THANESH RAO A/L MOORTHY 1. ) TIMBALAN MENTERI DALAM NEGERI 2. ) KETUA POLIS NEGARA, MALAYSIA 3. ) KETUA POLIS NEGERI JOHOR 4. ) Kerajaan Malaysia

BA-25-65-09/2021 Kand. 26 04/07/2022 14:38:50 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN SEMAKAN KEHAKIMAN NO.: BA-25-65-09/2021 Dalam Perkara Permohonan oleh THANESH RAO A/L MOORTHY (No. K/P: 850627-14-6523) untuk mendapatkan kebenaran untuk suatu perintah deklarasi dan/atau certiorari Dan Dalam perkara mengenai Permohonan Semakan Kehakiman untuk mendapatkan suatu perintah certiorari dan/atau deklarasi Dan Dalam perkara Perintah Sekatan bertarikh 26-07-2021 di bawah Seksyen 6(3) Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 Dan Dalam perkara Mengenai Seksyen 3, 4, 5, dan 6 Akta Dadah Berbahaya (Langkah- Langkah Pencegahan Khas) 1985 Dan Dalam perkara mengenai Perkara 5, 7 dan Perkara 151 Perlembagaan Persekutuan Dan 1 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal Dalam perkara mengenai Akta Kehakiman 1964 dan Aturan 53 Kaedah-Kaedah Mahkamah 2012 ANTARA THANESH RAO A/L MOORTHY (No. K/P: 850627-14-6523) …PEMOHON DAN 1. TIMBALAN MENTERI DALAM NEGERI 2. KETUA POLIS NEGARA MALAYSIA 3. KETUA POLIS NEGERI JOHOR 4. KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN JUDGEMENT [1] This is an application for judicial review pursuant to Order 53 of the Rules of Court 2012 seeking an order for certiorari to quash the restriction order issued by the Deputy Minister of Home Affairs (“TMDN”). Brief Facts [2] The applicant, aged 36 years old was arrested and detained for a 60 day remand period under the Dangerous Drugs (Special Preventive Measures) Act 1985 (“DDSPMA”). The TMDN then issued a Restriction Order against the applicant under subsection 6 (3) of the DDSPMA. The 2 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal Restriction Order ordered the applicant to undergo a restriction at Mukim Pulai, Daerah Johor Bahru for a two (2) year period from 26.07.2021. [3] The applicant then filed this application seeking an order for certiorari to quash the Restriction Order issued against the applicant. Grounds Raised [4] In support of this application, the applicant raised the following grounds: (i) Non-compliance with Article 149 of the Federal Constitution and the long title and preamble of the DDSPMA – the grounds and allegation of fact of the restriction order did not state and/or show that the applicant was part of substantial body of persons that was a threat to public order; (ii) Delay of 25 days by the investigating officer in conducting the investigation and to produce the completed report to the TMDN and the Ministry’s inquiry officer pursuant to subsection 3(3) of DDSPMA; (iii) Delay of 17 days in issuing the Restriction Order pursuant to subsection 6(3) of DDSPMA; and (iv) Delay of 17 days by the Ministry of Home Affairs (MHA) inquiry officer in conducting the investigation on the applicant and to forward the written report to MHA – non-compliance with subsections 5 (2), 5 (3) and 5 (4) of DDSPMA. 3 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal Deliberations [5] This court will now proceed to consider the grounds raised by the applicant. (i) Non-compliance with Article 149 of the Federal Constitution and the long title and preamble of the DDSPMA – the grounds and allegation of fact of the restriction order did not state and/or show that the applicant was part of substantial body of persons that was a threat to public order. [6] To consider this ground raised by the applicant, this court considered the allegation of facts as reproduced below: “1. Bahawa kamu didapati terlibat dengan aktiviti pengedaran dadah jenis Syabu yang mengandungi dadah berbahaya jenis Methamphetamine sejak awal bulan Mac 2020 sehingga pertengahan bulan Disember 2020 secara tidak berterusan di Kawasan tepi jalan berhadapan dengan The Scott Garden, Jalan Klang Lama, Kuala Lumpur. 2. Bahawa kamu didapati terlibat dalam aktiviti pengedaran dadah dengan berperanan sebagai orang tengah kepada rakan sejenayah unutk mendapatkan dadah jenis Syabu yang mengandungi dadah berbahaya jenis Methamphetamine (anggaran berat 10.0 kilogram hingga 20.0 kilogram setiap transaksi) 4 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal dengan menerima upah antara RM3,000.00 hingga RM5,000.00 setiap transaksi. 3. Bahawa kamu didapati menerima bekalan dadah jenis Syabu yang mengandungi dadah berbahaya jenis Methamphetamine (anggaran berat 10.00 kilogram hingga 20.00 kilogram) daripada pengedar dadah tempatan bagi tujuan pengedaran.” [7] A perusal of the allegation of facts demonstrate to this court the applicant was involved in the trafficking of dangerous drugs by being the middle man. The applicant obtained the dangerous drugs syabu and received payment for this act of the applicant. [8] Enclosure 14 is the affidavit in reply of the TMDN. At paragraph 9 of Enclosure 14, the TMDN avers that he is satisfied the applicant is part of a substantial body of persons involved in drug activities or drug trafficking activities. The TMDN had considered the reports forwarded to him and was satisfied the applicant was part of a substantial body of persons. [9] In the case of Selva Vinayagam Sures v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] 2 CLJ 29 the apex court held: “[48] It also goes without saying that the courts must be vigilant in individual cases to ensure that the executive acts within the law and does not encroach unnecessarily into the fundamental liberties of the person. We have scrutinised the ground of the detention order, the allegations of fact and the Deputy Minister’s affidavit. We agree with counsel for the appellant that the only allegation is that the appellant is acting 5 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal alone. There is no allegation that the appellant’s activities were being carried out in association with or involved a substantial body of persons.” [10] In the case before this court, based on the allegation of facts, the applicant was not merely selling the dangerous drugs. The applicant in this case was a middle man. In the view of this court, in order to be a “middle man”, the applicant would need to be involved with other persons and would thus not be working alone. In this regard, this court opines that the applicant is part substantial body of persons involved in the trafficking of dangerous drugs. [11] Learned counsel for the applicant referred this court to the recent cases decided by the Federal Court Izham bin Muhammad [HC 223/10/2021 (B)] and Cheng Eng Ang [HC 256-11/2021 (B)]. At the point of time, there were no grounds available. When there are no grounds available, this court is not bound to follow the decision. In the case of Vishnu Telagan V. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 9 CLJ 177. “[45] In Vishnu Telagan v Timbalan Menteri Dalam Negeri Malaysia & Ors [2019] 9 CLJ 177 this court observed as follows at paragraph [40]: [40] The respondents argue that the Federal Court there had heard a similar argument on this point and refused the detainee a writ of habeas corpus. As at the date of our decision in this appeal, no written grounds had been delivered in respect of that case and so we are therefore unable to glean any reasons why such a decision was made. Therefore, we 6 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal did not see how the said judgment lent any support to the respondent’s case. Surely, in arriving at our decision, we had to consider and apply the law according to the facts and circumstances of this case.” [12] Hence, founded on the case of Vishu Telagan (supra) this court is no bound by the decision of the apex court if not grounds of the decision is available. Based on that principle, this court is of the view it is not bound to the decisions offered by learned counsel for the applicant from the Bar. [13] Moreover, from the allegation of facts, this court observes the amount dangerous drug are substantial. The weight of the dangerous drugs is from 10 kilogrammes to 20 kilogrammes. The weight of the dangerous drugs suggests to this court that the applicant could not have been acting in silo. As such, this court is inclined to find the applicant is part of a substantial body of persons involved in the trafficking of dangerous drugs. [14] Founded on the abovementioned, this court is satisfied the applicant is part of a substantial body of persons involved in the trafficking of dangerous drugs. Therefore, this court finds this ground to be without merit. (ii) Delay of 25 days by the investigating officer in conducting the investigation and to produce the completed report to the TMDN and the Ministry’s inquiry officer pursuant to subsection 3(3) of DDSPMA 7 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal [15] Pertaining to delay, subsection 3(3) of the DDSPMA does not provide a specific time period for which the investigation is to be conducted. In the absence of a provision in the law, reference is made to subsection 54(2) of the Interpretation Acts 1948 and 1967 which provides: “54. (2) Where no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed and as often as the prescribed occasion arises.” [16] Subsection 54(2) of the Interpretation Acts 1948 and 1967 states where there is no time prescribed in a statute to carry out an act, the act should be carried out in “all convenient speed”. What amounts to “all convenient speed” has been expounded by authorities. [See: Chua Kian Voon v Menteri Dalam Negeri Malaysia & Ors [2020] 1 CLJ 747] [17] Was the investigation in this case conducted in all convenient speed? To answer this question, this court examined the affidavit in reply of ASP Syazana binti Abdul Ghani [Enclosure 11] at paragraph 14 which gives an account of the steps she had taken to complete an inquiry under subsection 3 (1) of the DDSPMA. This included investigation of other witnesses related to the applicant’s arrest. Having recorded the statements of all witnesses, ASP Syazana then had to consider the statements. She was also required to identify the location of the drug trafficking area and to ensure the type of drugs involved in the drug trafficking activities. At paragraph (g) of paragraph 14 of Enclosure 11, ASP Syazana details her day to day activities. 8 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal [18] Having perused the affidavit in reply Enclsoure 14, this court is satisfied with the explanation given by ASP Syazana. Consequentially this court finds this issue without merit. (iii) Delay of 17 days by the TMDN in issuing the Restriction Order pursuant to subsection 6(3) of DDSPMA [19] Subsection 6(3) of DDSPMA provides as follows: “6(3) If the Minister is satisfied that for the purpose mentioned in subsection (1) it is necessary that control and supervision should be exercised over any person or that restrictions and conditions should be imposed upon that person in respect of his activities, freedom of movement or places of residence or employment, but for that purpose it is unnecessary to detain him, he may make an order (hereinafter referred to as a “restriction order”) imposing upon that person (hereinafter referred to as a “restricted person”) all or any of the following restrictions and conditions: (a) that he shall be subject to the supervision of the police for any period not exceeding two years; (b) that he shall reside within the limits of any State or any Federal Territory or any area thereof specified in the restriction order; (c) that he shall not transfer his residence to any other area without the written authority of the Chief Police Officer of the State or Federal Territory concerned; (d) that except in so far as may be otherwise provided by the restriction order, he shall not leave the area within which 9 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal he resides without the written authority of the Chief Police Officer of the State or Federal Territory concerned; (e) that he shall at all times keep the Officer in Charge of the Police District in which he resides notified of the house or place in which he resides; (f) that he shall at such time or times as may be specified in the restriction order present himself at the nearest police station; (g) that he shall remain within doors, or within such area as may be defined in the restriction order, between such hours as may be specified in the restriction order, unless he obtains special permission to the contrary from the Officer in Charge of the Police District; (h) that except in so far as may be otherwise provided by the restriction order, he shall not enter any area specified in the restriction order; (i) that he shall keep the peace and be of good behaviour; (j) that he shall enter into a bond, with or without sureties as the Minister may direct and in such amount as may be specified in the restriction order, for his due compliance with the restrictions and conditions imposed on him by the restriction order.” [20] The subsection does not provide a time period for which TMDN is required to issue the restriction order. In a circumstance where the legislation does not provide a time period, the Interpretation Acts 1948 10 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal and 1967 would be applicable. This would mean the task is required to be done in all convenient speed. [21] Was the issuance of the restriction order done in all convenient speed? It was argued by learned counsel for the applicant there was a 17 day delay from the time the TMDN received the report on the applicant until the day the restriction order was issued. It was submitted by learned Senior Federal Counsel for the respondent that 17 day time period is not an inordinate delay taking into consideration the work load of a deputy minister. [22] This court is of the view the parametres of the work of the TMDN is not merely to issue restriction or detention orders. The task of a TMDN is much more than that. Hence this court agrees with the contention of the learned Senior Federal Counsel. There is no inordinate delay on the part of the TMDN. Therefore, this court is satisfied this issue is without merit. (iv) Delay of 17 days by the Ministry of Home Affairs (MHA) inquiry officer in conducting the investigation on the applicant and to forward the written report to MHA – non- compliance with subsections 5 (2), 5 (3) and 5 (4) of DDSPMA [23] Subsections 5 (2), 5 (3) and 5 (4) of the DDSPMA provides as reproduced below: 11 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal “Inquiry Officer 5. (2) Upon receiving the report under subsection 3(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; (c) summon and examine witnesses on oath or affirmation, and may for those purposes administer any oath or affirmation; (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.” [24] Subsections 5 (2), 5 (3) and 5 (4) of the DDSPMA does not provide a time period of which the investigation must be completed. As previously stated, where no time period is stated in a legislation, the Interpretation 12 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal Acts 1948 and 1967 will apply. As such, the question before this court is whether the time taken by the inquiry officer was in all convenient speed. [25] A perusal of the affidavit in reply of Fazeedah binti Dato’ Faik [Enclosure 12] at paragraph 10, 11 and 13 states the efforts taken by Fazeedah in her course of investigation for the applicant’s case. Specifically, paragraph 13 of Enclosure 12 gives a day to day account of the activities of Fazeedah in conducting the investigation on the applicant. [26] Having careful paused Enclosure 12, this court is satisfied with the explanation provided by the inquiry officer in her affidavit in reply and consequentially finds this issue without merit. Decision [27] Founded on the above mentioned, this court finds this application to be without merit and therefore dismisses this application with no order as to costs. Date: 04 July 2022 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam 13 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel: For The Applicant: Naizatul Zamrina binti Karizaman Tetuan K.L. Chee & Co. Advocates & Solicitors Suite D1-2-7, Solaris Dutamas, No. 1, Jalan Dutamas 1, 50480 Kuala Lumpur. kl.cheedrive@gmail.com +6 03 6201 7089 For the Respondent: Zulkpli bin Abdullah Pejabat Penasihat Undang-Undang Kementerian Dalam Negeri Aras 5, Blok D1, Kompleks D Pusat Pentadbiran Kerajaan Persekutuan Putrajaya +6 03 8886 8575 14 S/NBA-25-65-09/2021 dHzhb0JcgU6tXNE4EpJ2uw **Note : Serial number will be used to verify the originality of this document via eFILING portal