SJN U AHMAD ZAINI BIN ZAINON 1. ) KOLONEL DR. NORAZRIN BIN SHAMSUDIN TUDM 2. ) Yang DiPertua dan Ahli-ahli Mahkamah Tentera Udara Pangkalan Udara Sendayan Negeri Sembilan 3. ) Panglima Tentera Udara Diraja Malaysia

BA-25-29-03/2022 Kand. 31 21/03/2024 15:43:04 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN SEMAKAN KEHAKIMAN NO.: BA-25-29-03/2022 Dalam perkara mengenai Perkara 4, 5(1), 5(4), 74 dan Senarai Pertama Jadual Kesembilan Perlembagaan Persekutuan; Dan Dalam perkara mengenai Aturan 53 Kaedah 1, 2 dan 3 Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara mengenai seksyen 25 (2) dan Perenggan 1 Jadual Akta Mahkamah Kehakiman 1964; Dan Dalam perkara mengenai seksyen 117 dan seksyen 28 Kanun Tatacara Jenayah; Dan Dalam perkara mengenai seksyen 51, 87, 88, 90, 95, 103, 104 (1), 104 (4), 105, 108, 112, 113, 115, 119, 122, 123, 124,125, 126, 128, 150, 151 dan 156 Akta Angkatan Tentera 1972; Dan Dalam perkara mengenai Kaedah 4(1), 11(1), 13(1) & (2), 14(1), 16(1), 18(b), 16(1), 33, 35, 39, 48 (1)(a), 48 (1)(b), 48 1 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal (1)(f), 61 (1), 62 (1), 63 (1), 92, 96, 99, 100, 101, 118, 119, 120 dan Jadual Keempat dan Jadual Kelima, Jadual Kesebelas dan Jadual Keduabelas Kaedah-kaedah Acara Angkatan Tentera (Mahkamah Tentera) 1976 (P.U.(A). 163); Dan Dalam Perkara mengenai Peraturan 19, Kaedah-kaedah Angkatan Tentera (Pemenjaraan dan Tahanan) 1976 (P.U.(A). 162); Dan Dalam perkara mengenai Peraturan 16 Peraturan-Peraturan Angkatan Tentera (Bidangkuasa Terus) 1976 (P.U.(A) 161). ANTARA SARJAN (U) AHMAD ZAINI BIN ZAINON (No. Tentera: 722523) …PEMOHON DAN 1. KOLONEL DR. NORAZRIN BIN SHAMSUDIN TUDM (No. Tentera: 372488) Selaku Pihak Berkuasa Sidang Mahkamah Tentera Udara Pengkalan Udara Sendayan Negeri Sembilan 2. YANG DIPERTUA DAN AHLI-AHLI MAHKAMAH TENTERA UDARA, PENGKALAN UDARA SENDAYAN NEGERI SEMBILAN 2 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3. PANGLIMA TENTERA UDARA DIRAJA MALAYSIA …RESPONDEN-RESPONDEN JUDGMENT Introduction [1] This is an application for judicial review against the decision of the Sendayan Air Force Court-Martial (“the Court-Martial”) dated 22.09.2021 (“the Decision”) which found the applicant guilty of the charge of contravening standing orders under section 51 of the Armed Forces Act 1972 (“the Act”) and subsequently sentenced the applicant to imprisonment for a period of 150 days under the same section. Reliefs Sought [2] The reliefs sought by the applicant in this application for judicial review pursuant to Order 53 of the Rules of Court 2012 are reproduced below: “(i) Suatu perintah certiorari bahawa keputusan Mahkamah Tentera Udara Sendayan bertarikh 22 September 2021 yang telah memutuskan bahawa Pemohon disabitkan bersalah atas pertuduhan menyalahi peruntukan seksyen 51 Akta Angkatan Tentera 1972 dan dihukum dibawah peruntukan yang sama dengan hukuman tahanan selama tempoh 150 hari adalah tidak sah dan terbatal. 3 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal (ii) Suatu deklarasi atau pengisytiharan bahawa tahanan Pemohon dari tarikh 22 September 2021 sehingga 3 Januari 2022 adalah penahanan salah; (iii) Suatu deklarasi / pengisytiharan bahawa Perintah yang dikeluarkan dalam Perintah Tetap Rejimen Tentera Udara Diraja Malaysia Jugra iaitu perenggan 3 pada Perintah Bahagian 2 No. 56 adalah ultra vires Akta Dadah Berbahaya 1952; (iv) Suatu deklarasi / pengisytiharan bahawa Perintah yang dikeluarkan dalam Perintah Tetap Rejimen Tentera Udara Diraja Malaysia Jugra iaitu perenggan 3 pada Perintah Bahagian 2 No. 56 adalah ultra vires Jadual Kesembilan “List 1” Perlembagaan Persekutuan; (v) Suatu deklarasi / pengisytiharan bahawa Responden Pertama tiada kuasa untuk memerintah Mahkamah Tentera disidangkan untuk membicarakan Pemohon; (vi) Suatu deklarasi / pengisytiharan bahawa Hakim Peguam adalah perlu dilantik bagi Mahkamah Tentera dan peruntukan kaedah 48(1)(f) adalah ultra vires seksyen 151 Akta Angkatan Tentera 1972; (vii) Ganti Am dan/atau punitif; (viii) Kos; (ix) Lain-lain relif yang difikirkan adil dan suai manfaat oleh Mahkamah Yang Mulia ini.” 4 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal Factual Background [3] The facts of this judicial review are gleaned from documents filed in this court. [4] The applicant is a former Sarjan Udara of the Malaysian Air Force and was stationed at Cawangan Tadbir, Pengkalan Udara Jugra, 42700, Banting from 3.7.2017 until 22.4.2022. [5] Pursuant to section 51 of the Armed Forces Act 1972 [Act 77], the applicant was charged as follows: “PERTUDUHAN PERTAMA MELANGGAR PERINTAH-PERINTAH TETAP YANG BERTENTANGAN DENGAN SEKSYEN 51, AKTA ANGKATAN TENTERA 1972 Iaitu kamu, di Pejabat Ajutan Pengkalan Rejimen, Pada 9 Disember 2019 jam lebih kurang 1200H, telah melanggar Perintah Tetap Rejimen TUDM, Bahagian 2, Perintah No.56, didapati di dalam air kencingnya mengandungi dadah berbahaya jenis Methamphetamine, iaitu satu perintah yang diketahui oleh kamu atau sepatutnya kamu mengetahuinya. PERTUDUHAN ALTERNATIF KEPADA PERTUDUHAN PERTAMA SATU PERBUATAN YANG MEMUDARATKAN KEADAAN BAIK DAN TATATERTIB PERKHIDMATAN YANG BERTENTANGAN DENGAN SEKSYEN 87, AKTA ANGKATAN TENTERA 1972 Iaitu kamu, di Pejabat Ajutan Pengkalan Rejimen, pada 9 Disember 2019 jam lebih kurang 1200H, telah didapati di dalam air kencing kamu mengandungi dadah berbahaya jenis 5 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal methamphetamine, oleh demikian satu perbuatan yang memudaratkan keadaan baik dan tatatertib perkhidmatan” [6] The first respondent is the Director of the Legal Division, TUDM Markas Tentera Udara based in Pengkalan Udara Sendayan, Negeri Sembilan. [7] The first respondent acting as the Convening Authority pursuant to Section 104 of Armed Forces Act 1972 had issued a Convening Order (Perintah Sidang) for a Court-Martial on 22.10.2020. [8] The Court-Martial took place on 27.10.2020, 3.3.2021, 4.3.2021, 31.3.2021, 1.4.2021, 25.5.2021 and 27.5.2021. Submissions took place on 11.8.2021. The Decision was given on 22.9.2021. [9] The applicant had on 7.10.2021 filed a petition against the Decision before the confirming officer had confirmed the Court-Martial decision. The Petition was addressed to the third respondent, the Panglima Tentera Udara. [10] The first respondent as Confirming Officer had on 29.11.2021 confirmed the finding of Court-Martial. The finding was promulgated on 8.12.2021. [11] The Competent Authority discharged the applicant from service pursuant to Regulation 61(1)(j) of the Armed Forces (Terms of Service of Regular Forces) Regulations 2013 (“Discharge Decision”) on 22.4.2022. [12] On 31.3.2022, the applicant filed this application for judicial review. 6 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal Law Relating to Judicial Review [13] Before this court proceeds to consider this application, it would be prudent to consider the legal principles relating to an application for judicial review. Order 53 of the Rules of Court 2012 provides for the procedures for an application for judicial review. [14] The principles surrounding the application for judicial review are trite. The court hearing an application for judicial review are allowed to scrutinize not only the decision making process but also for substance, as to whether they are tainted by illegality, irrationality or Wednesbury unreasonableness, procedural impropriety and also proportionality [refer the Federal Court case of R Rama Chandra v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147]. [15] These grounds were laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374 which was adopted by the Federal Court in the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as follows: “In this context, it is useful to note how Lord Diplock (at pp 410– 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exerciseable. 7 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned 'proportionality' as a possible fourth ground of review which called for development.” 8 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal [16] On the grounds for judicial review, see also the cases of Akira Sales & Services (M) Sdn Bhd v. Nadiah Zee Abdullah & Another Appeal [2018] 2 CLJ 513; [2018] 2 MLJ 537; and R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147. [17] Further, in the case of Syarikat Kenderaan Melayu Kelantan v. Transport Workers Union [1995] 2 CLJ 748; [1995] 2 MLJ 317, the error of law has been described as follows: “It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed. But it may be said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.” [18] Founded on the principles of judicial review, this court will proceed to consider the grounds raised by the applicant in this case. Preliminary Objections [19] There are two preliminary objections to be dealt with before proceeding with the substance of this application. They are: (i) this judicial review application was filed out of time; and (ii) whether the applicant ought to exhaust the remedies available under the Act. 9 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal (i) This Judicial Review Application Was Filed Out of Time [20] The learned Senior Federal Counsel submitted that this application ought to be dismissed in limine due to it being filed out of time. The applicant on the other hand averred that the limitation period commenced from 3.01.2022 which is the date the applicant was released from the Air Force Detention Centre. [21] In this regard, this court considered subsection 122(2) of the Act which reads: “A finding of guilty or sentence of a court-martial shall not be treated as a finding or sentence of the court-martial until confirmed: …” [22] Subsection 125(7) of the Act reads: “The confirmation of a finding or sentence shall not be deemed to be completed until the finding or sentence has been promulgated; …” [23] The word “promulgated” in subsection 125(7) of the Act may be explained by reference to section 152 of the Act which reads: “Any finding, sentence, determination or other thing required by this Act to be promulgated shall be promulgated either by being communicated to the accused or in such other manner as the confirming officer or the reviewing authority, as the case may be, may direct.” [24] Read as a whole, the Decision of the Court-Martial has to be confirmed and subsequently be promulgated. In the absence of 10 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal those, this court is of the considered view it cannot be said that the calculation of time limit for the applicant to file an application for judicial review has begun. [25] Based on the affidavits filed in this court, there is no “such other manner” of promulgation directed by the confirming officer or the reviewing authority. Therefore, this court is of the view what is applicable here are the words “being communicated to the accused”. [26] The applicant maintains that he was not communicated of the confirmation by the confirming officer. The respondents’ affidavit in opposition which was deposed by the first respondent stated “oleh itu, adalah mustahil Pemohon tidak dimaklumkan mengenai dapatan dan hukuman tersebut telah disahkan oleh pegawai pengesah ataupun tidak sebelum dihantar ke PTAT”. This statement, in the view of this court, is, at best, an assumption made on the first respondent’s believe in what is the so called “standard procedure”. [27] In reply to the aforesaid averment, the applicant in his affidavit in reply mentioned that he had not been called physically before his Commanding Officer Brigadier-General Meor Ahmad Kamal Bin Meor Haji Termizi to be communicated of such confirmation. There is nothing before this court to demonstrate that the confirmation had indeed been promulgated. [28] In view of the foregoing, as the Decision was not promulgated to the applicant, it is the considered view of this court that the applicant is within time to file this application. 11 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal (ii) whether the applicant ought to exhaust the remedies available under the Act? [29] The respondents submitted that the applicant failed to exhaust all remedies available under the Act. It was argued that the applicant should have submitted a petition against the Decision by the Court- Martial in accordance with the manner prescribed in the Act. Failure to do so rendered this application liable to be dismissed. [30] In this regard, reference could be made to section 123 of the Act which reads: “At any time after a court-martial has sentenced the accused or has found the accused to be unfit to stand his trial or to be not guilty by reason of insanity, but not later than the prescribed time after confirmation is completed, the accused may in the prescribed manner present a petition against the finding or sentence or both.” [31] The manner to which a Petition is to be presented is provided in Rule 101(1) of P.U.(A)163/1976 which reads: “If an accused who has been sentenced by a court-martial or who has been found by a court-martial to be unfit to stand his trial or to be not guilty by reason of insanity wishes to petition before confirmation against the finding or sentence or both, he shall present a petition to the confirming officer in the appropriate form set out in Twelfth Schedule to these Rules.” 12 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal [32] When the applicant presented his petition, the Decision by the Court-Martial had yet to be confirmed. Therefore, reference to the phrase “confirming officer” could be referred to subsection 126(1)(a) of the Act which includes the officer who convened the court-martial (i.e. the first respondent) or any officer superior in command to that officer. [33] Founded on these facts, this court is of the considered view that the applicant is still within time, and that the applicant had resorted to the avenue available under the Act. It follows therefore this court dismissed the preliminary objections raised by the respondents. Decision The Validity of the Court-Martial [34] The applicant claimed that at all material time, he was not under the command of the first respondent and therefore by virtue of subsection 104(4) of the Act, the first respondent is not the appropriate officer to convene the Court-Martial and therefore the Court-Martial is tainted with illegality. In support of this argument, the applicant cited the case of Kee Peng Kwan v. Colonel Vn Stevenson & Ors [1975] 2 MLJ 139. [35] From a perusal of Kee Peng Kwan (supra), this case relates to the Malay Regiment Enactment and conflicting evidence as to who is the commanding officer of the subject. With respect, this case may be distinguishable from the present case before this court. The evidence to which the first respondent is the commanding officer of the applicant could be found in Exhibit “NA-1” of the respondents’ 13 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal affidavit in opposition when the applicant was attached temporarily with Legal Department of the Sendayan Air Base from 30.09.2020 to 29.06.21. [36] In this regard, reference is made to section 23 of the Act which authorises such arrangement as reproduced below: “A serviceman may be attached temporarily from one Service to another Service or from one unit to another unit within the Service.” [37] Moreover, the respondents exhibited an authorisation letter that the first respondent has been conferred with authority to convene the Court-Martial. There is only one condition which relates to the sentencing of imprisonment but that particular condition in the view of this court, is applicable only to “officers” and not “servicemen” such as the applicant. [38] The applicant further claimed that the temporary attachment was done for the purpose of convening the Court-Martial against the applicant. This claim by the applicant is however not supported by any evidence and therefore in the view of this court is mere allegation and is hence untenable. The right to Judge-Advocate [39] The applicant submitted that he has the right to Judge-Advocate and the Judge-Advocate must be appointed failing which the Court- Martial is illegal. 14 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal [40] The applicant further averred that Rule 48(1)(f) of P.U.(A)163/1976 is ultra vires section 119 of the Act, and cited the case of Major Phang Yat Foo v. Brigadier Jeneral Dato’ Yahaya Bin Yusof & Anor [1990] 1 MLJ 252 in support that the Minister does not have power to make rules conferring jurisdiction on any person. [41] To consider this issue this court examined section 151 of the Act which reads: “Without prejudice to the powers conferred on the Judge Advocate General under section 150, the appointment of a judge advocate to act at any court-martial may, failing the making thereof by or on behalf of the Judge Advocate General, be made by the convening officer.” [Emphasis added] [42] A reading of section 151 of the Act demonstrates the section empowers the Judge Advocate General to appoint the Judge- Advocate. Section 151 of the Act uses the word ‘may’. In terms of statutory interpretation, this court made reference to NS Bindra’s Interpretation of Statutes [10th Edition] at page 999 as reproduced below: “Ordinarily, the words ‘shall’ and ‘must’ are mandatory and the word ‘may’ is directory although they are often used interchangeably. It is this use, without regard to the literal meaning, that generally makes it necessary for the courts to resort to construction in order to ascertain the real intention of the draftsman. Nevertheless, it is generally presumed that the words are intended to be used in their natural meaning. …” 15 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal [43] In the event the Judge Advocate General fails to make such appointment, the word “may” denotes discretionary powers to the convening officer (first respondent in this case) to choose whether or not to appoint a Judge-Advocate. The convening officer has the discretion to appoint the Judge-Advocate. The Decision of the convening officer not to do so in this case, in the view of this court, is well within the ambit of the low. Therefore, this court finds this argument to be without merit. The Constitution of the Court-Martial [44] The applicant submitted that the Court-Martial is tainted illegality for reason that the President is the only officer which is well versed with law and therefore the other three members will follow her advice, (in the absence of a Judge-Advocate). It was further argued the Constitution of the Court-Martial is also of even numbers, contrary to general practice of District Court-Martial and/or General Court- Martial. [45] With respect to the applicant’s allegation of biasness in the order of rank between the members of the Court-Martial and/or between the President of the Court-Martial and the first respondent, it is the considered view of this court that this is merely allegations without evidence of the same. There is nothing before this court to substantiate the applicant’s claim. [46] In the case of Suraya Amdah v. Ketua Setiausaha Kementerian Kesihatan Malaysia & Anor [2015] 7 CLJ 403 where Collin Lawrence 16 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal Sequerah JC (as he then was) found that the test for biasness is the “real danger of bias” test: “[60] It is perhaps apposite at this juncture to briefly examine the prevailing test in respect of the issue of bias. The law in respect of bias is encapsulated in the Latin maxim "nemo judex in re sua " which means that persons should not be judges in their own cause. The decision making body must therefore be impartial and objective in coming to their decision. … [61] The test in respect of bias as laid down in the case of R v. Gough [1993] 2 All ER 724 is the "real danger of bias" test. The test was formulated in the following terms: Having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour the case of the party to the issue under consideration by him. [62] The test excludes from its realm mere surmise or conjecture as did the previous test of "real likelihood of bias". In the case of Majlis Perbandaran Pulau Pinang v. Syarikat Berkerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 CLJ 65; [1999] 3 MLJ 1, the Federal Court endorsed the test of "the real danger of bias" and said this: … [63] The test of "real danger of bias" was recently applied by our Apex Court in the case of Halaman Perdana Sdn Bhd 17 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal & Ors v. Tasik Bayangan Sdn Bhd [2014] 3 CLJ 681; [2014] 4 MLJ 1; [2014] MLJU 239. The test of "real danger of bias" as enunciated in R v. Gough (supra) was also accepted as the prevailing test in our jurisdiction in the earlier Federal Court case of Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal [2006] 1 CLJ 577; [2006] 2 MLJ 293.” [47] The Records of Proceedings of the Court-Martial show that there were instances where the President agreed with the position of the counsel acting for the applicant in relation to the method of examining the Prosecution Witness, and there were instances where the President disagreed. In the considered view of this court, the real danger of bias by the first respondent or the Court-Martial is unfounded. [48] Pertaining to the issue raised by the applicant relating of the number of members for a Court-Martial, reference could be made to subsection 105(1) of the Act which provides that the Court-Martial could contain at least three (3) members, one of which is the President. The Act envisages the appointment of officers on an even number, as evident from subsection 112(2) of the Act which reads: “In the case of an equality of votes on the finding, the court shall acquit the accused.” [49] Subsection 112(5) of the Act provides for a situation where the president is accorded with a second or casting vote in event of 18 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal equality of votes, but this excludes the finding of guilt. For ease of reference, subsection 112(5) of the Act is reproduced below: “In the case of an equality of votes on the sentence or on any question arising after the commencement of a trial, except the finding, the president shall have a second or casting vote.” [50] Founded on this provision, this court is of the considered view that there the arguments put forth by the applicant is without merit. Issues on the Charge - Defective [51] The applicant claimed that the charge proffered is defective in that the correct wording should be “fails to comply” (tidak mematuhi) instead of “contravenes” (melanggar) in view that the existence of drug substances in the applicant’s urine is a “consequence” and not an act. [52] In this regard, section 51 of the Act is reproduced as follows: “Disobedience to standing orders 51. (1) Every person subject to service law under this Act who contravenes or fails to comply with any provision of orders to which this section applies, being a provision known to him or which he might reasonably be expected to know, shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two years or any less punishment provided by this Act. (2) This section applies to standing orders or other routine orders of a continuing nature for any formation or unit or body of 19 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal troops, or for any command or other area, establishment, garrison or place, or for any ship, train or aircraft. (3) The standing orders or other routine orders described in subsection (2) may be- (a) made by; and (b) published in such manner as may be determined by, the Service Chief for each Service or any officer authorised by him.” [53] It is the considered view of this court that the elements required to be proved are: (i) there exists a Standing Order made by and published in such manner determined by the Service Chief or any officer authorised by him; (ii) the subject knows or ought to have known the existence of such Standing Order; and (iii) the subject contravenes of fails to comply with any provision of such Standing Order. [54] The elements which the Prosecution in the Court-Martial sought to established are: “(i) air kencing SDT adalah mengandungi dadah berbahaya jenis Methpethamine sepertimana dalam kertas pertuduhan; 20 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal (ii) wujudnya peraturan atau berkenaan perintah larangan penyalahgunaan dadah iaitu Perintah Tetap Rejimen TUDM Bahagian 2 Perintah Nombor 56; dan (iii) SDT mengetahui atau sepatutnya mengetahui tentang kewujudan tentang larangan berhubung dengan penyalahgunaan dadah.” [55] This court observes that the way the charge is proffered did not mention that the applicant had “contravened and/or failed to comply”. Instead the charge is limited to one only which is “contravened”. In the view of this court, the charge is not defective. It is clear as to the case the applicant is required to answer. Issues on the Charge – ultra vires Dangerous Drugs Act 1952 & Federal List [56] The applicant averred that the Standing Order was ultra vires Dangerous Drugs Act 1952 and Federal List of the Federal Constitution. The reason being none of the foregoing provisions empowered the Commanding Officer to create such a law. At this juncture, it is necessary to state that the applicant’s challenge is specifically on paragraph 3 of Order No. 56, Part 2 of the Standing Order which reads: “Seseorang yang didapati mempunyai kesan-kesan dadah berbahaya yang disenaraikan di Jadual Pertama kepada Akta Dadah Berbahaya 1952 (Akta 234) termasuk apa-apa pindaan dari masa ke semasa kepada perintah ini di dalam air kencing atau darahnya tanpa sebab-sebab atau justifikasi yang sah di sisi 21 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal undang-undang, orang itu adalah disifatkan telah tidak mematuhi dan/atau melangar perintah ini.” [57] In the view of this court, paragraph 3 provides in what situation one can be deemed to have contravened and/or failed to comply with the Standing Order. [58] Moreover, the Standing Order is issued in accordance with subsection 51(3) of the Act. The elements that the applicant needs to answer is still as per stated in subsection 51(3) of the Act. The applicant may need to explain why he has such substance in his body, but there is no legal requirement for the applicant to answer paragraph 3 in order to cast a doubt on subsection 51(3) of the Act. The duty of the applicant remains that he did not contravene the Standing Order. [59] The applicant also raised the issue on the manner of investigation under section 95 which is in contravention of Rules 33, 34 and 35 of P.U.(A)163/1976. This issue was not pleaded in the applicant’s statement and therefore this court will not consider this submission. Any issues raised must be pleaded in the Statement. [60] Counsel for the applicant also raised the issue of the Standing Order applicable to the applicant which was not produced before the Court-Martial. This issue was dealt with by the president in Court- Martial and the findings are reproduce below (page 213, Enclosure 18): “…No Salinan Perintah Tetap bukanlah satu isu yang besar memandangkan ianya dikeluarkan oleh Pegawai Memerintah yang sama …” 22 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal [61] Hence, for the abovesaid reasons, this court is of the view this ground does not have merit. Issues on Expert Evidence and Chain of Custody [62] The applicant raised the issues of admissibility of Expert Evidence and the break of chain of custody. With respect, this application is not an appeal against the findings and decisions of the Court- Martial. As mentioned earlier, the applicant is required to demonstrate and establish that the applicant’s rights have been infringed or that substantial injustice has occasioned. Failing which, this is not a proper forum to address any procedural matters of the Court-Martial and the president is the best candidate to evaluate the evidence available before the President. [63] This court has perused the learned President’s Ground of Judgement and the President did address her mind to both the issues above. The President found that the expert evidence is reliable and the chain of custody is intact. The Federal Court in Peter Chong Ngen Onn & Ors v. Colonel Adam Abu Bakar & Ors [1976] 1 LNS 93; [1977] 2 MLJ 142: “…This application really amounts to asking us to decide that the members of the Court-Martial were wrong in holding that they had been convened in accordance with the Rules of Procedure, but that is purely a matter of military law and procedure and not one to interfere with which this court has any jurisdiction.” 23 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal [64] Founded on the foregoing, this court is of the considered view it is not necessary to deal with the issues of admission of evidence and/or establishment of chain of custody, for the reason that the applicant merely raises a complain but fail to demonstrate what his substantial rights have been infringed. Issues on the learned President’s failure to consider rules 61, 62 and 63 of the P.U.(A)163/1976 [65] The applicant claimed that the learned President had failed to consider objections made pursuant to Rules 61, 62 and/or 63 of P.U.(A)163/1976. The Record of Proceedings indicate that the counsel did not raise any objection because the documents requested were not given. Hence, there was no objection at all. Even if this court is to consider if there is any illegality in the learned President’s refusal to issue summons under section 51 of the Criminal Procedure Code, this court is of the view it is a non-issue because neither section 95 of the Act nor Rules 61, 62 and/or 63 of P.U.(A)163/1976 entitles the applicant of any documents before being allowed to object. Issue on promulgation [66] For purposes of completeness, this court will explain is the issue of promulgation. The applicant claimed that he was not communicated of the confirmation of findings of the Court-Martial by his commanding officer. 24 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal [67] It is pertinent to note that the temporary attachment on the applicant has already been expired when the findings of the Court-Martial is confirmed on 29.11.2021. The Commanding Officer of the applicant is therefore, Brigadier-General Meor Ahmad Kamal Bin Meor Haji Termizi, of the Jugra Air Base. [68] Before this court, there is no evidence that the confirmation has been communicated to the applicant by Brigadier-General Meor Ahmad Kamal Bin Meor Haji Termizi. Brigadier-General Meor Ahmad Kamal Bin Meor Haji Termizi did not affirm any affidavit to that effect. [69] The applicant in his Statement did not plead the validity of findings in the absence of promulgation. The applicant merely stated that the finding of the Court-Martial is final upon it being confirmed by the confirming officer (paragraph 48), and at paragraph 49, the applicant merely stated he has to be informed of the confirmation. The applicant also did not cite the party which has dismissed him. In Leftenan Kolonel Hafiz (supra), the Court of Appeal found: “[37] There is a second reason to uphold the validity of the second appellant's decision. The statement did not allude to any ground to impugn the second appellant's decision. Worse still, no reference was made in the statement to reg. 61(1)(m) of the AFTSR … … By virtue of O. 53 r. 3(2) of the RC, the respondent is bound by the statement (which did not state any ground to invalidate the second appellant's decision, let alone refer to reg. 61(1)(m) of the AFTSR). Furthermore, the respondent did not apply 25 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal to court pursuant to O. 53 r. 7(1) of the RC to amend the statement so as to include any ground to impugn the second appellant's decision.” [70] The above case concerns the Decision of second appellant in dismissing the respondent. Although it refers to Regulation 61(1)(m), it is applicable to the case at hand as well. There is no reason or elaboration after the abovementioned paragraphs 48 and 49. Moreover, the applicant withdrew the prayers as to stay. It is therefore the view of this court that this issue ought to be dismissed. Conclusion [71] Founded on the foregoing, this court is satisfied there is no illegality, irrationality, procedural impropriety or disproportionality as per the grounds for judicial review as laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374. [72] This court therefore finds this application for judicial review without merit. Hence, this application is dismissed. Costs of RM5,000.00 to be paid, subject to allocator. Date: 21 March 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam 26 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel: For the Applicant: Muhammad Fairuz bin Ahmad Yusof, Norainzan binti Mustapa Tetuan Zalil, Fairuz & Associates Advocates & Solicitors No. 29-4, Jalan Tengku Ampuan Zabedah F9/F, Seksyen 9, 40100 Shah Alam, Selangor. zalilfairuzassociates@gmail.com +6 011 2164 3686 For the Respondent: Farah Shuhada binti Ramli Jabatan Peguam Negara Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya. pro@agc.gov.my +6 03 8872 2000 27 S/NBA-25-29-03/2022 GOjI2RWutUuunStgPE1TNA **Note : Serial number will be used to verify the originality of this document via eFILING portal