Aw Ngoh Leang v. Inspector General of Police & 2 Ors.
[1993] 1 CLJ L.C. Vohrah J. 373
AW NGOH LEANG a matter when it involves the civil liberty of an
individual.
v.
[Appeal allowed].
INSPECTOR GENERAL OF POLICE
& 2 ORS. [Bahasa Malaysia Translation of Headnote]
TAHANAN PENCEGAHAN: Perintah tahanan -
SUPREME COURT, KUALA LUMPUR
b Ketidakpatuhan kaedah yang diperuntukkan -
TAN SRI DATUK HASHIM YEOP A. SANI Sama ada kaedah itu mandatori atau sebagai
CJ (MALAYA), TAN SRI DATO' HARUN M. panduan (directory) - Sama ada kemungkiran
HASHIM SCJ & DATUK L.C. VOHRAH J. kaedah mewajarkan pelepasan perayu dari
[CRIMINAL APPEAL NO. 05-238-90] penahanan - Sama ada maxim de minimis non
28 OCTOBER 1992 curat lex boleh dipakai.
PREVENTIVE DETENTION: Detention order - Dalam kes ini perayu ditahan dibawah tahanan
Non-compliance with rules - Whether rules man- c pencegahan dan telah memohon untuk writ
datory or directory - Whether breach of rules habeas corpus atas alasan bahawa terdapat
warranted appellant's release from detention - satu kemungkiran peruntukan kaedah 3(2)
Whether maxim de minimis non curat lex appli- Ketenteraman Awam dan Mencegah Jenayah
cable. (Prosedur) 1972 (Kaedah tersebut) sebab hanya
satu salinan Borang 1 dibawah Kaedah tersebut
The appellant who was under preventive deten-
diberi kepada beliau sedangkan dalam kaedah
tion sought an order for habeas corpus on the d adalah dikehendaki memberi sekurang-
ground that there was a breach of the provisions
kurangnya dua salinan borang itu.
of r. 3(2) of the Public Order and Prevention of
Crime (Procedure) Rules 1972 in that he was Dalam Mahkamah perbicaraan telah diakui
only given one copy of Form 1 when the rules yang hanya satu salinan Borang 1 telah diberi
required that he be provided with a minimum of kepada perayu tetapi Pesuruhjaya Kehakiman
two copies of the said Form. berpendapat bahawa kerana rayuan perayu
e dihadapan Lembaga Penasihat telah didengar
It was common ground in the trial Court that
dan diputuskan adalah sia-sia untuk menghujah
only one copy of Form 1 was given to the
bahawa hanya satu borang telah diberi kepada
appellant but the learned Judicial Commissioner
perayu. Pesuruhjaya Kehakiman telah
was of the view that as the appellants appeal
menggunakan maxim de minimis non curat lex
before the Advisory Board had been heard and
dan menolak permohonan perayu. Perayu telah
disposed of, it was futile to argue that only one
f membuat rayuan atas keputusan tersebut.
form had been furnished to the appellant. The
learned Judicial Commissioner applied the Diputuskan:
maxim de minimis non curat lex (the law does [1] Peruntukan yang berkait menyentuh
not concern itself with trifles) and dismissed the kepada hak seseorang yang ditahan tanpa
application. The appellant appealed. dibicarakan untuk memohon kebebasannya
dengan mengikut prosedur bagi membuat
Held:
representasi iaitu mengisi sekurang-kurangnya
[1] The relevant provisions concern the right g
dua borang dan satu salinan tambahan jika
of a person detained without trial to seek his
orang yang ditahan ingin diwakili di hadapan
own release by a procedure for the making of
Lembaga Penasihat.
representations requiring the filling-up of a
minimum of two forms and of one more if the [2] Sebarang kemungkiran keperluan
detainee intends to be represented before the mandatori bagi hak perlindungan tersebut akan
Advisory Board. menjadikan tidak sah sebarang perintah
h tahanan yang dibuat walaupun tidak membawa
[2] Any disobedience of the mandatory re-
kemudaratan (prejudice) kepada perayu.
quirements for the protection of this right would
vitiate any order of detention made even if no [3] Maxim de minimis non curat lex tidak
real prejudice has ensued to the detainee. boleh dipakai dalam kes seperti ini kerana satu
kemungkiran keperluan mandatori tidak boleh
[3] The maxim de minimis non curat lex can
dianggap sebagai perkara tidak penting apabila
have no application in such a case as a breach of i melibatkan kebebasan awam seorang individu.
a mandatory requirement can never be a trifling
[Rayuan dibenarkan].
Current Law Journal
374 March 1993 [1993] 1 CLJ
Case referred to: a more than fourteen days after the arrival
Puvaneswaran v. Menteri Hal Ehwal Dalam Negeri of the detained person at the place of
Malaysia & Anor [1991] 2 CLJ 1199/[1991] 3 MLJ detention, and it shall be the duty of the
28 (foll) Officer in Charge to forward the form to
the Secretary before the expiry of that
Legislation referred to: period.
Emergency (Public Order and Prevention of Crime)
Ordinance 1969, s. 5(3) It was not disputed that only one copy of Form
Public Order and Prevention of Crime (Procedure) b 1 was given to the appellant and his complaint
Rules 1972, r. 3(2) before the learned Judicial Commissioner was
that there was non-compliance with the re-
For the appellant - Karpal Singh; M/s. Karpal Singh quirements of r. 3(2) which "prejudiced [him]
& Co.
and resulted in injustice". The learned Judicial
For the respondents - Suriyadi bin Halim Omar,
Senior Federal Counsel Commissioner was of the view that this was an
apt situation to which the maxim de minimis
c
JUDGMENT non curat lex (the law does not concern itself
with trifles) should be made to apply in respect
L.C. Vohrah J: of the non-compliance because the appellant's
This was an appeal against the decision of the appeal before the Advisory Board had been
High Court at Muar dismissing the appellant's heard and disposed of and he took the view that
application for habeas corpus. That application it was futile to argue well after the event that
was heard by the learned Judicial Commis- d only one form had been furnished to the appel-
sioner together with thirty-one other applica- lant. He accordingly dismissed the application.
tions, all having the same factual basis except
for the dates of the detention orders that were In the appeal before us the appellant challenged
made. The common and sole question for deter- the decision of the learned Judicial Commis-
mination in the proceedings before the learned sioner on two grounds, namely (1) that the
Judicial Commissioner was whether the provi- learned Judicial Commissioner had erred in law
sions of r. 3(2) of the Public Order and Preven- e in failing to decide that the detention was bad in
tion of Crime (Procedure) Rules 1972 ("the said law because the respondents had infringed the
Rules") made pursuant to s. 5(3) of the Emer- appellant's rights when they provided only one
gency (Public Order and Prevention of Crime) copy of Form 1 to him; and (2) that the learned
Ordinance, 1969 had been breached and war- Judicial Commissioner ought to have held that
ranted the appellant's release from detention. the respondents' failure to serve a signed copy
of the detention order made the detention null
To put things in proper context, the relevant f and void. We allowed the appeal on the first
provisions of the said Rules are set out as ground and did not consider it necessary in the
follows: circumstances to deal with the second ground.
3. (1) When any person is brought to a place of We now give our reasons for allowing the appeal
detention in pursuance of a detention order in the light of similar appeals pending before
it shall be the duty of the Officer in Charge this Court.
to inform him, as soon as practicable after
his arrival, of his right to make represen- g Before us Counsel for the appellant cited the
tations against the detention order within case of Puvaneswaran v. Menteri Hal Ehwal
the time and in the manner hereinafter Dalam Negeri, Malaysia & Anor. [1991] 3 MLJ
provided. 28 which involved a detention under the same
provisions of the law and in similar circum-
(2) It shall be the duty of the Officer in
Charge, when informing any detained stances whereunder a police officer had provided
person of his right to make representa- the detainee only one copy of Form 1. In a well-
h considered decision of the High Court on the
tions, to provide him with two copies (or, if
the detained person states that he intends very point, Edgar Joseph Jr J. (as he then was),
to engage an advocate to represent him, in allowing the detainee's application for habeas
three copies) of Form 1 in the Schedule. corpus, had this to say at pp. 29 to 30:
(3) The detained person shall, if he desires to There had been a consistent current of judi-
make representations, complete one copy cial opinion in our Courts, including the latest
of the form in time to enable the Officer in i decisions of the Supreme Court, which indi-
Charge to forward it to the Secretary not cate that when confronted with the problem of
Aw Ngoh Leang v. Inspector General of Police & 2 Ors.
[1993] 1 CLJ L.C. Vohrah J. 375
interpreting powers of preventive detention, a be at a disadvantage in proceedings before the
they have interpreted them strictly so as to Advisory Board.
require that the provisions of the relevant
statute are rigidly and meticulously complied If, on the other hand, a detainee intends
with. (See for example, Tan Hoon Seng v. engaging an advocate, it goes without saying
Minister for Home Affairs, Malaysia & Anor. that the advocate too must have a copy of Form
[1990] 1 MLJ 171, Rajoo s/o Ramasamy v. 1 to enable him to prepare a detainee's case;
Inspector General of Police & Ors. [1990] 2 MLJ hence the requirement by the bracketed words
87 and a series of 11 recent appeals heard b in r. 3(2) that a detainee shall be provided with
together, the first being Poh Chin Kay v. Menteri three copies of Form 1 should he intend to
Hal Ehwal Dalam Negeri, Malaysia & Anor. engage an advocate to represent him.
[1990] 2 MLJ 297, in all of which the detainee We are of the view that the above observations
succeeded on purely procedural or technical
grounds.)
of the learned Judge reflect the correct interpre-
... tation of the mandatory nature of the relevant
c provisions as they concern the right of a person
In my view, in considering the question posed detained without trial to seek his own release by
by this application a distinction has to be made a procedure for the making of representations
between procedural requirements which are of
direct relevance to the detention order and
requiring the filling-up of a minimum of two
those which are not. To put it another way, a forms and of one more if the detainee intends to
distinction must be drawn between procedural be represented before the Advisory Board. Any
requirements which are 'directory' only and disobedience of the mandatory requirements for
those which are 'mandatory'. The principle d the protection of this right would vitiate any
involved is simple enough to state but its appli- order of detention made even if no real prejudice
cation to specific cases is often not free from has ensued to the detainee. The maxim de
difficulty as has been aptly put by SA de Smith minimis non curat lex can have no application in
in his book, Judicial Review, at p. 142: 'The law
relating to the effect of failure to comply with
such a case as a breach of a mandatory require-
procedural requirements resembles an inextri- ment can never be a trifling matter when it
cable tangle of loose ends. involves the civil liberty of an individual.
e
and at p. 31:
... Some rules are vital and go to the root of the
matter, they cannot be broken; others are only
directory and a breach of them can be over-
looked provided there is substantial compli-
ance with the rules read as a whole and provided
no prejudice ensues; and when the legislature f
does not itself state which is which; judges
must determine the matter, and, exercising a
nice discrimination, sort out one class from the
other along broad based common sense lines.'
...
It is manifestly clear that the requirements
of r. 3 for the delivery to a detainee of the
g
requisite number of copies of Form 1 wherein
appear the grounds for his detention are not
just a concession but a right designed to en-
able and not just to assist him in making
representations to the Advisory Board which
has the power to recommend his release to the
Yang di Pertuan Agong. If he does not intend h
to engage Counsel then he shall be provided
with two copies of Form 1 - one to be sent to the
Secretary of the Advisory Board and the other
to be retained by him for his reference, so that
if and when he appears before the Advisory
Board he will be in a position to refer to it, and
if he so wishes, to make oral supplementation.
Without his own copy, therefore, he might well
i
