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2014 MarsdenLR 799
COURT OF APPEAL PUTRAJAYA
MOHAMAD ZULHAZI ZULKAFLI – Appellant
Versus
SURUHANJAYA PASUKAN POLIS & ANOR – Respondent
[Civil Appeal No: P-01-452-10/2012]
A failure to supply crucial documents in disciplinary proceedings violates natural justice, impacting an individual's right to a fair defense, and delay can imply condonation of misconduct.
Headnote:(A) Malaysian Anti-Corruption Commission Act 2009 - Sub-section 29(4) - Disciplinary proceedings - Judicial review of dismissal from police force - Appellant's application dismissed as delays in proceedings did not amount to procedural impropriety; however, failure to supply a crucial document breached natural justice principles. (Paras 4, 5, 15, 16)
(B) Natural justice - Right to a fair hearing - Requirement for authorities to supply material documents relevant to proceedings; denial of this right constitutes a breach of procedural fairness. (Paras 5, 6, 10, 11)
Facts of the case:
The Applicant was dismissed from the Royal Malaysian Police for receiving a bribe in June 2005, with disciplinary proceedings commencing in 2010. The Appellant challenged the dismissal through judicial review, asserting failure to provide him with a key statement impacted his right to defend against the charges (Paras 1, 2, 14).
Findings of Court:
The court identified a breach of natural justice due to the failure to disclose the complainant's statement, affecting the Appellant's ability to prepare a defense. There was also an implicit acknowledgment of potential condonation due to delays and promotions following the alleged misconduct. (Paras 16, 21)
Issues: The Court addressed whether the lack of supplied evidence constituted a breach of natural justice and whether the delay in disciplinary action indicated condonation. (Paras 5, 17)
Ratio Decidendi: The court reaffirmed the importance of providing evidence essential for a fair defense and noted that delays in disciplinary action could imply a form of condonation, which must be considered in evaluating the fairness of the proceedings. (Paras 16, 20)
Result: Appeal allowed, with the earlier decision overturned and no costs awarded.
| Table of Content |
|---|
| 1. judicial review on police dismissal (Para 1 , 1 , 2) |
| 2. scope of judicial review process (Para 3 , 4) |
| 3. non-supply of evidence breaches natural justice (Para 5 , 6 , 7 , 8 , 9) |
| 4. right to be heard and access to evidence (Para 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 5. condonation in administrative actions (Para 17) |
[1] This appeal by the Appellant had arisen out of the hearing of the Appellant's application for judicial review wherein the High Court had dismissed the application for an order of certiorari to quash his dismissal from the Royal Malaysian Police Force on 16 December 2012 by the 1st Respondent.
Facts
[2] The facts of the application as stated by the learned High Court Judge in his Lordship's Grounds of Judgment dated 15 January 2013 were not disputed by the Appellant and Respondents and are hereby reproduced as follows.
2.1 By a letter of 31 Mei 2010 the Applicant had been informed by the 1st Respondent that disciplinary proceedings with intention to dismiss or demote him in rank was being commenced in respect of three (3) charges of disciplinary offence allegedly committed by him in June and August 2005 while he was the Ketua Polis Balai Kuantan, Pahang.
2.2 The Applicant was directed to submit written representations to show cause why disciplinary action or punishment should not be taken against him; in other words to state the grounds upon which the Applicant would rely to exculpate himself of the charges brought against him.
2.3 After obtaining extensions of time, (during which the Applicant was furnished with certain documents he had requested for),the Applicant submitted his Letter of Representation dated 26 Mei 2011. This Letter of Representation was fifteen (15) pages in length with legal submissions and twelve exhibits.
2.4 By letter of 16 December 2011, the 1st Respondent informed the Applicant that he had been found guilty of all three (3) charges of misconduct. With respect to the 1st Charge, the Applicant was to be dismissed (buang kerja) while the punishment meted out in respect of the 2nd and 3rd Charges was 'amaran' (warning).
2.5 It was only against the finding and punishment related to the 1st Charge, that this judicial review was applied for. The 1st Charge of misconduct brought against the Applicant was in the following terms:
"PERTUDUHAN PERTAMA
Bahawa kamu Penolong Penguasa Polis G/12497 Mohd Zulhazi bin Mohd Zulkafli sebagai Pegawai Awam dalam Pasukan Polis Diraja Malaysia pada 23 Jun 2005 semasa bertugas sebagai Ketua Polis Balai Kuantan, Pahang telah menerima wang sogokan RM5,000.00 daripada penama Alex @ Lai Foo Hoo supaya tidak diambil tindakan terhadapanya semasa pemeriksaan dijalankan di Premis No. 19, Lorong 35, Taman Tas Ria, Kuantan yang mana wang tersebut diserahkan kepada kamu melalui Koperal 86697 Abdul Rahman bin Abdul Kadir. Perbuatan kamu diertikan sebagai membelakangkan tugas awam demi kepentingan peribadi, maka dengan hal yang demikian,kamu telah melanggar tatakelakuan di bawah Peraturan 4(2)(a) Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) (Pindaan) 2002 yang berbunyi seperti berikut:-
"4 (2) seseorang Pegawai tidak boleh:-
(a) Membelakangkan tugas awamnya demi kepentingan peribadinya".
Jika kamu didapati bersalah, kamu boleh dihukum mengikut Peraturan 38, Peraturan-Peraturan Pegawai Awam (Kelakuan Dan Tataterbib) (Pindaan) 2002."
2.6 The substance of the 1st Charge or allegation against the Applicant was that the Applicant had on 23 June 2005 received a bribe (wang sogokan) of RM5,000.00 from one Alex or Lai Foo Hoo during an inspection at premises No. 19, Lorong 35, Taman Tas Ria, Kuantan, to desist from taking criminal action against the said Alex @ Lai Foo Hoo ("Alex") and the amount in question was handed to the Applicant by Koperal 86697 Abdul Rahman bin Abdul Kadir.
2.7 In June 2005, the Applicant held the position of Chief Inspector in the Police Force and effective from 01 July 2005 he had been promoted to Assistant Superintendent of Police (ASP).
Judicial
