Zakaria Abdul Rahman

- vs -

The Inspector General of Police

Arifin Zakaria, J

1. The plaintiff prior to his dismissal was a police officer with the rank of chief inspector. On May 4, 1993 he was dismissed from the police force as a result of disciplinary action taken against him. The plaintiff is dissatisfied with the said disciplinary action and hence this action. The plaintiff is seeking the following reliefs namely -

   1. a declaration that his dismissal is invalid;

   2. a declaration that, the plaintiff as a police officer of the Islamic faith, could not lawfully be dismissed from the police force on the ground that he had entered into a polygamous marriage;

   3. a court order that the plaintiff be reinstated to his original position and be paid all the salaries and emoluments that he is entitled to;

   4. costs;

   5. further and other reliefs as the court deems fit and proper.

2. At the commencement of the trial the parties agreed that the matter be decided based on the agreed facts submitted to the court. According to the agreed facts, on June 1, 1991 the plaintiff wrote to the first defendant seeking permission to marry one Cik Puziah Ariffin as his second wife. The first defendant rejected the said application and by letter dated August 17, 1991 the plaintiff was strongly advised to terminate his relation with Cik Puziah. In paragraph 3 of the said letter a warning was sounded that, in the event the plaintiff failed to do so, disciplinary action will be taken against him. Apparently the plaintiff ignored the warning. Thus, disciplinary action was taken against the him ("the first proceedings") on the following charge [translation][a]—

   That you ... are in breach of order by not terminating your intimate relationship with Cik Puziah Ariffin as instructed in the letter from the Headquarter ... dated 5/4/1991 ... and therefore you have committed a disciplinary wrong under General Order 4(2)(i) ...

3. The plaintiff was found guilty as charged. He was fined to three days salary and was also reprimanded. The plaintiff accepted the decision of the disciplinary authority and the punishment imposed on him.

4. The relationship between the plaintiff and Cik Puziah however did not end there, as the plaintiff, despite failing to obtain the necessary permission from the first defendant, proceeded to marry Cik Puziah on September 3, 1991.This led to further disciplinary action being taken against him. This time the plaintiff was charged with two breaches of discipline. The charges were as follows [translation][a]—

   First Ground That you .... maintained a secret relationship with Puziah Ariffin who is not your wife during the period between March 88 to September 91 until it caused the breakdown of her marriage ... and your conduct had brought disrespect to the public service and therefore you have committed a disciplinary wrong under General Order 4(2)(d) ... Second Ground That you ... are in breach of order by engaging in a polygamous marriage with Puan Puziah Ariffin on 3 September 91 ... without the prior consent of the Honourable Inspector General of Police as required ... and therefore you have committed a disciplinary wrong under General Order 4(2)(i) ...

5. The plaintiff was found guilty of both charges and was accordingly dismissed from the police with effect from May 4, 1993. The plaintiff is dissatisfied with the decision of the first defendant on several grounds and I shall consider each of these grounds in the order they were raised before me.

   1. DOUBLE JEOPARDY

6. The learned counsel for the plaintiff submitted that the second disciplinary action against the plaintiff was based on the same facts in respect of which the plaintiff had already been charged, found guilty and punished. He contended that by charging the plaintiff the second time the first defendant had acted contrary to Article 7(2) of the Federal Constitution which seeks to protect any person from being placed in "double jeopardy" and be punished twice for the same offence. For ease of reference the said Article is set out below:-

   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 that by which he was acquitted or convicted.

7. The learned Senior Federal Counsel who appeared for both the defendants contended that Article 7(2) by its wording is only applicable to criminal offences and not to disciplinary matters as in the present case. He based his contention on the simple ground that the said Article clearly speaks of "A person who has been acquitted or convicted of an offence ...". He argued that the plaintiff here has never been charge with any criminal offence be it under the Penal Code or under any other written law. In support of his contention he cited the case of Mohamed Yusoff Samadi v Attorney General [1975] 1 MLJ 1. In that case the plaintiff, who was a school teacher, had been charged on five charges of using criminal force to four girls in his class to outrage their modesty. He was acquitted on those charges. Subsequently, the Public Service Commission instituted disciplinary proceedings against the plaintiff with a view to his dismissal. The plaintiff was charged with five charges that he abused his position as teacher by outraging the modesty of the same four pupils. He applied for a declaration that Reg 11 of the Public Service (Disciplinary Proceeding) Regulations 1970 is ultra vires Article 7(2) of the Federal Constitution, as it applies to Singapore, and that the determination in the Magistrate's Court was a conclusive acquittal and discharge of the plaintiff which constituted issue estoppel or res judicata, thus making it improper for the Public Service Commission to proceed on the same charges. There it was held that no principle of law precludes a man who has been acquitted or convicted upon a set of facts alleged to constitute an offence being subsequently subjected upon the same facts to disciplinary action by a domestic tribunal.

8. The learned counsel also referred the court to the English case of R v Hogan & R v Tompkins [1960] 2 QB 513. In that case two prisoners serving sentences of preventive detention planned with another man to escape from prison. In order to escape, wire under a sky light had to be cut. The wire was cut and the three men got out through the skylight and escaped. The two prisoners having been recaptured, the Governor of the prison reported them for an offence against discipline under Rule 42(13) of the Prison Rules 1949, to the visiting committee of justices, and pursuant to Rule 44 the visiting committee determined upon the report and made a number of awards forfeiting privileges against the men. Both men were later tried and convicted on an indictment charging them, inter alia, with prison breach. On appeal against the convictions for that offence on the ground that, having already been dealt with by the visiting committee for simple escape, they could not subsequently be charged with prison breach since it was a charge of the same offence of escape in an aggravated form. In that case it was held that the principle that a man who had been convicted of an offence could not subsequently be charged with the same offence in an aggravated form in relation to the same facts was confined to courts of competent jurisdiction, and that, as the visiting committee had not convicted the prisoners of the common law offence of simple escape, but, as a matter of internal discipline, had found them guilty of an offence against discipline, there was nothing which precluded the subsequent charge of common law escape in the aggravated form of prison breach. The fact that the prisoners had already been convicted and had forfeited privileges for a breach of discipline was a matter for the trial Judge to take into consideration when passing sentence, and there was no ground for interfering with the convictions.

9. Lord Parker CJ at p 518 made the following observation:-

   The court, however, feels that the principle in Reg v Miles is meant to apply and can only apply to the decisions of courts of competent jurisdiction. Though not strictly a case of autrefois convict, it is very much on those lines. It so happens that the offence created under the Prison Rules 1949, an offence against discipline, is in fact the same as the common law offence of escape, but the visiting committee dealt with the matter as an offence against discipline under the Prison Rules. They have not dealt with the common law offence of simple escape. It follows, therefore, in our judgment that, strictly, Hilbery J need not have struck out the first count as to simple escape, though clearly it was the sensible thing to do, because if convicted of simple escape alone the Judge, in deciding upon the sentence, would have to take into consideration what had already happened as a matter of prison discipline. It is quite another matter to say that a prisoner, having been found guilty of a breach against discipline, cannot then be charged with the common law offence of simple escape in its aggravated form as a prison breach. It seems to us that he clearly can, just as the visiting committee could have dealt with the breach against discipline if that had come before them after the prisoners had been convicted at assizes. The truth of the matter is that the visiting committee are dealing with matters of internal discipline with which his court is in no way concerned.

10. I pause here to say that I agree entirely with the submission of learned counsel for the defendants that Article 7(2) has no application to disciplinary matter. This is clear from the wordings of the said Article. However, I must say that I do not see how the authorities cited by the learned counsel could support the defendants' case. My understanding of these authorities is that criminal action can be taken against any person based on the same facts in respect of which he had been proceeded with earlier under a disciplinary action and vice versa. In the case before us the situation is some what different. Here the question is, whether disciplinary action can be taken against any one for the second time based on the same facts after he had been convicted or acquitted in the earlier disciplinary proceedings. The plaintiff's counsel said you are barred from doing so. He grounded his argument on the common law principle of autrefois convict or acquit. He said the said principle is not only applicable to criminal matter but also to disciplinary matter.

11. He referred me to the Singapore case of Harry Lee Wee v Law Society of Singapore [1985] 1 MLJ 1. There it was held by the Privy Council that the doctrine of autrefois convict and acquit is applicable to disciplinary proceedings under a statutory code by which a profession is governed. To better appreciate the issues involved in that case, I set out below the facts of the case as found in the head note:

    In this case the appellant was an advocate and solicitor practicing under the name of Braddell Brother, of which firm he was the sole proprietor. In February 1976 he found that a legal assistant in his employment called Santhiran had misappropriated monies from his firm's clients' account amounting to just short of $300,000. When he discovered the defalcations, the appellant did not make any report to the Law Society or to the police. Santhiran continued in the employment of the appellant and made restitution of substantially the whole of the sums he had taken. It was only later that the appellant reported to the Law Society and the police. The first disciplinary proceedings against the appellant were commenced by the inquiry committee in 1978 and subsequently the council of the Law Society having received the findings of the inquiry committee applied to the Chief Justice for the appointment of a disciplinary committee to investigate the appellant's failure to report the criminal breach of trust committed by Santhiran to the Law Society earlier. Meanwhile the appellant was charged and convicted of offences under s 213 of the Penal Code of accepting restitution of property to himself in consideration of concealing an offence. The inquiry committee commenced the second disciplinary proceedings based on the conviction. The appellant applied to have the inquiry adjourned pending his appeal against the conviction but this was refused. The disciplinary proceedings on the first charge were heard in the High Court on March 16, 1981 and the appellant was suspended for two years. The appellant's appeal against conviction was dismissed. With the coming into force of the Legal Profession Act, a new inquiry committee was appointed to inquire into the second charge and eventually the proceedings were heard by the High Court on February 21 and 22, 1983. An order was made that the appellant be suspended from practice for two years (see [1984] 1 MLJ 331). The appellant appealed against this order.

12. The Privy Council stated that the principles laid down in Connelly v DPP [1964] AC 1254 are apt to apply to the circumstances in that case and enable the appellant to rely on the order made against him in the first proceedings as a complete bar to further disciplinary action against him in the second proceedings. It also held that even if the facts cannot be brought within the strict test laid down in Connelly v DPP the second proceedings in that case brought by the Law Society against the appellant following the first proceedings were an abuse of the disciplinary process. At p 2 Lord Bridge of Harwich in delivering the judgment of the board said:-

    The essence of the appellant's attack on the second order can be shortly stated. Both sets of disciplinary proceedings arose from exactly the same conduct by the appellant and although it was possible to attach a different label in each case to the particular form of professional misbehaviour alleged, the gravamen of the complaint against him in each case was either identical or so nearly so as to entitle him either to rely on the principle of autrefois convict or on the closely analogous principle, applicable alike to criminal and civil litigation, that the unnecessary duplication of proceedings is an abuse of process which the court has an inherent jurisdiction to restrain.

13. Reverting to the facts of the present case, the plaintiff was, in the first and the second proceedings, charged with breaches of discipline under the Public Officers (Conduct and Discipline) (Chapter "D") General Orders 1980 (the GO "D") which is a statutory code of conduct governing public services in Malaysia, a code enacted under Clause (2) of Article 132 of the Federal Constitution. In the circumstances, I am of the view that the principle sets out in the case of Harry Lee Wee (supra), is apt to apply to the present case.

14. It is necessary at this stage to consider the charges made against the plaintiff. In the first proceedings, he was charged with an offence of failing to abide by the order of his superior officer that is, to stop any relation that he has with Cik Puziah Ariffin. While in the second proceedings, one of the charges brought against him was for having intimate relations with the same lady between March 88 and September 1991. In the second proceedings it was alleged that the conduct of the plaintiff, has brought disrepute to the public services, which is an offence under GO 4(2)(d) of the GO "D". It was contended on behalf of the plaintiff that these two charges essentially relate to the same facts i.e. the conduct of the plaintiff in having an intimate relation with the same lady. It was argued that even though the first charge was one of failure to obey the order of a superior officer but the said order relates to the conduct of the plaintiff in relation to the same lady.

15. In Harry Lee Wee (supra) the second proceedings was in respect of his convictions under s 213 of the Penal Code which was based on the same facts for which the first proceedings were taken and the Privy Council at p 6 made the following observation -

    If the facts here cannot be brought within Lord Devlin's strict test, they are certainly covered by the alternative form of relief which he favoured as mitigating the rigour of his strict test. The alternative approach is explained at length in the latter part of Lord Devlin's speech and leads clearly to the conclusion in the present case that the conviction proceedings brought by the Law Society against the appellant following the delay proceedings were an abuse of the disciplinary process.

16. The plaintiff's complaint here is that there is duplicity between the charge brought in the first proceedings and the first charge in the second proceedings as they are both related to the same conduct of the plaintiff. The only difference is that in the first proceedings he was charged under GO 4(2)(i) for insubordination, whereas in the second proceedings he was charged under GO 4(2)(d) for conducting himself in such a manner as to bring public service into disrepute. Looking at the facts, I agree with the plaintiff that in substance the two charges were in respect of the same conduct of the plaintiff in relation to Cik Puziah. Therefore, in all fairness there should have been only one charge as far as that is concerned. To charge the plaintiff twice for the same conduct clearly goes against the principle as stated by the Privy Council in Harry Lee Wee. Therefore, on that score the first charge in the second proceedings ought to be set aside.

17. However, that is not the end of the matter, learned Senior Federal Counsel in his submission further contended that even if the court were to hold that one of the charges in the second proceedings was invalid that should not vitiate the punishment imposed by the first defendant on the plaintiff since the punishment was in respect of two separate charges. He contended that the first defendant could still impose the same punishment on the plaintiff based on just one of the charges. Therefore, he argued it does not really matter whether one of the charges is valid or not. With respect to the learned counsel, I do not think it is open to us to speculate as to the likely punishment that the first defendant will impose had there been only one charge before him. In my opinion once the first charge is found to be unsustainable in law then the punishment needs to be set aside. There is no procedure for the court to remit the case to the disciplinary authority nor is there any power vested in the court to substitute its own punishment.

18. For the above reasons it is my finding that the order of dismissal made against the plaintiff is wrong in law and accordingly I order that the same be set aside.

    2. FREEDOM OF RELIGIOUS PRACTICE

19. With regard to the second charge in the second proceedings the plaintiff contended that the charge is unsustainable on the ground that it goes against the plaintiff's right to practise his religious belief as enshrined in Article 11 of the Federal Constitution. The plaintiff contended that the practice of polygamous marriage is permissible under the Islamic faith and the first and second defendants had acted contrary to the said provisions of the Federal Constitution in taking that right away from the plaintiff.

20. In this regard it is relevant to refer to surah An Nisa verse 3 of the Holy Koran, the English translation of which reads as follows:-

    .. Marry women of your choice, two, or three, or four. But if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hand possess. That will be more suitable, to prevent you from doing injustice. The Holy Quran Text, Translation and Commentary, A Yusuf Ali

21. In the commentary A Yusuf Ali wrote:-

    The unrestricted number of wives of the 'Times of Ignorance' was now strictly limited to a maximum of four, provided you could treat them with perfect equality, in material things as well as in affection and immaterial things. As this condition is most difficult to fulfill, I understand the recommendation to be towards monogamy.

22. It is obvious from the verse cited that polygamous marriage is merely permissible in Islam. A Muslim is therefore not required as a matter of religious obligation to take upon more than one wife. As a matter of fact, there are certain conditions that need to be met before a Muslim is allowed to do so. On that premise I don't think it is fundamentally wrong for the disciplinary authority to require any member of the police force to obtain prior permission from his superior officer before entering into a polygamous marriage. Such a condition could not in my view be construed as infringing the constitutional guarantee to profess and practise his religion as contained Article 11(1) of the Federal Constitution. Failure to obtain such a permission of course amounts to a breach of discipline. Further, I don't think it is open to the plaintiff to argue that the need to seek permission from his superior is merely a matter of formality and as such it could not render him liable to disciplinary action under the GO "D". I am of the view that the plaintiff had clearly acted contrary to good discipline in marrying his second wife after his request for permission to do so was turned down by this superior officer.

23. For the above reasons I am unable to accept the second ground put forward by the plaintiff.

    3. WHETHER THE SENTENCE IMPOSED IS APPROPRIATE

    IN THE CIRCUMSTANCES OF THE CASE?

24. The third and final ground advanced by the plaintiff is that the sentence imposed by the first defendant is in the circumstances of the case excessive. The learned counsel for the plaintiff contended that it is open to the court in appropriate cases to interfere with the punishment imposed by the disciplinary authority. He relied on the decision the Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 2 AMR 1617 in support of this proposition. There at p 1667 YA Gopal Sri Ram said:-

    ... But it must, when deciding what punishment it ought to impose on the particular public servant, act reasonably and fairly. If it acts arbitrarily or unfairly or imposes a punishment that is disproportionate to the misconduct, then its decision, to that extent, becomes liable to be quashed or set aside.

25. The case of Ekambaram Savrimuthu v Ketua Polis Daerah Melaka Tengah [1997] 2 MLJ 454, was also cited in support of the point. However, the decision in Tan Tek Seng, on this narrow point had been overturned by the Federal Court in Ng Hock Cheng v Pengarah Am Penjara [1997] 4 AMR 4193. The Federal Court in that case at p 4202 stated thus:-

    It cannot be denied further that the disciplining of a public officer by his department head is part of the function of the executive branch of the government and any usurpation by a court will be viewed with something very much more than disfavour even though the judiciary is the judicial branch of the government as well as an institution which belongs to the people. To repeat, a court intervenes only on the nature and manner of accusation against a public officer as distinct from a consequential punishment as explained above.

26. That disposes of the third ground relied upon by the plaintiff.

    CONCLUSION

27. For the reasons given I find there are merits in the plaintiff's contention as set out in the first ground, and I, therefore, made an order in terms of prayers A, C, and D of the plaintiff's claim.

Harry Lee Wee v Law Society of Singapore [1985] 1 MLJ 1; Ng Hock Cheng v Pengarah Am Penjara [1997] 4 AMR 4193; Connelly v Director of Public Prosecutions [1964] AC 1254; Ekambaram Savrimuthu v Ketua Polis Daerah Melaka Tengah [1997] 2 MLJ 454; Mohamed Yusoff Samadi v Attorney General [1975] 1 MLJ 1; R v Hogan and R v Tompkins [1960] 2 QB 513; Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 2 AMR 1617

Legislations

Federal Constitution: Art.7(2), Art.11, Art.132(2)

Penal Code: s.213

Prison Rules 1949: R.42(13), R.44

Public Officers (Conduct & Discipline) (Chapter "D") General Orders 1980: GO.4(2)(d), (i)

Public Service (Disciplinary Proceeding) Regulations 1970: Reg.11

Authors and other references

A Yusuf Ali, The Holy Quran Text, Translation and Commentary

Mohd Ismail Mohamed (Ismail, Khoo & Associates) for Plaintiff

Azman Abdullah, Senior Federal Counsel (AG's Chambers) for Defendant

[a] The translation is not a part of the original judgment.

This decision is also reported at [2001] 4 AMR 4111