Muhammad Syahir Aqil Bin Rosman v 1. Timbalan Menteri dalam Negeri (BA-25-127-11/2019)

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KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN [1] The Applicant was earlier detained under subsection 6(1) of the Dangerous Drugs (Preventive Measures) Act 1985 (“Act”) on 16.7.2019. Subsequently the 1st Respondent issued a suspension order pursuant to subsection 7(1) of the Act effective from 17.10.2019 and directed the Applicant be restricted within Mukim Lepar, Daerah Pekan, Pahang. Having considered the oral and written submissions, I allowed the Application. 2 Application [2] In this Application the Applicant moves this Court for an order of certiorari to quash the suspension order and be released. The Applicant forwarded three grounds namely:

2.1 delay by the Inquiry Officer in submitting the report to the

2.2 the signature appeared in the statement recorded by the Investigation Officer was not his; and

2.3 conflicting dates pertaining to the submission of the complete report of the investigation to the Inquiry Officer from the Investigation Officer. [3] Before I deal with the issues I think I need to address the preliminary objection raised by the Respondents at the leave stage pertaining to the second prayer sought by the Applicant namely: “2. Suatu Deklarasi dan/atau Certiorari bahawa penahanan terdahulu di PPA Machang di atas Perintah Tahanan bertarikh 14.7.2019 selaras dengan Seksyen 6(1) Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 adalah tidak sah dan terbatal).”. It was contended that when the Applicant filed this judicial review application he was out of time to challenge the said order and there was 3 no application for extension of time. I agreed with the learned Federal Counsel that the Applicant cannot seek for this prayer not on the ground advanced by the learned Federal Counsel but simply because the Applicant was not being detained. At the time this application was filed he was placed under restriction pursuant to subsection 7(1) of the Act. [4] Nevertheless I allowed the Applicant to raise issues of non-compliance with respect to the detention as when the Minister decides to suspend the detention order under subsection 7(1) and directs the person to be restricted, that does not in my view put an end of the detention order issued under subsection 6(1) of the Act. The detention order is merely suspended not revoked. The Minister may revoke the suspension order and once revoked the detention order becomes operative again as provided under subsection 7(3) which reads: “(3) The Minister may revoke the suspension of any detention order if he is satisfied that the person against whom the detention order was made has failed to observe any restriction or condition imposed upon him or that it is necessary in the interest of public order that the suspension should be revoked, and in any such case the revocation of the suspension shall be sufficient authority to any police officer to re-arrest without warrant the person against whom the detention order was made, and that person shall as soon as practicable be returned to his former place of detention or, if the Minister so directs, sent to another place of detention.”. Hence, the suspension order does not in this case supersede the detention order. In other words the detention order under subsection 6(1) is still alive. It is for this reason I am of the view that Mohd Faizal bin Haris v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2006] 1 MLJ 309 does not apply and the Applicant therefore, is entitled to raise issues 4 pertaining to the process of preparing the complete report of investigation by the Investigation Officer under subsection 3(3) as well as the process of inquiry by the Ministry’s Inquiry Officer under subsection 5(3) which are the prerequisites to making of a detention order under subsection 6(1) of the Act (see Muhammad Jailani Kasim v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2006] 6 MLJ 403). In other words both the detention and the suspension order are inextricably linked. Issues Delay by the Inquiry Officer [5] The learned counsel for the Applicant pointed out that the Inquiry Officer of the Ministry of Home Affairs took about nineteen days (19) before commencing her inquiries and submitted her report to the Deputy Minister. She received the complete report of the investigation from the Investigation Officer on 19.6.2019 and only commenced her inquiries on 8.7.2019 and submitted her report pursuant to subsection 5(4) of the Act to the Deputy Minister on the same day. It was submitted that her explanation for taking 19 days to do so was unreasonable. It was not done with convenient speed as provided under subsection 54(2) of the Interpretation Acts 1948 and reference was made to the case of Chua Kian Voon v. Menteri Dalam Negeri, Malaysia & Ors [2020] 1 MLJ 351. [6] The learned Federal Counsel in his submission referred to the reasons offered by the Inquiry Officer which can be found in paragraph 8 of enclosure 24. The Inquiry Officer had explained in detail of her tasks and that she had in fact acted with convenient speed. Therefore, he 5 submitted that there was no non-compliance on the part of the Inquiry Officer. [7] The Federal Court in Chua Kian Voon dealt with among others, the requirement to work with convenient speed with respect to the Inquiry Officer’s duty to conduct an inquiry and thereafter submit the report to the Minister pursuant to subsections 5(2) and (4) of the Act respectively. The Federal Court having examined the relevant paragraphs affirmed by the said Inquiry Officer, at p.375 held as follows: “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).”. Apparently the said Inquiry Officer took 21 days working on the appellant’s case alone. Those were the only reasons offered by the said officer. I suppose it is quite difficult to appreciate that she took 21 days to carry out such task. [8] In comparison with the present Application, the Inquiry Officer provided details of her tasks which throughout the material period (19.6.2019 – 8.7.2019) she had to conduct inquiries on other detainees as well which involved travelling to Tawau, Labuan, Johor, Kedah and Terengganu (enclosure 24 paragraph 8). These are the tasks that an Inquiry Officer has to perform. In Timbalan Menteri Hal Ehwal Dalam 6 Negeri, Malaysia & Ors v Liau Nyun Fui [1991] 1 MLJ 350 Abdul Hamid Omar LP at p.353 said: “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.”. I accept these reasons to be credible and reasonable and that the inquiry was conducted with convenient speed. Whether the Applicant signed his statement [9] The Applicant claimed that the signatures appeared in the statement recorded by the Investigation Officer on pages 3 – 4 were not his. He suspected that the police forged the said signatures as they differed from his signatures on pages 1 – 2. The learned counsel invited the Court to compare the signatures. Reference was made to Vishnu a/l Telagan v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 5 AMR 554. [10] The learned Federal Counsel pointed out that all five signatures differed as well as his signatures in the affidavits affirmed by the Applicant. It was submitted that this was quite natural where no two signatures of a person could be exactly similar. [11] As regards the signatures, the Applicant had signed two affidavits namely enclosures 3 and 46. He claimed that he signed pages 1 – 2 of 7 the police statement while he suspected the police forged his signatures on pages 3 – 4. The Federal Court in Vishnu (supra) at p.559 David Wong Dak Wah CJ (Sabah & Sarawak) said: “[17] On the appellant's impugned recorded statement, it is open, under s 73 of the Evidence Act 1950 for the court to compare signatures to ascertain whether such signature is validly of whom it purports to be.”. [12] I have compared all 4 signatures found in the police statement and there are not exactly similar which is understandable. But to say they are markedly different, I beg to differ particularly so when I looked at the signature on page 2 which he said it was his and on page 3 which he said it was not his. They appeared quite consistent with each other. The Federal Court in Vishnu went further to compare the applicant’s signature in the statement with his supporting affidavit which was signed very much later and found they were markedly different and accepted that the applicant never signed the said statement. But here, upon comparison, the signatures in enclosures 3 and 46 appeared markedly different to me. But of course these are his affidavits. Therefore, I find no merit in this argument too. Conflicting dates of submission of the complete report of investigation [13] The last issue to be considered is the contradiction in respect of the Investigation Officer’s evidence during the hearing of the Applicant’s representation before the Advisory Board and the affidavits concerning the date of submission of the complete report of investigation. 8 [14] The learned counsel for the Applicant referred to the answer given by the Investigation Officer during the hearing of his representation where the latter told the Board that he submitted the complete report of the investigation to both the Inquiry Officer and the Deputy Minister on 3.6.2019. In contrast, the Inquiry Officer and the Deputy Minister deposed in their respective affidavits that they received the said report on 19.6.2019. There was no explanation for this contradiction. She referred to Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 8 CLJ 465 and submitted that the Court should rule in favour of the Applicant as there were two inferences can be drawn i.e. whether it was the complete report of investigation pertaining to the Applicant or someone else. The case of Ng Hee Thoong & Anor v. Public Bank Berhad [1995] 1 CLJ 609 was cited for the failure to reply by both deponents. [15] In response the learned Federal Counsel argued that both the Inquiry Officer and the Deputy Minister affirmed that they received the said report on 19.6.2019. The allegation by the Applicant about the answer given by the Investigation Officer when he was examined by the Applicant’s counsel that the said report was sent on 3.6.2019 was not supported by evidence. In support of his submission he referred to Chua Kian Voon (supra) which held that mere allegation is not evidence. [16] Granted mere allegation is not evidence. Zawawi Salleh FCJ in Chua Kian Voon at p.366 said as follows: “[31] We have considered the appellant’s allegation that he was referred to another detainee by the name of Clement Tseu for the purpose of explaining his right to make representations to the Board. The allegation was, however, 9 not supported by any evidence on record. Jurisprudence dictates that mere allegation is not evidence and is not equivalent to proof. A party’s selfserving affidavit that is not supported by evidence is not sufficient to establish an alleged fact.”. This allegation was premised on the notes taken by the Applicant. Of course the said notes were not verified and certified to be the notes of proceedings of the Advisory Board. Nevertheless, this allegation was raised in paragraph 22 of his affidavit in support of this Application (enclosure 3) and not in his later affidavit where one could say that it might be an afterthought. So he claimed that there was a delay of thirty three

days. Obviously he was not aware that the said report as claimed by the Investigation Officer, the Inquiry Officer and the Deputy Minister was sent and received on 19.6.2019. [17] None of the affidavits filed by the Respondents except the Investigation Officer’s affidavit (enclosure 32) made reference to paragraph 22. However, the response was this: “27. Merujuk kepada perenggan 16, 17, 18, 22, 44(f), 44(h) dan 44(i) Afidavit Pemohon, saya menafikan dakwaan-dakwaan Pemohon. Saya sesungguhnya mengulangi kembali pernyataan saya di perenggan 13 hingga 23 di atas dan menegaskan bahawa pada 16-07-2019 jam 10.00 malam di Lokap Balai Polis, Ibu Pejabat Polis Kuala Terengganu, Terengganu, saya telah menyerahkan dan menyampaikan Perintah Tahanan, pernyataan mengenai alasan-alasan dan pengataan-pengataan fakta dan 3 salinan Borang I dengan secukupnya kepada Pemohon. Saya juga menegaskan bahawa saya telah menerangkan isi kandungan Perintah tersebut dan pernyataan mengenai alasan-alasan dan pengataan-pengataan fakta iaitu ekshibit “WS-1” dan Borang I iaitu ekshibit “WS-2” dalam bahasa Malaysia kepada Pemohon. Saya juga telah menerangkan dan memaklumkan kepada Pemohon berkenaan 10 dengan hak-hak Pemohon untuk membuat representasi di hadapan Lembaga Penasihat dan hak-hak Pemohon untuk melantik peguam bela serta memanggil saksi-saksi Pemohon semasa persidangan representasi dihadapan Lembaga Penasihat. Pemohon sendiri telah mengaku memahami penerangan saya mengenai isi kandungan dokumen-dokumen tersebut termasuk hak representasi Pemohon. Saya juga menegaskan bahawa saya telah menyampaikan Perintah Tahanan, pernyataan mengenai alasan-alasan yang atasnya Perintah itu dibuat dan pengataan-pengataan fakta yang atasnya Perintah itu diasaskan serta Borang I kepada Pemohon dengan secukupnya. Saya sesungguhnya menegaskan bahawa semua proses tindakan telah disempurnakan dengan menepati segala peruntukan undang-undang dan segala kehendak di bawah Akta Keterangan, Perlembagaan Persekutuan, Akta tersebut dan Kaedah tersebut telah dipatuhi dengan sempurna. Justeru, kesemua dakwaan Pemohon tersebut adalah tidak benar dan tidak berasas.”. [18] Clearly there was no denial of any sort in this reply. The notes of proceedings of the Advisory Board would certainly help if produced. In Mohammad Azanul Haqimi (supra) David Wong Dak Wah CJ (Sabah & Sarawak) at p.472 held: “[19] In all fairness to the respondents, during the hearing of this appeal, we asked them whether they could adduce the minutes of the Board hearing to support their version of the events. The said minutes constituted material evidence solely within the respondents’ custody. We were met with the response that said minutes were ‘rahsia’. To us, this argument did not hold water. [20] Firstly, this court could have viewed that evidence in camera. Secondly and in any case, we need only to read the alleged portion proving that the respondents' version of the story was accurate. Nothing more.”. 11 [19] It is my view that it is incumbent upon the Respondents to refute this allegation. The Investigation Officer can deny that that was not his answer to the question posed and produce the notes of proceedings. The notes of proceedings could also be produced by the Secretary. Unfortunately the Respondents in particular the Investigation Officer chose not to respond to this allegation. [20] Although the learned counsel for the Applicant admitted when asked that he did not at any time apply for the said notes I do not think that would work against the Applicant, as said, the Applicant has raised this at the earliest opportunity available to him vide enclosure 3, similarly for the other allegations. In SK Tangakaliswaran a/l Krishnan v. Menteri Dalam Negeri, Malaysia & 2 Ors [2010] 3 AMR 781 Gopal Sri Ram FCJ at p.786 said: “When considering whether a restraint upon liberty is in accordance with law it is to the evidence furnished by the detaining authority that a court must turn in the usual way. And where that evidence is by way of affidavit the court is not spared the task of subjecting its contents to the same tests as in any other case, if not to stricter scrutiny since the case concerns the violation of a constitutionally guaranteed protection. One of the tests that a court applies to test allegations in affidavits is to see whether they are contradictory in nature. (See, Eng Mee Yong & Ors v Letchumanan [I979] 2 MLJ 212.) Further, where a party upon whom the onus of proof lies adduces conflicting or contradictory evidence, a court assessing that evidence is in the usual way entitled to rule that the burden has not been discharged. And in a matter as important as individual liberty, where contradictory averments are made on oath, the detenu is entitled to rely on the version that is most favourable to him. Put a little differently, where as in circumstances present here, more than one inference may be drawn from the evidence presented by the detaining authority, the inference most favourable to the detenu must be drawn.”. 12 Since there was no denial nor any positive response from the Respondents I have no option but to accept the said allegation. Therefore, the question whether the complete report of investigation pertaining to the Applicant or someone else that was sent and considered by the Deputy Minister is left unanswered. Hence, strict compliance with subsection 3(3) of the Act is questionable. Decision [21] For the reasons aforementioned, the Application is allowed. t.t (TUN ABD MAJID BIN DATO’ HAJI TUN HAMZAH) Hakim Mahkamah Tinggi Malaya, Shah Alam Tarikh: 14 Disember 2020 13 Peguamcara-Peguamcara:- Peguamcara Pihak Perayu Muhamad Safuan KAMAR PENASIHAT UNDANG-UNDANG KEMENTERIAN DALAM NEGERI Aras 5, Blok D1, Kompleks D, Pusat Pentadbiran Kerajaan Persekutuan 62546 Putrajaya Tel : 03 – 8886 8575 Fax : 03 – 8889 4042 Peguamcara Pihak Responden Ikram Ibrahim, Wan Nurul Ain TETUAN ASHRAFF AL-HIRZAN & ASSOCIATES Advocates & Solicitors D-8-1 & D-8-2, Alam Avenue 2, Jalan Serai Wangi M16/M, Seksyen 16, 40000 Shah Alam. Tel : 03 – 5524 1844 Faks : 03 – 5524 1849