Syed Alwee Bin Syed Mansor v 1. Panglima Tentera Laut Diraja Malaysia (Permohonan Semakan Kehakiman No. WA-25-107-04/2017)

Panglima Tentera Laut Diraja Malaysia 2. Kerajaan Malaysia … Responden-Responden 2 Grounds of Decision Azizah Nawawi, J: Application [1] This is the applicant‟s substantive application for judicial review proceedings seeking the following prayers:

An order of certiorari to quash the respondents‟ decision in terminating the applicant‟s service effective 23.12.2016 which was communicated to the applicant through the 1st respondent‟s letter dated 18.1.2017;

(ii) An order of mandamus that the applicant is to be reinstated as a member of Tentera Laut Diraja Malaysia (“TLDM”) with the same post immediately;

(iii) A declaration that the applicant is, at all material times and still a soldier serviceman holding a position of PW1 TLS in TLDM‟s service until the last date of his service which was on 14.8.2017;

(iv) A full account to be taken by the Deputy Registrar pertaining to the applicant‟s entitlement to all salary, allowances and pension benefits and/or retirement and/or other benefits that should be received by the applicant if he was not terminated from the service and that the said amount to be paid to the 3 applicant forthwith until the last date of his service which was on 14.8.2017; and

General, aggravated and/or exemplary damages. [2] The grounds of the application are:

that the applicant was terminated from the TLDM‟s service based on the alleged misconduct committed by the applicant in which the applicant was later convicted on 23.12.2016. Nevertheless, there was no record to show that the applicant had committed or put on trial or convicted for any misconduct on 23.12.2016.

(ii) that the charges framed against the applicant were defective, unclear and uncertain as they failed to specify the details of the alleged misconduct. Therefore, the applicant‟s guilty plea to those charges which resulted in the applicant‟s termination under Peraturan 61(1)(j) Peraturan-Peraturan Angkatan Tentera (Terma-Terma Perkhidmatan Bagi Angkatan Tetap) 2013 (the “2013 Regulations”) was invalid.

(iii) that the 1st respondent‟s action in approving the applicant‟s termination based on the grounds specified under regulation 61(1)(j) of the 2013 Regulations was a jurisdictional error since the first application under the same Rule was not approved by the former 1st respondent. 4

(iv) that the applicant has become a victim of double jeopardy due to the reason that the former 1st respondent had rejected the applicant‟s termination under Peraturan 61(1)(j) of the 2013 Regulations.

that the official notice of termination of service was never communicated nor served on the applicant. This had created confusion to the applicant and caused the applicant‟s rights to appeal against the said decision has been denied. [3] Having considered the application and the submission of the parties, this Court had dismissed the application with costs. The Salient Facts [4] The applicant commenced his employment with TLDM on 15.8.1996 and was supposed to retire on 14.8.2017. The applicant‟s last post was in Pasukan Bantuan Gugusan Semarang Peninjau (“PBGSP”) which was based at Teluk Sepanggar, Kota Kinabalu, Sabah. [5] On 6.6.2014, the applicant was involved in a road accident and was brought to Karamunsing Police Station, Kota Kinabalu. He was then referred to the Military Police and was then brought to Pejabat Cawangan Siasatan Khas PROVOS KOTA KINABALU Pangkalan TLDM Kota Kinabalu, Teluk Sepanggar 88846 KOTA KINABALU Sabah. On 7.6.2014, a urine specimen was taken from the 5 applicant, which was sent to the Chemist Department, Sabah on 9.6.2014 for analysis. [6] The Chemist Report issued under section 399 of the Criminal Procedure Code confirmed that the applicant‟s urine specimen is positive for Dextromethorphan and Dexthorphan. [7] On 24.10.2014, the applicant was charged with two charges of misconduct. The charges read as follows: “PERTUDUHAN PERTAMA TIDAK MEMATUHI PERINTAH-PERINTAH TETAP YANG BERTENTANGAN DENGAN SEKSYEN 51(1) AKTA ANGKATAN TENTERA 1972 Iaitu ia di Pejabat Cawangan Siasatan Khas PROVOS KOTA KINABALU Pangkalan TLDM Kota Kinabalu, Teluk Sepanggar 88846 KOTA KINABALU Sabah, pada 07 Jun 2014 lebih kurang 0830, telah tidak mematuhi Perintah-Perintah Tetap bertentangan dengan Seksyen 51(1) Akta Angkatan Tentera 1972 melibatkan diri dengan bahan terlarang iaitu

Tetap Pasukan Gugusan Semarang Peninjau BAB p Para 911 (6) yang mana diketahui atau yang sepatutnya ia patut mengetahui telah mengakibatkan air kencingnya positif Dextromethorphan tanpa justifikasi yang sah setelah disahkan oleh Jabatan Kimia Negeri Sabah Malaysia. 6 PERTUDUHAN KEDUA TIDAK MEMATUHI PERINTAH-PERINTAH TETAP YANG BERTENTANGAN DENGAN SEKSYEN 51(1) AKTA ANGKATAN TENTERA 1972 Iaitu ia di Pejabat Cawangan Siasatan Khas PROVOS KOTA KINABALU Pangkalan TLDM Kota Kinabalu, Teluk Sepanggar 88846 KOTA KINABALU Sabah, pada 07 Jun 2014 lebih kurang 0830, telah tidak mematuhi Perintah-Perintah Tetap bertentangan dengan Seksyen 51(1) Akta Angkatan Tentera 1972 melibatkan diri dengan bahan terlarang iaitu Perintah Tetap Pasukan Gugusan Semarang Peninjau BAB 9 Para 911 (6) yang mana diketahui atau yang sepatutnya ia patut mengetahui telah mengakibatkan air kencingnya positif Dexthorphan tanpa justifikasi yang sah setelah disahkan oleh Jabatan Kimia Negeri Sabah Malaysia.” (the “2014 Charges”) [8] During the hearing on 6.2.2015, the applicant pleaded guilty to both charges and was convicted and sentenced with a fine of 14 days‟ salary amounting to RM2,335.07 as well as a reprimand (the “2015 Conviction and Sentence”) [9] Subsequently, on or around February 2015, “Pegawai Memerintah” at that particular time, Lt. Kdr. Mohd Dahroni bin Abd Kadir (the 1st Pegawai Memerintah) submitted an application for the termination of the applicant‟s service (the 1st Application) pursuant to 7 Peraturan 61(1)(j) of the 2013 Regulations. However, on or around May 2015, the said 1st Application was not approved by the former 1st respondent i.e. Tan Sri Abdul Aziz Bin Haji Jaafar. [10] Via a letter dated 15.11.2016, the Pegawai Memerintah, Kdr. TLDM Mohamad Nor bin Othman (the 2nd Pegawai Memerintah) once again made an application for the applicant to be terminated under regulation 61(1)(j) of the 2013 Regulations (the 2nd Application). The said 2nd Application was subsequently approved by the 1st respondent on 23.12.2016. [11] Thereafter, in January 2017, based on a letter of “Arahan Dokumentasi Tamat Perkhidmatan” dated 18.1.2017, the applicant was informed that his service has been terminated on 23.12.2016 on the grounds of misconduct in which he was convicted. The said „Arahan‟, inter alia reads: “1. Dengan hormatnya dimaklumkan bahawa anggota tersebut di atas akan menamatkan perkhidmatan di bawah Peraturan 61(1)(j), Rujuk A iaitu “salah laku yang diadakan oleh askar-laskar itu dan dia telah disabitkan‟ pada 23 Dis 2016.” [12] Hence, the applicant filed this judicial review action to challenge the said decision. 8 The Findings of the Court [13] In Booi Kim Lee v YB Menteri Sumber Manusia & Another [1999] 4 CLJ 121, Justice KC Vohrah adopted Lord Diplock‟s classification of grounds of judicial review in the House of Lords case of Council of Civil Service Unions V. Minister for the Civil Service [1985] AC 374. The three (3) grounds described by Lord Diplock are:

illegality;

(ii) irrationality; and

(iii) procedural impropriety. [14] By illegality as a ground for judicial review, it means “that the decision-maker must correctly understand the law that regulates his decision-making power and must give effect to it‟ and that “… the authority concerned has been guilty of an error of law in its action as for example, purporting to exercise a power which in law it does not possess.” [15] By irrationality it means „Wednesbury unreasonableness‟ and “applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided upon could have arrived at it”. 9 [16] By procedural impropriety, it includes „failure by an administrative tribunal to observe procedural rules that are expressly laid out..” and “duty to act fairly”. [17] In the present application, the applicant‟s grounds to impugn the decision of the respondents are primarily premised on the issue of illegality:

that the termination was based on an alleged conviction on 23.12.2016, but there was no record to show that the applicant had committed or put on trial or convicted for any misconducts on 23.12.2016;

(ii) that the charges framed against the applicant on 24.10.2014 were defective, unclear and uncertain as they failed to specify the details of the alleged misconducts;

(iii) that the 1st respondent‟s action in approving the applicant‟s termination based on the grounds specified under regulation 61(1)(j) of the 2013 Regulations was a jurisdictional error since the first application under the same Rule was not approved by the former 1st respondent;

(iv) that the applicant has become a victim of double jeopardy due to the reason that the former 1st respondent has rejected the applicant‟s termination under regulation 61(1)(j) of the 2013 Regulations; and 10

that the official notice of termination of service was never communicated nor served on the applicant. This had created confusion to the applicant and caused the applicant‟s rights to appeal against the said decision has been denied. Issue (i) [18] On this issue, the applicant takes the position that the termination was bad in law as the termination was based on an alleged conviction on 23.12.2016, but there was no record to show that the applicant had committed or put on trial or convicted for any misconduct on 23.12.2016. This is based on the „Arahan‟, which, inter alia reads: “1. Dengan hormatnya dimaklumkan bahawa anggota tersebut di atas akan menamatkan perkhidmatan di bawah Peraturan 61(1)(j), Rujuk A iaitu „salah laku yang diadakan oleh askar-laskar itu dan dia telah disabitkan‟ pada 23 Dis 2016.” [19] With regards to the above allegation, the applicant states as follows in his affidavit to support the application affirmed on 13.4.2017: “8. Saya sesungguhnya menyatakan bahawa pada bulan Januari 2017, saya telah dimaklumkan secara lisan oleh Ketua Kerani, seorang BK PNK 5500977 11 Afiba binti Mat Nahar bahawa perkhidmatan Pemohon di dalam TLDM telah ditamatkan atas alasan “salah laku yang dilakukan oleh askar-laskar itu dan dia telah disabitkan pada 23 Dis 2016” (selepas ini dirujuk” tarikh permohonan tamat perkhidmatan diluluskan”). Pemakluman secara lisan ini dibuat berpandukan kepada surat “Arahan Dokumentasi Tamat Perkhidmatan” bertarikh 18.01.2017 (selepas ini dirujuk sebagai “Arahan Dokumentasi tersebut”).” [20] In response to the applicant‟s assertion as above, the 1st respondent, in his affidavit affirmed on 5.7.2017 stated as follows: “8. Pernyataan di perenggan 8 Afidavit Pemohon adalah diakui setakat bahawa pemberhentian perkhidmatan Pemohon telah diluluskan oleh saya pada 23.12.2016 dan perenggan 1 surat di eksibit SA-1 mesti dibaca secara keseluruhan yang memberi maksud penamatan perkhidmatan Pemohon yang telah diluluskan oleh saya pada 23.12.2016 dan bukan sabitan pada 23.12.2016.” [21] Having considered the affidavits before me, I accepted the explanation of the 1st respondent that he had approved the termination of the applicant on 23.12.2016 and that the said date is not a reference to a conviction on 23.12.2016. This can be seen 12 from exhibit “SA – 21” annexed to the applicant‟s affidavit, which is the „PERMOHONAN PEMBERHENTIAN ASKAR LASKER” and in the column “TANDATANGAN PEGAWAI PEMBERHENTIAN” is the signature of the 1st Respondent which was signed on 23.12.2016. Issue (ii) [22] The 2nd issue raised by the applicant is that the charges framed against the applicant on 24.10.2014 were defective, unclear and uncertain as they failed to specify the details of the alleged misconducts. [23] However, I agree with the respondents that the applicant had never challenged the charges and the conviction entered against him on 6.2.2015, after his plea of guilty. Subsequently, the applicant was sentenced with a fine of 14 days‟ salary amounting to RM2,335.07 and a reprimand. [24] The applicant did not apply for a review of the 2015 Conviction and Sentence under section 130 of the Armed Forces Act 1972, which provides as follows:

“Review of summary findings and awards

Where a charge has been dealt with summarily otherwise than by the dismissal thereof, 13 the authority hereinafter mentioned may at any time review the finding or the award.

The said authority is –

the Armed Forces Council; or

any officer superior in command to the officer who dealt summarily with the charge.

Where, on a review under this section, it appears to the said authority expedient so to do by reason of any mistake of law in the proceedings on the summary dealing with the charge or of anything occurring in those proceedings which in the opinion of the authority involved substantial justice to the accused, the said authority may quash the finding.” [25] Added to that, the applicant did not apply to quash or challenge the said Conviction and Sentence in the courts. Therefore, since the 2015 Conviction and Sentence have not been quashed or reversed on appeal, the said Conviction and Sentence cannot now be challenged in these proceedings. [26] In Gabongan Kesatuan Pekerja-Pekerja Dalam Perkhidmatan-Perkhidmatan Kerani dan Bersekutu Kerajaan & Anor v Ketua Pengarah Perkhidmatan Awam & Anor [1997] 1 LNS 251, the applicants have applied to the court for an order of mandamus, directing the respondent to implement the decision of the Public 14 Service Tribunal (“Tribunal”). The respondents have objected to the application on the basis that the decision of the Tribunal is null and void as the Tribunal had acted in excess of jurisdiction. The objection of the respondents was dismissed as they failed to challenge the decision of the Tribunal in the first place. The court held as follows: “As such, it is not open to the Respondents now to argue that the matter is not in fact an anomaly especially since they did not at any time after the Tribunal's decision and prior to this case dispute the same. The decision of the Tribunal is final, conclusive and binding on all the parties to the anomaly and its decision cannot be challenged, appealed against, reviewed, quashed or called in question in any Court: Section 15(1). Notwithstanding the ouster clause however, the High Court would invariably interfere with the decision if the decision is not according to law for example, when error of jurisdiction or error of law was committed by an inferior tribunal in its award (see Anisminic Ltd. v. Foreign Compensation Commission

2 AC. 147. H.L; Selangor Omnibus Co. Ltd. v. Transport Workers' Union (1967) 1,MLJ. 280; Kannan v. Menteri Buruh dan Tenaga Rakyat (1974) 1 MLJ.90). The Public Service Tribunal is an inferior tribunal which is subject to judicial supervision. 15 But, in this case, the Respondents did not at any time make an application for Order of Certiorari under 0.53 of the Rules of the High Court 1980 to quash the decision of the Tribunal. The ouster clause may not operate to preclude the remedy of Certiorari provided the Respondents had within 6 weeks of the decision taken steps to quash the decision. This they failed to do. To say that the Respondents are not bound by section 15 of the Act because the Tribunal had acted without or in excess of jurisdiction would be to make a mockery of the law. It is not open to any body or person to refuse to abide by a decision of the Tribunal legally constituted simply because that body or person is of the view that the decision is wrong. The opinion is irrelevant and of no consequence. The law must prevail. The law has provided for remedies in such an instance and until and unless the body or person concerned avails himself of the remedy, the decision remains a valid and binding one. For the Respondents to state that they had not taken any steps to quash the Tribunals decision because the decision was invalid and therefore they were not bound to implement it, in my view, is contemptuous and indeed an abuse of the law and the Act. The Tribunal is created with the duty to ensure that any anomalies which arise from the implementation of the recommendations of the CCR are resolved. Parliament in its wisdom passed the Act, 16 which binds the Respondents (section 15(1)). The Respondents must respect and adhere to the decision of the Tribunal.” (emphasis added) Issue (iii) [27] On this issue, it is the applicant‟s case that on or around February 2015, the 1st Pegawai Memerintah had submitted an application for the termination of the applicant‟s service pursuant to Peraturan 61(1)(j) of the 2013 Regulations. However, on or around May 2015, the said 1st application was not approved by the former 1st respondent i.e. Tan Sri Abdul Aziz Bin Haji Jaafar. [28] However, via a letter dated 15.11.2016, the 2nd Pegawai Memerintah had once again made an application for the applicant to be terminated under regulation 61(1)(j) of the 2013 Regulations and the said 2nd application was subsequently approved by the 1st respondent on 23.12.2016. [29] Therefore, the applicant takes the position that the 1st respondent‟s action in approving the applicant‟s termination based on the grounds specified under regulation 61(1)(j) of the 2013 Regulations was a jurisdictional error since the first application under the same Rule was not approved by the former 1st respondent. 17 [30] The applicant is challenging his discharge from service, which was approved by the 1st respondent, to take effect from 23.12.2016. The discharge from service was made pursuant to regulation 61 (1)(j) of the 2013 Regulations, which reads: “Discharged from service 61.

The competent authority may, at any time, discharge any serviceman from the service of the regular forces on the following grounds: ……

misconduct committed by the serviceman and he has been convicted;” [31] From the plain reading of regulation 61(1) of the 2013 Regulations, it is clear that the competent authority may, at any time discharge any serviceman. Therefore, it is within the discretion of the respondent to discharge a serviceman, at any time. Therefore, there is no time frame imposed with regards to the discretion of the respondent to discharge any serviceman. Issue (iv) [32] The next issue is whether the applicant has become a victim of double jeopardy due to the reason that the former 1st respondent has rejected the applicant‟s termination under regulation 61(1)(j) of the 2013 Regulations. 18 [33] The applicant relied on the case of Palautah Sinnappayan & Anor v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2009] 3 MLRA 307, where the Federal Court held as follows: “[12] … It is the appellants‟ contention that since the appellants had been acquitted and discharged from the charge, the detention orders later issued against them are therefore invalid. Article 7(2) of the Federal Constitution lays down the principle that a person shall not be placed in “double jeopardy” and be punished twice for the same offence. In the present case, it is the contention of the appellant that they have been punished twice for the same offence.” [34] The protection against double jeopardy in this country is provided by Art. 7 clause 2 of the Federal Constitution, which reads; “7.

…

A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to which he was acquitted or convicted”. [35] In PP v Teh Cheng Poh [1978] 1 MLJ 68, Arulanandom J held that a person cannot be said to be in double jeopardy unless he has been convicted or acquitted for the same offence before. 19 [36] On the same issue of double jeopardy, Justice Suriyadi made the following finding in Lye Pong Fong v PP [1998] 6 MLJ 304 at page 309: “ … if a detention order is not a conviction, then surely a restrictive residence order will never qualify. If no conviction has been recorded, then it follows that the issue of double jeopardy does not arise at all….Even if the subject‟s liberties are curtailed, by reason of the fact that the normal criminal and preventive laws are complimentary to each other, the concept of double jeopardy as provided by law are inapplicable here.” [37] In fact in the case relied by the applicant, in Palautah Sinnappayan (supra), the Federal Court made the following finding: “[14] With respect, we could not agree with the contention of the appellants that the doctrine autrefois acquit applies to the appellant‟s case. We are of the view that the scope and extent of protection enshrined under art. 7(2) of the Federal Constitution only applies to criminal offence wherein a person who has been acquitted or convicted of an offence by the court shall not be tried again for the same offence.” 20 [38] Therefore, the principle of double jeopardy only applies in criminal conviction, whereby a person who has been acquitted or convicted of an offence by the court shall not be tried again for the same offence. In the present case, the applicant is not being tried on the same charges as in the 2014 charges but challenging his termination from the TLDM. Issue (v) [39] The last pleaded issue is that the official notice of termination of service was never communicated nor served on the applicant. There is no submission on this but on the facts, it is not in dispute that the applicant was informed orally on this as can be seen from paragraph 5.4 of the affidavit affirmed by Mohamad Nor bin Othman on 7.7.2017: “5.4 Saya seterusnya mengarahkan anggota untuk memaklumkan Pemohon mengenai pemberhentian Pemohon dan menguruskan proses pemberhentian Pemohon sebagaimana isi kandungan surat yang telah dirujuk oleh Pemohon do eksibit SA – 1A fidavit Pemohon. Saya kemudiannya memanggil Pemohon di pejabat saya dan memaklumkan semula tentang pemberhentian perkhidmatan Pemohon kepada Pemohon dan meminta Pemohon meneruskan dengan proses 21 perolehan kad pengenalan dan sebagainya.” (emphasis added) Conclusion [40] In the present case, regulation 61(1)(j) empowered the respondents to discharge the applicant at any time premised on a „misconduct committed by the serviceman and he has been convicted‟. Since there was a misconduct resulting in the 2015 Conviction and Sentence against the applicant, there is a legal basis for the respondents to make the discharge order against the applicant. [41] In Abdul Salam Husin v. Majlis Angkatan Tentera & Anor [2011] 2 CLJ 1, the Federal Court said as follows: “[19] One other more pertinent reason is the necessity to maintain discipline within the armed forces which is absolutely vital if the military is to be functional and efficient. Any compromise to this would affect the discipline and threaten the chain of command necessary to effectively defend the nation.” (emphasis added) [42] In the present case, the applicant had pleaded guilty and was convicted for the charges of „Tidak Mematuhi Perintah-Perintah Tetap Yang Bertentangan Dengan Seksyen 51(1) Akta Angkatan Tentera 1972‟ when the applicant‟s urine test was found positive of 22 Dextromethorphan and Dextorphan. Therefore, I am of the considered opinion that if the military is to be functional and efficient, it cannot afford to have members whose urine are found positive of drugs abuse. [43] Premised on the reasons enumerated above, I am of the considered opinion that there is no merit in the application and the same is dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 19 April 2018 For the applicant : Khadzar Yusof / Sharifah Nor Azizah Bt Syed Abdul Rahman Messrs Sharifah Azizah & Co. Sepang, Selangor Darul Ehsan. For the Respondents : Puan Muzila Mohamed Arsad (SFC) / Puan Noor Fadila Ishak (SFC) Jabatan Peguam Negara Puterajaya. Cases referred:

Booi Kim Lee v YB Menteri Sumber Manusia & Another [1999] 4 CLJ

23

Gabongan Kesatuan Pekerja-Pekerja Dalam Perkhidmatan-Perkhidmatan Kerani dan Bersekutu Kerajaan & Anor v Ketua Pengarah Perkhidmatan Awam & Anor [1997] 1 LNS 251.

Palautah Sinnappayan & Anor v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2009] 3 MLRA 307.

PP v Teh Cheng Poh [1978] 1 MLJ 68.

Lye Pong Fong v PP [1998] 6 MLJ 304.

Abdul Salam Husin v. Majlis Angkatan Tentera & Anor [2011] 2 CLJ

1.