PROCEDURE GUIDES

DRUG DEPENDANT APPLICATIONS

by Ahmad Kamar Jamaludin, Senior Sessions Judge, Melaka Court.

ARREST OF SUSPECTED DRUG USER

Police conduct raids in Discos, Pubs and general nighlife areas in the wee hours of the morning and take into custody persons suspected to abuse dangerous drugs. Red or yellowish watery eyes, sluggish and erratic behaviour, long unkempt hair, typical drug user appearance, the notoriety of the place they are found in and information they have received all play a role to give rise to suspicion. A person arrested on suspicion of being a drug dependant will have his urine sample taken. He will be brought before the Magistrate within 24 hours by the investigating officer (not below the rank of sergeant). The next course of action is best described in this diagram:

INITIAL DETENTION

Under section 4(1)(a) of the Drug Dependant (Treatment and Rehabilitation) Act 1983 he can be ordered to be detained up to 14 days and a mention date is given.

He will be detained in a detoxification centre for observation by a doctor. He can not be detained in an ordinary lock-up because he is a patient. Tests will be conducted to see if there are traces of any scheduled drugs in his urine. He will be observed for symptoms of drug dependant.

TEST RESULTS

If his test results turn out negative, he will be brought back immediately before the Magistrate to be released from custody.

If his results are positive, and the doctor certifies that he is a “drug dependant”. The doctor will also know if he is a first timer. First timers normally get high on small amounts. Such small quantity in urine and absence of addicted symptoms will indicate that he is not an addict. When a user gets immune to small amounts and needs higher fixes it will show in his urine. In fact drugs from the opiate group (morphine, heroin are derivatives of opium) will last in the body system for 4 to 5 days unless the user drank a lot of water to dilute it. Tests for opium derivative drugs in urine take shorter time (may be 1 – 2 days) than tests for Cannabis or ganja which take several weeks for the culture to show results. Hence longer dates for suspected ganja users.

If the results are positive, the drug rehabilitation officer will prepare a report on him and make recommendations in his report on how the Court should deal with him. He will be produced on the mention date given the first time he was produced.

ON THE MENTION DATE WHEN RESULTS ARE READY

This is the normal scenario. The suspect appears before the Magistrate. The police officer tenders the doctor’s report which says that the suspect is found to be a drug dependant addicted to the drug “heroin” . The interpreter tells that to the suspect and that he can be relased on a bond or sent for rehabilitation, and whether he wants legal representation by a lawyer. If he does, the court may adjourn the hearing for the suspect to hire a lawyer. If he does not want to hire a lawyer or fails to hire a lawyer, and admits the doctor’s report, then the Rehabilitation report is tendered by officer from National Drug Agency (Agensi Dadah Kebangsaan). This officer would have visited the family of the suspect to investigate the background and antecedents of the suspect and will write out a report with a recommendation in the end on how best to deal with him. He wont merely get all the information from the addict. This report is read out and explained to the addict. Now the addict is given an opportunity to choose which course of action the Court should consider and the grounds of which he relies to choose that course. Normally the addict would say “I am not a hard-core addict, only occassionally I use drugs, I was spoilt by my friends, I will turn over a new leaf, my family is here, I have a bailor, give me a chance, I will not take drugs again” etc. Seldom do addicts choose to go to Pusat Serenti saying they want to get rehabilitated.

PUSAT SERENTI FOR ADDICTS FOUND TO BE POSITIVE

Under section 6(1)(a) of the the magistrate may send him for rehabilitation for a period of 2 years. The Pusat Serenti is not a prison. It is a hospital to treat drug addicts. Treatments vary according to seriousness of the case. “Cold-Turkey” or complete cut-off from drugs is the cheapest method used but it brings about bouts of severely dementing withdrawal symptoms. I believe now the government is considering “substitution” where some other non-addictive drug is sustituted to wean them off the habit. There have been cases of completely rehabilitated addicts released from Pusat Serenti. There have also been cases of relapse when society discriminated rehabilitated addicts which drove them back into their old habits. After release from a Pusat an addict may be asked to be under probation and supervision of the Rehabilitation Officer where the cured addicts is asked to visit and provide urine sample to the officer who keeps tab on his further progress. The released person may also be required to sign a bond and one of the conditions would be not to visit his old co-addicts or drug hide-outs. It is a arrestable criminal offence not to stick to the conditions of the bond without excuse, like “I went back to collect my things”.

PROCEDURE GUIDES

BAIL BOND FOR ADDICTS FOUND TO BE POSITIVE

Or under section 6(1)(b) the Magistrate may release him under a Bond with conditions that someone stands as a surety (bailor) who undertakes that the dependant rehabilitates himself (see sample conditions) and that he reports periodically to the rehabilitation officer for a specified period. Most of the time the Magistrate will follow the rehabilitation officer’s recommendations. When the Rehabiliation officer visits the family of the addict he would take note of the family’s commitment in endeavouring to cure the addict on their own, like sending him for herbal or traditional treatment. There is a family (muslim) which weaned a lumber-jack addict off the habit by susbstituting alcoholic stout. During the decision day for the application, the family of the addict can attend the hearing and can state their undertakings to provide security in the form of bank book (containing money in the account, of course!). The focus of pleading with the Magistrate should be on curing the addict and not on the family’s suffering if he is sent away, because if the addict is concerned about the family he would not have strayed into becoming an addict in in the first place .

THE CASE OF FIRST TIME DRUG USER AND NOT A “DEPENDANT”

If the arrested and found to be a first timer, and not a dependant because he did not show the symptoms of a dependant, he may be instead charged for the offence of administering drugs on himself under section 15(1)(a) and fined or jailed.

PROCEDURE GUIDES

POSESSION OF DRUGS

Persons arrested for possessing drugs in their persons will be charged under differenct law, Dangerous Drugs Act, 1952. Possession of different types of drugs have different sections in that law to punish them. He who has in possession more amount than necessary for his own use will be presumed a “trafficker” and the panalty for trafficking in drugs in Malaysia is death by hanging. See the complete drug offences summarised in a schedule. If a drug addict is also found in possession of unused drugs in his person, he will be charged and sentenced and ordered to undergo rehabilitation in Pusat Serenti after his release from prison for the remaining period out of 2 years if his sentence was less than 2 years.

REPEAT OFFENDER

If he is repeat offender and found to have breached his earlier Bond, he may be fined or jailed first and ordered to go for rehabilitation for 6 more months after his release. His surety may be called up to show cause why the security deposit should not be forfeited.

GENERAL RULES

The drug dependant ‘s case is an administrative proceeding. It is not a court trial like other criminal cases. It will be conducted privately in chambers of the Magistrate or in open court with unnecessary public excluded. Only the immediate kin of the drug addict are allowed to watch the proceedings.

The doctor’s report is taken as conclusive unless the dependant can come up with proof of technical mistakes in procuring and testing his urine without contaminating it.

There is no appeal against decision of Magistrate when the drug dependant is ordered to be rehabilitated. There are several judgments which outline the importance of following technical aspects of the Drug Dependant Applications done in Magistrates’ Courts. Similar techinical compliance is stressed in cases of arrest and detention under the Internal Security Act and the Dangerous Drugs (Special Preventive Measures) Act 1985, and the Dangerous Drugs (Forfeiture of Property) Act 1988. Agrieved persons have filed Writ of Certiorari and Writ of Habeas Corpus and got off on technicalities non-conformities:

RE ROSHIDI BIN MOHAMED

[1988] 2 MLJ 193

The detainee had been detained by an order of the learned magistrate under s 6 of the Drugs Dependants (Treatment and Rehabilitation) Act 1983. The detainee had been arrested by the police on suspicion of being a drug dependant and had been taken to the General Hospital where he was examined by a medical officer. The learned magistrate subsequently ordered him to be detained under s 6(1)(a) of the Act. It was contended in this case that the learned magistrate had not complied with the mandatory provisions of the Act in that she had failed to make any record on whether she had complied with the various sub-ss of s 6, namely, sub-ss (1), (3), (4) and (5).

Held: in this case, in the absence of the record of proceedings kept by the learned magistrate, it was impossible to hold that the mandatory requirements of the law had been complied with and therefore the application must be granted and a writ of habeas corpus issued.

Some even have sued the Magistrate, because of section 29 of the Act.

Mohd Faizol bin Mohamad v Magistrate, Magistrate’s Court, Kulim & Ors

[1998] 4 MLJ 442

The applicant was ordered to be detained at the Serenti Rehabilitation Centre by the magistrate pursuant to s 6(1) of the Drug Dependants (Treatment and Rehabilitation) Act 1983 (‘the Act’). The applicant applied for the writ of habeas corpus for his release from the detention centre on the ground that he was denied the right to make a full and proper representation and that he was being unlawfully detained. The federal counsel raised a preliminary objection that the applicant was wrong in procedure in applying for a writ of habeas corpus to secure his release from the detention. It was argued that an order under s 6 of the Act, so long as it is proper in form and bears the signature and seal of the magistrate, could not legally be challenged by way of habeas corpus but only by way of certiorari.

Held, overruling the preliminary objection:

The submission of the federal counsel, if accepted, would be tantamount to this court taking a step backwards in terms of protecting the liberty of the subjects of this nation. The efficacy of the writ of habeas corpus would be seriously impaired and it would be a radical departure from the existing principles on habeas corpus. Such a proposition would be contrary to art 5 of the Federal Constitution which confers on a person the right to make an application for a writ of habeas corpus. In the circumstances, the applicant would not be proceeding on a wrong footing in applying for a writ of habeas corpus. The magistrate in issuing the detention order had committed a serious breach of procedure by denying the potential detainee the right to make a full and proper representation. The detention order would be of no effect as it was a defective order and any detention of a person under that order would be unlawful as it would be contrary to art 5 of the Constitution (see pp 446G–I and 447A–D).

Since the Act came into force, there have been cases questioning the mode of challenging the Magistrate’s Order.

Mohd Raymee bin Ismail v Ketua Komandan, Pusat Serenti Tiang Dua

& Anor

[1998] 7 MLJ 376

This was an application by way of writ of habeas corpus to quash the order of the magistrate, ordering that the applicant be admitted to the custody of Pusat Pemulihan Serenti, Tiang Dua Malacca for two years. The application was made on grounds that the applicant was not given a copy of the report by the rehabilitation officer and that the report, although was read, was not explained to him, thus resulted in the order of the magistrate being not in compliance with s 6(3) of the Drug Dependants (Treatment and Rehabilitation) Act 1983 (‘the Act’). Not contesting the allegations of the applicant, the respondents on the other hand objected to the application itself by saying that it should be done by way of certiorari and not by writ of habeas corpus. The fundamental issue to be determined was whether in such an application, a writ of habeas corpus was the proper procedure to be adopted to quash the earlier order.

Held, allowing the application:

(1) Not supplying a copy of the report by a rehabilitation officer to the applicant, as alleged at a para 5 of the supporting affidavit and which allegation was not denied by the respondents, was a clear breach of s 6(3) of the Act. Since the consequence of an order under s 6 of the Act is penal in character, there must be strict compliance with the terms of the legislation authorizing the order (see p 383B–C).

(2) Not all orders under s 6 of the Act involve detention. Where an order does not involve detention, the only course to quash such an order is an application in certiorari. However, in an order that involves detention, there is nothing to say that an application in habeas corpus is not available (see p 384C–D).

(3) To restrict a person by requiring that he must apply by way of certiorari rather than by habeas corpus would be contrary to the spirit and intent of art 5(2) of the Federal Constitution which does not impose a restriction as to the procedure of how a complaint is to be made. Article 5(2) not merely empowers, but requires a High Court or a judge thereof, upon receiving a complaint and unless he is satisfied the detention is lawful, to issue an order for the detenue to be produced before the court and release him.

While certiorari is a discretionary power of the High Court, a habeas corpus is as of right under art 5(2). Where it is not disputed that a copy of the report of the rehabilitation officer has not been supplied to the applicant, it is abundantly clear that his detention under s 6 of the Act is unlawful and the court must order the persons holding him to produce him before the court to be released (see p 384D–F).

And in

Kamaruzaman bin Yahaya v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor and other applications

[1997] 5 MLJ 256

Held, allowing the applications for habeas corpus:

(1) In this case, the same format in the form of Form 2 was used, but without the word ‘kerajaan’ after the designation ‘Pegawai Perubatan’ being mentioned in the Form. Unless the word ‘kerajaan’ is stated after the designation ‘Pegawai Perubatan’, the doctor could not be presumed to be a government medical officer under the Act. There was no evidence to say that the relevant hospital in this case was a government hospital and the court could not take judicial notice of a fact not contemplated under s 57 of the Evidence Act 1950. In the absence of the word ‘kerajaan’ in Form 2 or positive proof that the certificate was so signed by a government medical officer, the certificate so produced could not be said to be a valid medical certificate receivable by a magistrate of its contents under s 6(5) of the Act (see pp 263F–H and 264D).

(2) Making representations means the right to protest, which by necessary implication and reading it in the context of art 5(3) of the Federal Constitution, is a right to challenge whatever is being brought against him. Therefore, it is imperative that magistrates acquaint and appreciate the meaning of the word ‘representations’ and the significance and purpose of making representations before exercising their powers. Although the magistrates were under no duty to explain the meaning and significance of making representations to the applicants, in order to be fair to the applicants, especially so when they were not represented by counsel during the proceedings and furthermore, the inquiries before the magistrates were in the nature of a proceedings without a trial, it was incumbent on the presiding magistrates to explain the meaning of the word ‘representations’ and the significance and purpose of making representations to the applicants, so that with the explanations, they would know their rights and consequences of the proceedings. From the pre-prepared notes taken, it did not appear that the applicants understood the meaning of the word ‘representasi’ (see pp 264E, I and 265B–C); Mahmod bin Jaudin v Penguasa Serenti Sungai Besi Selangor & Ors [1996] 3 AMR 2920 followed.

(3) The object of the Act is to provide for the treatment and rehabilitation of drug dependants, and by its provisions, the rehabilitation officer’s report is a very important piece of evidence for consideration by the magistrates. Although the magistrates are not bound by the rehabilitation officer’s recommendation, nevertheless it plays an influential role in his decision whether or not the applicants had to undergo treatment and rehabilitation. The recommendation becomes all the more important to the applicants as it can be the basis of their objections in the proceedings. As a result, the omission of the recommendation in the rehabilitation officer’s report had rendered the report incomplete and defective as well as prejudiced the applicant’s right to make representations fairly and properly (see pp 265I and 266A–B).

(4) Generally, the use of the wrong term to decide a case is not fatal, so long as there is evidence to support the order or judgment and that the magistrates have complied strictly with the mandatory provisions of the Act and the Rules. The word ‘menimbang’ includes ‘meneliti’ but not otherwise. They do not bear the same meaning. Since the law requires the court to ‘consider’ and not to ‘examine’, the use of the wrong term at the critical stage of the judgment coupled with the presence of too many flaws in the cases, was fatal to the validity of the detention orders (see p 266D–E).

RE HAJI SAZALI

[1992] 2 MLJ 864

The applicant was arrested on suspicion of being a drug dependant. The magistrate ordered the applicant to be remanded at a drug rehabilitation cetre for two years to undergo treatment and rehabilitation under s 6(1)(a) of the Drug Dependants (Treatment and Rehabilitation) Act 1983 (’the Act’). The applicant applied for an order of certiorari to quash the magistrate’s decision firstly, on the ground that the magistrate had failed to consider the rehabilitation officer’s report as required under s 6(3) of the Act and secondly, the magistrate had failed to comply with s 6(4) of the Act when he did not have regard to the circumstances of the case and the character, antecedents, age, health, education, employment, family and other circumstances of the applicant. In answer to the application for certiorari, the magistrate affirmed two affidavits stating that he had considered the matters specified in s 6((3) and (4) of the Act.

Held, allowing the application:

(1) The argument that an order under s 6(1)(a) of the Act was not amenable to judicial review, was not accepted.

(2) It was not open nor appropriate for the magistrate to subsequently explain or add reasons to his decision when his judgment showed that he had not apparently done so. The magistrate’s affidavits would therefore be disregarded since his judgment itself formed the focal point of argument.

(3) This, however, does not mean that under no circumstances can a presiding magistrate make an affidavit when his decision is the subject matter of judicial review. In certain situations, the magistrate may be justified and indeed entitled to affirm an affidavit or even to appear at the hearing when his character or bona fides is called in question.

(4) In this case, the magistrate gave no reason for the decision. It was also not shown that the magistrate had considered the matters specified in s 6(3) and (4) of the Act. Nor was it stated in the note of proceedings the magistrate was satisfied that the applicant was required to undergo treatment and rehabilitation under s 6(1)(a) of the Act.

(5) It is essential that magistrate give reasons for their decision. It is incumbent on the magistrate to indicate in his judgment that s 6(3) and (4) of the Act have not been overlooked. No particular form of words is needed for this purpose. What is necessary is that the magistrate’s mind should be clearly revealed that he has considered such matters. The absence of any recording that such matters had been considered, indicates the possibility that such matters may not have influenced the mental process of the magistrate in arriving at his ultimate decision.

(6) Section 24 of the Act does not have the effect of relieving a magistrate from the need to record anything in coming to a decision. Section 24 of the Act deals with the jurisdiction of magistrates in relation to areas or localities for exercising the powers under certain sections of the Act.

He can ask for Criminal Revision if the Magistrate had erred. If he disputed the doctor’s report an enquiry must be held by Magistrate to inquire into the procedural correctness of the arresting officer, the doctor and the lab technician. If the doctor’s report is rejected the drug dependant will go free.

ADVICE

Drug abuse is a dangerous habit. If you are reading this, and you know of someone close to you has started on drug abuse, please get him to go vluntarily to a counsellor and save him from getting deeper into the habit. It destroys the the man, his family, his future and his soul. Early cure will save him.