Criminal Procedure: Habeas corpus - Appeal against High Court's refusal to issue appellant a writ of habeas corpus - Whether appellant denied his right to be represented by counsel - Whether there was technical defect - Whether detaining authority did not meet its burden to satisfy the court that strict requirements of law were met - Whether appellant's detention unlawful - Wilful withholding of material evidence - Whether adverse inference may be invoked on respondents

Evidence: Adverse inference - Section 114(g) Evidence Act 1950 - Wilful withholding of material evidence - Whether adverse inference may be invoked on respondents for failure to adduce the minutes of the Board hearing - Whether there was withholding or suppression of evidence - Whether oblique motive shown

The appellant was arrested under s 3 of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('the Act'). Based on the relevant investigation and related reports, the 1st respondent exercised his discretion to issue a detention order detaining the appellant at Pusat Pemulihan Akhlak Machang, Kelantan for two years effective from the date of issuance. At the High Court, the appellant argued that he was entitled to a writ of habeas corpus on the ground that he was denied his right to be represented by counsel. The appellant claimed that he had only met and appointed his counsel on the date of the High Court hearing. But, his counsel advised him to seek an adjournment so that he may be prepared. The appellant claimed that his request for a second adjournment was denied and the hearing proceeded without his counsel. The respondents argued that on the date of the hearing, the appellant appeared with his lawyer. They said that the appellant indicated his intention not to be represented by a lawyer, refused the offer of an adjournment, and chose to continue with the proceedings. The Judicial Commissioner of the High Court refused to issue the appellant a writ of habeas corpus and the appellant appealed.

Held (allowing the appellant's application):

(1) Section 9(1) of the Act mandatorily entitled any detainee the right to make representations before the Board. Rule 4(3) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987 (1987 Rules), enabled the detenu to make representations either personally or through his representative. Where a detenu was denied the right to representation via counsel, he would effectively be denied his entire right to make representations. (paras 14-15)

(2) Whether the appellant was allowed the right to counsel was unclear from the conflicting affidavit evidence. However, where there were two inferences open against the accused, especially in the face of conflicting evidence, the one most favourable to the accused was to be preferred. Laws which deprived a subject of his right to personal liberty ought to be accorded the same strict construction as penal laws. (paras 17-18)

(3) The burden to justify the detention lay on the respondents, but their failure to adduce the minutes of the Board hearing amounted to a wilful withholding of material evidence. This called for an inference favourable to the appellant, and also for an adverse inference against the respondents. The respondents were presumed to have withheld the contents of the minutes of the Board hearing, as it would have been unfavourable to them. (para 21)

(4) The Judicial Commissioner fell into error in failing to appreciate these settled principles of law. Had he considered them, he would have been minded to find that there was clear non-compliance with the mandatory provisions of the law entitling the appellant to a writ of habeas corpus. (para 25)

Case(s) referred to:

Lui Ah Yong v. Superintendent Of Prisons Penang [1975] 1 MLRH 608; [1977] 2 MLJ 226 (refd)

Ng Hong Choon v. Timbalan Menteri Hal Ehwal Dalam Negeri & Lagi [1994] 1 MLRA 375; [1994] 3 MLJ 285; [1994] 4 CLJ 47; [1994] 1 AMR 615 (refd)

Re Roshidi Bin Mohamed [1987] 2 MLRH 470 (refd)

SK Tangakaliswaran Krishnan v. Menteri Dalam Negeri Malaysia & Ors [2009] 2 MLRA 631; [2010] 1 MLJ 149; [2009] 6 CLJ 705 (refd)

Takako Sakao v. Ng Pek Yuen & Anor [2009] 3 MLRA 74; [2009] 6 MLJ 751; [2010] 1 CLJ 381 (refd)

Yeap Hock Seng Ah Seng v. Minister For Home Affairs Malaysia & Ors [1975] 1 MLRH 378; [1976] 1 MLJ 287 (refd)

Yusoff Kassim v. Public Prosecutor [1992] 1 MLRA 391; [1992] 2 MLJ 183; [1992] 1 CLJ 376 (refd)

Legislation referred to:

Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987, r 4(3)

Dangerous Drugs (Special Preventive Measures) Act 1985, ss 3, 9(1)

Evidence Act 1950, s 114(g)

Counsel:

For the appellant: Sivananthan Nithyanantham (Jay Moy Wei Jiun with him); M/s Sivananthan

For the respondent: Muhammad Sinti; SFC

[Allowing the appellant's application.]

JUDGMENT

David Wong Dak Wah CJSS:

Introduction

[1] This appeal stemmed from the decision of the High Court refusing to issue the appellant a writ of habeas corpus. We heard the appeal on 12 February 2019 and after careful consideration, unanimously allowed it. We set aside the order of the High Court, allowed the appellant's application for a writ of habeas corpus and ordered that he be released from detention with immediate effect. These are our written reasons.

Background

[2] The appellant was arrested on 21 February 2017 under s 3 of the Dangerous Drugs (Special Preventive Measures) Act 1985 (the Act). Upon investigation and submission of the various reports to the 1st respondent, the 1st respondent exercised his discretion to issue a detention order (Detention Order) dated 19 April 2017 detaining the appellant at Pusat Pemulihan Akhlak Machang, Kelantan for two years effective from the date of issuance.

[3] At the High Court, the appellant argued that he was entitled to a writ of habeas corpus citing at least 22 procedural errors. However, at the hearing of his application, the appellant narrowed down his complaints into a single issue. He argued that he was denied his right to be represented by counsel.

[4] The complaint arose in the following way. Under s 9 of the Act, a copy of every order of the Minister permitting detention must be served on the detainee and such detainee has the right to make representations to the Advisory Board (the Board) on his detention. The evidence indicated that the appellant wanted to be represented by counsel during his representation before the Board.

[5] The hearing before the Board was fixed on 6 June 2017. This was communicated to the appellant on 22 May 2017. It was undisputed in the court below that come 6 June 2017, the appellant had not yet appointed counsel. The hearing was therefore duly rescheduled to 11 July 2017.

[6] Come 11 July 2017, the appellant appeared again before the Board. Upon reading all the affidavits, we are faced with two conflicting versions of the rest of the story.

[7] The appellant claimed that he had only met and appointed his counsel on the date of the said hearing. But, his counsel advised him to seek an adjournment so that he may be prepared - having of course, then just been appointed. The appellant claimed that his request for a second adjournment was denied and the hearing proceeded without his counsel. He claimed this was a denial of his right to be represented by counsel.

[8] The respondents in turn took the position that on the date of the hearing, the appellant appeared with his lawyer. They said that the appellant indicated his intention not to be represented by a lawyer, refused the offer of an adjournment, and chose to continue with the proceedings.

The Decision Of The High Court

[9] The pertinent part of the High Court's decision may be gleaned from the following two paragraphs of its judgment:

"[13] Isu di sini ialah percanggahan di dalam afidavit Ahmad Lazimi sendiri dan bertentangan dengan afidavit Pemohon. Ahmad Lazimi mengatakan pada 11 Julai 2017 Pemohon tidak mohon penangguhan dan apabila ditanya Pemohon mengatakan dia tiada peguam dan ingin meneruskan representasinya.

[14] Sungguhpun terdapat percanggahan di dalam afidavit Ahmad Lazimi, bagi saya, ianya tidak menjejaskan penahanan Pemohon. Fakta kes ini berbeza dengan kes SK Takaliswaran (supra) yang jelas sekali pertentangan atau percanggahan di antara dua deponen. Pemohon pula tidak menyatakan alasan kepada Lembaga Penasihat mengapa penangguhan diminta kerana penangguhan telahpun diberi pada masa pendengaran pertama dan masa yang mencukupi telah diberikan daripada mula tarikh perintah tahanan dikeluarkan. Malah jarak masa di antara pendengaran pertama dan kedua lebih daripada sebulan."

Our Decision

[10] The law on habeas corpus is trite. It is not a discretionary remedy. The writ must be issued if the court finds that the detenu is illegally or improperly detained. See: Yeap Hock Seng Ah Seng v. Minister For Home Affairs Malaysia & Ors [1975] 1 MLRH 378; [1976] 1 MLJ 287, Abdoolcader J (as he then was) said as follows:

"The grant of habeas corpus is as of right and not in the discretion of the court as in the case of such extraordinary legal remedies as certiorari prohibition and mandamus. It is a writ of right against which no privilege of person or place can be of any avail (R v. Pell And Offly 84 ER 720. The heavy musketry of the law will always be brought to bear upon any suggestion of unlawful invasion or infringement of the personal liberty of an individual in the form of habeas corpus and kindred orders where necessary to grant relief when warranted. It was aptly put in the American case of State ex rel Evans v. Broaddus 245 Mo 123 140 that at least in times of peace every human power must give way to the writ of habeas corpus and no prison door is stout enough to stand in its way."

[11] Where a detainee challenges his detention as being illegal, the burden lies on the detaining authority to show that the detention is legal. In SK Tangakaliswaran Krishnan v. Menteri Dalam Negeri Malaysia & Ors [2009] 2 MLRA 631; [2010] 1 MLJ 149; [2009] 6 CLJ 705, Gopal Sri Ram FCJ held as follows at p 632:

"It is settled law that on an application for habeas corpus the burden of satisfying the court that the detention is lawful lies throughout on the detaining authority. See, Chng Suan Tze v. The Minister Of Home Affairs & Ors And Other Appeals [1988] 1 MLRA 486; [1989] 1 MLJ 69. In Mohinuddin v. District Magistrate, Beed AIR [1987] SC 1977, the Supreme Court of India observed as follows in the context of art 22 of the Indian Constitution from which is drawn our art 151:

It is enough for the detenu to say that he is under wrongful detention, and the burden lies on the detaining authority to satisfy the court that the detention is not illegal or wrongful and that the petitioner is not entitled to the relief claimed. This court on more occasions than one has dealt with the question and it is now well-settled that it is incumbent on the State to satisfy the court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in art 22(5)."

[12] Even if a detention was originally made in exercise of valid legal power, it may subsequently become invalid over a passage of time. See Lui Ah Yong v. Superintendent Of Prisons Penang [1975] 1 MLRH 608; [1977] 2 MLJ 226 where at pp 609 & 612 Arulanandom J said:

"The second limb of the argument merits greater consideration, ie whether a detention which at its inception was legal could become illegal as a result of passage of time or for other reasons. The answer to this question will necessarily determine the result of this application ...

In view of this it is quite obvious that the authorities have exhausted all avenues and are unable to remove the applicant to his place of embarkation or his country of citizenship.

The powers of detention under s 34(1) are clearly and unambiguously limited to detention for the purposes of removal to one of two places, ie the place of embarkation or country of citizenship and therefore the moment the detaining authorities have failed or found themselves in a position where the object of detention cannot be fulfilled, then it cannot be argued that further detention remains lawful. The purpose of the detention having been frustrated, continued detention a fortiori becomes unlawful."

[13] Further, the applicant is entitled to take advantage of any technical defect which has the effect of invalidating his detention. See Ng Hong Choon v. Timbalan Menteri Hal Ehwal Dalam Negeri & Lagi [1994] 1 MLRA 375 where at p 381; [1994] 3 MLJ 285; [1994] 4 CLJ 47; [1994] 1 AMR 615, Wan Yahya SCJ held as follows:

"In cases of this nature the appellant is nevertheless entitled to take advantage of any technical imperfection which has the effect of invalidating the restrictive order; or to use the precise words of Regby J in Ex Parte Johannes Choeldi & Ors [1960] 1 MLRH 181; [1960] MLJ 184 at p 185:

The distinction, no doubt, is a highly artificial one. But this is an application for a writ of habeas corpus, and the applicants in matters which concern their personal liberty, are entitled to avail themselves of any technical defects which may invalidate the order which deprives them of that liberty."

[14] Was there a technical defect here? Section 9(1) of the Act mandatorily entitles any detainee the right to make representations before the Board. Rule 4(3) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987 (1987 Rules), enables the detenu to make representations either personally or through his representative.

[15] Some detainees may think that counsel can make better representations than they can themselves make. So to us, it is a logical conclusion that where a detenu is denied the right to representation via counsel, he would effectively be denied his entire right to make representations.

[16] The above statutory requirements are mandatory and so must be complied with strictly. This is because we were here dealing with the crucial subject of the liberty of a person detained without trial. All the more we considered that his right to make representations could not have been superfluous, meaningless or a mere facade. It has been held that failure to comply with strict requirements may render a detention unlawful. See: Re Roshidi Bin Mohamed [1987] 2 MLRH 470.

[17] Now, whether the appellant was allowed the right to counsel was unclear from the conflicting affidavit evidence. The appellant cited to us the decision in SK Tangakaliswaran Krishnan (supra) which decision we think is on all fours. In that case, this court at p 632 dealt with the subject of conflicting affidavit evidence in a habeas corpus case as follows:

"It is for the respondents to prove that the constitutional and statutory safeguards embodied in art 151 and s 6(1) were strictly complied with. The liberty of an individual should not be infringed upon even to the slightest extent without proof that the impugned infringement is in accordance with the Constitution and statute ... And where that evidence is by way of affidavit the court is not spared the task of subjecting its contents to the same tests as in any other case, if not to stricter scrutiny since the case concerns the violation of a constitutionally guaranteed protection ... Further, where a party upon whom the onus of proof lies adduces conflicting or contradictory evidence, a court assessing that evidence is in the usual way entitled to rule that the burden has not been discharged. And in a matter as important as individual liberty, where contradictory averments are made on oath, the detenu is entitled to rely on the version that is most favourable to him. Put a little differently, where as in circumstances present here, more than one inference may be drawn from the evidence presented by the detaining authority, the inference most favourable to the detenu must be drawn."

[18] It has always been the case with our criminal law that where there are two inferences open against the accused, especially in the face of conflicting evidence, the one most favourable to the accused is to be preferred. See generally: Yusoff Kassim v. Public Prosecutor [1992] 1 MLRA 391; [1992] 2 MLJ 183; [1992] 1 CLJ 376 (Supreme Court). We did not see why the approach should be any different in respect of detainees in habeas corpus cases. After all, laws which deprive a subject of his right to personal liberty ought to be accorded the same strict construction as penal laws. In Ng Hong Choon v. Timbalan Menteri Hal Ehwal Dalam Negeri & Lagi [1994] 1 MLRA 375; [1994] 3 MLJ 285; [1994] 4 CLJ 47; [1994] 1 AMR 615, Wan Yahya SCJ had this to say:

"Laws which deprive the subjects of their rights to personal liberty are subject to strict construction in the same way as penal laws - see Nagin Singh v. Jagannath, AIR 1944 Lah 422."

[19] In all fairness to the respondents, during the hearing of this appeal, we asked them whether they could adduce the minutes of the Board hearing to support their version of the events. The said minutes constituted material evidence solely within the respondents' custody. We were met with the response that said minutes were 'rahsia'. To us, this argument did not hold water.

[20] Firstly, this court could have viewed that evidence in camera. Secondly and in any case, we need only to read the alleged portion proving that the respondents' version of the story was accurate. Nothing more.

[21] Since the burden to justify the detention lies on the respondents, we considered their failure to adduce the said minutes amounted to a wilful withholding of material evidence. Thus, to us, this case not only called for an inference favourable to the appellant, it also called for an adverse inference against the respondents. Simply, we presumed that had the respondents adduced the contents of the minutes of the Board hearing, the contents of those minutes would have been unfavourable to them. See generally: s 114(g) of the Evidence Act 1950 and the judgment of this court in Takako Sakao v. Ng Pek Yuen & Anor [2009] 3 MLRA 74, where at para 5; [2009] 6 MLJ 751; [2010] 1 CLJ 381, Gopal Sri Ram FCJ held as follows:

"Where, as here, the 1st respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference. See Guthrie Sdn Bhd v. Trans-Malaysian Leasing Corp Bhd [1990] 1 MLRA 532; [1991] 1 MLJ 33; [1991] 1 CLJ 155. See also Jaafar Shaari & Siti Jama Hashim v. Tan Lip Eng & Anor [1997] 1 MLRA 605; [1997] 3 MLJ 693; [1997] 4 CLJ 509 ... In Wisniewski v. Central Manchester Health Authority [1998] PIQR 324, Brooke LJ when delivering the judgment of the Court of Appeal quoted from a number of authorities including the following passage from the speech of Lord Diplock in Herrington v. British Railways Board [1972] AC 877:

"The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold."

Brooke LJ then went on to say this:

"From this line of authority I derive the following principles in the context of the present case:

(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness's absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified."

[22] Granted that Takako was a civil case and that it dealt with the failure to call a material witness, we think the general effect of drawing an adverse inference was lucidly explained and that it is of universal application. We considered it applicable in the context of the present case.

[23] The court below appeared to have faulted the appellant for not explaining why he needed the second adjournment. We thus arrived at the view that the learned Judicial Commissioner failed to appreciate the legal principles borne out in Takaliswaran (supra).

[24] The learned Judicial Commissioner ought to have resolved the conflict in the evidence in favour of the appellant. In any event, the material evidence capable of corroborating the respondents' version was within their control, yet they did not see it fit to produce it.

[25] We were accordingly of the view that the learned Judicial Commissioner fell into error in failing to appreciate these settled principles of law. Had he considered them, we thought he would have been minded to find that there was clear non-compliance with the mandatory provisions of the law entitling the appellant to a writ of habeas corpus.

Conclusion

[26] Based on the foregoing, we considered this an appropriate case for appellate intervention. In our considered view, the detaining authority did not meet its burden to satisfy us that the strict requirements of the law were met. We therefore considered the detention to be unlawful and so we allowed the appeal. We, accordingly issued a writ of habeas corpus and ordered that the appellant be released forthwith.