Muhammad Farid bin Muntalib v Tan Sri Dato' Sri Khalid bin Abu Bakar (W-01(A)-143-04/2016)

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. W-01(A)-143-04/2016 BETWEEN MUHAMMAD FARID BIN MUNTALIB … APPELLANT

1. AND TAN SRI DATO’ SRI KHALID BIN ABU BAKAR PENGERUSI LEMBAGA TATATERTIB POLIS DIRAJA MALAYSIA BUKIT AMAN

2. LEMBAGA TATATERTIB POLIS DIRAJA MALAYSIA BUKIT AMAN

3. K/INSP SHAIK ABD KADAR BIN SHAIK MOHAMED (G15082)

4. KERAJAAN MALAYSIA … RESPONDENTS [In the matter of Kuala Lumpur High Court (Appeals and Special Powers Division) Judicial Review Application No. 25-73-04/2013 Between Muhammad Farid bin Mutalib … Applicant And

1. Tan Sri Dato’ Sri Khalid bin Abu Bakar Pengerusi Lembaga Tatatertib Polis Diraja Malaysia Bukit Aman

2. Lembaga Tatatertib Polis Diraja Malaysia Bukit Aman

3. K/Insp Shaik Abd Kadar bin Shaik Mohamed (G15082)

4. Kerajaan Malaysia … RESPONDENTS] 2 CORAM ROHANA YUSUF, JCA BADARIAH SAHAMID, JCA ABDUL RAHMAN SEBLI, JCA DISSENTING JUDGMENT Badariah Sahamid, JCA [1] I have perused the majority judgment of my learned brother and sister Judges in the appeal before us. After careful consideration of the majority’s ‘Grounds of Judgment’ as well the Records of Appeal, I respectfully disagree with the decision of the majority to affirm the decision of the learned High Court Judge and dismiss the appeal .In my view, there are merits in this appeal that warrant appellate intervention. My reasons are stated below. [2] Before I delve into the issues, a brief summary of the chronology of facts is pertinent .The Appellant was at the material time an Inspector of Police in the Royal Malaysian Police Force. On 19.03.2012, the Appellant was issued a show cause letter by the 1st Respondent with a view of dismissal or reduction in rank under Regulation 37 of the Public Officers (Conduct and Discipline) Regulations 1993 (Amendment) 2002 in which two charges were preferred against the Appellant for the offence of soliciting for a bribe and failure to lodge a police report in respect of a stolen car. He was given 21 days to submit a written representation. 3 [3] The Appellant submitted his written representation to the Disciplinary Authority vide his letter dated 04.04.2012 in response to the show cause letter. [4] By a letter dated 11th January 2013, the Appellant was informed that the Disciplinary Authority had found the Appellant guilty of both charges preferred against him and decided to impose the penalty of dismissal from the rank of a Police Inspector for the 1st charge. With respect to the 2nd charge, a fine of 7 days salary was imposed on him. [5] At the hearing of the appeal before us, learned counsel for the Appellant informed us that the focus of this appeal is in respect of issues relating to the Investigative Body. These issues are stated as follows:

1. Whether the Report of the Investigative Body constituted additional, adverse material which was prejudicial to the Appellant?

2. Whether the Appellant should be given access to the Report before the decision of the Disciplinary Authority?

3. Whether a failure to give the Appellant access to the Report and the opportunity to respond to the said Report is a procedural impropriety which offends the principles of Natural Justice? [6] The 1st Respondent who presided as the Chairman of the Disciplinary Authority had in his Affidavit in Reply dated 1st August 2013 acknowledged 4 that he had received and examined the Report. He had stated in paragraph 7 as follows:

7. Seterusnya saya telah menerima dan meneliti Laporan Siasatan Tatatertib (‘Investigative Report’) yang disediakan oleh Responden ke3. Sesalinan Laporan Siasatan Tatatertib dilampirkan dan ditanda sebagai Eksibit “KAB-2 [7] At the judicial review application before the High Court, one of the grounds to challenge the decision-making process of the Disciplinary Authority was that the Respondent had considered the Report which was damaging and prejudicial to the Appellant without proper notice given to the Appellant and without affording the Appellant any opportunity to rebut or contradict the contents of the Report. [8] The learned High Court Judge had made the finding inter alia that little weight should be given to the Report; that the role of the Investigative Body was insignificant in that it was “merely tasked to present the Report” .Her ladyship also made the observation that the Report was also not binding on the Disciplinary Authority. [9] In addition, the learned High Court Judge was of the view that there was no evidence that the Disciplinary Authority had relied on the Report in arriving at its decision to dismiss the Appellant. In paragraphs 35 and 36 the learned Judge had stated as follows : (the ‘Applicant’ here refers to the Appellant in this appeal). 5 “34. The Applicant also contended that the Investigative Body had evaluated the written representation and had prepared a prejudicial and damaging report which contains the review of the two charges against the Applicant. The Applicant contended that the Investigative Body had made review that the Applicant had made confession in his statement and further had failed to exculpate himself from the charges proffered against him.

35. The Court is of the view that the role of the Investigative Body is very minimal and purely mechanical, in that, it was merely tasked to present the report and/ or information prepared by it to the DA (Disciplinary Authority).The report prepared by the Investigative Body would not bind the DA. The Investigative Body is not the authority who decided on the contents of the report. The DA is the one who decided on the alleged misconduct of the Applicant. There is no evidence that the Respondent’s decision was based on the report prepared by the Investigative Body, The DA is provided with all the information it needed to enable it to make a well-informed decision. The DA is at liberty to evaluate all the information provided, to determine the accuracy of that information and accordingly to make decision.” [10] The primary issue raised by the Appellant was firstly, whether the contents of the Report was damaging or prejudicial to the Appellant and secondly, whether the Appellant should have been afforded the opportunity to refute or counteract the findings in the Report. With all due respect the learned High Court Judge had failed to address the abovementioned specific and pertinent issues but instead addressed her mind to irrelevant issues. 6 She made the finding that the role of the Investigative Body was “minimal and mechanical”, that the Report was not binding on the Disciplinary Authority, that there was no evidence to demonstrate that the decision of the Disciplinary Authority was premised on the Report and that the Disciplinary Authority is entitled to be provided with all information to make a well informed decision. [11] Nowhere in her ‘Grounds of Judgment’, did her ladyship consider the crucial and pertinent issues of whether the contents of the Report was prejudicial to the Appellant and whether the Appellant should have been given a copy of the Report and the opportunity to refute the allegations therein, and the related issue of whether such failure is a breach of the right to be heard. From the above findings, I am of the considered view that the learned Judge had seriously misdirected herself. [12] It is pertinent to examine the Report. The Report (Exhibit KAB-2) bears the title, “LAPORAN PENUH SIASATAN TATATERTIB TERHADAP PEGANGGOTA DARI SKUAD KHAS 42 UNIT PENGUATKUASA TRAFIK JALAN BANDAR, KUALA LUMPUR.” In the Report, the Appellant was one of 8 persons (‘subject B1 – B8’), who were subjected to investigation for which the Report was prepared. The Report investigated the incident which forms the basis of the two charges against the Appellant. In the Report the Appellant was referred to interchangeably as C/Insp mohd Farid or ‘subjek B1’. [13] A perusal of the Report discloses in no uncertain terms that the contents of the Report was damaging and thus highly prejudicial to the 7 Appellant. The Report contains particulars of the incident as well as the evidence of specifically named police officers who were investigated for the offences the Appellant was charged with. Relevant extracts of the Report bears this out. “4.2.1. Hasil siasatan kepada isu ini mendapati ada kebuktian yang jelas dimana setelah pengadu digari dan ditinggalkan dalam kereta, subjek (B1) telah membuat perbualan dan berbincang tentang bayaran jika pengadu hendak selesaikan kes itu. Untuk itu pengadu telah di minta supaya bayar RM5,000. 00, oleh kerana pengadu tiada wang sebanyak itu dan setelah berbincang tawar menawar, akhirnya dipersetujui supaya dibayar sebanyak RM4, 000.00 sahaja. Selepas itu (B1) tinggalkan pengadu yang sedang bergari dalam kereta dan kemudiannya dating (B8) mengawal dan menjaga pengadu dalam kereta…

4.2.2. Percakapan daripada subjek (B8) Konst 151636 Mohd Firdaus yang mengakui diarahkan oleh C/Insp mohd Farid supaya masuk dalam kereta pengadu dan selesaikan kes itu. Dia juga telah diberitahu oleh pengadu bahawa (B1) ada meminta wang sebanyak RM5, 000.00 jika nak selesaikan kes itu. Dia hanya cakap abang cari dulu.Lepas itu pada jam 0430 setelah sekatan jalanraya diberhentikan, subjek (B8) telah diarahkan oleh C/Insp mohd Farid supaya bawa balik pengadu bersama keretanya ke balai. Tetapi bila sampai dibalai dia tidak pandu kereta itu masuk kebalai sebaliknya berhenti dibengkel kenderaan IPK Kuala Lumpur bagi menunggu rakan pengadu sampai. Pada jam 0500hrs 27.05.09 rakan pengadu sampai dan duduk ditempat duduk belakang. Rakan pengadu hanya bawa RM4,000.00 sahaja.Setelah (B8) maklumkan kepada (B1) dan (B1) cakap OK barulah wang itu diserahkan dalam envelope putih kepada (B8).Setelah wang tersebut diterima, (B8) terus keluar dari kereta dan 8 pergi kebalai Trafik. Semasa hendak keluar (B8) sempat cakap kes selesai disini sahaja. (B8) mengakui wang yang berisi dalam envelope itu telah diserahkan kepada (B1) dan diterima oleh (B1). Pagi itu sebelum (B8) balik dia telah terima sejumlah RM500.00 dari (B1)-rujuk di kdg (B8).” [14] A long line of authorities have established the legal position that particularly where damaging or prejudicial materials or information are made available to an adjudicating body, the accused is entitled to be given access to such materials and to be afforded an opportunity to refute or respond to such materials or information. This principle has been applied in the Indian Supreme Court case of Union of India and Others v Mohd. Ramzan Khan [1991] AIR 471 (SC) and the Malaysian Supreme Court case of Shamsiah binti Ahmad Sham v Public Commission, Malaysia & Another [1990] 3 MLJ 364 (SC); and significantly, in the celebrated case of B. Surinder Singh Kanda v Government of Federation of Malaya [1962] MLJ 169,173. (Privy Council) where Lord Denning had stated in succinct terms: “If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn LC in Board of Education v Rice [1911] AC 179 down to the decision of their Lordship’s Board in Ceylon University v Fernando [1960] 1 WLR 223. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the 9 back of the other. The Court will not enquire whether the evidence or representation did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough”. [15] The facts of Surinder Singh Kanda (supra) bears a striking similarity to the facts of the instant case. The Appellant Surinder Singh Kanda was an Inspector in the Royal Federation of Malaya Police Force. He was dismissed by the Commissioner of Police on the charge inter alia that he had been guilty of an offence against discipline in that he had submitted investigation papers to his superior officers knowing the same to be false. Prior to his dismissal the Commissioner of Police had ordered an inquiry to be held. A report was prepared by the Board of Inquiry ( ‘the Report’). After considering the Report, the Commissioner decided to institute disciplinary proceedings against Kanda. On July 7, 1958 he was dismissed by the Commissioner of Police on the ground that he had been guilty of an offence against discipline. Inspector Kanda brought an action in the High Court challenging his dismissal. [16] In an action against the Government of Malaya for a declaration that his dismissal was void, one of the grounds raised was that he was not given a reasonable opportunity of being heard, contrary to Article 135(2) of the Federal Constitution which provides that no member of a Public service as stated in Article 132, which includes the police force, “shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard.” 10 [17] On appeal, one of the questions raised before the Privy Council was whether the proceedings which resulted in his dismissal were conducted in accordance with natural justice. The Report of the Board of Inquiry (‘the Report’) was sent to the Adjudicating Officer before he sat to enquire into the charge. The Adjudicating Officer had full knowledge of its contents. Inspector Kanda was only given a copy of the Report of the on the fourth day of the hearing of the action. The Report dealt in detail with the evidence of witnesses and contained what was considered, “a severe condemnation of Inspector Kanda”. The question was whether the failure to give Inspector Kanda a copy of the Report and the opportunity to correct or contradict it amounted to depriving Inspector Kanda a reasonable opportunity of being heard. Lord Denning had stated as follows: “Applying these principles their Lordships are of opinion that Inspector Kanda was not in this case given a reasonable opportunity of being heard. They find themselves in agreement with the view expressed by Rigby J. in these words: “In my view, the furnishing of a copy of the Findings of the Board of Inquiry to the Adjudicating Officer appointed to hear the disciplinary charges, coupled with the fact that no such copy was furnished to the plaintiff, amounted to such a denial of natural justice as to entitle this Court to set aside those proceedings on this ground. It amounted, in my view, to a failure to afford the plaintiff a reasonable opportunity of being heard in answer to the charge preferred against him which resulted in his dismissal. The mistake of the police authorities was no doubt made entirely in good faith. It was quite proper to let the adjudicating officer have the statements of the witnesses. The Regulations show that it is necessary for him to have them. He will then read this out in the presence of the accused. But their Lordships do not think it was correct to let him have the Report of 11 the Board of Inquiry unless the accused also had it so as to be able to correct or contradict the statements in it to his prejudice.” [18] The issues raised in Surinder Singh Kanda (supra) is directly on point with the instant appeal. The Disciplinary Authority as asserted by the learned High Court Judge was entitled to receive and consider the Report in their deliberations prior to their decision as the Report contained relevant information. However, what they were not entitled to do was to deprive the Appellant of the opportunity to be given the Report and the opportunity to refute or contradict the allegations in the Report. As was succinctly cautioned by Lord Denning in Surinder Singh Kanda (supra) that, “the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.” [19] The Disciplinary Authority in the instant appeal had acted in a similar way as the Board of Inquiry in Surinder Singh Kanda (supra) did i.e. in failing to provide the Appellant with a copy of the Report of the Investigation Body, which Report had been provided to the Disciplinary Authority . [20] In Surinder Singh Kanda (supra), although Inspector Kanda was only given a copy of the Report on the fourth day of the hearing, the Privy Council nevertheless found that there was a breach of natural justice in that he was not given a reasonable opportunity to be heard. The facts in this case is much worse as the Appellant was never given a copy of the Report and the decision to dismiss him was made without the Appellant being given an opportunity to refute or contradict the Report. 12 [21] The views of the majority on this matter was stated in paragraphs 24 to 29 of the ‘Grounds of Judgment’. An extract of the relevant paragraphs are stated below: [24] We have earlier referred to the appellant’s contention that the Disciplinary Authority’s mind had been clouded by the ‘finding ’of the Investigative Body, being an ‘interested party’, constituted fresh, additional and adverse material which was damaging and prejudicial to the appellant. It was submitted that this additional material should not have been taken into account by the Disciplinary Authority in the decision making process. [25] With due respect, we found no substance to the argument. In the first place, the Investigative Body did not recommend that the appellant be found guilty of the charges and be punished of the offences. It merely gave its opinion that the appellant failed to exculpate himself from the charges, but left the final decision to the Disciplinary Authority to determine the appellant’s guilt or otherwise…. [26] With due respect, we find it far-fetched for learned counsel to suggest that the Disciplinary Authority, which was headed by the Deputy Inspector General of Police, could be influenced by the Investigating Officer, a policeman with the rank of Assistant Superintendent of Police, in determining the guilt or otherwise of the appellant, and we say this without demeaning the officer’s role in the disciplinary process. [27] In any event there is no evidence that the Disciplinary Authority’s decision was based on the Investigative Body’s finding that the appellant failed to exculpate himself from the charges. As can be seen from paragraphs 4 and 5 of the minutes of the Disciplinary Authority’s 13 meeting, the Disciplinary Authority came to its finding after considering the evidence and the appellant’s representation. [28] On the facts, we entirely agree with the learned judge that the Disciplinary Authority had been provided with all the information it needed to enable it to evaluate the evidence and to make a well informed decision. What is undeniable is that the Investigative Body’s ‘finding’ (if at all it can be called a finding that the appellant failed to exculpate himself from the charges had no binding effect on the Disciplinary Authority”. [29] It was the Disciplinary Authority and not the Investigative Body that was vested with the power to determine the guilt or otherwise of the appellant. It was therefore futile for the appellant to argue that the decision of the Disciplinary Authority had been compromised and tainted with biasness and procedural impropriety merely because the Investigative Body had given its opinion that the appellant failed to exculpate himself from the two disciplinary charges”. [22] The reasons given in the foregoing extracts of the judgment of the majority to justify depriving the Appellant of a right to a copy of the Report may be summarised as follows: The Report contained only an opinion that the Investigation Body had found that the Appellant had failed to exculpate himself from the charges. The Report did not recommend the Appellant be found guilty by the Disciplinary Authority. There was no evidence that the Disciplinary Authority was influenced by the Report or had based the decision to dismiss the Appellant based on the contents of the Report. The Report is not binding on the Disciplinary Authority. It is the Disciplinary Authority and not the Investigative Body which makes the final decision to dismiss the Appellant. 14 [23] With all due respect to the majority, the issue is whether the Report was damaging to the Appellant and whether the Appellant was entitled to be given a copy of the Report which had been given to the Disciplinary Authority .This was factually the same issue before the Privy Council in Surinder Singh Kanda (supra) which in no uncertain terms established the right. I respectfully disagree with the view of the majority that the Appellant was not prejudiced by the failure to be provided with a copy of the Report as the charges against him was clear. Whether or not the charges against the Appellant is clear is a separate issue and has no bearing on whether he should have been provided with a copy of the Report and given an opportunity to refute or contradict the contents of the Report. [24] In my view, it is also not pertinent to consider whether or not the Disciplinary Authority can be or had been ‘influenced’ by the Report or had premised their decision to dismiss the Appellant based on the contents of the Report. As was stated by Lord Denning in Surinder Singh Kanda (supra), “…The Court will not enquire whether the evidence or representation did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough”. In the instant appeal, it is not disputed that the Report was damaging to the Appellant and thus there was a risk of prejudice to the Appellant. [25] With all due respect to the majority, in addition I do not consider it pertinent that that there was no evidence that the Appellant had requested for the Report. Since the Appellant is entitled to be given a copy of the report, that right cannot be forfeited by his failure to request for it. It is the obligation of the Disciplinary Authority to provide him with the Report. It is not the 15 Appellant’s obligation to request that he be provided with it .In any event, it is also quite likely that the Appellant was unaware that the Disciplinary Authority had been provided with the Report. [26] For all the reasons abovementioned, I am of the considered view that there was a serious procedural impropriety in the decision-making process of the Disciplinary Authority. It was not disputed that the Disciplinary Authority had received and considered the Report, which was damaging and highly prejudicial to the Appellant. It was also not disputed that the Appellant was never furnished with the Report. Thus, the Appellant had been denied a reasonable opportunity to defend himself which is a violation of the Appellant’s constitutional right to be heard as enshrined in Article 135(2) of the Federal Constitution. In consequence thereof, I am of the view that the order of dismissal by the Disciplinary Authority is bad in law for procedural impropriety. Accordingly the dismissal of the Appellant from the Malaysian Police Force was void inoperative and of no effect. [27] I therefore respectfully disagree with the decision of the majority which affirmed the decision of the learned High Court Judge and allow the Appellant’s appeal. DATED: 01 NOVEMBER 2018 TT BADARIAH SAHAMID, JUDGE, COURT OF APPEAL, PUTRAJAYA 16 For the Appellants : TETUAN MANIAM NAIR & CO PEGUAMBELA & PEGUAMCARA NO. 117, TINGKAT DUA JALAN GENUANG 85000 SEGAMAT JOHOR DARUL TAKZIM For the Respondents : PEGUAM KANAN PERSEKUTUAN JABATAN PEGUAM NEGARA NO. 45, PERSIARAN PERDANA PRESINT 4 62100 PUTRAJAYA 17