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2024 MarsdenLR 1804
FEDERAL COURT PUTRAJAYA
SUGENTHIRAN PARAMASIVAM – Appellant
Versus
DEPUTY MINISTER OF HOME AFFAIRS MALAYSIA & ORS – Respondent
[Criminal Appeal No: 05(HC)-97-05-2021(A)]
The court ruled that the denial of the right to summon witnesses and improper translation during investigation violated the appellant's right to a fair hearing under the Dangerous Drugs Act and the Federal Constitution.
Headnote:(A) Dangerous Drugs (Special Preventive Measures) Act 1985 - Sections 6(1) and 12 - Federal Constitution - Articles 5, 8, and 151 - Appellant detained for two years on grounds of drug trafficking - Writ of habeas corpus issued due to denial of fair trial rights and improper handling of witness summons. (Paras 1-6, 16-18, 47)
(B) Advisory Board - Powers and responsibilities - The Advisory Board must ensure a fair hearing by summoning witnesses when requested by the detainee; failure to do so renders the detention order invalid. (Paras 12-18, 26-36)
(C) Interpretation and translation - The Investigating Officer's dual role as both investigator and interpreter compromised the integrity of the investigation, violating the detainee's rights. (Paras 37-46)
Facts of the case:
The appellant was detained under s 6(1) of the Dangerous Drugs Act, claiming his detention was illegal due to procedural violations regarding witness summons and translation issues.
Findings of Court:
The court found that the denial of witness summoning and improper translation led to a violation of the appellant's rights under the Federal Constitution.
Issues: The main issues were the denial of the right to summon witnesses and the adequacy of translation during the investigation.
Ratio Decidendi: The court held that the Advisory Board's refusal to summon witnesses constituted a violation of the appellant's right to a fair hearing, and the dual role of the Investigating Officer as interpreter compromised the investigation's integrity.
Result: Writ of habeas corpus issued, and the appellant released forthwith.
JUDGMENT
Introduction
[1] On 15 September 2020, the appellant was detained for a period of two years pursuant to an order made by the 1st respondent under s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 [Act 316]. The appellant was/ is detained at Pusat Pemulihan Akhlak, Machang, Kelantan. The appellant applied for a writ of habeas corpus on the basis that his detention is illegal, as the detention order made by the 1st respondent is null and void.
[2] Upon hearing the learned Counsel for the appellant and the learned Senior Federal Counsel for the respondents, we unanimously allowed the appeal on two grounds and proceeded to issue a writ of habeas corpus for the immediate release of the appellant. We, hereby, elaborate on the two grounds.
Material Facts
[3] The relevant facts leading to the detention of the appellant are well set out in the grounds of decision of the learned Judicial Commissioner. We summarise those facts as follows.
[4] The appellant was arrested on 23 July 2020. At the time of the arrest, he was informed that he was said to be involved in drug trafficking activities in Taiping, Perak. The detention order that was subsequently issued on 15 September 2020 stated that the appellant "pernah ada kaitan dengan aktiviti yang berhubungan dengan atau yang melibatkan pengedaran dadah berbahaya dan adalah perlu bagi ketenteraman awam supaya penama ditahan". This was amplified by the learned Judicial Commissioner - that "by allowing him to be free, at ease and at large, he would be a menace to the society at large, endangering public order, as drug trafficking activity would swell without bounds".
[5] The appellant moved the High Court at Taiping for a writ of habeas corpus on several grounds, amongst which are:
i. that he was deprived of his rights when he was not able to call three material witnesses, namely, Navendran a/l Suppiah, detained at Taiping Prison, Balan a/l Paramasivam, detained at the Simpang Rengam Pusat Pemulihan Akhlak, Johor, and Devan a/l Paramasivam, also a detainee, to support his representation and/or defence and/or to prove his innocence to the Advisory Board pursuant to the requirements of s 12 of Act 316; arts 5, 8 and 151 of the Federal Constitution, even though his solicitors had applied to the Advisory Board to issue subpoenas against these witnesses;
ii. that he was deprived a fair trial at the hearing of his representations on 17 November 2020, given that the evidence of these three material witnesses could not be heard;
iii. that, consequently, there was no effective and proper hearing of his representation contrary to the provisions of arts 5, 8 and 151 of the Federal Constitution;
iv. that there was non-compliance of ss 4 and 5 of Act 316. In the matter of translation, as requested by the appellant; and that any translation, if done, was, in fact, by the same officer investigating the allegations against the appellant.
[6] By a separate interlocutory application, the appellant had also sought sight of the lock-up diary, contending that it would prove that the order of detention was not served on him at the place as stated in the order. He had also asked for production of the notes of proceedings at the inquiry. Both requests were refused and the application was dismissed. The absence of these documents was cited as additional complaints for the issue of a writ of habeas corpus.
[7] As mentioned at the outset, we had allowed this appeal on two grounds and these were, the refusal to issue the subpoenas summoning the attendance of material witnesses for the appellant, and the matter of translation by the same person conducting the investigations. We did not find merit in the remaining grounds of complaint.
Summoning Of Witnesses
[8] The appellant's request for summoning the persons he regarded as material witnesses, that is, the persons whom he reasonably believed will exculpate him from the allegations made against him, was made to the Advisory Board. He had
