Detention under the Dangerous Drugs Act invalidated due to failure in procedural compliance regarding association with substantial groups and denied right to legal representation.

Hashim Hamzah J:

Introduction

[1] This is the Applicant's application for a writ of habeas corpus filed by way of a notice of motion dated 22 October 2019 (Encl 1).

[2] The Applicant is currently detained in Pusat Pemulihan Akhlak Simpang Renggam by virtue of a detention order dated 30 November 2018 (hereinafter referred to as the "Detention Order") which was issued by the Deputy Minister of Internal Security pursuant to s 6(1) of the Dangerous Drugs Act (Special Preventive Measures) Act 1985 [Act 316] (hereinafter referred to as "the Act").

[3] In short, two issues were raised by the Applicant for the determination of this court, namely:

a. Whether the Detention Order is in contravention with art 149 of the Federal Constitution; and

b. Whether there was a denial of the applicant's rights to be defended by an advocate by the Advisory Board.

Law

[4] First and foremost, s 11C of the Act provides that:

"(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 Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.

(2) The exception in regard to any question on compliance with any procedural requirement in subsection (1) shall not apply where the grounds are as described in s 6A."

[5] In determining the present application, I am primarily guided by what has been enunciated by the Federal court in the case of Lee Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia and Ors , 2004 MarsdenLR 2488 where Abdul Hamid Mohamad FCJ (as he then was) in delivering the judgment of the court, held in the following manner:

"In our view, courts must give effect to the amendments. That being the law, it is the duty of the courts to apply them. So, in a habeas corpus application where the detention order of the Minister made under s 4(1) of the Ordinance or, for that matter, the equivalent sections in ISA 1960 and DD (SPM) Act 1985, the first thing that the courts should do is to see whether the ground forwarded is one that falls within the meaning of procedural non-compliance or not. To determine the question, the courts should look at the provisions of the law or the rules that lay down the procedural requirements. It is not for the courts to create procedural requirements because it is not the function of the courts to make law or rules. If there is no such procedural requirement then there cannot be non-compliance thereof. Only if there is that there can be non-compliance thereof and only then that the courts should consider whether, on the facts, there has been non-compliance."

[6] See also Abdul Razak bin Baharudin v. Ketua Polis Negara & Ors, [2006] 1 MLJ 320 (FC).

[7] Next, in another case of Timbalan Menteri Dalam Negeri v. Ong Beng Chuan, [2006] 6 MLJ 493, the Federal court approves its previous decision in Jailani Kasim v. Timbalan Menteri Dalam Negeri, Malaysia & Ors, [2006] 6 MLJ 403 which provides a guideline in determining whether there is a breach of a procedural requirement, in the exact following words:

"[6] The resultant matter for consideration is whether the breach is subject to judicial review. A right to judicial review when there is a breach of a procedural requirement in the making of a detention order under the Act was considered by this court in Muhammad Jailani Kasim v. Timbalan Menteri Dalam Negeri, Malaysia & Ors, [2006] 6 MLJ 403 FC in the following words:

The effect of a breach of such procedural requirements had been considered in a number of cases. See, for example, Puvaneswaran v. Menteri Hal Ehwal Dalam Negeri Malaysia & Anor, [1991] 3 MLJ 28; [1991] 3 CLJ Rep 649; [1991] 2 CLJ 1199; Low Teng Hai v. Menteri Dalam Negeri, Malaysia & Others; [1992] 2 CLJ 816 and Aw Ngoh Leang v. Inspector General of Police; [1993] 1 MLJ 65; [1993] 1 CLJ 373;