Mohamad Sufian Bin Abdul Halim v 1. ) LEMBAGA TATATERTIB POLIS DIRAJA MALAYSIA (WA-25-30-02/2023)

KERAJAAN MALAYSIA DIDENGAR BERSAMA PERMOHONAN SEMAKAN KEHAKIMAN NO.: WA-25-29-02/2023 Dalam perkara satu permohonan oleh MOHD IDZUDDIN BIN MAZLI (NO. RF/S 15493, NO. K/P: 830704-08-5771) untuk memohon satu Perintah Deklarasi dan/atau Certiorari Dalam perkara keputusan yang dibuat oleh Lembaga Tatatertib Polis Diraja Malaysia berkuatkuasa pada 16-11-2022 DAN Dalam perkara Perintah-Perintah Am Bab D: Peraturan-Peraturan Pegawai Awam (Kelakuan & Tatatertib) 1993 dan Peraturan-Peraturan Pegawai Awam (Kelakuan & Tatatertib) (Pindaan 2002) dan Peraturan-Peraturan Lembaga Tatatertib Perkhidmatan Awam 1993. Dalam Perkara 5, 7, 8 dan 135 Perlembagaan Persekutuan Dalam Perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012 MOHD IDZUDDIN BIN MAZLI

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KETUA POLIS NEGARA KERAJAAN MALAYSIA DIDENGAR BERSAMA PERMOHONAN SEMAKAN KEHAKIMAN NO.: WA-25-30-02/2023 Dalam perkara satu permohonan oleh MOHAMAD SUFIAN BIN ABDUL HAMID (NO. RF187166,NO. K/P: 911127-02-5721) untuk memohon satu Perintah Deklarasi dan/ atau Certiorari Dalam perkara keputusan yang dibuat oleh Lembaga Tatatertib Polis Diraja Malaysia berkuatkuasa pada 16-11-2022 Dalam perkara Perintah-Perintah Am Bab D: Peraturan-Peraturan Pegawai Awam (Kelakuan & Tatatertib) 1993 dan Peraturan-Peraturan Pegawai Awam (Kelakuan & Tatatertib) (Pindaan 2002) dan Peraturan-Peraturan Lembaga Tatatertib Perkhidmatan Awam 1993. Dalam Perkara 5, 7, 8 dan 135 Perlembagaan Persekutuan Dalam Perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012 MOHAMAD SUFIAN BIN ABDUL HAMID

KERAJAAN MALAYSIA JUDGMENT [1] There are three judicial review applications that are heard together. They are WA-25-28-02/2023 (“JR No. 28”), WA-25-29-02/2023 (“JR No. 29”) and WA-25-30-02/2023 (“JR No. 30”). [2] For convenience, I will refer to the applicants in JR No. 28, JR No. 29 and JR No. 30 as the 1st, 2nd and 3rd applicants, respectively. [3] Let me begin with JR No. 28. JR No. 28 [4] The 1st applicant, Mohd Aiman, joined the Royal Malaysia Police (“PDRM”) in 2012. Prior to his dismissal, the 1st applicant was ranked as a Lance Corporal. [5] On 6.7.2022, the Kuala Lumpur Contingent Police Headquarters (“IPK KL”) issued a letter to show cause to the 1st applicant, informing him of ten disciplinary charges against him with a view to dismissal or reduction in rank under reg 37 of the Public Officers (Conduct and Discipline) Regulations 1993 (“the 1993 Regulations”). [6] The disciplinary charges against the 1st applicant can be summarised as follows: 1st Charge On 16.10.2021, between 3.00 pm until 11.00 pm, the 1st applicant arrested and inspected four foreign nationals namely Aung Pyay Nyein (Passport No: MC 242364), Van Bawi Uk (UNHCR No: 79100129908), Soaleh (Passport No: C3424778) and Musriyah binti Musliman (Passport No: C3424778) (“4 foreign citizens”) at Jalan Kiara, Kuala Lumpur (“the said four foreign nationals”), in contravention of the instruction in KPN(PR)10/3 dated 17.7.2019 and KPN(PR)58/2 dated 20.10.2017 – a disciplinary offence of being insubordinate under reg 4(2)(i) of the 1993 Regulations. 2nd Charge On 16.10.2021, between 3.00 pm and 11.00 pm, the 1st applicant failed to report to the supervisor or the Officer-in-Charge of Sri Hartamas Police Station, Brickfields District Police Headquarters, Kuala Lumpur (“IPD Brickfields”) about the arrest and inspection of the said four foreign nationals, in contravention of the instruction in PTKPN A110 para 33.1.20 – a disciplinary offence of being insubordinate under reg 4(2)(i) of the 1993 Regulations. 3rd Charge On 16.10.2021, between 3.00 pm and 11.00 pm, the 1st applicant failed to report to the Control Centre of the IPD Brickfields about the arrest and inspection of the said four foreign nationals, in contravention of the instruction in PTKPN A110 para 33.1.38 – a disciplinary offence of being insubordinate under reg 4(2)(i) of the 1993 Regulations. 4th Charge On 16.10.2021, between 3.00 pm and 11.00 pm, the 1st applicant did not make any entry in the Station Diary (PDRM (A) 40) about the arrest and inspection of the said four foreign nationals, in contravention of the instruction in PTKPN A110 para 33.1.40 – a disciplinary offence of being insubordinate under reg 4(2)(i) of the 1993 Regulations. 5th Charge On 16.10.2021, between 3.00 pm and 11.00 pm, the 1st applicant did not make any entry in the Pocket Book (PDRM (A) 5) about the arrest and inspection of the said four foreign citizens, in contravention of instruction in PTKPN A110 para 33.1.40 – a disciplinary offence of being insubordinate under reg 4(2)(i) of the 1993 Regulations. 6th Charge On 16.10.2021, between 3.00 pm and 11.00 pm, the 1st applicant failed to lodge a police report on the arrest and inspection of the said four foreign nationals, in contravention of the instruction in PTKPN A110 para 33.1.40 – a disciplinary offence of being insubordinate under reg 4(2)(i) of the 1993 Regulations. 7th Charge The 1st applicant failed to declare ownership of his property, a Yamaha Y15ZR motorcycle with registration no. VBH 3258, which was registered on 28.3.2018 to the Head of Department, in contravention of reg 10(3) of the 1993 Regulations – a disciplinary offence of being insubordinate under reg 4(2)(i) of the 1993 Regulations. 8th Charge The 1st applicant failed to declare ownership of his property, a Yamaha NVX motorcycle with registration no. VCW 7081, which was registered on 21.5.2019, to the Head of Department, in contravention of reg 10(3) of the 1993 Regulations – a disciplinary offence of being insubordinate under reg 4(2)(i) of the 1993 Regulations. 9th Charge The Applicant failed to declare ownership of his property, a Yamaha Y15ZR motorcycle with registration no. VFD 9447, which was registered on 7.9.2020, to the Head of Department, in contravention of reg 10(3) of the 1993 Regulations – a disciplinary offence of being insubordinate under reg 4(2)(i) of the 1993 Regulations. 10th Charge The 1st applicant failed to declare ownership of his property, a Mazda 2.0L HB(A) car with registration no. WXJ 9155, which was registered on 22.7.2021, to the Head of Department, in contravention of Regulation 10(3) of the 1993 Regulations – a disciplinary offence of being insubordinate under Regulation 4(2)(i) of the 1993 Regulations. [7] The 1st applicant submitted his written representation dated 4.8.2022, which I have taken the liberty to summarise as follows:

As to the 1st to 5th Charges, the delay in his action was due to the fact that he, together with the 2nd and 3rd applicants, were waiting for a set of complete documents from the arrestees. According to the 1st applicant, the identification documents were not with the arrestees at the time of the arrest.

As to the 6th Charge, the 1st applicant explained that the 2nd applicant, Kpl Mohd Izuddin bin Mazli, had drafted the report on the arrest and inspection of the arrestees but, due to time constraints, did not have the time to lodge it.

On the 7th to 9th Charges, the 1st applicant asserted that he had sold the said motorcycles to individuals who were no longer contactable.

As the 10th Charge, the 1st applicant explained that he purchased the said motorcar during the Movement Control Order (“MCO”), which made it difficult to formalise the registration of the said vehicle. [8] The 1st respondent, the PDRM Disciplinary Board (“DB”), vide a letter dated 16.11.2022 (“the impugned letter”), informed the 1st applicant that it had considered his representation and made the following findings: Lembaga Tatatertib setelah menimbang representasi anda dengan teliti dan saksama, mendapati bahawa anda tidak dapat membebaskan diri anda daripada pertuduhan-pertuduhan tatatertib seperti yang disebut di dalam Surat Tunjuk Sebab bilangan (PR)RF/184951 bertarikh 06.07.2022. [9] In short, the DB found the 1st applicant guilty of all the Charges proffered against him. The DB then imposed the punishment of dismissal for the 1st to 6th Charges and a warning for the 7th to 10th Charges. The Judicial Review [10] Aggrieved, the 1st applicant commenced a judicial review application against the DB, the Inspector General of Police, the 2nd respondent (“IGP”) Respondent and the Government of Malaysia (“GOM”) as the 3rd respondent. [11] The application is supported by the affidavit of the 1st applicant in Encl 2 (“AIS-2”). [12] Leave to commence judicial review was granted by this Court on 14.3.2023. On the application made by the learned Federal Counsel, I ordered that the name ACP Zam Halim bin Jamaluddin, the Chairman of the DB, be removed from being a party in this judicial review. Hence, the DB is renamed as the 1st respondent. [13] The reliefs sought by the 1st applicant are inter alia as follows:

An order of certiorari to quash the DB’s decision; and

An order of mandamus against the IGP and the GOM that the 1st applicant be reinstated to his former employment with no loss of entitlement and benefit. [14] Before me, learned counsel for the 1st applicant submitted that since the right to be heard is only by way of the letter of representation, it is important for the respondents to show that the respondents, in particular the DB, had considered the explanations given by the 1st applicant. [15] The 1st applicant took umbrage in the manner the impugned letter was drafted since the DB did not assign any reasons in arriving at the impugned decision. Learned counsel conceded that there is no express provision in the 1993 Regulations to state the reasons. However, learned counsel contended that it does mean that the duty to give reasons does not exist. This is especially so when the impugned decision affects the livelihood of the 1st applicant. [16] Learned counsel then referred me to the judgment of the Court of Appeal in Perbadanan Pengurusan Trellises & Ors v Datuk Bandar Kuala Lumpur & Ors [2021] 2 CLJ 808 CA. Mary Lim JCA (as her Ladyship then was), in delivering the judgment of the Court, reiterated the proposition which can be distilled from Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487, where it was ruled that a “reasoned decision can be an additional constituent of the concept of fairness” and where the reasons have to be given so that the right of appeal may be properly and meaningfully exercised. In short, this duty to provide reasons emanated from the concept of fairness. The Court of Appeal also reiterated the law that there must be “this duty to give reasons even if there is no express provision for such duty”. [17] In any event, since the implication of the impugned decision would affect the 1st applicant’s livelihood, learned counsel for the 1st applicant submitted that Art 5 of the Federal Constitution comes into play. It provides the following: No person may be deprived of life or personal liberty except in accordance with law. [18] Secondly, learned counsel submitted that the punishment of dismissal meted out against the 1st applicant was not proportionate to the charges proffered against him. Learned counsel submitted that the principle of proportionality requires the court to strike a balance between the severity of the 1st applicant’s conduct and the sanction imposed. [19] According to learned counsel, the 1st applicant had been a police officer for ten years with an unblemished record of service and was brought before the DB for the first time. The respondents’ response [20] As to the duty of the DB to give reasons, the learned Federal Counsel submitted that the duty to give reasons is not of general application. The learned FC contended that whether or not there is any such duty has to be determined on a case-to-case basis. My attention was then drawn to the judgment of the Federal Court in Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and other appeals [2023] 3 MLJ 829 FC. [21] The learned FC then contended that in the instant case, there is no duty on the part of the DB to give reasons on the finding of guilt and the choice of punishment. [22] First, the learned FC submitted that there is no express provision in the 1993 Regulations that requires the DB to give reasons on the finding of guilt. [23] Secondly, the learned FC contended that such a duty does not arise. The reason is this. When the 1st applicant received the show cause letter dated 6.7.2022, he already had the knowledge that a disciplinary action was taken against him with a view to dismissal on the charges stated. The letter is headed: dengan tujuan buang kerja atau turun pangkat. [24] Citing the judgment of Nallini Pathmanathan FCJ in Trellises, the learned FC submitted that the need to give reasons does not arise when all opportunity to raise objections has been dealt with. [25] On the issue of proportionality of punishment, the learned FC referred me to the judgment of the Federal Court in Ng Hock Seng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153 FC. It was held that the court should not substitute its own view as to which was the appropriate penalty for the employee's misconduct. In the circumstances, whether the punishment should be a dismissal or a lesser penalty, like a reduction in rank, was not for the court to say. An employer, including the government, is the best person to judge the seriousness of misconduct of an employee. [26] In any event, according to the learned FC, the length of service is not the criteria in meting out the punishment. Even in Ng Hock Seng, the Federal Court refused to intervene in the appellant’s dismissal even though he had served the Government for 28 years. Analysis [27] The issue of the failure to give reasons for the impugned decision was raised by the 1st applicant in the Statement made under O 53 r 3(2) of the Rules of Court 2012 (“ROC”). In para 3(l) of the Statement, the 1st applicant states as follows:

Alasan Keputusan untuk Sabitan dan Hukuman adalah perlu untuk dikemukakan oleh Pihak-Pihak Responden bagi membolehkan Mahkamah Yang Mulia ini untuk mengkaji semula keseluruhan proses tindakan tatatertib yang dikenakan terhadap saya. [28] In reply, the Chairman of the DB, ACP Zam Halim bin Jamaluddin, affirmed in his affidavit in Encl 15 (“AIR-15”). In para 11(l) of AIS-15, ACP Zam Halim affirmed as follows: Perenggan 14(l) adalah dinafikan. Tiada sebarang peruntukan undang-undang yang mewajibkan alasan bagi keputusan Responden Pertama tersebut dikemukakan kepada Pemohon. [29] I respectfully agree with the learned FC that the duty to give reasons for the impugned decision is not of general application. It is to be determined on a case-to-case basis. In Trellises, one of the questions that was posed to the Federal Court is: [6] Whether, in the absence of a statutory direction to the contrary, a planning authority in deciding to issue a development order is under a duty at common law to give any or any adequate reasons for its decision to persons objecting to the grant of the development order having regard to the decisions in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, of the Federal Court in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72; [2002] 4 CLJ 105; [2002] 3 AMR 2871 and that of the Court of Appeal in The State Minerals Management Authority, Sarawak & Ors v Gegah Optima Resources Sdn Bhd [2021] 1 MLJ 268; [2020] 6 CLJ 279; [2020] 1 LNS 495? [30] The Federal Court answered Question [6] in the affirmative. [31] The relevant Act in the dispute in that case was the Federal Territory (Planning) Act of 1982 (“FT Act’). [32] According to the Federal Court, the public interest element that is implicit in the FT Act, demonstrated by the Act mandating a minimum level of publicity amongst others, requires that the relevant decision maker has considered matters properly is put into sharp focus in a case such as this where the grant of planning permission is a departure from the KL Structure Plan. That in itself warrants the giving of reasons for such departure. [33] It was further held that reasons in writing ought to be given, even in the absence of an express statutory provision requiring that the Datuk Bandar to do so. In short, the reasons for the Datuk Bandar's deviation from the statutory development plans in the exercise of its discretion under s 22(4) of the FT Act are of considerable importance. This is so for reasons of transparency, objectivity and secondly, to allow persons who claim to be “adversely affected’ to challenge the decision in court. [34] Coming back to the instant case, it is equally relevant to note that there is no express provision in the 1993 Regulations that stipulates that the DB “shall not” give reasons for its decision. [35] Secondly, while the FT Act has a public interest element in it, the impugned decision in this case has a constitutional dimension. It is related to Art 5(1) of the Federal Constitution. My reason is this. As alluded to earlier, the dismissal would have affected the 1st applicant’s livelihood. The Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 CA reiterated that the expression “life” is to be given a broad and liberal meaning. [36] Gopal Sri Ram JCA (later FCJ), in delivering the majority judgment of the Court of Appeal, remarked as follows: Adopting the approach that commends itself to me, I have reached the conclusion that the expression 'life' appearing in art 5(1) does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life. Of these are the right to seek and be engaged in lawful and gainful employment and to receive those benefits that our society has to offer to its members. It includes the right to live in a reasonably healthy and pollution free environment. For the purposes of this case, it encompasses the right to continue in public service subject to removal for good cause by resort to a fair procedure. [37] The right to “life” under Art 5(1), therefore, encompasses the right to continue in public service. In short, it has a constitutional dimension in it. [38] Having said that, and reading Trellises and Tan Teck Seng together, I am inclined to conclude that when the right of an individual is adversely affected by a potential constitutional breach, the decision-maker ought to give its reasons in arriving at its decision. The duty to give reasons “on a case-to-case basis” to my mind includes a situation that involves a potential breach of constitutional rights, as in this case. [39] I believe I can find support in my finding in the judgment of the Court of Appeal in Nazrul Imran bin Mohd Nor v Civil Service Commission Malaysia & Anor [2021] 6 MLJ 750 CA. The Court of Appeal held that:

It was incumbent on both respondents not to merely say the appellant did not exculpate himself in respect of the charge against him by the representation he had sent. These statements made that were without any basis given, no matter how strenuously made, remained devoid of any substance or weight.

Both the respondents, especially the 1st respondent, were duty bound to explain and give reasons for rejecting the grounds provided by the appellant in his representation in answering the charge, but this was not done as was evident from the affidavits filed.

Further, the failure of the 1st respondent to explain why the appellant was found not able to exculpate himself, also gave credence to the contention that the 1st respondent did not sufficiently consider the appellant’s defence. [40] That aside, there is another dimension in my finding. It is this. Once an applicant has the benefit of knowing the reasons for the decision, then he or she would be in a better position to seek legal advice, whether to challenge the impugned decision or otherwise. In short, once the reasons for the decision are made known in the letter to the applicant, the die is cast. The decision maker cannot introduce new reasons or improvise them when the decision is challenged. That, I believe, is another rationale for why a decision-maker is duty-bound to give reasons for the decision. Findings [41] For the aforesaid reasons, my findings are as follows:

The duty to give reasons for the impugned decision by the decision maker is not of general application. It depends on the factual matrix of a particular case.

One of the circumstances, as can be seen in Trellises, is when there is a public interest element in the case in question.

Another circumstance is where the case has a constitutional dimension, in that there is a possibility that the decision to be arrived at by the decision-maker would contravene any of the provisions in the Federal Constitution.

In both aforesaid circumstances, the decision-maker ought to give adequate reasons for its decision.

In the instant case, the potential outcome of the disciplinary proceeding against the 1st applicant is that he might face a dismissal. The right to continue in public service is a constitutional right within the meaning of Art 5(1). Hence, there is a need to give adequate reasons for the impugned decision even if there is no provision in the 1993 Regulations to do so.

On the authority of Nazrul Imran, the failure of the DB to explain why the appellant was found not able to exculpate himself, also gave credence to the contention that the DB did not sufficiently consider the 1st applicant’s representation. This amounts to procedural impropriety within the meaning of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 FC. [42] Since the impugned decision is tainted with procedural impropriety it is therefore amenable to judicial review. [43] In view of my finding on the issue of the DB’s failure to explain its reasons in arriving at the impugned decision, I will not address on the remaining issues raised by the 1st applicant, in particular on the proportionality of the punishment meted out against the 1st applicant. [44] Since there were no reasons proffered in arriving at the impugned decisions in JR No. 29 and JR No. 30, the decisions therein are equally quashed. [45] I am making an order in terms of the reliefs sought except on the prayer for interest. [46] There shall be no order as to costs. Tarikh: 25 Jun 2024 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. Pihak-pihak: Bagi Pihak Pemohon : Sreekant a/l M.G.Gangadharan Pillai Tetuan Sreekant Pillai Bagi Pihak Responden : Mohammad Sallehuddin Bin Md Ali FC Jabatan Peguam Negara, Putrajaya