The Army Guideline for drug testing is enforceable, and the KKM Guideline does not supersede it.

[1] This appeal was against the decision of the High Court at Ipoh allowing the respondent's application by way of Originating Summons for the following declaratory orders:

(a) The "Perintah Majlis Angkatan Tentera 4/2009" ("the Army Guideline") dated 14 May 2009 which lays down the procedure for testing drug abuse in urine is null and void as it does not conform to the "Surat Pekeliling Ketua Pengarah Kesihatan Malaysia, Kementerian Kesihatan Malaysia" dated 3 September 2002 and Garis Panduan Bahagian Kesihatan Perkembangan Perubatan Kementerian Kesihatan Malaysia Bilangan 6/2002" ("the KKM Guideline"); and

(b) The Army Guideline is null and void as it violates Arts 5(1) and 8(1) of the Federal Constitution.

[2] The issue relates to the procedure for the taking of urine specimens for the purposes of urine tests in suspected drug abuse cases involving members of the armed forces.

[3] It needs to be mentioned that when the Originating Summons was filed by the respondent, his trial in the Court-martial was ongoing. This prompted the appellant to apply under O 18 r 19(1)(b) and/or (d) of the Rules of 2012 to strike out the Originating Summons on the ground that it was scandalous, frivolous or vexatious or was otherwise an abuse of process. The application was dismissed by the learned High Court Judge.

[4] In allowing the respondent's Originating Summons and dismissing the appellant's striking out application, the learned judge accepted the respondent's argument that the Army Guideline is null and void and of no effect as it did not conform to the KKM Guideline.

[5] The decision effectively means that the urine test carried out by the appellant on the respondent was illegal as only one bottle of urine sample was taken from him instead of two as required by the KKM Guideline. The decision also means that the appellant will not be able to continue with the Court-martial against the respondent.

[6] The background facts leading to the present appeal are as follows. On 9 July 2016, the respondent was charged in the Court-martial for breaching the Armed Forces Standing Order, which is an offence under s 51 of the Armed Forces Act 1972 ("the AFA "). The breach was for being involved in drug abuse. The material particulars of the charge against the respondent read:

"TIDAK MEMATUHI PERINTAH TETAP YANG BERTENTANGAN DENGAN S 51 AKTA ANGKATAN TENTERA 1972

Iaitu ia di 2 Skuadron Semboyan Diraja, Kem Remilies, 30450 IPOH, Perak pada April 2015 jam lebih kurang 0120 telah melanggar Perintah Bahagian Pertama Pasukan, Bilangan No 28 bertarikh 11 Februari 2015 telah memberi sampel air kencingnya yang bertanda 'A' kepada 724310 LUK Mohd Firdaus bin Zaman Shah dan apabila diuji oleh Makmal Jabatan Kimia Malaysia Jalan Sultan Azlan Shah, 31400 Ipoh Nombor Rujukan 15-FR-A-02029 bertarikh 25 Mei 2015 pada 27 April 2015 jam lebih kurang 1133 didapati sampel air kencingnya tersebut mengandungi dadah jenis Methamphetamine dan Amphetamine iaitu sejenis dadah."

[7] Section 51 of the AFA under which the respondent was charged provides as follows:

"Disobedience to standing orders

51.(1) Every person subject to service law under this Act who contravenes or fails to comply with any provision of orders to which this section applies, being a provision known to him or which he might reasonably be expected to know, shall, on conviction by Court-martial, be liable to imprisonment for