The Book of Prof Shad.docx

In preventive detention cases where the detainee has

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In preventive detention cases where the detainee has no right to a trial before an impartial court, judges tend to hold procedural requirements to be mandatory and to enforce them strictly. In Ex parte Johannes Choeldi [1960] MLJ 184, Rigby J emphasized that in a matter concerning personal liberty the applicant is entitled to make use of any technical defects which may invalidate his detention 118 . In Re Tan Boon Liat [1977] 2 MLJ 108, the Advisory Board, in a preventive detention case, failed to make its recommendations to the Yang di-Pertuan Agong within three months (as was then required under Article 151(1)(b) 119 . Habeas corpus was issued even though the Yang di-Pertuan Agong had accepted the recommendations of the Board. According to Ong Hock Sim FJ, the requirements of Article 151 were mandatory procedural requirements violation of which must result in illegality. In Rasid Kulop Mohamad v Timbalan Menteri [2005] 2 MLJ 535 Abdul Kadir Musa J described directory and mandatory procedures as “procedurally procedure” and “procedurally substantive”. The former includes technicalities e.g. if the form used has not been gazetted or if there are genuine typing errors. The latter refers to violation of procedures that go “to the very core”. In this case a detention order under s. 3(3) of POPO was not addressed to any detaining authority so that the detainee did not know in whose custody he was placed in. This flaw was held to be fatal. As the 60-day detention under s. 30(3) was invalid, the subsequent two-year detention by the Minister under s. 4(1) was also held to be null and void. In Puvaneswaran v MHEDN [1991] 3 MLJ 28 and Aw Ngoh Leang v IGP [1993] 1 MLJ 65 an order for preventive detention under the Emergency (Public Order & Prevention of Crime) Ordinance 1969 was quashed because only one copy of Form I which contains the grounds of detention [and not two as required by Rule 3(2)] was supplied to the detainee. In Haji Omar Din b. Mawaidin v Minister [1990] 3 MLJ 43 involving the same Ordinance, the police did not, during their 60-day investigation, interview the detainee, thereby depriving him of the safeguard of enquiry upon detention required by section 3(1) of the Ordinance. The order of detention was quashed. In Lim Thian Hock v Menteri [1993] 1 MLJ 214, there was a detention order under section 4(1) of the Emergency (Public Order & Prevention of Crime) Ordinance 1969 (POPO). The grounds that were supplied were in the alternative. The order was quashed. In Zainab Othman [1975] 1 MLJ 76, it was held that if the order of preventive detention was not served on the detainee, it would be inoperative even if it was valid. This view was overruled by Andrew [1976] 2 MLJ 156. In Sivanesvaran Balakrishnan v Ketua polis [2006] 3 MLJ 42 a detainee under s. 4(1) of POPO 1969 was not properly informed of his right to 118 This principle has been quoted in many cases: Ng Hong Choon [1994] 4 CLJ 47; Re Datuk James Wong Kim Min [1976] 2 MLJ 245; PP v Koh Yoke Koon [1988] 2 MLJ 301; Tan Hoon Seng [1990] 1 MLJ; PP v Koh Yoke Koon [1988] 2 MLJ 301; Tan Hoon Seng [1990] 1 MLJ 171; Poh Chin Kay [1990] 2 MLJ 297; Lye Fong Weng [1994] 2 CLJ 626.
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