HAIRUL HISHAM SALIM v. DATO’ ZAINAL ABIDIN ZIN & ANOR

[2003] 2 CLJ 712

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HAIRUL HISHAM SALIM v. DATO’ ZAINAL ABIDIN ZIN & ANOR
HIGH COURT MALAYA, JOHOR BAHRU
[CRIMINAL APPLICATION NO: (MT-1) 44-01-2001]
SYED AHMAD HELMY JC
8 NOVEMBER 2002

ADMINISTRATIVE LAW: Remedies – Habeas corpus – Preventive detention – Whether detention order bad in law – Words “amongst others” in detention order – Effect – Whether Minister not furnishing fully grounds of detention – Inordinate time lag between criminal activities and detention order – Delay not explained for – Whether fatal – Whether habeas corpus to issue – Dangerous Drugs (Special Preventive Measures) Act 1985, s. 6(1) – Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 3(3)(c), 4(1) & (4)(b), 5 – Federal Constitution, art. 151

This was an application by the applicant for a writ of habeas corpus to issue against the respondents, and for him to be released forthwith from detention under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (‘the Emergency Ordinance’), on the grounds that: (i) the detention order as issued by the first respondent Minister under s. 4(1) of the Emergency Ordinance, by reason of the words “di antara” or “amongst others” therein, had not fully furnished the grounds upon which the order was based and had therefore contravened s. 4(4)(b) of the Emergency Ordinance; and (ii) the detention order was bad in law because of the significant lag of time between the prejudicial criminal activities of the applicant and the detention order. It was not in dispute that the phrase “di antara” was used in the detention order and that there was a lapse of 21 months between the last criminal activity of the applicant and the issuance of the detention order. The facts notwithstanding, the respondents argued, inter alia, that the legality of the detention could not be challenged on the basis that the detention was stale and too remote in point of time in relation to the detention order, as the Supreme Court in Menteri Hal Ehwal Dalam Negeri Malaysia & Anor v. Chua Teckhad made clear that such a challenge goes to the question of sufficiency or relevancy of the facts which falls within the domain of the subjective satisfaction of the Minister and which the court is prohibited from inquiring. The applicant contended however that Chua Teck‘s case was distinguishable and therefore not applicable to the present case. Before the learned judge, the main questions that arose were: (i) whether the words “di antara” in the detention order showed that the Minister had furnished only a part of the grounds forming the basis of that order; and (ii) whether the lag of time between the criminal activities and the detention order herein placed an obligation on the Minister to explain the delay, and if so, whether his failure to do so was fatal to the detention order.

Held:

[1] The words “di antara” in the grounds of detention do not in any way suggest that the Minister has taken extraneous consideration in arriving at his subjective satisfaction when issuing the detention order. The evidence indeed points to the contrary as the Minister, in his affidavit, specifically affirmed that he had based his subjective satisfaction on the grounds which he had directed his officer to prepare. This showed that the Minister had specifically directed his mind to the six grounds in the detention order. In the context of the grounds supporting the detention order, the words “di antara” only gave a wider and all encompassing meaning to the detenu’s diverse criminal activities. (pp 715 g-h & 716 a)

[2] Chua Teck‘s case revolves around a detention under the Dangerous Drugs (Special Preventive Measures) Act 1985 where, by virtue of the words “has been” in s. 6(1) thereof, the Minister is empowered to take into consideration the past association of the detenu with any activity relating to or involving in the trafficking in dangerous drugs. (p 718 a)

[2a] The Emergency Ordinance is a statute different from the Dangerous Drugs (Special Preventive Measures) Act 1985. There is a clear absence of the words “has been” in the relevant section of the Ordinance. And thus, by reason of the distinguishing feature, it can be safely said that Chua Teck‘s case, in establishing that the question of staleness or remoteness goes to the question of sufficiency or relevancy of the facts and hence falling within the subjective satisfaction of the Minister, is only confined to cases of detention made pursuant to the Dangerous Drugs (Special Preventive Measures) Act 1985 and not to detentions made under any other statutes. (pp 718 h & 719 b-d)

[3] Since the objective of the Emergency Ordinance excludes consideration of past association of the detenu’s criminal activities as falling exclusively within the subjective satisfaction of the Minister, the court is not precluded from questioning the staleness or remoteness of the detenu’s criminal activities in relation to the detention order. (p 719 e)

[3a] There has been inordinate delay between the detention order and the criminal activities of the detenu which makes the Minister’s subjective satisfaction not genuine or colourable. The Minister ought to have been alerted by point 6(i) of the applicant’s affidavit which averred to the point of delay and ought to have furnished an explanation for that. This unfortunately the Minister failed to do. A writ of habeas corpusmust in the circumstances be issued so as to set the applicant free. (pp 720 c-e & 721 b-c)

[Application allowed; order accordingly] 

Case(s) referred to:

Abdul Rahman Maidin v. Timbalan Menteri Dalam Negeri Malaysia & Ors [2000] 3 CLJ 8 CA (refd)

Malaysian Bar v. Tan Sri Dato’ Abdul Hamid Omar [1989] 2 CLJ 373; [1989] 1 CLJ 92 (Rep) ; [1989] 2 MLJ 281 (refd)

Menteri Hal Ehwal Dalam Negeri Malaysia & Ors v. Chua Teck [1990] 1 CLJ 220; [1990] 1 CLJ 178 (Rep) SC (dist)

SK Serajul v. State of West Benjal AIR [1975] SC 1517 (refd)

Yit Hon Kit v. Minister of Home Affairs, Malaysia & Anor [1986] 1 LNS 121 ; [1988] 2 MLJ 638 (refd)

Yong Pik Sing v. The Pengarah Pusat Pemulihan Akhlak & Anor & Other Applications [2000] 5 CLJ 58 HC (refd)

Legislation referred to:

Dangerous Drugs (Special Preventive Measures) Act 1985, s. 6(1)

Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 4(1), (4)(b), 5

Federal Constitution, arts. 151

Counsel:

For the applicant – Gobind Singh Deo (Zamri Idrus); M/s Karpal Singh & Co

For the respondents – Abdul Rani SFC, Ministry Home Affairs

Reported by WA Sharif

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