JAMIL SHAM BIN MD YUSOF v 1. ) Suruhanjaya Perkhidmatan Awam Malaysia (BA-25-14-02/2024)

KETUA PENGARAH JABATAN

PENGERUSI SURUHANJAYA

KERAJAAN MALAYSIA RESPONDENTS

This is an application for judicial review by the Applicant against the decision of the Second Respondent in imposing a punishment of reduction of salary for three salary movements, for a period of 36 months, effective 25.09.2023 (“Impugned Decision”).

The reliefs sought by the Applicant are reproduced below: “(1) Bahawa Pemohon diberi kebenaran untuk memohon satu perintah Certiorari untuk membatalkan keputusan Responden-Responden bertarikh 12.10.2023 yang mengenakan hukuman turun gaji sebanyak tiga (3) pergerakan gaji bagi tempoh 36 bulan berkuatkuasa mulai 25.9.2023 ke atas Pemohon;

Selanjutnya dan/atau secara alternatif, bahawa Pemohon diberi kebenaran untuk memohon deklarasi seperti berikut:-

Bahawa hukuman turun gaji bertarikh 12.10.2023 yang dibuat oleh Responden-Responden ke atas Pemohon adalah tidak sah dan terbatal;

(ii) Bahawa Pemohon berhak untuk menerima semula segala pembayaran gaji, elaun, emolumen, pampasan pencen, pencen bulanan dan faedah lain yang Pemohon layak terima mengikut skim perkhidmatannya serta peluang kenaikan pangkat dan kekananan;

Selanjutnya dan/atau secara alternatif, bahawa Pemohon diberi kebenaran untuk memohon perintah mandamus seperti berikut:-

Bahawa Responden-Responden menarik balik dan/atau membatalkan hukuman turun gaji bertarikh 12.10.2023 terhadap Pemohon;

(iii) Bahawa Responden-Responden membayar segala pembayaran gaji, elaun, emolumen dan faedah lain yang Pemohon sepatutnya menerima dari tarikh hukuman turun gaji berkuatkuasa mulai 25.9.2023;

Ganti rugi;

Kos; dan

Lain-lain relif yang difikirkan patut dan suai manfaat oleh Mahkamah Yang Mulia ini.” Factual Background

The Applicant served as a Superintendent of Customs with grade WK41 in the Marine Branch, Enforcement Division, Central Region (Unit II of Selangor) of the Royal Malaysian Customs Department. The Applicant had been in service since 1990.

The Applicant received a letter dated 01.08.2023 from his department where a letter from the Second Respondent’s office dated 11.07.2023 was enclosed. The said letter stated that the Chairman of the Second Respondent (“Chairman”) had received a report informing that the Applicant had committed a disciplinary offence under the Public Officers (Conduct and Discipline) Regulations 1993 (“1993 Regulations”) and after considering all information received, the Chairman determined that the Applicant ought to be subjected to regulation 37 of the 1993 Regulations based on the following charge (“Charge”): “Bahawa tuan, Penguasa Kastam Gred WK41 semasa bertugas di Cawangan Marin, Bahagian Penguatkuasaan, Jabatan Kastam Diraja Malaysia Zon Tengah (Unit II, Selangor) bersama-sama dengan Ridzuan bin Ali, Pegawai Kastam Kanan Gred WK22 telah menjual sebuah bot pancung pada 20.5.2019 di Pangkalan Kastam Marin Pelabuhan Klang yang merupakan ekshibit bagi kes jenayah yang telah dilucuthak kepada Jabatan Kastam Diraja Malaysia bertentangan dengan surat Kelulusan Pelupusan Barang Lucuthak Kastam bertarikh 23.10.2018. Perbuatan tuan adalah bertentangan dengan Perenggan 2

Tetap Penguatkuasaan Bilangan 43 Pelupusan Barang Sitaan dan Lucuthak bertarikh 23.3.2016 seperti berikut:- “2. Semua barang yang dilucuthak hendaklah dilupuskan mengikut arahan KPK seperti di bawah s.127(2) AK, s.65(3) AE, s.118(3) ACBP dan perundangan lain yang dikuatkuasa oleh JKDM tertakluk kepada dasar dan kawalan yang dikeluarkan oleh Menteri Kewangan.” Perbuatan tuan ini boleh diertikan sebagai tidak jujur dan tidak amanah dan ingkar perintah atau berkelakuan dengan apa-apa cara yang boleh ditafsirkan dengan munasabah sebagai ingkar perintah iaitu bertentangan dengan Peraturan 4(2)(f) dan 4(2)(i) Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 seperti berikut:- “Peraturan 4(2) Seseorang pegawai tidak boleh –

tidak jujur dan tidak amanah; dan

ingkar perintah atau berkelakuan dengan apa-apa cara yang boleh ditafsirkan dengan munasabah sebagai ingkar perintah.” Jika tuan didapati bersalah atas pertuduhan di atas, tuan boleh dihukum mengikut Peraturan 38, Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib)

1993.”

The Applicant was required to make his written representation containing the grounds to exculpate himself within 21 days from the date of receipt of the letter, failing which, the Applicant would be considered as not intending to defend himself and the Second Respondent would proceed to consider the matter based on existing evidence.

The Applicant averred in his Affidavit in Support that despite difficulties in preparing the representation due to his request made orally through one Zaini bin Taib, Assistant Director of Customs being unheeded and documents such as CCTV footage and recorded statements of the witnesses not furnished to him, he prepared a written representation dated 23.08.2023 based on information and facts within his knowledge (“Written Representation”). The Written Representation was made on the 24.08.2023. Principles relating to Judicial Review

The principle pertaining to Judicial Review is trite. The foremost authority to be referred to is Federal Court case of R Rama Chandra v Industrial Court of Malaysia & Anor [1997] 1 CLJ 147. The Court hearing an application for Judicial Review is allowed to scrutinize not only the decision-making process but also for substance, as to whether they are tainted by illegality, irrationality or Wednesbury unreasonableness, procedural impropriety and also possibly proportionality.

However in Petroliam Nasional Bhd v Nik Ramli Nik Hassan [2003] 4 CLJ 625, the Federal Court observed that the Rama Chandran (supra) approach should be exercised carefully and depending on the factual matrix of the case. Subsequently the same apex court in Ranjit Kaur S Gopal Singh v Hotel Excelsior

(M) Sdn. Bhd. [2010] 8 CLJ 629 held a similar view but relying on Kumpulan Perangsang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11, the Federal Court found that cases involving issue of public policy, national interest, public safety or national security are not amenable to the approach taken in Rama Chandra (supra).

In respect of Judicial Review against the decision of the disciplinary bodies, the Court is not concerned on findings of fact but rather when there is a fundamental procedural flaw, and the power of the Court is limited. In Mohamad Adri’ Amar Mohamad v Suruhanjaya Pasukan Polis and anor [2023] 1 LNS 2130 the Court of Appeal in referring to the Federal Court case of Kerajaan Malaysia & Ors v. Tay Chai Huat [2012] 3 CLJ 577 has this to say: “[20] It is trite that in cases of this nature, the Court will not, via the process of Judicial Review, intervene on the substantive or qualitative aspects of the charges of misconduct. The reason for such non-intervention is that these are matters which are more suited for the fact-finding jurisdiction of the disciplinary bodies themselves. But on the other hand, the Court will intervene where there are procedural flaws or missteps or breaches of the rules of natural justice. [21] Thus, if the Court is convinced that the disciplinary authority did not act fairly in terms of the procedural aspects, then the Court will intervene. In Kerajaan Malaysia & Ors v. Tay Chai Huat [2012] 3 CLJ 577 at 597-598 the Federal Court held that 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.” [Emphasis added]

Only in exceptional circumstances, for instance, where the exculpatory statement is not contradicted by contemporaneous evidence and the charge proffered was not supported by any evidence, the Court will intervene in the evaluation of evidence before the disciplinary board, as transpired in the Court of Appeal case of Ang Seng Wan v Suruhanjaya Polis Di Raja Malaysia & Anor [2002] 1 CLJ 493. The duty of the Court in an application for judicial review against decision of the disciplinary authority depends very much on the factual matrix of the case. Applicant’s Submissions

The Applicant contended that the Malaysian Anti Corruption Commission (“MACC”) investigation in September 2020 was not pursued further, and the delayed Charge against him was unjustified. The Applicant highlighted that he continued working and even received annual increments, which he viewed as condonation by the Respondents. The Applicant claimed he was prejudiced in preparing his Written Representation as his oral request for reports and crucial documents, including CCTV footage and witness statements, was denied, amounting to a denial of a fair hearing. The Applicant also argued that the Second Respondent failed to consider evidence showing that other officers, not him, liaised with Fast Trade Resources Sdn Bhd (“FTRSB”) regarding the disposal of the speedboats, while his presence at the scene was only to supervise cleanliness.

The Applicant exhibited the following Certificates of Destruction in his Affidavit in Support:

Certificate of Destruction dated 23.10.2018 indicated that 2 speedboats had been destroyed by way of being cut into small pieces (dimusnahkan dengan cara dipotong kecil) by one Mohd Alif bin Omar, Assistant Superintendent of Customs (Pembantu Penguasa Kastam) in the presence of Ahmad Mawardi, on 16.05.2019 at Pangkalan Marin, Pelabuhan Klang, Selangor;

(ii) Certificate of Destruction dated 17.05.2019 indicated that 1 wooden boat (bot kayu) had been destroyed by way of being cut into small pieces by one Johari bin Jalil, Senior Assistant Superintendent of Customs (Pembantu Penguasa Kastam Kanan) in the presence of Ahmad Mawardi, on 16.05.2019 at Pangkalan Marin, Pelabuhan Klang, Selangor.

The Applicant relied on the FTRSB Director’s statutory declaration, which showed that the disposal of the speedboat engines was initiated by Hj Ishak for his personal benefit. He argued that the three speedboats were disposed of in compliance with Standing Order No. 43, and the Applicant derived no personal gain. The Applicant further claimed unfair treatment, as no action was taken against Hj Ishak, who had retired, nor against the issuer of the Certificates of Destruction, while the Applicant alone was charged.

On the issue of defective charge, the Applicant averred that the conduct of selling forfeited speedboat is neither done by, nor within the knowledge of the Applicant being the subordinate of Hj Ishak who, in turn, was the person that liaised with FTRSB.

The Applicant contended he was also aggrieved with the fact that he had not been informed by the Respondents of his rights to appeal against the Impugned Decision, and that there was no evidence or reason given to the Applicant.

The other ground was on the issue of proportionality. The Applicant averred that with the contribution he had given during the tenure of his service, the punishment he received from the Impugned Decision was too harsh and unbearable not only financially but emotionally as he had been subject to humiliation and criticization from his neighbours and colleagues. Respondents’ Submissions

In response, the Respondents averred that that the Chairman of Managerial Group Disciplinary Board (No. 2) after considering the disciplinary report of the Applicant, made a determination that action ought to be taken against the Applicant with a view of dismissal or reduction in rank, and referred the matter to the Second Respondent.

It appeared to the Chairman of Second Respondent after considered all available information that there existed a prima facie case and the Charge was framed on 06.07.2023. On 25.09.2023, after considering the Written Representation of the Applicant, the Second Respondent found that the said Written Representation as a whole did not exculpate the Applicant.

The Respondents argued that the Impugned Decision was based on evidence that the Applicant colluded with another officer to sell a speedboat to the public on 20.05.2019, contrary to the 2018 Approval, supported by a witness who recorded the incident. The Respondents maintained that the Charge concerned the unauthorized sale, not the disposal process. The Respondents further contended there was no unfair treatment as procedures complied with the 1993 Regulations, the decision was final with no appeal required, and no time limit applied to disciplinary action. They also emphasized that disciplinary proceedings are separate from criminal investigations and that the Applicant’s work performance was irrelevant to the Charge.

The facts before this court is that the Applicant in the instant application was charged for having committed a disciplinary offence contrary to paragraph 4(2)(f) of the 1993 Regulations which provides that a member of public service shall not be dishonest or untrustworthy, and to paragraph 4(2)(i) of the 1993 Regulation for being insubordinate or conduct himself in any manner which can be reasonably construed as being insubordinate.

In light of the conduct of the Applicant being determined as one which is of the nature that warrants a punishment of dismissal or reduction in rank, and the Chairman of the “appropriate Disciplinary Authority” (see subregulation 37(1) of the 1993 Regulations) having found that there existed a prima facie case, the Charge was proffered against the Applicant.

The Applicant before this Court served under the Royal Malaysian Customs Department as a Superintendent of Customs with grade WK41. He is therefore under the jurisdiction of Public Services Commission by virtue of Article 139 of the Federal Constitution. The jurisdiction of the Public Services Commission is subjected to Article 144 of the Federal Constitution.

The 1993 Regulations where the Charge was proffered, defined “Disciplinary Authority” in regulation 3 as: “Disciplinary Authority” means the appropriate Service Commission whose jurisdiction extends to the service of which the said officer is a member in accordance with the provisions of Part X of the Federal Constitution, and includes an officer or a board of officers in the public service by whom the Commission's function relating to the disciplinary control is exercisable in pursuance of Clause

(5A), (5B), (6) or (6A) of Article 144 of the Federal Constitution.

Therefore, the appropriate Disciplinary Authority which had jurisdiction over the Applicant is the Public Services Commission, the Second Respondent in the instant case. The Charge

The Charge was sent to the Applicant pursuant to regulation 37 of the 1993 Regulations. Sub-regulations 37(3) and 37(4) of the 1993 Regulations provided how the Second Respondent ought to deal with upon receiving the Written Representation from the Applicant: “(3) If, after considering the representation made pursuant to subregulation (1), the appropriate Disciplinary Authority is of the opinion that the disciplinary offence committed by the officer does not warrant a punishment of dismissal or reduction in rank, the appropriate Disciplinary Authority may impose upon the officer any of the lesser punishments specified in regulation 38 as it deems appropriate.

If the officer does not make any representation within the period specified in paragraph (2)(b), or if the officer makes such a representation but the representation does not exculpate himself to the satisfaction of the appropriate Disciplinary Authority, the Disciplinary Authority shall then proceed to consider and decide on the dismissal or reduction in rank of the officer.”

The Applicant argued that the Charge lacked reference to a prima facie finding and no affidavit explained why dismissal or demotion was warranted. This Court observed that this issue was not pleaded in the Applicant’s Statement and was not part of the decision challenged, hence this Court finds this issue to be irrelevant. Even if considered, the Applicant cited no legal authority requiring such reference in the Charge. Moreover, the Applicant was not prejudiced since he was able to prepare and submit his Written Representation. This Court found the complaint baseless, noting the issue was belatedly raised and inadequately substantiated, and therefore it must fail.

Next, the Second Respondent found that the disciplinary offence committed by the Applicant pursuant to the Charge did not warrant a punishment of dismissal or reduction in rank. Hence, a punishment of reduction of salary for up to three salary movements for a period of 36 months.

It is noted that regulation 41 of the 1993 Regulations provide for the extent of punishment the Second Respondent may impose. It stipulated that the reduction of salary shall not exceed three salary movements and the duration shall not be less than 12 months but shall not be more than 36 months. The punishment imposed in the Impugned Decision is therefore within the jurisdiction of the Second Respondent. Right to appeal

On the right to appeal, it was the case of the Applicant that he was not informed of his right to appeal and therefore his fundamental rights have been infringed.

As mentioned earlier, the Applicant is a Superintendent of Customs with grade WK41. For all intent and purpose, the Applicant is a member of “managerial and professional group”, as opposed to “support group”. This finding is not without support. In the Affidavit in Reply by the Second Respondent, it was the Chairman of Disciplinary Board for Managerial Group (No. 2) who had to consider and determine if the disciplinary offence the Applicant was complained of having committed is of a nature which warrants a punishment of dismissal or reduction in rank.

31.

Instead, regulation 5 of the DB Regulations expressly stated that the power to dismiss or reduce in rank should be exercised by the Public Services Commission. It follows that the disciplinary matter of the Applicant was appropriately before the Second Respondent directly. Incidentally, the DB Regulations did not provide for any avenue for appeal against the Impugned Decision.

In this regard, the Federal Court in Vijayarao Sepermaniam v Suruhanjaya Perkhidmatan Awam, Malaysia [2018] 9 CLJ 141 stated: “[42] The disciplinary proceeding against the appellant, which resulted in his dismissal from the public service, was initiated and conducted by the PSC in its capacity as a Disciplinary Board by virtue of its powers under reg. 5(1) of the PSDB Regulations. It has the necessary jurisdiction to do so. There is nothing improper in law. This is because the PSC is the only body or authority empowered to deal with matters involving disciplinary proceedings against an officer in the Managerial and Professional Group with a view to dismissal or reduction in rank. There is no avenue for appeal provided for in the PSDB Regulations. If the appellant is aggrieved with the decision of the PSC in dismissing him, he has the liberty to apply for judicial review at the High Court as what had been done in the present case. [43] To conclude on this issue, we agree with the submission of learned SFC that the reliance by the appellant solely on art. 144(5B)(ii) of the Federal Constitution is not correct. It was based on a misconstrued interpretation of that provision. We are of the view that the appellant was never denied the right to appeal in the present case as the powers and functions provided for under art. 144(5A) and (5B) of the Federal Constitution read together with the provisions of and Schedule to the PSDB Regulations did not provide for such powers, to receive, hear, consider and decide on any appeal. Therefore we answer question 1 in the negative, ie, that on the facts of the present case, the appellant had no constitutional right to appeal to the Appeal Board against the decision of the PSC under art. 144(5B)(ii) of the Federal Constitution.”

At any rate, the Applicant was not deprived of his right. The Applicant had, as he did now, the opportunity to have the Impugned Decision reviewed by this Court by way of judicial review. This issue is therefore a non-starter (see Saiful Bahari bin Yunus v Dato’ Jamil bin Rakon (Setiausaha Suruhanjaya Pasukan Polis) & Ors [2023] 3 MLJ 645, CA at para [20]). Failure on the Second Respondent to consider the Written Representation

The Second Respondent in considering the Written Representation must take into account the provisions of sub-regulations 37(3) and 37(4) of the 1993 Regulations. It is therefore incumbent upon the Applicant to satisfy the Second Respondent in order to exculpate himself, particularly from the disciplinary offences he was charged upon, from his Written Representation.

This Court analysed the Charge, which was based on paragraphs 4(2)(f) and 4(2)(i) of the 1993 Regulations. The crux of the Charge was that the Applicant together with one Ridzuan bin Ali, Senior Customs Officer grade WK22 had sold the speedboat, in contravention of the 2018 Approval which as stated earlier, the Forfeited Goods Disposal Approval dated 23.10.2018 and was in contravention of para. 2 of Standing Order No. 43.

A close perusal of the Written Representation would reveal that the Applicant had not answered the Charge. The Written Representation bears the following features:

there is no mention that the Applicant was prevented from presenting an effective representation on the ground that he was not furnished with sufficient documents. Similarly, there was no complaint from the Applicant that he was not aware of the contents of the 2018 Approval;

(ii) there is no mention that the Applicant had made an oral request for the relevant documents which was unheeded;

(iii) despite crying foul that the Charge was defective, the Applicant appeared to be able to proceed to elaborate further on what had transpired, and was able to produce the Certificate of Destructions as well as FTRSB Directors’ statutory declaration in an attempt to exculpate himself. The case of Esso Production Inc v Maimunah Ahmad & Anor [2002] 2 MLJ 458, CA renders no assistance as based on the fact of that case, it was obvious that the charge lacked material particulars such as date, time and place. This case was readily distinguishable from the instant case, as the Charge was based on paragraphs 4(2)(f) and 4(2)(i) of the 1993 Regulations;

(iv) Furthermore, despite the fact that the name of Ridzuan bin Ali, Senior Customs Officer grade WK22 was mentioned in the Charge, the Written Representation of the Applicant made no mention of this particular individual. If this particular individual did not exist or had no role at all, logic would require the Applicant to at least mention in passing, directing the attention of Second Respondent to this issue. The Applicant did nothing of such.

The Applicant’s Written Representation focused on the disposal of the speedboats, producing documents such as FTRSB’s appointment letter, Certificates of Destruction, Hj Ishak’s receipt for two engines, and the FTRSB Director’s statutory declaration. However, his defence was inconsistent and unclear. The documents contradicted each other, particularly between the Certificates of Destruction and Hj Ishak’s receipt. While the Applicant denied the Charge, the Applicant failed to clearly explain why he should be exonerated. This Court found his representations contradictory, murky, and insufficient to absolve him from the core allegation of breaching the 2018 Approval and Standing Order No. 43.

In any event, the 2018 Approval was exhibited on behalf of the Respondents. The perusal of the 2018 Approval would reveal that the method of disposal for 2 units of speedboats was by way of destruction in accordance with the manner stipulated in the Standing Order No. 43 within 1 month from the date of the 2018 Approval which is 23.10.2018.

The Certificate of Destruction enclosed in the Written Representation by the Applicant revealed that 2 units of speedboat had been destroyed. It referred to the same investigation paper No. “16-395”. On the other hand, the Hj Ishak’s receipt acknowledgement of the two also referred to the same investigation paper.

A reading of both the documents would reveal something different. The Certificate of Destruction referred to the whole speedboat. The receipt acknowledgement signed by Hj Ishak on the other hand referred to only the engine part. This Court is in no position to resolve the conflict between the two documents. However, based on the Written Representation alone, the Applicant cannot be said to have successfully established a coherent defence in denying the Charge.

It is trite that in an application for judicial review, this Court is confined to the material available before the Second Respondent (see Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Another Appeal [1997] 1 CLJ 665, CA, per Siti Norma Yaakob JCA (as her Ladyship then was) at p. 752, row g). The Written Representation is the material that had been placed before the Second Respondent in making the Impugned Decision. The representations of the Applicant are therefore crucial. Based on the foregoing analysis, this Court finds that the Applicant’s Written Representation failed to absolve him from the Charge. The right to documents

It was argued on behalf of the Applicant that he ought to be supplied with the relevant documents. The case of Vijayarao Sepermaniam (supra); Chai Kok Choi v Ketua Polis Negara & Ors [2008] 1 MLJ 725, FC; B Surinder Singh Kanda v The Government of The Federation of Malaya [1962] 1 MLJ 169, PC and Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v Mohd Sobri bin Che Hassan [2020] 4 MLJ 620, FC were cited in support.

In this regard, in the Written Representation, at no occasion had the Applicant made any application in order for himself to be furnished with the relevant documents. There is also no mention that the Applicant is unable to prepare his representation effectively without the documents. Instead, the Applicant went on to explain, without any iota of indication that he is unsure of what he was charged, what had transpired over the speedboat mentioned in the Charge.

It is not sufficient for the Court to merely look at the fact that no document was given. The Applicant has to fulfil more elements. Reference could be made to the case of Noor Bhayzura Dali v Suruhanjaya Perkhidmatan Awam Malaysia & Anor [2021] 6 MLJ 479], [2021] 10 CLJ 860, which found inter alia: “[19] In respect of the information that the appellant says that was not disclosed to her, it is not clear from the affidavit and argument of counsel in what manner the non-disclosure of the said information adversely affected the preparation of her answers to the charge and resulted in breach of natural justice. In any event, before submitting her written representation, the appellant never requested for such information to be furnished to her. …”

Even if taken as true that the Applicant had made a request orally, it could not be sufficient for the Applicant to merely make such request to one Zaini bin Taib, Assistant Director of Customs. It remains questionable whether the said Zaini bin Taib had the authority to receive any request and to convey such request to the Second Respondent. The facts revealed that the letter containing the Charge was sent by the Secretary of the Second Respondent to the Applicant through the First Respondent. There was a cover letter attaching such letter, and it was sent to the Applicant through the Head of Division of Customs, under the letterhead of the Human Resource Division signed by Superintendent of Customs, Wan Anis Hawa binti Wan Mokhtar. The Applicant did not explain the role of Zaini bin Taib in the context of disciplinary proceedings against him.

At any rate, whether the Applicant had been deprived of the opportunity to submit an effective representative or otherwise depended very much on the factual matrix of the case. In this regard, the Court of Appeal decision in Raja Abdul Malek Muzaffar Shah Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Pollis & Ors [1995] 1 CLJ 619 is pertinent: “Second, the question whether one accused of misconduct has been treated with procedural fairness is a mixed question of law and fact. It is a question of law as to what the fundamentals of fair procedure are: and this is fairly well worked out in the decided cases. It is a question of fact and of degree as to whether on the facts of a particular case these fundamentals were duly complied with. The point here is that whilst the plaintiff was given an opportunity to rebut the material in the charges levelled against him, (as he conceded) he was given no opportunity to deal with the "serta lain-lain maklumat yang berkenaan" because no notice whatsoever was given of this material until after the dismissal became effective. In my judgment, the so-called admission, even assuming for a moment that it is indeed an admission, is of no consequence whatsoever for it dwells upon an opinion which the law leaves with the Court”.

As analysed earlier, the Written Representation of the Applicant when taken as a whole did not indicate that he had been prevented from putting forward an effective representation. He is able to identify which speedboat the Charge was referring to, and is able to explain what had transpired on that speedboat.

For the same foregoing reasons, the case of Saiful bin Noorddin v Suruhanjaya Pasukan Polis & Anor and another appeal [2023] MLJU 2344 is of no assistance to the Applicant’s case. To reiterate, there is no indication that the Applicant had difficulties in preparing his Written Representation and the Written Representation itself when read as a whole falls short of indicating how the Applicant had been prevented from preparing an effective defence. There was also no express confirmation on the authority of Zaini bin Talib over the disciplinary matter hanging over the Applicant’s head. Duty to provide Reasons

The Applicant was also aggrieved with the Second Respondent in not providing reasons in making the Impugned Decision. In this regard, reference could be made to the case of Ezaky Mulya Sapawi v Dato’ Sri Nadzri Siron & Ors [2022] 8 CLJ 271 where the Court of Appeal had found that the duty to give reason is dependant on the factual matrix of the case: “[79] We add there is nothing in the disciplinary procedure in Discipline Regulations 1993 which requires reasons to be given. In particular, we refer to reg. 34 on the conditions for dismissal or reduction in rank, reg. 37 on the procedure to be followed and reg. 38 with regard to the punishment to be imposed. … [82] Thus, the proposition to be derived is that when there is no express or implied duty to give reasons, it falls on a case-by-case basis whether reasons ought to be given. This is intertwined with whether the decision should be set aside on the ground of irrationality for lack of a reason.”

Based on the matter before this Court, the Written Representation of the Applicant himself, as mentioned earlier, falls short of exculpating him from the Charge made against him. The duty to give reason, in the circumstances of the instant application, therefore does not arise. It is not sufficient for the Applicant to insist that reason must be provided, especially in light of the absence of any express provision requiring so. The Applicant must first establish the necessity of reason being provided, by at least satisfy this Court that based on the Written Representation of the Applicant, the Impugned Decision is unreasonable such that the intervention of this Court is warranted. Delay and Condonation

On this issue, the Applicant relied on Azman bin Abdullah v Ketua Polis Negara [1997] 1 MLJ 263 and Noor Bhayzura Dali (supra) in support of his proposition that the failure on the part of the Second Respondent in taking action would serve as an estoppel for any disciplinary action to be taken against him in the future.

A close examination of both the authorities cited by the Applicant would reveal that they are easily distinguishable from the instant case. In Azman bin Abdullah (supra), the issue of condonation arose not only because there was a delay on the part of the disciplinary authority in taking action. There was also a confirmation letter issued to the effect that the applicant was free from any disciplinary action albeit the fact reveal that there are wrongdoings that had already been committed.

Noor Bhayzura Dali (supra) on the other hand revealed that the proposition of condonation was supported by the act of the Head of Department allowing the applicant to continue work after being absent, and the applicant was “even deemed suitable for promotion”. In any event, the Court of Appeal found in favour of the applicant because the issue of condonation on the part of the disciplinary authority has been totally disregarded by the chairman of the Public Services Commission.

The instant application before this Court has nothing more than the purported inaction by the relevant disciplinary authority after the investigation by MACC. There is no positive assertion or act from the Respondents indicating that no disciplinary action will be taken against the Applicant.

In the view of this Court, it is insufficient for the Applicant to merely raise the issue of condonation. His assertion must be supported by the material available before the Second Respondent and he must satisfy this Court that the Second Respondent had failed to address its mind properly on this issue. The mere act of delay, if any, could not stand on its own. This ground must therefore fail. Double Jeopardy

On this issue, the Applicant relied on regulation 31 of the 1993 Regulations which stipulated that an officer acquitted from any criminal proceedings should not be subjected to disciplinary action on the same charge.

In order for the Applicant to invoke regulation 31 of the 1993 Regulations, it is incumbent for the Applicant to first establish the criminal offence that he had been charged and whether he had been acquitted from the charge.

The Applicant asserted that he was investigated by MACC. However, there was no further explanation as to which section the Applicant was being investigated under.

The Charge which the Applicant is subjected to now before the Second Respondent, is with regard to an offence of dishonesty or untrustworthy, as well as being insubordinate or conduct himself in a manner which could be reasonably construed as being insubordinate, under the 1993 Regulations.

To insist that the offence he was investigated by MACC is one which was under the 1993 Regulations in the view of this Court, is stretching the matter too far. In any event, this issue is a non-starter because there was no criminal proceedings instituted against the Applicant. Proportionality of Punishment

Case laws have suggested that a Court may intervene on the ground of proportionality but it should only do so in exceptional cases. The Court of Appeal in Sam Maark Verak v Dato’ Zainal Abidin Ahmad & Ors [2022] 3 CLJ 661 found: “[73] The decision in Panzana Enterprise has made it clear that the principle of proportionality is embedded in the Industrial Relations Act 1967. Thus, employees in the private sector would have the benefit of that principle. With the acceptance of the ever-expanding doctrine of proportionality, there now does not appear to be any good reason why the doctrine should not be available to public servants in disciplinary matters especially in respect of the punishment meted out by the Public Services Commission. [74] However, even if the principle of proportionality were to be available for courts to review the punishment imposed on public servants, it would seem reasonable that it should only do so in exceptional cases. Courts should be very slow to deem any punishment meted out in disciplinary cases as being disproportionate. The danger of a court substituting its personal view as to what is or is not proportionate is very real. How strict the public sector wishes to be on matters of discipline may be dependent on many factors and circumstances and the justification may lie in policy developed to confront problems or to address issues that the public sector may be facing and these may not be manifest from the facts of any given case. [75] The strictures imposed by the decision of the Federal Court in Ng Hock Cheng and its observation in Panzana Enterprise aside, we also do not find that appellant's dismissal was unreasonable or obviously disproportionate such as to warrant any interference by the court. To some, the number of days the appellant failed to report or record as required may be relatively small. However, it is in our view enough to betray an irresponsible attitude of indifference to the need for discipline in a person of the appellant's rank.”

Based on the facts before this Court, the Applicant could not be said to have successfully discharged his onus on why the Second Respondent had acted disproportionately in meting out the punishment against him. The assertion of the Applicant in this Court’s view stopped at mere allegation.

This Court further finds that the mere fact that no action was taken against Hj Ishak, if what the Applicant averred is true, should have no bearing on the proportionality of punishment to be imposed on the Applicant. Conclusion

For the aforementioned reasons, this court is satisfied that there is no procedural impropriety or illegality or unreasonableness that would enable this court to allow this application for judicial review. This application for judicial review is hereby dismissed with no order as to costs. Dated: 13 October 2025 SHAHNAZ BINTI SULAIMAN JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN Counsels: For the Applicant: Yap Wen Han Messrs HL Lee & Co. Advocates & Solicitors No. 34, 3rd Floor, Jalan Ss 19/1D 47500 Subang Jaya Selangor For the Respondents: FC Tuan Mohammad Solehheen bin Mohammad Zaki Attorney General’s Chambers Civil Division, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya