NOOR FADZLI BIN MORAD 1. ) KETUA POLIS NEGARA, MALAYSIA 2. ) TIMBALAN MENTERI DALAM NEGERI, MALAYSIA 3. ) KEMENTERIAN DALAM NEGERI, MALAYSIA

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SEMAKAN KEHAKIMAN NO.: BA-25-59-07/2019 ANTARA NOOR FADZLI BIN MORAD [No. K/P: 870128-02-5733] ... PEMOHON DAN 1. KETUA POLIS NEGARA 2. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA 3. KEMENTERIAN DALAM NEGERI, MALAYSIA ... RESPONDEN-RESPONDEN 1] The applicant was detained under section 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (“the Act”) from 28.3.2017 to 28.3.2019. The Detention Order was subsequently extended from 28.3.2019 (signed on 26.3.2019) for another period of two years pursuant to section 11A(1)(a)(aa) of the Act. However on 3.4.2019 the Deputy Minister of Home Affairs issued a Suspension Order and placed the applicant under restriction within Mukim Kajang, Daerah Hulu Langat, Selangor. 2] In this application, the applicant sought his release by getting the Extension Order dated 26.3.2019 as well as the Suspension Order dated 1 3.4.2019 quashed. He averred that both the orders are defective and invalid. In the Statement and his affidavit in support he cited the following grounds: 2.1. he was not served with Form III; 2.2 the Advisory Board had exceeded its jurisdiction by recommending his suspension and be restricted in Kajang; 2.3 the respondents failed to prove that the issuance of extension order was based on the same grounds as the original order; and 2.4 the extension order was defective as one ASP Amiruddin failed to append his signature on the endorsement with regard to the extension order been explained to him in the Malay language. The law 3] Section 11C provides that the applicant can only advance complaints within the confines of non-compliance with any procedural requirement in an application for a Judicial Review. In Muhammad Jailani bin Kasim v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2006] 6 MLJ 403 at p.412 Augustine Paul FCJ had this to say: “[15] It is clear that the section restricts judicial review to only questions on compliance with any procedural requirement governing any act done or 2 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.”. Issues and analysis Notice of hearing 4] It was contended by the learned counsel for the applicant that the notice of hearing of his review by the Advisory Board, namely Form III was never served on him. He alleged that the first time he had sight of it when it was exhibited in the affidavit of the prison warder Kaliapan a/| Kerisma (encl 10) as KK-1. He claimed that he never meet an Indian prison warder but he was verbally informed by a Malay prison warder that the hearing was scheduled in November 2018. There was no supporting evidence to show that the said Form Ill was served on him as averred by Kalipan. Therefore there was a breach of rule 6(2) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987 (“Rules 1987”). 5] = The learned Federal Counsel in his submission referred to exhibit KK-1 dated 15.11.2018 in encl 10 and submitted that Kaliapan deposed that he personally served the same on the applicant on 20.11.2018 at the Pusat Pemulihan Akhlak Batu Gajah. He read out and explained the contents of Form Ill in Bahasa Malaysia pertaining to the place, date and time of the hearing of the applicant’s review. 6] Form Ill is a statutory form provided under the said Rules 1987 and there is no requirement for any acknowledgment. The applicant mere assertion cannot be accepted without further proof. In Chua Kian Voon v. Menteri Dalam Negri, Malaysia & Ors [2020] 1 CLJ 747, Mohd Zawawi Salleh FCJ said: “We have considered the appellant's allegation that he was referred to another detainee by the name of Clement Tseu for the purpose of explaining his right to make representations to the Board. The allegation was, however, not supported by any evidence on record. Jurisprudence dictates that mere allegation is not evidence and is not equivalent to proof. A party’s self-serving affidavit that is not supported by evidence is not sufficient to establish an alleged fact.”. Similarly in Aminah v. Superintendent of Prison, Pengkalan Chepa, Kelantan [1968] 1 MLJ 92 Wan Suleiman J (as he then was) at p.94 quoting from Basu's Commentary on the Constitution of India, 5th Edition Volume 2: “...Mere evidence of the applicant that he does not know that there are any reasons for the authority's belief, or denial that there are or can be any reasons for it, is not a sufficient discharge of the onus so as to call on the authority to explain and justify the assertion of his order.”. 7] In the absence of any evidence in support of this allegation, | could not accept the applicant's averment that Form III was served on him. Whether the Advisory Board had exceeded its jurisdiction 8] The applicant alleged that when he appeared for the hearing, the Advisory Board told him that he could not be released but if he wished to be out of the detention centre where would he prefer to go. It was submitted by the learned counsel that this gave the impression that the Advisory Board had made up its mind to extend and suspend the detention order, therefore had exceeded its jurisdiction. The learned Federal Counsel argued that the Advisory Board in this application did not submit such opinion to the Minister. 9] It was not clear when exactly this question was posed to the applicant. Whether it was before he commenced, during or after his representation. The applicant did not identify who posed the said question. The secretary to the Advisory Board deposed that this occasion did not take place. 10] Under section 11 of the Act, the Advisory Board’s role is to hear the representation and prepare and submit its report to the Minister. The Advisory Board will give its opinion whether to extend or cease either the detention order or the restriction order (if the applicant’s detention had already been suspended and been issued a restriction order). It would be in excess of jurisdiction if the Advisory Board opines that the detention order should be suspended and replaced by a restriction order which was one of the issues raised in Muniandy Subramaniam v. 5 Menteri Dalam Negeri, Malaysia & Others [2017] 3 MLRH 493. The High Court held that it was not the business of the Advisory Board to offer such opinion. 11] Having read the affidavits in particular the ones affirmed by the Deputy Minister and the secretary to the Advisory Board, nowhere did they depose that the Advisory Board tendered its opinion to suspend the detention order. The secretary deposed that the opinion of the Advisory Board was to extend the detention order under section 11A(1)(a)(aa) of the Act. This was well within the purview of the Advisory Board. | did not find any merit in this complaint. Whether the Deputy Minister had failed to show proof/reasons/explanation that the extension of the order was based on the same grounds 12] The applicant alleged that there was nothing to prove that the extension of the said order was based on the same grounds as the Original order. It was submitted that was a non-compliance with section 11A(1)(a)(aaa). The learned Federal Counsel contended the Deputy Minister had strictly adhered to the requirements of said provision and explained in his affidavit that having received and considered the report from the Advisory Board he was satisfied that the detention order should be extended for another period of two years. He specifically deposed that the reasons for the extension were on the same grounds on which the original order was issued. 13] Section 11A provides: “(1) The Minister may at any time before the expiration of the duration of — (a) a detention order made under subsection 6(1); (b) (c) direct that the duration of the order be extended for such further period, not exceeding two years, as he may specify, commencing immediately upon the expiration of its then current duration, and where the Minister so directs he shall set out in the direction the grounds for the extension and state whether such grounds are — (aa) the same as the grounds on which the order was originally made; (4) 0.2”. This provision necessitates the grounds for the extension to be stated and that they are the same as the previous order. It is therefore pertinent to look at the extension order itself to see whether the requirements were met. Cleary the order dated 26.3.2019 states as follows: “DAN BAHAWASANYA saya berpuashati adalah perlu tempoh Perintah Tahanan itu dilanjutkan atas alasan-alasan yang sama dengan alasan- alasan yang atasnya perintah itu dibuat iaitu, Bahawa penama pernah ada kaitan dengan apa-apa aktiviti yang berhubungan dengan atau yang melibatkan pengedaran dadah berbahaya yang memudaratkan ketenteraman awam dan adalah perlu bagi ketenteraman awam supaya penama ditahan.”. (emphasis is mine) 14] Clearly both requirements were met and there was nothing else for the Deputy Minister to do further. He had indeed complied with section 11A(1)(a)(aa) of the Act. Whether the extension order is defective 15] The learned counsel for the applicant submitted that the contents of the order was not explained to the applicant as one ASP Amiruddin bin Masri who served the extension order had failed to append his signature at the endorsement to indicate that he had explained the contents of the order to him in the language understood by the applicant. He cited the case of Mohd Roslan Muhammad v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2016] 9 CLJ 411 where the High Court having compared the applicant’s signatures decided to accept the applicant's averment that he was not served with Form | and that he never affixed his signature on the said form and held that the applicant was not served with Form |. In response, the learned Federal Counsel argued that ASP Amiruddin while admitting that he had overlooked to sign at the endorsement, he did explain the contents of the same to the applicant. He referred to Su Yu Min v. Ketua Polis Negeri & Ors [2005] 3 CLJ 875 where the High Court held that there was no reason to disbelieve the averment of the police officer who was performing an official duty as against the applicant who was trying to secure his release. 16] There are three endorsements on the second page of the order where ASP Amiruddin has to sign the top endorsement verifying that he had served the order and that he had explained the contents to the applicant followed by the middle endorsement to verify that he had explained the contents of the order in Malay language and the applicant has to sign the bottom endorsement to confirm having been served with the said order and understood the contents of the same. The applicant never denied that he had signed the bottom endorsement. For ease of reference the said page is reproduced below: saya ...AMifuddin bin Masri} — Asp Seeey Por ereneeds ang bertandata i bay y ngan di bawah memperakui bahawa saya pada hari int 2 hanb Mac Stake horibulan vue Meaierate 2a ifanp Neot pagi/pe secant LW Woman gq meimlam® (olah menysmpaikan kepada MLO TAA wecenteseae ieete at Mpa No, Kad Pengenatan © VO\2% = © ae $433 (ee /1% DPS) satu. Perlanjutan Porj H ij crintah Tahanan dj bawah Seksyen 11 A(1)(a)(aa), Akla Dadah Berbahaya (Langkah-Lanzkeh Pen cegahan Khas) 1985 dan telah menerangkan kepada orang tahanan tersebul isi kandungan perintoh itu, Tondatangan <a at A sMaaraias nt sAgpyrerene Nama dan Pangkat ...,,,/8aawal Pethubungan PPA Batu Gajah Jat Stasis yenapah Watkom ; AAT osesneetneccsssee see HUH AAD, Kuala LUMPUR... Isi kandungan Perlanjutan Perintah Tohanan tersebut di alas telah diterangkan kepada orang tananan dalam bahasa/loghat* a) Te oleh: Tandatangan sere : Amiruddin b. Mast — Asp. Nama Jurnbahasa ............ Pogatral-Porhubungan PRA Batu Gajah, gn Slasatan Jonayah Narkotit, No. Kad Pengenalan/Kad wane Ati KUM Lecnnati Olt 4 bOF Noor Fadoll lati. Mors d SAYA saeceasecseseseseratanaeaneesaseee 2 Grace x (SR VOTT SER Pas Sees) eter es No. Kad Pengenalan oe ‘ 13 \ ne telah ment @ Perlanjutan Perintah Tahanan yang terscbut di alas pada eh Aharibulan ...... sn See oul aca 20 \9 dan telah fah Brat fers am isi kandungannya, jieh Tandatangan f \ Nea ee Lana DAA ‘sth Wi ree SqeSR TSS “SES Cee/ a ees ) No. Kad Pengenalan * Potong yang tidak berkenaan. 10 17] Clearly the bottom endorsement shows that the applicant had acknowledged that the order was served on him and he understood the contents therein. The order dated 26.3.2019 was not a fresh but an extension order issued based on the same grounds. Hence it is my considered judgment that the failure by ASP Amiruddin to append his signature at the middle endorsement was not fatal. Decision 18] Based on the foregoing reasons, | did not find any non-compliance by the respondents and dismissed this application with no order as to costs. C7 (TUN ABD MAJID BIN DATO’ HAJI TUN HAMZAH) Hakim Mahkamah Tinggi Malaya, Shah Alam Tarikh: 07 SEPTEMBER 2020 11 Peguamcara-Peguamcara:- Peguamcara Pihak Perayu Jay Moy TETUAN SIVANANTHAN Advocates & Solicitors No. 1, L17-01, PJX Tower, No. 16A, Persiaran Barat, 46050 Petaling Jaya. Tel : 03-7491 8055 Fax : 03-7491 9055 Emel: info@malaysiancriminal.lawyer Peguamcara Pihak Responden Muhamad Safuan bin Azhar KAMAR PENASIHAT UNDANG-UNDANG KEMENTERIAN DALAM NEGERI Aras 5, Blok D1, Kompleks D, Pusat Pentadbiran Kerajaan Persekutuan 62546 Putrajaya Tel : 03-8886 8575 Fax : 03-8889 4042 12