Jayaganesan A/L Ramakrishnan v Timbalan Menteri dalam Negeri, Malaysia (05(HC)-237-10/2018(B))

Timbalan Menteri Dalam Negeri, Malaysia

Penguasa Pusat Pemulihan Akhlak Machang, Kelantan

Ketua Polis Negara ... Respondents Coram: DAVID WONG DAK WAH, CJSS BALIA YUSOF HAJI WAHI, FCJ TENGKU MAIMUN TUAN MAT, FCJ ABANG ISKANDAR ABANG HASHIM, FCJ NALLINI PATHMANATHAN, FCJ JUDGMENT OF THE COURT INTRODUCTION [1] This appeal stemmed from the decision of the High Court refusing to issue the Appellant a writ of habeas corpus. We heard the appeal on

2.2019 and after careful consideration, unanimously allowed it. We set aside the order of the High Court, allowed the Appellant's application for a writ of habeas corpus and ordered that he be released from detention with immediate effect. These are our written reasons. BACKGROUND [2] The Appellant was arrested on 3.3.2017 on the allegation that he was involved in activity relating to the trafficking of dangerous drugs. He was detained under the provisions of the Dangerous Drugs (Special Preventive Measures) Act 1985 (the Act). [3] Having completed investigations sometime after 18.4.2017, the $ 1^{\mathrm{st}} $ Respondent studied the relevant investigation reports and exercised his discretion to detain the Appellant under section 6(1) of the Act. To this effect, he issued a detention order dated 27.4.2017 (Detention Order) which took immediate effect for a period of two years. The Appellant was accordingly detained at Pusat Pemulihan Akhlak Machang, Kelantan. [4] At the High Court, the Appellant claimed that his detention was illegal on three grounds. The High Court did not agree with him on any of those grounds. [5] Before us however, the Appellant only canvassed one issue. In gist, he argued that the service of the notice dated 22.5.2017 (Notice) i.e. notifying him of the hearing before the Advisory Board (the Board), on him was irregular. His hearing before the Board was fixed on 7.6.2017. The Appellant claims that he was never taken before the Board to make his representations. He claimed, he was never served with the notice to attend the 7.6.2017 hearing. [6] On this issue, the Warden, deposed that on 22.5.2017, he was assigned to explain the said Notice to the Appellant. In his affidavit, he narrated that he did in fact explain to the Appellant that the hearing was to take place on 7.6.2017 at 9 a.m.. In concluding the relevant part of his affidavit explaining this matter, the Warden said that the Appellant understood what was explained to him on 27.9.2017 and 10.10.2017. [7] The Appellant therefore argued that on the face of the Warden's affidavit, there had been clear procedural non-compliance as the date of the Board hearing was explained to the Appellant after the hearing on 7.6.2017 took place. [8] In response, the Respondents argued that this was a typographical error. Critical to note however, is that there was no corrective affidavit filed on record rectifying or explaining this alleged mistake. THE DECISION OF THE HIGH COURT [9] On the above point, the High Court observed that there was no procedural non-compliance. The gist of the High Court's judgment reads as follows: "[55] Mahkamah ini menerima perenggan 7 Afidavit Jawapan Mohd Ilham bin Abdullah, warden penjara yang diikrarkan pada 19 April 2018 yang menyatakan seperti berikut: "7. Sesungguhnya, tiada pelanggaran terhadap Kaedah-Kaedah tersebut dan proses penyerahan Borang II tersebut telah dibuat dengan suci hati dan semua prosedur dan peruntukan undang-undang telah dipatuhi dengan sempurna." [56] Justeru, berdasarkan alasan-alasan yang dinyatakan di atas, isu pertama yang dibangkitkan oleh peguam pemohon adalah ditolak." OUR DECISION [10] The law on habeas corpus is trite. It is not a discretionary remedy. The writ must be issued if the Court finds that the detenu is illegally or improperly detained. See Yeap Hock Seng @ Ah Seng v Minister of Home Affairs, Malaysia [1975] 2 MLJ 279 where at page 281, Abdoolcader J (as he then was) said as follows: "The grant of habeas corpus is as of right and not in the discretion of the court as in the case of such extraordinary legal remedies as certiorari, prohibition and mandamus. It is a writ of right against which no privilege of person or place can be of any avail (R v Pell And Offly 84 ER 720. The heavy musketry of the law will always be brought to bear upon any suggestion of unlawful invasion or infringement of the personal liberty of an individual in the form of habeas corpus and kindred orders where necessary to grant relief when warranted. It was aptly put in the American case of State ex rel Evans v Broaddus 245 Mo 123 140 that at least in times of peace every human power must give way to the writ of habeas corpus and no prison door is stout enough to stand in its way." [11] Where a detainee challenges his detention as being illegal, the burden lies on the detaining authority to show that the detention is legal. In SK Takaliswaran Krishnan v Menteri Dalam Negeri, Malaysia [2009] 6 CLJ 705 Gopal Sri Ram FCJ held as follows at paragraph 5: "It is settled law that on an application for habeas corpus the burden of satisfying the court that the detention is lawful lies throughout on the detaining authority. See, Chng Suan Tze v. The Minister of Home Affairs & Ors And Other Appeals [1988] 1 LNS 162. In Mohinuddin v. District Magistrate, Beed AIR [1987] SC 1977, the Supreme Court of India observed as follows in the context of art. 22 of the Indian Constitution from which is drawn our art. 151: It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This Court on more occasions than one has dealt with the question and it is now well-settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22(5)." [12] Even if a detention was originally made in exercise of valid legal power, said detention may subsequently become invalid over a passage of time. See Lui Ah Long v Superintendent of Prisons, Penang [1977] 2 MLJ 226 where at pages 227-228 Arulanandom J said: "The second limb of the argument merits greater consideration, i.e. whether a detention which at its inception was legal could become illegal as a result of passage of time or for other reasons. The answer to this question will necessarily determine the result of this application... In view of this it is quite obvious that the authorities have exhausted all avenues and are unable to remove the applicant to his place of embarkation or his country of citizenship. The powers of detention under section 34(1) are clearly and unambiguously limited to detention for the purposes of removal to one of two places, i.e. the place of embarkation or country of citizenship and therefore the moment the detaining authorities have failed or found themselves in a position where the object of detention cannot be fulfilled, then it cannot be argued that further detention remains lawful. The purpose of the detention having been frustrated, continued detention a fortiori becomes unlawful." [13] Further, the applicant is entitled to take advantage of any technical defect which has the effect of invalidating the detention. See Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri & 1 Lagi [1994] 4 CLJ 47 where at page 55, Wan Yahya SCJ held as follows: [l]n cases of this nature the appellant is nevertheless entitled to take advantage of any technical imperfection which has the effect of invalidating the restrictive order; or to use the precise words of Regby J in Ex Parte Johannes Choeldi & Ors. [1960] 26 MLJ 184 at 186: The distinction, no doubt, is a highly artificial one. But this is an application for a writ of habeas corpus, and the applicants in matters which concern their personal liberty, are entitled to avail themselves of any technical defects which may invalidate the order which deprives them of that liberty." [14] We thus turned to consider the salient provisions of the Act. Section 9(1) of the Act mandatorily entitles any detainee the right to make representations before the Board. Rule 5(1) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987 ("1987 Rules") stipulates the procedure in the event the Board receives a representation. It reads: "Subject to the provisions of this Act, when any representation is received by the Secretary, the Chairman shall appoint a time and place for the consideration of the representation by the Board and shall cause a notice thereof in Form II in the Schedule to be served on the detained person and his advocate if such advocate is named in Form I." [15] The words "shall" as emphasised indicates that compliance with this statutory requirement is mandatory. Non-compliance with mandatory provisions generally renders the detention illegal. See Re Datuk James Wong Kim Min [1976] 2 MLJ 245 where at page 251, Lee Hun Hoe (CJ Borneo) said this: "Preventive detention is, therefore, a serious invasion of personal liberty. Whatever safeguard that is provided by law against the improper exercise of such power must be zealously watched and enforced by the court. In a matter so fundamental and important as the liberty of the subject, strict compliance with statutory requirements must be observed in depriving a person of his liberty. The material provisions of the law authorising detention without trial must be strictly construed and safeguards which the law deliberately provides for the protection of any citizen must be liberally interpreted. Where the detention cannot be held to be in accordance with the procedure established by the law, the detention is bad and the person detained is entitled to be released forthwith. Where personal liberty is concerned an applicant in applying for a writ of habeas corpus is entitled to avail himself of any technical defects which may invalidate the order which deprives him of his liberty. See Ex parte Johannes Choeldi & Ors [1960] MLJ 184." [16] All the more, we were of the view that the Appellant's right to make representations cannot be superfluous, meaningless, or a mere façade. Thus, the failure to serve the said Notice on the Appellant, as was apparent from the dates in the Warden's affidavit, meant that that the Appellant was unable to make any representations before the Board. See generally: Re Roshidi bin Mohamed [1988] 2 MLJ 193, at page 196. [17] The only response the Respondents could offer us was that the dates indicated in the Warden's affidavit were typographical errors. Now, when it comes to affidavits the trite and tested rule regarding how they work, was explained by Shankar J in Overseas Investment Pte Ltd v Anthony William & Anor [1988] 3 MLJ 332, at pages 333- 334: [W]hat evidence was there to support that contention? None whatsoever except the say-so of the plaintiff's solicitors in the writ of seizure and sale. The plaintiff did not file any affidavit to contradict the affidavits filed by the claimant. Where a case is to be decided on a contest of affidavits, the rule is clear. Material allegations which are not contradicted are deemed to be admitted." [Emphasis added] [18] The case here was plainer than the analogy in the above paragraph. The allegation by the Appellant was that he was never brought before the Board. The Respondents aver through the Warden, that the Appellant was served. But, the said affidavit markedly indicates that the Appellant was served well past the 7.6.2017 hearing date. Their counsel denied this by making a statement from the Bar alleging those erroneous dates as being typos. No corrective affidavit was put before us by the Respondents indicating that the dates stated in the Warden's affidavit were a mistake. [19] Therefore, taking the Respondents on their own Warden's averment, there was plain non-compliance with the mandatory provisions of the law. We considered this in itself warranted the Appellant to a writ of habeas corpus. [20] Further, we noted as a passing remark, that we found this typo story to be rather curious. The Warden's affidavit indicated two erroneous dates to wit, 27.9.2017 and 10.10.2017. These were very specific dates which were some two to three months after the Board hearing on 7.6.2017. It is not to say that the deponent or even the typist simply mistyped the dates. Rather, they specifically inserted two entirely different and comparatively unrelated dates. This, to us, made the typo story harder to believe. We thought that a mistake as grave as this would have necessarily called for a corrective affidavit explaining this alleged glaring error. [21] In this sense, constrained by the law and the facts of this case, we took the dates as we found them. With that, it was clear to us that the strict requirements of the law were not complied with. Taking the dates at the face value it was clear that the Appellant was not served with the said Notice before his hearing before the Board. We therefore arrived at the view that the Respondents plainly failed to meet their burden to justify the legality of the Appellant's detention. [22] As a corollary, and for the reasons aforementioned, we opined that the Court below erred in arriving at the conclusion that it did. In the result, we considered this an appropriate case for appellate intervention. [23] Thus, in our considered view, as the detaining authority was unable to meet its burden to satisfy us that the strict requirements of the law were met, we arrived at the view that the detention was unlawful and we thereby allowed the appeal. We accordingly issued a writ of habeas corpus and ordered the Appellant be released forthwith. Dated: 17 June 2019. (DAVID WONG DAK WAH) Chief Judge of Sabah and Sarawak Appellant : Messrs. Sivananthan

Dato Sivananthan Nithyanantham

Jay Moy Wei Jiun Respondents : The Attorney General's Chambers Muhammad bin Sinti, Senior Federal Counsel Notice: This copy of the Court's Reasons for Judgment is subject to formal revision.