Keng Kien Hock

v. Timbalan Menteri Keselamatan Dalam Negeri

[2007] 1 MLRA Malaysia & Ors i

KENG KIEN HOCK

v.
TIMBALAN MENTERI KESELAMATAN DALAM NEGERI
MALAYSIA & ORS
[2007] 1 MLRA 807

Court of Appeal, Putrajaya

Mohd Ghazali Yusoff, Zulkefli Makinudin, Low Hop Bing JJCA
[Civil Appeals Nos: J-01-90-06, J-01-91-06, J-01-101-06 & J-01-102-06]
19 July 2007

Preventive Detention: Restriction order — Validity of order — Restriction of

appellant’s residence with police supervision — Delay in issuing order although should
be done immediately — Whether restriction order null and void — Interpretation Acts
1948 and 1967, s 54(2) — Restricted Residence Act 1933 ss 2 & 3 — Prisons Regulations
2000, reg 2, Part 17 of Schedule

Preventive Detention: Restriction order — Detention order against person — Whether

prolonged detention before issuance of restriction order was lawful and valid —
Appropriate test in regard to time taken to carry out obligations — Whether appellant’s
detention amounted to detention in a ‘civil prison’ — Whether Warrant of Release
issued — Restricted Residence Act 1933, ss 2, 3(2)

Administrative Law: Exercise of administrative powers — Detention – Delay in issuing

order although should be done immediately — Whether restriction order null and void
— Interpretation Acts 1948 and 1967, s 54(2) — Restricted Residence Act 1933 ss 2 &
3 — Prisons Regulations 2000, reg 165, Part 17

The appellants had four appeals against the decision of the Judicial
Commissioner, who had dismissed their respective applications to declare that
the restrictive order given against them by the Deputy Minister of Internal
Security, under s 2(2) of the Restricted Residence Act 1933 (‘the Act’), was
null and void. It was agreed that as the issues and circumstances of the four
appeals were the same, the court’s decision on one of the appeal cases would
be binding on the rest. The appellant was arrested on 6 December 2005 in Batu
Pahat at about 1.30 pm, under a warrant of arrest and detention and brought to
Batu Pahat District Police Headquarters, in accordance with s 2(i) of the Act.
On the same day at 6.00 pm, he was taken to and detained at the Kluang Prison
in Johore untill 30 December 2005. The Deputy Minister, on 30 December
2005, issued a restriction order under the Act and restricted the appellant’s
residence with police supervision in Mukim Kulim in Kedah, for three years
with effect from 30 December 2005. The appellant had raised three issues in
his appeals for determination: (i) whether the appellant’s prolonged detention
at the Kluang Prison, without the official issuance of the restriction order was
lawful and valid; because the Deputy Minister took 24 days from the date of
arrest to issue the restriction order; (ii) whether the appellant’s detention at
 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
ii Malaysia & Ors [2007] 1 MLRA

Kluang Prison from 6 December 2005 to 30 December 2005 together with

other prisoners amounted to a detention in a ‘civil-prison’; and (iii) whether
the officer-in-charge of Kluang Prison had complied with the s 3(2) of the Act,
particularly the issuance of the Warrant of Release.

Held, dismissing the appeals:

Per Zulkefli Makinudin JCA

(1) The Interpretation Acts of 1948 and 1967 provided prescribed time-
limitation within which any action should be taken and completed. All
actions must be taken with convenient speed according to the demands of the
situations. The term ‘convenient speed’ is not legally defined. The definition
and meaning of a ‘convenient speed’ in the context of the scope of s 2 of the Act
are found in the judicial pronouncements which had been made by competent
courts. (paras 7, 8 & 10)

(2) The proper approach for adoption should include the appropriate test
which was not regarding the delay in carrying out legal obligations; but
whether the legal obligations are carried out with all convenient speed under
the circumstances of the case and in particular, whether the Minister or
Deputy Minister had acted reasonably. Secondly, the burden of establishing
the performance of the legal obligations under such circumstances remained
on the appellant, the restricted person, and never shifted to the respondent who
was the Minister.

(3) In order to arrive at a correct finding of facts whether legal obligations were
carried out with a convenient speed under the circumstances of such particular
case, the trial judge should look into all the affidavit evidence adduced by
the parties in the proceedings. The facts had established that the Judicial
Commissioner had conducted a proper assessment and evaluation of all the
affidavit evidence available before finding the facts that there had been strict
compliance with the application of s 2 of the Act, read with s 54(2) of the
Interpretation Acts 1948 and 1967. It must be noted that the appellant did not
choose to challenge or rebut the Deputy Minister’s explanations on the time
taken in the performance of his legal task, under s 2 of the Act. Such omission
by the appellant rendered the explanations given by the Deputy Minister as
being plausible. (paras 7, 8 & 10)

(4) Reference to the position of ‘civil-prison’ in England should not be

applicable because the Prison Act 1995 and Prisons Regulations 2000
contained adequate provisions and rules relating to the issues raised on ‘civil-
prison’. The absence of provisions and rules governing the term ‘civil-prison’
or absence of place of detention duly declared by the Minister as ‘civil-prison’
did not imply that there was a lacuna in the legislation relating to prison or
the non-existence of civil prison. Hence, the Minister had no obligation to
declare any place of detention as ‘civil-prison’. (paras 12 & 15)
 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
[2007] 1 MLRA Malaysia & Ors iii

(5) The Judicial Commissioner was correct in finding that the respondent had
complied with the requirements of s 3(2) of the Act, which reflected in the
affidavit replies given by Superintendent of Prisons and Chief Inspector of
Police. This court could not agree with the appellant’s contention that mere
aversion without producing the relevant release warrant was insufficient to
discharge the respondent’s burden to show compliance with s 3(2) of the Act.
The respondent, through relevant officers, had made specific aversions in their
affidavits for the issuance of Warrant of Release as in Form D of the Schedule
to the Act containing the detailed account of the processes of release from the
prison and the handing over of the appellant to the police. The court found
that the appellant did not dispute the specific aversion made on behalf of the
respondents. This failure to dispute amounted to concession on the part of the
appellant. (paras 20 & 21)

Case(s) referred to:

Ng Hee Thoong & Anor v. Public Bank Bhd [1995] 1 MLRA 48; [1995] 1 MLJ 281;
[1995] 1 CLJ 609; [2000] 1 AMR 407 (refd)
Phua Hing Lai & Ors v. Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors
[1989] 1 MLRA 299; [1990] 1 MLJ 173; [1990] 1 CLJ (Rep) 238 (refd)
Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia v. Liau Nyun Fui & Ors [1990]
2 MLRA 91; [1991] 1 MLJ 350; [1991] 1 CLJ (Rep) 458 (refd)

Legislation referred to:

Interpretation Acts 1948 and 1967, s 54(2)
Prison Act 1995, s 3
Prisons Regulations 2000, regs 2, 165
Restricted Residence Act 1933 (Revised 1989), ss 2(1), (2), 2A(1), 3(2)

Other(s) referred to:

Halsbury’s Laws of England, 4th edn, vol 37, paras 1244-1250

Counsel:
For the appellant: K Shanmugam; M/s Shanmugam & Co
For the respondents: Najib Zakaria SFC (Mohd Aszari Harun SFC with him)
 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
iv Malaysia & Ors [2007] 1 MLRA

*This page is intentionally left blank

 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
[2007] 1 MLRA Malaysia & Ors 807

JUDGMENT

Zulkefli Makinudin JCA:

Introduction

[1] There are four appeal cases fixed for hearing before us namely Civil
AppealsNo: J-01-90-06, J-01-91-06, J-01-101-06 and J-01-102-06. In all these
four appeal cases the four Appellants are appealing against the decision of the
learned Judicial Commissioner of the High Court at Johor Bahru in dismissing
their respective application for a declaration that the restriction order issued
against them by the Deputy Minister of Internal Security (“Deputy Minister”)
under s 2(2) of the Restricted Residence Act 1933 (Revised 1989) (“the Act”) is
null and void and of no effect. Mr Shanmugam, learned counsel who appeared
for all the four Appellants and the learned senior federal counsel agreed at
the outset that since the issues raised and the factual circumstances in all the
four appeal cases are the same, it is only necessary for the court to hear and
decide in only one of the appeal cases and the decision of that appeal case
shall be made binding on the other three appeal cases. It was agreed that the
court would hear argument and decide on the appeal by the appellant in Civil
AppealNo: J-01-90-06. Learned counsel for the other three Appellants and the
learned senior federal counsel for the respondents informed the court that they
would be adopting the same submission as in Appeal CaseNo: J-01-90-06 for
all the three other appeal cases in J-01-91-06, J-01-101-06 and J-01-102-06.

Background Facts

[2] The relevant background facts of Civil Appeal CaseNo: J-01-90-06 are as
follows:-

[3] The appellant, Keng Kien Hock was arrested on 6 December 2005 in Batu
Pahat at about 1.30pm under a warrant of arrest and detention issued by the
Deputy Minister under s 2(1) of the Act and brought to Batu Pahat District
Police Headquarters. Thereafter on the same day at 6pm the appellant was
taken to Kluang Prison, Johor and detained therein until 30 December 2005.
On 30 December 2005 the Deputy Minister issued a restriction order under
s 2(2) of the Act restricting the appellant in Mukim Kulim, Daerah Kulim,
Kedah for three (3) years commencing 30 December 2005 and placing the
appellant under police supervision for the said period.

Issues For Determination

[4] At the hearing of the appeal before us, learned counsel for the appellant
indicated that the appellant will be raising only three issues for determination
as follows:-

(1) Whether the appellant’s prolonged detention at the Kluang Prison

before the issuance of the restriction order dated 30 December 2005
by the Deputy Minister was unlawful and null and void as the Deputy
 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
808 Malaysia & Ors [2007] 1 MLRA

Minister took 24 days from the date of arrest to issue the restriction
order under s 2(2) of the Act.

(2) Whether the appellant’s detention at Kluang Prison, Johor from

6 December 2005 to 30 December 2005 together with other prisoners
therein amounts to a detention in Civil Prison.

(3) Whether the officer-in-charge of the Kluang Prison, Johor had

complied with s 3(2) of the Act and in particular whether warrant of
release as in Form D of the Schedule to the Act has been issued.

Decision Of the court On Appeal

[5] On the first issue it is the contention of the appellant that the learned Judicial
Commissioner had erred in his finding that the delay was not unreasonable
and in accepting the explanation of the Deputy Minister The learned Judicial
Commissioner held that the Deputy Minister had acted with convenient speed
in the process of the issuance of the said restriction order It is pertinent to
note that s 2(2) of the Act does not prescribe any time frame within which the
Deputy Minister is to issue a restriction order For convenience the relevant
provisions of s 2(1), 2(2) and 2A(1) of the Act are reproduced as follows:-

2(1) Whenever it shall appear to the Minister on such written

information and after such enquiry as he may deem necessary that
there are reasonable grounds for believing that any person should be
required to reside in any particular areas or should be prohibited from
entering into any particular area or areas the Minister may issue an
order in one of the Forms in the Schedule for the arrest and detention
or, if he is already in prison, for the detention of that person.

2(2) The Minister thereafter after such further enquiry as he may deem
necessary may make an order in the Form in the Schedule that from a
date to be stated in the order, the person do reside in such area as may
be specified in the order or do not enter into such area or areas as may
be so specified.

2A(1) Without prejudice to s 2, the Minister may by order direct that

any person named in the order shall be placed under police supervision
for any period not exceeding five years and may renew any such order
for a further period or periods not exceeding one year at any one time.

[6] It is to be noted that s 54(2) of the Interpretation Acts 1948 and 1967 [Act
388] provides that where no time is prescribed within which anything shall be
done, that thing shall be done with all convenient speed and as often as the
prescribed occasion arises. The term “all convenient speed” is not defined by
any statute. However, the definition and meaning of “all convenient speed”
in the context of the scope of s 2 of the Act can be found from the judicial
pronouncement made in earlier decided cases. In the Supreme Court’s case of
Phua Hing Lai & Ors v. Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors
 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
[2007] 1 MLRA Malaysia & Ors 809

[1989] 1 MLRA 299; [1990] 1 MLJ 173; [1990] 1 CLJ (Rep) 238 His Lordship
Hashim Yeop Sani, CJ Malaya at pp 421-422 (p 240) had this to say:-

It can immediately be observed that there is no time frame given in s

3(i) of the Enactment. Since no time is prescribed then according to s
38 of the Interpretation and General Clauses Ordinance 1948 (similar
provision also found in s 54(2) of the Interpretation Act 1967), then
anything which shall be done shall be done with all convenient speed.
There is however a time frame given by s 3(ii) of the Enactment
imposed by the words ‘as soon as may be after action has been taken
under subsection (i)’ appearing in that subsection. The words ‘as soon
as may be’ means as nearly as may be reasonable in the circumstances
of the case. See also Aminah v. Superintendent of Prison, Pengkalan Chepa
[1967] 1 MLRH 495; [1968] 1 MLJ 92. Whoever caused the delay
must explain the delay; and it is for the court to decide whether the
delay is reasonable under the circumstances.

Subsequently the Supreme Court further expound the position established that
“whoever caused the delay must explain the delay” in the case of Timbalan
Menteri Hal Ehwal Dalam Negeri, Malaysia v. Liau Nyun Fui & Ors [1990] 2 MLRA
91; [1991] 1 MLJ 350; [1991] 1 CLJ (Rep) 458) wherein His Lordship Hamid
Omar, the Lord President at p 462 (p 463) stated the following:-

In the light of the judgment in Phua Hing Lai’s case the position in law
seems to be that when no time frame is prescribed then anything that
shall be done under s 2(ii) shall be done with all convenient speed.
Accordingly in respect of situation (1), the further enquiry and the
issue of the restriction order shall be effected with all convenient
speed. What constitutes convenient speed would depend on the
circumstances of each case. In respect of situation (2), where the
Timbalan Menteri does not deem it necessary for any further enquiry
he ought to proceed thereafter, that is, after the detention, to make
the restriction order with all convenient speed. The correct test to
be applied therefore is not on the basis of unreasonable delay but
convenient speed. The learned Judicial Commissioner determined the
question before him on the basis of unreasonable delay. This was not
a proper approach. The question that was before him was whether
the Timbalan Menteri in the particular circumstance of that case had
acted with all convenient speed in making the restriction order Strictly
it was for the respondent to show that the Timbalan Menteri had not
so acted and not for the Timbalan Menteri to provide an explanation
acceptable to the court.

[7] It is clear based on the principles enunciated in the above mentioned two
cases, the applicable approach to be adopted is firstly, the appropriate test is not
on the delay in carrying out the legal obligation but rather on whether the legal
obligation was carried out with all convenient speed under the circumstances
 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
810 Malaysia & Ors [2007] 1 MLRA

of the case. In other words, it is whether the Minister or Deputy Minister has
acted reasonably. And, secondly, the burden of establishing the performance of
the legal obligation under such circumstances remained on the applicant, the
restricted person and never shifted to the respondent, the Minister

[8] We are of the view that in order to arrive at a correct finding of fact as to
whether the legal obligation was carried out with all convenient speed under the
circumstances of such particular case, it shall be the duty of the trial Judge to
look into all the affidavit evidence adduced by the parties in the proceeding. On
this point, in the present case we find the learned Judicial Commissioner had
specifically made reference to the length of days taken by the Deputy Minister
in order to perform the legal task under s 2 of the Act in the various originating
summons filed by the respective Appellants which were simultaneously heard
together by him in which he stated as follows:-

Encik Shanmugam bagi pihak plaintif-plaintif telah berhujah bahawa

terdapat kelewatan-kelewatan seperti berikut telah berlaku, iaitu:-

SP 24-150-2006 - Selama 16 hari

SP 24-3664-2005 - Selama 20 hari

SP 24-149-2006 - Selama 24 hari

SP 24-3166-2005 - Selama 21 hari

SP 24-3854-2005 - Selama 21 hari

Menurut beliau kelewatan-kelewatan di atas adalah telah dilakukan

oleh defendan pertama dan mengakibatkan plaintif-plaintif telah
ditahan di penjara bersama banduan-banduan lain sebelum perintah
pembuangan daerah atau perintah sekatan dikeluarkan oleh defendan
pertama dan menjadikannya adalah terbatal dan tidak sah.

[See pp 23 and 24 of Appeal Record].

[9] The learned Judicial Commissioner then referred to the approach taken
in assessing whether the legal task performed by the Deputy Minister was
reasonable under the circumstances of each particular case by adopting the
principles as laid down in the said two cases of Phua Hing Lai & Ors v. Timbalan
Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors (supra) and Timbalan Menteri
Hal Ehwal Dalam Negeri, Malaysia v. Liau Nyun Fui & Ors (supra). Subsequently
the learned Judicial Commissioner undertook the exercise of assessing the
affidavit evidence by stating the following:-

Bagi tujuan ujian di atas, maka saya telah merujuk kepada kesemua
afidavit-afidavit yang difailkan di dalam kelima-lima Saman Pemula
ini, khususnya Afidavit oleh defendan pertama iaitu Timbalan Menteri
Dalam Negeri, Malaysia. Dalam penelitian saya, YB Timbalan
 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
[2007] 1 MLRA Malaysia & Ors 811

Menteri telah menjelaskan kelewatan tersebut melalui perenggan 5

dan 6 dalam afidavit beliau yang berbunyi seperti berikut:-

5. Pada 29 Julai 2005, saya telah mengeluarkan satu Perintah Sekatan

“TBW-2” seperti yang dilampirkan di dalam afidavit Pemohon
terhadap Pemohon iaitu:-

(i) Saya harus melihat, meneliti dan menilai dokumen-dokumen dan

fail kes Pemohon yang relevan di dalam perkara ini;

(ii) Saya harus memutuskan Sama ada untuk mengadakan inkuiri

atau sebaliknya;

(iii) Saya harus menimbangkan rayuan jika ada yang akan

dikemukakan oleh Pemohon; dan

(iv) Saya harus menentukan terma-terma dan syarat-syarat di dalam

eksibit “TWB2” dalam afidavit ini.

6. Merujuk perenggan di atas, saya selanjutnya dengan tegas menafikan

pengataan-pengataan Pemohon dalam perenggan-perenggan 6, 7 dan
11 afidavit Pemohon dan menyatakan tindakan di bawah Akta tersebut
yang diambil ke atas Pemohon dibuat tanpa niat jahat dan saya dengan
suci hati percaya penyataan-penyataan negatif yang dilemparkan oleh
Pemohon kepada responden-responden adalah bertujuan mengaburi
tindakan pihak berkuasa dalam membenteras kegiatan perjudian
haram yang mana Pemohon merupakan seorang ejen dan penolong
penyelia dalam sindiket empat ekor haram yang bergiat cergas di
daerah Johor Bahru, Johor yang tidak mendatangkan faedah kepada
keamanan dan ketenteraman awam. Saya juga menyatakan tindakan
prosiding jenayah yang diambil ke atas Pemohon gagal menyekat atau
menghalang kegiatan-kegiatan Pemohon atas kelemahan-kelemahan
Pendakwaan semasa perbicaraan. Seterusnya saya dengan suci hati
menyatakan responden-responden tidak membuat pakatan jahat untuk
mengeluarkan Pemohon dari Johor Bahru, Johor kecuali dengan
tujuan menyekat Pemohon dari meneruskan kegiatan penganjuran
perjudian empat nombor ekor haram yang tidak mendatangkan
faedah kepada keamanan dan ketenteraman awam.

[See pp 26-28 of appeal record].

[10] From the above observation made by the learned Judicial Commissioner,
we are of the view that the learned Judicial Commissioner had conducted a
proper assessment and evaluation of all affidavit evidence available meticulously
before coming to his finding of fact that there has been a strict compliance with
the application of s 2 of the Act read with s 54(2) Interpretation Acts 1948 and
1967. It is also to be noted that the appellant chose not to challenge or to rebut
the Deputy Minister’s explanation relating to the time taken in the performance
of his legal task under s 2 of the Act as contained in his affidavit in reply in
 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
812 Malaysia & Ors [2007] 1 MLRA

encl (8). Such an omission by the appellant to question the explanation given
by the Deputy Minister rendered the said explanation as being plausible and
unchallenged facts. We therefore dismissed the argument of learned counsel
for the appellant in respect of the first issue.

[11] On the second issue, the crux of the appellant’s contention is that he was
never detained nor treated in “Civil Prison” simply because there is no specific
provision or rules or gazette notification on civil prison made under the Prisons
Act 1995. The appellant claimed that he was detained at Kluang Prison in
which he alleged that it was not declared by gazette notification as a Civil
Prison and that he was not treated as civil prisoner Learned counsel for the
appellant reinforced his argument by referring to Halsbury’s Laws of England,
4th edn, vol 37 para 1250 which states as follows:-

Civil Prisoners... Rules must provide for the special treatment of Civil
Prisoners (Prison Act 1952) s 47(4)(d,) Criminal Justice Act 1967 s
103(2) schedule 7 Part 1.

[12] With respect to the above contention of the appellant we are of the view
that the position referred to England should not be made applicable because our
Prisons Act 1995 and Prisons Regulations 2000 contained adequate provisions
and rules relating to the issue raised on “civil prison”. The absence of clear
provisions and rules governing the term “civil prison” or absence of place of
detention duly declared by the Minister as “civil prison” does not necessarily
imply that there is a lacuna in the legislation relating to prison or non existence
of civil prison as contended by learned counsel for the appellant. In our view
there is no obligation on the Minister to declare any place of detention as “civil
prison”. Section 3 of Prisons Act 1995 merely empowered the Minister to
declare place of detention as a prison which provides as follows:-

The Minister may, by notification in the Gazette, declare that any

house, building, enclosure or place, or any part thereof, to be a prison
for the purposes of this Act for the imprisonment or detention of
persons lawfully in custody and may in like manner declare that any
such prison shall cease to be a prison for the purposes of this Act.

[13] We may ask what does it mean by the terms “civil prison” and “civil
prisoners”? These two terms are not defined both in the Prisons Act 1995 and
the Prisons Regulations 2000. Perhaps it is pertinent to look into the common
law sources for instance in Halsbury’s Laws of England, 4th edn, vol 37 para
1250 wherein with regard to the terms “civil prisoners” it is inter alia stated as
follows:-

1250. Civil Prisoners. Since the virtual abolition in 1971 of

imprisonment for civil debt, the only prisoners who committed to
prison civilly and not by way of criminal justice (other than by way
of civil contempt) are maintenance defaulters and those in default
of payment of taxes and rates. Rules must provide for the special
 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
[2007] 1 MLRA Malaysia & Ors 813

treatment of civil prisoner They have the same rights and privileges
as unconvicted prisoners so far as clothing correspondence and visits
are concerned. If they elect to wear their own clothing they are not
permitted to associate with convicted prisoners...

[14] It is also to be noted that in the Hasbury’s Laws of England, 4th edn, vol
37 para 1244-1250 the term used for “civil prisoner” and “civil prison” fall
within the general heading of “Unconvicted Prisoners”. On this point reg 2
of the Prisons Regulations 2000 specifically defines “unconvicted prisoner” as
follows:-

‘unconvicted prisoner’ means a person who is:-

(a) confined under civil process;

(b) on remand charged with a crime or an offence;

(c) committed to take his trial;

(d) confined for want of sureties; or

(e) confined under s 4 of the Banishment Act 1959. (emphasis added)

[15] We are of the view that the appellant in the present case, being a person
detained under s 2 of the Act can be treated as “unconvicted prisoner” falling
under the category of a person confined under civil process. It is to be noted
provisions relating to “unconvicted prisoners” are contained in Part 17 of the
Prisons Regulations 2000 which include amongst others a provision in reg 165
relating to separation of unconvicted prisoners from convicted persons. It is
our Judgment that as long as the respondents had proved that the appellant
was detained in accordance with Part 17 of the Prisons Regulations 2000, then
the respondents must be treated to have discharged their legal obligation as
prescribed under the Warrant of Arrest and Detention as in Form A of the
Schedule to the Act.

[16] As regards the appellant’s allegation that he was detained with other
prisoners we would like to refer to the affidavit in reply of the Deputy Minister
at para 7 as follows:-

7. Merujuk kepada perenggan 3 afidavit Pemohon saya dengan tegas

menafikan pengataan di dalamnya bahawa Pemohon semasa berada di
Penjara Kluang, Johor, beliau telah ditahan bersama dengan banduan-
banduan lain. Sebaliknya beliau diletakkan berasingan di bahagian
banduan sivil pada setiap masa beliau berada di penjara tersebut.
Sesalinan Waran Tangkap dilampirkan bersama ini menunjukkan
arahan untuk beliau ditahan di penjara sivil dan ditanda sebagai ‘NO-
1’.

[See pp 100-101 of the appeal record].

 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
814 Malaysia & Ors [2007] 1 MLRA

[17] There is also an affidavit in reply of Superintendent of Prison in Kluang

Prison, Samihan bin Hj Misdi at para 10 which states as follows:-

10. Saya dengan hormatnya merujuk kepada perenggan 3 afidavit

Pemohon dan saya dengan tegasnya menafikan pengataan di
dalamnya bahawa Pemohon semasa berada di dalam Penjara Kluang,
Johor, beliau telah ditahan bersekali dengan banduan-banduan lain.
Sebenarnya beliau diletakkan bersekali dengan banduan sivil (buang
tempatan) pada setiap masa beliau berada di penjara tersebut.

[See p 106 of the appeal record].

[18] Based on the two affidavits in reply of the respondents we are of the view
that the allegation made by Appellant that he was detained in contravention
of the requirements of the Warrant of Arrest and Detention as in Form A
of the Schedule to the Act had been adequately rebutted by the respondents.
We therefore dismissed the argument of learned counsel for the appellant in
respect of the second issue.

[19] On the third issue, the appellant contended that the respondents failed
to prove that there has been a compliance with the requirement of s 3(2) of
the Act. It was argued for the appellant there is no evidence shown by the
Superintendent of Prison acting as the officer in charge and in performance of
his legal obligation under s 3(2) of the Act that he had duly issued the Warrant
of Release as in Form D of the Schedule to the Act.

[20] Contrary to the contention of the appellant, we however agree with

the finding of the learned Judicial Commissioner that in fact there was due
compliance by the respondents with the requirement of s 3(2) of the Act. This
fact can be seen by reading para 7 and para 9 of Superintendent of Prison
Samihan bin Hj Misdi’s affidavit in reply and para 11 of Chief Inspector
of Police s Santhirasegaran bin Abdullah’s affidavit in reply which state as
follows:-

Samihan bin Hj Misdi’s Affidavit In Reply

7. Selepas itu saya telah menyerahkan Waran Pembebasan kepada C/

INSP SHAM SANTHIRASEGARAN BIN ABDULLAH (I/9919)
bersama-sama dengan Pemohon dan satu salinan ‘KKH’.

9. Saya sesungguhnya menyatakan juga pada masa yang sama saya

telah menyerahkan ‘Warrant of Release’ iaitu warrant D di bawah
s 3(2) Akta Kediaman Terhad 1933 yang disempurnakan oleh saya
kepada C/INSP SHAM SANTHIRASEGARAN BIN ABDULLAH
untuk mengiringi Pemohon ke Mukim Kulim, Daerah Kulim, Kedah
seperti yang ditetapkan oleh YB Timbalan Menteri Keselamatan
Dalam Negeri.
 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
[2007] 1 MLRA Malaysia & Ors 815

Santhirasegaran b Abdullah’s Affidavit In Reply

11. Pada 30 December 2005, saya bersama L/Kpl 139166 Nurman

Bin Sulaiman dan Konstabel 138656 Roslan bin Arifin ke Penjara
Kluang, Johor untuk tujuan menerima Pemohon. Pada jam lebih
kurang 10.30 malam, saya telah terima Pemohon dari Samihan bin Hj
Misdi, pegawai yang menjaga Penjara Kluang, setelah selesai segala
urusan pentadbiran dokumentasi, prosedur dan keselamatan selesai
disempurnakan antara Pemohon dan pihak Penjara Kluang.

[21] Learned counsel for the appellant also argued that the respondents failed
in their affidavit in reply to annex or to exh the relevant Warrant of Release as
in Form D of the Schedule to the Act issued by the Officer in Charge of Prison
to the escorting officer and this would tantamount to failure to comply with
the requirement of the aforesaid provision. It is the contention of the appellant
that mere averment without producing the relevant Warrant of Release is
insufficient to discharge the burden on the part of the respondent to show
compliance with s 3(2) of the Act. With respect, on this point we do not agree
with the appellant’s contention. In the present case the respondent through the
relevant officers had made specific averment in their affidavits regarding the
issuance of the Warrant of Release Form D by giving a detailed account of
the process of release from the prison and the handing over of the appellant
to the police. We further find the appellant in fact did not challenge or dispute
the specific averment made on behalf of the respondents on the issue raised
by filing rebuttal affidavit evidence. Failure to do so amounts to concession on
the part of the appellant. (See the case of Ng Hee Thoong & Anor v. Public Bank
Bhd [1995] 1 MLRA 48; [1995] 1 MLJ 281; [1995] 1 CLJ 609; [2000] 1 AMR
407). We would therefore also dismiss the argument of learned counsel for the
appellant in respect of the third issue.

Conclusion

[22] For the reasons already given we would dismiss the appellant’s appeal. We
would also accordingly dismiss the other three appeal cases as in Civil Appeals
No: J-01-91-06, J-01-101-06 and J-01-102-06. There will be no order as to costs
in respect of all the four appeal cases.
 Keng Kien Hock
v. Timbalan Menteri Keselamatan Dalam Negeri
816 Malaysia & Ors [2007] 1 MLRA

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