Mohd Ezri Bin Saad v 1. ) Tan Sri Dato' Sri Khalid Bin Abu Bakar (Pengerusi Lembaga Tatatertib Polis Diraja Malaysia, Bukit Aman) (Permohonan Semakan Kehakiman No. WA-25-345-12/2017)

TAN SRI DATO’ SRI KHALID BIN ABU BAKAR (PENGERUSI LEMBAGA TATATERTIB POLIS DIRAJA

LEMBAGA TATATERTIB POLIS DIRAJA MALAYSIA

3.

KERAJAAN MALAYSIA … RESPONDEN-RESPONDEN Grounds of Decision Azizah Nawawi, J: Application [1] This is the applicant’s application for leave to commence judicial review proceedings, seeking inter-alia, the following prayers:

that the applicant be granted a leave to seek for a declaration order and/or an order for certiorari to quash the decision given by the 1st and 2nd respondents on behalf of the 4threspondent in dismissing the applicant from the Royal Malaysian Police Force (“PDRM”) with effect from 29.8.2017 (the “Decision”) and that the applicant is still the employee of the 4th respondent without losing his seniority; 3

(ii) an inquiry be conducted to determine the outstanding salary, emolument, allowances and other benefits that should be received by the applicant from the date of the dismissal until full settlement;

(iii) general damages and/or aggravated damages and/or exemplary damages and/or punitive damages to be given due to the reason that the respondents had acted with lackadaisical attitude in the disciplinary proceeding with the sole intention to dismissed the applicant whereby as the result of the respondents’ action, the applicant had suffered a serious mental, emotional and physiological trauma when dealing with his family and public, had to endure depression and suffered from severe shock and mental anguish, every day until today;

(iv) damages for wrongful dismissal;

Interest at the rate of 5% per annum from the total of the judgment sum to be calculated from the date of the dismissal until full settlement;

(vi) That all necessary and consequential orders to be given; and

(vii) That costs of this and incidental to this application be costs in the cause. 4 [2] The learned Federal Counsel acting on behalf of the Honourable Attorney General has raised a preliminary objection with regards to the inclusion of the 3rd respondent as a party to this action, and the prayers on damages. [3] Having considered the objections raised and the submission of the parties, this court has allowed the objections raised and has only granted leave with respect to prayer (i) and (ii). [4] This court had refused to grant leave with regards to prayer (iii), (iv) and (vi) and had struck out the 3rd respondent from being a party to this action. Hence, the applicant filed this appeal. The Salient Facts [5] At all material times, the applicant was employed as a police Inspector. On 21.4.2015, a police report vide Malim Report 1529/15 was lodged pertaining to an “African Scam” whereby the 3rd respondent was the Investigating Officer (“IO”) for that case. [6] On 16.5.2015, an arrest was made on a Pakistan national named Jadeer Ehsan (the “Suspect”) pertaining to Bukit Jalil Report No. 2829/15. The arrest was led by ASP Nur Asrul Bin Ariff and it was also related to Malim Report 1529/15. The Suspect was then brought to the Melaka Tengah Police Station. Subsequently, the 3rd respondent had applied for remand order over the Suspect from 5

16.5.2015 until 19.5.2015. The remand order was then extended from 20.5.2015 to 22.5.2015. [7] On 22.5.2015, vide Bandar Hilir Report 2752/15, an Immigration Arrest Report was lodged against the Suspect under regulation 39(B) of the Immigration Act 1963 for an offence of counterfeit passport. The Suspect was then remanded for 14 days from 22.5.2015. [8] On 26.5.2015, the Suspect’s passport was verified as legitimate. Subsequently, on 28.5.2015, the 3rd respondent had referred the Investigation Paper to the Melaka’s Unit Head of Prosecution (the “DPP”). The DPP had then directed the 3rd respondent to complete the investigation and released the Suspect on police’s bail. [9] On the same day (26.5.2015), the applicant had received a direction from his Senior Investigating Officer, ASP Nur Asrul Bin Ariff to go to the Melaka Tengah Police Station and to record statement from the Suspect. The Applicant followed the direction given and did record the statement from the Suspect, who had been released on police’s bail. [10] On 8.6.2015, the 3rd respondent received a direction from the DPP to charge the Suspect under section 420 of the Penal Code. Following that, the 3rd respondent had contacted the Suspect’s brother requesting him to bring the Suspect to the Melaka Tengah Commercial Crime Investigation Department. It was agreed 6 between the 3rd respondent and the Suspect’s lawyer that the Suspect will be charged in court on 12.6.2015. [11] On 12.6.2015, the Suspect’s lawyer submitted the Suspect’s medical certificate. The 3rd respondent then called the doctor and it had been verified by the doctor that the Suspect has an appointment which was scheduled at 10 am on that day. Following that, the 3rd respondent gave a new date i.e. on 16.6.2015 for the Suspect to be present in court. [12] On 15.6.2015, a police report was made by the Suspect’s brother that the Suspect had been missing. Subsequently, on 26.6.2015, the 3rd respondent was called by the Head of Commercial Crime Investigation Department, Melaka Police Contingent Headquarters, Superintendent Ee Khong Koy that the Suspect could not be traced. [13] On 26.6.2015, the 3rd respondent had lodge a police report against the applicant vide Bandar Hilir Report 3704/15. [14] In response to the police report lodged by the 3rd respondent, the applicant had made a police report vide Jalan Tun Razak Report 4936/15 (exhibit “MES-8”) in response to the Bandar Hilir Report 3704/15. In this report, the applicant said that “Saya dapati isi kandungan laporan polis tersebut tidak benar, berniat jahat dan menjejaskan kredibiliti saya sebagai pegawai kanan polis diraja Malaysia.” 7 [15] Following that, an Investigation Paper was opened against the applicant in relation to the Bandar Hilir Report 3704/15 but was later classified as “No Further Action” (NFA) by the DPP. [16] Subsequently, the applicant received a show cause/disciplinary proceeding letter dated 21.3.2016 issued by the 1st respondent whereby the applicant was alleged to have been committed six (6) acts of misconduct. [17] Vide a letter dated 14.4.2016, the applicant had requested for an adjournment and to be served with all relevant documents which were referred before the Disciplinary Board for the purpose of preparing a representation. The applicant’s request was allowed by the 1st respondent vide its letter dated 9.6.2016. [18] In response to the Show Cause letter, the applicant had prepared his letter of representation dated 5.10.2016 (see exhibit “MES - 4”). [19] On 5.10.2017, the applicant received a letter dated 30.8.2017 issued the 1st respondent informing the decision of the disciplinary proceeding whereby the 1st, 2nd and 3rd charges have been dismissed but the applicant was found guilty on the 4th, 5th and 6th charges. The applicant’s service was terminated with effect from 29.8.2017 in respect of the 4th charge. The 4th charge read as follows: 8 “Pertuduhan Keempat “Bahawa anda Insp. G/18349 Mohd Ezri bin Saad sebagai penjawat awam dalam pasukan Polis DiRaja Malaysia dan ketika itu bertugas sebagai pegawai Penyiasat Jenayah Siber & Multimedia, Jabatan Siasatan Jenayah Komersil Bukit Aman didapati tidak jujur kerana anda telah mendorong dan memberi arahan kepada Kpl/D157697 Jarir Duranny bin Mohd Jarkasi (A8) dan Kpl/D 126798 Meor Ariffin bin Musa (A9) untuk memberi percakapan Palsu semasa dirakam percakapan oleh ASP G/17352 Lai Siaw Khien di Cawangan Siasatan Perundangan Kajian Kes, Jabatan Integriti Dan Pemantuhan Standard,Tingkat 20, Menara 2, Ibu Pejabat Polis Bukit Aman pada 10 Julai 2015 jam 1520 hrs supaya berdalih dan tidak bercakap benar dengan mengatakan bahawa ahli keluarga penama Jadeer Ehsan, warganegara Pakistan, No Paspot AB 1113923 hadir bersama dan menunggu sehingga temubual berakhir pada 0100 hrs 29 Mei 2015 di Pejabat Jabatan Siasatan Jenayah Commercial Bukit Aman,Aras 27,Menara 238, Jalan Tun Razak, Kuala Lumpur sedangkan tiada ahli keluarga suspect yang hadir bersama pada ketika itu.Perbuatan anda itu boleh diertikan sebagai tidak jujur iaitu melanggar tatakelakuan di bawah Peraturan 4(2)(f) Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 seperti berikut:- 9 4(2) Seorang pegawai tidak boleh:-

tidak jujur atau tidak amanah” [20] Being aggrieved with the decision of the 1st and the 2nd respondents, the applicant has filed this present judicial review action to challenge the said Decision. Findings of the Court [21] It is common ground that the test for leave to commence judicial review proceedings was held by the Federal Court in WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 CLJ; [2012] 4 MLJ 296, to be as follows: “Leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case of granting the reliefs sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though, ie, unless the matter for judicial review is amenable to judicial review no success may be envisaged.” (emphasis added) [22] The issue here is if leave is granted, whether the reliefs on damages sought may be granted at the substantive stage. Based on the decided case, I am of the considered opinion that at the substantive stage, the prayers for damages cannot be granted. 10 [23] From the decided cases, I find that that where the applicant has applied for reinstatement as a relief together with the backdated emoluments and allowances that he was entitled to (had he not been dismissed), then he is not entitled to damages as well. In Mamat Talib (Timbalan Ketua Polis, Johor) & Anor v. Abdul Jalil Rashid [2005] 4 CLJ 892, the Court of Appeal held as follows: “There is one other point. The learned judge, apart from directing the assessment of emoluments, also directed damages to be assessed. The order is, with respect wrong. In the case of public servant, an order of reinstatement at common law may be made. That has the effect of putting the plaintiff in the same position as he would have been had he not been dismissed. So he will get all his arrears of salary. But he is not entitled to damages in addition. That would be bad for double accounting.” (emphasis added) [24] With regards to the applicant’s claim for general damages and/or aggravated damages and/or exemplary damages and/or punitive damages on the basis that as the result of the respondents’ action, the applicant had suffered a serious mental, emotional and physiological trauma when dealing with his family and public, had to endure depression and suffered from severe shock and mental anguish, the decision of the Court of Appeal in Penang Port Commission v. Kanawagi Seperuman (No. 1) [1997] 1 CLJ 423 is 11 very clear that the same cannot be granted. Justice Mahadev Shanker JCA held as follows: “There are other very disturbing features about this litigation. Addis v. Gramophone Company Ltd [1909] AC 488 is well-entrenched in the common law and damages cannot be awarded for the manner of dismissal of his injured feelings or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment.” (emphasis added) [25] The applicant relied on the case of Mohd Johan Khair Bin Azmi v. Tan Sri Dato’ Sri Khalid bin Abu Bakar (DIG) dan 3 Lagi (MTKL 25-93-04/2013) which granted a prayer for damages and this was affirmed by the Court of Appeal on appeal. However, there are no written grounds given by the Court of Appeal with regards to the issue of the granting of damages. For a decision of the superior court to be a binding precedent, within the principle of stare decision, there must be written grounds to support and/or explain that principle of law. In S. Selvaraja T. Singarathevar v. Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia& Anor [1997] CLJ Supp 275, the court held as follows: 12 “Under the principle of stare decisis, the Court below is bound to follow the decision on a point which constituted a ratio decidendi of a superior Court. And, such ratio decidendi is binding upon the Court below:

if it is expressed in a written judgment, published or unpublished, of a superior Court, which judgment the Court below is itself aware of or is cited to by Counsel in the proceedings:

(ii) the ratio decidendi is clear and unequivocal and based on a point necessary to or arising for decision. [This is almost always to be ascertained by an analysis of the material facts of the case for a judicial decision. For it is not part of the Court's duty to spell out with difficulty a ratio decidendi in order to be bound by it. See The Mostyn [1928] AC 57 at p. 78 HL. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand, have no binding authority, and are generally termed obiter dictum ]; and,

(iii) the point arising for decision, in the case before the Court, based upon its factual pattern, is sufficiently and closely identifiable (though not necessarily identical) with the ratio decidendi as ascertained by 13 an analysis of the material facts of the binding precedent.” (emphasis added) [26] With regards to the issue of whether the 3rd respondent is an appropriate respondent; reference is made to Order 53 r 2(4) of the Rules of Court 2012, which reads: “Any person who is adversel affected by the decision of any public authority shall be entitled to make the application” (emphasis added) [27] In the case of Council of Civil Service Unions V. Minister for the Civil Service [1985] AC 374 the House of Lords held as follows: “The subject matter of every judicial review is a decision made by some person or (body of person) whom I shall call the decision maker or else a refusal by him to make a decision” (emphasis added) [28] In T. Ganeswaran lwn. Suruhanjaya Polis DiRaja Malaysia & Satu lagi [2005] 3 CLJ 302, the Federal Court held the principle in judicial review to be as follows: 14 “Pendapat Mahkamah Sebelum mahkamah ini mempertimbangkan alasan-alasan rayuan yang dikemukakan peguam perayu, kami berpendapat adalah lebih sesuai jika dinyatakan di sini mengenai perinsip-perinsip yang digunapakai oleh mahkamah-mahkamah dalam pengedalian kes-kes „judicial review‟. Mengenai perkara ini kami ingin merujuk kepada House of Lords di dalam kes Chief Constable of North Wales Police v. Evans [1982] 3 All ER 141 yang menyatakan: Judicial review is not an appeal from a decision but a review of the manner in which the decision was made, and, therefore, the court is not entitled on an application for judicial review to consider whether the decision itself was fair and reasonable” (emphasis added) [29] Judicial review is the review of the decision making process in which a decision was made, and in this case the applicant is seeking to review the decision to dismiss him from the service of PDRM. It is not in dispute that the 3rd respondent was never involved in the decision making process of the decision to dismiss the applicant. Therefore, I am of the considered opinion that the 3rd 15 respondent is not a necessary party to this action and would therefore strike him out as a party to this action. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 28th September 2018 For the Applicant : Ebrina Binti Zubir Messrs Maniam Nair & Co Johor. For the AGC : Federal Counsel, Tuan Shaiful Nizan Shahrin Jabatan Peguam Negara Putrajaya. Cases referred:

WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 CLJ; [2012] 4 MLJ 296.

Mamat Talib (Timbalan Ketua Polis, Johor) & Anor v. Abdul Jalil Rashid [2005] 4 CLJ 892.

Penang Port Commission v. Kanawagi Seperuman (No. 1) [1997] 1

Council of Civil Service Unions V. Minister for the Civil Service [1985] AC 374. 16

T. Ganeswaran lwn. Suruhanjaya Polis DiRaja Malaysia & Satu lagi [2005] 3 CLJ 302.