Khairul Azilan Bin Talib v 1. ) Menteri dalam Negeri (BA-44-272-10/2022)

3.KETUA POLIS NEGARA …RESPONDENTS GROUNDS OF DECISION [1] A Detention Order dated 21.6.2022 was made against the Applicant pursuant to Section 6(1) of the Dangerous Drugs Act (Special Preventive Measures) 1985 (“the Act’) by the Deputy Minister of Home Affairs Malaysia (“the Deputy Minister”) which ordered the Applicant to be detained for 2 years starting from 21.6.2022 at Pusat Pemulihan Akhlak Batu Gajah, Perak (“PPA Batu Gajah”). After hearing the parties, I granted the writ of habeas corpus because there were merits in the application. My reasons are as follows. [2] The Law Article 5 of the Federal Constitution provides: -

Liberty of the person

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. [3] Restrictions on preventive detention

(1) 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. [4] 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

thereportoftheInquiryOfficersubmittedundersubsection 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. [5] The law on habeas corpus was succinctly summarized 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 or reiteration, I shall not repeat it here. [6] In the case of Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 6 MLJ 220 the Federal Court speaking through David Wong CJSS (as His Lordship then was) had this to say : “[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 Tangakaliswaran a/l Krishnan v Menteri Dalam Negeri, Malaysia & Ors [2010] 1 MLJ 149; [2009] 6 CLJ 705, Gopal Sri Ram FCJ held as follows at p 710: ‘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 [1989] 1 MLJ 69; [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, it may subsequently become invalid over a passage of time, see Lui Ah Long v Superintendent of Prisons, Penang [1977] 2 MLJ 226 where at pp 227- 228 Arulanandom J said: ‘The second limb of the argument merits greater consideration, ie 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 s 34(1) are clearly and unambiguously limited to detention for the purposes of removal to one of two places, ie 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 his detention, see Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri & Anor [1994] 3 MLJ 285; [1994] 4 CLJ 47 where at p 55, Wan Yahya SCJ held as follows: ‘[I]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] MLJ 184 at p 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.’ [7] The issues in this case as can be gleaned from the submissions of parties: i. The 28 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, the 10 days delay by the Inquiry Officer in submitting a complete report of the investigation pursuant to section 5(4) of the Act is a procedural non-compliance and the 19 days delay by the Deputy Minister of Home Affairs in issuing the Detention Order on 21.6.2022 is a procedural non-compliance. ii. The failure of the Ministry of Home Affairs in furnishing a copy of the Applicant’s recorded statements before the Applicant’s Representation Hearing is a violation of Article 151(1)(a) of the Federal Constitution. iii. The failure of the Investigating Officer to conduct a proper investigation and furnish the information to the Applicant, had prejudiced the Applicant’s ability to properly defend his case. [8] The court finds merit in the argument of the applicant’s counsel that the delay of 19 days by the deputy Home Affairs Minister has prejudiced the applicant. This was what was said in counsel’s submissions:

In the instant case, the Applicant also alleges that the Deputy Minister of Home Affairs has failed to issue the Detention Order at all convenient speed after receiving both reports under Section 6(1) of the Act (refer to paragraph 27 of the Applicant’s Affidavit in Support).

The Applicant refers to Section 54(2) of the Interpretation Act 1948 and 1967 which 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 arises.”

After receiving the report from the KDN Inquiry Officer on 2.6.2022, the Deputy Minister of Home Affairs issued the Detention Order against the Applicant on 21.6.2022, i.e 19 days later.

The Deputy Minister in his Affidavit in Rely did not specifically answer to the Applicant’s allegation that he had failed to issue the Detention Order within the prescribed time in his Affidavit in Reply. We refer to the case of Ng Hee Thoong & Anor v. Public Bank Berhad [1995] 1 CLJ 609 [Tab 8, Applicant’s BOA], whereby his Lordship Gopal Sri Ram FCJ (as he the was) made the following observation:- “ Now, it is a well settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of this opponent to contradict is usually treated as an admission by him of the fact so asserted : Alloy Automotive Sdn Bhd v. Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382; Overseas Investment Pte. Ltd v. O’Brien [1998] 3 MLJ 332”.

It is the Applicant’s contention that the Deputy Minister of Home Affairs had failed to plausibly explain the cause of the delay in issuing the Detention Order.

An Issue would then arise that the delay by the Deputy Minister in issuing the Detention Order against the Applicant after receiving both reports violates Section 6(1) of the Act hence making the detention against the Applicant unlawful. [9] The learned Senior Federal Counsel acting for the respondents in her submissions on this point stated:

Section 3(2) of Act 316 provides that any person arrested and detained under section 3(1) of Act 316 may be detained in the police custody for a period not exceeding sixty days without an order of detention having been made in respect of him under subsection 6(1). By reading section 3(3) and section 5(4) with section 3(2) of Act 316, the Police Investigating Officer and the Inquiry Officer have 60 days to complete their investigation and inquiry before submitting their statutory reports to the Minister.

After both the statutory reports have been submitted to the Minister, the next procedural requirement is for the Minister to act under section 6(1) and this has to be done within that 60 days. In this case, from the Applicant’s detention on 25 April 2022 up until the Deputy Minister issued the Detention Order on 21 June, 2022, it took 58 days, which was less than 60 days. Therefore, Respondent humbly submits that there is no delay in the issuance of the Detention Order by the Deputy Minister as it was done within 60 days as provided under Act 316.

Furthermore, the Deputy Minister in his affidavit at para 16, page 9, Enclosure 11 has clarified that the Detention Order has been issued within time. We further submit that the Deputy Minister cannot disclose his day-to-day activities as the disclosure of the Deputy Minister’s diary would tantamount to huge security issues and be prejudicial to the Deputy Minister as the public would have information on the movement and whereabouts of the Deputy Minister in dealing with executive and government day-to-day business, which is in his purview alone. [10] With respect I am unable to agree with the submissions of the learned SFC on this point as the whereabouts of the Deputy Minister is not a security matter more so when the deputy minister is deposing the fact after the event. So, there can be no security risk at all to the deputy minister since what he will be deposing to happened in the past. Furthermore, the deputy minister did not depose in his affidavit any reasons why he took 19 days to come to a decision. [11] In the case of Timbalan Menteri Dalam Negeri, Malaysia & Anor v Awang Sari bin Lasikan[05(HC)-69-04/2021(B)] the Federal Court in its brief grounds of decision held that the deputy minister must make a decision as expeditiously as possible where there are no regulations made on this issue. This is an objective test to be determined by the court. The Federal Court agreed with the ratio decidendi in Chua Kian Voon v Menteri Dalam Negeri Malaysia & Ors [2020] 1 MLJ 351 ; [2020] 1 CLJ 747. [12] In PHUA HING LAI v TIMBALAN MENTERI HAL EHWAL DALAM NEGERI, MALAYSIA & ORS AND OTHER APPEALS [1990] 1 MLJ 173, the Supreme Court speaking through Hashim Yeop Sani CJ Malaya (as His Lordship then was) had this to say : “It can immediately be observed that there is no time frame given in s 3(i) of the enactment. Since no time is prescribed, then, according to s 38 of the Interpretation and General Clauses Ordinance 1948(similar provision also found in s 54(2) of the Interpretation Act 1967), then anything which shall be done shall be done with all convenient speed. ……. Whoever caused the delay must explain the delay; and it is for the court to decide whether the delay is reasonable under the circumstances.” [13] In TIMBALAN MENTERI HAL EHWAL DALAM NEGERI, MALAYSIA & ORS v LIAU NYUN FUI [1991] 1 MLJ 350, [1991] 1 CLJ Rep 458 ; the facts of the case were as follows : The Deputy Minister of Home Affairs had issued an order for the arrest and detention of the respondent pursuant to s 2(1) of the Restricted Residence Enactment (FMS Cap 39). The deputy minister was satisfied that it was not necessary to hold an inquiry under s 2(1) of the Enactment as upon written information and documents he had reasonable grounds for believing that the respondent should be required to reside in another area, namely, Bandaran Tapah, Daerah Batang Padang, Perak. The respondent was arrested and detained at Kota Kinabalu on 6 May 1989. On 17 June 1989 the deputy minister issued a restriction order under ss 2(ii) of the Enactment restricting the respondent to Bandaran Tapah for a period of three years commencing 17 June 1989. The order was served on the respondent at Kota Kinabalu and on 18 June 1989 he was transferred to Bandaran Tapah. On application to the High Court the learned judicial commissioner [see [1990] 2 MLJ 240 ] concluded that there was an unreasonable delay in the issue of the restriction order for which there was no explanation acceptable to the court and he declared the restriction order to be null and void. The appellants appealed to the Supreme Court. [14] The Supreme Court speaking via Hamid Omar Lord President (as His Lordship then was) opined as follows : “ The correct test to be applied therefore is not on the basis of unreasonable delay but convenient speed. The learned judicial commissioner determined the question before him on the basis of unreasonable delay. This was not a proper approach. The question that was before him was whether the Timbalan Menteri in the particular circumstances of that case had acted with all convenient speed in making the restriction order. Strictly it was for the respondent to show that the Timbalan Menteri had not so acted and not for the Timbalan Menteri to provide an explanation acceptable to the court. ……….. The learned senior federal counsel argued that the Timbalan Menteri was not obliged to issue the restriction order immediately after the order of arrest and detention under s 2(i). We do agree indeed we are not about to say that he was so obliged. He further argued that investigation had to be made and various statements had to be recorded and all these had to be effected in Sabah. If that had been the case all that was needed for the Timbalan Menteri to do was to say so in the affidavit. And if he had done that the onus would have rested on the person contending that the Timbalan Menteri had not so proceeded to satisfy the court that the Timbalan Menteri had not acted with convenient speed.” [15] Based on what has been adumbrated above, it more than suffices to grant a writ of habeas corpus without going into the other grounds raised by the applicant. [16] In ending I would like to quote what was said in the case of YEAP HOCK SENG @ AH SENG v MINISTER FOR HOME AFFAIRS, MALAYSIA & ORS [1975] 2 MLJ 279, where Abdoolcader J (as His Lordship then was) said at page 281: “The court must never, in my view, lose sight of the fact that a detention order made under section 4(1) of the Ordinance results in the deprivation of freedom without trial and constitutes a serious transgression upon the fundamental right of liberty of the person. Habeas corpus is a high prerogative writ of summary character for the enforcement of this cherished civil right of personal liberty and entitles the subject of detention to a judicial determination that the administrative order adduced as warrant for the detention is legally valid, in the sense that it is pursuant to valid statutory authority, and to test whether the detention proceedings are, in the words of Frankfurter J. in Estep v United States (1946) 327 US 114 141 "a mere sham, nothing but an empty form." 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.” [17] Ergo cadit quaestio. Dated 6 July 2023 (T.T) (ASLAM B ZAINUDDIN) Judge High Court in Malaya Shah Alam Selangor Applicant Encik Jay Moy Peguambela dan Peguamcara Tetuan Jay & Jay 5-13A-3, Block 5, V Square @ PJ City Centre, Jln Utara, Petaling Jaya, 46200, Selangor Respondent Puan Nur Syafiqah bt Mohamed Yusoff Federal Counsel Pejabat Penasihat Undang-Undang Kementerian Dalam Negeri Blok D1, D2 & D9, 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

Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v. Timbalan Menteri

Dalam Negeri, Malaysia & Ors [2019] 6 MLJ 220 SK Tangakaliswaran a/l Krishnan v. Menteri Dalam Negeri, Malaysia & Ors [2010] 1 MLJ 149;[2009] 6 CLJ 705

Lui Ah Long v. Superintendent of Prisons, Penang [1977] 2 MLJ 226

Ng Hong Choon v. Timbalan Menteri Hal Ehwal Dalam Negeri & Anor [1994] 3

MLJ 285;[1994] 4 CLJ Ex Parte Johannes Choeldi & Ors [1960] MLJ 184.

Ng Hee Thoong & Anor v. Public Bank Berhad [1995] 1 CLJ 609

Alloy Automotive Sdn Bhd v. Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382

Overseas Investment Pte. Ltd v. O’Brien [1998] 3 MLJ 332

Timbalan Menteri Dalam Negeri, Malaysia & Anor v. Awang Sari bin Lasikan [05(HC)-69-04/2021 (B)]

Phua Hing Lai v. Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors and Other Appeals [1990] 1 MLJ 173

Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors v. Liau Nyun Fui [1991] 1 CLJ Rep 458

Yeap Hock Seng @ Ah Seng v. Minister For Home Affairs, Malaysia & Ors [1975] 2 MLJ 279