Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 MarsdenLR 6456

COURT OF APPEAL (PUTRAJAYA)
AZIZAH NAWAWI, AZIMAH OMAR, WONG KIAN KHEONG, JJ
Leftenan Kolonel Shaifullizan bin Abd Aziz (Commanding Officer for the Fifth Battalion of the Royal Ranger Regiment) & Ors – Appellant
Versus
Muhammad Maliki bin Abdul Halim and another appeal – Respondent
CIVIL APPEAL NOS D-01(NCVC)(W)-750–10 OF 2022 AND D-01(NCVC)(W)-763–10 OF 2022

Advocates:
Nur Ezdiani bt Roleb (with Norfauzani bt Mohd Nordin and Safiyyah bt Omar) (Attorney General’s Chambers) for the appellant.
Shaharuddin bin Mohamed (with Nur Shafika bt Mustaffa) (Shaharuddin Hidayu & Marwaliz) for the respondent.

Detention of servicemen must adhere to statutory requirements; while investigation detention was lawful, court-martial detention lacked legal basis, thus infringing personal liberties under constitutional law.

Headnote:(A) Armed Forces Act, 1972 - Sections 51, 93(1), (3), 94(1), (2), 95, 96(3), 97(9) - Armed Forces (Court Martial) Rules of Procedure 1976 - Rules 13, 14(1), (2), 15(1), (2), (3), 16(1) - Serviceman’s detention - Detention pending investigation was valid; detention pending court-martial was unlawful due to lack of remand order and requirement for witness testimony - Plaintiff's detention duration of 250 days sought to be declared unlawful - Court set aside High Court’s damage award of RM300,000 and costs of RM30,000 - Held: Detention pursuant to proper legal framework was valid; personal liberty deprived lawfully under Federal Constitution Article 5(1) (Paras 1-32).

(B) Detention proceedings - Necessity of strict adherence to legal frameworks governing military detention - Court emphasizes the need for remand orders and witness testimonies in court-martial cases (Paras 23, 24, 28).

Facts of the case:
The plaintiff, a serviceman, was detained pending investigation and subsequently court-martial for drug use, with the High Court ruling initially favoring him. The ruling was overturned on appeal (Paras 4-5, 19).

Findings of Court:
The initial High Court's findings were erroneous regarding the validity of detention pending court-martial (Paras 32, 30, 33).

Issues: The primary question was the legality of the plaintiff’s detention during both investigation and court-martial (Paras 21).

Ratio Decidendi: Court confirmed that detention during investigation was lawful under AFA provisions, while the court-martial detention lacked requisite legal foundations (Paras 28, 30).

Result: Appeal by defendants allowed; plaintiff's appeal dismissed and previous judgment set aside.

Table of Content
1. detention of serviceman under afa provisions. (Para 1 , 2 , 3 , 4 , 5 , 6)
2. clarification of investigation and detention timelines. (Para 7)

[1]The above two appeals (‘two appeals’) are heard together as these two appeals emanated from one trial in the High Court.

[2]These two appeals discusses the following main question, namely, where:

(1)a ‘serviceman’ (defined in s 2Armed Forces Acts 2AFA

(2)the Commanding Officer decided to arrest and detain the accused by way of ‘close arrest’ (tahanan ketat atau tahanan rapi) pending the completion of the Commanding Officer’s investigation regarding the alleged offence (‘investigation’); and

(3)after the completion of the investigation, the accused was charged by the Commanding Officer with regard to the alleged offence (‘charge’):

(a)the Commanding Officer ‘determined’ that the accused was guilty of the charge but before recording the finding that the accused was guilty of the charge, the Commanding Officer gave the accused an opportunity to elect to be tried by a ‘court-martial’ (within the meaning in s 2 read with s 103AFA

(b)the accused elected to be tried by a court-martial under s 97(9) AFA

(c)the Commanding Officer remanded the accused by way of close arrest pending the disposal of the accused’s trial in the court-martial.

B. BACKGROUND

[3]We shall refer to the parties as they were in the High Court.

[4]At the material time:

(1)the plaintiff (‘plaintiff’) was a serviceman in the Fifth Battalion of the ‘Royal Ranger Regiment’ (Rejimen Renjer DiRaja), Desa Pahlawan Army Camp, Kota Bahru, Kelantan Darul Nairn (‘army camp’); and

(2)the first defendant (‘first defendant’) was the plaintiffs Commanding Officer at the army camp.

[5]On 29 March 2014, at about 12.30am, a surprise drug prevention operation was conducted in the army camp where 26 Rangers, including the plaintiff, were asked to provide their urine samples (‘urine samples’).

[6]The urine samples were sent to the Chemistry Department of Malaysia (‘CDM’) for analysis.

[7]CDM’s analysis of the 26 urine samples revealed that nine of the urine samples, including the plaintiff’s urine sample, contained ‘methamphetamine’, a substance prohibited by a ‘standing order’ (‘SO’) made under s 51AFA

(1)the plaintiff was brought before the first defendant (as the plaintiffs Commanding Officer) for the purpose of the first defendant’s investigation of the charge that the plaintiff had contravened the SO; and

(2)the first defendant decided to place the plaintiff under close arrest pending the completion of the investigation (‘arrest (investigation)’).

[8]The plaintiff was detained for more than eight days as the investigation could not be completed. Hence, the first defendant made a ‘special report’ under s 94(2) AFA laporan kelengahan lapan hari) (first defendant's report (s 94(2) of the )).

[9]After the completion of the investigation, on 26 August 2014:

(1)the plaintiff was brought before the first defendant for the purpose of the charge under s 51AFA

(2)the first defendant informed the plaintiff that as the plaintiff’s Commanding Officer, the first defendant determined that the plaintiff was guilty of the charge (s 51 of the AFA ) but before recording the finding that the plaintiff was guilty of the charge (s 51 of the ), the first defendant gave the plaintiff an opportunity to elect to be tried by a court-martial;

(3)the plaintiff elected to be tried by a court-martial under s 97(9)AFAcourt-martial)’); and

(4)the first defendant remanded the plaintiff by way of close arrest pending the disposal of the trial (court-martial).

[10]In this judgment, we shall refer to the plaintiff’s detention from 7 August 2014 (date of the arrest (investigation)) until 26 August 2014 (date of the charge (s 51 of the AFA )) as the ‘detention (pending investigation)’.

[11]On 8 April 2015, on the first day of the trial (court-martial):

(1)the charge (s 51 of the AFA ) was read to the plaintiff;

(2)the plaintiff pleaded not guilty to the charge (s 51 of the AFA

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2025 MarsdenLR 6456

Detention of servicemen must adhere to statutory requirements; while investigation detention was lawful, court-martial detention lacked legal basis, thus infringing personal liberties under constitutional law.

Cases Referred (1)