Mohd Jamaludin Bin Mahusin v 1. ) Suruhanjaya Pasukan Polis (PA-25-76-12/2019)

1.

KERAJAAN MALAYSIA … Respondents 2

This is a judicial review application for an order of certiorari to quash the decision of the 1st Respondent (“R1”) dated 25.10.2019. By the said decision, R1 had dismissed the Applicant from service. The Applicant seeks a declaration that his dismissal is unlawful. And an order for reinstatement to his original position with all benefits intact.

I dismissed the judicial review application. Here are my grounds. Background facts

The Applicant was a junior police officer with the rank of corporal before being dismissed by the Disciplinary Authority of the Royal Malaysia Police (“PDRM”) under Regulation 37 of the Public Officers (Conduct and Discipline) Regulations 1993 (“1993 Regulation”) on 23.10.2019.

An information relating to malpractice (‘penyelewengan tugas’) involving officers from Batalion 2, Pasukan Gerakan Am (PGA), Kulim in ‘Ops Wawasan’ at the border of Malaysia / Thailand was received on 11.5.2017. The Applicant was one of the officers from Batalion 2, PGA, Kulim who were investigated. 3

R1, being the Disciplinary Authority of the PDRM, received a report stating that the Applicant was in breach of discipline that warranted disciplinary action to be taken against him.

On 28.8.2018, in the exercise of powers delegated by R1 through Instrument of Delegation of Certain Functions, Powers, Duties and Responsibilities P.U.(B) 441 dated 14.12.2000 and in accordance with Regulation 35 of the 1993 Regulation, the Chairman of the Disciplinary Authority, after considering the information received, determined that the disciplinary offences complained of were of a nature which warrants a punishment of dismissal or reduction in rank under Regulation 37 of the 1993 Regulation.

On 26.3.2019, after considering all the available information, the Chairman of the Disciplinary Authority found that there existed a prima facie case against the Applicant. The Chairman:

directed that charges dated 26.3.2019 containing the facts of the disciplinary offences alleged to have been committed by the Applicant and the grounds on which it was proposed to dismiss the Applicant or reduce his rank be sent to the Applicant. The said charges are exhibited in Exhibit “MJBH-2” of the Applicant’s affidavit in support affirmed on 12.12.2019 which was filed in these proceedings; and

required the Applicant to make within 21 days a written representation containing the grounds upon which he relied to exculpate himself. 4

The Applicant then made a representation vide his letter dated 24.5.2019. The said letter is exhibited in Exhibit “MJBH-3” of the Applicant’s affidavit in support.

The Disciplinary Authority conducted a meeting on 23.10.2019 and considered the Applicant’s representation. The Disciplinary Authority was satisfied that the Applicant did not exculpate himself from the disciplinary charges. The Disciplinary Authority decided that:

The Applicant was found guilty of the 1st charge and imposed with punishment of dismissal pursuant to Regulation 38(g) of the 1993

The Applicant was found guilty of the 2nd charge and imposed with punishment of dismissal pursuant to Regulation 38(g) of the 1993

The Applicant was found guilty of the 3rd charge and imposed with punishment of dismissal pursuant to Regulation 38(g) of the 1993

The Applicant was found guilty of the 4th charge and imposed with punishment of dismissal pursuant to Regulation 38(g) of the 1993

The Disciplinary Authority decided that those punishments against the Applicant would be effective on 23.10.2019. The Disciplinary Authority’s letter dated 25.10.2019 conveying the decision is exhibited in Exhibit “MJBH-1” of the Applicant’s affidavit in support. 5

In the Statement filed pursuant to Order 53 rule 3(2) of the Rules of Court 2012, the Applicant canvassed the following grounds:

Prosedur yang di gunakan oleh Lembaga Tatatertib, Polis Diraja Malaysia adalah tidak sah dan untuk kes pembuangan, satu pendengaran mesti diadakan di mana Pemohon berhak hadir dan dibantu oleh peguam;

Pihak Lembaga Tatatertib Polis Diraja Malaysia tidak ikut prosedur kerana tidak memberi semua dokumen-dokumen yang berkait dengan kes. Governing legal principles

The court’s approach in disciplinary cases is this:

The court will only intervene in disciplinary cases where there was a fundamental procedural flaw;

The court cannot exceed its role in cases of this genre. The court cannot interfere merely because it may come to different conclusions on facts on the same basis of the same evidence;

Weighing and assessing the evidence is the function of the disciplinary authority which is the body to which the legislature has entrusted the responsibility of deciding the issue, and not the courts; and

The court is not really concerned with the conclusions of that process and whether the conclusions were ‘right’, as long as the right procedures have been followed. 6

This was decided in Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 CLJ 577 at 597-598 where the Federal Court said: [36] The courts have very limited review powers over administrative determinations of public bodies and are constrained to confirm the findings in disciplinary hearings. The courts will only intervene in disciplinary cases where there was a fundamental procedural flaw. The courts cannot exceed its role in cases of this genre as the instant appeal. The courts cannot interfere merely because it may come to different conclusions on facts on the same basis of the same evidence. Weighing and assessing the evidence is the function of the disciplinary authority which is the body to which the legislature has entrusted the responsibility of deciding the issue, and not the courts. Hence, the court should approach cases of this genre as the instant appeal in the following way, namely, whether there has been an error in the process or whether there was procedural irregularity in the decision making proceedings leading to the public officer’s dismissal. … [38] In the instant appeal, the plaintiff sought a declaration that his dismissal is unlawful, null and void and of no effect. In cases of this genre, the court reviews the lawfulness of a decision or action made by the disciplinary authority which is a public body. Such action is tantamount to a challenge to the way in which the decision has been made by the public body rather than the rights and wrongs of the conclusion reached. The court is not really concerned with the conclusions of that process and whether the conclusions were “right”, as long as the right procedures have been followed.”

In Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 CLJ 405 at 411-413, the Federal Court laid down the rules that are applicable to a court exercising supervisory review over the decision of a disciplinary body: “After the High Court had judicially reviewed and upheld the disciplinary authority’s finding of misconduct or breach of any provision of the code of conduct under the General Orders, in regard to any further and consequential order of punishment or penalty as prescribed by the General Orders and imposed on the public officer in question, the High Court was right in not judicially reviewing such consequential order of dismissal or otherwise interfering with such order. 7 The Court of Appeal was also right for not interfering with the same for reasons which we will discuss as follows. … To so further review judicially would be acting against the concept, in the case of an order of dismissal, that there should not generally be any employment against the will of employer or employee. After all is said and done, persons in the public service categorized under art 132 of the Federal Constitution are in fact employees. … 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.”

The disciplinary authority is the best judge of the seriousness of the misconduct of its members. As stated by the Federal Court in Ng Hock Cheng (supra) at page 413: “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.”

Whether dismissal or a lesser penalty (for instance, a reduction in rank) was appropriate is not for the court to decide. The court should not substitute its own view as to what is the appropriate penalty (in respect of the employee’s misconduct) in place of the view of the employer concerned. This was decided by the Federal Court in Ng Hock Cheng (supra) when overruling the majority judgment of the Court of Appeal in Tan 8 Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ

771.

In Tan Tek Seng (supra), a senior assistant registrar was convicted for misappropriation of money. Disciplinary proceedings were then instituted where it was decided that he be dismissed from service. He sued for a declaration that his dismissal be declared invalid. The action was dismissed by the High Court. On appeal to the Court of Appeal, it was held in a majority judgment in allowing the appeal that the disciplinary authority must, when deciding what punishment it ought to impose on the particular public servant, act reasonably and fairly. That if it acted arbitrarily or imposed a punishment that was disproportionate to the misconduct, its decision on the punishment was liable to be quashed. The Court of Appeal then by a majority substituted the order of dismissal with an order that the senior assistant registrar be reduced in rank to an ordinary teacher.

The Federal Court in Ng Hock Cheng (supra) aligned itself with the minority judgment of the Court of Appeal in Tan Tek Seng (supra). The Federal Court said (at page 411, 413): “It was held by the dissenting judge that the court should not substitute its own view as to which was the appropriate penalty for the employee’s misconduct and it was held further whether the punishment should be a dismissal or a lesser penalty like a reduction in rank was not for the court to say. … Thus, we are of the opinion that on the narrow point in question, the majority judgment in Tan Tek Seng (supra) cannot stand though we express our agreement with the minority judgment on the same narrow point.” 9 Disciplinary procedure

The disciplinary proceeding against the Applicant is governed by the 1993 Regulation. Part V of the 1993 Regulation, consisting of Regulation 34 to Regulation 37D, sets out the procedural steps to be followed by the Disciplinary Authority in disciplinary proceeding.

Regulation 35 empowers the Disciplinary Authority to determine the nature of the breach of discipline, whether it warrants a punishment of dismissal or reduction in rank.

If the breach warrants a dismissal or a reduction in rank, the Disciplinary Authority should follow the procedure in Regulation 37. Otherwise, the Disciplinary Authority will proceed under Regulation 36.

Under Regulation 37(2)(a) and (b), if the Chairman of the Disciplinary Authority is satisfied that there exists a prima facie case against the officer, he shall cause a letter to be sent to the officer containing the facts of the disciplinary offence and the grounds on which it is proposed to dismiss the officer or to reduce his rank. The officer is then required to make, within 21 days, a representation containing the grounds upon which he relies to exculpate himself.

Under Regulation 37(3), if, after considering the representation made, the Disciplinary Authority is of the opinion that the disciplinary offence committed by the officer does not warrant a punishment of dismissal or reduction in rank, the Disciplinary Authority may impose a lesser punishment as it deems appropriate.

Under Regulation 37(4), if the officer does not furnish any representation within the period specified or the representation does not exculpate himself to the satisfaction of the Disciplinary Authority, the Disciplinary Authority shall then proceed to consider and decide on the dismissal or reduction in rank of the officer. 10

In the instant case, the Disciplinary Authority was of the opinion that the case against the Applicant did not require further clarification. Thus, there was no need to establish an Investigation Committee for the purpose of obtaining such further clarification. In the Applicant’s case, the disciplinary proceeding concluded at the stage of Regulation 37(4).

Based on the steps taken by the Disciplinary Authority leading to the Applicant’s dismissal, I am satisfied that:

The Disciplinary Authority did not neglect its duty as stipulated in Part V of the 1993 Regulation;

The disciplinary proceeding conducted by the Disciplinary Authority was in accordance with Article 135(2) of the Federal Constitution, natural justice and procedural fairness, among others:

The letter of charges dated 26.3.2019 (Exhibit “MJBH-2”) issued by the Disciplinary Authority was sent to the Applicant pursuant to Regulation 37(2)(a) and (b) of the 1993 Regulation;

(ii) The Applicant furnished his written representation dated 24.5.2019 (Exhibit “MJBH-3”) which contained in detail the grounds upon which he relied to exculpate himself from the charges. Such representation was made pursuant to Regulation 37(2) of the 1993 Regulation; and

(iii) After considering the Applicant’s representation, the Disciplinary Authority was of the opinion that the Applicant failed to exculpate himself from the charges. Next, on 25.10.2019, the Disciplinary Authority decided that the Applicant be dismissed from service. The Disciplinary Authority’s action was in accordance with Regulation 37(4) of the 1993 Regulation. 11

In other words, the procedure adopted by the Disciplinary Authority complied with the 1993 Regulation. The Applicant was inter alia issued with the show cause letter. He was invited to make a written representation, which he did. It was only after the Disciplinary Authority found that the written representation did not exculpate the Applicant that the Disciplinary Authority decided to dismiss him.

This procedure is in line with the approach set out by the Federal Court in T Ganeswaran v Suruhanjaya Polis Diraja Malaysia & Satu Lagi [2005] 3 CLJ 302 at 312-313 which said: “Perayu menyatakan bahawa prosiding yang dijalankan responden pertama yang berakhir dengan penurunan pangkat perayu dari PPP kepada Inspektor Polis adalah bercanggah dengan art. 135(2) Perlembagaan Persekutuan dan rukun-rukun keadilan asasi. Yang Arif Hakim tersalah dari segi undang-undang dan fakta apabila menolak tuntutan perayu. Bagi mempertimbangkan alasan-alasan ini perlu kita lihat dan kaji langkah-langkah yang telah diambil oleh responden pertama satu persatu. Pertama, surat tunjuk sebab bertarikh 15 November 1992 dihantar mengikut Perintah 26 (2) Perintah-Perintah tersebut yang menyatakan: The Appropriate Disciplinary Authority shall, after considering all the available information in its possession that there is a prima facie case for dismissal or reduction in rank, cause to be sent to the officer a statement in writing, prepared, if necessary, with the aid of the Legal Department, of the ground or grounds on which it is proposed to dismiss the officer or reduce him in rank and shall call upon him to state in writing within a period of not less than fourteen days from the date of receipt of the letter a representation containing grounds upon which he relies to exculpate himself. 12 Kedua, perayu telah mengemukakan representasinya secara bertulis sebanyak tujuh muka surat (bertaip) yang mengandungi alasan-alasan secara terperinci bagi tujuan membebaskan dirinya daripada pertuduhan tersebut. Representasi tersebut juga dibuat mengikut kehendak Perintah 26 (2) Perintah-Perintah tersebut. Ketiga, setelah mempertimbangkan representasi perayu, responden pertama berpendapat bahawa beliau telah gagal membebaskan dirinya dari pertuduhan tersebut dan seterusnya pada 11 September 1992 responden pertama membuat keputusan menurunkan pangkat perayu dari PPP kepada Inspektor Polis. Tindakan responden pertama ini adalah mengikut kehendak Perintah 26 (4) Perintah-Perintah tersebut yang berbunyi: If the officer does not furnish any representation within the specified time, or if he furnishes a representation which fails to exculpate himself to the satisfaction of the Appropriate Disciplinary Authority, it shall then proceed to consider and decide on the dismissal or reduction in rank of the officer. Setelah diteliti kesemua langkah-langkah yang diambil pihak responden Pertama sehingga tercapainya keputusan menurunkan pangkat perayu dari PPP kepada Inspektor Polis kami bersependapat dengan keputusan Yang Arif Hakim bahawa pihak responden pertama tidak mengabaikan tanggungjawab mereka mengikut Perintah-Perintah tersebut. Malah kesemua kehendak-kehendak Perintah-Perintah tersebut yang relevan telah dipatuhi sepenuhnya. Bagi menjawab dakwaan perayu bahawa prosiding tersebut bercanggah dengan art. 135(2) Perlembagaan Persekutuan dan rukun-rukun keadilan asasi kami ingin merujuk kepada keputusan Mahkamah Persekutuan di dalam kes Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang v. Utra Badi a/l K. Perumal [2001] 2 CLJ 525. Di dalam kes tersebut Mahkamah Persekutuan berhadapan dengan masalah yang sama menyentuh Perintah-Perintah tersebut. Mahkamah itu telah merujuk kepada beberapa nas mengenai perkara yang sama dan di halaman 440 dalam penghakimannya menyatakan: 13 Taking all the above into considerations, we are of the view that the General Orders, in detailing the procedures therein, have sufficiently complied with art 135(2) of the Federal Constitution and, in the process, are in accord with the concept of natural justice and procedural fairness. Jadinya, alasan perayu bahawa prosiding yang dijalankan responden pertama itu bercanggah dengan art. 135 (2) Perlembagaan Persekutuan dan rukun-rukun keadilan asasi dengan sendirinya gagal dan tidak dapat dipertahankan.” Failure to furnish documents to the Applicant

The Applicant alleges that:

Though oral request was made, the Applicant was not provided by the Disciplinary Authority with material documents including copies of ‘Ops Wawasan’, CCTV recording, report received by ACP G/14206 Razali bin Abu Samah, recorded statements of ACP G/14206 Razali bin Abu Samah, ASP Herman bin Sharip (‘Pegawai Penjaga Kompeni B’), ASP Herdaus, smugglers i.e. Jeferi bin Osman and Angah and other statements;

By not providing those documents, there is a breach of natural justice and of the Federal Constitution; and

Since those material documents were not provided to the Applicant, it was difficult for him to answer the charges made against him.

These allegations were denied by the Respondents via their affidavit in reply affirmed on 14.7.2020 which was filed in these proceedings. I find the allegations to be nothing more than bare assertions. They are 14 unsupported by any contemporaneous documentary evidence and carry no evidential value.

I refer to the Federal Court case of Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 at 314 which said: “[30] … The Court of Appeal however held that the plaintiff should have filed an affidavit to oppose the application to amend which the plaintiff failed to do. With respect in our view the Court of Appeal erred on this point again. This is because the defendant’s affidavit in support of its application to amend contained nothing more than a bare assertion. A bare assertion carries no evidential value and hence, there is nothing to reply.”

Moreover, the allegations appear to be an afterthought. They were only raised for the first time in this judicial review application. They were never raised in the Applicant’s written representation. Thus, they are not relevant in the Applicant’s attempt to exculpate himself from the charges.

Based on Regulation 37(4) of the 1993 Regulation, before imposing any punishment on the Applicant, R1 only needs to consider the Applicant’s written representation. And decide whether the Applicant in his written representation exculpated himself from the charges. If the written representation does not exculpate the Applicant to the satisfaction of the Disciplinary Authority, R1 shall proceed to consider and decide whether to dismiss or to reduce his rank.

The Federal Court in T Ganeswaran (supra) explained (at page 316): 15 “Bagi mempertimbangkan alasan ini ingin kami nyatakan bahawa mengikut undang-undang perayu tidak perlu didapati bersalah. Yang perlu dipertimbangkan oleh responden pertama ialah sama ada representasi yang dikemukakan oleh perayu itu dapat membebaskan (exculpate) dirinya dari tuduhan terhadapnya dengan memuaskan. Sekiranya representasi perayu tidak dapat berbuat demikian terhadap beliau maka responden pertama berhak menjatuhkan hukuman serta-merta. Di dalam kes Halimatussaadiah v. Public Service Commission [1992] 1 CLJ 413; [1992] 2 CLJ (Rep) 467, Eusoff Chin J ada menyatakan demikian: As regards the issue of ‘finding of guilt’ of the plaintiff before the PSC imposed the punishment of dismissal, I think it is perfectly clear that order 26 (4) of the G O ‘D’ does not require the PSC to make such finding. What the PSC is required to decide is whether the explanation given by the plaintiff, had exculpated the plaintiff to the satisfaction of the PSC.”

It is crucial for all relevant grounds to be stated in the written representation for the purpose of exculpating the Applicant from the charges. Any allegation which is only raised after the decision has been made is tantamount to an afterthought and not relevant in a public officer’s attempt to exculpate himself from the charges against him.

In their affidavit in reply, R1 maintained that the Applicant did not at any material time request for any documents to be furnished to him including CCTV recording, report received by ACP G/14206 Razali bin Abu Samah, recorded statements of ASP Herman bin Sharip (‘Pegawai Penjaga Kompeni B’), smugglers i.e. Jeferi bin Osman and Angah and other statements. The Applicant also never requested for a copy of ‘Ops Wawasan’ to be given to him. Nor did the Applicant ever asked for an 16 extension of time to tender his written representation in respect of the charges made against him. Hence, he cannot complain that such right was not afforded to him. In the circumstances, R1 was not obliged to furnish those documents or materials to the Applicant.

As was stated by the Federal Court in T Ganeswaran (supra) at page 314: “Di bawah alasan-alasan ini perayu mendakwa beliau tidak diberi apa-apa kemudahan (dokumen-dokumen) bagi membolehkan beliau menjawab pertuduhan tersebut. Pertama, setelah disemak Rekod Rayuan kami dapati bahawa perayu tidak pernah pada bila-bila masa pun memohon bagi mendapatkan dokumen-dokumen tersebut. Adalah menjadi tanggungjawab responden pertama membekalkan perayu dengan dokumen-dokumen berkenaan sekiranya terdapat permohonan dari pihak perayu tetapi tidak sebaliknya.”

Also, the Federal Court in Tay Chai Huat (supra) said (at page 585): “[3] In the present case, the respondent did not at any stage request for an oral hearing or for any document to be furnished to him. Therefore, he could not complain that such right was not afforded to him. It is for him to request for an oral hearing or for any document that he thinks could help him to prepare his answer to the charges levelled against him.”

The 1993 Regulation does not impose any duty on R1 to supply documents that were used in the exercise of its discretion when directing 17 the Applicant to make representation to exculpate himself. As such, R1 cannot be said to have denied the Applicant of any procedural fairness by not furnishing the documents to the Applicant. There cannot be any breach of duty where none exists in law.

As stated by the Federal Court in Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v Mohd Noor Abdullah [2004] 2 CLJ 777 at 784: “… Since the 1970 Regulations impose no duty on the 1st Appellant to inform the Respondent at the first opportunity of the likelihood of his dismissal or reduction in rank, the 1st Appellant cannot be said to have deprived the respondent of any procedural fairness as there cannot be any breach of duty where none exists in law.”

In Othman Hamzah v Disciplinary Board, JPJ, Malaysia & Other Cases [2003] 6 CLJ 18 at 25, the High Court said: “The clear guidance of the Federal Court in Utra Badi is that the General Orders have legislative effect and the courts must therefore be guarded against adding words which were never intended. Regulations 28(2) only requires the officer to be sent a statement containing the facts of the breach of discipline alleged to have been committed. Then it should not be said, in the absence of words to such effect, that the Regulations require the statements of witnesses to be furnished to the officer.”

In Mohd Radzi bin Abu Bakar v Kerajaan Malaysia & Ors [2004] 5 MLJ 255 at 270, the High Court said: [31] It was submitted on behalf of the plaintiff that the documents and the witnesses were not offered to the plaintiff to enable him to put up a good 18 representation. But it must be borne in mind that the General Orders impose no duty on the DIGP to supply any documents or to provide all the information in his possession to the plaintiff. The DIGP had acted within the confines of the General Orders. It was my judgment that the DIGP had complied with all the relevant procedures as set out in the General Orders. To suggest as was suggested by the learned counsel for the plaintiff that the plaintiff should be furnished with the documents and be offered the witnesses would be a mischievous suggestion. Such suggestion cannot be acceded to as it would run counter to the judgments of Ghazi bin Mohd Sawi, Ganasan Marimuthu and Utra Badi. In Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis & Ors [1995] 1 MLJ 108, the Court of Appeal speaking through Gopal Sri Ram JCA aptly said (see p 316 of the report): On the facts of the present case there was, in my opinion, no departure from procedural fairness by the defendants’ failure to afford the plaintiff the oral hearing he had asked for. The charges were well drafted and care was taken to ensure that full particulars were provided. A reasonable man similarly circumstanced as the plaintiff would have had no difficulty in responding to the allegations made. Sufficient opportunity was given in the making of representations to rebut the charges, including the provision of documents requested for by the plaintiff. The suggestion by counsel that there is an added duty to provide documents without any request being made in that behalf is devoid of merit …”

The alleged failure of R1 to furnish the documents could not be said to have occasioned a procedural error affecting the disciplinary proceeding against the Applicant. No injustice had been occasioned and the Applicant’s right to prepare his representation to exculpate himself from the charges was never affected or restricted.

What ought to be considered by the court are the facts or evidences leading to the decision. And not other alleged facts which were only raised after the decision had already been made. Considering that there is no contemporaneous documentary evidence to support the Applicant’s bare 19 assertion and that there is nothing in his representation to show that an oral request for certain documents was ever made by him, I am in no position to make a finding of fact that such an oral request was indeed made. I refer to the following authorities.

In Prop Park Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2018] 1 LNS 852, the High Court said: [19] Therefore, I am of the considered opinion that the Applicant has failed to adduce any evidence to substantiate their allegations on the issue of procedural impropriety and/or breach of natural justice. There is no evidence to support such serious allegations and the allegations of the Applicant remain a bare assertion. Similar issues were raised in the Groupon Sdn Bhd v. Tribunal Tuntutan Pengguna & Anor [2016] 1 LNS 555, [2016] 5 AMR 314, and the court held as follows: “[24] For completeness, the Applicant has also alleged that it has been denied the right to make any proper defence and explanation before the First Respondent, therefore in breach of natural justice that attracted procedural impropriety … . There must however be cogent evidence to support this serious allegation particularly the notes of proceedings of the First Respondent. It is insufficient merely to put up a unilateral bare assertion as is the case herein.”

In Small Medium Enterprise Development Bank Malaysia Berhad v Pintaran Timur (M) Sdn Bhd & Ors [2020] 1 LNS 370, the High Court said: “[34] On a separate note, I find that the Defendants' allegation that they have requested for further explanation on the restructured amount to be a bare allegation, unsupported by any contemporaneous documentary evidence. [35] Therefore, I find this issue to be devoid of merits.” 20

In Abdullah Azizi Abd Hamid v Menteri Sumber Manusia & Anor [1998] 2 CLJ 297 at 301-302 (a case dealing with the Minister’s refusal to refer the applicant’s representation to the Industrial Court), the High Court said: “The function of the court in a judicial review of the exercise of the powers by the Minster under s. 20(3) of the Act is not a function of an ordinary court to hear and decide disputed facts as contained in the various affidavits filed in the proceedings for judicial review. For those disputed facts may not well be before the Minister when performing his function under s. 20(3) in deciding whether or not to refer the representations to the Industrial Court. Those disputed facts ought to have been placed before the Director General went he met both the parties for the purpose of s. 20(2) of the Act. But if that was not done, it will be too late in the day to present it before the court in judicial review proceedings to review the decision of the Minister because those matters would naturally not be before the Minister when he made the decision. By the scheme of s. 20 of the Act, the Minister when making a decision under sub-s. (3) does not sit to hear evidence from the parties in the dispute. He relies purely on the notification made to him by the Director General under sub-s. (2) after the latter had failed in his attempt to settle the dispute by conciliation. With the notification he would have before him naturally the report of the Director General of what took place during the conciliation proceedings including whatever evidence both oral and documentary presented therein. Upon all these matters placed before him, the Minister would make a study and decide as to whether the representation is frivolous or vexatious. He is not allowed to consider other irrelevant matters not placed before him by the Director General. That being the case, what took place before the Director General during conciliation proceedings is crucial. If any evidence now placed before the court of judicial review was not before the Director General, that evidence must be ignored by the court in deciding whether the Minister has or has not properly exercised his discretion under s. 20(3) of the Act.” Oral hearing

The Applicant alleges that: 21

The disciplinary action against him was in breach of the law of natural justice since he was not given an oral hearing where he could question or cross examine material witnesses including ACP G/14206 Razali bin Abu Samah, ASP Herman bin Sarip, ASP Herdaus, Jefferi bin Osman and Angah;

An ‘Orderly Room procedure’ ought to have been conducted by the Disciplinary Authority. The Applicant ought to have been given an oral hearing since he was a junior police officer and not a gazetted officer; and

The Respondents had wrongfully taken an action under the 1993 Regulations and not under the Police Act 1967 as the Applicant was a junior police officer and not a gazetted officer.

Prior to 1.1.2001, there were two separate Regulations in force governing the discipline of members of the PDRM namely:

Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 (“1970 Regulation”) made pursuant to section 96 of the

the 1993 Regulation made pursuant to Article 132(2) of the Federal Constitution.

As stated by the Federal Court in Nordin Hj Zakaria (supra) at page 782: “In March 1997, when the disciplinary proceedings were commenced against the respondent, there were two regulations in force pertaining to matters of discipline governing members of the Police Force. The first is the 1970 Regulations made by the Yang di-Pertuan Agong in the exercise of his powers under s. 96(1) and

(2)(b) of the Police Act 1967 (“the Act”). The second, also made by the Yang di-Pertuan Agong, is the Public Officers (Conduct and Discipline) Regulations 1993 (“the 1993 Regulations”) under cl. 2 of art. 132 of the Federal Constitution.” 22

The 1970 Regulation provided for an ‘Orderly Room procedure’ in relation to oral hearing and examination of witnesses. But the 1970 Regulation was repealed effective 1.1.2001 and was no longer in force at the material time during the disciplinary proceeding against the Applicant. As such, the Applicant’s argument that the procedure used under Regulation 37 of the 1993 Regulation was wrong, on the ground that the Applicant was a junior officer and not a gazetted officer, is misconceived. No reliance can be placed on the 1970 Regulation, which provided for an ‘Orderly Room procedure’ for a junior police officer, as it is no longer applicable as of 1.1.2001.

The 1970 Regulation was repealed vide the Police (Conduct and Discipline) (Junior Police Officers and Constables) (Repeal) Regulations 2000 [P.U. (A) 451/2000] (“Repeal Regulation”). It reads: “Citation and commencement

(1) These Regulations may be cited as the Police (Conduct and Discipline) (Junior Police Officers and Constables) (Repeal) Regulations 2000.

These Regulations shall come into operation on 1 January 2001. Revocation

The Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 [P.U. (A) 86/70], hereinafter referred to as “the repealed Regulations”, are repealed.” 23

The 1970 Regulation was only applicable in a situation mentioned under Regulation 3 of the Repeal Regulation. It reads: “Savings

Where on the date of the coming into operation of these Regulations-

disciplinary proceedings have not commenced or were pending before the adjudicating authority, the proceedings shall be continued under and in conformity with the Public Officers (Conduct and Discipline) Regulations 1993 [P.U. (A) 395/93]: Provided that the Public Officers (Conduct and Discipline) Regulations 1993 have provisions corresponding to the provisions under the repealed Regulations referring to the breach of discipline alleged to have been committed by, and the punishment to be imposed on, an officer; or

disciplinary proceedings had commenced under the repealed Regulations, and the disciplinary matter was in the course of being heard, or had been heard but no order or decision had been made thereon, the proceedings shall continue under the repealed

In the present case, the disciplinary proceeding against the Applicant was initiated on 26.3.2019 when he was served with the disciplinary charges (Exhibit “MJBH-2”). The disciplinary charges were issued more than 18 years after the repeal of the 1970 Regulation effective from 1.1.2001. The 1970 Regulation is therefore not applicable to the Applicant since his disciplinary breach was committed and the disciplinary action 24 against him was commenced after the 1970 Regulation had already been repealed. With the repeal of the 1970 Regulation, the ‘Orderly Room procedure’ provided therein is no longer applicable. Corresponding provisions were not incorporated under the 1993 Regulation.

As deposed in the Respondents’ affidavit in reply, the Disciplinary Authority was of the opinion that the case against the Applicant did not require further clarification through the establishment of an Investigation Committee. The Disciplinary Authority has the discretion to decide if a case requires further clarification. The decision as to whether an Investigation Committee would need to be appointed and whether the Applicant would be required to appear and give oral evidence laid with the Disciplinary Authority. The following authorities are instructive.

In Abd Razak Atan v Dato’ Ahmad Ragib Mohd Salleh & Ors [2010] 6 CLJ 887, the Court of Appeal held that pursuant to general order 26(5) of the Public Officers (Conduct and Discipline) General Orders 1980, the disciplinary authority has the discretion to decide if a case requires further clarification. Hence, the decision as to whether a committee of inquiry would need to be appointed (and whether the plaintiff would be required to appear and give oral evidence) laid with the disciplinary authority and not with the court or the plaintiff. The Court of Appeal said (at page 898): “[24] It is for the DA (not the officer nor the court) to decide whether to require further clarification, to appoint a CI for the officer to exculpate himself at the CI, and to give oral evidence there:” 25

In Public Services Commission Malaysia & Anor v Vickneswary RM Santhivelu [2008] 6 CLJ 573 at 587, the Federal Court explained: “[22] … Should the disciplinary authority consider that the case against the officer requires further clarification then it may appoint a committee of inquiry. This is a decision of the disciplinary authority, not the officer or the court. At this enquiry the officer will be allowed and if the committee shall so determine shall be required to appear before it and exculpate himself. Again this is the decision of the disciplinary authority.”

As deposed in the Respondents’ affidavit in reply, the Applicant did not at any stage request for an oral hearing. Thus, he cannot complain that such right was not afforded to him.

Such was decided by the Federal Court in Tay Chai Huat (supra) which said (at pages 584-585): “[1] I have had the advantage of reading the judgment of my learned brother Mohd Ghazali bin Mohd Yusoff (FCJ), I agree that the appeal should be allowed on the premise that there was no request from the respondent for the appointment of Committee of Inquiry under O. 26(5) of the General Orders

As such, the disciplinary board should not be faulted for failing to do so. I would, therefore, allow this appeal on that narrow ground. [2] I should also add that the facts in the present case can be distinguished from that of Mat Ghaffar Baba v. Ketua Polis Negara & Anor [2008] 1 CLJ 773. In that case, there was a request made by the appellant to the disciplinary authority to cross-examine the persons named in the charges proffered against him and for certain documentary evidence to be made available to him, which was denied. Similarly, in the case of Yusof Sudin v. Suruhanjaya Perkhidmatan Polis & Anor [2012] 1 CLJ 448. In that case, the appellant explicitly requested for an oral hearing for the reasons stated in his letter. In both these cases, it was held that in the circumstances of the case, an oral hearing ought to have been granted … 26 [3] In the present case, the respondent did not at any stage request for an oral hearing or for any document to be furnished to him. Therefore, he could not complain that such right was not afforded to him. It is for him to request for an oral hearing or for any document that he thinks could help him to prepare his answer to the charges levelled against him. In Mat Ghaffar Baba (supra) and Yusof Sudin (supra), a request for oral hearing was made by the officers concerned, but was denied. The courts held that such refusal was unreasonable in the circumstances of the case and the courts went on to hold that the officers, in the circumstances, had not been afforded the right of hearing in its proper sense. On this ground, the decisions of the disciplinary authority were quashed.”

The Federal Court in Tay Chai Huat (supra) held that the disciplinary suthority did observe the rules of natural justice and gave the respondent an opportunity to be heard. He was informed of the charges against him and given ample opportunity to deny or explain the alleged misconduct. And the respondent gave his written representation to the Inspector-General of Police.

Likewise here, there was no breach of natural justice under Article 135(2) of the Federal Constitution. R1 did observe the rules of natural justice and gave the Applicant an opportunity to be heard. He was informed of the charges against him and given ample opportunity to deny or explain the alleged misconduct. And the Applicant gave his written representation in detail to R1.

The right to be heard under Article 135(2) of the Federal Constitution does not require that the member of the service facing the disciplinary charge be given an oral hearing. It cannot be said that the failure to give 27 that person an oral hearing was a denial of justice. I am guided by the following authorities.

In Ghazi bin Mohd Sawi v Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 MLJ 114, the Supreme Court held that the ‘right to be heard’ does not mean the right to be heard orally. What it means is that the officer concerned should be given a reasonable opportunity of stating his case. The Supreme Court said (at page 127): “On the second issue – that the appellant be given the right to be heard orally in the form of an inquiry where witnesses may be called to be examined and cross-examined by his counsel – we are concerned with the basal consideration whether the words ‘opportunity of being heard’ connotes an oral hearing. What amount to ’hearing’ in the context of the rule of natural justice or GO 23 or Art 135(2) of the Federal Constitution has been judicially considered and decided in many cases … Nearer home the authority for the proposition that ‘hearing’ does not connote oral hearing and that the right to be heard does not entail an obligation to hold an inquiry was decided in the case of Najar Singh v. Government of Malaysia (supra), which on appeal, was confirmed by the Privy Council … … The Privy Council thus confirmed the decision of the Federal Court on the same issue … reviewed various authorities and dealt extensively with the meaning of the words ‘the right to be heard’ and decided that in the circumstances of the case, an oral hearing was unnecessary as the defendants had given the plaintiff a reasonable opportunity of being heard. There should not be any lingering doubt as to what the phrase ‘right to be heard’ or ‘opportunity of being heard’ mean at common law or in the statute, and it must be accepted that the issue has been settled, as well as can be on the authorities cited above.” 28

In Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi a/l K Perumal [2001] 2 MLJ 417 at 449, the Federal Court said: “Subsequently, the same point was reiterated in Ganasan a/l Marimuthu v Public Services Commission where the Court of Appeal held as follows: The Privy Council as well as the Supreme Court has held that in employing the procedure prescribed in General Order 26 and the former Reg. 30 of the General Orders, the requirements of fairness have been satisfied by an opportunity to make written representations to the deciding body. In all such cases, it has been held time and again by the highest courts in land that written representations will suffice and that a fair hearing does not mean that there must be an opportunity to be heard orally by the officer in person or by his lawyer at the disciplinary authority stage. It is only at the committee of inquiry stage that an oral hearing, and with it desirability or otherwise of legal representation, can be considered.

The Federal Court in Tay Chai Huat (supra) further reiterated (at page 593): [25] In Utra Badi this court held that the right to be heard given by art. 135(2) of the Federal Constitution does not require that the member of the service facing the disciplinary charge be given an oral hearing and it could not be argued that the failure to give that person an oral hearing was a denial of justice.”

In the instant case, the Applicant never made any request to R1 for the appointment of an Investigation Committee. As such, R1 cannot be faulted for not appointing one. 29

R1’s opinion that the case against the Applicant did not require further clarification through the appointment of an Investigation Committee is not subject to review or scrutiny by the court. This was decided by the Federal Court in Tay Chai Huat (supra) at page 600: “[42] … For the aforesaid reasons, I would answer the question posed in the negative, ie, the opinion of a disciplinary authority that the case against the public officer does not require further clarification through the appointment of a Committee of Inquiry under GO 26(5) GO (Chapter D) is not subject to a review or scrutiny by the courts.”

An oral hearing may be given in instances where the disciplinary authority considers that the case against the officer requires further clarification and consequently appoints an Investigation Committee. However, if the disciplinary authority considers that no further clarification is required, the officer concerned cannot insist or demand that an Investigation Committee. Again this was decided by the Federal Court in Tay Chai Huat (supra) at page 594: “[28] From the authorities referred to above, I am of the view that the law is settled. Thus, an oral hearing may be given in instances where the disciplinary authority considers that the case against the officer requires further clarification and consequently appoint a Committee of Inquiry pursuant to GO 26(5) of the CO (Chapter D). If the disciplinary authority considers that no further clarification is required, I do not think that the officer concerned can insist or demand that a Committee of Inquiry be appointed.” Exculpatory representation 30

Pursuant to Regulation 37(4) of the 1993 Regulation, what needs to be considered by the Disciplinary Authority is whether the representation furnished by the Applicant has exculpated himself from the charges. If his representation does not exculpate himself to the satisfaction of the Disciplinary Authority, R1 shall proceed to consider and decide whether to dismiss or to reduce his rank.

I find that the Disciplinary Authority had considered the Applicant’s representation and was satisfied that the Applicant did not exculpate himself from the charges. It is the Disciplinary Authority and not the court who is to decide whether the officer in his representation has exculpated himself from charges. It is the Disciplinary Authority and not the court who is to consider the merit of the Applicant’s representation and to make a finding of fact whether the Applicant has successfully exculpated himself from the charges.

As stated by the Federal Court in Vickneswary (supra) at page 595: “[44] From these GOs, it can be clearly concluded that it is the disciplinary authority and not the court who is to decide whether the officer in his written representation has exculpated himself. The answer to Question (iii) must therefore be answered in the negative ie, that it is not the court but disciplinary authority who is to decide this question of whether he has exculpated himself by his written representation.”

And as reiterated by the Federal Court in Tay Chai Huat (supra) at page 594: 31 “[26] In Vickneswary, this court held as follows:

from the provisions of the General Orders it is clear that it is never the intention of the legislators that the courts should step into the shoes of the disciplinary authority in deciding whether it was fair to the respondent, ie, the member of service facing the disciplinary charge to have granted him a right to make oral representations or whether he should be given such right although he did not ask for it;

(ii) it is clear from the facts that the respondent was given an opportunity to be heard whereby he had given a lengthy representation explaining in detail his innocence; and

(iii) it is not the court, but the disciplinary authority which has to decide the question of whether the respondent had exculpated himself by his written representation. [27] I dare say that the law is settled in cases of this genre. This can be gleaned from several decisions which were decided …” Public officer

Article 132(1) of the Federal Constitution reads: “Public services For the purposes of this Constitution, the public services are -

the armed forces;

the judicial and legal service;

the general public service of the Federation; 32

the police force;

(repealed);

the joint public services mentioned in Article 133;

the public service of each State; and

the education service.”

Regulation 2(1) of the 1993 Regulation reads: “Application These Regulations shall apply to an officer throughout the period of his service and, in respect of an officer who has not opted into the New Remuneration System, shall apply with such modifications as are necessary and proper having regard to the terms and conditions of his service.”

Regulation 3 of the 1993 Regulation reads: “In these Regulations, unless the context otherwise requires - “officer” means a member of the public service of the Federation;”

Since the Applicant was a member of the PDRM, which is one of the public services stipulated in Article 132(1)(d) of the Federal Constitution, the 1993 Regulation was therefore applicable to the Applicant.

In submissions, the Applicant contends that:- (a) his duty was in relation to security and not smuggling; and (b) the task of combating 33 smuggling was under the responsibility of Prevention of Smuggling Unit (‘Unit Pencegah Penyeludupan’), Local General Police (‘Polis Am Tempatan’) and Customs. I do not see how this contention can take the Applicant’s case any further. It seems to me that as a member of the PDRM, the Applicant also has a duty to combat criminal smuggling.

I conclude that the disciplinary action against the Applicant was done in accordance with the law. Procedural and substantive fairness had been accorded to the Applicant and no injustice had been caused to the Applicant.

For the reasons above, I dismissed this judicial review application. I ordered the Applicant to pay costs of RM2,000 to the Respondents. Dated 22 December 2021 Quay Chew Soon Judicial Commissioner High Court of Malaya, Penang Civil Division NCvC 1 34 Counsels Mr Mohd Ismail bin Mohamed (Messrs Ismail, Khoo & Associates) for the Applicant. Mr Rohazlan Affendi Abdul Rahim (Senior Federal Counsel) for the Respondents. Cases cited Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 CLJ 577 Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 CLJ 405 Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771 T Ganeswaran v Suruhanjaya Polis Diraja Malaysia & Satu Lagi [2005] 3 CLJ 302 Hong Leong Finance Bhd v Low Thiam Hoe and another appeal [2016] 1 MLJ 301 Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v Mohd Noor Abdullah [2004] 2 CLJ 777 Othman Hamzah v Disciplinary Board, JPJ, Malaysia & Other Cases [2003] 6 CLJ 18 Mohd Radzi bin Abu Bakar v Kerajaan Malaysia & Ors [2004] 5 MLJ 255 Prop Park Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor [2018] 1 LNS 852 Small Medium Enterprise Development Bank Malaysia Berhad v Pintaran Timur (M) Sdn Bhd & Ors [2020] 1 LNS 370 Abdullah Azizi Abd Hamid v Menteri Sumber Manusia & Anor [1998] 2 CLJ 297 Abd Razak Atan v Dato’ Ahmad Ragib Mohd Salleh & Ors [2010] 6 CLJ 887 Public Services Commission Malaysia & Anor v Vickneswary RM Santhivelu [2008] 6 CLJ 573 Ghazi bin Mohd Sawi v Mohd Haniff bin Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 MLJ 114 Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi a/l K Perumal [2001] 2 MLJ 417 Legislation cited Regulations 2, 3, 35, 36, 37, 38(g) of the Public Officers (Conduct and Discipline) Regulations 1993 Order 53 rule 3(2) of the Rules of Court 2012 Articles 132(1), 132(2) and 135(2) of the Federal Constitution Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 35