Mohamad Nor Hamizi Bin Nasir v Timbalan Menteri dalam Negeri, Malaysia (BA-44-6-01/2025)

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PENGARAH, PUSAT PEMULIHAN AKHLAK, SIMPANG RENGGAM, JOHOR ...RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT

The Applicant filed an Application for Habeas Corpus to challenge the Detention Order (DO) dated 29.4.2024 issued 31/12/2025 08:38:03 Kand. 60 by the first Respondent under the Dangerous Drugs (Special Preventive Measures) Act 1985 (the Act).

The Applicant is now detained for two years at Pusat Pemulihan Akhlak (PPA) Simpang Rengam, Johor, from the date of the DO.

Having heard the oral submissions of both counsels and considered the written submission filed herein, the Court decided to dismiss the Application on the main reasons that the Respondent had complied with the mandatory procedural requirement under the Act, and the Applicant's challenges to the DO had no merit.

The grounds of the decisions are stated below.

The Applicant's counsel raised four (4) issues to challenge the DO, and the Court simplified the contentions as follows:

Non-compliance of section 3(3) of the Act, as there was a delay of twenty-one (21) days for the Police Investigation Officer to complete his investigation.

Non-compliance of section 5(2) of the Act, as there was also a delay of twenty-seven (27) days for the KDN's IO to complete the Inquiry Report.

Non-compliance with Section 9(2) of the Act, read together with Rule 3(1) of the Dangerous Drugs (Special Preventive Measures) Rules 1987 (the Rules), where in Form 1, i. The space where the DO was read/translated was left blank. ii. The space for the place and date of detention was left blank. PRINCIPLES OF LAW ON HABEAS CORPUS

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, as decided by Steve Shim FCJ: "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."

The principles of law derived from the apex Court regarding the challenges to the DO are settled. This Court is mindful of the judicial pronouncements by the apex court, which emphasised that a detainee can only challenge the DO on the grounds of procedural non-compliance with the Act. See Lock Wee Kock v Menteri Hal Ehwal Dalam Negeri & Anor [1993] 4 CLJ 211; [1993] 3 MLJ 691.

Historically, the Act was amended in 1989, where section 11C was inserted into the Act by the amendment Act A738. With the amendment, the parameter to challenge the DO is restricted to non-compliance with procedural requirements relative to the previous challenges, including issues like mala fide detention.

The apex Court decided a landmark decision in Lew Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914, Abdul Hamid FCJ (as he then was), which relates to the amendment of the Act, in delivering the judgment of the Federal Court, held as follows:

Further, the decision in Lew Kew Seng (supra) has been followed by another landmark decision after the decision, as seen in Chua Kian Voon v. Menteri Dalam Negeri Malaysia & Ors [2020] 1 CLJ 747 where the Federal Court held: "[67] Section 5(4) of the 1985 Act allows the Minister to prescribe regulations stipulating time but as apparent from the above, the Minister has not done so. We then turned to s. 54(2) of the Interpretation Acts 1948 and 1967 which stipulates that 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. Simply put, for any matter where time has not by law been prescribed, such matter ought to be completed as soon as practicable and without inordinate delay. [68] As the burden to prove the detention was lawful lies on the detaining authority, whether the report was completed with convenient speed or without inordinate delay remains a matter for the detaining authority ie, the respondents, to establish. It is trite that where there is delay on the part of the respondents to complete the report with "convenient speed", it is incumbent upon the respondents to discharge the burden of proffering a satisfactory explanation for the delay. Thus, as we have alluded to earlier, if there is no explanation given, the Court will assume that there are no reasons. [69] We accordingly examined the evidence on record particularly the affidavits deposed by the inquiry officer, Nadia binti Mohd Izhar. We found none of her affidavits nor do any other affidavits from the respondents provide any credible reasons for the 21-day delay. The only reasons she gave in paras. 7 and 8 of her Affidavit in reply dated 13 September 2018 were that she could only conduct physical examination on the Appellant because she needed to read the file, examine the documents and the other subjects (witnesses). These, with respect, hardly constitute reasons because they are procedural matters which every other inquiry officer in her place would have to perform. The Court cannot simply accede to the inquiry officer's plea of heavy workload as basis for the delay to conduct Inquiry against the Appellant under s. 5(2) of the 1985 Act. If this plea were to be accepted, it would become a source of justification for prolonged and unacceptable delay in conducting the Inquiry and this would impair the interest of the Appellant."

The burden is on the Respondent to prove compliance with the law and procedures of the Act 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)”.

Bearing in mind the above fundamental principles of law, this Court must determine, based on the issues raised by the Applicant and the documents before the Court, whether the Respondent has successfully discharged the onus of proving compliance with the procedural requirements of the Act.

This is especially crucial because preventive detention is the most basic deprival of personal liberty, and the burden lies strictly with the Respondents, who must prove that the detention was lawful in accordance with the Act. In Zaidi bin Kanapiah v ASP Khairul bin Rozduan and other cases [2021] 3 MLJ 759, YAA Tengku Maimun (CJ) held as follows "[4] I remind myself of the cardinal principles on habeas corpus that the burden to justify the legality of a detention rests on the detaining authority (see the pronouncements of this Court in Chua Kian Voon v Menteri Dalam Negeri & Ors [2020] 1 CLJ 747 ('Chua Kian Voon') at paragraph 14 and SK Takaliswaran Krishnan v Menteri Dalam Negeri, Malaysia [2009] 6 CLJ 705, at paragraph 5). [5] The above principle is in accord with the very language of Article 5(2) of the FC having regard to the words 'unless satisfied that the detention is lawful'. The burden is constitutionally thrusted upon the detaining authority to establish to the Court's satisfaction that any given detention is lawful."

The Applicant raises three main contentions to challenge the DO, and the Court deals with issues (a) and (b) together as they relate to the same question of law.

The Applicant's counsel essentially argued that the period of 21 days taken for the Police IO to prepare the Investigation Report did not show that the Police IO had taken action at a convenient speed, as the explanation given by the police officer in paragraph 14 of his Affidavit, affirmed on 7.2.2025, was not credible.

Whilst the KDN's IO/Inquiry Officer also failed to comply with section 5(4) as there was a delay of 27 days for the KDN's IO to prepare the Inquiry Report. The explanation given by the said officer, as stated in paragraph 10 of her Affidavit, affirmed on 20.2.2025, was not a credible explanation.

The Applicant's counsel cited the often-quoted landmark decision in Chua Kian Voon (supra), in which the Federal Court ruled that the Applicant's detention in that case was unlawful. The apex Court did not accept the Inquiry Officer's plea of a heavy workload to justify the delay in conducting the Inquiry. The Federal Court further held that if the Court accedes to such an explanation as credible, it would protract the delay in conducting the investigation and impact the Detainee's interest, as had been said by Mohd Zawawi Salleh FCJ as follows: "(69) These, with respect, hardly constitute reasons because they are procedural matters which every other inquiry officer in her place would have to perform. The Court cannot simply accede to the inquiry officer's plea of heavy workload as a basis for the delay to conduct Inquiry against the Appellant under Section 5(2) of the 1985 Act. If this plea were accepted, it would become a source of justification for prolonged and unacceptable delay in conducting the Inquiry and this would impair the interest of the Appellant.

For the reasons aforementioned and in the absence of credible reasons for the delay, we had no option but to conclude that the 21- day delay in the time taken for the inquiry officer to conduct her Inquiry against the Appellant was inordinate and not with "convenient speed". This, to us was another reason rendering the detention unlawful." (emphasis added)

The Federal Counsel (FC) for the Respondents, on the other hand, disagrees with the Applicant's contention that the explanations given by both the Police Inspector and the KDN's officers were not credible.

Instead, the FC argued that the Respondents had complied with the statutory provisions of the Act. Furthermore, the FC argued that as the Police Inspector and the KDN's officer prepared the reports within 60 days from the Applicant's arrest and the first Respondent also issued the DO within the prescribed period in the Act, the DO is valid according to the Act, citing the Federal Court decision in Muhammad Redzuan Omar v Timbalan Menteri Dalam Negeri Malaysia & Another [2023] 2 CLJ 859 and Timbalan Menteri Dalam Negeri v Awang Sari bin Lasikan 05(HC)-69-04/2021(B).

Now, the issue raised by the Applicant's counsel primarily concerns the time taken by the Police Inspector and the KDN's Investigation Officer in preparing their reports, and whether the officers had given a credible explanation. See Chua Kian Voon (supra).

The approach taken by this Court in addressing the issue at hand is to inquire and determine the legality of the detention, as succinctly held in the most recent Federal Court decision. See Noor Kayes Hashim Ullah @ Noor Kayes Binti Hasmullah (UNHCR No: 354-23-1882646) v Timbalan Menteri Dalam Negeri, Malaysia, Komandan Depoh Tahanan Imigresen Tanah Merah, Kelantan Darul Naim & Kerajaan Malaysia, Criminal Appeal No. 05(HC)-140-10/2024(D).

Accordingly, the Court is to apply the propositions laid down in Lew Kew Seng (supra) and Chua Kian Voon (supra), bearing in mind the crucial distinctions between the facts in those cases and the present case.

To do that, this Court must first determine the procedural requirement under sections 3(3) and 5(4) of the Act and decide whether the time taken for the officers to prepare the respective Investigation Report and the Inquiry Report, and clarified in the Affidavits, was credible for the Respondents to justify the compliance with sections 3(3) and 5(4) of the Act.

Section 3(3) and 5(4) of the Act principally provide that an Investigation Officer and the KDN's officer must submit their reports to the Minister within the period as prescribed by the Minister.

Section 22 of the Act further empowers the Minister to prescribe, by regulation, a specific period within which the Police IO and the KDN's officer must submit the report to the Minister.

The Minister has not issued any regulations regarding the operation of sections 3(3) and 5(4) of the Act. In the absence of the prescribed period under those provisions of the Act, the reference to the Interpretation Acts becomes relevant to facilitate the operation of those provisions.

Applying section 54(2) of the Interpretation Acts to those provisions means the officers must prepare the report with all convenient speed.

Hence, what is "convenient speed" depends on the facts and peculiar circumstances of each case, as stated by Mohd Eusoff Chin SCJ in Tai Choi Yu v. Government of Malaysia [1994] 2 CLJ 174 as follows: "What is 'convenient speed' has been held by the Courts to mean reasonable time within which an act has to be done, but always having regard to the facts and peculiar circumstances of each case."

Thus, as it depends on the facts and circumstances of each case, the applicant/Detainee in an application for Habeas Corpus will take the opportunity to raise technical issues to challenge the time taken by the Police Investigation Officer and the KDN's officer in preparing the Investigation and Inquiry reports, respectively. For instance, in Chua Kian Voon (supra), the delay in preparing the report, attributed to a heavy workload, was considered not credible.

It is instructive for this Court to refer to the recent apex court decision, which reflects the latest development on the judicial interpretation of sections 3(3) and 5(4) of the Act.

In Muhammad Redzuan Omar v. Timbalan Menteri Dalam Negeri, Malaysia & Anor [2023] 2 CLJ 859, the apex court had shed light on the interpretation of sections 3(3) and 5(4) of the Act and section 54(2) of the Interpretations Act.

After having analysed the provisions of the Act holistically and considering section 3(2) of the Act which the Court in Chia Kian Voon (supra) did not address, the apex court has made it more evident that in the absence of any regulation issued by the Minister to prescribe a specific period for the submission of the inquiry reports, the DO is legal and valid so long as the investigating officers prepared the reports (investigation and inquiry reports) within 60 days before the issuance of the DO. Hasnah Mohammed Hashim FCJ (now Chief Judge of Malaya), on page 877, delivering the judgment of the Federal Court, held as follows: "[45] The detention order of the Minister pursuant to section 6 of the Act must be made within the prescribed 60-days as prescribed by subsection 3(2). Hence, if the number of days taken for investigation, Inquiry and submission of the reports of the IO and Inquiry Officer totalled to more than the prescribed 60-days the Minister cannot issue the detention order as the detention order issued beyond the prescribed 60-days for the purposes of the investigation and Inquiry is illegal. [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:

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. However, we find it necessary to emphasise that the provision of s. 5(4) of the Act must not be read in isolation from the other provisions in the Act in the determination of non-compliance with the procedure as set out under the Act. Section 3(2) of the Act prescribed the period of detention of 60 days must be taken into consideration in determining the compliance or non-compliance with the procedures as provided under the Act. One cannot and must not turn a blind eye to the existence and the importance of the maximum period of detention without warrant of arrest for the purposes of investigation and Inquiry as provided under s. 3(2) of the Act in the Application of the other provisions of the Act. The provision of s. 3(2) of the Act gives the police power to conduct an investigation and Inquiry within the prescribed 60 days period" (emphasis added)

Returning to the issue at hand, the Court examined the respective affidavits submitted by the Police Inspector who prepared the Investigation Report and the KDN officer who prepared the Inquiry Report.

This is critically important, as the Respondent bears the burden of establishing that the detention is lawful. Hence, whether the officers had carried out the investigations with convenient speed or undue delay is for the Respondent to establish in the Affidavits filed in this case.

Based on paragraph 14 of the Affidavit of Police Inspector, although the officer took 21 days to complete and prepare his investigation report, he took swift action by first recording statements from the witnesses the day after the Applicant was arrested.

While the KDN's Inquiry/Investigation officer received the Investigation report from the Police Investigation Officer on 20.2.2024, she started her investigation with the Applicant on 28.2.2024.

The Applicant's counsel argued that there was an 8-day delay from the date the Inquiry Officer received the investigation report from the police. In addition, the Applicant's counsel argued that there was a 27-day delay in preparing the Inquiry Report.

The Inquiry Officer explained in detail the time taken to carry out her Inquiry as stated in paragraph 10 of her Affidavit, affirmed on 20.2.2025.

Having examined the Affidavits, the Court is satisfied that the officers had given a credible explanation in the Affidavits to justify the time taken to prepare the report. From the Affidavit, it is shown that as soon as the officer received the Investigation Report from the Police IO, the officer took immediate and necessary action in preparation for the Inquiry Report.

This can be seen from the Affidavit of the KDN's Inquiry Officer, who liaised with PDRM to set the Inquiry date, which PDRM later fixed for 28.2.2024. Not only that, the officer had liaised with PDRM to locate relevant witnesses in the case.

Moreover, during the eight days preceding her Inquiry with the Applicant, there were weekends interspersed among them. Therefore, the Court is of the view that the facts in the present case are peculiar and distinguishable from those in Chua Kian Voon (supra).

Applying the decision in Muhammad Redzuan Omar (supra) to the facts of the present case, there is no dispute that the Police Investigation Officer and the Inquiry Officer had prepared their respective reports before the 60 days had lapsed. Hence, the Court found no merit in the Applicant's challenge on the issues (a) and (b) raised by the Applicant.

While on issues (c) raised by the Applicant's counsel, there are two aspects to the dispute raised by the Applicant's counsel on Form 1, namely-i.The space in Form 1 where the DO was read/translated was left blank. ii.The space in Form 1 for the place and date of detention was left blank.

For the Court to determine the issue raised by the Applicant regarding Form 1, the Court is reminded of the decision in Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors v Ong Beng Chuan [2006] 4 CLJ 703, where it is critical to first determine the procedural requirements under the Act, whether such procedural requirements are either mandatory or directory.

The mandatory requirement is a key consideration in this matter, and failure to comply would render the DO invalid. The breach of a directory procedural requirement would not be crucial, provided that there is substantial compliance with the rules and that the Detainee suffers no prejudice.

As explained by Police Inspector Raimi bin Romaino in paragraph 6 of his Affidavit, affirmed on 26.2.2025, he explicitly stated that the Applicant was asked whether he understood the Malay language, and the Applicant answered affirmatively that he is conversant in the Malay language. See also Affidavit by the Police Inspector, affirmed on 30.4.2025

In fact, Lance Corporal Muhammad Zulfarhan bin Ismail had acted as his assistant to explain the DO again in Malay. See Affidavit by Lance Corporal Muhammad Zulfarhan bin Ismail, affirmed on 11.3.2025.

Regarding the issue that the date and place of arrest were left blank in Form 1, this Court is of the view that the requirement to fill in the relevant space in Form 1 is directory, and the Applicant suffers no prejudice from this omission. See Ong Beng Chuan (supra).

The Court accordingly decides that there is no merit to issue

raised by the Applicant's counsel. CONCLUSION

Based on the above analysis, the Court concludes that the Respondents have complied with all the procedural requirements under the Act.

Therefore, the Court found that the Applicant's detention is lawful and dismissed this Application. Dated: 31 December 2025 (Y.A. DR HAZLINA BINTI HUSSAIN) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR DARUL EHSAN Counsel for the Appellant: Puan Sarmalah a/p Pachappan MOB Puan V. Malini a/p Vepaneswaran Counsel for the Respondent: Puan Nur Syahidah bt. Mohamad