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2023 MarsdenLR 1740
HIGH COURT MALAYA KUALA LUMPUR
PREMKUMAR KRISHNAN – Appellant
Versus
KETUA POLIS NEGARA MALAYSIA & ANOR – Respondent
[Judicial Review Application No: WA-25-421-07-2022]
The court affirmed that decisions to maintain criminal records are lawful when grounded in statutory provisions, emphasizing that judicial review is limited to cases of clear legal error.
Headnote:(A) Rules of Court 2012 - Order 53 - Registration of Criminals and Undesirable Persons Act 1969 - Sections 7, 9, and 12 - Judicial review application dismissed as the Respondents' decision to maintain the Applicant's criminal record was lawful and not tainted by illegality or procedural impropriety. The court emphasized that the Applicant's conviction under the Penal Code justified the record's maintenance. (Paras 14-24, 33-44)
(B) Judicial Review - Grounds for review include illegality, procedural impropriety, and irrationality. The court clarified that not every case merits judicial review and that the decision must be grounded in law. (Paras 6-10, 12)
Facts of the case:
The Applicant sought to quash his criminal record related to a theft conviction from 2003, arguing it hindered his business operations. The Respondents rejected his request to remove the record, citing legal grounds.
Findings of Court:
The court found the Respondents acted within their legal authority, maintaining the record was justified due to the nature of the conviction.
Issues: Whether the Respondents' decision was illegal, procedurally improper, or violated the Applicant's fundamental rights.
Ratio Decidendi: The court held that the maintenance of the Applicant's record was lawful given the conviction under a registrable offence and that the law did not provide for its removal.
Result: Application for judicial review dismissed with costs.
| Table of Content |
|---|
| 1. judicial review application and relief sought. (Para 1 , 2 , 3) |
| 2. background facts of the applicant's case. (Para 5) |
| 3. basis for judicial review and grounds for challenge. (Para 6 , 7 , 8 , 9 , 10) |
| 4. court's analysis of the legality of maintaining records. (Para 12 , 14 , 18 , 19 , 23) |
| 5. conclusion on the breach of fundamental rights. (Para 35 , 41) |
| 6. final decision on the application for judicial review. (Para 45 , 56) |
Introduction
[1] The Applicant filed an application for judicial review (encl 8) under O 53 of the Rules of Court 2012 (ROC).
[2] The Applicant was granted leave to apply for judicial review against the Respondents to seek the following reliefs:
2.1. Bahawa Pemohon diberikan kebenaran oleh Mahkamah untuk memfailkan permohonan ini selaras dengan Aturan 53 Kaedah 3 Kaedah-Kaedah Mahkamah 2012;
2.2. Satu Perintah Deklarasi bahawa penyimpanan rekod jenayah Premkumar Krishnan (No. KP: 840528-02-5321) oleh Responden Pertama dan Responden Kedua adalah tidak sah, terbatal dan bertentangan dengan Perlembagaan Persekutuan Malaysia dan Akta Pendaftaran Penjenayah dan Orang-Orang Yang Tidak Diingini 1969;
2.3. Satu perintah Certiorari untuk membatalkan (quash) pendaftaran rekod jenayah Premkumar Krishnan (No. KP: 840528-02-5321) oleh Responden Kedua;
2.4. Satu perintah Mandamus yang memerintahkan Responden Pertama dan Responden Kedua supaya mengeluarkan daripada Daftar Penjenayah rekod kesalahan Premkumar Krishnan (No. KP: 840528-02-5321) dalam tempoh 7 hari daripada tarikh perintah ini;
2.5. Kos permohonan ini dijadikan kos dalam kausa; dan
2.6. Lain-lain relif lanjut yang dianggap layak, adil dan suaimanfaat oleh Mahkamah Yang Mulia ini.
[3] In essence, the Applicant filed this Judicial Review for an Order of Certiorari to quash the decision of the Respondents who had by their letter dated 23 May 2022 rejected the Applicant's application to remove his name from the Register of Criminals (the Register) maintained by the 2nd Respondent.
[4] After the hearing, I dismissed the Applicant's application for judicial review (Encl 8). This judgment states the reasons for my decision.
Background Facts
[5] The background facts of the application gathered from the cause papers and submissions of the parties are largely undisputed and can be summarized as follows:
5.1. The Applicant was involved in a case of theft by a servant under s 381 of the Penal Code . He was merely 18 years old at the time of the incident. Being a first offender, he pleaded guilty to the offence and was ordered by the Magistrate Court on 15 April 2003 to be placed on a bond of good behaviour under s 294 of the Criminal Procedure Code (CPC) with a bond of RM2,000.00 with one surety.
5.2. Following thereto, the Applicant's registrable particulars have been entered into the Register and were never removed and/or destroyed from the Register.
5.3. The entries extracted from the Register had been adduced in accordance with s 10(1)(b) of the Registration of Criminals and Undesirable Persons Act 1969 (Act 7) by the Registrar of Criminals (the Registrar).
5.4. Thereafter, the Applicant continued his studies for three (3) years. After completion of his education, the Applicant joined the Armed Forces on 21 January 2005.
5.5. The Applicant had to retire from the Armed Forces Services on medical grounds after 10 years of service as he was involved in a serious accident and was unable to perform his duties effectively. He was permitted to retire and is on a Government pension to date.
5.6. The last rank held by him before his retirement (after 10 years of service) on 21 July 2015 was as a Leading Aircraftman (Laskar Udara Kanan) and his last rank was that of a "PTTR Khidmat Domestik".
5.7. After the Applicant's retirement, the Applicant established a logistic business known as CZ Top Diamond Enterprise whereby the said business was awarded a contract to transport valuable goods from the airport and harbour.
5.8. The Applicant is an entrepreneur who ha
