Majlis Angkatan Tentera Malaysia v Mohd Nurul Ami bin Mohd Basri [2019] 2 MLJ 433

MAJLIS ANGKATAN TENTERA MALAYSIA v MOHD NURUL AMI BIN MOHD BASRI [2019] 2 MLJ 433

Court of Appeal

Urine test for army

Facts

1. The Respondent was involved in drug abused and was charged in the Court Martial on 9 July 2016 for breaching the Armed Forces Standing Order (“the Army Guideline”), which was an offence under Section 51 of the Armed Forces Act 1972 (“Act 77”)-

“Disobedience to standing orders

51. (1) Every person subject to service law under this Act who contravenes or fails to comply with any provision of orders to which this section applies, being a provision known to him or which he might reasonably be expected to know, shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

(2) This section applies to standing orders or other routine orders of a continuing nature for any formation or unit or body of troops, or for any command or other area, establishment, garrison or place, or for any ship, train or aircraft.

(3) The standing orders or other routine orders described in subsection (2) may be – 

(a) made by; and

(b) published in such manner as may be determined by,

the Service Chief for each Service or any officer authorized by him”.

2. The dispute that arose was the number of urine samples that required to be collected in order to conduct a urine test in which KKM standard according to the ‘Surat Pekeliling Ketua Pengarang Kesihatan Malaysia, Kementerian Kesihatan Malaysia’ dated 3 September 2002 and ‘Garis Panduan Bahagian Kesihatan Perkembangan Perubatan Kementerian Kesihatan Malaysia Bilangan 6/2002’ (“the KKM Guideline”) call for two bottles and the Army Guideline only calls for one.

3. In this case, only one sample of the Respondent’s urine was taken, and it was tested positive for the drugs methamphetamine and amphetamine.

4. This urine test is crucial as the test result formed the basis for the charge against him.  Therefore, it was pertinent for the Court to examine whether the Appellant’s method of obtaining urine samples for use in urine tests complied with the law.

Issue 1.     Whether the Army Guideline or the KKM Guideline is applicable in collecting the urine sample?
Ratios 1.      The KKM Guideline provides –

“(c) Collection Procedure

(i) At least 30 ml urine sample shall be collected in one bottle or duplicate if screening and confirmation are done in two different places. The requesting officer/referring centre shall keep the second urine sample and shall send the urine sample to the confirmation centre if the screening result is positive.

(ii)  Both the collection personnel and the donor shall keep the urine samples in view at all times prior to it being sealed or labelled. If the second bottle cannot be provided (sample is 30 ml only), testing shall be done on the first sample, Absence of second sample shall be recorded.

(iii)  At the collection site, if the volume is less than 30 ml, the donor may be given a reasonable amount of liquid to drink eg 240 ml of water every 30 minutes, but not to exceed a maximum of 720 ml. The second urine sample shall be collected and mixed with the previous sample, by the donor himself/herself or the collection personnel in front of the donor.

(iv)  Type of bottle used for sample collection should be disposable in nature.

(v)  During collection, if adulteration of urine sample is suspected, the collection personnel shall collect another urine sample and both urine samples shall be sent to the laboratory.

(vi)  The collection personnel shall stand close enough to the donor to see that the urine is genuinely passed out from the person and to see that there is no attempt to falsify the specimens.

(vii)  After the urine is collected, the bottles shall be securely capped and labelled as follows:

Name:……………………………………………….
I/C No: ……………………………………………….
Date of Collection: …………………………………. “

2.  The learned counsel made a contention that the KKM Guideline requires two bottles of urine sample to be taken.  However, the Court of Appeal has a different view in which in paragraph (c)(i), only one bottle of urine specimen is required, but if the screening and confirmation are done in two distinct locations, a second bottle, or “duplicate,” is then also required.  It’s crucial that the single bottle contained at least 30ml of urine sample in it.

3. The Army Guideline provide-

“6. Proses Pungutan. Semua proses pungutan specimen air kencing perlu mematuhi prosedur dan langkah-langkah keselamatan. Urutan kejadian bagi perlaksanaan pungutan specimen air kencing melalui beberapa proses seperti berikut:

e. Pemilihan Botol. Pemberi/suspek hendaklah memilih sendiri botol ujian yang disediakan. Setelah pemberi/suspek memilih botol tersebut, Pendaftar hendaklah menulis Nombor Kad Pengenalan/Nombor Tentera anggota pemberi/suspek di
botol tersebut dengan menggunakan pen dakwat
kekal (permanent marker pen). Ini bagi memastikan pemberi/suspek menggunakan botol yang sama semasa menyerahkan air kencing untuk diuji.

f. Kapasiti Air Kencing. Pendaftar hendaklah memaklumkan kepada pemberi/suspek dikehendaki memberi specimen air kencing sekurang-kurangnya 30 ml bagi setiap botol. Sekiranya pemberi/suspek memberi kurang daripada 30 ml atau tidak boleh terkencing, pemberi/suspek boleh diberi minuman dalam amaun yang berpatutan iaitu lebih kurang 240 ml air bagi setiap lebih kurang 30 minit tetapi tidak boleh melebihi 720 ml.

l. Ujian Saringan. Sebelum membuat ujian saringan, Penguji Saringan hendaklah terlebih dahulu memastikan Nombor Kad Pengenalan/Nombor Tentera yang tertera di botol tersebut kepunyaan anggota pemberi/suspek berkenaan. Pemberi/suspek dikehendaki membuka sendiri penutup botol specimen air kencingnya. Penguji Saringan akan membuat pengujian ke atas specimen air kencing dengan mematuhi tatacara penggunaan alat ujian saringan air kencing, Kaedah ujian adalah seperti berikut:

(1) Penggunaan Botol Yang Dilengkapi Kertas-Kertas Ujian Saringan Dadah. Sekiranya ujian menunjukkan keputusan positif dadah berbahaya botol tersebut hendaklah dilabel dan dimeterai (seal) seterusnya dihantar ke Pusat Pengujian.

(2)  Penggunaan Botol dan Alat Ujian Saringan Dadah yang Berasingan. Bungkusan alat ujian saringan hendaklah dibuka di hadapan pemberi/suspek. Setelah alat ujian saringan dicelup ke dalam botol, botol tersebut hendaklah ditutup semula sementara menunggu keputusan ujian saringan, sekiranya ujian saringan didapati positif botol tersebut hendaklah dilabel dan dimeterai seterusnya dihantar ke Pusat Pengujian.

(3)  Pungutan Semula. Pungutan semula specimen air kencing boleh dilaksanakan sekiranya perlu”.

4. The following are the two justifications provided by the Respondent as to why the appellant should adhere to the KKM Guideline rather than the Army Guideline:

(a)  the KKM Guideline is a guideline that has been issued to all enforcement agencies involved in the programme to detect drug abuse, including the armed forces; and

(b) the guideline is based on the procedure adopted internationally, which mandatorily requires for two bottles of urine sample to be taken for the purposes of a urine test.

5.  The learned counsel for the Respondent cited the case of Noor Saiful Rizal bin Noor Zawawi v PP [2017] 3 MLJ 460 where it was held that the KKM Guideline has the force of law.

6.  The Court of Appeal in this present case was in the view that the Army Guideline has the force of law as it was made under the following:

(a) Section 15 of Act 77-

Regulations governing commissioning, etc., of officers

15. The Armed Forces Council with the approval of the Yang di-Pertuan Agong may make regulations including regulations providing for matters which may be issued by Perintah Majlis Angkatan Tentera governing the commissioning and appointment of officers, their terms of service, including the absorption, attachment and secondment of any officer to any body, force or service, promotion, advancement in rank, retirement, resignation, dismissal and such other matters as the Armed Forces Council may think necessary or expedient for the better carrying into effect the provisions of this Part”.

(b) While Article 137 of the Federal Constitution defines Armed Forces Council-

Armed Forces Council

137. (1) There shall be an Armed Forces Council, which shall be responsible under the general authority of the Yang di- Pertuan Agong for the command, discipline and administration of, and all other matters relating to, the armed forces, other than matters relating to their operational use”.

7.  It is to be noted that the Army Guideline was signed by the Secretary of the Armed Forces Council and there can be no doubt and therefore the Army Guideline is a guideline that was issued pursuant to power given by law.

8.  As a result, the Armed Forces Council is empowered by law to issue any regulations it deems necessary or appropriate for the better implementation of the Act 77, including the Army Guideline that was issued through the Perintah Majlis Angkatan Tentera.  This authority stems from Section 15 of the Act 77 and therefore the Army Guideline is valid and enforceable because it was issued under the authority of the Armed Forces Council.

9.  On the other hand, the KKM Guideline was merely a guideline issued by the Ministry of Health and the fact that KKM Guideline makes references to the Dangerous Drug Act 1952 (“Act 234”) does not indicate that it has the force in law.

10.  The issue of whether the Appellant violated the KKM Guideline by not taking two bottles of the Respondent’s urine sample does not arise because the procedure he used to collect the Respondent’s urine sample was in accordance with the Army Guideline.

11.  Nevertheless, even if the KKM Guideline has the force of law, it cannot supersede the Army Guideline. This is so because the Army Guideline is a particular guideline that should only be applied by the armed forces and by no one else, and therefore it is applicable to every member of the armed forces without exception.

Decision

1.    The Court of Appeal ordered the decision of the High Court to be set aside and costs of RM5,000.00 were awarded to the Appellant.

Key Take Away

1.  The KKM Guideline’s objectives are to coordinate, update, and serve as a directive to the appropriate agencies, including the armed forces, about the process for collecting urine samples in cases of suspected drug usage.  It was never intended to be a binding legal document.  Any guideline must be made using the power given by each and every governing law in order to be enforceable and in this regard, the KKM Guideline differs from this.

2.  In Malaysia, Martial Court is one of the court that has special jurisdiction in whereby it has the jurisdiction to try over any member of military forces-

“Jurisdiction and powers of a court-martial

103.(1) Subject to the provisions of this section a court-martial shall have the power to try any person subject to service law under this Act for any offence which, under this Act, is triable by court-martial and to award for any such offence any punishment authorized by this Act for that offence.

 (2) A court-martial for the trial of an officer or a warrant officer shall consist of at least five officers.

(3) A court-martial consisting of less than five officers shall not award any punishment higher in the scale of punishment than imprisonment for two years.

(4) A court-martial shall not, unless it consists of at least five officers, try any offence for which the maximum or only punishment is death.”

3. Every member of armed forces are subject under Act 177 in which the Army Guideline is made under such law i.e Act 177.  Therefore, the Army Guideline is applicable for the member of armed forces.

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