(BIDANGKUASA
RAYUAN)
RAYUAN
JENAYAH NO. 05-23-2004 (J)
ANTARA
LEE
2.
PENGUASA PUSAT PEMULIHAN AKHLAK,
SIMPANG RENGGAM, JOHOR DARUL TAKZIM
3.
KERAJAAN MALAYSIA ... RESPONDEN-
RESPONDEN
CORAM: AHMAD
FAIRUZ SHEIKH ABDUL HALIM - KHN
SITI NORMA YAAKOB - HBM
ABDUL HAMID MOHAMAD - HMP
JUDGMENT OF THE COURT
The Appellant was
detained at Pusat Pemulihan Akhlak, Simpang Renggam, Johor from 24 September
2003 under a detention order of the same date issued by the Deputy Minister of
Home Affairs Malaysia (“the Deputy Minister”), the first Respondent, pursuant
to section 4(1) of the Emergency (Public Order and Prevention of Crime)
Ordinance 1969 (“the Ordinance”).
He applied for the issuance of a writ of habeas corpus,
contending that the order was invalid on two grounds :
i)
the
Deputy Minister did not consider whether criminal prosecution ought to be taken
against him;
ii)
the
ground of detention was stale and remote in point of law to support detention
under the Ordinance.
The learned Judge
dismissed the application. The Appellant appealed to this Court. We heard the appeal and reserved our
judgment. This is our judgment.
Before dealing with each
of the grounds specifically, we think there is something more fundamental that
covers both grounds that has to be dealt with first. This concerns the provisions of the Ordinance
itself (and also other similar laws like the Internal Security Act 1960 (“ISA
1960”) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (“DD(SPM)
Act 1985”) at the relevant times when the cases referred to us were decided.
Quite often, cases were cited and even decided without reference to the
statutory provisions at the relevant time as if the statutory provisions had
remained the same throughout and in so doing effect was not given to material
amendments to the relevant statutes.
Power to order detention
is provided by section 4(1) of the Ordinance:
“4. Power to order detention.
(1) If the Minister is satisfied that with
a view to preventing any person from acting in any manner prejudicial to public
order it is necessary that that person should be detained, or that it is
necessary for the suppression of violence or the prevention of crimes involving violence
that that person should be detained, the Minister shall make an order
(hereinafter referred to as a “detention order”) directing that that person be
detained for any period not exceeding two years.”
The Ordinance was amended by the Emergency (Public Order and
Prevention of Crime)(Amendment) Act 1989 (“Act A740”) which came into force on
24 August 1989. (Similar amendments were
also made to ISA 1960 and DD(SPM)Act 1985 by Act A739 and Act A738,
respectively.) Act A740, inter alia,
inserted new sections 7C and 7D into the Ordinance. The sections provide as follows:
“7C. Judicial review of act or decision of Yang di-Pertuan
Agong and Minister.
(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 Ordinance,
save in regard to any question on compliance with any procedural requirement in
this Ordinance governing such act or decision.”
………………..
7D. Interpretation of “judicial review”.
In
this Ordinance, “judicial review” includes proceedings instituted by way of-
(a)
………………….
(b)
………………..
(c)
a
writ of habeas corpus; and”
The provisions of sections 7C and 7D are clear. The effect
of the amendments is that, in a habeas corpus application such as in this case,
the detention order made by the Minister under section 4(1) of the Ordinance
may only be challenged on ground of non-compliance with any procedural
requirement, and nothing else.
Even though the words of section 7C and 7D are clear,
perhaps we should briefly look at the circumstances that had led to the
amendments.
One of the earliest if not the first case in which a
detention order made under the Ordinance was challenged is the case of Che
Su binti Shafie v Superintendent of Prisons, Pulau Jerejak, Penang (1974) 2
MLJ 194. The order was challenged on the grounds that, first, there was a
failure to observe the full provisions of section 5(2)(b) of the Ordinance that
requires the detainee to be furnished by the Minister with the grounds of his
detention and, secondly, that the Minister was acting mala fide. On the first ground, Chang Min Tat J (as he
then was) held that the failure to
furnish the grounds of detention could not invalidate the order made by
the Minister. On the second ground the
learned Judge held on the facts of the case, “no question of mala fide could
arise as it was always open to the authorities to cure a defective order in the
proceedings”.
In the following year, a similar order was again challenged
in Zainab Binti Othman v. Superintendent of Prisons, Pulau Jerejak, Penang
(1975) 1 MLJ 76. In that case the writ
of habeas corpus was issued as there was
some doubt whether the order that was served was the one actually
intended to be made by the Minister, there being two orders, one dated 8 August
1973 and the other 6 August 1973. The
order dated 8 August was never served and the order purportedly dated 6 August
had the figure “6” superimposed on the figure “8” which had been erased.
The next case that should be mentioned is Yeap Hock Seng
@ Ah Seng v Minister for Home Affairs,
In Re P.E. Long @ Jimmy & Ors; P.E. Long & Ors v.
Menteri Hal Ehwal Dalam Negeri Malaysia & Ors (1976) 2 MLJ 133, four grounds
were forwarded including that the detention was outside the scope of the
Ordinance and that copies of the purported detention orders served on the
applicants were not signed and were not under the hand of the Minister. The learned Judge held that the orders were
valid and not justiciable in the absence of mala fide.
In Re Application of Tan Boon Liat @ A. Allen; Tan Boon
Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors (1976) 2 MLJ 83,
the detention orders under challenge were made under the same Ordinance under discussion. The ground was that the detention orders were
outside the scope of the Ordinance. The
applications were dismissed and subsequent appeals to the Federal Court were
also dismissed – see (1977) 2 MLJ 18.
Tan Boon Liat and the other detainees made another
application in the High Court in 1976 – see (1977) 1 MLJ 39. Here
there was a clear breach of procedural rule i.e. the Advisory Board had
not made its recommendation within three months of the detentions of the
applicants. However, at the time the
applications were made, the Advisory Board had made their recommendations
though after three months. It was
argued that their continued detentions
after a lapse of three months were illegal and unlawful as within the three
months the Advisory Board had not met to consider the representations made by
the applicants and, following that, made representations to the Yang di Pertuan
Agong. Arulanandom J held that while the
procedural requirements had not been complied with, valid orders of detention
were in force against the applicants and their detention was therefore legal.
In Subramaniam v Menteri Hal Ehwal Dalam Negeri & Ors
(1977) 1 MLJ 82, the facts are similar to Re Tan Boon Liat (1977) 1
MLJ 39. Hamid J (as he then was) dismissed
the application. The learned Judge,
inter alia, held:
“(2) in this case there
has been a failure to comply with the statutory direction but mere
non-compliance with directory provision, so long as the Advisory Board
considers the representations and makes its recommendations, should not render
unlawful a detention lawfully made.”
The Federal Court allowed the detainees’ appeals against the
said judgments of Arulanandom J and Abdul Hamid J – see 1977 2 MLJ 108. The Federal Court inter alia , held:
“(2) the failure of the
Advisory Board to carry out its duty within
the prescribed time in these cases rendered the continued detention
after three months period to be unlawful as it could not be said to be in accordance
with law;”
In Inspector-General of Police & Anor v. Lee Kim
Hoong (1979) 2 MLJ 291, the detention under the same Ordinance was
challenged on the ground that the Ordinance had not been laid before Parliament
and therefore the Ordinance did not have the force of law and the detention unlawful. On additional evidence allowed by the Federal
Court, the Court held that the Ordinance had been properly laid before
Parliament and therefore had the force of law and the detention was lawful.
In Athappen a/l Arumugam v. Menteri Hal Ehwal Dalam Negeri,
Malaysia & Ors (1984) 1 MLJ 67, the detention order made under the same
section and Ordinance under discussion was again challenged. In dismissing the application Edgar Joseph
Jr. J., (as he then was) held:
“(1) the subjective satisfaction of the
Minister to detain a subject is not open to judicial review;
(2)
the
vagueness etc. of the allegations of fact upon which a detention order is based
does not relate back to the order of detention thereby vitiating it;
(3)
the
mere fact that a subject has been detained
under the law as to preventive detention following his acquittal in a Criminal
Court does not ipso facto render his
detention wrongful;
(4)
exceptionally,
the courts will review the order for
preventive detention if:
(a)
mala fides is alleged; or,
(b)
it
is alleged that the grounds of detention stated in the order do not fall within
the scope and ambit of the relevant legislation;
or
(c) it is alleged that a condition
precedent for the making or the continuance of the order of preventive
detention has not been complied.”
It is to be noted that in 1985, the DD (SPM) Act 1985 came
into force. Perhaps the first case that came to court under that Act is Re
Khor Hoi Choy; Khor Hoi Choy v. Menteri Dalam Negeri Malaysia & Ors
(1986) 2 MLJ 312. However, I do not think
it is necessary to discuss it as the case lays down no new principle.
Koh Yoke Koon v. Minister for Home
Affairs, Malaysia & Anor (1988) 1 MLJ 45, is yet another case
of a detention order issued under section 4(1) of the Ordinance which was challenged. In that case the detention order states that
the period of detention was for two years from 12 December 1986 and that he was
to be detained at Pulau Jerejak Rehabilitation Centre. However, the detainee was detained at the
Muar police station from 14 December 1986 (the day he was rearrested) until
some time in the morning of 16 December 1986 when he was removed to the
Rehabilitation Centre in Pulau Jerejak.
In granting the habeas corpus and
setting the applicant free; the learned Judge held:
“(1) having regard to the
provisions of the Ordinance, the requirements therein as to the place of detention
even though procedural are mandatory in character and so breaches thereof
cannot be condoned;
(2) the applicant’s period of detention in police
custody at the Muar police station from December 14, 1986, until some time in
the morning of December 16, 1986 when he was removed to the Rehabilitation
Centre was wholly unauthorised and therefore in violation of Article 5(1) as
being otherwise than in accordance with law;
(3)
the
Detention Order will not operate to
salvage the case for the detaining authority for it specifically provided for
detention at the Centre for two years from December 12, 1986 and cannot
therefore have the effect of rendering legal the applicant’s illegal detention
at the Muar police station from December 14, 1986 until his removal therefrom
on the morning of December 16, 1986;
(4)
the
detention of the applicant under section 4(1) was not procured by steps all of
which were entirely regular nor was the court satisfied that “every step in the
process” which led to such detention was followed with extreme regularity and
therefore the court should not allow the imprisonment to continue. To hold to the contrary would in effect mean
that the Minister had power to continue the detention of one who is being
illegally detained;
(5)
the
Deputy Minister had unwittingly exceeded the powers conferred upon him by
ordering the continued detention of one who was being illegally detained with
the result that the Detention Order, even if valid, was not legally effective
at the
date of
the service thereof to allow the detention of the applicant to continue;
(6)
the
applicant was entitled to be set at liberty.
Per
curiam:
“….. in a matter concerning the liberty of the subject – always a priceless asset – the
court should walk very warily, preferring to interpret words and phrases in
their ordinary and natural meaning than to embark on inferences or speculations
about such a power.”
Then comes the landmark judgment of the Supreme Court in Re
Tan Sri Raja Khalid bin Raja Harun; Inspector General of Police v. Tan
Sri Raja Khalid bin Raja Harun (1988) 1 MLJ 182. In that case, the detainee was detained under
section 73(1) and subsequently under section 73(3)(a) & (b) of ISA 1960. He applied for habeas corpus. As we understand it, the judgment of the
Supreme Court brought out a few important points but we need only state one
which we consider to be more relevant to the present discussion, and that is
that section 73(1) and section 8 are so inextricably connected that the
subjective test should be applied to both.
The court held that it cannot require the police officer to prove to the
court the sufficiency of the reason for his belief under section 73(1). But if facts are furnished voluntarily and in
great detail as in this case for consideration of the court, it would be naïve
to preclude the judge from making his own evaluation and assessment to come to
a reasonable conclusion. In that case,
the Supreme Court found it difficult to disagree with the learned Judge on his
conclusion based on the facts furnished in court that the losses sustained by
Perwira Affin Bank would lead to any organized violence by soldiers. The Supreme Court therefore affirmed the
learned Judge’s decision to issue the writ of habeas corpus.
Less than two months after the Supreme Court delivered its
judgment in Re Tan Sri Raja Khalid (supra), the Supreme Court delivered
its judgment in Theresa Lim Chin Chin & Ors v. Inspector General of Police
(1988) 1 MLJ 293. In this case the
detainee challenged her arrest under section 73 of the ISA 1960. I shall only refer to the issue of subjective or objective test that
should be applied by the court regarding the satisfaction of the police officer
making the arrest (or the Minister making the detention order). The Court noted that the submission that it
was the objective test that should be applied was earlier made in Tan Sri
Raja Khalid’s case (supra) and was rejected by the Court although the Court upheld the
release of the detainee in that case because the arresting officer had sworn an
affidavit to the effect that the arrest and detention related to allegations of
bank fraud which was a criminal offence.
The Court, then held:
“(6) in this case,
whether the objective or subjective test is applicable, it is clear that the
court will not be in a position to review the fairness of the decision-making
process by the police and by the Minister because of the lack of evidence since
the Constitution and the law protect them from disclosing any information and
materials in their possession upon which they based their decision. Thus, it is more appropriately described as
the subjective test;”
On 9 March 1988 Peh Swee Chin J (as he then was) delivered
his judgment in Karpal Singh s/o Ram Singh v. Menteri Hal Ehwal Dalam Negeri
Malaysia & Anor (1988) 1 MLJ 468.
In this case, the detainee challenged
the detention order issued under section 8 of the ISA 1960. In that case six allegations were made
against the applicant which formed the
basis of the detention order. The
Minister subsequently admitted that there was an error in the sixth allegation
as the detainee did not on that date, time and place spoke of the issue
alleged.
Peh
Swee Chin J (as he then was), in allowing the application held:
“(1) there are three exceptions to the
non-justiciability of the Minister’s mental satisfaction in cases of this kind. They are (a) mala fide, (b) the stated
grounds of detention not being within the scope of the enabling legislation,
i.e. the Act, and (c) the failure to comply with a condition precedent;
(2)
mala fides does not mean at all a
malicious intention. It normally means
that a power is
exercised for a collateral or ulterior purpose, i.e. for a purpose other than
the purpose for which it is professed to have been exercised;
(3)
although
the error relating to the sixth
allegation was probably made in the course of enquiries by the
police, the Minister cannot rid himself of the error of the police because the
process starting with the initial arrest
of the applicant under section 73 of the Act pending enquiries until the
execution of a detention order made by the Minister would appear to be a
continuous one. Such being the case, any period or any part of
such one continuous process can be looked into to see if the care and caution
have been exercised with a proper sense of responsibility for the purpose of
ascertaining if the detention order was properly made;
(4)
viewed
objectively and not subjectively, the error, in all the circumstances, would squarely amount to the
detention order being made without care, caution and a proper sense of
responsibility. Such circumstances have
gone beyond a mere matter of form;
(5)
the
sixth allegation, though an irrelevant allegation which the court can enquire
into, was also an inaccurate allegation that can be treated as being
outside the scope of the Act;
(6)
with
regard to the contention that the detention order was necessary having regard
to the first to fifth allegations, this court should not accede to the
contentions.”
On 11 May 1988 the appeal by the Public Prosecutor in Koh
Yoke Khoon (supra) was dismissed by the Supreme Court. In brief the Supreme Court confirmed the
judgment of the High Court that the detention of the detainee at the Muar police
station pending removal to Pulau Jerejak Rehabilitation Centre was unlawful, as
according to the order during that
period he should be detained in Pulau Jerejak Rehabilitation Centre – see
(1988) 2 MLJ 301.
At about the same time, Edgar Joseph Jr. J., in Yit Hon
Kit v. Minister of Home Affairs, Malaysia & Anor (1988) 2 MLJ 638,
inter alia, held that the criminal activities alleged against the applicant
were too remote in point of law to justify the making of the order under
section 4(1) of the Ordinance.
On 19 July 1988, Peh Swee Chin J’s judgment in Karpal
Singh (supra) was reversed by the Supreme Court – see Minister of Home
Affairs, Malaysia & Anor v. Karpal Singh (1988) 3 MLJ 29. In allowing the appeal the Court held:
“(1) The learned judge in this case
would seem to have failed to distinguish between grounds of detention stated in the detention order and
the allegations of fact supplied to the detainee. In particular, he failed to recognize that
whilst the grounds of detention stated in the detention order are open to challenge or judicial
review if alleged to be not within the scope of the enabling legislation, the
allegations of fact upon which the subjective satisfaction of the Minister was based are not. The learned judge therefore clearly
misdirected himself.
(2)
Whether
there is reasonable cause for the making of the detention order is something
which exists solely in the mind of the Minister of Home Affairs and he alone
can decide it and it is not subject to challenge or judicial review unless it
can be shown that he did not hold the opinion which he professed to hold.
(3)
In
this case the Minister of Home affairs had gone on affidavit to say that
omitting the allegation of fact complained against, he would still have made
the detention order having regard to the reports and the information relating
to the conduct of the respondent upon which no doubt the rest of the
allegations of fact were based. The
learned judge was bound to accept these averments in the affidavit and could
not inquire into the cause of the detention.
(4)
The
flawed sixth allegation of fact was an error of no consequence which can be
regarded as a mere surplusage especially in view of the affidavit of the
Minister of Home Affairs is not subject to judicial review.”
We shall not discuss the three cases decided by the High
Court in the earlier part of 1989. They
are Chong Kim Loy v. Timbalan Menteri Dalam Negeri, Malaysia & Anor (1989)
3 MLJ 120 (Edgar Joseph Jr J, as he then was), Chua Teck v Menteri Hal Ehwal
Dalam Negeri, Malaysia & Ors (1989) 3 MLJ 118 (L.C. Vohrah J)
and Zakaria bin Jaafar v. Menteri Hal Ehwal Dalam Negeri, Malaysia &
Ors. And other applications (1989) 3 MLJ 318 (Mohtar Abdullah J.C., as he
then was).
Then, on 18 August 1989, Edgar Joseph Jr. J. (as he then
was) decided in
“(7) The subjective
satisfaction of the Minister cannot be questioned. Ordinary criminal laws are meant to
complement preventive detention laws and they are not substitutes for one
another. The fact that the Minister chose to invoke the Act was not evidence
that he failed to consider a course in criminal prosecution rather than
preventive detention.
(8) The delay in the
detention of the second applicant was explained by the Deputy Minister and the
submission on proximity is unacceptable.”
This was perhaps the last case decided prior to the
amendments to the Ordinance, ISA 1960 and DD(SPM) Act 1985 made by Act A740,
Act A739 and Act A738 respectively, all of which came into force on 24 August
1989.
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 section 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, whatmore 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) 3 MLJ 191 in which
the court relied on similar amendments in the DD(SPM) Act 1985 and Sukumaran
s/o Sundram v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia and another
application (1995) 2 MLJ 247. The
latter is a case under the Ordinance and section 7C was specifically referred
to and relied on in the judgment of the learned Judge.
But, in other cases, no reference was made to the amendments
or similar amendments in the other Acts and
we shall look at some of those cases.
In this respect, the focus will be mainly on the judgments of the
Supreme Court, the Federal Court and the Court of Appeal. Even then,
cases reported in 1990 to 1992 are omitted as those appeals, though
heard by the Supreme Court after the amendments, might have been filed in the
High Court before the amendments.
In An Ngoh Leong v. Inspector General
of Police & Ors. (1993) 1 MLJ 65, the Supreme Court
allowed the detainee’s appeal because of a breach of rule 3(2) of the Prevention
of Crime (Procedure) Rules 1972. The
breach is clearly a procedural non-compliance.
However, the Court did not refer to the amendment but decided on the
ground that the rule was mandatory in nature.
In Menteri Hal Ehwal Dalam Negeri & Anor v. Lee Gee
Lam and another application (1993) 3 MLJ 673 (S.C.) where the order made
under section 4 of the Ordinance stated the grounds of detention in the
alternative, the Supreme Court held that the order was vague as to whether the Deputy Minister had actually
applied his mind to the particular circumstances of each respondent’s case or
whether he had exercised his power of detention mechanically." No. reference was made to the amendments.
In Abdul Rahman bin Haji Maidin v. Timbalan Menteri Dalam
Negeri (2000) 3 MLJ 108 (C.A) where the appellant was detained under
section 6(1) of the DD (SPM) Act 1985, two grounds were forwarded.
(i)
the detention order failed to indicate
whether the appellant’s criminal activities were past or present and was vague
and ambiguous and thus invalid; and
(ii)
there had been a long delay from the
time of his last known act of criminal activities to the time the detention
order was issued.
The Court of Appeal dismissed the argument. However, no reference was made to the
amendment.
Something need be said about Mohamad Ezam bin Mohd. Noor
v. Ketua Polis Negara & other appeals (2002) 4 MLJ 449 (F.C.). In that case the challenge was against the
detention by the police under section 73 of the ISA 1960. So, the provisions of sections 8B and 8C of
the ISA were not applicable because section 8B(1) only talks about “any act
done or decision made by the Yang di Pertuan Agong or the Minister.” So, that case is not relevant to the present
discussion.
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 section
4(1) of the Ordinance or, for that matter, the equivalent sections in ISA 1960
and DD(SPM) 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.
Coming back to present case, both the grounds forwarded are
clearly not within the ambit of the term “procedural non-compliance.” There does not appear to be any provision in
the law or the rules, neither were we shown such a provision, that requires the
Minister to consider whether criminal prosecution ought to be taken against the
Appellant or that the order must be made within a certain period from the date
of the alleged criminal acts. There
being no such procedural requirement, there can never be non-compliance
thereof. In other words, the grounds are
not such that could be relied on in an application for habeas corpus by virtue
of the provisions of sections 7C(1) and 7D(c) of the Ordinance. On this ground alone, the application should
have been dismissed.
In any event, we do not think that the first ground has any merits. Learned Counsel for the
Appellant relied on Kanchanlal Maneklal Chokshi v. State of Gujerat
(1979) SCC (Cri.) 897; Hemlata Kantilal Shah v. State of Maharashtra &
Anor (1982) SCC (Cri.) 16; Murugan s/o Palanisamy & Ors. v.
Deputy Minister of Home Affairs (1999) 6 MLJ 334 and Chong Boon
Two
things should not be confused. First the
power of the Attorney General to institute criminal proceedings and secondly,
the power of the Minister to make a detention order.
The power to institute criminal
proceedings lies with the Attorney General and is provided by Article 145 (3)
of the Federal Constitution :
“145(1)
….
(2)
….
(3)
The
Attorney General shall have power, exercisable at his discretion, to
institute, conduct or to discontinue any
proceedings for an offence, other than proceedings before a
This
is repeated with further details in sections 254 and 376 of the Criminal
Procedure Code. Suffice for me to reproduce
the provisions of section 376 (1) :
“376 (1). The Attorney General shall be the Public
Prosecutor and shall have the control and direction of all criminal
prosecutions and proceedings under this Code.”
On the other hand, power to order detention under the Ordinance
lies with the Minister by virtue of
section 4(1) of the Ordinance which has been reproduced.
These are two distinct
powers under two different laws. The
Attorney General and the Minister, respectively, have power given to them by the
respective laws. So, just as the
Attorney General has power to institute proceedings but not the power to order
detention, the Minister has power to order detention but not to institute
proceedings. Just as it is not within the power of the Attorney General to
consider making an order of detention, it is also not within the power of the
Minister to consider the institution of criminal proceedings. What is the purpose of considering doing
something that they, respectively, have no power to do? Indeed, if the Minister considers the
institution of criminal proceedings, in a judicial review application, it would
not be surprising to hear arguments that the Minister has exceeded his
jurisdiction or that he has taken into consideration matters which he should
not.
The law also does not require the Minister to refer the
matter before him to the Attorney General first for his consideration whether
to institute criminal proceedings before considering whether to issue a
detention order. Similarly, the law
does not require otherwise, i.e. for the Attorney General to refer the matter
before him to the Minister first for consideration whether the detention order
should be made before considering whether to institute criminal proceedings. Their powers are separate and provided for by
different laws. Indeed, even the powers
of the police to arrest a person that leads to the institution of criminal
proceedings and to detain a person with a view of detention by the Minister are
provided by different laws, the former mainly under the Criminal Procedure
Code, the latter under the Ordinance.
So, the first thing that
one should be clear about is that there are two distinct and separate laws for
different purposes to be exercised by two different authorities. Once we get that clear, then the argument
that the Minister should have considered the institution of proceedings first
collapses. The Minister has no such
power and indeed, it will be ultra-vires his jurisdiction to do so. That should dispose of the first argument
without even any reference to case law.
Regarding the cases
referred to by learned Counsel for the Appellant, we do not think it is
necessary for us to consider the two Indian cases. They are decided according to the laws in
Murugan (supra) and Chong
Boon Pau (supra), both judgments of the High Court are of no relevance to
the point in issue. Indeed, it is
surprising that the learned Judge in Murugan (supra) was talking about
the Deputy Minister having acted “mechanically and arbitrarily”, “the
satisfaction of the Deputy Minister” and the learned J.C. (as he then was) in Chong
Boon Pau (supra) saying that “The Deputy Minister ought to have applied his mind to the question whether the
detention under the Ordinance was most necessary and was to be preferred to one
under the Child Act 2001”. In both
cases, no reference was made to the amendment.
On the second ground, it was argued
that the grounds of detention were stale and remote in point of law to justify
the detention order. No affidavits were
filed by the police to explain the delay.
Furthermore, the Deputy Minister failed to state his source of
information in respect of the 7½ months delay.
Learned Counsel for the Appellant referred to Yit Hon Kit v. Minister
of Home Affairs, Malaysia & Anor (Supra), Mogan a/l Perumal v. K/l
Hussein bin Abdul Majid & 5 Ors. (1998) 3 AMR 2483 and Abd. Rahman bin Haji Maidin v. Timbalan
Menteri Dalam Negeri,
Here too, in our view, to avoid
confusing our own minds, we should begin from the basic law i.e. the relevant
provisions of the Ordinance before looking at decided cases. Citing passages from judgments without looking
at the dates when those judgments were delivered, in view of the amendments to
the Ordinance, is most dangerous. It may
lead to errors of law. Even cases
decided after the amendments must be considered in the light of the amendments,
whether the amendments were considered in the judgments or not. Unfortunately, such arguments are still being
heard, and the courts, unwittingly keep considering them, quite often without
considering the amendment.
Again,
out of deference to all concerned, let us look at the cases referred to by the
learned Counsel for the Appellant.
In Yit Hon Kit v. Minister of Home Affairs,
After referring to Yeap Hock Seng @ Ah Seng v. Minister of
Home Affairs, Malaysia & Ors, (supra) SK. Serajul v. State of West
Bengal (1975) 2 S.C. (78); Jagan
Nath Biswas v. The State of
It must be noted that, first, Yit Hon Kit (supra) is a
pre-amendment decision. Secondly, there
is nothing in the law that requires the Minister to make an order, if he so
wishes, within a certain time from the date of the alleged criminal activity. There is also no “condition precedent” laid
down in section 4(1) regarding the time when the order should be made. Perhaps, one justification one can offer is
that, at that time, prior to the amendments, the Court was looking at “mala
fide” in the wider sense on the part of the Minister in making the order that
the issue became relevant. Be that as it
may, now, after the amendments, is there a “condition precedent” which must be
a procedural requirement that the order may only be made within a certain time
from the time of the alleged criminal activities? That is the pertinent question now and the
answer is “No”.
So, Yit
Hon Kit (supra), does not assist the Appellant on this ground.
Morgan a/l Perumal v. K/l Hussein bin Abdul Majid & 5
Ors.) (supra) is a judgment of the Court of Appeal. In that case too, the validity of the
detention order made under section 4(1) of the Ordinance was questioned. On the ground under discussion, the Court,
citing Yeap Hock Seng (supra) and Yip Hon Kit (supra) with
approval, held that “the criminal activities of the appellant were some two
years from the date of the detention order.
In the absence of any explanation, we would also hold that they are far
too remote to justify the detention.”
The judgment of the Court of Appeal was delivered or issued on
21 January 1997 which was about eight years after the amendments in
question (Act A740) that came into force on 24 August 1989. It is surprising that the amendments
(sections 7C and 7D) were neither referred to nor mentioned in the judgment. The judgment, and perhaps the arguments too,
went on as if no amendments had been made to the Ordinance.
With respect, we do not think that the judgment can stand in the
light of the new sections 7C and 7D.
As regards Abd. Rahman bin Haji Maidin v. Timbalan Menteri
Dalam Negeri,
“It would appear that the
length of time calculated in the two cases cited, refers to the length of time
the detainee was kept in custody before detention order was issued. It did not refer to the length of time the
last act of criminal activities was known to the date the detention order was
made.”
and held:
“In the instant appeal,
the Deputy Minister has affirmed that the delay was due to the length of time
it took the police to investigate into the appellant’s past activities. This we consider, is a legitimate and
acceptable explanation and we say that on the circumstances of this appeal, the
six months gap is not too remote as to render the detention order invalid.”
Again, surprisingly, sections 11C and 11D of DD(SPM) Act
1985, (which are similar to sections 7C and 7D of the Ordinance and sections 8C
and 8D of the ISA 1960) were neither referred to nor mentioned.
Be that as it may, the amendments are there and must be
given effect to by the courts. As we
have said, there is no requirement anywhere in the law or the rules that a
detention order must be made within a certain period of the alleged criminal
acts. There is no limitation period, so
to speak. That being so, there can be no
noncompliance thereof. It is not the
function of the court to create such a limitation period or a procedural
requirement. The second ground also
fails.
On these grounds, we
dismiss the appeal.
2 June 2005.
(DATO’ ABDUL HAMID BIN HAJI MOHAMAD)
Hakim Mahkamah Persekutuan
Peguam
bagi Pihak Pemohon:
Mr. R.R. Mahendran
Mr. Alvintharan Nair
Mr. R.S.M Rayer
Mr. Suresh Thanabalasingam
Tetuan RR Mahendran & Co
Peguambela & Peguamcara
Johor Bahru.
Peguam
bagi pihak Responden:
Puan Fazillah Begum bt. Abd. Ghani
Encik Najib Zakaria
Timbalan Pendakwaraya
Jabatan Peguam Negara
Putrajaya.