DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN RAYUAN JENAYAH NO.

42-50-2004

DIANTARA MD.FAUZI BIN HAJI ABDULLAH LAWAN PENDAKWARAYA

ALASAN PENGHAKIMAN

1.

The Appellant in this case was found guilty and was convicted by the Sessions Court Judge sitting in Klang for 2 offences, both under section 11 of the Prevention of Corruption Act 1997 [the PCA of 1997] for corruptly soliciting, and for accepting gratification. He was sentenced accordingly to imprisonment terms and to imposition of fines and against those decisions he had appealed to this court.

2.

The attacks against the decisions of the SCJ by the learned counsel for the Appellant before me had been as follows:

That the evidence of the complainant, SP5, had not been corroborated in material particulars.
a.

b. That the Sessions Court Judge had erred by not finding that the prosecution had, at the end of the whole case, proven its case beyond reasonable doubt.

That the Sessions Court Judge had erred in law by not declaring that the presumptions under section 42[1] of the PCA 1997 should have been invoked and that that had prejudiced this Appellant, as he could have led evidence rebut the presumptions on the balance of probabilities.
c.

That the Sessions Court Judge had erred in law when she required the evidence of this Appellant to be corroborated when in law there is no such obligation placed on the shoulder of the Appellant.
d.

3.

I shall now deal with these grounds but not necessarily in the sequence as laid down above. I shall deal with ground [b] above first, I had looked at the notes of proceedings and I found therein at page 201 that the Sessions Court Judge had in fact found, when she delivered her decision at the end of the whole case, that the prosecution had proven its case beyond reasonable doubt against this Appellant. In her exact words, this is what she had said:

Pendakwaan telah berjaya membuktikan kes tanpa keraguan munasabah bahawa OKT telah melakukan kesalahan seperti di dalam kedua-dua pertuduhan.

So I find no merit in this complaint.

4.

Next I shall deal with the ground listed as [a], namely the treatment by the Sessions Court Judge of the evidence of SP5. The learned counsel for the Appellant had argued before me that the SCJ had failed to make a finding that SP5, the complainant in this case was, for all intents and purposes, an accomplice and therefore his
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evidence needed to be corroborated and that in the event that she accepted the evidence of SP5 without any corroboration, she ought to have warned herself of the danger of convicting the appellant on uncorroborated evidence of the an accomplice. A short reply to that argument to my mind, would lie in the section 44[1][a][iii] of the PCA 1997 which effectively takes out the classification of persons who would be in similar circumstances, be termed as an accomplice. For ease of reference, the said section 44[1][a][iii] of the PCA 1997 reads as follows:

44. Evidence of provocateur.

accomplice

and

agent

(1) Notwithstanding any written law or rule of law to the contrary, in any proceedings against any person for an offence under this Act

No witness shall be regarded as an accomplice by reason only of such witness having

(a)

(i) (ii)

. been in any manner concerned in the commission of such offence or having knowledge of the commission of the offence; [emphasis added by me]
(iii)

With that, the issue of corroboration does not arise with respect to evidence of such person. Indeed, in the unreported decision in 2004 of Justice DatoAhmad Hj Maarof J (as he then was) in the case of Pendakwa Raya lwn. Rahiman bin Selamat [Dalam Mahkamah
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Tiggi Malaya, Kuala Lumpur Rayuan Jenayah No. 42A-21-2001] the learned Justice had made an emphatic ruling on the matter, as follows:

Dalam pandangan saya adalah jelas bahawa kini sabitan boleh dibuat atas keterangan rakan sejenayah tanpa Mahkamah perlu mengingatkan dirinya tentang bahaya membuat sabitan atas keterangan rakan sejenayah yang tidak disokong. Ertinya, kaedah amalan dan prudence mengenai warning yang telah diikuti sebegitu lama itu tidak lagi perlu diikuti. Pada hemat saya kesimpulannya ialah keterangan seorang rakan sejenayah, kini tiada bezanya dengan keterangan saksi-saksi biasa yang lain. Pada hemat saya inilah niat pembuat undang-undang mengwujudkan peruntukan di bawah seksyen 44(1) (a)(iii) dan seksyen 44(2) APR 1997. [emphasis added by me].

With respect, I entirely agree with the learned Justices interpretation of the said provision. On account of that, the complaint by the Appellant on that issue must fail.

5.

As regards ground [c] above, the Sessions Court Judge in fact did not address her mind to those presumptions which on the proven facts in this case ought to have been invoked against this Appellant as there was evidence of solicitation and of acceptance by the Appellant of the RM100.00. The presumptions as provided for under section 42[1] of the PCA 1997 shall presume, until the contrary is proved, that the bribe had been so solicited and accepted corruptly. On the face of record, there had been misdirection by way of nondirection by the Sessions Court Judge. The issue that must arise now is whether that non-direction is fatal to the convictions so recorded against this Appellant. In the Federal Court case of Alcontara a/l Ambross Anthony v. PP [1996] 1 CLJ 705, the

learned Justice Edgar Joseph Jr had, at page 720therein, said the following:

This brings us to the next point in this appeal. Nowhere in his judgment did the Judge direct attention to the statutory presumptions as to possession (sec 37(d)) and trafficking (sec 37(da)), and as a result he made no such finding as to whether the defence has rebutted the same. In our view, this was a misdirection in law by way of non direction having regard to the following passage in the judgment of Azmi SCJ in Mohammad Radhi bin Yaakob v. PP [1991] 3MLJ 169 at page 172 para 1: In our opinion unless the evidence in a particular case does not so obviously warrant, it is incumbent for the court to consider whether on the balance of probabilities, the evidence of the defence has rebutted the statutory presumption of trafficking under s.37[da] as a separate exercise even though the court is satisfied on the balance that the presumption of possession under s. 37[d] has not been rebutted. In this case, the failure to do so was a material misdirection and was fatal to the conviction. Having said that, we would add there may well be cases where because of the absolutely overwhelming nature of the affirmative evidence led by the prosecution, there is no need for resort to be had to the statutory presumptions aforesaid, but even in such a case, we consider that the trial court should specifically so find.[Emphasis added by me]

6.

Now, looking at how the presumptive provisions under section 42[1] of the PCA 1997 are worded, I am of the view that they are mandatory in nature in that once there exists primary evidence that fulfill the requisite circumstance, the presumption must be invoked and therefore it becomes incumbent on the trial court to come to the necessary findings as to whether such a circumstance justifying an invocation of such presumption does in fact exist as borne out by

evidence led before it. In this case, having failed to direct her attention to the statutory presumptions, I noted as well that she also did not make a specific finding at the end of the prosecutions case, as to whether the element of the gratification of RM100 had been solicited and accepted corruptly by the appellant, had been established by the prosecution by way of direct evidence without the aid of the presumption under sec. 42[1] of the PCA. She did not say that she was not invoking the presumptions under sec. 42[1] of the PCA and in this regard the SCJ had run foul of what the apex court had said in the Alcontaras case [supra]. Be that as it may, such omission by the SCJ had also amounted to a non-compliance of a mandatory statutory direction imposed on a trial court by the said sec. 42[1] of the PCA. It had amounted to misdirection by way of non-direction of her mind to a statutory direction of a mandatory nature. In a circumstance such as this, I am of the view that it would not be open to the prosecution to say that the SCJ had erred in favour of the Appellant by not invoking the presumptions because that would mean that he need not have to rebut those presumptions on a higher burden. It is my view that by virtue of sec. 42[1] of the PCA, there exists an incumbent duty on the trial court to invoke those relevant presumption[s] if the evidence before it so warrant such invocation. I am of the view that the trial judge had no option, in the light of the express wordings of the said section, on the matter of the invocation of the presumption[s] as contained under sec. 42[1] of the PCA. It therefore becomes the duty of the trial court, as part of its findings of facts and of law, as dictated by the presence or absence of the necessary evidence before it and to then rule accordingly. As indicated by me earlier, the invocation by the trial court of the presumption would impact directly on the nature and the quantum of the evidence which the Appellant would have to lead in his defence. In this case, such failure as occasioned by the said misdirection by way of non-direction on the presumptions of corrupt purpose had occasioned severe prejudice to the Appellant.

7.

This brings me to the last ground as appear in ground [d] above, namely the fact that the SCJ had required the Appellant to produce his so-called superior officer as a witness before his evidence on the issue could be believed. Again on the face of the Appeal Records, this would clearly appear to be a misdirection on the proper burden
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on an accused person Again, the effect of a misdirection has been succinctly explained by the learned Justice Edgar Joseph Jr in the Alcontaras case [supra] where he had said, [having found that the trial judge had misdirected his mind on the manner he had treated the defence of Alcontara] as follows:

[2] The misdirection aforesaid has to be treated in the same way as an erroneous direction to the jury, and on this ground alone the conviction could not stand. Clearly as a result of the misdirection, the case for the appellant must have been seriously weakened in the eyes of the Judge and the chance of attaching any degree of credence to it seriously prejudiced.[See page 706 of the case report therein.] (Emphasis added by me)

8.

In this appeal before me, the SCJ should have considered the evidence put forth by the Appellant as it then stood before her, instead of requiring for corroborative evidence when the law does not so impose on an accused person. As a result of such misdirection that had adversely impacted on the critical burden of proof on the defence, the chances of this Appellant of having his defence being fairly and judicially considered, however weak it may be, had become diminished in the eyes of the SCJ and as a result thereof, the Appellants case had been unfairly prejudiced much to his detriment.

9.

As such, the SCJ had misdirected herself in 2 areas in a criminal trial which are crucial in the proper administration of criminal justice. Both the said misdirection had related to the issue of burden of proof impacting on the manner in which the SCJ had managed the evidence led by the defence. To my mind, the misdirection could not be cured by resorting to the provisions under section 422 of the Criminal Procedure Code. So, what would be the implications of such misdirection by the trial judge in this case? To my mind, the misdirection could be categorized as one that must go to the very
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root of the matter as it involves a principle of general importance in the administration of justice. In the case of PP v. Ku Yahya Ku Bahari & Anor [2000] 3 CLJ 162, which had involved a misdirection on the burden of proof upon the prosecution at the end of its case, learned Justice Pajan Singh Gill J [as he then was] had occasion to remark as follows:

The trilogy of cases of Harun bin Abdullah v. PP [1998] 2 AMR 1983, PP v. Surandran a/l Rajaretnam [1998] 3 CLJ 184; [1998] 2 AMR 1260 & Ishak Shaari v. PP [1997] 3 CLJ Supp 223, have enunciated that a misdirection of such a nature goes to the very root of the matter as it involves a principle of general importance in the administration of justice.

He therefore had ordered a retrial in that case. As a result of the said misdirection having been occasioned in this case, I have found it to be unsafe to affirm both the convictions entered against this Appellant by the SCJ. The learned Deputy had not asked, in the course of submissions, for a retrial for this case in the event that this court might not be with him in having this appeal dismissed. I noted that the alleged incident had happened in 1999 and being a civil servant, the charge had been hanging over his head since then. This Appellant had never failed to attend court whenever so required to be present for the purpose of his trial. Without derogating in anyway whatsoever from the significance of the charges with which this Appellant had been faced with, it is my considered view that to order a retrial now would, after nearly 10 years had elapsed, occasion more injustice than to do otherwise. It is not as though this Appellant had not been tried at all for the alleged offences as per the charges. As such, I would set aside both the convictions entered against him and that I hereby acquit and discharge him accordingly. Any fines which had been paid, pursuant to the convictions, shall be returned and refunded to the Appellant. Order accordingly.

ABANG ISKANDAR B.ABANG HASHIM Judicial Commissioner, High Court [Criminal Court No.5], Shah Alam, SELANGOR

The ruling was delivered in open court on this 02nd day of January, 2009.