Karthigeyen A/L Jagannatha Goundar Nathan v Beh Eng Lai (Acp) Pengerusi Lembaga Tatatertib Polis Diraja Malaysia, Ibu Pejabat Polis Kontinjen Kuala Lumpur (WA-25-459-08/2022)

BEH ENG LAI (ACP) PENGERUSI LEMBAGA TATATERTIB POLIS DIRAJA MALAYSIA,

LEMBAGA TATATERTIB POLIS DIRAJA MALAYSIA,

KERAJAAN MALAYSIA ...RESPONDEN-RESPONDEN

The Applicant joined the police force on 28.12.2015. Prior to this dismissal, the Applicant was a Lance Corporal with the Royal Malaysia Police. He was subject to disciplinary proceedings in respect of 9 charges. On 12.5.2022, he was found guilty on all the charges and imposed the punishment of dismissal for 2 of them. As for the other 7 charges, he was given a warning.

He now seeks the following orders in this judicial review proceedings:

an order of certiorari to quash the decision Beh Eng Lai, Chairman of the Disciplinary Board (1st Respondent) made on 12.5.2022 and on behalf of the 2nd Respondent, to impose the punishment of warning and dismissal;

(ii) orders of declaration as follows:

that Regulations 37, 37A, 37B, 37C, 37D of the Public Officer (Conduct and Discipline) (Amendment) Regulations 2002 which does not provide for an avenue of appeal is inconsistent with Article 135(2) of the Federal Constitution, and shall, to the extent of the inconsistency, be void;

that Chapter D of the Public Officer (Conduct and Discipline) (Amendment) Regulations 2002 is unconstitutional as against with Articles 5 and 8 of the Federal Constitution as it makes no provision for the Applicant to appeal from a decision of the Disciplinary Board. This discriminates the Applicant from other public service officers who are given an avenue of appeal under the Public Services Disciplinary Board

(iii) an order of mandamus that the Applicant be restored to his previous position as Lance Corporal with no loss in remuneration and other benefits from the date of dismissal 12.5.2022;

(iv) an order of inquiry to determine the arrears in remuneration and other benefits due to the Applicant from the date of dismissal 12.5.2022 together with interest on such payment at the rate of 5% until full settlement; and

costs. Key background facts

On 7.12.2020, a report was received pertaining to the Applicant’s misconduct whilst on duty leading to an internal investigation by Jabatan Integriti dan Pematuhan Standard (“JIPS”) of the police force.

On 10.12.2020, the Applicant was charged together with 2 others in the Magistrate’s Court Kuala Lumpur with an offence under section 384 of the Penal Code read together with section 34 of the same.

On 29.3.2021 the findings of the JIPS were presented to the Chairman of the relevant Disciplinary Authority. He then made finding under Regulation 35 of the Public Officer (Conduct and Discipline) Regulations 1993 [amended pursuant to P.U.A 246/2002] (“PO(CD)R 1993”) that the disciplinary breaches of the Applicant were of a nature which warrant a punishment of dismissal or reduction in rank. Hereinafter, all reference to Regulations shall be that under PO(CD)R 1993, unless otherwise stated.

On 3.8.2021, the Deputy Public Prosecutor (“DPP”) applied to the Magistrate for an order of Discharge Not Amounting to an Acquittal (“DNAA”) on the grounds that further investigation was required. The court was informed that upon completion of the investigation the Applicant will be re-charged. The Magistrate granted the DNAA.

Thereafter, the Applicant’s disciplinary offence was referred to the 1st Respondent who then made a finding under Regulation 37 that a prima facie case exists against the Applicant for disciplinary proceedings to be commenced against the Applicant.

The Applicant was issued a Show Cause Letter dated 9.3.2022, and he was instructed to make his representations with respect to 9 charges.

I have summarised the nature of the offences in the 9 Charges as follows:

1st Charge-failed to make a police report on the examination of a Perodua MYVI Registration No: JPF 8689 and arrest of one See Kee Seng at the entrance to Seasons Tower and at the back portion of Berjaya Times Square on 7.12.2020 as required by the Inspector General Standing Orders (“IGSO”) thereby acting in breach of Regulation 4(2)(i);

(ii) 2nd Charge-failed to make a police report on the discovery of RM 10,000.00 in a plastic bag at the back portion of Berjaya Times Square as required by the IGSO thereby acting in breach of Regulation 4(2)(i);

(iii) 3rd Charge-failed to report to Pusat Kawalan Ibu Pejabat Kontijen Kuala Lumpur on the examination of a Perodua MYVI Registration No: JPF 8689 and arrest of one See Kee Seng at the entrance to Seasons Tower and at the back portion of Berjaya Times Square on 7.12.2020 as required by the IGSO thereby acting in breach of Regulation 4(2)(i);

(iv) 4th Charge-failed to inform his superior officer of an examination of a Perodua MYVI Registration No: JPF 8689 and arrest of one See Kee Seng at the entrance to Seasons Tower and at the back portion of Berjaya Times Square on 7.12.2020 as required by the IGSO thereby acting in breach of Regulation 4(2)(i);

5th Charge-failed to record in the pocket book on the examination of a Perodua MYVI Registration No: JPF 8689 and arrest of one See Kee Seng at the entrance to Seasons Tower and at the back portion of Berjaya Times Square on 7.12.2020 as required by the IGSO thereby acting in breach of Regulation 4(2)(i);

(vi) 6th Charge-failed to record in his pocket book the discovery of RM 10,000.00 in a plastic bag at the back lane of Berjaya Times Square as by the IGSO thereby acting in breach of Regulation 4(2)(i);

(vii) 7th Charge-being present in the vicinity of Seasons Tower and Berjaya Times Square which was outside the locality of his duties at the material time thereby acting in breach of Regulation 4(2)(i);

(viii) 8th Charge-failed to declare an asset acquired on 8.9.2005 namely a motorcycle Honda C1004-MA Registration No: WNG 4314 as required under Regulation 10(3) thereby acting in breach of Regulation 4(2)(i); and

(ix) 9th Charge-failed to declare an asset acquired on 21.12.2012 namely a motorcycle Yamaha 135L Registration No: WXS 8637 as required under Regulation 10(3) thereby acting in breach of Regulation 4(2)(i).

The Applicant submitted his written representations to the 2nd Respondent on 1.4.2022.

By a letter dated 30.5.2022, the Applicant was informed that he had failed to exculpate himself of the charges and hence found guilty in respect thereof. He was also informed that the punishment of dismissal was imposed for the 2nd and 6th Charges, whereas he was to be given a warning for the other Charges. The punishment was to take effect from 12.5.2022.

The Applicant was dissatisfied with the decision made and wrote a letter of appeal dated 12.6.2022 to Ketua Jabatan Keselamatan Dalam Negeri dan Ketenteraman Awam, Ibu Pejabat Kontigen. His appeal was not entertained. He was informed on 29.7.2022 that the decision of the 2nd Respondent was not appealable.

He then filed the present Judicial Review proceedings. Grounds for review

In applying for review of the impugned decision, the Applicant relies on the usual grounds for judicial review, namely, procedural impropriety, illegality, Wednesbury unreasonableness and proportionality.

In support of these grounds, the Applicant advances 5 main reasons as follows:

The 2nd Respondent acted in contravention of Regulation 28, in that where criminal proceedings have been instituted against the Applicant, no disciplinary proceedings for his dismissal may be commenced pending the conclusion of the criminal proceedings. As the Applicant was granted a DNAA, by virtue of Regulation 28(7) read with (11), he must be allowed to resume his duties;

(ii) The disciplinary proceedings against the Applicant is both pre-mature and based on the same grounds as the pending criminal charge, hence in breach of Regulation 30(1). When the DNAA was granted, investigations were still ongoing against the Applicant;

(iii) The 2nd Respondent had failed to apply its mind properly in the deliberation and acted in disregard of the factual matrix and the representations made by the Applicant. He was dismissed respect of the 2nd and 6th Charges for failing to make a police report and to record in the pocket book the discovery of RM 10,000.00 at the material time. However, the 2nd Respondent had failed to consider that he was the most junior police officer of the three who were present. Had the 2nd Respondent applied its mind properly, it would have found the punishment to be disproportionate. Further, the Charges had been framed in a manner by duplicating the charges from the same set of facts;

(iv) The 2nd Respondent was not properly constituted at the material time; and

The right to appeal afforded to other public officers under Regulations 14 of the Public Services Disciplinary Board Regulations 1993 [P.U.(A) 396/1993] (“PSDBR 1993”) is not provided to police officers. Therefore Regulations 37, 37A, 37B, 37C, 37D contravenes Articles 5, 8 and 135(2) of the Federal Constitution. Analysis and findings

I shall now deal with the grounds and reasons for review.

Regulation 28 deals with inter alia the internal procedure to be taken by the relevant Head of Department when criminal proceedings have been instituted against its officer. The officer can be interdicted from the exercise of his duties in the interim, pending the conclusion of the criminal proceedings. Upon completion of the criminal proceedings, and depending on whether it results in either an acquittal or conviction, Regulation 28 then provides for the consequential actions to be taken by in respect of the officer.

The Applicant relies specifically on sub-Regulation 7 and 11 which provide as follows: Procedure where criminal proceedings are instituted against an officer

(1)….

Where criminal proceedings against an officer result in this acquittal and there is no appeal by or on behalf of the Public Prosecutor against such acquittal, the officer shall be allowed to resume his duties and he shall be entitled to receive any emoluments which had not been paid during the period of his interdiction, as well as the annual leave and other entitlements to which he was entitled during the period of his interdiction. …

For the purpose of this regulation, “acquittal” includes a discharge not amounting to an acquittal.

In view of the DNAA which falls under the scope of acquittal, the Applicant contends that by virtue of sub-Regulation 7, the Applicant ought to be allowed to resume his duties and to receive all arrears of benefits due to him.

I am of the view that the Applicant is wholly misconceived in the position taken. The application of Regulation 28 doesn’t arise here. Regulation 28 (7) deals with a situation where the officer has been interdicted after criminal proceedings had commenced against him. If he is subsequently granted an acquittal (which would include a DNAA), then he is allowed to resume his duties with no loss in benefits.

The Applicant’s case has nothing to do with an order of interdiction. There is no mention of him being interdicted in the Affidavits filed. His case is primarily against his dismissal.

Further, no disciplinary action was taken against him pending the conclusion of the criminal proceedings. The DNAA was granted on 3.8.2021. The Show Cause Letter upon which disciplinary proceedings were commenced, was only issued on 9.3.2022. In short, the factual matrix of this case does not call for the application of Regulation 28.

In any event, the PO(CD)R 1993 does not prohibit the institution of disciplinary proceedings after an order of DNAA or even when criminal proceedings have been instituted and are pending. This point will be discussed in the later part of this judgment.

It would appear that the Applicant contends that once he is granted a DNAA, no disciplinary proceedings for dismissal can be taken against him. Any dismissal is in contravention of Regulation 28. I am of the view that there is no merit in the position taken.

Consequently, I do not find any contravention of Regulation 28.

The breach complained of is premised on the fact that the disciplinary action taken is premature and that it was based on the same grounds as criminal charges. The actions of the 2nd Respondent is therefore in breach of Regulation 30 (1).

Regulation 30 (1) provides: Disciplinary action shall not be taken until criminal proceedings are completed 30(1) Where criminal proceedings have been instituted against an officer and are still pending, no disciplinary action shall be taken against the officer based on the same grounds as the criminal charge in the criminal proceedings.

Based on the DPP’s representation that investigations are to continue when the DNAA was applied for, the Applicant contends that criminal proceedings were still pending within the meaning of Regulation 30(1) when the disciplinary proceedings were instituted. The disciplinary proceedings were therefore, premature.

In addition, the disciplinary proceedings were based on the same grounds as the charges in the criminal proceedings.

Again, I find the Applicant to be misconceived. Firstly, he was factually wrong to say that the criminal proceedings were pending when disciplinary action was taken. Secondly, that the disciplinary proceedings were not premised on the same grounds as the criminal charge.

There were no pending criminal proceedings at the material time when the Show Cause Letter was instituted. The Applicant had been granted a DNAA earlier. The fact that the criminal investigations were still continuing is not to be equated with “criminal proceedings have been instituted…and are still pending” within the meaning of Regulation 30(1).

In any event, Regulation 30(2) does not prohibit disciplinary action from being taken the Applicant even during the pendency of the criminal proceedings. The provision reads:

Nothing in subregulation (1) shall be construed so as to prevent disciplinary action from being taken against the officer during the pendency of such criminal proceedings if the action is based on any other ground arising out of his conduct in the performance of his duties.

The disciplinary action against the Applicant was premised on different grounds.

The Applicant was charged in the Magistrate Court for extortion. The charge reads, “Bahawa kamu bersama-sama pada 7.12.2020 jam lebih kurang 3 pagi, di Jalan 1/77B Imbi, di dalam daerah Dang Wangi, Wilayah Persekutuan Kuala Lumpur, telah melakukan pemerasan terhadap (1) orang lelaki Cina bernama See Kee Seng, No,KP: 940830-05-5351 supaya menyerahkan wang RM 10,000 dengan niat membebaskan rakannya yang telah ditangkap. Dengan itu kamu telah melakukan kesalahan yang boleh dihukum di bawah Seksyen 384 Kanun Keseksaan dan dibaca bersama Seksyen 34 Kanun Keseksaan”.

On the other hand, the disciplinary charges against the Applicant were materially and distinctly different. In all the 9 Charges, he was alleged to have conducted himself in contravention of Regulation 4(2)(i) which provides as follows: 4(2) An officer shall not-

be insurbordinate or conduct himself in any manner which can be reasonably construed as being insubordinate; …..

The contravention of Regulation 4(2)(i) resulted from his failure to make a police report, record in his pocket book and to inform his superior officer of the events on 7.12.2020 when he was on duty. His failure also stemmed from not declaring his assets. Whilst some of the Charges may arise from the same incident upon which he was charged in the Magistrate Court, nonetheless they form a distinct subject matter amounting to a disciplinary breach. There is no similarity whatsoever in the charges of both proceedings. The disciplinary offences are misconduct as a public officer, which entitles the 2nd Respondent to take action against him.

The Federal Court judgment in Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149 is particularly instructive. It held: 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. The right to punish a citizen for crime is vested in the state whereas the right to penalise an employee for misconduct is in the employer because of the existence of relationship of master and servant and also because the general orders so provide where public employees are concerned. Thus, 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).

Consequently, I find no contravention of Regulation 30 as alleged. Failed to properly apply its mind to the factual matrix

The Applicant contends that the 2nd Respondent had mechanically and arbitrarily arrived at the finding of guilt and thereafter imposing the punishment of dismissal. He alleged that his representation was not given due consideration. Being the most junior of the three officers at the material time, he ought not to take the rap for failing to make the requisite reports.

In hearing this Judicial Review Application, the court is merely exercising its supervisory powers. It is trite that the merits of the Applicant’s case are not within the court’s powers of review unless it can be shown that the decision was clearly irrational. Having examined the representation of the Applicant to the Charges, and the decision of the 2nd Respondent, I am not convinced that the decision was so outrageous or in defiance of logic to be regarded as Wednesbury unreasonableness.

Similarly, the proportionality of the punishment is not a matter for this court to intervene in. The question whether the court can review the punishment imposed has been settled by the Federal Court in the case of Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153. It held as follows: A public officer is entitled to impugn any allegation or accusation of any disciplinary breach against him by way of judicial review on the protection given by art 135 of the Federal Constitution which provides that no member of such service shall be dismissed or reduced in rank except:

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

The Applicant further contends that the charges are tainted with duplicity as various charges are framed from the same incident. Whilst they may be so, I find no legal impediment to framing numerous charges from the same incident for so long as they are capable of forming various disciplinary breaches. Disciplinary Board not properly constituted

The Applicant contends the 2nd Respondent was not properly constituted at the material time. This contention is premised on the failure of the 2nd Respondent to respond to his letters to exhibit the letters of appointment of the Chairman and the members of the Disciplinary Board.

The contention presupposes that a specific letter of appointment must precede the convening and deliberation of a Disciplinary Board. There is no such requirement in the PO(CD)R 1993. It suffices if the members of the Disciplinary Board satisfy the requirements of Regulation 35 which provides for the rank of the officers to chair the Board. All that is required is that the delegated officers hold the appropriate rank in accordance to the delegation made by the Police Force Commission via P.U.(B) 441/2000. In this instance the Chairman had to be of or above the rank of Assistant Commissioner. The requirement has been fulfilled. Denial of right of appeal contravenes Article 5, 8 and 135(2) of the Federal

The Applicant’s appeal against the decision of the 2nd Respondent was not entertained. This is not surprising as there is no provision for appeal respecting members of the police force, a position accepted by the Applicant.

Regulation 14 of the PSDBR 1993 provides for an appeal by an officer who is aggrieved with the decision of the Disciplinary Board established under the said Regulations. However, Regulation 3 of the PSDBR 1993 provide for the Disciplinary Board to have jurisdiction in respect of persons who are members of the services mentioned in paragraph (c) and (f) of Clause (1) of Article 132 of the Federal Constitution. The class of persons referred to are those members of the general public service of the Federation and the joint public service mentioned in Article 133. The Police Force which falls under paragraph (d), is excluded.

The Applicant has therefore mounted his challenge by seeking a declaration that the Regulations 37, 37A, 37B, 37C, 37D violates Articles 5 and 8 as it discriminates him from the other members of the public service.

In my view, a right of appeal, being a creature of statute is not a fundamental right. There is nothing to suggest that it is encompassed in the right in Article 5. The fact that the police force is given a differential treatment from those in other public services is not a reason to complain it is discriminatory.

This point has in fact been fully ventilated and decided in Mohd Azizul Bin Abd Wahab v Tan Sri Dato’ Seri Abdul Hamid Bin Bador Pengerusi Lembaga (IG) Tatatertib Polis diRaja Malaysia, Bukit Aman & Ors [2025] 4 MLJ 226. Incidentally, the same counsel for the Applicant here appeared in the Court of Appeal which held as follows: [45] We are of the view that regs 37, 37A, 37B, 37C and 37D of the PO(CD)R have not discriminated against police officers vis a vis members of the class (general public service/joint public services). Our reasons are as follows:

by virtue of regs 37, 37A, 37B, 37C and 37D of the PO(CD)R, all members of the Class (Police Officers) have no right to appeal (DAB). In other words, all police officers, irrespective of their rank, race, gender and age, are treated equally by regs 37, 37A, 37B, 37C and 37D of the PO(CD)R in the sense that police officers have no right to appeal (DAB). Hence, the first condition (reasonable classification test) is fulfilled with regard to regs 37, 37A, 37B, 37C and 37D of the PO(CD)R;

there is an ‘intelligible differentia’ between:

the Class (Police Officers) which has no right to appeal (DAB); and

the class (general public service/joint public services) which has a right to appeal (DAB). There is a reasonable classification basis because:

ss 3(3) and 20(3) of the Police Act 1967 (‘the PA’) prescribe the following statutory duties for all police officers (‘Statutory Duties (Police Officers)’): s 3(3) The [Police Force] shall subject to [PA] be employed in and throughout Malaysia (including the territorial waters thereof} for the maintenance of law and order, the preservation of the peace and security of Malaysia, the prevention and detection of crime, the apprehension and prosecution of offenders and the collection of security intelligence. s 20(3) Without prejudice to the generality of the foregoing provisions or any other law, it shall be the duty of a police officer to carry out the purposes mentioned in subsection 3(3); and he may take such lawful measures and do such lawful acts as may be necessary in connection therewith, including —

(ii) according to s 19 of the PA: s 19 Police officer to be deemed on duty … By reason of s 19 PA, all police officers are ‘deemed to be always on duty’ at any place in this country (‘Police Officers’ duty (at all times/at any place)’). Members of the class (general public service/joint public services) have no duty which is equivalent to the Police Officers’ duty (at all times/at any place); and

(iii) all police officers are required by s 13 of the PA to take an oath prescribed in the Second Schedule to the PA (‘declaration (Police Officers)’) as follows: DECLARATION OF OFFICE … In view of the Statutory Duties (Police Officers), Police Officers’ duty (at all times/at any place) and declaration (Police Officers), all members of the Class (Police Officers) should realise the importance of maintaining their discipline and if a DA finds the commission of disciplinary offence(s) by them and has imposed punishment, there is no right to appeal (DAB). As explained above, there is a reasonable classification of the following two classes:

members of the Class (Police Officers) who have no right to appeal (DAB); and

members of the class (general public service/joint public services) who possess a right to appeal (DAB), (‘reasonable classification (Class (Police Officers) — class (general public service/joint public services))’). Accordingly, the second condition (reasonable classification test) is fulfilled in this case; and

the title of Part V of the PO(CD)R is ‘Disciplinary Procedure’. The two objects of Part V PO(CD)R (which includes regs 37, 37A, 37B, 37C and 37D) is to ensure that disciplinary proceedings are conducted by a DA in a just and expeditious manner (‘twin objects (Part V of the PO(CD)R)’). There is a nexus between the reasonable classification reasonable classification (Class (Police Officers) — class (general public service/joint public services)) and the twin objects (Part V of the PO(CD)R) because:

even though there is no right to appeal (DAB), disciplinary proceedings can still be carried out by a DA in a just manner against the police officers in question. In any event, police officers who have been found guilty and punished by a DA, have a right to file JRAs in the High Court against such decisions by the DA; and

with no right to appeal (DAB), disciplinary proceedings can be concluded expeditiously. … Premised on the above reasons, we have no hesitation to hold that regs 37, 37A, 37B, 37C and 37D of the PO(CD)R do not breach art 8(1) of the FC on the sole ground that PO(CD)R do not provide for a right to appeal (DAB).

I consider this court bound by the decision of the Court of Appeal on the same ground raised here.

Finally, the fact that there is no right of appeal to my mind, is not a violation of Article 135(2). The said Article merely provides that the Applicant shall not be dismissed or reduced in rank without being given a reasonable opportunity to be heard. The Applicant had been informed of the Charges against him for which he was given an opportunity to make his representations. He was therefore granted a right to be heard on the disciplinary offences in the Show Cause Letter.

Premised on the foregoing reasons, I am of the view that all the reasons advanced to challenge the decision of the 2nd Respondent have no merit. The relief of certiorari ought not to issue. In addition, the basis upon which the declarations are sought are equally devoid of merit.

In the result, the application for judicial review in enclosure 5 dismissed. I make no order as to costs. Dated: 24th March 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Applicant: G. Subramaniam Nair (Devika a/p R. Suppiah together with him) Tetuan Maniam Nair & Co. Counsel for Respondents: Pn. Shahidah Nafisah binti Leman