Leftenan Kolonel Hafiz bin Haji Sulaiman v Zulkefli Bin Mohamed (C-01(A)-43-01/2022)

KERAJAAN MALAYSIA ... APPELLANTS AND ZULKEFLI BIN MOHAMED (NRIC NO: 801205-03-5785) RESPONDENT [In the High Court of Malaya at Kuantan Judicial Review Application No: CA-25-2-02/2021

Leftenan Kolonel Hafiz Bin Haji Sulaiman

Panglima Tentera Darat

Majlis Angkatan Tentera

Kementerian Pertahanan

Kerajaan Malaysia ... Respondents] CORAM: VAZEER ALAM MYDIN MEERA, JCA MARIANA HAJI YAHYA, JCA WONG KIAN KHEONG, JCA

This appeal concerns the following parties:

the respondent (Respondent) was a sergeant of the Twelfth Battalion of the Royal Malay Regiment (RMR) stationed in Daralockwood Camp, Kuantan, Pahang Darul Makmur (Camp) and a "serviceman" of the Armed Forces as defined in s 2 of the Armed Forces Act 1972 (AFA);

the first appellant （ $ 1^{\mathrm{st}} $ Appellant) was the Respondent's "commanding officer" (defined in s 2 AFA) （Commanding Officer) at the Camp;

the second appellant ( $ 2^{n d} $ Appellant) is the Chief of Army who is the "competent authority" (Competent Authority) appointed by the Armed Forces Council ( $ 3^{r d} $ Appellant) under s 2 AFA; and

the Ministry of Defence and Government of Malaysia are the fourth and fifth appellants (" $ 4^{\mathrm{th}} $ Appellant" and " $ 5^{\mathrm{th}} $ Appellant") respectively. In this judgment, we shall refer to the $ 1^{\mathrm{st}} $ to $ 5^{\mathrm{th}} $ Appellants collectively as the "Appellants".

This appeal raises the following novel questions:

when a serviceman (Accused) is charged with disobedience to a "standing order" (Standing Order) made under s 51 AFA (Charge) and if the Commanding Officer decides to deal summarily with the Charge (Summary Trial), during the conduct of the Summary Trial, when is the Commanding Officer required by s 97(9) AFA to accord to the Accused the right to elect to be tried by court-martial? We use the description "Summary Trial" as provided in reg. 16 of the Armed Forces (Summary Jurisdiction) Regulations 1976 (AFSJR);

if the Commanding Officer conducts a Summary Trial-

has the Commanding Officer committed a procedural impropriety by refusing to call the chemist (who has found the urine sample of the Accused to contain a substance which is prohibited by a SO) to give expert evidence and be cross-examined by the Accused at the Summary Trial?; and

if the Commanding Officer has committed a procedural impropriety as described in the above sub-paragraph (a), whether such a procedural impropriety can be excused by any one of the following grounds-

in accordance with the proviso to s 399(1) of the Criminal Procedure Code (CPC), the chemist report has been previously served on the Accused more than 10 clear days before the commencement of the Summary Trial;

(ii) the Accused has not objected to the admissibility of the chemist report at the Summary Trial;

(iii) the Accused has not cross-examined all the witnesses called by the Commanding Officer at the Summary Trial; and

(iv) the Accused can call the chemist to testify for the Accused at the Summary Trial;

if the Commanding Officer has committed a procedural impropriety with regard to the Summary Trial, whether the court can issue a certiorari order to quash-

the finding of the Commanding Officer that the Accused is guilty of the Charge; and

the punishment meted out by the Commanding Officer to the Accused (Commanding Officer's Decision); and

with regard to a decision of the Competent Authority made under reg. 61(1)(m) of the Armed Forces (Terms of Service of Regular Forces) Regulations 2013 (AFTSR) to discharge the Accused from service in the Armed Forces (Service) on the ground that the Accused's service was no longer required (Competent Authority's Decision) -

if the court has issued an order of certiorari to invalidate the Commanding Officer's Decision, can the court also issue a certiorari order to quash the Competent Authority's Decision as a corollary?; and

in view of the literal meaning and purpose of reg. 61(1)(m) AFTSR, should the court decline to exercise its discretion under O 53 r 2(3) of the Rules of Court 2012 (RC) to-

grant a certiorari order to set aside the Competent Authority's Decision; and

(ii) give an order of mandamus to direct the Accused to be re-tried by court-martial? B. Background

On 17.9.2020, the Respondent was ordered to provide a urine sample (Sample) in the Camp so as to detect whether the Sample contained any substance which was prohibited by a SO entitled "Perintah Bahagian Pertama Batalion Kedua Belas, Regimen Askar Melayu DiRaja (Mekanize) Bil. 21" dated 31.8.2020 (Relevant SO).

The Sample was sent to the Chemistry Department of Malaysia (CDM). At the CDM, the Sample was analysed by Puan Manja Murni Bt. Che Khalid (Chemist) who gave a report dated 19.10.2020 (Chemist Report). According to the Chemist Report, the Sample contained "methamphetamine", a substance prohibited by the Relevant SO.

A letter dated 30.10.2020 was sent to the Respondent which informed the Respondent as follows, among others:

the Chemist Report had been received by the Armed Forces; and

the Commanding Officer would interview (temuduga) the Respondent on 11.11.2020.

On 9.11.2020, the Chemist Report was served on the Respondent.

The Respondent served a letter dated 19.11.2020 on the $ 1^{\mathrm{st}} $ Appellant which requested for the Chemist to give evidence at the Summary Trial (Respondent's Request).

The Summary Trial was postponed to 27.11.2020. The following matters, among others, transpired at the Summary Trial -

the $ 1^{\mathrm{st}} $ Appellant read out the Charge to the Respondent, ie., the Respondent was charged with disobedience to the Relevant SO (the Respondent had provided the Sample which contained a prohibited substance);

the Respondent was asked by the $ 1^{\mathrm{st}} $ Appellant on whether the Respondent understood the Charge to which the Respondent replied that he understood the Charge;

the $ 1^{\mathrm{s t}} $ Appellant inquired from the Respondent on whether the Respondent had received the Chemist Report ten clear days before the commencement of the Summary Trial. The Respondent answered in the affirmative;

seven witnesses were called by the $ 1^{\mathrm{st}} $ Appellant (7 Witnesses) to give evidence on the following matters, among others-

the taking of the Sample from the Respondent in a specimen bottle (Bottle);

the recording of the Respondent's details on the Bottle and the sealing of the Bottle were done in the presence of the Respondent;

in the Respondent's presence, the Bottle was placed in a specimen bag which was secured with a security tag (Bag);

the Bag was handed to the Chemist in CDM for analysis; and

upon receipt of the Chemist Report from CDM, the Chemist Report was served on the Respondent;

the Respondent did not cross-examine the 7 Witnesses [No Cross-Examination (7 Witnesses)];

the $ 1^{\mathrm{st}} $ Appellant found that a prima facie case of the Charge had been proven against the Respondent. The $ 1^{\mathrm{st}} $ Respondent explained to the Respondent that the Respondent had the following three options-

option to remain silent;

option to give sworn evidence; and

option to give unsworn evidence;

the Respondent chose the option to give sworn evidence. According to the Respondent, he had never taken drugs;

the Respondent did not call any other person to give evidence on his behalf; and

the $ 1^{\mathrm{st}} $ Appellant found that the Charge had been proven against the Respondent ( $ 1^{\mathrm{st}} $ Appellant's Finding of Guilt);

before the $ 1^{\mathrm{st}} $ Appellant imposed punishment on the Respondent-

the $ 1^{\mathrm{st}} $ Appellant had allowed the Respondent to make a plea in mitigation of the punishment which could be meted out by the $ 1^{\mathrm{st}} $ Appellant to the Respondent;

the Respondent was also permitted by the $ 1^{\mathrm{st}} $ Appellant to call a character witness who gave evidence of the Respondent's good character; and

the Respondent's service record showed that throughout the Respondent's service of 19 years and 2 months in RMR-

the Respondent had not been guilty of any disciplinary offence; and

(ii) the Respondent's work performance was good; and

the $ 1^{\mathrm{st}} $ Appellant ordered the Respondent to pay a fine which was equivalent to the Respondent's wages for 14 days (Fine). This judgment shall refer the $ 1^{\mathrm{st}} $ Appellant's Finding of Guilt and Fine collectively as the " $ 1^{\mathrm{st}} $ Appellant's Decision".

By way of a letter dated 11.1.2021, the $ 2^{n d} $ Appellant discharged the Respondent from Service under reg. 61(1)(m) AFTSR on the ground that the Respondent's service was no longer required $ (2^{n d} $ Appellant's Decision). The title of the $ 2^{n d} $ Appellant's Decision stated as follows (in the National Language): "KELULUSAN PEMBERHENTIAN ATAS SEBAB TATATERTIB SALAH LAKU DAN SEBAB-SEBAB LAIN ANGGOTA LAIN-LAIN PANGKAT (LLP)" (emphasis added). C. Proceedings in the High Court

The Respondent filed a Judicial Review application (JRA) in the High Court and sought for the following relief, among others:

a certiorari order to set aside -

the $ 1^{\mathrm{s t}} $ Appellant's Decision; and

the $ 2^{\mathrm{nd}} $ Appellant's Decision; and

an order of mandamus to direct the Respondent to be re-tried by court-martial.

As required by O 53 r 3(2) RC, the JRA was supported by a statement (Statement). Paragraphs 9 and 10 of the Statement have laid down the following grounds for the relief sought in the JRA:

when the $ 1^{\mathrm{st}} $ Appellant refused to call the Chemist to give evidence at the Summary Trial-

the $ 1^{\mathrm{st}} $ Appellant had committed an error of law and/or an illegality;

the $ 1^{\mathrm{st}} $ Appellant had exceeded his jurisdiction and/or had committed an error regarding his jurisdiction;

the $ 1^{\mathrm{st}} $ Appellant had acted irrationally and/or had not considered relevant factors; and/or

the $ 1^{\mathrm{st}} $ Appellant had committed a procedural impropriety; and

the $ 1^{\mathrm{st}} $ Appellant's Decision was unreasonable in the Wednesbury context. The Statement did not provide any ground for the court to set aside the 2 $ ^{nd} $ Appellant's Decision.

The learned High Court Judge (HCJ) granted ex parte leave for the JRA and at the substantive hearing of the JRA, the learned HCJ allowed the JRA as follows:

an order of certiorari was issued to quash-

the $ 1^{\mathrm{st}} $ Appellant's Decision; and

the $ 2^{\mathrm{nd}} $ Appellant's Decision;

a mandamus order was granted for the Respondent to be retried by court-martial; and

no order of costs for the JRA (High Court's Decision).

Paragraphs 17 to 19 of the learned HCJ's Grounds of Judgment (GOJ) gave the following grounds for the High Court's Decision:

in view of the Respondent's Request, the $ 1^{\mathrm{st}} $ Appellant should have called the Chemist to give evidence at the Summary Trial;

the Chemist should be called by the $ 1^{\mathrm{st}} $ Appellant to testify at the Summary Trial because it was important for the Respondent to know what test and analysis of the Sample had been conducted by the Chemist. Consequently, the Respondent had been irreparably prejudiced by the $ 1^{\mathrm{st}} $ Respondent's failure to call the Chemist to give evidence at the Summary Trial;

no reason was given by the $ 1^{\mathrm{s t}} $ Appellant on why the Chemist could not be called to give evidence at the Summary Trial;

the $ 1^{\mathrm{st}} $ Appellant had erred in deciding that there was proof of a prima facie case of the Charge when the $ 1^{\mathrm{st}} $ Appellant did not refer to the Chemist Report; and

the $ 1^{\mathrm{st}} $ Appellant's failure to call the Chemist to testify at the Summary Trial had deprived the Respondent of the Respondent's right to cross-examine the Chemist. Hence, there was procedural impropriety which invalidated the $ 1^{\mathrm{st}} $ Appellant's Decision and $ 2^{\mathrm{nd}} $ Appellant's Decision.

The Appellants have appealed to this court against the entire High Court's Decision. D. Summary of Appellants' submission

In support of this appeal, the learned Senior Federal Counsel (SFC) has contended as follows, among others:

as the $ 1^{\mathrm{st}} $ Appellant had only imposed the Fine on the Respondent, s 97(9) AFA did not require the $ 1^{\mathrm{st}} $ Appellant to accord the Respondent the right to elect to be tried by court-martial;

the $ 1^{\mathrm{st}} $ Appellant was not required to call the Chemist to testify at the Summary Trial because-

the proviso to s 399(1) CPC had been fulfilled as the Chemist Report had been served on the Respondent more than 10 clear days before the commencement of the Summary Trial;

the Chemist Report had been tendered as evidence at the Summary Trial without any objection by the Respondent;

there was No Cross-Examination (7 Witnesses) by the Respondent; and

the Respondent could have called the Chemist to testify in support of his defence at the Summary Trial but he chose not do so. Premised on the above reasons, there was no procedural impropriety in the conduct of the Summary Trial by the $ 1^{\mathrm{st}} $ Appellant; and

the $ 2^{\mathrm{nd}} $ Appellant's Decision was lawfully made pursuant to reg. 61(1)(m) AFTSR. In any event, there was no nexus between the $ 1^{\mathrm{st}} $ Appellant's Decision and $ 2^{\mathrm{nd}} $ Appellant's Decision. This is because even if the $ 1^{\mathrm{st}} $ Appellant's Decision was quashed by a certiorari order, the $ 2^{\mathrm{nd}} $ Appellant was empowered under reg. 61(1)(m) AFTSR to make the $ 2^{\mathrm{nd}} $ Appellant's Decision. E. Summary of Respondent's contentions

The Respondent's learned counsel has resisted this appeal on the following grounds, among others:

by virtue of s 97(9) AFA, the $ 1^{\mathrm{st}} $ Appellant's Finding of Guilt was invalid because the $ 1^{\mathrm{st}} $ Appellant did not allow the Respondent to exercise his right to elect to be court-martialled;

notwithstanding the Respondent's Request, the $ 1^{\mathrm{st}} $ Appellant failed to call the Chemist to give evidence at the Summary Trial. There was therefore procedural impropriety in the $ 1^{\mathrm{st}} $ Appellant's conduct of the Summary Trial;

instead of one Sample, two urine samples should be obtained from the Respondent;

the Sample was contaminated when there was a preliminary testing of the Sample in the Camp (before the Sample was sent to the Chemist); and

in view of the above reasons, the Respondent's constitutional rights under Articles 5(1) and 8(1) of the Federal Constitution (FC) had been violated. Hence, the learned HCJ did not err in making the High Court's Decision. OUR DECISION F. Did 1 $ ^{st} $ Appellant breach s 97(9) AFA?

Sections 51, 95, 96 and 97 AFA state as follows: "s 51 Disobedience to standing orders

Every person subject to service law under this Act who contravenes or fails to comply with any provision of orders to which this section applies, being a provision known to him or which he might reasonably be expected to know, shall, on conviction by court martial, be liable to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

This section applies to standing orders or other routine orders of a continuing nature for any formation or unit or body of troops, or for any command or other area, establishment, garrison or place, or for any ship, train or aircraft.

The standing orders or other routine orders described in subsection (2) may be -

made by; and

published in such manner as may be determined by, the Service Chief for each Service or any officer authorized by him. Investigation of charges by commanding officers Before an allegation against a person subject to service law under this Act (hereinafter referred to as "the accused") that he has committed an offence against any provision of this Part is further proceeded with, the allegation shall be reported, in the form of a charge, to the accused's commanding officer, and the commanding officer shall investigate the charge in the prescribed manner. s 96 Charges to be dealt with summarily or by court martial

After investigation, a charge against a commissioned officer below the rank of lieutenant-colonel or its equivalent or against a warrant officer may, if an authority has power under the following provisions of this Part to deal with it summarily, be so dealt with by that authority in accordance with those provisions.

After investigation, a charge against an appointed officer or against a serviceman or volunteer (when subject to service law under this Act) below the rank of warrant officer may be dealt with summarily by his commanding officer, subject to and in accordance with the following provisions of this Part.

If, after investigation, any charge is not dealt with summarily as aforesaid, the accused shall be remanded for trial by court-martial.

Notwithstanding anything in the foregoing provisions of this section, where-

the commanding officer has investigated a charge against a commissioned officer or a warrant officer; or

the commanding officer has investigated a charge against an appointed officer or against a serviceman or volunteer (when subject to service law under this Act) below the rank of warrant officer, which is not one which can be dealt with summarily, the commanding officer may dismiss the charge if he is of the opinion that it ought not to be further proceeded with.

References in this Act to dealing summarily with the charge are references to the taking by the appropriate superior authority or the commanding officer of the accused, as the case may require, of the following action, that is to say, determining whether the accused is guilty, dismissing the charge or recording a finding of guilty accordingly and awarding punishment. s 97 Further proceedings on charges against an appointed officer, servicemen and volunteers below the rank of warrant officer

The following provisions of this section shall have effect where the commanding officer has investigated a charge against an appointed officer or against a serviceman or volunteer (when subject to service law under this Act) below the rank of warrant officer.

If-

the charge is not one which can be dealt with summarily and the commanding officer has not dismissed it; or

the charge is one which can be dealt with summarily but the commanding officer is of the opinion that it should not be so dealt with, he shall take the prescribed steps with a view to the charge being tried by court-martial.

In any other case, the commanding officer shall proceed to deal with the charge summarily; and if he records a finding of guilty he may, subject to subsection (4), award one or more of the following punishments, that is to say:

detention for a period not exceeding ninety days, or if the accused being a non-commissioned officer or private or its equivalent is on active service, field punishment not exceeding ninety days: Provided that-

a punishment of detention or field punishment awarded by a commanding officer to a noncommissioned officer shall not be carried into effect until it has been approved by an approving authority and only to the extent so approved;

(ii) where a commanding officer awards more than twenty-eight days' detention or field punishment, the portion in excess of twenty-eight days shall be effective only if approved by, and to the extent approved by, an approving authority;

reduction to the ranks or any less reduction in rank or disrating to a rank not lower than a private or its equivalent in the Army, able rate in the Navy or aircraftman I in the Air Force, as the case may be, but, except as provided in subsections (5) and (6), a punishment of reduction to the ranks or any less reduction in rank or disrating to a rank not lower than a private or its equivalent in the Army, able rate in the Navy or aircraftman I in the Air Force, as the case may be, imposed by a commanding officer shall be effective only if approved by, and to the extent approved by, an approving authority;

a fine;

if the accused is an appointed officer or noncommissioned officer, severe reprimand or reprimand;

forfeiture of good conduct badges, but where such forfeiture will entail the forfeiture of a long service and good conduct medal, a punishment of forfeiture of good conduct badges shall be effective only if approved by an approving authority;

where the offence has occasioned any expense, loss or damage, stoppages;

any minor punishments for the time being authorized in regulations made under this Part: Provided that no fine or minor punishment shall be awarded for an offence for which detention is awarded, and that no fine shall be awarded for an offence for which field punishment is awarded.

If the accused is an appointed officer the commanding officer shall not award any punishment other than those set out in paragraphs (c), (d), (f) and (g) of the last foregoing subsection.

Where the accused is a lance corporal or lance bombardier, and the commanding officer finds him guilty, the commanding officer may, if he awards no other punishment or no other punishment except stoppages, order the accused to be reduced to the ranks.

Where the accused is an acting warrant officer or acting non-commissioned officer, and the commanding officer finds him guilty, the commanding officer may, if he awards no other punishment or no other punishment except stoppages, order the accused to revert to his permanent rank or rate.

Where a non-commissioned officer is awarded any period of detention or field punishment, he shall also be ordered to be reduced to the ranks or to be disrated to a grade lower than that of leading rating, as the case may be: Provided that, if the commanding officer fails to order him to be so reduced, the sentence of the commanding officer shall not be invalid but shall be deemed to include a sentence of reduction to the ranks or of disrating to a grade lower than that of leading rating as the case may be.

Where a commanding officer awards a fine as a punishment for drunkenness, the amount of the fine shall not exceed thirty ringgit.

Notwithstanding anything contained in subsection (3), where the commanding officer has determined that the accused is guilty and if the charge is dealt with summarily will award punishment other than severe reprimand, reprimand, fine or a minor punishment, or where a finding of guilty (whatever the punishment awarded) will involve a forfeiture of pay (other than a fine), the commanding officer shall not record a finding until after affording the accused an opportunity of electing to be tried by court-martial; and if the accused so elects and does not subsequently, in accordance with regulations made under this Part withdraw his election, the commanding officer shall not record a finding of guilty but shall take the prescribed steps with a view to the charge being tried by court-martial.

In this section "approving authority" means any officer not below the rank of colonel or its equivalent designated by the Armed Forces Council as an approving authority for the purposes of this section.

Where a charge is one that can be dealt with summarily, but the commanding officer has taken steps with a view to its being tried by court-martial, any higher authority to whom the charge is referred may refer the charge back to the commanding officer to be dealt with summarily; and on any such reference the commanding officer shall dispose of the charge as if he had originally been of the opinion that the charge should be dealt with summarily: Provided that a charge shall not be referred back where the accused has elected to be tried by court-martial and has not withdrawn his election." (emphasis added).

We are of the following view regarding a Commanding Officer's duties and discretionary powers with regard to a complaint that an Accused has breached a SO pursuant to s 51 AFA:

s 95 AFA mandatorily requires the Accused's Commanding Officer to investigate the Charge against the Accused (Investigation);

after the Investigation-

the Commanding Officer may dismiss the Charge under s 96(4) AFA read with reg. 14(1) AFSJR. We reproduce below reg. 14(1) AFSJR- "reg.14 Restrictions on power to dismiss a charge.

A commanding officer shall not dismiss a charge unless he is satisfied-

that the charge is groundless; or

that there are special circumstances which justify its dismissal." (emphasis added); or

if the Commanding Officer does not dismiss the Charge pursuant to s 96(4) AFA and reg. 14(1) AFSJR-

the Commanding Officer has a discretion to deal summarily with the Charge if the Charge is one which can be dealt with summarily by the Commanding Officer - please refer to ss 96(2), 97(2)(a), (b) and (3) AFA read with reg. 12 AFSJR. Regulation 12 AFSJR states as follows- "reg.12 Charges with which a commanding officer or appropriate superior authority may deal summarily. A commanding officer or an appropriate superior authority may deal summarily with a charge under any of the following sections of [AFA]：44,46 (e), 49,50(2),51,52,55,56,57,58,59 (1)(a),60,61(c) and (d),62(c),63,64,65(2),66,67,72,77(a) and 81(b) , 86 (where the principal offence can be dealt with summarily by virtue of this Regulation); 87 and 88 (where the civil offence is one which is specified in the Second Schedule to these Regulations)." (emphasis added); or

(ii) the Commanding Officer shall take steps prescribed by AFA for the Accused to be court-martialled in the following circumstances- (iiia) the Charge is one which cannot be dealt with summarily by the Commanding Officer - please refer to s 97(2)(a) AFA; or (iib) the Charge is one which can be dealt with summarily by the Commanding Officer but the Commanding Officer is of the opinion that the Charge should not be dealt with summarily - please refer to s 97(2)(b) AFA [Section 97(2)(b) Option];

if a Commanding Officer exercises Section 97(2)(b) Option, ie., if a Commanding Officer takes steps for the court-martial of the Accused, by reason of s 97(11) AFA, a higher authority than the Commanding Officer may refer the Charge back to the Commanding Officer for the Charge to be dealt with summarily by the Commanding Officer. Such a reference back to the Commanding Officer is not available when an Accused has elected to be tried by court-martial under s 97(9) AFA - please refer to the proviso to s 97(11) AFA and sub-paragraph (5) below;

according to s 96(5) AFA, a Commanding Officer deals summarily with the Charge by-

dismissing the Charge; or

finding that the Accused is guilty of the Charge by recording such a finding of guilty and by awarding punishment of the Accused as provided in s 97(3)(a) to (g) AFA [subject to the specific provisions in s 97(4), (5), (6), (7) and (8) AFA]. In this regard, reg. 13 AFSJR has provided that a Commanding Officer may award any of the punishments prescribed under, among others, s 97 AFA; and

when a Commanding Officer deals summarily with the Charge and has determined that the Accused is guilty and -

if Commanding Officer will award the following punishment which is not a-

a severe reprimand;

(ii) a reprimand;

(iii) a fine; or

(iv) a minor punishment, or

where a finding of guilty (whatever the punishment awarded) will involve a forfeiture of pay (other than a fine) the Commanding Officer shall not record a finding of guilty until the Commanding Officer has given the Accused a right to elect to be tried by court-martial. If the Accused elects to be court-martialled and does not subsequently withdraw his or her election in accordance with regulations made under Part V AFA, the Commanding Officer shall not record a finding of guilty but shall take steps prescribed by AFA for the court-martial of the Accused.

We do not accept the Respondent's contention that the $ 1^{\mathrm{st}} $ Appellant had breached s 97(9) AFA by not affording the Respondent a right to elect to be tried by court-martial. This is because the $ 1^{\mathrm{st}} $ Appellant had only imposed the Fine on the Respondent. As explained in the above sub-paragraph 18(5), s 97(9) AFA did not require the $ 1^{\mathrm{st}} $ Appellant to give the Respondent a right to elect to be court-martialled. Our research has shown that a similar decision was reached by Ahmad Kamal Md. Shahid J in the High Court in Wan Ramli bin Wan Seman v Lt Kol Sharull Hesham bin Md Yasin & Ors [2023] MLJU 1264, at [18]. G. Whether taking of one Sample from Respondent was valid

We cannot accept the Respondent's submission that two urine samples should have been obtained from the Respondent. We rely on the Court of Appeal's judgment delivered by Abdul Rahman Sebli JCA (as he then was) in Majlis Angkatan Tentera Malaysia v Mohd Nurul Ami bin Mohd Basri [2019] 2 MLJ 433, at [8], [9], [11], [12], [14], [15], [18], [26], [27], [29] and [30] to [35], as follows: [8] The dispute that arose was over how many bottles of urine sample was required to be taken for the purposes of a urine test. Under the army guideline, only one bottle is required whereas under the KKM [Kementerian Kesihatan Malaysia] guideline, two bottles are required. [9] In the case of the respondent, only one bottle of his urine sample was taken, which tested positive for the drugs methamphetamine and amphetamine. It was this test result that formed the basis for the charge against him. It was therefore important for the court to determine if the procedure adopted by the appellant in collecting urine samples for the purposes of urine tests was in accordance with the law. [11] The question before us was simply this - which guideline applies, the army guideline or the KKM guideline? The learned judge ruled that it is the KKM guideline that applies and not the army guideline. The KKM guideline, inter alia, provides for the following procedure in the collection of urine samples: [12] Learned counsel for the respondent contended that this guideline requires two bottles of urine sample to be taken. We read it differently. Our reading of para (c)(i) is that only one bottle of urine specimen is required, but a 'duplicate' ie a second bottle is required if the screening and confirmation are done in two different places. What is important is for the single bottle to contain at least 30ml of urine sample. [14] For a comparison of the KKM guideline with the army guideline, we reproduce below the relevant parts of the army guideline: ... [15] As is the case with the KKM guideline, the army guideline requires only one bottle of urine specimen to be taken. And like the KKM guideline, the army guideline also requires each bottle to contain at least 30ml of urine specimen. So basically the requirements of both guidelines are the same. [18] But that is not the end of the matter. The question is not whether one or two bottles should be taken, but whether the procedure to be followed by the appellant is the KKM guideline or the army guideline. If it is the KKM guideline that must be followed, two bottles must be taken (since the screening and confirmation were done in two different places) but if the army guideline applies, only one bottle is required. [26] What then is the status of the army guideline? Does it have any force of law? In our view it does. The first thing to note is that it was made under s 15 [AFA] read together with art 137 of the Federal Constitution ('the Constitution'). [27] The army guideline, which can be found at pp 70-80 of the appeal record is dated 14 May 2009 and was signed by the Secretary of the Armed Forces Council. He signed it 'Dengan Perintah Majlis Angkatan Tentera'. There can be no doubt therefore that the army guideline is a guideline that was issued pursuant to a power given by law. [29] Thus, by virtue of s 15[AFA], the Armed Forces Council is empowered by law to make regulations it may think necessary or expedient for the better carrying into effect of the AFA, and this includes issuing the army guideline, which was issued by way of the 'Perintah Majlis Angkatan Tentera'. Being made by authority of the Armed Forces Council, the army guideline is therefore valid and enforceable. [30] What about the KKM guideline, does it have any force of law? With regret and with the greatest of respect to the panel of this court that decided Noor Shariful Rizal, we are unable to agree that the KKM guideline has the force of law. In the first place, unlike the army guideline, it was not made under any written law. [31] The KKM guideline was merely a guideline issued by the Ministry of Health through a circular dated 3 September 2002 and signed by the Director General of the Ministry of Health. The fact that the KKM guideline makes references to the Dangerous Drugs Act 1952 as observed by this court in Noor Shariful Rizal does not clothe it with the force of law. [32] Paragraphs 1 and 2 of the circular fortifies our view that it is merely an administrative guideline with no force of law. [33] It is patently clear that the purpose of the KKM guideline is to coordinate and update the procedure for the taking of urine samples in suspected drug abuse cases and as a guideline to the relevant agencies, including the armed forces. It was not meant to be a legal document having the force of law. For any guideline to have any force of law, it must be made pursuant to a power given by law. This is not the case with the KKM guideline. [34] Since the procedure adopted by the appellant in taking only one bottle of the respondent's urine specimen for his urine test was in accordance with the army guideline, the question that the appellant had breached the KKM guideline by not taking two bottles of his urine sample does not arise, and this is so even if the KKM guideline has the force of law, and assuming we are wrong in holding the view that it has no force of law. [35] In any event, even if the KKM guideline has the force of law, it cannot supersede the army guideline. This is because the army guideline is a specific guideline which is meant to be enforced by the armed forces only and by no others and it is enforceable against all members of the armed forces without any exception." (emphasis added). H. Does s 399(1) CPC apply to Summary Trial under AFA?

Sections 5 and 399 CPA provide as follows: "s3 Trial of offences under Penal Code and other laws All offences under the Penal Code shall be inquired into and tried according to the provisions hereinafter contained, and all offences under any other law shall be inquired into and tried according to the same provisions: subject however to any written law for the time being in force regulating the manner or place of inquiring into or trying such offences. s 399 Reports of certain persons

Any document purporting to be a report under the hand of any of the persons mentioned in subsection (2) upon any person, matter or thing examined or analysed by him or any document purporting to be a report under the hand of the Registrar of Criminals upon any matter or thing relating to finger impressions submitted to him for report may be given in evidence in any inquiry, trial or other proceeding under this Code unless that person or Registrar shall be required to attend as a witness-

by the Court; or

by the accused, in which case the accused shall give notice to the Public Prosecutor not less than three clear days before the commencement of the trial: Provided always that in any case in which the Public Prosecutor intends to give in evidence any such report he shall deliver a copy of it to the accused not less than ten clear days before the commencement of the trial.

The following are persons to whom the provisions of this section apply:

officers of the Institute for Medical Research;

Government Medical Officers;

chemists in the employment of any Government in Malaysia or of the Government of Singapore;

any person appointed by the Minister by notification in the Gazette, to be a Document Examiner;

Inspector of Weights and Measures appointed as such under any written law relating to weights and measures in force in Malaysia; and

any person or class of persons to whom the Minister by notification in the Gazette declares that the provisions of this section shall apply.

The persons referred to in subsection (2) and the Registrar of Criminals are by this Code bound to state the truth in reports made under their hands." (emphasis added).

We are of the view that the learned SFC's reliance on the proviso to s 399(1) CPC to justify the $ 1^{\mathrm{st}} $ Appellant's refusal to call the Chemist at the Summary Trial is misplaced. Our reasons are as follows:

s 3 CPC has expressly provided that all "offences under the Penal Code" (PC) and "offences under any other law" "shall be inquired into and tried" according to the CPC, including s 399 CPC. The Charge in this case concerned disobedience to the Relevant SO and did not involve a criminal offence under PC, AFA or any other law. Accordingly, all provisions in CPC, including s 399 CPC, cannot apply in this case. At this juncture, we should clarify that although reg. 16 AFSJR uses the description "Summary Trial", a Summary Trial conducted by a Commanding Officer is different from a summary trial conducted by a "court" [defined in s 2(1) CPC as the High Court, Sessions Court or Magistrate's Court];

s 399(1) CPC has stated that a chemist report "may be given in evidence in any inquiry, trial or other proceeding" under CPC, (not under AFA and AFSJR); and

the proviso to s 399(1) CPC only enables the Public Prosecutor (PP) (not the Commanding Officer) to tender a chemist report in a criminal trial if the PP has served the chemist report on an accused person not less than ten clear days before the commencement of the criminal trial. As such, a Commanding Officer cannot rely on the proviso to s 399(1) CPC. I. Whether court may review Commanding Officer's decision after Summary Trial [Commanding Officer's Decision (Summary Trial)]

Firstly, by virtue of Articles 5(1) and 8(1) FC, a serviceman has a constitutional right to livelihood in respect of his or her service in the Armed Forces (Constitutional Right to Livelihood) - please refer to the Federal Court's judgment delivered by Mary Lim FCJ in Kolonel Dr Faiz Azraai bin Abdul Aziz v Mahkamah Tentera Divisyen Keempat Infantri Malaysia [2023] MLJU 998, at [26].

Secondly, as decided in Kolonel Dr Faiz Azraai, at [19], the court may review a court-martial decision.

Thirdly, we are of the considered view that a Commanding Officer's Decision (Summary Trial) is amenable to Judicial Review. This view is supported by the following reasons:

there is no policy reason to exclude Judicial Review of a Commanding Officer's Decision (Summary Trial);

if the court can review a court-martial decision (please refer to Kolonel Dr Faiz Azraai), there is nothing in principle to exclude the court's review of a Commanding Officer's Decision (Summary Trial);

if there is no Judicial Review of a Commanding Officer's Decision (Summary Trial) there will be an injustice to the serviceman who is found guilty and punished notwithstanding that there may exist any one or more of the following three grounds for Judicial Review [3 Grounds (Judicial Review)]:

the Commanding Officer has committed an illegality or error of law with regard to the Summary Trial;

there is procedural impropriety, procedural unfairness or breach of the rules of natural justice in respect of the conduct of the Summary Trial; and/or

the Commanding Officer's Decision (Summary Trial) is "irrational" as understood in case law. When there is presence of any one or more of the 3 Grounds (Judicial Review) and if the court has no jurisdiction to review a Commanding Officer's Decision (Summary Trial) which is adverse to a serviceman, the serviceman's Constitutional Right to Livelihood is rendered illusory; and

this court takes judicial notice that our military personnel answer the calling to serve our country selflessly as a matter of personal honour. To quote William Shakespeare in "Richard II", Act 1, Scene 1- "Mine honour is my life; both grow in one. Take honour from me, and my life is done." If a Commanding Officer's Decision (Summary Trial) has a negative impact on a serviceman's professional reputation, the court should have the jurisdiction to review the Commanding Officer's Decision (Summary Trial) so as to vindicate the serviceman's personal honour. J. Was there procedural impropriety in Summary Trial?

We now discuss the novel question of whether the $ 1^{\mathrm{st}} $ Appellant had committed a procedural impropriety by refusing to call the Chemist to give expert evidence and be cross-examined by the Respondent at the Summary Trial.

In the High Court case of Malayawata Steel Bhd v Union of Malayawata Steel Workers [1978] 1 MLJ 87, at 88, Gunn Chit Tuan J (as he then was) has decided as follows: "In reaching a decision in relation to a trade dispute referred to an Industrial Court under section 30 of the Industrial Relations Act, 1967 (Revised 1976), the hearing before it should be in accordance with the rules of natural justice. Thus in his judgment in Russell v Duke of Norfolk [1949] 1 All ER 109 at page 118, Lord Justice Tucker has said as follows:- "There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.' In this case, I took the view that there had been a denial of natural justice in that the applicant was not allowed to call witnesses and was therefore not given a reasonable opportunity of presenting its case. Since there had been a denial of natural justice, the High Court was in a position to interfere and to make an order of certiorari." (emphasis added).

We have no hesitation to uphold part of the High Court's Decision that the $ 1^{\mathrm{st}} $ Appellant's Decision had been made due to a procedural impropriety, namely, the Respondent had been deprived of a reasonable opportunity of presenting the Respondent's defence at the Summary Trial when the $ 1^{\mathrm{st}} $ Appellant failed to call the Chemist to give expert evidence and be cross-examined by the Respondent at the Summary Trial （ $ 1^{\mathrm{st}} $ Appellant's Procedural Impropriety）. This decision is premised on the following evidence and reasons:

it could not be denied that the gravamen of the Charge depended solely on the expert evidence of the Chemist. In other words, the Chemist's expert testimony was crucial to prove the Charge against the Respondent beyond all reasonable doubt;

the Respondent's Request had been sent to the $ 1^{\mathrm{st}} $ Appellant. There was no evidence that the Chemist was not available to testify at the Summary Trial;

before the commencement of the Summary Trial, the $ 1^{\mathrm{st}} $ Appellant did not inform the Respondent that the $ 1^{\mathrm{st}} $ Appellant would not accede to the Respondent's Request. Hence, the Respondent was not able to make any arrangement to call the Chemist to give an expert opinion at the Summary Trial; and

the Summary Trial had been postponed once. There was no reason why the Summary Trial could not be postponed a second time so as to enable the 1 $ ^{1 \mathrm{st}} $ Appellant to call the Chemist to give expert evidence at the Summary Trial. In this regard, we rely on the following judgment of Roskill LJ (as he then was) in United Kingdom's (UK) Court of Appeal case of Hanson v Church Commissioners for England, R v London Rent Assessment Committee, ex p Hanson [1978] QB 823, at 838- "I am very conscious of the irritation as well as the extra expense which last minute adjournments can cause, particularly with tribunals of this nature, and I recognise the desire of any tribunal to avoid such adjournments wherever possible. But sometimes, if justice is to be done, adjournments are essential." (emphasis added). K. Court's discretion to grant relief in JRA

O 53 r 2(3) RC provides as follows: "Upon the hearing of an application for judicial review, the Court shall not be confined to the relief claimed by the applicant but may dismiss the application or make any orders, including an order of injunction or monetary compensation: Provided that the power to grant an injunction shall be exercised in accordance with the provisions of section 29 of the Government Proceedings Act 1956 [Act 359] and section 54 of the Specific Relief Act 1950." (emphasis added).

As provided by the words "may ... make any orders" in O 53 r 2(3) RC, if there exists any one of the 3 Grounds (JR), the court has a discretion to grant or refuse relief in a JRA. In the Federal Court case of Hoh Kiang Ngan v Mahkamah Perusahaan Malaysia & Anor [1995] 3 MLJ 369, at 393 to 394, Gopal Sri Ram JCA (as he then was) has decided as follows: "In any event, assuming for a moment that the Industrial Court had given wrong reasons for holding that the appellant is a workman within the Act - and we hasten to repeat that this is not the case here - its ultimate decision being correct, prerogative relief whether in the form of certiorari or prohibition ought to have been withheld from the respondent. For, it must not be forgotten that these remedies are discretionary and are not available ex debito justitiae to an applicant who is able to demonstrate an error of law on the part of a public decision-taker. The true principle governing the grant of prerogative relief appears in the following passage in the judgment of Bose J in Sangram Singh v Election Tribunal AIR 1955 SC 425 at p 429: That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Art 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognized lines and not arbitrarily; and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case. In Kewal Krishnan v Minister for Local Bodies & Ors AIR 1959 J & K 17, the order of the Minister was challenged on the ground, inter alia, that the reasons contained in the order made by him contained wrong reasons for his decision. Wazir CJ, in refusing relief said (at p 19): Although the reasons given in the order of the Minister may be erroneous yet if the order can be supported on other valid grounds, writ of certiorari to quash that order cannot be granted. Suffice to say that in the circumstances of this case, the ultimate decision being correct, no injustice of any sort, whether substantial or inconsequential, has been occasioned because of the alleged wrong reasons." (emphasis added). L. Whether High Court had correctly exercised discretion to set aside 1 $ ^{st} $ Appellant's Decision

We have no hesitation to decide that the learned HCJ had exercised lawfully his discretion to issue a certiorari order to quash the $ 1^{\mathrm{st}} $ Appellant's Decision. This is because the $ 1^{\mathrm{st}} $ Appellant's Procedural Impropriety had caused an injustice to the Respondent by adversely affecting the Respondent's Constitutional Right to Livelihood.

We are not persuaded that the any one or all of the following grounds can justify a refusal by the High Court to set aside the $ 1^{\mathrm{st}} $ Appellant's Decision:

the Respondent has not objected to the admissibility of the chemist report at the Summary Trial;

No Cross-Examination (7 Witnesses); and

the Respondent could have called the Chemist to testify for the Respondent at the Summary Trial. We do not accept the above grounds due to the following reasons-

premised on the nature of the Charge, the Respondent could only be found guilty of the Charge beyond all reasonable doubt if the $ 1^{\mathrm{st}} $ Appellant had called the Chemist to provide her expert opinion in the Summary Trial;

the matters raised by the learned SFC in the above subparagraphs (1) to (3) could not be tantamount to proof beyond all reasonable doubt that the Respondent was guilty of the Charge; and

the Respondent was not legally represented at the Summary Trial. It was therefore understandable as to why the Respondent acted the way he did at the Summary Trial. M. Whether 2 $ ^{n d} $ Appellant's Decision should be set aside

We reproduce below reg. 61 AFTSR: "reg. 61 Discharge from service

The competent authority may, at any time, discharge any serviceman from the service of the regular forces on the following grounds:

in the case of a recruit, he is unlikely to become an efficient serviceman;

in the case of a recruit, upon him applying to purchase his discharge pursuant to section 31 of the Act;

the enlistment of the serviceman is not approved;

the enlistment of the serviceman was not properly made;

the particulars written in the attestation paper during the enlistment of such serviceman are false;

mercy;

the state of health of such serviceman is lower than the medical standards as determined under regulation 11;

the lack of a suitable post or the absence of prospects for promotion or career development for the serviceman in the regular forces or the abolition of any post in the regular forces;

unfitness or inefficiency of such serviceman which is not tantamount to a misconduct;

misconduct committed by the serviceman and he has been convicted;

the serviceman has been sentenced to a discharge or discharge with disgrace by court-martial;

renunciation or loss of Malaysian citizenship;

the service of the serviceman is no longer required;

in the interest of the service;

with the approval of the Armed Forces Council, upon the serviceman being appointed to serve in any organisation in which the Government or any State Government has an interest;

the serviceman is found to be involved in political activities as prohibited in Perintah Majlis Angkatan Tentera;

the serviceman has completed his period of full-time service in the regular forces;

the serviceman has been granted a commission as an officer; or

in the opinion of the competent authority, a particular circumstance requires so.

Notwithstanding any provisions in these Regulations, a warrant officer who has been reduced to a lower rank may apply to be discharged from the service of the regular forces and the competent authority, after considering his application, may discharge such warrant officer pursuant to section 32 of the Act.

The discharge under this regulation shall be in accord for the purpose of determining the grant of pension, gratuity and other benefits as provided in the regulations made under section 187 of the Act." (emphasis added).

We are of the following view regarding reg. 61(1)(m) AFTSR:

according to reg. 61(3) AFTSR, a serviceman who is discharged from Service under reg. 61 AFTSR is entitled to his or her pension, gratuity and all other benefits. Articles 5(1) and 8(1) FC provide as follows - "Article 5(1) No person shall be deprived of his life or personal liberty save in accordance with law. Article 8(1) All persons are equal before the law and entitled to the equal protection of the law." (emphasis added). The term "law" is defined in Article 160(2) FC to include "written law". By reason of s 3(b) of the Interpretation Acts 1948 and 1967, "written law" means, among others, subsidiary legislation made under an Act of Parliament. AFTSR (made pursuant to ss 15 and 36 AFA) constitute subsidiary legislation and "law" as provided in Articles. 5(1) and 8(1) FC. Accordingly, reg. 61(1)(m) AFTSR does not breach a serviceman's Constitutional Right to Livelihood under Articles 5(1) and 8(1) FC because a serviceman's Constitutional Right to Livelihood may be lawfully deprived in accordance with reg. 61(1)(m) AFTSR [which constitutes "law" as understood in Articles 5(1) and 8(1) FC];

a literal interpretation of reg. 61(1)(m) AFTSR means that the Competent Authority has a discretion to discharge a serviceman "at any time" from Service on the ground that the "service of the serviceman is no longer required" (Literal Interpretation);

before the Competent Authority decides to discharge a serviceman from Service pursuant to reg. 61(1)(m) AFTSR, the Literal Interpretation does not require the Competent Authority to give the serviceman a right of hearing;

once the Competent Authority has exercised the discretionary power under reg. 61(1)(m) AFTSR to discharge a serviceman from Service on the ground that the serviceman's service is no longer required, the Competent Authority is not required by the Literal Interpretation to give any reason for that decision to the serviceman in question;

with regard to matters concerning the administration of our Armed Forces and national security, including the discharge of a serviceman from Service, the court should defer to the exercise of the Competent Authority's subjective discretion pursuant to reg. 61(1)(m) AFTSR (Purposive Construction). The Purposive Construction is explained by Malin VC in UK's High Court in Re Tufnell (1876) 3 Ch D 164, at 172 and 177, as follows- "I am sorry to be obliged to come to the conclusion that the case is entirely against Mr. Tufnell. This is a petition of right claiming compensation against the Crown, not for dismissal from any office, but for removal in this sense, that instead of continuing to hold the office he has been put on half-pay. ... That litigation has resulted in shewing most clearly that every officer in the army is subject to the will of the Crown, and can be removed and put on half-pay, or dealt with as the Crown, with a view to the public convenience, thinks best. It is a power which is always considered to lie in the Crown, a rule which has never been departed from, and therefore, on general principles, I come to the conclusion that Mr. Tufnell has no ground whatever to complain. He ought to bear in mind that during the last thirty-five years he has been an officer of the British army, and, as such, subject to the will and pleasure of the Crown, which will retain or remove him as it thinks fit." (emphasis added);

in accordance with the Literal Interpretation and Purposive Construction, the Competent Authority may exercise its discretion to discharge a serviceman from Service "at any time" pursuant to reg. 61(1)(m) AFTSR even though -

the serviceman has been previously exonerated in a Summary Trial or court-martial (Summary Trial/Court Martial); or

the serviceman has been found guilty and punished in the Summary Trial/Court-Martial [Decision (Summary Trial/Court-Martial)] and the Decision (Summary Trial/Court-Martial) is subsequently quashed by way of an order of certiorari by the court; and

if the court sets aside a decision of the Competent Authority to discharge a serviceman from Service under reg. 61(1)(m) AFTSR, this will not only be contrary to the Literal Interpretation and Purposive Construction but will also render reg. 61(1)(m) AFTSR redundant.

In this case, the $ 2^{nd} $ Appellant's Decision was clearly made under reg. 61(1)(m) AFTSR. Premised on the reasons expressed in the above paragraph 34, notwithstanding the quashing of the $ 1^{st} $ Appellant's Decision by the High Court (due to the $ 1^{st} $ Appellant's Procedural Impropriety), the $ 2^{nd} $ Appellant's Decision could still be lawfully made under reg. 61(1)(m) AFTSR. In other words, once the learned HCJ had set aside the $ 1^{st} $ Appellant's Decision, the High Court could not set aside the $ 2^{nd} $ Appellant's Decision as a matter of course.

Regrettably, the learned HCJ had issued a certiorari order to quash the $ 2^{\mathrm{nd}} $ Appellant's Decision without any consideration of the Literal Interpretation and Purposive Construction. In fact, the GOJ did not even refer to reg. 61(1)(m) AFTSR. Such an omission, in our view, amounts to a legal error on the part of the learned HCJ which warrants appellate intervention by this court.

There is a second reason to uphold the validity of the $ 2^{\mathrm{nd}} $ Appellant's Decision. The Statement did not allude to any ground to impugn the $ 2^{\mathrm{nd}} $ Appellant's Decision. Worse still, no reference was made in the Statement to reg. 61(1)(m) AFTSR. In this regard, we reproduce below O 53 rr 3(2) and 7(1) RC: "O 53 r 3(2) An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on." O 53 r 7(1) The Judge may allow the statement to be amended, and may allow further affidavits to be used if they deal with new matters arising out of any affidavit of any other party to the application, and where the applicant intends to amend his statement or use further affidavits, he must immediately give notice of his intention and of any proposed amendment of his statement to every other party." (emphasis added). By virtue of O 53 r 3(2) RC, the Respondent is bound by the Statement [which did not state any ground to invalidate the $ 2^{\mathrm{nd}} $ Appellant's Decision, let alone refer to reg. 61(1)(m) AFTSR]. Furthermore, the Respondent did not apply to court pursuant to O 53 r 7(1) RC to amend the Statement so as to include any ground to impugn the $ 2^{\mathrm{nd}} $ Appellant's Decision. In this regard, we rely on the following judgment of the Court of Appeal delivered by Ahmadi Asnawi JCA in DKLS Sunshine Sdn Bhd v Kerajaan Negeri Pulau Pinang & Anor [2019] 3 CLJ 593, at [48] - [48] Further, under O. 53 r. 3(2), an application for leave for judicial review must be made ex parte and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds in which it is sought and by affidavits verifying the facts relied on. This order is mandatory. It further emphasises the principle that a party is bound by his own pleading and this rule is also mandatory in nature. ..." (emphasis added).

Lastly, in view of the object of reg. 61(1)(m) AFTSR [please refer to the above sub-paragraph 34(5)] , the learned HCJ should have declined to exercise his discretion to issue an order of certiorari to quash the $ 2^{\mathrm{nd}} $ Appellant's Decision. N. Should Respondent be court-martialled?

As explained in the above paragraph 19, the $ 1^{\mathrm{st}} $ Appellant had not breached s 97(9) AFA by not giving the Respondent a right to elect to be tried by court-martial. As such, there was no lawful basis for the learned HCJ to issue a mandamus order for the Respondent to be court-martialled.

In any event, due to the application of reg. 61(1)(m) AFTSR which justified the $ 2^{\mathrm{nd}} $ Appellant's Decision (please refer to the above paragraphs 34 to 36), namely, the Respondent had been lawfully discharged from Service by the $ 2^{\mathrm{nd}} $ Appellant's Decision, an order of mandamus to direct the Respondent Accused to be re-tried by court-martial is an exercise in futility.

The Court of Appeal has a discretion under r 54 of the Rules of the Court of Appeal 1994 to award costs for an appeal. We have decided that no costs for this appeal should be awarded because firstly, the Appellants have only succeeded in part. Furthermore, this appeal raises novel questions of law (as outlined in the above paragraph 2).

Premised on the above evidence and reasons, we allow this appeal in part as follows:

part of the High Court's Decision (to quash the $ 1^{\mathrm{st}} $ Appellant's Decision by way of certiorari with no order of costs for the JRA) is affirmed;

part of the High Court's Decision which had issued-

a certiorari order to quash the $ 2^{\mathrm{nd}} $ Appellant's Decision; and

an order of mandamus for the Respondent to be re-tried by court-martial is set aside; and

there will be no order as to costs for this appeal. DATE: 27 JULY 2023 (WONG KIAN KHEONG) Judge Court of Appeal, Malaysia For the Appellants: Puan Noor Fadzila Binti Ishak (Senior Federal Counsel) (Pahang State Legal Advisor's Office) For the Respondent: Mr. Rejinder Singh & Encik Mohammed Nasser bin Yusof (The Law Chambers Of Fauzi & Nasser)