Does the State condone illegal detentions
The reason to process both detentions through the judiciary is to confirm the illegality of both detentions. Once these two detentions are proven illegal, unlawful and unconstitutional, it will enter into the Malaysian court official records and “set in stone” concerning these two detentions.
Upon winning the court declaration orders on both detentions, it will prove that the Immigration Department of Malaysia officers had abused their power to detain foreigners at their whims and fancies. Such abuse of authority to use the power conferred by law to commit wrongful confinement, contrary to law, against helpless and defenseless non-citizen victims. This abuse of power is a criminal offence under the penal code of Malaysia. All shall await and see whether there is equality of law and justice in Malaysia as enshrined in the Federal Constitution of Malaysia, Article 8(1) as follows: “All persons are equal before the law and entitled to the equal protection of the law“.
Any victory in the Malaysian courts is also a victory for all past foreign-nationality victims of illegal detention at the whims and fancies of Immigration Department of Malaysia officers. From the exhibits, “HB-1” submitted by immigration officer, HBB, one can see that it is an OPTION for Immigration officers to produce a non-citizen before a Magistrate within 14 days. As an example, all the other eleven foreign nationals who were arrested together with me were listed on page 1 of 3 of the immigration documents. It is the same document that were submitted to the magistrate that prove my detention was illegal. Will these eleven detainees able to get a court declaration that their detention was illegal, unlawful and unconstitutional as well?
From the above-mentioned point, it also means that there are no checks and controls on this Immigration Act section 51(5)(b)’s requirement thus far because IT IS AN OPTION for the immigration officer to exercise as the format of the document suggested.
That would also lead to the question, why does the Immigration Department of Malaysia officers carry out all these illegal detentions upon foreign nationals and what was their motives?
Most importantly, the bigger question is “does the State (Malaysia) condoned these illegal detentions and if not, then what are the evidence and actions by the State (Malaysia) to show otherwise?“
With such a bad human rights violations record, how was the Government of Malaysia seen fit to have a seat on the United Nation Human Right Council (UNHRC)?
Background and the Part 1 illegal detention
On the 26.3.2018, I was eventually brought before a Magistrate after 26 days of being keep incommunicado and cut off from civilization. I was thinking that I could possibly regain my freedom from this inhumane immigration detention depot. At the same time, it could also mean the end of the Johor Immigration team further messing up my life as one of them had vowed to do just that, quote: “He threatened me to “watch out” in the presence of the two policemen as well as playing the race and religion card against me in that scene, citing to the police that I am a foreigner, a Singaporean Chinese and a Christian.”
Of the 26-days detention of being kept incommunicado and cut off from civilization and concerning the detention from 13.3.2018 to 26.3.2018, I decided to challenge the Immigration Department of Malaysia on the Immigration Act section 51(5)(b) requirement that non-citizens shall be produced before a magistrate within 14 days. This proviso, S.51(5)(b) was added into the Immigration Act to over-ride the Federal Constitution Article 5(4) – “shall produce for remand before a Magistrate within 24 hours.”
This legal challenge is made possible after a hard copy of page 3 of 3 court document inadvertently landed in my hands. This page 3 of 3 document is a page from the magistrate order for remand within 14 days for non-citizens. However, because of the option to choose the senior immigration (also the investigating officer), MHBK had chosen not to produce me before a Magistrate and then ticked on ‘No’ accordingly. This court document is the conclusive evidence that MHBK broke the law according to Section 51(5)(b), without excuse as a senior officer.
After one-and-a-half year of battle in the KL High Court, the high court judge, NBB agreed with me and declared the detention from 13.3-2018 to 26.3.2018 illegal, unlawful and unconstitutional on 4.5.2021.
I then follow up with a police report No. L/20211208/2005, made against Immigration Department of Malaysia officers on 8.12.2021 for this part 1 illegal detention. Supporting evidence of this police report was the judge NBB‘s written judgment for this Saman Pemula No. WA-24-5-01/2020 case.
Meanwhile the AGC had appealed against judge NBB‘s declaratory order, and so the legal fight on part 1 illegal detention continued to the Appeal Court.
Background and the part 2 illegal detention
Prior to be produced on 26.3.2018 before the immigration court (Special Session) magistrate inside the Pekan Nenas compound, I fasted and prayed to God for many days, seeking divine favor and grace for a fair judgment from the magistrate. That prayer was answered, and the regular magistrate presiding was replaced at the last minute with magistrate ABB to take over and presides.
On the 26.3.2018, the magistrate, ABB fined me for a purported offence under Immigration Act section 55(E)(1). I was fined RM30,000 in default six months jail and which my daughter immediately paid the fine to secure my release. After paying the fine, a court discharge order was given for my release on the same day. On the 27.3.2018, this court discharge order was handed over to Immigration Department of Malaysia when she and my Malaysian lawyer, YHK when they also visited me. At all times I have a valid MM2H visa and a valid Singapore passport that has been surrendered to Setia Tropika Immigration HQ’s custody.
Instead of complying with the court discharge order, the Immigration Department of Malaysia officers disregarded the discharge order. Immigration officers continued to detain me for eight more days, based purely on their own whims and fancies.
About the part 2 illegal detention
On the morning of 26.3.2018 after 26 days detention, I was brought together with about thirty others before the magistrate in the Immigration Special Court within Pekan Nenas Depot compound to face a charge. I was charged because there were 6 persons found without purported valid documentation on my Taman Perintis old bungalow property. This is a property which was used as charity home in collaboration with a Malaysian charity organization while I stayed in my own Malaysian home in the Ledang estate under MM2H.
After the charge was read out, the magistrate asked me whether I want to plead guilty or not guilty. I can plead not guilty, and the immigration officer PS will take me back to the big cell and continued to lock me for as long as possible to force me to capitulate. On this point of capitulation, it is now proven 100% beyond any doubt with the part 2 illegal detention proven in court.
The reason is that I am a defenseless foreigner, and no one can challenge the power of immigration officers up to today. The high court case, Saman Pemula No. WA-24-16-04/2022 has proven that even with a court discharge order, they adamantly won’t let you go free and very confident that no one is able to intervene. This is akin to immigration officers having a game of Russian roulette with my life when within four months suffered a heart attack and would have died inside their inhumane detention cell. I witnessed a detainee died because there is delay due to no availability of an escort immigration guard to escort detainee for emergency treatment. As for this availability of an escort immigration guard requirement, I personally experienced it firsthand when I had a urinal tract infection and seeking medical treatment myself.
Or I can plead guilty, received the sentence and moved along as there is a long queue of offenders waiting for their turn to plead guilty and moved along on that morning. That is how the immigration court works on that morning. Before lunch, all the detainees were herded to the compound outside to be segregated. There are only two groups, one group to go to Kluang prison and the other group to go back to the detention cell. No foreigner is going free no matter what your plea is. I would be detained in their detention for weeks and months, subject to the whims and fancies of these immigration officer, this I am already very sure before I pleaded guilty.
On hindsight now, I know that I had made the right decision to plead guilty. If I did not plead guilty, leading to me being detained for weeks and months inside Pekan Nenas Depot, I would have died from my heart attack inside. Detainees in this depot is cruelly and inhumanely treated in terrible unhygienic conditions where detainees died with no accountability and disease spreads amongst detainees.
Hence, there is a part 2 detention period from 27.3.2018 up to 3.4.2018, which need to be mentioned and ventilated as well.
My first move to mention and ventilate this is to make a police report concerning the illegality of this detention. This was done on the 8.12.2021 together with three other police reports. But then I am assuming the worse, i.e. the Royal Malaysia Police will not take any action on these police reports against their own Immigration Department of Malaysia brother-and-sister officers. This was gathered from past stories from credible people and makes this seems a highly likely scenario. And it was proven right about the double-standard after a final confirmation email correspondence before starting a judicial review action in early 2023.
Legal challenge on part 2 illegal detention
Apart from just making a police report which may ends up going nowhere, an additional action in the form of court action was commenced so as to have a two-tracks action to redress this part 2 illegal detention injustice.
On the 27.1.2022, an Originating Summon (OS) was filed in the KL high court against the Immigration Department of Malaysia. I am asking the court for a declaratory order on the illegality of this part 2 detention. This OS was a simple and straight forward case with strong supporting evidence in the form of a court discharge order issued for my release. The court discharge order, together with my valid MM2H visa and my valid Singapore passport is legal and constitutional ground for my immediate release or immediate deportation back to Singapore. Any further detention upon presentation of a court discharge order can only be illegal, unlawful and unconstitutional.
First Case Management (CM) on part 2 illegal detention
As can be seen from the Case Management (CM) on the 28.2.2022 notes, there was a strong challenge from the Immigration Department of Malaysia to derail this OS court action.
- As at the date of CM, Defendant (Immigration) did not file any Affidavit-in-reply (AIR).
- Though my OS and AIS was served on Immigration on the 14.2.2022, Immigration further wanted one month from 28.2.2022 to file their affidavit-in-reply (AIR)
- The Immigration wanted me to withdraw this OS as such case is under the Special Powers Division. This is their first attempt to stop my OS.
- Immigration also wanted to have the rights to file interlocutory application, including taking an application to strike out my OS. This will be their next attempt should the first attempt failed.
- The court then gave instruction that my lawyer to file a formal application to transfer from OS to Special Powers Division instead of withdrawing and re-file.
The next CM was set on 10.3.2022
Second Case Management (CM) on part 2 illegal detention
From the Second Case Management (CM) on the 10.3.2022 notes, my Malaysian lawyer, AK filed a transfer application while Immigration file a striking out application. This means that there will be two different applications to be heard by the high court. Things now get complicated with three applications, i.e. CM of Encl. 1 (OS), Encl. 4 (Transfer application) and Encl. 6 (Striking out application).
- My Malaysian lawyer filed the Notice of Application (Encl. 4) to transfer the proceeding to the Special Powers Division and served the cause papers on the Defendant on 8.3.2022.
- We received the Immigration’s Notice of Application (Encl. 6) – striking out of OS on 9.3.2022.
- Both Encl. 4 & Encl. 6 to be disposed of first by the court before any direction regarding the filling of the affidavits in Encl. 1 is given.
- It was agreed that Encl. 4 to be disposed of first and the date for hearing of Encl. 4 is fixed on 29.3.2022.
- Direction regarding Encl. 6 would be given after the disposal of Encl. 4.
Defendant’s affidavit-in-support (AIS) to strike out my OS application
On 6.3.2022, Immigration filed an application (Encl. 6) – striking out my OS. Immigration claimed that my OS action filed on 27.1.2022 is time-barred pursuant to section 2(a) of PAPA 1948. The Immigration is using this application (Encl. 6) in their second attempt to stop my legal challenge by using the PAPA section 2(a) – three years-time-barred limitation for suing the government.
My affidavit-in-opposition (AIO) to Defendant’s AIS
Third Case Management on part 2 illegal detention
From the third Case Management (CM) on the 26.4.2022 notes.
- Regarding Encl. 1, we have served a copy of the sealed OS and AIS on Defendant (Immigration) on 14.2.2022. However, Immigration has yet to file their reply to date and hence, any affidavit that would be filed hereinafter by Immigration would be out of time.
- There is no application for extension of time filed by Immigration and the time limited for the filling of affidavit in Encl. 1 is not automatically stayed merely because there is an interlocutory application.
- Immigration seeks for direction pertaining to the filling of AIR in Encl. 1 to be given only after the application in Encl. 6 has been disposed.
- High court agreed with Immigration that if Encl. 6 is in Immigration’s favor, OS would be struck out and there is no longer a need to file the AIR.
- The court sets the following dates for submissions: 8.6.2022 – Written Submission to be filed simultaneously by both parties. 22.6.2022 – Reply Submission to be filed simultaneously by both parties.
- And the court sets 29.6.2022 (Wednesday), for hearing of Encl. 6 (striking out of OS) & CM of Encl. 1
Court dismissal of the striking-out-application news
The court hearing on the striking out application was on the 29.6.2022. However, this second attempt by Immigration to scuttle my legal challenge has failed.
The judge dismissed the Immigration Enc. 6 – striking out application. It was another victory against the Immigration Department of Malaysia and a win for justice. This news was published by Malaysiakini and Singapore Straits Times.
There is eight weeks between 29.6.2022 to 24.8.2022 for the filling of affidavits and submissions, then the final hearing on 24.8.2022.
Legal challenge on part 2 illegal detention allowed to proceed
Defendants’ affidavits in reply to CM Encl. 1 (OS)
Immigration has to submit their affidavit-in-reply (AIR-1) to CM Encl. 1 OS affidavit-in-support (AIS) by 14.7.2022 now that Encl. 6 (strike out application) is dismissed.
My affidavit in reply to Defendant (Immigration)’s affidavit in reply
After Defendant (Immigration officer, NBJ and officer, MHBI) filed their affidavits in reply (D-AIR1 & D-AIR2) which I received on 15.7.2022, I filed my affidavit in reply on 27.7.2022.
Below are snippets of my AIR para 5, para 7 and para 9 that respond to the two orders exhibits, “NJ-1” provided by Immigration.
Defendant’s request to file additional affidavit without leave of court
After receiving my affidavit in reply (AIR) to Immigration on the 27.7.2022, the Defendant’s lawyer wrote to ask the court to allow him to file a further affidavit in reply (D-FAIR) which is outside of the CM Encl. 1 scope.
This is against court rules, and it seems like the Defendant’s counsel is trying to scupper the timeline set by the court for CM Encl. 1.
Quote and unquote of para 4 from the counsel for defendant’s letter to my lawyer, “4. Accordingly, the Defendant humbly wishes to apply to this Honorable Court for the Defendant to be allowed to file an Affidavit Defendant’s reply within 1 week from today i.e. before/on 3.8.2022. Further, the Defendant has no objection if the Plaintiff wants to file final Reply Affidavit (without any new issue) within 1 week from date that is before/on 10.8.2022. Neither of those dates will interfere with the instructions for the filing of written arguments and also the hearing date of Appendix 1 which has been set.”
My lawyer’s letter to reply to Immigration; quote and unquote of para 2: “2. We are instructed by our client as follows:
i. That the Defendant specify which allegation in the Plaintiff’s Affidavit in Reply affirmed on 26.7.2022 (“P-AIR”) that they claim to be new; and
ii. That the Defendant specify which allegation in the P-AIR that they claim to be outside from the scope of a reply to justify a further reply from the Defendant.”
Seeking clarification on specific allegations that Immigration wants to reply to
Para 2 from the counsel for Defendant’s letter replying to my lawyer, “2. Referring to paragraph 2 of your letter dated 28.7.2022, the allegations those are in paragraphs 5, 7 and 9 of the Plaintiff’s Reply Affidavit dated 26.7.2022.”
My lawyer’s letter to reply to Immigration; quote and unquote of para 2: “2. We are instructed to object to your application to file a further affidavit in reply for the following reasons:
i. You did not specify which allegation in the Plaintiff’s Affidavit in Reply affirmed on 26.7.2022 (“PAIR”) are new and that are outside from the scope of a reply.
ii. Paragraphs 5, 7 and 9 of P-AIR are materially the whole of Plaintiff’s reply to the allegations raised in ‘Afidavit Jawapan Defendan (1)’ and ‘Afidavit Jawapan Defendan (2)’, both affirmed on 12.7.2022 (“D-AIRs”).
iii. The Plaintiff only replied to the D-AIRs and did not go outside the scope of a reply in his P-AIR.”
These allegations by Immigration have no grounds to support their request for submitting an additional affidavit against the rules and possibly to scupper the 24.8.2022 hearing date.
Despite my Malaysian lawyer’s letter, lawyer for Immigration disregarded and went ahead to file additional affidavits without leave of the court. To the AGC’s unilateral action, my lawyer replied as below:
Quote and unquote: “We refer to the above matter, our letters dated 28.7.2022 and your email to us on 3.8.2022. We are instructed to object to the filing of the ‘Afidavit Balasan Defendan
(1)’ in Encl. 30 and ‘Afidavit Balasan Defendan
(2)’ in Encl. 31 as the same were filed without leave of the Court and out of procedure (O 32 r 13(2)).
Hence, the Plaintiff will not be filing any further affidavit in reply and the same shall not be taken as an admission of any allegations made therein and our client is in disagreement with the said allegations.”
My Written Submission
Main arguments for written submission:
- The Defendant alleged that the said Order of Removal and Order of Detention were served on the Plaintiff on 27.3.2018 and that the Plaintiff purportedly acknowledged receipt by placing his thumbprint on both Orders.
- That is not true. The Plaintiff had no knowledge of the Order of Removal and Order of Detention when shown the same from the Defendant’s affidavits.
- There was no explanation whatsoever on how the deponent of D-AIR2 could have served the Order of Removal and Order of Detention on the Plaintiff on 27-03-2018 when the deponent of D-AIR2 does not work at Kluang Prison. He also did not explain the circumstances which led him to be at Kluang Prison on 27.3.2018, if indeed he was there (though strictly denied). He did not state the time and place, whether in the prison cell or otherwise, of the purported service. In fact, it is odd for the deponent of D-AIR2 to have personally served the Order of Removal and Order of Detention on the Plaintiff when he was not a prison guard or an officer working at Kluang Prison.
- In the absence of sufficient explanation by the Defendant as to the proof of service, the benefit of the doubt must be afforded to the Plaintiff.
- The Plaintiff’s detention from 27.3.2018 to 3.4.2018 was made under an Order of Detention dated 27.3.2018 issued by the Defendant pursuant to Section 34(1) of the Immigration Act 1959/63 (Act 155).
- The Plaintiff was ordered to be removed from Malaysia by an Order of Removal dated 27.3.2018 issued by the Defendant pursuant to Section 56(2) of the IA.
- Pursuant to the Order of Detention and the Order of Removal:
(a) The Plaintiff was detained at the Kluang Prison from 27.3.2018;
(b) On 29.3.2018, the Plaintiff was transferred to the Pekan Nenas Immigration Depot and was further detained; and
(c) On 4.4.2018, the Plaintiff was removed from Malaysia.
- With regards to the Plaintiff’s contention that he was not discharged or released forthwith pursuant to the Discharge Order which was handed over on 27.3.2018, the Defendant submits as follows:
(a) The Discharge Order was directed to the Officer in Charge of the Kluang Prison and the Discharge Order authorized the Officer in Charge of the Kluang Prison to discharge the Plaintiff forthwith.
(b) The Discharge Order was not directed to the Defendant and does not impose any legal obligation on the Defendant to discharge or release the Plaintiff forthwith.
- With regards to the Plaintiff’s contention that there was no valid explanation for his detention from 27.3.2018 to 3.4.2018, the Defendant reiterates the foregoing submission. Apart from that, the Defendant also submits that the Plaintiff was aware of the existence of the Order of Detention and the Order of Removal since 27.3.2018 because he was served with the Order of Detention and the Order of Removal on 27.3.2018.
My Written Submission In Reply
- There was no answer as to why the alleged Order of Removal (if one existed at the material time) was issued against the Plaintiff under s 56(2) of the Immigration Act 1959/63 on 27.3.2018.
- It is not disputed that the Plaintiff still had a valid pass to remain in Malaysia on 27.3.2018. This was repeatedly confirmed by the Defendant in their affidavit and submission. It follows that the Plaintiff is not a person liable to be removed from Malaysia under s 56(2) of the Immigration Act.
- This would explain why the Defendant could not provide any explanation to tell the basis for the issuance of an Order of Removal against the Plaintiff. It follows that there could be no basis for an Order of Detention. This leads to the view that both orders were highly suspicious and to be “manufactured”.
- This would also support the Plaintiff’s contention that he did not receive any Order of Removal and Order of Detention on 27.3.2018 because the purported reason for the delay in the Plaintiff’s release, as told to the Consulate General of Singapore, was that Setia Tropika Immigration did not have the Plaintiff’s passport (even though the same was collected by Setia Tropika Immigration on 4.3.2018 and was kept by them since then) and not because of the issuance of the two Orders.
- Furthermore, the existence of these two Orders were not even brought up by the Defendant during the striking out application, and that the same were only brought in now as an afterthought.
- As the alleged Order of Removal and Order of Detention (both orders are highly suspicious to be “manufactured”) were issued contrary to the law, the two Orders are ultra vires and null and void.
Conclusion after both parties have presented their arguments and submissions
It was alleged that I was served an Order of Removal which became the basis for an Order of Detention personally after thumbprint and acknowledged receipt of both Orders. However, there was no explanation to how and where it was served to me at Kluang prison apart from the fact that I do not thumbprint document.
It was submitted by Defendant that because the Discharge Order was not directed to the Defendant (Immigration), they have no legal obligation to discharge or release me. This appears to be a wild claim. If the claim is valid, then it will mean that the Immigration Department of Malaysia officers can forever detained me even after I have settled the court sentence. What an arrogant statement by an educated officer, NBJ?
Based on the above statements and assuming that the Order of Detention is true (which is very suspicious), then we can conclude the following:
The immigration officers have abused the power to detain foreigners. They have been detaining foreigner at their whims and fancies and for as long as they wanted. And through the legal challenge mounted by me in the Malaysian courts, this abuse of power was proven without a doubt.
This kind of illegal detention, at the whims and fancies of immigration officers, is a form of state-sanctioned terrorism that has been used to strike fear and terror into foreign nationality detainees.
Conclusion of AGC’s appeal against part 1 illegal detention
After the above-mentioned part 2 illegal detention trial concluded on 12.9.2022 with another victory, and I have also gotten a high court declaration that the detention from 27.3.2018 to 3.4.2018 is illegal, unlawful and unconstitutional. Next to close up is the legal challenge, the appeal mounted by AGC to the Appeal Court against the judgment of high court judge, NBB.
This appeal before three judges in the Appeal Court and scheduled on 31.10.2022 is finally concluded. All three appeal court judges, VABMM, SL & MBHY unanimously dismissed the AGC’s appeal with cost of RM10,000 to me. Credit for a fair and just judgment given by the three appeal court judges.
Hence, a total of four senior judges confirmed the incompetence (or worse as lawless) of the senior director-level immigration officer, MHBK, then the arresting and investigating officer, of subjecting me to this kind of illegal, unlawful and unconstitutional detentions. It must be publicized that MHBK is not just detaining me illegally, but from the list (page 1 of 3) that is together with the magistrate order also included eleven other foreign nationals. Were these eleven non-citizens also been similarly victimized and their human rights as guaranteed under the Malaysian Federal Constitution violated by immigration officer MHBK?
One of the conclusions drawn from the ways and conducts of Immigration Department of Malaysia officers in the matter of these two illegal detentions is that it proves that the Malaysian Immigration Act 155 is an anti-foreigner and anti-human rights Act.
How the Government of Malaysia respond to these two parts illegal detentions, that is now set in stone in court records, is a matter of public interest in Singapore and Malaysia?
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