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WONG SING DIENG v. TIMBALAN MENTERI DALAM NEGERI


MALAYSIA & ORS
[2012] 2 MLRH 799

High Court Malaya, Kuala Lumpur


Mohd Sofian Abd Razak J
[Criminal Application No: 44-38-2011]
3 October 2011
Preventive Detention
Criminal Procedure
Counsel:
For the applicant: P Visnu Varman; M/s Alvinthiren & Partners
For the respondent: Pn Azliza; SFC, Ministry of Internal Security
JUDGMENT
Mohd Sofian Abd Razak J:
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[1] This is an application (encl 2) by Wong Sing Dieng (hereinafter called 'the
applicant') for a writ of habeas corpus ad st/6/Sciendum and supported by an
affidavit of the applicant (encl 3) filed herein. The applicant is presently detained at
the Pusat Pemulihan Akhlak, Machang, Kelantan (hereinafter called 'the PPA
Machang') by a detention order dated the 10th December 2010 issued by the
Honourable Deputy Minister of Home Affairs (hereinafter called 'the Honourable
Deputy Minister') and made pursuant to s 4(1) of the Emergency (Public Order and
Prevention of Crime) Ordinance 1969 (hereinafter called 'the Ordinance'). The
detention is for a period of two (2) years commencing the 10th December 2010.
[2] The court on the 16th August 2011, after perusing the applicant's application
and the affidavits filed herein, and after hearing oral submissions by both parties,
dismissed encl 2. The applicant who was dissatisfied with the said decision has since
filed an appeal.
The Arguments by Parties:
[3] The learned counsel for the applicant had raised 3 issues which vitiates the
detention order for procedural non compliance and ought to be set aside
a) Failure to Comply with s 3(3)(c) of the Ordinance.
[4] Whether the arrest and the investigating report and the case file forwarded by
ACP Kamarul Zaman Bin Mamat was by a designated officer exercising the
functions under s 3(3)(c) of the Ordinance can be considered as a report that can be
accepted by the Honourable Deputy Minister in making his decision to issue the
detention order under s 4(1) of the Ordinance. The learned counsel referred to an

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affidavit in reply by ACP Kamarul Zaman affirmed on the 1st April 2011 (encl 4) in
particular para 4 therein where the deponent had stated that he was a designated
officer appointed by the Inspector General of Police (hereinafter called 'the IGP')
under s 3(3)(c) of the Ordinance who could forward the case file or the report
containing the circumstances of the applicant's arrest and detention to the Hon.
Deputy Minister for his consideration. Reference was further made by the learned
counsel to exh 'KZM -1' a letter dated the 28th April 2010 appointing the deponent
as a designated officer to exercise the functions pursuant to s 3(3)(c) of the
Ordinance and signed by Tan Sri Musa bin Dato' Hj Hassan as the IGP. The learned
counsel submit that as at 12th November 2010, Tan Sri Musa Hj Hassan had
retired as the IGP and Tan Sri Ismail bin Omar was appointed the new IGP as from
13th September 2010. The learned counsel was of the view that as the new IGP,
Tan Sri Ismail Omar should have issued a new letter appointing the deponent as the
designated officer pursuant to s 3(3)(c) of the Ordinance as the appointment made
by Tan Sri Musa Dato' Hj Hassan had lapsed when he retired as the IGP. The
learned counsel referred to following cases namely:
i) Ong Hong Seng v. TMDNM & Ors (unreported)
ii) L Rajanderan R Letchumanan v. TMDNM & Ors [2010] 2 MLRA
182; [2010] 7 CLJ 653
[5] The crux of the decision in both cases is that 'the report of the IGP or his
designated officer under s 3(3) is the only and crucial report for the Minister's
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consideration before making a detention order.'


[6] The learned counsel referred to Sugu a/l Nadaraja v. TMDNM & 3 Ors [2011]
1 MLRA 14; [2011] 2 CLJ 369 a decision by the Federal Court where the learned
counsel himself was the counsel in the matter. The facts in Sugu's case involved the
question of whether DSP Sukri was a designated police officer appointed by the IGP
under s 3(3)(c) of the Ordinance who could forward the case file or the report
containing the circumstances of the applicant's arrest and detention to the
Honourable Deputy Minister for his consideration. The court held that DSP Sukri
was not a police officer designated by the IGP under s 3(3)(c) of the Ordinance who
could forward the case file or the report containing the circumstances of the
applicant's arrest and detention to the Honourable Deputy Minister for his
consideration. The court held that DSP Sukri was not a police officer designated by
the IGP under s 3(3)(c) of the Ordinance who could forward the case file or the
report containing the circumstances of the applicant's arrest and detention to the
Honourable Deputy Minister for his consideration. There was therefore, a
procedural non-compliance in the detention of the applicant.
[7] The senior federal counsel (hereinafter called 'the learned SFC') in reply submit
that Tan Sri Musa bin Hj Hassan had retired as the IGP on the 12th September
2010 and on the 13th September 2010 Tan Sri Ismail bin Omar was appointed as
the new IGP. ACP Kamarul Zaman bin Mamat had forwarded the case file or the
report containing the circumstances of the applicant's arrest and detention to the
Honourable Deputy Minister when Tan Sri Musa bin Hj Hassan had retired. It was
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the stance of the learned SFC that the appointment of ACP Kamarul Zaman
pursuant to s 3(3)(c) of the Ordinance was made by Tan Sri Musa Bin Hj Hassan in
his capacity as the IGP and not on an individual personal capacity. Likewise the
appointment of the ACP Kamarul Zaman pursuant to s 3(3)(c) of the Ordinance was
made by virtue of the deponent's position as the 'Ketua Penolong Pengarah
Tahanan, Jabatan Siasatan Jenayah.'
b) Denial Access to Legal Representation:
[8] The learned counsel for the applicant referred to the affidavits by the applicant
affirmed on the 13th April 2011 and 25th May 2011 respectively. It was stated that
the applicant had asked for a postponement of the hearing of his representation
before the advisory board (hereinafter called 'the board') on the 12th January 2011
to enable him to appoint counsel. In the affidavit affirmed on the 13th April 2011
the applicant stated that his family had contacted a lawyer and the said lawyer did
come to the PPA Machang, Kelantan and met the applicant. The applicant
nonetheless said that the respondent in an affidavit in reply by the secretary of the
board affirmed on the 1st April 2011 had denied that the applicant wanted to be
represented by a counsel by reference to an exh 'JMG-1' which is a copy of the
Borang 1. The learned counsel further submit that it was the right of the applicant
to change his view if he wishes to be represented by counsel notwithstanding that in
the Borang 1 the applicant had stated that he does not wish to be represented by a
counsel at the hearing of his representation before the board. This must be notified
before the hearing of his representation. It was further submitted that the fact that
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3 Borang 1 were handed over to the respondent and the fact that a lawyer had met
the applicant was indicative that the applicant wanted to be represented by a
counsel at the hearing of his representation.
[9] The learned SFC in reply submit that it was quite obvious that in the affidavit of
the secretary of the board at para 13 affirmed on the 1st April 2011 and at para 4 of
the affidavit affirmed on the 24th June 2011 respectively the applicant had
indicated that he does not wish to be represented by counsel and would conduct the
hearing on his own. The learned counsel referred to the case of Su Yu Min v. Ketua
Polls Negeri [2005] 1 MLRH 667; [2005] 6 MLJ 768; [2005] 3 CLJ 875; [2005]
5 AMR 434 where the brief facts of the case involved a dispute of facts between the
applicant and the Deputy Superintendant of Prison Mohd Andri Bin Md Ridzwan in
regard to whether the contents of Borang C and E were explained to the applicant.
It was stated that the applicant acknowledged that the contents therein were
explained in simple Malay and understood by the applicant. The learned judge in Su
Yu Min's case was of the view that 'I do not see any reason to disbelieve Mohd
Andri. He was performing an official duty in which he had no personal interest.' It
was the view of the learned SFC that Jordan a/k Martin Gu as a secretary of the
board has no interest in the outcome of the hearing of the representation of the
applicant and was merely performing his duties as directed.
c) The Detention Order was issued by the Honourable Deputy Minister
Mechanically and in a Robotic Manner.
[10] The above allegation was in reference to the contents of an affidavit in reply by
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ACP Kamarul Zaman affirmed on the 1st April 2011 in particular paras 6,7 and 10
respectively where it states that upon receipt of the arrest and detention report
from DSP Mohd Sukri Bin Kaman (ironically the so called designated officer under s
3(3)(c) of the Ordinance in Sugu a/l Nadaraja) the deponent on the 11th November
2010 at 9.45am and on the 12th November 2010 forwarded the same to the
Honourable Deputy Minister for his consideration. The Honourable Deputy Minister
in his affidavit in reply (encl 12) at para 6 thereof confirmed that he had received
the arrest and detention report on the 12th November 2010. The complaint by the
learned counsel was that ACP Kamarul Zaman had done 'a speedy Gonzales' by
spending only 24 hours preparing his report before submitting it to the Honourable
Deputy Minister for his consideration. The allegation was that ACP Kamarul Zaman
had not devoted sufficient time to study the arrest and detention report of the
applicant upon receipt from DSP Mohd Sukri.
[11] The Honourable Deputy Minister then received the complete set of documents
containing the arrest and case file report on the 10th December 2010 and after
perusing the case file issued the detention order that the applicant be detained
under s 4(1) of the Ordinance for a period of two (2) years commencing the 10th
December 2010. The learned counsel also took issue on this point in that the
Honourable Deputy Minister had spent insufficient time hardly 12 hours to study
the case file of the applicant before issuing the detention order and therefore the
decision made was deemed 'mechanical and robotic' without applying his mind
before the order was made.
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[12] The learned SFC in reply submit that under s 19 of the Police Act 1967, a
police officer was deemed to be always on duty when required to act as such and
shall perform the duties and exercise the powers granted to him under the Act or
other law at any place in Malaysia where he may be doing duty. In this respect, ACP
Kamarul Zaman was at the material time performing his duties 24 hours and which
included perusing the case file of the applicant and preparing the relevant report for
submission to the Honourable Deputy Minister. The Honourable Deputy Minister in
his affidavit in encl 12 at para 12 had stated that he had studied the case file of the
applicant and had applied his mind to it before he issued the detention Order
therein.
Findings of the Court:
On the First Issue:
[13] The court finds that there was no basis for the allegation that the appointment
of ACP Kamarul Zaman by the then IGP Tan Sri Musa bin Dato' Hj Hassan as the
designated officer pursuant to s 3(3)(c) of the Ordinance was invalid by reason of
the fact that by the time the arrest report and the case file of the applicant was
submitted to the Honourable Deputy Minister, Tan Sri Musa Hj Hassan had already
retired and replaced by Tan Sri Ismail Bin Omar. In the court's view, the
appointment of ACP Kamarul Zaman as the designated officer to perform the
functions under s 3(3)(c) of the Ordinance was still valid despite the retirement of
Tan Sri Musa Bin Hj Hassan. The court agrees with the submission of the learned
SFC that the appointment of ACP Kamarul Zaman as a designated officer under s
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3(3)(c) of the Ordinance was made by Tan Sri Musa Hj Hassan in his capacity as the
IGP and not in his personal private capacity. In this respect the retirement of Tan
Sri Musa Hj Hassan as the IGP on the 12th September 2010 and the appointment
of Tan Sri Ismail Omar as the new IGP on the 13th September 2010 does not
invalidate the appointment of ACP Kamarul Zaman as the designated officer to
perform the functions under s 3(3)(c) of the Ordinance. There was no requirement
for the new IGP, Tan Sri Ismail Omar to issue a new appointment letter appointing
ACP Kamarul Zaman as the designated officer. The Federal Court in Tang Wei
Sheng v. TMDNM & Ors (unreported case No: 05-151-2011) held that the
appointment of the designated officer pursuant to s 3(3)(c) Dangerous Drugs
(Special Preventive Measures) 1985 was made by the IGP in his capacity as the
IGP and not in his private personal capacity. The court was of the view that s
3(3)(c) of the Dangerous Drugs (Special Preventive Measures) 1985 is in pari
materia with s 3(3)(c) of the Ordinance. The court hereby dismissed the applicant's
argument on this issue and ruled that the appointment of ACP Kamarul Zaman as a
designated officer was valid in the circumstances. The decision in Sugu a/l
Nadaraja (supra) was correct on the facts which is distinguishable from the facts in
the instant case. In the former case, the police officer who prepared the arrest and
investigating report and submitting it to the Honourable Minister was not a
designated police officer exercising the functions pursuant to s 3(3)(c) of the
Ordinance.
On the Second issue:
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[14] The court was of the view that on the facts as shown, there was no evidence
that the applicant was denied access to legal representation. On the contrary, if one
were to look at exh 'JMG 1' the Borang 1 filled up by the applicant dated the 13th
December 2010 had indicted that he does not wish to be represented by a counsel.
The applicant had deleted the column in Borang 1 and leaving behind what was
stated that 'Saya tidak bercadang untuk diwakili oleh peguambela'. If it was the
stance of the learned counsel that the applicant was entitled to change his mind and
wanted to be represented by counsel, where was there evidence to show that
between the date as stated in Borang 1, 13 December 2010 till the hearing of the
applicant's representation on the 12th January 2011, that the applicant had
appointed a counsel to represent him. The learned counsel submit that a lawyer did
in fact meet with the applicant before the 12th January 2011, but why no
documentary proof was shown that there was a lawyer appointed to represent the
applicant by the applicant's family. The court has had the opportunity of deciding on
a similar issue in Rajendran Murugaya v. TMDNM & Ors [2011] 5 MLRH 178
where the applicant had also deleted the relevant column and leaving behind the
words 'Saya tidak bercadang untuk diwakili oleh peguambela' The court in
Rajendran Murugaya (supra) held that by virtue of what was stated in the Borang
1 that the applicant does not wish to be represented by counsel, the applicant was
therefore not denied legal access to counsel. Likewise in the instant case on the facts
the court was of the view that the applicant was not denied legal representation.
The court therefore dismissed the applicant's argument on this issue.
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On the Third Issue:


[15] The court was appraised of the fact that the Honourable Deputy Minister
having received the arrest and investigating report and the case file from ACP
Kamarul Zaman the designated officer performing the functions under s 3(3) (c) of
the Ordinance, on the 10th of December, 2010 and some 12 hours later, the
Honourable Deputy Minister had issued the detention order on the applicant. The
allegation by the learned counsel was that the Honourable Deputy Minister had
taken just 12 hours to study the case file and then issued the detention order. In
doing so the Honourable Deputy Minister had not applied his mind and thoughts to
study the case file when he decided to issue the detention order and was said to
have made his decision in a mechanically and robotic manner. The court was of the
view that the Honourable Deputy Minister had in his affidavit in encl 12 at
paragraph stated that he had studied the case file and had applied his mind and
thoughts to it before he issued the detention order on the applicant. The Honourable
Deputy Minister made his order based on the statements condescends to the
particulars of the dates and places where the applicant carried out his criminal
activities. Section 4(1) of the Ordinance stipulates that 'if the minister is satisfied'
which imports a subjective test. In applying this test the issue is whether the
Honourable Deputy Minister had reasonable grounds to be satisfied that the
applicant had acted in the manner prejudicial to public order. It was not opened to
the court to query on the sufficiency, relevancy or otherwise of the allegations of
facts furnished to him. The court therefore dismissed the applicant's argument on
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this issue.
[16] The court would like to quote a passage in Lee Kew Sang v. TMDNM & Ors
[2005] 1 MLRA 692; [2005] 2 MLJ 631; [2005] 3 CLJ 914; [2005] 4 AMR 724
where Abdul Hamid Mohamad FCJ (as his lordship then was) delivering the
judgment of the court at pp 921-922 had this to say:
"The Ordinance was amended by the Emergency (Public Order and
Prevention of Crime) (Amendment) Act, 1987 (Act A740) which came
into force on the 24thth August 1989 (Similar amendments were also
made to the ISA 1960 and DD (SPM) Act 1985 by Act 739 and Act 738,
restricted challenges to detention orders made by the minister under s
4(1) of the Ordinance to grounds of non-compliance with any procedural
requirement and nothing else.
His lordship further stated that (at pp 930-931)
In our view, courts must give effect to the amendments. That being the
law, it is the duty of the courts to apply them. So in habeas corpus
application where the detention order of the minister made under s 4(1)
of the Ordinance or, for that matter, the equivalent sections in ISA 1960
and DD (SPM) Act 1985, the first thing the court should do is to see
whether the ground forwarded is one that falls within the meaning of
procedural non-compliance or not. To determine the question, the courts
should look at the provisions of the law or the rules that lay down the
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procedural requirements. It is not for the courts to create procedural


requirements because it is not the function of the courts to make laws or
rules. If there is no such procedural requirement then there cannot be
non-compliance thereof. Only if there is that there can be noncompliance thereof and only then the courts should consider whether, on
the facts, there has been non-compliance...."
[17] In conclusion, and based on the reasons as adumbrated above and in all the
circumstances, there were no procedural non-compliance shown by the applicant in
their arguments. The court hereby dismissed the applicant's application for a writ of
habeas corpus

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