A detention order under preventive laws requires strict compliance with statutory procedures, ensuring the individual’s rights are protected while allowing lawful detention when justified. Detention was upheld based on adequate evidence of involvement in drug trafficking.

Hasnah Mohammed Hashim FCJ:

[1] A detention order dated 27 August 2020 was issued by the Deputy Minister of Home Affairs ("the Deputy Minister") against the Appellant under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 ("the Act"), ordering that the Appellant be detained at Pusat Pemulihan Akhlak Machang, Kelantan for two (2) years with effect from the date of the detention order.

[2] The Appellant applied to the High Court for a writ of habeas corpus to be issued for his release. This appeal emanated from the decision of the learned Judicial Commissioner (JC) made on 16 April 2021 who dismissed the Appellant's application for a writ of habeas corpus on the ground that there was no procedural impropriety in the detention of the Appellant to warrant the grant of a writ of habeas corpus. Aggrieved by the decision of the High Court the Appellant filed this appeal, which was before us. After hearing submissions from parties, both written and oral, we, the majority dismissed the appeal. We herein state our reasons for having so decided.

The Arguments

[3] The Appellant challenged the Detention Order on the grounds that there was a failure to observe the provisions of the Act. Before us learned counsel for the Appellant, Encik Ikram Ibrahim advanced the following grounds in support of the appeal that the detention of the Appellant is illegal:

(i) the Detention Order issued is ex facie irregular by reason it did not fulfill the requirements of art 149 of the Federal Constitution and did not follow strictly the decision of the Federal Court in Selva Vinayagam Sures v. Timbalan Menteri Dalam Negeri, Malaysia & Ors, 2020 MarsdenLR 499 ;

(ii) the delay of 18 days by the police investigating officer ("the IO") in completing and submitting the investigation report ("the investigation report") under s 3(3) of the Act to the Deputy Minister with convenient speed prejudiced the Appellant as it did not follow the principle enunciated by the Federal Court in Chua Kian Voon v. Menteri Dalam Negeri Malaysia & Ors, 2019 MarsdenLR 3021 ;

(iii) the delay of 17 days by the Inquiry Officer after receiving the completed report by the IO to conduct the inquiry with convenient speed is unreasonable as it did not follow the principles enunciated in Chua Kian Voon (supra); and

(iv) the letter requesting for the recorded statement which was addressed to the Minister and/or the Deputy Minister cannot be rejected by the Bahagian Keselamatan, Kementerian Dalam Negeri without first referring to the Minister and/or the Deputy Minister.

[4] In respect of the validity of the Detention Order and the infringement of art 149 of the Federal Constitution , learned counsel for the Appellant applied the principle enunciated in Selva Vinayagam (supra) and argues that a Detention Order issued under preventive detention laws must possess the three (3) elements:

(1) the activity which has been taken or is being threatened by a substantial body of persons;

(2) the detenu is a member of a substantial body of persons; and

(3) the Minister is satisfied that it is necessary in the interest of public order that the detenu be subject to preventive detention.

[5] Learned counsel for the Appellant further submits that the Detention Order issued by the Deputy Minister is flawed as it does not have the three (3) elements as suggested by the Federal Court in Selva Vinayagam (supra) in particular, the failure to expressly state that the Appellant was involved in drug-related activities in association with a substantial body of person.

[6] It is the submission of the Appellant that s 5(4) of the Act imposes a duty on the Inquiry Officer to submit a report in writing to the Minister at all convenient speed as enunciated by the Federal Court in Chua Kian Voon (supra). Under this provision, the Minister is empowered to make regulations prescribing the period for the submission of the report by the Inquiry Officer. To date, the Minister has not prescribed by rules and/or re