QUESTION 1

ISSUE :
Whether Suzana can challenge decision under :
i) Sufficient time
ii) Disclosure of all information
iii) There are element of bias in the hearing proceeding

LAW :
Issue (1) Sufficient time

Right to be heard
Every person has right to be heard which means he/she must be given an opportunity to
defend himself/herself when a charge is made against him/her.

Right to be heard consists of notice and hearing.

2.1.1 Notice
A notice must be served to the accused before a hearing takes place. It contains a charge
against the accused. There is an infringement of the principles of natural justice if the
administrator fails to serve a notice to the accused or if the notice is served but the accused
is given insufficient time to prepare his/her defense.

Case : Urban Housing Co. v. Oxford Council (1940)

As per sir Wilfred Green MR : “The local authority must either give the party concerned a
notice that they intend to consider the matter with the purpose of reaching on a decision, or if
they have reached a decision, they intended to enforce it and give the alleged party an
opportunity to show why such an action cannot be taken against him”.

Article 27 of the Federal Constitution

Under Articles 24, 25 and 26 of the Federal Constitution, the government has power to
deprive a Malaysian citizen of his citizenship under certain circumstances. Before the
government makes any such order against a person, the government has to give him notice
in writing in the prescribed form informing him on the ground on which it is proposed to make
the order and the person’s right to have the case referred to an inquiry committee.
There are two elements under notice such as charge and sufficient time. But in this case the
issue involves sufficient time.

ii- Sufficient time

The accused has right to have a sufficient time in order to prepare his/her defense and
answer the case during a hearing. If the accused is given insufficient time, the decision
made by the panel of a hearing may be invalid as it infringes the principle of natural justice.

How sufficient the time is, much depends on the circumstances of each case. The more
serious the case is, the more time should be given to the accused.

This principle is illustrated by the case of Phang Moh Shin v. Commissioner of Police
[1967] 2 MLJ 186.

The plaintiff was accused of corruption. He was informed of the charge against him just
before the hearing commenced. The plaintiff requested for postponement to prepare his
defense but was rejected. He was dismissed after the trial and he later brought the case to
the court to challenge his dismissal.

Held: The dismissal was invalid on the ground of insufficient notice given to him of the
charge made against him.

APPLICATION :
Application for issue (1)

In this case, a disciplinary proceeding, presided by Dr Shah Zainal, took place immediately
after finding that a disciplinary offense was sufficiently made out against Suzana and her
request for a postponement because the charge was just being read was rejected by the
Disciplinary Committee. Based on the second element of notice which is sufficient time,
Suzana as an accused has the right to have sufficient time in order to prepare her defense
so that she can answer the case during a hearing. So, the involved party should give Suzana
sufficient time before hearing.
LAW :
Issue (2) Disclosure of all information

2.1.2 Hearing
There is no specific hearing procedure provided by the law but it can be done in any form
such as oral,written,representation,consultation,interview,dialogue etc. A hearing can take
place either orally or in writing which depends on the circumstances of each case. But oral
hearing is preferred by most people because there is room for disclosing,producing evidence
and rebutting it as well.

Oral hearing is usually conducted in the situations below:

- If it is a serious case
- If it involves complex and technical question of facts
- If a person’s reputation is at stake
- If a person insists on having an oral hearing

Case: Najar Singh v. Government Malaysia (1974)

The plaintiff was dismissed from the police force and he challenged the dismissal on the
ground that he was not given an oral hearing as he was entitled to it.

Held: it was a valid dismissal because he was given a written hearing which was a fair
opportunity for him to correct or contradict any relevant statement prejudicial to his view.
Furthermore, he did not insist or demand for an oral hearing.

Basically, there are procedures to be complied with by the public authority during a hearing,
failing which the public authority will be guilty for violating the principles of natural justice and
any decisions made accordingly will be void.

Hearing has four elements to be fulfilled by the public authority, namely:

a. disclosure of information
b. acceptance of evidence
c. opportunity to rebut the allegation and
d. reason to the decision made by public authority
In this case the hearing involves is disclosure of all information.
a. Disclosure of all information

All information, evidence or materials to be used in a hearing by the panel must be disclosed
to the accused. There must not be any element of surprises in the hearing. means that the
panel of hearing cannot make decisions merely based on the documents which are not
relevant to the hearing or not disclosed to the accused beforehand.

This principle is illustrated by the case of Shamsiah Ahmad Sham v. Public Service
Commissioner [1990] 1 SCR 92.

The plaintiff who worked in a printing department challenged the decision of the defendant
who dismissed him after taking into account her past record when a disciplinary action was
taken against her. It was held that the decision was against the Rules of Natural Justice
because it did not comply with the first element of a fair hearing.

Case : Subry Hamid v. Husaini [2006] 4 CLJ 50

The plaintiff, a Lance Corporal in the Royal Malaysian Police Force appealed to the Court of
Appeal for dismissal due to misconduct. He contended that he did not know the disciplinary
committee was taking his past record when making a decision.

Held : The appeal was allowed, and the dismissal was void.

APPLICATION :
Application for issue (2)

In this case, Suzana asked for a copy of the complaint letter and the investigation
committee's report. But the Disciplinary Committee refused to give her the documents
because they said that the reports were private and confidential, even though she has the
right to know as stated under one of the hearing element which is disclosure of all
information. All information, evidence, or materials to be used in a hearing by the panel must
be disclosed to the accused and there must not be any element of surprises in the hearing.
Hence, the Disciplinary Committee must give a copy of the complaint letter and the
investigation committee's report as requested by Suzana.
LAW :
Issue (3) Element of bias in the hearing proceeding
Rules against bias
The panel of hearing must be impartial and neutral and, in the position, to apply his mind
objectively to the issue he has to decide. If the decision is made in a biased way, the action
taken will be void.
Basically, there are three types of bias namely policy bias, pecuniary bias and personal bias.
In this issue, the type that involves is personal bias.

Personal Bias
Personal bias happens when one of the panels of hearing has either positive or negative
relationship with the person being tried either as a relative, friend, enemy rival and so on. To
determine whether there is personal bias or not, the test to apply is whether there is a
likelihood of bias and this is ascertained with reference to the right-minded person.

This principle is illustrated by the case of Metropolitan Properties Co.v.Lannon [1968] 3

All ER 304

Tenants of a flat applied for a reduction of rent and the application was considered by a civil
committee. The chairman was the son of one of the tenants. When the rent was reduced, the
decision was challenged as having personal bias.

Held : There was a real likelihood of bias on the part of the decision maker. Even if he was
as impartial as could be but if a right-minded person thinks there was a real likelihood of bias
on his part then he should not sit. If he does sit, the decision cannot stand.

APPLICATION :
Application for issue (3)

In this case, there was personal bias when Suzana found out that the complainant is a nurse
at Hospital Permai Jaya, who is also Dr Shah Zainal’s wife. This bias happens when one of
the panels of hearing has either positive or negative relationship with the person being tried
either as a relative, friend, enemy, rival and so on. Because of the complainant, Suzana was
recommended by Dr Shah Zainal to be dismissed.
CONCLUSION :
As a conclusion, Suzana can challenge the decision under

i) Sufficient time

This is because Suzana as the accused has the right to ask for an adjournment against
herself. With sufficient time to prepare a defense against herself, Suzana may be able to
answer the case well during the trial. Emphatically, this sufficient time is needed in this case
of Suzana.

ii) Disclosure of all information

This is because Suzana as the accused has the right to request a copy of the complaint
letter and the report of the investigation committee. The action of the Disciplinary Committee
who refused to provide the document was completely wrong and he should have provided it
only even though the document was private and confidential. Strictly speaking, the
disclosure of all information that will be used in the trial by the panel to the accused is
required in this case of Suzana.

iii) There are element of bias in the hearing proceeding

This is because the complainant is a nurse who is also the wife of Dr Shah Zainal. Here, we
can see that the panel had a relationship with the complainant causing the case to be
biased. It is also possible that the complainant has been dissatisfied with the accused for a
long time so he did not miss this opportunity to get Suzana fired. Strictly speaking, this
personal bias is very much needed in Suzana's case.