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2011 MarsdenLR 810
HIGH COURT MALAYA KUALA LUMPUR
TAN CHEW HO – Appellant
Versus
THE DEPUTY MINISTER OF HOME AFFAIRS MALAYSIA & ORS – Respondent
[Criminal Application No: 44-141-2011]
An application for habeas corpus must establish serious intent and cannot misuse court procedures; procedural breaches alone do not invalidate a valid detention order.
Headnote:(A) Dangerous Drugs (Special Preventive Measures) Act 1985 - Sections 6(1) and 3(3) - Federal Constitution - Articles 5 and 151(2) - Writ of habeas corpus sought on grounds of unlawful detention - Allegations of breach regarding reason for arrest, failure to provide counsel, and improper issuance of the detention order. (Paras 1-41)
(B) Legal principles - An application for a writ of habeas corpus requires a serious intention to be heard on its merits; abuse of court process arises when an applicant lacks sincerity. (Paras 26-41)
Facts of the case:
The applicant was detained under a detention order without proper legal process, failing to receive justifications for his arrest or the opportunity to engage counsel, with numerous procedural lapses alleged.
Findings of Court:
The court accepted the respondents’ affidavits as rebuttals to the applicant's claims, establishing procedural validity of the detention order.
Issues: The key issue was the applicant's unlawfulness of detention and the valid grounds for the issuance of the detention order under the Act.
Ratio Decidendi: The court found that the detention order was not invalidated by the applicant’s claims of procedural failures, and deemed the application an abuse of the court process.
Result: Application for writ of habeas corpus struck out without liberty to file afresh.
| Table of Content |
|---|
| 1. details of allegations against detention (Para 1 , 2 , 3 , 4 , 5) |
| 2. respondents' affidavits deny applicant's claims (Para 6 , 7 , 8 , 9 , 10 , 11 , 14) |
| 3. court's observations on procedural compliance (Para 12 , 13) |
| 4. court's procedural observations (Para 18 , 19 , 22) |
| 5. court's final decision on the application (Para 26 , 27) |
| 6. legal basis for striking out application (Para 30 , 31 , 32) |
Applicant's Application
[2] On 8 June 2011, the applicant filed a notice of motion, at enclosure (3) together with a certificate of urgency at enclosure (4) and a supporting affidavit affirmed by the applicant on 3 June 2011 at enclosure (2), pursuant to s 365(1) (b) under Chapter XXXVI of the Criminal Procedure Code for the issuance of a writ of habeas corpus against the respondents for him to be released forthwith and not to be rearrested because his arrest and detention by the 2nd respondent, the police and also his detention by the 3rd respondent pursuant to the detention order issued by the 1st respondent under the Act is unlawful, null and void by virtue of breaches of the provisions of the Federal Constitution , the Act and the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules1987 (the "Rules").
[3] In para 3 of his supporting affidavit, enclosure (2), he has alleged that prior to the issue of the detention order by the 1st respondent he was not told the reason for his arrest on 17 July 2010 by the 2nd respondent and the police. He was detained for 60 days but he was not told the reason for his detention. The police also did not carry out any investigation against him during his detention for 60 days under s 3 of the Act.
[4] During the period of his detention by the police, the police did not accord to him his constitutional right to engage a counsel and he was, therefore, unable to challenge his arrest and detention by the police prior to the issue of the detention order by the 1st respondent because he was not allowed by the police to meet his family or his counsel.
[5] He has also made the following allegations of fact and law against the respondents in paras 4 to 34 of his supporting affidavit:-
(1) he was never produced before the court during his detention by the police;
(2) he neither understands nor speaks English;
(3) he can only understand and is fluent in Hokkien which is a Chinese dialect;
(4) he only knew he was detained under the detention order for 2 years which was issued under the Act when he was brought to the Muar Rehabilitation Centre and when his counsel informed him;
(5) he was never told the object of and or the reason for his detention under the Act;
(6) his arrest is unlawful;
(7) his detention at the police station is unlawful because it was done in breach of the law, was not in accordance with the provisions of s 3(2) of the Act and he was not told the reason for his detention and the identity of the person who had authorised his detention;
(8) the reports of the Investigating Officer (the "IO") and the Inquiry Officer which were considered by the 1st respondent before he issued the detention order were defective thereby rendering his detention under the detention order similarly defective;
(9) the reasons are the IO did not personally record his statement which was recorded in a language which he did not understand, ie Malay, without the assistance of a Chinese interpreter, it was not read back to him in Hokkien and he was asked to sign a document and
