1. ) DATO' DR. MAHMUD BIN MOHD NOR 2. ) MAJLIS PERUBATAN MALAYSIA DR.MOHD ISMAIL BIN ABDUL HAMID

1. ) DATO' DR. MAHMUD BIN MOHD NOR 2. ) MAJLIS PERUBATAN MALAYSIA DR.MOHD ISMAIL BIN ABDUL HAMID

Appeal allowed: Regulation 26 must be read as a whole; the quorum requirement in 26(4) (two members) was satisfied at the third hearing, the proviso to 26(3) saves acts despite a vacancy or defect in composition, and the word 'shall' in 26(2) is directory in context; further, the respondent's challenge was premature because only a final decision by the MMC under the Medical Act 1971 is amenable to appeal or review; thus the Judicial Commissioner erred in setting aside the PIC Recommendation.

Citation
W-02(NCvC)(A)-1434-10/2020 (Mahkamah Rayuan)
Parties
First Appellant; Chairman, Preliminary Investigation Committee I (pic): Dato' Dr Mahmud bin Mohd Nor; Second Appellant; Malaysian Medical Council (mmc): Majlis Perubatan Malaysia; Respondent; Registered Medical Practitioner: Dr Mohd Ismail bin Abdul Hamid
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
6 October 2022
Case Number
W-02(NCvC)(A)-1434-10/2020 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Determination on Appeal to the Court of Appeal Against High Court Judgment Allowing Originating Summons
Outcome
Appeal allowed.
Legal Topics
Prematurity of Judicial Review, Quorum and Committee Composition, Proviso and Saving Provision, Interpretation of 'shall' as Directory Vs Mandatory, Judicial Review of Interlocutory Steps
Source Language
Malay/English
Administrative Law Statutory Interpretation Professional Disciplinary Law Medical Regulation Prematurity of Judicial Review Quorum and Committee Composition Proviso and Saving Provision Interpretation of 'shall' as Directory Vs Mandatory +1 more

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Parties

Dato' Dr Mahmud bin Mohd Nor

First Appellant; Chairman, Preliminary Investigation Committee I (pic)

Majlis Perubatan Malaysia

Second Appellant; Malaysian Medical Council (mmc)

Dr Mohd Ismail bin Abdul Hamid

Respondent; Registered Medical Practitioner

Procedural Posture

Civil Appeal / Determination on Appeal to the Court of Appeal Against High Court Judgment Allowing Originating Summons

Legal Issues

  1. 1 Whether PIC's composition of three members per Regulation 26(2) was mandatory so that a two-member sitting invalidated the Recommendation
  2. 2 Whether the Proviso to Regulation 26(3) saves acts and proceedings despite vacancies or defects in composition
  3. 3 Whether a court may grant declaratory relief against a PIC recommendation before the MMC has made a final disciplinary decision (prematurity)

Ratio Decidendi

Appeal allowed: Regulation 26 must be read as a whole; the quorum requirement in 26(4) (two members) was satisfied at the third hearing, the proviso to 26(3) saves acts despite a vacancy or defect in composition, and the word 'shall' in 26(2) is directory in context; further, the respondent's challenge was premature because only a final decision by the MMC under the Medical Act 1971 is amenable to appeal or review; thus the Judicial Commissioner erred in setting aside the PIC Recommendation.

Court Disposition

Appeal allowed.

Orders

  • Decision of the learned Judicial Commissioner dated 9 September 2020 is set aside; appeal allowed.