VISHNU TELAGAN v. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA & ORS

[2019] 5 MLRA 83

VISHNU TELAGAN v. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA & ORS
Federal Court, Putrajaya
David Wong Dak Wah CJSS, Balia Yusof Haji Wahi, Tengku Maimun Tuan Mat, Abang Iskandar Abang Hashim, Nallini Pathmanathan FCJJ
[Criminal Appeal No: 05(HC)-132-05-2018(B)]
17 June 2019

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.

[2] 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 Facts

[3] The appellant was arrested and detained under s 3 of the Dangerous Drugs (Special Preventive Measures) Act 1985 (the Act) on 24 March 2017. The 1st respondent duly issued the order of detention (Detention Order) on 18 May 2017 detaining the accused for a period of two years at Pusat Pemulihan Akhlak Muar, Johor with immediate effect.

[4] The appellant argued that his detention was invalid for two reasons:

(i) firstly, that his alleged statement recorded by Inspector Muhamad Izhar Mohd Sani ("Impugned Recorded Statement") was defective as the appellant never signed it. The appellant claimed that it was someone else who signed it; and

(ii) secondly, the appellant's rights to make representations to the Advisory Board and to counsel as contained in the Detention Order were never explained to him in Tamil rendering his detention in breach of art 151(1)(a) of the Federal Constitution, s 9(2)(a) of the Act, and r 3(1)(a) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987 (1987 Rules).

[5] On the first issue, the appellant argued that he had never signed his Recorded Statement. He claimed that any signature apparent there was not his. In response, the respondents argued that there was an affidavit in reply by Insp Izhar deposing that he had considered not only the appellant's Recorded Statement but also statements by other witnesses leading up to the report which the 1st respondent considered before issuing the Impugned Detention Order. This affidavit in reply, the respondents said, remained unrebutted by the appellant.

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