KOLONEL DR FAIZ AZRAAI BIN ABDUL AZIZ v MAHKAMAH TENTERA DIVISYEN KEEMPAT INFANTRI MALAYSIA [2023] 4 MLJ 78

KOLONEL DR FAIZ AZRAAI BIN ABDUL AZIZ v MAHKAMAH TENTERA DIVISYEN KEEMPAT INFANTRI MALAYSIA [2023] 4 MLJ 78

Federal Court

Armed Forces – Desertion

Facts

1. This appeal arises from the decision of the Court of Appeal upholding the decision of the High Court by convicting the Appellant for the offence of desertion under Section 54(1)(a) and Section 54(2)(a) of the Armed Forces Act 1972 (“Act 77”) merely because the Appellant had went absent from work without leave for more than six (6) months.
2. The Appellant, who worked as an army doctor at Hospital Tentera Tuanku Mizan, Kuala Lumpur had went absent from work without leave since 19 October 2016 until 4 May 2017, where he was arrested by the military police.
3. However, he was released on the ground that his arrest did not comply with the necessary procedure required under the Act 777.
4. Hours after his release, the Appellant put on his uniform and returned to work at the same hospital but was placed in different department.
5. Three months later, the Appellant was charged with the offence of desertion under Section 54(1)(a) read together with Section 54 (2)(a) under the Act 777 and was sentenced to three (3) months’ jail as well as being dishonourably discharged from the Army.
6. The Appellant explained the he was suffering from depression due to stress at his workplace and home which had caused him to take medication and the side effect of his medication make him lost focus at work.  Furthermore, his applications for leave were also rejected.
7. The Appellant filed for a judicial review in the High Court to quash the decision but was dismissed by the High Court.  The Court of Appeal also rejected the Appellant’s claim and agreed with the High Court’s decision.
8. The Appellant then appealed to the Federal Court against his ‘defective’ charge.
   

Issues

Whether the act of absent without leave (AWOL) for a period of six (6) months is sufficient to constitute the offence of desertion under the Act 77?

Ratios

Whether the act of absent without leave (AWOL) for a period of six (6) months is sufficient to constitute the offence of desertion under the Act 77?

(a)  The terms ‘desertion’ was defined clearly under Section 54(1) and Section 54(2) of the Act 77. These particular provisions provides that –

“54. (1) Every person subject to service law under this Act who –

(a) deserts; or

(b) persuades, endeavours to persuade, procures or attempts to procure any person subject to service law under this Act to desert,

shall, on conviction by court-martial, be liable to imprisonment or any less punishment provided by this Act.”

“54.(2) For the purpose of this Act a person
deserts who –

(a)  leaves His Majesty’s Service, or when it is his duty to do so, fails to join or rejoin His Majesty’s Service, with (in either case) the intention, either subsisting at the time of the leaving or failure or formed thereafter, of remaining permanently absent from his duty;

(b)  absents himself without leave with intent to avoid serving at any place overseas or to avoid service or any particular service when before the enemy;

(c)  in the case of sailor having been warned that his vessel is under sailing orders, is absent without proper authority, with intention of missing that vessel; or

(d)  being an officer enlists in or enters any of the armed forces without having been relieved of his commission, or being a serviceman enlists in or enters any of the armed forces without having been discharged from his previous enlistment,

and references in this Act to desertion shall be construed accordingly.”

(b)  The above provision envisages different scenarios when a person who is subject to the military service (the “Service”) may be said to have deserted the Service.  The scenarios may be as follows :

(i) Leaving the Service with the intention of remaining permanently absent –

 (aa)  This situation involves an individual voluntarily leaving their military or service duty.  The crucial element here is the intention to permanently stay away from their duty.  It implies a conscious decision to abandon their obligations.

 (bb) Whether the intention was present at the time of departure or formed later, the key aspect is the desire to be permanently absent from duty.

(ii) Failure to join or re-join with the intention of remaining permanently absent –

 (aa)  This scenario refers to an individual who, despite having a duty to join or rejoin the military or service, fails to do so.

 (bb) Similar to the first scenario, the critical element is the intention to permanently stay away from duty.  The intention to remain absent can exist either at the time when the duty to join or rejoin arises, or it may be formed later.

(c)  In both scenarios, the common thread is the intention to permanently avoid service and it was the duty of the prosecution and for the Respondent to prove that the Appellant had left the service with that requisite intention.

(d)  In this present case, it was found that the prosecution had failed to establish the actual presence of this element of intention and the Respondent found the Appellant guilty as charged merely by inference that the Appellant’s long period of absence from work was sufficient to show that he intended to desert.

(e)  However, the Federal Court held that the mere period of continuous absence without proper authorization, even if it extends to six months or any other duration, is considered insufficient on its own to establish the offense of desertion.  Instead, it was evident in support of the offence of ‘AWOL’ under Section 55 of the Act 77 but such charge was not made against the Appellant.

(f)     Therefore, the Federal Court allowed the Appellant’s appeal with costs and set aside the order of the previous Courts on the ground that the decision that has been made is evidently unsustainable in law due to the fact that the prosecution had failed to establish the actual presence of intention to desert which is the important element required under Section 54(1)(a) and Section 54(2)(a) of the Act 77.

Decision

The Appellant’s appeal allowed and the orders of the Courts below were set aside.

Key Take Away

1. Desertion generally refers to the act of abandoning one’s duties or obligations without permission and with the intent to permanently leave or avoid further responsibilities. While the specific circumstances can vary, the key element in desertion is the individual’s intention to abandon their duties.
2. It is not the responsibility of the Appellant to prove that they did not have the intention to desert.  Instead, the prosecution is the one who has the responsibility to prove that the Appellant has the intention to permanently absent from duty.
3. In the present case, the Appellant should have been charged with the offence of being absence without leave under Section 55 of the Act 77 instead of being charged with offence of desertion under Section 54 of the Act 77 because the offence under Section 55 merely requires the prosecution to find the Appellant absent from duty and the absence was without leave.
4. Since the offence of desertion carry severe punishment in which there may be a forfeiture of service in addition to imprisonment, the element of intention to permanently absent from duty is required and shall be proven with clear and precise findings which the prosecution had failed to do so.