Sjn U Ahmad Zaini Bin Zainon v Kolonel Dr. Norazrin Bin Shamsudin Tudm (B-01(A)-152-02/2024)

KOLONEL DR. NORAZRIN BIN SHAMSUDIN TUDM (No. Tentera: 372488) selaku Pihak Berkuasa Sidang Mahkamah Tentera Udara, Pengkalan Udara Sendayan, Negeri Sembilan

PANGLIMA TENTERA UDARA DIRAJA MALAYSIA ... RESPONDENTS [In the High Court of Malaya at Shah Alam Judicial Review Application No.: BA-25-29-03/2022 between Sarjan (U) Ahmad Zaini Bin Zainon ... Applicant (No. Tentera: 722523) and

Kolonel Dr. Norazrin Bin Shamsudin TUDM

Yang Dipertua Dan Ahli-Ahli Mahkamah Tentera Udara Pangkalan Udara Sendayan Negeri Sembilan

Panglima Tentera Udara Diraja Malaysia ... Respondents] CORAM: S. NANTHA BALAN, JCA LIM CHONG FONG, JCA AHMAD KAMAL BIN MD. SHAHID, JCA JUDGMENT Introduction [1] This is an appeal by Sarjan (U) Ahmad Zaini Bin Zainon (the Appellant) against the decision of the High Court dated 6 February 2024 in dismissing the Appellant's application for Judicial Review (JR) wherein the Appellant sought to obtain an Order of Certiorari to quash the Sendayan Air Force Court-Martial (the Court-Martial) dated 22 September 2021 (the Decision) which found the Appellant guilty of the charge of contravening Standing Order under Section 51 of the Armed Forces Act 1972 (the Act) and subsequently sentenced the Appellant to a term of imprisonment for a period of 150 days under the same section. [2] We heard the arguments of the parties on 22 January 2025 and 19 March 2025, and thereafter reserved our decision. On 20 May 2025 we allowed the Appellant's appeal and ordered the case to be remitted for retrial before a reconstituted Court-Martial. Our reasons now follow. Background Facts [3] The Appellant is a former Sarjan Udara of the Malaysian Air Force and was stationed at Cawangan Tadbir, Pengkalan Udara Jugra, Banting from 3 July 2017 until 22 April 2022. [4] Pursuant to Section 51 of the Act, the Appellant was charged as follows: MELANGGAR PERINTAH-PERINTAH TETAP YANG BERTENTANGAN DENGAN SEKSYEN 51, AKTA ANGKATAN TENTERA 1972 laitu kamu, di Pejabat Ajutan Pengkalan Rejimen, Pada 9 Disember 2019 jam lebih kurang 1200H, telah melanggar Perintah Tetap Rejimen TUDM, Bahagian 2, Perintah No.56, didapati di dalam air kencingnya mengandungi dadah berbahaya jenis Methamphetamine, iaitu satu perintah yang diketahui oleh kamu atau sepatutnya kamu mengetahuinya. PERTUDUHAN ALTERNATIF KEPADA PERTUDUHAN PERTAMA SATU PERBUATAN YANG MEMUDARATKAN KEADAAN BAIK DAN TATATERTIB PERKHIDMATAN YANG BERTENTANGAN DENGAN SEKSYEN 87, AKTA ANGKATAN TENTERA 1972 laitu kamu, di Pejabat Ajutan Pengkalan Rejimen, pada 9 Disember 2019 jam lebih kurang 1200H, telah didapati di dalam air kencing kamu mengandungi dadah berbahaya jenis methamphetamine, oleh demikian satu perbuatan yang memudaratkan keadaan baik dan tatatertib perkhidmatan" [5] Kolonel Dr. Norazrin Bin Shamsudin (the $ 1^{\mathrm{st}} $ Respondent) is the Director of the Legal Division, TUDM Markas Tentera Udara (MTU) based in Pengkalan Udara Sendayan, Negeri Sembilan. [6] The $ 1^{\mathrm{st}} $ Respondent, acting as the Convening Authority pursuant to section 104 of the Act, had issued a Convening Order (Perintah Sidang) for a Court-Martial on 22 October 2020. [7] The Court-Martial took place on 27 October 2020, 3 March 2021, 4 March 2021, 31 March 2021, 1 April 2021, 25 May 2021 and 27 May 2021. Submissions took place on 11 August 2021. The Decision was given on 22 September 2021. [8] The Appellant had filed a Petition against the decision on 7 October 2021. The Petition was addressed to the Panglima Tentera Udara (the 3 $ ^{rd} $ Respondent). [9] The 1 $ ^{st} $ Respondent, as Confirming Officer, had on 29 November 2021 confirmed the finding of the Court-Martial. The finding was promulgated on 8 December 2021. [10] The Competent Authority discharged the Appellant from service pursuant to Regulation 61(1)(j) of the Armed Forces (Terms of Service of Regular Forces) Regulations 2013 (Discharge Decision) on 22 April 2022. [11] On 31 March 2022, the Appellant filed this application for JR, praying for the following reliefs: i. Suatu perintah certiorari bahawa keputusan Mahkamah Tentera Udara Sendayan bertarikh 22 September 2021 yang telah memutuskan bahawa Pemohon disabitkan bersalah atas pertuduhan melanggar perintah-perintah tetap yang bertentangan dengan Seksyen 51 Akta Angkatan Tentera 1972 dan dihukum di bawah peruntukan yang sama dengan hukuman tahanan selama tempoh 150 hari adalah tidak sah dan terbatal. ii. Suatu deklarasi atau pengisytiharan bahawa tahanan Pemohon dari tarikh 22 September 2021 sehingga 3 Januari 2022 adalah penahanan salah; iii. Suatu deklarasi/pengisytiharan bahawa Perintah yang dikeluarkan dalam Perintah Tetap Rejimen Tentera Udara Diraja Malaysia Jugra iaitu perenggan 3 pada Perintah Bahagian 2 No. 56 adalah ultra vires Akta Dadah Berbahaya 1952; iv. Suatu deklarasi/pengisytiharan bahawa Perintah yang dikeluarkan dalam Perintah Tetap Rejimen Tentera Udara Diraja Malaysia Jugra iaitu perenggan 3 pada Perintah Bahagian 2 No. 56 adalah ultra vires Jadual Kesembilan "List 1" Perlembagaan Persekutuan; v. Suatu deklarasi/pengisytiharan bahawa Responden Pertama tiada kuasa untuk memerintah Mahkamah Tentera disidangkan untuk membicarakan Pemohon; vi. Suatu deklarasi/pengisytiharan bahawa Hakim Peguam adalah perlu dilantik bagi Mahkamah Tentera dan peruntukan kaedah 48(1)(f) adalah ultra vires seksyen 151 Akta Angkatan Tentera 1972; vii. Ganti Am dan/atau punitif; viii. Kos; ix. Lain-lain relif yang difikirkan adil dan suai manfaat oleh Mahkamah Yang Mulia ini. [12] The learned High Court Judge (HCJ) on 6 February 2024 dismissed the Appellant's application for JR on the following grounds: The Validity of the Court-Martial i. The Appellant claimed that at all material times, he was not under the command of the $ 1^{\mathrm{st}} $ Respondent and therefore by virtue of subsection 104(4) of the Act, the $ 1^{\mathrm{st}} $ Respondent is not the appropriate officer to convene the Court-Martial and thus the Court-Martial is tainted with illegality. ii. The learned HCJ found that the Appellant was attached temporarily to the Legal Department of the Sendayan Air Base from 30 September 2020 to 29 June 2021. Section 23 of the Act authorises such an arrangement. Moreover, the Respondents exhibited an authorisation letter stating that the $ ^{1 \mathrm{st}} $ Respondent has been conferred the authority to convene the Court-Martial. iii. The Appellant's claim that the temporary attachment was done for the purpose of convening the Court-Martial against the Applicant is not supported by any evidence and therefore is a mere allegation and is hence untenable. The right to Judge-Advocate i. The Appellant submitted that he had the right to a Judge Advocate, who must be appointed, failing which the Court-Martial is illegal. ii. Section 151 of the Act empowered the Judge Advocate General to appoint the Judge-Advocate. It uses the word 'may', which denotes discretionary powers to the convening officer, i.e. the $ 1^{\mathrm{st}} $ Respondent in this case, to choose whether or not to appoint a Judge-Advocate. According to the learned HCJ, the Decision of the convening officer not to do so in this case is well within the ambit of the law. As such, the learned HCJ found the Appellant's argument to be without merit. The Constitution of the Court-Martial i. Regarding the Appellant's allegation of bias in the order of rank between the members of the Court-Martial and/or between the President of the Court-Martial and the $ 1^{\mathrm{st}} $ Respondent, the learned HCJ found this to be a mere allegation without evidence of the same and that there was nothing before the court to substantiate the Appellant's claim. ii. The Records of Proceedings of the Court-Martial show that there were instances where the President agreed with the position of the counsel acting for the Appellant in relation to the method of examining the Prosecution Witness, and there were instances where the President disagreed. In the considered view of the learned HCJ, the real danger of bias by the $ 1^{\mathrm{st}} $ Respondent or the Court-Martial was unfounded. iii. On the issue of the number of members for a Court-Martial, subsection 105(1) of the Act provides that the Court-Martial could contain at least three (3) members, one (1) of which is the President. The Act envisages the appointment of officers in even numbers, as evident from subsection 112(2). iv. Therefore, the learned HCJ found the Appellant's argument to be without merit. Issues on the Charge - Defective i. The High Court observed that the way the charge was proffered did not mention that the Appellant had "contravened and/or failed to comply". Instead, the charge is limited to one (1) only, which is "contravened". In the view of the High Court, the charge is not defective. It is clear as to the case that the Appellant is required to answer. ii. The Appellant contended that the Standing Order was ultra vires the Dangerous Drugs Act 1952 (DDA) and the Federal List of the Federal Constitution. The reason is that none of the provisions empowered the Commanding Officer (CO) to create such a law. The Appellant's challenge is specifically on paragraph [3] of Order No. 56, Part 2 of the Standing Order. iii. According to the High Court, paragraph [3] provides in what situations one can be deemed to have contravened and/or failed to comply with the Standing Order. iv. Moreover, the Standing Order is issued in accordance with subsection 51(3) of the Act. The Appellant needs to answer the elements stated in subsection 51(3) of the Act. The Appellant may need to explain why he had such substance on his person, but there is no legal requirement for the Appellant to answer paragraph [3] to cast a doubt on subsection 51(3) of the Act. The duty cast on the Appellant is to demonstrate that he did not contravene the Standing Order. v. The Appellant also raised the issue on the manner of investigation under section 95 of the Act, which is in contravention of Rules 33, 34 and 35 of P.U.(A)163/1976. This issue was not pleaded in the Appellant's Statement under Order 53 r.3(2) of the Rules of Court 2012. Therefore, the High Court did not consider this submission. vi. Counsel for the Appellant also raised the issue of the applicability of the Standing Order to the Appellant, which was not produced before the Court-Martial. This issue had been dealt with by the President in the Court-Martial. Hence, it bears no merit. i. The Appellant raised the issues of admissibility of expert evidence and the break of the chain of custody. ii. The High Court held that the JR application is not an appeal against the findings and decisions of the Court-Martial. This is not a proper forum to address any procedural matters of the Court-Martial, and the President is the best candidate to evaluate the evidence available before the President. iii. The High Court has perused the learned President's Ground of Judgment (GOJ), and found that the President had addressed her mind to both the issues above. The President found that the expert evidence is reliable and the chain of custody is intact. iv. There is no necessity to deal with these issues because the Appellant merely raised a complaint but failed to demonstrate which of his substantial rights have been infringed. v. The Appellant claimed that the learned President had failed to consider objections made pursuant to Rules 61, 62 and/or 63 of P.U.(A)163/1976. vi. The learned HCJ found that the Record of Proceedings indicated that the counsel did not raise any objection that the documents requested were not given. Hence, there was no objection at all. Even if the court is to consider if there is any illegality in the learned President's refusal to issue summons under section 51 of the Criminal Procedure Code, this is a non-issue because neither section 95 of the Act nor Rules 61, 62 and/or 63 of P.U.(A)163/1976 entitles the Appellant to have access to any documents before being allowed to object. Issue on promulgation i. The Appellant claimed that his CO did not inform him of the confirmation of the Court-Martial's findings. ii. The learned HCJ noted that the temporary attachment on the Appellant had already expired when the finding of the Court Martial was confirmed on 29 November 2021. The CO of the Appellant is therefore, Brigadier-General Meor Ahmad Kamal Bin Meor Haji Termizi, of the Jugra Air Base. iii. Before the High Court, there was no evidence that the confirmation has been communicated to the Appellant by Brigadier-General Meor Ahmad Kamal Bin Meor Haji Termizi. Brigadier-General Meor Ahmad Kamal Bin Meor Haji Termizi did not affirm any affidavit to that effect. iv. The Appellant in his Order 53 Statement did not plead the validity of findings in the absence of promulgation. The Appellant merely stated that the Court-Martial's finding is final upon confirmation by the confirming officer (paragraph 48). At paragraph 49, the Appellant stated that he must be informed of the confirmation. The Appellant also did not cite the party that dismissed him. There is no reason or elaboration after the abovementioned paragraphs 48 and 49. Moreover, the Appellant withdrew the prayers for a stay. Therefore, this issue ought to be dismissed. The Appeal [13] Before us, the Appellant raised 21 grounds of appeal as per the Memorandum of Appeal. However, based on the submission that were made on behalf of the Appellant (in Enclosure 12), the core issues to be dealt with by this Court in essence are that the learned HCJ had erred in:-a. determining the validity of the Court-Martial and the defective jurisdiction of the Court-Martial; b. deciding that there is no mandatory requirement for the appointment of a Judge-Advocate in the Court-Martial proceedings; c. determining that there existed no real bias on the part of the $ 2^{n d} $ Respondent through the President; d. determining that the charge which was framed against the Appellant was valid; e. determining that the charge against the Appellant was ultra vires the DDA and the Ninth Schedule, List 1 of the Federal Constitution; f. failing to consider matters of procedural impropriety which had arisen throughout the Court-Martial proceedings; and g. determining that the President's non-consideration of Rules 61, 62 and/or 63 of the P.U. (A) 163 was valid in fact and law. [14] On the other hand, it was submitted for the Respondents that the learned HCJ had rightly decided the above issues, and that the appeal should be dismissed. Our findings Validity and jurisdiction of the Court-Martial [15] The first issue is with regard to the validity and jurisdiction of the Court-Martial.

1 At the outset, we are of the view that the learned HCJ erred in deciding that the Court-Martial was valid when in fact the $ 1^{\mathrm{st}} $ Respondent had no jurisdiction to convene the Court-Martial. This is because the $ 1^{\mathrm{st}} $ Respondent did not at any point satisfy the requirement of section 104 of the Act, as he had no command power over the Appellant. Therefore, his act of convening the Court-Martial was ultra vires and therefore tainted with illegality.

2 We find that at all material times, the Appellant was never and had never been under the command of the $ 1^{\mathrm{st}} $ Respondent in PU Sendayan and was physically stationed at PU Jugra under the command of the Appellant's CO, Brigadier-General Meor Ahmad Kamal Bin Hj Meor Taermizi TUDM at the material time as evidenced by the testimony of Leftenan Muhammad Shukor bin Abdul Hamid (SP3).

3 The $ 1^{\mathrm{st}} $ Respondent had never at any juncture denied the fact that the Appellant was indeed stationed at PU Jugra and was only under the $ 1^{\mathrm{st}} $ Respondent's command during the dates when the Court-Martial was convened. This can be gleaned in Paragraph [6] of the $ 1^{\mathrm{st}} $ Respondent's Affidavit, which indicates the same (Enclosure 4, page 31).

4 Further, we are of the view that the learned HCJ erred and misdirected herself in deciding that there was no evidence to support the fact that the Appellant was only brought to PU Sendayan for the purpose of the Court-Martial proceedings and that he was stationed at PU Jugra. This was clearly evident from his incarceration at the PU Jugra cell, where he was charged under the care of the PU Jugra CO.

5 We find that at all material times, the Appellant was physically serving in the administrative division (Cawangan Tadbir) at PU Jugra, Selangor and not in PU Sendayan, Negeri Sembilan, particularly on 22 October 2020 - the date the Convening Order was issued.

6 Since the $ 1^{\mathrm{st}} $ Respondent's jurisdiction was obtained by virtue of subsection 104(4) of the Act, it must therefore be read together with the warrant given by the $ 3^{\mathrm{rd}} $ Respondent on 28 July 2020 which reads as follows: - "Pada menjalankan kuasa oleh Waran yang diberikan kepada saya, saya dengan ini mewakilkan kuasa saya kepada Kol Norazrin bin Shamsudin TUDM (372488), Pengarah Perundangan dan mana-mana orang yang pada masa itu menjalankan tugas jawatan anda, atau pengganti dalam jawatan berkenaan untuk mengadakan dan/atau menyidangkan dari semasa ke semasa, apabila keadaan menghendaki suatu Mahkamah Tentera bagi membicarakan seseorang yang pada masa itu berada di bawah diperintah anda yang kena dibicara oleh Mahkamah Tentera." (Emphasis added)

7 Notwithstanding the Appellant's temporary assignment to PU Sendayan for the purpose of the Court-Martial proceedings, the Appellant was officially stationed at PU Jugra at all times. As such, we are of the view that the Appellant's CO is not the $ ^{1} \mathrm{st} $ Respondent.

8 We are guided by the Federal Court case of Kee Peng Kwan v Colonel VN Stevenson & Ors [1975] 1 MLRA 574; [1975] 2 MLJ 139 (Kee Peng Kwan's case), where it was held that the CO was the officer in charge at the station where the accused officer was posted.

9 The same principle applies in the present case, wherein the Appellant was stationed in PU Jugra. As such, the Appellant's CO could not possibly be the $ 1^{\mathrm{st}} $ Respondent. Consequently, the $ 1^{\mathrm{st}} $ Respondent does not possess the requisite authority to issue the Convening Order for the Court-Martial proceedings against the Appellant.

10 The Federal Court in Kee Peng Kwan's case examined, among others, the physical placement of the accused officer as well as the hierarchal and jurisdictional authority which was exercised over him in arriving at its determination that he did in fact fall under the command of Major Idrus as the Camp Commandant, Camp Ministry of Defence.

11 On the fact of the present appeal, it is clear that Brigadier-General Meor Ahmad Kamal bin Hj Meor Termizi was the Appellant's CO. As such, the Appellant was under his authority when he was stationed in PU Jugra, a fact which was never disputed.

12 After the investigation by the Appellant's CO, the Appellant was transferred from his placement in PU Jugra to PU Sendayan by way of the Kawat Semboyan, which instructed that the Appellant be temporarily attached to PU Sendayan.

13 In this regard, although the Appellant's so-called temporary attachment had been instructed, at all material times, it had remained an undisputed fact that the Appellant had continued to serve in PU Jugra.

14 The learned Senior Federal Counsel (SFC) for the Respondents had highlighted in paragraph [13] of the Respondents' Submission that the terminology of the word 'temporary' has no bearing on the command which a CO may exercise upon his subordinate.

15 The learned SFC also submitted (per paragraph 14 of the Respondents' Submission) that, "the Military law allows such attachments without the requirement of physical presence or inclusion in a specific unit's strength record".

16 We find that, in both regards, the learned SFC's submission is in itself a mere and unsubstantiated belief that is not supported by any evidence or legal principle.

17 The case of Kee Peng Kwan was clear in highlighting the necessity of both authorities being exercised over the person in question, as well as the physical presence of the said person, where the Federal Court had stated: "In my view, and with respect, the definition of Commanding Officer in the Malay Regiment Enactment fits Colonel Mohamad Daud bin Abu Bakar, the Director of Army Training in the Army Staff Division, Ministry of Defence, to which the appellant was at all relevant times posted. The appellant himself stated in no uncertain terms that he regarded this officer as his commanding officer. This officer himself admits that the appellant was posted to "my directorate" and that in his capacity as Director of Army Training he was to ensure that the appellant like any other Staff Officer in his directorate carried out his routine staff functions efficiently in accordance with his schedule of duties. This must imply that he was the officer ordinarily empowered to give commands to the appellant in the execution of his duties, and would know if there was any inefficiency, dereliction of duty or insubordination ...” (Emphasis added)

18 Given the above, it is clear that the physical presence of the person in question is a prerequisite to determining whether or not he falls under the command of a CO in a particular unit.

19 The $ 1^{\mathrm{st}} $ Respondent alleged that the Appellant came under his command on 29 September 2020 by way of the Kawat Semboyan, by which the Appellant had been temporarily attached to the Legal Department of PU Sendayan for documentation purposes as well as Court-Martial proceedings.

20 Upon perusing the Convening Order dated 22 October 2020, we find that it stated that the 1st Respondent was, in fact, attached to the Legal Division, MTU, which was situated in Kuala Lumpur and had no form of command in PU Sendayan at any time.

21 Thus, based on the principles of law established in Kee Peng Kwan's case, we find first, that the Appellant himself never served in PU Sendayan at the material time, and secondly the $ ^{1} \mathrm{st} $ Respondent was never the Appellant's CO on the date that he had convened the Court-Martial. Thirdly, we find that the $ 1^{\mathrm{st}} $ Respondent was not the CO who was attached to PU Sendayan. Rather, the facts reveal that the $ 1^{\mathrm{st}} $ Respondent was at the material time, the Director of the Legal Division, MTU.

22 We are of the view that, since the Appellant was temporarily attached to PU Sendayan instead of MTU, he could not be at the same time be under the command of the $ 1^{\mathrm{st}} $ Respondent.

23 In light of this, it is clear that the learned HCJ had misdirected herself where she had failed to assess and scrutinise the totality of the evidence put before her, particularly in determining that the Kawat Semboyan in itself was sufficient to show that the $ 1^{\mathrm{st}} $ Respondent had command over the Appellant.

24 This is evident from the learned HCJ's GOJ at paragraph [38], which reads as follows: [38] The applicant further claimed that the temporary attachment was done for the purpose of convening the Court-Martial against the applicant. This claim by the applicant is however not supported by any evidence and therefore in the view of the court is mere allegation and is hence untenable."

25 We find that the learned HCJ's findings were in direct conflict with the contents of the Kawat Semboyan dated 29 September 2020 which reads as follows: "ANGGOTA DITUMPANGKAN SEMENTARA KE CAWANGAN PERUNDANGAN PU SENDAYAN BAGI TUJUAN DOKUMENTASI DAN PERBICARAAN MAHKAMAH TENTERA 30 SEP 20 HINGGA 29 DIS 20." (Emphasis added)

26 We further find that the same had been indicated in all subsequent Kawat Semboyan which had been issued.

27 The learned HCJ had further failed to consider the testimony of witnesses, particularly the testimony of SP3, who had unequivocally testified that the Appellant was at all times serving in PU Jugra and had never reported to PU Sendayan. (Enclosure 6, pages 93-96)

28 This is especially true where when the Convening Order was issued on 22 October 2020, the Appellant himself was not serving in PU Sendayan.

29 The same is reflected in the Appellant's record of service (BAT D 45), which did not record that he had entered into PU Sendayan, be it permanently or temporarily, as was similarly attested to by the Unit Record Officer under oath.

30 Here, we find that the Respondents failed to adduce any evidence that conclusively demonstrated the Appellant's entry into the unit strength of PU Sendayan. In light thereof, the learned HCJ had misdirected herself in determining that the Appellant's temporary attachment to PU Sendayan was procedurally sound despite the lack of evidence indicating as such. Wrongful admission of the Standing Order.

31 During the Court-Martial proceedings, we find that the $ 2^{\mathrm{nd}} $ Respondent had wrongfully admitted the Standing Order into evidence, even though the exhibited Standing Order was not applicable to the Appellant. (Enclosure 5, page 13)

32 In referring to Enclosure 5, page 29, the $ 1 0^{th} $ copy of the Standing Order had in fact been distributed to the 'Skuadron Keselamatan', a division in which the Appellant was not stationed in since, at the material time, the Appellant was stationed at the 'Cawangan Tadbir'.

33 In addition to this, the provision of subsection 181(1) and (8) of the Act provides as follows: "181. General provisions as to evidence.

The following provisions shall have effect with respect to evidence in proceedings under this Act, whether before a court-martial, a civil court or otherwise. [...]

A certificate purporting to be signed by a person's commanding officer or any officer authorized by him to give the certificate, and stating the contents of, or of any part of standing orders or other routine orders of a continuing nature made for-

any formation or unit or body of troops; or

any command or other area, station, garrison or place; or

any ship or naval establishment; or

any train or aircraft, shall in proceedings against the said person be evidence of the matters stated in the certificate."

34 At all material times, we find that no such certificate which was signed by the Appellant's CO was ever submitted before the Court-Martial by the Prosecution with regard to the charge which was proffered against the Appellant during the trial, thereby amounting to a failure in complying with the express provision of section 181 of the Act.

35 This procedural failure was further compounded by the fact that, despite failing to comply with the aforementioned provision, the $ 2^{\mathrm{nd}} $ Respondent admitted the Standing Order as evidence.

36 Rather, we are of the view that the Standing Order upon which the charge against the Appellant was made is a key component which must be submitted before the Court-Martial to fully satisfy the elements under section 51 of the Act, failing which renders the element in question to be unfulfilled.

37 The failure of the Prosecution to adequately submit the certificate as required under subsection 181(8) of the Act further aggravates the exhibiting of the Standing Order to the Court-Martial given that if in fact the Standing Order had been issued by the same CO, the procurement of such a certificate bearing the same CO signature as it concerned the contents of the Standing Order and by extension the compliance with the provisions of subsection 181(8) of the Act could have been easily carried out.

38 In the absence of such, even if the exhibited Standing Order had been the copy which had been distributed to the 'Cawangan Tadbir', its admissibility would have still been called into question based on non-compliance with the provisions of subsection 181(8) of the Act.

39 In the present circumstances, where the exhibited Standing Order was in fact not the Standing Order which had been distributed to the Appellant's division as well as the failure to comply with subsection 181(8) of the Act, we are of the view that the proceedings were tainted with procedural impropriety which had thus prejudiced the Appellant's rights.

40 Based on the Court-Martial record, Kapten Abdul Rahim bin Ishak (SP1), had made a statement regarding the Standing Order, which had been duly published and was read to the team every morning. The relevant statement is produced below: "Memang menjadi kebiasaan dan rutin dalam TUDM untuk baris pagi akan dilaksanakan dalam perbarisan pangkalan, perbarisan ketua cawang di mana directive PTU, Perintah Tetap dan Perintah Bahagian 1 pun akan dibacakan di hadapan anggota TUDM." [Enclosure 6, page 69]

41 The learned SFC submitted that the Standing Order clearly contains the provisions relating to the prohibition of drug abuse, which were applicable and imposed on all members where the Appellant was serving. It was submitted that, as a member of the Malaysian Air Forces serving in Pasukan Rejimen TUDM (Ajutan Pangkalan Udara Jugra), it is the Appellant's duty to obey the Standing Orders. Thus, it was contended that the Appellant's disobedience of the said Standing Order contravened section 51 of the Act.

42 The learned SFC further contended that the mandatory requirement of subsection 181(8) of the Act and section 64 of the Evidence Act 1950 can be circumvented simply by the act of reading the said Standing Order during the assembly.

43 We find that the Respondents' contention is misconceived and wrong in fact and law as there exists express provisions under subsection 181(8)(a) of the Act and Section 64 of the Evidence Act 1950 which require the specific compliance to the aforesaid provisions for the production of evidence in relation to the said Standing Order.

44 As such, we are of the view that the mere reading of the said Standing Order at an assembly is insufficient to connote that the Appellant himself would have personal knowledge of the contents of the said Standing Order, more so given the fact that at no juncture was the Standing Order which was relevant to the Appellant ever produced as an exhibit. Petition against the Court-Martial decision

45 Section 123 of the Act concerns the Appellant's right to appeal by way of Petition at any time after the confirmation of the Court-Martial's decision. This provision means that the Petition must be submitted within a specified time frame following the confirmation and in the prescribed manner, adhering to the specific procedures or formats outlined by the relevant military or legal authorities.

46 Pursuant to section 123 of the Act, the prescribed manner can be referred to in Rule 101, P.U.(A) 163. Based on this provision, the Appellant has two (2) opportunities to file a Petition: a) Before confirmation, against the finding or sentence, to the Confirming Officer; or b) After promulgation, against the sentence, to the Reviewing Authority. Additionally, the Petition was served to the Pegawai Pemerintah Jugra and addressed to the Panglima Tentera Udara ( $ 3^{rd} $ Respondent).

47 Thus, in light of this present appeal, the Respondents had raised the question of whether the Appellant had rightly submitted his petition to the confirming officer.

48 The question of who in fact is the relevant confirming officer is defined under section 126 of the Act and expressly provides under subsection (1)(a) that the officer who convened the Court-Martial or any officer superior in command to that officer shall have power to confirm the finding or sentence of a Court-Martial.

49 As such, this explicitly indicates that the convening officer is not the sole individual who would be regarded as a confirming officer. Any officer who is superior to him could similarly be regarded as a confirming officer and could, therefore, be petitioned in accordance with Rule 101 of the P.U. (A) 163.

50 Thus, it follows that a plain reading of the aforesaid section would amount to the conclusion that in this present appeal, the $ 3^{rd} $ Respondent - as Air Force Chief of the Royal Malaysian Air Force - is a confirming officer as defined under section 126 of the Act.

51 This can be primarily predicated on two (2) key reasons, i.e. a) the $ 3^{rd} $ Respondent's superiority in rank to the $ 1^{st} $ Respondent is evident from the fact that it was the $ 3^{rd} $ Respondent himself who had appointed the $ 1^{st} $ Respondent as the convening officer by way of the warrant dated 28 July 2020. The $ 3^{rd} $ Respondent's superiority in rank is self-evident from the fact that he had delegated the power and authority to convene the court-martial to the $ 1^{st} $ Respondent. (Enclosure 5, page 191) b) At all material times, the $ 1^{\mathrm{st}} $ Respondent was assigned to the MTU, of which the $ 3^{\mathrm{rd}} $ Respondent himself is in command.

52 As had been submitted in the Appellant's Written Submission at paragraphs 29 to 30, the Appellant had sought to petition the $ 3^{\mathrm{rd}} $ Respondent instead of the $ 1^{\mathrm{st}} $ Respondent due to the concern held towards the $ 1^{\mathrm{st}} $ Respondent's conduct throughout the proceedings as well as the demonstrable prejudice and real bias against the Appellant.

53 We are of the view that when the Appellant had forwarded his Petition to the $ 3^{\mathrm{rd}} $ Respondent, he had rightly done so as the $ 3^{\mathrm{rd}} $ Respondent was a confirming officer by virtue of section 126(1)(a) of the Act and was empowered to review the Petition.

15.54 The convening order states as follows: "Rekod Perbicaraan ini hendaklah dikemukakan kepada Markas Tentera Udara Cawangan Perundangan d/a Pangkalan Udara Sendayan, 71950 BANDAR SRI SENDAYAN. Ditandatangani pada [22] haribulan Okt 20." (Enclosure 5, page 8)

55 The Respondents had submitted that the $ 3^{\mathrm{rd}} $ Respondent should not confirm the Appellant's sentence.

56 In this present instance, we find that the $ 3^{\mathrm{rd}} $ Respondent had in fact never confirmed the findings and sentence of the Court-Martial, thereby rendering this matter a non-issue. However, despite this, had the $ 3^{\mathrm{rd}} $ Respondent opted to confirm the findings and sentence of the Court-Martial, he would have been wholly authorised to do so by virtue of section 126 of the Act.

57 As to the question as to the Appellant may send the Petition to, we are of the view that the generality of section 126 of the Act does not disqualify the $ 3^{\mathrm{rd}} $ Respondent from being Petitioned by the Appellant. Instead, it fully encapsulates the Panglima Tentera Udara as an officer superior in command to the convening officer, which is the $ 1^{\mathrm{st}} $ Respondent.

58 As such, we find the Respondents' contention that the Panglima Tentera Udara 'should not' confirm the Appellant's sentence is untenable.

59 Furthermore, we are of the view that the Respondents' query as to whether the confirmation by the $ 3^{\mathrm{rd}} $ Respondent would undermine his position in Majlis Angkatan Tentera would surely be answered in the negative, as it amounts to nothing more surmise and speculations.

60 This is mainly due to the reason that if such a circumstance were to arise, the $ 3^{\mathrm{rd}} $ Respondent could easily recuse himself from the committee.

61 With respect to paragraph 11 of the Respondents' Additional Submission, we are of the view that this contention that the conduct of confirming the Appellant's sentence notwithstanding the Appellant having submitted a Petition on 7 October 2021 (well before the confirmation and promulgation date) that remains active and unanswered is in itself plainly wrong.

62 By 29 November 2021, when the confirmation was made, this shows that the confirming officer in section 126 of the Act had not done his duty to review the findings and sentence of the Court-Martial.

63 During the submission before us, learned SFC informed the court that the Respondents had informed the Appellant that the Petition had not complied with the necessary provisions as per section 126 of the Act on the basis that the CO of PU Jugra is not the Confirming Officer.

64 We agreed with the learned SFC that the CO of PU Jugra is not the Confirming Officer. However, we find that the Appellant never submitted his Petition to the CO of PU Jugra; rather, the Petition had always been addressed and sent to the $ ^{3 rd} $ Respondent, as can be seen in Enclosure 5, pages 51 and 52.

65 As such, it becomes apparent that in light of the Respondents' submission, we find the Respondents themselves had not properly perused the contents of the accompanying letter to the Petition and had at all times held the mistaken belief that it had been addressed to the CO of PU Jugra. [16] Based on our findings on the above issues, we find that there is no necessity for us to deal with other issues raised by the Appellant. Conclusion [17] Based on the aforesaid circumstances and the reasons stated above, we unanimously allowed the appeal. The decision of the High Court dated 6 February 2024 was hereby set aside. As a consequence, we ordered the case to be remitted for a retrial before a reconstituted Court-Martial. [18] We further ordered that the Respondents to pay costs of RM15,000.00 (as costs here and below) to the Appellant (without allocator). Dated: 23 June 2025 Ahmad Kamal Bin Md Shahid Judge Court of Appeal Counsel appearing: For the Appellant: Mr. Zalil Bin Mohd Mess (together with Mr. Muhamad 'Aizat Adli Bin Zalil and Miss Najihah Binti Zulkifli [Messrs Zalil Mohd & Partners] For the Respondents: Miss Shahidah Nafisah Leman Senior Federal Counsel Attorney General's Chambers.