DALAM MAHKAMAH PERSEKUTUAN
( BIDANG KUASA
RAYUAN )
RAYUAN JENAYAH NO
BETWEEN
1. TIMBALAN MENTERI KESELAMATAN DALAM NEGERI,
2. PENGUASA KANAN PUSAT PEMULIHAN AKHLAK,
SIMPANG RENGGAM, JOHOR DARUL TAKZIM
3. KETUA POLIS NEGARA
4. KERAJAAN
MALAYSIA APPELLANTS
AND
ONG BENG CHUAN RESPONDENT
( DALAM PERKARA MAHKAMAH TINGGI
PERMOHONAN JENAYAH NO 44-32-2005
BETWEEN
ONG BENG CHUAN APPLICANT
AND
1. TIMBALAN MENTERI KESELAMATAN DALAM NEGERI,
2. PENGUASA KANAN PUSAT PEMULIHAN AKHLAK,
SIMPANG RENGGAM, JOHOR DARUL TAKZIM
3. KETUA POLIS NEGARA
4. KERAJAAN MALAYSIA
RESPONDENTS )
CORAM
AHMAD FAIRUZ SHEIKH ABDUL HALIM,
C.J.
ALAUDDIN MOHD SHERIFF, F.C.J.
AUGUSTINE PAUL, F.C.J.
JUDGMENT OF THE
COURT
This appeal was heard together with
Federal Court Criminal Appeals No
The detainee was detained for a period
of two years with effect from 18 December 2004 pursuant to section 6(1) of the
Dangerous Drugs (Special Preventive Measures) Act 1985 (“the Act”). He filed a writ of habeas corpus in the High
Court seeking his release. At the
hearing of the writ learned counsel based his argument on only one point in
reliance on Rule 3 of the Dangerous Drugs (Special Preventive Measures)
(Advisory Board Procedure) Rules 1987 which reads as follows:
“3(1) When any person is served with a detention order, the police officer
serving the detention order shall at the same time –
(a)
inform
that person of his right to make representations against the detention
order; and
(b)
provide
him with three copies of Form I prescribed in the Schedule and obtain from him
an acknowledgement of the receipt thereof.
(2)
A detained person who desires to make any representation shall complete Form I
and shall forward two copies of the completed Form I duly signed by him to the
Secretary through the Officer in Charge of the Police District where the
detention order was served or the Officer in Charge of the place of detention.
(3) When a detained person is brought to
a place of detention, the Officer in Charge shall as soon as practicable remind
the person of his right to make representations.
(4) The
Officer in Charge of the Police District where the detention order was served
or the Officer in Charge, as the case may be, who receives any written
representation in Form I shall forthwith forward such representation to the
Secretary.
(5) Where
a detained person refuses to accept service of any document to be served on him
under the Act or these rules, the Officer in Charge of the Police District
where the detention order is served shall forthwith inform the Secretary of
such refusal and it shall be presumed that the detained person is not making
any representation against his order of detention.
(6) A
detained person who refuses to accept service of any document at the time when
he was served with the detention order may request the Officer in Charge to
serve Form I on him, and the Officer in Charge shall on such request being made,
serve three copies of Form I on the detained person and inform the Secretary of
such service.”
In this case the officer who carried out the duties under
Rule 3(2), (3) and (4) was one Sazali bin Ismail. He was a Superintendent at Pusat Pemulihan
Akhlak, Muar, Johor. Learned counsel contended
in the High Court that there was no evidence on record to show that Sazali bin
Ismail was the Officer in Charge as specified in the said rules. In his reply the learned Deputy Public
Prosecutor said that it can be assumed that he was the Officer in Charge. In support of his contention he referred to Wong Kiew Meow v Timbalan Menteri Dalam
Negeri
“It might not be that obvious, but
Rule 3 requires specific officers to carry out specific tasks. The officer to inform the person of his right
to make representations against the detention order and to provide that person
with 3 copies of Form I (see Puvaneswaran
v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor (1991) 3 MLJ 28) and
obtain an acknowledgement of the receipt thereof, is the police officer serving
the detention order (sub-rule 3(1)).
When a detained person is brought to a place of detention, the officer
to remind that person of his right to make representations is the Officer in
Charge of the place of detention. A
detained person who desires to make any representation shall complete Form I
and shall forward two copies of the completed Form I to the Secretary of the
Advisory Board through the Officer in Charge of the Police District where the
detention order was served or the Officer in Charge of the place of
detention. The officer to forward the
representation is the Officer in Charge of the Police District where the
detention order was served or the Officer in Charge of the place of detention.
But alas, there is no evidence for (sic)
to find that it was the Officer in Charge of the place of detention who had
carried out the designated task. The
officer who reminded Balamurugan a/l Gopalan of his right under rule 3(2) and
who forwarded the representation to the Advisory Board was one Delber Singh a/l
Sadhu Singh who affirmed (see enclosure 16 – 44-30-05) that he was a Senior
Deputy Superintendent at the place of detention (Batu Gajah). The officer who reminded Ong Beng Chuan of
his right under rule 3(2) and who forwarded the representation to the Advisory
Board was one Sazali bin Ismail Azman who affirmed (see enclosure 15 –
44-32-05) that he was a Superintendent at the place of detention (Muar). The officer who reminded Chai Wi Su of his
right under rule 3(2) and who forwarded the representation to the Advisory
Board was one Azman bin Mohd Ali who affirmed (see enclosure 18 – 44-33-05)
that he was a Senior Superintendent at the place of detention (Muar). And the officer who reminded Eng Chee Keong
of his right under rule 3(2) and who forwarded the representation to the
Advisory Board was one Azman bin Mohd Ali who affirmed (see enclosure 17 – 44-37-05)
that he was a Deputy Superintendent at the place of detention (Muar).
The court was invited to assume that
the aforesaid officers were indeed the Officers in Charge of the places of
detention. In Wong Kiew Meow, Abdul Aziz bin Mohamed J, accepted that the officer
concerned (Noorbahri) must be the Officer in Charge of the place of detention,
as it was explained by Noorbahri that he was the director and as well as the
highest ranking officer at the place of detention. But there is no such or other material in the
present cases for to assume or to infer that any of the officers concerned was
the Officer in Charge of the place of detention. What is in evidence is the rank of the
officers concerned, which only reveals the position of grade of those officers
in the uniform service but not their position of responsibility at the place of
detention. In short, there is no
evidence that it was the Officer in Charge of the place of detention, although
that was mandated by law, who reminded the Applicants of their rights under
rule 3(2) and who forwarded the representation of the Applicants to the
Advisory Board. In the absence of that
evidence, it would not be reasonable to hold that the Respondents had complied
with all procedural requirements.
Rather, it must be held that there was a failure in procedure which
warrants the Applicants to be set free.”
The
detainee was accordingly released. The
learned Judge had erred in law in proceeding on the basis that the failure to
establish that Sazali bin Ismail, who carried out the functions under Rule
3(2), (3) and (4), was the Officer in Charge is fatal without a consideration
of the nature and effect of the breach. This
appeal is by the Respondents.
At the hearing of the appeal before us
the learned Deputy Public Prosecutor argued that the mandatory requirements of
Rule 3(2), (3) and (4) have been complied with.
The detainee had been informed of his right to make representations and
that the written representation in Form I had been forwarded to the Advisory
Board. He then referred to the case of Puvaneswaran v Menteri Hal Ehwal Dalam Negeri,
Malaysia & Anor (1991) 3 MLJ 28 and said that the requirement for these
functions to be carried out by the Officer in Charge is only directory and
non-compliance with it is not fatal. In
his reply learned counsel referred to the case of Abdul Ghani bin Jusoh & Anor v PP (1981) 1 MLJ 25 and said that
where a duty is prescribed to be performed by a named officer then it should be
carried out only by him. As such, he said,
a breach of that requirement is fatal without the need to show prejudice.
The objection taken by learned counsel in the High Court and
before us is that there is no evidence to show that Sazali bin Ismail who
carried out the duties specified in Rule 3(2), (3) and (4) was the Officer in
Charge of Pusat Pemulihan Akhlak, Muar, Johor as he had only described himself
as a Superintendent of that place. Such
a description is certainly insufficient to show that he was the Officer in
Charge. The fact that the duty to carry
out the functions in the rules is entrusted to the Officer in Charge is no
doubt of importance. The purpose is to
ensure that they are carried out properly and promptly. However, there is no
qualification in Rule 3(2), (3) and (4) requiring the Officer in Charge to
carry out the duties personally. This
brings into focus section 7 of the Interpretation Act 1967 (“section 7”) which
reads as follows:
“A reference to the holder of any
public or other office (including a reference in an appointment made pursuant
to section 50) is a reference to the person for the time being lawfully
holding, acting in or exercising the functions of that office.”
Thus
the rules, as they stand, read with section 7 mean that the functions of the
Officer in Charge can also be carried out by someone who is lawfully exercising
the functions of that office. It follows
that a reference to the Officer in Charge in Rule 3(2), (3) and (4) includes a
person who is lawfully exercising the functions of that office. Needless to say, where the functions are
carried out by someone else he must tender in evidence his right to act in that
capacity. A failure to do so will no
doubt lead to a breach of the requirements of rule 3(2), (3) and (4). In this case there is no evidence to show
that Sazali bin Ismail was the person lawfully holding, acting in or exercising
the functions of the Officer in Charge.
There is therefore a breach of Rule 3(2), (3) and (4) to that extent.
The resultant matter for consideration is whether the breach
is subject to judicial review. A right
to judicial review when there is a breach of a procedural requirement in the
making of a detention order under the Act was considered by this Court in Muhammad Jailani bin Kasim v Timbalan
Menteri Dalam Negeri, Malaysia & Ors (Federal Court Criminal Appeal No
05-34-2006 (J)) in the following words:
“The effect of a breach of such
procedural requirements had been considered in a number of cases. See, for example, Puvaneswaran v Menteri Hal Ehwal Dalam Negeri Malaysia & Anor (1991)
3 MLJ 28; Low Teng Hai v Menteri
‘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.’
It is clear that the section
restricts judicial review to only questions on compliance with any procedural
requirement governing any act done or decision made by the Yang di-Pertuan
Agong or the Minister in the exercise of their discretionary power. Such procedural requirements can only be ones
that will go to the root of the matter and be of direct relevance to the making
of the detention order. The section only
refers to a question of compliance with procedural requirements without
subjecting it to any prejudice having been suffered. 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 Yang
di-Pertuan Agong or 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.”
It must be observed that the significant parts of Rule 3(2),
(3) and (4) are a reminder to the detainee of the right to make representation
and the receipt and forwarding of Form I to the Secretary of the Advisory
Board. Non-compliance with these aspects
of the rules will affect the right of representation of the detainee. Thus any breach in the matters to be
communicated to the detainee will affect the hearing before the Advisory
Board. This will in turn have a direct
bearing on the recommendation to be made to the Yang di-Pertuan Agong by the
Advisory Board. Thus it can only mean
that the more crucial aspect of Rule 3(2), (3) and (4) is the performance of
the duties required by the rules. That,
however, cannot be said of the person who is required to communicate the
information to the detainee. The fact
that it has been done by a person who is not the Officer in Charge will have no
bearing on the conduct of the hearing by the Advisory Board. In this regard reference may be made to Howard v Bodington (1876) 2 PD 203 where
Lord Penzance said at p 211:
“There may be many provisions in
Acts of Parliament which although they are not strictly obeyed, yet do not
appear to the Court to be of that material importance to the subject-matter to
which they refer, as that the legislature could have intended that the
non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions
in respect of which the Court would take an opposite view, and would feel that
they are matters which must be strictly obeyed, otherwise the whole proceedings
that subsequently follow must come to an end.”
In District Board Kheri v Abdul Majid Khan AIR
1930 Oudh 434 it was held that where the prescription of an Act relates to the
performance of a duty by a public officer the breach of such prescription when
it does not cause any real injustice does not invalidate the act done under the
Act and therefore such prescriptions are merely directory. This is particularly so in this case as there
is no requirement that the communication must be made by the Officer in Charge
personally. After all section 9(2) of
the Act only provides that for the purpose of enabling a person to make
representation he shall be informed of that right. It does not say that the communication must
be made by any specified officer. It
follows that the fact that the requirements of Rule 3(2), (3) and (4) were
performed by a person who is not the Officer in Charge does not invalidate the
act done.
Thus the fact that the duties specified in Rule 3(2), (3)
and (4) have not been carried out by the Officer in Charge, though a breach, does
not affect the hearing before the Advisory Board and, consequently, is not one
that will govern the exercise of discretion by the Yang di-Pertuan Agong in
making a decision on the recommendation of the Advisory Board. It is therefore not one that is subject to
judicial review within the meaning of section 11C of the Act.
Accordingly,
we allow the appeal.
Date:
Sgd
( DATO' AUGUSTINE PAUL )
Judge
Federal Court
Counsel:
For the Appellants : Tengku Amir Zaki bin Tengku Hj Abdul Rahim
(
Najib Zakaria with him )
Jabatan
Peguam Negara
Bahagian
Pendakwaan
Pusat
Pentadbiran Kerajaan Persekutuan 62512 Putrajaya
For the Respondent : R
R Mahendran
( Gobind
Singh Deo with him )
Solicitors: Messrs
R R Mahendran & Co
Advocates
& Solicitors
No
66-A, Jalan Tan Hiok Nee
80000
Johor Bahru