DALAM MAHKAMAH PERSEKUTUAN
( BIDANG KUASA
RAYUAN )
RAYUAN JENAYAH NO
05-41-2005 (P)
BETWEEN
SATHIYAMURTHI APPELLANT
AND
PENGUASA /
KOMANDAN,
PUSAT
PEMULIHAN KARANGAN,
KEDAH RESPONDENT
( DALAM PERKARA MAHKAMAH TINGGI MALAYA DI PULAU
PERMOHONAN JENAYAH
NO 44-6-2005
BETWEEN
SATHIYAMURTHI APPLICANT
AND
PENGUASA /
KOMANDAN,
PUSAT
PEMULIHAN KARANGAN,
KEDAH RESPONDENT
)
CORAM
ABDUL HAMID MOHAMAD, F.C.J.
ARIFIN ZAKARIA, F.C.J.
AUGUSTINE PAUL, F.C.J.
JUDGMENT OF THE COURT
The issues that arose for
consideration in this appeal were the applicability of section 399(1) of the
Criminal Procedure Code (“section 399(1)”) to a proceeding by a Magistrate in ordering
a drug dependant to undergo treatment and rehabilitation at a Rehabilitation
Centre pursuant to section 6(1)(a) of the Drug Dependants (Treatment and Rehabilitation)
Act 1983 (“the Act”) and whether the previous history of a drug dependant
should be revealed to the Magistrate in the recommendation of the
Rehabilitation Officer in such a proceeding.
On 21 October 2004 the learned
Magistrate, Magistrates Court, Georgetown, Pulau Pinang ordered the Appellant
to undergo treatment and rehabilitation at the Pusat Pemulihan Karangan, Kedah
for a period of two years under section 6(1)(a) of the Act. Before making the order the learned
Magistrate considered the report of the medical officer and the recommendation
of the Rehabilitation Officer. The
material parts of the medical report read as follows:
“Saya Dr Latifah bt Ishahak @ Ishak,
Pegawai Perubatan, Klinik Kesihatan Hospital Pulau Pinang Seorang * Pegawai
Perubatan Kerajaan/pengamal perubatan berdaftar, setelah menjalankan
ujian-ujian yang perlu keatas Sathiyamurthi A/L Arokiadass Anthony Kad
Pengenalan No: 500406-07-5565 Berumur 54 Tahun yang beralamat di Blok 19-4-2,
Lorong Batu Bukit, Tg. Tokong, Pg memperakui bahawa dia * ialah / bukanlah seorang
penagih dadah mengikut pengertian Akta ** Dadah/dadah-dadah berbahaya yang
digunakan yang menyebabkan dia menjadi penagih dadah ialah MORPHINE.
Tarikh:
The
material parts of the recommendation of the Rehabilitation Officer read as
follows:
“2. SEJARAH PENGGUNAAN DADAH
2.1
Jenis
Dadah: Morfin (chase) Sekali sehari
2.2
Lama
Menggunakan Dadah: Sejak 1975 (morfin) /
terlibat semula sehari
3. REKOD
MEMULIHAN
|
Bil |
Jenis Perintah |
Tempat |
Tempoh |
|
1 |
Sek
6(1)(b) APD |
Pejabat
Pemulihan Dadah, Daerah Timur Laut, Pulau
Pinang |
21.08.89- 20.08.91 |
|
2 |
Sek
6(1)(b) APD |
Pejabat
A.D.K., Daerah Timur Laut, Pulau
Pinang |
25.02.99- 24.02.01 |
|
3 |
Sek
6(1)(a) APD |
Pusat
Serenti Batu Kurau |
05.06.01- 02.07.02 |
4.
SYOR
PEGAWAI PEMULIHAN DADAH
Penama berumur 54 tahun, telah
berkahwin dan belum mempunyai anak lagi.
Isterinya bekerja sebagai pekerja pembersihan dengan pendapatan RM 600/=
sebulan. Beliau merupakan anak ketiga
dari empat orang adik-beradik. Kedua-dua
ibubapa penama telah meninggal dunia.
Beliau kini tinggal bersama isterinya di rumah sewanya di Tanjung
Tokong, Pulau Pinang.
Penama menerima pendidikan setakat
tamat darjah 6 dan kini bekerja sebagai pengawal keselamatan dengan pendapatan
RM 1,000/- sebulan.
Beliau mengaku terlibat semula
dengan pengambilan dadah jenis morfin selama sehari dengan kekerapan sekali
sehari. Menurut penama, beliau mula mengambil
dadah jenis yang sama pada 1975 dan pernah diletakkan di bawah pengawasan
Pejabat Agensi Dadah Kebangsaan, Daerah Timur Laut, Pulau Pinang dari 25.2.99
hingga 24.2.2001 sebelum dimasukkan ke Pusat Serenti Batu Kurau pada 2001. Sepanjang tempoh pengawasan selepas
pembebasannya dari pusat, penama kurang respon dan pernah dituduh langgar
syarat pengawasan kerana terlibat semula dengan dadah. Selain dari itu, penama juga mengaku pernah
dipenjarakan sebanyak 5 kali lagi kerana kesalahan memiliki dadah.
Memandangkan penglibatan penama
dengan dadah telah lama dan masih tidak menampakkan kesungguhannya untuk
berhenti darinya, maka disyorkan penama dihantar semula ke pusat serenti untuk
pemulihan di bawah Sek 6(1)(a) Akta Penagih Dadah (R & P) 1983 (Pindaan)
1998.”
On
Before us learned counsel for the
Appellant rested his case on two issues only.
They are:
(a)
whether section 399 applies to an inquiry conducted by a
Magistrate in making an order under section 6(1) of the Act; and
(b)
whether the previous history of the Appellant should be
revealed to the Magistrate in the recommendation of the Rehabilitation Officer
In
order to appreciate the arguments of learned counsel and the reply by the
learned Deputy Public Prosecutor it is necessary to consider section 6(1) of
the Act as originally enacted in 1983 and as amended by the Drug Dependants
(Treatment and Rehabilitation) (Amendment) Act 1998.
Section 6(1) of the Act as originally
enacted reads as follows:
“6. (1) Where a person who has undergone the tests
referred to in section 3 or 4, and, in consequence of such test, is certified
by a government medical officer or a registered medical practitioner to be a
drug dependant, the officer shall produce him, or cause him to appear before a
Magistrate and if the Magistrate, after giving such person an opportunity to
make representations –
(a)
is
satisfied that such person requires to undergo treatment and rehabilitation at
a Rehabilitation Centre, order such person to reside at such Centre for a
period of two years to undergo treatment and rehabilitation and thereafter to
undergo after-care in accordance with the provisions of this Act relating
thereto; or
(b)
is
satisfied that such person’s treatment and rehabilitation may be carried out
otherwise than at a Rehabilitation Centre, he may order such person to be placed
under the supervision of a Rehabilitation Officer for a period of not less than
two and not more than three years, and to execute a bond with or without
sureties, as the Magistrate may determine, to remain under such supervision for
such period.
Provided that where such person
fails to execute such bond an order under paragraph (a) shall be made against
him by the Magistrate.
(2) An order of supervision under
paragraph (b) of subsection (1) shall contain the condition requiring such
person to abstain from dangerous drugs and may contain conditions as to
residence, employment, associations, abstention from intoxicating liquor, or
attendance at a Day Centre.
(3) The Magistrate shall, before
making an order either under paragraph (a) or (b) of subsection (1), consider a
report by a Rehabilitation Officer on such person, a copy of which shall be
supplied to such person, and which shall be read out and explained to him.
(4) In making an order under
subsection (1), the Magistrate shall have regard to the circumstances of the
case, and the character, antecedents, age, health, education, employment,
family and other circumstances of the person against whom the order is proposed
to be made.
(5) A certificate under
subsection (1) purporting to be signed by a government medical officer or a
registered medical practitioner shall be receivable by a Magistrate without
proof of the signature thereon, and the Magistrate shall accept it as proof of
its contents, unless the contrary is proved.”
Section 6(1) of the Act as amended which
is now in force reads as follows:
“6. (1) Where a person who has undergone the tests
referred to in section 3 or 4 and, in consequence of such tests, is certified
by a government medical officer or a registered medical practitioner to be a
drug dependant, the officer shall produce him, or cause him to appear before a
Magistrate, and the Magistrate shall upon the recommendation of a
Rehabilitation Officer and after giving such person an opportunity to make
representations –
(a) order
such person to undergo treatment at a Rehabilitation Centre specified in the
order for a period of two years and thereafter to undergo supervision by an
officer at the place specified in the order for a period of two years; or
(b) order
such person to undergo supervision by an officer at the place specified in the
order for a period of not less than two and not more than three years.
(2) An order of supervision
imposed on a person under paragraphs (a) and (b) of subsection (1) shall
contain the following conditions:
(a)
the
person must reside in a State or
(b)
the
person must not leave the area where he resides without the written permission
of the Director General;
(c)
at
the time specified in the order, the person shall report at the nearest police
station or for a member of the armed forces at the place specified by an
officer;
(d)
the
person shall not consume, use or possess any dangerous drugs;
(e)
the
person shall undergo such tests at such time and place as may be ordered by an
officer; and
(f)
the
person shall undergo any programme for the rehabilitation of drug dependants
held by the Government.
(3) Any person undergoing
supervision under paragraph (a) or (b) of subsection (1) who fails to comply with
any condition imposed under subsection (2) shall be guilty of an offence and
shall on conviction be liable to be punished with imprisonment for a period not
exceeding three years or to whipping not exceeding three strokes or to both.”
The paramount consideration in an application for a writ of
habeas corpus by a person against whom a rehabilitation order has been made is
whether there is justification for the making of the order. It has been said that sometimes the Court may
exercise its inherent jurisdiction to ignore a defect in a detention order
where it appears that the detenu is a person who, on the merits, ought to be
detained (see The Law of Habeas Corpus by
RJ Sharpe (2nd Ed) at p
57). This may arise in cases where the
order made is one that is in the interests of society in general, and, the
person concerned in particular. This line
of thinking is illustrated by cases involving persons confined on account of
mental disorder. As Lord Denman CJ said
in Re Shuttleworth (1846) 9 QB 651 at
p 662:
“If the court thought that a party,
unlawfully received or detained, was a lunatic, we should still be betraying
the common duties of members of society if we directed a discharge. But we have no power to set aside the order,
only to discharge. And should we, as
Judges, or individuals, be justified in setting such a party at large? It is answered that there may be a fresh
custody. But why so? Is it not better, if she be dangerous, that
she should remain in custody till the Great Seal or the commissioners act? Therefore, being satisfied in my own mind
that there would be danger in setting her at large, I am bound by the most
general principles to abstain from so doing;
and I should be abusing the name of liberty if I were to take off a restraint for which those who are most
interested in the party ought to be the most thankful.”
In
Canada where a similar approach has been adopted it has been held that the
appropriate procedure to be followed is to direct the trial of an issue as to
the patient’s propensity to be dangerous (see Re Gibson (1907) 15 OLR 245;
Re King (1916) 30 DLR
599; Re
Bowyer (1930) 66 OLR 378 and Re
Carnochan (1941) SCR 470). Similarly
it would be an injustice to society and to the drug dependant himself if he is
discharged from the rehabilitation centre on technical grounds without any
concern for his treatment. The question
of whether this objective can be a matter for consideration in a writ of habeas
corpus by a person against whom a rehabilitation order has been made would
depend on the circumstances in which the order can be challenged.
In order to answer this question it is first necessary to
ascertain the instances when a writ of habeas corpus will be issued. In Re Tan Boon Liat (1977) 2 MLJ 108 Lee
Hun Hoe CJ (
“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’.”
Thus in
a writ of habeas corpus the question for the Court to determine is whether the
person is lawfully detained. If he is,
the writ cannot be issued and if he is not, it must be issued (see R v Home Secretary, Ex parte Greene (1941)
3 All ER 104). The lawfulness of a
detention would depend upon whether the breach complained of is mandatory or
directory. A mandatory requirement is
one that is of direct relevance to the detention. A breach of it will entitle a person to a
writ of habeas corpus without the need to establish prejudice. A breach of a requirement which is directory
will not be significant provided that there is substantial compliance and there
is no prejudice. In the case of an order
made under section 6(1) of the Act the requirements that must be complied with
are:
(i)
certification by a medical officer that the subject is a
drug dependant.
(ii)
the recommendation of a Rehabilitation Officer, and
(iii)
the giving of an opportunity to the subject to make representation.
All
these three requirements relate to the condition of a person as a drug
dependant and are prerequisites to the exercise of power by a Magistrate. They are therefore mandatory. The resultant matter for consideration is the
extent to which a Court may inquire into compliance with these
requirements. That would depend on the
manner of exercise of powers by a Magistrate under section 6(1) of the
Act. Where the order is required to be
made on the satisfaction of a Magistrate the question of whether or not the
facts on which the rehabilitation order is made are sufficient or relevant is a
matter to be decided solely by the Magistrate and cannot be subjected to
judicial review (see Karam Singh v
Menteri Hal Ehwal Dalam Negeri, Malaysia (1969) 2 MLJ 129). That in fact was the position in the case of
section 6(1) of the Act as originally enacted whereby a Magistrate may make an
order “ … if satisfied that such person requires to undergo treatment and
rehabilitation at a Rehabilitation Centre … ”.
The test under section 6(1) of the Act as amended is now no longer subjective. It is now objective since the Magistrate,
under section 6(1) of the Act, “ … shall upon the recommendation of a
Rehabilitation Officer … order such person to undergo treatment at a
Rehabilitation Centre … ; or order such
person to undergo supervision”. It is
therefore mandatory for the Magistrate to make an order either under section
6(1)(a) or (b) of the Act upon the recommendation of the Rehabilitation
Officer. The existence of grounds upon
which a Magistrate shall make the order is subject to judicial review as the
test is objective. It follows that the
grounds upon which an order made by a Magistrate under section 6(1) of the Act
can be impugned are when there is a failure to comply with the three
requirements as set out earlier. Thus
the language of section 6(1) of the Act itself contemplates the use of a writ
of habeas corpus only for the purpose of challenging the condition of a person
as a drug dependant. This satisfies the
social requirement of issuing a writ of habeas corpus in cases of this
nature. It is perhaps pertinent to add
that in Rajasegaran v Pusat Pemulihan
Serenti Raub & Anor (2000) 3 MLJ 529 the High Court acted under
Paragraph 1 of the Schedule to the Courts of Judicature Act 1964 to substitute
an order made under section 6(1)(a) of the Act to one under section 6(1)(b) of
the Act.
It is now apposite to consider the two objections raised by
learned counsel.
(a) Whether
section 399(1) applies to an inquiry conducted by the Magistrate in making an
order under section 6(1) of the Act.
Learned counsel contended that the
report of the medical officer ought to have been served on the Appellant
pursuant to section 399(1). In reply the
learned Deputy Public Prosecutor referred to the case of Ang Gin Lee v PP (1991) 1 MLJ 498 and said that section 399(1)
applies to only inquiries conducted under the Criminal Procedure Code.
In the light of the objection raised
it is necessary to consider section 399(1).
It reads as follows:
“Any document purporting to be a
report under the hand of any of the person mentioned in subsection (2) of this
section upon any person, matter or thing examined or analysed by him or any
document purporting to be a report under the hand of the Registrar of Criminals
upon any matter or thing relating to finger impressions submitted to him for
report may be given in evidence in any inquiry, trial or other proceeding under
this Code unless such person or Registrar shall be required to attend as a
witness –
(a)
by
the Court; or
(b)
by
the accused, in which case the accused shall give notice to the Public
Prosecutor not less than three clear days before the commencement of the trial:
Provided always that in any case in
which the Public Prosecutor intends to give in evidence any such report he
shall deliver a copy thereof to the accused not less than ten clear days before
the commencement of the trial.”
The
proceeding conducted under section 6(1) of the Act is no doubt an inquiry. The validity of the objection raised by
learned counsel would thus depend on whether this inquiry comes within the
scope of section 399(1). The
applicability of section 399(1) to a particular proceeding is made patently
clear by its explicit language. It
states that a report “ … may be given in evidence in any inquiry, trial or
other proceeding under this Code … .” The
words “ … or other proceeding … ” are followed by the words “ … under this
Code”. The question for determination is
whether this qualification is confined in its operation to just “ … or other
proceeding … ” or also includes “ … any inquiry, trial … ”. The rule of construction applied in cases
such as PP v Ottavio Quattrocchi (2003)
1 MLJ 225 and Prithipal Singh v Datuk
Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Intervener) (1993)
3 MLJ 336 makes it clear that the absence of a comma before the words “ … or
other proceeding … ” means that the words “ … under this Code … ” must be
construed conjunctively as applying to all the three categories of proceedings
mentioned. Section 399(1) thus applies
to only inquiries, trials or other proceedings under the Criminal Procedure
Code. The inquiry conducted by the
Magistrate pursuant to section 6(1) of the Act is one conducted under the
provisions of the Act and not the Criminal Procedure Code. Section 399(1) thus has no application to
such an inquiry.
(b) Whether
the previous history of the Appellant should be revealed to the Magistrate in
the recommendation of the Rehabilitation Officer.
The objection of learned counsel to
the previous history of the Appellant being revealed to the Magistrate in the
recommendation of the Rehabilitation Officer stems from the repeal of section
6(4) of the Act as enacted pursuant to which the Magistrate, in making an order
under section 6(1) is to have regard to the circumstances of the case, and the
character, antecedents, age, health, education, employment, family and other
circumstances of the person against whom the order is proposed to be made. Thus, learned counsel contended, the repeal
of this provision means that such information should not be revealed to the
Magistrate.
It is clear that the recommendation of
a Rehabilitation Officer plays a dominant role in the exercise of powers by a
Magistrate under section 6(1) of the Act.
It is the recommendation of a Rehabilitation Officer that empowers a
Magistrate to decide whether to order a person to undergo treatment at a
Rehabilitation Centre under section 6(1)(a) of the Act or to order such person
to undergo supervision by an officer under section 6(1)(b) of the Act. Such a decision cannot be made on a mere
recommendation of the Rehabilitation Officer that a certain order must be
made. As Black’s Law Dictionary 6th Ed in defining the phrase
“letter of recommendation” says:
“A writing whereby one person
certifies concerning another that he is of good character, solvent, possessed
of commercial credit, skilled in his trade or profession, or otherwise worthy
of trust, aid, or employment. It may be
addressed to an individual or to whom it may concern, and is designed to aid
the person commended in obtaining credit, employment, etc.”
It
follows that a recommendation must be supported with reasons. This is necessary as it is only with reasons
that a Magistrate will be able to decide whether to make the order as
recommended, or, under the alternative limb of section 6(1) of the Act. The repeal of section 6(3) and (4) as
originally enacted does not alter this requirement. Under the law as it then stood the previous
history of a person will be contained in a report of the Rehabilitation Officer
which the Magistrate must consider before making the appropriate order after
having heard the representation of the person, if any. Under the law as it now stands the Magistrate
acts on the recommendation of the Rehabilitation Officer. It is the duty of the Magistrate to ensure
that the recommendation of the Rehabilitation Officer is justified in order to
enable him to weigh it with the representation, if any, of the person against
whom the order is sought to be made. Thus the repeal of section 6(4) of the Act
as enacted does not alter the duty of the Rehabilitation Officer to provide relevant
information to the Magistrate in support of his recommendation. It must, however, be observed that it is the
absence of the previous history of a person in the recommendation of the
Rehabilitation Officer that must be the subject-matter of complaint, and not
its presence.
The objections raised by learned
counsel have a bearing on the right of representation and are therefore
relevant. However, they had no
merit. In the upshot we dismissed the
appeal.
Date:
Sgd
( DATO' AUGUSTINE PAUL )
Judge
Federal Court
Counsel:
For the Appellant: RSN
Rayer
(
Rafael Prabakaran Abdullah with him )
Solicitors: Messrs
R Nethaji Rayer & Co
Advocates
& Solicitors
No
20-E, Top Floor
10200
Pulau Pinang
For the Respondent: Najib
Zakaria
Pejabat
Penasihat Undang-Undang Kementerian Keselamatan Dalam Negeri
Pusat
Pentadbiran Kerajaan Persekutuan
62546
Putrajaya