Judgment

Mohd Saari Yusoff, JCA

(delivering the judgment of the court)

FACTUAL BACKGROUND

1. At all material times the appellant ("ASP Ang") was Assistant Superintendent of Police. In his evidence, SD1, the secretary of first respondent ("PSC") deposed that upon receiving a report from the Secretariat of the Inspector General of Police (Disciplinary Branch), caused summary of facts, report and statement of witnesses to be circulated to members of the first respondent for the purpose of determining whether there was a prima facie case against the appellant. Subsequently, a show cause letter dated June 30, 1993 was sent to ASP Ang, in which it contained four charges. In response to the letter, ASP Ang made a representation to PSC vide his letter dated July 23, 1993.

2. On receipt of ASP Ang's letter, PSC convened a meeting to deliberate over the alleged disciplinary offences committed by ASP Ang. At that meeting, by majority decision, the members decided to dismiss ASP Ang from service. The decision was conveyed to ASP Ang vide letter dated December 30, 1993. Significant to note that no committee of inquiry was set up. Further, it is noted that report and statement of witnesses were not supplied to ASP Ang.

3. With regard to the letter dated December 30, 1993, it merely states that ASP Ang be dismissed from service. There was no separate finding of guilt in respect of each of the four charges.

4. In a suit before High Court Seremban, ASP Ang claims inter alia for the followings:

   1. A declaration that the plaintiffs dismissal from the Police Force is unlawful, unconstitutional, void and of no effect and that the plaintiff is still an Assistant Superintendent of Police in the Royal Malaysian Police Force and entitled to all the salaries, emoluments & benefits due as such Assistant Superintendent of Police;

   2. An enquiry to determine the salaries, emoluments and other benefits due to the plaintiff;

5. The suit was dismissed with cost, hence this appeal.

   ISSUE

6. Issue for determination is whether the proceeding which resulted in the dismissal of ASP Ang was conducted in accordance with natural justice.

   FINDING

7. In his lengthy letter dated July 23, 1993, ASP Ang denied receiving any bribe. In answer to the first and second charge, in his letter, ASP Ang said that he was in possession of statutory declaration of Sanmugam in which Sanmugam denied receiving the money or giving it to ASP Ang. In both the charges ASP Ang was accused of receiving bribes through Sanmugam. Sanmugam was a police personnel who served under ASP Ang in IPD Cawangan Mahkamah.

8. Based on unchallenged evidence of Sanmugam (SP5) in the court below, Sanmugam did not give any money to ASP Ang.

9. With regard to third and fourth charge, it was inter-related with the earlier charges. In the fourth charge, ASP Ang was accused for failing to report about illegal gambling activities in Seremban. In his letter, he denied having any information about gambling activities in Seremban. On the basis that he was not in charge of criminal investigation, he had no access to such information. At all material times, ASP Ang was attached to IPD Cawangan Mahkamah as a prosecuting officer.

10. Under Order 26(4) of the General Orders 1980, it states:

    (4)

    If the officer does not furnish any representation within the specified time, or if he furnishes a representation which fails to exculpate himself to the satisfaction of the Appropriate Disciplinary Authority, it shall then proceed to consider and decide on the dismissal or reduction in rank of the officer.

11. In applying Order 26(4) aforesaid to the facts and circumstances of this case, we are of the view that, by his letter dated July 23, 1993, ASP Ang had given sufficient exculpatory statement to rebut against all the four charges. On the other hand, with regard to the defense case, we find no evidence whatsoever to substantiate the four charges.

12. In judicial review cases as here, the court is concerned with whether procedural fairness had been administered and the court has no jurisdiction to consider the merits of the case (see Hotel Equotarial (M) Sdn Bhd v National Union of Hotel, Bar & Restaurant Workers [1984] 1 MLJ 363. It follows, therefore, that the court is not involved in evaluation of evidences which transpired at the disciplinary proceeding as stated by Abdoolcader J in Mak Sing Kwong v Minister of Home Affairs, Malaysia (No 2) [1975] 2 MLJ 175 at p 178:

    Once it is conceded that there is some evidence to support a finding of fact then the court has no jurisdiction to probe into its relative probative force and sufficiency (Stacker v Minister of Health [1938] 1 K.B 655, Jacob v Attorney-General [1970] 2 MLJ 329).

13. However, what troubles this court is that, from the record, there is no evidence whatsoever to rebut or contradict the exculpatory statement of Ang.

14. The learned trial Judge had misdirected himself when he said in his judgment at p11:

    Having regard to the charges against the plaintiff and his complete denial of the charges the Commission did not err in its discretion not to proceed further by way of an oral hearing.

15. In her submission, in support of her contention that no oral enquiry was necessary, the learned Senior Federal Counsel cited the case of Ghazi Mohd Sawi v Mohd Haniff Omar, Ketua polis Negara, Malaysia [1994] 2 AMR 1257. The facts in that case is distinguishable. In that case, the alleged bribe was paid direct to the officer concerned and not through a third party as here.

16. There is nothing in law which prohibits a disciplinary authority from holding an oral hearing or enquiry. The decision whether to hold an enquiry or not would depend on the circumstances of each case. Under the circumstances of this case, the fact that there is no evidence whatsoever to contradict the exculpatory statement of ASP Ang, holding of an oral hearing or enquiry would, in our view, be justifiable. It follows, therefore, by such omission, it tantamount to failure on the part of PSC to afford ASP Ang a reasonable opportunity of being heard. In this regard, I am fortified by the observation of Jemuri Serjan CJ Borneo (as he then was) when he said in Ghazi, supra at p 1279:

    Similarly, in this case, we have examined the relevant provisions of Ch. D of the 1980 General Orders, and it is beyond dispute that these provisions have been assiduously followed by the respondent, and having regard to all the authorities cited earlier on an oral hearing or inquiry under the circumstances of this case was not justified. (Emphasis added)

    - meaning it is justifiable for oral hearing to be held under certain circumstances (see Raja Abdul Malek Muzaffar Shah Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis [1995] 1 AMR 855.

17. Further, the statement of witnesses and reports, although they were circulated to members of PSC, were not supplied to ASP Ang. That being the case, it becomes all the more necessary for oral hearing to be held. In this regard, I refer to the case of B Surinder Singh Kanda v The Government of the Federation of Malaya [1962] 28 MLJ 169. In that case, unlike this case, the officer concerned (Insp. Kanda) was supplied with a report of the board of inquiry. The question arose whether the hearing by adjudicating officer was vitiated by Insp. Kanda not being given any opportunity of correcting or contradicting the report. In that case, in the judgment of Lord Denning, at p 172, His Lordship said:

    If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn, LC in Board of Education v Rice [1911] AC 179, 182; 27 TLR 378 down to the decision of Their Lordships Board in Ceylon University v Fernanda [1960] 1 WLR 223; [1960] 1 All ER 631, PC. It follows, of course, that the Judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the Judge without his knowing. Instances which were cited to Their Lordships were Re Gregson, Rex v Bodmin Justices [1947] KB 321; [1947] 1 All ER 109 and Goold v Evans [1951] 2 TLR 1189, to which might be added Rex v Architects Registration Tribunal [1945] 2 All ER 131; 61 TLR 445), and many others.

18. In the premise and for reasons given above, we hold that the proceedings which resulted in the dismissal of ASP Ang was not conducted in accordance with natural justice as enshrined under Article 135(2) of the Federal Constitution. In the result, we allow the appeal with cost here and the court below and we make the following orders:

    1. we set aside the order of dismissal against ASP Ang and order that ASP Ang be reinstated in the Police Force;

    2. with regard to prayer 2 of the statement of claim, we remit the case to the court below for assessment by the learned Registrar.

19. My learned brothers Mokhtar Sidin JCA and Alauddin Mohd Sheriff JCA have read this judgment in draft and have expressed their agreement with the same.

Ghazi Mohd Sawi v Mohd Haniff Omar, Ketua Polis Negara, Malaysia [1994] 2 AMR 1257; Hotel Equatorial (M) Sdn Bhd v National Union of Hotel, Bar & Restaurant Workers [1984] 1 MLJ 363; Mak Sing Kwong v Minister of Home Affairs, Malaysia (No 2) [1975] 2 MLJ 175; Raja Abdul Malek Muzaffar Shah Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis [1995] 1 AMR 855; Surinder Singh Kanda, B v The Government of the Federation of Malaya [1962] 28 MLJ 169.

Federal Constitution: Art.135(2)

Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980: GO.26(4)

Aris Rizal C Fernanda, Marnam Raja and Marisa Regina (Aris Rizal Christopher Fernanda & Co) for Appellant

Mary TS Lim and Sazana, Senior Federal Counsels (AG's Chambers) for Respondent

This decision is also reported at [2002] 1 AMR 657