Mohd Fuad Bin Yahya v 1. ) Timbalan Menteri dalam Negeri, Malaysia (BA-44-205-07/2022)

KELANTAN KETUA POLIS NEGARA …RESPONDEN GROUNDS OF JUDGMENT Background facts [1] The facts which are related and relevant to the 2 issues raised by the applicant in this application as extracted from the affidavits of the applicant and Respondents are produced here. The applicant was arrested on 6.5.2022 as deposed by the arresting officer and the investigating officer in their respective affidavits (enclosure 6 and 16) under section 3(1) of the Dangerous Drugs Act (Special Preventive Measure) 1952 (hereafter referred to as “the Act”). [2] The statement of the applicant was taken by the Investigating Officer (IO) ASP Ramaiah as per enclosure 16 on 18.5.2022 and 19.5.2022. Based on the same enclosure, some of the statements of witnesses were obtained earlier on 9.5.2022 and others subsequently on 13.5.2022,

17.5.2022 and 21.5.2022 respectively. [3] It was further stated by the IO in enclosure 16 that the complete investigation report under section 3(3) was then handed to the Inquiry Officer and the Minister on 23.5.2022. The Inquiry Officer in his affidavit enclosure 18 said the report from the IO was received on that same date 23.5.2022. [4] The inquiry on the applicant as deposed by the said officer was held on 25.5.2022 and the report under section 5(4) to the Minister upon completion, was sent on 31.5.2022. [5] The Detention Order (DO) under section 6(1) of the Act on the applicant, for him to be detained at the ‘Pusat Pemulihan Akhlak, Machang, Kelantan for a period of 2 years commencing from 14.6.2022 was issued by the Deputy Minister exhibit ‘DSIMS-1’ in enclosure 14. [6] The applicant in his affidavit in support of his application had averred that none of the requirement specified by the Act was followed or adhered to by the Respondent. The challenge made by the applicant said to amount to non-compliance by the Respondent with the law and all the procedures pertaining to the applicant’s arrest and detention that led to the filing of this application for Habeas Corpus. The applicant further contend that the contents of his statement annexed as ‘MFY-1’ in enclosure 3 of his affidavit was falsified as he did not say as was found stated in ‘MFY-1’. [7] As the issues raised in this application is limited to only 2 issues, the above preliminary or basic facts are produced having found by this Court to be credible and supported by affidavits of the respective officers for the Respondent and by way of documentary exhibits annexed as exhibits to these affidavits. Issues raised: [8] The issues are as follows: 1st issue: a delay of 17 days by the Investigating Officer (IO) in taking the statement of the applicant and in submitting his report to the Deputy Minister. 2nd issue: the applicant’s detention is in breach of the law on ‘substantial body of persons’ requirement. 1st issue: a delay of 17 days by the Investigating Officer (IO) in taking the statement of the applicant and in submitting his report to the Deputy Minister. [9] The 17 days delay was calculated from the date of arrest of the applicant on 6.5.2022 to the date the investigation report was submitted to the Minister and the Inquiry Officer 23.5.2022. To begin with, apex court decisions on the issue of delay have remain steadfast that if the task was not carried out within convenient speed under the circumstances of the case, then explanation must be given why there was such delay. Thus, depending on the explanation given whether it is reasonable and a justifiable one, determines the outcome on whether there is inordinate delay that amounts to procedural non-compliance. The long time taken to complete the investigation report in itself does not necessarily mean a breach of the mandated ‘convenient speed’ rule. [10] This can be gleaned from the earlier decision of the apex court in Keng Kien Hock v Timbalan Menteri Keselamatan Dalam Negeri Malaysia & Ors [2007] 5 CLJ 171, where the Court of Appeal in the judgment by Zulkefli Makinudin, JCA said: “Based on the principles enunciated in the cases of Phua Hing Lai & Ors v. Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors and Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia v. Liau Nyun Fui & Ors, the appropriate approach to be adopted is, firstly, the appropriate test is not on the delay in carrying out the legal obligation but rather on whether the legal obligation was carried out with all convenient speed under the circumstances of the case. In other words, it is whether the Minister or Deputy Minister has acted reasonably. Secondly, the burden of establishing the performance of the legal obligation under such circumstances remained on the applicant, the restricted person, and never shifted to the respondent, the Minister”. (emphasis mine). [11] Premised on this, in Chua Kian Voon [2020]1CLJ 747, the apex Court had applied the same test as prescribed in the earlier case reflected in the underlined portion of the said judgment as follows: “[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 i.e. 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 eluded to earlier, if there is no explanation given, the court will assume that there are no reasons”. [12] On 1st October 2021 Dhinesh Tanaphll Criminal Appeal Number: 05(HC)-12-01/2021(B) was decided by the Federal Court. The minutes of the decision giving rise to the said decision on the finding that there was delay was available and its full written judgment is in [2022] 3MLJ 356 reported subsequently. [13] The Federal Court then on 7.12.2021, in Timbalan Menteri Dalam Negeri & Anor v Awang Sari bin Lasikan [05(HC)-69-04/2021(B)] and subsequently in Muhammad Redzuan bin Omar v. Timbalan Menteri Dalam Negeri & Anor Rayuan Jenayah No. 05(HC)-73-04/2021(B) decided on 18.4.2022 further confirmed the position to the effect that the explanation by the respective officers must be perused by the Court to determine if the task was carried out within convenient speed and any delay was substantiated by a satisfactory explanation. [14] The latest decisions that came to this Court’s attention are Vignasevaran John Joseph v. Timbalan Menteri Dalam Negeri Malaysia & Ors [2021] 1 LNS 918, heard and decided by the Federal Court on 11.1.2022 in 05(HC)-103-05/2021(B) and the case of Lee Swee Kong in 05(HC)-155-07/2021(B) also heard on the same date that affirmed both the High Court decisions in dismissing the application for Habeas Corpus on the issue of delay. In Vignasevaran, the delay was of 36 days by the investigating officer and 16 days by the inquiry officer. In Lee Swee Kong [2021] 1 LNS 1833, it was a delay of 30 days and 13 days respectively. In both these cases, this Court had the benefit of the judgments of both the High Courts to ascertain the number of days contended amounting to inordinate delay and the explanations given for the delay, in both the cases. [15] What amounts to a satisfactory explanation can be seen from the excerpts of the decisions in these cases of the apex court. In Awang Sari for instance, the Federal Court found that after the fourth day of detention, no further investigation ensued that would justify the delay in the submission of the report. The basis put forward by the Ministry was that there was other daily workload on their shoulder which the apex court ruled unsatisfactory. [16] In Muhammad Redzuan, the panel agreed with the earlier decision in Lock Wee Kock that the provision of section 3(2) of the Act permits the detention of a suspected person up to 60 days pending the decision of the Minister, and similarly followed by another panel of the Federal Court in Tamilarasan a/l Subramaniam v Timbalan Menteri Dalam Negeri Malaysia & Ors [2021] 10CLJ 163. [17] In Dinesh a/l Tanaphill v Lembaga Pencegahan Jenayah & Ors [0w5(HC)-12-01/2021(B)], a decision delivered on 1.10.2021, which preferred the decision in Chua Kian Voon and emphasized again the need to adhere strictly to the test ‘whether the crucial task was carried out within convenient speed without undue delay’. The important elaboration by the panel in Dinesh a/l Tanaphill as extracted from the judgment at page 424 is laid out below: “[259] However, in Tamilarasan, this court decided that the issue of delay does not arise as long as the relevant reports are submitted within the entirety of the 60-day period as specified under POCA as the maximum time allowed for detention prior to the issuance of a detention order. It was suggested that the decision of this court in Chua Kian Voon was per incuriam. And that conclusion was reached on the basis that the court in Chua Kian Voon was not aware or that it was not brought to their attention that the total span of time within which detention could continue was a total of 60 days. Accordingly, as long as reports were all submitted within the entirety of the 60day period, there could be no issue of ‘delay’ or procedural irregularity. In short, Tamilarasan immunises delay on the part of the respondent, whether through its investigating or inquiry officers, allowing them to undertake these statutory duties at such time as is suitable, so long as it does not go beyond the entirety of the statutory period of 60 days. [260] Such a construction, with respect, does not give any cognisance to the importance of the liberty of a citizen who has been preventively detained without the full procedures having been complied with, and in the absence of a detention order. Pending the issuance of a detention order under POCA, the citizen is arrested and remanded pending ascertainment of whether he should be detained or not. It therefore becomes clear that the issuance of the relevant reports, which form the primary basis for the issuance of the detention order, are of prime importance. Equally important and significant is the time taken to produce such reports. As liberty is a precious feature of life, delay taken in producing these reports will necessarily impinge on, and prejudice the detenu in terms of the period he spends in detention prior to the inquiry. [261] It is for this reason that Chua Kian Voon and a series of cases preceding Chua Kian Voon have recognised that in the absence of specific time limits in preventive detention like POCA, the process of determining detention should be undertaken at all convenient speed. And not to simply allow the full period of sixty days to lapse when this period could have been lessened considerably. [262] In any event this matter has been full considered and dealt with in Timbalan Menteri Dalam Negeri, Malaysia & Anor v Awang Sari bin Lasikan (05(HC)-69–04 of 2021(B)) (unreported) (decided on 7 December 2021), a case which asserted the correctness of Chua Kian Voon in preference over Tamilarasan. As such, Chua Kian Voon now represents the correct position in law and is consequently binding”. [18] It must not be overlooked that having ventilated on the issue of delay as above, the panel in Dinesh Tanaphall proceeded to examine the explanation given on why there was delay and found at page 425 as follows: “[263] When we considered the entirety of the events and reasons given by the investigating officer and the inquiry officer, we were not convinced that there was undue delay amounting to a fatal irregularity that prejudiced Dhinesh. Therefore, we held that while we were unable to agree with Tamilarasan and preferred the reasoning in Chua Kian Voon v Menteri Dalam Negeri Malaysia & Ors [2020] 1 MLJ 351; [2020] 1 CLJ 747 (FC), we were satisfied that there was a proper explanation given for the time taken to submit the relevant reports on the facts of the instant appeal”. [19] What can clearly be sieved is that the panel in Dhinesh and followed by subsequent cases of the Federal Court, having ascertained the time taken by the IO and the inquiry officer in submitting the relevant reports, did not merely stop at the finding of the length of time taken to conclude that there was delay but went further to analyze the reasons offered by the IO and the inquiry officer and to ascertain if there was justification for the time taken by the said officers. The accepted explanation on the time taken in submitting the relevant reports refute the allegation that there was undue delay but the apex Court was satisfied they had acted within convenient speed. [20] Similarly in Muhammad Redzuan, the panel having examined the explanation given, was satisfied with the clarification given in relation to the delay. This was what was elucidated by the panel at para (61) of the judgment: “[61] In this appeal before us, the Respondent had explained through the affidavits that the procedures as prescribed had been complied with and that there was no delay. The total period of 35 days taken to conduct the investigation, inquiry, and submission of the report to the Minister is within the prescribed period of 60-days. The Respondent gave credible reasons for the period taken to conduct the investigation and inquiry”. [21] Although the judgment in Muhammad Redzuan did not mention those other cases of the Federal Court and merely focused on the case of Chua Kian Voon, this Court is of the view there was no oversight amounting to a misdirection as those other Federal Court cases decision similarly centered on the case of Chua Kian Voon. All the said decisions arrived at the same conclusion that is the alleged delay could only be salvaged by a proper, reasonable explanation as to justify why that length of time was taken. [22] In this present case, having looked at the affidavit of the IO enclosure 16, this Court found that the investigation into the applicant’s case had commenced as early as the next working day 9.5.2022 a Monday, after his arrest on 6.5.2022, having put in the necessary request for the remand extension as required by the Act. The statements of witnesses were taken within that week 9.5.2022, 13.5.2022 and on the following working day 17.5.2022 with the applicant’s statements taken on 18.5.2022 and 19.5.2022, immediately upon the gathering of the statement of the last witness. One other witness statement was taken on 23.5.2022 before the complete investigation report was submitted to the Deputy Minister. [23] This Court is of the finding that the explanation given on the 17 days of the time taken to carry out the investigation and to finalize the investigation report was substantiated with reasonable and justifiable reasons with the necessary actions carried out in all convenient speed by the IO. The statements of witnesses were gathered having had reason to believe there are grounds to justify the applicant’s detention. The follow up recording of the witness’s statements are necessary to reconfirm what had initially formed the intelligence information that provides the ‘reason to believe’ on the part of the Respondent. [24] Furthermore, with the purpose of the detention is focused on the applicant being involved with ‘a substantial body of persons’, it would surely entail a more thorough investigation that would result in a longer day to complete the necessary investigation. Hence, there is no merit on the 1st issue raised by the applicant. Deliberation on the 2nd issue: non-compliance with Article 149 [25] A similar complaint was raised before this Court in Muhamad Nur Siras Munir Bin Md Dzafir Permohonan Jenayah No: BA-44-248- 09/2022 a case heard later on the same issues but decision reserved to 15.11.2022. Thus, the case of Muhamad Nur Siras and this case carry the same reasons and justification by this Court in dismissing both these applications by relying on the same set of authorities that was presented. [26] This Court had the opportunity to analyzed the authorities and noted that when this Act was tabled and debated in Parliament, the policy makers had clearly emphasized why this law is necessarily needed to co-exist with other laws in addressing the wide spread of drug trafficking activities in the state of Malaysia. As can be sieved from the extract below, the purpose is to target the big lords of the drug cartel, syndicate or alliance who had escaped the arms of the law by engaging drug mules to carry out the trafficking activity on their behalf. This can be seen as follows: PENYATA RASMI PARLIMEN, JILID II, BIL. 35, PARLIMEN KEENAM, PENGGAL KEDUA BERTARIKH 17 OKTOBER 1984 DI MUKA SURAT 5140 – “Akta Dadah Berbahaya 1962 yang telah dipinda beberapa kali nampaknya tidak memberi kesan dalam gerakan membanteras pengedaran dadah kerana ketua-ketua sindiket, pedagang dan pengedar dadah tidak dapat ditangkap dengan memiliki dadah kerana pengaliran dadah secara fizikal adalah dilakukan oleh orang-orang suruhan mereka sahaja.” ... “...peruntukan undang-undang di bawah Ordinan Darurat (Ketenteraman Awam dan Mencegah Jenayah) 1969...tidak memberi kesan pencegahan, dengan izin, "deterrance" terhadap ketua-ketua pengedar, pedagang sindiket dadah kerana: