DAUD MAMAT & ORS v. MAJLIS AGAMA ISLAM/ADAT & ANOR HIGH COURT MALAYA, KOTA BHARU SURIYADI HALIM OMAR J [ORIGINATING SUMMONS NO: 24 – 319, 320, 321 & 322 – 2000] 25 FEBRUARY 2001: State List 2 Federal Constitutions – Syariah Court Jurisdictions

DAUD MAMAT & ORS v. MAJLIS AGAMA ISLAM/ADAT & ANOR
HIGH COURT MALAYA, KOTA BHARU
SURIYADI HALIM OMAR J
[ORIGINATING SUMMONS NO: 24 – 319, 320, 321 & 322 – 2000]
25 FEBRUARY 2001

[Application dismissed.]

JUDGMENT

Suriyadi Halim Omar J:

On 25 February 2001 I dismissed the above four originating summons. As the order when pronounced was in Malay, for practical purposes of the current judgment, I herewith reproduce the interpreted version:

Four separate originating summons were filed by Daud bin Mamat, Kamariah binti Ali, Mohamed bin Ya and Mad Yaacob bin Ismail (hereinafter referred to as the plaintiffs) at the Kota Bharu (Kelantan,) registry of the High Court of Malaya, praying for several declarations. Among them was the right to profess and practise their religion of choice. The premise of their prayers, inter alia, was Article 11(1) of the Federal Constitution. In brief they alleged that as they had apostatized, the Enakmen Majlis Agama Islam dan Adat Istiadat

Melayu Kelantan 1994 which provided the powers for the Syariah Court, to decide whether they had indeed left the religion of Islam, was thenceforth inapplicable to them.

The affidavits confirmed that the plaintiffs at the initial stages had been convicted and sentenced to jail for heresy. Appeals were filed but to no avail, except that the Religious Court of Appeal (Mahkamah Rayuan Syariah) had modified the sentences, in that the imprisonment orders were set aside. The Syariah High Court substituted the orders whereby under the varied orders they were required to appear at the Kadi’s office every month for three years, whereupon they were required to repent (melafazkan taubat). To cut the story short, the plaintiffs had failed to adhere to these new instructions, resulting in fresh charges being preferred against them (hereinafter referred to as the “first charges”). The matter culminated in their convictions and imprisonment.

This time the plaintiffs did not file any appeals.

On 12 November 2000, the plaintiffs informed the court that with effect from 16 August 1998, they had already apostatized. Founded upon this confession, they were charged for offences pursuant to section 102(3) of the Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994 (hereinafter referred to as the “second charges”). To date the second charges are still pending. To wind up this sub-issue, matters that are connected to section 102(2), among them substantive points of fact and law pertaining to the confirmation of their apostasy, therefore are still at large and premature.

That being so, as they had not appealed against the first charges, what with the second charges still pending, what then are their grievances or reasons to pray for the declarations before me? For certain there are none.

Apart from the above legal posers, notably on the ground that the plaintiffs have not been confirmed as having apostatized, in accordance with procedures laid down by the Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994, they thus are deemed to be Muslims and hence constitutionally and statutorily subject to the jurisdiction of the Syariah Court (section 102(2)). That being so, the High Court of Malaya will be powerless to adjudge on the matters brought by them (see Article 121 (1A) of the Federal Constitution).

Article 11, in brief reads that every person has the right to profess and practise his religion, and subject to Clause (4), to propagate it. Having scrutinized the facts and the latter Article, I am of the opinion that the allegation of their rights having been compromised or infringed, supposedly guaranteed by the Federal Constitution, had no nexus with Article 11. It was undisputed that the plaintiffs had voluntarily declared themselves as having left the Islamic faith. How could their constitutional rights to profess and practise their religion of choice have been compromised when their actions indicated otherwise? What was certain was that they did not wish to profess and practise the Muslim religion. The act of exiting from a religion is not a religion, and hence could not be equated with the right “to profess and practise” their religion.

On that score, the law alluded to by the plaintiffs was off the mark, and irrelevant to their grievances.

On the above grounds, and without any hesitation I hereby dismiss the originating summons with costs.

The backdrop of this decision originated from four originating summons, which were respectively filed by the above plaintiffs. As the prayers sought for were similar in nature, I decided to undertake some case management exercise, whereupon after having extricated the consent of all parties, I decided that all the four originating summons be dealt with simultaneously. As they were quite similar in every aspect, I decided to launch off with the case of Daud bin Mohamedie, OS No. 24-319-2000 as a test case, with the outcome being applicable on the rest.

In brief the eight prayers or declarations sought were that:

1.the plaintiffs had the constitutional right to profess and practise the religion of their choice under art. 11(1) of the Federal Constitution;

2.Article 11(1) holds sway over any other laws, be they Federal or State as regards the choice and practise of the religion;

3.the absolute right and freedom of the plaintiffs under the said article to profess and practise their religion of choice, could only be decided by themselves alone and not subject to the declaration or confirmation of anybody else, be they individual or otherwise;

4.any provision in the law, be they Federal or State, that does provide for the definition of a Muslim but does not recognize art. 11(1) of the Federal Constitution is void;

5.any law, be they Federal or State pertaining to the religion of Islam will be inapplicable to the plaintiffs, as they had declared their apostasy and hence protected by art. 11(1);

6.any law that empowers the Syariah court to decide whether they had left the religion of Islam or not, or requires a declaration from such court as a precondition before they are considered as having left the religion of Islam, contravenes art. 11(1) of the Federal Constitution;

7.any provision in the law, be they Federal or State that restricts or prevents the right of the plaintiffs to declare themselves not wanting to profess, and practise the religion of Islam contravenes the said article, and hence void; and

8.pursuant to the above anticipated declaratory orders, the defendants or their agents are not entitled to demand or impose any conditions before they are considered as having left the religion of Islam.

Having perused the eight declaratory orders sought, it was clear that the crux of the whole matter relate primarily to their right of professing and practising the religion of their choice. The summons distinctly adverted to s. 41 of the Specific Relief Act 1950and O. 15 r. 16 of the Rules of the High Court 1980. The former reads:

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief.

Order 15 r. 16 of the Rules of the High Court 1980reads:

No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right, whether or not consequential relief is or could be claimed.

It is my considered opinion that the question of whether the declaration applications should be entertained or not, depends largely on the answers to these questions, viz. whether:

1. the plaintiffs or the matter affecting the rights of the plaintiffs fall within

the jurisdiction of the High Court of Malaya or the Syariah Court;

2. Article 11(1) of the Federal Constitution, adverted to is applicable in the circumstances of the case; and

3. whether in the circumstances of the case, even though the Court has the discretionary powers pursuant to the above section 41 of the Specific Relief Act 1950, the declaratory orders sought ought to be entertained?

To answer the above questions, it is necessary for me to trace the history and the actions of Parliament, which eventually culminated in the amendment of parts of the Federal Constitution. In Ramah bte Taat v. Laton bte Malim Sutan[1927] 6 FMSLR 128, Thorne J had occasion to say:

Although I have held that the Supreme Court has jurisdiction to deal with such cases as the present, the further question emerges as to whether or not the Supreme Court is the proper tribunal for dealing with these cases and whether it would not be more consonant with the views of those professing the Mohammedan Religion that His Highness the Sultan in Council in each state should establish special courts for dealing with these cases …

Come A 704 of 1988, effective on 10 June 1988, the promulgation of art. 121(1A) of the Federal Constitution, ousted the High Courts in Malaya and Sabah and Sarawak, over matters which fall within the jurisdiction of the Syariah courts. There is no shortage of cases that have acquiesced to this provision, among them Dalip Kaur v. Pegawai Polis Daerah, Bali Polis Daerah, Bukit Mertajam & Anor[1991] 3 CLJ 2768; [1991] 1 CLJ 77 (Rep). Under List 11-State List (art. 74; 95B(1)(a)), the Federal Constitution has succinctly delineated the powers of the Syariah court, in short over persons professing the religion of Islam. The Supreme Court in Mohamed Habibullah Mahmood v. Faridah Dato’ Talib[1993] 1 CLJ 264clearly established that:

The intention of Parliament by Art. 121(1A) of the Federal Constitutionis to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court.

The legislation of art. 4 of the Constitution, which entrenches the supreme position of the Federal Constitution, merely reconfirmed the lofty position of the above art. 121(1A). With the latter article in existence any jurisdictional conflicts, once and for all, between the civil and the Syariah Courts is avoided. Taking the matter a step further and from a different perspective, the religious court’s power, in the same vein similarly cannot be invoked against non- Muslims (see Ng Siew Pian v. Abd Wahid Abu Hassan, Kadi Daerah Bukit Mertajam & Anor[1993] 1 CLJ 391).

Before delving into the technical matters, I need to resolve a procedural or “the sufficiency of interest” factor first. That being so, a perusal of the facts becomes exceedingly necessary. The affidavits clearly revealed that they are of Kelantanese descent, of Malay parentage, and had been born into the faith of Islam. In fact, the supporting affidavits of the plaintiffs had reiterated that they had been brought up within the environment and disciplines of Islam, and had always professed and practised the religion of Islam. The plaintiffs admitted that they had been dragged before the Syariah High Court of Kelantan, to face the charges of having carried out acts and practices that were in contravention of the Islamic law. They were found guilty under s. 69 of the Undang-Undang Majlis Ugama Islam Kelantan Dan Adat Istiadat Melayu bil. 2/66, and were sentenced to 20 months imprisonment each.

Pursuant to the convictions and sentences, they filed the relevant appeals but were unsuccessful, as in 1996 the Mahkamah Syariah Kelantan confirmed the convictions. Only the imprisonment sentences were disturbed. In substitution of those incarceration orders, they were thenceforth required to appear at the Kadi’s office every month for three years, whereupon they were to declare their regrets in line with Islamic tenets. Unfortunately, after sometime they failed to appear at that office, alleging that the text of the “taubat” (regret) declarations were yet to be ready for them to utter. For those breaches, charges (referred to as the “first charges”) were preferred against them. Pending the hearing of the latter charges they were released. Taking advantage of their unimpeded movement, the plaintiffs swore under oath on 24 August 1998 that with effect from 16 August 1998, they had apostatized. On 5 October 2000 they were remanded pursuant to s. 132(5) Enakmen Prosedur Jenayah Syariah 1983, for non-adherence of certain instructions during the intervening period of the first charges. One month and seven days later ie, on 12 November 2000 when their cases were being mentioned, the plaintiffs informed the court that they had already renounced their Islamic faith. In spite of having being informed of that development, the court still ordered their detention, whereupon much to their chagrin on 19 November 2000 they faced new additional charges of apostasy (referred to as the second charges). On that date too, the court dealt with the first charges, resulting in the plaintiffs being sentenced to three years jail each pursuant to s. 69 of the Enakmen Majlis Ugama Dan Adat Istiadat Melayu Kelantan 1966, for contravening the Syariah Appeal Court orders. There were no appeals filed as against those conviction and imprisonment orders. No explanation either was proffered in their affidavits as to why none were filed. Until now too the second charges are yet to be heard. Those are the relevant facts for my consideration for purposes of this judgment.

A reading of the originating summons revealed that they lacked actual “grievances” upon which to found the declaration applications. It would have been improbable that the grievances could have been connected to the conviction and imprisonment orders of 19 November 2000 (first charges), as no appeals were filed against them. This takes care of the alternative remedy factor (Kuluwante v. Government of Malaysia & Anor[1977] 1 LNS 49; [1978] 1 MLJ 92). Similarly, the second charges could not have been the basis either, as those charges were and are still awaiting trial. To advert to the second charges would be unacceptably premature. Why no clear reasons were supplied, or whether the plaintiffs had mistakenly deduced at the material time that once they had renounced their faith, they would automatically be non-Muslims, is not for the court to speculate on. Based on the available facts, I miserably failed to pinpoint the plaintiffs’ discernable reasons for the declaratory actions. If that were so the plaintiffs have simply prayed for a declaration of a mere legal right (Pedley v. Majlis Ugama Islam Pulau Pinang & Anor[1990] 2 CLJ 391; [1990] 2 CLJ 24 (Rep)). Regardless of that factual reality, in that the plaintiffs are not clothed with any real grievance, as reflected in its dearth in the originating summons, recent cases have shown that courts are still willing to entertain actions that do not reveal real grievances or injury in them. Abdoolcader J, delivering the decision of the Federal Court in Tan Sri Othman Saat v. Mohamed Ismail[1982] 1 LNS 2; [1982] 2 MLJ 177, had occasion to say:

There are also some recent cases in which the plaintiff was allowed to sue, even though he had no real grievance or injury at all, as they involved matters of particular public concern (Blackburn v. Attorney-General; Regina v. Greater London Council, Ex parte Blackburn; Regina v. Metropolitan Police Commissioner, Ex parte Blackburn, and the reasoning seems to have been that unless the court in its discretion gave the plaintiff a hearing, then no one would bring the matter to court.

We would also refer to the very recent decision of the English Court of Appeal inRegina v. Horsham Justies, Ex parte Farquharson and Anorwhere Lord Denning, M.R., refers (at p. 446) to the principle he had endeavored to state in earlier cases which was endorsed by Lord Diplock in the House of Lords in Inland Revenue Commissions v. National Federation of Self-Employed and Small Businesses Ltd.(at p. 737) and again when he said (at p. 740):

it would, in my view, be a grave lacuna in our system of public law if a pressure group, like the Federation, or even a single public-spirited taxpayers, be prevented by outdated technical rules of locus standifrom bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.

The sensible approach in the matter of locus standiin injunctions and declarations would be that as a matter of jurisdiction, an assertion of an infringement of a contractual or a proprietary right, the commission of a tort, a statutory right or the breach of a statute which affects the plaintiff’s interest substantially or where the plaintiff has some genuine interest in having his legal position declared, even though he could get no other relief, should suffice.

The above liberal approach, unfortunately was not favoured by Abdul Hamid CJ in Government of Malaysia v. Lim Kit Siang[1988] 1 CLJ 219; [1988] 1 CLJ 63 (Rep), as at p. 240 His Lordship opined:

In any event, as I have already noted, I would prefer the test of standing propounded by their Lordships in the Gourietcase, that is to say, the same standing rules apply whether the remedy sought is a declaration or an injunction. And, either the plaintiff’s “rights” must be at stake, or when, as in the present case, the matter does not concern private rights, the plaintiff must suffer or about to suffer damage peculiar to himself … Speaking for myself, I would hesitate to say that a mere “legitimate grievance” or a “real interest” in the suit will suffice to show standing to sue.

Be that as it may, I would say that the decision in Tan Sri Haji Othman Saat‘s case was correct having regard to the facts of that particular case.

Regardless of whether I pursue the liberal approach of being satisfied based merely on the plaintiffs’ legitimate or real interest, or acquiescing to the more stringent requirement of the plaintiffs private rights actually having been infringed, as canvassed by the case of Gouriet v. Union of Post Office Workers and Others[1977] 3 All ER 70 (followed by Abdul Hamid CJ), it will not save the plaintiffs’ case. This is because, the relevant question that really needs to be answered beforehand, for purposes of this case, is whether at the time of filing the originating summons the plaintiffs were Muslims or not? This is a question of fact and law. As they had alleged that they had renounced their Muslim faith, from their point of view they had expected themselves to be safely outside the ambit of the Syariah Court and the relevant religious Enactments. To answer this pertinent question of their religious status, an appreciation of the relevant laws, read together with the above facts, is unavoidable.

As the facts have already been bared above, and to avoid repetition, I now need only to unfold the relevant statutory law of apostasy in Kelantan, ie, the Enakmen Majlis Agama Islam Dan Adat Istiadat Melayu Kelantan 1994, with particular reference to s. 102(1). Why I approach the matter from the point of view of the State Enactment, is because the Federal Court in Soon Singh Bikar Singh v. Pertubuhan Kebajikan Islam Malaysia (perkim) Kedah & Anor[1999] 2 CLJ 5, in no uncertain terms held that (Per Mohamed Dzaiddin FCJ (as His lordship then was), the correct approach in the face of a challenge to jurisdiction, is to look at the State Enactments to see whether or not the Syariah Courts have been expressly conferred jurisdiction on a given matter. This said s. 102(1) provides for a finding of fact exercise, for purposes of ascertaining whether a Muslim respondent, and in this case the plaintiffs have indeed apostatised. The State Legislature in their infinite wisdom, perhaps to ensure that the exercise of ascertainment will not be prematurely defeated, had seen it fit to legislate s. 102(2). In brief it provides that a person is still deemed a Muslim until confirmed by the Syariah court as having apostatized. In an awkward way, the matter of apostasy has been dealt with by an Enactment in Kelantan, as per the above Enakmen Majlis Agama Islam Dan Adat Istiadat Melayu Kelantan 1994. In recognition of this, Mohamed Dzaiddin FCJ in Soon Singh Bikar Singh (supra)commented the following:

The Kelantan Enactment No. 4 of 1994, s. 102 also provides that no person who has confessed that he is a Muslim by religion may declare that he is no longer a Muslim until a court has given its approval to that effect.

Before the court gives its approval, the person shall be presumed to be a Muslim and any matter which is connected with the Religion of Islam shall be applied to him.

These provisions and the spirit behind them certainly are in line with the teachings and tenets of Islam, as the Koran is quite explicit in that if one is forced to pronounce something that amounts to apostasy, while his heart remains a Muslim, he will not be charged with it in those circumstances (Quran, ch. 16: 106). Returning to the current facts, as the plaintiffs are yet to be found guilty of the second charges of apostasy, what with the deeming provision available, for all intents and purposes I have to conclude that they still are Muslims.

The down to earth legal requirement of imposing a duty upon the Syariah Court to ascertain, and not by any other person or institution, of whether a person had indeed apostatized is not only sound but practical. The jurists in the Syariah Court, apart from being conversant with religious matters, will also be in a more elevated position to make a sound judgment of the status of any would-be apostate, bearing in mind their constant interaction with the Muslim populace. If they are legally qualified that will be a plus factor. Pertaining to this matter Mohamad Yusof SCJ in Dalip Kaur (supra)had occasion to remark:

Such a serious issue would, to my mind need consideration by eminent jurists who are properly qualified in the field of the Islamic Jurisprudence.

On this view, it is imperative that the determination of the question in issue requires substantial consideration of the Islamic law by relevant jurists qualified to do so. The only forum qualified to do so is the syariah court.

Indisputably, as the issues before me do not involve matters of interpretation of the written law of the State of Kelantan, enacted for the administration of Muslim law, of which are still within my jurisdictional purview, then by virtue of art. 121(1A)of the Federal Constitution, my powers are curtailed. That being so, the plaintiffs being legally Muslims will still remain within the jurisdiction of the Syariah court, and thus outside my jurisdictional purview.

Apart from the above jurisdictional flaw, which could not support their applications, the plaintiffs have unwittingly alluded to art. 11(1) of the Federal Constitutionas the main ground of their grouses. This provision reads that every person has the right to profess and practise his religion and, subject to cl. (4), to propagate it. This brief but meaningful article in crystal clear terms guarantees the right and freedom of every citizen, of whatever race or religion to profess and practise his or her beliefs unhindered. Having appreciated the above article, my next course of action is to gauge whether, any individual or institution in this country had infringed the constitutionally guaranteed religious rights of the plaintiffs in any way. After perusing the affidavits, I could not escape the conclusion that the issue of the plaintiffs having been prevented from practising their religion of choice, really did not exist here. In fact the complaints actually revolved around the issue of their right to apostate. It was undisputed that the plaintiffs had voluntarily declared themselves as having left the Islamic faith. How could their constitutional rights to profess and practise their supposed religion of choice have been compromised or infringed, when their actions indicated otherwise? The act of exiting from a religion is certainly not a religion, or could be equated with the right “to profess and practise” their religion. To seriously accept that exiting from a religion may be equated to the latter two interpretations, would stretch the scope of art. 11(1) to ridiculous heights, and rebel against the canon of construction. On that score I reject the contention of the plaintiffs that their rights pursuant to art. 11(1) had been infringed.

Needless to say if art. 11(1) were to read, inter alia, that “everyone has the right to renounce or profess and practise his religion, and subject to cl. (4), to propagate it”, my conclusion would certainly be steered towards a different course. As it were, as the impugn article does not contain that additional hypothetical ingredient, the plaintiffs’ action to resort to that article is surely misdirected and misconceived.

After due consideration, primarily on the two intertwined grounds that the plaintiffs are Muslims, thus ousting my jurisdiction over them as regards the subject-matters, and what with art. 11(1) being inapplicable in the circumstances of the case, I had no hesitation in dismissing the originating summons with costs.

LEE EWE POH v. DR LIM TEIK MAN & ANOR HIGH COURT MALAYA, PULAU PINANG CHEW SOO HO JC [CIVIL SUIT NO: 22-170-2007] 2 SEPTEMBER 2010: Invasion Of Privacy

LEE EWE POH v. DR LIM TEIK MAN & ANOR
HIGH COURT MALAYA, PULAU PINANG
CHEW SOO HO JC
[CIVIL SUIT NO: 22-170-2007]
2 SEPTEMBER 2010

 

JUDGMENT

 

Chew Soo Ho JC:

 

[1] Plaintiff, a freelance writer was suffering from haemorrhoids or piles and had on 20 December 2006 consulted the 1st defendant who is a General and Colorectal Surgeon practising in Loh Guan Lye Specialist Centre (hereinafter referred to as ‘the Specialist Centre’) owned and operated by the 2nd defendant. Plaintiff was admitted to the Specialist Centre and a procedure known as Stapler Haemorrhoidectomy was performed by the 1st defendant with the result that plaintiff’s haemorrhoids was successfully removed. She was discharged on 22 December 2006. On 27 December 2006, when plaintiff called the Specialist Centre to inquire about what had exactly happened during the procedure, she was shock to learn from the nurse that the 1st defendant had taken photographs of her private part during the procedure. Plaintiff was outraged as photography was not in the agenda of the procedure and she was not duly informed. She claimed a violation of privacy and/or dignity by the 1st defendant since she was never asked for and she did not give her consent for the 1st defendant to photograph her privacy when she was under anaesthesia. She prayed for an injunction to restrain the defendants from publishing, disseminating etc of the said photographs taken by the 1st defendant, damages, interest and costs.

 

[2] 1st defendant admitted that he had taken two photographs of the anus of the plaintiff while she was under sedation ie, one photograph before the Stapler Haemorrhoidectomy and one after the said procedure. He contended that what he did was in accordance with accepted medical practice and he did not disseminate the two photographs but kept them as his medical records to facilitate easy explanation to the patient after the performance of the aforesaid procedure.

 

The Issues

 

[3] From the submissions of all parties in this case, the issues raised that called for determination can be deduced as follows:

 

(a) Whether plaintiff’s cause of action for violation or invasion of privacy rights is actionable under the law of tort;

(b) Whether it is an acceptable medical practice for photographs to be taken in the course of surgical procedure and whether the 1st defendant is entitled to take the two photographs showing the anus of the plaintiff without her prior knowledge and consent; and

(c) Whether plaintiff is entitled to aggravated and/or exemplary damages in the event her claim is allowed.

 

Evaluation & Findings

 

1st Issue: Whether Plaintiff’s Cause Of Action For Violation Or Invasion Of Her Privacy Rights Is Actionable Under The Law Of Tort

 

[4] There is no dispute that the plaintiff and the 1st defendant had a doctor-patient relationship. Indeed, the duty of care owned by a doctor arises out of his relationship with his patient. Without the doctor and patient relationship, there is no duty on the part of the doctor to diagnose, advise and treat his patient; see Foo Fio Na v. Dr Soo Fook Mun & Anor [2007] 1 CLJ 229. 1st defendant contended that invasion of privacy rights is not a recognized breach in tort under the English common law and hence it is also not an actionable tort in Malaysia pursuant to s. 3 of the Civil Law Act 1956. Learned counsel for the 1st defendant refers to Clerk & Lindsell on Torts, 18th edn, 2000 p. 19 para 1-34 which says that “privacy remains an interest unprotected by the English law of torts. However gross the invasion of the claimant’s privacy, that violation of privacy is not itself a tort … It would not be overlooked that violation of privacy can amount to violation of some other interest protected in tort. This may range from trespass to land to injury to health resulting repeated incursions of privacy or breach of confidence …” Therefore learned counsel for the 1st defendant submitted that plaintiff must establish that there was a breach of confidence or trust by the 1st defendant resulting in the invasion of the plaintiff’s privacy rights. To be able to succeed in such claim, three requirements must be satisfied ie, the information must have the necessary quality of confidence about it, the information must have been imparted in circumstances importing an obligation of confidence and there must be an unauthorized use or disclosure of that information. He cited in support Clerk & Lindshall on Torts at p. 1518 para 27 – 03 and Murray v. Yorkshire Fund Managers Ltd [1998] 1 WLR 951. It was also submitted that so long as the confider’s identity is protected, the confidence is not breached referring to Regina v. Department of Health Ex-parte Source informatics Ltd [2001] QB 424 at 440 and Medical Negligence by Michael A Jones 2003 p. 173 at para 2-169. Since there is no evidence that the 1st defendant had disseminated the two paragraphs to any third parties or that he had made unauthorized use of the said photographs, learned counsel for the 1st defendant submitted that the 1st defendant was not in breach of any confidence or trust. It was further submitted that the 1st defendant being the treating doctor who had already seen the plaintiff’s private part whilst undertaking the procedure cannot be said to have violated the plaintiff’s privacy and that the moment the plaintiff had submitted herself to the 1st defendant to conduct the procedure, there is no longer any right of privacy available to the plaintiff.

 

[5] Learned counsel for the 2nd defendant similarly submitted that a claim on an infringement, invasion or violation of privacy is not a recognized tort or a course of action in Malaysia citing the case of Ultra Dimension Sdn Bhd v. Kook Wei Kuan [2004] 5 CLJ 285 and Lew Cher Phow @ Lew Cha Paw & Ors lwn. Pua Yong Yong & Satu Lagi [2009] 1 LNS 1256 Johor Bahru High Court Civil Suit No. MT 4-22-510-2007. It was contended that the photographs taken were taken in a clinical environment and intended for the plaintiff’s medical record; there was no publication. Plaintiff’s identity was also not known in these paragraphs.

 

[6] Plaintiff’s counsel submitted on the other hand that the old school of thought does not recognize the invasion of privacy as an actionable tort. He relied however on our Court of Appeal’s case of Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653 to contend that our Court of Appeal has recognized and affirmed invasion of privacy as a cause of action.

 

[7] In Maslinda Ishak‘s case, His Lordship Suriyadi Halim Omar JCA, in delivering the judgment of the Court of Appeal has said at p. 657 as follows:

 

[4] It was pleaded that at about 11.30pm on 21 March 2003 the appellant was arrested at the Kelab De Vegas at Jalan Imbi, Kuala Lumpur in a joint operation by officers of the 2nd and 3rd respondents. The appellant together with some other persons arrested, were then put into a truck and driven off to Taman Maluri, Cheras. Enroute the appellant had requested from officers of the 2nd and 3rd respondents permission to use the toilet facilities but was disallowed. Instead she was scolded and told to urinate in the truck. As she was in quite a state, she asked her friends to shield her by encircling her with a shawl, in order to ease herself. At that particular moment, the 1st defendant suddenly opened the door of the truck, rushed in, pulled down the shawl and proceeded to take numerous photos of the appellant in a squatting position urinating. As a result, the appellant was thoroughly humiliated with the whole incident, which was within the view of everyone in the truck.

[5] There was abundance of evidence as regards this invasion of privacy, amongst others, his subsequent prosecution for a charge under s. 509 of the Penal Code under arrest case C83-494-2003. He pleaded guilty and was convicted of it. He was accordingly sentenced to four months jail vide, with the sentence confirmed by the High Court vide a revision. In fact, this issue of the invasion of privacy was never under challenge.

[6] To return to the pleadings, the appellant pleaded that her privacy had been invaded, resulting in her humiliation, trauma and serious mental anguish. She wanted general, aggravated and exemplary damages in the sum of RM5,000,000.00 interest and costs from the first defendant and the respondents. She pleaded that the officers of the 2nd and 3rd respondents at the material time, had negligently failed to protect her well-being, by allowing the first defendant to snap those photographs. To reiterate, at the end of the trial, the learned judge found for the appellant only as regards the first defendant, but not the rest of the respondents. Neither did the first defendant nor the respondents appeal against that decision.

 

[8] The learned trial judge found for Maslinda Ishak against the 1st defendant but not against the other respondents for whom she appealed. The Court of Appeal allowed her appeal and held the respondents to be jointly and severally liable for the wrongful act of their agent as well as vicariously liable. Although Maslinda Ishak‘s case is not directly on point, the fact remains that the High Court in so finding has departed from the old English law that invasion of privacy is not an actionable tort and our Court of Appeal indirectly, though this issue was not canvassed, seems to endorse such cause of action when the pleadings were specifically referred to and CA did not overrule invasion of privacy as a cause of action on ground that it is not one in line with the English law. Since such a cause of action has been accepted as a cause of action under our common law, it is thus permissible for a plaintiff to found his/her action on it. Drawing an analogy of this Court of Appeal case, I am inclined to hold the view that since our courts especially the Court of Appeal have accepted such an act to be a cause of action, it is thus actionable. The privacy right of a female in relation to her modesty, decency and dignity in the context of the high moral value existing in our society is her fundamental right in sustaining that high morality that is demanded of her and it ought to be entrenched. Hence, it is just right that our law should be sensitive to such rights. In the circumstances, plaintiff in the instant case ought to be allowed to maintain such claim.

 

[9] On the 1st defendant’s submission of the cause of action for breach of confidence or trust which is the available cause of action in tort which plaintiff could proceed on provided that the three requirements for liability as stated in para 27-02 at p. 1518 in Clerk & Lindsell on Torts which has been cited above are satisfied, I shall consider these requirements in the light of the evidence in this case. On the first requirement that the information must have the necessary quality of confidence about it (per Lord Greene MR in Saltman Engineering Co Ltd v. Campbell Engineering Co Ltd [1948] 65 RPC 203 at 215), I find that the photographs taken showing the intimate part of the plaintiff’s anatomy being her private part and/or anus ought to be reasonably inferred as information having the necessary quality of confidence as it involves the modesty, decency and dignity of a woman. The quality of confidence can be easily and reasonably inferred. Secondly, when the 1st defendant took the photographs in circumstances when the plaintiff was under anaesthesia, 1st defendant was under an obligation to maintain confidence of that information on the general duty of the doctor arising from the doctor-patient relationship that no information of a patient’s medical information is to be disclosed without the express consent of the patient. The doctor is certainly obligated and duty bound to maintain strict confidence of those photographs or information which he had acquired in circumstances where he had not obtained the consent of the patient. I find this 2nd requirement of obligation of confidence on the part of the doctor to have been satisfied. Thirdly, there must be an unauthorized use or disclosure of that information. There is no doubt that there is no direct evidence of the dissemination of the photographs taken of the plaintiff by the 1st defendant. However, evidence of the plaintiff showed that it was upon contacting the Hospital and speaking to the nurse that she was told that the photographs of her private part and/or anus were taken during the procedure when she was under anaesthesia. This information provided to the plaintiff at first glance would seem to be hearsay evidence without the nurse being called as a witness. However, when the plaintiff confronted the 1st defendant with what she was told by the nurse, the fact that 1st defendant had taken photographs of the anus of the plaintiff as narrated by the nurse was confirmed. Thus, what the plaintiff had been told by the nurse of the Hospital becomes a fact upon the admission by the 1st defendant and such evidence is therefore no longer hearsay. When the nurse of the Hospital was able to know of the confidential information ie, the photographs taken showing the private part and/or anus of the plaintiff, in the absence of any evidence of rebuttal or to the contrary, the reasonable inference is that there must have been disclosure or publication of that information. In the circumstances, I find that even if this court were to err to hold the view that invasion of privacy rights is actionable under our common law, plaintiff can still come within the cause of action of breach of trust or confidence for having satisfied the three requirements for liability under this cause of action in tort.

 

2nd Issue: Whether It Is An Acceptable Medical Practice For Photographs To Be Taken In The Course Of Surgical Procedure And Whether The 1st Defendant Is Entitled To Take The 2 Photographs Showing The Anus Of The Plaintiff Without Her Prior Knowledge And Consent

 

[10] The 1st defendant had produced the memory card of his digital camera which he used to take two photographs showing the anus of the plaintiff ie, one taken before the procedure and 1 after. The two photographs were shown to court and all counsel during this trial using the digital camera of the 1st defendant. All other contents in the said memory card were deleted by the 1st defendant leaving only these two images showing the anus of the plaintiff. Hence the admitted fact is that 1st defendant had taken two photographs of the anus of the plaintiff. 1st defendant’s contention is that it is an acceptable practice for doctors or surgeons to take photographs during procedure as it would be useful to explain the procedure and outcome to the patient. In other words photographs will facilitate surgeon’s explanation of the procedure and its result with ease. 1st defendant contended that the taking of photographs during the course of the procedure without the consent of the patient is an acceptable practice relying on the evidence of Dr Akhtar Qureshi (DW3), a Consultant General and Colorectal Surgeon practising at Sunway Medical Centre, Petaling Jaya, and medical literature titled ‘Clinicians taking pictures – a survey of current practice in emergency departments and proposed recommendations of best practice‘ by P Bhangoo, IK Maconochie, N Batrick, E Henry (exh. D4) published in Emergency Medical Journal 2005; 22; 761 – 765). It is worthwhile to reproduce p. 763 of the said Emergency Medical Journal on the issue of ‘consent’ which states:

 

1. Consent

Image taken for clinical purposes form part of patient’s health record. Consent to x rays and ultrasound investigations are given implicitly by the patient undergoing those procedures. Similarly, by presenting for treatment and investigation, the patient enters into a tacit agreement to documentation, which includes images as well as written information.

An image taken for the purpose of treating a patient must not be used for any other purpose without express consent. However, if such an image is subsequently to be published, or used for educational research, written consent must be sought for that specific purpose. Consent is not required when the image taken for treatment or assessment does not allow the patient to be recognized; in this case, the image can be used for educational or research purposes, with the caveat that “express consent must be sought for any form of publication”. When making a judgment about whether the patient may be identifiable, one should bear in mind that apparently insignificant features may still be capable of identifying the patient to others. As it is difficult to be absolutely certain that a patient will not be identifiable, clinical photographs should not be published or used in any form to which the public may have access without the consent of the patient.

If the patient is unable to give consent when the image is taken – for example, he or she is unconscious – then the image cannot be used until the patient has the capacity to give consent. Permission may be given by the immediate family if the patient is likely to be permanently incapacitated. Young people aged 16 years or over are assumed to be competent to give consent; under this age, Gillick competency (the level of competence of an individual in decision making referred to in Gillick v. Norfolk & Wisbech Area Health Authority) to give consent may have to be determined.

It must be explained when obtaining consent that once the image is in the public domain, it is difficult to control its future use and it may not be possible to withdraw the image. Latest General Medical Council guidelines, published in April 2004, detail all aspects of patient confidentially and consent procedures.

 

[11] From the above extract, I presume 1st defendant is relying on the sentence that “consent is not required when the image taken for treatment or assessment does not allow the patient to be recognized.” Nevertheless, there is expressed caveat that “express consent must be sought for any form of publication” and if the patient is unable to give consent when the image is taken – for example, he or she is unconscious – then the image cannot be used until the patient has the capacity to give consent.” Consent is indeed significant and it is so reflected by the learned authors in the same article when they made the recommendations at p. 764, which the 1st defendant seems to ignore whether deliberately or otherwise, as follows:

 

Consent procedures should be followed by those involved with obtaining clinical images, as this will protect the clinician and patient from misuse or misunderstanding about the intended use of the image.

Although consent is not required for an annonymized image to be used for educational purposes it is common courtesy to explain how the image will be used, particularly as it may come into the public domain.

Although the image that is solely to be used for treatment/clinical purposes does not require written consent, the existence of a written statement for consent stating the use of the material would help protect the patient and clinician in the event of litigation.

Ideally written consent should include:

1. An explanation of the need for and purpose of such documentation.

2. That the images will form part of their confidential health records.

3. These images may be used for research or educational purposes, or both.

4. The name and signature of the medical practitioner and consultant.

If consent for clinical purposes only has been given then it must be clearly recorded as such.

 

[12] Quite vividly, from the recommendation of the learned authors, written consent is preferred in relation to obtaining of clinical images. Even for an annonymized image to be used for educational purposes, the clinician will still have to explain to the patient how the image will be used. The recommendation above expresses that written consent is to be obtained ideally in particular that the written consent should include an explanation of the need for and purpose of such documentation, or that the images will form part of their confidential health records which are relevant in the present case. The learned authors indeed indirectly endorsed the fact that the old practice is not proper and recommended the change to have written consent when images of patient are to be taken by clinicians. There is certainly no question of tacit consent being recommended to avert written consent being obtained in advance from the patient before images are taken. Basically, the tacit consent referred to in the said article is in relation to images such as x-ray and/or ultrasound which are kept by clinicians for documentation. Dr Mohamed Akhtar bin Mohamed Ditali Qureshi (DW2), a Consultant General & Colorectal Surgeon, the expert witness called by the 1st defendant stated that for the procedure of stapler haemorrhoidectomy, the exposure of the patient of her anus must include the vagina. This is to allow access to the posterior wall of the vagina to ensure that the vagina vault is not included in the closed stapling device. He gave his view that photographs are frequently taken by surgeons and physicians during surgery and endoscopy and these photographs form part of the medical record. He added that it is an acceptable practice to take such photographs pre and post-surgery as they are useful to explain the procedure and outcome to the patient. Nevertheless, in cross-examination, DW2 agrees that whether photographs are to be taken or not the right is vested solely on the patient and patient must be informed in advance of the possibility of photographs having to be taken during the surgery. However, he disagrees that it is the duty of the surgeon to get the patient’s consent before he takes the photographs as there was no guideline nor written law governing this photo taking. In re-examination he said that when patient is conscious when photo is to be taken, patient’s consent is asked. When questioned by this court DW2 agrees that it is proper for consent to be obtained from female patient when images are to be taken of the intimate part of her anatomy.

 

[13] Having evaluated all evidence before this court, I find no doubt that in order for the surgeon to take photographs of a female patient’s intimate parts of her anatomy as in this case, the proper procedure to adopt is to obtain her prior consent whether it is written or oral. This is in line with the recommendation as expressed in the article in the Medical Journal as cited by the 1st defendant who elects to ignore such recommendation. Even defence’s expert witness DW2 agrees that it is only proper to obtain patient’s consent in order to take photographs of the intimate part of the patient’s anatomy, particularly, a female patient. Consent is thus not to be construed as an illusion or a formality but an absolute requirement when it involves images of the intimate parts of a female patient. I am of the view that medical practitioners ought to be sensitive to female patients in our country where their morality, religious value, decency, modesty and dignity are still considered high that any photograph of their intimate parts of their anatomy should have their prior consent before images of them are taken before, during or after the surgery. In the present advance technology any information could have come to public domain if there is no proper security or safeguard to protect such information from misuse. The fear of the plaintiff in the instant case that her images showing her anus and/or private part taken without her knowledge as she was under anaesthesia and without her consent could have reached the public domain is not unfounded but tangible. Defence has contended that no consent is required for photo images to be taken during the procedure as it is the accepted practice. I am, however, of the view that a distinction must be drawn when taking photographs of the parts of the female’s body which may expose her modesty and dignity as compared to photographs merely showing her hands or feet which if exposed would not cast any repercussion on her morality, decency, modesty, respect or others and might not have caused such degradation. Such accepted practice, if it is bad, ought to be changed to reflect the sensitivity of the female patients and to avert the vulnerability of misuse of such images showing the inner parts of a female’s anatomy. DW3 who had been practising medicine in United Kingdom and Malaysia sees the distinction between the female patients in United Kingdom and in Malaysia as regards their sensitivity over images of their anatomy. He candidly admitted that prior consent is necessary from female patients in Malaysia before photographs of the intimate parts of their anatomy are to be taken. 1st defendant has been an experienced General & Colorectal Surgeon and ought to be well aware of the need to obtain plaintiff’s prior consent for such photographs to be taken. If only he had followed the recommendation in the article as published in the Medical Journey which he relied on, he would have realized the so called accepted practice is obsolete and ought not to be used any longer. The article had made the recommendation of change; DW3 has endorsed that it is proper for prior consent from female patients before photographs of them are to be taken. This court does not see the rationale that the 1st defendant still persists that no consent is required. In any event, taking of photographs is not mandatory or compulsory during the procedure but it is discretionary ie, merely to facilitate easy explanation to the patient. Since patient’s consent for the conduct of the procedure could be obtained before the procedure is performed, I do not find any valid reason why her consent could not be obtained for the photography at the same time. Even if photographs are absolutely necessary in the circumstances of a particular situation and there is no opportunity to obtain the patient’s consent as she is under anaesthesia, patient must still be informed at the first available opportunity for her consent. If consent is refused, then the images taken must be surrendered or destroyed as agreed by her. This was also not done by 1st defendant in the instant case.

 

[14] Learned counsel for the 1st defendant submitted that the moment the plaintiff had submitted herself to the 1st defendant to conduct the procedure, there is no longer any right of privacy available to the plaintiff. Such contention is certainly misconceived. The plaintiff had granted her consent for a specific purpose ie, for stapler haemorrhoidectomy and nothing else. 1st defendant could not do anything beyond that expressed consent. The proposition that there is no longer any right of privacy and 1st defendant could do as he pleased is a dangerous proposition which has no basis and ought to be rejected outright.

 

[15] From all the evidence before this court and on a balance of probabilities, I hold that the 1st defendant must obtain prior consent from the plaintiff or for that matter from any female patients before he can take photographs of her or their intimate parts of the female’s anatomy. Modesty and decency of the female patients must be respected and not violated. A failure to do so constitutes an invasion of the plaintiff’s privacy or a breach of the trust and confidence that the plaintiff as patient had reposed on the 1st defendant as her treating doctor. In the circumstances, I hold that the plaintiff has proved her case against the 1st defendant.

 

[16] Since the 2nd defendant has admitted that it is vicariously liable if the 1st defendant is held liable to the plaintiff, I will therefore hold that the 2nd defendant is vicariously liable to the plaintiff’s claim.

 

3rd Issue: Aggravated And/Or Exemplary Damages

 

[17] Defence submitted that the plaintiff has not suffered any damage as a result of the said photographs being taken without her consent for reasons that the 1st defendant has not disseminated the photographs, that the 1st defendant was the only person who has access to the images and that the 1st defendant has already had sight of the plaintiff’s private part. There was no unauthorized use of the said photographs. Plaintiff submitted that both the defendants have not expressed remorse or regret; the photographs were taken in the circumstances that the plaintiff was unconscious; plaintiff’s feeling of anger, resentment, sadness, disappointment, frustration, humiliation, loss of dignity, anxiety and anguish were not challenged by the defence was aggravated by the refusal of the 1st defendant to surrender the memory card which contained the images; otherwise had the 1st defendant surrendered the memory card, this case would not have been brought to court. Learned counsel for the plaintiff suggested a sum of between RM100,000 to RM200,000.

 

[18] Aggravated damage is awarded as a form of a higher compensation to show the disapproval of the acts of a defendant which were carried out in such a manner that the plaintiff has suffered more than would normally be expected in such a case; Tort Law by Catherine Elliot and Frances Quinn 7th edn, 2009. In Rowlands v. Chief Constable of Merseyside [2006] 1 WLR 1065, the Court of Appeal awarded aggravated damages as compensation because Mrs Rowlands’ compensatory damages included an amount for psychological injury. The fact of the present case which made the plaintiff feel anger, humiliation, frustration etc is because the 1st defendant had failed to obtain her prior consent before taking images showing the intimate part of her body coupled with the 1st defendant’s refusal to surrender the memory card which contained the said images to her when she requested for. It is not a case that 1st defendant had misused her images in any way as to cause her great pain, shame, humiliation and others ie, any psychological injury. I am of the view that the mere feeling of anger, frustration etc by the plaintiff is the natural consequences of the 1st defendant’s refusal to surrender the memory card containing her images to her. As it is stated in plaintiff’s submission, if only the 1st defendant had surrendered the said memory card to her, perhaps, this case would not have come to court. Plaintiff had stated in evidence that because of this incident, she has the fear of undergoing any invasive procedure under sedation as she has come to a point that she is unable to trust any doctors. I do not see the rationale of her perception for simple reason that with this experience, all the most she could easily inform any doctor expressly that she gives no consent for any images to be taken of her. With that express caveat, I do not think any doctor will persist to go against her wish. To qualify for aggravated damages, I am of the view that the acts must be calculated to injure the feelings of the plaintiff. I do not find sufficient evidence to justify aggravated damage to be awarded.

 

[19] Exemplary damages serve the purpose of offering a serious punishment to the defendant and to deter others from behaving in the same way. Without going into the categories of exemplary damages as propounded by Lord Devlin in Rookes v. Barnard [1964] AC 1129, the fundamental basis of exemplary damage must first be satisfied by the plaintiff ie, the plaintiff has to prove the culpability of the 1st defendant’s conduct which must be so outrageous as to deserve punishment or deterrence. I find the fact that 1st defendant had taken plaintiff’s images without her prior consent but had not misused them and the fact that 1st defendant refused to surrender the memory card of his digital camera to the plaintiff on ground that it contained other information coupled with 1st defendant’s offer to delete them in the presence of the plaintiff but was rejected, 1st defendant’s conduct cannot be construed as so outrageous as to warrant exemplary damages to punish and deter him. The three categories for the award of exemplary damages as laid down by Lord Devlin in Rookes v. Barnard (supra) are (i) where the conduct is calculated to make or to result in a profit; (ii) where there is oppressive conduct by government servants and (iii) where there is express authorization by statute. The instant case of the plaintiff does not fall within any of these three categories. Although our courts seem not to follow strictly the three categories of cases as referred to above (see for example, Tan Kau Tiah v. Tetuan Teh Kim Tek, Salina & Co & Anor [2010] 4 CLJ 914 CA; Cheng Hang Guan & Ors v. Perumahan Farlim (Penang) Sdn Bhd & Ors [1994] 1 CLJ 19), I find that the fact and evidence of the plaintiff’s case do not merit exemplary damage to be awarded. Consequently, I hold that exemplary damage is not proved to justify an award.

 

Conclusion

 

[20] For the foregoing reasons, I allow plaintiff’s claim and award nominal damages against the defendant in the sum of RM25,000 with costs of RM10,000. As the memory card containing the two offending photographs has been produced to the court, I order that this memory card is to be destroyed by the deputy registrar of this court after the appeal period on a date fixed by the Deputy Registrar in the presence of the plaintiff and the defendants. With that, I do not find injunction to be necessary.

 

[2010] 1 LNS 1162

Categories: CaseLaws, Negligence

ROSLI SUPARDI v. PP COURT OF APPEAL, KUALA LUMPUR GOPAL SRI RAM JCA, ABDUL KADIR SULAIMAN JCA, ALAUDDIN MOHD SHERIFF JCA: S422 CPC

ROSLI SUPARDI v. PP
COURT OF APPEAL, KUALA LUMPUR
GOPAL SRI RAM JCA, ABDUL KADIR SULAIMAN JCA, ALAUDDIN MOHD SHERIFF JCA
[CRIMINAL APPEAL NO: B 09-22-2000]>
4 MARCH 2002

 

JUDGMENT

 

(oral)

 

Gopal Sri Ram JCA (delivering the judgment of the court):

 

This appeal arose from the decision of the High Court Shah Alam dismissing an appeal to it from the Sessions Court. The appellant before us was charged before the Sessions Court for an offence under s. 326 of the Penal Code. He defended himself during part of the case. During the later part of the trial, Mr. Manmohan Kang appeared for him and conducted an able defence on behalf of the appellant. At the close of the whole case, the appellant was convicted and sentenced to a term of six years imprisonment and three strokes of rotan. He was dissatisfied with the decision of the Sessions Court and as we mentioned a moment ago, he took his case further to the High Court.

 

One of the complaints advanced on his behalf in the High Court was that the learned Sessions Judge had misdirected herself on the standard of proof that she applied at the close of the whole case. The specific complaint made to the High Court, and before us this morning is that the Sessions Court judge asked herself the wrong question. It is said that she merely stated that the appellant had failed to raise a reasonable doubt on the prosecution’s case without first making a prior finding that the prosecution had indeed established its case beyond reasonable doubt.

 

The learned High Court judge having applied his mind to the material before him, came to the conclusion that no miscarriage of justice had occurred because of the misdirection by the Sessions Court on the standard of proof. He then purported to apply the proviso to s. 60 of the Courts of Judicature Act 1964 which he thought was wider in scope and application than s. 422 of the Criminal Procedure Code.

 

In arguing the appeal before us, Mr. Manmohan Kang counsel for the appellant has made two important submissions. He first argued that the misdirection contained in the judgment of the Sessions Court is not curable under s. 422 of the Code. Second, he submits that the learned judge of the High Court fell into error by applying the proviso to s. 60 of the Courts of Judicature Act 1964. Before we address each of these arguments, it is useful to remind us the precise terms of s. 422. This is what it says:

 

Irregularities not to vitiate proceedings

Subject to the provisions contained in this Chapter no finding, sentence or order passed or made by a Court of competent jurisdiction shall be reversed or altered on account of:

(a) any error, omission or irregularity in the complaint, sanction, consent, summons, warrant, charge, judgment or other proceedings before or during trial or in any inquiry or other proceeding under this Code;

(b) the want of any sanction; or

(c) the improper admission or rejection of any evidence,

unless such error, omission, irregularity, want, or improper admission or rejection of evidence has occasioned a failure of justice.

 

In Ishak Shaari v. PP[1997] 3 CLJ Supp. 223, Augustine Paul JC came to the conclusion that the section could not be applied to cure an illegality or nullity, such as the case in which there is a breach of an express provision of the Code or the breach of principle of general importance in the administration of justice. His conclusion on the law was upheld by this court in Harun Abdullah v. PP[1998] 3 CLJ 184 Abdul Malek Ahmad JCA in delivering judgment of this court said at p. 197 of the judgment:

 

Of these three decisions, we must say that we are in full agreement with the decision in Ishak Shaari v. PPwhere the learned trial judge held that s. 422 of the CPC cannot be invoked to cure a breach where it involves the breach of an explicit provision of the CPC or where the breach involves a principle of general importance in the administration of justice. And as the error committed by the learned session court judge in misdirecting herself on the standard of proof on the prosecution fell within both the classifications in the instant appeal, it was incapable of rectification under s. 422 of the CPC.

 

Our attention has also been drawn by the learned deputy public prosecutor to the unreported judgment of this court in PP v. Ku Yahya Ku Bahari & Anor[2002] 1 CLJ 113 where on a complaint of misdirection on the standard of proof, a retrial was ordered by the High Court. The public prosecutor’s appeal was dismissed by this court. This court affirmed and followed its decision in Harun bin Abdullah.

 

Both Ishak Shaariand Harun Abdullahwere relied upon by learned counsel for the appellant before us. But we find Harun Abdullahreadily distinguishable from the present case. In Harun, this court having come to the conclusion that s. 422 cannot be invoked to cure a misdirection by the trial court on the issue of standard of proof by the prosecution went on to undertake an exhausted review of evidence. It then found that:

 

… applying the more stringent reasonable doubt test to the facts of this case on the evidence available, we could only conclude that the result would certainly not be the same as we hold that no case had been made out against the appellant beyond reasonable doubt. Consequently, the defence of the appellant should not have been called.

 

In other words, this court was satisfied that if s. 422 had been invoked, it could not on the facts of the case have cured the failure of justice that had been occasioned to the appellant in that case. To put it shortly, the section did not apply because a proper direction on the standard of proof would have resulted in an acquittal of the appellant.

 

So far as Ishak Shaariis concerned, it no longer in our view represents the law. For in Tunde Apatira v. PP[2001] 1 CLJ 381 a full Federal Court found that in an exceptional case where the evidence is clear and cogent, an appellate court may affirm a conviction despite a misdirection. In the course of its judgment, the Federal Court observed that there was no material difference between the phrase ‘miscarriage of justice’ in the proviso to s. 60 of the Courts of Judicature Act 1964 and the phrase ‘failure of justice’ appearing in s. 422 of the Code. There is therefore, serious doubt in our minds as to the correctness of the proposition made in Ishak Shaari‘s case that a misdirection as to the standard of proof must automatically and without more result in a setting aside of a conviction despite s. 422 of the Criminal Procedure Code.

 

We now turn to address the second argument. There is nothing much to be said about it. The decision in Tunde Apatirais a complete answer to the complaint now advanced before us. We, of course entirely agree with the submission of the learned counsel for the appellant that it was not open to the learned High Court judge to rely on the proviso to s. 60 of the Courts of Judicature Act 1964. That proviso is exclusive to this court and to the Federal Court. As far as High Courts are concerned, they must act within the confines of s. 422. But the error of the learned judge in applying the wrong provision, matters not a jot here. Since Tunde Apatira, there is no essential difference between the proviso to s. 60 and s. 422. They mean the same thing. The erroneous invocation of the proviso to s. 60, though an error, has produced no substantial miscarriage of justice. For these reasons, we find no merit in this submission.

 

However for completeness, having found that s. 422 is applicable, as argued by the learned deputy public prosecutor, we have conducted a very careful scrutiny of the evidence on record with a view to ascertain whether a different result would have ensued had the correct test been applied as to the standard of proof both at the close of the prosecution’s case and at the close of the whole case. Having done so, we are entirely satisfied that there is sufficient evidence of a highly convincing character that establish the guilt of the appellant even upon the application of the correct test. In other words, the defence was rightly called and the appellant was properly convicted. So, the misdirection on the standard of proof has not occasioned any failure of justice. In these circumstances, there is no merit in the complaint against conviction and the appeal against conviction is therefore dismissed.

 

We now turn to sentence. This is a very serious case. The circumstances in which the complainant PW5’s throat was cut several times is particularly barbaric. Sentence passed by the trial court and affirmed by the intermediate appeal court is in our carefully considered view, manifestly inadequate. This court has power under s. 60 of the Courts of Judicature Act 1964 to enhance the sentence imposed either by the Sessions Court or High Court. The question is whether we should exercise the power on the facts of the present case. Mr. Manmohan Kang has in a very able and a carefully developed argument advanced three grounds based on which he says we should not interfere here. First, because the appellant had defended himself for a large part of the trial and therefore may not have appreciated the seriousness of the case. Second, because it is a bad policy for this court to exercise its power particularly in the face of an absence of a cross-appeal by the public prosecutor. Thirdly, because this appeal was pursued before us to canvass a point of obvious importance to the Criminal Bar. Of these reasons, we find that we need to address only on the second. We would do that in a moment. So far as the first is concerned, it is without any basis. An acceptance of counsel’s argument, would mean that in any case where the accused chose to defend himself, some more special consideration ought to be accorded than to a case where he is not represented. That cannot be it. An accused defends himself or engages counsel as a matter of choice. And if he should exercise his choice one way or the other, who are we to criticize that? Particularly it is so when there is an extremely active legal aid service afforded by the Bar Council and State Bar Committee at the grass-root level so that legal representation is made that much easier these days. As far as the third ground is concerned, the appellant who comes before us runs the risk of any order we may make. The fact that he has the academic interest of the legal profession is neither here nor there.

 

That brings us to the second and most important ground. It is a matter of policy. And it is an important point. As Encik K. Muniandy the learned deputy public prosecutor with his usual eminent fairness points out, that this is the final court so far as this appeal is concerned. He thereafter suggested that we should not interfere with the sentence purely because the appellant has no further avenue. We are fully conscious of the policy consideration of such cases of this nature. We agree with both Mr. Manmohan Kang and the learned deputy public prosecutor that as a general rule it would be bad policy for this court to enhance the sentence in the absence of a cross-appeal by the public prosecutor. But every case depends on its own facts. And the gory details of the present case from the evidence rehearsed before us by the learned deputy public prosecutor makes this an exceptional case. As we said when we commence this judgment, this is a serious case. The sentence imposed does not even attempt to meet the public interest nor does it have any relation to the aggravated circumstances in which the offence was committed. We would be plainly failing in our duty, to our conscience and to the public if we did not interfere in this case. Having regard to the facts and the circumstances of the appellant’s case and giving public interest the weight it deserves, we are satisfied that the sentence passed is manifestly inadequate, we would therefore, take these considerations into account and the other circumstances advanced in plea of mitigation before the Sessions Court, we would set aside the sentence of six years and substitute in place with 12 years imprisonment from 30 September 1994 (date of arrest). We would also set aside the sentence of three strokes of rotan and substitute in place with five strokes. The orders of the Sessions Court are altered to this effect.

Categories: CaseLaws

HONG LEONG EQUIPMENT SDN. BHD. v. LIEW FOOK CHUAN & OTHER APPEALS COURT OF APPEAL, KUALA LUMPUR GOPAL SRI RAM JCA SITI NORMA YAAKOB JCA AHMAD FAIRUZ JCA [CIVIL APPEAL NO: W-04-19-94]: On Every Decision, Judge Must Provide Judgment

HONG LEONG EQUIPMENT SDN. BHD. v. LIEW FOOK CHUAN & OTHER APPEALS
COURT OF APPEAL, KUALA LUMPUR
GOPAL SRI RAM JCA SITI NORMA YAAKOB JCA AHMAD FAIRUZ JCA
[CIVIL APPEAL NO: W-04-19-94]
8 FEBRUARY 1996
[Appeal dismissed]

JUDGMENT

Gopal Sri Ram JCA:

Introduction

There are two appeals before this Court. Both appeals are directed against the same decision of the High Court. The first is by Hong Leong Equipment Sdn. Bhd. For convenience I will refer to it as the appellant. The second is by the Minister of Labour and Manpower whom I shall simply refer to as ‘the Minister’. I must first say a few words about how both these appeals came to be heard together.

When we commenced this session on 4 December 1995, we had only the appellant’s appeal before us. We were unaware of the Minister’s appeal at that time. However, when Encik Sivabalah commenced his submissions on behalf of the appellant, he informed us of it, but went on to say that he was given to understand that the Minister’s appeal had been withdrawn and disposed of for failure to lodge the record of appeal within the time limited by the Court of Appeal Rules 1995. He said that those having conduct of the matter on behalf of the Minister were aware that the appellant’s appeal had been scheduled for hearing during the present sitting of this Court and that he had been informed that Counsel having conduct of the matter on the Minister’s behalf would be present at the hearing. However, when the appeal was called on, Counsel representing the Minister was absent.

In the event, we proceeded to hear the appellant’s appeal. It was heard on 5 and 6 December 1995. After he had concluded his submissions on 6 December, Dato’ V.K. Lingham of Counsel for the respondent quite properly informed us that he had discovered from the Registrar of the Court that the Minister’s appeal had been neither withdrawn nor disposed of and that it was very much alive. Only the record of appeal was not on file.

I must, in this instance, express my thanks to Encik Zainal, the Registrar in attendance, for his valuable assistance in bringing the relevant status of the Minister’s appeal to our attention. But for his timely intervention, I fear that a grave injustice may have been done to the Minister. For we would have proceeded on the erroneous basis that the Minister’s appeal was at an end. Although Encik Zainal had requested learned Senior Federal Counsel to attend before us, no one representing the Minister appeared on 6 December.

On learning that the Minister’s appeal was intact, we directed learned Senior Federal Counsel having conduct of the brief on the Minister’s behalf to appear before us the following day. Further hearing of the appellant’s appeal was adjourned until we had heard from learned Senior Federal Counsel. We also requested the Registrar to inform learned Senior Federal Counsel concerned that we were prepared to entertain an application made on short notice for an extension of time for the Minister to deliver his memorandum of appeal. Dato’ Lingham, with his usual courtesy, informed us that he would not oppose such an application.

When this Court convened on 7 December, Cik Haliza Aini Othman, learned Senior Federal Counsel having conduct of the matter on the Minister’s behalf appeared. There was placed before us a motion to extend time for the filing of the Minister’s memorandum of appeal. Being unopposed, we extended time in favour of the Minister. So that our order would not produce any unwarranted delay in the due prosecution of the appeals, we gave the following directions:

(1) that the Minister shall deliver his memorandum of appeal on or before Monday, 11 December 1995;

(2) that the record filed and delivered by the appellant do stand as the record in the Minister’s appeal; and

(3) that all costs occasioned by the Minister’s application be reserved and be dealt with upon disposal of the appeals.

Both appeals were then adjourned to 11 December 1995, when we heard arguments from Cik Haliza Aini in support of the Minister’s appeal, Encik Sivabalah’s final address on the appellant’s appeal and Dato’ V.K. Lingham’s response. Judgment was thereafter reserved.

The Facts

The Hong Leong Group (‘the Group’) comprises several companies which are involved in numerous areas of economic activity in this country. The Group is primarily involved in finance and property development. But it has other interests as well. One of these is the marketing of motor cycles of the Yamaha brand. There is a company within the Group that deals exclusively with this activity. It is called Hong Leong Yamaha Distributors Sdn. Bhd. I will refer to it simply as “HLYD”.

On 1 July 1977, the respondent commenced working for the Group. He was initially employed by HLYD and was given the designation “Director/General Manager”. Later, he was transferred to the appellant which is another company in the Group and, in 1987, was appointed as its general manager. On 22 February 1990, in consequence of certain events to which I shall advert in a moment, the respondent was summarily dismissed for alleged misconduct. This is how it happened.

In 1983, HLYD was looking to acquire some land for its own use. The appellant’s brother (not an employee of the Group) came across a piece of property in Petaling Jaya which may have suited the needs of HLYD. He brought it to the respondent’s attention. The respondent then introduced this piece of property to the board of HLYD. They were keen on acquiring it for the company. A valuation was carried out by the Group’s internal valuers. Eventually, one of the companies within the Group – its property arm – bought the property. For convenience, I shall treat it as a purchase by HLYD. Encik Sivabalah, with his customary frankness, conceded that it was an arms length transaction. He said that apart from the brother’s interest in the matter, the acquisition by HLYD was an entirely normal transaction.

The respondent’s brother received a commission from the vendor for successfully concluding the sale. It is common ground that he did not receive a single cent from HLYD or for that matter from any company within the Group. Nor is there the slightest suggestion that the respondent received any pecuniary benefit from the transaction. It is the appellant’s case that the respondent spoke not a word of his brother’s interest to the board of HLYD. The Group, however, came to know about it in the following way.

In 1985, one Wong Hup Mooi, the personal representative of the estate of one of the other brokers involved in the transaction, brought an action against the vendor in the Sessions Court at Kuala Lumpur. The claim was for commission which the plaintiff in that suit claimed to be payable to the broker’s estate in respect of the sale by the vendor to HLYD. The action was heard in 1989, some four years after its institution. Both the respondent and his brother were called as witnesses and gave evidence on behalf of the vendor. There are passages in the respondent’s evidence, read to us by Encik Sivabalah during argument, which seem to suggest that the respondent did not make any disclosure of his brother’s interest to HLYD.

Sometime in the later half of November 1989, the appellant came to learn of the respondent’s testimony in the civil action. On 27 November 1989, it wrote to the respondent asking him to explain why he had failed to disclose his brother’s interest in the sale of the property to HLYD. This is what the letter said:

Hong Leong Equipment Sdn. Bhd.

Private & Confidential

27 November 1989

Mr. Liew Fook Chuan Present

Dear Mr. Liew

It has come to our attention that you have given evidence in the recent Sessions Court case of Wong Hup Mooi (suing as Director of the estate of Don Ooi Chin Soon) v. Kee Huat Radio Co. Sdn. Bhd.

In your evidence in Court, you testified that:

(a) on or about 17 January 1983, you in your capacity as General Manager of Hong Leong Yamaha Distributors Sdn. Bhd. (‘HLYD’) took part in negotiations with one Teo Chiang Kok for the purchase by HLYD of a piece of land held under State Lease 4249, Lot No. 27, Section 20, Petaling Jaya (‘the land’);

(b) that your brother, Liew Chin Chuan (‘LCC’) informed you that the land was available for sale;

(c) that LCC obtained a brokerage fee of Ringgit One Hundred Thousand (RM100,000) from Kee Huat Radio Co. Sdn. Bhd. upon the successful completion of the sale of the land; and

(d) that your brother’s interest as broker for the transaction was never disclosed to the management at any point of time.

As an employee of the company, you have a duty not to put yourself in a position where your personal interest would or might conflict with the interest of the company.

This duty imposed by the law is also embodied in part in s. B1 of the Group Personnel Manual.

In view of your testimony during the said Sessions Court case, kindly submit a written explanation acceptable to us within 10 days from the date hereof to the following questions:

(1) Why did you participate actively in the negotiations with Mr. Teo Chiang Kok for the purchase of the land when your brother was involved as a broker?

(2) Why you did not inform HLPM regarding your negotiations with Mr. Teo Chiang Kok when you might be or should be aware that HLPM (the property company for the Group) was also looking for or negotiating the land for HL1?

(3) Why you did not inform your Managing Director then or the Board of HLMC regarding your brother’s interest in the land transaction when you were negotiating for the purchase of the land?

(4) Why did you give the impression to Mr. Teo Chiang Kok that HLYD was the purchaser and why did you request Mr. Teo Chiang Kok to pay the commission to your brother?

Should we not receive any explanation from you within the time stipulated, it will be presumed that you have no explanation to offer, in which case the appropriate action will be taken on this matter.

Yours faithfully

Sgd. Lim How Soon Director

A few weeks later, the appellant wrote once again to the respondent asking for an explanation in respect of quite a different matter. I do not propose to say anything about it because the appellant’s letter speaks for itself:

Hong Leong Equipment Sdn. Bhd.

Private & Confidential

14 December 1989

Mr. Liew Fook Chuan Present

Dear Mr. Liew

It has come to our attention that you have taken up employment or engaged yourself in other business belonging to a company known as Asia-Pacific Advisory Group Sdn. Bhd. (‘APAG’).

As an employee of the company you have a duty not to put yourself in a position where your personal interest would or might conflict with interest of the company.

This duty in imposed by law and is also embodied in s. B1 of the Group Personnel Manual.

In view of the above kindly submit a written explanation acceptable to us within 7 days from the date hereof to the following queries:

(a) When did you take up employment in APAG?

(b) Do you have any proprietary or pecuniary interest in APAG?

(c) Why did you not inform or disclose to the company regarding your employment or interest in APAG?

Should we not receive any explanation from you within the time stipulated above, it will be presumed that you have no explanation to offer in which case appropriate action will be taken against you on this matter.

Yours faithfully Sgd. Lim How Soon Director

The respondent replied each of these letters separately. His replies are epitomes of brevity. They read as follows:

Private & Confidential

18 December 1989

Mr. Lim How Soon Present

Dear Mr. Lim

I refer to your letter dated 27 November 1989 and the queries raised:

(1) I was instructed by Mr. Kwek Leng Hai.

(2) Since the instruction came from Mr. Kwek Leng Hai, I assumed Mr. Kwek kept HLPM informed.

(3) As there was no brokerage commission from the buyer I did not think that was necessary.

(4) At that time HLYD was the purchaser, and it was my brother who brought to my notice the property for sale.

Yours sincerely

Sgd. Liew Fook Chuan

Private & Confidential

18 December 1989

Mr. Lim How Soon Present

Dear Mr. Lim

I refer to your letter dated 14 December 1989 and the queries raised:

(a) I did not take up employment with APAG.

(b) I have a RM1 share interest.

(c) I did not think of it as an interest of any consequence.

Yours sincerely

Sgd. Liew Fook Chuan

Following this exchange of correspondence, the appellant conducted a domestic inquiry on 6 February 1990, against the respondent. Notice of this inquiry was given to the respondent by way of a letter dated 16 January 1990. Three charges of misconduct were framed against him. They are as follows:

1) That in the transaction for the sale and purchase of the land held under State Lease 4249 Lot No. 27, Section 20, Petaling Jaya (‘the land’) between Kee Huat Radio (‘the vendor’) and Hong Leong Industries Berhad (‘the purchaser’), you had entered into negotiations with Mr. Teo Chiang Kok, the agent (‘the agent’) of the registered owner of the land, without informing your superior(s) of your brother’s interest as broker for the transaction and obtaining their prior approval for your undertaking and continuation of your negotiation, notwithstanding your brother’s said interest.

In so doing you had put yourself in a position where your personal interest would or might conflict with the interest of the Hong Leong Industries Group without the prior knowledge and consent of your superior(s). This is in breach of your duties and responsibilities and the implied terms and conditions of your employment.

2) That you had engaged and/or concerned yourself and/or had an interest in the business of Asia-Pacific Advisory Group Sdn. Bhd. without obtaining the prior written approval of the Board of Directors of Hong Leong Equipment Sdn. Bhd. or the Board of Directors of Hong Leong Management Co. Sdn. Bhd. This is in breach of your term and conditions of employment set out in item 4(a)(ii) of s. B1 of the Hong Leong Group Manual on Personnel Regulations and Policies.

3) That you had engaged and/or concerned yourself and/or had an interest in the business of Finnova Corporation Sdn. Bhd. without obtaining the prior written approval of the Board of Directors of Hong Leong Equipment Sdn. Bhd. or the Board of Directors of Hong Leong Management Co. Sdn. Bhd. This is in breach of your terms and conditions of employment set out in item 4(a)(ii) of s. B1 of the Hong Leong Group Manual on Personnel Regulations and Policies.

The letters from the appellant to the respondent as well as the charges framed against him all speak of the Group Personnel Manual. I will, in this judgment, refer to it as ‘the terms and conditions of employment’. It is therefore appropriate to refer to the relevant parts of this document which was produced and handed down by the Group to its employees in 1981, that is to say, some four years after the respondent had been employed by the Group.

Terms and Conditions of Employment for Executives

4. Restraint

a. The executive shall devote his whole time, attention, energies, and skill solely to the business of the company or Group and shall not be concerned or interested directly or indirectly in any business or work other than of the company or Group.

Without the written approval or permission of the company or Group, no executive is allowed, during the period of the executive’s employment with the company or Group:

i) To take up employment, whether paid or unpaid, of another employer; or

ii) To engage or concern himself or be interested in any other business, whether or not the business belongs to him or to any member of his family or any other person or corporation; or

iii) To have proprietary or pecuniary interest in the business of any other company, firm or individual, business of which is in whole or in part similar to any trade or business carried on by the company or Group; or

iv) To invest in any manner, other than stocks and shares quoted on Stock Exchanges and fixed deposits and savings; or

v) To trade with any company or firm in which the executive or his family or any other members of the staff is interested directly or indirectly; or

vi) To have any outside interest which is in direct conflict with the business of the company in which the executive manages.

b. Any executive found to be so employed, engaged, invested, traded, concerned or interested in business will be regarded to have wilfully breached a condition of employment and the Group or company reserves the right to terminate the contract of employment forthwith without notice or to take other action as the Group or company deems fit.

c. An executive of the Group or company shall not, either during the continuance of his employment or thereafter, except in the proper course of his or her duties, divulge to any person whosoever and shall use his or her best endeavours to prevent the publication or disclosure of any trade secrets or manufacturing process or any information concerning the business or finance of the company or any dealings, transactions or affairs which may come to his or her knowledge during or in the course of his or her employment.

If he or she is found to have divulged or have caused to divulge or to have failed to use his or her best endeavours to prevent the publication or disclosure of such secrets or processes, the Group or company reserves the right to terminate the contract of employment forthwith without notice and/or to take the appropriate legal action against the defaulting executive.

d. No executive and managerial staff shall be or continue to be a member or officer of any trade union representing the non-executive employees.

5. Disciplinary Action

If any executive is found to have committed wilful disobedience to lawful orders, or wilful neglect of duties, or negligence causing loss or damage to life and property, or dishonesty, or misconduct inconsistent with the fulfillment of the express or implied conditions of service, he or she shall be informed of the wrong he or she is alleged to have committed and be given an opportunity to be heard either in writing or at an inquiry. In respect of an inquiry, the Inquiring Officer or Panel shall comprise of representatives of the company and/or the Group. If

the employee fails to exculpate himself or herself, the appropriate disciplinary action including termination of employment shall be taken against him or her. Any disciplinary action taken shall not preclude the company or the Group from taking any other actions, legal or otherwise, if required. Where required, an executive who is alleged to have committed misconduct may be suspended from work for a period of up to one week at half pay for the purposes of investigation and/or for the holding of an inquiry.

Disciplinary action taken against any executive should be notified to the Group Personnel Dept., HLMC for information and record. (Emphasis added.)

Considerable argument was addressed on the question whether the terms and conditions of employment ever applied to the respondent. Attention was also drawn to the paragraph which reverses the burden of proof and upon which I have placed emphasis. These are matters that I shall deal with later in this judgment.

At the inquiry, each of the three charges were specifically put to the respondent. He denied them all and gave an oral explanation in respect of each. By a letter dated 22 February 1990, the appellant informed the respondent that he was dismissed from service with immediate effect.

After his dismissal, the respondent, on 14 April 1990, lodged a complaint with the Director-General of Industrial Relations under August 21, 1997s. 20(1) of the Industrial Relations Act 1967 (‘the Act’). The office of the Director-General then proceeded to conduct a conciliatory meeting between the parties. It was held on 8 May 1990. But it came to naught because the parties could not arrive at an amicable settlement. Then, on 19 June 1990, the respondent wrote to the Deputy Director. It is a letter of some importance and was referred to us by both sides. For that reason I shall reproduce it here. This is what it says:

Liew Fook Chuan 12 Psn. Negeri Sembilan Bukit Persekutuan 50480 Kuala Lumpur

19 June 1990

Timbalan Pengarah Pejabat Perhubungan Perusahaan Wilayah Persekutuan/Selangor Darul Ehsan Tingkat 5, Bangunan Koperasi Polis No. 1 Jalan Sulaiman 50000 Kuala Lumpur

Attn.

Mr. A Murugavell

Tuan

Re: Appeal of Reinstatement

Further to our meeting on 8 May 1990, I send herewith my career history in the Hong Leong Group from 1977 to 1990.

Looking at all that has happened, I feel that my unjustified dismissal is the result of the vindictive action of Mr. Roger Tan manouevering the Hong Leong Management.

Mr. Roger Tan joined the Hong Leong Group at about the same time as I and also at the same grade but through politicking has somehow 2engineered himself into the position of Group Managing Director of Hong Leong even though he has no known successful track record. I believe that my fighting spirit to make the best of any situation he puts me in and my insight of his character drove him to find ways and means to put an end to my success as in time truth may reveal itself.

You are my only hope of justice, as the Management of Hong Leong is already under the control of Mr. Tan through his political manoeuvering. My record needs to be set right because my reputation and therefore my future hinge on this one chance of letting the facts be known.

It would be grossly unfair if in the process of satisfying his selfish ends he is also allowed to succeed not only in ending my successful career in the powerful Hong Leong Group but also at the same time in ensuring that the future for me and my family is insecure.

I therefore humbly appeal to your good office that my case be referred to the Industrial Court for an award so that the wrong done to me can be remedied.

Thank you.

Yours faithfully Liew Fook Chuan

The next significant event occurred on 20 October 1990. The evidence filed on the Minister’s behalf in the Court below reveals that on that date, the Director-General reported to the Minister that the representation made by the respondent could not be settled. The Minister, having considered the report of the Director-General and acting I upon the strength of the material made available to the Director-General, came to the conclusion that the respondent’s representation ought not to be referred to the Industrial Court for adjudication. His decision to this effect was communicated to the respondent by a letter dated 13 November 1990.

The respondent then took out an application for certiorari to quash the Minister’s decision and for an order of mandamus to compel the Minister to refer the dispute to the Industrial Court. Initially, the Minister was the only party cited in the application. Later, the appellant applied to be joined as a party to the proceedings. That application was granted and the respondent’s motion for prerogative relief was then proceeded with. The learned Judge who heard the application, granted the relief sought. It is against his decision that the present appeals have been brought.

The Submissions of Counsel

In support of their respective appeals, Counsel for the appellant and learned Senior Federal Counsel who appeared for the Minister advanced several arguments. Since there was considerable overlap in their submissions, I propose to first set out so much of their submissions as are common to both appeals and then set out those submissions of the learned Senior Federal Counsel which were made specifically in support of the Minister’s appeal.

I do not think that I do any injustice to Encik Sivabalah or Cik Haliza if I summarise the submissions common to both of them in the following way:

(1) Section 20(3) of the Act confers a discretion upon the Minister whether to refer or not to refer, to the Industrial Court, representations made under s. 20(1) of the Act . When he exercised his discretion not to refer the respondent’s complaint to the Industrial Court, he did not take any decision in the legal sense;

(2) The question whether, on the material before him, the dispute merits reference is for the Minister to decide. If the report of the Director- General discloses a dispute involving serious issues of fact or of law, then the Minister ought to refer the dispute to the Industrial Court. However, in respect of the present case, there were no such issues, so that the Minister was quite right in not referring the dispute;

(3) Following from submission (2), in this case there is an additional factor which weighs heavily in favour of the Minister’s exercise of discretion against the respondent. The domestic inquiry which was conducted by the appellant found the respondent guilty of the misconduct alleged against him. Some of the facts and contentions raised before the High Court were never mentioned by the respondent at the domestic inquiry. The material before the Minister was therefore quite different from that which was later placed before the learned Judge;

(4) The discretion of the Minister is subject to judicial review, but only if he misconstrued the statutory provision under which he acted or took into account irrelevant considerations or failed to take into account relevant considerations or asked himself the wrong question or came to a decision which was irrational. In other words, the Minister’s exercise of discretion is safe from judicial review if he did not commit what I termed as an ‘Anisminic error’ in Syarikat Kenderaan Melayu Kelantan Bhd. v. Transport Workers’ Union [1995] 2 CLJ 748 ; [1995] 2 CLJ 748, 342 , or, if his decision was not affected by what has come to be known as ‘Wednesbury unreasonableness’; (5) A Court is not entitled to scrutinise the facts of a case for the purpose of deciding whether the Minister had exercised his discretion in accordance with law as this would amount to an exercise of appellate jurisdiction and therefore be in violation of the principles governing judicial review. The learned Judge in the Court below did in fact carry out such an examination and thereby exceeded the permitted ambit;

(6) Even if a scrutiny of the factual matrix is permissible, there was, in this case, ample material before the Minister to justify his decision and any reasonable Minister similarly circumstanced as this Minister would have come to the same conclusion;

(7) The learned Judge when quashing the Minister’s decision not to refer, did not identify the irrelevant considerations which the latter had taken into account or the relevant considerations he had omitted to take into account or in what way and to what extent the Minister’s decision was unreasonable;

(8) The Minister when exercising the discretion conferred upon him by s. 20(3) of the Act was performing an administrative as opposed to a quasi judicial function. He was therefore under no obligation to furnish reasons. His failure to give reasons for the decision reached does not entitle this Court to infer that he had no good reasons for taking the decision he did.

These, then, are the arguments common to both appeals. The only area in which the Minister and the appellant do not stand on common ground relates to the grant of mandamus by the learned Judge. When he commenced his submissions, Encik Sivabalah took the position that even if the learned Judge was correct in issuing certiorari, he was certainly wrong in compelling the Minister to refer the dispute to the Industrial Court. He argued that, at best, all that could and should have been done was to issue mandamus requiring the Minister to reconsider the matter according to law. However, in the course of argument he retreated from the extreme position he had taken and agreed that a direction compelling the Minister to refer the dispute to the Industrial Court could properly be issued.

Cik Haliza’s argument proceeded along the same lines as Encik Sivabalah. But she went further to suggest that the only applicable provision was s. 45 of the Specific Relief Act 1950 by the terms of which no mandamus could be issued at all in this case. Encik Sivabalah did not agree with that submission. However, like him, Cik Haliza too conceded that a direction in the terms adverted to earlier could be given to the Minister.

So much for the submissions made in support of the appeals.

In responding to the appeals, Dato’ V.K. Lingham made the following submissions:

(1) The right to earn a livelihood is a fundamental right guaranteed by the Federal Constitution and is to be regarded as having proprietary value;

(2) Parliament, in order to remedy the defects at common law, has enacted a special legislation in the form of the Act and created a machinery to afford protection to a workman who has been dismissed without just cause or excuse.

It is therefore incumbent upon the Minister who is invested with the power to refer disputes to the Industrial Court to act fairly and justly when exercising that power;

(3) On the material placed before him, a reasonable Minister similarly circumstanced as this Minister would have referred the respondent’s complaint to the Industrial Court;

(4) A Court is entitled to undertake a critical examination of the facts of a particular complaint to determine whether the Minister’s decision was reasonable. The correct legal approach is to determine whether the complaint when viewed against its factual background is frivolous or vexatious. If it is not, then the Minister must refer the dispute to the Industrial Court.

On the facts of this case, the dispute was neither frivolous nor vexatious and the Minister’s decision not to refer is therefore bad in law;

(5) By reason of the nature of the power vested in the Minister, if he falls to give reasons for his refusal to refer a dispute to the Industrial Court, it may be reasonably inferred that he had no valid reasons for the decision he made;

(6) The material that was made available to the learned Judge in the High Court was the same as that which was before the Minister.

The fact that the domestic inquiry found the respondent guilty of misconduct is irrelevant;

(7) The learned Judge was correct in issuing mandamus to the Minister requiring him to refer the dispute to the Industrial Court.

Even if he was wrong in doing so, this Court may issue a direction to the Minister under para. 1 of the Schedule to the Courts of Judicature Act 1964, requiring him to refer the dispute.

Rather than dealing with each of these submissions in seriatim, I propose to discuss them under the broad topics which they raise.

But there is one submission which, I think, may be conveniently dealt with now. It is the fourth submission made in support of the appeals with which I entirely agree. No quarrel may be had with the proposition that the exercise of executive discretion is subject to the fetters which Counsel have correctly formulated. There are but a few exceptions to the rule, none of which are relevant to these appeals. So much for the fourth submission.

I shall now begin my consideration of the other arguments advanced in these appeals. In order to properly appreciate them, and indeed the whole of the jurisprudence that our Courts have developed in the field of industrial law, it is necessary to first examine the rules of the common law that govern the relationship of employer and employee.

The Position at Common Law

At common law, an employee who is dismissed in breach of the terms of the contract governing his employment may sue for damages for breach of contract. He may not, save in very exceptional cases, obtain specific enforcement of his contract. See, Francis V. Municipal Councillors Of Kuala Lumpur [1962] 1 LNS 40. The remedy available to an employee at common law was best described by Raja Azlan Shah J (as he then was) in Menon V. The Brooklands (selangor) Rubber Co. Ltd [1968] 1 LNS 77. His judgment was upheld by the then Federal Court whose decision is reported at [1968] 2 MLJ 186. But I prefer to quote from the judgment handed down at first instance. This is what Raja Azlan Shah J said (at p. 16):

The fact that the master has not heard the servant in his own defence is irrelevant; the criterion is whether facts emerging at the trial prove breach of contract.

If the facts do not warrant summary dismissal, the master must pay damages; see Ridge v. Baldwin [1963] 2 All ER 66, 71. The onus is on the defendants to prove that summary dismissal was justified: see Savage v. British India Steam Navigation Co. Ltd. 46 TLR 295.

The common law, in its dealings with workmen, is therefore both archaic and unfair. It is based upon English medieval notions of a vassal’s subservience to the lord of a manor. Hence the use of the demeaning expression “master and servant.” It appears that, at least for the moment, little may be done to improve the position because of well-entrenched principles of the common law and doctrines of equity.

In Dato’ Abdullah bin Ahmad v. Syarikat Permodalan Kebangsaan Bhd. & Ors. [1990] 3 MLJ 505 , Chan J (now JCA) made a valiant attempt to free our common law of its medieval shackles by awarding specific relief in what was essentially a case of wrongful dismissal. His reasoning had the merit of logic and justice. But he was reversed by the Supreme Court which preferred the traditional view. See, Dato’ H.M Shah v. Dato’ Abdullah bin Ahmad [1991] 1 CLJ 238; [1991] 1 MLJ 91 . So the outdated principles of the common law and doctrines of equity continue to work their will in this area of the law.

It was against this background that Parliament intervened. That intervention came in the form of the Act, followed by a series of amendments made to it, including the introduction of s. 20 in its present form. Since that section lies at the heart of the present appeals I shall now turn my attention to it.

Position under the Act

Section 20 of the Act provides as follows:

20. Representations on dismissals.

(1) Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director-General to be reinstated in his former employment; the representations may be filed at the office of the Director-General nearest to the place of employment from which the workman was dismissed.

(1A) The Director-General shall not entertain any representations under sub-s. (1) unless such representations are filed within sixty days of the dismissal:

Provided that where a workman is dismissed with notice he may file a representation at any time during the period of such notice but not later than sixty days from the expiry thereof.

(2) Upon receipt of the representations the Director-General shall take such steps as he may consider necessary or expedient so that an expeditious settlement thereof is arrived at; where the Director-General is satisfied that there is no likelihood of the representations being settled, he shall notify the Minister accordingly.

(3) Upon receiving the notification of the Director-General under sub-s. (2), the Minister may, if he thinks fit, refer the representations to the Court for an award.

(4) Where an award has been made under sub-s. (3), the award shall operate as a bar to any action for damages by the workman in any Court in respect of wrongful dismissal.

(5) This section shall not apply to the dismissal of a workman in circumstances arising out of a contravention of s. 59 where proceedings have been commenced before a Court in respect of an offence under s. 59(1) ; where, while proceedings are pending under this section, proceedings arising out of the same dismissal are commenced before a Court in respect of an offence under s. 59(1) , the proceedings under this section shall not be proceeded with further.

(6) In any proceedings under sub-s. (2):

(a) an employer may represent himself or be represented by his duly authorized employee or, where he is a member of a trade union of employers, be represented by an officer or employee of such trade union of employers or, notwithstanding anything to the contrary contained in any written law relating to the registration of trade unions, by any official of an organisation of employers registered in Malaysia (not being a trade union of employers);

(b) a workman may represent himself or, where he is a member of a trade union of workmen, be represented by an officer or employee of such trade union of workmen or, notwithstanding anything to the contrary contained in any written law relating to the registration of trade unions, by any official of an organisation of workmen registered in Malaysia (not being a trade union of workmen).

(7) Save as provided in sub-s. (6), a workman or employer shall not be represented by an advocate, adviser, consultant or by any other person whatsoever.

(8) For the purpose of carrying out his functions under this section the Director-General:

(a) shall have the power to direct either party to furnish to him, within such period as may be specified in that direction, such information as he may consider necessary or relevant; and

(b) may, if he deems it necessary or expedient, direct any person engaged in or connected directly or indirectly with the dismissals to attend a conference to be presided over by the Director-General or such person as he may appoint at such time and place as may be specified in the direction.

This section has an interesting history. I shall not go into it at any length in this judgment. But some mention must be made of it to fully appreciate parliamentary purpose.

When the Act was first passed in 1967, it did not carry any provision akin to the present s. 20 . The Minister’s power to refer trade disputes to the Industrial Court was confined to disputes between a trade union and an employer. Nonunion workmen were left to the harsh consequences of a common law founded upon outdated concepts. Parliament saw and recognised the injustices meted out to non-union workmen. It acted.

By an amendment passed in 1971, there was introduced into the Act s. 16A under which the power to deal with complaints of dismissal by non-union workmen and to give them relief was vested in the Minister. A further amendment to the Act deleted s. 16A and introduced s. 20 , but not in its present form. For the first time, the beneficial provisions of the Act were made available to a non-union workman who considered himself to have been wrongfully dismissed.

The former s. 20 conferred upon the Minister a discretion whether to refer the complaint of a non-union workman to the Industrial Court. Once referred, the Industrial Court could hear and adjudicate on the claim. If it came to the conclusion that there had been a dismissal which was without just cause or excuse, it could direct reinstatement – a remedy, as earlier observed, not readily available in the ordinary Courts. Or, it could order the payment of reasonable compensation, which in monetary terms may, and often does, far exceed the meagre damages for breach of a contract of service recoverable at common law.

But there were many drawbacks and a general lacuna in the former provision. A union member who had been dismissed and whose cause his union declined to espouse was bereft of any remedy under the Act. The powers of the Director-General at the conciliatory stage were not clearly spelled out. The time to lodge a complaint with the Director-General was limited to one month which period was often found to be inadequate. There was much uncertainty as to when time began to run when the dismissal was not summary but cloaked as a contractual termination. It is to remedy these matters that the former s. 20 was wholly repealed and the provision in its present form was enacted. Other extensive amendments were also made to the Act. But they are not relevant to these appeals. All these amendments were made in 1989. The amendments to s. 20 , however, left intact the Minister’s discretion conferred upon him by the predecessor section.

Approach to Interpretation

I have thus far alluded to the position at common law and the legislative history behind s. 20 of the Act . My purpose in doing so is to use it as an aid to ascertain Parliament’s intention in enacting the section, and more particularly, its third subsection which confers a discretion upon the Minister, the exercise of which forms the subject matter of these appeals. In my judgment, the purpose for which Parliament passed the Act may not be properly discovered unless one bears in mind the general background against which the legislature acted. In this way, one may gather the true spirit and intendment of the provision that has fallen for construction in these appeals.

In Stock v. Frank Jones (Tipton) Ltd. [1978] 1 WLR 231, Lord Simon (at p. 236 of the report) referred to it as, “the ‘functional’ construction of a statute.” But whatever be the nomenclature employed, the method of interpreting legislation now under discussion is of ancient repute.

In Heydon’s Case [1584] 76 ER 637, all the Judges of the realm assembled to render their opinion upon an Act of Parliament which they were called upon to interpret. Their resolution, which has come to be known as the rule in Heydon’s Case, was expressed in the following terms:

And it was resolved by them (the Judges) that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:

1st What was the common law before the making of the Act.

2nd What was the mischief and defect for which the common law did not provide.

3rd What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth.

and 4th The true reason of the remedy: and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo (for private convenience) and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico (for public benefit).

I must confess that I have searched in vain for so clear a statement of the duty cast upon a judicial interpreter of parliamentary intention. Judgments in later cases have either sought to improve the rule or to explain it. However, they are all, with great respect to the eminent Judges who spoke upon the subject, but a pale reflection of the true original.

Adopting the approach that has commended itself to me, it cannot be in doubt that s. 20 must, as a whole, receive an interpretation that will have the effect of advancing the purpose for which Parliament passed the Act. To invert the proposition, this Court should not, in the process of determining the true nature and scope of s. 20 , apply a rule of construction that will have the effect of thwarting the object for which Parliament has enacted the section. That object may be gauged from the way in which the legislature, fully cognisant of the inadequacies of the common law in the area of employment, has intervened with a view to improve the legal position in favour of workmen. It has done so in stages through the amendments I have earlier referred to. Each amendment was an improvement upon the former – a clear move in a forward direction.

The section is obviously a remedial provision, housed in an Act that is itself a piece of beneficent social legislation. It should, therefore, based on the rule in Heydon’s Case receive a broad and liberal interpretation

It cannot be gainsaid that Parliament intended to elevate the status of a workman as defined in the Act from the weak and subordinate position assigned to him by the common law to a much stronger position. The legislature has willed that the relationship of employer and workman as resting on a mere consensual basis that is capable of termination by the employer at will with the meagre consequence of paying the hapless workman a paltry sum as damages should be altered in favour of the workman. It has accordingly provided for security of tenure and equated the right to be engaged in gainful employment to a proprietary right which may not be forfeited save and except for just cause or excuse. Due recognition of this higher status must therefore be accorded by our Courts if they are to act in obedience to the will of Parliament.

Employment as a Fundamental Right

Quite apart from being a proprietary right, the right to livelihood is one of those fundamental liberties guaranteed under Part II of the Federal Constitution. See, Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor. [1996] 2 CLJ 771 and the cases cited therein. The reasons for the view taken having been expressed by the majority in that case, I find it unnecessary to repeat them here. Suffice to say that the expression “life” appearing in Art. 5(1) of the Federal Constitution is wide enough to encompass the right to livelihood.

The desire of Parliament to protect the nation’s work-force from the harshness of an unbending and inveterate common law and doctrines of equity, as expressed by the passing of the Act, may thus be seen to be entirely in harmony with the terms of the supreme law of the Federation. The high standards of social justice so carefully established by the legislature and by the framers of the Federal Constitution ought not, in my judgment, to be consciously lowered by any decision of this Court.

Ambit of the Minister’s Discretion

Having determined the nature of the right vested in a workman by Parliament and the Federal Constitution, it now becomes necessary to deal with those matters that are relevant to the exercise of the discretion conferred upon the Minister by s. 20(3) of the Act .

But before I embark upon a discussion of the law in this area, it may be convenient to dispose of the first submission advanced on behalf of the appellant and adopted by learned Senior Federal Counsel. It is to the effect that the Minister does not make a decision when he exercise his discretion under s. 20(3) .

Let me say at once that I have no difficulty in rejecting this argument. It is quite clear that the section under consideration gives the Minister a choice. He may either refer the representations to the Industrial Court or he may refuse to do so. When he settles upon the particular course that appeals to him, he makes a decision. He decides whether the matter should go further or should terminate at his level. The exercise of any discretion – executive or judicial – results in the making of a decision and no amount of intellectual gymnastics can produce an opposite conclusion.

With that I now turn to the subject at hand.

Now, it is clear that Parliament has, by the language it has employed in the third sub-section to s. 20 , conferred upon the Minister power to refer to the Industrial Court for an award, representations made under the first sub-section. The actual words by which the power, or more appropriately, the discretion, is conferred are, “may, if he thinks fit.”

The sub-section, however, gives no indication of the factors or considerations by which the Minister is to be guided when exercising his discretion. Yet, all before us are agreed that the Minister’s discretion is fettered. Indeed, both Counsel for the appellant and the Minister correctly concede, as I have earlier observed, that the exercise of discretion under s. 20(3) may be quashed if in its exercise there was committed one or more ‘Anisminic errors’ or if the decision arrived at was tainted with ‘Wednesbury unreasonableness’.

That said, it is however, necessary and desirable to identify, with as much precision as possible, the parameters of the discretion conferred by Parliament upon the Minister. There are two reasons for this. First, all those who are charged with the implementation of the Act should be able to gauge with fair certainty the ambit of the discretion, the exercise of which is called for from time to time. Second, Courts which are the repository of the power of judicial review of administrative action need to ascertain whether, in a given case, there may or may not have been an transgression beyond the permitted ambit.

It may, I think, be stated as a very general guide that a fair exercise of the discretion in question would be that which best achieves the object of the Act. That object is disclosed in the preamble to the Act which declares itself to be an Act:

to provide for the regulation of the relations between employers and workmen and their trade unions and the prevention and settlement of any differences or disputes arising from their relationship and generally to deal with trade disputes and matters arising therefrom.

The approach that ought to be taken in a case where statute confers upon the executive a discretion to refer a dispute to a tribunal specially created for that purpose was stated by Lord Denning MR in his dissenting judgment in Padfield v. Minister of Agriculture, Fisheries & Food [1968] AC 997,1006 as follows:

It is said that the decision of the Minister is administrative and not judicial. But that does not mean that he can do as he likes, regardless of right or wrong. Nor does it mean that the Courts are powerless to correct him. Good administration requires that complaints should be investigated and that grievances should be remedied. When Parliament has set up machinery for that very purpose, it is not for the Minister to brush it on one side. He should not refuse to have a complaint investigated without good reason.” (Emphasis added.)

On further appeal, the House of Lords (Lord Morris of Borth-y-Gest dissenting) upheld the minority view expressed by the Master of the Rolls and reversed the majority. Upon the requirement that executive discretion should be exercised so as to attain the objects and policy of the Act conferring such discretion, the following opinions appearing in the speeches of the majority of the House are of assistance:

It is implicit in the argument for the Minister that there are only two possible interpretations of this provision – either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case. I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the Court.

In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the Court. (per Lord Reid, at p. 1030):

The discretion must be exercised by the Minister in accordance with the intention of the Act but there is nothing in the language used in the subsection introduced by the words ‘if the Minister in any case so directs’ nor in the context of the Act and earlier legislation to support the view that an absolute right to an enquiry is given to an aggrieved person. The argument of the appellants is undermined, in my opinion, by their concession that trivial, frivolous or vexatious complaints can be shut out as, for example, where a complaint has been recently dealt with in a parallel case. True that the scheme is of a compulsory nature and s. 19 is designed for the redress of grievances but this is not to exclude the Minister’s discretion to reject a complaint if he exercises his discretion according to law.

The succeeding section, s. 20 of the Act , indicates the position of the Minister as responsible for giving directions to a board as to its acts or omissions as he considers necessary or expedient in the public interest and his directions have to be complied with so far as the board is not required to do anything which it has no power to do. (per Lord Hodson, at pp. 1045-6):

It is quite clear from the Act in question that the Minister is intended to have some duty in the matter. It is conceded that he must properly consider the complaint. He cannot throw it unread into the waste paper basket. He cannot simply say (albeit honestly) ‘I think that in general the investigation of complaints has a disruptive effect on the scheme and leads to more trouble than (on balance) it is worth; I shall therefore never refer anything to the committee of investigation.’ To allow him to do so would be to give him power to set aside for his period as Minister the obvious set intention of Parliament, namely, that an independent committee set up for the purpose should investigate grievances and that their report should be available to Parliament. This was clearly never intended by the Act. Nor was it intended that he could silently thwart its intention by failing to carry out its purposes. (per Lord Pearce, at p. 1053):

My Lords, I believe that the introduction of the adjective ‘unfettered’ and its reliance thereon as an answer to the appellants’ claim is one of the fundamental matters confounding the Minister’s attitude, bona fide though it be. First, the adjective nowhere appears in s. 19 , it is an unauthorised gloss by the Minister. Secondly, even if the section did contain that adjective I doubt if it would make any difference in law to his powers, save to emphasise what he has already, namely that acting lawfully he has a power of decision which cannot be controlled by the Courts; it is unfettered.

But the use of that adjective, even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the executive, namely that in exercising their powers the latter must act lawfully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister rather than by the use of adjectives. (per Lord Upjohn, at p. 1060).

Put simply, the first question which the Minister ought to ask himself is whether the way in which he proposes to exercise his discretion will have the effect of preventing or settling the particular dispute; for that is what the Act is primarily aimed at. However, as I have explained just a moment ago, this approach to the exercise of discretion is only a very general guide because a rigid adherence to it may result in every case being referred to the Industrial Court. That this is certainly not what Parliament intended is manifested by its conferment upon the Minister of a discretion whether to refer or not to refer a representation to the Industrial Court.

The second question that the Minister must ask himself is whether, objectively speaking, the representations made under s. 20(1) are frivolous or vexatious. If they are, then he may well be justified in refusing a reference. Whether they are or are not depends upon the facts of each case. But there are some pretty obvious cases where a reference may be properly denied.

Take the case of a workman who has admitted the commission of serious misconduct such as an assault upon his employer or a fellow employee, or to theft of his employer’s property; or where, for example, the employer, after dismissing the workman, repents and reinstates or offers to reinstate him in his former employment without loss of any benefits or privileges. In all these examples, the Minister may well be within the purview of the section in declining a reference. In the last example, there is simply nothing to refer because of the reinstatement or the offer thereof. If in such a case the Minister does decide to refer, then, the exercise of his discretion may be quashed in certiorari proceedings as being obviously unreasonable. Reinstatement is the primary remedy in industrial law and an acceptance of it or an unreasonable rejection of it by the workman must be treated as having put an end to the dispute.

I pause to emphasise that the Minister’s decision, one way or the other, upon the question whether representations made under s. 20(1) are frivolous or vexatious is neither final nor conclusive, and may be re-opened in judicial review proceedings. A Court may, upon an objective assessment of the facts and material that was placed before the Minister, fairly come to the conclusion that the representation is, or is not frivolous or vexatious and hence merits reference to the Industrial Court for an award.

The approach which I adverted to a moment ago is what I will term as “the Hashim Yeop test”. It was formulated by the eminent Judge, whose name it bears, Minister of Labour, Malaysia v. Lie Seng Fatt [1990] 1 CLJ 1103; [1990] 2 MLJ 9 . The facts of that case were these.

Lie Seng Fatt was the general manager of Koperasi Belia Bersatu Bhd. (‘the Koperasi’). The Koperasi terminated his services as general manager and transferred him to its wholly owned subsidiary. Encik Lie was unhappy. He complained to the Director-General who reported to the Minister. After considering the material before him, the Minister came to the conclusion that it was not a fit matter to refer to the Industrial Court. On the facts disclosed, there was clearly no dismissal, either actual or constructive. Yet, the High Court, on the application of Encik Lie, quashed the Minister’s decision not to refer. The Minister appealed. In allowing the appeal, Hashim Yeop A. Sani CJ (Malaya), said (at p. 12):

The Minister had a discretion under s. 20(3) of the Act and that is not in dispute. The issue is whether the discretion is unfettered.

To say it is an unfettered discretion is a contradiction in terms. Unfettered discretion is another name for arbitrariness.

The Minister’s discretion under s. 20(3) is wide but not unlimited.

As stated earlier, so long as he exercises the discretion without improper motive, the exercise of discretion must not be interfered with by the Court unless he had misdirected himself in law or had taken into account irrelevant matters or had not taken into consideration relevant matters or that his decision militates against the object of the statute. Otherwise he had a complete discretion to refuse to refer a complaint which is clearly frivolous or vexatious which in our view this is one. (Emphasis added.)

In Telco Convoy Drivers Mazdoor Sangh & Anor. v. State of Bihar & Ors. [1989] 2 LLJ 558, 561 the Supreme Court of India adopted a similar approach in a case where the discretion whether to refer a dispute to the Industrial Tribunal was vested by the relevant legislation in the State Government. Dutt J, when delivering the judgment of the Court said:

Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under s. 10(1) of the Act . As has been held in MP Irrigation Karamchari Sangh’s case (supra), (Madhya Pradesh Irrigation Karamchari Sangh v. State of Madhya Pradesh [1985] 1 LLJ 519)there may be exceptional cases in which the State Government may, on a proper

examination of the demand come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the tribunal for adjudication of valid disputes, and to allow the Government to do so would be to render s. 10 and s. 12(5) of the Act nugatory.

That a proper application of the Hashim Yeop test calls for a critical scrutiny of the factual matrix is exemplified by at least two other decisions of the Supreme Court which were referred to us during argument. The first of these is Minister of Labour, Malaysia v. National Union of Journalists, Malaysia [1991] 1 CLJ 31; [1991] 1 MLJ 24 , the facts of which were as follows.

One Yazid Othman was a senior journalist employed by the Utusan Melayu. In consequence of certain events, which are not relevant for present purposes, Yazid was dismissed by his employer. His cause was espoused by the Union which reported the trade dispute to the Industrial Relations Department. In due course, the Director-General made his report upon the dispute to the Minister who, in the exercise of the discretion conferred upon him by s. 26(2) of the Act , declined to refer the dispute to the Industrial Court. His decision was, on application by the Union, quashed by the High Court which also issued mandamus to the Minister directing him, “to refer the said dispute to the Industrial Court under s. 26(2) of the Industrial Relations Act 1967 .” (See p. 26 of the report.) However, Encik Sivabalah, during the course of argument, advised us that this was not the terms of the order of mandamus issued to the Minister. The order in that case had in fact directed the Minister to reconsider the complaint in accordance with law. But, for reasons that will appear later, nothing really turns upon the point.

To resume the narrative of that case, the Minister, being dissatisfied with the decision of the High Court, appealed to the Supreme Court, which dismissed his appeal. The judgment of the Supreme Court (comprising Hashim Yeop Sani CJ (Malaya), Harun Hashim and Jemuri Serjan SCJJ) was, on that occasion delivered by Jemuri Serjan SCJ (later CJ (Borneo)). After referring to the decisions in Lie Seng Fatt and Padfield (supra), his Lordship said:

The question is how should these principles be applied to the instant case? In this regard Lord Roskill’s statement in Congreve v. Home Office [1976] 1 QB 629, at p. 657 is apt:

Nothing I am about to say goes in any way outside or beyond what was authoritatively laid down in those cases. But the law does not stand still, and those cases, while stating the relevant principles, leave open their application to the particular facts of particular cases which from time to time come before the Courts.

In our view this question must be solved aliunde by examining the facts upon which the Minister expressed himself as satisfied that it was not expedient for him to refer the trade dispute to the Industrial Court. It is therefore convenient to look at the facts of this case. (Emphasis added.)

His Lordship, having conducted a meticulous examination of the facts, turned to the evidence filed by the Minister and said:

In his affidavit dated 1 April 1989, the Minister explained the reasons why he decided it was not expedient to refer the trade dispute to the Industrial Court.

He had taken cognisance of the fact that the trade dispute was in respect of Yazid’s dismissal by the Utusan Melayu on 4 October 1987 as a result of an alleged adverse publicity which had damaged the image of Utusan Melayu. (See paras. 4 and 5). He further found that Yazid Othman had been given an opportunity to reply to the show-cause letter issued by the Utusan Melayu (see para. 6). He had also considered all the relevant documents including the report of the union and the replies of Yazid Othman and after due and careful consideration of all the facts and circumstances of the case he was satisfied that Yazid Othman had been dismissed with just cause and excuse (see para. 8).

We could not, however, identify which of the documents were relevant documents referred to by the Minister because he did not categorically particularize which documents were relevant and which were not, bearing in mind that there were three letters from the Utusan Melayu, one letter from Yazid Othman, four letters from the union including the report and the submission, and four extracts of the newspaper reports relating to the alleged misconduct of Yazid Othman. Be that as it may, we were satisfied that the Minister had only addressed his mind and given more weight to the adverse publicity, the reply from Yazid Othman to the Utusan Melayu’s letter and the letter dismissing Yazid Othman.

It would seem that the facts that weighed heavily on the mind of the Minister was the adverse publicity and the somewhat unsatisfactory reply from Yazid Othman. He completely ignored or had not given sufficient weight to the substantive allegations of misconduct against Yazid Othman, his public denial at the interview with The New Straits Times published on 30 August 1987, his denial in his letter to the Utusan Melayu, the report and the submission submitted by the union on behalf of Yazid Othman. The submission clearly raised the question of breach of the rule of natural justice in that the Utusan Melayu dismissed Yazid Othman without proper inquiry which should have put him on notice that the validity of the dismissal could be questionable.

In our view these are factors which the Minister should have taken into consideration and should have been given sufficient weight because they are palpably relevant and if he had done so he might have come to a different conclusion. It can therefore be said that in arriving at his decision the Minister had acted upon an incorrect basis of facts, thus vitiating the decision. In any event these factors clearly raised a number of pertinent issues which ought to be properly inquired into by the Industrial Court and more importantly the innocence of Yazid Othman of all the allegations against him, in the light of his denial, takes a centre stage prominence in establishing the invalidity of his dismissal.

Perhaps, it is pertinent at this juncture to recall what Lord Denning MR said in the Tameside case (Secretary of State v. Tameside Metropolitan Borough Council [1977] AC 1014) at p. 1025 when dealing with the exercise of discretion by an executive, particularly in such matters as this:

Much depends on the matter about which the Secretary of State has to be satisfied. If he is satisfied on a matter of opinion, that is one thing. But if he has to be satisfied that someone has been guilty of some discreditable or unworthy or unreasonable conduct, that is another.

To my mind, if a statute gives a Minister power to take drastic action if he is ‘satisfied’ that a local authority has acted or is proposing to act improperly or unreasonably, then the Minister should obey all the elementary rules of fairness before he finds that the local authority is guilty or before he takes drastic action overruling them.

In the light of the principles that we have adverted to earlier on in the judgment we are of the view that the Minister in refusing to refer the trade dispute to the Industrial Court upon the grounds we already mentioned had acted unlawfully or to borrow the language of Lord Upjohn in the Padfield case had overstepped the true limits of his discretion or as it has been frequently said in the prerogative writ cases exceeded his jurisdiction.

In this respect, we agree with the finding of the learned judge.

It was urged upon us to consider our own decision of 28 May 1990 in the case of Su Thai Seng v. Minister of Labour and Manpower & Anor. (unreported).That case would not avail the appellants because it can easily be distinguished on its particular facts in much the same way the cases of Lie Seng Fatt and National Union Of Hotel, Bar And Restaurant Workers V. Minister Of Labour And Manpower [1980] 1 LNS 50 are distinguishable. In Su Thai Seng’scase the appellant was found guilty of insubordination and dismissed from service after due inquiry before a domestic inquiry committee. There was no question of mala fide in the dismissal. Therefore the Minister in that case was satisfied that the dismissal of Su Thai Seng was with just cause and excuse and therefore not a proper case for reference to the Industrial Court.

The facts of the instant case were nowhere nearly similar to those of the two cases. (Emphasis added.)

The second is Minister Of Labour, Malaysia V. Chan Meng Yuen [1992] 1 CLJ 216 (Rep), the facts of which were as follows.

Chan Meng Yuen, the respondent in that case, was employed by Magnum Corporation Bhd. (‘Magnum’), initially as an accountant and later as its general manager. In June 1987, Magnum retrenched Chan and paid him RM72,666.67 as retrenchment benefits. Magnum then offered him reemployment to another post on the same salary and with no loss of service. This, rather generous offer, was rejected. Chan, who considered himself as having been dismissed without just cause or excuse, then lodged a representation to the Director- General under s. 20(1) of the Act . His representation was duly referred to the Minister who, in the exercise of his discretion refused to refer it to the

Industrial Court for an award. Chan later successfully applied for certiorari and mandamus. The Minister appealed to the Supreme Court which, in allowing the appeal, undertook a careful scrutiny of the facts as demonstrated by the following passage in the judgment of Harun Hashim SCJ at p. 342 of the report:

It was urged before us that in exercising his discretion under s. 20(3) of the A6ct , policy decisions come into play and following National Union of Hotel, Bar & Restaurant Workers v. Minister of Labour and Manpower the Courts should not interfere. In that case the Minister gave his reasons. He has not done so here but it was suggested by the learned senior federal Counsel who appeared for the Minister that the policy decision was that as there is an alternative remedy available to the respondent to seek relief in the Civil Court the Minister has acted reasonably. That may be so but the Minister has not said so and we cannot accept a statement from the Bar as being the reason the Minister had in arriving at his decision.

We can only look at the facts as stated in the affidavits before the Court.

What then are the facts in this case? Firstly, that the respondent is being retrenched from employment on account of the company’s review of its management requirements. The company had an overseas subsidiary company (Phicom PLC) which was under the responsibility of the group general manager. That subsidiary company was disposed of in June 1987 resulting in the group general manager having less responsibilities. As the main business activity of the company is the Gaming Division, the board of directors of the company decided that the group general manager should take over direct responsibility of the Gaming Division. It is obvious that one of them had to go, either the group general manager or the respondent. The directors decided on the respondent. Secondly, retrenchment is an accepted eventuality in the private sector. In the instant case, provision was made for such an eventuality in the respondent’s terms of employment and an amount of RM72,666.67 was payable to the respondent as retrenchment benefits for his nine years service with the company. Thirdly, at his request the respondent was offered re-employment by the company at the same salary with continuity of service from 1978 but he turned it down because the other terms of re-employment were not what had been promised him verbally.

The position offered was that of Manager (Special Functions) reporting direct to the group general manager and to ‘be given special assignments whenever necessary and where appropriate with the Magnum Group of Companies’. This offer clearly shows that the respondent was indeed redundant to the company’s management requirements in respect of his late position and an act of indulgence on the part of the company. (Emphasis added.)

In the event, the Supreme Court came to the following conclusion:

On these facts, we are of the view that the Minister acted reasonably in exercising his discretion not to refer the respondent’s representations to the Industrial Court. It certainly cannot be said that the facts point overwhelmingly in favour of a different decision. (Emphasis added).

By reason of the views I have earlier expressed, based on the approach taken by the Supreme Court in the trilogy of cases discussed in the foregoing paragraphs of this judgment, I find no difficulty in rejecting Encik Sivabalah’s fifth submission. To recall, that submission was to the effect that a Court is not entitled to undertake an examination of the facts of a case in order to determine whether the Minister had exercised his discretion in accordance with law. In each of the three cases earlier discussed, the Supreme Court, as may be plainly seen from the passages reproduced from the respective judgments, did say that the facts of each of them had to be examined and went on to scrutinise the facts.

In Lie Seng Fatt and Chan Meng Yuen, an examination of the facts revealed that the Minister had exercised his discretion properly. However, in National Union of Journalists , the facts when analysed led to the conclusion that the discretion had not been exercised in accordance with law. To contend, as Counsel for the appellant did, that the Supreme Court had not, in these three cases, undertaken any factual examination is unacceptable.

To summarise, when a question arises as to whether the Minister has correctly exercised his discretion under s. 20(3) of the Act , it is the solemn duty of a Court to undertake a meticulous examination of the facts that were made available to the Minister. If the examination reveals that the representations made under s. 20(1) are neither perverse, frivolous nor vexatious, a decision not to refer is liable to be quashed by an order of certiorari.

Before proceeding further, there is one other authority which I consider to be of assistance. It is Bombay Union of Journalists v. State of Bombay [1964] 1 LLJ 351 where Gajendragadkar J made the following observation (at p. 354 of the report):

It is true that if the dispute in question raises questions of law, the appropriate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under s. 10(1) read with s. 12(5) or not. If the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relation between the employer and the employees in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or not. It must, therefore, be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under s. 10(1) of the Act .

It follows from these decisions that the Minister must bear in the forefront of his mind that the Act has established a special tribunal to adjudicate upon a dispute arising from representations made under s. 20(1) of the Act and that it is therefore no part of his function to arrive at a concluded view upon the merits of the dispute. His role is limited to ascertaining whether, on the facts and material placed before him, the representations raise serious questions of fact or of law calling for adjudication. And, as I have already said, his determination upon the question one way or the other is not conclusive.

That brings me to the third consideration. It arises directly from what I have said in the preceding paragraph about the facts and materials before the Minister when he makes his decision under s. 20(3) of the Act .

Now, there may be cases where an employer has held a domestic inquiry into charges of misconduct leveled against a workman and found him guilty of the alleged misconduct. Or he may have held no inquiry at all before dismissing the workman. Until very recently, there prevailed some uncertainty about the consequences that flow from a failure on the part of an employer to conduct a domestic inquiry. A study of the awards handed down by the Industrial Court shows a division of opinion on the point. Some held that the failure to conduct an inquiry was fatal and was a ground upon which relief could be granted. Others held that the failure of an employer to conduct a domestic inquiry was irrelevant as the hearing before the Industrial Court constituted a sufficient hearing.

The uncertainty that prevailed heretofore has now been resolved by the recent decision of the Federal Court in Wong Yuen Hock v. Hong Leong Assurance Sdn. Bhd. & Anor. [1995] 3 CLJ 344 at p. 356 ; [1995] 2 MLJ 753 , where Mohd Azmi FCJ said (at p. 767):

It was therefore the function of the Industrial Court in this particular case to determine on the available evidence whether Wong had misconducted himself by his involvement in the sales of the two motor car wrecks against the unwritten rules of Hong Leong which prohibited its staff from such activity. Since the answer was in the positive, the next question for the Court to ask itself was whether such misconduct constituted a ‘just cause’ or ‘just excuse’ for the dismissal? It was not within the ambit of the reference for the Industrial Court to determine whether Hong Leong ought to be punished for failing to hold a domestic inquiry. The Industrial Court was not competent to declare the dismissal void for failure to comply with the rules of natural justice. The very purpose of the inquiry before the Industrial Court was to give both parties to the dispute an opportunity to be heard irrespective of whether there was a need for the employer to hold a contractual or statutory inquiry. We were confident that the Industrial Court as constituted at present was capable of arriving at a fair result by fair means on all matters referred to it. If therefore there had been a procedural breach of natural justice committed by the employer at the initial stage, there was no reason why it could not be cured at the rehearing by the Industrial Court. (Emphasis added)

No clearer expression may, I think, be found of the irrelevance of an employer’s failure to hold a domestic inquiry in the context of an adjudication by the Industrial Court. The converse must also, I think, hold true.

The fact that an employer has conducted a domestic inquiry against his workman is, in my judgment, an entirely irrelevant consideration to the issue whether the latter had been dismissed without just cause or excuse. The findings of a domestic inquiry are not binding upon the Industrial Court which rehears the matter afresh. However, it may take into account the fact that a domestic inquiry had been held when determining whether the particular workman was justly dismissed.

I may add that the principle in Wong Yuen Hock (supra) has been restated and affirmed by the Federal Court in Milan Auto Sdn. Bhd. V. Wong Seh Yen [1995] 4 CLJ 449.

All that has just been said in these two cases applies, of course, to an adjudication by the Industrial Court. But do the same considerations apply to the Minister when exercising his discretion under s. 20(3) of the Act ? I think that they do.

Parliament has created three separate and distinct powers in respect of the same subject-matter and conferred each of them upon separate authorities. First, there is the conciliatory power vested in the Director-General whose sole function is to mediate and attempt to settle disputes as early as possible. It is no part of his function to ascertain the law or the facts or to make any determination upon either. If his attempts to reconcile the parties fails he merely notifies the Minister of this fact. See,Minister of Labour and Manpower & Anor. v. Wix Corp. South East Asia Sdn. Bhd. [1980] 2 MLJ 248,250 [1985] 2 CLJ 98 . If it is found in any case to have done more than what the law permits, his action will be liable to be quashed on the ground that it is ultra vires the Act.

Second, there is the power vested in the Minister to refer representations made under s. 20(1) . It is a power he must, by reason of the combined operation of the provisions of Arts. 5(1) and 8(1) of the Federal Constitution, exercise fairly.

Third, there is the power to adjudicate upon the same representations vested in the Industrial Court which, by the terms of the Act, is enjoined to act, inter alia, according to equity and good conscience when making its award.

The way in which the Act is constructed makes it clear that it is only the Industrial Court which is conferred with an adjudicatory function. The two precedent powers, namely, the Director-General and the Minister cannot therefore assume a function expressly reserved to the third. It follows that, prima facie, considerations that are irrelevant to the Industrial Court’s decision- making process cannot be, and are not, relevant considerations vis-341-vis the referring authority.

Accordingly, the Minister, when exercising his discretion, ought not to be influenced by the fact that a domestic inquiry was held by an employer before dismissing his workman. Were it otherwise, the guilt or innocence of a workman upon a charge of misconduct would be decided not by the Industrial Court, but by the employer himself. That, with all respect, is not the purpose for which Parliament went through the elaborate process of legislating the Act and setting up a special machinery for the vindication of the rights of workmen.

In arriving at this conclusion, I must confess that I have been much inspired by the judgment of Mohd Azmi FCJ in Wong Yuen Hock (supra). I also find support for the view I take of the law from the following passage in the judgment of Bhagwati J (later Chief Justice of the Indian Supreme Court) in Workmen of Syndicate Bank, Madras v. Government of India [1984] 1 SCLJ 685:

We are of the view that the ground on which the Government of India has refused to refer the dispute relating to the imposition of punishment of stoppage of three increments on Shri Murugavelu to the Industrial Tribunal is not a valid ground. It would not be right for the Government of India to refuse to make the reference on the ground that the charges of misconduct against the worker were proved during a duly constituted departmental inquiry and penalty was imposed on the worker after following the required procedure. If such a ground were permissible it would be the easiest thing for the management to avoid a reference to adjudication and to deprive the worker of the opportunity of having the dispute referred for adjudication even if the order holding the charges of misconduct proved was unreasonable or perverse or was actuated by mala fides, or even if the penalty imposed on the worker was totally disproportionate to the offence said to have been proved. The management has simply to show that it has held a proper inquiry after complying with the requisite procedure and that would be enough to defeat the workers claim for adjudication.

Such a situation cannot be countenanced by law.

The authorities thus far cited, tell against so much of the appellant’s third submission as contends for the relevance and importance of the domestic inquiry that was held in this case. I have therefore no difficulty in rejecting it as being devoid of merit.

Duty to Give Reasons

(A) Under English Common Law

By the common law of England, a public decision-taker is, for historical reasons, not under an obligation to provide reasons for his decisions. The principle and its rationale have been succinctly stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, 5th Edn., at p. 457 as follows:

It has long been a commonly recited proposition of English law that there is no general rule of law that reasons should be given for administrative decisions. On this view, a decision-maker is not normally required to consider whether fairness or natural justice demands that reasons should be provided to an individual affected by a decision.

This is because the giving of reasons has not been considered to be a requirement of the rules of procedural propriety.

The absence of a duty to give reasons has sometimes been explained as following from the fact that the Courts themselves are not obliged at common law to give reasons for their decisions.

Inroads have, however, been made into the rigid doctrine of the common law. The most notable of these i6s Breen v. Amalgamated Engineering Union [1971] 2 QB 175, where Lord Denning MR, in a minority judgment, accorded recognition to the importance of giving a reasoned decision in words that merit recollection:

Then comes the problem: ought such a body, statutory or domestic, to give reasons for its decision or to give the person concerned a chance of being heard? Not always, but sometimes. It all depends on what is fair in the circumstances. If a man seeks a privilege to which he has no particular claim – such as an appointment to some post or other – then he can be turned away without a word. He need not be heard. No explanation need be given: see the cases cited in Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149, 170-171. But if he is a man whose property is at stake, or who is being deprived of his livelihood, then reasons should be given why he is being turned down, and he should be given a chance to be heard. I go further. If he is a man who has some right or interest, or some legitimate expectation, of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand.

The giving of reasons is one of the fundamentals of good administration. Again take Padfield’s case [1968] AC 997. The dairy farmers had no right to have their complaint referred to a committee of investigation, but they had a legitimate expectation that it would be. The House made it clear that if the Minister rejected their request without reason, the Court might infer that he had no good reason: and, that if he gave a bad reason, it might vitiate his decision. (Emphasis added.)

The basis for the existence of a doctrine, founded upon an historical accident of Courts not being under an obligation to furnish reasoned decisions and therefore being unwilling to impose any higher duty upon other public decisionmakers, has, for all practical purposes ceased to exist. The present position is summarised in the following passage in the judgment of Grifftihs LJ in R. v. Knightsbridge Crown Court, ex parte International Sporting Club (London) Ltd. [1982] QB 304:

It is the function of professional Judges to give reasons for their decisions and the decisions to which they are a party. This Court would look askance at the refusal by a judge to give reasons for a decision particularly if requested to do

so by one of the parties … it may well be that if such a case should arise this Court would find that it had power to order the Judge to give his reasons for his decision.

It is now well-settled that a Judge should set out his reasons when handing down decisions on facts or law. If he does not do so, his decision may be quashed and remitted for a rehearing. See, Eagil Trust Co. v. Pigott-Brown [1985] 3 All ER 119, 122; R. v. Crown Court at Harrow, ex parte Dave [1994] 1 WLR 98.

The proposition that a public decision-taker is under no obligation to give reasons for his decision has been qualified in two fairly recent cases.

The first of these is R. v. Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310. I consider the following extract from the judgment of Lord Donaldson to be relevant:

There are three possible bases for holding that the board should have given reasons for their award. The first is that there is a general rule of the common law or, if that be different, a principle of natural justice that a public law authority should always or even usually give reasons for its decisions. I am not sure to what extent this was advanced before Otton J, but he rejected it decisively. Suffice it to say that the proposition is unarguable and it was not argued in this Court.

If authority be needed it is provided by the decision of the High Court of Australia in Public Service Board of New South Wales v. Osmond [1987] LRC (Const) 681, and the English and other Commonwealth cases there cited. I would only comment that, although Gibbs CJ may be right in saying (at p. 688) that s. 12 of the Tribunals and Inquiries Act 1971 applied to the decisions of Industrial Tribunals exercising their jurisdiction under the Industrial Relations Act 1971 as distinct from their jurisdiction under the Industrial Training Act 1964, this never occurred to anyone at the time and the decisions in Norton Tool Co. Ltd. v. Tewson [1973] 1 All ER 183,[1973] 1 WLR 45 and Alexander Machinery (Dudley) Ltd. v. Crabtree [1974] ICR 120 were not based on any such consideration.

The second is that a tribunal exercising a jurisdiction which mirrors that of the Industrial Tribunals which are required to give reasons and further or alternatively a tribunal which is exercising a judicial function from which there is no appeal should give sufficient reasons to enable a party to know why he has failed to secure any or, as the case may be, all of the relief which he sought and above all to be satisfied that the decision was lawful.

This Otton J rejected.

The third is that Mr. Cunningham and others who resort to the board have a legitimate expectation that it will give reasons.

This, as I have shown, the Judge accepted.

I take it as established that the remit and authority of the board is to adjudicate upon the issue of whether a dismissal was fair or unfair and, if unfair, on the appropriate amount of compensation, applying the same approach as would be appropriate on an application of the Employment Protection (Consolidation) Act

1978.

No other basis for its decisions has been suggested and the whole concept of an unfair dismissal and compensation for such dismissal is a creature of that Act and its predecessors.

That being so, the issue is whether natural justice, or ‘fairness in action’ as it has been called, requires that some and, if so, what reasons be given for its decisions.

I accept at once that some judicial decisions do not call for reasons, the commonest and most outstanding being those of magistrates. However, they are distinguishable from decisions by the board for two reasons. First, there is a right of appeal to the Crown Court, which hears the matter de novo and customarily does give reasons for its decisions. Second, there is a right to require the Magistrates to state a case for the opinion of the High Court on any question of law.

This right would enable an aggrieved party to know whether he had grounds for raising any issue which would found an application for judicial review, although his remedy would procedurally be different.

I accept that the various decisions requiring industrial tribunals to give reasons and indicating the extent of the reasons appropriate have to be read in the context that Parliament has given the parties a right of appeal to the Employment Appeal Tribunal (in succession to the National Industrial Relations Court) on questions of law and the reasoning is based upon the entitlement of the parties to know whether a question of law arises.

I accept that many tribunals, including the Immigration Appeal Tribunal, are required by statute law to give reasons and to that extent the position of the board is distinguishable.

I accept that however desirable it may be that decision-makers shall give reasons, and even more essential that they shall have them and know what they are, that is not the same as being required by statute or the common law to communicate such reasons to those affected. However, I do not accept that, just because Parliament has ruled that some tribunals should be required to give reasons for their decisions, it follows that the common law is unable to impose a similar requirement upon other tribunals, if justice so requires. As Lord Bridge put it in Lloyd v. McMahon [1987] 1 All ER 1118 at 1161, [1987] 1 AC 625 at pp. 702- 703:

My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the Courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.

Accordingly, I take as my starting point a consideration of what is ‘the character of the decision-making body’. The answer is that it is not domestic. In this it is to be distinguished from internal appeal bodies dealing with industrial relations problems, including dismissals, in large companies or private organisations. Whether the board is dealing with prison officers, who do not have access to industrial tribunals, or with other Crown employees who do, it is an independent public law body wholly divorced from management, albeit established by the Crown. Nor is it in any way administrative or even quasi-judicial.

It is a fully judicial body.

I then have to consider the framework in which it operates. It is unaffected by statute. It gives decisions which in practice determine rights as between the Crown and its employees.

That some Crown employees may have additional rights is immaterial.

There is no appeal from its decisions on either fact or law, but it is obliged to exercise its functions in accordance with the law and, for reasons which I have already given, in accordance with, albeit not under, the Employment Protection (Consolidation) Act 1978.

I then ask myself what additional procedural safeguards are required to ensure the attainment of fairness.

The answer is, I believe, to be found in the judgment of Lord Lane CJ in R v. Immigration Appeal Tribunal, ex parte Khan (Mahmud) [1983] 2 All ER 420 at p. 423; [1983] QB 790 at pp. 794- 795, which I do not believe owed anything to the fact that the Immigration Appeal Tribunal is required by statute to give some reasons for its decisions:

The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions. Where one gets a decision of a tribunal which either falls to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis on which it has reached its determination on that issue, then that is a matter which will be very closely regarded by this Court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Second, the appellant is entitled to know the basis of fact on which the conclusion has been reached.

Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not.

Judged by that standard the board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free-wheeling palm tree.

The board’s objection to giving reasons, which curiously is fully supported by both the official and the staff sides, is that this would tend to militate against informality and would lead to an undesirable reliance upon a body of precedent. I find this totally unconvincing. The evidence shows that those who advise applicants and departments do so frequently and must be well aware of the board’s previous decisions and of the circumstances in which they were made. There must therefore already be a body of precedent. If the board have no regard to their previous decisions, they must be acting inconsistently and be failing to do justice as between applicants. This I am loathe to believe.

As to informality, no one has yet complained that the industrial tribunals lack informality, yet they give reasons for their decisions. A complaint of legalism is another matter, but there is no reason why the giving of brief reasons should lead to this most distressing of diseases. (Emphasis added.)

The second is the decision of the House of Lords in R. v. Secretary of State for the Home Department, ex parte Doody [1993] 3 WLR 154, where Lord Mustill, in the following passage (at p. 172), approved the approach adopted by the Master of the Rolls in Cunningham:

I accept without hesitation, and mention it only to avoid misunderstanding, that the law does not at present recognise a general duty to give reasons for an administrative decision.

Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied, and I agree with the analyses by the Court of Appeal in Reg. v. Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310 of the factors which will often be material to such an implication.

So much for the English common law.

I now turn to consider how our Courts have approached the question.

(B) The Position at Malaysian Common Law

Before embarking upon an examination of the decisions of Malaysian Courts upon the subject, I must make mention of an important policy consideration which sets our common law apart from that of England. It is this.

I said a moment ago that the principle of the common law of England which imposes no obligation upon a public decision-maker to give reasons is based upon the historical premise that Courts there were under no obligation to give reasons for their decisions. English Courts therefore declined to impose upon other public decision-makers a standard higher than that which they (the Courts) were required to meet.

But that is not the position in this country. Here, it has long been considered a duty of Courts to produce reasons for their decisions. See, for example, the judgment of Ismail Khan J (as he then was) in Balasingham V. Public Prosecutor [1959] 1 LNS 8 in relation to the statutory duty imposed upon

Subordinate Courts to give reasons in criminal cases. This, of course is exactly opposite to the position in England, where Magistrates are, even today, not required to give reasons for their decisions.

The judicial policy whereby a judge is duty bound to give reasons for his decisions was expressly declared by Azim LP in the Rukun Keadilan, or Principles of Justice. See [1971] 2 MLJ xliii. It is only very recently that the policy has received constitutional sanction. That sanction is to be found in Art. 125(3A) of the Federal Constitution. The Judges’ Code of Ethics to which cl. 3A of the Article refers was published in the Gazette on 2 December 1994. Among other matters, it proscribes a judge from “inordinately and without reasonable explanation delay in the disposal of cases, the delivery of decisions and the writing of grounds of judgment”. And, Art. 125(3) (as does the Code) provides, inter alia, that a Judge may be removed from office “on the ground of any breach of any provision of the code of ethics …”

So it comes to this. In England, a Judge who hands down a decision without providing reasons may be reversed and a retrial of the cause ordered. An identical situation in this country may result in the removal of the errant Judge from office.

Since our Courts have had imposed upon themselves a standard very much higher than the Courts of England, it is difficult to comprehend the relevance or applicability of English authorities which decide that a public decision-maker need not give a reasoned decision. Further, it may be legitimately asked of other public decision-takers in this country, why, if a Judge has to give reasons for his decision, the like duty ought not be imposed upon them based upon the principle of equality.

With that, I now turn to examine the decisions of our Courts which I find disclose a marked division of opinion upon the point.

In Pemungut Hasil Tanah, Daerah Barat Daya, Pulau Pinang v. Kam Gin Paik & Ors. [1983] 2 MLJ 390, the Federal Court held that in cases under the Land Acquisition Act 1960 , the collector is not obliged to give reasons for his award of compensation. See, in particular, the judgment of Hashim Yeop A. Sani FJ, at p. 394 of the report.

However, in Government Of Malaysia & Ors. V. Loh Wai Kong [1979] 1 LNS 22, Suffian LP while holding that a citizen has no fundamental right to leave the country, cited the following passage from the minority judgment of Hidayatullah J in Satwant Singh Sawhney v. D. Ramarathnam AIR [1967] SC 1836,1843 with tacit approval:

A person is ordinarily entitled to a passport unless, for reasons which can be established to the satisfaction of the Court, the passport can be validly refused to him. Since an aggrieved party can always ask for mandamus, if he is treated

unfairly, it is not open, by straining the constitution, to create an absolute and fundamental right to a passport where none exists in the constitution. There is no doubt a fundamental right to equality in the matter of grant of passport (subject to reasonable classification) but there is no fundamental right to travel abroad or to the grant of passport. A passport is a political document. The solution of a law of passport will not make things better. Even if a law were to be made the position would hardly change because the utmost discretion will have to be allowed to decide upon the worth of an applicant.

Where the passport authority is proved to be wrong, mandamus will always set right the matter.

The Lord President then went on to say as follows:

We have already expressed the view that a citizen has no fundamental right to leave the country and travel abroad, and here we would say that in our view he does not have a right, not even a qualified right, to a passport, though we must further add that in our view, though the citizen does not have a right under our constitution and our law to a passport, the Government should act fairly andbona fide when considering applications for a new passport or for the renewal of a passport and should, like Government in the United Kingdom, rarely refuse to grant them.

[I]n our judgment when exercising this discretionary power the executive is expected to behave in the same way as when exercising its other discretionary powers. It must act bona fide, fairly, honestly and honourably, and if it does not, the aggrieved party will probably make a noise in the press, in Parliament and in public.

What if he comes to Court? If it is established that Government has acted mala fide or has in other ways abused this discretionary power, the Court may, in our judgment, review Government’s action and make the appropriate order, and the principles which the Court will apply are well-established and may be found in two authoritative books: Administrative Law by Professor H.W.P. Wade, and Judicial Review of Administrative Action by the late Professor de Smith. (Emphasis added.)

The decision in Loh Wai Kong may thus be seen to support the view that an administrative authority in whom Parliament confers a discretion ought to give reasons that would stand up to objective scrutiny when it makes a decision in the exercise of that discretion.

The next case that calls for discussion is Pahang South Union Omnibus Co. Bhd. v. Minister of Labour and Manpower & Anor. [1981] 2 MLJ 199. There, what fell to be considered was the Minister’s decision to accord recognition to a trade union which claimed to represent the workmen of the appellant company. The company’s application to have the Minister’s decision quashed having failed, it appealed to the Federal Court which dismissed the appeal. Abdoolcader J (as he then was), when delivering the judgment of the Federal Court applied with approval the following passage in the judgment of Lord Denning MR in General Electric Co. Ltd. v. Price Commission [1975]
ICR 1, 12:

Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision.

Sometimes Parliament says its decision is to be final.

At other times it says nothing about it. In all these cases the Courts will not themselves take the place of the body to whom Parliament has entrusted the decision. The Courts will not themselves make the original findings of fact. They will not themselves embark on a rehearing of the matter: see Healey v. Minister of Health [1955] 1 QB 221. But, nevertheless, the Courts will, if called upon, act in a supervisory capacity. They will see that the decision-making body acts fairly: see In Re H.K. (An Infant) [1967] 2 QB 617,630;Reg. v. Gaming Board for Great Britain, ex parte Benaim and Khaida [1970] 2 QB 417. The Courts will ensure that the body acts in accordance with the law.

If a question arises on the interpretation of words, the Courts will decide it by declaring what is the correct interpretation: see Punton v. Ministry of Pensions and National Insurance [1963] 1 WLR 186. And if the decision-making body has gone wrong in its interpretation, they can set its order aside: see Ashbridge Investments Ltd. v. Minister of Housing and Local Government [1965] 1 WLR 1320. (I know of some expressions to the contrary, but they are not correct.) If the decision-making body is influenced by considerations which ought not to influence it; or fails to take into account matters which it ought to take into account, the Court will interfere: see Padfield v. Minister of Agriculture, Fisheries and Food [19681 AC 997, 1007, 1061. If the decision-making body comes to its decision on no evidence or comes to an unreasonable finding – so unreasonable that a reasonable person would not have come to it – then again the Courts will interfere: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223. If the decision-making body goes outside its powers, or misconstrues the extent of its powers, then, too, the Courts can interfere: see Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147. And, of course, if the body acts in bad faith or for an ulterior object, which is not authorised by law, its decision will be set aside: see Sydney Municipal Council v. Campbell [1925] AC 338. In exercising these powers, the Courts will take into account any reasons which the body may give for its decisions. If it gives no reasons – in a case when it may reasonably be expected to do so, the Courts may infer that it has no good reason for reaching its conclusion, and act accordingly: see Padfield’s case. (Emphasis added.)

I now turn to consider Rohana bte Ariffin & Anor. v. Universiti Sains Malaysia [1989] 1 MLJ 487, which, in my view, is a landmark decision in the field of administrative law. There, Edgar Joseph Jr. J (as he then was) dealt with the issue in this way:

I must next consider another objection taken by the applicants. It was submitted that the law has developed to a stage where there is a general duty to provide reasons even when the relevant authority act in a quasi-judicial matter. In support, the following passage in the judgment of Bhagwati J (as he then was) in Siemens Engineering & Manufacturing Co. v. Union of India AIR [1976] SC 1785 was cited:

It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes.

Every quasi-judicial order must be supported by reasons.

The rule requiring reasons to be given in support an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process … .

With great respect to Bhagwati J, I consider that if the requirement for reasons is essential for every quasi-judicial order, then it would place administrative bodies in a very difficult position.

But, having said that, I accept that there are certain cases where reasons for decision should be given particularly when there is a right of appeal, since an appeal is merely a continuation of proceedings by way of rehearing and litigants as well as the appellate tribunal are entitled to know the reasons for the finding.

The learned Judge having referred to the decision in Breen (supra) said:

In the present case, it was argued, and I agree, that in a university environment, the exercise of reason and intellect are encouraged. The applicants are academics and should be told of the scope of free speech and interaction with students and why their defences were rejected. The giving of reasons for decision in a situation such as this would also serve as a guide to other academics in the position of the applicants.

Moreover, the applicants’ livelihood was at stake.

His Lordship then quoted the passage in the judgment of the Master of the Rolls in Breen which I have reproduced earlier in this judgment and went on to say as follows:

In certain circumstances, which I have endeavoured to indicate, a reasoned decision can be an additional constituent of the concept of fairness. I am satisfied that having regard to all the circumstances the present case was such a case.

The applicants are also entitled to succeed on this ground since neither the disciplinary authority nor the university council gave any reasons for their decision.

Encik Sivabalah argues that the principle enunciated by Edgar Joseph Jr. J in the foregoing passages is confined to cases where the power under review is quasi-judicial. He says that it does not apply to the present case because the function under review here is administrative, not quasi-judicial.

The answer to Counsel’s argument lies, I think, in the way in which administrative law has developed, particularly in the area of judicial review of administrative discretion. This has indeed been recognised by our Courts.

In Merdeka University Bhd. V. Government Of Malaysia [1981] CLJ 191 (Rep), 246, Suffian LP, speaking of the discretion conferred upon His Majesty the Yang di-Pertuan Agong by s. 6 of the University and University Colleges Act 1971 said:

It will be noted that s. 6 used the formula ‘If the Yang di-Pertuan Agong is satisfied etc.’ In the past such a subjective formula would have barred the Courts from going behind His Majesty’s reasons for his decision to reject the plaintiff’s application; but, as stated by the learned Judge, administrative law has since so far advanced such that today such a subjective formula no longer excludes judicial review if objective facts have to be ascertained before arriving at such satisfaction and the test of unreasonableness is not whether a particular person considers a particular course unreasonable, but whether it could be said that no reasonable person could consider that course reasonable ….

The original approach to the judicial review of administrative powers lay in the Atkin test: the question to be asked in any given case being whether the authority whose act or decision is challenged was under a duty to act judicially. (See R. v. Electricity Commissioners [1924] 1 KB 171).

This approach pervaded the law for more than forty years. Then, in 1967, it was discarded. The question that was to be asked became whether the particular functionary was under a duty to act fairly. (See the judgment of Lord Parker CJ in Re H.K. (An infant) [1967] 2 QB 617.) This test held the field for about 20 years. It was then jettisoned and replaced by the concept of procedural propriety. (See t6he speech of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374.) The current approach is that laid down by Edgar Joseph Jr. J, in Rohana (supra), namely, whether procedural fairness was meted out in a particular case.

I pause to add that our Courts have in the development of administrative law been considerably influenced by the decisions of English Courts. While the decisions of English Courts are of undoubted utility, it must not be forgotten that they are reached without the benefit of a written constitution. Much the same may be said of decisions emanating from Australia and New Zealand where there are absent any provisions resembling our Arts. 5(1)> and 8(1).

We on the other hand have the Federal Constitution which declares itself as the supreme law of the Federation. I am therefore of the view that while the decisions of the Courts of these countries may be useful guides, we ought not to slavishly follow them in disregard to the provisions of the Federal Constitution. I think that our Courts owe it to those who won us our freedom from the colonial yoke and gave to us an activist and dynamic written constitution, to decide issues of public law by reference to that supreme law, using as our primary guides, decisions of Courts of countries which have constitutional provisions akin to our own. But when we do so, we should also bear in mind any difference in language between like provisions in the respective constitutions. Regard should also be had to the national ethos, our own cultural background and the larger objective which a democratically elected Government is seeking to achieve. For a constitution is a living document, and the concepts it houses in broad and liberal language must perforce be interpreted broadly and liberally in accordance with the particular needs of a developing society.

However eminent an English or an Australian Judge may be, it is not to be forgotten that the views he expresses are coloured by the needs of the society of which he is a member. We, on the other hand, have to address the needs of a society quite differently structured, with different aspirations based on an entirely different set of values. Our Courts should therefore adopt an approach that is best suited to our own needs and values paying such respect as is due to the approach adopted by the Courts of countries whose values upon particular subjects may be at variance with our own.

I have made these observations in order to emphasise the existence in the Federal Constitution of provisions, such as Arts. 5(1) and 8(1), which are of wide import and contain principles that are capable of meeting any issue of public law that arises for decision. The combined effect of these two Articles is to require all State action to be fair and just; and they strike at arbitrariness even in the discharge of administrative functions. Procedural fairness is accordingly part of our law, not by reason of the application of English cases, but because of the terms of Arts. 5(1) and 8(1). See,Raja Abdul Malek Muzaffar Shah v. Setiausaha Suruhanjaya Pasukan Polis [1995] 1 CLJ 619 ;[1995] 1 MLJ 308; Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771.

Whether procedural fairness is required in a particular case depends upon the nature of the subject-matter under review. The extent of the fairness that is to be meted out in a particular case, depends upon the peculiar facts and circumstances of that case. These points have been stated with so much clarity in Rohana (supra) that they need no further emphasis or elaboration here.

Even the law as it stood in the early stages of its development appears to provide an adequate answer to the argument put forward by Counsel. I refer, of course, to the judgment of Abdoolcader J (as he then was) in Mak Sik Kwong V. Minister Of Home Affairs, Malaysia (No. 1) [1975] 1 LNS 96, in which appears (at p. 172) the following summary of the law:

Certiorari and prohibition may now issue in proper cases to a body which exercises functions that are analytically and ostensibly administrative6 and which is not even required to act judicially in the performance of those functions (Ridge v. Baldwin [1964] AC 40). The obligation to act judicially in accordance with the principles of impartiality and fairness may be incurred by a body exercising discretionary administrative powers which seriously encroach on individual interests (Durayappah v. Fernando [1967] 2 AC 337). In Rex v. Woodhouse [1906] 2 KB 501, Fletcher Moulton LJ in his judgment (at p. 535) stated that it is well established that certiorari will issue to a body which would not ordinarily be

called a Court nor would its acts ordinarily be termed ‘judicial acts’ and that in this context the term ‘judicial act’ is used in contrast with purely ministerial acts.

He went on to state that in general a judicial act was one which involved ‘the exercise of some right or duty to decide’ a question affecting individual rights ‘in order to provide scope for a writ of certiorari at common law.’

It has also been held that it is enough in order for certiorari or prohibition to lie for the competent authority to be under a duty to act fairly (Reg. v. Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 – a leading case on the implied duty to act fairly). In Reg. v. Birmingham City Justice, ex parte Chris Foreign Foods (Wholesalers) Ltd. [1970] 1 WLR 1428, Lord Parker CJ stated (at p. 1433) that a justice acting under the procedure of the Food and Drugs Act 1955, even though acting in an administrative or executive capacity, was obliged to act fairly and impartially.

It would seem therefore no longer necessary to show that the function was essentially of a judicial nature (Ridge v. Baldwin; Durayappah v. Fernando) or that the person or body making the decision was under an express or even an implied duty to follow a procedure analogous to the judicial (R. v. Manchester Legal Aid Committee, ex parte Brand (R.A) & Co. Ltd. [1952] 2 QB 413. It will be sufficient if there is an obligation to decide questions of law or fact affecting individual rights and exercise a judicial or limited discretion (ibid). A purely administrative or executive function is one where there is no duty to afford a hearing to the parties interested, and where the decision can be made on the basis of policy considerations only.

Even in arriving at an administrative decision, there may be a judicial or quasijudicial interlude, and at that stage the deciding authority will have to act in a quasi-judicial manner – a situation resolving in effect into a hybrid mixture of administrative and quasi-judicial functions where the two elements are intermingled closely. (Emphasis added.)

If the fact pattern in Mak Sik Kwong (No. 1) were to occur today, the case would, in my judgment, be decided on the basis that the Minister in that case was under a duty to accord procedural fairness to the applicant Mak in accordance with the principle established by the decision in Rohana (supra).

I now turn to the two decisions relied upon by the appellant and the Minister for contending that no reasons need be furnished when the discretion conferred by s. 20(3) is exercised.

The first of these is Minister Of Labour, Malaysia V. Sanjiv Oberoi & Anor [1990] 1 CLJ 200 (Rep), the facts of which were as follows. Oberoi was an employee of Genting Bhd. His services were terminated in accordance with the terms of the contract under which he was employed.

Considering himself to have been dismissed without just cause or excuse, he made representations to the Director-General under s. 20(1) of the Act . In due course the Director-General reported to the Minister who declined to refer the representations to the Industrial Court for an award. Oberoi then moved the High Court for an order of certiorari to quash the Minister’s decision. After hearing arguments, the judge made an order directing the Minister to file a further affidavit disclosing his reasons for not referring the matter to the Industrial Court. He then adjourned further hearing of the substantive motion. The Minister appealed against the order directing him to furnish reasons. The Supreme Court allowed the appeal. Abdul Hamid LP who delivered the judgment of the Court said:

As for the learned Judge’s order to file further affidavit, we are of the view that the order for further affidavit should only be given in accordance with and under the circumstances permitted under the Rules of the High Court 1980. The learned Judge’s order amounted to a direction about evidence.

The authority on this point is clear in that ‘the Court cannot give a direction about evidence unless all the litigants desire such direction to be made’. (See Tay Bok Choon V. Tahansan Sdn. Bhd [1987] CLJ 24 (Rep) per Lord Templeman.)

As for this appeal, we are of the view that on the evidence in this case the Minister of Labour had not acted unreasonably.

There is no evidence that the Minister had acted in bad faith or that he was biased against Sanjiv Oberoi. The Minister of Labour is not required to give any reasons when he exercises his discretion under s. 20(3) of the Industrial Relations Act 1967 . We hold therefore that the learned trial Judge’s direction that the appellant give reasons for not referring Sanjiv Oberoi’s representations to the Industrial Court was not justified and we accordingly allow the appeal with costs. (Emphasis added.)

It is to be noted at once that the Supreme Court was dealing with the case purely upon a procedural point concerning the direction to file a further affidavit disclosing reasons for the Minister’s refusal to refer. The reference to Tay Bok Choon by the learned Lord President confirms this to be indeed the case. It was in that context that the Supreme Court spoke, en passant, of there being no duty upon the Minister to provide reasons when acting under s. 20(3) of the Act . Having read and re-read the judgment of the Supreme Court, I am satisfied that the point that has arisen so acutely for decision in these appeals as a matter of substantive law did not arise for decision in Oberoi.

The second authority relied upon is Chan Meng Yuen (supra) , which I have discussed earlier in this judgment when considering the Hashim Yeop test. The judgment of Harun Hashim SCJ to which we were referred contains the following passage:

The next question is whether the Minister is required to give his reasons when challenged in certiorari proceedings. During the course of argument, several cases were cited to us but they were all cases where the Minister had given his reasons: see e.g. Minister of Labour, Malaysia v. National Union of Journalists, Malaysia and Anor. Appeal. What is clear from the decided cases, however, is that the Courts cannot compel the Minister to give reasons for his decision where there is no duty to do so:Minister Of Labour, Malaysia V. Sanjiv Oberoi & Anor [1990] 1 CLJ 200 (Rep) Indeed in R v. Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338, Lord Denning at p. 352 said:

I think the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them.

If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision. (Emphasis supplied.)

In R v. Secretary of State for Trade and Industry, ex parte Lonrho plc [1989] 1 WLR 525, Lord Keith of Kinkel in the House of Lords said at p. 529:

The absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for the suggested irrationality of the decision.

The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the Court draws the inference that he had no rational reason for his decision.

On what facts and circumstances should a judicial review Court rely when deciding whether the Minister has exercised his discretion according to law? In like cases as the present, the real contesting parties are the employer and the workman. Both sides have presented their version of the case to the Court which cannot be any different from that laid before the Director-General of Industrial Relations and the Minister. That is the only material which the Court has to consider. In the present case, there is only the bare allegation that the Minister has acted unreasonably because he has not given reasons for his decision.

That is not enough.

The respondent must show that the Minister acted unreasonably: Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223, or that he acted in bad faith:Cannock Chase District Council v. Kelly [1978] 1 WLR 1. There is no such evidence here.

It was urged before us that in exercising his discretion under s. 20(3) of the Act, policy decisions come into play and following National Union of Hotel, Bar & Restaurant Workers v. Minister of Labour and Manpower [1980] 2 MLJ 189, the Courts should not interfere. In that case the Minister gave his reasons. He has not done so here but it was suggested by the learned senior federal Counsel who appeared for the Minister that the policy decision was that as there is an alternative remedy available to the respondent to seek relief in the civil Court the Minister has acted reasonably. That may be so but the Minister has not said so and we cannot accept a statement from the Bar as being the reason the Minister had in arriving at his decision.

We can only look at the facts as stated in the affidavits before the Court. (Emphasis added.)

Encik Sivabalah and Cik Haliza both say that this Court is bound by these views in accordance with the doctrine of stare decisis. They add that since the Minister is under no duty to furnish reasons and may not be compelled to do so, no adverse conclusion ought to be drawn from his failure to furnish reasons in the present case.

These arguments have caused me some anxiety. However, having considered the relevant authorities with great care, I must express my inability to agree with the submissions of Counsel. My reasons are as follows.

First, a reading of Chan Meng Yuen , reveals that it was not relevant for the decision in that case for the Supreme Court to determine whether the Minister was under an obligation to give reasons for his decision. Subsequent passages in the judgment of Harun SCJ which I have earlier quoted when discussing the application of the “Hashim Yeop test” bear this out.

As may be recalled, the Supreme Court took the view that the facts as disclosed in the affidavits required scrutiny in order to determine whether the Minister had acted reasonably. But that is an approach which stands apart from the unrelated question whether the Minister ought to give reasons, or, in the words of Lord Denning MR in General Electric (supra), “may reasonably be expected to do so.” The Supreme Court could, with respect, have reached the conclusion it did without having to decide the point now under discussion.

In the light of the foregoing, I am satisfied that the observation by the Supreme Court upon the question was purely obiter and without binding effect.

Secondly, it is clear, with respect, that the Supreme Court, in reliance upon Sanjiv Oberoi , formulated a proposition wider in terms than warranted by actual decision in that case. To reiterate, what Oberoi decides is that as a matter of pure civil procedure, a Court may not give evidential directions in a case on the basis that parties have control over the presentation of their respective cases.

Thirdly, the statement about the real contestants being the employer and the workman, does not, with respect, reflect the true position in law. Where the Minister’s exercise of discretion is challenged, the issue at stake is whether there is legal justification for the refusal to refer. It is the Minister’s decision that is called into question and not the employer’s.

Fourthly, neither the decision in Rohana (supra) nor the cases cited therein appear to have been brought to the attention of the Supreme Court. Further, the judgment of Suffian LP in Loh Wai Kong and that of Abdoolcader J, in Pahang South Union Omnibus (supra) also appear not to have been cited, or if cited, not discussed.

Fifthly, it is to be noted that the views expressed by Lord Denning in Ex parte Shaw were departed from by him in Breen and in General Electric. This certainly deprives the passage in the earlier decision, relied upon by the Supreme Court, of much weight. Again, it does seem that this change of view was not drawn to the attention of the Supreme Court.

Sixthly, when the speech of Lord Keith in Lonhro was delivered, neither Cunningham nor Doody had been decided. The decision in Lonhro must I think, now be read in the light of the pronouncement in Doody.

Seventhly, the decision of the Supreme Court, with respect, appears to have been largely based upon English authorities without bearing in mind the historical antecedent to the rule upon which they are based and to which I have already made reference. The judicial policy by which our Court are guided is, as I have pointed out, at variance with that obtaining in England.

Lastly, it does not appear that the width and reach of Arts. 5(1) and 8(1) were ever raised and argued at the Bar of the Supreme Court. Further, the relevant authorities that have discussed the equipollent provisions in India do not appear to have been cited.

In the light of the foregoing, and faced with the opinions expressed in Loh Wai Kong, Pahang South Union Omnibus and Rohana on the one hand and the opposite view expressed in Chan Meng Yuen on the other, this Court is free to act in the matter of choice of precedents. I would therefore readily express my preference for the views expressed in the former and respectfully decline to follow the latter.

In my judgment, as a general rule, procedural fairness, which includes the giving of reasons for a decision, must be extended to all cases where a fundamental liberty guaranteed by the Federal Constitution is adversely affected in consequence of a decision taken by a public decision-maker. Whether a particular right is a fundamental liberty and therefore falls within the wide encompass of any of the Articles under Part II of the Federal Constitution is a question that has to be dealt with on a case by case basis. Suffice to say that the instant appeals are concerned with a fundamental liberty.

I have expressed the extent and content of procedural fairness in general terms because cases may and do occur where it may be not be feasible or desirable to accord any procedural fairness or, alternatively, the full breadth of procedural fairness in respect of a decision which may adversely affect those rights of which I have spoken.

Land acquisition cases best illustrate the feasibility postulate. If the constitutional requirement of procedural fairness is insisted upon in every case where property is acquired through State action, public administration would grind to a halt as would the development of the country. It would result in the necessity of holding an inquiry to determine the propriety of acquisition even in a case where a few square feet of land is required to widen a public thoroughfare. In recognition of the disastrous consequences that would ensue from an inflexible approach, Parliament has properly confined the right to procedural fairness to the issue of adequate compensation in cases where private property is acquired by the State. The decision of the Federal Court in S. Kulasingam & Anor. V. Commissioner Of Lands, Federal Territory & Ors [1982] 1 LNS 17 exemplifies the need for maintaining the feasibility restriction in the field of procedural fairness.

Again, national security, public safety or public interest are considerations that may exclude procedural fairness in a particular case. The burden of showing that reasons for a decision ought not to be given lies, of course, upon the public decision-taker. And his mere ipse dixit upon the question is inconclusive. There must be some basis or material for suggesting that questions of public safety, public interest or national security or one or more of these are involved. In some cases it may be quite plain and obvious from the very subject-matter that they are. In others it may not be so. Ultimately it is for the Courts to determine whether, upon the facts and circumstances of a particular case, the plea ought to be upheld.

There are, in my judgment, good reasons of policy to require a public decisiontaker to give reasons for his decisions. The first of these I have already made mention of. It is the difference in consequences resulting from the failure of a judge in England and in this country to give reasons for his decision.

Secondly, the furnishing of reasons enables an objective assessment of whether 9the decision is fair. Hence it forms an integral part of procedural fairness.

Thirdly, the giving of reasons makes for good administration. I have, earlier in this judgment, alluded to the need for Courts to have regard to the national ethos and the aspirations of a democratically elected Government when interpreting the Federal Constitution. There have been repeated calls, by those elected to govern, for the need to have a clean, efficient and trustworthy administration. Courts, by their decisions, must assist in the achievement of the declared policy.

The imposition of a duty upon public decision-takers to furnish reasons in cases affecting fundamental rights achieves the national aim. When a public decisiontaker gives reasons, he reveals his mind and exposes for curial scrutiny the basis for his decision.

Administrators will therefore be encouraged to ensure that their decisions are fair and reasonable and in keeping with both legislative policy as expressed in the relevant Act of Parliament and executive policy as declared by the elected Government. Unjustified secrecy for decisions of a public nature, on the other hand, make room for suspicion, distrust and poor administration, leading to inefficiency and unwarranted allegations.

For these reasons, I unhesitatingly reject the eighth submission advanced on behalf of the Minister and the appellant. To reiterate, the Minister, when refusing to refer representations in the exercise of his discretion under s. 20(3) of the Act , is reasonably expected to give reasons for his decision. This is because the decision he makes has an impact upon a fundamental right conferred by the Federal Constitution. Considerations of feasibility, public interest or national security do not apply here.

Of course, he may not be procedurally compelled to furnish them: see Sanjiv Oberoi (supra) . But if he gives no reasons or inadequate reasons, then, it is open for a Court to conclude that he had no good reasons for making the decision he did. The reasons he gives are, of course, subject to curial scrutiny for the purpose of determining whether he had exercised his discretion in accordance with law.

Before departing from this topic, I think it appropriate to refer to the decision of the Indian Supreme Court in Hochfief Gammon v. State of Orissa [1975] 2 SCC 649, which was cited by his Lordship Mohd Azmi FCJ in Wong Yuen Hock (supra) . Alagiriswamy J, when delivering the judgment of the Supreme Court, after quoting in extenso from the speeches in Padfield (supra) went on to say as follows (at p. 659 of the report):

The principles deducible from the decisions of this Court and the above decision of the House of Lords which, though not binding on us, appeals to us on principle may be set out as follows.

The executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The Courts have power to see that the executive acts lawfully. It is no answer to the exercise of that power to say that the executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by Courts by failing to give reasons.

If they give reasons and they are not good reasons, the Court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to judicial scrutiny. Even if the executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts. (Emphasis added.)

Nature of the Remedy

When a Court finds the Minister’s exercise of discretion under s. 20(3) of the Act not to be in accordance with law in the sense I have earlier described, the appropriate prerogative remedy that is normally granted is an order of certiorari. The question is whether, as happened in this case, an order of mandamus may also be granted, compelling the Minister to refer the matter to the Industrial Court. Encik Sivabalah initially argued that it may not. On reflection, however, he agreed that on the footing that the Minister’s decision was rightly quashed (which was not conceded) and given that the Minister had but two choices – whether to refer or not to refer – and he having settled upon the latter choice, all that was left was the former option which could then be enforced by mandamus.

It is convenient at this stage to deal with the argument of Cik Haliza based upon the provisions of Chapter VIII of the Specific Relief Act 1950 and in particular ss. 44 , 45 and 49 thereof. It may be recalled that the submission of learned Senior Federal Counsel was to the effect that ss. 44 and 45 were the only provisions of law under which an order of mandamus may be applied for; that no such order had been applied for in the present case and that the learned Judge had accordingly no power to issue the order of mandamus that he did.

I then referred her to para. 1 of the schedule to the Courts of Judicature Act 1964 (to which I shall return in a moment) and to O. 53 of the Rules of 3 3 the High Court 1980. Her only response to these provisions was that they were merely general in nature and were subject to other specific Acts of Parliament, in this case the Specific Relief Act .

Sections 44 ,45 and 49 of the Act of 1950 , upon which reliance has been placed read as follows:

44. (1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any Court subordinate to the High Court:

Provided that

(a) an application for such an order be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing, as the case may be, of the said specific act;

(b) such doing or forbearing is, under any law for the time being in force, clearly incumbent on the person or Court in his or its public character, or on the corporation in its corporate character;

(c) in the opinion of the Judge the doing or forbearing is consonant to right and justice;

(d) the applicant has no other specific and adequate legal remedy; and

(e) the remedy given by the order applied for will be complete.

(2) Nothing in this section shall be deemed to authorize a Judge:

(a) to make any order binding on the Yang di-Pertuan Agong;

(b) to make any order on any servant of any Government in Malaysia, as such, merely to enforce the satisfaction of a claim upon that Government; or

(c) to make any order which is otherwise expressly excluded by any law for the time being in force.

45. Every application under s. 44 must be founded on an affidavit of the person injured, stating his right in the matter in question, his demand of justice, and the denial thereof, and a Judge may, in his discretion, make the order applied for absolute in the first instance, or refuse it, or grant a rule to show cause why the order applied for should not be made.

If, in the last case, the person, Court, or corporation complained of shows no sufficient cause, the Judge may first make an order in the alternative, either to do or forbear the act mentioned in the order, or to signify some reason to the contrary and make an answer thereto by such day as the Judge fixes in this behalf.

49. Neither the High Court nor any other Court in Malaysia shall hereafter issue any writ of mandamus.

Learned Senior Federal Counsel contended that the requirements of ss. 44 and 45 had not been met and that no order of mandamus could therefore issue. Further, the learned Judge in this case was, according to her, absolutely prohibited from making the order he made because of the terms of s. 49 .

Before dealing with the law which I apprehend to be relevant to this part of the case, I shall deal with the last point made by Cik Haliza.

The short answer to her argument mounted on s. 49 is that the learned Judge in this case did not issue a writ of mandamus. All he did was to issue an order of mandamus. The section having no application to the facts of this case, I entertain little difficulty in rejecting the argument of learned Senior Federal Counsel.

Turning now to the argument that the remedy of mandamus may only be granted in the limited circumstances prescribed by ss. 44 and 45 of the Specific Relief Act , it is to be noted that there are those other two pieces of legislation to which I have referred, that confer power upon the Court to issue mandamus. The first of these is O. 53 of the Rules of the High Court 1980, rr. 1(1), (2) and 2(1)of which read as follows:

1.(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.

(2) An application for such leave must be made ex parte to the Court, except in vacation when it may be made to a Judge in chambers, and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits, to be filed before the application is made, verifying the facts relied on.

2.(1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application for such order must be made by originating motion to a Court, except in vacation when it may be made by originating summons to a Judge in chambers, and, unless the Court or Judge granting leave has otherwise directed, there must be at least eight clear days between the service of the notice of motion or summons and the day named therein for the hearing.

It is apparent from the foregoing provisions that the law has provided avenues to a litigant who is desirous of applying for an order mandamus. He may, quite properly, have resort to either. In our jurisprudence, particularly in the area of public law remedies, it is not uncommon to find two or more avenues being made available for the pursuit of the same remedy.

Thus, in the case of the remedy of declaration, the two alternative recourses made available by the law are s. 41 of the Specific Relief Act on the one hand and the inherent jurisdiction of the High Court on the other. This was recognised by the Federal Court in Tan Sri Haji Othman Saat v. Mohamed bin Ismail [1982] 2 MLJ 177 and by this Court in Attorney-General of Hong Kong v. Zauyah Wan Chik & Ors. [1995] 3 CLJ 35 ;[1995] 3 CLJ 035 .

Similarly, applications for habeas corpus could, until the repeal of RHC, O. 54, be applied for either under that Order or under s. 365 of the Criminal Procedure Code. See, for example, Cheow Siong Chin v. Menteri Dalam Negeri, Malaysia & 2 Ors. [1985] 1 CLJ 229 ; [1985] 2 MLJ 95 at p. 98.

It is therefore wrong to assume that an applicant is to be limited only to the statutory form of mandamus as provided by Chapter VIII of the Specific Relief Act.

I now turn to consider the second and perhaps wider basis of the High Court’s power in the field of public law remedies. It is para. 1 of the Schedule to the Courts of Judicature Act 1964 (‘the Schedule’) which reads as follows:

Power to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of the rights conferred by Part II of the Constitution, or any of them, or for any purpose.

The powers conferred by the Schedule upon a High Court are, according to its terms, ‘additional powers’, that is to say, powers in addition to those already seised of by that Court. Resort may therefore be had to paragraphs in the schedule to found jurisdiction to grant relief not expressly prohibited by written law. This is precisely the approach taken by the Federal Court in Zainal Abidin v. Century Hotel [1982] 1 MLJ 260, where it relied upon para. 6 of the Schedule to found the Mareva jurisdiction.

Now, it is settled law that a Schedule to a legislative enactment is part of that enactment and falls to be construed according to its own language and purpose. This approach to the interpretation of schedules to Acts of Parliament appears in the judgment of Roper CJ (Eq.) inRe Foley [1952] 53 SR (NSW) 31, 36:

The Schedule itself, however, is a legislative enactment and is not necessarily wholly constrained by the section of the Act which introduces it, or by its own heading.

The principles which ought to be applied in its construction are those set out by Lord Sterndale MR in I.R. Commrs. v. Gittus [1920] 1 KB 563 at 576:

It seems to me that there are two principles or rules of interpretation which ought to be applied to the combination of Act and Schedule. If the Act says that the schedule is to be used for a certain purpose and the heading of the part of the Schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the schedule as though the Schedule were operating for that purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the Schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the Schedule or by the purpose mentioned in the Act for which the Schedule is prima facie to be used.

You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the Schedule and the definition of the purpose of the Schedule contained in the Act. (Emphasis added.)

It is therefore of paramount importance for a Court to have regard to the particular words used by para. 1 of the Schedule and to give them such effect as would advance their intent and purpose. To that end, the following observations may be made.

First, it is to be noted that the paragraph is not based upon or drawn from any United Kingdom statute. The United Kingdom Supreme Court Act 1981 has no provision that bears close resemblance to para. 1. The paragraph is, however, in pari materia with Art. 226(1) o6f the Indian Constitution which reads as follows:

Notwithstanding anything in Art. 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the right conferred by Part III and for any other purpose.

For completeness, I would add that Part II of the Federal Constitution which contains the fundamental liberties guaranteed by the supreme law, and which finds mention in para. 1 of the Schedule , is the equivalent of Part III of the Indian Constitution.

It follows that, because of the close resemblance in the language of these two provisions -para. 1 of the Schedule and Art. 226 of the Indian Constitution – the decisions of Indian Courts upon the analogous provision are to be accorded greater weight when determining the width of the power conferred by the paragraph, than decisions of Courts in those jurisdictions where the equipollent provision is absent. These jurisdictions include England, Australia, New Zealand and Canada.

Second, it is to be noted that the paragraph primarily deals with public law concepts and public law remedies. The reference to “any authority”, which is a term commonly used in public law, and to the remedies of, “habeas corpus, mandamus, prohibition, quo warranto and certiorari”, all of which are public law remedies, reasonably supports this view.

Third, it is plain that Parliament intended that the High Court should be empowered to grant relief which is ordinarily beyond the scope of the usual public law remedies. That intention finds expression in the word “including” which has been interposed between the phrase “directions, orders or writs” and the phrase “writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others”. So too, the phrase “or for any other purpose” with which the paragraph concludes, makes clear the wide area in which the remedies are to operate. These matters, in my judgment, reflect the conferment of a wide power upon the High Court in the matter of public law remedies.

Consequently, the power of the High Court in the field of public law remedies is not confined to the grant of usual prerogative orders known to English law. Our Courts should not consider themselves to be fettered by those antiquated shackles of restrictive traditionalism which the common law of England has imposed upon itself. They are at liberty to develop a common law that is to govern the grant of public law remedies based upon our own legislation. They may, of course, be guided by the decisions of Courts of a jurisdiction which has an analogous provision. But ultimately, they must hearken to the provisions of our own written law when determining the nature and scope of their powers.

In my judgment, the wide power conferred by the language of para. 1 of the Schedule enables our Courts to adopt a fairly flexible approach when they come to decide upon the appropriate remedy that is to be granted in a particular case. The relief they are empowered to grant is by no means to be confined within any legal straightjacket. They are at liberty to fashion the appropriate remedy to fit the factual matrix of a particular case and to grant such relief as meets the ends of justice.

Let me illustrate. Assume for a moment that, an award of the Industrial Court upholding the dismissal of a workman is quashed by certiorari. The ordinary course – and this is the course that would be taken by an English Court – would be to remit the matter to the Industrial Court by way of mandamus to compel it to re-hear the case. But the resultant delay and the inevitable result in the workman’s favour may well be compelling factors to justify the award of relief by the High Court.

In a proper case, I envisage no impediment to the High Court making the appropriate determination and awarding fair compensation to the workman. In such cases, it is difficult to see what possible good could come out of prolonging the agony of the parties to the dispute by delaying the matter and adding to the cause list of an already overworked tribunal.

Similarly, if the decision of the Minister not to make a reference under s. 20(3) is quashed, there is no difficulty in issuing a direction addressed to him, requiring him to refer the representations to the Industrial Court. I am therefore satisfied that the concession to this effect by Encik Sivabalah and Cik Haliza was correctly made.

Fact patterns being numerous, examples may be multiplied with no real benefit in point of principle. In the final analysis, it all depends upon the facts of each case and upon an objective assessment how the justice of the case is to be met.

I notice that in the field of public law remedies, Indian Courts, acting on the words of Art. 226(1), have adopted a more flexible stance than their English counterparts.

In Hindustan Steels Ltd., Rourkela v. A.K. Roy AIR [1970] SC 1401, the Supreme Court of India, having quashed an order of reinstatement made by the Industrial Tribunal, went on to make an award of compensation. The basis upon which this was done appears in the following passage in the judgment of Shelat J, at p. 1407 of the report:

The question next is, having held that the order of reinstatement was not a proper order, in that, it was not in consonance with the decided cases, do we simply quash the order of the Tribunal and that of the High Court and leave the concerned workman to pursue his further remedy? The other alternative would be to remand the case to the Tribunal to pass a suitable order. In either case, in view of this judgment, no other order except that of compensation can be obtained by him. If the case is remanded and the Tribunal on such remand passes an order of compensation and fixes the amount such a course would mean further proceedings and a possible appeal. That would mean prolonging the dispute, which would hardly be fair to or conducive to the interests of the parties. In these circumstances we decided that it would be more proper that we ourselves should determine the amount of compensation which would meet the ends of justice.

In Variety Emporium v. Mohd Ibrahim AIR [1985] SC 207, Chandrachud CJ considered the principle to be well-settled. He said (at p. 210):

No authority is needed for the proposition that, in appropriate cases, the Court must have regard to events as they present themselves at the time when it is hearing the proceeding before it and mould the relief in the light of those events.

Workmen of Syndicate Bank, Madras v. Government of India (supra), is yet another case where the Supreme Court fashioned a remedy that was appropriate to the facts and circumstances before it. When allowing the appeal, Bhagwati J said (at p. 686):

We would direct the Government of India to reconsider the question of making reference of the industrial dispute for adjudication without taking into account the aforesaid irrelevant ground which seems to have prevailed with them in declining to make the references. If the Government of India yet declines to make a reference and the ground on which such reference is declined is improper or irrelevant it would be open to the appellants to make an application to the Court under this appeal and for this purpose, we give liberty to the appellants to apply.

The Government of India will give its decision on the question whether the industrial dispute should be referred or not within 45 days from today.

Turning now to the present case, even if I am to conclude that mandamus was wrongly issued by the learned Judge – and I hasten to add that this is not the conclusion I reach – I see no difficulty in substituting it with a direction underpara. 1 of the Schedule to the like effect. But I am unable to detect any reason of principle or policy for making such a substitution for the sole 3 3 purpose of satisfying some antiquated legalism that has its origins in the common law of England.

Here, as earlier observed, the Minister had but two alternatives open to him. He could either refer or decline to do so. He elected the latter course and exhausted so much of the power as distinctly relates to that choice. So, all that is left is the power to refer, which, I am satisfied, is amenable to mandamus. In the circumstances I am unable to accede to the submissions of Counsel directed against the order of mandamus made by the learned Judge. Further, I would, on reflection, add that the observations of Shelat J in Hindustan Steel Mills (supra) may be applied mutatis mutandis to the present appeals.

Was Certiorari Correctly Issued?

I now turn to consider the question whether the learned Judge was right in issuing certiorari and quashing the Minister’s decision not to refer the respondent’s representations to the Industrial Court.

Having examined the facts presented to him, the learned Judge concluded as follows:

When I examined the facts of this case and the affidavits filed therein, especially that of affidavit of the applicant, it may well be true, he said, Roger Tan having failed to secure his eviction from the employment of Hong Leong by the aforesaid, demotion then proceeded to frame three charges of alleged misconduct justifying the applicant’s dismissal from his 12 years of outstanding service to that of Hong Leong Group.

After having considered this case carefully, I am of the view that had the Minister considered fully this case, he would have come to a different conclusion than he had and I allow this application in terms and the motion prayed for with cost.

The appellant and the Minister have criticised the learned Judge’s reasoning. Their criticism is contained in submission (2), the second part of submission (3) as well as in submissions (6) and (7). I do not propose to repeat them here. But I will say at once that I do not accede to any of them.

In my judgment, there are at least five reasons why the learned Judge was right in the conclusion he arrived at.

First, in undertaking a factual analysis, he relied on the judgment of Jemuri Serjan SCJ in I6 National Union of Journalists (supra) . That was an authority plainly binding upon him and he therefore acted entirely in accordance with the doctrine of binding precedent. I have demonstrated earlier in this judgment that the decision in National Union of Journalists is merely an application of the Hashim Yeop test. A careful reading of the judgment in this case reveals that the learned Judge applied the same test here. There was accordingly no misdirection by him upon the point.

Second, the material that was examined by the learned Judge was the very same as that before the Minister. This comes across from the affidavit of the Minister and from the relevant documents themselves. The allegation of victimisation made by the respondent against Roger Tan and contained in his letter of 19 June 1990 was before the Minister, as were the notes of the domestic inquiry. Accordingly, the criticism that the learned Judge decided the case upon material not made available to the Minister is entirely without foundation.

Thirdly, the representations made by the respondent under s. 20(1) do in fact raise serious questions that merit reference to the Industrial Court. I will not deal with all of them in this judgment. Suffice if I mention four. They are as follows: 3T 3

(1) The question whether the terms and conditions of employment relied upon by the appellant ever applied to the respondent. It is to be recalled that two of the three charges were founded upon an alleged breach of these. But these terms and conditions were not in existence when the respondent commenced his employment with the appellant. The respondent claims that they do not apply to him. The appellant says that they do. This joinder

gives rise to a question of mixed fact and law requiring full investigation by the Industrial Court which is the body in whom Parliament has vested the relevant adjudicatory power;

(2) The appellant in the first charge alleges that the respondent was under an implied duty to act otherwise than he is alleged to have done. The question whether the term contended for ought to be implied into the respondent’s contract of employment is a serious question of law upon which mature argument is required before a decision is reached. The law that governs the implication of terms into a contract, particularly a contract of employment, is not free from difficulty. It is a question upon which even Judges differ.

See, for example, Lim Soo Seng V. Majlis Perbandaran Pulau Pinang [1990] 2 CLJ 388 (Rep); [1990] 1 MLJ 22, reversed in [1991] 1 CLJ 253 . Also see, the comment upon that case by this Court in Luggage Distributors (M) Sdn. Bhd. v. Tan Hor Teng [1995] 2 CLJ 713 ;[1995] 1 MLJ 719, 752 .

Cik Haliza has argued that no consideration ought to be given to this aspect of the case because the respondent had not raised the inapplicability of the terms of employment during the domestic inquiry. The short answer to this submission is that it is not, and has never been the law, that a workman, when making representations under s. 20(1) of the Act, is confined only to those matters which he had raised before a domestic inquiry. If that be the case, then one would be according greater importance to domestic inquiries than what the law says they shall have.

The failure of the respondent, who appeared unassisted before the domestic inquiry, to raise this issue does not relieve the Minister from treating it as a serious question which it indeed is.

In the circumstances, I am of the view that the concession made by learned Senior Federal Counsel during her argument that the Minister was under a duty in this case to consider whether the terms of employment actually applied to the respondent represents the true legal position;

(3) The respondent repeatedly denied, during the domestic inquiry, any misconduct on his part. That denial, to borrow the language of Jemuri Serjan SCJ in the National Union of Journalists case, “takes a centre stage” in the determination of his guilt or innocence upon the charges brought against him.

It is certainly a question that requires to be adjudicated upon;

(4) The allegation of victimisation made by the respondent is certainly one that merits further investigation when viewed against the background of the whole case as outlined with great care by the learned Judge. It may be true or false depending upon the facts as revealed in the course of the proceedings before the Industrial Court.

But it must be gone into.

Those, then, are some of the serious questions that have arisen in this case. Applying the Hashim Yeop test, it is plain to see that the representations made by the respondent are neither perverse, frivolous nor vexatious. To say, as the appellant has said, that the material before the Minister did not disclose any serious questions is to mimic Nelson at Trafalgar and turn a blind eye to the obvious. 3 3

Of the complaint of victimisation, it has been submitted by the appellant and the Minister that this was never raised during the domestic inquiry but only much later. That submission goes to the weight of the allegation, which, with respect, is not a matter for the Minister to decide. What weight ought to be assigned to the complaint is for the Industrial Court to determine.

Those familiar with the law and practice in the field of industrial relations will be aware of cases which demonstrate the reluctance of a workman to raise before a domestic inquiry, an allegation of victimisation against one who is seised of managerial power. His immediate concern is to hold on to the job he has. It is therefore not unusual to find a singular lack of motivation on his part to make what management may perceive to be inflammatory statements against a person in authority. One may therefore appreciate such reticence brought about by a desire not to place his sole source of income in jeopardy.

In the proceedings in the Court below, the respondent repeated the allegation of victimisation on oath. There was no affidavit in response from Roger Tan denying this serious allegation. Neither did the appellant put in evidence to explain why this could not be done. It was not a matter that could be brushed aside as being improbable or obviously incredible. The Judge was therefore quite right in taking this allegation of victimisation into account when arriving at his decision. Indeed, I would go so far as to say that it would have been quite wrong for him to have ignored it.

Fourthly, it is clear from the Minister’s affidavit that he gave no reasons whatsoever for declining the reference. The affidavit delivered by the Minister in the Court below merely says that he studied and weighed the report sent to him by the Director-General and concluded that this matter was not fit to be referred to the Industrial Court. The affidavit by the Director-General merely indicates the material that was made available to the Minister for his consideration. When a comparison is made, it shows that the material before the Court was the same as that which was placed before the Minister.

There is nothing in these affidavits to show whether the Minister truly appreciated that his decision would have an impact upon the respondent’s fundamental liberty, guaranteed by the Federal Constitution. Neither is there any material to show that he had applied his mind to the question whether the representations were frivolous or vexatious. No one can say with any certainty whether he took the domestic inquiry into account or whether he paid it no attention. Of course, if he did give due consideration to the domestic inquiry, as contended by both Encik Sivabalah and Cik Haliza, then he would, upon the authorities, have taken an irrelevant consideration into account, and for that reason his decision would be bad in law.

It is, I think, appropriate at this stage, to digress and to return to a matter of which I made brief mention very early in this judgment. It has to do with the procedure prescribed for the domestic inquiry conducted by the appellant.

To recall, the terms and conditions of employment relied upon by the appellant – which the respondent has contended have no application to him – contains the following clause:

If the employee falls to exculpate himself or herself, the appropriate disciplinary action including termination of employment shall be taken against him or her.

It would appear on its plain reading, that the clause effectively places the burden of proving innocence upon the workman. In other words, in all cases where a charge is brought, it is for the workman to prove his innocence: not for the accuser to prove guilt.

The respondent has argued that this clause cuts across the basic fabric of the doctrine of procedural fairness. He has said that it is an unfair procedure. I think that I should refrain from making any comment upon this submission. 3B 3 It is a matter for the Industrial Court to decide. But I would hasten to add that the respondent’s contention in this behalf certainly shows that had the Minister addressed his mind to this issue, he may well have referred the representations to the Industrial Court.

Returning now to the mainstream, it is pertinent to ask if the Minister’ silence had the effect of binding the Judge hand and foot. With respect, I do not think it did. It must not be forgotten that the effect of the Minister’s decision not to refer had the effect of adversely affecting a fundamental right of the respondent. Further, he was duty bound to ensure that the decision he made would further legislative purpose and intent. He is therefore reasonably expected to reveal his mind as to why he chose the course he did. Of course, as a matter of civil procedure, no one can compel him to provide further evidence. But since he has chosen not to give any reasons whatsoever for his decision, one may conclude, as I do in this case, that he had no good reasons for declining the reference.

Fifthly, the facts when objectively viewed leave no doubt that a reasonable Minister similarly circumstanced, that is to say, faced with the facts that presented themselves in this case, would have decided to refer the representations to the Industrial Court.

True, as complained by Counsel for the appellant, the learned Judge may not have indicated with sufficient particularity as to where or how the Minister went wrong. But I do not perceive that to be a fatal error in this case, where the facts and the law sufficiently demonstrate where and how the Minister went wrong.

Conclusion

I have carried out the same exercise as the learned Judge. I too have carefully scrutinised the facts. I have addressed my mind to the relevant law. And I have come to the same conclusion as he did. I am therefore unable to say with any degree of confidence that the learned Judge was wrong in making the orders he did.

For the reasons appearing in this judgment both appeals are dismissed. The orders made by the learned Judge are confirmed. The respondent will have the costs of both appeals but these shall be taxed under a single bill.

The deposit paid by the appellant as security shall be paid out to the respondent to account of his taxed costs.

I must, before concluding this judgment, express my gratitude to all Counsel who appeared in these appeals for their carefully researched submissions. Their efforts have much lightened my burden in deciding these appeals.

Siti Norma Yaakob JCA:

We heard Civil Appeals W-04-19-94 and W-01-21-94 together, although there was no formal order for consolidation as they stem from the same proceedings in the Court below and they also involve the same parties. For the purpose of this judgment I shall refer to Hong Leong Equipment Sdn. Bhd., the appellant in Civil Appeal W-04-19-94 as the 1st appellant and the Minister of Human Resources, the appellant in Civil Appeal W-01-21-94 as the 2nd appellant.

Liew Fook Chuan, the respondent in both appeals, joined the Hong Leong Group of Companies on 1 July 1977 and his first appointment was that of general manager of Malaysia United Paper Product, a subsidiary of Hong Leong. In 1979 he was transferred as the general manager of Hong Leong Yamaha Motors and Hong Leong Yamaha Distributors. Subsequently he was appointed director and general manager of Hong Leong Yamaha Distributors Sdn. Bhd. On 1 February 1987 he became the general manager of the 1st appellant, where he remained until 22 February 1990 when he was dismissed.

During the 12 years that he was with the Hong Leong Group, the respondent had shown himself to be a very shrewd businessman for he was able to turn 3y 3 around losing concerns into profitable ventures and for this achievement he earned himself the prestigious Hong Leong Group Chairman’s Award for management excellence for the fiscal years 1980/1981 and 1984/1985 which carries a cash of RM1,000,000 each.

In addition he captured the Malaysian market in promoting the sales and distribution of Yamaha motorcycles and for this he received a letter of appreciation from the President of the Yamaha Motor Co. Ltd. of Japan.

Despite recognising his management abilities, the 1st appellant sent two show cause letters to the respondent. The first dated 27 November 1989 queried the respondent of the role he played in the sale of a piece of land belonging to Kee Huat Radio Sdn. Bhd. to Hong Leong Industries Bhd. Although the sale transaction took place in 1983, the query only came into being in 1989 and that too following the respondent’s testimony in proceedings before the Sessions Court in Kuala Lumpur Civil Suit C6875/85. The respondent had testified that when he negotiated for the purchase of the land on behalf of Hong Leong Industries Bhd., he was aware that his brother was the broker as the latter introduced the land to him but this fact was not disclosed by the respondent to his principal. It was this omission to disclose that prompted the 1st appellant to query the respondent as the 1st appellant maintained that as an employee, the respondent was legally and contractually bound not to place his personal interest in conflict with the company’s interest. The respondent was given ten days within which to reply to four specific questions stated in the letter failing which the respondent would be assumed to have no explanation to offer and appropriate action would be taken against him.

The respondent tendered his replies to the four questions by letter dated 18 December 1989, following an extension of time to do so.

At about the same time, the respondent received the second show cause letter dated 14 December 1989 from the 1st appellant and this time the respondent was asked to explain his involvement in a company known as Asia-Pacific Advisory Group Sdn. Bhd. (APAG). A search at the Registrar of Companies revealed that the respondent had been a director of APAG since 16 October 1989, a fact that was again not disclosed to the 1st appellant. Like the first show cause letter, the second one also gave the respondent time of seven days within which to reply to three specific questions and the replies were accordingly tendered by the respondent through his letter dated 18 December 1989.

In both show cause letters, the 1st appellant made it very clear that the respondent’s omissions to disclose were breaches of his legal duty as well as his contractual duty as embodied in s. B1 of the Group Personnel Regulations and Policies setting out the Terms And Conditions Of Employment For Executives in the Hong Leong Group.

Following the receipt of the replies, the 1st appellant through its letter dated 5 January 1990 informed the respondent that a domestic inquiry on a date to be fixed would be held in respect of the alleged breaches and pending the hearing he was suspended from work.

By letter dated 16 January 1990, the respondent was informed that the domestic inquiry would be held on 6 February 1990 where he was to answer to three charges of misconduct which were framed as follows:

First Charge

That in the transaction for the sale and purchase of the land held under State Lease 4249 Lot No. D 271 Section 20, Petaling Jaya (‘the land’) between Kee Huat Radio (‘the vendor’) and Hong Leong Industries Bhd. (‘the purchaser’), you had entered into negotiations with Mr. Teo Chiang Kok, the agent (‘the agent’) of the registered owner of the land, without informing your superior(s) of your brother’s interest as broker for the transaction and obtaining their prior approval for your undertaking and continuation of your negotiation, notwithstanding your brother’s said interest.

In so doing you had put yourself in a position where your personal interest would or might conflict with the interest of the Hong Leong Industries Group without the prior knowledge and consent of your superior(s). This is in breach of your duties and responsibilities and the implied terms and conditions of your employment.

Second Charge

That you had engaged and/or concerned yourself and/or had an interest in the business of Asia-Pacific Advisory Group Sdn. Bhd. without obtaining the prior written approval of the Board of Directors of Hong Leong Equipment Sdn. Bhd. or the Board of Directors of Hong Leong Management Co. Sdn. Bhd. This is in breach of your terms and conditions of employment set out in item 4(a)(ii) of s. B1 of the Hong Leong Group Manual on Personnel Regulations and Policies.

Third Charge

That you had engaged and/or concerned yourself and/or had an interest in the business of Finnova Corporation Sdn. Bhd. without obtaining the prior written approval of the Board of Directors of Hong Leong Equipment Sdn. Bhd. or the Board of Directors of Hong Leong Management Co. Sdn. Bhd. This is in breach of your terms and conditions of employment set out in item 4(a)(ii) of s. B1 of the Hong Leong Group Manual on Personnel Regulations and Policies.

The third charge was as a result of reports which had appeared in three local dailies, Business Times dated 4 January 1990, The Star dated 5 January 1990 and Berita Harian dated 31 January 1990. All three reports featured Finnova Corporation Sdn. Bhd. as the Malaysian partner to market mobile telecommunication products on a joint venture with Benefon Oy, a Finnish telephone manufacturer and that the 1st respondent was described as the adviser to the Malaysian company.

On 6 February 1990, the Panel conducting the domestic inquiry found the respondent guilty of all three charges and by letter dated 22 February 1990, the 1st appellant dismissed him with immediate effect.

Aggrieved by his dismissal, the respondent by letter dated 11 April 1990 appealed to the Director-General for Industrial Relations under s. 20(1) of the Industrial Relations Act 1967 (‘the Act’), to be reinstated in his former employment on the grounds that his dismissal by the 1st appellant was without just cause or excuse.

The Director-General in compliance with his statutory duties under sub-s. (2) of s. 20 of the Act , convened a conciliatory meeting on 3 May 1990 and when he realised that no settlement could be reached he accordingly notified the 2nd appellant so on 20 October 1990.

By letter dated 13 November 1990, the 2nd appellant acting under s. 20(3) of the Act , informed the respondent that he had decided not to refer the matter of his dismissal to the Industrial Court.

On 21 December 1990, the respondent filed an ex parte application for leave:

(1) to apply for an order of certiorari to quash the decision of the 2nd appellant dated 13 November 1990, not to refer the matter of his dismissal to the Industrial Court;

(2) to apply for an order of mandamus for the purpose of ordering the 2nd respondent to refer the matter of his dismissal to the Industrial Court for an award.

That leave was granted on 16 January 1992 and on the hearing of the merits of the originating motion for the orders of certiorari and mandamus, Abu Mansor Ali J (as he then was) allowed the respondent’s application and ordered the issue of the two prerogative orders in the manner prayed for by the respondent.

It was under these circumstances that separate notices of appeal were filed by the 1st and 2nd appellants, against the decision of Abu Mansor Ali, J as he then was) made on 14 September 1994.

Before us what is being questioned is the nature and extent of the 2nd appellant’s discretion in deciding whether to refer or not to refer a dispute to the Industrial Court. The fact that such a duty imposed by sub-s. (3) of s. 20 of the Act is wholly discretionary is not disputed. What is contended by both appellants is that on the materials placed before the 2nd appellant, there is no room for this Court to interfere with the discretion exercised by the 2nd appellant in refusing to refer the respondent’s dismissal to the Industrial Court as there is no evidence to suggest that the 2nd appellant had exercised that discretion for an improper motive or that he had misdirected himself in law or had taken into account irrelevant or extraneous matters or failed to take into account relevant matters. See the case of Minister of Labour, Malaysia v. Lie Seng Fatt [1990] 1 CLJ 1103 ;[1990] 2 MLJ 9. Thus faced with all the relevant materials before him, any other reasonable Minister similarly circumstanced would have come to the same decision as did the 2nd appellant in this case.

On the same token, the appellants maintain that in quashing the 2nd appellant’s decision, the trial Judge had assumed the erroneous stand that any dispute not resolved should be referred to the Industrial Court and in so deciding the trial Judge had considered the merits of the respondent’s complaint and treated the whole matter as if on appeal and not by way of a review.

The discretion conferred on the 2nd appellant under sub-s. (3) of s. 20 of the Act has been held by the Supreme Court in Lie Seng Fatt’s case supra, to be wide and fettered and, “so long as he exercises the discretion without improper motive, the exercise of discretion must not be interfered with by the Court unless he had misdirected himself in law or had taken into account irrelevant matters or had not taken into consideration relevant matters or that his discretion militates against the object of the statute. Otherwise he had a complete discretion to refuse to refer a complaint which is frivolous or vexatious.”

Are the facts and circumstances of the respondent’s complaint in this case frivolous or vexatious as to warrant the 2nd appellant’s refusal to refer the complaint to the Industrial Court? This must depend on the materials that were placed before him and his assessment of such materials. What were those materials? They are all documentary in nature and in respect of the three charges preferred against the respondent, this must include the notes of evidence of the proceedings of Civil Suit C6875/85, the certified searches made with the Registrar of Companies as to the compositions of APAG and Finnova Corporation, the Manual containing terms and conditions of employment for executives in the Hong Leong Group, (‘the Manual’) the newspaper reports from Business Times dated 4 January 1990, The Star dated 5 January 1990 and Berita Harian dated 31 January 1990. In addition there are also the panel’s notes of evidence and findings of the domestic inquiry conducted on 6 February 1990, notes of the conciliatory meetings conducted by the Director-General with the 1st appellant and the respondent, the Director-General’s report, correspondence passing from the respondent to the Director-General and vice versa and the relevant provisions of the Act. It was upon consideration of all these materials that the 2nd appellant notified the respondent on 13 November 1990 that his complaint over his dismissal was not a fit and proper one to be referred to the Industrial Court. Clearly this is not the case where the 2nd appellant acted on insufficient evidence but the issue is whether on the evidence placed before him has he acted fairly and reasonably when exercising his discretion not to refer? In Doody v. Secretary of State for the Home

Department and Other Appeals [1993] 3 All ER 92, Lord Mustill held that, “Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.”

In his one-sentence letter informing the respondent of his decision, the 2nd appellant gives no reason for his decision and likewise in his affidavit in reply. There is no statutory duty to give reasons but in the modern climate of administrative law, such an omission may no longer be justified. “The giving of reasons may be inconvenient, but I can see no ground at all why it should be against the public interest: indeed rather the reverse. This being so, I would ask simply: is a refusal to give reasons fair? I would answer without hesitation that it is not” per Lord Mustill in Doody’s case, supra.

Nearer at home the situation can be gauged from the cases of Minister Of Labour, Malaysia V. Chan Meng Yuen [1992] 1 CLJ 216 (Rep);Minister of Labour, Malaysia v. National Union of Journalists, Malaysia and Another Appeal [1991] 1 CLJ 31;[1991] 1 MLJ 24 and Minister Of Labour, Malaysia V. Sanjiv Oberoi & Anor [1990] 1 CLJ 200 (Rep) ;[1990] 1 MLJ 112. “The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision maker, who has given no reasons, cannot complain if the Court draws the inference that he had no rational reason for his decision.” per Lord Keith of Kinkel in the case of Regina v. Secretary of State for Trade and Industry, ex parte Lonrho Plc [1989] 1 WLR 525, a pronouncement that was approved and adopted by the Supreme Court in Chan Meng Yuen’s case, supra.

In the light of the 2nd appellant’s omission to give reasons for his decision, can this Court, like the Court of first instance go into the merits of the respondent’s complaint to see whether it is frivolous or vexatious and whether the 2nd appellant had acted fairly and reasonably in deciding as he did? I answer this question positively provided that such considerations are limited to the materials that were before the 2nd appellant for as Courts of review, both the Court of first instance and this Court cannot go beyond what had already been placed before the 2nd appellant, for his consideration. As authority for this see the cases of Lie Seng Fatt (supra) , National Union Of Hotel, Bar And Restaurant Workers V. Minister Of Labour And Manpower [1980] 1 LNS 50, and Chan Meng Yuen (supra) , where the Court concerned went through the merits of each complaint when deciding whether such complaint is perverse, frivolous or vexatious.

Having stated this, I shall now deal specifically with the three charges that were preferred against the respondent.

The first charge alludes to a personal interest conflict situation, a breach of the respondent’s duties and responsibilities as an employee and the offence allegedly committed by the respondent is two-fold.

(1) His omission to disclose to his employer his brother’s interest, as a broker, in the land transaction that was negotiated by the respondent on behalf of the purchaser, a member of the Hong Leong Group and

(2) His omission to obtain the 1st appellant’s approval to continue negotiating for the purchase of the land.

It is not disputed that:

(1) the sale took place nine years before the charge was framed against the respondent;

(2) It was done at arm’s length accompanied by the necessary valuation prepared by Hong Leong and at market value;

(3) the respondent’s brother did not receive any commission from Hong Leong as his commission came from a third party.

Thus the only offence that is alleged by the first charge is the offence of non-disclosure of a relative’s interest.

At the domestic inquiry held on 6 February 1990, the respondent denied the first charge and his defence was that he may have informed his superior of his brother’s involvement in the sale but he was not sure as the sale took place eight years earlier. He maintained the same reply when he was challenged with the evidence he gave in the Sessions Court where he had testified that there was no necessity for him to disclose his brother’s interest to the board.

Despite his denial, the panel found him guilty of the first charge.

I take the 2nd and 3rd charges together as they relate to the respondent’s breaches of his terms of employment for failing to secure the written approval of the board of directors of his company before engaging in the businesses of APAG and Finnova Corporation. Under item 4(a)(ii) of the Manual under which the two offences were founded, an executive like the respondent, shall devote his whole time solely to the business of the Hong Leong Group and shall not be concerned directly or indirectly in any business other than the Hong Leong Group.

The respondent also denied these two charges and in respect of APAG, his defence was that the company is a dormant family holding company with a RM2 share capital, the two shareholders being himself and his wife. He is also a director together with his wife and two others and he denies that he had taken employment with APAG and that his equity holding of RM1 is too insignificant to invite a written approval.

With regard to Finnova Corporation, he gave no explanation to the Panel when 2faced with the newspaper reports describing him as the Malaysian Adviser to the joint venture company. However in a subsequent affidavit filed in proceedings in the Court below, he states he is neither a shareholder, a director nor held any office of profit with the company. His position as the honorary adviser to the company was to lend moral support to the managing director, his wife who was entering into a new business venture.

The Panel also found him guilty of both the 2nd and 3rd charges, and the penalty imposed by the 1st appellant on the respondent for the acts of misconduct framed by the three charges was his dismissal, thereby depriving him of his livelihood and his right to work, which his Counsel, Dato V.K. Lingam, likened to a fundamental right with a proprietary value.

As a Court of review this Court is not seised with the jurisdiction of determining whether the dismissal was fair or unfair. That is the function of the Industrial Court, before whom the respondent wants to be heard, but the way to the Industrial Court is through the 2nd appellant who has been conferred the discretion to act fairly and justly when determining whether to refer or decline to refer the respondent’s complaint to the Industrial Court. The respondent has maintained that he is innocent of the alleged acts of misconduct and in the Court below submitted that such acts of misconduct were the result of the vindictive actions of one Roger Tan, the managing director of the 1st appellant. The respondent cites two instances of victimisation practised on him by Mr. Roger Tan.

The first relates to the manner by which the contract to construct the headquarters of one of Hong Leong’s subsidiaries was to be awarded. Whilst Mr. Roger Tan preferred the contract to be negotiated privately with one contractor, the respondent insisted that the award be made by way of open tender. Unknown to the respondent Mr. Roger Tan had already awarded the contract for the foundation works to a particular contractor.

Tenders were then invited and in the exercise that followed, it was discovered that the contractor who was already awarded the contract for the foundation works had failed to secure the contract for the construction of the main building with a price difference of RM1 million. The respondent found out later that the difference represented the price of the contractor’s house which was sold to Mr. Roger Tan.

The other instance of alleged victimisation cited by the respondent was what he considers was Mr. Roger Tan’s action in demoting him from being the director/general manager of Hong Leong Yamaha Distributors Sdn. Bhd., a highly successful and profitable company to that of general manager of the 1st appellant which was then running at a loss. The respondent managed to turn the 1st respondent into a profitable concern, thereby disappointing Mr. Roger Tan who had expected him to resign. It is the respondent’s contention that it was this failure to remove him from the 1st respondent that prompted Mr. Roger Tan to frame the three charges against him.

The objection placed by the 1st appellant to this allegation of victimisation is that it was not raised by the respondent as his defence at the domestic inquiry, where he had every opportunity to do so, but only subsequently in proceedings in the High Court and as such the defence could not possibly form part of the materials considered by the 2nd appellant.

My answer to the objection is simply this. It must be appreciated that at the domestic inquiry it cannot be ruled out that the respondent must have entertained the possibility that the ultimate penalty he would face for his alleged misconduct was dismissal. It would not be to his own interest that he should defend himself by accusing his own managing director of victimising him. At that stage the prospect of him being cleared of the three charges and returning to his job or receiving a minimum sentence not involving dismissal was still possible but once dismissal was pronounced, there was no reason why the respondent should keep quiet about his allegation. Thus the fact that the defence of victimisation was not raised contemporaneously at the domestic inquiry does not disentitle the respondent raising it subsequently in proceedings to have his dismissal questioned.

The allegation of victimisation is a very serious charge not to be taken lightly or brushed aside a being trivial and it warrants the Industrial Court to inquire whether such a charge can be made out or not. This is more so in this case as Mr. Roger Tan did not file any affidavit to rebut the allegation except for a general denial by one Mr. Lim How Soon, a director of the 1st appellant, which is hearsay evidence and not convincing enough.

It is also not correct to maintain that the 2nd appellant could not have been made aware of the defence of victimisation as there is evidence that the respondent had attached a statement to his letter of appeal to reinstate dated 19 June 1990 addressed to one Mr. A. Murugavell, the officer in the Industrial Relations office, who was conducting the conciliatory meetings between the respondent and the 1st appellant. In his statement, the respondent sets out his career history in the Hong Leong Group and this included his allegation of victimisation at the hands of Mr. Roger Tan. This letter and statement must form part and parcel of the materials that were forwarded by the Director- General to the 2nd appellant and the latter cannot now be heard to say that he was not made aware of the respondent’s defence of victimisation.

The 2nd and 3rd charges relate to breaches of the respondent’s terms and conditions of employment as set out in item 4(a)(ii) of s. B1 of the Manual. In the Court below the respondent maintained that the Manual does not bind him as it was issued on 1 January 1981, long after he had joined the Hong Leong Group on 1 July 1977 and on terms and conditions that are different to the Manual. As such the Manual together with the amendments made to s. B1 on 8 September 1987, are not applicable to him but only to executives who joined the Hong Leong Group on or after 1 January 1981.

There is no affidavit evidence from the 1st appellant to rebut the respondent’s contention. It remained silent and had not replied to the respondent’s contention that the Manual does not bind him.

Whilst it is true that the respondent had not objected to the Manual earlier before the panel conducting the domestic inquiry and consequently such an objection could not have been placed before 2nd appellant, I see no reason why such omission should act against the respondent’s own interest.

It must be remembered that the 2nd and 3rd charges are penal in nature and one of the matters to be established to support the two charges is whether the respondent is bound by the Manual. It is in this respect that item 5 of s. B1 of the Manual sets out the procedure to be followed in disciplinary proceedings before the panel. That clause provides that if, “the employee fails to exculpate himself or herself, the appropriate disciplinary action including termination of employment shall be taken against him or her.” The respondent is charged with the heavy burden of proving innocence, a reversal of the accepted norm where the burden is on the accuser to prove the guilt of the accused.

It is no wonder that the panel found him guilty of all the three charges as he had a very heavy burden to discharge.

It is also clear from the notes of the proceedings that the Panel did not state any reasons why it found the respondent guilty of all three charges. The respondent did not have the benefit of legal advice as he was unrepresented before the Panel.

As the 2nd appellant had not given any reason for his decision, there is no knowing whether he had considered the defence of victimisation or that the Manual was not applicable to the respondent and that the high burden placed on the respondent works unfairly towards him. The very fact that the 2nd appellant refused to refer points to the possibility that he had failed to consider those matters which another Minister, similarly circumstanced would have done and come to the inescapable conclusion that the respondent’s complaint is not perverse, frivolous or vexatious.

The respondent had denied the three charges, he had raised the defences of victimisation and that the Manual which reverses the burden of proof was not applicable to him. Moreover the Act itself is a piece of social legislation by which disputes between employers and their workmen are to be speedily settled or resolved and when interpreting such an Act, the liberal approach is to be taken as opposed to a restrictive one. See the case of Hoh Kiang Ngan v. Mahkamah Perusahaan Malaysia [1996] 4 CLJ 687 ;[1995] 4 CLJ 687 . However when such a dispute cannot be settled amicably, Parliament has conferred the 2nd appellant with the discretion to refer such dispute to the Industrial Court provided that the dispute is not frivolous or vexatious. On the facts of this case it cannot be said that the respondent’s complaint is frivolous or vexatious as there are sufficient materials disclosed which ought to have influenced the 2nd appellant to refer the dispute to the Industrial Court. The fact that he did not militates against the object of the Act.

The learned trial Judge had also issued an order of mandamus ordering the 2nd appellant to refer the respondent’s dismissal to the Industrial Court for an Award. Puan Haliza Aini Othman, Senior Federal Counsel for the 2nd appellant argues that the order for mandamus cannot be maintained as it was applied under O. 53 of the Rules of the High Court, a subsidiary legislation when there are provisions for such a remedy in a specific Act, namely ss. 44 and 45 of the Specific Relief Act 1950 . She contends that the order of mandamus should have been applied for under the provisions of the specific Act and not under the Rules and submits further that since the requirements of ss. 44 and 45 of the Specific Relief Act 1950 have not been complied with, the order of mandamus could never have been issued. Furthermore the learned trial Judge is barred by the provisions of s. 49 of the same Act from issuing a writ of mandamus.

Since both the 1980 Rules and the 1950 Act contain provisions for the issue of the order of mandamus I consider that it is open to the respondent to choose under which law he wishes to proceed. Since he has elected to apply for the order of mandamus under the Rules, so be it. As such reliance on s. 49 of the Specific Relief Act 1950 is of no consequence and in any event it speaks of a writ of mandamus when what is being applied for is an order of mandamus.

On the other hand Mr. Sivabalah learned Counsel of 1st appellant concedes that once the Court finds that the exercise of the discretion by the 2nd appellant is erroneous, the right to refer is amenable to mandamus. However he pointed out that the form of the mandamus as issued by the learned trial Judge is wrong as it orders the 2nd appellant to do a certain act in a certain way. Since sub-s. (3) of s. 20 of the Act confers the 2nd appellant with the discretion of either to refer or decline to refer a dispute to the Industrial Court, the proper form of the mandamus should be couched in words like requiring the 2nd appellant to reconsider his decision according to law.

As the objection is only to language rather than substance, there is actually no serious objection as to how the mandamus should be worded. Since the power to refer is amenable to mandamus I see nothing objectionable to the order given by the learned trial Judge that mandamus be issued directing the 2nd appellant to refer the respondent’s dismissal to the Industrial Court for an award.

For the reasons that I have stated the decision of the learned trial Judge does not warrant any interference from this Court. To that end Civil Appeals W-04-19-94 and W-01-21-94 are dismissed with costs, the decision of the learned Judge is affirmed and the respondent will have the costs of both appeals to be taxed under a single bill.

Ahmad Fairuz JCA:

I have had the benefit of reading the judgment of my learned brother Gopal Sri Ram JCA in draft and agree with his reasons and conclusions.

Categories: CaseLaws

PUBLIC PROSECUTOR v. FOONG SEK HOONG HIGH COURT MALAYA, KUALA LUMPUR KC VOHRAH J: Police Mislead The Court

PUBLIC PROSECUTOR v. FOONG SEK HOONG
HIGH COURT MALAYA, KUALA LUMPUR
KC VOHRAH J
[CRIMINAL TRIAL NO. 4 OF 1985]
8 FEBRUARY 1989

JUDGMENT

KC Vohrah J:

Foong Sek Hoong was convicted by me for an offence under s. 39(1)(a) of the Dangerous Drug Act 1952 on 31 October 1987.

The Supreme Court, on 5 December 1988, allowed an application by Foong Sek Hoong to adduce the following documentary evidence, namely:

Surat Akuan menerima dated 15 September 1984 issued by Insp. Megat Mohd Aminuddin of the Cawangan Anti Dadah in respect of the return of motor car WAW 7807 to one Ngan Yuet Meng in connection with Jalan Bandar report no. 16926/ 84.

The Supreme Court also ordered that the case be remitted back to the High Court before the same Judge to consider evidence admitted together with any evidence that may be adduced by the prosecution on this point and to come to a decision.

Ngan Yuet Meng, Inspector Megat Aminuddin & Detective Constable Jaffar bin Mahadar gave evidence at the hearing of this matter (hearing).

Ngan Yuet Meng, designated as DW4, stated that she was wife of the prisoner Foong Sek Hoong. She stated that Inspector Megat gave her the Surat Akuan menerima (D17) on 15 September 1984, and, with it, she was handed a bunch of keys to enable her to fetch the prisoner’s car, WAW 7807. It was a red Nissan Sunny and she took it from the Cawangan Anti Dadah, Jalan Hang Tuah.

The prosecution recalled Inspector Megat (PW1). He said that he remembered that when he gave evidence at the trial of the prisoners on 27 October 1987 he did not mention that he took possession of a car belonging to the prisoner. And he admitted issuing D17 to the prisoner’s wife, DW4.

He explained that after the prisoner was taken back to police headquarters (on the day of his arrest, 6 September 1984) he interrogated the prisoner in his office. He was alone with him. During the interrogation the prisoner handed him keys to his car. He said he did not know where the keys came from. He stated that he then called Detective Mohd. Isa to take possession of the car from the scene and that the latter went with Detective Police Constable Jaffar to take possession of the car. The car was brought to the police headquarters and he inspected the car. He said he did not lodge a police report in respect of the seizure of the car as he did not find anything incriminating in the car. He agreed that he did not inform the Deputy Public Prosecutor about the seizure of the car and he denied that the car was seized when the accused was arrested at the scene.

He confirmed handing over to DW4 document D17 and returning the car. He said that he kept a copy of D17 in his office but did not know where it was; it was not put in the investigation papers as the car “has nothing to do with the case”.

DPC Mohd Isa, who allegedly received the car keys from Inspector Megat and took possession of the car, was not called as a witness. Instead DPC Jaffar Mahadar (designated as PW7) gave evidence at the hearing. He said that on the night of 6 September 1984 at about 9.00 p.m. he was present when the prisoner was arrested. He said that after the police went back to the office he and DPC Mohd Isa went back to the scene and recovered the car at about 11.00 p.m. DPC Mohd Isa handed the keys to Insp. Megat at 11.15 p.m. that night. It was a bunch of keys. He said he made a police statement about the seizure but that was after the conclusion of the trial of the prisoner. PW7 also agreed that when the prisoner was arrested at the scene all his pockets were searched by Inspector Megat but he said he could not remember if Inspector Megat recovered anything from the pockets.

The evidence adduced at the hearing showed that there was a car, on the night in question, at or near the scene which belonged to the accused and that two police personnel went to the scene (after the accused had been arrested and brought to the police station. to recover the car. And as the car held no incriminating object it was returned to the wife of the prisoner. It formed the subject matter of the document D17 which had been admitted at the start of the hearing. Ex facie with the evidence-in-chief of the witnesses at the hearing an innocuous explanation had been given for document D17 and matters connected therewith.

But considered on the totality of the evidence adduced at the hearing and of the evidence adduced at the trail some disquieting features become apparent.

At the close of the case for the prosecution at the trail, the clear evidence was that no car key was found on the accused’s person when he was arrested and searched and that the accused was brought to the police station in a police car. There were findings of the Court made on the evidence of Inspector Megat (PW1), Detective Corporal Mohd. Nor (PW2. and the evidence of Inspector Lai (PW6) who said that at about 11.30 p.m. the night of the arrest Inspector Megat handed to him the accused, the drug exhibits and the police report.

From the answers given by them at the trial in relation to the defence claim of the car keys being found on the prisoner’s person at the scene of the arrest and of the prisoner’s car being at the scene and his being taken to the police station in the car it was clear that the prisoner did not have any car keys at all on his person and the prisoner’s car was not at all at or near the scene. Both Inspector Megat and Detective Corporal Mohd. Nor had opportunity to state that although the accused was not brought to the police station in his own car the accused in fact did have a car at the scene and that it was recovered subsequently that very night after the prisoner if the evidence of PW1 at the hearing is to be believed had given to Inspector Megat his car keys.

At pp. 10 and 11 of the appeal record, in relation to the evidence of Inspector Megat under cross-examination at the trial, this is what was recorded:

Q: You searched the accused’s pocket?

A: Yes.

Q: You recovered his car key?

A: No. There was no car key found.

Q: In fact you took him to police station in his own car driven by one your men?

A: I took the accused person in my car.

At p. 14 of the record this is recorded:

Q: Put-when you detained the accused he was standing in front of the house?

A: Not true.

Q: You detained him and searched him and nothing was found on him?

A: Not true.

Q: But you got his NRIC and his car key from his pocket?

A: I got the IC from his pocket.

It will be noted that Inspector Megat had opportunity to state that although he did not find any key in the accused’s pocket he did recover it from the prisoner when he interrogated him at the police station as he is claiming now; and that the car was recovered at the scene subsequently by two of his men. By his silence he misled the DPP and the Court to believing that the prisoner did not at all have any car keys on his person and that he did not have his car at the scene.

The evidence given by Detective Corporal Mohd. Nor, at pp. 21 to 25 of the appeal record, in the light of the evidence of Inspector Megat, both given at the trial, but without the benefit of document D17 and the attendant evidence adduced at the hearing, confirmed the evidence of Inspector Megat at the trial that no car key or car belonging to the prisoner was found at the scene of the arrest at any time.

At the trial the Court was of the view that the car key or car of the accused was never seized. It is also clear that the DPP who had the file of investigation papers with him at the trail was totally unaware that the car keys and the car of the prisoner had been seized in respect of the case and this is clearly confirmed by Inspector Megat who gave evidence at the hearing that he did not put a copy of D17 relating to the seized car in the investigation papers; that he did not report the recovery of the keys or car to Inspector Lai, the investigating officer at the trial. As was mentioned earlier, Inspector Lai made no mention of such seizures and I relied also on this fact in coming to the conclusion that neither key nor car was found at the scene at all.

But the point is that Inspector Megat and Detective Corporal Mohd. Nor who had been subjected to questioning about the key and car could, and in fact should, have informed the DPP about the subsequent seizure of the keys and car, if true, and the DPP an experienced and senior officer, would no doubt have applied to recall these witness or to call some other police witness who was aware of the seizures, to testify as to the seizures and clear the wrong impression that he and the Court had formed that no key or car at all was seized in connection with the case. PW7 did at the hearing state that he made a statement about the seizure of the car but this statement, on his own admission, was made well after the trial of the accused had concluded.

I mentioned that the evidence of Detective Corporal Mohd. Nor at pp. 21 to 25 of the appeal record confirmed the evidence of Inspector Megat at the trial that no key or car was seized at the scene or at all. However in the light of the documentary evidence, D17, and the evidence adduced at this hearing Detective Corporal Mohd. Nor’s evidence assumes a different complexion.

This is his evidence in relation to the key and the car.

At p. 21 of the appeal record this is what was recorded:

Q: Who searched body of accused?

A: At time of incident there was no body search.

Q: You mean you did not conduct a search?

A: Upon arrest the accused let go something and that package was inspected by PW1

Q: Anybody else did body search at that time?

A: No.

Q: How did Inspector Megat get his particulars?

A: That I don’t know.

Q: Remember recovering accused’s car key from accused?

A: Don’t remember.

The above extract seems to show that no car key was found no the accused’s person at the time of the arrest as no search was made on the accused’s person.

On re-examining his other reply, this time in relation to the prisoner’s car, which at p. 25 of the record reads:

Q: When going to the police station who brought car of accused police station?

A: Nobody.”, it does appear, seen in the light of the documentary evidence, D17. adduced at the hearing, that the prisoner’s car was indeed at the scene at the time of the prisoner’s arrest – it does appear hat above extract shows that there was no denial of the prisoner’s car being at the scene – only that nobody took it to the police station.

Viewed in the context of his answer to a question put by the DPP his reply seems to reinforce the distinct that he knew the prisoner’s car was at the scene. He was asked at p. 24 of the record, “Do you know if accused had car at time of arrest?” and his answer was not “No” or that the prisoner had no car but “The accused was walking. I confirm that he was brought to police station by Inspector Megat in Inspector Megat’s car”.

The point is that the prisoner in the allegations put to Inspector Megat and Detective Corporal Mohd. Nor and in his defence claimed that he was searched and his car keys were found on his person and that he was taken to the police station in his red Datsun car. He denied the prosecution story that he was arrested as he came out from a lane beside house no. 17D, Jalan Gelang and that he was then in possession of a package of 17 packets of heroin and that he dropped the package.

He, notwithstanding the Deputy Public Prosecutor’s various questions put to him to show that he did not go there by car or that he had no car at the scene, stated that he went to the scene that night by car although his house was about 400 metres away; he drove his car there by using another road because there was a one way street; he normally drove the car to the scene as the lane was quite dirty, the drains were dirty and the lane had puddles of water. He stated that that night he parked his car about 50 feet away from the said house.

He said there as he stood in front of the house he saw many people approaching the front portion of the house with some torchlights switched on. As the group approached him somebody identified himself as the police and handcuffed his lands behind him. Then a body search was conducted on him. From the back pocket of this trouser his wallet was taken out and his NRIC, too, was taken out. Subsequently the front pocket of his trousers was searched and his keys were taken out.

He said that after the search he was pushed into the house. The police conducted a search, with their torchlights switched on, for about 15 to 20 minutes. During the search one member of the police party went out and then somebody called out from outside and they all went out. And he saw a member of the police party holding a packet of things and showing it to the other members of the police. One of the police party asked him if the package belonged to him and he answered in the negative. The police subsequently took him in his own car, driven by Inspector Megat, to the police station.

I had in my judgment rejected his claim that he went there by car, that his car keys were found on his person and his claim and the claim of his friend, DW3, that the package of things was found outside the house and not on the prisoner’s person. I stated at p. 89 of the appeal record:

To my mind the elaborate story of the accused of the keys being found on his person and that his car had been driven there by him and that the police took him in his car to the police station is an attempt to discredit the prosecution’s evidence that he was seen coming out of a lane before he was arrested and that while being detained be dropped the package containing heroin. But as I have pointed out it is highly improbable that there were car keys found and that the car of the accused was there.

In my judgment then I dealt with the absence of the car keys and car at scene in rejecting the evidence of the accused and his friend DW3 who said he saw the accused being taken away in the accused’s car.

In reconsidering the totality of the evidence adduced at the trial in the light of document D17 produced by the prisoner’s wife and of the evidence of Inspector Megat and DPC Jaffar at the hearing I have to bear in mind that many aspects of the evidence of the prisoner and his witness DW3 were rejected by me because I had been misled to believe that the car was not at all at the scene although, in the context of the equivocal reply of Detective Corporal Mohd. Nor that he could not remember if a car key had been recovered from the prisoner and his non-denial of the accused’s car being present at the scene, there is doubt to Inspector Megat’s assertion at the hearing that the prisoner gave him his car keys while being interrogated at police station.

The wife of the prisoner had at hearing stated that Inspector Megat gave her a “bunch of keys” and she was not challenged on this. The new prosecution witnesses, Detective Police Constable Jaffar, at the hearing, stated that he saw his companion DPC Mohd Isa hand over a bunch of keys (and he showed the large amount of keys by cupping his fingers to show the amount) to Inspector Megat after he and his companion had recovered the car. But if it was a bunch of keys how is it that this bunch of keys was missed by Inspector Megat when he made a body search of the prisoner at the scene of the arrest? The bunch of keys surely could not have been missed. I find Inspector Megat’s assertion that he did not find the bunch of keys when he searched the accused at the scene – that he recovered only NRIC – as very hard to believe.

The other matter that gravely troubles me is why Inspector Megat did not hand over the bunch of keys and the car which allegedly were brought to him at 11.15 p.m. the night of the arrest to the investigation officer, Inspector Lai? He handed the accused and the seized package of heroin and the police report to Inspector Lai at 11.30 p.m. that night. The car and keys were seized in connection with the arrest of the prisoner. Why were they not handed over to Inspector Lai? He said he did not find anything incriminating in the car but it was up to the investigation officer to be seized of that fact and for him to put up the complete investigation into the whole case. Then if the matter appeared to be unimportant why was the car detained for 9 days (from 6 September 1984 to 15 September 1984) before it was released? Then again when the car was returned D17, or a copy thereof, was not filed amongst the investigation papers. Why not? There was a considerable number of irregular practices leading one to wonder why that was so.

Considering all these matters for which there is no satisfactory explanation and considering that none of the prosecution witnesses mentioned at all about the prisoner’s car keys and his car being at the scene, the evidence of the prosecution witnesses relating to the dropping of a package by the prisoners is highly suspect. Why would the prisoners come out from a lane which led to his house 400 metres away if his car was already at the scene? Surely the bunch of keys with the key to the car must have been discovered when the prisoner was bodily searched at the scene as the claimed. Could there be an untruth in the prosecution’s claim that he dropped the package of drugs in the circumstances? My view is that the prisoner in the light of the new evidence and after a review of the total evidence, has succeeded in creating a reasonable doubt on the prosecution’s case and I therefore acquit and discharge him.

Also found at [1989] 2 CLJ 1259

Categories: CaseLaws

SIVARASA RASIAH V. BADAN PEGUAM MALAYSIA & ANOR FEDERAL COURT [PUTRAJAYA] RICHARD MALANJUM CJSS, ZULKEFLI AHMAD MAKINUDIN FCJ, GOPAL SRI RAM FCJ RAYUAN SIVIL NO: 01-8-2006(W) 17 NOVEMBER 2009:

SIVARASA RASIAH V. BADAN PEGUAM MALAYSIA & ANOR

FEDERAL COURT [PUTRAJAYA]

RICHARD MALANJUM CJSS, ZULKEFLI AHMAD MAKINUDIN FCJ, GOPAL SRI RAM FCJ

RAYUAN SIVIL NO: 01-8-2006(W)

17 NOVEMBER 2009

Case History :

Court Of Appeal : [2006] 1 CLJ 139

Court Of Appeal : [2002] 2 CLJ 697

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

(BIDANGKUASA RAYUAN)

RAYUAN SIVIL NO: 01-8-2006(W)

ANTARA

SIVARASA RASIAH … PERAYU

DAN

1. BADAN PEGUAM MALAYSIA … RESPONDEN-RESPONDEN
2. KERAJAAN MALAYSIA

(Daripada Perkara Mahkamah Rayuan Malaysia

Rayuan Sivil No: W-01-49-2002

Antara

Sivarasa Rasiah … Perayu

Dan

1. Badan Peguam Malaysia … Responden-Responden)
2. Kerajaan Malaysia

 

Coram: RICHARD MALANJUM, CJSS

ZULKEFLI BIN AHMAD MAKINUDIN, FCJ

GOPAL SRI RAM, FCJ

JUDGMENT OF THE COURT

1. The appellant is an advocate and solicitor. He is also an office bearer of a political party and a Member of Parliament. He wishes to stand for and, if elected, serve on the Bar Council which is the governing body of the Malaysian Bar. Section 46A(1) of the Legal Profession Act 1976 (“the Act”) prohibits him from doing so. It says, among other things not relevant here:-

“A person shall be disqualified for being a member of the Bar Council or a Bar Committee or of any committee of the Bar Council or a Bar Committee:-

(b) if he is a member of either House of Parliament, or of a State Legislative Assembly, or of any local authority; or

(c) if he holds any office in:-

(i) any trade union; or

(ii) any political party;”

2. The appellant challenged the constitutionality of section 46A(1). His challenge failed before the High Court and the Court of Appeal. He has now appealed to us. The challenge is based on three broad grounds. First, that the section violates his rights of equality and equal protection guaranteed by Article 8(1) of the Constitution. Second, that it violates his right of association guaranteed by Article 10(1)(c). Third, that it violates his right to personal liberty guaranteed by Article 5(1). He argues that in the event that any one of these rights is found to be violated, the section must be declared void as being inconsistent with the supreme law. The arguments advanced in support of the appeal require the case to be taken through several stages.

3. Before discussing the specific areas of challenge there are three preliminary observations that must be made. The first has to do with the methodology of interpretation of the guaranteed rights. In three recent decisions this Court has held that the provisions of the Constitution, in particular the fundamental liberties guaranteed under Part II, must be generously interpreted and that a prismatic approach to interpretation must be adopted. These are Badan Peguam Malaysia v. Kerajaan Malaysia [2008] 1 CLJ 521, Lee Kwan Woh v. Public Prosecutor [2009] 5 CLJ 631; [2009] 1 LNS 778 and Shamim Reza v. Public Prosecutor [2009] 6 CLJ 93. The provisions of Part II of the Constitution contain concepts that house within them several separate rights. The duty of a court interpreting these concepts is to discover whether the particular right claimed as infringed by state action is indeed a right submerged within a given concept.

4. Article 5(1) may be selected to illustrate the point that is sought to be made since it is one of the provisions relied on in this case. That Article proscribes the deprivation of life or personal liberty, save in accordance with law. “Law” wherever mentioned in Part II of the Constitution includes – by statutory direction – the common law of England (see Article 160(2) read with section 66 of the Consolidated Interpretation Acts of 1948 & 1967). It is now well-settled that by the common law of England the right of access to justice is a basic or a constitutional right. See, Raymond v. Honey [1983] 1 AC 1, 13; R v. Secretary of State for the Home Department, ex parte Leech [1993] All ER 539. In Thai Trading Co (a firm) v. Taylor [1998] 3 All ER 65 at 69, Millett LJ described it as a fundamental human right. Thus, the common law right of access to justice is part of the “law” to which Article 5(1) refers. In other words, a law that seeks to deprive life or personal liberty (both concepts being understood in their widest sense) is unconstitutional if it prevents or limits access to the courts.

5. The other principle of constitutional interpretation that is relevant to the present appeal is this. Provisos or restrictions that limit or derogate from a guaranteed right must be read restrictively. Take Article 10(2)(c). It says that “Parliament may by law impose…(c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.” Now although the Article says “restrictions”, the word “reasonable” should be read into the provision to qualify the width of the proviso. The reasons for reading the derogation as “such reasonable restrictions” appear in the judgment of the Court of Appeal in Dr Mohd Nasir Hashim v. Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19 which reasons are now adopted as part of this judgment. The contrary view expressed by the High Court in Nordin Salleh v. Dewan Undangan Negeri Kelantan [1992] 3 CLJ 135 (Rep); [1992] 1 CLJ 463 is clearly an error and is hereby disapproved. The correct position is that when reliance is placed by the State to justify a statute under one or more of the provisions of Article 10(2), the question for determination is whether the restriction that the particular statute imposes is reasonably necessary and expedient for one or more of the purposes specified in that Article.

6. The second observation has to do with the test that should be applied in determining whether a constitutionally guaranteed right has been violated. The test is that laid down by an unusually strong Supreme Court in the case of Dewan Undangan Negeri Kelantan v. Nordin bin Salleh [1992] 1 CLJ 72 (Rep); [1992] 2 CLJ 1125; [1992] 1 MLJ 709, as per the following extract from the headnote to the report:-

“In testing the validity of the state action with regard to fundamental rights, what the court must consider is whether it directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory.”

7. The third and final observation is in respect of the sustained submission made on the appellant’s behalf that the fundamental rights guaranteed under Part II is part of the basic structure of the Constitution and that Parliament cannot enact laws (including Acts amending the Constitution) that violate the basic structure. A frontal attack was launched on the following observation of the former Federal Court in Loh Kooi Choon v. Government of Malaysia [1977] 2 MLJ 187:

“The question whether the impugned Act is ‘harsh and unjust’ is a question of policy to be debated and decided by Parliament, and therefore not meet for judicial determination. To sustain it would cut very deeply into the very being of Parliament. Our courts ought not to enter this political thicket, even in such a worthwhile cause as the fundamental rights guaranteed by the Constitution, for as was said by Lord Macnaghten in Vacher & Sons Ltd v. London Society of Compositors [1913] AC 107, 118:

‘Some people may think the policy of the Act unwise and even dangerous to the community. Some may think it at variance with principles which have long been held sacred. But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. It is, I apprehend, as unwise as it is unprofitable to cavil at the policy of an Act of Parliament, or to pass a covert censure on the Legislature.’

It is the province of the courts to expound the law and ‘the law must be taken to be as laid down by the courts, however much their decisions may be criticised by writers of such great distinction — per Roskill L.J. in Henry v. Geopresco International Ltd [1975] 2 All ER 702, 718. Those who find fault with the wisdom or expediency of the impugned Act, and with vexatious interference of fundamental rights, normally must address themselves to the legislature, and not the courts; they have their remedy at the ballot box.”

8. It was submitted during argument that reliance on the Vacher case was misplaced because the remarks were there made in the context of a country whose Parliament is supreme. The argument has merit. As Suffian LP said in Ah Thian v. Government of Malaysia [1976] 1 LNS 3; [1976] 2 MLJ 112:

“The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of State legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.”

This earlier view was obviously overlooked by the former Federal Court when it followed Vacher’s case. Indeed it is, for reasons that will become apparent from the discussions later in this judgment, that the courts are very much concerned with issues of whether a law is fair and just when it is tested against Article 8(1). Further, it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a case by case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution. See, Keshavananda Bharati v. State of Kerala AIR [1973] SC 1461.

9. It now becomes necessary to turn to the respective constitutional provisions that are said to have been violated by the impugned section. And it is convenient to begin with Article 10(1)(c) which says that “all citizens have the right to form associations.” The argument here is as follows. “Associations” to which the Article refers includes professional bodies that are created and regulated by statute. Accordingly, the Malaysian Bar is an “association” within Article 10(1)(c). The concept of freedom of association includes within it the right not only to be a member but also to serve on the Bar Council, the governing body of the Malaysian Bar. What section 46A does is to impact upon and render illusory this fundamental right of the appellant. Further, the impugned section is not saved by the proviso contained in Article 10(2)(c). So much for the submissions on this point.

10. The first question to ask is whether a statutory body like the Malaysian Bar is an “association” within Article 10(1)(c). A careful examination of the authorities provides a negative response. In Daman Singh v. State of Punjab AIR [1985] SC 973 the Supreme Court of India speaking through O Chinappa Reddy J said:

“In the cases before us we are concerned with co-operative societies which from the inception are governed by statute. They are created by statute, they are controlled by statute and so, there can be no objection to statutory interference with their composition on the ground of contravention of the individual right of freedom of association.”

It is of interest to note that Daman Singh was recently applied in Sumangaiam Co-operative Society Ltd v. High Court of Gujarat AIR [2007] SC 671.

11. The Malaysian Bar was created by statute and has, from its inception, been governed by statute, namely the Act and the subsidiary legislation made thereunder. As such, no complaint can be made on the ground that the appellant’s right of freedom of association has been violated. In short, Article 10(1)(c) does not apply to the Malaysian Bar. Accordingly no question can arise on the issue of the right to serve on the Bar Council.

12. Even if Daman Singh and the cases that have applied it were wrongly decided, and the Malaysian Bar is an association and even if the appellant has a fundamental right to serve on the Bar Council, the disqualifications that section 46A imposes are reasonable restrictions within Article 10(2)(c). That provision says that “Parliament may by law impose…(c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.” As earlier pointed out, the clause must be read as “such reasonable restrictions”. The restrictions are reasonable because they are justifiable on the ground of morality. The expression “morality” is not defined by the Constitution. However, in Manohar v. State of Maharashtra AIR [1984] Bom 47 (a case cited by learned senior federal counsel) it was held that morality in the equipollent Indian Article 19(2)(4):-

“is in the nature of public morality and it must be construed to mean public morality as understood by the people as a whole.”

Part of public morality is the proper conduct and regulation of professional bodies. Matters of discipline of the legal profession and its regulation do form part of public morality. This is because it is in the public interest that advocates and solicitors who serve on the governing body behave professionally, act honestly and independent of any political influence. An independent Bar Council may act morally in the proper and constitutional sense of that term. The absence of political influence secures an independent Bar Council. Hence, as stated earlier, the restriction is entirely reasonable and justifiable on grounds of public morality. It follows that the challenge based on Article 10(1)(c) fails.

13. The next ground is based on Article 5(1). It is convenient to deal with the challenge mounted on Articles 5(1) and 8(1) together for reasons that will become clear later in this judgment. To remind, Article 5(1) proscribes the deprivation of life and personal liberty save in accordance with law. The starting point is the submission of senior federal counsel that if the appellant cannot bring his case as a violation of his right of association under Article 10(1)(c), then that is the end of his case and he cannot rely on Article 5(1). With respect that submission is devoid of any merit. Article 10 contains certain express and, by interpretive implication, other specific freedoms. For example, the freedom of speech and expression are expressly guaranteed by Article 10(1)(a). The right to be derived from the express protection is the right to receive information, which is equally guaranteed. See, Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal AIR 1995 SC 1236. However, there are freedoms that do not fall within the wide scope of that Article. These freedoms may be found to be embedded in the “life” and “personal liberty” limbs of Article 5(1). As Ayyangar J said in Kharak Singh v. State of Uttar Pradesh [1963] AIR SC 1295. when discussing Article 21 of the Indian Constitution, the expression ‘personal liberty’

“… is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the ‘personal liberties’ of man other than those dealt with in the several clauses of art 19(1). In other words, while article 19(1) deals with particular species or attributes of that freedom, ‘personal liberty’ in article 21 takes in and comprises the residue.”

14. In the present instance, the appellant bases his case on the “personal liberty” limb. Learned senior federal counsel submits that the concept “personal liberty” in Article 5(1) should receive the narrow and restricted meaning ascribed to it by a two member Bench of this Court in Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan [2002] 4 CLJ 105; [2002] 3 MLJ 72. With respect this submission must be rejected as being without merit. The authorities referred to earlier in this judgment are clearly against such an approach to constitutional interpretation.

15. It is patently clear from a review of the authorities that “personal liberty” in Article 5(1) includes within its compass other rights such as the right to privacy (see, Govind v. State of Madhya Pradesh AIR [1975] SC 1378). By parity of reasoning, the right to be a member of a statutorily created and regulated professional body – in this case the Malaysian Bar – comes within “personal liberty” and is protected by Article 5(1). The issue is whether there has been a deprivation of that right “in accordance with law”. The answer must straightaway be in the negative. Because section 46A does not infringe the appellant’s right to be a member of the Malaysian Bar. What it does is to prevent him from serving on a distinctly separate body, namely the Bar Council. Two questions then arise. First, whether membership of the Bar Council is a right within the personal liberty clause. Second, if it is, then whether the right has been deprived in accordance with law. Each must be separately considered.

16. There can be no doubt that the appellant’s right to membership of the general body, that is to say the Malaysian Bar falls within the concept of “personal liberty”. The mere fact that the body in question is statutory in nature makes no difference. An advocate solicitor who has been admitted to practise law can only do so if he or she is a member of the Malaysian Bar. In order to be eligible to commence practice, the advocate and solicitor must obtain a practising certificate and pay the subscription and other dues to the Malaysian Bar. He or she may earn his or her livelihood only if he or she is approved for practise in the sense already described. All this is required by the Act and the relevant subsidiary legislation made under it. Hence what the Act confers upon an advocate and solicitor is not a mere privilege; it is a right to earn a livelihood. And it is this right which the personal liberty vested in a member of the Malaysian Bar carries with it. Included in the bundle of rights that form part of the membership of the Malaysian Bar is the legitimate expectation to participate in the Bar Council elections and, if elected, to serve on that body. Accordingly, the legitimate expectation to serve on the Bar Council is also a right protected by the personal liberty clause of Article 5(1). What section 46A does in pith and substance is to directly impact on this right of the appellant and render it ineffective or illusory. Put slightly differently, the inevitable effect or consequence of section 46A is to render the appellant’s constitutional right to serve on the Bar Council ineffective or illusory. This satisfies the test in Dewan Undangan Negeri Kelantan v. Nordin bin Salleh. The appellant has therefore been deprived of his constitutionally guaranteed right. Learned senior federal counsel relies on Azeez Basha v. Union of India AIR [1968] SC 662, 675 to argue that there is no such right as contended by the appellant. In that case, the Supreme Court of India held that Article 19(1)(c) (the equipollent of our Article 10(1)(c)) of the Indian Constitution does not give any right to any citizen to manage any association but merely the right to form associations. She submits that by parity of reasoning there should be no such right under the personal liberty clause. There is no question that Azeez Basha v. Union of India is certainly good law in the context of Article 10(1)(c). But it has no application to the separate and distinct right of personal liberty guaranteed by Article 5(1). The submission is with respect not well founded.

17. Now for the second question, namely, whether the deprivation of the appellant’s fundamental right is in accordance with law under Article 5(1). What does “law” mean? As earlier observed, by definition it includes written law and the common law of England. This is the result when Article 160(2) is read with section 66 of the Consolidated Interpretation Acts 1948-1967. Also see, Lee Kwon Woh. “Law” therefore means a system of law that encompasses the procedural and substantive dimensions of the rule of law. And this is the point at which Articles 8(1) and 5(1) interact.

18. Following the majority decision of this Court in Badan Peguam Malaysia v. Kerajaan Malaysia, the other provisions of the Constitution must be interpreted in keeping with the doctrine of procedural and substantive fairness housed in Article 8(1). Thommen J in Shri Sitaram Sugar Co Ltd v. Union of India & Ors [1990] 3 SCC 223 at p. 251 explained the effect of Article 14 of the Indian Constitution which is the equipollent of our Article 8(1) as follows:

“Any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power, is liable to attract the prohibition of art 14 of the Constitution. As stated in EP Royappa v. State of Tamil Nadu [1974] 4 SCC3 ‘equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch’. Unguided and unrestricted power is affected by the vice of discrimination: Maneka Gandhi v. Union of India. The principle of equality enshrined in art 14 must guide every State action, whether it be legislative, executive, or quasi-judicial: Ramana Dayaram Shetty v. International Airport Authority of India [1979] 3 SCC 489, 511-12, Ajay Hasia v. Khalid Mujib Sehravardi [1981] 1 SCC 722 and DS Nakara v. Union of India [1983] 1 SCC 305.”

19. Accordingly, when state action is challenged as violating a fundamental right, for example, the right to livelihood or the personal liberty to participate in the governance of the Malaysian Bar under Article 5(1), Article 8(1) will at once be engaged. When resolving the issue, the court should not limit itself within traditional and narrow doctrinaire limits. Instead it should, subject to the qualification that will be made in a moment, ask itself the question: is the state action alleged to violate a fundamental right procedurally and substantively fair. The violation of a fundamental right where it occurs in consequence of executive or administrative action must not only be in consequence of a fair procedure but should also in substance be fair, that is to say, it must meet the test of proportionality housed in the second, that is to say, the equal protection limb of Article 8(1). However, where the state action is primary or secondary legislation, that is to say, an Act of Parliament or subsidiary legislation made by the authority of Parliament, the test of constitutionality is only based on substantive fairness: no question arising on whether the legislation is the product of a fair procedure. This is because the doctrine of procedural fairness does not apply to legislative action of any sort. See, Bates v. Lord Hailsham of St. Marylebone, [1972] 1 WLR 1373; Union of India v. Cynamide India Ltd AIR [1987] SC 1802.

20. It is clear from the authorities thus far discussed that “in accordance with law” in Article 5(1) refers to a law that is fair and just and not merely any enacted law however arbitrary or unjust it may be. The question whether an enacted law is arbitrary must be decided upon settled principles that govern the right in Parliament to pass discriminatory laws. So long as the law does not produce any unfair discrimination it must be upheld. This is the effect of the equality limb of Article 8(1). And it is here that a discussion of that Article becomes necessary. If section 46A passes the test of fairness as housed in the equality clause then it is a fair law and therefore is a valid law for the purposes of Article 5(1).

21.Article 8(1) provides that: “All persons are equal before the law and entitled to the equal protection of the law”. As may be seen, the Article guarantees two separate and distinct rights, namely, (i) equality before the law; and (ii) equal protection of the law. It cannot be over-emphasised that in accordance with well settled principles of constitutional interpretation each of these rights must be treated as a separate and distinct right despite an overlap as will be seen later in this judgment. Indeed, each right is derived from a distinctly different source. The framers of our Constitution (like the framers of the Indian Constitution) derived the equality clause from the Constitution of the Irish Free State. The equality doctrine in reality is drawn from Dicey’s Rule of Law one of the pillars of which is that persons are equal before the law. As pointed out by Chandrachud J In Indira Nehru Ghandi v. Raj Narain AIR [1975] SC 2299, 2470:

“Dicey gave three meanings to rule of law: Absence of arbitrary power, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by ordinary law courts and that the Constitution is not the source but the consequence of the rights of individuals, as defined and enforced by the Courts.” [Emphasis added.]

22. The framers drew the equal protection clause from the 14th Amendment to the Constitution of the United States which reads:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It is important to note that the Constitution of the United States does not contain an equality clause. It was through the ingenuity of the Supreme Court’s interpretation of the due process clause that an implied right to equality, that is to say, the right to challenge any form of state action as arbitrary, was established through case law. See, Poe v. Ullman 367 US 497, 543 [1961]; Williams v. Illinois 399 US 235, 262 [1970].

23. Basu in his authoritative work “Commentary on the Constitution of India“, 8th edition (2007) volume 1, page 958 says this in respect of Article 14 of the Indian Constitution:

“The expressions ‘equality before the law’ and ‘equal protection of laws’ do not mean the same thing, even if there may be much in common … Equality before the law is a dynamic concept having many facets. One facet – the most commonly acknowledged – is that there shall be no privileged person or class and none shall be above the law. Equality before the law is a positive concept and cannot be enforced in a negative manner. Where the State commits an illegality or irregularity in favour of any individual or group of individuals others cannot claim the same illegality or irregularity on the ground of a denial thereof.”

24. This view finds judicial support. In Asiatic Engineering Co. v. Achhru Ram and Ors. AIR [1951] All 746, the court said:-

“Article 14 of our Constitution lays down two things. It enacts that:-

The State shall not deny to any person (1) equality before the law or (2) the equal protection of the laws within the territory of India.’

Obviously, these two phrases have different meanings to some extent. We consider it unnecessary to discuss at length the meaning of the expression ‘equality before the law,’ as no point in connection with it seriously arises in the case. It appears to have been taken from the Constitution of the Irish Free State. Professor Dicey described the rule of law as one of the characteristics of the British Constitution. Of this rule of law one of the main features is, according to that great writer, ‘equality before the law.'”

25. How is the Court then to say in a given case that the particular statute under challenge is compliant with the equality clause? The answer lies in the following passage in the judgment of Suffian LP in Public Prosecutor v. Khong Teng Khen [1976] 1 LNS 100; [1976] 2 MLJ 166:-

“The principle underlying Article 8 is that a law must operate alike on all persons under like circumstances, not simply that it must operate alike on all persons in any circumstance, nor that it ‘must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons … for the purpose of legislation’, Kedar Nath v. State of West Bengal AIR [1953] SC 404, 406. In my opinion, the law may classify persons into children, juveniles and adults, and provide different criteria for determining their criminal liability or the mode of trying them or punishing them if found guilty; the law may classify persons into women and men, or into wives and husbands, and provide different rights and liabilities attaching to the status of each class; the law may classify offences into different categories and provide that some offences be triable in a Magistrate’s court, others in a Sessions Court, and yet others in the High Court; the law may provide that certain offences be triable even in a military court; fiscal law may divide a town into different areas and provide that ratepayers in one area pay a higher or lower rate than those of another area, and in the case of income tax provide that millionaires pay more tax than others; and yet in my judgment in none of these cases can the law be said to violate Article 8. All that Article 8 guarantees is that a person in one class should be treated the same as another person in the same class, so that a juvenile must be tried like another juvenile, a ratepayer in one area should pay the same rate as paid by another ratepayer in the same area, and a millionaire the same income tax as another millionaire, and so on.”

26. Apply that here. What section 46A does is to classify advocates and solicitors into those who are Members of Parliament and those who are not. It classifies advocates and solicitors who hold office in a political party and those who do not. This is a reasonable classification for the purpose of permitting a member of the profession from having a say in the governance of the profession. There is an important reason of policy in support of the classification that the section makes. It is fair and just that the governance of a professional body be kept in the hands of professionals who have no other visible political interests that may create the perception that the Bar Council has political leanings. Even before the introduction of section 46A into the Act by way of amendment in 1978, the Bar Council had no political leanings. All that the impugned section does is to ensure that professional politicians are excluded from the governance of the profession. In the words of Harun J when speaking of section 46A in Malaysian Bar v. Government of Malaysia [1986] CLJ 508 (Rep); [1986] 2 CLJ 343; [1986] 2 MLJ 225:

“The object is clearly that the affairs of the Bar be managed by members of the legal profession who are not only professionally independent but appear to the outside world to be so. The emphasis is an independent Bar which is not subject to external influences of a non-professional character. Hence the provision that lawyers who are members of Parliament, or any of the State Legislatures or local authorities; or hold office in any trade unions or political party or organisations of a political nature are disqualified from holding office in the Bar Council or Committees.” [Emphasis added.]

For these reasons, section 46A is compliant with the equality clause of Article 8(1).

27. The next issue to consider is whether the section violates the equal protection clause. This calls for an interpretation of that clause. The test here is whether the legislative state action is disproportionate to the object it seeks to achieve. Parliament is entitled to make a classification in the legislation it passes. But the classification must be reasonable or permissible. To paraphrase in less elegant language the words of Mohamed Azmi SCJ in Malaysian Bar v. Government of Malaysia [1987] CLJ 185 (Rep); [1987] 1 CLJ 459; [1987] 2 MLJ 165, the classification must (i) be founded on an intelligible differentia distinguishing between persons that are grouped together from others who are left out of the group; and (ii) the differentia selected must have a rational relation to the object sought to be achieved by the law in question. And to quote that learned judge: “What is necessary is that there must be a nexus between the basis of classification and the object of the law in question.” In short, the state action must not be arbitrary. This, then, is the common thread that webs and binds the two limbs of Article 8(1). Hence the overlap.

28. Although there are a number of cases on what is meant by arbitrary state action, the most authoritative is the judgment of Gubbay CJ in Nyambirai v. National Social Security Authority [1996] 1 L.R.C. 64 which was approved by the Privy Council in de Freitas v. The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1998] UKPC 30. Lord Clyde when delivering the judgment of the Board said:

“In determining whether a limitation is arbitrary or excessive he [Gubbay CJ] said that the Court would ask itself:-

‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’

Their Lordships accept and adopt this threefold analysis of the relevant criteria.”

29. In Secretary of State For The Home Department, Ex Parte Daly, R v. [2001] UKHL 26. Lord Steyn adopted what was said in de Freitas:

“The contours of the principle of proportionality are familiar. In de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p. 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:-

‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'”

30. It will be seen from a reading of the speech of Lord Steyn in Daly that the threefold test is applicable not only to test the validity of legislation but also executive and administrative acts of the State. In other words, all forms of state action – whether legislative or executive – that infringe a fundamental right must (i) have an objective that is sufficiently important to justify limiting the right in question; (ii) the measures designed by the relevant state action to meet its objective must have a rational nexus with that objective; and (iii) the means used by the relevant state action to infringe the right asserted must be proportionate to the object it seeks to achieve.

31. It is clear from the foregoing discussion that the equal protection clause houses within it the doctrine of proportionality. This indeed is the point made by the Indian Supreme Court in Om Kumar v. Union of India AIR [2000] SC 3689. There, Jagannadha Rao J a most learned judge whose views are entitled to great respect said:-

“So far as Article 14 is concerned, the Courts in India examined whether the classification was based on intelligible differentia and whether the differentia had a reasonable nexus with the object of the legislation. Obviously, when the Court considered the question whether the classification was based on intelligible differentia, the Courts were examining the validity of the differences and the adequacy of the differences. This is again nothing but the principle of proportionality.”

31. It appears that Canada has led the way in the field of defining arbitrariness of state action. In R v. Oakes [1986] 1 SCR 10, a case that has influenced the jurisprudence of many jurisdictions, including Zimbabwe, Dickson, C.J. identified three components of the proportionality test:

“To begin, the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective. In addition, the means should impair the right in question as little as possible. Lastly, there must be a proportionality between the effects of the limiting measure and the objective –the more severe the deleterious effects of a measure, the more important the objective must be.”

32. Returning to the present instance the first question to be asked is whether section 46A is a piece of discriminatory legislation. See, Datuk Haji Harun bin Idris v. Public Prosecutor [1976] 1 LNS 19; [1977] 2 MLJ 155. The answer must surely be in the affirmative because it discriminates against those advocates and solicitors who are either office bearers of a political party or a Member of Parliament or both. The next question to ask is whether the discrimination is arbitrary in the sense already discussed. A careful examination of the reasons behind the enactment as revealed in the speech of the Minister for Law and Attorney General as reported in Hansard when introducing section 46A in Bill form to Parliament is to keep the Bar Council free from political influence. It is now settled that resort to Hansard may be legitimately had as a guide to interpreting an Act of Parliament. See, Chor Phaik Har v. Farlim Properties Sdn Bhd [1994] 4 CLJ 285; [1994] 3 MLJ 345. As earlier observed, it is in the public interest to have the governing body, namely, the Bar Council, free of any political influence. The section however does not prevent the appellant and those members of the Bar similarly circumstanced as he from attending and speaking at a general meeting of the Bar to put their views across for the purpose of influencing the Bar Council. It follows that the legislative measure under challenge is proportionate to the object it seeks to achieve. The result may have well been different if the section had prohibited the appellant and others in his position from practising law or from attending the general meetings of the Bar. Such a measure may well have been disproportionate and therefore arbitrary and unconstitutional. In short, section 46A satisfies the threefold test laid down in Nyambirai and hence does not violate Article 8(1). It follows that it is a fair and just law within Article 5(1) and therefore does not offend that Article as well. Put shortly, the appellant’s right within the compass of the personal liberty clause was deprived in accordance with law.

33. To sum up, section 46A of the Act does not violate Article 10(1)(c) or Article 5(1) or Article 8(1). It is a valid law. The appeal is therefore dismissed. The orders of the High Court and the Court of Appeal are affirmed. By agreement of the parties there shall be no order as to costs. The deposit shall be refunded to the appellant.

 

Mohd Yusof Mohamad v Kerajaan [1999] 5 MLJ 286:

MOHD YUSOF MOHAMAD v. KERAJAAN MALAYSIA & ANOR
HIGH COURT MALAYA, KUALA LUMPUR
RK NATHAN J
[SUMMONS NO: S2-21-92-1993]
18 JANUARY 1999

[Order accordingly.]

JUDGMENT

RK Nathan J:

Facts

The plaintiff, an Inspector in the Royal Malaysian Police Force, was first appointed on probation in October 1973 and permanently appointed to the rank of Inspector in November 1976. In July 1988, he was promoted to the rank of Assistant Superintendent of Police and in November 1989, he was awarded the Ahli Mangku Negara (A.M.N.).

By a letter dated 20 February 1990, the plaintiff was asked to show cause why he should not be dismissed from service pursuant to General Order (GO) 26 of the Public Officers (Conduct and Discipline) (Chapter D) General Orders 1980 on the grounds contained in the three charges, the details of which are irrelevant for the purposes of this decision.

The plaintiff was also given 16 days from the date of receipt of the said letter to make a written representation to the police force commission, the 2nd defendant. Accordingly, on 28 March 1990 the plaintiff made a written exculpatory representation. By a letter dated 10 September 1991 the plaintiff was informed by the 2nd defendant that he had been dismissed from service with effect from the date of receipt of the said letter. The plaintiff made various appeals to various parties.

Dissatisfied with the decision of the 2nd defendant, he commenced an action in the High Court of Kuala Lumpur on 7 August 1993 seeking a declaration that his dismissal was null and void, and that he should be reinstated. He also sought for an order that an account be taken of all salaries, emoluments and other benefits lawfully due to him from the date of his dismissal and that the same be paid to him with costs.

Certiorari Or Declaration

When the trial first came up for hearing it was adjourned pending the decision of the Federal Court on the question as to which was the correct procedure for a police officer, dismissed by a disciplinary body, to challenge the decision, that is, whether he ought to proceed by way of a declaration or certiorari. The Federal Court in Teh Guan Teck v. Inspector-General of Police & Anor [1998] 3 CLJ 153; [1998] 3 MLJ 137 FC decided that both declaration and certiorari were concurrent remedies and that both could be available to an aggrieved party. This issue having been put to rest, parties then proceeded with the case.

Case For The Plaintiff

By way of his amended statement of claim the plaintiff contended that his dismissal was invalid on the ground that the decision to dismiss was so manifestly unreasonable that nobody or persons could have arrived at such a decision. The plaintiff also relied on a plea of breach of natural justice. However, after receiving the defendants’ submission the plaintiff agreed to drop this issue of breach of natural justice.

Findings Of The Court

Relying upon the Supreme Court decision in Ghazi b Mohd Sawi v. Mohd Haniff b Omar, Ketua Polis Negara, Malaysia & Anor [1994] 2 CLJ 333; [1994] 2 MLJ 114 the plaintiff submitted that there are two categories of unreasonableness “one of which is referred to as comprehensive unreasonableness and the other is a distinct category of unreasonableness altogether which, with reference to a decision, amounts to any or perverted decision which is a perverse finding, so devoid of plausible justification that no reasonable body of persons could have reached it”.

In fact both these categories of unreasonableness are now known as the Wednesbury principles of unreasonableness because these were first pronounced by Lord Greene MR in the celebrated case of Associated Provincial Picture House v. Wednesbury Corp [1948] 1 KB 223.

Needless to say it is a fundamental and a cardinal principle of administrative law that the court in judicial review proceedings, is confined to the decision making process, and not to the decision itself. In Harpers Trading (m) Sdn. Bhd. V. National Union Of Commercial Workers [1991] 1 CLJ 159 SC Jermuri Serjan SCJ said at p. 419:

.. 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.

However the decision in R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 clothed the courts with new and additional powers in judicial review proceedings. The Federal Court was dealing with the decision of the Industrial Court which failed to consider allegations of bias and victimisation as raised by the employee. Eusoff Chin, Chief Justice said at p. 178:

… The Industrial Court must scrutinize the pleadings and identify the issues, take evidence, hear the parties’ arguments and finally pronounce its judgment having strict regards to the issues. It is true that the Industrial Court is not bound by all the technicalities of a civil Court (s. 30 of the Act) but it must follow the same general pattern. The object of pleadings is to determine what are the issues and to narrow the area of conflict. The Industrial Court cannot ignore the pleadings and treat them as mere pedantry or formalism, because if it does so, it may lose sight of the issues, admit evidence irrelevant to the issues or reject evidence relevant to the issues and come to the wrong conclusion. The Industrial Court must at all times keep itself alert to the issues and attend to matters it is bound to consider. In this case, the Industrial Court had totally failed to consider the allegations of misconduct but simply concluded that because the letter of termination was grounded on retrenchment exercise, it is not bound, and therefore, not obliged to consider the issues of bias and misconduct.For the reasons given we unanimously found that the Industrial Court had come to the wrong conclusion when it decided that the claimant was dismissed with just cause and excuse, and the Award must, therefore, be quashed.

The established belief that in judicial review cases the court is confined to investigating the decision making process and not the decision was in the words of Gopal Sri Ram JCA in Kumpulan Perangsang Selangor Bhd v. Zaid bin Haji Mohd Noh [1997] 1 MLJ 789, 797 “exploded by the landmark decision” in Rama Chandran. It must be noted that yet again the Perangsang case dealt with a decision of the Industrial Court.

Is The Decision In Rama Chandran Confined Only To Matters Relating To The Industrial Court?

What I have to consider here is whether the decision in Rama Chandran which no doubt has left an impact on industrial law, could be applied to a review of a decision by a public official in the performance of his public duty.

In respect of this issue the plaintiff referred me to a recent decision of the High Court in Ekambaran a/p Savarimuthu v. Ketua Polis Daerah Melaka Tengah & Ors [1997] 2 MLJ 454. In that case the applicant was dismissed from the police force after being charged for wilful disobedience of an order. The learned judge followed the decision in Rama Chandran and “deemed it fit to scrutinise the case, not only in relation to the process but also for substance”. It was urged upon me to follow this decision and to hold that the decision in Rama Chandran ought to apply to all judicial review cases.

I do not agree. A decision made in respect of an Industrial Court matter and a decision requiring the dismissal of a public servant call for different approaches by the High Court when called upon to review the said decision. In any case I am of the view that the decision in Ekambaran does not support the view as expressed by the plaintiff that in review cases of dismissal by administrative tribunals, the court can look into the merits of the decision. In that case the learned trial judge had allowed the application for certiorari and quashed the order for dismissal on two grounds:

(a) that the tribunal was in breach of the audi alteram partam rule; and

(b) that there was a procedural defect by way of an infringement of the rule of natural justice.

It was only in respect of the sentence that the trial judge had applied the decision in Rama Chandran. But this view appears clearly to be in conflict with the decision of the Federal Court in Ng Hock Cheng v. Pengarah Am Penjara & 2 Ors [1998] 1 CLJ 405; [1997] 4 AMR 4193 which held that the High Court does not have the jurisdiction and power to substitute its own view, for the view of the appropriate disciplinary authority, as to the appropriate penalty for the employee’s misconduct.

Proceedings In Industrial Court

In Industrial Court cases there are pleadings. There is also evidence of witnesses presented, after which the court hears the arguments and finally pronounces its judgment. From the decision of the Industrial Court the High Court is under a duty to carry out an objective examination of the factual matrix presented to the Industrial Court to ascertain whether a reasonable tribunal similarly circumstanced would have come to the same decision.

Proceedings In The Administrative Tribunal

However, it is clear that in respect of dismissal cases by administrative tribunals, only the evidence of the claimant/plaintiff is before the court and not the evidence of the defendants. In this case the plaintiff was charged under General Order 4(2)(g) of the Public Officers (Conduct and Discipline)(Chapter D) General Orders 1980. This was the then subsisting General Orders relating to conduct and discipline. The present orders are regulated by the Perintah- Perintah Am Bab ‘D’ Peraturan-Peraturan Lembaga Tatatertib Perkhidmatan Awam 1993.

The procedure that must be followed by the Disciplinary Board is set out in Part II of the Tatacara Tatatertib (Disciplinary Procedure). I shall for the purposes of this case, only reproduce the relevant provisions of the said

Disciplinary Procedure from the Public Officers (Conduct and Disciplinary)(Chapter D) General Orders 1980:

23. In all disciplinary proceedings under this Part no officer shall be dismissed or reduced in rank unless he has been informed in writing of the grounds on which it is proposed to take action against him and has been afforded a reasonable opportunity of being heard:Provided that this General Order shall not apply to the following cases:(a) Where the appropriate Disciplinary Authority is satisfied that for some reason, to be recorded by it in writing, it is not reasonably practicable to carry out the requirements of this General Order; or(b) Where the Yang di-Pertuan Agong is satisfied that in the interest of the security of the Federation or any part thereof it is not expedient to carry out the requirements of this General Order.24. In every case of an alleged breach of discipline by any officer except as provided for under General Order 27(a) and (b), the Chairman of the Appropriate Disciplinary Authority shall, in the first instance, before commencing any disciplinary proceeding in the matter, consider whether the breach of discipline complained of is a nature which merits a punishment of dismissal or reduction in rank or a punishment lesser than dismissal or reduction in rank.25. (1) Where the Chairman of the Appropriate Disciplinary Authority decides under General Order 24 that the breach of discipline alleged merits punishment lesser than dismissal or reduction in rank, the officer shall be informed in writing of the facts of the breach of discipline alleged against him and be given an opportunity of making a representation in writing, against the allegation.(2) After considering the representation under paragraph (1), the Appropriate Disciplinary Authority shall determine whether or not the officer is guilty of the alleged breach of discipline and if it determines that he is guilty thereof it shall impose any one or more of the punishments specified in General Order 36.26.(1) Where it is represented to, or is found by the Appropriate Disciplinary Authority that an officer is guilty of unsatisfactory work or misconduct and such work or misconduct, in the opinion of the Disciplinary Authority, merits dismissal or reduction in rank, the provisions of the following paragraphs shall apply.

(2) The Appropriate Disciplinary Authority shall, after considering all the available information in its possession that there is a prima facie case for dismissal or reduction in rank, cause to be sent to the officer a statement in writing, prepared, if necessary, with the aid of the Legal

Department, of the ground or grounds on which it is proposed to dismiss the officer or reduce him in rank and shall call upon him to state in writing within a period of not less than fourteen days from the date of receipt of the letter of representation containing grounds upon which he relies to exculpate himself.(3) If after consideration of the said representation, the Appropriate Disciplinary Authority is of the opinion that the unsatisfactory work or conduct of the officer is not serious enough to warrant dismissal or reduction in rank, the Disciplinary Authority may impose upon the officer such lesser punishment as it may deem fit.(4) If the officer does not furnish any representation within the specified time, or if he furnishes a representation which fails to exculpate himself to the satisfaction of the Appropriate Disciplinary Authority, it shall then proceed to consider and decide on the dismissal or reduction in rank of the officer.(5) Where the Appropriate Disciplinary Authority considers that the case against the officer requires further clarification, it may appoint a Committee of Inquiry consisting of not less than two senior Government officers who shall be selected with due regard to the standing of the officer concerned and to the nature and gravity of the complaints which are the subject of the inquiry, provided that an officer lower in rank than the officer who is the subject of the inquiry or the officer’s Head of Department shall not be selected to be a member of the Committee.(6) The officer shall be informed that, on a specified day, the question of his dismissal or reduction in rank will be brought before the Committee and that he will be allowed and if the Committee shall so determine, shall be required to appear before the Committee and exculpate himself.(7) If witnesses are examined by the Committee, the officer shall be given an opportunity to be present and to question the witnesses on his own behalf and no documentary evidence shall be used against him unless he has previously been supplied with a copy thereof or given access thereto.(8) The Committee may, permit the Government or the officer to be represented by an officer in the public service or, in exceptional cases, by an advocate and solicitor and may at any time, subject to such adjournment as is reasonably necessary to enable the officer to present his case in person, withdraw such permission.

Provided that where the Committee permits the Government to be represented, it shall also permit the officer to be similarly represented.

(9) If, during the course of the inquiry, further grounds for dismissal are disclosed, and the Appropriate Disciplinary Authority thinks fit to proceed against the officer upon such grounds, the officer shall be furnished with a written statement thereof and the same steps shall be taken as are prescribed above in respect of the original grounds.

(10) The Committee having inquired into the matter, shall make a report to the Appropriate Disciplinary Authority.

If the Disciplinary Authority considers that the report is not clear in any respect or that further inquiry is desirable, the matter may be referred back to the Committee for further inquiry and report.(11) If, upon considering the report of the Committee the Appropriate Disciplinary Authority is of the opinion -(a) that the officer should be dismissed or reduced in rank, it shall forthwith direct accordingly;(b) that the officer does not deserve to be dismissed or reduced in rank, but deserves some lesser punishment, it may inflict upon the officer such lesser punishment as it may deem fit; or

(c) that the proceedings disclose sufficient grounds for requiring him to retire in the public interest, it shall recommend to the Government accordingly.

The question of pension will be dealt with under the Pensions Act.

What is relevant is General Order 26(2). In reviewing dismissal cases of public servants, the High Court will not be in a position to assess whether the decision to dismiss is a reasonable decision since the appropriate disciplinary authority’s evidence in support of a “prima facie” case is never before the court. The basis on which the appropriate disciplinary authority arrives at its decision before forwarding to the plaintiff in this case, the statement in writing of the grounds on which it is proposed to dismiss the officer, will never be known. This to my mind is a clear indication of the need to confine judicial review of cases of dismissals by administrative tribunals, only to the decision making process and not to the decision arrived at. Justice is not just for the individual. Justice must equally prevail for the state.

I am all the more fortified in holding this view as I find support in the words of Edgar Joseph Jr FCJ in Rama Chandran at p. 197 where his Lordship said:

Needless to say, if, as appears to be the case, this wider power is enjoyed by our courts, the decision whether to exercise it, and if so, in what manner, are matters which call for the utmost care and circumspection, strict regard being had to the subject matter, the nature of the impugned decision and other relevant discretionary factors. A flexible test whose content will be governed by all the circumstances of the particular case will have to be applied.

For example, where policy considerations are involved in administrative

decisions and courts do not possess knowledge of the policy considerations which underlie such decisions, courts ought not to review the reasoning of the administrative body, with a view to substituting their own opinion on the basis of what they consider to be fair and reasonable on the merits, for to do so would amount to a usurpation of the power on the part of the courts.

This court will not know what policy considerations motivated the appropriate disciplinary authority in this case to act to dismiss the plaintiff. The plaintiff was accused of allowing a suspect in a drug possession case to escape. What policy consideration the defendants have on matters relating to drugs are within their knowledge. It is therefore inappropriate for this court to enter into the field of circumspection or alternatively, guesswork.

It is relevant to cite another passage from the judgment of Edgar Joseph FCJ also from Rama Chandran which further emphasises my view that this court should not apply the decision in Rama Chandran to review cases arising from administrative decisions by bodies or persons who are charged with the performance of public acts or duties. His Lordship said at p. 198:

It must be remembered that we are here concerned with an appeal which arises from Judicial Review proceedings whose target was an award of the Industrial Court, an inferior court, and not an administrative decision by bodies or persons who are charged with the performance of public acts or duties. It cannot be said, therefore, that by intervening in the manner which we propose to do, we would be trespassing into the domain of the executive, thus violating the doctrine of the separation of powers, and so acting undemocratically.

This is yet another ground that ought to be considered. Any judicial interference, in matters where the executive had exclusive information and upon which it had acted, could be readily construed as judicial encroachment upon the independence of the executive. Needless to say Gopal Sri Ram JCA must have had this in mind when he said in Kumpulan Perangsang at p. 799:

… Unlike the executive, the judiciary is not armed with all the information relevant to such matters and one could well understand a High Court, in the exercise of its discretionary power, declining to enter into the merits of a decision involving these considerations.

Procedure Fully Complied

It must be noted that there has been no complaint by the plaintiff of any procedural irregularity in this case. In the circumstances since all the required procedures pursuant to General Order 23 and General Order 26 of the Public Officers (Conduct and Discipline)(Chapter D) General Orders 1980 have been complied with, this application for judicial review is ill-founded and must be dismissed with costs.

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