JUDGMENT OF THE COURT

In Mohd Faizal bin Haris v Timbalan Menteri Dalam Negeri, Malaysia and Others (2006) 1 MLJ 309 this Court held that a writ of habeas corpus must be directed against the current detention order when it has been made subsequent to a prior arrest and detention. Thus any illegality in the prior arrest and detention cannot be the subject matter of inquiry. The critical issue that arose for determination in this appeal before us was whether such a result would also extend to any irregularities in the making of the current detention order. In other words, does it mean that any statutory pre-condition to the making or leading to the making of the current detention order cannot be inquired into just as in the case of irregularities in the prior arrest and detention?

The Appellant was arrested on 15 June 2004 pursuant to section 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (“the Act”). The Deputy Minister of Internal Security issued a detention order against the Appellant on 13 August 2004 under section 6(1) of the Act. The writ of habeas corpus filed by the Appellant on 11 March 2005 was dismissed by the High Court on 20 February 2006. This appeal is by the Appellant. In order to appreciate the argument raised before us by both parties it is necessary to reproduce some parts of the affidavits filed by them. Paragraph 6 of the affidavit affirmed by the Deputy Minister of Internal Security on 17 August 2005 reads as follows:

“Daripada laporan lengkap penyiasatan yang berkaitan dengan aktiviti Pemohon yang telah saya terima daripada CIF INSPEKTOR ISMAIL BIN AHMAD iaitu Pegawai Penyiasat Polis di bawah Seksyen 3(3) Akta tersebut pada 26.7.2004 mengenai tangkapan dan penahanan Pemohon dan juga laporan oleh ADNAN BIN YA’ACOB iaitu Pegawai Siasatan di bawah Seksyen 5(4) Akta tersebut pada 3.8.2004, saya berpuashati bahawa Pemohon pernah ada atau sedang ada kaitan dengan aktiviti pengedaran dadah berbahaya dan adalah perlu bagi ketenteraman awam supaya Pemohon ditahan.”

In reply to this affidavit the Appellant affirmed an affidavit-in-reply on 1 September 2005. Paragraph 5 of this affidavit reads as follows:

“Saya merujuk kepada perenggan 6 Afidavit Responden Pertama dan sesungguhnya percaya bahawa pegawai siasatan di bawah Seksyen 5(4) Akta tersebut tidak layak menjadi pegawai siasatan di bawah Seksyen 5 Akta tersebut. Selebihnya pegawai siasatan tersebut tidak melaksanakan segala kewajiban dan tanggungjawab di bawah Seksyen 5 Akta tersebut, maka lapuran pegawai siasatan tidak lengkap dan tidak teratur. Responden Pertama telah mendasarkan Perintah Tahanan di bawah Seksyen 6(1) di atas lapuran pegawai siasatan yang defektif.”

The submission advanced by learned counsel before us stems from section 5 of the Act. It reads as follows:

“5.(1) There shall be appointed by the Minister in writing such number of Inquiry Officers as may be necessary for the purposes of this Act:

Provided that no police officer nor any person who is not legally qualified shall be appointed to be an Inquiry Officer.

(2) Upon receiving the report under subsection (3) of section 3, the Inquiry Officer shall inquire whether there are reasonable grounds for believing that such person has been or is associated with any activity relating to or involving the trafficking in dangerous drugs.

(3) An Inquiry Officer may, in his discretion, for the purpose of subsection (2) -

(a) require the attendance before him of a person detained under section 3;

(b) procure and receive all such evidence, whether oral or in writing and whether the same be admissible or not under any written law for the time being in force relating to evidence or criminal procedure, which he may think necessary or desirable;

(d) require the production of any document or other thing in his opinion relevant to the case.

(4) An Inquiry Officer shall submit his report in writing to the Minister within such period as may be prescribed by the Minister by regulations made under this Act.”

Learned counsel argued that there is no material on record to show the qualification of the Inquiry Officer as prescribed by the proviso to section 5(1) of the Act. Neither was there any evidence to show that the Inquiry Officer carried out the investigation as required of him. He did not affirm any affidavit to explain the part played by him. In his reply the learned Deputy Public Prosecutor said that paragraph 6 of the affidavit of the Deputy Minister of Internal Security shows that the Inquiry Officer had indeed prepared the report as required by section 5 of the Act. He added that in view of the judgment of this Court in Mohd Faizal bin Haris v Timbalan Menteri Dalam Negeri, Malaysia and Others (2006) 1 MLJ 309 any defect in the report of the Inquiry Officer or in his qualification is not a relevant matter for consideration.

In substance the submission of learned counsel was that there has been no compliance with the requirements of section 5 of the Act. Section 6(1) of the Act states in unmistakable terms that the Minister must consider, inter alia, the report of the Inquiry Officer before making the detention order. The report must be one that is prepared in accordance with the requirements of section 5 of the Act. It therefore becomes necessary to consider the duties and responsibilities of an Inquiry Officer. This was considered by the (then) Supreme Court in Inspector General of Police & Ors v Rajoo s/o Ramasamy (1989) 1 MLJ 416 where Abdul Hamid LP said at p 418:

“Fundamentally, the learned judge came to that conclusion on the strength of the words ‘shall inquire’ appearing in s 5(2). But where he went wrong was that he completely omitted to consider the opening words of sub-s (3) which reads:

An Inquiry Officer may, in his discretion, for the purpose of sub-s 2 –

(a) require …

These words were crucial to a proper interpretation of the meaning of ‘inquiry’ under s 5(2) of the Act.

If the learned judge had given due regard to these words, he would not, in our view, have come to the conclusion that he did. The language used in s 5 of the Act is crystal clear.

In our view, the words used in sub-s (2) read in the light of the whole of sub-s (3) make it abundantly clear that discretion rests with the inquiry officer. It is for the inquiry officer in a particular case to decide whether to exercise any of the powers. In other words it is for the inquiry officer to decide whether, for the purpose of the inquiry, to invoke any of the powers in the relevant paragraphs. Whether there is a need to do so would depend primarily on whether, having regard to the complete report submitted to him by the police investigating officer and on the materials submitted, he could be satisfied there were reasonable grounds to found his belief. If any inquiry officer is satisfied, after examining and considering the materials contained in the complete report, that there are reasonable grounds for believing that such person has been or is associated with trafficking activities, the need to call any witness or to procure any document does not arise. It is therefore only in cases where the inquiry officer, on the materials contained in the report submitted to him, is unable to satisfy himself that there are reasonable grounds to found his belief that such person is associated in trafficking activities, that the need to exercise his discretion arises. It would perhaps be proper to say that he ought to exercise the discretion if it is only by so doing that he can properly decide.

In our judgment, therefore, the learned judge erred in law in holding that it is imperative for the inquiry officer to invoke the powers contained in the relevant paragraphs to constitute a valid inquiry under sub-s (2) of s 5 of the Act. The duty is that of the inquiry officer to be satisfied that there are reasonable grounds for believing that the person has been or is associated with trafficking activities. In carrying out his duty he has a discretion whether or not to call witnesses. And it is not mandatory that he should invoke the powers contained in sub-s (3) of s 5 of the Act.”

It is clear from the above passage that it is not mandatory for the Inquiry Officer to carry out an inquiry under section 5 of the Act. It is for him to decide whether to exercise any of the powers in section 5 of the Act. However, the result of his inquiry as spelt out in section 5(2) of the Act must be in a report as stipulated in section 5(4) of the Act. In Munna Tuin v District Magistrate, Lucknow 1982 Cr LJ 630 it was held that failure to supply the inquiry report on which reliance was placed by the detaining authority to the detainee was fatal. The need for this becomes particularly significant in this case in view of the objection raised by learned counsel. Thus there must be evidence on record to show that the Inquiry Officer had complied with the requirements of section 5 of the Act. The evidence of the Inquiry Officer could be in the form of an affidavit affirmed by him or by the production of his report itself. The disclosure of such evidence is, of course, subject to section 14 of the Act. In that event a statement by the Minister that he had considered the report of the duly appointed Inquiry Officer would be sufficient.

In this case no evidence has been tendered by the Inquiry Officer in support of the role played by him. Neither is there any evidence to show that a claim to privilege has been made under section 14 of the Act to justify the non-production of such evidence. There is therefore an obligation on the Respondents to produce such evidence as the Appellant is entitled to it. Paragraph 6 of the affidavit of the Deputy Minister of Internal Security reproduced earlier merely states that he considered the report of the Inquiry Officer. It does not reveal whether the Inquiry Officer had complied with the requirements of section 5 of the Act and, in particular, his conclusion under section 5(2) of the Act. His conclusion will be very significant as it would certainly play a critical role in the decision to be made by the Minister as he is an independent person with a legal background. Similarly paragraph 6 of the affidavit of the Deputy Minister of Internal Security also does not state the qualifications of the Inquiry Officer. The requirement under section 5(1) of the Act for the Inquiry Officer to be a non-police officer who is legally qualified is to ensure that the person who conducts the inquiry is one who is independent and has sufficient knowledge of the law to prepare a proper report for consideration by the Minister. Again there is no evidence on record to show compliance with this requirement. There is therefore a breach in relation to compliance with section 5 of the Act.

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 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 person has been or is 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 (hereinafter referred to as a ‘detention order’) direct that such person be detained for a period not exceeding two years.”

It is manifestly patent 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 section 6(1) of the Act when there are defects in the reports that the Minister must consider before making the order.

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 Article 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. In dealing with the duty of the Court in cases of preventive detention Lee Hun Hoe CJ (Borneo) said in Re Datuk James Wong Kim Min (1976) 2 MLJ 245 at p 251:

“Preventive detention is, therefore, a serious invasion of personal liberty. Whatever safeguard that is provided by law against the improper exercise of such power must be zealously watched and enforced by the court. In a matter so fundamental and important as the liberty of the subject, strict compliance with statutory requirements must be observed in depriving a person of his liberty. The material provisions of the law authorising detention without trial must be strictly construed and safeguards which the law deliberately provides for the protection of any citizen must be liberally interpreted. Where the detention cannot be held to be in accordance with the procedure established by the law, the detention is bad and the person detained is entitled to be released forthwith. Where personal liberty is concerned an applicant in applying for a writ of habeas corpus is entitled to avail himself of any technical defects which may invalidate the order which deprives him of his liberty. See Ex parte Johannes Choeldi & Ors (1960) MLJ 184.

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.”

Further reference may be made to Re Tan Boon Liat (1977) 2 MLJ 108 where Lee Hun Hoe CJ (Borneo) said at p 110 – 111:

“In The Reverend Thomas Pelham Dale’s Case (1881) 6 QBD 376, 461, 469 and 470 Brett LJ observed at page 461 that:

‘Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue.’

Cotton LJ in supporting this stated at page 469:

‘I quite agree with Brett LJ, that when persons take upon themselves to cause another to be imprisoned, they must strictly follow the powers under which they are assuming to act, and if they do not, the person imprisoned may be discharged, although the particulars in which they have failed to follow those powers may be matters of mere form. Here, however, the departure from the correct procedure is not, in my opinion, a mere matter of form, but is a matter of substance’.”

It follows that if a detention is procured by steps which are not regular the Court is empowered to set aside the detention order. It means that every step which is necessary for the making of a detention order is subject to review by the Court. 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 Dalam Negeri, Malaysia & Others (1992) 2 CLJ (Rep) 816 and Aw Ngoh Leang v Inspector General of Police (1993) 1 MLJ 65. It has been recognised in these cases that a procedural requirement may be mandatory or directory. A mandatory requirement is one that goes to the root of the matter and is of direct relevance to the detention order. The breach of a mandatory requirement will render the detention order invalid without the need to establish any prejudice. The breach of a procedural requirement which is directory will not be significant provided that there is substantial compliance with the rules with no prejudice having been suffered by the detainee. However it must be observed that the power of the Court to intervene is limited to only matters of compliance with procedural requirements by section 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.”

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 reiterated that the reports that the Minister must consider are only a prerequisite to the making of a detention order under section 6(1) of the Act. Accordingly, the short answer to the reliance of the learned Deputy Public Prosecutor on the judgment of this Court in Mohd Faizal bin Haris v Timbalan Menteri Dalam Negeri, Malaysia and Others (2006) 1 MLJ 309 is that the ratio decidendi of that case does not deal with defects in the making of the current detention order but with the illegality of the prior detention. Thus it only renders irrelevant defects in a prior detention when the current detention order is lawful. The challenge of the Appellant in this case is not as to the validity of the prior arrest but as to the regularity of the current detention order in the light of defects in the procedure leading to the making of the order. The authority relied on cannot therefore be used as a shield to hide from procedural defects in the making of the current detention order. The reports specified in section 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 section 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 section 11C of the Act. A breach of this requirement is therefore subject to judicial review. The case of The Reverend Thomas Pelham Dale’s case (1881) 6 QBD 376 cited in Re Tan Boon Liat (1977) 2 MLJ 108 referred to earlier makes it clear that the steps taken to detain a person must be entirely regular. Thus if a report must be considered before making a detention order it must be one that is in regular form. It follows that the report of the Inquiry Officer that the Minister must consider under section 6(1)(b) of the Act must be one that has satisfied the requirements of section 5 of the Act. Since there is no evidence of compliance with section 5 of the Act in this case the report under section 6(1)(b) of the Act cannot be said to have been made in accordance with law. Accordingly, the detention order made against the Appellant cannot be said to be one that has been validly made.

In the upshot we allowed the appeal by the Appellant.

Date: 27 July 2006

Sgd

( DATO' AUGUSTINE PAUL )

Judge

Federal Court

Malaysia

Counsel:

For the Appellant: R R Mahendran

Solicitors: Messrs R R Mahendran & Co

Advocates & Solicitors

No 66-A, Jalan Tan Hiok Nee

80000 Johor Bahru

For the Respondents: Tengku Amir Zaki bin Tengku Hj Abdul Rahim

Jabatan Peguam Negara

Bahagian Pendakwaan

Aras 7, Blok C3

Pusat Pentadbiran Kerajaan Persekutuan 62512 Putrajaya