Mohamad Azlan Bin Rasdai v Lembaga Tatatertib Ibu Pejabat Kontinjen, Polis Diraja Malaysia (WA-25-589-11/2022)

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1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR (BAHAGIAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO.: WA-25-589-11/2022 Dalam perkara berkaitan keputusan Lembaga Tatatertib membuang kerja Mohamad Azlan bin Rasdai (No K/P: 910616-08-5325) (No Anggota: RF 185913); Dan Dalam Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993; Dan Dalam perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara berkaitan dengan perenggan 1

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Jadual Pertama Akta Mahkamah Kehakiman 1964; Dan Dalam Aturan 15 K 16 dan Aturan 53 Kaedah-Kaedah Mahkamah 2012; Dan Dalam Kes Jenayah Di Mahkamah Majistret Jenayah 9 Kuala Lumpur No Kes; WA-82-57-12/2021; Dan Dalam perkara bidangkuasa sedia ada Mahkamah Yang Mulia ini. ANTARA MOHAMAD AZLAN BIN RASDAI (No K/P 910616-08-5325) (No. Anggota: RF 185913) ... PLAINTIF DAN 1. LEMBAGA TATATERTIB IBU PEJABAT KONTINJEN, POLIS DIRAJA MALAYSIA 2. KETUA POLIS DAERAH DANG WANGI ... DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction 1. The Applicant was imposed various punishments including the punishment of dismissal from the police force with effect from 23.8.2022, consequent to disciplinary proceedings taken against him. He now files this judicial review proceedings seeking to inter alia, quash the decision of the Disciplinary Board, the 1st Respondent, and to be restored to his former position with no loss of remuneration and other pecuniary benefits. Background facts 2. The undisputed facts are as follows. 3. Prior to his dismissal, the Applicant held the rank of a lance corporal. He had been with the Royal Malaysian Police since 1.7.2012. 4. On 10.12.2021, the Applicant was charged in the Magistrates’ Court of Kuala Lumpur for a criminal offence under section 384 of the Penal Code. He was alleged to have committed the offence of extortion by demanding a sum of RM 350.00 from one Filipino, Escoro Marissa. He claimed trial to the charge. 5. Thereafter, premised on a complaint received against the Applicant, disciplinary proceedings were instituted against the Applicant. 6. On 14.4.2022, pursuant to Regulations 37(1) and (2) of the Public Officer (Conduct and Discipline) Regulations 1993 (“1993 Regulations”) the Chairman of the 1st Respondent issued a show cause letter informing the Applicant that after having considered all the available information, he was of the view that there existed a prima facie case for disciplinary proceedings with a view to dismissal or reduction in rank, to be instituted against the Applicant. 7. Pursuant thereto, the Applicant was requested to make his representation to the show cause letter containing 8 charges premised on insubordinate conduct and failure to declare property, summarised as follows:- (i) First charge-that on 5.12.2021, between 1600 hrs and 1159 hrs failed to inform his superior on the search conducted on two Filipinos, Escoro Marissa and Deloy Rowena in front of the Plaza Rakyat building, Off Jalan Pudu, Kuala Lumpur contrary to Arahan PTKPN A110 perenggan 33.1.20, and had thereby committed a disciplinary offence under Regulation 4(2)(i) of Regulations 1993; (ii) Second charge-that on 5.12.2021, between 1600 hrs and 1159 hrs in conducting a search on two Filipinos, Escoro Marissa and Deloy Rowena in front of the Plaza Rakyat building, Off Jalan Pudu, Kuala Lumpur had acted contrary to Arahan Ketua Polis Negara Bil. KPN (PR) 10/3 bertarikh 17 Julai 2019 pertaining to search and detention of foreigners, thereby committed a disciplinary offence under Regulation 4(2)(i) of Regulations 1993; (iii) Third charge-that on 5.12.2021, between 1600 hrs and 1159 hrs in conducting a search on two Filipinos, Escoro Marissa and Deloy Rowena in front of the Plaza Rakyat building, Off Jalan Pudu, Kuala Lumpur had failed to report such search to the Pusat Kawalan Ibu Pejabat Polis Daerah Dang Wangi contrary to Arahan PTKPN A110 perenggan 33.1.38 thereby committed a disciplinary offence under Regulation 4(2)(i) of Regulations 1993; (iv) Fourth Charge-that on 5.12.2021, between 1600 hrs and 1159 hrs in conducting a search on two Filipinos, Escoro Marissa and Deloy Rowena in front of the Plaza Rakyat building, Off Jalan Pudu, Kuala Lumpur failed to make a police report on the search conducted contrary to Arahan PTKPN A110 perenggan 33.1.40 and had thereby committed a disciplinary offence under Regulation 4(2)(i) of Regulations 1993; (v) Fifth charge-that on 5.12.2021, between 1600 hrs and 1159 hrs whilst on duty in Team Pematuhan dan Penguatkuasaan SOP Op Covid-19 was found to be in front of the Plaza Rakyat building, Off Jalan Pudu, Kuala Lumpur which was outside his designated area for patrol duty at the material time contrary to Arahan Pol. 69a Daftar Penugasan Harian and had thereby committed a disciplinary offence under Regulation 4(2)(i) of Regulations 1993; (vi) Sixth charge-failed to declare a property acquired subsequently namely, a Honda motorcycle bearing registration no. WKX 3972, as required under Regulations 10(3) and had thereby committed a disciplinary offence under Regulation 4(2)(i) of Regulations 1993; (vii) Seventh charge-failed to declare a property acquired subsequently namely, a motor car Perodua Viva 850-EX belonging to wife bearing registration no. AHF 3660, as required under Regulations 10(3) and had thereby committed a disciplinary offence under Regulation 4(2)(i) of Regulations; and (viii) Eighth charge-failed to declare a property acquired subsequently namely, a motor car Nissan Grand Livina belonging to wife bearing registration no. WWW 6301, as required under Regulations 10(3) and had thereby committed a disciplinary offence under Regulation 4(2)(i) of Regulations 1993. 8. The Applicant made his representations by letter dated 31.5.2022. Having considered the representations, the 1st Respondent was of the view that the Applicant’s representations failed to exculpate himself on all the charges. 9. By letter dated 30.8.2022, the Applicant was informed of the following punishments imposed pursuant to Regulations 38 with effect from 23.8.2022: (i) 1st ,3rd, 6th, 7th and 8th Charge – a warning; (ii) 2nd Charge −dismissal; (iii) 4th Charge – fine the equivalent of 3 days’ emolument; and (iv) 5th Charge – forfeiture of a day’s emolument; Grounds for review 10. The Order 53 Statement filed contained only one ground upon which the Applicant applies for judicial review. The Applicant contends that the charges in the show cause letter were based on the same facts as the charge against him in the Magistrate’s Court. Regulation 30 of the 1993 Regulations provide that no disciplinary action shall be taken until criminal proceedings are completed. The disciplinary proceedings against him was therefore premature and the punishment was wrongly imposed. 11. Apart from this ground, in the Written Submissions of counsel, further grounds were submitted upon. The Applicant contend that he was not furnished with/given access to any documentary evidence relied upon to found the charges against him. He was thus deprived him of a reasonable opportunity to make his representations to the show cause letter. The Affidavit in Reply by the Respondents had made specific reference to 2 documents namely exhibits “SMS-2” and “SMS-4”. “SMS-2” is a statement recorded from the Applicant by Jabatan Integriti dan Pematuhan Standard as part of the inquiry into a possible commission of a disciplinary offence. “SMS-4” is the Applicant’s own pocket book. These documents were relied on by the 1st Respondent to find a prima facie case against him, but were not furnished to him. 12. Thereupon the Applicant claims that a breach of natural justice and his constitutional right under Article 5 of the Federal Constitution had been occasioned by this failure. 13. The Applicant further contends that upon finding that he had failed to exculpate himself, the Respondents ought to have considered other punishments available in Regulation 38 apart from dismissal. Contention of the Respondents 14. The Respondents contend firstly, it is trite law that no grounds apart from that stated in the O. 53 Statement shall be considered. Secondly, the provisions of Regulations 1993 do not prohibit disciplinary action from being taken on grounds that are different from the charge in the criminal proceedings. In the instant case, the disciplinary offence against the Applicant was insubordination and failure to declare his property, whereas he was charged with extortion under section 384 of the Penal Code in the Magistrate’s Court. Thirdly, the Respondents contend that they are not are also not obliged to furnish SMS-2” and “SMS-4” to the Applicant as there is no written requirement to do so. Finally, the punishment to be imposed is one that should be left to the 1st Respondent. The court ought not to substitute or impose its views on the appropriate punishment. Analysis and finding 15. I shall start by dealing with the parties cited. The 2nd Respondent is the Chief District Officer of Dang Wangi. In my view, there is no necessity to cite him as a party. He had been unnecessarily named as a co-respondent. The Applicant is aggrieved at the decision of the 1st Respondent being the relevant Disciplinary Authority at the material time. It would suffice to name only the 1st Respondent in these proceedings. 16. I shall now address the competing contention of the parties. Disciplinary action taken when criminal proceedings are pending 17. The Applicant was charged with the offence of extortion in the Magistrates’ Court on 10.12.2021. On 14.4.2022, disciplinary proceedings were commenced when he was issued a show cause letter. The criminal proceedings were still pending when he was asked to make his representations. 18. The Applicant contends that Regulations 30 of the 1993 Regulations prohibits disciplinary proceedings from being taken during the pendency of the criminal proceedings. 19. Upon a proper reading of Regulation 30, I find the contention to be misconceived. 20. 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. (2) 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. 21. Reverting to the criminal proceedings faced by the Applicant, the charge in the Magistrates’ Court reads as follows: Bahawa kamu Bersama-sama pada 6/12/2021 jam lebih kurang 1900 hrs bertempat di hadapan Bangunan Plaza Rakyat Pudu di dalam daerah Dang Wangi, Kuala Lumpur telah melakukan kesalahan pemerasan terhadap pengadu bernama Escoro Marissa No. PP: P 2530276B dengan meminta wang RM 350.00 daripada pengadu. Oleh yang demikian kamu telah melakukan kesalahan di bawah seksyen 384 Kanun Keseksaan yang boleh dihukum di bawah seksyen 384 Kanun Keseksaan dan dibaca bersama seksyen 34 Kanun Keseksaan. 22. The offence stated above was clearly one of extortion. However, the disciplinary action against the Applicant was premised on entirely different grounds. 23. To recapitulate, they were in respect of conduct breaching various directives of the department, namely Arahan PTKPN A110, Arahan Ketua Polis Negara Bil. KPN (PR) 10/3 dated 17.7.2019, Arahan Pol. 69a Daftar Penugasan Harian. The failure to observe these directives constituted insubordination under Regulation 4(2)(i). These disciplinary offences were committed following the Applicant’s search on two female Filipino citizens named Escoro Marissa, No. Passport: P2530276B and Deloy Rowena Passport No: P1805641B at Plaza Rakyat, Jalan 1/77C Off Jalan Pudu, Dang Wangi Kuala Lumpur. 24. Although the disciplinary offences arose from the same factual situation which also led to him being charged with extortion, the disciplinary action was based on entirely different grounds. The fact both proceedings arose from the same incident does not offend Regulation 30. There is a clear distinction between the grounds forming the basis of the disciplinary offences from that of the criminal offence. Accordingly, no valid objection can be taken to the disciplinary proceedings. 25. In this regard, I find the Federal Court judgment in Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149 particularly instructive. It held as follows: 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). 26. Consequently, the objection taken to the disciplinary proceedings being premature has no merits. 27. By extension of the objection taken, the Applicant also complains that his fundamental rights under A. 5 has been violated. Similarly, I find this ground to be equally devoid of basis. 28. Quite apart from the disciplinary offences arising from the incident involving the two Filipinos, the Applicant was also found to be in breach of the obligation to declare to the Head of Department acquisition of additional properties, as required under Regulation 10(3). These disciplinary offences bear no relation to the criminal proceedings. Failure to provide documents considered in initiating disciplinary proceedings 29. The Respondents object to this ground as it was not stated in the O. 53 Statement. I find merit in this contention as the law on this issue is trite. Reference is made to the Court of Appeal case of Lembaga Tatatertib Kumpulan Sokongan (No 1) Jabatan Perlindungan Hidupan Liar dan Taman Negara & Ors v Mariani bt Ramli [2021] 5 MLJ 857 where it was held as follows: [41] We are also of the considered opinion that the learned judge has committed an error of law when he decided on issues not pleaded in the grounds of the application… [42] The issue of raising a ground not pleaded in the statement of the judicial review application was considered by the Federal Court in Dr A Dutt v Assunta Hospital [1981] 1 MLJ 304, where Justice Chang Min Tat FJ (as he then was) held at p 309: There appears therefore to have been a complete disregard of the procedure prescribed and to be followed by the solicitors for the hospital. No point was however taken by counsel for Dr Dutt at any stage of the proceedings. We have however mentioned them not merely to draw attention to the fact that the new rules, the Rules of the High Court 1980, continue largely the same practice, O 53 r 1(2) requiring such a statement, r 1A limiting the time for such an application, now, to six weeks of the order sought to be quashed and r 3(1) providing that subject to the discretion of the court, no grounds shall be relied upon and no reliefs sought except those set out in the statement. We have done so also because the same solicitors had previously filed such a statement in its application for prohibition and because as will be seen, this amorphous application enabled the hospital to roam at large, well outside its proper confines. [43] Justice Chang Min Tat added that the High Court should not have resorted to the affidavit for the grounds on which the application was brought, as the rule was clear that all grounds had to be set out in the statement. [44] As in a writ action or an application by originating summons, the general rule is that the parties are bound by their pleaded case. The same principle applies to an application for judicial review, where the applicant must state the grounds of the application in the statement pursuant to O 53 r 3(2) of the ROC 2012. The statement may be amended to include new grounds under O 53 r 7 of the ROC 2012. Therefore, the applicant is confined to the grounds in the statement, which have been verified by the facts in the affidavits. As such, to allow the respondent to submit on a new ground of biasness, which was not set out in the statement and not verified in the affidavits, is prejudicial to the appellants. (See also: Sunway University College v Mahkamah Perusahaan Malaysia & Anor [2019] 7 CLJ 55) 30. The failure to provide the documents was a ground formulated only after “SMS-2” and “SMS-4” was mentioned in the Affidavit In Reply of the 1st Respondent. No attempt was made to amend the O. Statement to include this failure as an additional ground. 31. In any event, there is no obligation in law on the part of the 1st Respondent to furnish the Applicant with documents prior to making his representation. In addition, the Applicant did not make any request for documents. 32. The Federal Court in Chai Kok Choi v Ketua Polis Negara & Ors [2008] 1 MLJ 725 held that there is no added duty on the disciplinary authority to provide documents without any request being made by the offending officer. The requirement that a request must first exist before the obligation to supply documents arise, was re-affirmed by the Federal Court in Vijayarao a/l Sepermaniam v Suruhanjaya Perkhidmatan Awam Malaysia [2018] 12 MLJ 17. 33. The Federal Court in Vijayarao held as follows: [81] In the present case, the appellant had also complained that he was not given any document at all by the PSC notwithstanding that specific request was made for those relevant documents including the reports that were relied upon by the PSC in finding that a prima facie case had been proved against him. The PSC had admitted using the reports in deciding that a prima facie case was proved against the appellant. Learned counsel for the appellant submitted that the Court of Appeal was plainly wrong in saying that non-supply of the documents and reports did not deprive the appellant of his right to know the case against him. [82] The right to documents related to the disciplinary proceedings is closely linked to the right for an oral hearing. Both are important elements in fulfilling the right to be heard to be afforded to the officer concerned. We are of the view that, in view of the serious charges levelled against the appellant which ultimately had resulted in him being dismissed from the service, in all fairness, the appellant ought to have been supplied with all the relevant documents and reports requested by him particularly since the disciplinary authority had relied on those documents to decide that a prima facie case had been proved against the appellant, to enable him to make an effective and meaningful defence to the charges. There is a plethora of authorities that deal with the issue. 34. I am of the view that these documents, even if supplied would not have enabled the Applicant to mount a more effective defence in his representations. These are documents, the contents of which he was aware of. “SMS-2” was his own statement and “SMS-4” his own pocket diary. The critical fact here is that he did not request for these documents for the purpose of making his representations. 35. In view of the fact that the Applicant made no request to be supplied the documents, there is no corresponding duty to supply them. Alternative punishments under Regulation 38 36. The Applicant’s contention on this issue is akin to the ground of proportionality, not uncommonly raised in judicial review proceedings. 37. However, the proportionality of the punishment imposed is not a matter for this court to intervene in. I consider the point settled by the Federal Court in Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153 when 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: (a) 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. Conclusion 38. Premised on the foregoing reasons, I find the Applicant to have failed in establishing a case for judicial review of the 1st Respondent’s decision. In the circumstances, the application in enclosure 10 is dismissed. Costs of RM 2,000.00 is ordered against the Applicant. Dated: 25th June 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Applicant: En. Purshotaman a/l Puvanendran Tetuan Purshotaman & Partners Counsel for Respondents: En. Mohamad Solehheen bin Mohammad Zaki, Federal Counsel (En. Zulkiefli bin Sulaiman, Federal Counsel & En. Ahmad Ilham bin Haridz, Federal Counsel together with him) Jabatan Peguam Negara