Kaviarasan A/L Viswanathan v 1. ) Pendakwa Raya (BA-44-133-04/2024)

PENGUASA KANAN, PUSAT PEMULIHAN AKHLAK, SIMPANG RENGGAM, JOHOR …RESPONDEN JUDGMENT INTRODUCTION [1] The Applicant, Kaviarasan a/l Viswanathan (No.K/P:940724-10- 5351), filed a writ of Habeas Corpus to challenge the detention of the accused at the Pusat Pemulihan Akhlak, Simpang Rengam from 24/10/2024 09:15:47

13.5.2024 until 23.7.2024 was illegal as it was an infringement of the Applicant's constitutional right under Article 5 of the Federal Constitution and the non-compliance to the Dangerous Drugs Act (Special Preventive Measures) 1985 (Act 316). [2] Hence, the application before this Court. SALIENT FACTS OF THE CASE [3] On 04.01.2024, the Applicant was arrested by Police Inspector Muhamad Suhaimi bin R Ajami under section 3(1) Act 316. [4] On 05.01.2024, under section 3(2)(a) of Act 316, Police Inspector Amir Noridzam Bin Rambeli had given the authority to detain the Applicant beyond 24 hours. [5] On 06.01.2024, ASP Mohamad Syairazi bin Md Shahpuzi gave the authority under section 3(2)(b) of Act 316 to detain the Applicant beyond 48 hours. [6] On 13.01.2024, DSP Mohd Ambia Bin Nordin reported the Applicant's circumstances of arrest and detention to ACP Shahidi Bin Abdullah to authorise the Applicant's detention beyond fourteen

days. [7] On 16.01.2024, ACP Shahidi Bin Abdullah reported the Applicant's circumstances of arrest and detention to the First Respondent. [8] On 26.01.2024, Ins Police Amir Noridzam submitted a copy of the completed investigation report to the First Respondent and the Inquiry Officer under section 3(3) of the said Act. [9] On 13.02.2024, Muhammad Habibullah bin Mohamad Shah submitted a copy of the Inquiry report to the First Respondent. [10] On 29.02.2024, the First Respondent issued the Detention Order. On the same day, Police Inspector Amir Noridzam bin Rambeli served and explained the Detention Order, statement of facts and three copies of Borang 1 to the Applicant. [11] On 01.03.2024, the Applicant was escorted to Pusat Pemulihan Simpang Renggam, Johor, to undergo his detention as directed in the Detention Order issued by the First Respondent. [12] On 24.04.2024, the representation proceeding before the Advisory Board. Police Inspector Amir Noridzam bin Rambeli was called by the Applicant's counsels from Msrs Zafri and Partners as his witness during the proceeding. [13] On 07.05.2024, the Advisory Board recommended to the Yang di-Pertuan Agong (YDPA) that the Applicant's detention should be suspended. [14] On 13.05.2024, the YDPA granted his royal assent towards the recommendations made by the Advisory Board that the Applicant's detention be suspended. [15] On 23.07.2024, the First Respondent issued a Suspension of Detention Order, which ordered the Applicant's Detention to be suspended and the Applicant to be subjected to a Restriction Order. Refer to exhibit "MS-1", as attached in the Affidavit of Police Inspector Mohd Safuan bin Alias affirmed on 19.8.2024. [16] The said suspension of Detention Order dated 23.07.2024 directed, amongst others, that the Applicant's movement and whereabouts be restricted to the area of Mukim Sungai Buloh, Daerah Petaling, Selangor and that the Applicant be subjected to the supervision of the Police. [17] On 23.07.2024, the Applicant was escorted from PPA Simpang Renggam and transported to IPD Petaling Jaya for supervision as stipulated in the Suspension of Detention Order. On the same day, the Applicant was instructed to report his presence at Balai Polis Sea Park, Petaling Jaya, Selangor, wherein the Applicant was informed that the duration of his restriction under the said Suspension Order would begin on 23.07.2024 and end on 22.07.2026. ISSUES RAISED BY THE APPLICANT [18] As stated in the Applicant's counsel submission, the Applicant raised four broad issues as follows: i. The Police's investigation and the subsequent production of the Applicant's Statement under section 4 failed to comply with Act 316; ii. There occasioned an inordinate delay of 19 days in the preparation and submission of the Report in Writing by the Inquiry Officer, occasioning non-compliance to the requirements of section 5 read together with section 54(2) of the Interpretation Act (Re: Timbalan Menteri Dalam Negeri & Ors v Awang Sari bin Lasikan [05] HC – 69 – 04 / 2021 (B); Chua Kian Voon v Timbalan Menteri Dalam Negeri [2020] 1 CLJ 747; iii. The First Respondent failed to comply with the recommendations made by the Advisory Board as royally assented to by the YDPA on 13.05.2024, resulting in the wrongful detention of the Applicant at PPA Simpang Renggam from 13.05.2024 to 23.07.2024; and iv. The Suspension of Detention Order issued under section 7(1) of Act 316 dated 23.07.2024 was defective as it failed to expressly stipulate the period in which the Applicant is to undergo restriction and supervision, which has caused uncertainty and confusion as to the period of compliance which must be adhered to by the Applicant. PRINCIPLES OF LAW ON HABEAS CORPUS [19] The apex court in Kerajaan Malaysia & Ors v Nasharuddin Nasir [2004] 1 CLJ 81 decided that habeas corpus is a remedy to assist the release of a person from unlawful custody like what Steve Shim FCJ said in that case: "It is a trite law that the remedy of habeas corpus is intended to facilitate the release of a person actually in unlawful custody. It is the fact of detention and nothing else which gives the Court its jurisdiction." [20] The principles of law derived from the apex Court regarding the interpretations of Act 316 are settled law. This Court is mindful of the judicial pronouncement as repeatedly emphasised that an applicant can only challenge the DO on the grounds of procedural non-compliance with Act 316. (See Rovin Joty Kodeeswaran v. Lembaga Pencegahan Jenayah & Ors and Other Appeals [2021] 4 CLJ 1 and section 11C of Act 316). [21] Further, in Puvaneswaran v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor [1991] 3 MLJ 28 Edgar Joseph Jr J (as he then was) discussed the failure to comply with the mandatory statutory requirement would justify the Court to allow the application although the failure has not caused any prejudice on the Applicant. The Court rules: "… It matters not one whit that the detainee did in fact make representations to the Advisory Board which considered the same and made recommendations thereon which led to the detainee's detention. In other words, once a breach of a mandatory statutory requirement is established, the fact that the detainee was not prejudiced is irrelevant…" [22] In Zaidi bin Kanapiah v ASP Khairul bin Rozduan and other cases [2021] 3 MLJ 759, CJ Tengku Maimun said as follows: "[194] It is a trite principle of law that if the detaining authority fails to justify the lawfulness of a detention, habeas corpus must issue as of right unlike other prerogative writs such as certiorari which the court otherwise has discretion to refuse even if the breach is proved (see the judgment of this court in Mohammad Azanul Haqimi Tuan Ahmad Azahari v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 8 CLJ 465 affirming the dictum of Abdoolcader J in Yeap Hock Seng @ Ah Seng v. Minister of Home Affairs, Malaysia & Ors [1975] 2 MLJ 279, at p. 281)." [23] The burden is on the Respondent to prove compliance with the law and procedures of Act 316 as decided in SK Tangakaliswaran Krishnan v. Menteri Dalam Negeri, Malaysia [2010] 1 MLJ 149 where Gopal Sri Ram FCJ held: “[5]...It is settled law that on an application of "habeas corpus" the burden of satisfying the Court that the detention is lawful lies through 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 draw our art. 151: It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the [2023] 1 LNS 2587 Legal Network Series 4 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 that 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 the mandatory provisions of Act 316 but also strictly in accord with the constitutional safeguards embodies in Ar. 22(5)”. [24] Bearing in mind the above trite principles of law, the Court must determine, based on the issues raised by the Applicant and the documents before the Court, whether the Respondent had successfully discharged the onus of proving the compliance of the mandatory statutory requirements of Act 316. This is mainly because Act 316 involves infringing the detenu's right enshrined by the Federal Constitution. Thus, the law demands the Respondent to comply with Act 316 strictly. THE COURT ANALYSIS AND FINDING Issue: Failure by the First Respondent to comply with the recommendations made by the Advisory Board as royally assented to by the YDPA on 13.05.2024, resulting in the wrongful detention of the Applicant at PPA Simpang Renggam from 13.05.2024 to 23.07.2024 [25] The Court deals with this issue first as it is the most critical issue and has a significant impact on the Detention Order, and the Court may allow the application for the writ of habeas corpus on this ground alone. Suppose the Court decides that there was a wrongful detention of the Applicant from 13.5.2024 to 23.7.2024 at the PPA Simpang Rengam, Johor, in light of the YDPA direction on 13.5.2024 of the suspension of the detention order. The consequential effect is that the detention order from 13.5.2024 to 23.7.2024 is illegal. Thus, the Court doesn't need to decide on other issues raised by the Applicant. [26] Based on the undisputed facts of the case, the Applicant was detained at the PPA Simpang Rengam from 13.5.2020 to 23.7.2024. [27] The Advisory Board recommended suspending the Applicant's detention order according to section 10(1) of Act 316. Upon the recommendation by the Advisory Board, the YDPA, pursuant to section 10(2) of Act 316, directed the Minister to suspend the detention order. [28] Under section 7(1) of Act 316, the Minister issued the Order with the conditions to suspend the detention order on 23.7.2024, after 72 days of the YDPA royal assent. [29] With the issuance of the suspension order dated 23.7.2023, the Applicant was restricted to the area of Mukim Sungai Buloh, Daerah Petaling, Selangor, and the Applicant was to be subjected to the supervision of the Police. [30] The learned Applicant's counsel argued that the Order issued by the First Respondent on 23.7.2024 had failed to comply with the recommendations made by the Advisory Board as royally assented to by the YDPA on 13.05.2024, resulting in the wrongful detention of the Applicant at PPA Simpang Renggam from 13.05.2024 to 23.07.2024. The counsel supported his argument by referring to the High Court decision in Rafizi bin Sedik v Timbalan Menteri Dalam Negeri & Anor [2024] CLJU 790, which this Court did not rely on as the case having jurisdiction similar to this Court. [31] On the other hand, the learned Senior Federal Counsel (SFC) argued that the statutory provision of section 7(1) of Act 316 did not expressly provide a time frame for the Minister to issue the Order. The SFC argues that the Minister may issue the suspension Order as "he pleases", so to speak. The Court sought clarification from the SFC on whether there was any explanation for the First Respondent taking 72 days to issue the suspension order. The SFC conceded that there was no explanation by way of an affidavit explaining the 72 days the Minister took to issue the Order. [32] The SFC stands firm on her understanding and interpretation of the provision that the Minister doesn't have to explain the time taken to issue the Order, as Act 316 does not limit the Minister's power on when to issue the Order. Therefore, the SFC argued that the continued detention of the Applicant from 13.5.2020 to 23.7.2024 was lawful. [33] The SFC further submitted that by comparing and contrasting section 7(1) of Act 316 against sections 3(3) and 5(4) of Act 316, it appears that sections 3(3) and 5(4) are relatively different since both provisions provided clearly that the Minister may prescribe the period by regulations as provided for under the said provisions. [34] To better understand the issue at hand, the Court reproduced the provision of section 7(1) of Act 316 below: "Suspension of detention orders

The Minister may, at any time, direct that the operation of any detention order be suspended subject to all or any of the restrictions and conditions which he is empowered by subsection 6(3) to impose by a restriction order, and subject, if the Minister so directs, to the requirement that the person against whom the detention order was made shall enter into a bond as provided in subsection 6(4).

Where a detention order is suspended as aforesaid, subsection 6(6) shall have effects as if the restrictions and conditions on which the detention order is suspended were restrictions and conditions imposed by a restriction order." (emphasis added) [35] Now, the main question is whether the SFC's interpretation was correct. The Court is aware that the law in the area of habeas corpus is evolving. Having said that, the Federal Court had quite recently decided in Muhammad Redzuan Omar v. Timbalan Menteri Dalam Negeri, Malaysia & Anor [2023] 2 CLJ 859 that in the absence of any regulation issued by the Minister to prescribe a specific period for the submission of investigation and inquiry reports, the Detention Order is legal and valid so long that the reports were prepared within the 60 days as provided under section 3(2) of Act 316. The Federal Court further held that for any matter where any written law does not prescribe the time, such matter ought to be completed as soon as practicable and without inordinate delay. Hasnah Mohammed Hashim FCJ, delivering the judgment of the Federal Court in Muhammad Redzuan Omar v. Timbalan Menteri Dalam Negeri, Malaysia & Anor (supra) had this to say: "[46] In respect of s. 5(4) of the Act and the delay in submission of the report, s. 54(2) of Act 388 was referred to and relied upon by the Federal Court. Section 54(2) of the aforesaid Act provides where no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion requires. Section 54 of Act 388 reads: (1) In computing time for any written law: (2) Where no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion arises. (emphasis added) [47] For any matter where time has not been prescribed by written law, such matter ought to be completed as soon as practicable and without inordinate delay."(emphasis added) [36] Based on the principle of stare decisis, the above Federal Court decision is binding on this Court. Hence, the SFC's interpretation appears to contradict the judicial proposition held in the above Federal Court decision that the Minister must issue the suspension order as soon as practicable and without inordinate delay. The Court believes the practicality of issuing the Order within a reasonable period by the Minister is a question of fact that an Affidavit must substantiate. However, the First Respondent did not explain why it was not practicable to issue the Order within a reasonable period. Thus, the 72 days the Minister took to issue the suspension order was an unexplained undue delay. [37] The SFC urged the Court to follow the Federal Court decision in Tebin Mostapa v Hulba-Danyal Bella & Anor [2020] 7 CLJ 561 to support her argument that for all intent and purposes, the literal meaning should be given to section 7(1) of Act 316. Hence, section 54(2) of the Interpretation Act 1948 and 1967 has no application to section 7(1). [38] Most importantly, the case of Tebin Mostapa is easily distinguishable. The case does not involve a writ of Habeas Corpus or the interpretation of Act 316 for that matter. Thus, Tebin Mostapa has no application to the facts of the instant case. [39] In the context of the case, this Court reiterated that the Federal Court decision in Muhammad Redzuan Omar v. Timbalan Menteri Dalam Negeri, Malaysia & Anor (supra) is binding upon this Court. This Court had no reason to disregard the explicit judicial pronouncement on the principle of law, which elaborated the interpretation of Act 316. In other words, to agree with the SFC's understanding of section 7(1) of Act 316 would create ridicule for the law and prejudice for the Applicant as the Minister can arbitrarily issue the suspension order at whatever time despite the direction from the YDPA's royal assent. [40] Section 25(2) of the Courts of Judicature Act 1964 (Act 91) gives the power to the High Court to issue a writ of habeas corpus. It is an additional power set out in the Schedule to Act 91 for protecting and enforcing rights in Part II of the Federal Constitution. Hence, the provisions must be given a generous interpretation so that the rights, safeguards and protection afforded under the Constitution, particularly Article 5, do not become mere platitudes. This Court must adjudicate the application for a writ of habeas corpus with scrutiny as decided by the Federal Court in Peter Chang Nyuk Ming v Timbalan Menteri Dalam Negeri & Ors [2023] 4 MLJ 635. Mary Lim FCJ, delivering the judgment of the Federal Court held: " [20] Although the exercise of these additional powers must be in accordance with any written law or rules of court relating to the same, such laws being the CPC in this case, that purpose and intent for the existence of these additional powers must always weigh in the mind of any adjudicating body. These powers are enacted in order to protect and enforce the rights in Part II of the Federal Constitution; and an application for habeas corpus is an invocation for close and careful scrutiny by the courts. [23] At paras [81]–[84], this court further reasoned that a writ of habeas corpus is not predicated upon the fact of continuing physical custody under a subsisting detention order or any other form of detention because it is the legality and validity of the detention which is under review, not the matter of physical detention. Article 5(2) of the Federal Constitution must be 'given full and substantive effect' and the remedy remains available even if the detainee has since been discharged." (emphasis added) [41] In Peter Chang Nyuk Ming v Timbalan Menteri Dalam Negeri & Ors (supra), the SFC, in that case, raised a preliminary objection that the application for a writ of habeas corpus did not lie where the "corpus" was no longer in physical detention due to the suspension of the detention order by the Minister. The Federal Court decided to allow the writ of habeas corpus on the basis that the Applicant's detention at the PPA Simpang Rengam was illegal due to the suspension of the detention order. [42] Although the SFC raised no similar objection in the instant case, the Court wishes to emphasise that the point that this Court must consider is the same as the case in Peter Chang Nyuk Ming v Timbalan Menteri Dalam Negeri & Ors (supra) that the legality of the detention order was in question. [43] By applying the decision to the facts of the instant case, the Court found that the Applicant's detention from 13.5.2024 to 23.7.2024 was illegal.