131_AP 44 207 07

Document Sample
131_AP 44 207 07 Powered By Docstoc
              PERMOHONAN JENAYAH NO. 44-207-2007

                              DI ANTARA

                     DURAI RAJA A/L SUPPIAH


                NEGERI, MALAYSIA
                KAMUNTING, PERAK
         4.     KERAJAAN MALAYSIA

                      ALASAN PENGHAKIMAN

      In this application for a writ of habeas corpus to issue, the
applicant had forwarded one issue for the consideration of this Court,
which according to his learned Counsel Mr. Vishnu, once considered
with the facts attending before me, should justify this court to agree
with him to release the applicant .
      Basically, this case revolved around the true import of rule 5(1)
and (2) of the Public Order and Prevention of Crime (Procedure)
Rules, 1972 [„the said 1972 Rules‟] and whether there had been a
non-compliance with the mandatory procedure as contained in the
said Rule 5. If there was, as was alleged by the learned counsel, then
such a breach must necessarily obligate this court to issue a writ of
habeas corpus as to release this applicant forthwith.

      The facts in this matter, which both parties appeared to have
agreed upon can be summarized as follows: That the applicant was
detained pursuant to an order issued by the Timbalan Menteri
Keselamatan Dalam Negeri, under section 4(1) of the Emergency
Ordinance (Public Order and Prevention of Crime) 1969 vide an order
dated the 4.9.2006. It was also agreed that the notice known as
Borang II was served on the applicant on the 24.11.2006, by Harun
bin Musa who was then a warden at the Pusat Pemulihan Akhlak
Simpang Renggam, Johore[ „PPA Simpang Renggam‟]. It was also
agreed that applicant did appear before the Advisory Board on the
date as mentioned in the said notice. The said warden had affirmed
an affidavit [encl: 5] wherein he had affirmed that he had indeed
served the said notice, Borang II on the applicant on the 24.11.2006.
As proof of this, he had exhibited in his affidavit, the said notice which
contained the date “24.11.2006” and the signature of the applicant
as proof of his receipt of the same. That would appear to be the
extent of their capacity to be mutually agreeable on the facts in this

     The applicant‟s counsel had then submitted that granted that
the applicant had signed on the notice as acknowledgement of the
said Borang II there was no proof on the said notice that could show
when the notice was received by him. This despite the fact that
warden Harun bin Musa had written on the said notice the date
“24.11.2006” in a space that existed in between the date of service
and date of receipt. Why he had chosen to do so remained a mystery
till today. Was he meaning to do so in the name of being economical
with his writing?   Be that as it may, looking back at his affidavit
paragraphs 10 and 11 therein, it had become quite apparent that he
had served the notice on the 24.11.2006 and that the applicant had
received it. I now reproduce the said paragraphs 10 and 11 verbatim:

     “10. Merujuk perenggan 7 dalam afidavit Pemohon, saya
     meyatakan bahawa pada 24-11-2006 di PPA Simpang
     Renggam, saya telah menyampaikan kepada Pemohon
     sesalinan Notis Pendengaran Representasi (selepas ini
     disebut sebagai “Borang II”) di bawah Kaedah 5(1),
     Kaedah-Kaedah       Ketenteraman       Awam   Dan     Mencegah
     Jenayah (Acara), 1972 (selepas ini disebut sebagai
     „Kaedah-kaedah tersebut”) yang saya terima daripada
     Lembaga        Penasihat   bertarikh    16-11-2006.       Saya
     kemudiannya telah membaca dan menjelaskan kepada
     Pemohon berhubung Lembaga Penasihat yang akan
     bersidang pada 06-12-2006, jam 10.00 pagi di Pusat
     Pemulihan Simpang Renggam bagi maksud representasi

Pemohon berhubung dengan Perintah Tahanan yang telah
dibuat terhadap Pemohon. Saya juga telah membaca dan
menjelaskan kepada Pemohon tentang hak-hak beliau
untuk   membuat     representasi     di   hadapan    Lembaga
Penasihat dan telah menerangkan kepada beliau bahawa
beliau boleh hadir sendiri dan berhak di wakili peguam bela
semasa persidangan tersebut. Borang II yang saya rujuk
telah dilampirkan sebagai ekshibit “SI-2” di dalam Afidavit
Jawapan    SUHAILA     BINTI      IBRAHIM   iaitu   Setiausaha
Lembaga Penasihat semasa persidangan representasi

11.   Saya selanjutnya percaya dan menyatakan bahawa
Pemohon     mengakui      telah    menerima     salinan   dan
memahami isi kandungan Borang II tersebut dengan
menurunkan tandatangannya di atas Borang II tersebut.
Saya selanjutnya menyatakan bahawa saya sesungguhnya
telah menggunakan Bahasa Malaysia yang mudah dan
kemudian menterjemahkannya ke dalam Bahasa Tamil.
Pemohon sendiri mengakui memahami penerangan saya
dan kemudiannya menurunkan tandatangan pada Borang
IIe tersebut.”[italics added by me as emphasis]

Thus, in the context of the facts as could be seen above, when
Harun bin Musa stated the date “24-11-2006” in a space that
existed between date of service and the date of receipt of the
said „Borang II‟ what he meant was that the said stated date

      was referring to the date of service by him on the applicant and
      the date of receipt by the applicant who had signed on it as
      acknowledgement. That is my finding on the issue.

      The applicant had also directed this court‟s attention to
paragraph 13 of the same affidavit by the said warden whereby he
had said in that same paragraph 13 that he had served the notice on
the applicant on the 20.11.2006. According to learned counsel, this
further cast doubt as to when the notice was served on his client. No
corrective affidavit was filed in by the warden accordingly.

      The learned SFC referred this court to the case of Tay Lay
Beng v. Menteri Hal Ehwal Dalam Negeri, Malaysia and Anor
[2004] 8 CLJ 674, where the court in that case had looked at the
overall evidence in determining whether a discrepancy as to the date
relating to a particular event could be held to be a mere typographical
error. In that case, it was ruled that there were other ample evidence
to support such a finding relating to the erroneous date of the
applicant‟s arrest in the affidavit of the Police Officer reporting the
circumstances of the detenu‟s arrest . As such, the mistake in the
affidavit of the said Police Officer in that case was held by the Court
as a mere typographical error.

      In this case before us, looking at the circumstances in this case,
I too find that the date “20.11.2006” as appearing in paragraph 13 of
the affidavit of the said warden has been a typographical error as
well. There exist averments in affidavits of other deponents who have

deposed that the document was served on the applicant on the
24.11.2006, such as that of the Secretary of the Advisory Board.

     Going back to what actually has been proven at this stage by
the affidavits of all relevant parties, has been that the notice in
Borang II was for all intent and purposes, served on this applicant on
the 24.11.2006. The fact that the applicant had signed as having
acknowledged the receipt of the same was not denied. In fact it was
accepted and admitted by learned counsel. His only complaint was
that there was no evidence to show when the applicant received it,
the affidavit of the warden notwithstanding.

     So, that must therefore bring us now to the interpretation of the
true working of Rule 5(1) and (2) of the said 1972 Rules. What
course of action is contemplated by the framers of this Rule 5 ?

     According to the learned SFC what this Rule 5 requires is that
the notice Borang II must be served on the applicant as it concerns
his right to appeal before the Advisory Board so that the applicant
would be acquainted with the date of the hearing of his appeal before
the Advisory Board and henceforth to further chart his next move, like
whether he was minded to engage legal counsel to advise him,
moving forward. That must be „the pith and substance‟ that underlines
the existence of the said Rule 5 and which needed to be abided by
the detaining authority.    According to him, once service on the
applicant had been proven, there was no legal requirement to show
when in point of time did the applicant receive it. To my mind, the

contents of paragraphs10 and 11 of the affidavit [encl.5] of the
warden which were not challenged by any semblance of an affidavit
by this applicant are sufficient to meet the requirements of the said
Rule 5.

      The learned counsel submitted otherwise and cited the case of
Aw Ngoh Leang v. IGP (1993) 1 MLJ 65 in trying to draw an anology
that could be had from that case. The learned SFC, in the course of
his submission in reply, had addressed the matter quite admirably by
distinguishing the issues obtaining in both the cases. Suffice for me to
say that the Court in Aw‟s case[supra] was faced with a different
provision albeit emanating from the same legislation. Suffice too, for
me to say that I am in total agreement with the learned SFC‟s
argument and ultimate opinion on the matter. Indeed the distinction
was a valid one and the consequential effect obtaining therefrom was
equally valid as well. In Aw‟s case [supra], the non-compliance had
come in the form of failure to serve the mandated 3 copies of „Borang
I‟ on the detainee as required by Rule 3 of the 1972 Rules. Since the
non-compliance was in respect to a mandatory procedure, such
failure must necessarily be fatal and indeed a writ of habeas corpus
was issued. Justice LC Vohrah J had gone so far to say in that Aw‟s
case that any disobedience of the mandatory requirements for the
protection of the right of a detainee would vitiate an order of detention
made, even if no real prejudice has ensued to that detainee. No such
similarity in terms of express mandatory provisions could be found in
Rule 5 which ought to „necessitate‟ this court to rule in like manner as
did the appellate justices in Aw‟s case [supra].

     Having considered the arguments from both parties, I agree
with the learned SFC on the true import of the said Rule 5. To my
mind, Rule 5, as appears in sub-rules(1) and (2) are clear as regards
their intent, which requires the detaining authority to ensure that the
detainee be served with the Borang II so as to enable him to ponder
his next course of action such as whether he would wish to forward
his representations to the Advisory Board. There is nothing in them to
even suggest that there must be proof as to when the applicant had
received the said Borang II. In fact, from the warden‟s affidavit
[encl 5], since the service was done by him on a certain date on the
same applicant, who had also admitted to having received it by
signing on it as acknowledgement, the only reasonable inference
which could be drawn from such a circumstance must necessarily be
that the applicant must have received it on the same date when the
good warden had served it on him. There has been no affidavit
emanating from this applicant rebutting the asserted fact that the said
Borang II was served on him on 24.11.2006. In fact, to my mind,
paragraph 13 in the affidavit of the said warden was crafted as a
summary of what he had done which are contained in the previous
paragraphs. That bolsters my finding that the date stated therein as
“20.11.2006” has been an unfortunate typographical error but one
with no dire consequence emanating therefrom. The Aw‟s case
[supra] cited by the learned counsel could be easily distinguishable in
the manner which was submitted to by the learned SFC, in that it
concerned a different legal provision in the same 1972 Rules, but

which required a different set of procedural compliance by the
detaining authority.

      As such, based on the above, I would therefore refuse to order
that a writ of habeas corpus be issued to secure the release of this

                         ABANG ISKANDAR B. ABANG HASHIM
                             JUDICIAL COMMISSIONER
                             HIGH COURT SHAH ALAM.

Dated this 13th May, 2008.


Shared By: