You are on page 1of 20

[2015] 6

CLJ
357

JOAN GOH PENN NEE v. INQUIRY COMMITTEE


HIGH COURT SABAH & SARAWAK, KOTA KINABALU
STEPHEN CHUNG J
[CASE NO: BKI-13NCVC-2-10-2013]
4 MARCH 2015

ADMINISTRATIVE LAW: Judicial review - Application for - Inquiry Committee set up under
Advocates Ordinance Sabah to hear complaints against advocate - Application to quash ruling
made by Inquiry Committee - Preliminary objection against application - Whether preliminary
findings of Inquiry Committee amenable to judicial review - Whether there was any legal or

binding effect - Whether advocate's rights affected by findings - Whether advocate should have
availed herself of specific remedies and procedures instead of resorting to judicial review Whether application for judicial review premature and incompetent
The applicant was an advocate in Sabah. The respondent was set up under s. 17(ccc) of the
Advocates Ordinance Sabah ('the Ordinance') to hear complaints made against the applicant. The
applicant had acted for Amalan Cipta Sdn Bhd ('Amalan') in a suit against the District Councils in
Sabah and the Sabah Government. The parties subsequently agreed to settle the suit by paying
RM1,728,390.36 to Amalan. The applicant retained a sum of RM200,000 out of the settlement
sum towards payment of costs. Subsequently, Amalan filed an originating summons ('OS') against
the applicant for the return of the RM200,000. After the OS was dismissed in the High Court, the
respondent held an inquiry hearing on the complaint made by Amalan against the applicant that
she, inter alia, overcharged for the services rendered and that she unilaterally deducted the sum of
RM200,000 and failed to pay the sum. The respondent proceeded to deliver its grounds of
findings ie that proceedings be taken against the applicant. Dissatisfied, the applicant applied for
judicial review pursuant to O. 53 of the Rules of Court 2012 to, inter alia, quash the ruling made
by the respondent. The respondent raised preliminary objections to the said application for
judicial review, one of which was that the preliminary findings of the respondent were not
amenable to judicial review. The respondent submitted that the report consisted of mere findings
and recommendations that did not bind the applicant. According to the respondent, the findings
were not reviewable as the applicant's legal rights were not directly affected by the findings. The
applicant, however, submitted that the respondent was a decision making body because it was
empowered under r. 4(1) of the Advocates Inquiry Committee Rules 1988 to investigate and
scrutinise complaints against an advocate and if upon examination and enquiry into such
complaint, the respondent finds that the complaint had been bona fide and that there was a prima
facie evidence that disciplinary proceedings should be taken against the advocate. Thus, the
applicant submitted that her application fell squarely into a judicial review case.
Held (dismissing application for judicial review):
(1) There was nothing in the Advocates Ordinance which suggests that the respondent has any
power to make any decision which affects the legal rights of the applicant except the power to
order any advocate or complainant to pay the costs of any proceedings before the Inquiry
Committee under r. 4(2) of the Advocates (Inquiry Committee) 1988. The findings of the
respondent in the enquiry into the complaint had no legal or binding effect and did not affect the
rights of the applicant which would eventually be decided by a judge in the proceedings pursuant
to ss. 12, 12A, 13 and 14 of the Ordinance. Merely because the respondent had made a finding
that the complaint was bona fide and there was prima facie evidence that disciplinary proceedings
should be commenced, it did not impose any sanction or penalty on the advocate. (paras 22 & 23)
(2) Notwithstanding the findings of the respondent, it is for the judge to decide in chambers
having regard to the nature of the complaint, the facts and all relevant circumstances relating
thereto whether the complaint was bona fide and whether there was prima facie evidence for the
application to proceed for the disciplinary proceedings to be taken. If he rules to issue to the
advocate to show cause, further proceedings shall be in open court. The respondent is not the
disciplinary body or tribunal to investigate, punish or penalise an advocate against whom a

complaint has been made. It has no such powers. The respondent had not commenced any
proceedings against the applicant. In the proceedings, the advocate would have an opportunity of
showing cause against such order. In that application, the advocate has the opportunity to
challenge the legality, unreasonableness or correctness of the findings or decisions of the
respondent. (paras 28 & 29)
(3) The Advocates Ordinance deals with rules in respect of ethics and accounts and the right and
liability of an advocate. The Ordinance also sets out the procedure for disciplinary action to be
taken and for remedies thereto. Where there are specific procedures and remedies provided in the
Advocates Ordinance, which are equally convenient and effectual which are available to an
advocate, he must avail himself or herself of these procedures and remedies. There were the
alternative specific procedures and remedies available to the applicant instead of resorting to
judicial review, in particular under the Advocates Ordinance which was specifically applicable to
the legal profession in Sabah. The applicant had not availed herself to these specific procedures
and remedies, had not pursued and had not exhausted these specific procedures and remedies as
an advocate which she was bound to do so. Clearly, this application for judicial review was
premature and not competent. (para 31)

Case(s) referred to:


Ahli-ahli Suruhanjaya Yang Membentuk Suruhanjaya Siasatan Mengenai Rakaman Klip Video
Yang Mengandungi Imej Seorang Yang Dikatakan Peguambela Dan Peguamcara Berbual
Melalui Telefon Mengenai Urusan Pelantikan Hakim-Hakim v. Tun Dato' Seri Ahmad Fairuz
Dato' Sheikh Abdul Halim & Other Appeals [2012] 1 CLJ 805 FC (refd)
Darshan Singh v. Farid Kamal Hussain [2004] 4 CLJ 410 CA (refd)
Koh Mui Tee v. Chin Lee & Ors [2014] 1 LNS 966 CA (refd)
Lee Mok Lan (f) v. Registrar of Titles, Selangor [1955] 1 LNS 48 HC (refd)
Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air dan Komunikasi & Anor [2014]
2 CLJ 525 FC (refd)
Re Application by Hamid Hassan; Hamid Hassan v. Returning Officer, Karak & Ors [1979] 1
LNS 87 HC (refd)
Re Chua Ho Ann [1963] 1 LNS 109 HC (refd)
Re Seah Pong Tshai [1992] 1 SLR 399 (refd)
Tun Dato' Hj Mohamed Salleh Abas v. Tan Sri Dato' Abdul Hamid Omar & Ors [1988] 2 CLJ

739; [1988] 1 CLJ (Rep) 294 SC (refd)


Woon Kwok Cheng v. HR Hochstadt & Ors [1997] 4 CLJ 106 HC (refd)

Legislation referred to:


Advocates (Practice & Etiquette) Rules 1988, r. 11
Advocates' (Inquiry Committee) Rules 1988, r. 4(1)(c), (2)
Rules of Court 2012, O. 53 rr. 2(4), 4(2)
Sabah Advocates Ordinance, ss. 12, 12A, 13, 14, 15, 17(cc), (ccc)

Counsel:
For the applicant - Maureen Lind (Joan Goh with her); M/s Goh & Assocs
For the respondent - Ho Kim Kong (Chung Jiun Dao with him); M/s Chung & Assocs

Reported by Suhainah Wahiduddin

JUDGMENT
Stephen Chung J:
[1] This is an application for judicial review pursuant to O. 53 of the Rules of Court 2012 for the
following orders:
(a) to quash part of the ruling made on 4 July 2013 by the respondent that the deduction aspect of

the complaint is bona fide and prima facie evidence that proceedings be taken against the
applicant;
(b) to quash part of the ruling of the respondent that the applicant to pay cost of RM800 to the
respondent;
(c) a declaration that there is no breach of the Advocates Ordinance and/or misconduct on the part
of the advocate in deducting the sum retained by the advocate in order to set off her fees;
(d) a declaration that the applicant as an advocate did not breach r. 11 of the Advocates (Practice
& Etiquette) Rules 1988, the Advocates' Account Rules 1988 and s. 15 of the Sabah Advocates
Ordinance;
(e) a declaration that part of the decision being the subject matter of this application is wrong in
law and ultra vires the provisions of the Sabah Advocates Ordinance, Sabah Advocates Ordinance
(Cap 2) Advocates (Practice & Etiquette) Rules 1988, the Sabah Advocates Ordinance (Cap 2)
(Inquiry Committee) 1988 and Advocates' (Inquiry Committee) (Amendment) Rules 1988 and
Advocates' Account (Amendment) Rules 2010; and
(f) for damages.
[2]Section 17(cc) of the Sabah Advocates Ordinance provides for rules regulating proceedings
against any advocate who fails to comply with any rules made under this section. Section 17(ccc)
establishes an inquiry committee and to make rules for regulating the hearing and investigation of
matters before or by an inquiry committee. The applicant is an advocate in Sabah practising under
the name of Messrs Goh & Associates. The respondent is the inquiry committee set up under s.
17(ccc) of the Advocates Ordinance Sabah to hear the complaints made against the applicant.
[3] Rule 4(1) of the Advocates' (Inquiry Committee) Rules 1988 (as amended) states as follows:
(a) to consider, examine, scrutinise or enquire into any complaint made against any advocate in
his professional capacity by any person aggrieved by any action of the advocate or by the State
Attorney General or Sabah Law Association;
(b) if upon examination and inquiry into such complaint, the inquiry committee is of the opinion
that the same is frivolous and without merit and unsubstantiated, to dismiss the same without
taking any further action unless directed otherwise by the State Attorney General;
(c) if upon examination and inquiry into such complaint, the inquiry committee finds that the
complaint has been bona fide, and that there is prima facie evidence that disciplinary proceedings
should be taken against the advocate under s. 12 or s. 12A of the Ordinance, to commence
proceedings to apply for such order as the inquiry committee thinks fit under s. 13 of the
Ordinance having regard to the nature of the complaint and all the relevant circumstances relating
thereto.

[4] On the statement, affidavits and submissions filed, the applicant had acted for Amalan Cipta
Sdn Bhd (Amalan) in a suit against the District Councils in Sabah and the Sabah Government.
The parties subsequently agreed to settle the suit by agreeing to pay RM1,728,390.36 to Amalan
and costs of RM124,800. The applicant retained a sum of RM200,000 out of the settlement sum
towards payment of the costs.
[5] On 17 September 2009 Amalan wrote a letter to the respondent about the sum being retained
by the applicant. On 18 June 2010 Amalan filed an Originating Summons No. K24-148-2010
against the applicant for return of the RM200,000 and that the costs be taxed within 30 days. The
OS was dismissed on 2 March 2011. On appeal, the Court of Appeal dismissed the appeal on 17
May 2013.
[6] In the meantime the letter of complaint was given to the applicant on 29 June 2010. The
applicant responded to the complaint on 6 July 2010. On 12 August 2011, after the OS was
dismissed in the High Court, the respondent held an inquiry hearing on the complaint made by
Amalan. The applicant raised a preliminary objection that the complaint did not disclose any
breach of ethics by the applicant and that it should be dismissed. The inquiry committee directed
the parties to put in writing the complaint and any objections to the complaint.
[7] Amalan filed the complaint dated 18 August 2011 against the applicant that she overcharged
for the services rendered, that the applicant refused to tax the bills, she unilaterally deducted the
sum of RM200,000 and failed to pay the sum. The applicant filed her preliminary objections
dated 9 September 2011.
[8] During the inquiry hearing on 8 November 2011 the preliminary objections were dismissed on
the basis that there was no necessity to specify the specific sections or rules breached by an
advocate in a complaint and what was required is that the substance of the complaint be made
clear. The inquiry committee then proceeded to hear the substance of the complaint and delivered
its grounds of findings on 4 July 2013 (see exh. JG-22).
[9] In para. 22 of the statement the applicant averred that the respondent delivered its rulings as
follows:
(a)

(b)

(c)

1st issue

Preliminary objection raised by applicant relating to complainant seeking order of


taxation.

Ruling

Preliminary objection not accepted as taxation is not within the jurisdiction of the
inquiry committee. No double jeopardy as feared by the applicant.

2nd issue :

Refusal of applicant to adduce tax.

Ruling

Declined to deal with issue as it has already been brought up in proceedings in the
High Court.

3rd issue :

Excessive fees charged.

Ruling

There was insufficient evidence adduced to make a prima facie finding of breach.

(d)

4th issue

Ruling

Breach of Advocates' Account Rules.


Distinction between issue of retention of RM200,000 by applicant and deduction
of RM200,000 toward fees. Retention - Subject matter of proceedings in the High
Court.
Deduction - Aspect of complain is bona fide and prima facie evidence that
proceedings be taken against the applicant.

(e)

Cost

RM800 be paid by the applicant to the inquiry committee ie, the respondent.

[10] The respondent has raised the following preliminary objections to the application for judicial
review:
(a) the preliminary findings of the inquiry committee are not amenable to judicial review;
(b) the refusal and/or failure to make Amalan a party to the judicial review proceedings is
contrary to O. 53 r. 4(2) of the Rules of Court 2012 and the judicial review proceedings ought to
be dismissed; and
(c) the issue raised relating to the dismissal of the applicant's objections on 8 November 2011 is
out of time in that regard.
[11] The applicant and the respondent agreed that if the preliminary objections are allowed, these
will dispose or decide the application for the judicial review.
[12] On the first preliminary objection raised, the respondent submitted that the preliminary
findings of the respondent are not amenable to judicial review. The respondent submitted that the
findings were made under r. 4(1)(c) of the Advocates' (Inquiry Committee) Rules 1988 (as
amended). The findings made were whether the complaint was bona fide, whether there was
prima facie evidence that disciplinary proceedings should be taken against the applicant under s.
12 or s. 12A of the Advocates Ordinance and whether to commence proceedings to apply for such
an order as the inquiry committee thinks fit under s. 13 of the Ordinance having regard to the
nature of the complaint and all the relevant circumstances relating thereto.
[13] The respondent submitted that the inquiry by the respondent was not a disciplinary hearing
or proceeding, at best the inquiry constituted preparatory steps to the taking of disciplinary
proceedings. It submitted that there was a strong policy consideration that it was against public
interest to allow the findings of the respondent to be challenged in courts.
[14] The respondent submitted that it is trite that the purpose of an order for certiorari is to quash
the legal effect of a decision. For a decision to be susceptible to the court's reviewing powers,
there must first be a decision by a decision maker or a refusal by him to make a decision and that
decision must affect the aggrieved party by either altering his rights or obligations or depriving
him of the benefits which he has been permitted to enjoy. The respondent submitted that the

report consisted of findings and recommendations and being mere findings and
recommendations, they do not bind the applicant. It submitted that the findings are not reviewable
as the applicant's legal rights were not directly affected by the findings or that the benefits she has
been permitted to enjoy have not been deprived of. Counsel for the respondent referred to
authorities in support of its submissions: see Re Chua Ho Ann [1963] 1 LNS 109; [1963] 1 MLJ
193; Tun Dato' Hj Mohamed Salleh Abas v. Tan Sri Dato' Abdul Hamid Omar & Ors [1988] 2
CLJ 739; [1988] 1 CLJ (Rep) 294; [1988] 3 MLJ 149; Ahli-ahli Suruhanjaya Yang Membentuk
Suruhanjaya Siasatan Mengenai Rakaman Klip Video Yang Mengandungi Imej Seorang Yang
Dikatakan Peguambela Dan Peguamcara Berbual Melalui Telefon Mengenai Urusan Pelantikan
Hakim-Hakim v. Tun Dato' Seri Ahmad Fairuz Dato' Sheikh Abdul Halim & Other Appeals
[2012] 1 CLJ 805; [2011] 6 MLJ 490.
[15] The applicant submitted that the respondent is different from the bodies established for a
particular purpose and on ad hoc basis such as the tribunal referred to in the authorities cited
above by the respondent in support of its contention that it is not amenable to judicial review.
[16] The applicant submitted that the respondent is a decision making body because it is
empowered under r. 4(1) of the Advocates' (Inquiry Committee) Rules 1988 to investigate and
scrutinise complaints against an advocate and if upon examination and enquire into such
complaint and the inquiry committee finds that the complaint has been bona fide and that there is
a prima facie evidence that disciplinary proceedings should be taken against the advocate. The
applicant submitted that her application falls squarely into a judicial review case.
[17] The applicant submitted that the findings of facts had adverse consequences on her integrity
and standing as an advocate and a member of the Sabah Law Association. The applicant
submitted that there are decisions where the circumstances of the case make it amenable to
judicial review in particular when the matter in contention involves the right to earn a livelihood
or where the livelihood of an applicant is affected: see Re Seah Pong Tshai [1992] 1 SLR 399;
Woon Kwok Cheng v. HR Hochstadt & Ors [1997] 4 CLJ 106; [1997] 2 MLJ 795; Darshan Singh
v. Farid Kamal Hussain [2004] 4 CLJ 410; [2005] 3 MLJ 502.
[18] Therefore the applicant submitted that the decision of the respondent is amenable to judicial
review and should be set aside because (a) the decision of the respondent was not supported by
any evidence and facts; (b) the respondent has failed to take relevant evidence into consideration
when making its decision; (c) the respondent has failed to apply the relevant law to this case; (d)
the respondent has acted ultra vires its powers; (e) that no reasonable tribunal or body similarly
circumstanced as the respondent would have arrived at such a conclusion or drawn such an
inference as the respondent that there was a prima facie evidence that disciplinary proceedings be
taken against the applicant; (f) the respondent has failed to take into consideration relevant and
undisputed facts in coming to the conclusion; (g) the respondent has arrived at the decision which
was never the complaint; and (h) the respondent has acted against the law of natural justice.
[19] The respondent is a statutory body appointed under s. 17(ccc) of the Advocates Ordinance of
Sabah. Although its proceedings are not open to the public unless it so directs, it is a public body
exercising the powers, duties and functions bestowed upon it under the law. It is exercising a

public duty. Its findings or decisions may adversely affect the advocate against whom a complaint
has been made.
[20]Order 53 r. 2(4) of the Rules of Court 2012 provides that any person who is adversely
affected by the decision, action or omission in relation to the exercise of the public duty or
function shall be entitled to make the application. On the facts and circumstances of this case, the
applicant has shown that she has a real and genuine interest in the legality of the decision made
against her which adversely affected her: see Malaysian Trade Union Congress & Ors v. Menteri
Tenaga, Air dan Komunikasi & Anor [2014] 2 CLJ 525; [2014] 3 MLJ 145.
[21] The question is whether she is entitled to quash and set aside the decision of the respondent
and for the declaratory orders based on the grounds which the applicant has submitted.
[22] There is nothing in the Advocates Ordinance which suggests that the respondent has any
power to make any decision which affects the legal rights of the applicant except the power to
order any advocate or complainant to pay the costs of any proceedings before the inquiry
committee under r. 4(2) of the Advocates' (Inquiry Committee) Rules 1988. This order to pay
costs is subject to the provisions of ss. 12, 12A, 13 and 14 of the Ordinance.
[23] The findings of the respondent in the enquiry into the complaint have no legal or binding
effect and do not affect the rights of the applicant which will eventually be decided by a judge in
the proceedings pursuant to ss. 12, 12A, 13 and 14. Merely because the respondent has made a
finding that the complaint is bona fide and there is prima facie evidence that disciplinary
proceedings should be commenced, it does not impose any sanction or penalty on the advocate.
[24] Pursuant to s. 12 of the Advocates Ordinance, any advocate may have his name struck off the
roll of advocates, be suspended from practising in Sabah, be fined not exceeding five thousand
ringgit, be censured or be awarded costs to or against him or his right to practise in Sabah
withdrawn by order of a judge inter alia if he has been guilty of a breach of any rules made under
para. (a), (b) or (c) of s. 17 provided that no such order shall be made until the advocate or person
has had an opportunity of showing cause against such order.
[25]Section 13(1) states that proceedings to strike an advocate off the roll of advocates, suspend,
fine, censure or award costs referred to in s. 12 shall be commenced by an application to a judge
in chambers for a rule to issue to the advocate to show cause why he should not be struck off the
roll of advocates, suspended, fined, censured or awarded costs, as the case may be. Pursuant to
sub-s. (3), an application under sub-s. (1) or sub-s. (2) may be made by the inquiry committee
established pursuant to s. 17, or by any person aggrieved by any action of the advocate or person
complained against. In the event of a rule being granted, further proceedings thereunder shall be
in open court: see sub-s. (4).
[26] In the event of any advocate being struck off the roll, suspended, fined, censured or awarded
costs against him, he shall be at liberty to appeal against the order to the Federal Court.
[27] Reading the provisions of ss. 12, 12A, 13 and 14 of the Advocates Ordinance and r. 4 of the

Advocates' (Inquiry Committee) Rules 1988, the role of the inquiry committee is to consider,
examine and enquire into a complaint against an advocate in his professional capacity. If it finds
that the complaint is bona fide and there is prima facie evidence that disciplinary proceedings
should be taken against the advocate, the inquiry committee is to commence proceedings to apply
to a judge in chambers for such order.
[28] Notwithstanding the findings of the inquiry committee, it is for the judge to decide in
chambers having regard to the nature of the complaint, the facts and all relevant circumstances
relating thereto whether the complaint is bona fide and whether there is prima facie evidence for
the application to proceed for the disciplinary proceedings to be taken. If he rules to issue to the
advocate to show cause, further proceedings shall be in open court. The inquiry committee is not
the disciplinary body or tribunal to investigate, punish or penalise an advocate against whom a
complaint has been made. It has no such powers.
[29] The inquiry committee has not commenced any proceedings against the applicant. In the
proceedings the advocate will have an opportunity of showing cause against such order. In that
application the advocate has the opportunity to challenge the legality, unreasonableness or
correctness of the findings or decisions of the inquiry committee. The judge in chambers may
decide to set aside the findings of the inquiry committee.
[30] The Advocates Ordinance is to regulate the admission of persons as advocates and to make
provisions for matters relating thereto including admission and enrolment as advocates, the right
to practise in Sabah, the rules in respect of ethics and accounts and the right and liability of an
advocate. The Ordinance also set out the procedure for disciplinary action to be taken and for
remedies thereto. Where there are specific procedures and remedies provided in the Advocates
Ordinance, which are equally convenient and effectual which are available to an advocate, he
must avail himself or herself of these procedures and remedies.
[31] Therefore these are the alternative specific procedures and remedies available to the
applicant instead of resorting to judicial review, in particular under the Advocates Ordinance
which is specifically applicable to the legal profession in Sabah. The applicant has not availed
herself to these specific procedures and remedies, has not pursued and has not exhausted these
specific procedures and remedies as an advocate which she is bound to do so. No explanation was
given. No explanation was also given why she chose to apply for judicial review when these
specific procedures and remedies are available and applicable to her: see Lee Mok Lan (f) v.
Registrar of Titles, Selangor [1955] 1 LNS 48; [1955] 1 MLJ 97; Re Application by Hamid bin
Hassan; Hamid bin Hassan v. Returning Officer, Karak & Ors [1979] 1 LNS 87; [1979] 2 MLJ
183; Koh Mui Tee v. Chin Lee & Ors [2014] 1 LNS 966; [2014] 6 AMR 107. Clearly this
application for judicial review is premature and not competent.
[32] For the reasons given that the applicant must avail herself of the specific procedures and
remedies enacted in the Advocates Ordinance instead of applying for the judicial review, there is
no need for me to deal with the two other preliminary objections raised by the respondent.
Therefore the application for the judicial review is refused and no order for costs in this

application. Costs should be decided in the disciplinary proceedings.


[33] Last but not least, to be fair to both sides, there is no provision in the Advocates Ordinance
or in the Rules to provide the time frame for the inquiry committee to commence the application
for a rule to issue to the advocate to show cause. However, once the inquiry committee has made
its findings that the complaint has been bona fide and that there is a prima facie evidence that
disciplinary proceedings should be taken against the advocate, the application for such an order
must be commenced as soon as possible. The parties concerned are entitled to a speedy hearing
and the right to know the outcome of the proceedings which may adversely affected their rights
and livelihood. Otherwise any delay or failure will unduly prejudice the parties, in particular the
applicant in this case.
[34] Looking at the circumstances especially the passing of time, the inquiry committee has not
commenced the proceedings under s. 13 of the Ordinance. It has delayed in doing so. It is obliged
to commence the application as soon as possible once it has made the findings. It has ample time
to do so. No explanation was given why it cannot do so and there was also no explanation for the
delay. Therefore the inquiry committee is directed to commence the application in accordance
with the Ordinance and the Rules within 30 days from today.

Disclaimer | Privacy Policy | Terms of Trade | Terms & Conditions of Use | Licence
Agreement | FAQ| Sitemap
Copyright 2015 CLJ Legal Network Sdn Bhd.
Email:enquiries@cljlaw.com Tel: 603-4270 5421 Fax: 603-4270 5402

[2008]
4 ILR 1

YAP SWEE CHIANG v. SISTEM PENERBANGAN MALAYSIA


INDUSTRIAL COURT, KUALA LUMPUR

SITI SALEHA ABU BAKAR


AWARD NO: 431 OF 2008 CASE NO: 6/4-874/06
12 MARCH 2008

DISMISSAL: Misconduct - Company failing to produce supporting documents or


evidence - Whether misconduct proven by the company - Whether dismissal without
just cause or excuse - Industrial Relations Act 1967, s. 20(3)
DOMESTIC INQUIRY: Procedural impropriety - Charge against claimant amended
by company - Claimant not given notice of amendment - Whether the claimant had
been in a position to defend himself properly - Effect of - Whether dismissal without
just cause or excuse - Industrial Relations Act 1967, s. 20(3)
DOMESTIC INQUIRY: Procedural impropriety - Request by claimant that DI be
postponed - Company failing to inform claimant that DI would proceed ex parte in
his absence - Effect of - Whether the inquiry had been proper - Whether dismissal
without just cause or excuse - Industrial Relations Act 1967, s. 20(3)
EVIDENCE: Witnesses - Company failing to call - Whether misconduct proven Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s.
20(3)
EVIDENCE: Adverse inference - Non-production of material witnesses - Effect of Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s.
20(3)

The company had employed the claimant as an Inflight Services Supervisor. In May 2002, the
company handed the claimant an allegation letter (Bundle A p. 2). A Domestic Inquiry ('DI') was
convened, at the conclusion of which the claimant was found guilty of the misconduct charge
preferred against him and terminated from the company's service with immediate effect. The
claimant contended that his dismissal had been without just cause and excuse. The sole issue that
arose for determination before this court was whether the claimant had been dismissed with just
cause and excuse.
Held for the claimant: claimant's dismissal had been without just cause or excuse
(1) The allegation against the claimant had been that he had been found to have been in

possession of 26 bottles of wine and liquor which had belonged to the company without FMB
Aerobridge, KLIA's consent or authority. However at the DI, "the location" in the charge had
been amended to "CCTV Control Room" from "FMB Aerobridge". The company in their
Statement in Reply had not stated anything in relation to this amended charge nor had they given
any explanation as to why the amendments had been necessary. This had been a material
particular as it had been the place where the claimant allegedly had been found to have been in
possession of the company's property. As such, the company should have given the claimant
notice of this amendment before the DI to have enabled him to prepare a proper defence (paras 49
& 50).
(2) The company's witnesses had stated that the claimant had been in possession of 26 bottles of
wine and liquor from the aircraft but the particulars of the aircraft had not been stated in the
charge. The allegation letter had stated that the claimant had contravened item 1.2 of p. 1 Bundle
B and/or item 15.10 Appendix A, Act of Misconduct of the MAS Disciplinary Procedure. A
perusal of p. 1 Bundle B revealed that item 1.2 had not been the appropriate or relevant item that
the claimant should have been charged with as this item had referred to possession while in a
vehicle. Item 1.1 would have been more applicable since it had referred to unauthorized removal
".... from MAS premises or aircraft of items of food....". Thus the charge which had been leveled
against the claimant had not given accurate or correct particulars (paras 51, 52 & 53).
(3) The claimant had raised the issue that the DI had been continued in his and the union's
absence although the union and he had requested for a postponement until their complaints had
been resolved. The company had not only failed to accede to their request, but they had also
failed to inform the claimant and the union that the DI would proceed ex parte in their absence.
Thus the DI had been defective and improper (paras 54 & 55).
(4) The company had sought to establish its case through the evidence of its 5 security personnel
but no documents had been produced to prove that the goods had indeed been from flight MH73.
The company should have produced a report stating that the said goods had gone missing from
that flight. Further the company failed to call police personnel to confirm that the wine and liquor
had been handed over to them. They had also failed to call the cabin crew who had allegedly seen
the claimant take out the goods from the flight, as witnesses. The claimant's testimony that he had
only been allowed one trolley bag had been corroborated by CLW1. The claimant had further
testified that it had been impossible for the trolley bag to have contained the 26 bottles of wine
and liquor as contended by the company. Unfortunately neither this trolley bag nor the 26 bottles
of wine and liquor had been produced before this court. Further CLW1's evidence that the goods
had been uplifted in Hong Kong would have meant that the label "Hong Kong Duty Not Paid" as
opposed to "Malaysia Duty Not Paid" would have been reflected on the goods. This had been
contrary to the testimony of the company witnesses. With this contradiction in place in respect of
the crux of the charge against the claimant, the company should have produced the goods, which
they had failed to do. The crew members of flight MH73 should also have been called to confirm

the presence of the goods in the claimant's trolley bag. Again this had not been done. The
company's failure to call material witnesses and adduce vital evidence to establish its case left the
court with no choice but to invoke s. 114(g) of the Evidence Act 1950 and draw an adverse
inference against it (paras 57, 58, 59, 60, 61, 62 & 64).

Case(s) referred to:


Dreamland Corp (M) Sdn Bhd v. Choong Chin Sooi & Industrial Court of Malaysia [1988] 1
CLJ 1; [1988] 1 CLJ (Rep) 39
Esso Production Malaysia Inc v. Maimunah Ahmad & Anor [1998] (2002) 3 CLJ 242
Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 4 CLJ 449
Union Construction Allied Trades & Technicians v. Brain [1981] 1 DLR 224
Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Anor [1995] 3 CLJ 344

Legislation referred to:


Evidence Act 1950, s. 114(g)
Industrial Relations Act 1967, s. 20(3)

Counsel:
For the claimant - Kanagaratnam Visuvanathan; Industrial Relations Officer, Shaharuddin
Othman; Executive Council of MASEU
For the company - S Chandran; M/s Zaid Ibrahim & Co

Reported

by

Sharmini

Pillai

AWARD
(NO. 431 of 2008)
Siti Saleha Abu Bakar:
Reference
[1] The dispute over the claimant's dismissal by the company on 18 November 2002 was referred
to the Industrial Court by the Honourable Minister of Human Resources under s. 20(3) of the
Industrial Relations Act 1967 for an award.
The Salient Facts
[2] The claimant commenced employment with the company with effect from 28 August 1972 in
the position of Flight Steward with the Cabin Crew Department.
[3] The claimant's last held position was as Inflight Services Supervisor.
[4] The claimant was given an allegation letter dated 31 May 2002 (Bundle 'A' p. 2).
[5] A domestic inquiry was held by the company to hear the following charge contained in the
said letter, against the claimant:
That you as an Inflight Supervisor, Cabin Crew Department of the company, on 24 April 2002, at
about 1900 hours, at Flight Management Building (FMB) Aerobridge, KLIA was found in
possession of 26 (twenty six) bottles of wine and liquor belonging to the company without
authority as follows:
i) Seven (7) bottles of Black Label 37.5 cl;

ii) Six (6) bottles of Chivas Regal 37.5 cl;


iii) Four (4) bottles of Otard 35 cl;
iv) Three (3) bottles of Otard (Jade) 35 cl;
v) One (1) bottle of Hennessy XO 35 cl;
vi) One (1) bottle of Haut Medoc 75 cl; and
vii) Four (4) bottles of Vacqueyras 75 cl.
You have thereby committed an act of misconduct inconsistent with the fulfillment of your terms
and conditions of your service with the company by virtue of Item 1.2 of circular by Senior Vice
President Human Resource, ref SVP HR - 330 dated 23 August 1999 and/or item 15.10, Appendix
A, Acts of Misconduct of the MAS Disciplinary Procedure and such acts of misconduct attracts
major punishment.
[6] The domestic inquiry was conducted on 1 July 2002, 2 July 2002, 14 August 2002, 10
September 2002, 11 September 2002, 22 September 2002, 26 September 2002 and 27 September
2002 in the presence of the claimant and the union representatives. However on 14 October 2002
and 15 October 2002 the domestic inquiry was continued in the absence of the claimant and the
union representatives.
[7] At the conclusion of the domestic inquiry the claimant was found guilty of the charge.
[8] The company terminated the services of the claimant with effect from 18 November 2002
vide letter of same date (Bundle 'A' p. 20). The claimant's last drawn basic salary was RM3,295
per month. He was also entitled to a monthly allowance of RM70 for uniform laundry, RM500
for fleet and RM70 personal to holder.
The Company's Case
[9] The company called seven (7) witnesses to establish it's case. They were:
(i) Mohd. Jaffar Bin Mohd.Taib, a security officer (COW1).
(ii) Fauzi Bin Ibrahim, an assistant security officer (COW2).
(iii) Khairul Aidi Bin Alias, an assistant security officer (COW3).

(iv) Abu Bakar Ayob, an assistant investigating officer (COW4).


(v) Rahim Hanif, the investigating officer (COW5).
(vi) Samsuddin Bin Md. Yunus, the Human Resources Executive (COW6).
(vii) Mohamed Yusof Ahmad Muhaiyuddin, the General Manager, Human Resources (COW7).
[10] In his examination-in-chief COW1 said that he had received information from flight MH73
via telephone that a crew member had removed some bottles of wine and liquor from the aircraft.
[11] The further evidence of COW1 is as follows:
[12] On 24 April 2002 at 6.30 pm. when the cabin crew had finished duty from flight MH73
COW1, COW2 and COW3 conducted a surprise search on all of them at the Document Room.
When it came to the claimant's turn to be searched he refused to enter the Document Room for his
baggage to be searched. Instead the claimant proceeded to the lift and was followed by COW1
and COW2. When the lift reached the ground floor COW1 and COW2 requested the Claimant to
enter the CCTV Control Room and he complied. After much persuasion by COW1 and COW2
the claimant then opened his bags. On opening the claimant's garment bag 6 bottles of liquor
were found in it and when his trolley bag was opened it contained 20 bottles of liquor and wine.
On being questioned by COW1 the claimant admitted that he took the bottles of wine and liquor
from flight MH73. The claimant however refused to sign and acknowledge the search list form
(p. 25 of Bundle 'B').
[13] The testimony of COW4 is that he was on duty at the CCTV Control Room when the
incident happened. He said that before COW1, COW2 and the claimant entered the said room
there were no bottles of wine or liquor inside the room.
[14] Thereafter the claimant fled the scene and went to the car park to collect his car. When
COW3 endeavoured to stop him, the claimant tried to run over COW3 in his car. As a result
COW3 made a report on the incident at the Security Department.
[15] COW1 attested further in examination-in-chief that all 26 bottles of wine and liquor
belonged to the company. He said:
Pemilik botol-botol arak itu ialah MAS sebab ada tulis "Property of Malaysian Airlines" atas
botol dan "Malaysian Duty Not Paid". Saiz botol juga adalah sama saiz yang dikhaskan untuk
syarikat penerbangan yang sukar didapati di kedai luar.
[16]Vide a letter dated 8 May 2002 (p. 57 of Bundle 'B') the company suspended the claimant for

14 days pending investigations into the matter.


[17] On receiving a report dated 31 May 2002 (pp. 91 and 92 of Bundle 'B') from the Security
Manager on the outcome of the investigation, the company issued the claimant with a letter of
allegation (p. 93 of Bundle 'B').
[18] Subsequently vide a letter of 10 June 2002 (p. 106 of Bundle 'B') the company issued the
claimant with a notice of domestic inquiry (pp. 108 and 109 of Bundle 'B') to give the claimant a
further opportunity to answer the allegations leveled against him.
[19] The domestic inquiry which was scheduled from 25 June 2007 to 27 June 2007 was
postponed to 1 July 2003 to 3 July 2003 after an appeal by the claimant.
[20] The domestic inquiry was duly convened on 1 July 2002 and adjourned to 14 July 2002. It
was further convened on 10 September 2002, 11 September 2002, 12 September 2002, 26
September 2002 and 27 September 2002.
[21] By a letter dated 2 October 2002 the claimant made an allegation that the officer representing
the company made threats to him and the union representatives during the inquiry. However vide
a letter of 8 October 2002 to the Secretary General of MASEU the General Manager, Human
Resources stated that the Chairman of the domestic inquiry had confirmed that there were no such
threats and that the inquiry would be held as scheduled on 14 October 2002 and 15 October 2002
(p. 125 of Bundle 'B').
[22] On 14 October 2002 the domestic inquiry was convened. However since the claimant and his
union representatives were absent the domestic inquiry proceeded ex parte and continued until
the next day.
[23] The Panel of Inquiry after considering all the evidence available found the claimant guilty of
the charge leveled against him. Vide letter of 28 October 2002, the company informed the
claimant of the decision and he was asked to submit his plea of mitigation before 5 November
2005 (p. 130 of Bundle 'B'). Vide a letter of 5 November 2002 (p. 131 of Bundle 'B') the claimant
submitted his plea in mitigation.
[24] After considering all relevant information the company decided that it could no longer
repose the necessary trust and confidence in the claimant to continue his employment.
[25]Vide letter of 18 November 2002 the claimant's services was terminated with immediate
effect (p. 140 of Bundle 'B').
[26] The company's stand as stated in it's Written Submission filed on 15 August 2007 is that the
claimant's services was terminated for the act of misconduct of having possession of the

company's property without authority.


[27] The company draw