Vishaak A/L Ramesh v Ravinna A/P Raman (WA-25-321-08/2024)

B. ….1ST RESPONDENT

TRIBUNAL BAGI ANTI GANGGUAN SEKSUAL KEMENTERIAN PEMBANGUNAN WANITA, KELUARGA DAN MASYARAKAT …..2nd RESPONDENT GROUNDS OF JUDGMENT INTRODUCTION [1] This is an application by the Applicant for an order of Certiorari to quash Borang 4 (Award Aduan Gangguan Seksual) of 2024 dated 1.8.2024 handed down by the Tribunal Bagi Antigangguan Seksual Kementerian Pembangunan Wanita, Keluarga dan Masyarakat (2nd Respondent) and received by the applicant on 1.8.2024. BRIEF FACTS [2] Award in Borang 4 (Award Aduan Gangguan Seksual) of 2024 dated 1.8.2024 was given by 2nd Respondent and received by the Applicant on 1.8.2024 (refer to Encl 2 ekshibit VR-3) [3] 1st Respondent at the material time was the ex-girlfriend of the Applicant. They had a long-distance relationship from 2018 and sometime in January 2023, 1st Respondent moved to Bangsar. [4] Sometime in October 2023, the relationship between the Applicant and 1st Respondent encountered problems and they both parted ways and had no communication with each other. On 17.1.2024, the Applicant was informed that the nude photographs of the 1st Respondent was uploaded and distributed by unknown persons in the social media websites in Tumbler.com and Telegram. [5] The 1st Respondent was investigated by the police but he was not charged with any criminal offence. There is an ongoing investigation by the police as to who had uploaded the photographs in the social media of Tumbler.com and Telegram. [6] The complaint was referred to the Tribunal for Anti Sexual Harassment Act 2022. The Tribunal heard the case and handed down the award by way of Borang 4 dated 1.8.2024 and made the following orders:

that within 30 days of the award, the Applicant proffer a written statement of apology;

(ii) that the Applicant attend a counselling programme; and

(iii) that the Applicant to pay damages of RM 60,000.00 to the 1st Respondent. The Applicant is now before this Court to review the foregoing award of the 2nd Respondent. [7] The 1st Respondent’s complaint as per encl 2 ekshibit VR-1. The complaint was :

her nude photos were uploaded in the social media

(ii) that it was uploaded by the Applicant;

(iii) that 1st Respondent suffered mental stress; and

(iv) that 1st Respondent claims RM 250,000.00 for losses and damages. [8] The Applicant submits that 1st Respondent did not and/or failed to adduce evidence of the 1st Respondent’s nude photos during the hearing before the 2nd Respondent (Tribunal). The only evidence before the 2nd Respondent is as per encl 8 exhibit VR 6. There were no other photos that were produced before the 2nd Respondent. [9] As for the evidences from the police (encl 2 exhibit VR-1), SP2 and SP5 have confirmed that they have yet to receive the report from the Telco and the telephone number was registered to a Malay guy and the police have yet to receive the forensic report on who had uploaded the nude photos of the 1st Respondent. In short, there was no evidence of nude photos of 1st Respondent and there is no evidence of forensic report that the nude photos were uploaded by 1st Applicant. [10] 1st Respondent had lodged a complaint with the 2nd Respondent i.e the Tribunal that the Applicant has committed sexual harassment against her by posting her nude photos on two social media ie Tumbler and Telegram. After 2 days of trial and both parties had called their respective witnesses and on 1.8.2024, 2nd Respondent delivered a finding that 1st Respondent had succeeded in proving on the balance of probabilities that the Applicant had committed sexual harassment against 1st Respondent and made an award in Borang 4. [11] The 2nd Respondent submits that the Tribunal has the jurisdiction to hear and determine the complaint of sexual harassment filed by the 1st Respondent. Its jurisdiction is provided under Section 7 of the Act. 6 witnesses for the 1st Respondent (inclusive of her) and 3 witnesses for the Applicant (inclusive of Applicant) were called to testify under oath before the Tribunal. The parties were also given the opportunities to submit their complaint and defence before the Tribunal. [12] On the issue contended by the Applicant that the Tribunal had committed serious error of law for its failure to consider all material facts before making the award, 2nd Respondent submits that the Applicant must show that the Tribunal has reached a decision that was so perverse that no reasonable tribunal under a similar circumstance would have reached. The 2nd Respondent submits that the Tribunal has applied the correct burden/standard of proof and had considered relevant and material evidence presented by parties before arriving at its awards. FINDINGS OF THE COURT [13] This is the Applicant’s application for an order of certiorari to quash an award handed down by the 2nd Respondent to the 1st Respondent on 1.8.2024 (hereinafter referred to as the award). This award was given to the 1st Respondent by the 2nd Respondent (hereinafter referred to as the Tribunal) for a sexual harassment complaint lodged by the 1st Respondent against the Applicant for uploading her nude photos on two (2) social media websites i.e. Tumbler.com and Telegram. [14] The Tribunal heard the case and handed down the award by way of Borang 4 (Award Aduan Gangguan Seksual) of 2024 on 1.8.2024 and made the following orders:

that within 30 days of the award, the Applicant profer a written statement of apology;

(ii) that the Applicant attend a counselling programme; and that the Applicant to pay damages of RM 60,000.00 to the 1st Respondent. [15] Order 53 rule 2(4) of the ROC 2012 reads: “Any person who is adversely affected by the decision, action or omission in relation to the exercise of the public duty of function shall be entitled to make the application. ISSUE OF NONPRODUCTION OF NUDE PHOTOS BEFORE THE TRIBUNAL [16] The Applicant submits that the 1st Respondent did not/or failed to adduce evidence that the nude photos of her were before the Tribunal on the day of the hearing. The only evidence before the 2nd Respondent is as per encl 8 exhibit VR 6 pages 28 and 29. No other pictures that was produced before the 2nd Respondent. Therefore, the 1st Respondent has failed to discharge her burden in proving her claim. [16] In reply, 1st Respondent’s submits that on the issue that the evidence of sexual harassment i.e the 1st Respondent’s nude photos were not before the Tribunal is a non-starter. This is not a ground of the Applicant’s Judicial Review application. The Applicant is bound by their pleaded case as per the statement under Order 53 rule3(2) ROC 2012. [17] As for the nude photos, they are exhibits produced before the Tribunal in the 1st Respondent’s complaint dated 25.4.2024 and were adduced before the Tribunal and from the notes of proceedings of the Tribunal it is marked as P1 (see: encl 8 pdf page 8). A coloured copy of the photos is exhibited in the 1st Respondent's affidavit (2) (see: enc 32, exhibit RR-4). It is also clear in the Grounds of Judgment provided by the panel that the 1st Respondent’s nude photos were circulating on social media on 28.1.2024 by her friend, “K” (SP3). SP3 testified that he first saw nude photos of pengadu on 17.1.2024 at around 12 midnight and he called and alerted the Pengadu on this. The Panel mentioned in their grounds of judgment that the photos matched the photos in P1. [18] Since the nude photos of the 1st Respondent mentioned in the Panel’s Ground of Judgment and marked as an exhibit as per the notes of proceeding, the issue of 1st Respondent nude photos not before the Tribunal, the answer is in the negative. The Applicant was given opportunity to cross-examine the 1st Respondent including raising any objection pertaining to the tendering of the said nude photos which he did not do so. [19] The Applicant also submits that the 1st Respondent had failed to prove that the nude photos uploaded in the social media Tumbler.com and Telegram was uploaded by the Applicant. The Applicant further submits that evidence of the police officers derived from the notes of proceedings given by the Tribunal shows that the two police officers (SP2) and (SP5) have confirmed that they have yet to obtain the report from the Telco; the telephone number was registered to a Malay guy and the police is yet to receive the forensic report on who uploaded the nude photos of the 1st Respondent. Therefore, before the Tribunal there was no evidence of who uploaded the nude photos without the forensic report. [20] The Applicant in reply to this issue submits that the panel had considered the following evidence: i. Respondent has confirmed that he, the Pengadu and 6 other friends (including SP3 and SP4) had stayed overnight at the casa Residency Apartment. The Respondent did not cross examine the Pengadu, SP3 or SP4 regarding their testimony of their identification of the photos in P1 as being taken at the Casa Residency Apartment. However, the Respondent is his testimony, disputed that the bathroom depicted in P1 was the bathroom in the Casa Residency Apartment and gave a different description of the bathroom as compared to what was shown in P1 in that he claimed that the colour of the bathroom was dark grey and that there was a door instead of a shower screen but did not cross examine the Pengadu about it. ii. SP3 and SP4 in their testimony when recalled as witnesses (without being aware of the Respondent’s description of the bathroom) have described the bathroom as having white wall tiles and a shower curtain (which description matched the pictures in P1) and the Respondent did not cross examine either of them. iii. The Respondent confirms that he and the Pengadu shared a bedroom which had attached bathroom. The Respondent confirms that during their stay at the Casa Residency Apartment, the Pengadu wore the army camouflage t-shirt she is seen to be wearing in the photos in P1. iv. The Respondent sent voice notes via whatsapp to the Pengadu and her cousin, “S” in the Tamil language on 6 December 2023 where he threatened to embarrass/ humiliate the Pengadu on social media, insinuated or said that he had nude photos of the Pengadu, and that he would release/publish them (P3 -P11). The Respondent also confirmed when questioned by the panel, “Yes, my voice notes were threats that if she did not come back to me, I would circulate the photos. There is no evidence before this Court that the Applicant has been exonerated in the police investigation arising from the Respondent’s report. On the contrary, the 1st Respondent has continuously to follow up with the police regarding her report (see: encl 25 paragraph 14 -15). The fact remains that the Applicant is still under investigation. [21] Thus, it is clear from the extraction of the notes of evidence before the tribunal, the Tribunal had unanimously found the 1st Respondent had proven her complaint of sexual harassment against the applicant on the balance of probabilities. Does the 2nd Respondent decision in awarding the award to the 1st Respondent is tainted with illegality, irrationality, procedural impropriety and disproportionality? [22] In judicial review application, this Court will only intervene if there was error in the tribunal’s decision on the grounds of illegality, irrationality, procedural impropriety and disproportionality. These principles are laid out by the Federal Court in Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1 “[15] We find that there is merit on the submission advanced by learned counsel for the respondent. Historically, judicial review was only concerned with the decision-making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. Rama Chandran is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of ‘illegality’, ‘irrationality’ and possibly ‘proportionality’ which permits the courts to scrutinise the decision not only for the process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds.” [23] As submitted by the 2nd Respondent, The Tribunal for Anti Sexual Harassment was established on 8.3.2024 and being a creature of statute pursuant to Section 3 of the Anti Sexual Harassment Act 2022.The rules and procedures of the Tribunal are governed by Section 9 of the said Act. [24] This court had the privilege to look at the notes of evidence (Encl 8 exhibit VR-6) and the Grounds of Judgment by the Panel (Encl 2 exhibit VR4) and found that the Panel had examined the evidence of the witnesses called by both Pengadu and Respondent as well as exhibits produced in the course of hearing. After considering everything that was tendered, the Panel found that the Pengadu has succeeded in proving on a balance of probabilities that the Respondent has sexually harassed her. [25] This court finds that the Tribunal had considered all the relevant issues and has applied the correct burden/standard of proof on the evidence presented by parties before arriving at its findings and award. The only contentious issue raised by the Applicant regarding the complaint is whether it is him who had uploaded the nude photos of the 1st Respondent and the Tribunal finds that there is no dispute the act complained of occurred i.e the nude photos of the 1st Respondent were posted on two social media sites i.e Tumblr and Telegram which the Applicant denies that he uploaded the photos. 1st Respondent was alerted by SP3 about her nude photos circulating on social media on 18.1.2024. SP3 testified that he first saw the 1st Respondent's nude photos on 12.1.2024 at around 12 midnight. The Panel did acknowledge that there is no direct evidence linking the posts with the Applicant based on the evidence of Insp Fatin Farhaty binti Ismail, who testified that the police are still awaiting a report from the telecommunications company as to the ownership of the telephone number/line that was used to make the post. However, the Panel did consider other evidence that pointed out that the post was done none other than the Applicant. The Panel had considered the evidence that the nude photos were taken in a bathroom in an apartment known as Casa Residency in Kuala Lumpur. [26] Other glaring evidence which the Panel had considered were the Applicant has confirmed that he, 1st Respondent and 6 other friends had stayed overnight at the apartment. The Applicant did not cross examine the testimony of the photos in P1 as being taken at the Casa Residency Apartment. Though the Applicant denied the description of the said bathroom in the photos, he did not cross examine SP3 and SP4 who have described the bathroom that matched the photos on P1. Therefore, the description of the bathroom where the nude photos of the 1st Respondent remained unchallenged as matching the nude photos in P1. [27] The Applicant did confirm certain facts which is crucial to the 1st Respondent’s complaint. These facts were: i. He confirms that he shared a bedroom with the 1st Respondent which had an attached bathroom; ii. He confirms that during their stay at the apartment, 1st Respondent wore the army camouflage t shirt she is seen wearing in the photos in P1; iii. He sent voice notes via whatsapp to the 1st Respondent and her cousin, “S” in Tamil language on 6.12.2023 where he threatened to embarrass/humiliate the 1st Respondent on social media insinuated or said that he had nude photos of the 1st Respondent and he confirms that those were his voice; iv. The 1st Respondent gave evidence that the Applicant had previously circulated a sex tape of his ex-girlfriend on social media in 2018 which the Applicant did not contradict at all. The Applicant confirmed that he had told his ex-girlfriend that he would send those photos to her uncle if she ever left him; v. SP2, the police officer who investigated this matter testified that the Applicant’s mobile phone was seized from him and he was arrested on 19.11.2024 and had 6 nude photos of the 1st Respondent which was taken without her knowledge or consent. However, these photos were not the same as per P1 but the Applicant did not dispute that he had taken these photos; vi. The Applicant admitted that the purpose of he taking the nude photos is to scare the 1st Respondent if she ever chose to leave him and he did threaten to send the photo to her brother and her uncle. All these are in the Notes of Evidence and in the Grounds of Judgment of the Tribunal and there was no procedural error on the findings of the Tribunal that on the balance of probabilities the Applicant had made sexual harassment against the 1st Respondent. The Panel had also made an observation pertaining to the Applicant’s credibility on the issue when he answered questions from the Panel that although he told his mother that he had deleted the nude photos of the 1st Respondent on his phone but in actual fact he did not do so (see: encl 2 ekshibit VR-4). [28] The Applicant was given sufficient opportunities to challenge the 1st Respondent’s version and was allowed at the later stage to submit on any points before the Panel delivered its award (see: encl 2 exhibit VR-4). The Panel had considered all evidence presented before them before deciding on the award appropriate to the 1st Respondent. [29] This court finds that the Panel had not committed any serious irregularity, illegality, any unfairness or procedural impropriety by looking at the notes of evidence and the Grounds of Judgment. The Panel has acted within its jurisdiction to make the award dated 1.8.2024. Is the award awarded by the Tribunal to the 1st Respondent justified and fair? [30] The Tribunal on 1.8.2024 had made the following award which includes the Applicant to: i. issues a statement of apology; ii. pay a compensation of RM 60,000.00 to the 1st Respondent in 12 instalments; and iii. undergo a counselling programme initiated by Yayasan Kebajikan Negara. (see : Encl 2 exhibit VR-3) [31] As submitted by the learned SFC, the award of the Tribunal is final and binding on the parties, like any other decisions issued by quasi judicial bodies and inferior tribunals, its award may be challenged by way of judicial review. Section 23 of the Anti Sexual Harassment Act 2022 provides that the award of the Tribunal may be challenged particularly on the ground of serious irregularity that may affect the award. [32] The sexual harassment claim has been recognized by the Malaysian Courts as the learned SFC submits the decision of the Court of Appeal in Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor [2015] 4 CLJ 295. Acts of sexual harassment were found to be serious and could cause psychological trauma to the victim; this according to the Court of Appeal in Mohd Ridzwan (supra) as a civil breach in nature, thus a valid claim in nature. [33] The claim that was filed by the 1st Respondent against the Applicant at the Tribunal is premised on a civil breach (tort) rather than a criminal offence as contended by the Applicant. Since it is a civil claim in nature, the right standard of proof applied by the Tribunal before making the award is on the balance of probabilities. [34] The Panel in awarding the said award of RM 60,000.00 to the 1st Respondent had stated in writing the reasons behind the said award. The Panel had taken into consideration the evidence adduced by 1st Respondent which was not challenged by the Applicant and the emotional trauma that 1st Respondent had to endure every time she thinks of her circulated nude photos. The Tribunal had also taken into consideration that although 1st Respondent did not seek formal psychiatric or other psychological support or assessment, she sought the support of SP6 who was a psychologist and a licensed counsellor; and they met regularly. Due to this the Panel awarded RM 60,000.00 and not the amount as in the Ridzwan Abdul Razak case (supra) since there was no independent professional medical report before awarding the damages. [35] The nude photos of the 1st Respondent that was circulated in the social media due to the doings of the Applicant is far worse than if only sexual harassment via words were used. She had suffered mental stress that had affected her livelihood; though the Telegram group where the said photos were circulated has 100 members, the actual number who had viewed the said photos was not known and the Panel finds that there is no proof or assurance that the post has been taken down. [36] In conclusion, this court finds that the Tribunal had acted within its jurisdiction in granting the said award and found that the 1st Respondent had proven her claim of sexual harassment against the Applicant on the balance of probabilities, The Tribunal’s award was made in accordance with the Anti Sexual Harassment Act 2022 and there is no serious irregularity, illegality or procedural impropriety or any unfairness tainting the proceedings or the award. Solicitors for the Applicant: Mohan Kumar Sakaraipani Messrs. Mohan Kumar Solicitors for the 1st Respondent: Kee Hui Yee (Asma Badrul Azmi with her) Messrs. Kanesalingam & Co. Solicitors for the 2nd Respondent: Nurshuhaida Zainal Azhar (Muhammad Hafiz Musa with her) Senior Federal Counsel & Federal Counsel Attorney General’s Chambers