CASE OF THE WEEK

The applicant was arrested by the police on 17 April 2012 at 12.05pm at a beach resort in Kuala Terengganu under s. 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('the Act') and detained until 30 April 2012 under s. 3(2)(c) and 3(2)(d) of the Act for purposes of investigation. After considering the reports submitted under ss. 3(3) and 5(4) of the Act, the Deputy Minister of Home Affairs ('the first respondent') issued a detention order under s. 6(1) of the Act directing the applicant to be detained at a Pusat Pemulihan Akhlak for a period of two years. On 21 June 2012, the Advisory Board ('the Board') received the applicant's representation dated 15 June 2012 (Form I). On 26 June 2012, the Board issued a notice of hearing of representation (Form II) notifying that the Board would be sitting on 4 July 2012. Form II was served on the applicant on 27 June 2012. The hearing on 4 July 2012 was adjourned as the applicant wanted to engage a lawyer. On the same day, a fresh Form II was issued and served on the applicant to inform of the next hearing date on 31 July 2012. The Board, after considering the representations of the applicant, had forwarded its recommendations to the Yang Di-Pertuan Agong pursuant to s. 10(1) of the Act. After considering the recommendations of the Board, His Majesty the Yang Di-Pertuan Agong had agreed with the detention order made by the first respondent under s. 6(1) of the Act. The applicant thus made an application for a writ of habeas corpus on the grounds that his detention was unlawful, submitting these grounds, ie, (i) that there was non-compliance with r. 5(1) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987 ('the Rules') in that he was not served with the documents at the Pusat Pemulihan Akhlak in accordance with the Rules; (ii) neither the affidavit of SAC Jamaludin nor the affidavit of the Deputy Minister made mention of the time when the report was received by the Deputy Minister and in light of this deficiency, there was non-compliance with s. 3(2)(c) of the Act; (iii) that there was ambiguity as to time of service and non-compliance with s. 9 of the Act and r. 3 of the Rules; (iv) that there was non-compliance with s. 5 of the Act on the appointment of one Sarihan as the Inquiry Officer on the grounds that as a Deputy Public Prosecutor whose work was closely connected with police investigations and the prosecution of persons in court, he would not be an independent Inquiry Officer able to impartially carry out his duties and responsibilities under the Act to conduct the inquiry and to submit his report to the Minister.

Held (granting applicant's application for writ of habeas corpus):

(1) The purpose behind the practice of obtaining an acknowledgment is not for the purpose of compliance with any rule on obtaining an acknowledgment but for the purpose of proving that there was service of the requisite notices on the detained person. Even to the naked eye, the two alleged signatures on the two copies of Form II dated 27 June 2012 and 4 July 2012 were completely different. Since the applicant admitted that the signature on the Form II dated 27 June 2012, which was consistent with his other signatures, was his signature and that the different signature on the Form II dated 4 July 2012 was not his signature, and in the absence of any explanation as to how there could have been this difference, the applicant's complaint that the signature on the Form II dated 4 July 2012 was not his signature and that he had not acknowledged receipt of the said Form was accepted. In respect of this, a serious doubt had arisen as to whether the applicant was in fact served with the Form II dated 4 July 2012. Thus, there had been a breach of the mandatory requirement of r. 5(1) of the Rules. (paras 8-9 & 15-16)

(2) SAC Jamaludin's affidavit in reply stated that he had reported to the Deputy Minister on 30 April 2012 at 10.05am. The time of the reporting was relevant for the purpose of determining whether the reporting was done within 14 days as provided under the Act. There was nothing clear and obvious in any of the affidavits filed herein or any exhibits annexed to any of the affidavits and before this court which would give rise to a different and contrary meaning. In the circumstances, the court was satisfied that SAC Jamaludin had carried out his responsibility of reporting the circumstances of the arrest and detention of the applicant to the Deputy Minister under s. 3(2)(c) of the Act. (para 22)

(3) It was pointed out by the applicant that on the second page of the detention order attached to the Deputy Minister's affidavit, the time given for the service of the documents was stated as 1115 where none of the words "pagi/petang/malam" had been crossed out. The applicant argued that it was thus unclear as to whether the time of service was 11.15am or 11.15pm. However, in light of the fact that there was no suggestion that the difference between whether the service of the documents was effected at 11.15am or 11.15pm would have any effect on whether the detention had exceeded 60 days, the failure to cross out the words "pagi/petang" did not give rise to any ambiguity since the time of service and explanation of the documents at 11.15pm were properly deposed by the relevant inspectors in their respective affidavits. (paras 25 & 26)

(4) Although there was a challenge as to the appointment of the Inquiry Officer, the challenge was in relation to the Inquiry Officer's alleged refusal to accept the applicant's evidence and the suggestion that he had acted as a rubber stamp for the police. This was insufficient as a challenge regarding the independence of the Inquiry Officer by virtue of his alleged link with the Attorney General's Chambers and accordingly the court did not propose to deal with this issue on the ground that it was not properly raised. (para 33)

(5) Although the court found no merits in the second, third and fourth issues raised, there was however a breach of the mandatory requirement of r. 5(1) of the Rules. In light of this procedural non-compliance, the applicant's continued detention was thus rendered unlawful. As such, the applicant's application for a writ of habeas corpus was granted and the applicant was to be set at liberty forthwith. (para 35)

Case(s) referred to:

Aw Ngoh Leang v. Inspector General of Police & 2 Ors [1993] 1 CLJ 373 SC (refd)

Muhammad Jailani Kasim v. Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors [2006] 4 CLJ 687 FC (refd)

Parasuraman Velu v. Ketua Polis Negara, Malaysia & 2 Ors [2006] 1 LNS 248 HC (refd)

Sim Kim Fatt v. Dato' Fu Ah Kiow [2009] MLJU 3 (refd)

SK Tangakaliswaran Krishnan v. Menteri Dalam Negeri, Malaysia & Ors [2009] 6 CLJ 705 FC (refd)

Tan Hoon Seng & Anor v. Minister for Home Affairs & Anor [1990] 1 CLJ 423; [1990] 1 CLJ (Rep) 271 SC (refd)

Legislation referred to:

Dangerous Drugs (Special Preventive Measures) Act 1985, ss. 3(1), (2)(c), (2)(d), (3), 5(4), 6(1), 9, 10(1)

Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987, rr. 3, 5(1)

For the applicant - N Sivananthan (Tina Ong with him); M/s Sivananthan

For the respondents - Natrah Fareha; FC

Reported by Suhainah Wahiduddin