Subparagraph
(ii) is alleged to be illegally or improperly detained in public or private custody within the limits of Malaysia, be set at liberty." [8] The objective of such writ can be seen from the explanation of the Federal Court in Muhammad Jailani Kasim v. Timbalan Menteri Dalam Negeri, Malaysia & Ors. [2006] 4 CLJ 687 as follows: "[7] The very object of a writ of habeas corpus is to secure the release of a person who has been unlawfully detained. This would as of necessity require a consideration by the court of the lawfulness or otherwise of a detention. As a matter of fact, this power of the court is enshrined in Art. 5(2) of the Federal Constitution which read as follows: "Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him." Needless to say, the lawfulness of a detention would be dependent on the law in force from time to time... One of the functions of the courts is to interpret the law. An inherent part of their function is to see that the executive acts within the law and does not encroach unnecessarily into the realm of liberty of the subject." [emphasize added] [9] The Applicant is entitled to take advantage of any technical defect that invalidates the detention. Thus, the court is not to look to the substance or merits of the decision made but must confine itself to the issue of whether there has been a procedural non-compliance (see the case of Rovin Joty Kodeeswaran v. Lembaga Pencegahan Jenayah [2021] 4 CLJ 1). [10] The Federal Court in the case of Lee Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors. [2005] 3 CLJ 914 held as follow: "In our view, courts must give effect to the amendments. That being the law, it is the duty of the courts to apply them. So, in a habeas corpus application where the detention order of the Minister made under s. 4(1) of the Ordinance or, for that matter, the equivalent sections in the ISA 1960 and the DD(SPM) Act 1985, the first thing that the courts should do is to see whether the ground forwarded is one that fails within the meaning of procedural non-compliance or not. 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." [emphasize added] Analysis and findings [11] There were few issues ventilated by the learned counsel for the Applicant, but the one that captured this court’s attention was the learned counsel’s argument on the failure of the Respondents to accord the Applicant with his right to consult and be defended by a legal practitioner. In order to understand the issue brought by the learned counsel, it is pertinent to understand the whole scenario which led to the detention of the Applicant under the DO. [12] The Applicant was first arrested on 29/9/2021 at about 9 pm at Westin Hotel, Jalan Bukit Bintang, Kuala Lumpur under section 39B of Act 234. In the Affidavit in Support at E3, the Applicant had made specific allegation that the police had failed to accord him with the right of to consult and be defended by a legal practitioner. At paragraph 18 of the E3, the Applicant contended as follows: “Saya turut menyatakan di sini bahawa pihak polis juga tidak pernah pada bila-bila masa memaklumkan kepada keluarga saya tentang penahanan diri saya di Kuala Lumpur dan saya di sini secara tegas menyatakan bahawa saya telah dinafikan hak tersebut oleh pihak polis sehinggakan isteri saya telah pergi ke Balai Polis Machang untuk membuat laporan polis atas kehilangan saya malah saya juga telah dinafikan hak untuk akses kepada peguam pilihan saya sendiri bilamana saya ditangkap (Right To Representation/Counsel) dan ini jelas melanggari hak saya sebagaimana Perkara 5(3) Perlembagaan Persekutuan.” [13] The Applicant further contended that he was never released from the initial arrest but was later put under the 60 days detention under section 3 of Act 316. The Applicant alleged that there was no arrest under Act 316 since he was never release from the arrest under section 39B Act 234. At paragraph 16 and 17 of E3, the Applicant contended as follows; “Saya juga telah dinasihatkan oleh peguambela saya bahawa oleh kerana tiada tangkapan dibuat terhadap saya berkaitan kesalahan di bawah Akta Dadah Berbahaya (Langkah-langkah Pencegahan Khas) 1985 (selepas ini dirujuk sebagai Akta berkenaan) ini, penahanan saya sehingga ke hari ini adalah satu penahanan yang salah dan tidak sah di sisi undang-undang. Saya sesungguhnya menyatakan bahawa saya tidak pernah dimaklumkan tentang tujuan dan/atau sebab penahanan saya di bawah Akta berkenaan dan menyatakan dengan tegas di sini bahawa tangkapan saya adalah tidak sah di sisi undang-undang.” [14] In reply to these allegations, the Respondent filed the affidavit in reply by ASP Abdul Muttalib bin Ali at E16 in which the ASP explained that he arrested and detained the Applicant under section 3(1) of Act 316 on 4/10/2021 at 11 am at Pejabat Bahagian Siasatan Jenayah Narkotik, Ibu Pejabat Daerah Serdang, Selangor. According to ASP Abdul Muttalib bin Ali, he had informed the Applicant of his right to consult and be defended by a legal practitioner and had informed the family member of the Applicant of his arrest. [15] The Applicant rebutted the explanation given by ASP Abdul Muttalib bin Ali by affirming an Affidavit at E24 where the Applicant at paragraph 2 and 6 vehemently denied he was ever informed of this right. [16] It is pertinent to note that this court is left with two conflicting versions. It is settled law that the burden of satisfying the court that the detention is lawful lies throughout on the detaining authority. When more than one inference may be drawn from the evidence presented by the detaining authority, the inference most favourable to the Applicant must be drawn. Federal Court in SK Tangakaliswaran Krishnan v. Menteri Dalam Negeri, Malaysia & ORS [2009] 6 CLJ 705 held as follows: “[5] In my considered judgment the point at stake falls to be resolved with reference to the principles governing the burden of proof in an application for habeas corpus. It is settled law that on an application for habeas corpus the burden of satisfying the court that the detention is lawful lies throughout on 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 drawn our art. 151: It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the 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 than 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 with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22(5). [6] So too here. It is for the respondents to prove that the constitutional and statutory safeguards embodied in art. 151 and s. 6(1) were strictly complied with. The liberty of an individual should not be infringed upon even to the slightest extent without proof that the impugned infringement is in accordance with the Constitution and statute. 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 [1979] 1 LNS 18. 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. I must therefore respectfully reject the invitation of learned senior federal counsel to accept the secretary's evidence and reject that of the minister as inaccurate. Both affidavits were filed on behalf of the detaining authority and it is not, generally speaking, in accordance with the principles governing the evaluation of affidavit evidence that one deponent's version of the facts should be preferred to another when both are giving evidence for the same side.” [emphasize added] [17] It is clear that the issue relating right to consult and be defended by a legal practitioner goes to the basic fundamental rights of every citizen protected under Art 5(3) of the Federal Constitution as follows; “Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.” [18] Under Art 5(3) it is incumbent upon the police to act promptly and professionally in ensuring the Applicant’s fundamental rights to consult counsel of their choice will not become illusory or ineffective. This what has been elucidated by Siti Norma Yaakob FCJ (as she then was) in Mohamad Ezam Mohd Noor V. Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309 as follows: “Sub-section (3) of s. 73 of the ISA allows the appellants to be detained for a period not exceeding sixty days without orders of detention being made against them under s. 8. This implies that a detainee may be issued with a s. 8 detention order or released altogether before the expiry of the sixty days. In the case of the second appellant he was released on the fifty second day of his detention, whilst detention orders under s. 8 were issued against the first, third, fourth and fifth appellants following their initial detentions under s. 73(1). Under these circumstances I consider that it is incumbent upon the police to act promptly and professionally in conducting their investigations into the acts and conduct of the detainees, so that the latter's fundamental rights to consult counsel of their choice will not become illusory or ineffective. They should not be made to wait indefinitely for the police to complete their investigations before they can have access to their counsel and that too after the expiry of the sixty day period. Whilst I appreciate that a balance must be drawn between the interests of the state on one hand and the interests of the detainees on the other, it is not unreasonable to expect the police to give priority to their investigations so that the rights of the detainees to seek legal representation will not be unnecessarily denied. In this respect, I am guided by the case of Dewan Undangan Negeri Kelantan & Anor v. Nordin bin Salleh & Anor[1992] 2 CLJ 1125; [1992] 1 CLJ (Rep) 72; [1992] 1 MLJ 697 where our then Supreme Court adopted the test propounded by the Indian Supreme Court in the case of Smt Manecha Ghandi v. Union of India AIR [1978] SC 597 when determining whether an impunged legislation violates any fundamental right guaranteed under the Constitution. The test is that the court should ask itself and consider whether the validity of State action "directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise 'ineffective or illusory". On the facts of these appeals before us, I consider that allowing access only after the expiry of their detentions is conduct unreasonable and a clear violation of art. 5(3). It also supports the appellants' contention that denial amounts to male fide on the part of the police that the ISA was used for a collateral purpose. That collateral purpose is demonstrated by the fact that the appellants are facing several charges of being members of an unlawful assembly and that the ISA detentions were used to deny the appellants the right to give instructions to their counsel to defend them in the several charges they face. Responding to the respondent's argument that under the ISA, the police has absolute powers during the entire period of the sixty day detention to refuse access under the guise that investigations were on-going, that same submission was raised in Hashim bin Saud'scase (supra). In that case the High Court's finding that an arrested person's right to counsel is postponed for as long as he is detained under s. 117 of the Criminal Procedure Code has been held by this court to be erroneous. Although that case dealt with a s. 117 detention I consider that the principles of law are applicable to a s. 73(1) detention as well. Likewise I find no justification to support the respondent's argument. Moreover the ISA makes no specific provision that there is no right to counsel during the sixty day detention under s. 73(1) and I find no support in the respondent's contention in the case law that I have alluded to earlier in this judgment. Denying access during the earlier part of the detentions would have been acceptable to facilitate the police in their investigations but to stretch that denial throughout the duration of the sixty day period makes a mockery of art. 5(3). Before I move on to consider the remedy available for a breach of the second limb of art. 5(3), I need to correct a finding of the learned trial judge that art. 149 of the Federal Constitution validated the denial of access by the police. This cannot be correct. All that art. 149 did is to make provisions that the ISA is valid even though it contains provisions contrary to or inconsistent with arts. 5 (relating to personal liberty), 9 (relating to prohibition of banishment and freedom of movement), 10 (relating to freedom of speech, assembly and association) and 13 (relating to rights to property) of the Constitution. As an example s. 73 of the ISA that allows detention for more than 24 hours without the order of a magistrate contrary to art. 5(4) of the Constitution is valid by virtue of art. 149, where otherwise it would have been void as being inconsistent with art. 5(4).” [emphasize added] [19] It was undisputed that the Applicant was first arrested for an offence under section 39B of Act 234 on 24/9/2021 at Hotel Westin, Jalan Bukit Bintang, Kuala Lumpur. The Applicant was brought before a Magistrate and was remanded for 14 days. The Applicant had further contended that he was never released from the remand but was further detained and only be informed that he was detained under Act 316. [20] In their reply, the Respondent via affidavit by ASP Abdul Muttalib bin Ali explained the process of the arrest under this act. According to ASP Addul Muttalib bin Ali, the Applicant was arrested on 4/40/2021 at 11 am at Pejabat Bahagian Siasatan Jenayah Narkotik, IPD Serdang. His affidavit however was lacking any documentary record as corroborative evidence. [21] Despite that, in his affidavit, ASP Abdul Muttalib bin Ali had also explained the actions that he has took in order to comply with the constitutional requirement regarding rights to be defended by a legal practitioner. Once again, this court find that such averment was lacking any corroborative evidence. [22] This court takes the proposition that the failure to adduce corroborative evidences such as police report and remand order, amounts to a wilful withholding of material evidence. This court finds support from the Federal Court decision in Dhinesh Tanaphll v. Lembaga Pencegahan Jenayah & Ors [2022] 5 CLJ 1, as follows: "[250] The divergence of versions could have been resolved in the instant case by the respondent producing the minutes of the inquiry, which would have provided a contemporaneous note of what transpired. That would have resolved the conflicting accounts of the parties. The relevant confidential matters relating to security could have been redacted or held in camera. [251] Authority for this proposition is to be found in the decision of this court in Mohammad Azanul Haqimi Tuan Ahmad Azahari v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 8 CLJ 465 ("Haqimi"). It is authority for the proposition that the failure to adduce minutes of the inquiry, where the burden to justify the detention in question lies on the respondents, amounts to a wilful withholding of material evidence. This enables an inference favourable to the detainee to be made and also an adverse inference against the respondents. In short, the presumption was made that if the respondents had adduced the contents of the minutes of the Board hearing, the contents of those minutes would have been unfavourable to them. [252] Similarly, in the instant case we are constrained to invoke the ratio in Haqimi and to draw an adverse inference against the respondents for failing to provide the relevant minutes of the inquiry. This would have shown instantly what actually happened, ie, whether the detainee asked for Mathan Raj to be called or did not. As stated in Haqimi, security concerns relating to national interests, if any, could have been dealt with by redaction. At the very least, the relevant minutes could have been produced for perusal by the court. None of this however was done." [emphasize added] [23] Be it as it may, from the limited facts available, the question arises as to what really happened to the initial arrest against the Applicant. There is no explanation given by the Respondent as to whether the Applicant was ever release from the detention. As far as the facts are concerned, the Applicant was arrested at the office of the Respondent. This obviously shows that he was still under the police custody. [24] The time of the arrest was at 11.00 am, in which, the period of the remand has yet to lapse. This can be inferred from the fact that the Applicant was remanded for 14 days and as such the validity of the remand order would stand until 12 midnight of the day. [25] When there is no actual release from the detention of the first arrest, it makes the detention from the initial arrest on 24/9/2021 and the detention from the arrest on 4/10/2021 was a continued detention. This prompted he Applicant in his Affidavit to question the manner of his arrest and detention including denying him the right of counsel from 24/9/2021. Nevertheless this court found that there is no reply to such allegations made and as such it was deemed admitted by the Respondent. [26] In application like this, this court has to look into the totality of the detention and this was reminded by the Federal Court in the case of Lei Meng v. Inspektor Wayandiana bin Abdullah & Ors [2022] 3 CLJ 177; [2022] MLJU 141, as follows: "The process of detention of the appellants must be looked at as a whole because the entire process is inter-related. If one of the processes is tainted, the entire process is questionable requiring us to look into it ... [136] We rejected these arguments and in so doing, reaffimied Zaidi Kanapiah as representing the correct view on the subject. Without narrowing what has been reasoned at length above, we summarise our legal findings as follows: