Magendiran A/L S. Kannapiran v 1. Minister of Home Affairs, Malaysia (WA-44-21-02/2021)

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SUPERINTENDENT OF REHABILITATION CENTRE,

GOVERNMENT OF MALAYSIA. … RESPONDENTS JUDGMENT Introduction [1] This is an application for the issuance of a writ of habeas corpus to release the applicant from detention under section 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 3 (the “Act”). Pursuant to an order dated 19.08.2020 made by the Deputy Minister of Home Affairs, the applicant was ordered to be detained at the “Pusat Pemulihan Akhlak, Simpang Renggam, Johor” for the period of two years commencing from 19.08.2020. Brief factual matrix [2] The applicant was arrested and detained on 23.06.2020

that the detention of the applicant under section 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 is not valid and void,

that a writ of habeas corpus be issued for the applicant to be immediately released from detention, and 7

other reliefs deemed proper by this Court. The issues [9] In his application, the applicant raised three issues which may be briefly stated as follows:

the respondents have acted mechanically in a robotic fashion without addressing their minds as to whether the applicant was indeed involved in drugs trafficking activities,

Inquiry Officer Nor Jamilah contradicted herself in her initial affidavit (Enclosure 12) and corrective affidavit (Enclosure 140). The contradiction demonstrates the fact that there must have been no grounds for the applicant’s arrest as there was only one statement recorded, namely the statement from the applicant, and 8

the allegation of facts shows that the applicant had acted alone contrary to the intent of the Act which is aimed at actions which has been taken or is being threatened by a substantial body of persons. Analysis and findings [10] The position of the law is trite. In an application for the issuance of a writ of habeas corpus, the onus lies on the respondent to prove that the detention is lawful. (See: SK Tangakaliswaran Krishnan v. Menteri Dalam Negeri, Malaysia & Ors [2009] 6 CLJ 705 FC; [2010] 1 MLJ 149). Once it is proven that the detention has been lawfully made, the onus shifts on to the applicant to show procedural non-compliance in the issuance of the detention order to make out his case. (See: Karam Singh v. Menteri Hal Ehwal Dalam Negeri Malaysia [1969] 1 LNS 65 FC; [1969] 2 MLJ 129, Lee Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914 FC; [2005] 2 MLJ 631). 9 [11] Further, section 11C(1) of the Act prescribes for the circumstances under which the decision made by the Minister may be challenged in an application for a writ of habeas corpus. It is expressly provided in subsection (1) that challenges may only be made on questions pertaining to compliance with any procedural requirement under the Act in respect of such decision. This is an ouster provision and the position of the law in this regard has been reiterated by the Federal Court in Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors. v. Ong Beng Chuan [2006] 4 CLJ 703 FC; [2006] 6 MLJ 493. [12] It is a well-entrenched principle that in determining whether or not there has been a procedural non-compliance, the court is under a duty to examine the provisions of the relevant law or rules which provide for any such procedures. If the grounds upon which the detention order is challenged do not form part of the statutory procedural requirements, the court must not formulate one of its own. In Lee Kew Sang v. Timbalan 10 Menteri Dalam Negeri, Malaysia & Ors (supra.), His Lordship Abdul Hamid Mohamad FCJ made the following prompt: “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.”. Whether the applicant has been associated with an activity relating to or involving a substantial body of persons [13] I shall first address the third issue raised by the applicant as it is the core amongst the three. The thrust of the contention is centred on the fact that the applicant had acted alone. By use of the words “bahawa kamu ...” in the allegation of facts upon which the detention order was made, the learned counsel argues 11 that there was no indication at all to show that the applicant was associated with a substantial body of persons. Further, Insp. Darwis and Inquiry Officer Nur Jamilah had embellished the facts by stating in their respective affidavits that the applicant together with the local drugs trafficking ring have been involved in trafficking in Cannabis by use of the words “bersama-sama pengedar dadah tempatan”. [14] In response, the learned Senior Federal Counsel contends that the Deputy Minister had made it clear in his affidavits that the applicant together with the local drugs trafficking ring had been associated with activities related to or in connection with the trafficking in of dangerous drugs, namely of Cannabis as listed in the First Schedule of the DDA 1952. This evidently points to the fact that the applicant was not acting alone but was associated with a substantial body of persons as stated in the allegations of facts upon which the detention order was made. 12 [15] Under the Act, the power to order detention is provided for under section 6(1). It reads as follows:

“Power to order detention and restriction of persons

Whenever the Minister, after considering —

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

the report of the Inquiry Officer submitted under subsection (4) of section 5, 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 13 such person be detained for a period not exceeding two years.”. [16]

the Minister has considered the report against the person under section 3(3) of the Act;

the Minister has considered the report against the person under section 5(4) of the Act;

the Minister is satisfied that the person has been or is associated with any activity relating to or involving the trafficking in dangerous drugs; and

the Minister is satisfied that it is necessary in the interest of public order that the person be detained. 14 [17] In Selva Vinayagam Sures v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] 2 CLJ 29 FC, the Federal Court reversed the decision of the High Court and allowed the application for habeas corpus. The apex Court held that the powers under section 6(1) of the Act may only be exercised if three key ingredients are set out in the grounds of the detention order and the allegations of facts upon which the detention order was made. The three ingredients are —

that the activity which has been taken or is being threatened by a substantial body of persons relates to or involves the trafficking in of dangerous drugs;

that the detenu is a member of a substantial body of persons; and

that the Minister is satisfied that it is necessary in the interest of public order that the detenu be subject to preventive detention. 15 [18] Having set forth the three ingredients, the Federal Court in Selva Vinayagam Sures scrutinised the grounds of the detention order, the allegations of facts upon which the detention order was made and the affidavit affirmed by the Deputy Minister and then unanimously set aside the detention order for being in contravention of Article 149 of the Federal Constitution. It was concluded that the detenu had acted alone and not in association with a substantial body of persons. [19] In delivering the decision of the Federal Court, His Lordship Vernon Ong FCJ said at page 46 (CLJ) as follows: “We agree with counsel for the appellant that the only allegation is that the appellant is acting alone. There is no allegation that the appellant's activities were being carried out in association with or involved a substantial body of persons.”. [Emphasis is mine] 16 [20] Thus, it is pertinent to first examine the grounds of the detention order and the allegations of facts upon which the detention order was made to ascertain whether the applicant was in fact associated with or involved as such. Both are found in Enclosure 4 and marked as Exhibit “DSIMS – 1”. They read as follows: “Alasan-Alasan Yang Atasnya Perintah Itu Dibuat: Bahawa kamu pernah ada kaitan dengan apa-apa aktiviti yang berhubungan dengan atau yang melibatkan dengan pengedaran dadah berbahaya seperti yang ditakrifkan di bawah Seksyen 2 Akta Dadah Berbahaya 1952 (Akta 234) iaitu mengedar dadah berbahaya jenis Cannabis seperti yang tersenarai di bawah Jadual Pertama,

Bahawa kamu didapati terlibat dengan aktiviti pengedaran dadah berbahaya jenis Cannabis sejak awal bulan November 2019 sehingga 16 Jun 2020 secara tidak berterusan di sekitar kawasan rumah beralamat No. 19, Jalan Desa 6/12, Bandar Country Homes, Rawang, Selangor dan di sekitar kawasan Citta Mall, Ara Damansara, Petaling Jaya, Selangor.

Bahawa kamu didapati menjual dadah berbahaya jenis Cannabis dalam bentuk peket berharga RM50.00 sepeket.

Bahawa kamu didapati membeli bekalan dadah berbahaya jenis Cannabis dalam bentuk peket berharga RM50.00 sepeket daripada pengedar tempatan untuk tujuan pengedaran.”. 18 [21] Paragraph 3 of the allegations of facts upon which the detention order was made demonstrates how the applicant obtained the supply of dangerous drugs and how he trafficked them. The fact that the appellant procured the dangerous drugs from the local drugs trafficking ring attests to the fact of his association with and involvement in the local drugs trafficking ring. [22] In that sense, I hold the considered view that he was not acting alone but was very much associated with the local drugs trafficking ring. Clearly the applicant did not act alone as contended by the learned counsel. On this score, the decision in Selva Vinayagam Sures is distinguished on the facts. [23] Further, it is deposed by the Deputy Minister in Enclosure 4 that in issuing the detention order, he has considered — 19

the full report of the investigations against the applicant under section 3(1) of the Act which was completed by Inspector Darwis, and

the written report against the applicant under section 5(4) of the Act which was prepared by Inquiry Officer Nor Jamilah, and fully appraised himself and satisfied —

that the applicant together with the local drugs trafficking ring had been associated with activities related to or in connection with the trafficking in of dangerous drugs as defined under section 2 of the DDA 1952, namely of Cannabis as listed in the First Schedule, Parts I and II, and 20

the involvement of the applicant is prejudicial to public order which necessitates an action under the Act to be taken against the applicant. [24] In Enclosure 8, Inspector Darwis deposed that based on his investigations, the applicant together with the local drugs trafficking ring were involved in drugs trafficking activities, namely Cannabis. The applicant too together with the local drugs trafficking ring were involved in trafficking in Cannabis within the applicant’s neighbourhood and the Citta Mall shopping centre at Ara Damansara, Petaling Jaya, Selangor. [25] In Enclosure 12, Inquiry Officer Nor Jamilah deposed that based on the full investigation carried out by the police, the statement recorded and the physical inquiry of the applicant which she herself had conducted, she was satisfied that the applicant together with the local drugs trafficking ring were involved in and have had a connection with activities relating to or involving dangerous drugs. 21 [26] Additionally, one must not lose sight of the fact that the Deputy Minister had exercised his powers well within the confines of section 6(1) of the Act. In exercising his powers under section 6(1) of the Act, the Deputy Minister said —

at paragraphs 8, 12 and 13 in Enclosure 4, and

at paragraphs 5 and 6 in Enclosure 26, that he has considered the complete report of the investigations under section 3(3) as well as the report of the Inquiry Officer under section 5(4). These reports include statements and other documents which could not be disclosed due to their confidentiality and secrecy nature. [27] For the purposes of the allegations of facts upon which the detention was made, the Deputy Minister has deemed it fit not to disclose facts which he considers to be against the national interest. This is aligned with the statutory protection from 22 disclosure accorded by section 14 of the Act. This also accords with the views expressed by the Federal Court in Karam Singh v. Menteri Hal Ehwal Dalam Negeri Malaysia (supra.) in the following prose: “Detention orders are made on evidence which may not strictly be admissible or sufficient to secure a conviction in a court of law but which the law taking into consideration the needs and exigencies of administration has allowed to be considered sufficient for the subjective decision of the authority.”. [28] In the circumstances, I hold the considered view that the Deputy Minister had acted within the confines of the enabling powers under section 6(1) of the Act. Unlike in Selva Vinayagam Sures where there is no allegation that the detenu’s activities were being carried out in association with or involved a substantial body of persons, the applicant in the present application was not acting alone. 23 [29] It is also the finding of this Court that the applicant has been associated with a substantial body of persons, namely the local drugs trafficking ring, in relation to or in connection with the trafficking in of dangerous drugs as defined under section 2 of the DDA 1952, namely of Cannabis as listed in the First Schedule. I am of the considered view that the allegation of facts upon which the detention order was made is germane and very much within the parameters of the Act. Thus, respectfully, the contention of the learned counsel in this regard bears no merit. Whether the respondents acted mechanically in a robotic fashion in issuing the detention order [30] The learned counsel contends that the respondents did not properly address their minds to the fact that the impugned activities for which the applicant was alleged to have been associated with and involved in, could not possibly have taken place. Relying on the decision of the High Court in Wong Chee Kong v. Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia & Anor & Other Applications [2020] 1 CLJ 243; [2000] 5 MLJ 24 228, the learned counsel submits that there was malice in the issuance of the detention order as the procedure employed were spurious, synthetic and robotic. [31] The applicant allegedly carried out the impugned activities between November 2019 and June 2020 whereas the nation was under a complete lockdown from March 2020 to June 2020. It was simply not possible for the applicant to be engaged in the impugned activities. There was also no possibility for the applicant be at Citta Mall which is about 40 km from his workplace and it is nonsensical for the applicant to not make any profit out of the alleged sale of drugs by selling them at the same price he got it from the local drugs trafficking ring. [32] The learned SFC argues that the first issue raised by the learned counsel does not amount to a valid challenge as it is not related to any procedural non-compliance. The cases of Lee Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors (supra.) and Chua Kian Voon v. Menteri Dalam Negeri 25 Malaysia & Ors [2020] 1 CLJ 747 FC; [2020] 1 MLJ 351 clearly establish the rule that the courts must only be concerned with issues touching on procedural non-compliance in the detention and nothing else. [33] The learned SFC also argues that the period within which the applicant was associated with and involved in the impugned activities was well beyond the commencement of the movement control order in March 2020. In fact, Exhibit “MK – 5” in Enclosure 2 which certifies that the applicant was employed in the essential services category of employment shows that the applicant was well facilitated in his movements during all variations of the movement control orders. On the fact that the applicant did not make any profits out of the sale of drugs, the learned SFC again reiterate that the issue does not pertain to procedural non-compliance. [34] At the onset, it is pertinent to keep in mind that matters affecting the interest of public order or security of the nation must 26 be left to the subjective satisfaction of the Executive and cannot be made the subject of an objective test in a court of law. In delivering the recent majority decision of the Federal Court in Rovin Joty Kodeeswaran v. Lembaga Pencegahan Jenayah & Ors And Other Appeals [2021] 4 CLJ 1 FC; [2021] 2 MLJ 822, Her Ladyship Zabariah Mohd Yusof FCJ held, inter alia, as follows: “[141] Allegations of fact in which the order for detention had been based on alleged activities of the detenu and the satisfaction of the Executive being subjective is not open for the court to examine as to the sufficiency of the allegations. Allegations of facts deal with matters within the province of national policy in relation to the security of the nation whereby the subjective satisfaction of the Executive on those allegations cannot be substituted by an objective test in a court of law.”. (See also: Karam Singh v. Menteri Hal Ehwal Dalam Negeri Malaysia (supra.)). 27 [35] The fact of the national lockdown due to the Covid-19 pandemic on its own is not sufficient to dispel the ability of the applicant in carrying out the impugned activities. Further, the fact that the applicant was in a way conditionally exempted from the movement controls because he was employed in services categorized as essential militates against his own contention. As to whether or not the applicant made any profit out of the impugned activities, under the law, is not a matter for this Court to consider for persons who indulge in such activities could have set their sights for other goals. In any event, I must agree with the contention of the learned SFC that this challenge does not relate to procedural non-compliance and the issue ends here. Whether Inquiry Officer Nor Jamilah contradicted her own affidavits [36] The learned counsel contends that Inquiry Officer Nor Jamilah contradicted herself in her affidavits and as such, this Court should not rely on any of the affidavits since both are tainted with contradictions. On the other hand, the learned SFC 28 contends that this issue too does not relate to procedural non-compliance. In Enclosure 40, Inquiry Officer Nor Jamilah had corrected her earlier averment in Enclosure 12. The correction merely relates to the number of witnesses from whom statements were recorded and not to the fact that there were no statements recorded from witnesses. Further, there is nothing in the Act which specifies any requirement for a particular number of witnesses from whom statements ought to be recorded. [37] With regard to this, I am of the considered view that there are no contradictions between the affidavits affirmed by Inquiry Officer Nor Jamilah. Any deponent is entitled to correct his own affidavit and this was exactly what Inquiry Officer Nor Jamilah did. It is the absence of a corrective affidavit to correct a mistake which could result in dire consequences. (See: Jayaganesan Ramakrishnan v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 9 CLJ 725 FC; [2019] 6 MLJ 697). The amendment made by Inquiry Officer Nor Jamilah in Enclosure 40 relates to one word, that is, by replacing the word “saksi-saksi” in Enclosure 29 12 with the word “saksi” to explain that she received only one statement recorded from the applicant. Clearly such a correction cannot be a contradiction. Conclusion [38] On the basis of the aforesaid reasons, it is the finding of this Court that there is no procedural non-compliance in the issuance of the detention order by the Deputy Minister. I hereby dismiss the applicant’s application for a writ of habeas corpus. Dated 31 August 2021. - sgd - AHMAD SHAHRIR MOHD SALLEH JUDGE HIGH COURT OF MALAYA KUALA LUMPUR. For the applicant: Sathiaseelan S.S. Maniam (Messrs. S.S. Seelan & Associates). For the respondents: Muhammad bin Sinti Senior Federal Counsel Attorney General’s Chambers.