MOHD SAIFUL RAZIEE BIN TUKIMAN v 1. ) LEMBAGA TATATERTIB KONTINJEN JOHOR 2. ) KERAJAAN MALAYSIA

Case Significance

Instructive on the treatment of an unsupported allegation that a disciplinary admission was procured by undue influence, and on the limited scope of judicial review of a police disciplinary dismissal under the proportionality doctrine.

This High Court decision at Muar, Johor, is one of two companion judicial reviews, heard together, by police officers dismissed from the Royal Malaysia Police by the Johor Contingent Disciplinary Board (Lembaga Tatatertib Kontinjen Johor), and concerns the review brought by the second of those officers. The applicant sought a declaration that his dismissal was unlawful, together with certiorari and mandamus, and claimed entitlement to salary and benefits. The challenge was mounted on administrative-law grounds common to both reviews: whether the charge was bad for duplicity or incomplete, whether the documents relevant to the charges were provided, whether the right to be heard by way of oral representation was respected, whether regulations 35 and 37 of the Public Officers (Conduct and Discipline) Regulations 1993 were complied with, whether the failure to furnish grounds of decision breached natural justice, and whether dismissal was harsh and unreasonable so as to offend the doctrine of proportionality. A feature particular to this applicant was that, although he had admitted the charges against him, he alleged that his admission had been procured by undue influence. The court, per Kalyana Kumar a/l Sockalingam JC, found that no evidence had been adduced to establish any undue influence, so that the admission stood. On the wider grounds, the court applied the principle that judicial review is confined to illegality, irrationality and procedural impropriety and does not extend to a merits reassessment of the punishment, and that a disciplinary tribunal or employer, including the Government, is better placed to judge the seriousness of the misconduct of its members, requiring an exceptional case before a court will interfere with the punishment imposed. Finding nothing exceptional and no illegality, irrationality or disproportionality in the Board's decision, the court dismissed the application, and, in view of the applicants' loss of employment, made no order as to costs. The judgment is instructive on the treatment of an unsupported allegation that a disciplinary admission was obtained by undue influence and on the limited scope of review of a police dismissal.