FIRUZ ALZARHARI BIN ABU BAKAR v 1. ) Pengerusi Lembaga Kumpulan Sokongan (No.1) Agensi Penguatkuasaan Maritim Malaysia (BA-25-23-03/2024)

PENGERUSI LEMBAGA KUMPULAN SOKONGAN (NO: 1)

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KERAJAAN MALAYSIA RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT (Enclosure 7)

On 5.9.2024, the Applicant was granted leave to file an application for judicial review against the Respondents.

Enclosure 7 is the Applicant s substantive application for order including

a certiorari to quash the decision of the First Respondent as contained in letter dated 21.12.2023;

(ii) a declaration that the decision is invalid and contrary to law; and

(iii) an order to reinstate the Applicant with benefits.

After considering the cause papers and submissions by the parties, this Court allowed the Applicant s application. The following are the reasons for the decision. Background facts

The Applicant averred that

at the material time, the Applicant was a Senior Petty Officer with the Malaysian Maritime Enforcement Agency (MMEA);

(ii) he was charged at the offences under the Dangerous Drugs Act 1952 (Act 234) (DDA);

(iii) on 2.6.2022 the Magistrate bound him over on a Bond of Good Behaviour with security of RM 4000.00 and a bailor for a period of 2 years;

(iv) vide letter dated 21.12.2023 from the First Respondent, he was suspended from duties with effect from 2.6.2022;

vide another letter dated 21.12.2023 from the First Respondent, he was terminated from service;

(vi) vide letters dated 2.1.2024 and 11.1.2024 to the Disciplinary Board, he appealed against the termination to which he received no response; and

(vii) on 20.3.2024, he commenced this action for Judicial Review.

The Applicant contended that the he was not given a right to be heard and defend himself before the Disciplinary Board. He challenged the decision to terminate him as being irrational dan unreasonable. The Applicant alleged that the First Respondent abused his powers and that the Disciplinary Board and the Ministry of Home Affairs had acted in bad faith.

In his affidavit in response, the First Respondent averred that

he was the Chairman of the Disciplinary Board;

(ii) on 7.3.2020, the Applicant was arrested for offences under the DDA;

(iii) on 30.6.2020, he was charged at the Court for offences under sections 6 and 15(1)(a) DDA;

(iv) on 2.6.2022, he pleaded guilty to both offences and was bound over on a Bond of Good Behaviour with conditions;

on 30.11.2023, the Director of the Search and Rescue dan Disaster Relief Division, the Applicant s Head of Department, submitted a report on the Applicant under the provisions of the Public Officers (Conduct and Discipline) Regulations 1993 (P.U.

(A) 395/1993) (1993

(vi) on 18.12.2023, the Disciplinary Board convened to deliberate and they decided to terminate his services;

(vii) pursuant to this decision, letters dated 21.12.2023 were issued to suspend him dan then to terminate him;

(viii) he was informed of his right of appeal to the Disciplinary Appeal Board;

(ix) his letters of appeal were sent to the Disciplinary Appeal Board; and

the Disciplinary Appeal Board convened on 11.6.2024

termination was contrary to the 1993 Regulations and the principles of natural justice. He was terminated on the finding of guilt by the

Briefly, the Applicant submitted that

he was not convicted of any of the offences under the DDA; as he was released under a bond of good behaviour under section 173A Criminal Procedure Code (CPC);

(ii) there was no record the First Respondent had deliberated and considered the option of either dismissal or reduction in rank; and

(iii) he was not involved in trafficking dangerous drugs.

The Respondents argued in reply that

there was compliance with the 1993 Regulations;

(ii) the Applicant was found guilty of the 2 charges under the DDA and therefore liable to dismissal or reduction in rank under the 1993 Regulations;

(iii) proviso in Article 132 Federal Constitution; and

(iv) Principles of law

In Harpers Trading (M) Sdn Bhd v. National Union of Commercial Workers [1991] 1 CLJ Rep 159; [1991] 1 MLJ 417, Mohd Jemuri Serjan SCJ held at 164 trite law that judicial review is not an appeal from a decision but a review of the manner in which the decision was made and the High Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable."

In Kerajaan Malaysia & Ors v. Tay Chai Huat [2012] 3 CLJ 577, Arifin Zakaria CJ delivering the unanimous decision of the Federal Court held at 597 599 - The courts have very limited review powers over administrative determinations of public bodies and are constrained to confirm the findings in disciplinary hearings. The courts will only intervene in disciplinary cases where there was a fundamental procedural flaw. The courts cannot exceed its role in cases of this genre as the instant appeal. The courts cannot interfere merely because it may come to different conclusions on facts on the same basis of the same evidence. Weighing and assessing the evidence is the function of the disciplinary authority which is the body to which the legislature has entrusted the responsibility of deciding the issue, and not the courts. Hence, the court should approach cases of this genre as the instant appeal in the following way, namely, whether there has been an error in the process or whether there was procedural irregularity in the decision making proceedings leading to the public officer's dismissal. Thus, a court should not substitute what its thinks is the "correct" decision. What the court is concerned with is not the decision but the decision-making process. It does not entail the court substituting its discretion for that of the decision maker. "Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power", per Lord Brightman in Chief Constable of the North Wales Police Force v. Evans[1982] 1 WLR 1155 at p. 1173. The courts should not assume the role of primary decision-taker by acting to regulate procedures found in the General Orders because this is not its constitutional function. Chapter D of the General Orders reinforces internal discipline and accountability for wrongdoings and poor performance and helps ensure that public officers will comply with their obligations. Public officers are held accountable for their actions and omissions when these represent a violation of the duties or obligations imposed on them by legislation. The rationale is that an offence committed by a public officer in the course of carrying out his duties negatively affects the public's trust in the administration, which is a public interest given special protection by both the criminal and administrative legal orders. Public officers are expected to make decisions and act solely in the public interest, without consideration of their private interests. Public employment being a public trust, the improper use of a public service position for private advantage is regarded as a serious breach of duty. (Government of Malaysia v. Rosalind Oh Lee Pek Inn [1973] 1 MLJ 222 at 224, Gazi bin Sawi v. Mohd Haniff bin Omar, Ketua Polis Negara Malaysia & Anor [1994] 2 CLJ 333 at 345, Ganasan a/l Marimuthu v. Public Services Commission & Anor [1998] 4 CLJ 331 at 341, Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v. Utra Badi a/l Perumal [2001] 2 MLJ 417 at 449, Selvaraju Ponniah v. Suruhanjaya Perkhidmatan awam Malaysia & Anor [2007] 6 CLJ 245 at 255).

In exercising its supervisory role, the Court is empowered to consider whether the disciplinary authority took into account irrelevant considerations and failed to take into account relevant considerations (Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1, Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd [2021] 4 CLJ 821). Analysis and findings

Guided by these principles, this Court examined each of the No conviction

The relevant provisions in Article 135 Federal Constitution reads No member of any of the services mentioned in paragraphs

to (h) of Clause (1) of Article 132 shall be dismissed or reduced in rank by an authority subordinate to that which, at the time of the dismissal or reduction, has power to appoint a member of that service of equal rank:

No member of such a service as aforesaid shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard: Provided that this Clause shall not apply to the following cases:

where a member of such a service is dismissed or reduced in rank on the ground of conduct in respect of which

cer is

Reading these provisions in tandem, it is clear that whilst it is true that the Applicant was not convicted of any offences when he was given the bond under section 173ACPC, he did plead guilty and was found guilty of two offences under the DDA. As such, the criminal charges against him have been proved.

In Tan Teck Seng @ Tan Chee Meng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771, Gopal Sri Ram JCA (as His Lordship then was) held at 804 It has to do with the word "proved" appearing in para. (a) in the proviso to Article 135(2) of the Federal Constitution. The word, it is to be noted, is "proved" and not "convicted". In a case where a binding over order is made under s. 173A of the Code, there must first be a plea or a finding of guilt. In his judgment in the Muar High Court, the learned Judicial Commissioner did in fact uphold the finding of guilt made by the Sessions Court. It follows that the offence was indeed proved against the appellant within the terms of para. (a) of the proviso to Article 135(2). Accordingly, the protection afforded by that Article is, by the language of the supreme law, withdrawn from the appellant. The learned Judge was, therefore, entirely correct when he held that the appellant was not entitled to a hearing before his dismissal on the question of misconduct. In the premises, I have no hesitation in upholding the reasoning of the learned Judge on this point, which is distinct and separate from his findings on the earlier issue. A careful reading of his judgment leaves me convinced that his treatment of the binding over order in the present case as a conviction did not solely influence his decision to uphold the dismissal. before concluding at 806 under s.173A of the Code, may be subject to disciplinary punishment of either dismissal or reduction in rank under

Dismissal or reduction in rank options

The 1993 Regulations gives the disciplinary authority the discretion to determine the punishment. This Court cannot substitute this punishment with its own.

In Ng Hock Cheng v. Pengarah Am Penjara [1998] 1 MLJ 153, Peh Swee Chin FCJ held at 158-159 A public officer is entitled to impugn any allegation or accusation of any disciplinary breach against him by way of judicial review on the protection given by art 135 of the Federal Constitution which provides that no member of such service shall be dismissed or reduced in rank except: (a) only by an authority that appointed him in the first place; and (b) after being given a reasonable opportunity of being heard. He is, in addition, entitled to protection from sufficient compliance with the rules of natural justice and the disciplinary procedure provided therefor: see Mohd bin Ahmad v Yang Di Pertua Majlis Daerah Jempol, Negeri Sembilan & Anor [1997] 2 MLJ 361 . If the public officer succeeds in so impugning, any order of punishment, an order of dismissal, can be declared invalid or void, and such order being so declared void, is deemed not to have been made at all or is deemed to have been only purportedly made previously. But if the public officer fails to so impugn, any order of punishment remains and there should be no further review on such order of punishment. the disciplining of a public officer by his department head is part of the function of the executive branch of the government and any usurpation by a court will be viewed with something very much more than disfavour even though the Judiciary is the judicial branch of the government as well as an institution which belongs to the people. To repeat, a court intervenes only on the nature and manner of accusation against a public officer as distinct from a consequential punishment as explained above. Just like a professional body being the best tribunal to judge the seriousness of misconduct of its members, in a similar vein, an employer, including a government, is the best person to

The choice of punishment between dismissal and reduction in rank Jabatan, keputusan Mahkamah Majistret Sepang dan rekod

The Court has no cause to interfere with the Disciplinary For these reasons, the consider the option of dismissal or reduction in rank is baseless and without merit. Trafficking drugs

In paragraph 5.8 Enclosure 10, the First Respondent averred setelah menimbang laporan Ketua Jabatan, keputusan Mahkamah Majistret Sepang dan rekod perkhidmatan Pemohon, Lembaga Tatatertib memutuskan bahawa Pemohon dikenakan hukuman buang kerja berdasarkan kepada peraturan 38(g) P.U.(A) 395/1993 atas alasan:

5.8.1

5.8.1.1 penglibatan Pemohon dengan aktiviti pengedaran dadah berbahaya akan menjejaskan imej APMM;

The charges against the Applicant were under

section 6 DDA i.e. that he had in his possession 14.62 grammes of cannabis; and

(ii) section 15(1)(a) DDA i.e. that he administered to himself methamphetamine.

There was no suggestion that the Applicant was trafficking in drugs. Counsel: For the Applicant: Awang Armadajaya Awang Mahmud Messrs Hasshahari & Partners For the Respondents: FC Puan Ng Wei Li Jabatan Peguam Negara Aras 6, Bahagian Guaman No. 45, Persiaran Perdana, Present 4, 62100 Putrajaya