12/8/2018 Case:[2018] 1 LNS 1286

[2018] 1 LNS 1286

SHARAVANAN KRISHNAN v. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA & ORS

HIGH COURT MALAYA, IPOH
MOHD RADZI HARUN JC
[PERMOHONAN JENAYAH NO: AA-44-55-11/2017]

Case(s) referred to:

SK Tangakaliswaran Krishnan v. Menteri Dalam Negeri, Malaysia & Ors [2009] 6 CLJ 705
Lee Kwee Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914
Abd Razak Baharudin & Ors v. Ketua Polis Negara & Ors and Another Appeal [2005] 4 CLJ 445
Mohd Faizal bin Haris v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 4 CLJ 613
L Rajanderan R Letchumanan v. TMDN & Ors [2010] 7 CLJ 653
Muhammad Jailani Kasim v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2006] 4 CLJ 687
Manoharan Malayalam & Yang Lain lwn. Menteri Keselamatan Dalam Negeri & Satu Lagi [2009] 4 CLJ 679
Kamar Azmen Bin Abd Rahman v. Ketua Polis Negara & Ors [2016] 6 MLJU 1151
Bunya AK Jalong v. Public Prosecutor [2015] 5 CLJ 893; [2015] MLRA 491
Partiban Panisilo v. Timbalan Menteri Dalam Negeri, Malaysia & Anor [2018] 1 LNS 185
Muhamad Iman Divaharan v. Timbalan Menteri Dalam Negeri & Ors [2017] 1 LNS 621
N Ramakrishnan P Nagasamy v. Timbalan Menteri Dalam Negeri & Ors [2008] 7 CLJ 480
Low Teng Hai v. Menteri Dalam Negeri, Malaysia & Ors [1992] 2 CLJ (Rep) 816
Yap Fook Pin v. Timbalan Menteri Dalam Negeri, Malaysia & Yang Lain [1992] 1 CLJ (Rep) 650
Tay Lay Beng v. Menteri Hal Ehwal Dalam Negeri Malaysia & Anor [2004] 8 CLJ 674
Chean Hua Sey v. Menteri Keselamatan Dalam Negeri & 1 Lagi [2008] 9 CLJ 657
Timbalan Menteri Dalam Negeri v. Ong Beng Chuan [2006] 4 CLJ 703

Legislation referred to:

Dangerous Drugs (Special Preventive Measures) Act 1985, ss. 3(1), (2)(a), (3), 5(4), 6(1)(a), (b), 9, 11C, 11D
Internal Security Act 1960, ss. 8, 8B, 8C, 8D
Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987, r. 3(1), (3)

Counsel:
For the applicant - Jagdave Singh; M/s Nurul & Charan
For the respondents - Shahidah Nafisah Leman; Peguam Kanan Persekutuan, Pejabat Penasihat Undang-
Undang, Kementerian Dalam Negeri

DALAM MAHKAMAH TINGGI MALAYA DI IPOH

DALAM NEGERI PERAK, MALAYSIA
[PERMOHONAN JENAYAH NO: AA-44-55-11/2017]

BETWEEN

SHARAVANAN KRISHNAN ... APPLICANT

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AND

1. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA

2. PENGUASA, PUSAT PEMULIHAN AKHLAK, BATU GAJAH,

PERAK

3. KERAJAAN MALAYSIA ...

RESPONDENTS

GROUNDS OF JUDGMENT
BACKGROUND
[1] This is an application for a writ of habeas corpus in respect of the Applicant's detention pursuant to a
detention order dated 11/07/2017 issued by the First Respondent under s. 6(1) of the Dangerous Drugs
(Special Preventive Measures) Act 1985 [Act 316] ("Detention Order").
[2] By virtue of the Detention Order, the Applicant is detained at the Pusat Pemulihan Akhlak Batu Gajah,
Perak ("Detention Centre") for two years commencing 11/07/2017.
[3] The Applicant, being dissatisfied with the detention order, has filed this habeas corpus application for his
release, primarily on the grounds that the Detention Order is legally flawed and that his detention at the
Detention Centre is unlawful.
[4] By virtue of ss. 11C and 11D of Act 316, this Court is seized with jurisdiction and power to review the said
First Respondent's Detention Order and directions. Sections 11C and 11D of Act 316 reads:

"11C. (1) There shall be no judicial review in any court of, and no court shall have or exercise any
jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the
Minister in the exercise of their discretionary power in accordance with this Act, save in regard to
any question on compliance with any procedural requirement in this Act governing such act or
decision.
(2)... "
"11D. In this Act, "judicial review" includes proceedings instituted by way of-

(a)...;
(b)...;
(c) a writ of habeas corpus; and
(d) ".

[5] The Detention Order issued by Dato' Masir Anak Kujat, the then Deputy Minister of Home Affairs on
11/7/2017, appear as Exhibit A in the Appellant's Affidavit dated 2/11/2017 and also as Exhibit MK-1 in the
Affidavit dated 7/2/2018 affirmed by Dato' Masir Anak Kujat. That Detention Order was issued by the former
Deputy Minister of Home Affairs having satisfied with the information and documents brought before him,
including the "Alasan-Alasan yang Atasnya Perintah dibuat" ("Stated Grounds"), and the "Pengataan-
Pengataan Fakta Yang Atasnya Perintah Dibuat" ("Statement of Facts"). This document appears as Exhibit B
in the Appellant's Affidavit dated 2/11/2017 and also as Exhibit MK-1 in the Affidavit dated 7/2/2018 affirmed
by Dato' Masir Anak Kujat.
[6] For ease of reference, the photographic copies of the Stated Grounds and Statement of Facts and the
Detention Order are reproduced respectively as Pictures A and Pictures B below.

PICTURE A (Stated Grounds and Statement of Facts)

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PICTURE B (Detention Order)

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[7] The Applicant submitted this application on the grounds that the Detention Order is flawed and unlawful
due to the following-

(i) non-compliance with ss. 3(2) and 3(3A) of Act 316;

(ii) non-compliance with s. 4(1) of Act 316;
(iii) non-compliance with s. 3(3) of Act 316;
(iv) failure by the Investigating Officer to carry out his duties envisaged under paragraphs 5(3)(b)
(c)(d) of Act 316;
(v) non-compliance with s. 5(4) of Act 316;
(vi) infringement of the Applicant's constitutional rights under art. 151(1)(a) of the Federal
Constitution read together with paragraph 9(2)(b) of Act 316; and
(vii) non-compliance with sub regulations 3(2), 3(3) and 3(4) of the Dangerous Drugs (Special
Preventive Measures)(Advisory Board Procedure) Rules 1987 ("the Rules").

[8] Despite the grounds stated above, the Counsel for the Appellant focused his submissions only on two
grounds, viz. fatal procedural non-compliance with the mandatory requirement of ss. 3(3) and 5(4) of Act 316,
and contravention of the mandatory requirements of s. 9 of Act 316 and regulation 3(3) of the Rules.
[9] This Court, therefore, will focus its findings on these two grounds.
THE LAW AND LEGAL PRINCIPLES ON HABEAS CORPUS
[10] The Federal Court in SK Tangakaliswaran Krishnan v. Menteri Dalam Negeri, Malaysia & Ors [2009] 6
CLJ 705 had laid down the rule that in an application for habeas corpus , the burden lies on the detaining
authority to satisfy the court that the detention is lawful. Gopal Sri Ram FCJ delivering the judgment of the
Court said the following:

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"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).
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."

[11] In determining this application, this Court is methodically and thoroughly guided by the principles laid
down by the Federal Court in SK Tangakaliswaran Krishnan (supra ) on the duty of this court to mollify itself
that the detaining authority had discharged its burden of satisfying the court that the detention is lawful, and
that this court shall be stricter in scrutinizing the affidavits to satisfy itself that the Appellant's constitutional
rights had not been infringed.
[12] On 24/8/1989 Parliament amended the Internal Security Act 1960, the Emergency (Public Order and
Prevention of Crime) Ordinance 1985 and Act 316 to provide specific provisions that the Ministerial detention
order pursuant to those legislations may only be challenged on procedural impropriety.
[13] Having observed that notwithstanding the amendment, courts were unsettled and decisions were
inconsistent when dealing with habeas corpus applications, the Federal Court in Lee Kwee Sang v. Timbalan
Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914 changed the legal landscape vis-a-vis habeas
corpus applications. Speaking through Abdul Hamid Mohamad FCJ (as then was), the Federal Court decided
instructively and laid down clearly the principle that must be adhered to by courts when dealing with habeas
corpus applications as follows:

"The cases appear to show that there were various grounds on which the detention orders were
challenged of which mala fide appears to be the most important ground. Courts appear to have
placed lesser importance on procedural non-compliance unless the requirement is mandatory in
nature. The amendments appear to have reversed the position and in so doing limited the ground
to only one i.e., non-compliance with procedural requirements.
... With the amendments, one would have thought that applications made after 24 August 1989
challenging the Minister's detention order under s. 4(1) of the Ordinance and similar provisions in
ISA 1960 and DD(SPM) Act 1985 would be based on one ground only i.e., non-compliance with
procedural requirements. But, quite surprisingly, except for a few cases at High Court level, courts
hardly refer to, what more rely on, the amendments. Examples of cases in which the court (High
Court) relied on the amendments are Teh Hock Seng v. Minister of Home Affairs & Anor [1990] 2
CLJ 460; [1990] 3 CLJ (Rep) 232 in which the court relied on similar amendments in the DD
(SPM) Act 1985 and Sukumaran s/o Sundram v. Timbalan Menteri Dalam Negeri, Malaysia &
Another Application [1995] 3 CLJ 129. The latter is a case under the Ordinance and s. 7C was
specifically referred to and relied on in the judgment of the learned judge.
... 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 Emergency (Public Order and Preventive of Crime) Ordinance 1969, or, for that matter, the
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equivalent ss. in the Internal Security Act 1960 and the Dangerous Drugs (Special Preventive
Measures) Act 1985, the first thing that the courts should do is to see whether the ground
forwarded is one that falls 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.".

[14] The Federal Court in Abd Razak Baharudin & Ors v. Ketua Polis Negara & Ors and Another Appeal
[2005] 4 CLJ 445, went on to expound further the legal principle set out in Lew Kew Sang (supra ) by deciding
that the pre-amendment test of mala fide no longer exist and no longer relevant when Parliament amended s.
8 of the Internal Security Act 1960 through the introduction of ss. 8B, 8C and 8D that re-aligned the court's
powers dealing with habeas corpus application to only focus on procedural non-compliance. Abdul Hamid
Mohamad FCJ (as he then was), delivering the decision of the Federal Court said:

"Under s. 365 of the Criminal Procedure Code and art. 5(2) of the Federal Constitution, only one
remedy is provided for: "release" or "set at liberty" which means the same thing.
... The court must give effect to the provisions of ss. 8B, 8C and 8D of the ISA. It means, inter
alia, that an order of the Minister under s. 8 may only be challenged on the ground of procedural
non-compliance.
.... a challenge against an act done by the Minister under s. 8 can only be mounted on the ground
of procedural non-compliance. Mala fide is not a "procedural non-compliance". So, the test,
whether subjective or objective, used to determine whether mala fide has or has not been shown
is of no relevance now, in a challenge against an act done under s. 8 When mala fide itself is no
longer an issue under s. 8, the test thereof is clearly no longer relevant. The issue now under s. 8
is whether a procedural requirement has or has not been complied with.
... A detention order made under s. 8 of the ISA may only be challenged on the ground of
procedural non-compliance and nothing else. "

[15] The Emergency (Public Order and Preventive of Crime) Ordinance 1969 and the Internal Security Act
1960 had since been repealed. But the Federal Court in Lee Kiew Sang (supra ) made specific reference in its
judgment to the legislation which is being dealt with by this Court, viz the Dangerous Drugs (Special
Preventive Measures) Act 1985 [Act 316]. As such the principle as laid down therein is the applicable principle
by this Court. still applies., the legal principle enunciated by the Federal Court in that landmark ruling would
certainly apply for detention orders issued under other legislations, which provide for similar mandatory
procedural requirements to be fulfilled by the authorities, and which contain similar provisions with ss. 11C
and 11D of Act 316.
[16] The principle governing application such as this one before this Court is thus trite, and rather straight
forward, that it is for this Court to see whether the grounds forwarded are those that fall within the meaning of
procedural non-compliance or not.
[17] In Mohd Faizal bin Haris v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 4 CLJ 613 the
Federal Court expounded further the principle and held that a writ of habeas corpus must be directed against
the current detention order, although it has been made subsequent to a prior arrest and detention, no matter
how defective the prior arrest and detention had been. The Federal Court held that any illegality in the prior
arrest and detention cannot be the subject matter of inquiry.
[18]Mohd Faizal (supra ) was affirmed by the Federal Court in L Rajanderan R Letchumanan v. TMDN & Ors
[2010] 7 CLJ 653 where the Court explained further that although investigation must be carried out and will
form part of the information in the reports that shall be adduced to the minister, the conduct of the officers
during the investigation and arrest of the complainant per se does not constitute ground for judicial review.
The Federal Court said the following:

"A writ of habeas corpus must be directed only against the current detention order even if the
earlier arrest of the detainee is irregular. The court is also not concerned with the vagueness,
sufficiency or relevancy of the grounds of detention which is the sphere of the subjective exercise
of the Minister's discretion under the various executive legislations unless mala fide on his part is
shown. Any question on the legality or propriety of the arrest or detention of a detainee at the

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investigation stage is not a relevant consideration nor is it a precondition to the order of detention
of the Minister.
Only when statute requires an act to be a condition precedent to the making of a detention order
can a valid complaint be made against that detention. Under the Act, as spelt out by s. 6(1)
thereof, there are two conditions precedent for the Minister to consider before making a detention
order, viz. the complete report of investigation and the report of the inquiry officer.
The scheme under the Act (similarly under the Emergency (Public Order and Prevention of
Crime) Ordinance 1969) is that, before a detention order is directed, the police would need to
conduct an investigation which includes the power to detain any suspected persons. The manner
of conducting the investigations and arrest at this stage is neither a condition precedent nor a
matter which has a direct link with the detention order and thus not a ground for judicial review."

[19] The Federal Court in Muhammad Jailani Kasim v. Timbalan Menteri Dalam Negeri, Malaysia & Ors
[2006] 4 CLJ 687 went "one-step behind" to explain the object and purpose of habeas corpus as below:

"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 reads 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.
In fact, Article 5(1) of the Constitution guarantees that 'no person shall be deprived of
his... liberty except in accordance with the law.' If this constitutional guarantee is to
have any real meaning at all, then it is imperative that the courts should intervene
whenever the liberty of the subject is encroached upon not in accordance with the
law."

[20] In Muhammad Jailani Kasim (supra ), the Federal Court was dealing with Act 316, similar to the one
before this Court. The Federal Court made it clear that the legal principle that governs a judge dealing with
habeas corpus application (under Act 316) is to determine firstly whether there exist any procedural non-
compliance. If the answer is the affirmative, then the judge must examine further that the said procedural non-
compliance complained against and which the applicant alleged has been breached, is mandatory or directory
in nature. If the answer is again in the affirmative, then that breach is subject to judicial review and the
resulting implication must be the issuance of the writ of habeas corpus to release the applicant.
[21] Augustine Paul FCJ delivering the decision of the Federal Court in that case stated the principle as
follows:

"The resultant matter for consideration is whether the breach is subject to judicial review. The
detention order against the Appellant was issued by the Deputy Minister of Internal Security
pursuant to section 6(1) of the Act (Dangerous Drugs Act (Special Preventive Measures) 1985)
which reads as follows:-

6. (1) Whenever the Minister, after considering:-

(a) the complete report of investigation submitted under subsection (3) of

section 3; and
(b) the report of the Inquiry Officer submitted under Subsection (4) of
section 5, is satisfied with respect to any person that such a person has
been or associated with any activity relating to or involving the trafficking
in dangerous drugs, the Minister may, if he is satisfied that it is necessary
in the interest of public order that such person be detained, by order
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(hereinafter referred to as a detention order) direct that such person be

detained for a period not exceeding two years.

It is manifestly potent that the Minister, may make a detention order under section
6(1) of the Act only when he is satisfied of the need to do so after he had
considered the two reports specified in section 6(1)(a) and (b) of the Act.
... What now requires to be addressed is the power of the court to review the validity
of a detention order issued under s. 6(1) of the Act when there are defects in the
reports that the Minister must consider before making the order.
... It follows that if a detention is procured by steps which are not regular the court is
empowered to set aside the detention order.
.... However it must be observed that the power of the court to intervene is limited to
only matters of compliance with procedural requirements by s. 11C(1) of the Act
which reads as follows:

"There shall be no judicial review in any court of, and no court shall have
or exercise any jurisdiction in respect of, any act done or decision made
by the Yang di-Pertuan Agong or the Minister in the exercise of their
discretionary power in accordance with this Act, save in regard to any
question on compliance with any procedural requirement in this Act
governing such act or decision."

..... The test, therefore, in determining whether a breach can be subjected to judicial
review is whether it is in compliance with any procedural requirement governing any
act done or decision made by... the Minister in the exercise of their discretionary
power in accordance with the Act without the need to establish any prejudice. Such a
determination will be greatly facilitated, though not decisively, by a consideration of
the effect of the statutory provision that has been breached, that is to say, whether it
is mandatory or directory in nature.
The reports specified in s. 6(1)(a) and (b) of the Act play a very significant role in the
making of a detention order against a person. The Minister must consider these
reports before making a detention order. They are therefore pre-conditions to the
exercise of power under s. 6(1) of the Act. They are part of the decision making
process and not the decision itself. Thus they amount to procedural requirements
governing the exercise of discretion by the Minister in making a detention order within
the meaning of s. 11C of the Act. A breach of this requirement is therefore subject to
judicial review. "

[22] The principle as laid down in Muhammad Jailani Kasim (supra ) was followed in many other subsequent
decisions of the Federal Court including in Manoharan Malayalam & Yang Lain lwn. Menteri Keselamatan
Dalam Negeri & Satu Lagi [2009] 4 CLJ 679.
THE GROUNDS
[23] Although the Applicant had enlisted 17 grounds supporting his application as seen in paragraphs 5-22 of
his Affidavit, the Counsel for the Applicant had confined the grounds of this application to only two grounds as
follows:

23.1 First Ground:

That the Applicant was detained mainly due to his close affiliation with one Sunder,
his cousin who is also currently a detainee at the detention center, without taking into
consideration an important fact which had been disclosed earlier during the course of
investigation that the Applicant was working as a lorry driver in Singapore at the
material time. This important fact, the Applicant argued, was not considered and
never mentioned in the reports of the
Investigation Officer and the Inquiry Officer, both reports of which were subsequently
submitted to the First Respondent. Consequentially, there was fatal procedural non-
compliance with the mandatory requirement of ss. 3(3) and 5(4) of Act 316, that
finally renders invalid the order issued by the First Respondent under s. 6 of Act 316
against the Applicant.
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23.2 Second Ground:

That the Applicant was denied of his right guaranteed under s. 9 of Act 316 to make
representation before the Advisory Board as his rights to make such representation
was not properly informed and explained to the Applicant, and/or that information and
explanation was not properly translated to the Applicant. The Applicant argued
through his counsel that there was material contradiction on the dates when the
Appellant was informed and explained on his rights to make representation before
the Advisory Board apart from the fact that such information and explanation was not
done "as soon as practicable", in contravention of the mandatory requirement of s. 9
of Act 316 and regulation 3(3) of the Rules. The fundamental procedural breaches,
argued the Applicant, fatally rendered the First Respondent's Detention Order under
s. 6 of Act 316 void and illegal.

FIRST GROUND OF APPLICATION

[24] The Applicant in his Affidavit dated 2/11/2017 in support of his application, averred that the Applicant was
detained mainly due to his close affiliation with one Sunder, his cousin who is also currently a detainee at the
detention center, without taking into consideration an important fact which had been disclosed earlier during
the course of investigation that the Applicant was working as a lorry driver in Singapore at the material time.
This important fact, the applicant argued, was not considered and never mentioned in the report of the
Investigation Officer and the report of the Inquiry Officer, both reports of which were subsequently submitted
to the First Respondent. Consequentially, there was fatal procedural non-compliance with the mandatory
requirement of ss. 3 and 5 of Act 316, that finally renders invalid the order issued by the First Respondent
under s. 6 of Act 316 against the applicant.
[25] For ease of reference, the relevant paragraphs 15(b), (c), (h), (i) and (j) of the said Applicant's Affidavit
that touched on this matter are reproduced as below:

"Saya sesungguhnya katakan bahawa saya telah dikaitkan dengan aktiviti berkaitan dadah
kerana hubungan baik saya dengan penama "Sunder" yang merupakan abang sepupu saya dan
saya juga bekerja membantu beliau di bengkel membaiki lori iaitu Sunder Enterprise. Sunder
pada masa sekarang sedang berada di Pusat Pemulihan Akhlak Batu Gajah atas kesalahan
berkaitan dadah."
"Saya menafikan Pengataan Fakta 1 yang terkandung dalam Pengataan- Pengataan Fakta yang
atasnya Perintah itu diasaskan dan sesungguhnya mengatakan bahawa dari bulan Januari 2016
sehingga saya ditangkap saya bekerja di Singapura sebagai pemandu lori."
"Pegawai Penyiasat juga sahkan bahawa tiada penyiasatan dilakukan oleh beliau mengenai fakta
bahawa saya bekerja di Singapura pada tahun 2016 sehingga saya ditangkap walaupun fakta ini
telahpun saya maklumkan semasa memberi rakaman percakapan kepada pihak polis. Malah,
fakta ini juga adalah jelas bercanggah dengan pertuduhan dalam Pengatan Fakta 1. Walau
bagaimana pun, fakta ini langsung tidak dimasukkan dalam laporan Pegawai Penyiasat di bawah
sesyen 3(3) Akta tersebut."
"Saya mengatakan bahawa laporan di bawah seksyen 3(3) Akta tersebut yang dibuat oleh
Pegawai Penyiasat adalah satu laporan yang tidak lengkap kerana fakta penting bahawa saya
tidak berada di tempat kejadian sepertimana dalam Pertuduhan Pengataan Fakta 1 sebaliknya
saya sedang bekerja di Singapura pada tahaun 2016 langsung tidak dimasukkan dalam laporan
Pegawai Siasatan utuk membolehkan Pengawai Inkuiri membuat siasatan dan memberi laporan
lengkap di bawah seksyen 5(4) Akta tersebut kepada Responden untuk pertimbangan."

[26] I had specifically referred to the Affidavit in reply sworn by the Investigating Officer, Inspektor
Vickneswaran a/l Chelliah on 5/2/2018. Paragraph 29 of this affidavit specifically referred and answered the
abovementioned Applicant's affidavit. For ease of reference, I reproduce the said paragraph thus:

"Merujuk kepada perenggan 15(b), 15(c), 15(d), 15(e), 15(f), 15(g), 15(h) dan 15(i) Afidavit
Pemohon, saya sesungguhnya menafikan segala dakwaan Pemohon tersebut dan saya
mengulangi perenggan 4 hingga 11 di atas dan menegaskan bahawa selain daripada pengakuan
Pemohon tersebut, saya juga telah mengambil kira keterangan saksi-saksi, keterangan dan
percakapan risikan serta dan dokumen-dokumen lain yang berkaitan dengan aktiviti-aktiviti
pengedaran dadah berbahaya Pemohon semasa menyediakan laporan lengkap penyiasatan
tersebut. Berdasarkan keterangan-keterangan tersebut, pihak polis mempunyai keterangan yang
mencukupi bahawa Pemohon terlibat dalam aktiviti mengedar dadah berbahaya jenis Heroin
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seperti yang tersenarai di bawah Jadual Pertama, Bahagian III, Akta Dadah Berbahaya 1952
[Akta 234]."

[27] I had also referred to the Affidavit sworn by Dzul Iswari bin Mohd Jaafar on 21/1/2018, specifically
paragraphs 6, 10, 12 and 14 of that affidavit. I found that Dzul Iswari bin Mohd Jaafar, who is the Inquiry
Officer at the Ministry of Home Affairs that had conducted inquiry on the Applicant upon him receiving the
investigation report from Inspektor Vickneswaran a/l Chelliah, had not only satisfactorily collaborated the
statements by Inspektor Vickneswaran as stated above, but had carried out his obligations and duty as the
Inquiry Officer in full compliance with law. He had taken into consideration the reports he received from
Inspektor Vickneswaran a/l Chelliah and had not acted mechanically as he had himself conducted further
direct inquiry to obtain information, explanation and statements from the Applicant. During the course of the
investigation and inquiry carried out by Dzul Iswari bin Mohd Jaafar, also present was Lans Koperal
Sivasankar a/l Mohanadass whom acted as the Tamil language interpreter, to ensure the Applicant
understood all questions posed by Dzul Iswari to the Applicant and to ensure the Applicant's answers and
explanations are understood by Dzul Iswari. This was explained in Lans Koperal Sivasankar's affidavit
affirmed on 5/2/2018.
[28] The reports of both Inspektor Vickneswaran a/l Chelliah and Dzul Iswari bin Mohd Jaafar were provided
to the Deputy Minister for his consideration in full compliance with the requirement of ss. 3(3) and 5(4) of Act
316.
[29] I had further referred to paragraph 14 of the Affidavit by the First Respondent, Dato' Masir Anak Kujat, the
then Deputy Minister of Home Affairs, affirmed on 7/2/2018, and paragraph 4 of the Affidavit in reply by the
said former Deputy Minister of Home Affairs affirmed on 13/4/2018. In those affidavits, the former Deputy
Minister affirmed unequivocally that he issued the Detention Order under s. 6(1) of Act 316 against the
Applicant after being satisfied with all the information and documents provided to him. He stated the following
in the relevant paragraph 14 of his affidavit:

"Merujuk kepada perenggan 15(h) & (j), 20, 221 dan 22 Afidavit Pemohon saya menafikan segala
dakwaan-dakwaan Pemohon tersebut. Saya telah menimbangkan dengan penuh teliti laporan
lengkap penyiasatan yang telah dikemukakan kepada saya oleh pegawai penyiasat polis iaiatu
Inspektor Vickneswaran a/l Chelliah dan juga laporan lengkap oleh Pegawai Siasatan
Kementerian Dalam Negeri. Dzul Iswari bin Mohd Jaafar..... dalam memutuskan bahawa
Pemohon pernah ada kaitan dengan apa-apa aktiviti yang berhubungan dengan atau yang
melibatkan pengedaran dadah berbahay yang memudaratkan ketenteraman awam dan saya
telah membuat keputusan untuk mengeluarkan Perintah Tahanan di bawah seksyen 6(1) Akta
tersebut terhadap Pemohon."

[30] The learned Counsel for the Applicant referred to Kamar Azmen Bin Abd Rahman v. Ketua Polis Negara
& Ors [2016] 6 MLJU 1151 and Bunya AK Jalong v. Public Prosecutor [2015] 5 CLJ 893; [2015] MLRA 491.
[31] The Counsel argued that Inspektor Vickneswaran a/l Chelliah and Dzul Iswari bin Mohd Jaafar had failed
to carry out their duties and obligations as Investigating Officers as laid down by the Court Of Appeal in Bunya
Anak Jalong (supra ) as they had not gather all relevant information and evidence resulting in an incomplete
report submitted to the Deputy Minister. The failure to include the fact relating to the Appellant's working in
Singapore during the material time in that reports had created gaps and weakness. The learned Counsel for
the Applicant relied on the following phrase in the Court of Appeal decision of Bunya Anak Jalong v. PP [2015]
5 CLJ 893 on the duty and obligations expected by law of an investigating officer:

"The duty of the investigators is to investigate the facts and to collect all the evidence. The police
as investigators are public officers. Their concern must be to investigate the facts without fear or
favour, so that all wrongdoers may be brought to justice. The completed investigation, compiled in
the investigation papers is referred to the Public Prosecutor if an offence is disclosed. A
completed investigation is one that includes investigation of the defences that emerged from the
investigation. This includes such gaps or weaknesses emerging from the statements of witnesses
and of defences from the statement of the accused person. Such investigations may eliminate the
gaps or weaknesses, and provide substance to be tested against defences when raised. This is
important as it ensures that if charges are to be preferred, there are no gaps or weak links in the
prosecution case in the way of a successful prosecution."

[32] The learned Counsel for the Applicant had also relied heavily on the High Court decision of Kamar
Azmen (supra ) and that Court's interpretation of s. 3(3), 5(4) and 6(1) of Act 316, and its references and
application of the principles enunciated in Mohd Faizal Haris v. Timbalan Menteri Dalam Negeri, Malaysia &

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Ors [2005] 4 CLJ 613; [2005] 2 MLRA 231, Bunya Jalong (supra ), and Muhammad Jailani Kasim (supra ),
that led the Court to conclude that as the investigating officer failed to conduct investigation as required by
law, his report under s. 3(3) was tainted, and affected the report of the inquiry officer under s. 5(4). These
irregular reports had ultimately led to the order issued by the Deputy Minister under s. 6(1)(a) and (b) of Act
316 invalid.
[33] The Federal Counsel argued that the Affidavit of Inspektor Vickneswaran a/l Chelliah explained succintly
how his investigation had fulfilled the requirements of s. 3 of Act 316. She went on to argue that Inspektor
Vickneswaran's statement had been confirmed further by the statement as averred in the Affidavit of Dzul
Iswari, the Inquiry Officer of the Ministry of Home Affairs.
[34] The Federal Counsel referred to L Rajanderan R Letchumanan v. Timbalan Menteri Dalam Negeri,
Malaysia & Ors [2010] 7 CLJ 653 where the Federal Court among others, held that the manner on conducting
the investigations has no direct link with the Detention Order. She also vehemently disagreed with the
contention put forth by the Counsel for the Appellant that in Muhammad Jailani Kassim (supra ), the Federal
Court revisited and reviewed its decision in Mohd Faizal Harris (supra ), when in actual fact the Federal Court
categorically announced:

".... We say that we are departing from that (Mohd Faizal Harris) decision." (Name of case added)

[35] The Federal Counsel further submitted that Bunya AK Jalong v. Public Prosecutor (supra ) discussed
investigation for purposes of criminal prosecution as opposed to preventive detention, and thus the principle
laid down in that case would be inapplicable to this application.
[36] This Court would refer to the relevant passage when similar argument relating to the value of
investigation under s. 3(1) and (3) of Act 316 was raised. His Lordship said the following:

"For the purposes of this argument what is required for the DMHA to consider before issuing the
DO is the complete report of investigation under s. 3(3) of the Act. The IO in his affidavit affirmed
on 29.8.2017 (paragraphs 4 - 10) and 8.12.2017 (paragraphs 4 - 5) stating that he had-

(a) recorded a statement from the detenu on 10.4.2017;

(b) recorded statements from other witnesses; and
(c) obtained documents relating to the detenu's drug trafficking activities.

If all these do not amount to an investigation, I do not know what else would."

[37] Inspektor Vickneswaran a/l Chelliah had stated in paragraphs 5, 9, 10, of his Affidavit affirmed on
5/2/2018 that he had-

(a) recorded a statement from the Applicant on 22/5/2017;

(b) recorded statements from other witnesses; and
(c) obtained documents relating to the Applicant's drug trafficking activities.

[38] Having done all that, I am satisfied that the investigating officer had conducted his investigation in
consonant with the requirements of the law. To quote my learned brother Tun Abdul Majid Tun Hamzah, JC, in
Partiban Panisilo v. Timbalan Menteri Dalam Negeri, Malaysia & Anor [2018] 1 LNS 185, "... if all these do not
amount to an investigation, I do not know what else would."
[39] Based on all the above, this Court is satisfied that the First Ground of the Applicant's application does not
have any legal merit.
Second Ground
[40] The learned Counsel for Applicant brought to the attention of this Court that Mr M Baskaran a/l S Muthiah
(Prison Warden and the Officer-in-charge of the Detention Centre) had averred in his Affidavit dated
20/2/2018 that on 12/7/2017 he met the Applicant at the Detention Centre together with Mr Kaliapan a/l
Kerisma. At that meeting, Mr M Baskaran stated that he had explained about the Detention Order and its
accompanying Stated Grounds and Statement of Facts, and the Borang I to the Applicant. Mr Baskaran
further stated that he had also informed the Applicant on the later's right to appear before the Advisory Board,
and to be represented by counsel and to call witnesses. These information were simultaneously translated
into the Tamil language by Mr Kaliapan a/l Kerisma. (Refer paragraphs 5-11, M Baskaran a/l S Muthiah's
Affidavit dated 20/2/2018).

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[41] However, the Counsel for the Applicant pointed out that contrary to what was stated by Mr Baskaran, one
Mr Kaliapan a/l Kerisma, Warden at the Detention Centre who also acted as the Tamil interpreter, affirmed in
his Affidavit dated 20/2/2018 that he and Mr Baskaran had met the Applicant on 21/6/2017. Mr Kaliapan
furtyer stated that on that date Mr Baskaran had instructed him to translate into the Tamil language all the
information given by Mr Baskaran to the Applicant. The information includes the Detention Order and its
accompanying Stated Grounds and Statement of Facts, and the Borang I, the purpose of the Applicant
making representation to the Advisory Board, his rights to make representation before the Advisory Board and
the Applicant's right to counsel and to call witnesses. (refer paragraph 17 of Kaliapan a/l Kerisma's Affidavit).
[42] The learned Counsel for the Applicant argued that there was material contradiction on the dates when the
Appellant was actually informed and explained on his rights to make representation before the Advisory
Board. Such contradiction was in contravention of the mandatory requirement of s. 9 of Act 316 and regulation
3(3) of the Rules. The Applicant, argued his Counsel, was denied of his right guaranteed under s. 9 of Act 316
to make representation before the Advisory Board as his rights to make such representation was not properly
informed and explained to the Applicant, and/or that information and explanation was not properly translated
to the Applicant.
[43] Relying on Muhamad Iman Divaharan v. Timbalan Menteri Dalam Negeri & Ors [2017] 1 LNS 621, N
Ramakrishnan P Nagasamy v. Timbalan Menteri Dalam Negeri & Ors [2008] 7 CLJ 480, Low Teng Hai v.
Menteri Dalam Negeri, Malaysia & Ors [1992] 2 CLJ (Rep) 816, and Yap Fook Pin v. Timbalan Menteri Dalam
Negeri, Malaysia & Yang Lain [1992] 1 CLJ (Rep) 650, all being High Court decisions, the Counsel for the
Applicant argued that the fundamental procedural breaches had fatally rendered the First Respondent's
Detention Order under s. 6 of Act 316 void and illegal.
[44] The Federal Counsel did not contest that there was disparity on the dates mentioned in the Affidavits of
M. Baskaran a/l S Muthiah and Kaliapan a/l Kerisma. She explained that the disparity was merely a
typographical error, an honest unintentional mistake which does not in any way prejudiced the Appellant. The
Federal Counsel pointed out in her submission that the unintentional typographical mistake is evident as it
only occured in paragraph 17 of Kaliapan a/l Kerisma'a Affidavit, whereas in paragraph 5 of the same
Affidavit, he (Kaliapan a/l Kerisma) stated the date as 12/7/2017, in sync with the date mentioned in M
Baskaran's Affidavit, which he reiterated in that paragraph 17 as below:

".... Saya sesungguhnya mengulangi semual perenggan 4 hingga 15 di atas dan menegaskan... "

[45] This Court had referred to the decisions relied upon by the learned Counsel for the Applicant. But this
Court found all the authorities were irrelevant to the issue raised before this Court as the facts and issues
raised in all those cases are distinguishable. In Muhamad Iman Divaharan (supra ), the Court was dealing
with the issue relating to s. 3(2)(a) of Act 316 within the context of the report of the detention to be made to a
police officer of the rank of Deputy Superintendent to the Inspector General of Police or equivalent. The Court
in N Ramakrishnan P Nagasamy v. Timbalan Menteri Dalam Negeri & Ors [2008] 7 CLJ 480, was dealing with
a breach of Rule 3(1) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure)
Rules 1987 ("the Rules") in that there was doubt created as to whether the detainee was provided at the time
of the service of the detention order with copies of Form 1 by the police officer serving the detention order. In
Low Teng Hai v. Menteri Dalam Negeri, Malaysia & Ors [1992] 2 CLJ (Rep) 816, the Court found that
averment of the officer in charge of the detention centre does not state that the officer in charge did remind
the detenu of his right to make representation apart from his informing the detenu in no uncertain terms of his
right to the service of a lawyer, which contravenes rules 3(1) and (3) of the Rules. And in Yap Fook Pin v.
Timbalan Menteri Dalam Negeri, Malaysia & Yang Lain [1992] 1 CLJ (Rep) 650, the Court decided on an
extension order for detention which was issued by the Deputy Minister without taking into consideration the
report of the Advisory Board that contained recommendation for the detainee to be released.
[46] This Court therefore does not agree with the submission of the learned Counsel for the Applicant that the
authorities mentioned above had decided that in the event of the existence of any such disparity or
contradiction in material information, as in the situation argued before this Court under this second ground of
the application, then such doubts shall be resolved in favor of the applicant.
[47] This Court accepted the fact, as evidenced by paragraphs 5 and 17 of Kaliapan a/l Kerisma's Affidavit,
the contradiction on the dates was an honest typographical mistake. The test that must be applied in such a
situation is whether or not such disparity or mistake is material and had prejudiced the Applicant. (see Tay Lay
Beng v. Menteri Hal Ehwal Dalam Negeri Malaysia & Anor [2004] 8 CLJ 674, Chean Hua Sey v. Menteri
Keselamatan Dalam Negeri & 1 Lagi [2008] 9 CLJ 657, Timbalan Menteri Dalam Negeri v. Ong Beng Chuan
[2006] 4 CLJ 703.)
[48] Based on all the above consideration, this Court refused the Applicant's application.
Dated: 7 SEPTEMBER 2018
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12/8/2018 Case:[2018] 1 LNS 1286

(MOHD RADZI HARUN)

Judicial Commissioner
High Court, Ipoh, Perak

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