The court affirmed that procedural impropriety in a Summary Trial, specifically the failure to call a key witness, violates the right to a fair trial, while also clarifying the limits of judicial review in military discharge decisions.

A. Introduction

[1] This appeal concerns the following parties:

(1) the respondent (Respondent) was a sergeant of the Twelfth Battalion of the Royal Malay Regiment (RMR) stationed in Daralockwood Camp, Kuantan, Pahang Darul Makmur (Camp) and a "serviceman" of the Armed Forces as defined in s 2 of the Armed Forces Act 1972 (AFA);

(2) the 1st appellant (1st Appellant) was the Respondent's "commanding officer" (defined in s 2 AFA) (Commanding Officer) at the Camp;

(3) the 2nd appellant (2nd Appellant) is the Chief of Army who is the "competent authority' (Competent Authority) appointed by the Armed Forces Council (3rd Appellant) under s 2 AFA; and

(4) the Ministry of Defence and Government of Malaysia are the 4th and 5th appellants ("4th Appellant" and "5th Appellant") respectively.

In this judgment, we shall refer to the 1st to 5th Appellants collectively as the "Appellants".

[2] This appeal raises the following novel questions:

(1) when a serviceman (Accused) is charged with disobedience to a "standing order" (Standing Order) made under s 51 AFA (Charge) and if the Commanding Officer decides to deal summarily with the Charge (Summary Trial), during the conduct of the Summary Trial, when is the Commanding Officer required by s 97(9) AFA to accord to the Accused the right to elect to be tried by court- martial?

We use the description "Summary Trial" as provided in reg 16 of the Armed Forces (Summary Jurisdiction) Regulations 1976 (AFSJR);

(2) if the Commanding Officer conducts a Summary Trial:

(a) has the Commanding Officer committed a procedural impropriety by refusing to call the chemist (who has found the urine sample of the Accused to contain a substance which is prohibited by a SO) to give expert evidence and be cross- examined by the Accused at the Summary Trial?; and

(b) if the Commanding Officer has committed a procedural impropriety as described in the above sub-paragraph (a), whether such a procedural impropriety can be excused by any one of the following grounds-

(i) in accordance with the proviso to s 399(1) of the Criminal Procedure Code ( CPC ), the chemist report has been previously served on the Accused more than 10 dear days before the commencement of the Summary Trial;

(ii) the Accused has not objected to the admissibility of the chemist report at the Summary Trial;

(iii) the Accused has not cross-examined all the witnesses called by the Commanding Officer at the Summary Trial; and

(iv) the Accused can call the chemist to testify for the Accused at the Summary Trial;

(3) if the Commanding Officer has committed a procedural impropriety with regard to the Summary Trial, whether the court can issue a certiorari order to quash:

(a) the finding of the Commanding Officer that the Accused is guilty of the Charge; and

(b) the punishment meted out by the Commanding Officer to the Accused (Commanding Officer's Decision); and

(4) with regard to a decision of the Competent Authority made under reg 61(1)(m) of the Armed Forces (Terms of Service of Regular Forces) regs 2013 (AFTSR) to discharge the Accused from service in the Armed Forces (Service) on the ground that the Accused's service was no longer required (Competent Authority's Decision):

(a) if the court has issued an order of certiorari to invalidate the Commanding Officer's Decision, can the court also issue a certiorari order to quash the Competent Authority's Decision as a corollary?; and

(b) in view of the literal meaning and purpose of reg 61(1)(m) AFTSR, should the court decline to exercise its discretion under O 53 r 2(3) of the Rules of court 2012 (RC) to-

(i) grant a certiorari order to set aside the Competent Authority's Decision; and

(ii) give an order of Mandamus to direct the Accused to be retried by court-martial?

B. Background

[3] On 17 September 2020, the Respondent