Hasli Bin Awang @ Hassan v Lembaga Tatatertib Polis Diraja Malaysia (WA-25-352-10/2023)

1.

2.

KERAJAAN MALAYSIA … RESPONDENTS

By way of this application for judicial review, the Applicant sought to challenge the 1st Respondent’s (‘R1’) decision dated 28.7.2023, which found the Applicant guilty on five disciplinary charges, the first two attracting dismissal, with effect from 28.7.2023 (‘Impugned Decision’).

On 7.3.2024, the Court had allowed an extension of time for the Applicant to amend the named R1 from “ACP Mohamed Roslan bin Ahmed Junaidi, Selaku Pengerusi Lembaga Tatatertib” (‘ACP Roslan’) to “Lembaga Tatatertib Polis Diraja Malaysia” in the Applicant’s Notice of Application for Judicial Review, Statement and Affidavit In Support (‘AIS’) (encls. 1, 2 and 3, respectively) as the Impugned Decision was decided collectively by members of the said disciplinary board and not by its Chairman alone.

On 15.7.2024, leave for judicial review was granted to the Applicant to seek the following reliefs:

a declaration/ order of certiorari to quash the Impugned Decision where the Applicant was dismissed from the 2nd Respondent’s (‘R2’) service from 28.7.2023 vide the letter dated 31.7.2023, which was received by the Applicant on 2.8.2023;

a mandamus to compel the Respondents to reinstate the Applicant to his former position without any loss of rank and other benefits; and

a hearing date to be fixed to assess the losses suffered by the Applicant including salary, allowances, bonus, interest and other emoluments from the date of dismissal until the date of his reinstatement with interest at the rate of 5% per annum from the date of dismissal until full settlement.

On 20.4.2026, after having considered the cause papers and the oral and written submissions of the parties, I had dismissed the Applicant’s application.

These are my full grounds of judgment.

Prior to his dismissal, the Applicant was a Corporal at the Traffic Control Division of the Traffic Investigation and Enforcement Department, Kuala Lumpur Contingent Headquarters.

The disciplinary action taken against the Applicant was initiated with a view to dismiss or reduce him in rank pursuant to Regulation 37 of the Public Officers (Conduct and Discipline) Regulations 1993 [P.U.(A) 395 of 1993] (‘1993 Regulations’). This was reflected in the Show Cause Notice dated 16.6.2023 informing the Applicant of the five disciplinary charges against him as follows (for purposes of the present application, only the First Charge and the Second Charge were relevant and thus, will be set out in full):

First Charge “Bahawa anda Koperal RF/146678 Hasli bin Awang @ Hassan sebagai pegawai awam dalam Pasukan Polis Diraja Malaysia dan ketika itu bertugas sebagai Kons/L/Koperal/Koperal Ronda Cegah Jenayah (4) Balai Polis Sri Petaling, Ibu Pejabat Polis Daerah Brickfields, Kontinjen Kuala Lumpur telah didapati berkelakuan dengan apa-apa cara yang mungkin menyebabkan syak yang munasabah bahawa anda telah menggunakan kedudukan awam anda bagi faedah sendiri kerana pada 29.03.2021 di antara jam lebih kurang 2300 hrs hingga 30.03.2021 jam 0700 hrs bertempat di hadapan lampu isyarat BHP Sri Petaling, Jalan Merah Cagar, Kuala Lumpur semasa anda bertugas sebagai Penyelia Pemantau Covid-19 (Team 5 Charlie) Balai Polis Sri Petaling IPD Brickfields, Kuala Lumpur telah menerima wang berjumlah RM830.00 daripada individu bernama Wong Yen Chun, No. Kad Pengenalan : 811227-05-5399 melalui Lans Koperal 193362 Mohd Soffy bin Ismail secara pindahan wang ke dalam akaun peribadi milik anda sebagai dorongan untuk melepaskannya dari dikenakan tindakan atas kesalahan disyaki memandu dalam keadaan mabuk oleh individu tersebut. Perbuatan anda boleh diertikan sebagai berkelakuan dengan apa-apa cara yang mungkin menyebabkan syak yang munasabah bahawa anda telah menggunakan kedudukan awam anda bagi faedah sendiri iaitu melanggar tatakelakuan di bawah Peraturan 4(2)(c)(ii) Peraturan yang sama seperti yang berikut:- 4(2) Seseorang pegawai tidak boleh -

berkelakuan dengan apa-apa cara yang mungkin menyebabkan syak yang munasabah bahawa-

(ii) dia telah menggunakan kedudukan awamnya bagi faedahnya sendiri Jika anda didapati bersalah atas Pertuduhan ini, anda boleh dihukum mengikut Peraturan 38, Peraturan-Peraturan Pegawai Awam (Kelakuan Dan Tatatertib)

1993.”;

Second Charge “Bahawa anda Koperal RF/146678 Hasli bin Awang @ Hassan sebagai pegawai awam dalam Pasukan Polis Diraja Malaysia dan ketika itu bertugas sebagai Penyelia Pemantau Covid-19 (Team 5 Charlie) Balai Polis Sri Petaling IPD Brickfields Kuala Lumpur bersama-sama Lans Koperal 183583 Sterry Bryn Anak Bujang dan Lans Koperal 193362 Mohd Soffy bin Ismail didapati ‘ingkar perintah’ kerana pada tarikh 29/03/2021 di antara jam lebih kurang 2300hrs hingga 30.03.2021 jam 0700hrs, tidak membuat laporan polis terhadap pemeriksaan dan penahanan yang dilakukan ke atas seorang lelaki cina warganegara Malaysia bernama Wong Yen Chun, No. Kad Pengenalan: 811227-05-5399 menaiki motokar jenis BMW E90 warna Biru no. pendaftaran WST 5269 yang disyaki memandu dalam keadaan mabuk di hadapan lampu isyarat BHP Sri Petaling, Jalan Merah Cagar, Kuala Lumpur yang mana bertentangan dengan PTKPN A110 Para 33.1.38 iaitu tidak melaporkan apa-apa perkara yang ia berkewajipan melaporkan atau tiada menzahirkan apa-apa keterangan yang diketahuinya, memberi bagi atau terhadap mana-mana aktiviti atau individu yang disyaki melakukan atau melakukan apa-apa kesalahan yang menyalahi undang-undang, peraturan atau arahan. Perbuatan anda itu boleh diertikan sebagai Ingkar Perintah iaitu melanggar tatakelakuan di bawah Peraturan 4(2) (i) Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 seperti yang berikut:- 4(2) Seseorang pegawai tidak boleh

Ingkar perintah atau berkelakuan dengan apa apa cara yang boleh ditafsirkan dengan munasabah sebagai ingkar perintah; Jika anda didapati bersalah atas Pertuduhan, anda boleh dihukum mengikut Peraturan 38, Peraturan-peraturan yang sama.”;

Third Charge – that between 14.12.2010 to 17.4.2023, the Applicant failed to declare a motorcycle model Yamaha 135LC (Registration No.: WUR 6786) which was registered under his name on 14.12.2010 in contravention of Regulation 4(2)(i) of the 1993 Regulations;

Fourth Charge – that between 11.4.2022 to 17.4.2023, the Applicant failed to declare a Yamaha EGO motorcycle (Registration No.: WMU 8915) which was registered under his name on 11.4.2022 in contravention of Regulation 4(2)(i) of the 1993 Regulations; and

Fifth Charge – that between 7.4.2016 to 17.4.2023, the Applicant failed to declare a Proton Persona (1.6 Automatic) motorcar (Registration No.: WUP 9105) which was registered under his name on 7.4.2016 in contravention of Regulation 4(2)(i) of the 1993 Regulations.

The Applicant was given 21 days from the date of receipt of the Show Cause Notice to submit his written representation with reasons to exculpate himself from the charges.

The Applicant duly submitted his written representation dated 19.6.2023 (‘Representation’) to R1.

After having considered the Representation, R1 found the Applicant guilty of all five charges. Vide the letter dated 31.7.2023, R1 informed the Applicant that –

the punishment imposed for the First Charge and Second Charge was dismissal pursuant to Regulation 38(g) of the 1993 Regulations with effect from 28.7.2021; and

the punishment imposed for the Third, Fourth and Fifth Charges was a warning pursuant to Regulation 38(a) of the 1993 Regulations with effect from 28.7.2021.

In Mohammad Izzuddin Bin Zulkifly v Suruhanjaya Pasukan Polis & 2 lagi [2026] AMEJ 0844, this Court had summarised the key legal principles in the following manner: “20. In Nor Azlinda bt Mohd Abdullah v Jawatankuasa Tatatertib Kumpulan Bukan Eksekutif (JKTKBE) Tabung Haji & Ors [2026] MLJU 580, this Court said: “33. The legal principles which can be discerned from the case authorities as cited by the parties in the instant application may be summarised as follows:

judicial review is not an appeal from a decision but a review of the manner in which the decision was made. The High Court does not sit in its appellate jurisdiction, but rather, in its supervisory jurisdiction. The Court is more concerned with the decision-making process and not the decision itself. The 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. The Court is merely to quash the decision of the relevant authority, if required, and not to substitute the decision with what it thinks is the correct decision [see Harpers Trading (M) Sdn Bhd v National Union Of Commercial Workers [1991] 1 MLJ 417 (SC), Michael Lee Fook Wah v Menteri Sumber Tenaga Manusia Malaysia & Anor [1998] 1 CLJ 227 (CA) and Ketua Pengarah Hasil Dalam Negeri v Alcatel-Lucent Malaysia Sdn Bhd & Anor [2017] 2 CLJ 1 (FC)]; …”.

The renowned passage from the judgment by Lord Diplock in Council of Civil Service Unions & Ors. v. Minister for Civil Service [1985] 1 AC 374 at pp 410 and 411 on judicial review of administrative actions, and as adopted by the Federal Court in R Rama Chandran v The Industrial Court Of Malaysia & Anor [1997] 1 MLJ 145, reads: “Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality”, the second “irrationality” and the third “procedural impropriety”. By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the state is exercisable. By “irrationality” I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that expressly laid down in the legislative instrument by which its jurisdiction is conferred even where such failure does not involve any denial of natural justice.” [see too, Minister of Home Affairs, Malaysia v. Persatuan Aliran Kesedaran Negara [1990] 1 CLJ (Rep) 186 (SC)].

The well-established Wednesbury principle of reasonableness as explicated in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 specifies that a decision is unlawful where the decision-maker has –

taken into account matters which ought not to have been considered;

failed to take into account matters which ought to have been considered; or

reached a conclusion so unreasonable that no reasonable authority could ever have arrived at it.

In subsequent decisions by the Federal Court, we are reminded that not every case is amenable to the Rama Chandran approach and it all depends on the factual matrix and/ or the legal modalities of the case. In Ranjit Kaur a/p S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1, it was held, among others, that: “[16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts’ liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Perangsang Selangor Bhd v Zaid Noh [1997] 1 MLJ 789; [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate.” (see too, Kumpulan Perangsang Selangor Selangor Bhd v Zaid Noh [1997] 1 MLJ 789, Petroliam National Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288 and Alam Venture Sdn Bhd & Anor v. Abdul Aziz Abdul Majid & Ors [2015] 5 CLJ 1).

In reviewing decision of disciplinary authorities, 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 cannot rehear the case by reweighing and reassessing the evidence since weighing and assessing the evidence is the function of the disciplinary authority. The courts cannot interfere merely because it may come to different conclusions on facts on the same basis of the same evidence. The courts will only intervene where there was a fundamental procedural flaw, namely, where there has been an error in the process or there was procedural irregularity in the decision-making proceedings leading to the public officer’s dismissal (see Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149).

As regards the issue on whether an officer has exculpated himself from the disciplinary charges against him by his written representation, it is for the disciplinary authority, and not the courts, to decide on this matter (see Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1).”.

The grounds for the Applicant’s judicial review application were that the Impugned Decision was contrary to law and had violated the rules of natural justice and the Federal Constitution, and was ultra vires for the following reasons:

there was a breach of procedural fairness due to the existence of significant conflict of facts;

WYC lodged Repot No. Sri Petaling/001715/21 on 29.3.2021 and he withdrew the same vide Repot No. Sri Petaling/001755/21 on the next day. This supports the Applicant’s defence against the First Charge and gave rise to conflict of facts which requires clarification and further investigation;

it was appropriate for R1 to use the power under Regulation 37(5) of the 1993 Regulations to appoint an Investigation Committee (‘IC’) to further investigate into the matter and advise R1 regarding the substance and evidence supporting the First Charge and Second Charge;

by failing to appoint an IC, R1 has denied the Applicant’s fundamental right to defend himself appropriately and failed to follow the procedure that should have been adhered to;

the dismissal of the Applicant was void because it was unreasonable; no reasonable authority possessing the facts like the Respondents would make a decision such as that made by the Respondents without conducting further investigation; and

the type of offence and the punishment imposed on the Applicant were disproportionate, especially considering the Applicant’s length of service and the fact that WYC has withdrawn his police report.

Resulting from the actions of the Respondents, the Applicant was denied his constitutional rights and the Applicant has suffered losses. Analysis and Decision of the Court 1st Ground: Whether the Respondents’ failure to establish an IC to investigate and deliberate on –

the contradiction of facts in the police report lodged by WYC on 29.3.2021 and in the First

the fact that WYC had withdrawn his report dated 29.3.2021 on the next day; and

the Second Charge constitutes a violation of the Applicant’s right to be heard and was an irrational act that is so outrageous that no sensible person who had applied his mind to the question to be decided could have arrived at the decision as the Respondents did

Section 74 of the Police Act 1967 [Act 344] reads as follows: “Police officers subject to disciplinary regulations

All members of the Force shall be subject to regulations relating to discipline as may from time to time be made by the Yang di-Pertuan Agong under Clause (2) of Article 132 of the Federal Constitution or under section 96 of this Act.”.

The applicable regulations is the Regulation 1993 wherein Regulation 37(1) provides that: “Procedure in disciplinary cases with a view to dismissal or reduction in rank

(1) If it is determined under subregulation 35(2) that the disciplinary offence complained of against an officer is of a nature that warrants a punishment of dismissal or reduction in rank, the Chairman of the appropriate Disciplinary Authority to which the case is referred shall consider all the available information.”.

In the first police report made by Wong Yen Chun (‘WYC’) on 29.3.2021 at 7.27 a.m., he stated that, earlier that day at approximately 4.00 a.m., while driving car bearing Registration No. WST 5269 in front of the BHP Sri Petaling traffic light, two motorcycles of uncertain make and registration number arrived. There were three Malay males and one of them knocked on his car window. Two of them entered his car and asked him to pull over to the roadside. One of the men placed a knife and threatened him to give RM1,000.00. He then made an online transaction through his Maybank account in the name of Muhammad Azam bin Hamzam for RM3,000.00. When the money transfer confirmation was successful, the man exited his car and ran away with his two friends riding the motorcycles.

The Applicant contended that a scrutiny of WYC’s police report and the First Charge reveals several discrepancies, namely as to the –

time of the alleged offence where in WYC’s police report it was stated as 29.3.2021 at around 4.00 a.m. whereas in the First Charge it was between 29.3.2021, 11.00 p.m. and 30.3.2021, 7.00 a.m.;

identity of the criminals where WYC said there were three Malay males without stating that they were police officers; and

amount and recipient of money where WYC said he had transferred RM3,000.00 to a bank account in the name of Muhammad Azam bin Hamzam whereas in the First Charge, the amount was RM830.00 to the Applicant.

The Applicant vehemently denied the First Charge in the Representation (exhibit “HA-2”, encl. 3) by raising the issue that –

the content of WYC’s police report was doubtful and false;

the Applicant wore a full uniform as the “Penyelia Pemantau

the location of the incident was untrue and verification can be done through the CCTV located at the traffic lights and

he did not receive the money.

The Applicant submitted that, based on the narrative of the First Charge; the content of WYC’s police report and the subsequent withdrawal of the same; and the Representation, there were conflicts in material facts which justified further and in-depth investigation by R1 through the establishment of an IC.

Rule 37(5) of the 1993 Regulation stipulates that: “Procedure in disciplinary cases with a view to dismissal or reduction in rank

…

If the appropriate Disciplinary Authority is of the opinion that the case against the officer requires further clarification; the Disciplinary Authority may establish an Investigation Committee for the purpose of obtaining such further clarification.”.

The Applicant conceded that the word “may” in the above Regulation suggests that the decision whether to establish an IC was only discretionary on R1, and not mandatory. Nevertheless, as the Applicant was dismissed summarily, this shows that R1 failed to properly exercise the discretion.

Furthermore, based on the Respondents’ Affidavit in Reply (‘AIR’; encl. 28), the Respondents have apparently taken a simplistic approach by issuing the Show Cause Notice containing the charges and after considering the Representation, the Applicant was found guilty by R1 and punished with an order of dismissal.

The Applicant argued that the non-establishment of an IC constitutes a violation of the Applicant’s fundamental right to be heard and tried fairly, especially in the context of conflicting evidence as outlined above.

I have given judicious consideration of the affidavit evidence and submissions of the parties and I was persuaded by the Respondents’ submission that –

the decision to establish an IC under Regulation 35(7) of the 1993 Regulations was within the exclusive domain of R1 to decide. In Abd Razak Bin Atan v Dato’ Hj Ahmad Ragib Bin Hj Mohd Salleh (sued in his capacity as Assistant Chief Administrator to the Inspector General of Police (Disciplinary) & Ors [2010] 3 MLJ 753 at p 771, Low Hop Bing JCA in delivering the judgment of the Court of Appeal said: “[54] The necessity for further clarification from the plaintiff together with the need to appoint a committee of inquiry as well as the requirement of giving oral evidence by the plaintiff are within the domain of the disciplinary authority and not the court. The court certainly cannot substitute its own view for that of the disciplinary authority. The manner in which the decision was made by the disciplinary authority cannot be faulted. It is beyond reproach.”. In Vickneswary’s case (supra, at p 10), Zaki Azmi PCA in speaking for the Federal Court held that: “[22] ... Should the disciplinary authority consider that the case against the officer requires further clarification then it may appoint a committee of inquiry. This is a decision of the disciplinary authority, not the officer or the court. At this enquiry the officer will be allowed and if the committee shall so determine shall be required to appear before it and exculpate himself. Again this is the decision of the disciplinary authority. …”. In paragraph 12 of the AIR, ACP Roslan affirmed, among others, that – “… Selanjutnya, saya telah dinasihati oleh Peguam Persekutuan dan sesungguhnya menyatakan seperti berikut:

Pelantikan Jawatankuasa Penyiasatan adalah berdasarkan pertimbangan dan/atau budi bicara Responden Pertama di bawah Peraturan 37(5) Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993. la ditubuhkan apabila penjelasan lanjut diperlukan oleh pihak Responden Pertama dalam mempertimbangkan dan membuat keputusan tindakan tatatertib terhadap Pemohon;

Penarikan balik laporan polis (No. Repot Sri Petaling/001755/21) tidak pernah dibangkitkan oleh Pemohon di dalam Surat Representasinya. Walau apa pun, penarikan balik laporan polis tersebut tidak mewujudkan percanggahan fakta yang memerlukan penjelasan lanjut oleh pihak Responden Pertama selaku

Tiada penjelasan lanjut diperlukan oleh Responden Pertama semasa menimbangkan Surat Representasi Pemohon dan oleh itu, tiada keperluan untuk menubuhkan Jawatankuasa Penyiasatan tersebut;

Pertimbangan dalam satu tindakan tatatertib adalah berbeza daripada pertimbangan dalam tindakan jenayah. Walau apa pun, penarikan balik laporan polis tersebut telah dipertimbangkan dan bukan merupakan satu bukti konklusif yang dapat melepaskan Pemohon daripada pertuduhan-pertuduhan tatatertib terhadapnya; …”. The Applicant did not file an AIR to deny or rebut the Respondents averments; hence it must be treated as an admission by the Applicant (see Ng Hee Thong & Anor v Public Bank Bhd [2000] 2 MLJ 29). R1 was of the opinion that the case against the Applicant did not require any further clarification and therefore, there was no necessity to establish an IC. R1’s opinion was not subject to review or scrutiny by the Court (see Tay Chai Huat (supra, at p 168).

in the Representation, the Applicant did not raise the fact of the withdrawal of the police report by WYC as requiring further clarification;

the charges against the Applicant were for disciplinary offences under Regulations 4(2)(c)(ii) and 4(2)(i) of the 1993 Regulations which read as follows: “General

…

An officer shall not – …

conduct himself in any manner likely to cause a reasonable suspicion that –

…

(ii) he has used his public position for his personal advantage;

be insubordinate or conduct himself in any manner which can be rreasonably construed as beign insubordinate; and …”. The charges were not based on any criminal allegation or elements. A disciplinary proceeding is distinct and separate from a criminal proceeding. In Tay Chai Huat (supra, at p 165), the Federal Court elucidated that: “[33] An initiation of disciplinary proceedings against an officer in the public service shall be based upon the code of conduct laid down in general order 26 of the GO (Chapter D). Disciplinary action is clearly a process for dealing with job-related behaviour that does not meet the code of conduct of officers in the public service. A departmental disciplinary action is concerned not with criminal offence but with misconduct. Departmental authorities have no power to punish an employee on a criminal charge, although such authorities may penalise an employee for his misconduct on identical facts. On the facts of the instant appeal, the defendants were basically doing that, ie, the five disciplinary offences were in relation to misconduct involving corrupt practices. It must also be remembered that the proceedings before the disciplinary authority were not criminal proceedings.”. In Azman Bin Abdul Jalil v Ketua Polis Negara & Anor [2009] 3 MLJ 564 at p 587, Heliliah J said: “[27] The abovementioned cases have been referred for to the purpose of dealing with the contention of the plaintiff that he has not been given the opportunity to submit his case orally or that certain materials were not made available to him. The decisions in those cases further elucidate the position that whatever initial investigations and reports prepared by a disciplinary authority for a prima facie case are not to be equated to the conduct of criminal investigations.”;

as alluded to earlier, in subparagraphs 12(a) - (d) of the Respondents’ AIR, ACP Roslan has explained, among others, that R1 has considered the fact that WYC had withdrawn the police report, however this was found not to be conclusive proof which can exculpate the Applicant from the charges against him. The Applicant did not raise any factual contradictions arising from the withdrawal of the police report, and nor did he demonstrate how the report alone was sufficient or compelling to disprove the misconduct alleged against him in the charges; and

R1 had fulfilled all requirements under Part V of the 1993 Regulations on “Disciplinary Procedure” and hence, the decision was made in accordance with the 1993 Regulations (see Regulations 34, 35, 37 and 38 and paragraphs 19 – 21 of the Respondents’ Written Submission (encl. 36) on the process of disciplinary action leading to the issuance of the Impugned Decision by R1). Suffice to note at this juncture that the source of power of the disciplinary authority and the Applicant’s category as the subject of disciplinary action were as provided in the Suratcara Perwakilan Fungsi-Fungsi, Kuasa-Kuasa, Tugas-Tugas dan Tanggungjawab-Tanggungjawab Tertentu [P.U.(B) 441/2000]. A disciplinary investigation was conducted against the Applicant consequent to a report received in relation to his conduct and action which contravened the code of conduct under the 1993 Regulations. The result of the investigation was given to ACP Ng Siew Hiang (‘ACP Ng’) as the Disciplinary Authority who has the power to impose a punishment other than dismissal or reduction in rank pursuant to P.U.(B) 441/2000 for determination of the nature of the disciplinary offence under Regulation 35(1)(b) of the 1993 Regulations. On 21.2.2022, after considering the disciplinary offence report complained of, ACP Ng determined that the disciplinary offence alleged against the Applicant was of a nature warranting dismissal or reduction in rank pursuant to Regulation 37 of the 1993 Regulations. Based on the affidavit evidence, which was not controverted by the Applicant, R1 had decided the disciplinary action against the Applicant based on the report of the disciplinary investigation conducted in relation to the Applicant’s misconduct; the recommendation by the relevant Disciplinary Authority that the Applicant’s misconduct falls within the offence that warrants the punishment of dismissal or reduction in rank; all available information which supported a prima facie case of misconduct by the Applicant; and the Representation. Therefore, there was no fundamental procedural flaw on the part of the Respondents that warrants this Court’s intervention. A final point which needs to be addressed is the Applicant’s appeal letter dated 14.9.2023 (see exhibit “HA-5” in the AIS, encl. 3 and the Respondent’s refutation in paragraph 13, encl. 28). The appeal letter has no bearing in the disciplinary action process because, unlike other services such as the Education Service, there is no appeal mechanism for members of the police force (compare with Regulation 14 of the Education Service Disciplinary Board Regulations 1994 [P.U.(A) 458/1994] on “Procedure of appeal”). Moreover, the appeal letter was addressed to the Inspector-General of Police, who was not a decision-maker in relation to the Impugned Decision. R1 had become functus officio upon issuing the Impugned Decision, and the proper recourse available to the Applicant was to apply for judicial review.

It follows from the above reasoning that the 1st Ground must be answered in the negative. 2nd Ground: Whether the Applicant was denied a full opportunity of stating his case before he was dismissed by not being given the right to give oral evidence

The Applicant referred to Regulation 34(1) of the 1993 Regulations which states that: “34. (1) Subject to subregulation (2), no officer shall be dismissed or reduced in rank in any disciplinary proceedings under this Part unless he has first been informed in writing of the grounds on which such action is proposed and he has been afforded a reasonable opportunity of being heard.”.

The Applicant relied on the principles relating to the right to be heard in a disciplinary action as decided by the Federal Court in Vijayarao a/l Sepermaniam v Suruhanjaya Perkhidmatan Awam Malaysia [2018] 12 MLJ 17 as follows: “[57] The general rule of the right to be heard more popularly known by its Latin version of as ‘audi alteram partem’ (hear the other side), requires that a disciplinary decision be the person directly affected by given a fair opportunity both to state his case and to know and answer the case of the other side; otherwise the disciplinary decision cannot stand. Any decision reached in contravention of this rule will be void for being ultra vires art 135(2) of the Federal Constitution. … [59] What amounts to a reasonable opportunity to be heard under art 135(2) of the Federal Constitution must be determined by the nature of the matter in issue. Arifin Zakaria CJ in Tay Chai Huat had expressed his observation that ‘… if the right to be heard under art 135(2) is to have any real meaning, the circumstances of each case must be fully considered before the court could come to the conclusion whether or not such right has been properly observed by the disciplinary authority’. … [64] In short, both decisions in Utra Badi and Vickneswary affirmed the rule that the right to be heard under art 135(2) of the Federal Constitution did not require the officer concerned be given an oral hearing. … [68] This court in Chai Kok Choi had, inter alia, stated that an oral hearing might have been necessary if the officer concerned had not admitted committing the offence he was charged with; but if the officer had admitted the offence in reply to the show-cause letter, then oral hearing would no longer be necessary. Cases may arise where, in the light of peculiar facts, an oral hearing is necessary and appropriate and the failure or refusal to afford such an oral hearing may result in the officer being prejudiced and the decision arrived at being declared a nullity or quashed (see also: Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis & Ors [1995] 1 MLJ 308 (CA)). … [70] In that case (Yusof bin Sudin), the majority decision held that ‘when there was a request by the public officer for an oral hearing after he had denied all the charges against him by furnishing credible evidence in his representation letter, then by virtue of General Order 26(5) of the 1980 (GO), the officer should be afforded an oral hearing to satisfy the requirement of art 135(2) of the Federal Constitution which states that a reasonable opportunity of being heard be given before any member of such a service was dismissed or reduced in rank’. [71] In short, ‘a reasonable opportunity of being heard’ or ‘a right to be heard’ as required under art 135(2) of the Federal Constitution may include an oral hearing, particularly when the officer concerned had requested for it after he had denied all the charges and he seemed to have exculpated himself of the charges against him.”.

The Applicant relied on the decisions by the apex court in Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi A/L K Perumal [2001] 2 MLJ 417 case and Yusof bin Sudin v Suruhanjaya Perkhidmatan Polis & Anor [2011] 5 MLJ 465 in submitting that a full opportunity of stating the Applicant’s case must encompass the right to give oral evidence. This was especially crucial given the alleged existence of a significant conflict of facts and that the establishment of an IC was warranted to ensure the Applicant’s fundamental rights were protected.

R1’s action in making a decision based on only two pages of explanation in the Representation was said to be akin to a tribunal giving summary judgment, even though there were issues to be tried due to the conflict of facts.

In this regard, this Court had the opportunity of delving into the issue of the right to an oral hearing in Mohamad Sukry Tamsuri v. ACP Ng Siew Hiang & Ors [2026] MLRHU 989 (an appeal is pending at the Court of Appeal against the decision of this Court) where the apex court’s decisions in Public Services Commission Malaysia & Anor v Vickneswary a/p RM Santhivelu (substituting M Senthivelu a/l R Marimuthu, deceased) [2008] 6 MLJ 1 and Vijayarao’s case (supra) were discussed. This Court held, inter alia, that: “41. Applying the legal principles as elucidated in Vijayarao’s case, particularly in paragraphs 71 and 79 of the judgment, to the instant application, in my opinion, not only must there be a request by the Applicant for an oral hearing after he had denied all the charges, but it must also appear that he has exculpated himself by furnishing credible evidence in his Representation Letter.

Based on the Representation Letter, I agree with the FC’s submission that the Applicant has not exculpated himself by furnishing credible evidence in the Representation Letter. Therefore, the Applicant has not established a right to be heard which includes an oral hearing.

The Applicant was given a full opportunity of stating his case by way of written representation which, in the circumstances of this case, was reasonable and sufficient.”.

I have perused the Representation and the pertinent part is re-produced below for ease of reference: “3. Untuk maklumat pihak Tuan, pada pertuduhan pertama saya menafikan sekeras-kerasnya pertuduhan tersebut kepada saya bahawanya saya telah menerima wang berjumlah RM 830.00 dari pengadu melalui L/KPL 193362 Mohd Soffy Bin Ismail bagi menutup kesalahan yang dilakukan oleh pengadu dan temannya. Pengadu juga dalam repot yang telah dibuat menyatakan saya ada mengugutnya dengan menggunakan sebilah pisau yang diletakkan di lehernya walhal sebagai anggota polis saya tidak dibekalkan pisau semasa bertugas. Pengadu juga telah membuat tuduhan palsu dengan menyatakan saya berpakaian T-shirt bewarna putih semasa kejadian sedangkan saya sedang bertugas dalam keadaan berunifom penuh sebagai Team Pemantau Covid-19 (Team 5 Charlie) dari jam 2300hrs Tarikh 29.03.2021 hingga 0700hrs Tarikh 30.03.2021. Untuk makluman pihak Tuan bahawa lokasi kejadian seperti yang dinyatakan oleh pengadu penama Wong Yen Chun No. Kad Pengenalan: 811227-05-5399 di dalam repot yang bertempat di hadapan lampu isyarat BHP Sri Petaling, Jalan Merah Cagar, Kuala Lumpur adalah tidak benar sama sekali. Sekiranya benar pertuduhan pengadu mengenai lokasi kejadian berlaku semakkan boleh dilakukan melalui CCTV yang berada di lampu isyarat dan di BHP Sri Petaling tersebut.

Pada pertuduhan kedua, saya dikatakan tidak melapor kepada Pusat Kawalan Daerah kerana pada ketika itu pengadu dan temannya telah dibawa ke Balai, pengadu telah membuat provokasi terhadap saya dan merayu agar tidak menangkapnya serta temannya. Setelah pengadu diperiksa melalui sistem, saya meminta pengadu untuk bertenang dan beredar setelah pengadu bebas dari pengaruh alcohol kerana pada waktu tersebut juga Ketua Polis Balai mengarahkan saya dengan segera untuk memantau kelab malam di sekitar Kuchai Maju yang dikatakan membuka premis sewaktu Perintah kawalan pergerakan. …

Saya memohon maaf di atas kecuaian saya terhadap pertuduhan pertama, pertuduhan kedua, pertuduhan ketiga, pertuduhan keempat, pertuduhan kelima dan saya berjanji tidak akan mengulangi kesilapan yang sama pada masa akan datang. Saya juga berasa sangat menyesal dan tertekan selepas kejadian ini kerana sering memikirkan kesan yang akan terjadi terhadap kerjaya, keluarga dan diri saya sendiri. Saya juga berharap agar pihak tuan dapat mengurangkan tindakan Tatatertib terhadap saya agar saya dapat menebus kembali kesilapan saya kerana saya masih berminat dan menyayangi kerjaya saya sekarang.”.

Evidently, the Applicant –

was able to traverse the charges and did not request for any documentary evidence for clarification or for the purpose of preparing his written representation;

failed to furnish credible evidence to exculpate himself from the charges. He vehemently denied the First Charge and raised a bare denial by pointing out discrepancies in the details provided by WYC in the police report. No credible evidence was adduced to demonstrate that he was not present at the said location or that he had not received the money. This gave rise to reasonable suspicion that he had used his public position for personal advantage. As for the Second Charge, the Applicant simply provided an explanation as to why he did not report to Pusat Kawalan Daerah without addressing the essence of the Second Charge i.e. to lodge a police report on the arrest made. This deflection demonstrates that the Applicant had wilfully committed insubordination to avoid reporting what transpired during WYC’s arrest;

did not request for an oral hearing to be conducted; and

apologised for his “kecuaian” in respect of all five charges which were brought against him and he promised not to repeat the same mistake in future.

In the circumstances, I was satisfied that the Applicant was afforded the right to be heard vide the Representation and thus the requirement under Regulation 34(1) of the 1993 Regulations was fulfilled.

The 2nd Ground was thus similarly answered in the negative. 3rd Ground: Whether the punishment imposed on the Applicant was disproportionate to the offence and did not warrant the punishment of dismissal

The Applicant essentially contended that the punishment imposed on the Applicant was disproportionate to the disciplinary offences committed considering the Applicant’s years of service in R2 and the fact that WYC had withdrawn his police report.

However, ACP Roslan had averred (see paragraphs 7, 8 and 12(g), encl. 28), and to which there was no rebuttal by the Applicant, that R1 had imposed the punishment of dismissal for the First Charge and Second Charge because R1 was of the view that the disciplinary offences were very serious. In particular, –

as for the First Charge, the Applicant was aware that, as a police officer, he was required at all times to uphold integrity while serving in a position entrusted with the responsibility of combating crime, and to refrain from acting in any manner that may give rise to reasonable suspicion that he has used his public position for personal gain; and

as regards the Second Charge, it was a serious offence in the view of R2 as the principal enforcement agency in Malaysia vested with special powers to arrest, search, seize and inspect in the course of investigations. Pursuant to paragraph 33.1.38, Perintah Tetap Ketua Polis Negara A110, the Applicant was aware of the mandatory requirement to lodge a police report for every arrest and inspection to ensure legality, accountability and transparency as well as to safeguard against abuse of power. Such report also serves as official evidence for verification should any issue arise concerning the arrest or inspection conducted.

The punishment of dismissal imposed upon the Applicant appears to be commensurate with the gravity and seriousness of the Applicant’s disciplinary misconduct under the First Charge and Second Charge.

In any event, R1 as the disciplinary authority was in the best position to judge the seriousness of the Applicant’s misconduct and this Court should not intervene with the punishment imposed by R1.

In Mohamad Sukry Bin Tamsuri (supra), the applicant similarly argued that the punishment imposed against him was disproportionate and did not warrant the punishment of dismissal. However, I held that the second respondent as the disciplinary authority was the best judge of the seriousness of the applicant’s misconduct and the punishment to be imposed (see Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153).

In the premises, I was unable to agree with the Applicant’s submission to find that the punishment imposed on him was disproportionate to the offence and did not warrant the punishment of dismissal.

Based on the aforesaid reasons, the Court finds that the Applicant has not established the grounds for judicial review relied upon and therefore, the Applicant’s application in encl. 26 was dismissed with no order as to costs. DATED: 29.5.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Applicant: Khairul Aiman bin Kamar Rozaman Messrs. Mohamed Noor, Amran & Yoon Solicitors for the Respondents: Ainna Sherina binti