Yesyurun A/L Chandran v Timbalan Menteri dalam Negeri, Kementerian dalam Negeri Malaysia (JB-25-2-03/2025)

TIMBALAN MENTERI DALAM NEGERI

KETUA POLIS NEGARA

KETUA POLIS DAERAH JOHOR BAHRU (SELATAN), JOHOR … RESPONDEN-RESPONDEN S/N NxERDBlpd0CxcyoG196r5g JUDGEMENT

The Applicant filed this Judicial Review application to challenge and annul the validity of the restriction order dated 20 December

The application seeks the following orders: - “a. Satu deklarasi bahawa Perintah Sekatan bertarikh 20.12.2024 yang dikeluarkan oleh Responden Pertama adalah tidak sah kerana bertentangan dengan Artikel 4, 5, 7, 8, 149 dan 151 Perlembagaan Persekutuan; b. Satu deklarasi bahawa Perintah Sekatan bertarikh 20.12.2024 yang dikeluarkan oleh Responden Pertama adalah tidak sah kerana bertentangan dengan Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas), 1985 (“Akta LLPK”); c. Satu perintah bersifat Certiorari bagi membatalkan keputusan pengeluaran Perintah Sekatan bertarikh 20.12.2024; dan S/N NxERDBlpd0CxcyoG196r5g d. Kos Permohonan ini.”

A restriction order (perintah sekatan) dated 20.12.2024 was issued against the Applicant under Section 6(3) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (“the Act”) by the Deputy Minister of Home Affairs of Malaysia (“DMHA”) ordering the Applicant to be restricted for 2 years starting from 20.12.2024 in Johor Bahru, Johor Bahru District, Johor. The Applicant claims that there was non-compliance with procedures under the laws, hence the restriction order is null and void.

The Applicant is relying on the following 7 grounds: - “1. Wujudnya ketidakpatuhan prosedur di bawah Seksyen 6(3) Akta tersebut akibat kegagalan DMHA untuk menggunakan mindanya sebelum mengeluarkan

Sekatan terhadap Pemohon. (The failure of DMHA to use its discretion before issuing a restriction order against the Applicant constitutes non-compliance with the procedure under Section 6(3) of the Act). S/N NxERDBlpd0CxcyoG196r5g

Wujudnya ketidakpatuhan prosedur di bawah Seksyen 6(3) Akta tersebut apabila Pemohon hanya dibawa untuk melaporkan diri di balai Polis Sentral Johor Bahru, Selatan, Johor pada 10.15 pagi keesokan harinya iaitu pada 21.12.2024. (There is non-compliance with the procedure under Section 6(3) of the Act when the Applicant was only brought to report to Johor Bharu South Police station at 10.15 AM the following day, i.e., on 21.12.2024).

Wujudnya ketidakpatuhan prosedur kepada Perkara 149 Perlembagaan Persekutuan dan mukadimah Akta Dadah Berbahaya (Langkah-langkah Pencegahan Khas) 1985 akibat ketiadaan alasan-alasan dan pengataan fakta dilampirkan untuk menunjukkan penglibatan “substantial body of persons” yang mengancam ketenteraman awam. (There is non-compliance with Article 149 of the Federal Constitution and the preamble of the Dangerous Drugs (Special Preventive Measures) Act 1985 due to absence of reasons and factual statements attached to show the involvement of a “substantial body of persons” threatening public order).

Hak Pemohon telah diprejudiskan apabila Pemohon disediakan dengan seorang jurubahasa S/N NxERDBlpd0CxcyoG196r5g Tamil yang berkepentingan apabila rakaman percakapan Pemohon direkodkan di bawah Seksyen 4 Akta tersebut. (The Applicant’s rights were prejudiced when the Applicant was provided with a Tamil Interpreter who had a vested interest during the recording of the Applicant’s statement under Section 4 of the Act).

Dapatan inkuiri defektif kerana ketiadaan jurubahasa ketika proses inkuiri. lni menyebabkan laporan yang disediakan oleh pegawai siasatan KDN menurut seksyen 5(4) Akta tersebut defektif. (The inquiry findings were defective due to the absence of an interpreter during the inquiry process. This caused the report prepared by the KDN investigating officer under section 5(4) of the Act to be defective).

Wujudnya ketidakpatuhan terhadap peruntukkan di bawah Seksyen 5(4) Akta tersebut dibaca bersama Seksysn 54(2) Akta Tafsiran 1948 & 1967 akibat kelewatan yang tidak munasabah selama 26 hari oleh pegawai siasatan dalam menyediakan dan mengemukakan laporan lengkap beliau kepada DMHA. (There is non-compliance with the provision under Section 5(4) of the Act read together with Section 54(2) of the Interpretation Act 1948 & 1967 due to an unreasonable delay of 26 days by the S/N NxERDBlpd0CxcyoG196r5g Investigating Officer in preparing and submitting the report to DMHA).

Penahanan lanjut Pemohon melebihi 24 jam di bawah Seksyen 3(2)(a) Akta tersebut adalah tidak adil dan memprejudiskan kerana pegawai tangkapan Pemohon telam membenarkan penahanan lanjutan terhadap Pemohon. (The Applicant’s further detention exceeding 24 hours under Section 3(2)(a) of the Act is unfair and prejudicial as the Applicant’s detention officer authorized the extension of the Applicant).”

This court finds that the above grounds of 2, 3, 6 and 7 have no merit and agrees with the submission of the Federal Counsel on those grounds. The reasons can be summarized as follows: - i. On ground no 2, Section 6(3) of the Act empowers the DMHA to impose conditions of restriction, including residence and reporting requirements. However, the statute does not prescribe a specific timeframe within which the restricted person must be physically brought to the place of restriction. The Federal Court in Lee Kew S/N NxERDBlpd0CxcyoG196r5g Sang v TMDN 7 Ors (2005) 2 CLJ 914 decided that only procedures expressly prescribed by the statute are mandatory, and the courts must not create obligations or add requirements that Parliament did not provide. Unless the Act itself imposes the reporting timeframe, non-compliance cannot be a ground of illegality. In this respect, the Court agrees with the respondent’s argument that a timing instruction included by the DMHA is directory in nature and failure to comply does not invalidate the restriction order. The court in Azman Khan bin Abdullah v TMDN & Ors (2023) MLJU 1583 also rejected a similar argument as in the present case. ii. On ground no 3, the Court of Appeal in Muhammad Fitri bin Saad v TMDN (2025) 1 MLJ held that the grounds and factual statements only apply to a restriction order under Section 6(1) where an Applicant can make an application for representation before the Advisory Board and not to restriction cases under Section 6(3) of the Act where there is no need for such representation. The Federal Court handling a similar issue in Selva Vinayagam Sures v TMDN & Ors (2021) 2 CLJ 29, held that there was no procedural non-compliance. iii. Ground no 6, also has no merit. The Federal Court in Redzuan Omar v TMDN (2023) 2 CLJ 859 held that there is no delay as long as the report is completed and submitted within the 60 days allowed under the Act. S/N NxERDBlpd0CxcyoG196r5g iv. Ground no 7, has no merit as well since the authorizing officer was an Inspector satisfying Section 3(2)(a) of the Act. The law does not require a different or independent officer to authorize the extension. Following the Federal Court case of Lee Kew Sang v TMDN (2005) 3 CLJ 914, the Court cannot add procedural requirements not in the Act. Hence, no prejudice is shown to the Applicant.

However, the Court finds that there are merits in grounds 1, 4 and 5 and agrees with the arguments of counsel for the Applicant. The reasons can be summarized as follows: - Ground 1, has merit because DMHA failed to properly exercise his mind when issuing the restriction order. This is because two different reporting locations appear, namely: - a) In the DMHA’s affidavit (enclosure 13), paragraph 8 refers to reporting to Perak Tengah, Perak. b) However, the restriction order dated 20.12.2024 (exhibit “DSDSAN-1” in enclosure 13) refers to reporting to Johor Bahru Selatan, Johor. S/N NxERDBlpd0CxcyoG196r5g The above contradiction demonstrates the non-application of the mind and renders the restriction order defective. As this matter concerns detention without trial, the case is determined solely through affidavit evidence. A heavy burden lies on the respondents to show proper exercise of power. The DMHA’s affidavit contradicts its own exhibits, indicating a failure to properly appreciate or verify material facts before issuing the restriction order. The Court in Ng Hong Choon v TMDN & Anor (1994) 4 CLJ 47, held that failure to apply the mind invalidates the order. The above issue was properly pleaded in the amended statement under Order 53 of the Rules of Court 2012 (enclosure 42). It is the Court’s view that the inconsistency in reporting locations in the affidavit and restriction order is substantive and not clerical as contended by counsel for the respondents. Even if the issue was not raised or properly pleaded, the court can take cognizance of the inconsistency since such defects are fatal in the prevention detention context in that DMHA failed to apply his or her mind when issuing the restriction order. Further, there was no affidavit of correction produced by the respondent. The Federal Court in Jayaganesan a/I Ramakrishnan v TMDN (2019) 6 MLJ 697, in allowing the appeal, stated that an error in affidavits requires a corrective affidavit to explain the S/N NxERDBlpd0CxcyoG196r5g glaring error. The failure of the respondents to rectify this with proper affidavit evidence, coupled with the high threshold of strict compliance in prevention detection cases, strongly supports the Applicant’s argument that the DMHA failed to exercise its discretion properly under Section 6(3) of the Act.

Grounds 4 and 5 can be taken together since the issues overlap. It is to be noted that the Applicant’s statement was recorded with the help of a narcotic police officer as a Tamil interpreter, and such statement forms part of the report submitted to DMHA and is considered in decision-making on whether to issue the restriction order. In the case of Fong Choon San v TMDN & Ors (2016) 1 LNS 788, the Court held that the use of a narcotic police officer as a Tamil interpreter during a police investigation creates a reasonable bias. It further held that irregularities that are not an infringement of any statutory requirement can also amount to a procedural requirement if they are part of the decision-making process. In the present case, the report is tainted as a result of the failure to use an independent interpreter. The report played a significant role in the making of the restriction order against the Applicant. Thus, it will amount to a procedural requirement. The above case was endorsed by the recent Federal Court in Sugenthiran Paramasivam v. TMDN & ORS [2024] 5 CLJ 549 where the Court held that justice must not only be done but also seen to be done. S/N NxERDBlpd0CxcyoG196r5g

In addition, under ground number 5, during the investigation, the Applicant was provided with a Tamil interpreter, while during the inquiry process, the Applicant was not provided with a Tamil interpreter, as the respondents contend that the Applicant can understand Bahasa Melayu. This contradicts the earlier procedure, and there is no uniform process. In the case of Keeshan Subramaniam v TMDN & Ors (2024) CLJU 743, the Court held that it is the responsibility of the inquiry officer to ensure the existence of consistent procedures and a uniform process for investigation under the Act. Similarly, the Federal Court in Chitra Devi Suppiah v TMDN (2011) 3 CLJ 557, where the facts were almost similar to the present case, clearly stated that the absence of a Tamil interpreter is violation of freedom of speech and the report prepared by the inquiry officer without an interpreter is defective and such defect is fatal as the report forms part of the decision-making claim chain by the DMHA when issuing the restriction order against the Applicant. In the present case, it can be said that the report of the inquiry officer was not in compliance with Section 6(3) of the Act as it was prepared without the benefit of a Tamil interpreter.

Based on the above, the application is allowed with no order as to costs. S/N NxERDBlpd0CxcyoG196r5g Dated 25th November 2025 t.t. KALYANA KUMAR A/L SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Applicant : Jayarubbiny a/p Jayaraj Messrs Jay & Jay. For the Respondents : Ng Xiang Hue Peguam Persekutuan Penasihat Undang-Undang Kementerian Dalam Negeri S/N NxERDBlpd0CxcyoG196r5g