Malaysia Airlines System Berhad (Company No. 10601-W) v Adrian Labo (Q-02(NCVC)(A)-1718-08/2018)

ADRIAN LABO

MUHAMMAD ALIAS BIN ABDULLAH

MOHAMMED BIN BUJANG

HASMADY BIN IBRAHIM

HASSAN BIN OTHMAN (WN.KP: 700121-3-5727) … RESPONDENTS [In the matter of Judicial Review Application No.: MYY-13NCVC-2/6-2017 (HC) in the High Court in Sabah and Sarawak at Miri 2

Adrian Labo

Muhammad Alias Bin Abdullah

Mohammed Bin Bujang

Hasmady Bin Ibrahim

Hassan Bin Othman (WN.KP: 700121-3-5727) … Applicants And Malaysia Airlines System Berhad (Company No: 10601-W) 3rd Floor, Administration Building 1 MAS Complex A Sultan Abdul Aziz Shah Airport 47200, Subang, Selangor Darul Ehsan …Respondent decided by Yang Arif, Tuan Dean Wayne Daly at the Miri High Court on 10th July 2018]. CORAM: ZABARIAH MOHD YUSOF, JCA (NOW FCJ) SURAYA OTHMAN, JCA KAMALUDIN MD. SAID, JCA 3 DISSENTING JUDGMENT INTRODUCTION [1] The facts of the case are as in the majority decision and the issues in this appeal are the same as laid down in the majority judgment. The present appeal stems from the Respondents (employees of Malaysia Airlines System Berhad - “MAS”) claim against the Appellant, their employer MAS for unfair dismissal which was ventilated before the Industrial Court. The Industrial Court Chairman (“ICC”) handed the award dismissing the Respondents claim and upon the application for judicial review by the Respondents, the High Court granted the order for certiorari to quash the Industrial Court award. Dissatisfied with the decision of the learned Judicial Commissioner of the High Court (“JC”), the Appellant MAS, appealed to the Court of Appeal. The majority has allowed the appeal by MAS and I dissented and dismissed the appeal and now give my reasons for doing so. [2] The Appellant MAS states 11 grounds in their Memorandum of Appeal which are as follows: a) the learned JC erred in law and in fact in allowing the Respondents Judicial Review application against the award of the Industrial Court dated 13.2.2017. b) the learned JC erred in law and in fact in holding that the charges against the Respondents were defective for want of particulars as to who allegedly participated in the alleged gambling. 4 c) the learned JC erred in law and in fact in holding that there was no evidence that the Respondents were gambling at the material time. d) the learned JC erred in law and in fact when he failed to fully appreciate and consider the evidence that was adduced before the Industrial Court. e) the learned JC erred in law and in fact when he failed to address and properly consider the award of the Industrial Court dated 13.2.2017. f) the learned JC erred in law and in fact when he failed to address whether the Industrial Court had committed any errors of law or acted in excess of its jurisdiction, when it dismissed the Respondents claim for unfair dismissal. g) the learned JC erred in law and in fact when he failed to consider that the ICC had made findings on fact that led to the dismissal of the Respondents claim for unfair dismissal. h) the learned JC erred in law and in fact when he failed to address whether the Industrial Court fell into error or acted in excess of jurisdiction when making those findings of fact that led to the dismissal of the Respondents claim for unfair dismissal. i) the learned JC erred in law and in fact when he interfered with the substantiated finding of facts made by the Industrial Court. 5 j) the learned JC erred in law and in fact when he awarded compensation to the Respondents. k) the learned JC erred in law and in fact when he failed to apply the established legal principles in his excessive award of backwages to the Respondents. HIGH COURT DECISION [3] The grounds of decision of the learned JC of the High Court can be summarized as follows: a) charges against the Respondents were defective for want of particulars as to who allegedly participated in the alleged gambling for the Respondents to be implicated (paragraph 6); b) there was no evidence that the Respondents were gambling at the time of arrest as the charges expressly stated “ketika sedang berjudi” (paragraph 7); c) the domestic inquiry panel therefore erred in finding that the 1st to 4th Respondents were guilty of the charge of gambling (paragraph 8); d) the learned ICC failed to consider that there was no evidence that the Respondents were gambling at the time of arrest. Therefore, the Respondents were dismissed without just cause or excuse (paragraphs 9 and 10); and 6 e) the learned JC then awarded compensation totaling RM303,433.92 including compensation in lieu of reinstatement and backwages with a 10% deduction for contingencies (paragraph 13). ICC AWARD [4] The learned ICC reasons justifying her decision to dismiss the Respondents claim for unfair dismissal can be summarized as follows: a) that the Maskargo Warehouse restroom is within the MAS premises (page 15 of award); b) that the Respondents had their statements recorded and confessed to the police that they were gambling at the material time (page 15 of award); c) that the Respondents did not dispute that they had confessed to gambling in their statements to the police but only contended during the trial that they were forced to confess (page 15 of award); d) that the “surat akuan” tendered by the Respondents claiming that they had not been charged by the police did not convince the ICC of their innocence (pages 24 - 25 of Award); e) that the Respondents did not inform MAS investigation officer, Prakash Arumugam, COW2 that although they confessed to the 7 police that they were gambling, they did so because they were forced to do so (page 25 of Award); f) in respect of the 2nd Respondent's admission to COW 2 that there was gambling in the restroom when the police raided about 10 days after the incident and his subsequent denial during the trial that there was no gambling, the ICC agreed with the Appellant's counsel that the contemporaneous evidence (i.e. his statement to COW2 that there was gambling) should be preferred over his oral testimony at trial (page 16 of award); g) that the 5th Respondent's statement of "no serious gambling" meant that there was gambling, although not serious (page 25 of Award); h) that based on the statements from the 2nd and 5th Respondents and the Respondents confession to the police, on a balance of probabilities, MAS has proved that the Respondents were indeed gambling when the police raided the premises (page 25 of Award); i) in respect of the 5th Respondent, he had admitted to COW2 that he had given his statement to the police voluntarily without any duress exercised on him. In the circumstance, the ICC found that the 5th Respondent was also gambling at the material time and that his confession to the police was made voluntarily (page 26 of Award); 8 j) the ICC held that the Appellant had established on a balance of probabilities that the Respondents had committed the misconduct in the charge and was therefore guilty of the same (page 26 of Award); k) that gambling is a serious offence and that the Respondents should have complied with the Appellant's rules against gambling (page 27); and l) that the Appellant was justified in dismissing the Respondents and that their dismissal was with just cause or excuse (page 28). INTERVENTION BY APPEAL COURT [5] Generally, intervention by the appeal court is warranted in the following circumstances namely: a) when the findings are grounded entirely on speculation, surmises or conjecture; b) when an inference made by a trial court from its factual finding is plainly wrong, absurd or illogical; c) where there is insufficient judicial appreciation of evidence: CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; d) when the findings of the trial court run contrary to the admission of the parties to the case or fail to notice certain relevant facts 9 which if properly considered, will justify a different conclusion; and e) when the findings of fact are premised on the absence of evidence or are contradicted by the evidence on the record: Bank Pertanian Malaysia Bhd (Previosly known as Bank Pertanian Malaysia) v Nora’rifah Bt Darus [2014] 6 MLJ 870. THE APPEAL [6] In the appeal before us, the issue is whether the learned JC has erred in granting a judicial review for an order of certiorari to quash the ICC’s award. The test then is whether the award of the learned ICC is illegal, irrational or disproportionate to justify or warrant the learned JC to intervene and granting the said order. My reasons to dismiss the appeal and maintaining the award of the learned JC are as follows. Award of ICC who did not preside over the trial [7] In the High Court, the Respondents submitted that the award of Puan Ani Solep, the learned ICC was wrong in law and/or in fact because she failed to appreciate the whole evidence in this case and took into account irrelevant and/or wrong considerations instead of the relevant and/or right considerations. As such, the award given by Puan Ani Solep should be quashed and that the High Court ought to review her decision. 10 [8] It is to be noted that the learned ICC, Puan Ani Solep who handed down the award dated 13.2.2017 which dismissed the Respondents claim for wrongful dismissal and found that MAS had proven, on a balance of probabilities, that the Respondents were gambling at MAS’s premises was not the original ICC and did not preside over the trial. The trial was presided over by another ICC, Tuan Gabriel Gumis and Puan Ani Solep took over from him and she made her award that the Respondents were gambling at the Maskargo restroom on the day of their arrest based mainly on the statements given by the 2nd and 5th Respondents to COW2 and the Respondents alleged confession given to the police during their remand. [9] Puan Ani Solep did not take into account the oral testimonies of the Respondents at trial preferring MAS contemporaneous documents over the Respondents oral evidence at trial. She also relied on the Respondents alleged confession taken when under remand by the police to find them guilty of gambling. She disbelieved their evidence given at trial even though she was not the Chairman who actually heard the trial of the action. It must be noted that this is a very important issue as only the Chairman who heard the oral evidence of the Respondents and MAS witnesses is in a position to assess the credibility of their evidence versus the contemporaneous documents by giving their oral evidence the necessary weight. [10] The ICC who heard the trial can choose to believe or disbelieve the evidence of the Respondents and not the ICC who merely read the notes of proceedings of the trial but was not in a position to assess the character, demeanour and credibility of the Respondents oral evidence during the trial. 11 Thus her many and extensive findings of facts based solely on her assessment of the Respondents contemporaneous documents and ignoring completely the Respondents evidence at trial is unsafe. CHARGE WAS DEFECTIVE [11] The charge against the 5 Respondents are as follows: “Bahawa anda, sebagai (the position held by the respective Claimant), pada 04 November, 2008, diantara jam 2115 malam sehingga jam 2130 malam bertempat di Bilik Rehat Gudang Maskargo, Lapangan Terbang Miri telah ditahan bersama rakan-rakan anda oleh pihak polis Miri, Sarawak ketika sedang berjudi sejenis perjudian bernama “HOLO” di kawasan syarikat. Dengan ini, anda telah melakukan satu kesalahan tatatertib yang bertentangan dengan syarat-syarat perkhidmatan anda dengan syarikat seperti yang tercatat di bawah Fasa 9, Perenggan 9.1 di dalam Lampiran “A”, Acara Tatatertib Penerbangan Malaysia dan jika sabit kesalahan, anda boleh dikenakan hukuman yang berat.” [emphasis added] [12] The High Court found the charge to be defective for want of particulars as to who allegedly participated in the alleged gambling for the Respondents to be implicated. Further, though the charges stated that they were arrested while they were gambling "ditahan bersama rakan-rakan …ketika sedang berjudi", the High Court found no evidence to support that the Respondents were gambling at the time they were arrested as alleged in their respective charges. 12 [13] In Dorsett Regency (M) Sdn Bhd v Azham Shah Mohamad Yusof & Satu Lagi [2006] 5 CLJ 82, Raus Sharif J, (as His Lordship then was), held a similar gambling charge to be defective because it failed to state with whom the Claimants were alleged to be gambling. Raus Sharif J, held at page 89 as follows: “…Mengenai pertuduhan berjudi, masa, tempat dan dengan siapa responden pertama dikatakan berjudi tidak dinyatakan dalam pertuduhan. Dengan itu, saya bersetuju dengan Mahmakah Perusahaan bahawa pertuduhan-pertuduhan yang dihadapkan ke atas responden pertama adalah cacat dan tidak sempurna. Dengan alasan ini sahaja, permohonan pemohon untul perintah certiorari seharusnya ditolak.” [14] In our case even though the date, time and place were stated in the charge, with whom the Respondents were gambling with was not stated and this renders the charge to be defective and the application for certiorari was thereby correctly granted by the High Court. The Appellant - MAS case [15] MAS pleaded case was that all five Respondents were found gambling the HOLO game at the company’s premises in the restroom of the Maskargo Warehouse on 4.11.2008 together with one Mohammed Nazrul Hassan and one Ching Yak Kiaw. Mohammed Nazrul was an employee of MAS whereas Ching Yak Kiaw was not an employee of MAS but a customer of Maskargo. [16] After their arrest, all the Respondents, Mohammad Nazrul and Ching Yak Kiaw were taken to the police station where their statements were 13 recorded by the police. It was alleged that all the Respondents confessed that they were gambling at the material time. [17] After the conclusion of the domestic inquiry, all the Respondents were found guilty of the charges proffered against them and their services were terminated. MAS pleaded that the dismissal of the Respondents was justified based on the evidence tendered at the domestic inquiry and based on the Respondents confession of their guilt to the police. Respondents case [18] The Respondents case was that there was no gambling when they were arrested, no gambling took place on 4.11.2008 at MAS premises and the Respondents were never charged in court with gambling offences. [19] The Respondents contended that the alleged confessions to the police were not made voluntarily but were made under duress and inducement. [20] During the trial at the Miri Industrial Court, it was discovered that the panel of domestic inquiry had actually found the 5th Respondent, Hassan bin Othman not guilty of the charge of gambling. However, all the Respondents including Hassan bin Othman were dismissed by MAS. [21] The Respondents lodged their respective appeals with MAS on 15.9.2009. All their appeals were dismissed vide a letter from MAS dated 8.1.2010 and all the Respondents subsequently filed their claims for unfair dismissals against MAS at the Miri Industrial Court. The Respondents pleaded that their dismissal from MAS were without just cause or excuse. 14 At Trial in the Industrial Court [22] In respect of the 2nd Respondent’s statement to COW2 that there was gambling in the restroom at the time of the police raid, the learned ICC stated that his denial at the trial that there was gambling contradicted his earlier statement given to COW2. Due to this contradiction, the learned ICC preferred the Respondent’s statement to his oral testimony at trial. [23] Likewise, the learned ICC held that the 5th Respondent’s statement to COW2 that “there was no serious gambling” must have meant that there was gambling ongoing although not serious and she preferred this statement to his oral testimony at trial that there was no gambling. [24] The learned ICC then concluded that from these two statements from the 2nd and 5th Respondents and the alleged confession made by all of the Respondents to the police, it showed, on a balance of probabilities, that there was indeed gambling in the restroom. Whether the Respondents were gambling [25] The Respondents contended that they were standing outside the Maskargo restroom and were not inside the restroom where the gambling had allegedly taken place. [26] The learned ICC however found otherwise. She stated that the Respondents were in the Maskargo restroom at the time of the police raid. She stated that the Respondents did not state that they were not inside the 15 restroom at the time of the police raid in their earlier replies to the show cause or in their interviews with the investigating officer of the case, COW2 or during the domestic inquiry or in their letters of appeals. [27] Due to these omissions in not stating that they were not inside the restroom, the learned ICC was not convinced that the Respondents were outside the restroom and she made her own deduction that the Respondents must have been in the restroom gambling at the time of the police raid. [28] It must be noted that the charges stated that they were arrested while they were gambling "ditahan bersama rakan-rakan …ketika sedang berjudi". The learned ICC made her findings that the Respondents were gambling based on the statements given by the 2nd and 5th Respondents to COW2 at the domestic inquiry. [29] The learned ICC stated that the 2nd Respondent had in fact admitted to COW2 that there was gambling but he was only watching. In respect of the 5th Respondent, the ICC stated that the 5th Respondent in his statement to COW2 had admitted that there was gambling but it was not serious. [30] Therefore, based on the statements from the 2nd and 5th Respondents, she was not convinced that the presence of the Respondence in the restroom when the police conducted their raid was innocent and she concluded that it showed, on a balance of probabilities, that the Respondents were indeed gambling when the police raided the restroom. 16 Testimony of the 5th Respondent [31] The question here, is whether the learned ICC had properly considered and evaluated the evidence of the Respondents in coming to her conclusion. The 5th Respondent testified at the domestic inquiry of the 1st Respondent at page 27 of COBD [page 421 of AR], where he stated as follows: “Q4 : Selepas anda mengetahui punca pertengkaran tersebut, apakah tindakan anda seterusnya? A : Saya melarang lelaki cina tersebut dan tidak membenarkan beliau cuba terus memujuk kakitangan MAS untuk berjudi dan saya menghalang beliau dan membawa beliau keluar dari bilik rehat tersebut. Sejurus kemudian pihak polis datang menyuruh kami semua masuk balik ke bilek.” Q5 : Selepas pihak polis mengarahkan kamu masuk ke dalam bilek tersebut, apa yang berlaku seterusnya? A : Pihak polis mengambil bahan perjudian yang dimiliki lelaki cina tersebut.” [emphasis added] Testimony of the 1st Respondent [32] The 1st Respondent testified at his domestic inquiry that the Respondents were outside the restroom at the time of the police raid as follows: “Q9 : Seterusnya apakah yang berlaku? 17 Kami pun mulai beredar dari bilik rehat tersebut dan semasa kami berada di luar bilik rehat, polis datang and mengarah kami masuk semula ke dalam bilik rehat tersebut.” [emphasis added] Testimony of the 3rd Respondent [33] While the 3rd Respondent, at page 298 of COBD [page 694 of AR], testified at his domestic inquiry that the Respondents were outside the restroom at the time of the police raid as follows: “Q5 : Adakah anda megetahui punca pertengkaran tersebut dan apakah yang berlaku seterusnya? Punca pertengkaran tersebut adalah kerana orang Cina itu cuba mengajak kami untuk bermain judi tetapi kami semua melarangnya untuk melakukan perkara tersebut disebabkan tempat itu adalah tempat kerja. Seorang security bernama Hassan Bin Othman menyuruh Cina itu keluar dari Bilik Rehat tersebut. Belum lama selepas itu, tiba-tiba pasukan Polis menggunakan van telah datang. Q6 : Adakan anda disuruh ke Balai Polis untuk memberi keterangan? A : Semasa anggota Polis itu datang, kami diarah masuk ke Bilik rehat itu dan lepas semuanya masuk, kami diarah untuk ke Balai Polis menggunakan van tersebut. Ya, kami dibawa ke Balai Polis untuk memberi keterangan.” [emphasis added] 18 Deduction from the 3 testimonies [34] What actually did transpire on the day of the police raid? From the testimonies at the domestic inquiry of the 1st, 3rd and 5th Respondents, a querrel had ensued in the restroom. This was due to the presence of one Chinese man (Ching Yak Kiaw) who had entered the restroom to persuade the 1st and the 3rd Respondents to gamble with him. The Respondents had refused since gambling is prohibited in the workplace which resulted in a ruckus and the 5th Respondent, Hassan bin Othman who was a MAS security personnel who was present outside the restroom had to intercede. [35] The 5th Respondent from his testimony had prohibited Ching Yak Kiaw from persuading the Respondents to indulge in gambling and had escorted Ching Yak Kiaw out of the restroom. All the Respondents then left the restroom and when they were outside the restroom, the police raided the premise and directed all the Respondents to enter the restroom and the police then confiscated the gambling paraphernalia belonging to Ching Yak Kiaw. Corroboration of the 1st, 3rd and 5th Respondents testimonies by a MAS employee, Mohammad Nasrul Hassan [36] The testimonies of the 1st, 3rd and 5th Respondents were corroborated by a MAS employee, Mohammad Nasrul Hassan who was in the restroom at that material time at page 293 of COBD [page 689 of AR] during the domestic inquiry as follows: 19 “Q3 : Cuba jelaskan kepada panel apa yang berlaku pada malam tersebut? …Tidak lama dari itu, Hasmady, Alias dan Muhammad Bin Bujang pun datang. Pegawai Keselamatan Encik Hassan cuba menenangkan keadaan dan membawa lelaki Cina itu keluar dari bilik rehat. Tidak lama mereka keluar, mereka diserbu oleh pihak Polis. Kemudiannya, kami di bawa ke Balai Polis.” Deduction from Mohammad Nasrul Hassan’s testimony [37] From Mohammad Nasrul Hassan’s testimony, Hasmady (the 4th Respondent), Alias (the 2nd Respondent) and Muhammad bin Bujang (the 3rd Respondent) then entered the restroom and the 5th Respondent, Hassan bin Othman who was MAS security personnel tried to calm down the situation by escorting Ching Yak Kiaw out of the restroom while the rest of the Respondents followed. Not long after that the police raided the premises and brought the Respondents to the police station. Testimonies of the raiding parties in the Domestic Inquiry corroborated the testimonies of the Respondents and Mohammad Nasrul Hassan [38] The testimony of Mohammad Nasrul Hassan was corroborated by Inspector Helmi Ariff, the officer heading the raiding team (at page 278 of COBD or page 674 of AR) and Lans Corperal Saudi bin Apoi (at page 265 of COBD or page 661 of AR) who both testified during the domestic inquiry that they did not see anyone gambling at the premises. 20 [39] The question here then, is how did the learned ICC, with all the testimonies of the Respondents, Mohammad Nasrul Hassan and the police raiding parties, Inspector Helmi Ariff and Lans Corperal Saudi bin Apoi before her, made her finding that the Respondents were indeed gambling when the police raided the restroom. [40] Her deduction that just because the Respondents did not inform COW2 that they were outside the restroom at the time of the police raid, must have meant or implied that they were indeed in the restroom gambling; is to say the least, over simplistic, in fact wrong, irrational and cannot be sustained in the face of the testimonies of the 1st, 3rd, 5th Respondents; the testimony of Mohammad Nasrul Hassan, a MAS employee who was present at the restroom at the material time and the testimonies of Inspector Helmi Ariff and Lans Corperal Saudi bin Apoi, the raiding parties who all stated otherwise during the domestic inquiries. [41] From the testimonies of the witnesses above, the fact remains that the Respondents were not gambling at the time the police raided MAS premises. All the Respondents had exited the restroom (where the alleged gambling had taken place) and were already outside the restroom before the police came to raid the premises. The police then directed them to enter the restroom and confiscated the gambling paraphernalia belonging to Ching Yak Kiaw in their presence. [42] It must be emphasized that this is not a case where the Respondents were caught red-handed. At most, the case is circumstantial. From the testimony of the 5th Respondent in the domestic inquiry, he entered the 21 restroom due to a quarrel that had ensued due to the presence of one Chinese man (Ching Yak Kiaw, a customer of Maskargo) who had gone there to persuade the 1st and 3rd Respondents, against their will, to gamble. [43] The 1st and 3rd Respondents refused to do so since gambling was prohibited in the workplace which resulted in a ruckus and the 5th Respondent, as a security personnel had to intercede and according to his testimony, he had prohibited Ching Yak Kiaw from persuading the Respondents to indulge in gambling and had escorted Ching Yak Kiaw out of the restroom to calm down the situation. [44] The 5th Respondent testimony were not only corroborated by the 1st and 3rd Respondents but also by Mohammad Nasrul Hassan, a MAS employee who testified that the 2nd and 4th Respondents then came into the restroom and the 5th Respondent subsequently succeeded in calming down the situation by escorting Ching Yak Kiaw out of the restroom. [45] Thus the learned ICC was indeed erroneous in her finding that the Respondents were indeed gambling when the police raided the restroom. Her assessment was defective and did not take into account the evidence before her as a whole. [46] Even if the Respondents were in the restroom before the police raided the premises, from the testimonies of the witnesses, there was no gambling in the restroom; what more any participation in it. In short, what can be deduced was that Ching Yak Kiaw had brought the HOLO game to the restroom to persuade the Respondents to indulge in gambling. The 22 Respondents desisted (to their credit) and persuaded Ching Yak Kiaw against it which led to the quarrel or ruckus that led to the 5th Respondent intercession. Alleged confession of gambling by the Respondents [47] The learned ICC relied on the Respondents alleged confession to the police to arrive at her conclusion that the Respondents must have been gambling at the Maskargo restroom on the day of their arrest. [48] The Respondents submitted that their confessions recorded before the police were not made voluntarily and thus not admissible as they were forced to confess by the police during their remand. [49] The learned ICC however held otherwise. The learned ICC held that the Respondents were not forced to confess but instead, they had confessed voluntarily after knowing the consequences of their confession. The learned ICC opined that the Respondent should have exonerated themselves by informing MAS investigating officer, COW2 of their alleged forced confession to the police, but since they failed to do so, it must have meant that they had indeed gambled in the restroom when the police raided the premises. She also deduced that no force or threat was employed by the police to extract their confessions. [50] The finding of the learned ICC is irrational/perverse and contrary to evidence since the Respondents did indeed informed COW2 of the forced confession extracted by the police. 23 [51] The 1st Respondent during his interview with COW2 testified at page 7 of COBD (page 402 of AR) that he was forced to confess that he played the HOLO game at the restroom since the police threatened that action will be taken against all of them notwithstanding that they did not indulge in the HOLO game. [52] According to the 1st Respondent, the police made this threat against all the Respondents including the Chinese man (Ching Yak Kiaw) and due to this threat, all of them confessed. The statements given by the 2nd and 4th Respondents to COW2 were also consistent and they stated the same (at pages 46 and 60 COBD or page 440 and page 454 of AR). [53] However, in the 5th Respondent’s statement to COW2 at page 90 of COBD or page 484 of AR), he stated that all of them including Ching Yak Kiaw did not confess to gambling in the restroom. [54] Further, in the 1st Respondent’s reply to the show cause letter (at page 12 of COBD or page 407 of AR), the 1st Respondent stated that the police forced them to confess, otherwise they will be remanded and will be forced to get a lawyer to bail them out. [55] According to the 1st Respondent, the police assured them that if they confess, they will not be remanded but will only have to pay a fine and in the state of confusion and fear, they confessed. But the 1st Respondent qualified himself by saying that they had always maintained that they did not indulge in gambling in their statements to MAS. The 1st Respondent reply is as follows: 24 “Walaupun kami tidak bermain judi ketika itu tetapi pihak polis menyuruh kami membuat pengakuan untuk menyenangkan dan memendekkan cerita, pihak polis menyatakan walaupun kami tidak berjudi ketika itu tetapi adalah menjadi kesalahan jika tidak melapurkan perkara perjudian itu kepada pihak polis, kami telah cuba sedaya upaya untuk menjelaskan kedudukan sebenarnya kepada pihak berkuasa polis perihal yang sebenarnya. Selepas itu, kami dimaklumkan jika kami tidak mengaku kesalahan berjudi tersebut, pihak polis akan menahan reman kami dan kami terpaksa mengemukakan peguam untuk menjamin kami keluar tetapi jika kami mengaku berjudi, kami tidak akan di remand dan hanya akan dikenakan denda dan kami tidak perlu membayar perkhidmatan peguam, kami cuma perlu hadir di mahkamah untuk membuat pengakuan di depan hakim dan membayar denda sahaja. Dalam keadaan kelam kabut dan ketakutan, kami pun membuat pengakuan tersebut tetapi dalam statement yang diberikan kepada pihak keselamatan MAS, kami tidak mengaku bahawa kami ada berjudi pada ketika itu, ini adalah untuk memaklumkan kepada pihak syarikat perkara yang sebenarnya berlaku ketika itu, memang kami tidak berjudi pada ketika itu seperti yang tertera di dalam surat allegation letter dari syarikat dan bukan untuk memutarbelitkan fakta sebenar atau berdolah dalih hal sebenar.” [56] The reply to the show cause given by the 2nd to 5th Respondents were also consistent and they stated the same (at pages 50, 64, 79, and 98 of COBD or pages 444, 458, 473 and 492 of AR). [57] The same stance of being forced to confess under threat and inducement were stated by the 1st and 5th Respondents (at pages 28, 31,122,124 of COBD or pages 422, 425, 516, 518 of AR) during the domestic 25 inquiry. The 3rd and 4th Respondents also said the same at pages 295,296, 298, 299 of COBD or 691, 692, 694, 695 of AR during the domestic inquiry. [58] The fear that they will not be able to attend work the next day since they work the morning shifts due to being remanded by the police induced them to make the confessions. These explanations were completely disregarded by the learned ICC. [59] During the trial, COW1 (Sergeant Chiu), the investigating officer of the case merely testified that all the Respondents had confessed to gambling. However, he could not produce their written confessions to be tendered in Court as exhibits due to the fact that the investigating papers relating to the Respondents alleged gambling offence had been destroyed in a fire at the Miri Central Police Station on 19.4.2012. Be that as it may, this cannot exonerate MAS or the police from proving that the alleged confessions of the Respondents were made voluntarily. [60] Further, I agreed with the Respondents counsel’s submission that COW1’s evidence that the Respondents had confessed to gambling would go against the evidence of the raiding police officers, Inspector Helmi Ariff and Lans Corperal Saudi bin Apoi at the domestic inquiry who testified that there was no gambling activity ongoing at the time of the police raid. [61] The evidence of COW1 would also contradict the statements given by the Respondents to COW2 that they were forced to confess by the police which was consistent with their reply to the show cause letters and their testimonies given at the domestic inquiry. 26 [62] In the event if there was a confession obtained from the Respondents, this confession was involuntarily obtained through inducement, threat or promises given to the Respondents. The inducement given to them was that they would be released immediately if they confessed to gambling so that they would not have to stay overnight in the police lock up since most of them were working the next day. [63] Another inducement was that, if the Respondents confessed, they would be released immediately without having to appoint a lawyer and would merely have to pay a fine in Court. The learned ICC should have considered these inducements given to the Respondents which inducements would have rendered the confessions inadmissible before holding that their confessions were voluntary. Instead, she totally disregarded their evidence at trial. Failure to call material witnesses Presumption of adverse inference under s 114(g) Evidence Act 1950 [64] There were 4 material witnesses who were at the scene of the alleged gambling on 4.10.2008. They are Ching Yak Kiaw, a customer of Maskargo who is the owner of the HOLO game or the gambling paraphernalia; Mohammad Nasrul Hassan, a MAS employee and the 2 raiding police officers, Inspector Helmi Ariff and Lans Corperal Saudi bin Apoi. [65] The Investigating Officer of the case, Sergeant Chiu (COW1) testified at the trial that Inspector Helmi Ariff and Lans Corperal Saudi bin Apoi had 27 been transferred out of Miri but did not say whether they had left the police force. As such, they could have been easily subpoenaed but were not. [66] Likewise, MAS could have obtained the assistance of the police to trace or subpoena Mohamad Nasrul Hassan and Ching Yak Kiaw but this was not done either. In fact, no attempts were made or shown by MAS to trace or call these material witnesses. [67] All these witnesses were material witnesses because they were present at the scene of the alleged gambling and could have informed the Court whether at the time of the raid there was gambling at the Maskargo restroom; whether the Respondents participated in it and whether the Respondents were outside the the Maskargo restroom when the police raid occurred. [68] In Dorsett’s case (supra), the Court had agreed with the Industrial Court that it was entitled to invoke the presumption of adverse inference under section 114(g) of the Evidence Act 1950 when it failed to call one “Poad” with whom the Claimant was alleged to be gambling since the charge against the Claimant was that he was gambling. Raus Sharif J, as His Lordship then was, at pages 90 and 91 stated as follows: “Di dalam kes ini dakwaan utama pemohon terhadap defendan pertama ialah beliau berjudi. Di dalam hal ini Mahkamah Perusahaan memutuskan: “… the allegation against the claimant is that he was gambling but the charge does not state as to whom he was gambling with. The claimant cannot be gambling by himself. The court assumes that the claimant is alleged to be gambling with Poad since according to 28 COW1’s evidence he was sitting opposite the claimant although as stated above COW2 and COW3 made no mention of Poad sitting opposite the claimant or that he was holding cards. In the circumstances it was incumbent on the Hotel and not on the claimant to call Poad as a witness since the evidence is crucial to enable the Hotel to prove the charge. However the Hotel failed to call him and no reason was given to the Court for its failure to do so. The Court will therefore draw an adverse interference against the Hotel under Section 114(g) of the Evidence Act 1950. The Court presumes that this evidence which could be and is not produced would if produced be unfavourable to the Hotel.” Jelas dari petikan di atas, Mahkamah Perusahaan mendapati bahawa keterangan yang dikemukakan tidak mencukupi untuk menunjukkan responden pertama adalah berjudi. Fakta perjudian itu mungkin boleh dibuktikan jika Poad dipanggil oleh pihak pemohon untuk memberi keterangan. Tetapi Poad tidak dipanggil sebagai saksi. Juga tidak ada sebab dinyatakan mengapa pihak pemohon tidak memanggilnya. Jadi adalah tidak silap untuk Mahkamah Perusahaan memakai s. 114(g) Akta Keterangan di dalam keadaan sedemikian. Tambahan pula Nasaruddin dan Abdul Rahman yang memberi keterangan semasa inkuiri, telah menyatakan bahawa mereka tidak berjudi. Jadi, dari keterangan yang dikemukakan, adalah tidak munasabah untuk panel inkuiri domestik, menyimpulkan bahawa responden pertama berjudi walhal saksi-saksi tidak menyatakan sedemikian.” [emphasis added] [69] In our case, the learned ICC did not consider the failure to call these material witnesses and invoking the presumption of adverse inference under section 114(g) against MAS for such a failure. 29 [70] To make matters worse, she did not even consider their testimonies in the domestic inquiry preferring to focus only on the statements made by the 2nd and 5th Respondents to COW2 (that also selectively on certain portions and not on the whole), and the alleged confessions (which were never produced in Court and were challenged as to their voluntariness) and completely ignored the rest of the evidence to make her findings of guilt on the charge preferred. [71] Further, she also failed to consider that MAS had failed to produce any CCTV recording of the restroom and to establish that there was rampancy of gambling at the workplace during the trial. Even the gambling paraphernalia, the HOLO game and the cash sum of RM84.00 were not produced and tendered as exhibits through COW1 during the trial. [72] Added to that, in cross-examination during trial, COW2 was not even aware that the 2nd to 4th Respondents, the police raiding officers, Inspector Helmi Ariff and Lans Corperal Saudi bin Apoi had testified in the domestic inquiry that there was no gambling at the time of the police raid. [73] Based on the foregoing, the learned ICC’s assessment and deduction is marred and ran contrary to the evidence on record. Dismissal of the 5th Respondent by MAS despite the finding of not guilty by the Domestic Inquiry Panel [74] There was no explanation by MAS as to why the 5th Respondent was dismissed despite the domestic inquiry panel finding him not guilty. MAS had no good reason to overturn the decision of the domestic inquiry panel. 30 [75] The 5th Respondent was merely carrying out his duty as a security personnel who had successfully prevented the customer of Maskargo Ching Yak Kiaw from gambling inside the Maskargo restroom and had escorted him out of the rest room before the police raided the room. The only reasonable conclusion one could make on the dismissal is that it was high-handed, arbitrary and was without just cause or excuse. CONCLUSION [76] It is trite law that the findings of a Domestic Inquiry are not binding upon the Industrial Court which hears the matter afresh (see Hong Leong Equipment Sdn. Bhd. v Liew Fook Chuan & other appeals [1997] 1 CLJ 665). [77] Be that as it may, in this case before us, the learned ICC had made her findings of guilt based on contemporaneous documents, i.e, the 2nd and 5th Respondents statements to COW2 that there was gambling and the alleged confession of gambling of all the Respondents to the police. The learned ICC completely ignored the evidence given at trial preferring the documents to oral evidence. [78] Her assessment of the two documents by the 2nd and 5th Respondents was erroneous since she has accepted a portion of the statements without considering the statements as a whole. She ignored the other testimonies of the Respondents and that of the 4 material witnesses who had testified in the domestic inquiry. She even ignored the evidence given by the 31 Respondents at trial and accepted the alleged confession to the police simpliciter as the truth even upon it being challenged at trial. [79] As stated earlier, she was not the ICC who presided over the trial. She took over only after the trial was completed and based on the notes of proceedings, she made her assessment that the evidence of the Respondents at trial could not be believed. Her assessment and findings are handicapped since she did not preside over the trial and would not be in a position to duly weigh and assess the evidence given by both the Respondents and MAS witnesses, particularly their demeanour and credibility. [80] Further, her assessment and findings run contrary to the contemporaneous documents and in accepting the alleged confession simpliciter, she ignored the rule on admissibility. [81] I find her findings were premised on the absence of evidence or are contradicted by the evidence on record (see Bank Pertanian Malaysia Bhd (supra). There were indeed insufficient judicial appreciation of evidence where relevant facts were not considered and irrelevant facts considered instead (see CGU Insurance Bhd (supra). Her findings were also plainly wrong, erroneous, absurd/irrational or illogical. [82] Conversely, I find the learned JC’s decision simple and yet it addressed the root of the matter of the charge: whether there was gambling at the Maskargo restroom and whether the Respondents participated in the gambling to establish misconduct to justify dismissal. The learned JC found 32 the charge to be defective for want of particulars and that there was no gambling as according to the charge and the dismissal of the Respondents to be without just cause or excuse. He then allowed the judicial review. His intervention, in my considered view, is correct since the award of the learned ICC is plainly wrong, erroneous and irrational. [83] In the upshot, and based on the reasons stated above, I am of the view, that in the circumstances of this case, the intervention by the learned JC is correct. The appeal by MAS is thereby dismissed and the decision of the learned JC is affirmed. -Signed-Dated: 24 January 2022 (SURAYA OTHMAN) Judge Court of Appeal Malaysia 33 CASE(S) REFERRED TO: 1) CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; 2) Bank Pertanian Malaysia Bhd (Previosly known as Bank Pertanian Malaysia) v Nora’rifah Bt Darus [2014] 6 MLJ 870; 3) Dorsett Regency (M) Sdn Bhd v Azham Shah Mohamad Yusof & Satu Lagi [2006] 5 CLJ 82; and 4) Hong Leong Equipment Sdn. Bhd. v Liew Fook Chuan & other appeals [1997] 1 CLJ 665. LEGISLATION REFERRED TO: Section 114(g) Evidence Act 1950; COUNSEL (S): For the Appellant - Messrs Tang Advocates Lot C348, C377 Block C, Level 3 Icom Square, 93450 Kuching, Sarawak For the Respondents - Messrs Jethi & Associates Advocates Lot 1236, 1st Floor Jalan Melayu Centrepoint Commercial Centre 98000 Miri, Sarawak