall be construed as including references to a judge of a Syariah court.

Clauses (3) and (4) do not apply to an enemy alien.” [4] Article 151 of the Federal Constitution states:

“Restrictions on preventive detention

Where any law or ordinance made or promulgated in pursuance of this Part provides for preventive detention—

the authority on whose order any person is detained under that law or ordinance shall, as soon as may be, inform him of the grounds for his detention and, subject to Clause (3), the allegations of fact on which the order is based, and shall give him the opportunity of making representations against the order as soon as may be;

no citizen shall continue to be detained under that law or ordinance unless an advisory board constituted as mentioned in Clause (2) has considered any representations made by him under paragraph (a) and made recommendations thereon to the Yang di-Pertuan Agong within three months of receiving such representations, or within such longer period as the Yang di-Pertuan Agong may allow.

An advisory board constituted for the purposes of this Article shall consist of a chairman, who shall be appointed by the Yang di-Pertuan Agong and who shall be or have been, or be qualified to be, a judge of the Federal Court, the Court of Appeal or a High Court, or shall before Malaysia Day have been a judge of the Supreme Court, and two other members who shall be appointed by the Yang di-Pertuan Agong.

This Article does not require any authority to disclose facts whose disclosure would in its opinion be against the national interest.” [5] The Dangerous Drugs (Special Preventive Measures) Act 1985 states:

“Power to order detention and restriction of persons

Whenever the Minister, after considering—

the complete report of investigation submitted under subsection 3(3); and

the report of the Inquiry Officer submitted under subsection 5(4), is satisfied with respect to any person that such person has been or is associated with any activity relating to or involving the trafficking in dangerous drugs, the Minister may, if he is satisfied that it is necessary in the interest of public order that such person be detained, by order (hereinafter referred to as a “detention order”) direct that such person be detained for a period not exceeding two years.” [6] The law on habeas corpus was succinctly summarised in the Federal Court case of Chua Kian Voon v Menteri Dalam Negeri Malaysia & Ors [2020] 1 MLJ 351; [2020] 1 CLJ 747 and to avoid tautology, recapitulation or perissology, I shall not restate it here. [7] The first and second issues will be taken together. They are as follows: FIRST ISSUE: The 27 days delay by the Investigating Officer in submitting a complete report of the investigation pursuant to section 3(3) of the Act is a procedural non-compliance; SECOND ISSUE: The 26 days delay by the Inquiry Officer in submitting a complete report of the Investigation pursuant to section 5(4) of the Act read together with section 54(2) of the Interpretation Act 1948 and 1967 is a procedural non-compliance; [8] On the first issue the applicant’s counsel submitted as follows: “1. The applicant humbly submits to this Honorable Court that the Investigating Officer, has failed to submit his complete report under section 3(3) of the Act to the Inquiry Officer and the Deputy Minister within “all convenient speed” thus making it a procedural non-compliance. We also submit that the delay of 27 days is unreasonable and is not supported by credible reasons and has not been satisfactorily explained by the Investigating Officer.

Additionally, when referring to the reasons for delay given by the Investigating Officer in paragraph 16 of his Affidavit in Reply, it is submitted that the reasons provided by the Investigating Officer are reasons that are rejected by the apex court for being non-credible reasons as they are merely “a plea of heavy workload”.

We invite this Honorable Court to evaluate the reasons given by the Investigating Officer. The applicant was arrested on 29.7.2023. The applicant’s statement was recorded as early as 1.8.2023 which is 3 days after the applicant was arrested. The Investigating Officer has also managed to complete the statement taking of all witnesses by 17.8.2023. However, the complete report was only submitted to the Inquiry Officer and the Deputy Minister on 25.8.2023 which was 8 days later.

When scrutinising the reasons provided by the Investigating Officer for taking up to 27 days to complete his investigation from 29.7.2023 till 25.8.2023, it is clear that the Investigating Officer has only utilised 14 days to conduct and complete his investigations on the applicant’s file. As such, it is abundantly clear that throughout the duration of the 27 days, the Investigating Officer only needed 14 days to complete his investigations and prepare a complete report on the applicant’s file.” [9] On the second issue counsel submitted: “1. The applicant humbly submits that the delay by the Investigating Officer would automatically cause the Investigation by the Inquiry Officer to be delayed as well, and this will yet again prejudice the applicant who would be remanded for an additional unreasonable amount of time.

In the instant case, there is a delay up to 26 days by the KDN Inquiry Officer in submitting his report pursuant to section 5(4) of the Act. It is also our contention that the KDN Inquiry Officer had failed to satisfactorily explain the reason for the 26 days delay.

By referring to paragraphs 10 and 13 of the KDN Inquiry Officer’s Affidavit in Reply, only 5 days were allocated in conducting investigations relating to the applicant’s case. Other than the 5 days, the KDN Inquiry Officer was only conducting duties on other files that were not related to the applicant. Once again, priority was not given to the investigation of the applicant’s alleged involvement.

Additionally, the Inquiry Officer’s plea of locating witnesses in order to rationalize the delay of 26 days is unjustifiable especially when all witnesses relating to the applicant’s case were already identified by the Investigating Officer, who by himself took 27 days to locate these witnesses, making it easy for them to be brought forward to the Inquiry Officer for the purposes of recording statements.

Moreover, relying on the need to work on other files as the reason why there was a delay in the applicant’s file is completely unacceptable, as all Inquiry Officers are expected to complete the files that are assigned to them. The apex court has rightly decided that heavy workload is not a just reasoning as to why a case file failed to be completed in a timely manner, as it would render the applicant detained for a longer period of time, subsequently making it highly prejudicial to the applicant.” [10] The answer to the above two issues can be seen in the Federal Court case of Muhammad Redzuan bin Omar v Timbalan Menteri Dalam Negeri, Malaysia & Anor [2022] 5 MLJ 611, where the court speaking through YA Hasnah Mohammed Hashim FCJ (as YAA CJM then was) opined: “[55]……..In reality, IOs and inquiry officers normally have more than one detainee to investigate and to conduct inquiry, at any one point of time. As long as the investigation and the submission of the reports by the IO and the inquiry officer is within the prescribed 60 days of detention, the detention order cannot be said to be illegal. [56] In determining the issue before us, we considered not merely the words of the Act, but also the intent of the legislature. Every statute must be construed ex vigoenibus actus or ex visceribus actus, that is, provisions of a statute must be construed and interpreted within the four corners of the Act. The court must consider other parts of the statute which will throw light on the intention of the legislature. Hence, a provision ought not to be construed as it stood alone but is interdependent with the other provisions of the statute. [57] Applying the aforesaid principle of interpretation in reading statutes, in construing what is the time period to be applied in s 3(3) of the Act, the court ought not to restrict its attention only to the said section, but to consider other provisions of the Act, namely s 3(2) as it relates specifically to time period of detention. This is the section which throws light on the intention of the Legislature and serve to show that s 3(3) ought not to be construed standing alone without due regard to the rest of the Act. [58] It is our view that the terms of ss 3 and 5 are crystal clear. So long as the submissions of the required reports are made within the prescribed 60-day period of the detention order, there is no procedural non-compliance. It is not for the courts to determine whether the investigation period and/or inquiry period have been conducted with convenient speed. The time period taken to conduct investigation and inquiry is very subjective and depends on each individual case. One case may take longer or lesser than another, so long as the total number of days taken does not exceed the prescribed 60 days period. This is precisely why the Minister could not prescribe a fixed period for each stage of investigation or inquiry period to be completed.” [11] See also the case of Vicneshwaran A/L Balan v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2024] MLJU 888. [12] The learned SFC in her submissions also referred the court to the following Federal Court decisions which have agreed with the reasoning in Muhammad Redzuan bin Omar v Timbalan Menteri Dalam Negeri, Malaysia & Anor above. The SFC submitted: “ This position is consistent with the recent Federal Court’s decision on the issue of delay in the case of Mariam binti Mohd Samat v. Timbalan Menteri Dalam Negeri & Ors (Rayuan Jenayah No. 05(HC)-58-03/2024(B)) ( Total days taken by the Investigating Officer is 27 days and 19 days by the Inquiry Officers); Palaniveloo a/l Ramalingam v. Timbalan Menteri Dalam Negeri & 2 Ors (Rayuan Jenayah No. 05(HC)-15-02/2024 (B)) (Total days taken by the Investigating Officer is 16 days and 20 days by the Inquiry Officer); Mohd Izzul Fakrul bin Mat Yasin v. Timbalan Menteri Dalam Negeri & Lain-Lain (Rayuan Jenayah No. 05(HC)-76- 05/2024(B)) (Total days taken by the Investigating Officer 21 days and Inquiry Officer 8 days) and Jeddahlyn Lopez Lingat v. Timbalan Menteri Dalam Negeri & 2 Ors (Rayuan Jenayah No. 05(HC)-82-06/2024(B)) (Total days taken by the Investigating Officer 15 days and 28 days by the Inquiry Officer).” [13] Therefore as both the Investigating and Inquiry officers submitted their respective reports within the 60 days time frame provided for under the law, the above two issues by the applicant fails. THIRD ISSUE: The Investigating Officer’s failure to provide the applicant with his own statement recorded under section 4 of the Act had prejudiced the applicant’s ability to properly defend his case at the Representation Hearing and is a violation of Article 151(1)(a) of the Federal Constitution. [14] The applicant’s counsel submitted as follows: “1. The Investigating Officer’s stand that there was no necessity under the said law to provide the applicant with his recorded statement contradicts with the actions taken by Bahagian Tahanan, Jabatan Siasatan Jenayah Narkotik, Ibu Pejabat Polis Diraja Malaysia, Bukit Aman, Kuala Lumpur when the applicant’s recorded statement was then provided to the applicant’s lawyer through a letter dated 21.5.2024 for the purpose of filing this Application. Refer to Exhibit “MHI-3” in Mohammad Hasrol’s Affidavit in Reply.

This clearly proves that the recorded statement taken from the applicant could have been furnished to the applicant when it was requested by him at the early stages of the investigation, and it has nothing to do with the requirements under the Act. The failure of the Investigating Officer to furnish the applicant with a copy of his recorded statement for the purposes of his Representation Hearing before the Advisory Board has gravely prejudiced the applicant.” [15] The learned Senior Federal Counsel submitted: “1. We would like to emphasise that there is no requirement under the Act for the Investigating Officer to provide the applicant with his own recorded statement under section 4 of the Act. Hence, on this issue, we are guided by the Federal Court case of Lee Kew Sang v Timbalan Menteri Dalam Negeri, Malaysia & Ors.

For the purpose of representations against the detention order pursuant to section 9(1) of the Act, section 9(2)(b) of the Act provides that the only documents to be furnished are: a) Statement in writing of the grounds on which the order is made; b) Statement in writing of the allegations of fact on which the order is based; and c) Statement in writing of such particulars, if any, he may in the opinion of the Minister reasonably require to make his representations against the order to the Advisory Board.

There is no where in the Act which states that the recorded statement under section 4 of the Act must be provided to the applicant. If the Legislature intends as such, a specific provision directing for the same should be stated in the Act.

The respondents also submit that this Court should distinguish the request made by the applicant after his statement was recorded from the request made by his counsel after the Order of Detention has been issued against him. The request by the applicant was made while the investigation was still ongoing and therefore there is no requirement at the material time for the recorded statement to be furnished, after all, it was read to the applicant and he was allowed to correct any mistakes and confirm the statement. Whereas, when the request was made by the applicant for a writ of habeas corpus, to challenge any non-compliance of procedures under the Act among others, compliance with section 4 of the Act, the respondent had no other option than to furnish the recorded statement, failing which, the applicant would make an adverse inference and argue that his right was denied.” [16] In the Federal Court case of Lee Kew Sang v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914; [2005] MLJU 667 the Federal Court 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 ss. 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 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.” FOURTH ISSUE: The failure of the Inquiry Officer in furnishing a copy of the applicant’s own statement before the applicant’s Representation Hearing is a violation of Article 151(1)(a) of the Federal Constitution. [17] The applicant’s counsel submitted as below: “1. It is our humble submission that the notes taken by the KDN Inquiry Officer from the statements given by the applicant will constitute as evidence while preparing the complete report under section 5(4) of the Act. Therefore, it is submitted that the applicant has full right to the notes recorded from him for him to either confirm or deny the contents of it before the Advisory Board.

However, although the applicant has applied for a copy of the recorded statements to be furnished to him, the Inquiry Officer rejected this proposition noting that no statements were recorded from the applicant.

The Inquiry Officer’s averment that no written statements were taken from the applicant is easily proven wrong when referring to paragraph 17 of the Inquiry Officer’s Affidavit in Reply in which he clearly states that “saya hanya membuat catatan sebagai rujukan saya”.

This evidence goes against the Inquiry Officer’s initial allegation that no statements were recorded from the applicant and therefore, the Inquiry Officer’s averment that the applicant did not request for the statement to be furnished cannot be taken to be truth, as his Affidavit evidence contradicts as it is.

In this case it is even more important for the applicant to have been furnished with the notes recorded by the Inquiry Officer as the applicant will not be represented by a lawyer during his Representation Hearing. Therefore, the applicant should be accorded with the opportunity to prepare and present a full and proper representation to the Advisory Board as provided by Article 151(1) (a) of the Federal Constitution.” [18] Again, the learned Senior Federal Counsel submitted: “1. However, it is pertinent to emphasize as follows: a) that the Inquiry Officer did not record any statement under section 4 of the Act, however, he may require attendance of the applicant pursuant to section 5(3)(a) of the Act to inquire whether there are reasonable grounds for believing that applicant has been or is associated with any activity relating to or involving the trafficking in dangerous drugs; b) that there is no requirement under the Act that a copy of the applicant’s own recorded statement (which we submit did not exist) be given to the applicant.”

Furthermore, the Inquiry Officer, in exercising his power under section 5 of the Act, obtained information from the applicant orally through questions and answers, subsequently making notes to assist in preparing the written report under section 5 of the Act. Whatever notes taken by the applicant should be distinguished from a recorded statement taken under Section 4 of the Act, which mirrors section 112 of the Criminal Procedure Code.” [19] Article 151(1)(a) of the Federal Constitution only requires the respondents to inform the applicant of the grounds for his detention and the allegations of fact on which the detention order is based. That’s all that the article says. Ergo based on the authority of Lee Kew Sang v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914; Applicant Puan Puteri Batrisyia bt Abdul Latif Peguambela dan Peguamcara Tetuan Jay & Jay (Petaling Jaya) Respondent Puan Nur Syahidah bt Mohamad Kamil Pejabat Penasihat Undang-Undang Kementerian Dalam Negeri Aras 5, Blok D1, Kompleks D Pusat Pentadbiran Kerajaan Persekutuan 62546 Putrajaya References:- Cases referred to:

Chua Kian Voon v. Menteri Dalam Negeri Malaysia & Ors [2020] 1 MLJ 351;[2020] 1 CLJ 747

Muhammad Redzuan bin Omar v. Timbalan Menteri Dalam Negeri

Malaysa & Anor [2022] 5 MLJ 611 Vicneshwaran a/l Balan v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2024] MLJU 888

Lee Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914; [2005] MLJU 667