The necessity to prove intention to remain permanently absent is critical for a charge of desertion under military law, distinguishing it from absence without leave.

[1] There is a world of difference between being absent without leave [AWOL] from your station or post, and being a deserter. In the armed forces, whether navy, army or air, it is a question of honour.

[2] In this appeal, the appellant was Court-martialled and found guilty for the offence of desertion under s 54(1)(a) of the Armed Forces Act 1972 [Act 77] by the respondent. He was sentenced to three months' imprisonment and dishonourable discharge from His Majesty's service. The appellant challenged the respondent's decision by way of judicial review proceedings. He was unsuccessful at both the High Court and the Court of Appeal.

[3] On 14 February 2022, the Federal Court granted leave on three questions of law.

[4] On 20 September 2022, we unanimously allowed his appeal; answering the third question posed, in the negative. That answer was sufficient reason for us to allow the appeal in which case the remaining two questions need not be answered. The three questions of law which generally revolve around the interpretation of s 54(1)(a) and s 54(2)(a) of Act 77 are:

i. Bolehkah seorang tentera yang telah kembali melapor diri dan bertugas secara aktif selepas satu tempoh cuti yang tidak dibenarkan dituduh atas kesalahan tinggal tugas mengikut s 54(1)(a) Akta Angkatan Tentera 1972 [Akta 77]?

[Can a soldier who has returned to active service after a period of unsanctioned leave be subsequently charged for desertion within the meaning of s 54(1)(a) of the Armed Forces Act 1972 [Act 77]?]

ii. Bolehkah seorang tentera yang kembali melapor diri dan bertugas semula selepas satu tempoh cuti yang tidak dibenarkan dikatakan mempunyai niat untuk meninggalkan tugas buat selama-lamanya sepertimana yang diperuntukkan mengikut s 54(2)(a) Akta Angkatan Tentera 1972 [Akta 77]?

[Can a soldier who re-joined active service after a period of unsanctioned leave intend to be remained permanently [sic] absent from his duty as provided under s 54(2)(a) of the Armed Forces Act 1972 [Act 77]?]

iii. Bolehkah perbuatan tidak hadir tanpa cuti selama enam (6) bulan dikatakan telah cukup memenuhi kehendak elemen meninggalkan atau tidak masuk atau tidak masuk semula dalam Perkhidmatan Seri Paduka Seri Baginda ataupun yang terbentuk kemudiannya, hendak meninggalkan kewajipan buat selama-lamanya seperti yang diperuntukkan mengikut s 54(2)(a) Akta Angkatan Tentera 1972 [Akta 77]?

[Can an unsanctioned absence from duty for six (6) months be sufficient to satisfy the element of leave His Majesty's Service if fails [sic] to re- join His Majesty's Service, with the intention of remaining permanently absent from this duty as stipulated under s 54(2)(a) of the Armed Forces Act 1972 [Act 77]?]

Background

[5] The appellant, medically trained, commenced service in the armed forces on 2 April 2002. On 21 April 2015, he was promoted as a colonel. At the material time, the appellant was posted as an anaesthetist at Hospital Tentera Tuanku Mizan, Kuala Lumpur.

[6] From 19 October 2016 to 4 May 2017, the appellant was absent from work without leave. On 4 May 2017, he was arrested by the military police at a car park in section 13, Shah Alam, Selangor. He was produced before the Magistrates Court on 8 May 2017. He was, however, released because the arrest was contrary to the procedure in s 174(4) of Act 77.

[7] Later that same day, at or about 3.30 pm., the appellant put on his uniform and reported for work at his old station, Hospital Tentera Tuanku Mizan, Kuala Lumpur. He was, however, placed in Jabatan Am.

[8] Three months later, on 4 August 2017, he was charged with the offence of desertion under s 54(1)(a) of Act 77 and the charge reads as follows:

PERTUDUHAN

KOL (DR) FAIZ AZRAAI BIN ABDUL AZIZ (3009928) Markas 11 Briged, Kem Sungai Buloh, Selangor, seorang pegawai