Mohd Fakaruddin Bin Khalid v 1. ) Mohd Amar Bin Mohajin (WA-25-398-12/2021)

MOHD AMAR BIN MOHAJIN (PPjP G/11527)

KERAJAAN MALAYSIA DIDENGAR BERSAMA S/N 4re8zdZuPUiy2CU9AgqjtA PERMOHONAN SEMAKAN KEHAKIMAN NO: WA-25-398-12/2021 Dalam perkara mengenai keputusan pembuangan kerja RF/185075 MOHD FAKARUDDIN BIN KHALID (NO. K/P: 900621-13-8103); Dan Dalam perkara mengenai Peraturan-Peraturan 4(2)(g), Peraturan 4(2)(i), Peraturan 4(2)(j), Peraturan 10, Peraturan 28(7), Peraturan 28(11), Peraturan 31, Peraturan 33, Peraturan 35, Peraturan 37, Peraturan 38(g), Peraturan 43 Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) (Pindaan) 2002; Dan Dalam perkara mengenai Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993; Dan Dalam Perkara Suruhanjaya Pasukan Polis DiRaja Malaysia; Dan Dalam perkara Akta Polis 1967; Dan Dalam perkara mengenai Akta Spesifik Relif 1950; Dan Dalam Perkara 5, Perkara 7, Perkara 8, Perkara 132, Perkara 140 dan Perkara 144 Perlembagaan Persekutuan; Dan S/N 4re8zdZuPUiy2CU9AgqjtA Dalam perkara Akta Mahkamah Kehakiman 1964; Dan Dalam perkara mengenai Para 9(2) PTPKN A120 Orang-Orang Salah dan Lokap Polis iaitu Layanan Terhadap Orang-Orang Salah Dalam Lokap Bagi Pemeriksaan Doktor Untuk Orang-Orang Salah; Dan Dalam perkara mengenai Para 8.1.10 Dan Dalam perkara mengenai Para 20(2) Akta Polis 1967 Bahagian VII Tugas-Tugas dan Kuasa-Kuasa Pegawai Polis; Dan Dalam perkara mengenai Aturan 53, Kaedah-Kaedah Mahkamah 2012. MOHD FAKARUDDIN BIN KHALID

MOHD AMAR BIN MOHAJIN (PPjP G/11527)

KERAJAAN MALAYSIA DIDENGAR BERSAMA S/N 4re8zdZuPUiy2CU9AgqjtA PERMOHONAN SEMAKAN KEHAKIMAN NO: WA-25-400-12/2021 Dalam perkara mengenai keputusan pembuangan kerja RF/183154 MOHAMMAD ASHRAF BIN SAAD (NO. K/P: 900219-09-5117); Dan Dalam perkara mengenai Peraturan-Peraturan 4(2)(g), Peraturan 4(2)(i), Peraturan 4(2)(j), Peraturan 10, Peraturan 28(7), Peraturan 28(11), Peraturan 31, Peraturan 33, Peraturan 35, Peraturan 37, Peraturan 38(g), Peraturan 43 Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) (Pindaan) 2002; Dan Dalam perkara mengenai Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993; Dan Dalam Perkara Suruhanjaya Pasukan Polis DiRaja Malaysia; Dan Dalam perkara Akta Polis 1967; Dan Dalam perkara mengenai Akta Spesifik Relif 1950; Dan Dalam Perkara 5, Perkara 7, Perkara 8, Perkara 132, Perkara 140 dan Perkara 144 Perlembagaan Persekutuan; Dan S/N 4re8zdZuPUiy2CU9AgqjtA Dalam perkara Akta Mahkamah Kehakiman 1964; Dan Dalam perkara mengenai Para 9(2) PTPKN A120 Orang-Orang Salah dan Lokap Polis iaitu Layanan Terhadap Orang-Orang Salah Dalam Lokap Bagi Pemeriksaan Doktor Untuk Orang-Orang Salah; Dan Dalam perkara mengenai Para 8.1.10 Dan Dalam perkara mengenai Para 20(2) Akta Polis 1967 Bahagian VII Tugas-Tugas dan Kuasa-Kuasa Pegawai Polis; Dan Dalam perkara mengenai Aturan 53, Kaedah-Kaedah Mahkamah 2012. MOHAMMAD ASHRAF BIN SAAD

MOHD AMAR BIN MOHAJIN (PPjP G/11527)

KERAJAAN MALAYSIA S/N 4re8zdZuPUiy2CU9AgqjtA JUDGMENT [1] Before me, there are three judicial review applications that were heard together by the consent of all parties. The three applications are WA-396-12/2021 (JR No. 396), WA-25-398-12/2021 (JR No. 398) and WA-25-400-12/2021 (“JR No. 400”). [2] The applicant in JR No. 396 is Kpl Selvanathan a/l Copusamy. The applicant in JR No. 398 is L/Kpl Mohd Fakaruddin bin Khalid (“L/Kpl Fakaruddin”) and in JR No. 400 is L/Kpl Mohamad Ashraf bin Saad (“L/Kpl Ashraf”). WA-25-396-12/2021 Background: The applicant’s case [1] The applicant served as a member of the Royal Malaysian Police (“PDRM”) with the rank of corporal. On 9.7.2017, the applicant was assigned as an assistant supervisor to one Sjn Alamin bin Md Zain (“the shift supervisor”) for Shift at Lokap Berpusat Bayan Baru, IPD, Daerah Barat Daya, Balik Pulau, Pulau Pinang (“the lock up”). [2] While the applicant was on duty, he received information that three detainees in the lock up, Mohd Affinde bin Jaafar, Thurairaj a/l Krishan dan Anuar bin Ayat (“the detainees”), were unwell. The detainees would like to be sent to the hospital for treatment. [3] The applicant then informed the shift supervisor and resumed his regular duty. [4] Unfortunately, on that day, the driver in charge, one Kpl Wahab bin Ramli was said to be indisposed. In the absence of Kpl Wahab, the shift supervisor, instructed the applicant to escort the detainees to the hospital with five other policemen. [5] One of the detainees, Anuar, escaped. [6] According to the applicant, he was unaware of Anuar’s escape since he was escorting the other detainees, Mohd Affinde and Thurairaj, together with L/Kpl Ashraf and L/Kpl Fakaruddin. The two detainees S/N 4re8zdZuPUiy2CU9AgqjtA escorted by the applicant, L/Kpl Asraf dan L/Kpl Fakaruddin, were safely brought back to the lock up from the hospital. [7] On 17.7.2017, the applicant received a letter informing him that he was suspended from performing his duty. The letter, which was dated 14.7.2017, inter alia states that: .. anda di Tahan Kerja di bawah Sek 78(1) Akta Polis 1967 mulai tarikh anda menerima surat ini dengan di bayar ½ gaji bulanan selaras dengan kehendak Seksyen 78(3) Akta yang sama. Perintah Tahan Kerja ini berkuatkuasa secara berterusan sehinggalah anda diberitahu mengenainya. [8]

The applicant had wilfully disobeyed a lawful order or command by releasing the detainees from the lock up without the authority of the Officer in charge of the Police District (“OCPD”) or Officer in charge of the station (“OCS”) (“the 1st Charge”). S/N 4re8zdZuPUiy2CU9AgqjtA

The applicant had acted in an irresponsible manner in deceiving Sjn Alamin, the shift supervisor, that the detainees were suffering from stomach ache and chest pain. The deception enabled the applicant to take the detainees out of the lock up (“the 2nd Charge”).

The applicant had wilfully disobeyed a lawful order or command by leaving his place of duty without any reasonable excuse (“the 3rd Charge”).

The applicant had wilfully disobeyed a lawful order or command by not making a written declaration to his head of department of his ownership of a motorcycle with registration No. SS 2675 J (“the 4th Charge”). [12] The applicant was given the opportunity to make a written representation to exculpate himself within 21 days from the receipt of the show cause letter. [13] The applicant had requested an extension of time to make his written representation which was granted by the DA. [14] On 29.12.2020, the applicant served his written representation to the 1st and 2nd respondents. [15] By a letter dated 2.9.2021, the applicant was informed that he was found guilty of all the charges against him. The DA had decided to dismiss the applicant with effect from 26.8.2020 on the 1st, 2nd and 3rd Charges (“the impugned Decision”). However, the applicant was given a warning on the 4th Charge. The Judicial Review [16] Aggrieved, the applicant commenced this judicial review application inter alia for an order of certiorari to quash the impugned Decision. [17] The application is supported by the affidavit of the applicant in Encl 2 (AIS-2”). [18] The 1st respondent filed an affidavit in reply in Encl 16 (“AIS-16”). The parties then filed further affidavits in Encls 17, 18 and 19. S/N 4re8zdZuPUiy2CU9AgqjtA [19] The grounds of the application can be summarised as follows. Illegality [20] The 1st and 2nd respondents had acted against the Public Officers (Conduct and Discipline) (Amendment) 2002 (“the 2002 Amendment”) and the Federal Constitution in dismissing the applicant. In any event, according to the applicant, the respondents had wrongly applied the 1993 Regulations, whereas the applicable Regulation would be in the 2002 Amendment. [21] According to learned counsel, the respondents had failed to comply with regs 28(7) and 43(1) of the 2002 Amendment for pressing the same charges against the applicant. For ease of reference, reg 28(7) states as follows: Jika prosiding jenayah terhadap seseorang pegawai berkeputusan dengan pembebasannya, dan tiada rayuan dibuat oleh atau bagi pihak Pendakwa Raya terhadap pembebasan itu, pegawai itu hendaklah dibenarkan menjalankan semula tugasnya dan pegawai itu berhak untuk menerima apa-apa emolumen yang telah tidak dibayar dalam tempoh penahanan kerjanya, serta juga cuti rehat tahunan dan segala kelayakan yang pegawai itu berhak kepadanya dalam tempoh penahanan kerjanya. Learned counsel then referred me to reg 28(11) of the 2002 Amendment and contended that an acquittal includes a DNAA. [22] Learned counsel for the applicant also submitted that the respondents had acted illegally in restraining the applicant from performing his duty as a member of the police force for more than two months. [23] As to the punishment imposed, learned counsel contended that it is disproportionate to the disciplinary offences committed by the applicant. S/N 4re8zdZuPUiy2CU9AgqjtA Irrationality [24] The applicant’s position is that the disciplinary charges against the applicant were defective, baseless and tainted with mala fide as the applicant was only following the order of his superior. [25] In arriving at the impugned decision, the 1st and 2nd respondents had failed to take into account the applicant’s written representation and had taken into account irrelevant factors and failed to consider relevant factors. Procedural Impropriety [26] Learned counsel for the applicant submitted that the applicant was not given the right to be heard in accordance with Art 135(2) of the Federal Constitution. [27] It is also the contention of learned counsel for the applicant that the applicant was never informed of the status of the deliberation of the DA and was not handed the documents that he requested. According to learned counsel for the applicant, the applicant was not allowed to defend himself and put questions to challenge the documents referred to by the 1st and 2nd respondent during the course of deliberation of the DA; Dr Ahmad Syahirhakim Zulkifli v Suruhanjaya Perkhidmatan Awam Malaysia & Anor [2022] 1 LNS 822. [28] Learned counsel also submitted that the applicant was not given the opportunity to contradict the documents relied on by the DA in arriving at its conclusion. Analysis [29] Let us examine the chronology of events that led to the dismissal of the applicant:

After the applicant’s DNAA, an investigation was conducted by the Department of Integrity and Standard Compliance S/N 4re8zdZuPUiy2CU9AgqjtA (“JIPS”) in respect of a complaint received on possible misconduct of the applicant under reg 4(2)(i) of the 1993 Regulations.

The report of the investigation was submitted to the DA pursuant to reg 35 of the 1993 Regulations.

The matter was then subsequently referred to the 2nd respondent.

The role of the 1st respondent as the Chairman of the DA is to determine whether the disciplinary offence complained of is of a nature that warrants punishment of dismissal or reduction in rank or a punishment lesser than dismissal or reduction in rank.

If it is determined that the disciplinary offence complained of is of a nature that warrants punishment of dismissal or reduction in rank, to consider all available information and to find whether a prima facie case exists.

The 1st respondent, after having deliberated the report, was of the view that a prima facie case had been established. He then caused the show cause letter to be issued to the applicant.

By an undated letter in October 2020, the applicant requested an extension of time and certain documents to be forwarded to him before he could prepare a written representation to the 2nd respondent. The documents referred to are:

A copy of the station diary of the lock up dated 9.7.2017.

The recorded statement of the shift supervisor who was on duty on 9.7.2017.

The recorded statements of the witnesses in relation to the 1st and 2nd Charges against the applicant.

The request for the extension of time to serve the written representation was granted. The 2nd respondent also forwarded all the documents requested by the applicant, which the applicant duly acknowledged on 13.11.2020. S/N 4re8zdZuPUiy2CU9AgqjtA

As alluded to earlier, the applicant served his written representation to the 2nd respondent vide his letter dated 29.12.2020.

The 2nd respondent convened on 26.8.2021 and after deliberating the documents submitted, arrived at the impugned Decision. [30] From the said chronology of events, it is clear that the disciplinary process was carried out in strict adherence to the 1993 Regulations. There was therefore no basis for the applicant to allege that there was a serious impropriety in the procedure adopted by the 2nd respondent; see Muhammad Farid bin Muntalib v. Tan Sri Dato’ Sri Khalid bin Abu Bakar, Pengerusi Lembaga Tatatertib Polis Diraja Malaysia Bukit Aman & Ors [2019] 1 MLJ 604 CA. [31] As to the suspension from his duty, the order was made under s 78(1) of the Police Act 1967 and not under the 2002 Amendment. S 78(1) provides as follows: If it deems necessary in the public interest that a police officer should cease to exercise the powers and functions of his office instantly, the Disciplinary Authority may interdict from duty such police officer, pending any enquiry into the conduct of such police officer under this Act or of any Police Regulations made thereunder or of any regulation or order applicable to other officers of corresponding status in the public service. [32] As to the alleged irrationality in the impugned Decision, just like Muhammad Farid bin Muntalib, in the show cause letter, all the necessary facts and particulars of the breaches of discipline alleged to have been committed by the applicant had been stated in plain and clear language for the applicant to rebut, contradict or controvert. In fact, the applicant in the instant case must have been aware of all the charges against him, hence the request for the documents to be forwarded to him. [33] As to the application of reg 28(7) of the 2002 amendment, I have gone through the charges against the applicant at the Magistrates Court in Eksh MAM-8. I respectfully agree with the learned SFC that the charges at the Magistrates Court were of a different nature. They S/N 4re8zdZuPUiy2CU9AgqjtA were totally different from the charges faced by the applicant at the disciplinary proceedings. [34] At the Magistrates Court, the applicant was charged under s 221 of the Penal Code for “intentionally suffers Anuar to escape, or intentionally aids him in escaping or attempting to escape from such confinement”. However, the 1st Charge against the applicant in the show cause letter was that the applicant had wilfully disobeyed a lawful order or command by releasing the detainees from the lock up without the authority of the OCPD or the OCS. [35] Before me, learned counsel also submitted that the statements recorded from the witnesses were invalid and could not be used at the disciplinary proceedings. With respect, it was the applicant who requested for the statements to be given to him. Upon receipt of the documents, the applicant prepared and eventually served his written representation to the 2nd respondent. If indeed the statements were considered prejudicial to the applicant and should have been disregarded, the applicant should have raised this in his written representation for it to be deliberated by the 2nd respondent. [36] To my mind, it is too little too late for the applicant to raise the issue at this stage. [37] That leaves me with the next point. Was there a breach of the principles of natural justice? Was a reasonable opportunity of being heard given to the applicant as accorded by Art 135(2) of the Federal Constitution? The Federal Court in Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi a/l K Perumal [2001] 2 MLJ 417 FC and Public Services Commission Malaysia & Anor v Vickneswary [2008] 6 MLJ 1 FC held that the right to be heard given by Art 135(2) of the Federal Constitution did not require the person concerned to be given an oral hearing. [38] I take cognisant that the applicant, in his written representation, had requested for him to be accorded an oral hearing. But in the final analysis, it is for the 2nd respondent to make a decision one way or the other. In my opinion, the applicant had been given every opportunity to defend himself, including the extension of time to prepare his written representation. S/N 4re8zdZuPUiy2CU9AgqjtA [39] On the proportionality of the punishment imposed, the general proposition is that proportionality can be a ground for judicial review. The aforesaid proposition can be found in the judgment of the Federal Court in Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior

(M) Sdn Bhd [2010] 6 MLJ 1 FC. However, on the facts of the case, I respectfully agree with the learned SFC that the punishments imposed against the applicant are proportionate to the seriousness of the disciplinary offences committed by the applicant. The 2nd respondent had established that the applicant had wilfully disobeyed a lawful order or command by releasing the detainees from the lock up without the authority of the OCPD or the OCS. As a result, the detainees were released from the lock up without authority. This is a very serious misconduct. Findings [40] The impugned decision is therefore not tainted with illegality, irrationality, procedural impropriety or disproportionality to make it amenable to judicial review. [41] The application for this judicial review is dismissed. [42] For the same reasons, JR No. 398 and JR No 400 are also dismissed. [43] However, I am not making any order as to costs. Tarikh: 14 Februari 2023 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. S/N 4re8zdZuPUiy2CU9AgqjtA Pihak-pihak: Bagi Pihak Pemohon : M Manoharan, Anis Salihah Binti Abdul Malek Nur Syamimi Adriana Tetuan M Manoharan & Co. Bagi Pihak Responden : Nik Isfahanie Tasnim Binti W. Ab. Rahman SFC Jabatan Peguam Negara, Putrajaya S/N 4re8zdZuPUiy2CU9AgqjtA