Magistrate Remand Order – Two Opposing Claims

Compilation of an account of events during 35 days immigration detention

Regarding the Magistrate remand Order question, it can be answered from a few different sources. One of the sources is based on a compilation and recording of events during my 35 days detention. This compilation is to help me remembered and described in clear details of all those events, incidents and happenings during the 35 days while I was in immigration detention. Another source is from official court document.

To help with accuracy and completeness of the compilation, I had cross-checked against a diary that keeps a log of account of events in right down to details. It recorded what my family, my extended families, friends, neighbors and ex-colleagues did while I was inside the detention depot during the 35 days detention. This filled up many gaps of incomplete or missing information on my end.

I had also obtained a copy of a report from my then-engaged lawyer regarding information from his professional file. This report detailed his account of events that allowed me to cross-check for accuracy and completeness of my compilation.

I have also cross checked against other people’s oral account of what they knew or experienced to ensure as much accuracy of my compilation.

And finally, it will be answered from the court document such as affidavits and evidence itself that were presented by the Immigration Department of Malaysia to the court. Needless to say, these facts are without dispute as these were presented before the KL High Court. These records are found in the Criminal Application No. WA-44-178-07/2019 & the Originating Summon No: WA-24-5-01/2020 court cases.

Magistrate Remand Order according to Malaysian Federal Constitution

Firstly, the Malaysian Federal Constitution has this Article 5(4) regarding detention that are unlawful, illegal and unconstitutional:

Article 5(4) of the Malaysia Federal Constitution

Regarding Magistrate Remand Order according to the Malaysian Federal Constitution, I must be presented before a Magistrate within 24 hours for a Magistrate Remand Order as stated in 5(4) in order for my detention to be lawful.

However, Malaysian Parliament has amended Article 5(4) with the addition of the proviso into their Immigration Act 1959/1963 as follows:

51(5)(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 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

51(5)(b) where any person other than a citizen is arrested or detained under this 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 as may be required by an immigration officer or a police officer for the purpose of investigations into an offence against this Act.

This proviso in their Immigration Act now differentiates the Magistrate Remand Order requirement between citizens and non-citizen. This is an anti-foreigner and anti-human rights Act. Worse is that it is proven in court that there is no objective evidence showing that there are checks and controls on the power of immigration officers to complies to 51(5)(b). It is optional requirement for the Immigration officer to produce before a Magistrate within 14 days, with selection of choice on Yes/No option to be ticked. This is clearly seen from the Magistrate Remand Order in my case before the High Court. IT IS ONLY AN OPTION FOR SECTION 51(5)(B).

51(5)(b) is optional with a yes/no choice, according to this court document

Produced before a Magistrate within fourteen days?

The Immigration Department of Malaysia officer claimed that I was produced before a Magistrate on the 12.3.2018.

The senior immigration officer making this claim is MHBK who is also the investigation officer. He is a three-pip senior officer who leads the immigration team to raid my property and handcuffed me.

MHBK claimed that there was a remand proceeding before a magistrate on the 12.3.2018 at the Immigration Court which is inside the Pekan Nenas Immigration Detention Depot compound. He claimed that I was produced before the magistrate on 12.3.2018. According to his affidavit, he claimed that the magistrate then allowed my remand from 13.03.2018 to 26.03.2018. In his affidavit dated 5.8.2019 for Permohonan Jenayah No. WA-44-178-07/2019 case, he had claimed in para 9 “The applicant has been detained in accordance with legal procedure.” And in para 10, he had claimed “In addition as an investigating officer I will also ensure that the Applicant who is the suspect under my custody is detained in accordance with the procedures prescribed by law.

snippet of para 9 and 10 of affidavit from MHBK. – Permohonan Jenayah No. WA-44-178-07/2019

After submitting his affidavit, another senior immigration officer, Ms HBB. jumped in to submit a further affidavit in opposition (FAIO) on 26.8.2019, claiming in para 17 “I hereby deny paragraph 40 of the Applicant Support Affidavit. The applicant was brought before the Magistrate for further detention under Section 51(5)(b) of the Immigration Act 1959/63 on 13.3.2018 and allowed until 26.3.2018. On 26.3.2018, the Applicant was arraigned in court. A copy of the order by the Magistrate is presented and marked as “HB-1”“. She also included a “tampered” exhibit “HB-1” as evidence.

snippet of para 16 and 17 of affidavit from Ms HBB – Permohonan Jenayah No. WA-44-178-07/2019

The earlier detention from 28.2.2018 to 12.3.2018 was without any Magistrate remand order and access to a lawyer. This kind of detention happens commonly in authoritarian communist and third world dictatorship countries.

Whether I was produced before a magistrate who is at a court building, how could I not know. I was never let out of the big cell to be produced before any magistrate or court throughout the 26 days detention. It was only on the 26.3.2018 that I was produced and faced a magistrate for a purported offence. It was just one big lie to deceive the High Court judge, MNBMG presiding over Criminal Application No. WA-44-178-07/2019 case. They had successfully deceived the HC judge, and he issued these two falsehoods paragraphs in his written judgment dated 21.2.2020. In para 38: “This is not just the absence of any issues raised to the depot authorities and the investigation officer, but also to the magistrate during remand proceeding.” And in para 55: “The applicant in this case before me not only did not raise complaints whilst in remand with the depot authorities, or to the investigating officer, or to the magistrate who had allowed remand, …)

Apart from this, we will now look at what the diary details out what happened on those days before and after the 12.3.2018.

Prelude to my arrest and immigration detention

Interestingly, my family member met a neighbor during one of her visit to the property after my release. The neighbor enquired from her about the Malaysian woman who had been staying on my property. This neighbor is looking for this woman as she disappeared without paying her rent. The woman ran away after staying for the three months she rented with the neighbor.

She had obviously rented a room nearby after being evicted from my property a month earlier on 31.1.2018. She then used this rented room as a lookout for me so as to tip off Immigration when I visited the place. This is the same woman as the married girlfriend, JS of the immigration officer, MZ who set me up. So, on the night she spotted my Malaysian car parked outside my property, she made the phone call to tip off the immigration officer who then raided my property. It is clear from all the linkages between the various parties that it was a planned set-up.

On the night of my arrest at Setia Tropika Immigration headquarter, I showed the photo of the immigration officer, MZ‘s ID that was on my handphone to the other immigration officers. Thinking naively that I am able to protest that it was a set up with any of these officers. Little did I know that some knew about my case before hand and actually were high-five-ing one another for having caught a big catch. Or so they thought?

Incidents that happened before and after the date of 12.3.2018.

Before the 13th day of my detention.

The junior Immigration officer, PS, interviewed and recorded my statement on the 7th day of my detention. This is the first encounter with any immigration officer since detention. There was no appearance before a magistrate or having an appearance in a court so far.

The immigration officers and guards had never allowed me outside the cell throughout my detention apart from these three scenarios. These are:

(1) meeting my visitors, (2) the two encounters with the junior immigration officer and (3) a visit to the doctor.

#1) Meeting my visitors

– My wife was allowed to visit me on the 8th day of my detention.

– An acquaintance, Ps JM visited me on the 10th day of my detention.

After the 13th day of my detention;

MHBK issued approval letter to allow my wife to visit me again on the 15th day of my detention. On this second visit, she was accompanied by her brother and this time, they brought extra clothes, the necessary personal hygiene items and my asthma inhaler.

There was no court attendance nor appearing before a magistrate in between these dates or I would have informed my wife about it.

Records from diary also helps to proves it never happened

The blow-by-blow account of events recorded in a diary by my wife’s brother mentioned the following as below. There is no mention of and nothing about a Magistrate remand order.

This Magistrate remand order was a major thing, I would have informed my wife and my brother-in-law during their visit. If indeed that it happened, an entry of this incident would have been entered in the diary on the 15th day of my detention.

This diary plays a very important part to help establish many of the facts, timings and people involved. My brother-in-law was previously in the police force and is well aware of the process of collecting evidence and proof. He knows full well the importance of keeping a log of events. This diary eventually helps to confirm my recollection of event details and to aid my memory.

immigration
Snippet of a diary recording of blow-by-blow details of event. This was recorded by my BIL, an ex-enforcement officer.

The mystery of two opposing claims

Now there are two senior immigration officers, MHBK and Ms HBB‘s claim on one hand and my opposing claim on the other hand. It is now a mystery of two opposing claims and a mystery to unravel and solve.

But a miracle happened on the day of hearing. A full set consisting of all three pages of “HB-1” hard copies was given to my lawyer. It turns out that Pg 003 of 003 of the exhibits “HB-1”, initially missing, has now appear in court. This means that it had been “tampered” by HBB to hide this critical piece of evidence. However, now a hard copy of Pg 003 of 003 of “HB-1” exhibit had inadvertently been handed to my lawyer. He sent this piece of evidence to me for further instructions on my next move.

Upon my review, P. 003 clearly indicate that I was not produced before a Magistrate on the 12.3.2018 and leave no doubt that both MHBK and Ms HBB had lied in their affidavits and the HC judge, MNBMG was deceived by them. So, with this Pg 003 of 003 document, I decided to challenge the Immigration officers on this matter with an Originating Summon in the KL High Court in order to unravel the mystery.

Below is the sequence of events and the story started thus:

Immigration officer, Ms HBB had submitted an affidavit on 26.8.2019 in support of MHBKL‘s affidavit dated 5.8.2019 to prove that there was a Magistrate remand order for my detention from 13.3.2018 to 26.3.2018. Upon receipt of the set of court document, I did a review.

The first red flag – exhibit “HB-1” from immigration

This court document was a set of documents consisting of 3 pages as shown by the machine-printed info at the top right hand of document. From the page numbering against the total number of pages, I can see P. 001 of 003 and P. 002 of 003. However, the P. 003 of 003 is missing. This is the first red flag that stood out glaringly to any auditor.

It is an attempt to withheld critical information on P. 003 of 003 intentionally. By doing so, immigration used this set of “tampered” exhibit or evidence to claim that there is a Magistrate remand order for my detention.

As this was a soft copy there was nothing more that one can do anything about relating to this discrepancy then.

immigration
Pg 1 of 3 of Exhibit “HB-1”
immigration
Pg 2 of 3 of Exhibit “HB-1”. Note that page 3 of 3 was deliberately removed from exhibit.

A second major discovery – missing Magistrate remand order surfaced

At a later time, immigration inadvertently handed over the missing P. 003 of 003 hard copy to me. This is as truly an act of divine intervention. You can read more of this episode of how this miraculous event happened here.

This piece of hard copy document that was intentionally hide away had surfaced. It was indeed the page containing irrefutable critical information proving the truth that there was no magistrate remand order.

The senior immigration officer, Ms HBB, submitting this exhibit attempts to deceive the court through this action to hide P. 003 of 003 as explained above. She is one of the perverse enablers who helps pervert justice for her immigration-officer colleague as mentioned in this post.

The truth behind the Magistrate remand order revealed

I can now view and analyzed the contents of this P. 003 of 003 document. This will helps complete the picture of the set of documents that Immigration officers had used to claim that I was produced before a magistrate to order for my remand within 14 days in accordance with the Immigration Act section 51(5)(b) legal requirement. Was the claim true or was it a lie?

The said order is in a standard form, that has an option to tick about whether the suspect was produced or not. A tick was seemingly placed indicating that I was not produced. Even if there were to be any argument about whether non-production option was ticked, it is undisputable that the production option was not ticked. The image of the portion is reproduced below: On this document, there are options in the document for the relevant parties to ticks.

That was not all. The order part supports the evidence that I was not produced, as it is says only “upon hearing the application (the immigration officer) and documents produced” the order was made. This is a crucial part that tells the basis upon which the order was made. This cannot be later qualified by versions outside the four corners of the order.

court document
Snippet of my affidavit referring to page 3 of 3 to which MHBK must respond

Futile move to qualify with unsigned re-print copy

With that order part, the remand order was signed by the magistrate, as seen in the above image. It is not for the immigration officer now to qualify what the magistrate said and recorded in his remand order.

The immigration officer has now produced another copy, which seems to be a document purporting to show what the order was. This is an unsigned copy. It appears to be a re-typed copy for the purpose of this case. It is different from the signed order. Unlike the signed order, this copy has crossed out “TIDAK” for the question “Penama-pemanadikemukakan”. No, list of names annexed to the document is attached, nor is my name appearing anywhere in the document.

Differences between the un-signed and the signed order

However, to go a step further to show that the document must be a tampered re-typed copy produced by the Immigration officer, the differences of the re-typed copy and the signed order are dissected below when doing a side-by-side comparison:

Typesetting between the two differs in various aspects. In the re-typed copy, there is no logo on top, unlike the signed order.

The document title is in 2 lines, as opposed to 3 lines in the signed order. “Di kemukakan” in the item 2 of the re-typed copy appears as “Dikemukakan” in the signed order. “YA TPR” in the item 5(ii) of the re-typed copy appears as “YATPR” in the signed order. “Johor” and “Johor DarulTakzim” are in first letter only capital in the re-typed copy, but they are in full capital letter in the signed order.

The alignment of the 3 lines of the order-part in the re-typed order is totally different from the alignment in the signed copy. “dibawahtandatangan” in the re-typed copy appears as “dibawahtandatangan” in the signed order. The position of the “Bertarikh” differs.

The magistrate’s name is typed in the re-typed copy, but it is rubber-stamped in the signed copy. A ‘Catatan … tt’ at the right bottom corner is typed in the re-typed copy, but some catatan (but illegible) appears hand-written on the signed copy with initial-signed.

Immigration officer has no answers to all the differences, zilch

Immigration officer offered no explanation as to the differences. Notably, the immigration officer does not take a challenge to the signed order produced now by me (but originally produced by the immigration officer in the previous proceedings), hence the attempt of the immigration officer to show a re-typed copy is a futile exercise.

Below are the images of the “manufactured” order against the original order to be placed side by side to see all the many differences between these two orders.

This is Exhibit MHK-1, an unsigned “manufactured” copy of P.003/003 produced by Defendant instead of producing a clear copy of original.
magistrate remand
As seen from exhibit P.001/003 and P.002/003 presented above, there is an original copy of P.003/003 shown here and not a “manufactured” copy. The Defendant is too arrogant to remand without a Magistrate order. He is even blatantly lying to the court by submitting “manufactured” exhibit MHK-1 as evidence.

A Singaporean with valid MM2H visa puts into same category as migrants

That document list had a total of 12 persons which also includes me. All of us were never presented before the Magistrate for the remand order.

So, with this option available, they put everyone arrested under the same category as migrants in their court documents. This includes me who had a lawful MM2H visa. They ticked under “no” mainly because they knew that no migrants would ever dare challenged them in court on this point. But they had forgotten that I was not a migrant but a Singaporean.

By putting me in the same category as migrant workers, immigration is able to lump under one option conveniently. It shows that they had no regards for foreigner even if he/she is a legitimate visa holder to consider using a separate document and selecting the other option.

Now that would explain why I, being a Singapore citizen and possessing a valid MM2H visa, could be remanded without any Magistrate’s order. I remembered what the guard at Setia Tropika lock-up had bragged to me about immigration can remand me 14 days + 14 days easily.

From the guard’s bragging, we can surmise that the Immigration officers had been able to do this illegal detention without a Magistrate remand order with every migrant detainee thus far with this option.

court document
Detained in Pekan Nenas Detention Depot inhumane cell

Such an arrogant Immigration officer

This is the man who leads a team of many immigration officers of men and women to a peaceful neighborhood of bungalows on a quiet night. He appeared from no-where as if on cue that he had known that I am right inside my property. He started his showtime with loud banging on my bungalow metal gate as if like breaking it apart.

My Malaysian car was parked outside, the give-away to the lookout girlfriend of MZ. She had rented a nearby room to be on lookout for me for that moment that I am inside my property to do repair and maintenance work. Then the signal came for this arrogant MHBK to moves in. This three-pip officer and his officers destroyed many parts of my property and took me back to their Setia Tropika Immigration HQ in Johor state.

court document
Witnessed a detainee in critical condition and later never came back to his cell

The immigration officer, MZ who had illegally trespassed on my property on 15.1.2018 stopped coming to my property. His married girlfriend was evicted by me a month earlier on 31.1.2018. What a coincidence that this immigration officer colleague, MHBK suddenly showed up at my property when I was doing repair and maintenance work.

Surely MHBK must be thinking that I am a high-value soft target from a rich country is going to be a big catch. He went on to put me incommunicado for a week before I am able to see my wife. I was isolated throughout my detention period. Not only that, but they also torture in their inhumane immigration detention center. The torture and the inhumane conditions are complained about in my court affidavit.

court document
Cruel and inhumane conditions

Immigration officer puts his authority higher than the court

In addition, this uniformed officer, MHBK thinks so highly of himself that he put himself one authority higher than the court by locking me away without a Magistrate remand order for 26 days. I only saw this officer once throughout my whole detention and then his scheming officer colleague, PS came along. PS told an acquaintance, Ps JM to pass a message to my family that he can “offer to help”. My family understood the “offer to help” to mean paying monetary bribes through a fixer but rejected such “offer to help” nor in the habit of giving bribes.

This scheming officer pretends to be religious and kind. It was under such pretense that he “offer to help”.
court document

Now he has even disgraced his country and his uniform by submitting a “manufactured” evidence instead of producing a clearer copy of the original in court. This “manufactured” evidence was to counter the original document that his immigration colleague inadvertently landed into my hands. Because he has no answer, he has to submit “manufactured” evidence that was asked to and given by a magistrate in cahoots with him.

Immigration’s exhibit of Magistrate remand order was “manufactured”

Now the most atrocious part to this saga is that the senior immigration officer, MHBK even dared to put up a “manufactured” document to pervert justice.

Firstly, his immigration colleague tried to deceive by presenting a set of “tampered” document with a missing page to hides the truth. This missing page hard copy surfaced through an act of divine intervention in court and helps complete the full documentation of the evidence. This full set of documentation is the official record of the real situation. It contradicts the Immigration Department of Malaysia officer’s story completely.

Next, to denies the truth of the matter, he substituted the signed original remand order with an unsigned “manufactured” copy of the Magistrate remand order. In doing that, he hoped to deceive this judge, NBB with the “manufactured” copy of the order. As explained above, NBB did not believe his story unlike the first judge, MNBMG, and rule that the unsigned copy is of no evidential value to the case.

In short, MHBK failed to mislead and deceive the judge, NBB and the court in his effort to line up his part of the story to get away from his illegal actions against me. In fact, a police report was lodged against him and others for this illegal act.

Magistrate remand order manipulation by Immigration?

It is highly likely that the immigration officer had been doing this to many other people, regardless of whether he/she is a legal or an illegal migrant. There is a corrupt motive to using this manipulation as a tool.

Immigration could possibly do this to any foreigner with valid immigration court document such as the Nigerian-national PhD student with a valid student visa. They also could be doing this to the doctor with valid social visit visa whom I had posted about in another post. In this post, it is shown that the immigration officer did the same thing to me, detaining me unlawfully and thus infringing Article 5(4) of the Malaysian Federal Constitution.

Now that this had been uncovered, we are seeing more proof that some immigration officers are manipulating all kind of court documents.

Therefore, it is highly likely that there are more of such manipulations and the practice is rampant.

A trend of falsifying court document by Immigration officers

To most migrant workers detainees from third world countries, how immigration officer handles this important court document is of no adverse consequence to immigration. Immigration had no fear of any of them. They can do this without any blow-back as these are poor defenseless migrants.

To ensure that there are no consequences, they deported these migrants out of Malaysia. Immigration also blacklisted them from coming into Malaysia. Hence there will be no adverse complaint filed against any immigration officer even if document were “falsified”, “tampered” or “manufactured”. My case as mentioned above proves that court document was “tampered” by immigration officer to make it appears that I was being remanded lawfully for the 13 days out of the 26 days detention.

When I recollect about the two Nepalese security guards, I see a mystery regarding their deportation as well. How could they be deported for not breaching any law? So, it is likely that some officers had used “tampered” or “manufactured” document to support their false-claim case for deportation. This also seems to be a move to silence all witnesses involved and related to my case by deporting them as well by blacklisting them.

Even one case uncovered is enough

With reference to the big multi national company (MNC) that I used to work for;

The Organization has a culture that is zero tolerance for any act of “tampering” or “manufacturing” fake Quality Control report. Even one case is enough to reflect that such practice could be common and acceptable. Practicing such acts will tells the whole world that this organization has no integrity and is untrustworthy. Surely, it is naturally suspected that there are more of such “tampered/manufactured”/fake/falsified court document within the organization. And it was confirmed subsequently when another of such “manufactured” evidence appeared in a later case.

The daring to “tampered”/”manufactured” a court document with impunity goes to show that such actions are common occurrences within this organization because there are no legal consequences.

Conclusion

To conclude, one can only suspect many more foreigners have fallen victims to such “tampering”/”manufacturing” of fake records by immigration. It appears that these officers had been doing this rampantly to suit their corrupt motives.

We can only hope that the day will come when many more “tampered”/”manufactured”/faked/falsified immigration documents will be revealed through a forensic audit. When that happened, we will be able to sees all the grievances and injustices that have been perpetuated against foreigners. There are hundreds and hundreds of such foreign migrants that had been arrested, detained and jailed. We would like to see the truth of the matter for all these cases when these challenged the immigration officers’ version of stories.

There was news in https://www.malaymail.com on 21.11.2020 relating to forgery and fake documents. The suspect is a KLIA Deputy Immigration Director.

MACC is investigating this case. Rightly, MACC should investigate those Setia Tropika HQ officers involved in my case now that the above case has been ruled as unlawful by the court on the 4.5.2021. The Straits Times carried the news here and according to Malaysiakini is here.

Press Release after the KL High Court Judge’s ruling

By Arun Kasi 04/05/2021
*KL High Court holds detention of Singaporean by Immigration to be unconstitutional.*
“Mr Wong, a Singaporean was arrested and detained by Immigration Dept in Johor between 28/2/2018 to 26/03/2018.
Art 5(4) of the Federal Constitution requires any citizen arrested and detained to be produced before a magistrate within 24 hours, while the article allows a foreigner arrested and detained under immigration laws to be so produced within 14 days.
In this case, this means Mr Wong must be produced by about 12/03/2018. It was Mr Wong’s case that he was not produced until 26/03/2018. To the contrary the Immigration Dept claimed that he was first produced on 12/03/2018 and subsequently again on 26/03/2018.
Apparently conflicting documents concerning the question of whether Mr Wong was produced on 12/03/2018 were put before the court.
Mr Wong’s counsel, Mr Arun Kasi, took a strenuous challenge to the Immigration Dept’s stand and documents.
YA Datuk Noorin binti Badaruddin heard the case in open court today. The court found that Mr Wong was not produced as alleged by the Immigration Dept and held against it. The court declared that the Art 5(4) of the Federal Constitution was infringed by the non-production of Mr Wong before a Magistrate within 14 days of arrest, which Mr Wong was only produced on 26/03/2018.” End

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