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SUPREME COURT PENANG
LOCK WEE KOCK – Appellant
Versus
MENTERI HAL EHWAL DALAM NEGERI & ANOR – Respondent
[Criminal Appeal No: 05-30-92]
[1] The appellant was arrested and detained by the police on 15 September 1990 at 2.15 pm at Batu Pahat under s 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (hereinafter, the Act). On 13 November 1990, the Deputy Minister of Home Affairs issued a detention order under s 6(1) of the Act for the appellant to be detained at the Pusat Pemulihan Akhlak, Pulau Jerjak, for two years.
[2] A habeas corpus application for the release of the appellant was filed in the Penang High Court on 29 April 1991. The High Court dismissed the application on 28 October 1991. Hence this appeal.
[3] The only ground advanced before us is that the Minister had not complied with the provisions of s 3(3) and s 5(4) of the Act and the failure to comply with these provisions has rendered the detention order void. Sections 3(3) and 5(4) of the Act state:
3(3) The police officer making an investigation pertaining to a person arrested and detained under this section shall cause a copy of the complete report of the investigation to be submitted-
(a) to an Inquiry Officer appointed under subsection (1) of s 5; and
(b) to the Minister,
within such period as may be prescribed by the Minister by regulations made under this Act.
5(4) An Inquiry Officer shall submit his report in writing to the Minister within such period as may be prescribed by the Minister by regulations made under this Act.
[Emphasis Added]
[4] Encik Karpal Singh the learned Counsel for the appellant submitted that although the word "may" is used in ss 3(3) and 5(4) of the Act, it should be treated as mandatory and the Minister must prescribe the periods by regulations under s 22 of the Act which provides:
22(1) The Minister may make regulations to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of subsection (1) such regulations may-
(a) ...
(b) ...
(c) ...
(d) prescribe anything which may be prescribed under this Act.
[5] The use of the word 'may' or 'shall' has led to some confusion in the interpretation of a provision of a statute. In ordinary usage, the word 'may' is permissive, and the word 'shall' is imperative. The Courts have always construed these words with reference to the context in which it is used. In order to find out whether these words are being used in a directory or mandatory sense the intent of the legislature should be looked into along with the pertinent circumstances. If it appears to be the settled intention of the legislature to convey the sense of compulsion, then whether the word 'may' or 'shall' is used, it has the mandatory effect. Perhaps the task of the Court in interpreting these words would be solved if the Interpretation Acts 1948 and 1967 (consolidated and revised 1989) were to contain such provisions as that found in s 37 of the Barbados Interpretation Act - Laws of Barbados Cap 1 which states:
37. In an enactment passed or made after 16 June 1966, the expression 'shall' shall be construed as imperative and the expression 'may' as permissive and empowering.
[6] The significance of such a provision in the Interpretation Act will remind the legal draftsman to always confine the use of the word 'shall' to its mandatory sense, in contrast to the use of the word 'may' which denotes a permission or discretion.
[7] Going back to the issue before us, it is necessary to examine the provisions of subsections (1) and (2) of s 3 of the Act, which are:
3. Power to detain suspected persons.
(1) Any police officer may, without warrant, arrest and detain, for the purpose of investigation, any person in respect of whom he has reason to believe there are grounds which could justify his detention under subsection (1) of s 6.
(2) Any person arrested and detained under this section may be detained in police custody for a period not exceeding sixty days without an order of detention having been made in respect of him under subsection (l) of s 6:
Provided that-
(a) he shall not he detained for more than twenty
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