Preventive detention under the Dangerous Drugs Act cannot be justified if no association with a substantial body of persons is established.

Vernon Ong FCJ:

Introduction

[1] On 22 November 2018, a detention order pursuant to s 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) was issued by the Deputy Minister of Home Affairs directing that the appellant be detained for a period of two years with effect from 22 November 2018 at the Pusat Pemulihan Akhlak, Simpang Renggam, Johor. Section 6 (1) authorises the Minister to make such order if he is satisfied that such person has been or is associated with any activity relating to the trafficking in dangerous drugs and that it is necessary in the interest of public order that such person be detained.

[2] The appellant filed an application at the High Court on 27 May 2019 for a writ of habeas corpus on the ground that the detention order was unlawful.

[3] At the High Court, the appellant's sole ground was that the respondents failed and/or refused to produce the appellant's statement which was recorded by the Investigating Police Officer ("IPO") pursuant to s 4 of Act 316. This failure and or refusal to produce the appellant's statement, submitted learned counsel for the appellant, amounted to a substantive procedural non-compliance which justified the writ of habeas corpus to be issued.

[4] Suffice it to state that the learned judge dismissed the appellant's application on the grounds that: (i) the IPO had carried a proper investigation and examination of the appellant under s 4(1) of Act 316; and (ii) the non-production of the appellant's statement did not breach any procedural requirement under Act 316. As the High Court's decision is in respect of a habeas corpus application, this appeal was brought directly to the Federal Court without leave pursuant to s 374 of the Criminal Procedure Code.

The Appellant's Submission

[5] Before us, learned counsel for the appellant raised a new point - that the detention order and the grounds and allegations of fact thereunder are ultra viresart 149 of the Federal Constitution (" FC ") and the Preamble of Act 316.

[6] At the heart of the appellants' argument is that the grounds of the detention order, the allegations of fact and the Deputy Minister's affidavit revealed that the appellant is acting alone without any participation from any other persons; it did not allege that the appellant's activities were being conducted in association with a substantial body of persons.

[7] The preamble to Act 316 states that it is an Act to stop action which is prejudicial to public order which has been taken or threatened by "a substantial body of persons". Act 316 is consonant with art 149 of the FC which provides that an Act of Parliament which recites that "action has been taken or threatened by any substantial body of persons" is valid even though it is inconsistent with any of the provisions of arts 5, 9, 10 or 13 of the . As s 15 of the Interpretation Acts 1948 and 1967 ("Interpretation Acts") provides that the short title, the long title and the Preamble to Act 316 should be construed as part of Act 316, the activities of a single person cannot be deemed to be within the ambit and scope of scrutiny under the preventive legislations such as Act 316. As such, it was argued that the ambit or scope of Act 316 is only confined to a substantial body of persons ( Raja Petra Raja Kamarudin v. Menteri Hal Ehwal Dalam Negeri , 2009 MarsdenLR 4456 ).

[8] It is therefore necessary to scrutinise the grounds and allegations of fact to ascertain whether the Deputy Minister had taken into account the factor that the appellant has been carrying out the impugned acts in association with a substantial group of persons (Mohd Najib Yusof v. Timbalan Menteri Dalam Negeri Malaysia & Anor). A scrutiny will show that it is not the respondents' case that the appellant was a member of a substantial body of persons involved in trafficking in dangerous drugs.

The Respondent's Submission In Reply

[9] Learned Senior Federal Counsel (SFC) appearing for the respondents argued that the preamble