For the Applicant En. Selvam Shanmugam & En. Surenthiran Raj [Messrs Selvam Shanmugam & Partners] For the Respondent … Pn Norazlin Binti Mohamad Yusoff & En. Muhamad Safuan Bin Azhar Deputy Public Prosecutors [Attorney’s General Chambers]

IN THE HIGH COURT OF MALAYA IN KUALA LUMPUR IN THE FEDERAL TERRITORY CRIMINAL APPLICATION NO: WA-44-203-10/2020 In the Matter of an application by Mohd Rosli bin Ani [No.K/P: 621022- 10-7565] for directions in respect of Habeas Corpus; And In the Matter of a Detention Order dated 14.05.2019; And In the Matter of Articles 5(1), 5(2), 5(3), 8(1) and Article 151 of the Federal Constitution; And In the Matter of Section 7(1) and Section 9 of the Whistleblower Protection Act 2010 (“WPA”); And In the Matter of Section 15B (ba), 19A of the Prevention of Crime Act 1959 [Act 297] And i In the Matter of Section 365 (1) of the Criminal Procedure Code BETWEEN MOHD ROSLI BIN ANI [NO.K/P: 621022-10-7565] .» APPLICANT (A) [1] [2] AND PENGERUSI, LEMBAGA PENCEGAHAN JENAYAH PENGUASA, PUSAT PEMULIHAN KHAS BENTONG, PAHANG KERAJAAN MALAYSIA .. .RESPONDENTS GROUNDS OF DECISION INTRODUCTION This is an application by the Applicant for a Writ of Habeas Corpus be issued for his release in respect of a Detention Order dated 14.05.2020 by the First Respondent under sub-section 19A[1] Prevention of Crime Act 1959. The reasons cited inter alia, for the application is for non-compliance with the Federal Constitution, the Prevention of Crime Act 1959 and the Whistleblower Protection Act 2010. (B) [3] [4] [5] [6] [7] CHRONOLOGY OF EVENTS On 17.03.2020, the Applicant was arrested at 3.10p.m., in connection with Travers police station police report No.002187/20. On 18.03.2020, a warrant of detention against the Applicant for a period of 21 days commencing from 18.03.2020 was issued by the Magistrates court pursuant to section 4(1)(a) Prevention of Crime Act 1959 (“POCA’). On 22.03.2020 the Applicant's file was referred to the Deputy Public Prosecutor (DPP) pursuant to section 3(1A) POCA. On 27.03.2020 a written statement from the DPP was obtained. On 2.04.2020 ASP Rethinam a/l Rajamanickam serves a complete report of investigation of the Applicant’s case to Nor Jamilah Shuhadah binti Tohet, the Inquiry Officer, pursuant to section 4A POCA. On 7.04.2020 a warrant of detention is issued to detain the Applicant for a period of 38 days commencing 7.04.2020 by the Magistrates court pursuant to section 4(2) (a) POCA. [8] [9] [10] [11] [12] On 8.04.2020 ASP Rethinam serves a complete report of investigation of the Applicant's case to the Crime Prevention Board pursuant to section 4A POCA. On 13.04.2020, the Inquiry Officer conducts an inquiry in respect of the Applicant pursuant to section 9 POCA. On 5.05.2020, the Inquiry Officer serves a report and findings of the case to the Crime Prevention Board pursuant to section 10(2) POCA. On 14.05.2020 the Crime Prevention Board met to consider the complete report and findings of the case against the Applicant pursuant to section 10(3) POCA. On the same day, the Crime Prevention Board confirms the findings of the Inquiry Officer pursuant to section 10(3)(b) POCA. On the same day the Crime Prevention Board informs the Deputy Registrar of Crime to register the name of the Applicant in the Register pursuant to section 12 POCA. On 14.05.2020, the Crime Prevention Board meets and is satisfied that the Applicant is part of a team of two persons or more who in association with each other and in pursuance of criminal activity, 4 [13] [14] (C) [15] falls under the category of registrable persons under paragraph 2, Part |, First Schedule POCA pursuant to section 10(3) (b) POCA. The criminal activity is that the Applicant is a member of a syndicate involved in arranging for accommodation, offices and employment for Bangladesh citizens smuggled into Malaysia as well as obtaining Temporary Work Passes and tourist visas by hacking the Malaysian Immigration System (my IMMs). On 14.05.2020 the Crime Prevention Board issues a detention order against the Applicant for a period of two (2) years commencing 14.05.2020 pursuant to section 19A POCA. WRIT OF HABEAS CORPUS (JURISDICTION, PROCEDURE AND JURIDICAL BASIS) The courts power and jurisdiction to entertain applications for habeas corpus emanates from the inherent powers granted to the superior courts under the Schedule to the Courts of Judicature Act 1964 (Act 91) and the provisions of Chapter VIII of Part 2 of the Specific Relief Act 1950 (Act 137). [16] The relevant procedure relating to judicial review is governed by O. [17] [18] [19] i 53 of the Rules of Court 2012. The rudimentary origins of the writ of habeas corpus can be traced back to the Magna Carta of King John which granted all free men immunity from illegal imprisonment although the co-relation between the Magna Carta and habeas corpus only took form with the enactment of the Habeas Corpus Acts of 1640 and 1679 in England. The founding fathers of America ensured that the concept and rights associated with the writ of habeas corpus featured prominently in the American Constitution. At home, the Federal Court in Chua Kian Voon v. Menteri Dalam Negeri & Ors [2020] 1 CLJ 747 had occasion to reach back into the mists of time and trace the history of the writ in an illuminating expose as follows: . [7] The term habeas corpus refers most commonly to a specific writ ~ known in full'as “habeas corpus ad subjiciendum ", a prerogative writ ordering that a prisoner be brought to the court so that it can be determined whether or not the prisoner is being imprisoned lawfully. Put simply, a writ of habeas corpus is a challenge to the legality of a prisoner's detention. The words “habeas corpus " is a Latin law term. Its literal English translation is: "you have the body". [8] The writ of habeas corpus, described by Blackstone as the "great and efficacious writ, in all manner of illegal confinement" (see: William Blackstone's Commentaries on the Law of England, 1st edn., 1765, vol. 3 at p. 131), functions as a judicial remedy aimed at preventing the arbitrary use of Executive power to imprison individuals unlawfully. The use of habeas corpus has roots in English common law dating back to the fourteenth century. It was first expressed in the Magna Carta of 1215, which stated, "No free man shall be seized, or imprisoned, or disseized, or outlawed, or exiled, or injured in any way, nor we will enter on him or send against him except by the lawful judgment of his peers, or by the law of the land". [9] The habeas corpus remedy is recognised in the countries of the Anglo-American legal system but is generally not found in civil-law countries, although some of them have adopted comparable procedures. [10] In Malaysia, the Federal Constitution makes no explicit provisions for the writ of habeas corpus. The legal basis for the writ of habeas corpus in Malaysia is art. 5(2) of the constitution and ss. 23, 28, and 365 of the Criminal Procedure Code. In addition, there are statutory provisions in s. 25(2) of the Courts of Judicature Act 1964 (along with para. 1 of the Schedule) (see: Munusamy v. Subramaniam & Ors [1969] 1 LNS 112; [1969] 2 MLJ 108). [11] The writ of habeas corpus is the fundamental instrument for safeguarding individuals against arbitrary and unlawful state action. In this connection, the observation made by Choor Singh J in Re Onkar Shrian [1969] 1 LNS 155; [1970] 1 MLJ 28 as embraced by this court in Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ.81, where the judgment of Choor Singh J in Re Onkar (supra) was quoted as below is particularly instructive: Where the personal freedom of an individual is wrongly interfered with by another, the release of the former from illegal detention may be effected by habeas corpus. The illegal detention of a subject, that is a detention or imprisonment which is incapable of legal justification, is the basis of jurisdiction in habeas corpus. [12] The learned judge in Nasharuddin Nasir (supra) also quoted with approval the following passage in Short & Mellor‘s Practice on the Crown Side of the King’s Bench Division, 2nd edn. at p. 309: The primary object of the writ is for the purpose of bringing the body into court, and therefore, if that is impossible, the writ ought not to issue. It should not be used punitively but only remedially. In R v. Barnado [1892] AC 316, Lord Halsbury said that he could not agree to the proposition that if a court is satisfied that illegal detention has ceased before application for the writ has been made, nevertheless the writ might issue in order to vindicate the authority of the court against a person who has once, though not at the time of the issue of the writ, unlawfully detained another or wrongfully parted with the custody of another. In this the rest of the court agreed. [13] The writ of habeas corpus is a powerful remedy in the sense that. it is not discretionary. It is distinct from the prerogative writs such as those of certiorari, prohibition and mandamus. The writ of habeas corpus must be issued if the court finds that the detenu is illegally or improperly detained. In Yeap Hock Seng @ Ah Seng v. Minister of Home Affairs, Malaysia [1975] 2 MLJ 279, Abdoolcader J (as His Lordship then was) had this to say at p. 281: The grant of habeas corpus is as of right and not in the discretion of the court as in the case of such extraordinary legal remedies as certiorari, prohibition and mandamus. It is a writ of right against which no privilege of person or place can be of any avail (R v. Pell and Offly 84 All ER 720). The heavy musketry of the law will always be brought to bear upon any suggestion of unlawful invasion or infringement of the personal liberty of an individual in the form of habeas corpus and kindred orders where necessary to grant relief when warranted. It was aptly put in the American case of State ex rel Evans v. Broaddus 245 Mo 123 140 that at least in times of peace every human power must | give way to the writ of habeas corpus and no prison door is stout enough to stand in its way. Where a detainee challenges his detention as being illegal, the burden lies on the detaining authority to show that the detention is legal. In SK Takaliswaran Krishnan v. Menteri Dalam Negeri, Malaysia [2009] 6 CLJ 705, Gopal Sri Ram FCJ held as follows at p. 710: It is settled law that on an application for habeas corpus the burden of satisfying the court that the detention is lawful lies throughout on the detaining authority. See, Chng Suan Tze v. The Minister of Home Affairs & Ors and Other Appeals [1988] 1 LNS 162. In Mohinuddin v. District Magistrate, Beed AIR [1987] SC 1977, the Supreme Court of 10 India observed as follows in the context of art. 221 of the Indian Constitution from which is drawn our art. 151: It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the Court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This Court on more occasions than one has dealt with the question and it is now well-settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22(5). [15] After the party who made the detention succeeded in proving that the detention is in accordance with the law, the onus then shifts to the detainee, especially if he alleges bad faith (see: Karam Singh v. Menteri Hal Ehwal Dalam Negeri Malaysia [1969] 1 LNS 65; [1969] 2 MLJ 129). [16] A detainee is entitled to take advantage of any technical defect which has the effect of invalidating the detention (see: Ng Hong Choon v. Timbalan Menteri Hal Ehwal Dalam Negeri & Anor [1994] 4 CLJ 47). 11 Even if the detention was originally made in the exercise of a legal power, the said detention order [may] subsequently becomes invalid over a passage of time (see: Lui Ah Yong v. Superintendent of Prisons, Penang [1975] 1 LNS 91; [1977] 2 MLJ 226; Jayaganesan Ramakrishnan v. Timbalan Menteri Dalam Negeri Malaysia & Ors [2019] 9 CLUJ 725; [2019] 5 AMR 509; Vishnu Telagaran v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 9 CLJ 177)” (D) ANALYSIS AND FINDINGS [20] Based on a reading of the submissions and upon hearing oral submissions of parties, the following issues that arise for consideration and determination are as follows: i) Whether the affidavit of Mohd Norsharryyadi bin Shaari is in contravention of section 367 of the Criminal Procedure Code (CPC) and ought not to be considered? ; ii) | Whether failure of the Respondents in producing the notes of proceedings of the Advisory Board constitutes a non- compliance with procedure under the POCA? ; iii) Is the Applicant a whistleblower within the meaning of the Whistleblower Protection Act 2010? ; and 12 [21] [22] iv) | Whether the failure of the Chairman of the Prevention of Crime Board to take into the account the evidence and failure to address the mind to the relevant facts of the detention constitutes wrongful detention under the POCA? Whether the affidavit of Mohd Norsharryyadi bin Shaari is in contravention of section 367 of the Criminal Procedure Code (CPC) and ought not to be considered? The application by the Applicant is supported by an affidavit filed by a person named Mohd Norsharryyadi bin Shaari (“Norsharryadi”). The Respondents have taken by way of a preliminary objection that the said affidavit ought not to be considered as it is in contravention of section 367 of the CPC which reads: “367. Affidavit, by whom signed The affidavit required by section 366 shall be made by the person detained or alleged to be detained unless it be shown that by reason of restraint or coercion or other sufficient cause he is unable to make it, in which case it shall be made by some other person.” 13 [23] [24] [25] [26] Section 367 is housed in Chapter XXXVI of the CPC which deals with directions of the nature of a Habeas Corpus. Section 367 mandates that an affidavit in support required by section 366 be made by the detenu unless by reason of him being restrained or coerced or for other sufficient cause, he is unable to make it. There are exceptions however, and the rationale for the exceptions are quite obvious. It is designed to cover situations where for example, the lawyer or a Commissioner for Oaths is unable to gain access to see the detenu in the detention centre for some reason or other or where the detenu has been coerced into not making the affidavit. One good example that readily comes to mind perhaps would be caused by the present Covid 19 pandemic where access by a lawyer to take instructions or by a Commissioner for Oaths to attend at the detention centre is not possible because of the possibility of an outbreak of disease or possible infection. 14 [27] [28] [29] [30] The categories are not closed however as the term “for other sufficient cause’ indicates. In the instant case, no sufficient reasons have been advanced as to why Norsyarriyadi had to affirm the affidavit. It can be appreciated that the reason Norsyarriyadi affirmed the affidavit was to merely support the application based upon the affidavit filed by the Applicant. That said however, the provisions of section 367 are quite categorical in nature and based upon the maxim that Parliament does not legislate in vain, the true intention was for a detenu in a Habeas Corpus application to himself file whatever affidavits that may support the application. See also Khaeryll Benjamin Ibrahim v Ketua Polis Negara & Ors [2010] 6 CLJ 777. There are no exceptions to the section that apply on the facts of this case. Therefore, the clear provision of section 376 operates to exclude this court form considering the affidavit filed by Norsyarriyadi. 15 [31] [32] [33] [34] Whether failure of the Respondents in producing the notes of proceedings of the Advisory Board constitutes a _non- compliance with procedure under the POCA? The Applicant requested for the notes of proceedings of the Advisory Board taken during the representation hearing to be produced because it would show that the Applicant was entitled to immunity from being subjected to detention by reason of being a whistleblower within the meaning of the Whistleblower Protection Act 2010. This was despite the fact that the Chairman of the Advisory Board in her affidavit in reply stated that there was never any disclosure made at the hearing of the representation by the two witnesses from the Malaysian Anti-Corruption Commission (MACC) that the Applicant was a whistleblower. The Respondents claimed that they were exempted from production of the notes based on section 21A of the Prevention of Crime Act 1959 (“POCA”) and Article 151(3) of the Federal Constitution (“FC”). Section 21A POCA reads: “Disclosure of information 16 [35] 21A. Nothing is this Act or in any regulations made under this Act shall require the Board, any member of the Board, any Inquiry Officer or any public servant to disclose facts or to produce documents which he considers— (a) to be against the public interest to disclose or produce; or (b) would compromise the protection of a witness, or his family or associates.” Article 151(3) of the FC reads: “Restrictions on preventive detention 151. (1) Where any law or ordinance made or promulgated in pursuance of this Part provides for preventive detention— (3) This Article does not require any authority to disclose facts whose disclosure would in its opinion be against the national interest.” 17 [36] The Applicant in reply however cited the case of Mohammad [37] [38] [39] Azanul Haqimi Tuan Ahmad Azahari v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 8 CLJ 465 in support. That case held that given the conflicting evidence adduced by.the appellant and the respondents as to what actually transpired at the hearing, with the appellant alleging that he was denied a second postponement by the Board thereby denying him an opportunity to engage a counsel and the respondents stating that it was the appellant himself who had opted to proceed without counsel, the refusal by the respondents to produce the minutes of the Board hearing as requested amounted to a withholding of material evidence such as to call for the invocation of an adverse inference against the respondents. In the premises, the Habeas Corpus application was allowed on appeal as the Federal Court held that the inference most favourable to the detenu in the light of that contradiction ought to be adopted. The Respondents however sought to distinguish the case based upon the facts. It was pointed out that the case turned upon the fact that the contradiction emerged from the affidavit of the secretary of 18 [40] [41] [42] the advisory board where he initially averred that the applicant had requested for an adjournment of the hearing of the representation in order to engage counsel whereas he later averred that the applicant had never requested for an adjournment. This contradiction which was never resolved through the filing of a corrective affidavit, impinged upon the applicant’s right to counsel to represent him and raised the inference that the applicant was prevented from making an effective representation. | am therefore disposed to favour the submission of learned counsel for the Respondent's that as the instant case is one where the contradiction exists between the Applicant and the Respondent's in respect of whether there was evidence given at the representation that the Applicant was a whistleblower or not, the facts in Mohammad Azanul Haqimi are distinguishable. It is natural that there will always be a conflict of evidence between an applicant who seeks to secure his release from detention and the detaining authority in respect of material facts. See Su Yu Min v Ketua Polis Negara & Ors [2005] 3 CLJ 875. 19 [43] [44] [45] iii) [46] In Mohammad Azanul Haqimi, the contradiction stemmed from the affidavit of the respondent itself and unless the notes of proceedings are produced for inspection, that conflict cannot be resolved. Since the notes of proceedings were not produced, the Federal Court held that the adverse presumption should apply against the respondent. | therefore find that the case of Mohammad Azanul Hagimi Tuan Ahmad Azahari v Timbalan Menteri Dalam Negeri, Malaysia & Ors (supra) does not apply to the instant case on the facts and that no adverse presumption is invoked against the Respondent's for failure to supply the notes of proceedings. Consequently, there was no procedural non-compliance for failure to supply the notes of proceedings of the Advisory Board. Is the Applicant_a_ whistleblower within the meaning of the Whistleblower Protection Act 2010? The Applicant contended that during the hearing of his representation before the Advisory Board on 14.07.2020, two witnesses from the Malaysian Anti-Corruption Commission (MACC), namely, Mohd Khairi bin Ali Nordin and Rosmizam bin Rahmat gave 20 [47] [48] [49] [50] evidence regarding the involvement of the Applicant in a project carried out by the MACC code-named OP5 CD. It was also contended by the Applicant that the MACC had used his premises for their use in the said project. More specifically, it was contended that the two MACC witnesses abovenamed had given evidence that the Applicant was an informer and played an integral part in the operation. Consequently, the Applicant claimed that he was a whistle blower within the meaning of the Whistleblower Protection Act 2010 and thus entitled to immunity from criminal action and therefore to preventive detention. The affidavits filed by the Respondents however clearly stated that the Applicant was not a whistleblower. These affidavits were affirmed by the Chairman of the Advisory Board, Pn Aslina binte Joned, the Inquiry Officer, Pn Nor Jamilah Shuhadah binti Tohet and the Investigating Officer, ASP Rethinamani a/l Rajamanickam, the 21 [51] [52] [53] latter having stated that the Applicant had never at any time informed him that he was a whistleblower. Given this conflict of evidence and notwithstanding my finding that the case of Mohammad Azanul Hagqimi did not apply on the facts, | asked learned Federal counsel whether he was prepared to furnish the notes of proceedings of the hearing of the representation in order to ascertain whether or not the two MACC officers did in fact testify to the fact that the Applicant was a whistleblower. As earlier indicated, the Respondent took the position that they would not furnish the notes of proceedings because of the immunity accorded to them under section 21A of POCA and Article 151(3) of the FC. | then asked the Respondents whether in the alternative they would be prepared to let the court view the relevant portions of the two MACC witnesses testimony while editing and blocking out the rest of the evidence from view in the interests of security. Learned counsel for the Respondents replied that he would seek instructions on the matter. 22 [54] [55] [56] [57] As it transpired, the Respondent’s by way of letter to the court maintained their position that the notes of proceedings would not be furnished even under the circumscribed manner suggested by the court. Learned counsel for the Applicant then agreed to subpoena the two MACC witnesses to be orally examined in court on oath instead. On the day of the hearing however, the two MACC officers gave sworn testimony that they did not testify that the Applicant was a whistleblower at the hearing before the Advisory Board. This puts to rest beyond question the contention that the Applicant was a whistleblower. Learned counsel for the Applicant thereafter also accepted the fact that the Applicant was not a whistleblower. Is the Applicant_a_ person related to or associated with the whistleblower and if so, entitled to immunity from criminal action including preventive detention? Learned counsel for the Applicant however, next submitted that although the Applicant was not a whistleblower, he is a person 23 [58] related to or associated with the whistleblower and thereby also entitled to immunity from preventive detention by virtue of section 7(1) (c) of the Whistleblower Protection Act 2010. That section reads as follows: “ 7. Whistleblower protection (1) A whistleblower shall, upon receipt of the disclosure of improper conduct by any enforcement agency under section 6, be conferred with whistleblower protection under this Act as follows: (a) protection of confidential information; (b) immunity from civil and criminal action; and (c) protection against detrimental action, and for the purpose of paragraph (c), the protection shall be extended to any person related to or associated with the whistleblower. (2) A whistleblower protection conferred under this section is not limited or affected in the event that the disclosure of improper conduct does not lead to any disciplinary action or prosecution of the person against whom the disclosure of improper conduct has been made.” 24 [59] [60] [61] “Detrimental action” is defined in section 2 to include: (a) action causing injury, loss or damage; (b) intimidation or harassment; (c) interference with the lawful employment or livelihood of any person, including discrimination, discharge, demotion, suspension, disadvantage, termination or adverse treatment in relation to a person's employment, career, profession, trade or business or the taking of disciplinary action; and (d) a threat to take any of the actions referred to in paragraphs (a) to (c). Learned counsel for the Applicant thus formulated the argument that the act of detaining the Applicant amounted to interference with his lawful employment or livelihood because he was unable to continue in employment within the meaning of section 2(c). The Applicant therefore contended that he was entitled to protection from detrimental action that immunized him from criminal action i.e. preventive detention under the POCA. 25 [62] [63] [64] [65] Learned Federal counsel on the other hand, submitted that a person related to or associated with the whistleblower has other remedies provided for and available namely, under sections 10, 15 and 14 of the Whistleblower Protection Act 2010. However such person is not entitled to the protection under section 7(1)(b) of the Whistleblower Protection Act 2010 only made available to a whistleblower. A cursory reading of section 7(1) of the Whistleblower Protection Act 2010 would indicate that while a person who is a whistleblower is entitled to claim the protection accorded under paragraphs (a), (b) and (c), a person related to or associated with the whistleblower is only entitled to protection under paragraph (c). This is also evident from a literal interpretation of the section. Where the intention of the legislature is unambiguous and can be discerned from a literal interpretation, or where the legislative intent is clear from a literal reading, the court ought not to look for a different meaning and need not call into aid the other rules of construction of statutes. See Public Prosecutor v Tan Tatt Eek [2005] 2 MLJ 685. 26 [66] Notwithstanding this and to place the matter beyond argument, the clear intent behind section 7 can also be gathered from the Hansard of the Second and Third Reading of the proposed legislation at the time on 20.4.2010 as explained by the then Law Minister as follows: “Fasal 7 adalah bertujuan untuk memperuntukkan bahawa seseorang pemberi maklumat akan dilindungi dari masa sesuatu pendedahan kelakuan tidak wajar yang diterima oleh mana-mana agensi penguatkuasaan. Bentuk perlindungan yang diberikan adalah perlindungan maklumat sulit, kekebalan daripada tindakan sivil dan jenayah dan perlindungan kepada tindakan yang memudaratkan. Perlindungan’ terhadap tindakan yang memudaratkan juga diperluas kepada mana-mana orang yang mempunyai hubungan atau kaitan dengan pemberi maklumat. Makiumat utama perlindungan diberikan kepada pemberi maklumat jalah untuk menggalakkan pemberi maklumat tampil ke hadapan untuk membuat pendedahan kelakuan tidak wajar dengan melindunginya daripada tindakan balas yang menjejaskan dan yang boleh diambil terhadap orang yang diadukan.”(Emphasis added) 27 [67] [68] [69] [70] Hansard can now be resorted to as an aid to statutory interpretation. See Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42; [1992] 3 WLR 1032 and Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345. The words in bold from the extract of the Hansard above were clearly meant to convey to the House that the protection from detrimental action was also extended to a person related to or associated with the whistleblower. This naturally means that such person is afforded the same protection as the whistleblower but the speech extract in Hansard contained nothing to indicate that it was also meant to extend the area of protection to a person related to or associated with the whistleblower to include immunity from criminal action. It is clear also that there was to be a distinction between a whistleblower and a person related to or associated with the whistleblower with regard to the immunity available by employment of the word “and” or “juga” in the words in bold appearing in the Hansard. 28 [71] [72] [73] [74] [75] So while the whistleblower is accorded immunity from protection of confidential information, immunity from civil and criminal action and protection against detrimental action, a person related to or associated with the whistleblower is only entitled to protection against detrimental action which has been defined in section 2 (supra). Therefore it can reasonably and safely be concluded that a person related to or associated with the whistleblower is only entitled to protection against detrimental action which has been defined in section 2 (supra). It does not however grant him protection of confidential information and immunity from civil and criminal action under section 7(1)(a) and (b). Not to be outdone however, learned counsel for the Applicant then focused on the meaning of interference with the lawful employment or livelihood of any person within the meaning of section 2. He formulated the argument that by subjecting the Applicant to preventive detention, he is unable to pursue gainful employment. 29 [76] [77] [78] Once again resorting to the basic principles of statutory interpretation notwithstanding the clear literal meaning, it is evident that the phrase “interference with the lawful employment or livelihood of a person” must be read ejusdem generis or of the same kind. The ejusdem generis rule is that where general words follow specific words, such general words take their meaning from the specific words and the meaning of the general words is restricted to the same genus as the specific words. See Jambatan Merah Sdn Bhd v Public Bank Berhad [2015] MLJU 1208. The kind of action considered to be detrimental according to section 2 includes discrimination, discharge, demotion, suspension, disadvantage, termination or adverse treatment in relation to a person's employment, career, profession, trade or business or the taking of disciplinary action. © Reading paragraph (c) to section 2 by resort to the ejusdem generis rule and in a harmonious fashion, as well as literally, it can safely be concluded that the action considered detrimental is any discriminatory action that emanates from an employer against an 30 [79] [80] [81] employee whilst the latter is in employment at the material time i.e. employment related, and that action is as a result of that person being related to or associated with the whistleblower. In other words, it is meant to strike against any discriminatory action designed to result in such a person being subject to disciplinary action during the course of employment which includes termination of service of employment while such person is currently employed. An example would be the employer commencing disciplinary proceedings against a serving employee by issuing a letter of show cause, convening a domestic inquiry and consequent actions like suspension and demotion including termination of employment. The section is not designed for nor intended to apply to such a person detained under preventive laws. It is self-evident and a matter of common sense that a person detained under preventive detention laws is unable to pursue his gainful employment by reason of physical impossibility but this is not the situation envisaged by the legislature when this provision was enacted. 31 [82] [83] [84] In other words, the argument that by subjecting a person to preventive detention, a person related to or associated with the whistleblower suffers from detrimental action because he is unable to work is fallacious. Therefore, the Applicant was not subject to detrimental action within the meaning of section 2 of the Whistleblower Protection Act 2010. Are there any other remedies that are available to a person related to or associated with the whistleblower? Learned Senior Federal counsel (SFC) for the Respondents submitted that these remedies are contained in sections 10, 14 and 15 of the Whistleblower Protection Act 2010 set out herein under as follows. “10. Protection against detrimental action (1) No person shall take detrimental action against a whistleblower or any person related to or associated with the whistleblower in reprisal for a disclosure of improper conduct. (2) A whistleblower may make a complaint to any enforcement . agency of any detrimental action committed by any person against 32 the whistleblower or any person related to or associated with the whistleblower. (3) A person is deemed to take detrimental action against a whistleblower or any person related to or associated with the whistleblower if:- (a) the person takes or threatens to take the detrimental action because:- (i) a whistleblower has made a disclosure of improper conduct; or (ii) the person believes that a whistleblower has made or intends to make a disclosure of improper conduct; or (b) the person incites or permits another person to take or threaten to take the detrimental action for any reason under subparagraph (a)(i) or (ii). (4) Nothing in this section shall affect the whistleblower protection to an employee in the private body either at law or under a collective agreement or employment contract. (5) No person acting or purporting to act on behalf of any public body or private body shall:- (a) terminate a contract; 33 [85] (b) withhold a payment that is due and payable under a contract; or (c) refuse to enter into a subsequent contract, solely for the reason that a party to the contract or an employee or employer of a party to the contract has made a disclosure of improper conduct to any enforcement agency relating to the public body or private body. (6) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding fifteen years or to both. (7) In any proceedings, it lies on the defendant to prove that the detrimental action shown to be taken against a whistleblower or any person related to or associated with the whistleblower is not in reprisal for a disclosure of improper conduct.” Section 10 as is evident, relates to matters of detrimental action being either taken or threatened to be taken against a whistleblower or any person related to or associated with the whistleblower in situations where the whistleblower has made a disclosure of improper conduct. 34 [86] [87] [88] [89] Sub-section 4 relates to rights to whistleblower protection to an employee in the private body either at law or under a collective agreement or employment contract being preserved notwithstanding anything in the section. Sub-section 5 relates to restraint upon a person acting or purporting to act on behalf of any public body or private body seeking to terminate, withhold a payment due under a contract or refuse to enter into a subsequent contract by reason solely on account of the fact that a party to the contract or an employee or employer of a party to the contract has made a disclosure of improper conduct to any enforcement agency. Penalties for contravention are stipulated in sub-section 6 and include fine or imprisonment or both. A reading of the section as a whole gives the clear indication that the subject matter relates to detrimental action concerning employment and matters of a contractual nature. “14. Investigation into complaints of detrimental action and finding of enforcement agency after investigation 35 (1) Where any enforcement agency receives a complaint of detrimental action, the enforcement agency shail commence investigation into the complaint of detrimental action. (2) Where the enforcement agency has completed the investigation into any complaint of detrimental action under this Act, the enforcement agency shall record its finding and compile its report and investigation papers and refer the matter to the Public Prosecutor and if the investigation reveals that:- (a) the complaint is not substantiated, the enforcement agency shall inform the whistleblower; (b) the complaint constitutes a disciplinary offence, the enforcement agency shall make a recommendation to the appropriate disciplinary authority or other appropriate authority in the case of a public body or to the employer or other appropriate person in the case of a private body to initiate disciplinary proceedings or to take such steps as it deems appropriate against the officer of the public body or the officer of the private body who had taken the detrimental action against the whistleblower; or (c) the complaint constitutes a criminal offence and in the case where:- 36 (i) the Public Prosecutor decides to prosecute, the enforcement agency shall obtain from the Public Prosecutor periodical reporting until the matter has been duly disposed of; or (i) the Public Prosecutor decides not to prosecute, the enforcement agency shall inform the whistleblower. (3) Where the enforcement agency has referred a matter under paragraph (2)(b), the appropriate disciplinary authority or other appropriate authority or the employer or other appropriate person shall inform the enforcement agency:- (a) the steps taken, or intended to be taken, to give effect to the finding and recommendation within six months from the date of receipt of the finding and recommendation; or (b) the reason for not initiating any disciplinary proceedings or for not taking the steps recommended by the enforcement agency within fourteen days of making such decision, as the case may be. (4) If, after considering any information provided by the appropriate disciplinary authority or other appropriate authority or employer or other appropriate person, it appears to the enforcement agency that insufficient steps or no action has been taken to give effect to the finding or recommendation within a reasonable time, the 37 [90] enforcement agency may report to the Minister on the investigation, finding, recommendation and the response to the finding and recommendation. (5) Where a charge is preferred by the Public Prosecutor, any evidence obtained by the enforcement agency under this Act may, notwithstanding the provisions of any other written law to the contrary but subject to section 8, be used for the purpose of criminal proceedings. (6) The enforcement agency shall inform the whistleblower of the result of the investigation and any action taken by the appropriate disciplinary authority or the other appropriate authority, the employer or the other appropriate person or the Public Prosecutor, as the case may be.” Section 14 relates to complaints and sanctions with regard to disciplinary action taken against a whistleblower by an officer of a public body or the officer of a private body who had taken the detrimental action against the whistleblower. The conduct complained of may give rise to the offender being subject to prosecution. “15. Remedies 38 (1) Upon request made by a whistleblower:- (a) within three months after being informed by the enforcement agency under subsection 14(6) that detrimental action in reprisal for a disclosure of improper conduct has been taken against him; or (b) at any time that the whistleblower fears that detrimental action in reprisal for a disclosure of improper conduct may be taken against him, the enforcement agency may seek the following remedies from the court: (A) damages or compensation; (B) injunction; or (C) any other relief as the court deems fit. (2) Notwithstanding subsection (1), the whistleblower or any person related to or associated with the whistleblower shail be entitled to seek the remedies under paragraphs (1)(A) to (C). (3) Where the whistleblower or any person related to or associated with the whistleblower intends to seek the remedies through another person other than the enforcement agency after a request under subsection (1) has been made, the whistleblower or any person 39 [91] related to or associated with the whistleblower shall notify the enforcement agency of such intention. (4) Upon receipt of the notification under subsection (3) or the enforcement agency discovers that the whistleblower or any person related to or associated with the whistleblower has sought the remedies through another person other than the enforcement agency after a request under subsection (1) has been made, the enforcement agency may make an application to the court to discharge itself or otherwise discontinue from representing the whistleblower or any person related to or associated with the whistleblower and the whistleblower or any person related to or associated with the whistleblower shall reimburse the enforcement agency for any expenses incurred.” Section 15 gives a right to either an enforcement agency or to the whistleblower or any person related to or associated with the whistleblower to seek from the court damages or compensation, injunction or other relief upon being informed by an enforcement agency that detrimental action in reprisal for a disclosure of improper conduct has been taken against him or threatened. 40 [92] These remedies cover the whistleblower but also include a person [93] [94] [95] related to or associated with the whistleblower. Naturally, there exists wider remedies and immunity for the whistleblower. Notwithstanding, it is clear that specific remedies are prescribed for a person related to or associated with the whistleblower. It can be safely concluded therefore that the remedies available toa person related to or associated with the whistleblower are limited to these sections. it does not however, immunize such a person from preventive detention. The Respondents therefore had also not infringed the Applicant’s right under Article 5 of the Federal Constitution. Whether the failure of the Chairman of the Advisory Board to take into the account the evidence amounted to failure to address the mind to the facts of the detention and therefore constituted wrongful detention under the Act? 41 [96] The premise of this aspect of the Applicant's challenge to his [97] [98] [99] detention arises out of his contention that he is in fact a whistleblower. Accordingly, it was submitted that the failure by the Chairman of the Advisory Board to consider this fact amounted to a failure to address her mind to the merits of the Applicant’s case. More specifically, it was submitted that the Chairman of the Advisory Board had failed to consider and accept the testimony of the two MACC officers who it was contended, had said that the Applicant was a whistleblower. The answer to the issue posed is fairly easily resolved by reference to section 15B of POCA which reads: “15B. Judicial review of act or decision of Board (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 Board in the exercise of its discretionary power in accordance with this Act, except in regard to any question 42 on compliance with any procedural requirement in this Act governing such act or decision. (2) In this Act, "judicial review" includes proceedings instituted by way of- (a) an application for any of the prerogative orders of mandamus, prohibition and certiorari: (b) an application for a declaration,or an injunction; (ba) a writ of habeas corpus; and (c)any other suit, action or other legal proceedings relating to or arising out of any act done or decision made by the Board in accordance with this Act.” [100] It is patently obvious that the above mentioned section precludes the court from entertaining matters related to the fairness or merits of the decision made. This is thus an ouster clause. 43 [101] The only area of permissible inquiry relates to procedural non- compliance. See Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750, where the Federal Court decided that the ouster clause enacted by Parliament pursuant to section 59A of the Immigration Act 1959/63 was constitutional and valid. [102] Bound as | am by the principle of stare decisis, this point has to be resolved thus in favour of the Respondent's. The unequivocal answer to the question posed here is therefore in the negative. [103] Having said that, if there was credible evidence (which there was not), that the Applicant was a whistleblower, he would have been entitled to the immunity prescribed by section 7(1) (b) and by pure and simple operation of law, would be entitled to a Writ of Habeas Corpus being issued for his release from preventive detention. [104] This would have had nothing whatsoever to do with the merits of the decision per se. 44 [105] | have also considered the other issues raised by the Applicant and have found no merit in them. (E) DECISION [106] Based on the reasons aforesaid, the application of the Applicant for a Writ of Habeas Corpus to be issued is dismissed. Dated: 10 May 2021 (co Judge High Court of Malaya Kuala Lumpur LAWRENCE SEQUERAH ) Counsels: For the Applicant .. En. Selvam Shanmugam & En. Surenthiran Raj [Messrs Selvam Shanmugam & Partners] For the Respondent .... Pn Norazlin Binti Mohamad Yusoff & En. Muhamad Safuan Bin Azhar Deputy Public Prosecutors [Attorney's General Chambers] 45 uy