Shudangshu Chandra v Ketua Pengarah Imigresen Malaysia &

[2022] 3 MLJ Ors (Rhodzariah Bujang FCJ) 277

A Shudangshu Chandra v Ketua Pengarah Imigresen Malaysia &

Ors

B FEDERAL COURT (PUTRAJAYA) — CRIMINAL APPEAL NO 05

(HC)-39–03 OF 2021 (D)
NALLINI PATHMANATHAN, HARMINDAR SINGH AND
RHODZARIAH BUJANG FCJJ
26 JANUARY 2022
C
Immigration — Detention — Foreigner who had permit to work in Malaysia
was arrested and detained for breaching condition of his permit — Whether his
detentions under s 35 (pending decision on whether to deport him) and later s 34
(pending execution of deportation order) of Immigration Act 1959/63 were valid
D — Whether notice of cancellation of his work pass was properly and validly done
— Whether foreigner’s deportation order was invalid for citing wrong section of the
law because he had not committed any offence in connection with that section
— Whether detainee was entitled under the law to take advantage of any technical
imperfection to invalidate his incarceration
E
The appellant, a Bangladeshi, who was employed by a company in Malaysia
while in possession of a valid work pass, was arrested by immigration officers
for allegedly working in a coffee shop while he was on leave — an act which
breached the condition of his pass and was an offence under reg 39(b) of the
F Immigration Regulations 1963 (‘the Regulations’). The appellant was
produced before a magistrate who ordered his detention for 14 days under
s 51(5)(b) of the Immigration Act 1959/63 (‘the Act’) to facilitate
investigations. Although the appellant’s employer paid the compound for the
appellant’s offence, the appellant was nevertheless detained under s 35 of the
G Act pending a decision on whether to deport him from Malaysia. The appellant
was thereafter brought before the sessions court for the making of a further
remand order and then detained under s 34 of the Act pending his deportation
pursuant to a deportation order that had been issued simultaneous with the
cancellation of his work pass. The appellant filed a writ of habeas corpus to
H challenge his detention on the ground, inter alia, that since the offence that he
had committed was compounded and he was in possession of a valid work pass
at all material times, there was no basis for detaining him. The High Court
dismissed the habeas corpus application but granted a stay of the deportation
order until the instant appeal against the dismissal had been disposed of. The
I appellant argued that his detentions under ss 34 and 35 of the Act, the
cancellation of his work pass and the order to deport him were all invalid and
made mala fide. About a week before the instant appeal was heard, the
appellant was released from detention, given a special pass and handed over to
his employer.
278 Malayan Law Journal [2022] 3 MLJ

Held, unanimously allowing the appeal and granting the appellant a writ of A
habeas corpus:
(1) The appeal was allowed and a writ of habeas corpus was granted on the
sole ground that there was an error in the deportation order which stated
that it was made pursuant to s 56(2) of the Act although the appellant had B
not committed any offence under s 56(1). The respondents conceded at
the hearing that the citation of that subsection was wrong and that the
matter had been resolved as the appellant was not deported but was given
a special pass and handed over to his employer. Whilst the wrong citation
of the relevant provision of the law in itself was not evidence of mala fide C
and the issuance of the special pass to the appellant evidenced the
respondents’ good faith in respect of his detention, that error rendered
the deportation order illegal. The order had to be set aside for the simple
reason that the law was trite that a detainee like the appellant was entitled
to take full advantage of any technical imperfection which could have the D
effect of invalidating his incarceration. The respondents’ pre-emptive
decision to release the appellant must therefore be maintained (see
para 18).
(2) The appellant’s commission of the reg 39(b) offence brought him within
the phrase ‘a person reasonably believed to be a person liable to removal E
from Malaysia’ in s 35 of the Act and, therefore, his detention under that
section was permitted pending a decision on his removal from the
country. Section 35 was not contrary to art 5(4) of the Federal
Constitution because the proviso in art 5(4) on the requirement to
produce the arrestee before a magistrate within 14 days of his arrest F
applied to the initial arrest and detention and this requirement was
clearly incorporated in s 51(5)(b) of the Act. Secondly, the appellant’s
further detention under s 35 was merely pending a decision to remove
him. The appellant was produced before a magistrate right after his initial
arrest and was brought before the sessions court judge before his G
detention under s 35 expired. His re-arrest and detention under s 34 of
the Act was done on the same day (1 October 2020) and between that
date and 30 December 2020, the appellant was brought before the
sessions court judge seven times to extend his remand. There was,
therefore, no contravention of the law (see paras 6–7 & 9). H

(3) The notice of cancellation of the appellant’s work pass under reg 19(3) of
the Regulations was valid and was served personally on the appellant. The
cancellation of the pass was not made mala fide but was justified given the
appellant’s contravention of the pass as evidenced by the payment of the I
compound fee (see paras 10–11).
(4) Section 34(1) of the Act gave the Director General of Immigration the
power to detain any person ordered to be removed whilst arrangements
were being made for his removal. That was obviously the case with the
 Shudangshu Chandra v Ketua Pengarah Imigresen Malaysia &
[2022] 3 MLJ Ors (Rhodzariah Bujang FCJ) 279

A appellant as the order for his removal had already been made. Section 34
did not state, as was contended by the appellant, that it only applied to
persons who were convicted under ss 5, 6, 8, 9 and 60 of the Act (see
para 14).

B [Bahasa Malaysia summary

Perayu, seorang warganegara Bangladesh, yang merupakan pekerja satu
syarikat di Malaysia semasa memiliki pass kerja yang sah, telah ditahan oleh
pegawai imigresen kerana kononnya berkerja di kedai kopi semasa dia bercuti
— satu perbuatan yang melanggar syarat pasnya dan merupakan kesalahan
C
dibawah peraturan 39(b) Peraturan Imigresen 1963 (‘Peraturan’). Perayu
dikemukakan dihadapan seorang majistret yang memerintahkan
penahanannya untuk tempoh 14 hari di bawah s 51(5)(v) Akta Imigresen
1959/63 (‘Akta’) untuk membantu siasatan. Walaupun majikan pekerja
D membayar kompound untuk kesalahan yang dilakukan pekerjanya, perayu
tetap ditahan dibawah s 34 Akta menantikan pengusirnya dari Malaysia.
Perayu kemudiannya dibawa dihadapan mahkamah sesyen untuk membuat
perintah reman lanjutan dan kemudiannya ditahan dibawah s 24 Akta
sementara menantikan pengusirannya selaras dengan perintah usir yang
E dikeluarkan serentak dengan pembatalan pas kerjanya. Perayu memfailkan
writ habeas corpus untuk mencabar penahannya atas alasan, antara yang lain,
memandangkan kesalahan yang dilakukan telah dikompaun dan dia memiliki
pas kerja yang sah pada semua masa yang material, tiada sebab untuk
menahannya. Mahkamah Tinggi menolak permohonan habeas corpus
F tersebut akan tetapi membenarkan permohonan penangguhan pengusiran
sehingga rayuan berkaitan dengan penolakkan tersebut diselesaikan. Perayu
menghujahkan bahawa penahannya dibawah ss 34 dan 35 Akta, pembatalan
pas kerjanya, dan perintah untuk mengusirnya adalah tidak sah dan mala fide.
Lebih kurang seminggu sebelum rayuan tersebut didengar, perayu dilepaskan
G dari tahanan, diberikan pas khas, dan diserahkan kepada majikannya.

Diputuskan, sebulat suara membenarkan rayuan dan membenarkan writ

habeas corpus:
(1) Rayuan dibenarkan dan writ habeas corpus diberikan atas alasan tunggal
H bahawa wujud kekhilafan dalam perintah usir yang mengatakan ianya
dibuat selaras dengan s 56(2) Akta walaupun perayu tidak melakukan
apa-apa kesalahan di bawah s 56(1). Responden bersetuju sewaktu
pendengaran bahawa pemetikan subseksyen tersebut adalah salah dan
perkara tersebut telah diselesaikan kerana perayu tidak diusir akan tetapi
I diberikan pas khas dan diserahkan kepada majikannya. Walhal petikan
salah peruntukan undang-undang bukanlah keterangan yang
menunjukan mala fide dan pengeluaran pas khas kepada perayu
merupakan keterangan niat baik responden berkaitan dengan penahanan
tersebut, perintah menyebabkan pengusiran tersebut tidak sah. Perintah
280 Malayan Law Journal [2022] 3 MLJ

haruslah diketepikan atas sebab bahawa undang-undang adalah mantap A

bahawa seorang tahanan seperti perayu berhak kepada apa-apa kelebihan
kecacatan teknikal yang boleh menyebabkan pembatalan tahanananya.
Keputusan pra-matang responden untuk melepaskan perayu harus
dikekalkan (lihat perenggan 18)
B
(2) Perbuatan perayu berkaitan dengan kesalahan dibawah perkara 39(b)
membawaya didalam frasa ‘individu yang dipercayai secara munasabah
sebagai individu yang boleh diusir dari Malaysia’ dalam s 35 Akta dan,
oleh itu, tahanannya dibawah seksyen tersbut dibenarkan menantikan
keputusan berkaitan dengan pengusirannya dari negara. Seksyen 35 C
tidak bertentangan dengan perkara 5(4) Perlembagaan Persekutuan
kerana perkara 5(4) berkaitan dengan keperluan untuk mengemukakan
tahanan dihadapan majistret 14 hari sebelum tahananya terpakai kepada
tahanan pertama dan tahanannya dan keperluan ini diperbadankan
dalam s 51(5)(b) Akta. Kedua, tahanan lanjut perayu dibawah s 35 D
menantikan keputusan untuk mengusirnya. Perayu dikemukakan
dihadapan majistret sejurus selepas tahanan pertamanya dan
dikemukakan dihadapan hakim mahkamah sesyen sebelum tahanannya
dibawah s 35 luput. Tangkapan semula dan tahannya dibawah s 34 Akta
dilakukan pada hari yang sama (1 Oktober 2020) dan antara tarikh E
tersebut dan 30 Disember 2020, perayu dikemukakan dihadapan hakim
mahkamah sesyen tujuh kali untuk melanjutkan remannya. Oleh yang
demikian, tiada sebarang pelanggaran undang-undang (lihat perenggan
6–7 & 9).
F
(3) Notis pembatalan pas kerja perayu dibawah perkara 19(3) Peraturan
adalah sah dan diserahkan secara kendiri kepada perayu. Pembatalan pas
adalah tidak mala fide akan tetapi mempunyai justifikasi mengambil kira
pelanggaran perayu berkaitan dengan syarat pas sepertimana yang
dibuktikan dengan pembayaran kompaun (lihat perenggan 10–11). G
(4) Seksyen 34(1) Akta memberi Ketua Pengarah Immigresen Kuasa untuk
menahan apa-apa individu yang diperintahkan untuk diusir manakala
aturan dibuat untuk pengusirannya. Ini adalah kes perayu kerana
perintah untuk pengusirannya telahpun dibuat. Seksyen 34 tidak
menyatakan sepertimana yang diketengahkan oleh perayu, bahawa ianya H
hanya terpakai kepada individu yang disabitkan kesalahan dibawah ss 5,
6, 8, 9 dan 60 Akta (lihat perenggan 14).]

Cases referred to
Datuk James Wong Kim Min, Re [1976] 2 MLJ 245, FC (refd) I
Ketua Pengarah Imigresen & 3 Ors v Mohammad Abu Shaleh Criminal Appeal
No 05(HC)- 234–10 of 2018 (W) (unreported), FC (refd)
Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri & Anor [1994] 3
MLJ 285; [1994] 4 CLJ 47, SC (refd)
 Shudangshu Chandra v Ketua Pengarah Imigresen Malaysia &
[2022] 3 MLJ Ors (Rhodzariah Bujang FCJ) 281

A Nivesh Nair a/l Mohan v Dato’ Abdul Razak bin Musa, Pengerusi Lembaga
Pencegahan Jenayah & Ors [2021] 5 MLJ 320, FC (refd)
Pua Kim Wee v Ketua Pengarah Imigresen Malaysia & Anor [2018] 6 MLJ 670,
CA (refd)
Sajad Hussain Wani v Ketua Pengarah Imigresen Malaysia & Satu Lagi [2007]
B MLJU 897; [2008] 2 CLJ 403, HC (distd)
Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] 3
MLJ 759; [2021] 5 CLJ 581, FC (refd)

Legislation referred to
C
Federal Constitution art 5(4)
Immigration Act 1959/63 ss 3(3)(a), (3)(b), 5, 6, 8, 8(3), 9, 9(1)(a),
(4), (7), 15, 15B(1), 31, 32, 33, 34, 34(1), 35, 36, 51(4), (5),
(5)(b), 56(1), (2), 59A, 60, Part V
Immigration Regulations 1963 regs 19, 19(3), 26(1), 39(b)
D
Appeal from: Criminal Application No DA-44-32–10 of 2020 (High Court,
Kota Bharu)
T Harpal Singh (Nadia Syaza bt Rahizam with him) (T Harpal & Assoc) for the
E appellant.
Mohd Suhairy bin Zakaria (Nur Shahmeera bt Mustafa with him) (Federal
Counsel, Immigration Department of Malaysia) for the respondent.

Rhodzariah Bujang FCJ:

F
[1] The appellant, a Bangladeshi was an employee of a company, RCM
Cemerlang (M), Sdn Bhd (‘the employer’) who was given a temporary visit
employment pass (‘the pass’) by the Immigration Department which was valid
until 12 March 2021. He was arrested by the Immigration Authority on
G 5 September 2020 at 6.40pm after being allegedly found working at a coffee
shop whilst on leave, which act is an offence under reg 39(b) of the
Immigration Regulations 1963 (‘the regulations’). The appellant was produced
before a magistrate who ordered his detention for 14 days under s 51(5)(b) of
the Immigration Act 1959/63 (‘the Act’) from 5 September 2020 until
H 18 September 2020 and this can be seen from the detention notice to that effect
which was issued and signed by Amran bin Abd Aziz, Senior Deputy Assistant
Director of Immigration, Immigration Department of Malaysia. On
15 September 2020, a compound for the offence was offered to the appellant
which was accepted and his employer paid the compound fee of RM300 on his
I behalf. On that same day, that is 15 September 2020 he was detained under
s 35 of the Act at the Immigration Depot Detention Center of Tanah Merah,
Kelantan for 30 days. An administrative order was made by the Immigration
Department’s Head of Enforcement for action to be taken to deport the
appellant. The employer’s appeal against that decision was rejected by the
282 Malayan Law Journal [2022] 3 MLJ

Immigration Department’s ‘Jawatankuasa Rayuan Imigresen Negeri’ A

(‘the committee’) on 22 September 2020 and his removal from Malaysia or
deportation was ordered. On 1 October 2020, he was remanded for 14 days by
the sessions court and on the expiry of that remand order, that is 14 October
2020 the appellant was further detained under s 34 of the Act to facilitate his
deportation from Malaysia as per the order of removal made on the same date, B
14 October 2020. However, prior to the said date, on 5 October 2020, the
appellant had filed an application for a writ of habeas corpus challenging his
detention order dated 15 September 2020 on the grounds, firstly, that it was
void as he had paid the said compound and was not a prohibited person who
should be so removed and secondly, that the deportation order was made C
without giving him the opportunity to appeal to the Ministry of Home Affairs
(sued as the third respondent in this appeal). Thus, when the matter came up
for hearing before the learned High Court judge, additional grounds for the
issuance of the writ were canvassed, which are the validity of the notice of
cancellation of the pass, the deportation order and detention order, all dated 14 D
October 2020. On 12 October 2020, the learned High Court judge granted an
interim stay of the deportation order until the disposal of the habeas corpus
application and on 11 April 2021 that stay order was extended until the
disposal of his appeal before this court. The said extension was ordered after the
learned High Court judge (‘HCJ’) delivered his decision on 28 February 2021 E
to dismiss the appellant’s application for the writ of habeas corpus.

DECISION OF THE LEARNED HIGH COURT JUDGE

[2] On the issue of whether the re-arrest of the appellant on 15 September F

2020 when his pass was still valid, His Lordship held that since his pass was
revoked during the detention ordered by the learned sessions court judge, this
case is distinguishable from Sajad Hussain Wani v Ketua Pengarah Imigresen
Malaysia & Satu Lagi [2007] MLJU 897; [2008] 2 CLJ 403, because Sajad was
never brought before any magistrate for further detention, his offence was in G
respect of immoral acts against the teaching of Islam and not one under the Act
like the appellant here. Secondly, the detention of the appellant from the date
of his arrest until that ordered by the sessions court judge on 1 October 2020
was lawful as art 5(4) of the Federal Constitution allows 14 days after arrest of
non-citizen for his production before a magistrate. His Lordship also found no H
merit on the allegation that the appellant was not served with the notice of
detention and deportation as the appellant, who is well versed in Bahasa
Melayu as he affirmed his affidavit in support of the writ in Bahasa Melayu
without aid of translator, had acknowledged receipt of the documents on
14 October 2020. The appellant, held His Lordship further, had also failed to I
show how he was prevented from lodging the appeal with the third respondent
under reg 26(1) and based on Pua Kim Wee v Ketua Pengarah Imigresen Malaysia
& Anor [2018] 6 MLJ 670, there is no express or implied duty on the said
Minister to give reasons for the cancellation of the pass.
 Shudangshu Chandra v Ketua Pengarah Imigresen Malaysia &
[2022] 3 MLJ Ors (Rhodzariah Bujang FCJ) 283

A THE APPEAL

[3] Before us, learned counsel for the appellant reiterated the stands taken
by him in the High Court, which are:
B (a) the appellant’s further detention on 15 September 2020 under s 35 of
the Act was void, invalid and made mala fide;
(b) the notice of revocation of the pass dated 14 October 2020 was
improper and also made mala fide;
C (c) the detention under s 34 was invalid and made mala fide; and
(d) the deportation order was against the law and made mala fide.

[4] Before delving into the merits of the above contentions, it must be
noted that just about a week before the hearing of the appeal before us, that is
D 15 September 2021, the appellant had been released from his detention. That
decision was made, according to learned counsel for the appellant, after parties
were directed by us to submit on the issue the constitutionality of the ouster
clause in s 59A of the Act. Given that fact, the learned senior federal counsel
submitted, at the commencement of the hearing of the appeal, that it be
E vacated since it is academic but which we did not accede to for the reason that
this court in Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other
cases [2021] 3 MLJ 759; [2021] 5 CLJ 581, have decided, at para 203 of the
judgment of the Chief Justice Tun Tengku Maimun bt Tuan Mat, that the
matter is not academic even after the release of the detainee. I will now proceed
F to consider the merits of the appeal in the following manner.

Detention under s 35 of the Act

Section 35 provides as follows:
G Section 35 — Power to arrest person liable to removal
Any person reasonably believed to be a person liable to removal from Malaysia under this
Act may be arrested without warrant by any immigration officer generally or
specially authorized by the Director General in the behalf or by a senior police
officer, and may be detained in any prison, police station or immigration depot for a
H period not exceeding thirty days pending a decision as to whether an order for his removal
should be made. (Emphasis added.)

[5] Learned counsel for the appellant submitted that the said detention of
the appellant was illegal because he was not a prohibited immigrant under
I s 8(3) or an illegal immigrant under s 56(2) of the Act since he had a valid pass
until 21 March 2021 and therefore, could only be detained after that pass was
cancelled. Furthermore, submitted learned counsel, the appellant was also not
produced before the magistrate after his further detention on 15 September
2020 and which made the detention illegal as held in Sajad Hussain’s case
284 Malayan Law Journal [2022] 3 MLJ

because a detainee must be produced before a magistrate within 14 days as A

provided in the second proviso to art 5(4) of the Federal Constitution. That
s 35, said learned counsel cannot override the said proviso because the said
article’s application is only exempted against enemies of the State, of which the
appellant was not.
B
[6] With respect to learned counsel, I am unable to accede to that
submission for as rightly submitted by the learned senior federal counsel
(‘SFC’) since the appellant had committed an offence under reg 39(b), he
comes under the phrase ‘a person reasonably believed to be a person liable to
removal from Malaysia’ as highlighted in reproduction of s 35 above and C
therefore, as authorized by the said provision, his further detention of 30 days
is permitted pending a decision on his removal from the country. The said s 35
is not contrary to art 5 because, firstly the clear proviso in art 5(4) on the
requirement to produce the arrestee before a magistrate within 14 days of his
arrest applies to the initial arrest and detention and this requirement is clearly D
incorporated in s 51(5)(b). The above mentioned provisions read as follows:
Article 5(4)
(4) Where a person is arrested and not released he shall without unreasonable delay,
and in any case within twenty-four hours (excluding the time of any necessary E
journey) be produced before a magistrate and shall not be further detained in
custody without the magistrate’s authority:
Provided that this Clause shall not apply to the arrest or detention of any person
under the existing law relating to restricted residence, and all the provisions of this
Clause shall be have been an integral part of this Article as from Merdeka Day: F
Provided further that in its application to a person, other than a citizen, who is arrested
or detained under the law relating to immigration, this Clause shall be read as if there
were substituted for the words ‘without unreasonable delay, and in any case within
twenty-four hours (excluding the time of any necessary journey)’ the words ‘within
fourteen days.
G
And provided further that in the case of an arrest for an offence which is triable by
a Syariah court, references in this Clause to a magistrate shall be construed as
including references to a judge of a Syariah court. (Emphasis added.)
Section 51 Powers of search and arrest.
(1) … H

(2) …
(3) …
(4) …
I
(5) Notwithstanding anything contained in this Act or in any subsidiary
legislation made under this Act —
(a) where any person who is a citizen is arrested or detained under this
Act otherwise than for an offence against this Act, and has not been
 Shudangshu Chandra v Ketua Pengarah Imigresen Malaysia &
[2022] 3 MLJ Ors (Rhodzariah Bujang FCJ) 285

A earlier released, he shall without unreasonable delay, and in any case

within twenty-four hours (excluding the time for any necessary
journey), be produced before a magistrate and shall not be further
detained in custody without the magistrate’s authority; and
(b) where any person other than a citizen is arrested or detained under this
B Act, whether for an offence against this Act or otherwise than for such
offence, and has not been earlier released, or charged in court for an
offence against this Act, or removed from Malaysia under this Act, he
shall, within fourteen days of his arrest or detention, be produced before
a magistrate who shall make an order for his detention for such period
C as may be required by an immigration officer or a police officer for the
purpose of investigations into an offence against this Act, or by an
immigration officer for the purpose of either making inquiries, or
effecting his removal from Malaysia, under this Act,
and any provision of this Act or any subsidiary legislation made under this Act
D providing for the arrest or detention, otherwise than for an offence, of a person who
is a citizen, or for the arrest or detention of a person other than a citizen, whether for
an offence against this Act or otherwise than for such offence, shall be read as being
subject to the provisions of paragraph (a) or (b), as may be applicable:
Provided that the magistrate before whom such person is produced under paragraph
E (a) or (b), as the case may be, shall not authorize or order the detention of such
person for a period in excess of the maximum period which may be specified in the
provision under which he is to be detained.

F
[7] Secondly, his further detention under s 35 was merely pending a
decision whether to remove him. It is obvious from Part V of the Act in which
the said section is legislated that a ‘person liable to removal from Malaysia’ is
one who has committed a transgression under the Act which warrants the
exercise of the Immigration Authority’s power under s 51(5). Once that said
G decision to remove is made, then s 34 comes into play. It is therefore a
continuous process and given the incorporation of the proviso into s 51(4) as
stated earlier there is no legal necessity to repeat the same requirement in s 35.
Learned counsel for the appellant has also referred us to the decision of Zaharah
Ibrahim J (as Her Ladyship then was) in Sajad Hussain Wani’s case which held
H that the detention of the applicant in that case whilst still having a valid pass
was illegal. I would agree with the learned SFC that the facts in the said case are
clearly distinguishable because it was an undisputed fact that the appellant
(who at the time of his arrest for immoral conduct against the percepts of Islam
also had a valid pass) was never brought before a magistrate from the date of his
I arrest until the hearing of the writ for habeas corpus. Her Ladyship held that he
should have been brought before a magistrate within 14 days from the date of
his arrest as required by the second proviso to art 5(4) which is reflected in
s 51(5) of the Act and as his detention was under s 35, the magistrate could not
order it for more than 30 days as stipulated under the Act.
286 Malayan Law Journal [2022] 3 MLJ

[8] Her Ladyship further held that the detention under s 35 is only lawful A
after the pass had been cancelled because it clearly stipulates that power to
arrest and detain is to be exercised on ‘a person liable to removal from Malaysia’.
Only after that pass is cancelled the provision in s 9(4) of the Act would apply.
The said s 9(4) reads:
B
(4) Where a Pass is cancelled under paragraph (1) (b) or a Permit is cancelled under
paragraph (1)(c) —
(a) if its holder is present in Malaysia, he shall not remain in Malaysia after
such cancellation and shall be removed from Malaysia in accordance with
the provisions of this act, and he shall, thereafter, be prohibited from C
entering Malaysia; and
(b) if its holder is outside Malaysia, he shall be prohibited from entering or
re-entering Malaysia.

D
[9] In this case before us, the undisputed evidence is that the appellant was
brought before the learned magistrate right after his initial arrest and was
brought before the learned SCJ on 1 October 2020 before the expiry of his
30 days detention under s 35, which was before the cancellation of his pass on
14 October 2020 as per the notice dated the same date (see exh RISM1 to the E
affidavit of Ruzaana bt Mohamad affirmed on 29 December 2020 at p 165 of
AR Vol 3). His re-arrest and detention under s 34 was done on the same day
(see ‘exh LBJ7’ to the affidavit of Lelawati bt Jamaludin affirmed on
29 December 2020 at pp 121–122 of AR Vol 3). As noted by the learned HCJ
in his judgment, from 1 October 2020 until 30 December 2020, the appellant F
was brought before the learned SCJ seven times to extend his remand.
Therefore, there was no contravention of the law of the like which had
happened in Sajad’s case.
Cancellation of the pass under reg 19(3)
G
Learned counsel for the appellant submitted that the said cancellation was
invalid because the notice of cancellation should have been sent via post to his
last known address and if that failed, then to gazette it within seven days as
provided by reg 19(3) and s 9 of the Act. That notice also should have been
signed by the Director General or Deputy Director General of Immigration as H
required by s 9(7) but here it was signed by the State Deputy Director of
Immigration, one Ruzaana bt Mohamed. The relevant provision of reg 19 is
reproduced below:
Regulation 19 Cancellation of Pass and Forfeiture of Security
I
(1) Without prejudice to any other specific power to cancel a Pass conferred by or
under these Regulations, if the Controller is satisfied that the holder of any Pass
issued under these Regulations has contravened or failed to comply with any
provision of the Ordinance or of any of the Regulations, or with any condition
imposed in respect of or instruction endorsed on such Pass he may —
 Shudangshu Chandra v Ketua Pengarah Imigresen Malaysia &
[2022] 3 MLJ Ors (Rhodzariah Bujang FCJ) 287

A (a) forthwith cancel such Pass; and

(b) in any case where security has been deposited under regulation 18 of these
Regulations, and whether or not the Pass is cancelled, direct the forfeiture
of such security or any part thereof.
B (3) Notice of the cancellation of any Pass or of the forfeiture of any security or any
part thereof shall be given to the holder of such Pass: Provided that it shall be sufficient
if such notice is forwarded by registered post to the last known address of the
holder’. (Emphasis added.)

C The relevant provision of s 9 is reproduced below:

Section 9 — Director General’s power to prohibit entry, or cancel any Pass or
Permit.
(1) Notwithstanding anything contained in this act or in any subsidiary legislation
D made under this act, the Director General may —
(a) where he deems it expedient to do so in the interests of public security or
by reason of any economic, industrial, social, educational or other
conditions in Malaysia, by order, prohibited, either for a stated period or
permanently, the entry or re-entry into Malaysia of any person or class of
E persons:
Provided that the order made under this paragraph shall not apply to any citizen
or to the holder of any valid Pass or Permit;
(b) in his absolute discretion cancel any Pass at any time by writing under his
F hand; or
(c) cancel any Permit at any time by writing under his hand, if he is satisfied
that the presence in, or entry into, Malaysia of the holder of any Permit is,
or would be, prejudicial to public order, public security, public health or
morality in Malaysia or any part thereof.
G
(3) Every cancellation of a Pass under paragraph (1) (b) or a Permit under paragraph
(1)(c) shall come into force on the date of the cancellation, and the Director General
shall, as soon as may be thereafter, cause a notice of the cancellation to be sent to the
holder of the Pass or Permit, as the case may be, if his address is known, and if it is not
known, shall cause the notice to be published in such manner as he deems fit.
H (Emphasis added.)

[10] The raising of the above arguments are, again with respect, without any
merit because firstly, s 3(3)(a) and (b) of the Act allows the exercise of the
Director General’s power to be done by a Deputy Director General of
I Immigration or any other Senior Immigration Officer. The said provision
reads:
Section 3 Appointment and powers of Director General and others.
(3) The powers and discretions vested in the Director General by this Act, and the
288 Malayan Law Journal [2022] 3 MLJ

duties required to be discharged by him may, subject to section 4 and to such A

limitations as may be prescribed, be exercised and discharged by —
(a) a Deputy Director General of Immigration or Director of Immigration;
(a) a Deputy Director General of Immigration or Director of
Immigration;
B
(b) any senior immigration officer authorized in writing in that behalf by the
Director General

Secondly, with regards to the service of the said notice, it is equally a non-issue
because the said notice was served personally on the appellant. Although C
reg 19(3) uses the word ‘sent to the holder of the pass’ as I had emphasised
above, nonetheless, it is crystal clear from the words in the said provision that
the intention of the legislative is to notify the pass holder of the said
cancellation and there can be no better way to do that than to give the notice to
D
him in person.

[11] Learned counsel for the appellant further submitted that the
cancellation was made mala fide and against the interim stay granted by the
learned High Court judge. However that interim stay was against the E
deportation of the appellant and given the contravention of the pass by him, as
evidenced by the payment of the compound fee, that official move of the
department was in my view, more than justified.

Detention under s 34 of the Act F

[12] Learned counsel for the appellant submitted that the appellant’s
detention under s 34 of the Act pending his deportation was void and also
made mala fide because only migrants who had been found guilty or have
reasonable grounds for committing offences under ss 5, 6, 8, 9, 15, and 60 of G
the Act are liable to be deported back to their country of origin but not one like
the appellant who had been fined or compounded for offences under the
regulation. It was learned counsel’s stand that ss 32–34 of the Act are only
applicable to offenders convicted under ss 5, 6, 8, 9, and 60 of the Act and he
pointed out that s 9(1)(a) is clearly inapplicable to a Malaysian citizen and a H
valid pass holder. Learned SFC however highlighted to us in both his oral and
written submissions the fact of the appellant being granted, on 11 April 2021
an interim stay of the deportation order pending the disposal of his appeal to
this court. Therefore, said the learned SFC, there was no issue about the legality
of his detention under the said s 34. Granted that this is so, but nevertheless for I
the sake of argument, I would still address the point raised by learned counsel
for the appellant as follows.

[13] Now, with respect to learned counsel, I am not persuaded that s 34 is to

 Shudangshu Chandra v Ketua Pengarah Imigresen Malaysia &
[2022] 3 MLJ Ors (Rhodzariah Bujang FCJ) 289

A be read in the said manner as submitted by him. It is clear from the headings
and the reading of Part V of the Act which is titled ‘Removal from Malaysia’
that each provision in the said Part V, that is ss 31–36 caters for different
situations pertaining to the removal. Section 31 is on removal of prohibited
immigrants from Malaysia, s 32 is on removal of illegal immigrants, s 34 is on
B detention of persons ordered to be removed, s 35 is on power to arrest person
liable to removal and s 36 on unlawful return of a person to Malaysia who had
been so removed. Since we are concerned with s 34, I would reproduce the said
section below:
C Section 34 — Detention of persons ordered to be removed
(1) Where any person is ordered to be removed from Malaysia under this act,
such person may be detained in custody for such period as may be
necessary for the purpose of making arrangements for his removal:

D Provided that any person detained under this subsection who appeals under
subsection 33 (2) against the order of removal may, in the discretion of the
Director General, be released, pending the determination of his appeal, on such
conditions as to furnishing security or otherwise as the Director General may
deem fit.

E (2) Subject to the determination of any appeal under section 33, any person
who is ordered to be removed from Malaysia may be placed on board a
suitable vessel or aircraft by any police officer or immigration officer, and
may be lawfully detained on board the vessel or aircraft, so long as the
vessel or aircraft is within the limits of Malaysia.
F (3) Any person who is detained in custody in pursuance of an order made by
the Director General Under subsection (1) may be so detained in any
prison, police station or immigration depot, or in any other place
appointed for the purpose by the Director General.

G [14] Very obvious from the clear reading of s 34(1) above that the Director
General is given the power to detain any person ordered to be removed whilst
arrangements are being made for his removal. That is obviously the case with
the appellant here for the order for his removal had been made. There is no such
limitation as submitted by learned counsel for that section to only be utilised
H against offenders convicted of the said ss 5, 6, 8, 9 and 60 as stated above. It is
to be noted that the appellant in this case was given, and he did utilise his right
to appeal against his removal but that appeal was rejected by the committee
(see ‘exh LBJ6’ to the affidavit of Lelawati bt Jamaludin affirmed on 29
December 2020 at pp 116–119 of AR Vol 3).
I
[15] Learned counsel for the appellant referred us to the case of one
Muhammad Abu Shaleh who was granted a writ of habeas corpus by the High
Court on the ground that the commission of an offence under reg 39(b) was
not a serious offence which warrants his removal. The sealed order in the said
290 Malayan Law Journal [2022] 3 MLJ

case is reproduced below: A

Dalam perkara pengistiharan oleh Ketua Pengarah Imigresen bahawa

MOHAMMAD ABU SHALEH — No. Pasport: BH0595881 adalah imigran
larangan menurut seksyen 6 (1)(c) Akta Imigresen 1959/1963 dan oleh yang
demikian, kehadiran mereka adalah bertentangan dengan undang-undang
B
DAN
Dalam perkara perintah pengusiran berkenaan pengusiran MOHAMMAD ABU
SHALEH — No. Pasport: BH0595881

DI HADAPAN HAKIM C
AZMAN BIN ABDULLAH
PADA 30 OGOS 2018 DALAM
MAHKAMAH
TERBUKA
PERINTAH D
PERMOHONAN INI yang ditetapkan untuk Pendengaran pada hari ini dengan
kehadiran Harpal Singh, Peguam bagi pihak Pemohon dan Nurul Hanawi, Peguam
Persekutuan bagi pihak Responden DAN SETELAH MEMBACA Notis Usul dan
Afidavit yang difailkan DAN SETELAH MENDENGAR hujahan kedua-dua pihak
yang tersebut di atas MAKA ADALAH DIPERINTAHKAN bahawa Permohonan
untuk writ habeas corpus ini adalah DIBENARKAN dan ADALAH E
JUGA DIPERINTAHKAN bahawa Permohon tidak boleh ditangkap semula
sehingga program rehiring dan penempatan semula PATI dengan bayaran telah
dibuat [dan tidak pernah dikembalikan jika menolak permohonan mereka] diberikan
kepada Pemohon seperti yang dijanjikan menurut tempoh yang ditetapkan dan
hak-hak mereka. F
DIBERI di bawah tandatangan saya dan meterai Mahkamah pada 30 Ogos 2018.
Bertarikh pada 30-Ogos-2018
t.t
NUR AIN BT MUSTAPA
Penolong Kanan Pendaftar G
Mahkamah Tinggi Malaya
Kuala Lumpur

[16] The same entities who are the respondents in this case, except that the H
Commandant of the Immigration Depot in the cited case is that of Semenyih,
appealed to this court in Ketua Pengarah Imigresen & 3 Ors v Mohammad Abu
Shaleh Criminal Appeal No 05(HC)-234-10 of 2018 (W) (unreported).
Learned counsel submitted that the parties agreed to delete the further order as
highlighted above and therefore, the rest of the decision of the learned High I
Court was affirmed. However, when I examined the sealed court order of this
court, reproduced as part of tab G of the appellant’s bundle of authority, it very
clearly states that the appeal of the appellants (ie the respondent’s in this case
before us) was allowed, meaning to say that the decision of the learned HCJ to
 Shudangshu Chandra v Ketua Pengarah Imigresen Malaysia &
[2022] 3 MLJ Ors (Rhodzariah Bujang FCJ) 291

A issue the writ of habeas corpus was reversed, although the further order of the
learned HCJ was set aside. I would for the sake of clarity reproduce the order
below:
DALAM MAHKAMAH TERBUKA
B PADA 27 HARIBULAN FEBRUARI 2019
MPRJ NO: 05(HC)-234-10/2018 (W)
PERINTAH
RAYUAN INI yang ditetapkan untuk pendengaran pada 27 haribulan Februari 2019
dalam kehadiran Peguam Kanan Persekutuan Fazril Sani bin Mohamed Fadzil bagi
C pihak Perayu-Perayu dan Harpal Singh (Tan Cheng Yee bersama-samanya)
Peguambela bagi pihak Responden DAN SETELAH MEMBACA Notis Rayuan dan
Rekod-Rekod Rayuan yang kesemuanya difailkan di sini DAN SETELAH
MENDENGAR hujahan pihak-pihak yang tersebut di atas MAKA ADALAH
DIPERINTAHKAN bahawa rayuan Perayu-Perayu dibenarkan. Perintah
Mahkamah Tinggi bertarikh 30.08.2018 dipinda dengan mengenepikan Perintah
D
‘bahawa Pemohon tidak boleh ditangkap sehingga program rehiring dan
penempatan semula PATI dengan bayaran telah dibuat [dan tidak pernah
dikembalikan jika menolak permohonan mereka] diberikan kepada Pemohon seperti
yang dijanjikan menurut tempoh yang ditetapkan dan hak-hak mereka

E DIBERI di bawah tandatangan saya dan Meterai Mahkamah pada 27hb. Februari
2019.
t.t
……………………………
AISHAH AMEERAH BT CHE JOHAN
F
Penolong Kanan Pendaftar Mahkamah Persekutuan Putrajaya

Thus, with respect, there is again no merit in learned counsel’s argument that
the commission of an offence under reg 39(b) would not be a legal basis to
G order the removal of an immigrant like the appellant.

OUSTER CLAUSE

[17] I must state at the outset that the issue of whether s 15B(1) of the Act
H which is on the court’s power to review the act or decision of the Board is
constitutional was not raised by the parties either here or in the court below but
they were requested by us to submit on it and which they did, comprehensively.
However, it has occurred to me post that directive that this very issue on the
constitutionality of s 15B is the subject of a pending appeal in this court when
I it allowed an application to review the decision of a five member panel Nivesh
Nair a/l Mohan v Dato’ Abdul Razak bin Musa, Pengerusi Lembaga Pencegahan
Jenayah & Ors [2021] 5 MLJ 320. I was in that panel chaired by the Chief
Justice Tun Tengku Maimun bt Tuan Mat, which allowed the said review and
given the size of the earlier coram, it would not be wrong for me to surmise that
292 Malayan Law Journal [2022] 3 MLJ

a similar number of coram, if not more, would rehear the appeal which is A
currently fixed for hearing on 25 April 2022. In the circumstances and with the
deepest of regret and profound apologies to both parties for what would be
their wasted effort given the decision I am about to make, which is, that I am
of the considered view that this issue would be better and more expeditiously
dealt with at the rehearing of Nivesh’s case. B

Deportation order illegal and made mala fide

[18] The deportation order is stated to be made under s 56(2) of the Act but
the appellant did not commit such an offence under s 56(1). Learned counsel C
for the appellant submitted that the said order was therefore illegal and was
made mala fide because he was not a person ‘liable to be removed’ under s 56(2)
and that he had a valid pass until 12 March 2021 when he was detained on
5 September 2020. He was thus not a prohibited immigrant as defined in s 8 of
D
the Act. The learned SFC conceded orally at the hearing before us that the
citation of that subsection was wrong but that the matter was in a way resolved
because the appellant was given a special pass and handed over to his employer
after the interim stay of the order was granted. In other words, he was not
deported. In my view, the wrong citation of the relevant provision in itself E
cannot be evidence of mala fide and the issuance of the special pass is further
evidence of the respondent’s good faith in respect of his detention.
Nevertheless, that error has rendered the deportation order illegal and it must
accordingly be set aside for the simple reason that the law is trite and
entrenched that a detainee like the appellant is entitled to take full advantage of F
any technical imperfection which has the effect of invalidating the order that
incarcerates him without trial or even with trial. In relation to habeas corpus
application, the above mentioned law in a detainee’s favour was expressed in the
often quoted decisions of Re Datuk James Wong Kim Min [1976] 2 MLJ 245
and Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri & G
Anor [1994] 3 MLJ 285; [1994] 4 CLJ 47. No court of law should condone
such an error in this case which actually is easily rectified by an application to
amend the same. Consequentially, on this ground alone the appeal of the
appellant is allowed as the appellant was entitled to be granted the writ of
habeas corpus as prayed by him and thus the respondent’s pre-emptive decision H
to release him must therefore be maintained.

[19] My learned sister and brother judges, Nallini Pathmanathan FCJ, and
Harmindar Singh Dhaliwal FCJ, have read this judgment in draft and have I
expressed their agreement with it.
 Shudangshu Chandra v Ketua Pengarah Imigresen Malaysia &
[2022] 3 MLJ Ors (Rhodzariah Bujang FCJ) 293

A Appeal allowed and appellant granted writ of habeas corpus.

Reported by Ashok Kumar