AIREEN SHAZNA AMIR BINTI AMIR v Pendakwa Raya

Case Significance

Instructive on the mandatory-directory distinction and the requirement of prejudice in habeas corpus challenges to a preventive detention order under the Dangerous Drugs (Special Preventive Measures) Act 1985.

This High Court decision at Shah Alam concerns an application for a writ of habeas corpus challenging a preventive detention order made under the Dangerous Drugs (Special Preventive Measures) Act 1985. The applicant had been ordered by the Deputy Minister of Home Affairs to be detained for two years at a rehabilitation centre from the date of the detention order, and sought habeas corpus against the Deputy Minister, the Inspector-General of Police and the Government of Malaysia. The applicant's challenge was procedural. The main contention was that the respondents had failed to comply with the requirements of the Act, in particular that the police investigating officer and the Ministry's inquiry officer had failed to act with convenient speed in preparing the investigation report and the inquiry report under sections 3(3) and 5(4), and that there had been non-compliance with Rule 3(2) of the Dangerous Drugs (Special Preventive Measures) (Advisory Board Procedure) Rules 1987. The court, per Dr Hazlina binti Hussain J, restated the settled principles that habeas corpus is a remedy to secure release from unlawful custody and that a detention order may be challenged only on procedural grounds, and it framed the analysis around whether the procedural requirements engaged were mandatory or directory. It held that non-compliance with a mandatory requirement would invalidate the detention 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 facts, relying on the unchallenged affidavit of the secretary of the Advisory Board, the court found that any mistake on the part of the police officer had not prejudiced the applicant's right to make representations to the Advisory Board, which had in fact considered the applicant's position. Concluding that the respondents had complied with the procedural requirements and that the detention was lawful, the court dismissed the application. The judgment is instructive on the mandatory-directory distinction and the requirement of prejudice in habeas corpus challenges to preventive detention.