SHAHRUL IZUAN BIN MOHD ZIN 1. ) Suruhanjaya Perkhidmatan Awam Malaysia 2. ) Suruhanjaya Pencegahan Rasuah Malaysia (SPRM)

BA-25-100-12/2021 Kand. 39 06/07/2023 16:27:40 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN SEMAKAN KEHAKIMAN NO.: BA-25-100-12/2021 Dalam perkara mengenai keputusan Buang Kerja yang dikeluarkan oleh Setiausaha Suruhanjaya Perkhidmatan Awam Malaysia bertarikh 8.10.2021 melalui surat No. Ruj: SPA.(S)801212055549(18) yang diterima pada tarikh 25.10.2021; Dan Dalam perkara permohonan oleh SHAHRUL IZUAN BIN MOHD ZIN untuk mendapatkan suatu kebenaran / perintah certiorari dan mandamus; Dan Dalam perkara peraturan 28, 29, 33, Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993; Dan Dalam perkara mengenai Jadual 1, Akta Mahkamah Kehakiman 1964; Dan Dalam perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara 8, Perlembagaan Persekutuan. ANTARA SHAHRUL IZUAN BIN MOHD ZIN (No. K/P: 801212-05-5549) …PEMOHON DAN 1. SURUHANJAYA PERKHIDMATAN AWAM MALAYSIA 2. SURUHANJAYA PENCEGAH RASUAH MALAYSIA (SPRM) …RESPONDEN-RESPONDEN 1 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal JUDGMENT [1] This is a judicial review application by the applicant, Shahrul Izuan bin Mohd Zin pursuant to Order 53 of the Rules of Court 2012 (“ROC 2012”). The applicant is challenging the first respondent’s decision in imposing the punishment of dismissal against the applicant with effect from 27.9.2021. This decision was communicated via the first respondent’s letter dated 8.10.2021 (“first respondent’s decision”). Factual Background [2] The facts of this case are as derived from the documents filed by parties. [3] The applicant joined the public service in 2006. Prior to his dismissal, the applicant was an Investigating Officer of the second respondent. [4] On 15.6.2021, the applicant was charged at the Shah Alam Sessions Court with a charge under Section 28(1)(c) of the Malaysian Anti-Corruption Commission Act 2009 (Act 694) (“MACC Act”) read together with Section 16(a)(A) of the MACC Act and an alternative charge under Section 109 of the Penal Code read together with Section 417 of the Penal Code. [5] The first respondent had on 7.7.2021 issued an Order of Interdiction against the applicant pursuant to Regulation 28(4) and Regulation 44(1)(a) of the Public Officers (Conduct and Discipline) Regulations 1993 (“the 1993 Regulations”) with effect from 15.6.2021. 2 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal [6] On 5.8.2021, the applicant pleaded guilty to the alternative charge under Section 109 of the Penal Code read together with Section 417 of the Penal Code and he was convicted and sentenced with a fine of RM20,000.00 in default of which to two (2) month’s imprisonment. [7] The first respondent had on 22.9.2021 issued an Order of Suspension against the applicant pursuant to Regulation 28(6) and Regulation 45(1)(a) of the 1993 Regulations with effect from 5.8.2021. [8] On 8.10.2021, the first respondent issued a letter of disciplinary decision against the applicant where the first respondent imposed the punishment of dismissal against the applicant with effect from 27.9.2021. The said letter was received by the applicant on 25.10.2021. Grounds for Judicial Review [9] In support of the applicant’s application for judicial review, the applicant had put forth the following grounds: (i) the first respondent failed to state in the first respondent’s letter dated 8.10.2021, the regulation referred to or applied by the first respondent in imposing the punishment of dismissal against the applicant; (ii) the punishment of dismissal against the applicant is inappropriate and unreasonable because he was only convicted on the alternative charge which is not so serious so as to bring public service into disrepute; 3 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal (iii) the respondents failed to take into account the applicant’s period of service and contribution and that disciplinary action had never been taken against him before; and (iv) the applicant had no knowledge of the report and recommendation submitted by his Head of Department to the first respondent pursuant to Regulation 29(2) of the 1993 Regulations. Legal principles pertaining to judicial review [10] Order 53 of the Rules of Court 2012 provides for the procedures relating to an application for judicial review. [11] In the case of Harpers Trading (M) Sdn Bhd v National Union of Commercial Workers [1991] 1 MLJ 417: “It seems to us that it should be treated as trite law that judicial review is not an appeal from a decision but a review of the manner in which the decision was made and the High Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable.” [Emphasis added] [12] Michael Lee Fook Wah v Menteri Sumber Tenaga Manusia, Malaysia & Anor [1998] 1 MLJ 305 at p. 309 (Court of Appeal): “First and foremost, it must be emphasized that in an application for certiorari, the High Court is not sitting in its appellate jurisdiction but in its supervisory jurisdiction. The court is more concerned with the decision-making process and not the decision itself. The court should not readily question the 4 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal administrative decision of the first respondent as that is his absolute discretion.” [Emphasis added] [13] From the authorities quoted, it can be summarised that in an application for judicial review, the jurisdiction of the High Court is supervisory and not appellate. It is not an appeal from a decision but a review of the decision making process. The court is to consider the manner in which a decision was made and not whether the decision was fair and reasonable. Analysis and Findings [14] Founded on the legal principles relating to judicial review, this court will now consider this application for judicial review. [15] Regulations 29 and 33(1) of the 1993 Regulations govern disciplinary action against an officer who is convicted of a criminal offence. Regulation 29 of the 1993 Regulations reads as follows: “(1) Where criminal proceedings against an officer result in his conviction and he does not appeal against such conviction, or where his appeal against the conviction has been dismissed or where the Public Prosecutor’s appeal against his acquittal results in his conviction, his Head of Department shall immediately obtain a copy of the court’s decision from the Registrar, Deputy Registrar or Senior Assistant Registrar of the court by which he was convicted or his appeal is dismissed. (2) Upon receipt of the decision referred to in subregulation (1), the Head of Department shall forward it to the appropriate 5 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal Disciplinary Authority having jurisdiction to impose a punishment of dismissal or reduction in rank together with the officer’s records of service and the recommendation of the Head of Department that – (a) the officer should be dismissed or reduced in rank; (b) the officer should be punished with any punishment other than dismissal or reduction in rank; (c) the service of the officer should be terminated in the public interest; or (d) no punishment should be imposed, depending on the nature and seriousness of the offence committed in relation to the degree of disrepute which the conviction has brought to the public service.” [16] Regulations 33(1) of the 1993 Regulations provide: “(1) If, after considering the report, the records of service and the Head of Department’s recommendation forwarded to it under subregulation 29(2), the appropriate Disciplinary Authority is of the opinion that – (a) the officer should be dismissed or reduced in rank, the Disciplinary Authority shall impose the punishment of dismissal or reduction in rank, as it deems appropriate; (b) the offence of which the officer was convicted does not warrant a punishment of dismissal or reduction in rank but warrants the imposition of a lesser punishment, the Disciplinary Authority shall impose upon the officer any one or more of the punishments other than dismissal or reduction in rank as specified in regulation 38 as it deems appropriate; or 6 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) no punishment should be imposed on the officer, the Disciplinary Authority shall acquit him.” [17] Regulation 29 of the 1993 Regulations provides that for an officer who is convicted of a criminal offence, the disciplinary proceedings require the Head of Department to submit a report on the officer’s conviction, together with the officer’s records of service and the Head of Department’s recommendation on the punishment against the officer. The punishment imposed would depend on the nature and seriousness of the offence committed in relation to the degree of disrepute which the conviction has brought to the public service. [18] Regulation 33(1) of the 1993 Regulations requires the appropriate Disciplinary Authority to consider the report the records of service and the Head of Department’s recommendation and when deciding on the punishment against the officer. [19] The facts as may be extracted from the affidavits filed are that on 16.6.2021, the Chief Commissioner of the second respondent as the applicant’s Head of Department submitted a report under Regulation 28(3) of the 1993 Regulations to the first respondent as the appropriate Disciplinary Authority. [20] The report stated that the applicant was charged at the Shah Alam Sessions Court on 15.6.2021 with a charge under Section 28(1)(c) of the MACC Act read together with Section 16(a)(A) of the MACC Act and an alternative charge under Section 109 of the Penal Code read together with Section 417 of the Penal Code. [21] Consequentially, the Chief Commissioner of the second respondent then recommended that the applicant should be interdicted from duty under Regulation 44(1)(a) of the 1993 Regulations. 7 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal [22] On 5.7.2021, the first respondent considered the report and recommendation by the applicant’s Head of Department and decided that the applicant be interdicted from duty pursuant to Regulation 28(4) and Regulation 44(1)(a) of the 1993 Regulations with effect from 15.6.2021. The applicant was issued an order of interdiction dated 7.7.2021 by the first respondent. [23] On 10.9.2021, a report was submitted under Regulation 28(5) of the 1993 Regulations to the first respondent by the Chief Commissioner of the second respondent. [24] It was reported that the applicant pleaded guilty to the alternative charge under Section 109 of the Penal Code read together with Section 417 of the Penal Code and the applicant was convicted and sentenced with a fine of RM20,000.00 in default of which to two (2) month’s imprisonment. [25] On 21.9.2021, the first respondent considered the report and decided that the applicant be suspended from duty with effect from 5.8.2021. This was pursuant to Regulation 28(6) and Regulation 45(1)(a) of the 1993 Regulations. An Order of Suspension dated 22.9.2021 was then issued against the applicant. [26] On 22.9.2021, the Chief Commissioner of the second respondent submitted a report under Regulation 29(2) of the 1993 Regulations to the first respondent. [27] The Chief Commissioner of the second respondent reported that the applicant pleaded guilty to the alternative charge under Section 109 of the Penal Code read with Section 417 of the Penal Code and the applicant was convicted and sentenced with a fine of RM20,000.00 in default of which to two (2) month’s imprisonment; submitted the 8 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal applicant’s records of service; and recommended that the applicant should be dismissed or reduced in rank pursuant to Regulation 29(2)(a) of the 1993 Regulations. [28] The first respondent on 27.9.2021 considered the report, the applicant’s records of service and the recommendation by the applicant’s Head of Department and decided that pursuant to Regulation 33(1)(a) of the 1993 Regulations, the applicant would be imposed with the punishment of dismissal with effect from 27.9.2021. A letter of disciplinary decision dated 8.10.2021 was issued by the first respondent against the applicant. [29] The grounds argued by the applicant is that there is illegality when the first respondent failed to state in the first respondent’s letter dated 8.10.2021, the regulation referred to or applied by the first respondent in imposing the punishment of dismissal against the applicant. [30] What amounts to illegality has been elaborated in the House of Lords decision of Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 where Lord Diplock defined the ground of challenge as follows: “By ‘illegality’ as a ground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decision-making power must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.” [31] In this regard, this court made reference to Regulation 33(1)(a) of the 1993 Regulations which allows the first respondent to dismiss 9 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal the applicant from service due to his criminal conviction. Moreover, the first respondent’s letter dated 8.10.2021, stated that the applicant’s dismissal is due to his criminal conviction. [32] Reference was made to the Federal Court case of Subramanyam a/l Sannasy v SAC II Syed Alwi bin Syed Hamid & Anor [2010] 2 MLJ 597 and the case of Pengerusi Lembaga Tatatertib Polis Diraja Malaysia, Bukit Aman, Kuala Lumpur & Ors v Mohd Azuan bin Aniffa (Civil Appeal No: 01(f)-57-11/2015(W)). [33] From the facts of the case, it is clear that the applicant was made aware of his dismissal was due to his criminal conviction. Regulation 33(1)(a) of the 1993 Regulations which allows the first respondent to dismiss the applicant due to his criminal conviction. Based on the Regulation 33(1)(a) of the 1993 Regulations, and applied to the facts of this case, this court is satisfied there is no illegality. [34] The applicant further argued that there was irrationality which would warrant this court’s intervention. The grounds for irrationality are that the punishment of dismissal against him is inappropriate and unreasonable because the applicant was only convicted on the alternative charge which is not so serious so as to bring public service into disrepute; and that the respondents failed to take into account his period of service and contribution and that disciplinary action had never been taken against him before. [35] The respondents argued that the respondents are the best person to judge the seriousness of the offence committed by the applicant in relation to the degree of disrepute which the conviction has brought to the public service. The case cited in support of this contention is Ng Hock Cheng v Pengarah Am Penjara & Ors [1998] 1 MLJ 153. 10 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal [36] Both the second respondent and the first respondent are of the view that the applicant’s offence as per the alternative charge under Section 109 of the Penal Code read with Section 417 of the Penal Code is a serious offence and his conviction has brought the public service into disrepute, which justifies the punishment of dismissal imposed against him. [37] The ground of irrationality and unreasonableness is derived from the English Court of Appeal case of Associated Provincial Picture House Ltd v. Wednesbury Corp. [1948] 1 KB 223. Lord Greene Mr Stated: “It is true the discretion must be experienced reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently use as a general description of the things that must not be done. For instance, a person entrusted with discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said to be acting ‘unreasonably’.” [38] Pertaining to the applicant’s contention that the respondents failed to take into account his period of service and contribution and that disciplinary action had never been taken against him before, the second respondent had submitted the applicant’s records of service to first respondent for the first respondent’s consideration. Hence, founded on this fact, this court is of the considered view that the first 11 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal respondent’s had considered the applicant’s records of service in arriving to the first respondent’s decision. [39] With regard to the applicant’s contention that the alternative charge was no serious and hence should not warrant his dismissal from service, this court is minded that the applicant was an investigation officer with the second respondent. The second respondent is tasked to prevent corruption in the country. The image of an organisation tasked to prevent corruption is of the utmost importance. The personnel employed by the second respondent must have the highest level of integrity and ethics. A person who has been convicted of an offence, in the view of this court, should not be part of an organisation empowered to prevent corruption. It would bring disrepute to the second respondent. [40] This is court is therefore satisfied that the decision by the first respondent is not tainted in irrationality or unreasonableness. [41] The applicant contends that he had no knowledge of the report and recommendation submitted by his Head of Department to the first respondent pursuant to Regulation 29(2) of the 1993 Regulations. Due to this, the applicant contends that the first respondent’s decision is tainted with procedural impropriety. This relates to whether the applicant has a right to be heard prior to his dismissal. [42] Lord Diplock in Council of Civil Service Unions v Minister for Civil Service (supra) elaborated procedural impropriety as follows: “(iii) “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be effected by the decision – this is because susceptibility to judicial review under this head covers also the failure by the administrative tribunal to observe 12 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal procedural rules expressly laid down in the legislative instrument by which its jurisdiction is conferred even where the failure does not involve any denial of natural justice.” [43] Regulation 29(2) and Regulation 33(1) of the 1993 Regulations does not impose a legal duty on the respondents to give the applicant the report. In the Federal Court case of Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v. Mohd Noor Abdullah [2004] 2 CLJ 777 which stated: “Reading the provisions of the 1970 Regulations in its entirety, I see no requirement that entitles the respondent to be informed of the possibility of him being dismissed or reduced in rank in the event he is convicted of any of the charges preferred against him in either the show cause letter or prior to the start of the disciplinary enquiry. There is no provision imposing a similar obligation as that prescribed by reg. 28(1) of the 1993 Regulations. Since the 1970 Regulations impose no duty on the 1st Appellant to inform the respondent at the first opportunity of the likelihood of his dismissal or reduction in rank, the first appellant cannot be said to have deprived the respondent of any procedural fairness as there cannot be any breach of duty where none exists in law.” [44] Based on the case of Nordin Hj Zakaria (supra) and taking into consideration Regulation 29(2) and Regulation 33(1) of the 1993 Regulations, this court is satisfied there is no legal requirement for the respondents to give the applicant the report. Hence, this court finds there is no procedural impropriety. 13 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal Conclusion [45] For the abovementioned reasons, this court finds this application for judicial review is without merit. This court therefore dismisses this application for judicial review with no order as to costs. Date: 06 July 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam 14 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel: For The Applicant: Siti Rafidah binti Abdul Raof Tetuan Aswandi Hashim & Co. Advocates & Solicitors No. 77, Jalan Puyu 13, Taman Seri Belida 05150 Bandaraya Alor Setar, Kedah aswandihashimco@gmail.com +6 04 733 3777 For the Respondent: FC Mohammad Sallehuddin bin Md Ali Unit Perlembagaan dan Undang-Undang Pentadbiran, Bahagian Guaman, Jabatan Peguam Negara No. 45, Persiaran Perdana Presint 4, 62100 Putrajaya +6 03 8872 2000 15 S/NBA-25-100-12/2021 /iRbBbKek27shmk5JwRkg **Note : Serial number will be used to verify the originality of this document via eFILING portal