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2021 MarsdenLR 2692

HIGH COURT MALAYA MUAR
SHAHIR ROSLI – Appellant
Versus
DEPUTY MINISTER FOR HOME AFFAIRS MALAYSIA & ORS – Respondent
[Criminal Application No: JB-44-12-10/2020]



Petitioner Advocates:Ibrahim Haikal Razak ,Respondent Advocate: Muhammad Sinti

The court affirmed the validity of the detention order under the Dangerous Drugs Act, emphasizing strict compliance with procedural requirements and the authority's burden to prove legality of detention.

Headnote:(A) Dangerous Drugs (Special Preventive Measures) Act 1985 – Sections 3, 5, 6(1), and 149 Federal Constitution – Application for Judicial Review of Detention Order under the Act – Validity of detention order affirmed as no procedural non-compliance found – Applicant was adequately informed of rights and chose not to engage legal representation – The court emphasizes that the writ of habeas corpus must be issued if detention is unlawful. (Paras 1-82)

Facts of the case: The applicant was detained under the Dangerous Drugs (Special Preventive Measures) Act for suspected drug trafficking. He challenged the legality of his detention, arguing procedural failures by the authorities. (Paras 3-11)

Findings of Court: The court upheld the legality of the detention order, confirming proper procedure was followed throughout the individual's detention and representation process. (Paras 82)

Issues: Key issues included whether the applicant was properly informed of his right to legal representation and if there were procedural failures in the detention process. (Paras 1.1-1.4)

Ratio Decidendi: The court held that the detaining authority must demonstrate the legality of detention. Specific procedural provisions must be strictly interpreted and complied with, but non-compliance that does not affect the essence of the detention order is not grounds for release. (Paras 30-38)

Result: Application for Judicial Review dismissed.

Judgement Key Points

Based on the provided legal document, here are the key points regarding the case of Shahir Rosli – Appellant vs Deputy Minister for Home Affairs Malaysia & Ors:

Case Overview and Outcome * The court affirmed the validity of the detention order under the Dangerous Drugs (Special Preventive Measures) Act 1985, emphasizing strict compliance with procedural requirements and the authority's burden to prove the legality of detention (!) . * The application for Judicial Review was dismissed (!) . * The court upheld the legality of the detention order, confirming that proper procedure was followed throughout the individual's detention and representation process (!) . * The Detention Order was signed by Arbi bin Suhadat on the directive of the Deputy Minister on 22 June 2020, directing the Applicant to be detained for 2 years at the Simpang Renggam Correctional Centre (!) . * The Applicant was adequately informed of his rights and chose not to engage legal representation (!) .

Facts and Procedural History * The Applicant was arrested and detained under s 3 of the Act on 29 April 2020 (!) . * A full investigation report was submitted by Inspector Tan on 28 May 2020, leading to an investigation officer report on 15 June 2020 (!) (!) . * The Deputy Minister was satisfied that the Applicant was connected with drug trafficking activities detrimental to public order (!) . * The Detention Order was served on the Applicant with the Grounds of Detention and Statement of Facts on 22 June 2020 (!) . * The Applicant was informed of his rights to make representations to the Advisory Board and to be represented by a legal practitioner (!) (!) . * The Applicant returned Form 1 and notes on representation on 23 June 2020 (!) . * Two hearing dates were fixed: 9 July 2020 and 22 July 2020 (!) . * The hearing on 9 July 2020 was postponed at the Applicant's request to allow him to seek legal representation (!) . * During the hearing on 22 July 2020, the Applicant explicitly replied in the negative when asked if he wished to engage a legal practitioner and proceeded with the hearing on his own (!) . * The Advisory Board made recommendations to His Majesty the Yang di-Pertuan Agong, who consented to the continued detention (!) .

Legal Principles and Issues * The writ of habeas corpus is a fundamental instrument for safeguarding individuals against arbitrary and unlawful state action (!) . * The burden of satisfying the court that the detention is lawful lies throughout on the detaining authority (!) . * Procedural requirements in detention orders can be either mandatory or directory; a breach of a mandatory requirement renders the order invalid, while a breach of a directory requirement is not significant if there is substantial compliance with no prejudice (!) . * The court must look at the provisions of the law or rules to determine if there is a procedural requirement; it is not for the courts to create procedural requirements (!) . * The court found that the Applicant was properly informed of his rights to legal representation, as evidenced by the Form 1 he returned and his explicit refusal during the hearing (!) . * The Applicant's failure to exercise his right to legal representation cannot be placed as a denial of his rights once he has been advised of them (!) . * The right to be defended by a legal practitioner is a right of the person arrested, but it is not a duty of the Counsel requested, and the Counsel must be willing and able to represent (!) . * The Advisory Board proceedings are conducted in camera to protect national security, and facts whose disclosure would be against the national interest do not need to be disclosed (!) (!) . * The court found no procedural non-compliance by the Respondent and dismissed the application (!) .


JUDGMENT

Awg Armadajaya Awg Mahmud JC:

Introduction

[1] This is an application for Judicial Review of the Detention Order of Shahir bin Rosli pursuant to s 6(1) Dangerous Drugs (Special Preventive Measures) Act 1985 issued by the Dato' Sri Dr. Haji Ismail bin Haji Mohamed Said, Deputy Minister for Home Affairs, Malaysia vide Notice of Motion (Encl 1) for a Writ for Habeas Corpus Ad Subjiciendum.

[2] The Cause Papers are as follows:

i. Notice of Motion (Encl 1).

ii. Affidavit-in-support affirmed by the applicant (Encl 3).

iii. Affidavit-in-opposition affirmed by Dato' Sri Dr. Haji Ismail bin Haji Mohamed Said, Deputy Minister for Home Affairs, Malaysia on 23 November 2021 (Encl 5).

iv. Affidavit-in-opposition affirmed by Arbi bin Suhadat (Encl 6).

v. Affidavit-in-opposition affirmed by Nor Asyikin bin Nor Azhar (Encl 7).

vi. Affidavit-in-opposition affirmed by ACP Hasnan bin Hassin (Encl 8).

vii. Affidavit-in-opposition affirmed by DSP Mohd Akmal bin Abdullah (Encl 9).

viii. Affidavit-in-opposition affirmed by Inspector Tan Boon Hui (Encl 10).

ix. Affidavit-in-opposition affirmed by Detective Sergeant Major Saudararajan a/l Krishnan (Encl 11).

x. Affidavit-in-opposition affirmed by Mohamad Rosidek bin Musa (Encl 12).

xi. Affidavit-in-opposition affirmed by Shahrill Ramdzan bin Abdul Hamid (Encl 13).

xii. Affidavit-in-opposition affirmed by Azrul Hafriz bin Azman (Encl 14).

Background Facts

[3] On 29 April 2020 the Applicant Shahir bin Rosli was arrested and detained under s 3 Dangerous Drugs (Special Preventive Measures) Act 1985 .

[4] On 8 May 2020, the Report on the arrest and remand of the Applicant was handed over by DSP Mohd Akmal bin Abdullah, who was at the material time the Deputy Head of the Narcotics Investigation Department, Melaka Police Headquarters to ACP Hasnan bin Hassin, the Assistant Director of Detention, Narcotics Investigation Department in Bukit Aman.

[5] After studying the said report, on 12 May 2020, ACP Hasnan bin Hassin made a report to the Minister for Home Affairs for the purpose of further remand in compliance with s 3(2), (c) Dangerous Drugs (Special Preventive Measures) Act 1985 . On 11 May 2020 at about 1 pm at the Narcotics Investigation Department, Melaka Tengah Police Headquarters, Inspector Tan Boon Hui ("Inspector Tan"), the Investigating Officer for the Applicant's case file.

[6] Inspector Tan meet the applicant to record a statement under s 4 Dangerous Drugs (Special Preventive Measures) Act 1985 . The Police investigation reveals that there was sufficient evidence that the Applicant was involved in dangerous drugs trafficking, cannabis in particular.

[7] On 28 May 2020, Inspector Tan submitted a full investigation report on the Applicant pursuant to s 3(3) Dangerous Drugs (Special Preventive Measures) Act 1985 to the Minister of Home Affairs and to the Investigation Officer, Ministry of Home Affairs. Nor Asyikin binti Nor Azhar, the Investigation Officer with the Ministry of Home Affairs, was appointed pursuant to s 5(1) , received a complete report on the Applicant, from Inspector Tan on 28 May 2020.

[8] On 11 June 2020, the Investigation Officer carried out the investigation pursuant to s 5(2) Dangerous Drugs (Special Preventive Measures) Act 1985 . After evaluating the evidence given by the Applicant and the witnesses and after studying the investigation report by Inspector Tan, the Investigation Officer prepared a report on the Applicant pursuant to s 5(4) for the Minister of Home Affairs.

[9] The Investigation Officer of the Home Ministry is satisfied that there are reasonable grounds to believe that the Applicant has connection with drugs trafficking for Cannabis. The Investigation Officer put up a written report pursuant to s 5(4) Dangerous Drugs (Special Preventive Measures) Act 1985 for the Minister of Home Affairs on 15 June 2020.

[10] Dato Sri Dr Haji Ismail bin Haji Mohamed Said, the Deputy Minister for Home Affairs at the material time averred that the report on the arrest and detentio


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