Vincent Ng Kim Khoay JC:

The only issue for determination in this application for writ of habeas corpus is the question whether s.3(2)(c) of the Dangerous Drugs (Special Preventive Measures) Act 1965 ("the provision of the Act") had been complied with by the respondents in the detention of the applicant. Counsel for the applicant, Karpal Singh, contended that the provision of the Act could not be taken as being complied with by the mere appending of the necessary report of the reporting officer, Exh.YKS1, in the affidavit of the Assistant Commissioner of Police, Encik Yap Kim Seng, (Encl.18). It has been submitted that YKS1 was inadmissible in evidence as it ran foul of the rule that the Court is entitled to the best evidence. Exhibit YKS1 is the report of Encik Osman bin Awal, who was, until the hearing of the matter, on leave in London; though it was not disputed that he was at the material time of the report, a proper reporting officer.

It has been conceded by Encik Karpal Singh that YKS1 is a public document. He however contended that YKS1 is only secondary evidence and as an affidavit sworn by Osman bin Awal has not been adduced by the respondent, there is a gap in the documentary evidence adduced to show lawful detention. Furthermore, he added, Encl.18 contained no averment that an affidavit from Osman bin Awal could not be procured without an amount of great delay or expense, to bring it within the scope of s.32 of the Evidence Act, 1950.

The other collateral point, which developed during the course of argument on the rules governing affidavits, was whether they should be governed by Rules of the High Court 1980 or s.365 of the Criminal Procedure Code and whether such matters are criminal or civil causes. The reason being that if habeas corpus applications are criminal rather than civil in its proceedings, then the Courts could take a stricter view in respect of the nature and degree of proof required in relation to the chain of evidence on the various procedures involved in the detention of a person; more specifically, concerning the receivability or admissibility of the various necessary pieces of evidence. This is also quite apart from the question of awardability of costs in habeas corpus proceedings, which has been specifically dealt with in the case of Osman bin Mat Isa v. Superintendent of Prison, Alor Star & amp; Anor. [1974] 1 MLJ 189.

Whilst there is a welter of authorities in respect of the procedures that the authorities has to strictly comply with to ensure that the detinue's detention is legal, there is however, from the evidential point of view, a dearth of authorities on the qualitative nature of proof of such due compliance with the procedures of detention.

Mr.Shanmugam who addressed the Court as an amicus curiae, at the invitation of the Court, suggested that the part of this Court's decision in Voon Mow Chen v. Menteri Dalam Negeri Malaysia & amp; Anor. [1993] 2 AMR 38 p.2199 which says that O.41 of the Rules of High Court governs the use of affidavits in habeas corpus proceedings, may be amiss on the law, due to a provision in Rules of the High Court itself (he was unable to specify which provision) which expressly oust its applicability to criminal proceedings.

This application was heard on 6 December 1993 but upon the request of both the parties, further hearing was adjourned to 22 December 1993. This request followed the suggestion of the Court that further research be worked on the issue of whether habeas corpus proceedings are criminal or civil causes and, if criminal, whether the Court should review its decision in Voon Mow Chen, (supra), on the use of O.41 of Rules of the High Court.

I shall now deal with the collateral issue before turning to the main issue.

Encik Noorbahri was affirmative in his support of this Court's view in Voon Mow Chen, (supra), that affidavit evidence in habeas corpus proceedings is governed by the Rules of the High Court, and he further submitted that s