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1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. B-01(NCVC)(W)-687-09/2022 ANTARA DR. FAIZ AZRAAI BIN ABDUL AZIZ (NO. K/P: 761014-04-5135) … PERAYU
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B-01(NCvC)(W)-687-09/2022
Court of Appeal of Malaysia17 Jul 2025
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“ppellant. [4] On 4 May 2017, the appellant was arrested by the Military Police in front of a private hospital for the offence of 'Absence Without Leave', which is contrary to Section 54(1)(a) of the Armed Forces Act 1972 (Act 77). [5] The trial for the offence under Section 54 of Act 77 was scheduled to begin on 27 Nov”
“heduled to begin on 27 November 2017 but was delayed to 28 November 2017 because several documents, including the Charge Sheet, had to be served on the appellant in compliance with Section 51A of the Criminal Procedure Code. However, the respondents took the position that since the appellant had deliberately avoided be”
“e held under remand pending trial by the Military Court. [18] The Military Court was convened within a reasonable period (four months), and no procedural irregularity or mala fide intent was proven. The Criminal Procedure Code provisions cited by the appellant, including Section 117, do not apply to arrests made under”
“pleted his investigation against the appellant and that the appellant is to be tried before the court-martial. [29] In Leftenan Kolonel Shaifullizan Abd Aziz and others v Muhammad Maliki Abdul Halim [2025] CLJU 822, this Court had the occasion to look at the legal implication of section 96(3) of Act”
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1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. B-01(NCVC)(W)-687-09/2022 ANTARA DR. FAIZ AZRAAI BIN ABDUL AZIZ (NO. K/P: 761014-04-5135) … PERAYU
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KERAJAAN MALAYSIA … RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya Di Shah Alam Dalam Negeri Selangor Darul Ehsan Guaman No: BA-21NCVC-11-03/2019 ANTARA DR. FAIZ AZRAAI BIN ABDUL AZIZ (NO. K/P: 761014-04-5135) … PLAINTIF DAN 12/01/2026 10:42:43
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KERAJAAN MALAYSIA … DEFENDAN-DEFENDAN] CORUM: AZIZAH BINTI NAWAWI, JCA AZIZUL AZMI BIN ADNAN, JCA MOHD FIRUZ BIN JAFFRIL, JCA Grounds of Judgment Introduction [1] This is an appeal against the decision of the learned High Court Judge dated 16 August 2022 in dismissing the appellant’s claim against the respondents. The appellant’s claim is for damages arising from allegations of false imprisonment for a period of 114 days, to be assessed at RM7,500 per day, and from the failure to provide medical treatment during the period of detention, assessed at RM1,000 per day, together with claims for exemplary damages, aggravated damages, and general damages. The Salient Facts [2] The appellant was a former Military Doctor who had served as an Anaesthesiology Specialist. His last rank was a Colonel at the Tuanku Mizan Armed Forces Hospital in Kuala Lumpur. [3] The 1st respondent was the temporary Commanding Officer in charge of the appellant during his military trial whilst the 2nd respondent was the Commander of the Fourth Infantry Division and was responsible for bringing charges against the appellant. [4] On 4 May 2017, the appellant was arrested by the Military Police in front of a private hospital for the offence of 'Absence Without Leave', which is contrary to Section 54(1)(a) of the Armed Forces Act 1972 (Act 77). [5] The trial for the offence under Section 54 of Act 77 was scheduled to begin on 27 November 2017 but could only commence on 28 November 2017. This delay occurred because certain documents that was required to be served on the appellant could not be served on him and these documents were only served on 27 November 2017. [6] In addition to the offence under Section 54 of Act 77, the appellant was also issued a First Charge (Holding Charge) on 6 October 2017 for further investigation by the Commanding Officer regarding an offence under Section 51 of Act 77 for disobeying standing orders. Specifically, the appellant had failed to return the Patient Medical Records, which was in violation of the Guidelines for Handling and Managing Patient Medical Records at Tuanku Mizan Armed Forces Hospital. [7] Subsequently, the appellant was issued with a Second Charge (Standing Charge), on 9 November 2017, which was to be referred to the Court Martial in respect of the offence under section 51. [8]
Preamble
Pursuant to the charge for an offence under section 51 of Act 77, the appellant was placed under close arrest pursuant to Section 96(3) of Act 77 on 27 November 2017. Section 96(3) allows the detention of an accused person until the convening of the Court Martial. This fact was admitted by the appellant in his Witness Statement dated 24 January 2022 in Question (6), which reads as follows: “S. Dr. sila maklumkan kepada Mahkamah apa yang berlaku pada 27/11/2017? J. Setelah selesai sidang Mahkamah Tentera untuk pertuduhan Seksyen 54 (Tinggal Tugas) Akta Angkatan Tentera 1972 saya telah ditahan oleh Probos Marsyal di hadapan Peguam-Peguam saya di perkarangan Mahkamah atas kesalahan Seksyen 51 (Tidak Mematuhi Perintah Tetap) Akta Angkatan Tentera 1972 berkenaan kehilangan rekod perubatan pesakit bernama Kapten Nor Aida Binti Mustafar.” [9] However, the appellant was later released from close arrest under Section 96 of Act 77 on 20 March 2018. This request for release while awaiting trial for the charge under Section 51 of Act 77 was allowed as the appellant could apply for a release while waiting for the Court Martial to convene. It is also to be noted that the appellant was released from close arrest whilst his application for habeas corpus was pending, and it is not a disputed fact that his application for habeas corpus was allowed by the court. [10] In respect of the charge under section 51 of Act 77, although the charge documents were ready, the respondents explained that appointing members of the Court Martial, including the President, four members, and a substitute member, took time because their ranks had to be equal to or higher than the appellant. The respondents also conceded that at that time it was highly unusual to prosecute a senior military officer like the appellant. As such, the Court Martial for the charge under Section 51 of Act 77 was scheduled for 27 March 2018, but did not proceed pending the trial pursuant to Section 54 of Act 77. [11] In the meantime, the trial for the offence under Section 54 of Act 77 was scheduled to begin on 27 November 2017 but was delayed to 28 November 2017 because several documents, including the Charge Sheet, had to be served on the appellant in compliance with Section 51A of the Criminal Procedure Code. However, the respondents took the position that since the appellant had deliberately avoided being served, the documents could only and were served on him on 27 November 2017. [12] The trial for the offence under Section 54 of Act 77 concluded on 1 October 2018. On that date, the appellant was found guilty, sentenced to three (3) months' imprisonment, and dishonourably discharged from the service of His Majesty, the Yang Di-Pertuan Agong. [13] Through a letter dated 13 November 2018, the appellant’s solicitor was informed that the charge against him under Section 51 of Act 77 had been withdrawn, accompanied by a Court Martial Dissolution Order. [14] The charge under Section 51 of Act 77 was not pursued because, at the material time, the appellant had already been dismissed from service and was no longer a military officer, as provided under Section 209(1)(a) of Act 77. Therefore, there was no longer a need to proceed with the charge. [15] Consequently, the appellant filed this suit claiming for damages for false detention from the date of his arrest, on 27 November 2017 to the date of his release on 20 March 2018. Decision of High Court Judge [16] The learned Judge made a finding that the appellant’s arrest and subsequent remand were lawful, valid, and carried out in accordance with Act 77. The arrest was made under Section 96(3) for the purpose of prosecution for an offence under section 51 of Act 77, not for the purpose of investigation. Therefore, the requirement for a delay report under Section 94(2) of Act 77 which applies only to arrests for investigation was not applicable. [17] The appellant’s reliance on a non-statutory guideline document is misplaced, as the document is not legally binding because it was not issued under Section 119 of the Act 77. Furthermore, the remand period, although exceeding eight days, complied with the requirement under Section 96(3) that a person be held under remand pending trial by the Military Court. [18] The Military Court was convened within a reasonable period (four months), and no procedural irregularity or mala fide intent was proven. The Criminal Procedure Code provisions cited by the appellant, including Section 117, do not apply to arrests made under Act 77. [19] Accordingly, the appellant’s claim that the arrest and remand were unlawful or mala fide was dismissed by the learned Judge. Our Decision Issue - whether the detention of the appellant for 114 days was mala fide and without any reasonable justification [20] It is not in dispute that the appellant was arrested on 27.11.2017. In his Witness Statement, the appellant admitted that he “ ….. telah ditahan oleh Probos Marsyal di hadapan Peguam-Peguam saya di perkarangan Mahkamah atas kesalahan Seksyen 51 (Tidak Mematuhi Perintah Tetap) Akta Angkatan Tentera 1972.” [21] It is also not a disputed fact that he was only released from detention on 20 March 2018. [22] The issue then is whether this detention was mala fide and without any reasonable justification. [23] The appellant argued that the learned trial judge has erred in his findings by failing to consider that even though the appellant was detained for the purpose of court martial trial, he was never actually tried at any material time. Added to that, the appellant was subsequently released from prosecution on 13 November 2018. This, according to the appellant, clearly shows that the appellant’s detention by the respondents was made in bad faith, with a hidden ulterior motive. [24] In his judgment, the learned Judge made a finding that the detention was made pursuant to section 96(3) of Act 77 where it is clearly provided after the completion of the investigation, where the charge was not dealt summarily but pending court martial, the appellant be remanded for trial by court-martial. The learned Judge held as follows: “[26] Peruntukan mengenai tahanan reman diperuntukkan di bawah s.96 Akta, khususnya s.96(3) yang membuat peruntukan berikut:-
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If, after investigation, any charge is not dealt with summarily as aforesaid, the accused shall be remanded for trial by court-martial. [27] Fakta yang jelas di dalam kes ini Plaintif telah ditangkap dengan tujuan hendak dituduh dengan kesalahan s.51 Akta. Pada masa ditangkap kesalahan yang dilakukan oleh Plaintif telah dikenalpasti, bukan lagi berupa allegasi yang perlu disiasat. Oleh itu, Plaintif tidak ditangkap untuk tujuan siasatan kerana pada masa ditangkap kesalahan yang dilakukan telah dikenalpasti, iaitu kesalahan di bawah s.51 Akta 1972.” (emphasis added) [25] We are of the considered opinion that the learned Judge did not commit any error in his finding that the appellant’s arrest and subsequent remand were lawful, valid, and carried out in accordance with Act 77. [26] This is based on the admission by the appellant that he was arrested for the charge under section 51 of Act 77. Since the arrest and detention was made after the completion of the investigation and pending trial by court-martial for an offence under section 51, then the arrest and detention was made under Section 96(3) of Act 77. The arrest and the remand of the appellant was not for the purpose of investigation. [27] Section 96 of Act 77 reads as follows: “96. Charges to be dealt summarily or by court-martial
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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.
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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.
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If, after investigation, any charge is not dealt with summarily as aforesaid, the accused shall be remanded for trial by court-martial.
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Notwithstanding anything in the foregoing provisions of this section, where-
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the commanding officer has investigated a charge against a commissioned officer or a warrant officer; or
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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.
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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.” [28] We are of the considered opinion that section 96(3) of Act 77 is applicable at the stage when the investigation has been completed, the charge under section 51 of Act 77 has been proffered and appellant had not been brought for trial before the court-martial. Section 96(3) empowers the commanding officer to detain the appellant at a stage when he has completed his investigation against the appellant and that the appellant is to be tried before the court-martial. [29] In Leftenan Kolonel Shaifullizan Abd Aziz and others v Muhammad Maliki Abdul Halim [2025] CLJU 822, this Court had the occasion to look at the legal implication of section 96(3) of Act
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In the High Court, the learned Judge has allowed the plaintiff’s claim for damages for false imprisonment on the basis that the plaintiff could only be lawfully remanded under s. 96(3) of Act 77 when witnesses had been called to testify in the trial in the Martial Court. [30] In the judgment delivered by Justice KK Wong, this court has set aside the decision of the learned High Court Judge and held that section 96(3) of Act 77 operates when the Commanding Officer's investigation into the charge is completed and that the case is to be tried by Court Martial under Section 97(9). For the purpose of the trial before the Court Martial, the officer concerned must be remanded (detained) for Court Martial trial. This remand means close arrest, as defined in Rule 16(1) of the Armed Forces Regulations. His Lordship held as follows: "28. We are of the following view regarding the validity of a
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for a serviceman or an “officer” (defined in s 2 AFA) (Serviceman/Officer), upon the fulfilment of the following two conditions in s 96(3) AFA {2 Conditions [Section 96(3) AFA]}-
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the investigation by the Commanding Officer with regard to the charge against the Serviceman/Officer, had been completed; and
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the Serviceman/Officer had elected to be tried in a Court-Martial under s 97(9) AFA - the following two consequences “shall” follow pursuant to s 96(3) AFA {2 Consequences [Section 96(3) AFA]}, namely-
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the charge against the Serviceman/Officer cannot be disposed of summarily under ss 96(1), (2), (5) and 97(3) AFA read with reg. 12 AFSJR; and
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(ii) the Serviceman/Officer “shall be remanded for trial by court-martial”. According to r 16(1) AFRP, the “remand” of an Accused pending the Trial (Court-Martial) refers to the close arrest of the Accused;
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once the 2 Conditions [Section 96(3) AFA] are satisfied, the 2 Consequences [Section 96(3) AFA] are intended by Parliament to be mandatory in effect. This is because the legislature has employed an imperative term “shall” in s 96(3) AFA. Additionally, r 16(1) AFRP (made by the Minister of Defence pursuant to s 119 AFA) also uses the mandatory term “shall” by providing that an Accused “shall be held under close arrest” during the Trial (Court-Martial);
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the only exception to a Detention (Pending Court-Martial) is provided in r 16(1) AFRP. According to r 16(1) AFRP, an Accused “shall be held under close arrest” except where the Convening Authority (not the Commanding Officer and Court-Martial) directs that the Accused -
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“shall be held under open arrest”; or
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is released from arrest;..” [31] In the present appeal, since the investigation has been completed and the appellant is facing a charge under section 51 of Act 77 to be tried by the court-martial, pursuant to subsection 96(3) of Act 77, his detention is lawful under the law. [32] In respect of the appellant’s submission that he was he was never actually tried at any material time (under section 51 of Act 77) and that he was subsequently released from prosecution, we are of the considered opinion that this is because the charge against the appellant under Section 51 of Act 77 had been withdrawn, pursuant to a Court Martial Dissolution Order. The charge was not pursued because at the material time, the appellant had already been dismissed from service after he was found guilty for the offence under section 54 of Act 77. At that relevant time after the dishonourable discharge, he was no longer a military officer within the meaning of Section 209(1)(a) of Act 77, rendering further proceedings unnecessary. Whether close arrest can only be carried out after the court-martial has commenced [33] It is the submission of the appellant that the respondents can only place the appellant under close arrest for the purpose of a trial, and only if the trial had already commenced in the Martial Court. [34] However, during the entire period the appellant was detained for the purpose of the charge under section 51 of Act 77, no trial ever took place. Therefore, the appellant submits that the respondents had acted illegally by putting the appellant under close arrest during that period. The appellant relied on the High Court decision in Baharuddin bin Kamsin v. Pihak Berkuasa Sidang Panglima Armada Pengkalan TLDM Lumut [1995] 1 LNS 310, which held as follows: "Having heard the submission of both counsel for the applicant and Federal Counsel for the first respondent and having perused the affidavits filed by both parties, I am of the view that the question of whether the applicant had been lawfully detained or not is focused on the correct interpretation and the application of the provision of r. 16(1) of the Rules of Procedure to the facts and circumstances of this case. As I see it the said r. 16(1) of the. Rules of Procedure comes into operation at the stage when the trial of the applicant as an accused person before the court martial had commenced and only then can the applicant as in this case-be detained under close arrest. It is my view that the phrase 'during his trial by a court-martial means that the trial of the applicant as in this case must have commenced before the court-martial. As regards the meaning of commencement of trial, in the case of Savrimuthu v. PP [1986] 1 LNS 24; [1987] 2 MLJ 173, Tun Salleh Abbas LP in delivering the judgment of the Supreme Court at p 177 stated as follows: Thus in the context the commencement of trial must mean the commencement of the examination, cross-examination and re-examination of one or more witnesses.” (emphasis added) [35] However, the case of Baharuddin (supra) has been overruled by this Court in Leftenan Kolonel Shaifullizan Abd Aziz (supra). The relevant passages in this case are as follows: “(6) s. 96(3) AFA and r. 16(1) AFRP do not provide that an Accused can only be lawfully remanded under s. 96(3) AFA and r. 16(1) AFRP if the Trial (Court-Martial) has commenced in the sense that at least one witness has been called to give evidence in the Trial (Court-Martial)….” “(9) in view of the reasons for our interpretation of s. 96(3) AFA and r. 16(1) AFRP as stated in the above sub-paragraphs (1) to (8), we are constrained to overrule the High Court decisions in Baharuddin and Sjn (U) Ahmad Zaini Zainon.” (emphasis added) Failure to provide a delay report [36] The appellant has submitted that his detention under section 96(3) of Act 77 was a form of remand detention. Therefore, for such remand detention, section 94(2) of the same Act requires the Commanding Officer to prepare and/or submit a delay report every 8 days, until a Court Martial is convened and the charge is either tried or the appellant is released from custody. [37] Section 94 of Act 77 provides as follows: “94. Provision for avoiding delay after arrest
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The allegations against any person subject to service law under this Act who is under arrest shall be duly investigated without unnecessary delay, and as soon as may be either proceedings shall be taken for punishing his offence or he shall be released from arrest.
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Wherever any person subject to service law under this Act having been taken into service custody, remains under arrest for a longer period than eight days without a court-martial for his trial being assembled, a special report for the necessity for further delay shall be made by his commanding officer to the prescribed authority in the prescribed manner, and a similar report to the like authority and in the like manner every eight days until a court-martial is assembled or the offence is dealt with summarily or he is released from arrest: Provided that in the case of a person on active service, compliance with this subsection shall be excused in so far as it is not reasonably practicable, having regard to the exigency of operations.
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For the purposes of subsection 64 (1) the question whether there has been unnecessary delay in the taking of any steps for the investigation of allegations against a person under arrest shall be determined without regard to the provisions of the last foregoing subsection.” [38] On this issue, the learned High Court Judge made a finding of fact that the arrest and detention of the appellant was made under Section 96(3) for the purpose of prosecution for an offence under section 51 of Act 77, not for the purpose of investigation. Therefore, the requirement for a delay report under Section 94(2) of Act 77 which applies only to arrests for the purpose of investigation was not applicable. [39] We are of the considered opinion that the learned Judge did not commit any error in his interpretation of sections 96 and 94 of Act
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Both provisions serve different purpose. [40] Section 96 of Act 77 falls under the heading “Summary Disposal of Charges” and deals with situations after the completion of investigations and thereafter whether to deal with charges summarily or by court-martial. Pending the trial by court-martial, the appellant shall be remanded. [41] However, section 94 of Act 77 falls under the heading “Arrest” and makes specific reference to investigation and arrest of the army personnel, and to ensure that investigation is done without unnecessary delays. [42] As such, we are of the considered opinion that the detention pending trial by court-martial pursuant to section 96 is different from the remand pending investigation under section 94 of Act 77. [43] In fact, in the case of Leftenan Kolonel Shaifullizan Abd Aziz (supra), this Court has held that “rule 15(1) and (2) AFRP which provide for a report regarding a delay in the Investigation as understood in s 94(2) AFA [not a delay in the Trial (Court-Martial)].” Therefore, it must be reiterated that the delay report is applicable only the investigation stage under section 94 of Act 77, and not when the case is pending trial by court-martial. Conclusion [44] For the aforesaid reasons, we find that the learned trial Judge was not plainly wrong in his decision to dismiss the appellant’s claim. The detention of the appellant was made pursuant to section 96(3) of Act 77 and is therefore not illegal. The appeal is dismissed with costs. Dated : 5 January 2026 sgd (AZIZAH BINTI NAWAWI) Judge Court of Appeal, Malaysia Parties Appearing: For The Appellant : En. Mohammed Nasser Bin Yusof [Tetuan The Law Chambers Of Fauzi & Nasser] For The Respondents : Pn. Noor Fadzila Binti Ishak Peguam Kanan Persekutuan [Pejabat Penasihat Undang-Undang Negeri
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Leftenan Kolonel Shaifullizan Abd Aziz and others v
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Baharuddin bin Kamsin v. Pihak Berkuasa Sidang Panglima
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