Gopal Sri Ram JCA:

[1] The plaintiff was a Lance Corporal in the Royal Malaysian Police. He was dismissed for misconduct. He filed an action challenging his dismissal. He failed before the High Court. He appealed to us. We heard the appeal on 21 June 2006 and reserved judgment. Our conclusions and the reasons for them now follow.

[2] At the material time the plaintiff was posted at the Police Station in Pontian, Johor. The misconduct in question with which he was charged and for which he was dismissed was that he had failed to make entries in his pocket book for the period 4 May 1996 to 14 May 1996. His case is this. He was on leave from 4 May 1996 to 17 May 1996. The leave had been sanctioned by Officer in Charge of the Police District of Pontian ("the OCPD"). He obtained leave to go to his home town, Alor Setar in Kedah. On 10 May 1996 he received a message from the OCPD requiring him to return to duty at once. The plaintiff returned to Pontian and reported for duty at the police station on 14 May 1996. Almost as soon as he came on duty, Sergeant Major Mustaffa Taib, the officer in charge of the police station ("the OCS") sent for the plaintiff. He asked the plaintiff to produce his Pocket Book for the purpose of being signed off by him, that is to say, the OCS. The plaintiff informed the OCS that as he had returned from leave because of his urgent recall, he had not had sufficient time to update the entries in his pocket book. The OCS was not prepared to listen to any explanation. He straightaway made an entry in the station diary against the plaintiff for not having a pocket book with up to date entries. He also seized the pocket book. Later, the plaintiff received notice of hearing of a disciplinary inquiry into a charge against him for failure to maintain his pocket book. He attended the disciplinary hearing. As he was about to enter the orderly room, the OCS spoke to him. He induced the plaintiff to plead guilty to the charge. He said that if the plaintiff pleaded guilty he would receive a light sentence. The first defendant conducted the disciplinary inquiry. The charge was put to the plaintiff. Because of the inducement offered him by the OCS, the plaintiff pleaded guilty. Later the first defendant wrote a letter to the plaintiff informing him that he had been dismissed from service. It is not in dispute that in coming to his decision the first defendant took into account the plaintiff's past conduct. It is also not in dispute that the plaintiff's past conduct was never put to him at the inquiry.

[3] At the commencement of the trial counsel on both sides informed the Judicial Commissioner that each will call one witness in support of their respective cases. For his part, the plaintiff gave evidence on oath. He was cross examined. Among other things, it was put to him that the OCS had never offered any inducement. The plaintiff denied this suggestion. At the close of the plaintiff's case the defendants informed the court that they would not be calling any evidence but would make a submission. Thereafter, both sides made their respective submissions and the learned judicial commissioner in a reserved judgment dismissed the plaintiff's claim. Now, there is nothing in the notes recorded by the learned judicial commissioner that he put the defendants to their election. More importantly, it appears that the learned judicial commissioner did not ask federal counsel before him why, after having led the court into believing that evidence would be called a sudden change in stance had taken place. It cannot be over emphasised that counsel, whether from the Bar or the Chambers of the Attorney General must not mislead a court or the opponent. To lead the court and your opponent into believing that evidence will be called and then suddenly and without any explanation changing stance is not acceptable conduct by an advocate. This is one unsatisfactory feature of the trial. The other unsatisfactory feature is the failure of