MOHAMAD NOR HAMIZI BIN NASIR v 1. ) TIMBALAN MENTERI DALAM NEGERI, MALAYSIA 2. ) KETUA POLIS NEGARA MALAYSIA 3. ) PENGARAH, PUSAT PEMULIHAN AKHLAK SIMPANG RENGGAM JOHOR

Case Significance

Instructive on the mandatory-directory distinction and the requirement of prejudice in a habeas corpus challenge to a preventive detention order under the Dangerous Drugs (Special Preventive Measures) Act 1985, including blanks left in the statutory Form 1.

This High Court decision at Shah Alam concerns a writ of habeas corpus challenging a preventive detention order made under the Dangerous Drugs (Special Preventive Measures) Act 1985, and turns on the mandatory-directory distinction and the requirement of prejudice. The applicant, detained for two years at a rehabilitation centre in Johor, challenged the detention order made by the Deputy Minister of Home Affairs, naming the Deputy Minister, the Inspector-General of Police and the director of the rehabilitation centre as respondents. His counsel raised four grounds, which the court reduced to complaints of non-compliance with section 3(3) of the Act, in that the police investigating officer had taken twenty-one days to complete his investigation, with section 5(2), in that the inquiry officer had taken twenty-seven days to complete the inquiry report, and with section 9(2) read with Rule 3(1) of the Dangerous Drugs (Special Preventive Measures) Rules 1987, in that the spaces in Form 1 for recording that the detention order had been read or translated and for the place and date of detention had been left blank. The court, per Dr Hazlina binti Hussain J, dismissed the application. Restating the settled principles that habeas corpus secures release from unlawful custody and that a detention order may be challenged only on procedural grounds, it framed the analysis around whether the requirements engaged were mandatory or directory, holding that non-compliance with a mandatory requirement would invalidate the order, but that breach of a directory requirement would not be crucial provided there was substantial compliance and the detainee suffered no prejudice. On the Form 1 blanks, it held the requirement to complete the spaces was directory and that the applicant suffered no prejudice, particularly as the affidavits of the police officers showed that the applicant had confirmed he was conversant in Malay and that the detention order had been explained to him in Malay, with an assistant officer explaining it again. Finding that the respondents had complied with the procedural requirements, the court held the detention lawful and dismissed the application. The judgment is instructive on the mandatory-directory distinction and prejudice in habeas corpus challenges over blanks in the statutory detention form.