Wan Yahya bin Pawan Teh SCJ:

In this appeal we are particularly concerned with the issue as to whether in a hearing of a habeas corpus application, corrective and additional evidence by means of supplementary affidavits exhibiting documents tendered by the respondents after the applicant's Counsel had closed his case and commenced his submission, were properly admitted by the High Court; and if not so admitted, whether the requirement of s. 3(2)(c) of the Dangerous Drug (Special Preventive Measures) Act 1985 had been complied with.

What had transpired before the trial Court is not in dispute. The applicant (appellant before us) filed his notice of motion on 14 August 1990. The hearing was held on 26 December 1990. In his submission to the learned trial Judge, Mr. Karpal Singh for the applicant referred to two affidavits filed by the respondents on 8 October 1990 (16A page 26 Appeal Records). In the affidavit deposed by Insp. Zakaria on 28 September 1990, the deponent stated that the applicant was arrested on 16 May 1990 at 11.50 a.m. and that he authorised further detention not exceeding 24 hours of the applicant at 3.30 p.m on 17 May 1990.

Counsel contended in the Court below that the continued detention of the applicant exceeding 24 hours, that is to say after 11.50 a.m. on 17 May 1990 without authorisation was in breach of s. 3(2)(a) of the Act , and was therefore illegal, but before us, this ground of appeal was abandoned and rightly so, as it could not be disputed that the appellant was arrested at 11.50 p.m. and not at 11.50 a.m. on 16 May 1990, and as such his continued detention after 11.50 a.m. on 17 May 1990 was still within the 24 hours period.

The main ground of appeal is whethers. 3(2) of the Act has been complied with on the basis of the available affidavit evidence filed in Court as at the commencement of the hearing when oral submission by the applicant's Counsel had already begun.

In the affidavit sworn by PPKP Osman bin Awal on 25 September 1990 (page 16 Appeal Records) the deponent merely stared at paragraph 2 that he received the report on the arrest and detention of the applicant from the investigating officer on 29 May 1990 and "seterusnya" (thereafter) he informed the Minister.

In para 2 of his affidavit PPKP, Osman bin Awal stated as follows:

Pada 29 Mei 1990, saya telah menerima lapuran hal keadaan penangkapan dan penahanan Ng Hong Choon (selepas ini disebut "Pemohon") dari Timbalan Penguasa Polis Yahya Bin Ismail dan seterusnya saya telah melapurkan hal keadaan itu kepada Menteri.

In respect of that affidavit, Counsel adopted the same argument as in Tan Yap Seng v. Ketua Polis Negara & 2 Ors. [1991] 2 CLJ 1400 in which Edgar Joseph Jr. (as he then was) held that in the absence of any evidence of the actual date on which the designated officer submitted his report to the Minister under s. 3(2)(c) of the Act the Court is not at liberty to presume that he had done so 'forthwith'. On appeal, this decision was upheld by the Supreme Court.

No doubt, as a result of the argument raised by the applicant, the respondents' Counsel sought for and was granted adjournment to enable him to file the additional affidavits. This was done despite the objection by the applicant's Counsel. The affidavits were then filed on 25 September 1991, that is, about 10 months later and the case was eventually proceeded with on 19 December 1991.

The motion was dismissed on 27 December 1991.

Lest we forget, we have to warn ourselves against deflecting into considering the merits of the respondent's affidavits.

We are anxious at the moment only to determine whether such additional evidence in the form of additional affidavits can be accepted at such a late stage of the proceedings.

Dato' Hamid Embong, the respondents' Counsel drew our attention to s. 425 of the Criminal Procedure Code and suggested that by analogy we could draw the inference that the additional evidence could be admitted. We are unable to accede t