Saiful bin Norddin v SURUHANJAYA PASUKAN POLIS (P-01(A)-101-02/2022)

KERAJAAN MALAYSIA ...RESPONDENTS HEARD TOGETHER WITH IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO.: P-01(A)-119-03/2022 BETWEEN MOHD EFAD BIN KHALID ...APPELLANT

KERAJAAN MALAYSIA ...RESPONDENTS CORAM S. NANTHA BALAN, JCA GUNALAN MUNIANDY, JCA MOHD NAZLAN BIN MOHD GHAZALI, JCA JUDGMENT INTRODUCTION [1] There are 5 related appeals arising from the same set of facts where the Appellants ['A.1' - 'A.5'] have appealed against the respective decision of the Learned Judicial Commissioner [as he then was 'LJC'] of the High Court in Penang who dismissed their Judicial Review Applications ['JRAs'] wherein they each sought an order of certiorari to quash the impugned decision of the $ 1^{\mathrm{st}} $ Respondent ['R.1'] to find them guilty of the charges preferred and to order their dismissal and ancillary orders. This judgment would be for Appeal 101 and 119. At the outset I would place on record that, I would adopt with approval the reasoning and grounds of judgment of my Learned Brothers, Nantha Balan, JCA and Mohd Nazlan, JCA who have ably written at length on the law and facts. We must also state our decisions for the respective appeals are unanimous. MATERIAL FACTS [2] Briefly, the material facts are as follows:

The 2 Applicants/Appellants were Lance Corporals with the Royal Malaysian Police until their dismissal from service. They were charged with various disciplinary actions pursuant to Peraturan-peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 ('the 1993 Regulations') with the possibility of being dismissed or downgraded in rank.

They were tasked for Ops Wawasan at the border of Malaysia/ Thailand sometime in 2017. They alleged that on or about 26.3.2019, they received a letter from Jabatan Integriti dan Pematuhan Standard of the PDRM informing them of the disciplinary actions against them respectively.

In the said letters, it was stated that upon examining the relevant information, a prima facie case existed on the respective charges. The said letters also informed that they were required to provide their written representation within 21 days providing grounds that they wish to rely on to exculpate themselves.

In response, the applicants duly sent their written representations. Thereafter, through a letter dated 25.10.2019, the applicants were informed that they were found guilty of the respective charges that resulted in their dismissal from service with effect from 23.10.2019. [3] Briefly the LJC's findings on the issues that he correctly identified as the core issues for determination, conveniently expressed under separate headings, are these:

The Disciplinary Procedure The JC viewed that the procedure adopted by the Disciplinary Authority (DA) complied with the 1993 Regulations. The Applicants were inter alia issued with the show cause letter. They were invited to make written representations, which they did. It was only after the DA found that the written representations did not exculpate the Applicants did the DA then decide to dismiss them.

Failure To Furnish Documents Having perused the Applicants' written representations, it is clear that no such request were made. In fact, in the JC's view, the Applicants were able to give a full explanation on all charges. The allegations of having made oral requests for documents etc were only made for the first time in this application and no request were made at the material time. If really documents were required, one would expect that the same be requested for in the letter of representation.

Failure To Conduct An Oral Hearing There was no breach of natural justice under Article 135(2) of the Federal Constitution. The Disciplinary Authority (DA) did observe the rules of natural justice and had given the Applicants an opportunity to be heard. They were informed of the charges against them and given ample opportunity to deny or explain the alleged misconduct. The Applicants had thereafter given a detailed written representation to the DA. DA had considered the Applicants' representation and was satisfied that the Applicants did not exculpate themselves from the charges. It is the DA and not the Court who is to decide whether the officers in their representations have exculpated themselves from charges. It is the DA and not the Court who is to consider the merits of the Applicants' representations and to make a finding of fact whether the Applicants have successfully exculpated themselves from the charges.

Vague Charges This issue was raised belatedly and was never part of the grounds stated in the Statement pursuant to Order 53 ROC. It was similarly not raised in the Applicants affidavit in support, it is trite law that no ground may be relied upon by an Applicant except those grounds set out in the Statement. Having perused the charges, in the JC's view, they were clear and unambiguous. OUR DECISION [6] We would proceed to pronounce our decisions in respect of Appeal Nos. 119 and 110 and the grounds for the same as follows. [7] The main grievance expressed by the present Appellants which is similar to the other Appellants, to our minds, merits serious consideration is in regard to the DA's alleged failure to furnish vital documents to the Appellant who contended that the said failure was prejudicial to the exercise of his right to properly defend the charges preferred against him. [8] It would be useful to state briefly the Respondents' position regarding the validity and propriety of the disciplinary process against the Appellant. It was contended for the Respondents that R.1's meeting was conducted on 23.10.2016. In the exercise of powers delegated by the Police Force Commission through P.U. (B) 441/2000 dated 14.12.2000, the Disciplinary Authority ['DA'] had fully considered that Appellant's representation meticulously and was satisfied that the Appellant did not exculpate himself from the disciplinary charges preferred against him dated 26.03.2019. [9] Therefore, in the exercise of powers delegated by the Police Force Commission to the DA as above, the DA decided that the Appellant was guilty of all the said five (5) charges and imposed the punishment of dismissal for the $ 1^{\mathrm{st}} $ $ 2^{\mathrm{nd}} $ , and $ 4^{\mathrm{th}} $ charges pursuant to Regulation 37(g) of the 1993 Regulations. [10] We are not inclined to accede to the position taken by the Respondents, particularly in regard to the natural justice point advanced by the Appellant notwithstanding the fact that the disciplinary proceeding against the Appellant had complied with the procedure laid down in the Regulations. In our considered view, it was erroneously contended that, as the prescribed procedure had been adopted, there was no question of denial of natural justice or procedural impropriety having arisen. We are convinced that the facts as a whole point to the contrary. [11] The thrust of the Appellant's complaint was that without the REPORT received by ASP RAZALI BIN ABU SAMAH and the CCTV recording from the officer who recorded the applicants statement, the applicant, however, proceeded with his reply on the three (3) charges of the representation, for he was given twenty-one (21) days to reply or show cause to, the charges preferred against him. [12] Our attention was drawn to a judgment of the Court of Appeal ['COA'] in a case squarely in point, Mohd Zulhazi bin Mohd Zulkafli v Suruhanjaya Pasukan Polis [2015] 2 MLJ at p.88 where the relevant part of the judgment pertinent to the issue at hand states as follows: "It was erroneous on the part of the deponent to have averred that the SPRM was unable to produce the statement due to the restrictions imposed by sub-s 29(4) of the Malaysian Anti-corruption Commissions Act 2009. There was no impediment to the disclosure being made with the consent of an officer of the commission of the rank of commissioners and above. There was no real effort being made to obtain Alex's statement from the SPRM. This was a material breach of natural justice since Alex was the complainant and the appellant was charged with a disciplinary offence of receiving a bribe from Alex (see para 15). There was a clear breach of natural justice committed by the first respondent. In the first charge, the appellant was alleged to have received RM5,000 bribery from Alex. The money was purportedly given to the appellant through one Koperal Abdul Rahman bin Abdul Kadir. In order for the appellant to prepare an effective defence against this charge, the appellant needed to have sight of the allegation made against him and to have the opportunity to rebut each and every statement that might implicate him in the offence (see para 16). " [13] Further at para 4 that: "At this stage we need to remind ourselves of the power of the court in judicial review involving disciplinary proceedings as stated in the case of Azman bin Abdullah v Ketua Polis Negara [1997] 1 MLJ 263; [1997] CLJ 257 (CA) Abdul Malek Ahmad JCA (as he then was) stated that, at p 273, para e: It is settled law that in judicial review by way of a certiorari application, the court is only concerned with the decision making process and not with the decision. It is not an appeal from the decision made but a review of the manner in which it was made and it is not the court's function to consider whether on the merits of the facts of the case, the said decision was fair and reasonable. [5] With the above principles in mind as guidance, we proceeded to consider the two issues raised by learned counsel for the appellant for our determination. First, the non-supply of material document, that is, the statement made by the complainant named Alex @ Lai Foo Hoo (Alex), by the first respondent which had made it difficult for the appellant to defend himself in respect of the first charge in breach of the principles of natural justice in favour of the appellant. Second, the act of condonation by the respondents when the appellant was promoted to assistant police commissioner after the appellant was alleged to be involved in taking bribe though a third party." The 'non-supply of documents' by the Respondents had breached the Rule of natural justice.' [14] Granted that a disciplinary proceeding cannot be equated to a trial where the strict rules of the law or evidence would apply. The DA is also at liberty to gather information by any available means and from sources deemed fit. However, the DA is under a duty to always give a fair opportunity to those who are parties to the proceeding to correct or contradict any relevant statement that implicates or is prejudicial to them. [See Shamsiah binti Ahmad Shan v Public Services Commission Malaysia [1990] 3 MLJ 364 (SC) per Jemuri Serjan, SCJJ (as he then was)]. [15] It cannot be gainsaid that being furnished with important documents relevant to the charges that an officer is facing is vital to the exercise of his right to be heard as was stressed in Vijayarao a/l Sepermaniam v Suruhanjaya Perkhidmatan Awam, Malaysia [2018] 9 CLJ m.s.141: "... The appellant had also complained that he was not given any document at all by the PSC notwithstanding that specific request was made for those relevant documents including the reports that were relied upon by the PSC in finding that a prima facie case had been proved against hint. The right to documents related to the disciplinary proceedings is closely linked to the right to an oral hearing. Both are important elements in fulfilling the right to be heard to be afforded to the officer concerned. In view of the serious charges levelled against the appellant, which ultimately resulted in him being dismissed from the service, the appellant ought to have been supplied with all the relevant documents and reports requested by him particularly since the disciplinary authority had relied on those documents to decide that a prima facie case had been proved against the appellant, to enable him to make an effective and meaningful defence to the charges." [See also Ang Seng Wan v Suruhanjaya PDRM & Anor [2002] 1 CLJ at p.493.] [16] As held in Vijayarao (supra), the Appellants, in fairness, ought to have been supplied with all the relevant documents and reports required by them bearing in mind that the same were the very documents that the DA had relied upon to make the important finding that a prima facie case had been made out against them to initiate the disciplinary proceeding. [17] Our view is in accord with the Appellant's position that based on the instant factual scenario it was crystal clear that the Respondents in the decision-making process had breached a cardinal rule of natural justice and had committed procedural impropriety when they failed to provide the Appellant with vital documents, statements, reports and CCTV recordings though only orally sought by him at the proceedings. Without being in possession of the same, especially the crucial report received by ACP Razali bin Abu Samah, which was specifically referred to in the show cause letter, the Appellants were certainly placed in a disadvantageous position in defending the allegations levelled against them. We are, hence, constrained to hold that the proceedings conducted by the DA in this instance is inconsistent with the rules of natural justice as enshrined in Art. 135(2) of the FC. [18] We are not inclined to agree with the Respondents that as there was no conclusive evidence that the Appellants had made an official request for the documents, the former had been absolved of the duty to supply or disclose the contents of the same to the Appellants. The Respondents took the position that the Mohd Zulhazi and Vijayarao' cases ought to be distinguished and are not applicable to the situation in our instant case because:

In both the cases referred to above, written official requests via letters were made by the officers for them to be furnished /given with certain documents;

(ii) As clearly deposed in the Respondents' Affidavit in Reply of our present case, at any material times, the Appellant did not request for any documents or materials used to charge the Appellant to be furnished to him or to be given access to; and

(iii) In our present case, as clearly deposed in the Respondents' Affidavit in Reply, at any material time, the Appellant never asked for an extension of time to tender his representation against the charges imposed on him. [19] Neither do we agree with the Respondents' contention that as the 1993 Regulations do not impose a duty on R.1 to supply documents used in the exercise of R.1's discretion when directing the Appellant to make representation to exculpate himself. R.1 may the absolved of that duty. To our minds, that duty is judgmental in the decision-making process by a body conducting a disciplinary inquiry. [20] Likewise the Respondents' proposition as below did not find favour with us: "In the absence of any provision in the 1993 Regulations imposing such a duty, the 1 $ ^{st} $ Respondent could not be said to have denied the Appellant of any procedural fairness for not furnishing the documents to the Appellant. There cannot be any breach or duty where none exists in law." [Reference made to Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v. Mohd Noor Abdullah [2004] 2 CLJ 777] [21] We say so because in the instant appeals the material documents sought were made reference to by the DA itself without any disclosure to the Appellants of their contents which, in our view, could likely have caused substantial prejudice to the Appellants in effectively defending the charges levelled against them. In our considered view, when rules of natural justice are invoked, there is no necessity for the persons aggrieved to rely upon any provision of the law to challenge the fairness of the decision-making process under the peculiar circumstances of the case. CONCLUSION [22] For the foregoing reasons, we would, therefore, hold that the LJ had fallen into error in law and fact in arriving at his decision to dismiss the Appellants' JR Application which, on the grounds in support, had substantial merits, particularly on the issue of denial of natural justice to the Appellants. It was abundantly clear to us that the Respondents had breached established rules of natural justice when the Appellants were denied access to vital documentary evidence that was central to his defence against the charges levelled against them. R.1 themselves founded the charges on a specific Report on which the show cause letters to the Appellants were predicated. This Report, not having been served on the Appellants was prima facie prejudicial to the right of the Appellants to adequately prepare their defences to the charges considering that they was an ordinary, low ranking police personnel who had to face the Government machinery which had substantial resources to pursue its case against them. [23] In the circumstances, we would conclude that, both the appeals are well substantiated on the merits of the facts and in principle. We, accordingly allow these appeals and set aside the decision of the HC with costs of RM10,000.00 in each appeal (as costs here and below - without allocator). Dated: 24 October 2023 GUNALAN A/L MUNIANDY Judge Court of Appeal Putrajaya COUNSEL FOR THE APPELLANT: Haji Mohd Ismail bin Mohamed [Messrs Ismail Khoo & Associates] COUNSEL FOR THE RESPONDENTS: SFC Muhammad bin Sinti [Penang State Legal Adviser's Office]