Nik Hashim FCJ (majority):

[1] The appellant was detained for a period of 18 months with effect from 18 September 2007 pursuant to a Detention Order dated on the same date issued under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (the Ordinance). His application for a writ of habeas corpus for his release was refused by the Shah Alam High Court on 13 June 2008. Hence his appeal to this Court.

[2] The appellant had averred in his affidavit in support of the application at p 20 para 30 of the record that during the hearing before the advisory board (the board) he had made an application for an adjournment as the two witnesses requested by him were not present. In reply to the said averment the Secretary of the Board in her affidavit at p 127 para 8 of the record averred that the hearing of the appellant's representations was adjourned twice on 23 October 207 and 13 November 2007 at the request of the appellant on the ground that his counsel Encik Suresh was unable to attend the hearing. The Secretary further averred that the appellant's counsel had sent a letter dated 27 November 2007 requesting the board to exercise its power under s 9 of the Ordinance to summon the attendance of two witnesses requested by the appellant namely, Fong Mun Cheong who was under restricted residence in Kuala Terengganu and the Investigation Officer of the case (see p 150 of the record). The next hearing date was 29 November 2007.

[3] On 28 November 2007 the board replied the appellant's letter whereupon the board approved his request to call the two witnesses.

[4] It is worthy of note that though the board did not invoke its powers under s 9 of the Ordinance, it nevertheless carbon copied its letter to the Ibu Pejabat Polis Daerah Kuala Terengganu where the witness Fong Mun Cheong was residing under restricted residence and to the Ketua Penolong Pengarah Jabatan Siasatan Jenayah D7, Bukit Aman Kuala Lumpur where the Investigation Officer was attached. The reason for not invoking s 9 of the Act as averred by the Secretary was because of the short notice of two days and the failure of the appellant to avail himself of the benefit of the two earlier adjournments to obtain the witnesses as requested by him.

[5] In dismissing the appellant's application on the ground that the appellant had failed to establish non-compliance of the procedure on the part of the board, the learned High Court judge (Syed Ahmad Helmy J) said:

Upon evaluating the affidavit evidence filed herein, namely encls 3 and 19 affirmed by the applicant and the opposing affidavits of the Secretary of the Advisory Board in encls 13 and 20, I am of the considered view that s 9 of the Ordinance is an empowering section which confers powers on the Advisory Board to summon witnesses and compel the production of documents. It is the prerogative of the Board to exercise such powers and it cannot be compelled to exercise such power as contended and urged by the applicant in the instant case as the Board was acting within its prerogative by not issuing summonses for the attendance of the 2 witnesses requested by the applicant. The non-invocation of its power under s 9 does not in any way prejudice the applicant more so in the light of the Board's approval for the applicant to call the 2 witnesses, which the applicant can do by writing to the Chief Police Officer of Terengganu and/or to the Minister of Home Affairs for the production of the two witnesses. Interestingly there is no evidence of any attempt made by the applicant to secure their attendance.

[6] Before us, learned counsel for the appellant contended essentially on two grounds:

(i) Section 9 is a mandatory procedural requirement that must be exercised by the board when requested by the appellant to do so. Failure to do so would amount to a breach of mandatory procedural requirement by the board.

(ii) The right of the appellant for representations is being guaranteed under art 151(1)(a) of the Federal Cons