Jefren Bin Mohamed Razali v 1. ) 1. Dato’ Seri Hj. Mustafar Bin Hj. Ali (AA-25-5-04/2020)

DATO’ INDERA KHAIRUL DZAIMEE BIN DAUD 25 [disaman dalam kapasiti sebagai Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No. 1)] Jabatan Imigresen Malaysia (Kementerian Dalam Negeri) No. 15, Tingkat 1-7 (Podium) 30 Persiaran Perdana, Presint 2 62550 Putrajaya, W. Persekutuan

IKHBAL HANAM BIN MUKRAS (disaman dalam kapasiti sebagai 35 Setiausaha Lembaga Rayuan Tatatertib Perkhidmatan Awam) S/N Aq615CwjqkWtwT4DcqJzPw Suruhanjaya Perkhidmatan Awam Malaysia Bahagian Naik Pangkat dan Tatatertib Aras 9, Blok C7, Kompleks C Pusat Pentadbiran Kerajaan Persekutuan 40 62520 Wilayah Persekutuan Putrajaya

4.

LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM 45 Setiausaha Lembaga Rayuan Tatatertib Perkhidmatan Awam Suruhanjaya Perkhidmatan Awam Malaysia Bahagian Naik Pangkat dan Tatatertib Aras 9, Blok C7, Kompleks C Pusat Pentadbiran Kerajaan Persekutuan 50 62520 Wilayah Persekutuan Putrajaya … RESPONDENTS JUDGMENT 55 Introduction [1] The Applicant served in the Malaysian Immigration Department. He was found guilty of having approved an application for a Malaysian International Passport by an applicant who used a forged national identity 60 card. He was dismissed. He commenced judicial review proceedings to quash this decision and to be reinstated. His application was dismissed and these are the grounds of judgment. 65 S/N Aq615CwjqkWtwT4DcqJzPw Background [2] At the time of his dismissal, the Applicant having served in the Malaysian Immigration Department (“MIM”) for about 23 years, was 43 years old. 70 [3] Disciplinary proceedings which led to his dismissal commenced with a show-cause letter to him dated 3 April 2018 (Enclosure 5 exhibit P3) from the Chairman of the Disciplinary Board (“R1”) informing the Applicant that a report had been received which warrants disciplinary action with the view to 75 having him dismissed or demoted. [4] In the show-cause letter of 3 April 2018 received by the Applicant on 16 April 2018 (Enclosure 5 exhibit P3 pp 49 to 52), it was alleged that whilst on duty at Pejabat UTC, Perak, Jabatan Imigresen Malaysia, Negeri Perak 80 on 22 March 2016 the Applicant had approved an application by one Harlizah Binti Jaman for a Malaysian International Passport. As it turned out, this applicant had relied upon a MyKad No. 891208-14-5058 which was later confirmed to be non-existent, that is, it was not issued by the National Registration Department. 85 [5] The Applicant was also informed that such act of dereliction could be deemed to be a misconduct in breach of Regulations 4 (2) (e) and 4 (2) (i) of the Public Officers (Conduct and Discipline) Regulations 1993 (“1993 Regulations”) and punishable under Regulations 38 (f) and (g). These 90 Regulations are set out here: S/N Aq615CwjqkWtwT4DcqJzPw “4 (2) An officer shall not-

lack efficiency or industry;

be insubordinate or conduct himself in any manner which can be reasonably construed as being insubordinate. 38 If an officer is found guilty of a disciplinary offence, any one or any combination of two or more of the following punishments, depending upon the seriousness of the offence, may be imposed on the officer:

reduction in rank; or

dismissal.” [6] The Applicant was then asked to make his representations under Regulation 37 (2) (b) of the 1993 Regulations reproduced hereunder within 105 21 days from his receipt of the show-cause letter: “(2) If it appears to the Chairman of the appropriate Disciplinary Authority that there exists a prima facie case against the officer, the Chairman of the appropriate Disciplinary Authority shall- 110

require the officer to make, within a period of twenty-one days from the date he is informed by notice in accordance with regulation 52 of the charge, a written representation containing the grounds upon which he relies to exculpate himself.” 115 [7] The Applicant alleged by letter dated 19 April 2018 to R1 (Enclosure 5 exhibit P4), he had requested to be supplied with all documents in connection with the charge levelled against him. In this letter, he also asked for a copy of the Close Circuit Television (“CCTV”) recording of the day of the alleged incident to enable him to reply in detail. The Applicant also sought for an oral 120 hearing to enable him to question witnesses who he said have levelled such an unfounded allegation against him. S/N Aq615CwjqkWtwT4DcqJzPw [8] R1 allegedly did not accede to the Applicant’s requests contained in his letter of 19 April 2018. Nevertheless, within the 21 days limited to show 125 cause, the Applicant replied (Enclosure 5 exhibit P5) denying he had placed his signature on the application form to signify approval and averred inter alia that some other officer could have used his user ID to process the impugned application. The Applicant also questioned the integrity of the department’s computer system. 130 [9] By letter dated 20 December 2018 (Enclosure 5 exhibit P6), the Applicant was notified that he was dismissed for the charge levelled against him. Acting pursuant to Regulation 38 (g) of the 1993 Regulations (supra) he was dismissed with effect from 15.12.2018. He was notified that pursuant to 135 Regulations 14 and 15 (1) of the Public Services Disciplinary Board Regulation 1993 (“DB Regulations”) he could appeal to the Public Service Disciplinary Appeal Board of the Public Service Commission (“Disciplinary Appeal Board”) within 14 days of him receiving the decision of the Disciplinary Board and these regulations are set out here: 140 “14. An officer aggrieved by the decision of the Disciplinary Board established under subregulation 2(1) may appeal against such decision to the Disciplinary Appeal Board established under regulation 12. 15 (1) An appeal shall be made in writing by an officer referred to in regulation 145 14 (hereinafter referred to as "the appellant") to the Disciplinary Appeal Board through his Head of Department within fourteen days from the date on which the decision of the Disciplinary Board is communicated to him in writing.” [10] By letter dated 16 January 2019, the Applicant appealed to the 150 Disciplinary Appeal Board (Enclosure 5 exhibit P7). However, instead of receiving a decision from the Disciplinary Appeal Board, the Applicant received a similar letter of dismissal dated 15 July 2019 from the Disciplinary S/N Aq615CwjqkWtwT4DcqJzPw Board (Enclosure 5 exhibit P8). This prompted the Applicant to again put up a letter of appeal dated 13 August 2019 to the Disciplinary Appeal Board 155 (Enclosure 5 exhibit P9). [11] The Disciplinary Appeal Board at its sitting on 11 November 2019 found the appeal by the Applicant to be without merits and vide its letter dated 19 November 2019 notified that his appeal had been dismissed 160 (Enclosure 5 exhibit P10). The Applicant received this letter on 6 January 2020. [12] The Applicant then commenced judicial review proceedings on 3 April 2020 (Enclosure 1). 165 [13] He obtained leave from this Court on 13 July 2020 to apply for judicial review against the first four Respondents, and later obtained leave to amend his application to add the Appeal Board as the Fifth Respondent on 13 January 2021. 170 [14] His substantive application for judicial review was heard on 12 November 2021 and was dismissed with costs. By Notice of Appeal filed on 6 December 2021 he appealed to the Court of Appeal. 175 Applicant’s grounds to be reinstated [15] The main crux of the Applicant’s complaint was that he was not supplied three important documents which were taken into account to enable him to make an adequate representation which would exonerate him. 180 S/N Aq615CwjqkWtwT4DcqJzPw [16] These three documents said to be vital were: i) the application form by Harlizah Binti Jaman for a Malaysian International Passport (Enclosure 12 exhibit KD-1); ii) the Applicant’s work attendance punch cards for the month of March 2016 (Enclosure 12 exhibit KD-1); and 185 iii) the letter dated 21 September 2016 from the National Registration Department to the Malaysian Immigration Department saying inter alia that Harlizah Binti Jaman’s MyKad No. 891208-14-5058 does not exist (Enclosure 12 exhibit KD-3) (however, as it turned out, issue on this particular document was 190 not taken up by way of substantive arguments). [17] The Applicant made the following assertions that if these documents had been supplied to him: 195 a) The application form of Harlizah binti Jaman He would have been able to engage a hand-writing expert to analyse the signature said to be his as he vehemently denies that it was his signature on this form approving the application on 22 March 2016. 200 b) The punch cards and CCTV recording The punch cards have neutral value as they only show that he was on duty on the material date viz., 22 March 2016 and that the CCTV would be able to show whether he was at the relevant counter. 205 [18] The Applicant asserted that both the Disciplinary and the Appeal Boards have infringed the rule of natural justice by depriving him of these documents and in consequence denying him his right to rebut the accusation S/N Aq615CwjqkWtwT4DcqJzPw made against him. This he asserted, has prejudiced him in preparing his 210 defence. [19] Reliance was made on Article 135 (2) of the Federal Constitution which provides that no member of the [public] service shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard. 215 [20] The following authorities were cited to support the point made by him of being denied the documents sought: i) Yusof Sudin v Suruhanjaya Perkhidmatan Polis & Anor 220 [2012] 1 CLJ 448 FC; ii) Abdul Ghani Che Mat v Pengerusi Suruhanjaya Pasukan Polis & Ors [2017] 3 CLJ 399 CA; iii) Ang Seng Wan v Suruhanjaya Perkhidmatan Polis & Anor [2002] 1 CLJ 493 CA; 225 iv) Mat Ghaffar Baba v Ketua Polis Negara & Anor [2008] 1 CLJ 773 FC; v) B Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 28 MLJ 169 PC; Setiausaha Suruhanjaya Pasukan Polis & Anor v Cheah Yen Kee & 230 Another Appeal [2016] 2 CLJ 789 CA; vi) Civil Appeal No. P-01-452-10/2012 re Mohd Zulhazi Mohd Zulkafli v Suruhanjaya Polis Diraja Malaysia & Kerajaan Malaysia [2014] 1 LNS 574; vii) Shamsiah Ahmad Sham v Public Services Commission 235 Malaysia & Anor [1991] 1 CLJ Rep 419 SC; and S/N Aq615CwjqkWtwT4DcqJzPw viii) Raja Abdul Malek Muzaffar Shah Bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis & 2 Ors [1995] 1 CLJ 619 HC. 240 [21] Delay in bringing the charge was also raised by the Applicant. He pointed out that the alleged misconduct happened on 22 March 2016 but he was only charged after a period of two years vide the show-cause letter of 3 April 2018 and he added for good measure that the inference to be drawn is that there was condonation of his misconduct, if any. 245 [22] Coupled with the lack of documents, he asserted he was prejudiced as memories fade over time. If the CCTV recording had been made available he would have been able to refresh his memory. Reliance was placed on the case of Dr Ahmad Jaafar Musa v Suruhanjaya Perkhidmatan Pelajaran 250 [2017] 1 LNS 2236. [23] Together with his denial that the signature on [Harlizah Binti Jaman’s] application form was his, that there is no CCTV recording to show he was at the counter at the material time and that at the material time there was a 255 critical shortage of officers working at the UTC Perak Immigration Office and were working on shifts resulting in the possibility that some other officer could have used his User ID to perform the impugned application, the Applicant asserted that the Respondents ought to have afforded him an oral hearing. These failures had deprived him of a reasonable opportunity of being heard 260 resulting in the decision of both the Disciplinary and Appeal Board being inconsistent with the rules of natural justice. S/N Aq615CwjqkWtwT4DcqJzPw Respondents’ contentions 265 [24] The Respondents clarified that the Disciplinary Appeal Board had in fact by letter dated 14 May 2019 decided to direct the Disciplinary Board to reconsider the latter’s decision to dismiss the Applicant (Enclosure 30 paragraph 13). 270 [25] The Disciplinary Board did reconsider and by letter dated 15 July 2019, reaffirmed its decision (Enclosure 5 exhibit P8) that the Applicant was guilty as charged and he be dismissed. 275 [26] The Applicant’s subsequent appeal to the Disciplinary Appeal Board was found to lack substance and the Disciplinary Board’s decision was affirmed. [27] On the Applicant’s complaint that he had requested for documents via 280 his letter of 19 April 2018, the Respondents through its Timbalan Penolong Pengarah Kanan Immigresen, Muhamad Faizal Bin Saidin deposed on affidavit (Enclosure 23 paragraph 4) categorically denying that they had received such a letter. 285 [28] Muhamad Faizal bin Saidin went on to depose that the Respondents had carried out a review of the Immigration Department’s registration book on receipt of letters for the month of April 2018 and found that there was no record of receipt of such a letter of 19 April 2018 from the Applicant. 290 [29] Not only that, Muhamad Faizal bin Saidin exhibited a copy of the registration book for the receipt of letters for 19 April 2018 (Enclosure 23 S/N Aq615CwjqkWtwT4DcqJzPw paragraph 4 exhibit MF-1) and it can be seen that there is no entry at all for the receipt of any letter dated 19 April 2018. Needless to say, this directly contradicts the Applicant’s assertion that he had sent his letter of 19 April 295 2018 albeit that there is an acknowledgment stamp of receipt by the Pejabat Imigresen Ipoh (Enclosure 5 paragraph 8 exhibit P8 page 55). [30] In the circumstances, the Respondents asserted that they have never received such a letter of 19 April 2018 (Enclosure 30 paragraph 28). 300 [31] On the assertions made by the Applicant, the Respondents, Dato’ Indera Khairul Dzaimee Bin Daud, the Chairman of the Disciplinary Appeal Board deposed on affidavit the investigations that were carried out. He asserted they had carried out an in-depth and sincere investigation into the 305 matter (Enclosure 12). [32] He deposed that the events surrounding the dismissal of the Applicant started when the Integrity Division Perak received a report on 23 August 2016 from the Intelligence Unit of the Security and Passport Division of the 310 Immigration Headquarters at Putrajaya. [33] The report is about the issuance of a Malaysian International Passport No. A37597629 to an individual with MyKad No. 891208-14-5058. 315 [34] After a review of the application form and from inquiries made it was found that the approving officer for the Malaysian International Passport to Harlizah binti Jaman was the Applicant (Enclosure 12 paragraph 7 exhibit KD-1). 320 S/N Aq615CwjqkWtwT4DcqJzPw [35] He exhibited the application form of 23 August 2016 which shows the signature of the Applicant above his name stamp (Enclosure 12 paragraph 7 exhibit KD-1). Also exhibited were the two attendance punch cards of the Applicant for the month of March 2016. 325 [36] Besides these documents, they reviewed their department’s MyIMMS computer system and it was established that there was no verification of the thumb print of the applicant at the time of the processing the impugned application for the Malaysian International Passport prior to its approval. when this ought to have been done by the processing officer, the Applicant. 330 His failure to carry out such a verification exercise was in breach of Arahan Kerja Pengurusan Passport Malaysia (AK. IM. H. 01) – Arahan Kerja 01 (Permohonan Pasport Malaysia) paragraph 9 (Enclosure 12 paragraph 9 exhibit KD-3). The Applicant was then given the show-cause letter dated 3 April 2018. 335 [37] Dato’ Indera Khairul Dzaimee Bin Daud then tabulated a chronology of the events commencing from date of receipt of an email from the Australian Embassy, followed by the report by the Integrity Division on 23 August 2016 up until the disciplinary proceedings undertaken on 15 July 340 2019 when the Disciplinary Appeal Board maintained the decision to dismiss the Applicant (Enclosure 12 paragraph 21). [38] He deposed that action was taken from the time of the receipt of the report resulting in sincere internal investigations being carried out in 345 accordance with the provisions prescribed. He denied that the transfer of the Applicant to the Immigration Depot in Langkap in 2016 was a punishment for this matter and asserted that the Applicant’s contention that it was so is but a mere assumption. S/N Aq615CwjqkWtwT4DcqJzPw [39] The Respondents asserted that unlike a court hearing requiring the 350 attendance of witnesses, the disciplinary proceedings is more in the nature of a meeting with a decision made after perusing all documents. [40] The Respondents further asserted that a comprehensive investigation was needed to be made and by reason thereto there was no delay and no 355 condonation of the wrong done by the Applicant with the Applicant having been given sufficient opportunity to present his representations pursuant to the 1993 Regulations. [41] The Respondents submitted that an oral hearing is not mandatory and 360 it is only necessary where the disciplinary authority considers that the case against the officer requires further clarification and consequently appoint a Committee of Inquiry. It all depends on the facts of each case, see Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 CLJ 577 FC and Public Service Commission Malaysia & Anor v Vickeneswary a/p RM Santhivelu 365 (substituting M Senthivelu a/l R Marimuthu, deceased) 6 CLJ 573 FC. [42] On there being no delay in the circumstances of this case, the Respondents also placed reliance upon the case of Harbhajan Singh v Suruhanjaya Pasukan Polis, Malaysia & Anor [2002] 3 MLJ 714 CA 370 where it was held that there is no time frame to initiate a disciplinary action or to complete the disciplinary action and when time is not specified, the disciplinary action ought to be taken with all convenient speed with reliance placed upon section 54 of the Interpretation Acts 1948 and 1967. 375 [43] The Respondents submitted that all public servants have the responsibility to maintain the good name of their department and the S/N Aq615CwjqkWtwT4DcqJzPw Government service in general and any neglect that result in a failure to do so will prejudice the discipline of the administration. 380 [44] The Respondents concluded that there was no procedural unfairness or impropriety and there was no breach of natural justice on the part of the Disciplinary and Appeal Boards. Court’s analysis and findings 385 [45] From the submissions advanced by the parties both written and oral, the following issues call for the consideration of this Court: I) did the Applicant request for documents vide his letter of 19 April 390 2018 when asked to make his representations and if so, was the failure by the Respondents to comply amount to a breach of natural justice in the disciplinary proceedings; II) did the lack of oral hearing amount to a breach of natural justice in the disciplinary proceedings; and 395 III) was there undue delay in pursuing disciplinary proceedings and related to this, was there condonation of the wrongdoing, on the part of the Applicant. Letter of 19 April 2018 400 [46] Given the diametrically opposed position with the Applicant asserting he had delivered his letter of request of 19 April 2018 coupled with there being a rubber stamp of acknowledgment thereon (Enclosure 5 page 55) and S/N Aq615CwjqkWtwT4DcqJzPw the Respondents denying receipt of such a letter and exhibiting its 405 registration book showing non-receipt of such a letter, after careful deliberations, I came to the conclusion that the Respondents had not received such a letter for the following reasons: i) in the Applicant’s letter of representations of 2 May 2018 to the 410 show-cause letter there was no mention at all of this letter of 19 April 2018 although he did make mention of not being served with documents in the possession of Disciplinary Board; and ii) in my view, if there was such a letter, the Applicant would have enclosed a copy with his letter of representation of 2 May 2018 415 or at the very least made mention of it in his letter of representation of 2 May 2018. [47] In any event, I am of the opinion that with him having worked in the Immigration Department for 23 years, he would know that one of the critical 420 steps required is the signature of an approving officer. Since he was charged with approving an application when he should not, he would know that his signature would be on the form. And, if to his mind that such a charge is groundless, it would mean that his signature had been falsified which would then lead to the query as to whether he had lodged a police report on the 425 same. No evidence was led by him to show that he did. [48] There is a body of case law which have held that in such a circumstance, bereft of a timeous police report, any allegation of forgery is but a bare allegation, see, David Wong Hon Leong v. Noorazman bin 430 Adnan [1995] 4 CLJ 155 CA, Bank Kerjasama Rakyat Malaysia Bhd v. Hong Voon Chung [2021] 1 LNS 250 CA and Floral Trends v. Li Onn Floral Enterprise (M) Sdn. Bhd. [2006] 6 CLJ 525 HC. I would hasten to S/N Aq615CwjqkWtwT4DcqJzPw add that to my mind, the Applicant was facing disciplinary proceedings and not a prospective civil action and by reason of which, section 73A (3) 435 Evidence Act would not apply to exclude the admissibility of his police report if he had lodged one. [49] Be that as it may, I will still proceed to address the thrust of the Applicant’s complaint that he ought to have been supplied with the 440 documents relied upon by the Disciplinary Board. On this, I gratefully adopt the comprehensive analysis undertaken by His Lordship, Wong Kian Kheong J. in Ezaky Mulya Sapawi v. Dato’ Sri Nadzri Siron, Pengerusi Lembaga Tatatertib, Kumpulan Sokongan (No.1) & Ors [2020] 1 LNS 1557 HC where in dealing with the 1993 Regulations and in particular, regulations 3, 445 4(1), (2)(a), (j), 34(1), (2), 37(2)(a), (b), (4) (5), 37D(a), (b) and Public Services Disciplinary Board Regulation 1993, regulations 2, 12, 13, 14, 15(1)16(2), (3), (4)(b), His Lordship held that: “[35] The Applicant's learned counsel has submitted that before the 450 Applicant's Representation was prepared, the DA should have furnished to the Applicant all documents which had been submitted to the DA (Disciplinary Authority)[Documents (DA) ]. If the Documents (DA) had been provided to the Applicant before the preparation of the Applicant's Representation, he could have inserted in the Applicant's Representation any reply, correction and/or 455 rebuttal to any allegation made against him in the Documents (DA). [36] I am not able to accept the above contention by the Applicant's learned counsel. This because there is no provision in the POR which obliges DA to provide the Documents (DA) to the Applicant so as to enable him to 460 prepare the Applicant's Representation. On the contrary, the only documents to be given to the Applicant are provided by reg. 37(2)(a) and (b) POR - please refer to the above paragraph 30. S/N Aq615CwjqkWtwT4DcqJzPw [30] Firstly, reg. 37(2)(a) POR required the Chairman of the DA to "direct " the 2 Charges (containing the facts of the two disciplinary offences 465 alleged to have been committed by the Applicant and the grounds on which it was proposed to dismiss the Applicant or to reduce his rank) to be sent to the Applicant. According to reg. 37(2)(b) POR, the DA's Chairman would require the Applicant to make a written representation which would contain grounds to exculpate the Applicant of the 2 Charges within 21 days from the date the 470 Applicant was informed of the 2 Charges. It is clear that reg. 37(2)(a) and (b) POR do not provide for the Acknowledgement of Receipt to be part of the 2 Charges. The sole purpose of the Acknowledgement of Receipt was to ensure that the Applicant had been notified of the 2 Charges and the Applicant then had 21 days to send the Applicant's Representation to the DA from the date of 475 receipt of the 2 Charges by the Applicant.” [50] In this case, the Applicant was supplied with the charge in the show-cause letter of 3 April 2018 - 9 calling upon him to reply within 21 days of receipt (Enclosure 5 pages 49 to 52) and he had acknowledged receipt 480 thereof (Enclosure 5 page 52). Therefore, he had been served with all the necessary documents required by law. [51] On the Applicant’s assertion that he saw the impugned application form for the first time during this judicial review proceedings and that if he 485 had been supplied with it, he could have obtained the services of a document examiner to verify that it was not his signature, in my opinion, the Applicant could have done so during this set of judicial proceedings, see Order 53 rule 6 Rules of Court 2012 reproduced below: 490 “After leave has been granted, any party to an application for judicial review may apply to the Judge for discovery and inspection of documents pursuant to Order 24, to administer interrogatories pursuant to Order 26, or to cross-S/N Aq615CwjqkWtwT4DcqJzPw examine the deponent of any affidavit filed in support of or in opposition to the application pursuant to Order 38.” 495 [52] See also Ezaky Mulya Sapawi v. Dato’ Sri Nadzri Siron, Pengerusi Lembaga Tatatertib, Kumpulan Sokongan (No.1) & Ors (supra) HC where His Lordship, Wong Kian Kheong J. pointed out that this provision making available discovery in judicial review proceedings came into effect 500 on 21 September 2000 and with five conditions to be fulfilled. [53] With the Applicant in this case emphasising on his loss of livelihood, his failure to resort to this procedure of discovery to challenge the authenticity of his signature on the impugned application form weighed heavily against 505 him in my mind. [54] Indeed, a comparison of his signature on the impugned application with the signatures of the Applicant in documents filed in this action, led to the Senior Federal Counsel submitting that they look similar and in my view, 510 I tend to agree with him. [55] In the circumstances, premised upon the facts and the law, the complaint by the Applicant about not being supplied the documents he wanted is devoid of merits. 515 Lack of oral hearing [56] Just as was held in Ezaky Mulya Sapawi v. Dato’ Sri Nadzri Siron, Pengerusi Lembaga Tatatertib, Kumpulan Sokongan (No.1) & Ors 520 (supra), where reference was made to the Federal Court authority of S/N Aq615CwjqkWtwT4DcqJzPw Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v. Utra Badi K Perumal [2001] 2 CLJ 525, at 541, the 1993 Regulations and the Public Services Disciplinary Board Regulation 1993, these regulations which govern the disciplinary proceedings which the 525 Applicant is subject to, do not confer any right of oral hearing. [57] From the Respondents’ narrative, an application for a Malaysian International Passport requires not only an approval from the processing officer but of importance is the verification of the passport applicant’s thumb 530 print against his or her MyKad. [58] In the case of Harlizah binti Jaman’s application, it was tracked down to the Applicant as having processed this application (Enclosure 12 paragraph 9 exhibit KD-3) on the material date of 22 March 2016 using the 535 MyImms System. [59] In response to this, the Applicant replied that as he had three IDs, it was possible that some other officer could have used his User ID without his knowledge at the material time to process the impugned application. 540 [60] Obviously, such an argument wherein the Applicant is in effect saying he had allowed his ID to be compromised, did not find favour with the Disciplinary Board. Similarly, in my view, such an answer leaves much to be desired when weighed against the need to preserve and protect the integrity 545 of our Malaysian passports as submitted by the Respondents although they had used other words to this effect. S/N Aq615CwjqkWtwT4DcqJzPw [61] There is also the other piece of evidence, namely, the Applicant’s attendance punch card which placed him at work at the material time. 550 [62] As for the authorities relied upon by the Applicant on the need for there to be an oral hearing, with respect, they can be distinguished on the ground that there are the aforesaid material pieces of evidence pinpointing to the guilt of the Applicant above. These authorities can be further distinguished 555 as follows: i) Yusof Sudin v Suruhanjaya Perkhidmatan Polis & Anor [2012] 1 CLJ 448 FC – the charges framed were held to be general in nature and lacked particulars with an exculpatory 560 statement made requiring an oral hearing; ii) Abdul Ghani Che Mat v Pengerusi Suruhanjaya Pasukan Polis & Ors [2017] 3 CLJ 399 CA – there was an acute conflict of evidence with two conflicting sets of facts with an exculpatory statement made requiring an oral hearing; 565 iii) Ang Seng Wan v Suruhanjaya Perkhidmatan Polis & Anor [2002] 1 CLJ 493 CA – the letter of representation was sufficient to rebut the four charges and to exculpate the plaintiff with no evidence to contradict the plaintiff’s exculpatory statement and an oral hearing ought to have been held; 570 iv) Mat Ghaffar Baba v Ketua Polis Negara & Anor [2008] 1 CLJ 773 FC – the charges were general in nature and lacking in particulars on the alleged corruption and an oral hearing ought to have been given; v) B Surinder Singh Kanda v The Government of the 575 Federation of Malaya [1962] 28 MLJ 169 PC – the Report of the Board of Inquiry which were denied the appellant contained S/N Aq615CwjqkWtwT4DcqJzPw details of witnesses heard by the Board who expressed views on the credibility of each witness and the weight to be attached to their statements and the Judge must not hear evidence or 580 receive representations from one side behind the back of the other; vi) Setiausaha Suruhanjaya Pasukan Polis & Anor v Cheah Yen Kee & Another Appeal [2016] 2 CLJ 789 CA – the respondent was not given an opportunity to explain, contradict or rebut a 585 new charge; vii) Civil Appeal No. P-01-452-10/2012 re Mohd Zulhazi Mohd Zulkafli v Suruhanjaya Polis Diraja Malaysia & Kerajaan Malaysia [2014] 1 LNS 574 – this involved a charge of corruption with the appellant denying the statement of the 590 person who was alleged to have given the bribe through a policeman; viii) Shamsiah Ahmad Sham v Public Services Commission Malaysia & Anor [1991] 1 CLJ Rep 419 SC – the previous conduct of the appellant was taken into account without giving 595 her an opportunity to be heard on them; ix) Raja Abdul Malek Muzaffar Shah Bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis & 2 Ors [1995] 1 CLJ 619 HC – involved a failure to provide records of previous conduct and other documents yet to be disclosed without giving 600 the applicant the opportunity to be heard on them. [63] In this case, the charge is very specific with the particulars of the date and the alleged offence clearly set out in the show-cause letter. The issue is whether he was the one who processed the impugned application. There 605 S/N Aq615CwjqkWtwT4DcqJzPw was ample evidence against him. The lack of an oral hearing, in the circumstance of this case, has not caused any injustice to the Applicant. Delay and condonation 610 [64] As submitted by the learned Senior Federal Counsel, where the procedure is provided by written laws then the courts should be wary of invoking common law, see the Federal Court in Public Service Commission Malaysia & Anor v. Vickneswary RM Santhivelu [2008] 6 CLJ 573, at [34] where it was held that: 615 "[34] The General Orders do not provide for the time when a disciplinary action is required to be taken against any officer for a disciplinary offence. Applying the principles earlier stated that where procedure is provided by written laws then the courts should be wary of invoking common law, the delay, 620 even if there was one, is not a ground for holding that there was a procedural unfairness. " [65] With respect, I agree with the decision in Ezaky Mulya Sapawi v. Dato’ Sri Nadzri Siron, Pengerusi Lembaga Tatatertib, Kumpulan 625 Sokongan (No.1) & Ors (supra) at paragraphs [56] to [58]) that there is no limitation period for a disciplinary charge under the Public Officers (Conduct and Discipline) Regulations 1993. [66] In any event, for the reasons proffered by the Respondents, on the 630 time required to carry out a comprehensive investigation to ascertain with care the officer who was to be charged before initiating disciplinary proceedings, it cannot be said to be not with all convenient speed. S/N Aq615CwjqkWtwT4DcqJzPw [67] As was well said by His Lordship, Ahmad Murad Abdul Aziz JC in the two cases decided by him, one in Yanlinus Philip v. Mustafa Ibrahim & 635 Ors [2021] 1 LNS 574 and the other in Mohamad Faisal Anudin Azmi v. Dato' Mustafa Hj Ibrahim, Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No. 1) [2021] 8 CLJ 83, the officers in Immigration Department are required to act with utmost integrity, honesty and diligence to protect our national security interest. 640 [68] I would also echo his concluding reference to the case of Kerajaan Malaysia v. Tay Chai Huat [2012] 3 CLJ 577; [2012] 1 MLRA 661 which was also relied upon by the learned Senior Federal Counsel, where the Federal Court held: 645 "[29]...In the normal course, it is the disciplinary authority which is the best judge as to whether the person should be dismissed. In that context, the court can only exercise its powers of interference in a limited number of cases where it is shown that the decision to suspend is arbitrary and/or a mala fide 650 exercise of power and/or colourable exercise of power. These are the parameters on which a disciplinary authority must consider when exercising its powers under the GO (Chapter D). It is not for the courts to interfere with exercise of discretion by the disciplinary authority otherwise than in the circumstances set out." 655 [69] As for the Applicant’s argument that the delay in prosecuting the charge against him would drive a reasonable tribunal to hold that there was condonation, surely public policy dictates, that the concept of condonation, can have no place at all in cases involving a contravention of public service 660 regulations which would have the effect of prejudicing the protection of the integrity of our Malaysian passports and our borders. To hold otherwise, would be plainly irrational. S/N Aq615CwjqkWtwT4DcqJzPw Conclusion 665 [70] In the upshot, I dismissed the substantive application for judicial review (Enclosure 25) with costs of RM2,000.00 as prayed for by the Respondents to be paid by the Applicant. 670 Dated: 21 January 2022 ( SU TIANG JOO ) 675 Judicial Commissioner High Court in Malaya Ipoh, Perak 680 For Applicant : Manjit Singh Mann [Messrs Manjit Singh Mann & Co] For Respondents : Ashyraf Ashy’ari bin Kamaruzaman [Perak State Legal Advisor Office] 685 [Notice: This Grounds of Decision is subject to official editorial revision] S/N Aq615CwjqkWtwT4DcqJzPw Headnotes Administrative law – disciplinary proceedings against officer in public service 690 - whether there is any obligation to supply documents together with the show-cause letter Delay in disciplinary proceedings – no limitation period prescribed in the Public Officers (Conduct and Discipline) Regulations 1993 - delay would not 695 defeat disciplinary proceedings against a public officer Condonation - the concept of condonation has no place in cases which has the effect of prejudicing the protection of the integrity of our Malaysian passports and our borders. 700