PERTUDUHAN PERTAMABahawa
kamu, dari 12 Ogos 1997 hingga 18 Ogos 1997, di Kediaman Rasmi Timbalan
Perdana Menteri, No. 47, Jalan Damansara, di dalam Wilayah Persekutuan
Kuala Lumpur, semasa menjadi seorang anggota pentadbiran, iaitu,
menjawat jawatan Timbalan Perdana Menteri dan Menteri Kewangan dan dalam
kapasiti tersebut telah melakukan perbuatan rasuah di mana kamu telah,
mengarahkan Dato' Mohd Said bin Awang, Pengarah Cawangan Khas dan Amir
bin Junus, Timbalan Pengarah Cawangan Khas II, Polis Di Raja Malaysia
memperolehi kenyataan bertulis daripada Azizan bin Abu Bakar yang
dialamatkan kepada YAB Perdana Menteri, bagi menafikan dakwaan liwat
seperti yang terkandung di dalam "Pengakuan Bersumpahnya" bertarikh 5
Ogos 1997, yang mana mereka telah perolehi seperti yang diarahkan, dalam
bentuk satu kenyataan bertulis bertarikh 18 Ogos 1997, untuk faedah
diri kamu, bagi menyelamatkan diri kamu daripada keaiban, dan oleh yang
demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah
seksyen 2(1) Ordinan Dharurat (Kuasa-Kuasa Perlu) No. 22/1970.PERTUDUHAN KEDUABahawa
kamu, pada 27 Ogos 1997, di Kediaman Rasmi Timbalan Perdana Menteri,
No. 47, Jalan Damansara, di dalam Wilayah Persekutuan Kuala Lumpur,
semasa menjadi seorang anggota pentadbiran, iaitu, menjawat jawatan
Timbalan Perdana Menteri dan Menteri Kewangan dan dalam kapasiti
tersebut telah melakukan perbuatan rasuah di mana kamu telah,
mengarahkan Dato' Mohd Said bin Awang, Pengarah Cawangan Khas dan Amir
bin Junus, Timbalan Pengarah Cawangan Khas II, Polis Di Raja Malaysia
memperolehi kenyataan bertulis daripada Azizan bin Abu Bakar bagi
menafikan dakwaan liwat seperti yang terkandung di dalam "Pengakuan
Bersumpahnya" bertarikh 5 Ogos 1997, yang mana mereka telah perolehi
seperti yang diarahkan, dalam bentuk satu kenyataan umum bertulis,untuk
faedah diri kamu sendiri di mana kamu telah menggunakannyabagi tujuan
melindungi diri kamu daripada sebarang tindakan jenayah, dan oleh yang
demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah
seksyen 2(1) Ordinan Dharurat (Kuasa-Kuasa Perlu) No. 22/1970.PERTUDUHAN KETIGABahawa
kamu pada 12 Ogos 1997 hingga 18 Ogos 1997, di Kediaman Rasmi Timbalan
Perdana Menteri, No. 47, Jalan Damansara, di dalam Wilayah Persekutuan
Kuala Lumpur, semasa menjadi seorang anggota pentadbiran, iaitu,
menjawat jawatan Timbalan Perdana Menteri dan Menteri Kewangan dan dalam
kapasiti tersebut telah melakukan perbuatan rasuah di mana kamu telah,
mengarahkan Dato' Mohd Said bin Awang, Pengarah Cawangan Khas dan Amir
bin Junus, Timbalan Pengarah Cawangan Khas II, Polis Di Raja Malaysia
memperolehi kenyataan bertulis daripada Ummi Hafilda bt Ali yang
dialamatkan kepada YAB Perdana Menteri, bagi menafikan dakwaan salah
laku seks dan liwat seperti yang terkandung di dalam laporan sulitnya
bertajuk "Perihal Salah Laku Timbalan Perdana Menteri" bertarikh 5 Ogos
1997, yang mana mereka telah perolehi seperti yang diarahkan, dalam
bentuk satu kenyataan bertulis bertarikh 18 Ogos 1997, untuk faedah diri
kamu, iaitu, bagi menyelamatkan diri kamu daripada keaiban,
dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh
dihukum di bawah seksyen 2(1) Ordinan Dharurat (Kuasa-Kuasa Perlu) No.
22/1970.PERTUDUHAN KEEMPATBahawa
kamu pada 27 Ogos 1997, di Kediaman Rasmi Timbalan Perdana Menteri, No.
47, Jalan Damansara, di dalam Wilayah Persekutuan Kuala Lumpur, semasa
menjadi seorang anggota pentadbiran, iaitu, menjawat jawatan Timbalan
Perdana Menteri dan Menteri Kewangan dan dalam kapasiti tersebut telah
melakukan perbuatan rasuah di mana kamu telah,
mengarahkan Dato' Mohd Said bin Awang, Pengarah Cawangan Khas dan Amir
bin Junus, Timbalan Pengarah Cawangan Khas II, Polis Di Raja Malaysia
memperolehi kenyataan bertulis daripada Ummi Hafilda bt Ali bagi
menafikan dakwaan salah laku seks dan liwat seperti yang terkandung di
dalam laporan sulitnya bertajuk "Perihal Salah Laku Timbalan Perdana
Menteri" bertarikh 5 Ogos 1997, yang mana mereka telah perolehi seperti
yang diarahkan dalam bentuk satu kenyataan umum bertulis bertarikh 29
Ogos 1997, untuk faedah diri kamu sendiri di mana kamu telah
menggunakannya bagi tujuan melindungi diri kamu daripada sebarang
tindakan jenayah, dan oleh yang demikian kamu telah melakukan satu
kesalahan yang boleh dihukum di bawah seksyen 2(1) Ordinan Dharurat
(Kuasa-Kuasa Perlu) No. 22/1970.(English translation of the charges)
First ChargeThat
you, from 12 August 1997 until 18 August 1997 at the Official Residence
of the Deputy Prime Minister, No. 47, Damansara Road, in the Federal
Territory of Kuala Lumpur, while being a Member of the administration,
to wit, holding the post of Deputy Prime Minister and Minister of
Finance and in such capacity committed corrupt practice in that you,
directed Dato' Mohd Said bin Awang, Director of the Special Branch and
Amir bin Junus, Deputy Director II of the Special Branch, Royal
Malaysian Police, to obtain a written statement from Azizan bin Abu
Bakar addressed to YAB Prime Minister denying his allegation of sodomy
as contained in his "Pengakuan Bersumpah" dated 5 August 1997, which
they obtained as directed, in the form of a written statement dated 18
August 1997, for your advantage, to wit, to save yourself from
embarrassment, and you have thereby committed an offence punishable
under section 2(1), Emergency (Essential Powers) Ordinance No. 22/1970.Second ChargeThat
you, on 27 August 1997 at the Official Residence of the Deputy Prime
Minister, No. 47, Damansara Road, in the Federal Territory of Kuala
Lumpur, while being a Member of the administration, to wit, holding the
post of Deputy Prime Minister and Minister of Finance and in such
capacity committed corrupt practice in that you, directed Dato' Mohd
Said bin Awang, Director of the Special Branch and Amir bin Junus,
Deputy Director II of the Special Branch, Royal Malaysian Police, to
obtain a written statement from Azizan bin Abu Bakar to deny the
allegation of sodomy as contained in his "Pengakuan Bersumpah" dated 5
August 1997, which they obtained as directed, in the form of a Kenyataan
Umum, for your advantage, to wit, you used it for the purpose of
protecting yourself from any criminal action, and you have thereby
committed an offence punishable under section 2(1), Emergency (Essential
Powers) Ordinance No. 22/1970.Third ChargeThat
you, from 12 August 1997 until 18 August 1997 at the Official Residence
of the Deputy Prime Minister, No. 47, Damansara Road, in the Federal
Territory of Kuala Lumpur, while being a Member of the administration,
to wit, holding the post of Deputy Prime Minister and Minister of
Finance and in such capacity committed corrupt practice in that you,
directed Dato' Mohd Said bin Awang, Director of the Special Branch and
Amir bin Junus, Deputy Director II of the Special Branch, Royal
Malaysian Police, to obtain a written statement from Ummi Hafilda bt Ali
addressed to YAB Prime Minister denying the allegations of sexual
misconduct and sodomy as contained in her confidential report entitled
"Perihal Salah Laku Timbalan Perdana Menteri" dated 5 August 1997, which
they obtained as directed, in the form of a written statement dated 18
August 1997, for your advantage, to wit, to save yourself from
embarrassment, and you have thereby committed an offence punishable
under section 2(1), Emergency (Essential Powers) Ordinance No. 22/1970.Fourth ChargeThat
you, on 27 August 1997 at the Official Residence of the Deputy Prime
Minister, No. 47, Damansara Road, in the Federal Territory of Kuala
Lumpur, while being a Member of the administration, to wit, holding the
post of Deputy Prime Minister and Minister of Finance and in such
capacity committed corrupt practice in that you, directed Dato' Mohd
Said bin Awang, Director of the SpecialBranch and Amir bin Junus, Deputy
Director II of the SpecialBranch, Royal Malaysian Police, to obtain
written statements fromUmmi Hafilda bt Ali denying the allegations of
sexual misconductand sodomy as contained in her confidential report
entitled"Perihal Salah Laku Timbalan Perdana Menteri" dated 5
August1997, which they obtained as directed, in the form of a
KenyataanUmum dated 29 August 1997, for your advantage, to wit, youused
it for the purpose of protecting yourself from any criminalaction,and you have thereby committed an offence punishable under section 2(1), Emergency (Essential Powers) Ordinance No. 22/1970.The
accused claimed trial to the amended charges and did not wish to recall
any of the prosecution witnesses.
Having listened to the submission of both parties and before calling
upon the accused to enter his defence I made a formal amendment to the
English version of the second and fourth charges and the addition of
words to the first and third charges to specify that the written
statements were obtained as directed.
The accused was given the opportunity to plead to the latter two charges
to which he claimed trial.
I pause for a while to say that after
the charges were amended I ruled that the truth or falsity of the
allegations referred to in the charges is not relevant and accordingly
expunged from the record all evidence relating to such matters. I made
the ruling as the amended charges only refer to directions given by the
accused to Dato' Mohd Said and Dato' Amir Junus to obtain statements
from Ummi and Azizan to deny allegations of sexual misconduct and sodomy
made by them against him and the advantage obtained therefrom.
It will therefore be seen that the charges refer, inter alia, to only allegations made by Ummi and Azizan against the accused.
The word "allegation" is defined in Webster's New World Dictionary 3rd edn as,inter alia,"205 an assertion made without proof 205" It is clear that an assertion made without proof may or may not be capable of proof.
Thus an allegation need not be true.
This makes it manifestly patent that the onus of proof on the prosecution is the same whether the allegations are true or false.
What requires proof is only the fact that the allegations in question were made.
The corollary is that the truth or falsity of the allegations is not a fact in issue.
Thus no evidence can be led to establish that the allegations are true or false pursuant to s. 5 of the Evidence Act 1950 unless declared to be relevant by the said Act. Such evidence is not admissible under s. 7
of the said Act as causative facts as it does not relate to a fact in
issue; nor is it admissible to show motive under s. 8 of the said Act as
it does not relate to a fact in issue; nor as explanatory or
introductory facts under s. 9
of the said Act as it does not relate to a fact in issue.
Consequently, proof that the allegations are false does not in any way
lend weight to the defence of the accused and is therefore irrelevant.
Accordingly, the onus on the prosecution is only to prove that Ummi and
Azizan made the allegations and that the accused, while being a member
of the administration, and in such capacity, directed Dato' Mohd Said
and Dato' Amir Junus to obtain the denial letters with regard to the
allegations and the advantage he obtained therefrom.
In the
circumstances the retention of the evidence adduced by the prosecution
to show the truth of the allegations is highly prejudicial to the
accused on the principle laid down in the celebrated case of Makin v. Attorney General for New South Wales [1894] AC 57 where Lord Herschell said at p. 65:
It
is undoubtedly not competent for the prosecution to adduce evidence
tending to show that the accused has been guilty of criminal acts other
than those covered by the indictment, for the purpose of leading to the
conclusion that the accused is a person, likely from his criminal
conduct or character to have committed the offence for which he is being
tried.It is prejudicial to the accused for two reasons.
Firstly, when an accused is called upon to answer a charge he is
entitled to have to meet only relevant and admissible evidence.
Secondly, the existence of such evidence on the record to show that the
allegations could be true may tend to suggest the inference that the
accused wanted them to be retracted.
In order to ensure that this does not have a prejudicial effect in the
mind of the person hearing the case it must be disregarded (see Mohamad Kassan bin Hassan v. PP
[1950] MLJ 295). It was for that purpose that I had to take a drastic
step to guarantee that my mind is not moved in any manner whatsoever to
the detriment of the accused. A High Court has inherent power to make
any order for the purpose of securing the ends of justice.
This extends to expunction or ordering expunction of irrelevant matters
(see Dr Raghubir Saran v. State of Bihar AIR [1964] SC 1).
Therefore, with the sole objective of ensuring that the accused is not
prejudiced in any way by the presence of such evidence on the record I
ordered that it be expunged. I interpolate to add that I adhered
strictly to the rationale behind the expunction of the irrelevant
evidence throughout the trial.
But, unfortunately, the parties, more so the defence, were not
like-minded.
Therefore, when both parties attempted to touch on the truth or falsity
of the allegations in the course of their submissions at the end of the
case for the prosecution I found it absolutely necessary to issue the
following direction when I called upon the accused to enter his defence:
I
find it necessary and desirable to say a few words to guide the conduct
of the case hereafter in view of the fact that counsel on both sides
had touched upon the truth of the allegations in the four amended
charges.
It is to be noted that the amended charges merely refer to allegations
of sodomy and sexual misconduct and not to the actual commission of
sodomy or sexual misconduct by the accused.
The truth or falsity of the allegations is therefore not in issue in
this trial.
Any evidence or argument that has or is to be directed upon that matter
is therefore irrelevant and inadmissible.Accordingly, the evidence that is proposed to be elicited to meet the prima facie case established by the prosecution must be confined only to the issues raised in the amended charges.Further attempts by the defence to go into this issue in the course of the trial were met with rigid sanctions from me.
The Case For The Prosecution
Ummi
Hafilda bt Ali ("Ummi") is the sister of Mohd Azmin bin Ali ("Azmin")
who is married to Shamsidar bt Taharin ("Shamsidar"). Shamsidar had a
driver called Azizan bin Abu Bakar ("Azizan"). Azmin was the private
secretary of the accused while ASP Zull Aznam bin Hj Haron ("ASP Zull
Aznam") was his ADC. The Director of the Special Branch at the material
time was Dato' Mohd Said bin Awang ("Dato' Mohd Said") while Dato' Amir
bin Junus ("Dato' Amir Junus") was his Deputy Director II. ACP Mazlan
bin Haji Mohd Din ("ACP Mazlan") and DSP Abdul Aziz bin Hussein ("DSP
Aziz") were two of their officers. SAC I Musa bin Haji Hassan ("SAC
Musa") is the Assistant Director of the Prosecution and Legal Division
of the Criminal Investigation Department ("CID").
Ummi wrote a letter (exh. P14A, B and C) dated 5 August 1997 entitled Perihal Salah Laku Timbalan Perdana Menteri addressed to YAB Prime Minister containing allegations of sexual misconduct and sodomy allegedly committed by the accused.
Exhibit P14A is the covering letter signed by Ummi while exh. P14B is her report.
Exhibit P14C is a declaration by Azizan alleging that he had been sodomised by the accused.
It was drafted for him by Ummi and he had signed it. Exhibit P14A, B and C read as follows:
P14A5hb Ogos 1997 Yang Amat Berhormat Dato' Seri Dr Mahathir Mohamed Perdana Menteri Malaysia Jabatan Perdana Menteri Kuala LumpurYABPERIHAL SALAHLAKU TIMBALAN PERDANA MALAYSIADengan
segala hormatnya, merujuk kepada perkara di atas, saya Ummi Hafilda bt
Ali ingin mengemukakan laporan khas mengenai perihal salahlaku Timbalan
Perdana Menteri.YAB, laporan ini dibuat berdasarkan maklumat dan bukti yang telah kami perolehi sepanjang tempoh penyiasatan.Ianya
dibuat bersama dengan persetujuan kami kelima-lima beradik iaitu Norlia
bt Ali, Intan Dawini bt Ali, Mohd Azman bin Ali, Mohamed Azwan bin Ali
dan Ummi Hafilda bt Ali.Bersama-sama ini juga disertakan dengan lampiran khas mengenai maklumat lengkap sebagai pertimbangan untuk pihak YAB.Segala perhatian, pertimbangan dan tindakan oleh YAB dalam menangani masalah ini sangatlah dihargai dan disanjung tinggi.Bagi kami YAB adalah tokoh pemimpin terulung negara yang kami cukup kagumi dan hormati.Sekian, terima kasih.Yang benar, t.t.P14BLAPORAN SULITPERIHAL SALAHLAKU TIMBALAN PERDANA MENTERI1.
Merupakan seorang homosexual melalui hubungan sejenisnya dan salah
seorang dari mangsa yang berani tampil ke hadapan ialah bekas pemandu
kepada beliau iaitu Azizan bin Abu Bakar yang kini menjadi pemandu
Mohamed Azmin bin Ali.2. Mempunyai hubungan sulit
dengan Puan Shamsidar Taharin iaitu isteri kepada Setiausaha Sulitnya
sendiri, Mohamed Azmin bin Ali.3. Membuat fitnah
yang mempunyai unsur jahat demi kepentingan politiknya melalui kenyataan
tuduhan kepada Ummi Hafilda bt Ali (adik kepada Mohamed Azmin bin Ali)
bahawa si gadis tergila-gilakannya melalui surat-surat cinta yang telah
dihantar kepada beliau.4. Menganiaya setiausaha sulitnya sendiri melalui skandalnya bersama Puan Shamsidar Taharin tanpa pengetahuan si suami.5.
Memberikan satu tamparan hebat yakni penghinaan dan tekanan perasaan
dari segi maruah kepada seluruh keluarga Mohamed Azmin bin Ali.6. Menyalah-gunakan kuasa demi menutup segala pembohongan dan kemungkaran yang telah dilakukan.7.
Mempersendakan Islam dengan pembacaan khutbah oleh beliau di sanasini
demi memberikan gambaran imej tokoh "Pak Sheikh" yang memperjuangkan
agama.8. Menggugat kredibiliti kepimpinan UMNO
yang menjadi tunjang negara melalui perbuatan keji, hina, aib dan rakus
beliau tanpa memikirkan implikasinya kepada sahsiah pembangunan ummah
dan negara.SEBAB-SEBAB LAPORAN DIKEMUKAKAN1. Memohon budi-bicara YAB Perdana Menteri untuk menyiasat setiap lapuran yang dikemukakan.2. Memohon perlindungan keselamatan bagi pihak penulis dan keluarga.3. Menegakkan kebenaran demi kepentingan parti dan negara.4. Mengalami tekanan emosi yang paling kritikal bagi seluruh ahli keluarga sejak kes ini diketahui.5.
Memohon YAB menyelamatkan abang kami, iaitu Mohamed Azmin bin Ali dari
terus berkhidmat dengan orang yang telah menganiayanya iaitu insan
munafik yang bernama Anwar Ibrahim.6. Memohon
hukuman yang setimpal sekiranya laporan yang diberikan adalah benar
sebagai satu peringatan kepada pemimpin yang lain supaya tidak
menyalah-gunakan kuasa dengan kedudukan yang ada.7.
Menyekat sama-sekali perbuatan mungkar diluar tabii manusia iaitu
hubungan sejenis yang sememangnya dilaknati oleh Allah S.W.T.LAPORAN LENGKAP PERIHAL SALAHLAKUYAB
yang saya sanjungi, kagumi dan hormati, dengan rasa tanggungjawab
walaupun terlalu berat tangan saya untuk menulis demi menyelamatkan
abang saya iaitu Mohamed Azmin bin Ali dari terus teraniaya maka kami
adik-beradik telah mengambil kata sepakat untuk memohon jasa baik,
pertimbangan dan budi-bicara YAB menerima laporan untuk kebaikan semua
pihak.
YAB, laporan ini tidak bermotifkan sesuatu samada
politik mahupun peribadi tetapi ianya lebih kepada perjuangan menegakkan
kebenaran.YAB, kami mengesyaki sesuatu yang
tidak kena berlaku kepada Puan Shamsidar di mana beliau sering menerima
panggilan misteri dari seseorang untuk tempoh yang agak lama
sekurang-kurangnya setengah jam hingga kadangkala memakan masa satu
setengah jam.Kekerapan menerima panggilan telefon
dalam keadaan yang mencurigakan telah menimbulkan syak wasangka kepada
seluruh ahli keluarga termasuk keduaibubapa.BAB PEMBONGKARAN RAHSIA OLEH 'ATON' (PEMBANTU RUMAH)Akhirnya
hinggalah pada satu hari, dengan kuasa Allah si-pembantu rumah yang
bernama Aton (bekerja hampir lapan tahun dengan Azmin) telah membuka
sedikit rahsia mengatakan bahawa Puan Shamsiar mempunyai seorang kekasih
di kalangan orang atasan.Bila ditanya kenapa
beliau berkata begitu, Aton dengan rasa sedikit serba-salah tetapi penuh
tanggungjawab mengatakan bahawa kekerapan panggilan telefon itu ialah
dari kekasihnya.Apabila ditanya siapakah gerangan
si-lelaki, si-pembantu agak keberatan tetapi setelah diminta
bekerjasama akhirnya beliau memberitahu saya bahawa waktuwaktu yang
selalu dipanggil ialah 6.30 petang, 8.30 malam dan kadangkala lewat 12
tengahmalam ketika si-suami sedang nyenyak tidur.Beliau meminta saya mengangkat telefon pada waktu-waktu tersebut sekiranya ingin mengetahui siapakah gerangan lelaki itu.Akhirnya pada 9hb.
Jun 1997, tepat pada waktunya 6.30 petang saya berada di rumah Azmin.Apabila
telefon berbunyi kedengaran suara seorang tokoh pemimpin yang
sangat-sangat saya kenali iaitu Anwar Ibrahim dengan nada rasa cinta dan
menggoda.
Tetapi apabila beliau terperasan bahawa saya bukanlah wanita yang
dicarinya maka beliau meletakkan telefon.
Kebodohan beliau nampak jelas apabila dia memanggil semula dan inilah perbualan kami.Anwar: I nak bercakap dengan Shida.Ummi: Siapa ni? (Agak keras)Anwar: Anwar (dengan nada yang agak perlahan)Ummi: Is it Dato' Seri?Anwar: Ya, bercakap.
Ummi:
Sorry, I didn't recognise your voice just now. (tujuan saya untuk
memerangkap beliau bagi mempastikan beliau adalah pemanggil yang
meletakkan telefon sebelum ini.Beliau tidak menafikan)Anwar: Hah 205 tulah suara you seksi sangat.
You have such a lovely voice. I dok ingat salah rumah, that's why I letak phone.Ummi: Hah 205 apa hal.Anwar: I nak tanya fasal Afifa (anak bongsu Azmin). Rindu kat dia.Ummi: She's okay, alhamdullilah sihat.Anwar: Tak apalah thank you.Apabila gagang telefon diletakkan, maka berdetak hati saya mengesahkan gerangan si-lelaki tersebut dengan pembantu-rumah.
Akhirnya si-pembantu rumah mengaku bahawa itulah gerangan si-lelaki yang sering memanggil setiap hari.YAB, buat makluman, Puan Shamsidar sering mengatakan kepada kami bahawa Anwar Ibrahim itu adalah kekasihnya.
Tetapi ketika itu, kami menganggap ianya sebagai satu gurauan atau mainan.
Namun, kenyataan berbau syak-wasangka timbul seperti mengatakan bahawa Afifa anak bongsunya adalah anak Anwar Ibrahim.
Jauh disudut hati kami ingin menyiasat perkara ini hingga ke akar umbi.BAB KEJUJURAN DAN KEIKHLASAN PEMANDUSekali
lagi dengan kuasa Allah, akhirnya pemandu kereta Shamsidar Taharin
iaitu Azizan Abu Bakar telah datang ke pejabat saya pada 19hb.
Jun 1997 dengan penuh rasa tanggungjawab untuk membongkar rahsia majikannya, Shamsidar Bt. Taharin.Perbualan kami mengambil masa dua setengah jam.Kisah berkisar perbuatan curang Shamsidar kepada Azmin untuk tempoh yang agak lama dengan memberi kami maklumat lengkap 'modus operandi' perbuatan keji mereka yakni Anwar-Shamsidar di kondominium mewah, Tivoli Villa Bangsar.BABMODUS OPERANDIANWAR-SHAMSIDAR-DATO' NALAPada
kebiasaannya, si-pemandu Azizan akan menurunkan Shamsidar pada setiap
kali pertemuan di Caf351 Guana di Bangsar Shopping Complex dan kereta
mewah Daimler WBV 37 yang dikatakan kepunyaan Dato' Nala (Eksekutif
Director Magnum Corporation) akan datang bersama beliau untuk
menjemputnya di Bangsar Shopping Complex dan seterusnya mereka akan
menuju ke kondominium mewah di Trivoli Villa untuk tempoh dua-tiga jam.
Waktunya ialah 5.30 petang dan pada kebiasaannya ialah pada hari Rabu.
Alasan yang sering diberikan oleh Anwar kepada polis pengiring bahawa beliau ingin bermain tennis dengan Nala di Bukit Kiara.
Polis pengiring dilarang turut serta.Begitulah kejadian keji yang berlaku sekian lama untuk tempoh beberapa tahun tanpa pengetahuan Azmin.Selalunya perbuatan mereka adalah dua-minggu atau sebulan sekali.BAB BUKTI REKOD PERTEMUANYAB,
se-pemandu Azizan ada merekodkan setiap pertemuan mereka di dalam diari
peribadinya dan sudi menyerahkan secara peribadi kepada YAB bagi tujuan
siasatan lebih-lebih lagi untuk perbandingan dengan rekod SB yang
mencatatkan setiap kali urusan keluar-masuk Anwar dari kediaman rasmi.BAB AZIZAN JADI MANGSA HOMOSEKS ANWARYAB, Azizan merupakan bekas pemandu peribadi kepada isteri Anwar, iaitu Datin Seri Azizah untuk tempoh 4 tahun.Bagi
beliau dia tidak mempunyai sebarang motif untuk menjatuhkan Anwar
tetapi lebih kepada perasaan peribadi kasihan dan sedih kepada
majikannya Mohamed Azmin Ali yang baginya terlalu baik dan percaya
kepada isteri dan ketua.Beliau telah menceritakan
kepada saya bahawa tindakan beliau berhenti kerja dengan insan munafik
bernama Anwar ialah kerana terasa tertekan, terlalu marah dan hina
melalui pengakuan bersumpahnya yang dilampirkan.Menurut
Azizan, salah seorang lagi mangsa hubungan sejenisnya ialah Sukma yang
dikenali umum sebagai adik-angkat Anwar iaitu rakyat Indonesia yang
mempunyai butik bernama 'Ferre' di Hotel Hilton.Kini Sukma sedang sakit misteri.YAB,
setelah mendapat maklumat terperinci dari pemandu yang bersih, cekap
dan amanah maka kami adik-beradik telah membuat keputusan untuk
menyaksikan kejadian tersebut sebagai bukti.BAB KEJADIAN 30 JUN 1997 JAM 5.35 PETANG (ISNIN)Saya
menerima panggilan telefon pada pukul 5 petang dari Azizan bahawa satu
pertemuan antara mereka yakni Anwar-Shamsidar di Bangsar Shopping
Complex.Ketika itu saya berada di Setapak dan
dengan penuh rasa tanggungjawab bagi memastikan pengaduan Azizan adalah
benar dan sahih maka saya berkejar ke tempat kejadian iaitu di Bangsar
Shopping Complex.Dalam perjalanan, saya sempat menelefon abang sulung, Mohd Azman Ali untuk turut serta.
Bersama
saya ialah rakan karib saya Puan Zamrah Lajis.
Saya juga sempat menelefon seorang lagi rakan bernama Puan Normala untuk
meminjam pelekat kereta Kondominium Trivoli Villa bagi tujuan masuk ke
dalam Kondominium.
Dengan izin Allah, kami tiba tepat pada masanya di mana kereta Daimler
WBV 37 sedang menanti.Mereka tidak perasan kehadiran kami.Akhirnya
Allah telah menunjukkan di depan mata kami Puan Shamsidar menaiki
kereta tersebut menyusur ke Kondo Tivoli Villa Bangsar.Kami mengekorinya dari belakang tanpa pengetahuan mereka.Lima saksi pada kejadian tersebut ialah Ummi Hafilda Ali, Mohd Azman Ali, Puan Zamrah Lajis, Puan Normala dan Azizan Abu Bakar.Mereka
keluar dari Kondo Tivoli pada pukul 7.40 malam dan kereta Daimler
menghantar semula Shamsidar ke Bangsar Shopping Complex di mana Azizan
menanti di tempat yang sama.Kami tidak keberatan
memberikan laporan terperinci sekiranya diberikan peluang untuk bertemu
secara peribadi dengan YAB yang cukup kami sanjungi.Saya
hampir-hampir gila bila mengenangkan seorang tokoh pemimpin yang begitu
saya sanjungi lebih-lebih lagi ketokohan beliau di bidang agama sangup
melakukan perbuatan yang amat keji dan hina sebagai pemimpin negara.Mujurlah
abang saya Mohd Azman menenangkan keadaan di mana beliau mengatakan
terlalu bahaya untuk kami mengambil tindakan apatah lagi ketika itu bapa
kepimpinan yang amat kami sanjungi iaitu Dato' Seri Dr Mahathir tiada
di dalam negara.Seluruh keluarga terperanjat, sedih tertekan, terhina oleh perbuatan keji insan munafik Anwar Ibrahim.
Tetapi
apakan daya, kami tiada kuasa kecuali meminta pandangan dari
rakan-rakan yang saya percaya seperti Puan Sri Saadah dan Puan Norziela
Jalil yang akhirnya memberikan saya satu semangat bagi membongkar
pembohongan dan kemungkaran terbesar di mukabumi ini.YAB,
kami tidak melaporkan kepada Mohamed Azmin kerana percaya bahawa
kasih-sayang dan kesetiaannya terhadap isteri dan ketua tidak berbelah
bagi.
Kami juga khuatir beliau mungkin mengambil tindakan diluar jangkaan sekiranya berasa amat tertekan.BAB UGUTAN POLISYAB, pada 10hb.
Julai
1997, saya bercakap di telefon dengan ADC Anwar iaitu Zul Aznam pada
pukul 8.15 malam dengan memberi amaran secara halus supaya kisah ini
ditutup dan tidak diceritakan kepada sesiapa sahaja termasuk kedua
ibu-bapa.Beliau juga memberikan amaran kedudukan Anwar
yang amat penting dalam negara.
Saya menangis di telefon mengenangkan bahaya yang mungkin datang dan
rasa tertekan yang amat sangat apabila abang saya yang terlalu baik
dianiaya oleh ketua dan isterinya sendiri.
Tolonglah kami YAB.
Selepas kejadian pengintipan pelbagai tuduhan telah dilemparkan kepada saya untuk menutup segala kemungkarannya.Diantaranya
ialah saya telah dituduh membuat fitnah melalui surat layang yang
sampai kepada isterinya Datin Seri Azizah dan kakaknya Hajah Khadijah.Saya
juga telah dituduh oleh insan munafik Anwar Ibrahim bahawa saya ini
(syok dekat dia melalui perbualannya dengan Datuk Seri Megat Junid) pada
2hb.
Ogos 1997 di mana beliau mengatakan saya Ummi
Hafilda cuba menimbulkan angkara kerana cinta saya tidak berbalas untuk
tempoh dua tahun.Beliau seolah-olah melatah akan kesalahannya sendiri.
Bagi saya beliau terlalu bahaya apabila cuba menjerat saya dengan mengatakan surat-surat cinta saya ada di dalam simpanannya.Sekali
lagi saya berasa amat tertekan dengan perbuatan khianatnya kerana demi
Allah saya tidak pernah mempunyai perasaan cinta ke atasnya apatah lagi
untuk menghantar surat cinta.Bagi saya ini ialah
satu pengkhianatan dan pembohongan yang tidak dapat diterima oleh akal
semata-mata untuk memberikan gambaran bahawa saya adalah wanita murahan
yang menagih cinta dari seorang Timbalan Perdana Menteri.Kejahatannya itu tidak dapat saya maafkan di dunia dan akhirat, apatah lagi untuk menerima beliau sebagai pemimpin negara.YAB,
saya khuatir sekiranya surat cinta yang tidak pernah wujud boleh
direka, beliau mungkin berupaya menangkap saya dengan kedudukan dan
kuasa yang ada di atas alasan-alasan lain terutamanya dari segi tuduhan
palsu dan sebagainya.Bantulah saya YAB.BAB ANWAR MENELEFON AZIZANAnwar ada menelefon Azizan pada 13hb.
Julai
1997 setelah tersebarnya surat layang di mana beliau meminta Azizan
memberi kerjasama untuk menafikan segala tuduhan sekiranya Azmin ingin
bersemuka dengan beliau.HARAPAN DAN BAHAN BUKTI1. YAB, saya sempat mengambil gambar kereta Daimler WBV 37 ketika menuruni bukit di Kondo Trivoli Bangsar.2.
Azizan, si-pemandu sedia memberikan diari peribadinya yang mencatatkan
setiap kali pertemuan mereka berdua bagi tujuan perbandingan rekod.3.
Kami menaruh segala harapan ke atas YAB untuk mengadakan siasatan
terperinci ke atas 'balaci' utamanya iaitu Dato' Nala yang sering
menjadi pemandu Daimler WBV 37 bagi setiap kali pertemuan mereka.
4.
Memohon tindakan siasatan ke atas Shamsidar Taharin (perempuan simpanan
Anwar Ibrahim). Buat makluman YAB, nombor telefon tangannya (Shamsidar)
ialah 019-3133287 dengan menggunakan nama Cheong Moew Yen dan telefon
rumahnya 03-4052020.5. Memohon jasa-baik tindakan
siasatan ke atas Sukma adik angkatnya yang juga pasangan homoseksualnya
yang kini mengidap penyakit misteri.
Beliau mendakwa sakit bila duduk dan berjalan dalam pertemuan saya
dengannya baru-baru ini iaitu pada 2hb.
Ogos 1997.6.
Memohon perlindungan keselamatan dari YAB kerana saya khuatir nyawa
saya terancam memandangkan sejak akhir-akhir ini perjalanan saya diekori
oleh orang yang tidak dikenali.7. Saya juga memohon jasa baik YAB untuk merahsiakan laporan ini demi keselamatan kami sekeluarga.
Hanya Allah dan YAB dapat membantu kami menyelesaikan segala kemelut masalah yang terlalu kusut ini.8. Bersama ini juga disertakan butir-butir pemilik kenderaan bernombor WBV 37 yang dikeluarkan oleh Jabatan Pengangkutan Jalan.PANDANGAN PERIBADIYAB,
bagi saya Anwar Ibrahim selaku Timbalan Perdana Menteri tidak layak
menyandang jawatan yang begitu penting dalam negara memandangkan
sekiranya kuasa dan kedudukan terus dikekalkan kemungkinan besar
pelbagai perkara yang lebih hina dan menakutkan mungkin berlaku.Jadi
sebelum wabak penyakit pemimpin yang menipu rakyat jelata dengan
bertopengkan isu agama kononnya Islam yang Addin dan Nahi Mungkar
haruslah ditamatkan dengan segera demi keselamatan dan maruah bangsa.Beliau
bolehlah diibaratkan musuh dalam selimut yang paling merbahaya melalui
perilakunya mengatakan kononnya Azmin itu seperti adik sendiri dan dalam
masa yang sama beliau tergamak mengadakan hubungan sulit dengan isteri
Azmin.Beliau memang seorang pelakon handalan,
pelakon terhebat dekad era 90-an. Lakonannya mengkagumkan, memukau
setiap mata yang menontonnya, strateginya kemas, perjalanannya licin
tetapi beliau lupa bahawa Allah Maha Berkuasa atas segala-galanya.Akhirnya doa-doa kami insan-insan teraniaya dimakbulkan oleh Allah.
Kami
bersyukur kepada Ilahi yang telah memberikan jawapan kepada setiap dari
kami dan inilah hasilnya laporan dikemukakan untuk tindakan susulan
oleh YAB.Segala pertolongan, pertimbangan dan kerjasama
serta kasih-sayang YAB sebagai seorang Bapa Kepimpinan sangatlah
dihargai dan disanjung tinggi.
DIALOG-DIALOG YANG MENIMBULKAN SYAK-WASANGKADialog 1Dalam satu perbualan Shamsidar dengan pembantu rumahnya.Shamsidar: Kesian Afifa, orang jumpa papa (Anwar) hari-hari tapi Fifa jumpa bapa sebulan sekali.Aton: Kalau dah tahu jumpa papa sebulan sekali, kahwinlah dengan papa.Shamsidar: Itulah yang susah ni, papa sana tua, abah sini (Azmin) muda, pening kepala.Dialog IIApabila membuat panggilan telefon Anwar akan sering berkata seperti ini melalui pembantu rumah.Anwar: Ton, Datin Seri ada (Shamsidar).Dialog IIIPercakapan yang sering terjadi antara anak perempuan Azmin yang sulung, Liyana (7 tahun) dengan anak keduanya Shazrin (5 tahun).Shazrin: Maklong, jangan cubit Fifa.
Mummy kata dia anak Menteri.
Anak uncle Anwar.Norlia: Ayen, mummy ada boyfriend tak? (Kakak Azmin)Syzrin: Ada.Norlia: Siapa boyfriend mummy?Syazrin: Uncle Anwar.Norlia: Kenapa Ayen tak cakap abah, mummy ada boyfriend Uncle Anwar.Syazrin: Mummy kata nanti abah lepuk (pukul).Norlia: Nana, siapa boyfriend mummy?Liyana: Uncle Anwar.Norlia: Mana Nana tahu.Liyana: Alah maklong ni, mummy kan cakap pelan-pelan, lama-lama dengan Uncle Anwar, mestilah boyfriend dia.
Dialog IVMelalui perbualan Shamsidar dan Ummi.Shamsidar: Cantik tak handbag I?Ummi: Bolehlah.Shamsidar: You nak tahu siapa bagi.Ummi: Siapa dia?Shamsidar: Boyfriend I.Ummi: Siapa boyfriend you?Shamsidar: Ha!... Anwar Ibrahim lah.Ini
adalah antara sebahagian dialog yang tidak sedap didengar dan telah
menimbulkan syak wasangka kepada kami seluruh keluarga sehingga membawa
kepada penyiasatan kes.P14CDengan
nama Allah Yang Maha Pemurah Lagi Maha Pengasih, saya AZIZAN BIN ABU
BAKAR, IC 5980324 dengan ini membuat pengakuan bersumpah bahawa saya
telah menjadi mangsa hubungan sejenis yakni (homoseksual) dengan Anwar
bin Ibrahim yang kini memangku jawatan Timbalan Perdana Menteri.Perbuatan terkutuk ini telah dilakukan untuk beberapa kali sekitar tahun 1992 tanpa kerelaan saya.
Ianya
kerap berlaku di hotel-hotel mewah seperti PJ Hilton, Hyatt Saujana dan
Holiday Villa tanpa pengetahuan umum dan isterinya.Buat makluman, saya merupakan bekas pemandu peribadi kepada isterinya iaitu Datin Seri Wan Azizah.Sepanjang
bekerja di bawah naungan beliau, Anwar, saya sering dipanggil untuk
melakukan perkara terkutuk itu walaupun untuk beberapa kali saya cuba
menolaknya.
Sifat rakusnya membayangkan beliau seorang
yang boleh dikategorikan sebagai 'kronik' sehingga membuatkan jiwa dan
mental saya begitu tertekan.Perasaan bersalah
akhirnya menguasai diri saya apabila setiap kali terpandang wajah Datin
Seri Wan Azizah yang begitu tinggi akhlaknya.Akhirnya
saya telah membuat keputusan untuk berhenti dari terus menjadi hamba
homoseksual kepada manusia yang saya kategorikan bersifat binatang iaitu
Anwar bin Ibrahim.Sekali lagi dengan nama Allah Yang
Maha mengetahui akan segala-galanya, saya bersumpah membuat pengakuan
ini tanpa mempunyai niat atau motif tertentu samada secara peribadi
mahupun politik untuk menjatuhkannya.
Pengakuan ini dibuat
berdasarkan kesedaran dan keinginan menegakkan kebenaran demi
menyelamatkan insan-insan yang teraniaya seperti saya.Saya tidak keberatan untuk dipanggil bagi menjelaskan kedudukan dengan lebih terperinci.Akhir
sekali saya berharap pihak yang bertanggungjawab dapat mengambil kira
pandangan ini secara serius supaya pemimpin ini diberikan hukuman yang
setimpal demi kebaikan dan pengajaran kepada pemimpin lain.Dengan nama Allah, sekali lagi saya Azizan bin Abu Bakar
bersumpah bahawa segala lapuran di atas dibuat dengan kerelaan hati
saya tanpa desakan, tuntutan dan tekanan dari pihak-pihak tertentu.
Segala-galanya adalah benar demi menyelamatkan bangsa dan negara. AMIN.Pengakuan bersumpah:-Oleh: t.t. I/C: 5980324 Alamat: 54, Jalan Bersatu 1 Taman Bersatu, 48000 Rawang Tarikh: 5hb.
Aug, 1997On
8 August 1997 Dato' Amir Junus met the Inspector General of Police
("the IGP") who gave him some particulars about exh. P14A, B and C and
instructed him to ascertain how far the letter had been circulated and
to find out the background of its writers Ummi and Azizan.
On 9 August 1997 Dato' Amir Junus passed the instruction to ACP Mazlan.
On 10 August 1997 Dato' Amir Junus and ACP Mazlan met Dato' Mohd Said at
the Subang International Airport to brief him, inter alia, on
the letter.
He asked them to prepare a detailed report on it. On 11 August 1997 at
about 7.30am they met Dato' Mohd Said and briefed him again on the
letter.
He asked them to brief the IGP. When they briefed the IGP he gave them a
copy of exh. P14A, B and C and asked them to monitor the situation.
On the same day Dato' Mohd Said bin Awang met the accused at his office
at about 9am to brief him on some official matters.
Immediately after the briefing the accused asked Dato' Mohd Said to see
him alone.
The accused told him about a letter containing wild allegations against
him and requested Dato' Mohd Said to look into the matter.
On 12
August 1997 Dato' Mohd Said called for Dato' Amir Junus and ACP Mazlan.
They briefed him on exh. P14A, B and C and showed him the letter.
Later they briefed the IGP about it. They told him that exh. P14A, B and
C had not been widely circulated yet and that Ummi was in the process
of sending it to YAB Prime Minister.
The IGP instructed them to conduct further inquiries into it. On the
same day at about 8pm Dato' Amir Junus was informed by ASP Zull Aznam
that the accused would like to meet him and Dato' Mohd Said at his
Official Residence at No. 47, Jalan Damansara at 10pm.
Dato' Amir Junus informed Dato' Mohd Said about this and they went to
the accused's Official Residence as requested.
Upon arrival there they were ushered into the library.
After some conversation the accused talked to them about Ummi and her
problems with her family.
He then asked them about exh. P14A, B and C and asked them whether they
had received a copy of it. He told them that it was written by Ummi.
They informed him that they had been given a copy of it by the IGP. He
asked them to trace Ummi and Azizan in order to find out more about the
letter and why it was written.
Dato' Mohd Said told the accused that they will look into the matter.
Dato' Amir Junus made a note of this meeting in exh. P42 to which I
shall refer shortly.
On the morning of 13 August 1997 Dato' Mohd
Said called Dato' Amir Junus and ACP Mazlan to his office.
They reviewed the latest intelligence on exh. P14A, B and C. Dato' Mohd
Said directed them to try and monitor Ummi and Azizan from their
sources.
Later in the day Dato' Amir Junus was informed by ASP Zull Aznam that
the accused wanted to see him and Dato' Mohd Said at his Official
Residence at 10pm.
Dato' Amir Junus passed the information to Dato' Mohd Said and they met
the accused in the library of his Official Residence at the appointed
time.
The discussion was on the latest development on exh. P14A, B and C. They
informed him that the letter had been given to the IGP by Dato' Seri
Megat Junid.
They also informed him that they had not been able to trace Ummi and
Azizan yet.
He urged them to locate Ummi and Azizan immediately and interview them.
He asked them to "gempar" the two persons.
Dato' Mohd Said said that he understood the word to mean "205 to
surprise them and to put fear in them 205" because of the letter.
Dato' Amir Junus said that it meant to interview them and frighten them
so that they will not spread the allegations in exh. P14A, B and C.
Dato' Amir Junus made a note of the meeting.
It is exh. P42 and reads as follows:
RAHSIA BESAR/CICERONOTA FAILBilangan: LF/T.PCK II (C) Tarikh: 14 OGOS 97PERJUMPAAN DENGAN YAB DATO SERI ANWAR IBRAHIM,TIM. PERDANA MENTERIPada
12 OGOS 97 saya telah menerima panggilan telefon dari ASP ZUL AZNAM
yang menyampaikan pesan bahawa Tim. Perdana Menteri ingin berjumpa
dengan Pengarah Cawangan Khas (PCK) di kediaman beliau pada malam hari
itu.2. Dato' PCK bersama-sama saya telah hadir di kediaman T/PM di antara jam 2200 hingga jam 2300.
Semasa pertemuan ini perkara-perkara berikut telah dibincangkan:-
2.1
Kandungan surat 19 muka surat bertajuk 'Perihal Salahlaku Timbalan
Perdana Menteri' yang dialamatkan kepada YAB Perdana Menteri bertarikh 5
OGOS 97 dan ditanda tangani oleh UMMI HAFILDA MOHD ALI serta surat
pengakuan AZIZAN ABU BAKAR bertarikh 5 OGOS 97; dan2.2
T/PM mengarahkan pihak Cawangan Khas supaya mengesan UMMI HAFILDA dan
AZIZAN serta mencungkil maklumat untuk mengetahui tujuan dan matlamat
mereka berbuat demikian.3. Ekoran dari pertemuan
ini, saya dan Dato' PCK telah sekali lagi pergi ke kediaman T/PM pada 13
OGOS 97 di antara jam 2100 hingga 2300.
Pada kali ini, perbincangan adalah berkisar kepada usaha-usaha Cawangan Khas untuk mengesan UMMI HAFILDA dan AZIZAN.4. T/PM pula mendesak supaya mereka dikesan dengan segera untuk ditemuduga.T.T. (AMIR BIN JUNUS) A/SAC I T/PCK IIAJ/MKHI RAHSIA BESAR/CICEROOn
15 August 1997 Dato' Mohd Said had a meeting in his office with Dato'
Amir Junus and ACP Mazlan. ACP Mazlan told him that they still could not
trace Ummi and Azizan.
Dato' Mohd Said told ACP Mazlan about the request of the accused and the
need to locate them quickly.
At the meeting they also discussed an anonymous letter entitled Talqin Terbuka
(exh. P15) which had been discovered by them.
It was already in circulation.
The contents of this letter were the same as that of exh. P14B and C. At
that time ASP Zull Aznam telephoned Dato' Amir Junus to inform him that
the accused wanted to meet him and Dato' Mohd Said in the afternoon at
his Official Residence.
They met the accused at 2pm as requested.
They talked about exh. P14A, B and C. They mentioned exh. P15 to him and
the fact that it was in circulation.
The accused showed them a copy of exh. P15 and asked them to investigate
fully into it. Dato' Mohd Said said that the accused did not believe
that exh. P15 was written by the organisations named on it. Since the
contents of exh. P15 and exh. P14A, B and C were the same the three of
them felt that exh. P15 could have been written by the same group
including Ummi and Azizan.
Dato' Mohd Said and Dato' Amir Junus suggested to the accused that a
police report be made on it. He did not want to make a report as he did
not want the case to be investigated by the CID and because of the
adverse publicity as he is a politician and Deputy Prime Minister.
Dato' Mohd Said and Dato' Amir Junus then managed to convince him that
it is better to make a police report.
Dato' Mohd Said said that he would find a good officer to investigate
the case and mentioned the name of SAC Musa as an appropriate officer to
do so. The accused then agreed to lodge a report but told them that
even though the case was going to be investigated by the CID he did not
want the matter to go to court as, in that event, it would be
publicised.
The accused said that the report will be lodged on his behalf by ASP
Zull Aznam.
Dato' Amir Junus made a note of this meeting in exh. P43 to which I
shall refer shortly.
At about 3pm on the same day ASP Zull Aznam lodged the report (exh. P16)
at the office of Dato' Mohd Said who passed the report to SAC Musa of
the CID together with exh. P15. At about 3.45pm ACP Mazlan came to the
office of Dato' Mohd Said.
He gave the latest briefing on the circulation of exh. P15 and also
informed Dato' Mohd Said that he still could not trace Ummi and Azizan
yet.
Dato' Mohd Said then planned with ASP Mazlan and SAC Musa on the
division of work in the investigation.
It was decided that the Special Branch shall look for Ummi and Azizan.
Once they are traced SAC Musa and ASP Zulkifli will arrest them.
Upon their arrest the Special Branch was to interview them first.
Dato' Mohd Said said that in order to comply with the instructions of
the accused they have to arrest Ummi and Azizan.
On 16 August 1997
at about 9.30am Dato' Mohd Said met Dato' Amir and ACP Mazlan in his
office. ACP Mazlan said that Ummi and Azizan could not be traced yet.
Later upon being informed by ASP Zull Aznam they met the accused at his
Official Residence at 10pm.
He told them that if they managed to arrest Ummi and Azizan he did not
want them to be detained for long.
He wanted them to be questioned deeply as to why they wrote the letter.
Dato' Mohd Said told the accused that they had still not been traced
yet.
The accused repeated his request that he wanted the two to be traced as
early as possible.
Exhibit P43 is a note of the meeting kept by Dato' Amir Junus.
It reads as follows:
RAHSIA BESAR/CICERONOTA FAILBilangan: LF/T.PCK II (C) Tarikh: 18 OGOS 97PERJUMPAAN DENGAN YAB TIMBALAN PERDANA MENTERIPada
petang 15 OGOS 97, Dato' Pengarah Cawangan Khas (PCK) dan saya telah
dipanggil pergi ke kediaman YAB Dato' Seri ANWAR IBRAHIM dimana beliau
telah memaklumkan tentang penyibaran risalah bertajuk 'Talqin Terbuka
Untuk Anwar Ibrahim'. Dalam hubungan ini, beliau telah juga menggesa
pihak Cawangan Khas supaya segera menyiasat siapa yang bertanggung jawab
menulis dan menyibar surat layang tersebut.
2. Dato' Seri ANWAR telah dinasihatkan oleh Dato' PCK supaya membuat laporan polis agar satu penyiasatan boleh dijalankan.Ini adalah kerana dengan adanya laporan polis yang formal, satu penyiasatan yang lebih menyeluruh boleh dimulakan.3.
Di atas nasihat ini, ASP ZUL AZNAM telah datang ke pejabat PCK pada
hari yang sama jam lebihkurang 1600 untuk membuat laporan polis.
Laporan ini telah diserahkan kepada pihak Jabatan Siasatan Jenayah.
Pada masa yang sama, Dato' PCK telah mengarahkan ACP MAZLAN MOHD DIN untuk mengesan UMMI HAFILDA dan AZIZAN ABU BAKAR.4.
Pada 16 OGOS 97, Dato' PCK dan saya telah juga pergi ke kediaman Dato'
Seri ANWAR di antara jam 2130 hingga 2330 setelah dipanggil oleh beliau.
Semasa
pertemuan ini, Dato' Seri ANWAR telah meminta supaya beliau
ditaklimatkan tentang perkembangan siasatan terhadap penyibaran surat
layang "Talqin 205"T.T. (AMIR BIN JUNUS) A/SAC I T/PCK II AJ/MKHI RAHSIA BESAR/CICEROOn
17 August 1997 at about 2pm ACP Mazlan asked SAC Musa to prepare a
stand-by team from the CID as the Special Branch may be locating Ummi
and Azizan on that day.
On the same day ACP Mazlan informed SAC Musa that he was at the house of
Dr Restina at No. 56, Jalan Medang Tandok, Bangsar where Ummi and
Azizan were known to be and that he faced problems in entering into the
house as Dr Restina was not co-operative. SAC Musa arrived at the house
at about 9pm and was informed that Dr Restina, her children, her
domestic maid, Ummi and Azizan were in the master bedroom which was
locked from inside. SAC Musa then communicated with Dr Restina.
Initially Dr Restina refused to open the door of the bedroom as she did
not believe that the persons outside were police personnel.
Dr Restina, after having confirmed with Tan Sri Norian Mai, the Deputy
IGP, that the persons in her house were indeed police officers, agreed
to come out of the master bedroom.
As the door to the room could not be opened Dr Restina and the others
came out from the room through the balcony.
Ummi and Azizan were arrested at about 11pm by the CID and handed over
to DSP Aziz.
They were then taken to Bukit Aman.
In the meanwhile on 17 August
1997 the IGP had instructed Dato' Mohd Said and Dato' Amir Junus to see
him in his house at about 8pm.
The IGP told them that Dr Restina had telephoned him at his house to
inform him that there were police officers in her house compound.
They told the IGP that Ummi and Azizan were in her house and the police
were there to arrest them.
While they were there ACP Mazlan telephoned Dato' Mohd Said at about
11pm and told him that Ummi and Azizan had been arrested and had been
brought to Bukit Aman.
Dato' Mohd Said informed the IGP about the arrest.
At that time Dato' Amir Junus received a call on his handphone from the
accused.
He informed the accused that Ummi and Azizan had been arrested.
The accused wanted to speak to the IGP. Dato' Amir Junus then handed the
handphone to the IGP who spoke to the accused.
The IGP then informed them that the accused wanted to see them.
They reached the accused's Official Residence at about 12.30am.
They briefed him about the arrest of Ummi and Azizan.
The accused directed them that Ummi and Azizan were to retract and deny
their allegations as contained in exh. P14A, B and C in writing within
24 hours.
The accused repeated that he did not want the two to be detained for
long and that their case should not be brought to court.
He also wanted them to ensure that there is no publicity.
In confirming this Dato' Amir Junus said that the accused wanted the
retraction letters to be addressed to YAB Prime Minister.
Dato' Amir Junus kept a note of this meeting.
It is exh. P44 and reads as follows:
RAHSIA BESAR/CICERONOTA FAILBilangan: LF/T.PCK (C) Tarikh: 18 OGOS 97PENANGKAPAN UMMI HAFILDA DAN AZIZAN ABU BAKARKedua-dua tajuk telah ditangkap pada malam 17 OGOS 97 oleh pihak Jabatan Siasatan Jenayah.
Memandangkan
Dato' Seri ANWAR IBRAHIM ingin mengetahui perkembangan kes ini, maka
Dato' PCK dan saya telah diminta pergi ke kediaman beliau pada 18 OGOS
97 di antara jam 0030 hingga jam 0100.2. Di dalam pertemuan ini, Dato' Seri ANWAR telah dimaklumkan tentang rentetan penangkapan kedua-dua tajuk berkenaan.
Dato' Seri ANWAR kemudiannya telah memberi arahan-arahan berikut:-2.1. Kedua-dua tajuk tidak ditahan lama-lama;2.2. Mereka hendaklah ditemuduga supaya mereka takut dan menafikan tohmahan-tohmahan berkenaan;2.3. Tidak mahu kes ini dibawa ke Mahkamah.T.T. (AMIR BIN JUNUS) A/SAC I T/PCK II AJ/MKHI RAHSIA BESAR/CICERO
Dato'
Mohd Said and Dato' Amir Junus then went back to their office at about
1.30am.
Dato' Mohd Said then called for ACP Mazlan and DSP Aziz. ACP Mazlan told
them that Ummi and Azizan had been placed in different rooms and were
being interviewed.
Dato' Mohd Said, bearing in mind the directions given by the accused,
told the officers that looking at the political and economic climate
they cannot afford to have any instability with regard to security.
Thus he told them, again bearing in mind the directions given by the
accused, that they have less than 24 hours to get a retraction of the
allegations from Ummi and Azizan.
He instructed ACP Mazlan to interview Azizan and DSP Aziz to interview
Ummi.
Dato' Mohd Said said that the interrogation to obtain a retraction is
known within the Special Branch as a Turning Over Operation.
The objective of turning over a person is to change his stand and
neutralise him.
Dato' Amir Junus said that the instruction given to ACP Mazlan and DSP
Aziz to make Ummi and Azizan retract their allegations is contrary to
the practice of the Special Branch and that that was the first time the
technique was applied outside their normal routine.
He also said that contrary to the normal practice of turning over which
is to obtain the truth of a matter the instruction given to the
interrogators was not to extract the truth from Ummi and Azizan but only
to neutralise them.
Dato' Amir Junus also said that the instructions given by the accused to
him and Dato' Mohd Said were similar to the instructions they gave to
ACP Mazlan and DSP Aziz. ACP Mazlan said that he was compelled to carry
out the instructions even though it was strange. DSP Aziz said that what
he was asked to do was very odd and outside his normal duties.
DSP
Aziz said that the instructions he received from Dato' Amir Junus meant
that he had to change the stand of Ummi and Azizan so that they will
withdraw all the allegations as contained in exh. P14A, B and C. He was
instructed to concentrate on Ummi while ACP Mazlan was to concentrate on
Azizan. DSP Aziz said that Ummi was interrogated non-stop from 11pm on
17 August 1997 till 7am on 18 August 1997.
He said that fear was created in her by threats of detention under the
Internal Security Act ("ISA") and the Sedition Act and probable
retaliation by the accused.
She was mentally tortured until she lost her will to fight and
surrendered to the interrogation team.
Ummi said that she was not allowed to sleep during the period of
interrogation.
She said that she was threatened with detention under the ISA and in the
lockup with drug addicts and prostitutes.
She then wrote a letter of apology addressed to YAB Prime Minister. ACP
Mazlan said that the persuasive method of interrogation used on Azizan
was not effective.
Azizan was then interrogated by DSP Aziz for about an hour from 5am on
18 August 1997.
He threatened Azizan and managed to neutralise him by 6am.
Azizan said he was also threatened with detention under the ISA. He was
not allowed to rest during the period of detention and was questioned
continuously.
Finally he agreed to write the letter of apology.
He said that it was not written voluntarily.
Prior to that at
about 2.30am on 18 August 1997 ACP Mazlan and DSP Aziz met Dato' Amir
Junus and Dato' Mohd Said at the latter's office. DSP Aziz told them
that it would be a bit difficult to deal with Ummi as she was still very
strong in her original stand. ACP Mazlan said that it would be easier
to deal with Azizan.
Dato' Amir Junus and Dato' Mohd Said still directed them to try again to
neutralise Ummi and Azizan to make them change their stand.
Dato' Mohd Said said that he took this stand as the direction that he
had received was from the Deputy Prime Minister.
Dato' Amir Junus said that it was done in order to comply with the
request of the accused.
At about noon on the same day Dato' Mohd Said and Dato' Amir Junus were called by the accused to his Official Residence.
They told him that Ummi and Azizan had changed their mind and were willing to retract the allegations.
He told them that Ummi and Azizan should write a letter of denial to YAB Prime Minister.
Dato' Amir Junus kept a note of the meeting.
It is exh. P45 and reads as follows:
RAHSIA BESAR/CICERONOTA FAILBilangan: LF/T.PCK II (C) Tarikh: 18 OGOS 97PENANGKAPAN UMMI HAFILDA DAN AZIZAN ABU BAKARPada
18 OGOS 97 jam 12:15, Dato' PCK dan saya telah pergi ke kediaman Dato'
Seri ANWAR IBRAHIM apabila beliau mengarahkan supaya ditaklimatkan
tentang perkembangan tangkapan UMMI HAFILDA dan AZIZAN ABU BAKAR.2.
Di dalam pertemuan ini Dato' Seri ANWAR telah mengarahkan supaya
sesuatu tindakan diambil bagi menentukan kedua-dua mereka menarik semula
kesemua tohmahan yang dibuat terhadap beliau.T.T. (AMIR BIN JUNUS) A/SAC I T/PCK II AJ/MKHI RAHSIA BESAR/CICERO
At
about 4.30pm Dato' Mohd Said informed ACP Mazlan and DSP Aziz that Ummi
and Azizan should address the written statement to YAB Prime Minister.
They carried out the instruction.
At about 6pm DSP Aziz handed to Dato' Mohd Said the first draft of
Ummi's written statement with which he was not satisfied as it was not
clear.
So he asked DSP Aziz to get a more committed letter from Ummi which he
did.
At about 9.30pm Dato' Mohd Said received the letters written by Ummi and
Azizan.
The letter from Azizan is exh. P17 and the letter from Ummi is exh. P18.
Exhibit P17 reads as follows:
Azizan bin Abu Bakar 54 Jln Bersatu 1 Tmn Bersatu 48000 Rawang - SelangorTarikh: 18-8-97Kepada YAB Dato' Sri Dr Mahathir Mohammad Perdana Menteri MalaysiaAs'salamualaikum Dato' SriDengan
segala hormatnya saya saperti nama diatas ingin memaklumkan kepada YAB
Dato' Sri bahawasanya saya ialah orang yang bertanggungjawab berkenaan
surat pengakuan bersumpah yang tercatit nama, No. Kad Pengenalan dan
ditandatagani oleh saya sendiri.Saya mengaku
telah membuat pengakuan bersumpah itu kerana mengikut nafsu, emosi dan
fikiran semata-mata kerana melayani perasaan tanpa memikirkan
musibahnya.Puncanya saya bertindak sedemikian adalah
kerana bersimpati terhadap keluarga Encik Azmin Hj Ali yang telah
bertanya kepada saya adakah Puan Shamsidar mempunyai hubungan sulit
dengan YAB Dato' Seri Anwar Ibrahim.
Ahli keluarga yang bertanya ialah Cik Umi Hafilda, memandangkan saya
adalah bekas pemandu peribadi kepada Datin Seri Wan Azizah.
Saya mengesahkan pertanyaan Cik Umi berdasarkan pandangan saya terhadap
tingkahlaku dan perbualan Puan Shamsidar dengan YAB Dato' Sri Anwar
Ibrahim.
Ini disebabkan saya adalah pemandu peribadi kepada Puan Shamsidar dan tidak suka dengan perangainya yang suka memerintah.Apabila
Cik Umi menyediakan surat pengakuan bersumpah berbau fitnah berpandukan
percakapan saya tentang perhubungan saya dengan YAB Dato' Sri Anwar
Ibrahim untuk menulis nama, no. kad pengenalan, saya telah melakukannya
tanpa berfikir panjang.
Selain daripada itu dengan
keyakinan dan jaminan yang diberikan olih rakan-rakan Cik Umi yaitu Dr
Ristina, Mohamad Taib dan rakan Mohamad Taib bernama 'Tan', saya
merasakan ketika itu tindakan saya ini adalah betul dan tidak perlu
dikhuatirkan.
Lebih-lebih lagi apabila diberitahu oleh Mohamad Taib bahawa saya tidak
perlu takut kerana perkara ini telah disampaikan kepada Dato' Aziz
Shamsudin yang memberitahu akan memajukan surat berkenaan kepada YAB
Perdana Menteri.Saya juga diberitahu oleh Mohamad Taib bahawa beliau adalah saorang pegawai cawangan khas dan rakan rapat kepada Dato' Aziz.YAB
Dato' Sri, saya sedar kini akan kesilapan bahawa surat bersumpah
berkenaan sememangnya tidak berasas kerana tidak terdapat sebarang bukti
atau fakta sokongan dakwaan saya itu.Saya mengakui bahawa tindakan saya itu boleh disifatkan sebagai fitnah yang saya sedar di sisi ugama adalah suatu dosa besar.Dengan itu saya memohon jutaan ampun dan maaf kepada YAB Perdana Menteri dan Dato' Sri Anwar Ibrahim diatas kesalahan saya itu.Pengakuan
terhadap kesalahan saya ini dilakukan oleh diri saya sendiri tanpa
dorongan mana-mana pehak dan ianya adalah menjelaskan kedudukan sebenar.Yang benarT.T. Azizan Abu Bakar No. K/P: 5980324s.k.: YAB Dato' Sri Anwar Ibrahim Timbalan Perdana MenteriExhibit P18 reads as follows:
18th Ogos 1997Yang Amat Berhormat Dato' Seri Dr Mahathir Mohamed Perdana Menteri Malaysia Jabatan Perdana Menteri Kuala LumpurPengakuan oleh UMMI HAFILDA BT ALI berkaitan Perihal Salahlaku Timbalan Perdana MenteriDengan
segala hormatnya, merujuk kepada perkara di atas, saya dengan ini ingin
mengemukakan penjelasan maklumat mengenai laporan sulit yang telah
dihantar kepada YAB Perdana Menteri pada 5hb Ogos 1997.
Untuk
makluman YAB, tujuan saya mengemukakan laporan berkenaan adalah
semata-mata untuk mendapatkan pertimbangan dan perhatian dari YAB
terhadap salahlaku Timbalan Perdana Menteri iaitu Dato' Seri Anwar
Ibrahim, yang saya percayai mempunyai hubungan sulit dengan Puan
Shamsidar bt Taharin iaitu isteri kepada (sic) Mohd Azmin Ali yang merupakan abang kandung saya.Selain
daripada itu, saya juga percaya bahawa YB Anwar Ibrahim pernah
mengadakan hubungan homoseksual dengan bekas pemandunya bernama Azizan
Abu Bakar.Pendirian dan pandangan saya pada ketika itu
banyak berdasarkan kepada maklumat-maklumat yang saya perolehi melalui
perbuatan Shamsidar yang sering menjawab telefon secara berahsia dalam
tempoh jangkamasa panjang, setiap kali saya mengunjungi rumahnya.
Pandangan
ini diperkukuhkan dengan maklumat yang didedahkan oleh orang gaji
Shamsidar iaitu Aton bahawa sememangnya beliau disyaki mempunyai
hubungan sulit dengan orang kenamaan.Melalui penyiasatan ringkas yang saya lakukan sendiri, saya berasa yakin bahawa pemanggil itu adalah YB Anwar bin Ibrahim.
Selain
daripada itu saya juga difahamkan oleh pemandu kepada Shamsidar iaitu
Azizan bahawa beliau sering dikehendaki menghantar Shamsidar ke Bangsar
sebelum dijemput dengan sebuah kereta lain ke Tivolli Villa Bangsar.Ke
arah ini saya telah menjalankan penyiasatan sendiri pada 30hb June 1997
yang membuktikan bahawa Shamsidar telah dibawa dengan menaiki sebuah
kereta mewah Daimler dengan nombor pendaftaran WBV 37 ke kawasan Tivolli
Villa berkenaan, bagi menemui seorang kenamaan iaitu YB Anwar bin
Ibrahim.
Inilah perkara yang menyebabkan saya percaya mereka mengadakan hubungan sulit.Ekoran
itu saya telah merujuk perkara ini pada kenalan baik saya iaitu Puan
Ziela Jalil dan Dr Ristina Majid, untuk mendapatkan pandangan bagi
membetulkan keadaan melalui kewibawaan Perdana Menteri sebagai orang
yang paling dihormati oleh kedua-dua pihak.
Untuk
menjayakan ini Puan Ziela telah memaklumkan perkara berkenaan kepada
Dato' Seri Megat Junid dan seterusnya meminta saya membuat laporan dalam
bentuk hitam putih agar dirinya tidak disalahertikan sebagai punca yang
berlaku.Ekoran ini Dato' Megat Junid telah merujuk
perkara ini kepada Tun Daim Zainuddin selaku orang paling rapat dengan
Perdana Menteri.
Sehubungan dengan itu berlaku pertemuan di antara saya, Ziela dan Tun
Daim pada awal Ogos 1997 bertempat di pejabat Tun Daim Zainuddin.
Di dalam pertemuan itu beliau telah menasihatkan agar laporan yang akan
dibuat dalam bentuk hitam putih sebelum diajukan kepada Perdana Menteri.
Pada masa yang sama perkara ini telah dirujuk kepada Dr Ristina Majid
yang kemudiannya telah menguruskan pertemuan dengan rakannya iaitu Dato'
Aziz Shamsudin yang memegang jawatan selaku Setiausaha Politik kepada
Perdana Menteri pada awal Ogos 1997.
Sehubungan dengan itu
Dato' Aziz Shamsudin telah mengaturkan menemukan saya dengan 2 orang
pegawai yang mendakwa mereka dari unit cawangan khas JPM iaitu En Taib
yang telah dibuang kerja pada 1993 dan En Tan yang tidak diketahui
identitinya yang sebenar.Dalam pertemuan itu percakapan saya telah dirakamkan menggunakan rakaman percakapan suara.Di waktu itu saya difahamkan ianya akan diserahkan kepada Perdana Menteri secepat mungkin.
Dalam perjumpaan ini saya juga menyatakan kerisauan kerana khuatir keselamatan diri saya terancam.Sehubungan itu mereka menjanjikan perlindungan keselamatan terhadap diri saya dan juga diri Azizan.
Sebelum
dari itu En Taib yang kononnya dari cawangan khas menasihatkan kami
agar mengatakan kami di luar negara sekiranya mendapat panggilan
telefon.Walau bagaimanapun semasa dalam siasatan
polis ekoran dari laporan yang diajukan serta melalui sessi perbincangan
yang diadakan saya mendapati bahawa segala perkara yang berbangkit itu
banyak bergantung kepada fakta-fakta yang tidak lengkap di mana
kebanyakan pandangan tersebut hanya berdasarkan anggapan dan andaian
yang tidak dapat dibawa ke tengah bagi membuktikan kesasihan (sic) pandangan saya ketika itu.Cara penghantaran surat mungkin salah di mana telah melalui beberapa proses orang tengah yang kini diragui kejujurannya.
Mungkin ini berdasarkan kepentingan peribadi atau politik oleh seseorang.Bukti yang nyata di mana 2 orang yang tidak dikenali telah menyamar sebagai unit cawangan khas dari pihak Perdana Menteri.YAB
mengenai dakwaan yang dikemukakan oleh Azizan adalah sebagai pihak yang
tolong menyampaikan mesej kepada Perdana Menteri dan terpulanglah oleh
pihak berkuasa meneruskan penyiasatan.YAB saya
juga berniat menjernihkan suasana yang keruh dan tegang ketika ini
dengan cuba mendapatkan semula salinan-salinan yang masih ada di dalam
simpanan rakan-rakan dalam usaha untuk menamatkan penyebaran dari terus
berleluasa.YAB sebagai salah seorang dari ahli
keluarga yang terlibat dalam kemelut masalah ini ingin meminta jasa baik
dan budi bicara YAB bagi menjernihkan suasana kekeruhan kerana di pihak
yang satu lagi menganggap ianya sebagai satu motif penganiayaan
sedangkan ianya lebih kepada perasaan ingin membetulkan keadaan.YAB,
saya bagi pihak keluarga ingin memohon maaf sekiranya laporan sulit ini
telah menimbulkan pelbagai kekeliruan yang berbangkit.
Segala
pertimbangan dan kerjasama yang diberikan oleh YAB Perdana Menteri
dalam menangani masalah ini sangatlah dihargai dan disanjung tinggi.Sekian, terima KasihYang benar,(signature illegible) UMMI HAFILDA BT. ALI I/C A 0793275On
18 August 1997 at about 8.30pm Dato' Amir Junus received a telephone
call from the accused saying that he wanted to come to the Special
Branch office to see Azizan.
On being advised against this the accused asked for Azizan to be taken
to his Official Residence.
Azizan was taken to the accused's Official Residence on the same day at
11.45pm by DSP Aziz.
At about midnight on the same day Dato' Mohd Said and Dato' Amir Junus
met the accused at his Official Residence.
They showed him exhs. P17 and P18. He was satisfied with exh. P17 but
not with exh. P18. The accused then asked them to monitor the movement
of Ummi and Azizan.
Dato' Amir Junus made a note of the meeting.
It is exh. P46 and reads as follows:
RAHSIA BESAR/CICERONOTA FAILBilangan: LF/T.PCK II (C) Tarikh: 19 OGOS 97SURAT PENGAKUAN UMMI HAFILDADAN AZIZAN ABU BAKARPada
lewat malam 18 OGOS 97, Dato' PCK dan saya telah diarahkan oleh Dato'
Seri ANWAR IBRAHIM untuk memaklumkan beliau tentang perkembangan terbaru
berhubung hasil soalsiasat terhadap UMMI HAFILDA dan AZIZAN ABU BAKAR.
Sehubungan itu, Dato' PCK dan saya telah sampai di kediaman Dato' Seri
ANWAR pada tengah malam 18 OGOS 97.2. Turut sama
ke kediaman Dato' Seri ANWAR ialah AZIZAN ABU BAKAR. Sebaik sahaja
sampai, surat pengakuan UMMI HAFILDA dan AZIZAN ABU BAKAR telah
diserahkan kepada Dato' Seri ANWAR. Selepas itu, AZIZAN ABU BAKAR pergi
menemui Dato' Seri ANWAR dan berbual-bual dengan beliau.T.T. (AMIR BIN JUNUS) A/SAC I T/PCK II AJ/MKHI RAHSIA BESAR/CICERO
Dato' Amir Junus said that the reference in the note to confessions are the apology letters.
On
18 August 1997 SAC Musa was informed by Dato' Mohd Said that Ummi and
Azizan would be handed over to the CID after the Special Branch had
interviewed them. SAC Musa said that it is unusual for the Special
Branch to be involved with an investigation conducted by the CID. Dato'
Mohd Said himself said that normally a report like exh. P16 will be
investigated by the CID. The Special Branch surrendered Ummi and Azizan
to the CID on 18 August 1997 at 10am. A search was immediately conducted
in the office of Ummi and the house of Azizan.
From Ummi's office the police recovered a computer diskette (exh. P35);
five copies of the Sworn Declaration of Azizan (exh. P37A - E); two
copies of exh. P14A, B and C (exh. P36A and B) and a handwritten draft
of exh. P14A, B and C in 22 pages (exh. P38A - V). Ummi said that it is
in her own handwriting.
From Azizan's house the police seized a copy of his Sworn Declaration
(exh. P39) and a diary (exh. P40). At 1.40pm on that day Dato' Mohd Said
instructed SAC Musa to surrender Ummi and Azizan to the Special Branch.
At about 8.30pm SAC Musa went with a few of his officers to Dato' Mohd
Said's office to find out the position of Ummi and Azizan.
They were told about the letters written by the two and were requested
to release them. SAC Musa then released Ummi and Azizan on police bail.
On 19 August 1997 Dato' Amir Junus gave SAC Musa copies of exhs. P17,
P18 and P14A, B and C. He found that the contents of exhs. P15 and P14A,
B and C were similar.
He said that upon receipt of exh. P14A, B and C he wanted to continue
with the investigation in order to find out the truth of the allegations
against the accused.
On the same day at about 5pm he recorded a statement from the accused
who denied all the allegations.
On 20 August 1997 Dato' Mohd Said
handed to YAB Prime Minister exhs. P17 and P18 and his report (exh.
D25). Exhibit D25 reads as follows:
RAHSIA PERSENDIRIANBil: LF PCK (C)Tarikh: 20 OGOS 97YAB DATO' SERI DR MAHATHIR BIN MOHAMAD PERDANA MENTERI MALAYSIA, PEJABAT PERDANA MENTERI, JALAN DATO ONN, 50502 KUALA LUMPUR
YAB Dato' Seri.TOHMAHAN TERHADAP YAB DATO' SERIANWAR IBRAHIMIzinkan
saya dengan segala hormat dan takzimnya memajukan bersama-sama ini
pengakuan bertulis daripada UMMI HAFILDA ALI dan AZIZAN ABU BAKAR
bertarikh 18 OGOS 97 yang telah dibuat secara sukarela untuk disampaikan
kepada YAB Dato' Seri.2. Pengakuan bertulis
mereka ini diperolehi berikutan penyiasatan berhubung surat layang
bertajuk "Talqin Terbuka Untuk Anwar Ibrahim". Berasaskan surat layang
tersebut, satu laporan polis telah dibuat oleh ASP ZULL AZNAM Hj HARUN,
pengiring YAB Dato' Seri ANWAR IBRAHIM pada 15 OGOS 97. Sebelum itu,
pihak polis telah juga menerima salinan laporan 19 mukasurat mengenai
"Perihal Salahlaku Timbalan Perdana Menteri" bertarikh 5 OGOS 97 yang
dialamatkan kepada YAB Dato' Seri sendiri.
Laporan itu ditandatangani oleh UMMI HAFILDA ALI.3.
Berdasarkan kepada laporan ASP ZULL AZNAM, pihak polis telah menahan
UMMI HAFILDA ALI dan AZIZAN ABU BAKAR pada 17 OGOS 97 di bawah Seksyen
4(1)(b) Akta Hasutan 1948.
Setelah keterangan diambil, mereka dibebaskan pada 18 OGOS 97 dengan
jaminan polis.
Keterangan mereka menunjukkan bahawa tuduhan-tuduhan yang dibuat adalah
tidak berasas dan lebih bergantung kepada andaian serta prasangka.
Faktor
utama yang mendorong UMMI HAFILDA ALI mengemukakan laporan "Perihal
Salahlaku Timbalan Perdana Menteri" adalah berdasarkan kepada syak
wasangka terhadap kakak iparnya, SHAMSIDAR TAHARIN mempunyai hubungan
sulit dengan YAB Dato' Seri ANWAR IBRAHIM. SHAMSIDAR TAHARIN merupakan
isteri kepada MOHAMED AZMIN ALI, Setiausaha Sulit Timbalan Perdana
Menteri. AZIZAN ABU BAKAR pula membuat tuduhan kerana terpengaruh dengan
pujukan UMMI HAFILDA ALI dan sebagai pemandu kepada keluarga MOHAMED
AZMIN ALI, beliau tidak menggemari sikap angkuh SHAMSIDAR TAHARIN.4.
Saya juga ingin memaklumkan bahawa siasatan menerusi sumber-sumber lain
turut menunjukkan tuduhan-tuduhan yang dilempar itu tidak mempunyai
bukti dan urutan peristiwa seolah-olah sengaja direka.
Di samping itu, terdapat pula tanda-tanda bahawa wujud golongan tertentu
yang mungkin mempunyai agenda tersendiri dan memain peranan di belakang
tabir menggalakkan UMMI HAFILDA ALI dan AZIZAN ABU BAKAR untuk
memburuk-burukkan YAB Dato' Seri ANWAR IBRAHIM. Salah seorang
daripadanya ialah MUHAMAD TAIB yang dikatakan mendakwa dirinya sebagai
pegawai SB kepada YAB Perdana Menteri. MUHAMAD TAIB dikenalpasti sebagai
MOHD TAIB SALAMON, bekas Inspektor Polis yang sebenarnya telah dibuang
kerja.
5. Berdasarkan hasil siasatan setakat ini, pihak saya tidak bercadang untuk terus menghalusi kes ini.Sekian, terima kasihSaya Yang Menurut PerintahT.T. (DATO' MOHD SAID BIN AWANG) CP PENGARAH CAWANGAN KHAS b.p. KETUA POLIS NEGARA POLIS DIRAJA MALAYSIARAHSIA PERSENDIRIANDato'
Mohd Said said that YAB Prime Minister had not asked for the report.
He said that when exh. D25 was prepared by him his investigation had not
been completed yet and no investigation had been conducted by the
Special Branch to ascertain the truth of the allegations as contained in
exh. P14A, B and C. He prepared exh. D25 for the purpose of sending
exhs. P17 and P18 to YAB Prime Minister.
He said that he suggested in exh. D25 that the investigation be stopped
in view of exhs. P17 and P18. The information from the other sources
referred to in exh. D25 was not verified.
Exhibits P17 and P18 formed the primary basis of exh. D25. The
investigation was then stopped by the Special Branch suddenly.
At about 10pm on the same day Dato' Mohd Said went with Dato' Amir Junus
to the accused's Official Residence to inform him that he had handed
the letters to YAB Prime Minister.
On 27 August 1997 Dato' Amir
Junus informed Dato' Mohd Said that the accused wanted to see them after
having received this instruction from ASP Zull Aznam.
They went to the accused's Official Residence at about 10pm.
The accused directed them to get another letter each from Ummi and
Azizan.
Dato' Amir Junus said that the instruction from the accused was that the
letters were to be in the form of public statements.
They were to be more committed, convincing and firm and must deny and
withdraw all the allegations contained in exh. P14A, B and C. The
accused wanted the letters to fully declare that he was not involved in
any sex scandal.
The letters were to be open letters without being addressed to anybody
and were to be posted to his office.
Dato' Amir Junus kept a note of this meeting.
It is exh. P47 and reads as follows:
RAHSIA BESAR/CICERONOTA FAILBilangan: HQ/LF/T.PCK II (C) Tarikh: 28 OGOS 97SURAT PENGAKUAN UMMI HAFILDADAN AZIZAN ABU BAKARPada
malam 27 OGOS 97 Dato' PCK dan saya telah diarahkan oleh Dato' Seri
ANWAR IBRAHIM supaya pergi ke kediaman beliau untuk berbincang mengenai
pengakuan UMMI HAFILDA dan AZIZAN.2. Semasa perbincangan ini, Dato' Seri ANWAR telah menyatakan rasa tidak puashatinya dengan pengakuan kedua-dua mereka.
Menurut beliau surat pengakuan mereka tidak cukup kukuh dan kurang menyakinkan.
Dalam hubungan ini, Dato' Seri ANWAR secara khusus telah mengarahkan supaya:-2.1.
UMMI HAFILDA dan AZIZAN ABU BAKAR digesa membuat surat pengakuan lain
yang lebih komited dan menyakinkan dengan menafikan secara terus terang
tuduhan-tuduhan terhadapannya;2.2. Tindakan diambil bagi menentukan kedua-dua mereka dengan tegas menarik balik kesemua tuduhan yang dibuat terhadap beliau;2.3.
Apabila pengakuan baru ini telah diperolehi, pengakuan mereka hendaklah
dihantar kepada beliau melalui pos ke pejabat Timbalan Perdana Menteri.T.T. (AMIR BIN JUNUS) A/SAC I T/PCK II AJ/MKHI RAHSIA BESAR/CICERODato' Amir Junus clarified that his reference to a confession in the note is the public statement.
On
28 August 1997 Dato' Mohd Said and Dato' Amir Junus directed ACP Mazlan
to get the public statements from Ummi and Azizan as wanted by the
accused. ACP Mazlan was informed by Dato' Mohd Said that the accused was
not satisfied with exhs. P17 and P18. ACP Mazlan then arranged for a
meeting with Azizan on the same night at about 8.30pm at the Kelab Golf
PDRM Titiwangsa.
At the meeting ACP Mazlan noticed that Azizan appeared pressured and
frustrated. ACP Mazlan took about two hours to persuade and win over
Azizan's heart to make him write the letter.
Azizan then agreed to write the letter of total denial. ACP Mazlan
informed Dato' Amir Junus who came to the club to see for himself the
letter of denial.
Having read the letter Dato' Amir Junus telephoned the accused through
his handphone and read to him the contents of the letter. ACP Mazlan saw
Dato' Amir Junus making some alterations to the letter.
Dato' Amir Junus said that the accused made some amendments to the
letter.
Amongst the amendments required by the accused were that the word
"denial" must be inserted in one of the paragraphs and it must also
state that Azizan never made the sworn declaration.
Dato' Amir Junus then handed the letter with the amendments to ACP
Mazlan and instructed him to ask Azizan to rewrite the letter.
Azizan was disappointed and after having first refused later agreed to
write the letter as requested.
The handwritten letter of Azizan is exh. P19. The letter was then typed
and it was signed by Azizan.
It is exh. P20 and reads as follows:
KENYATAAN UMUM OLEHAZIZAN B. ABU BAKARK/P NO: 5980324Bahawa
saya Azizan bin Abu Bakar mengaku tidak pernah menulis Pengakuan
Bersumpah yang bertarikh 5/8/97 yang telah disebarkan baru-baru ini.Segala apa yang terkandung di dalam surat tersebut adalah semata-mata fitnah belaka.
Saya
terpaksa menjelaskan di sini, sebab nama saya telah dibabitkan sebagai
penulis surat tersebut oleh orang/orang-orang yang tidak
bertanggungjawab semata-mata untuk tujuan politik.Saya merasa kesal di atas apa yang telah berlaku dan berharap dengan penjelasan ini dapat memperbetulkan keadaan.Yang benar, T.T. Azizan b. Abu Bakar K/P: 5980324On
29 August 1997 ACP Mazlan handed over the letter to Dato' Amir Junus
who then instructed ACP Mazlan and DSP Aziz to get a similar letter from
Ummi as the accused was not satisfied with exh. P18. ACP Mazlan met
Ummi for this purpose at Room No. 1426, Hotel Pan Pacific on the same
day at 10.20am with DSP Aziz and woman constable Noraini bt Abdullah.
They explained to her the instructions that they had received from Dato'
Amir Junus. ACP Mazlan said that they faced a big problem in getting a
denial letter from Ummi as she is a person of strong character.
They spent about five hours trying to persuade her to write the letter.
In order to get her to write the letter they told her to make a public
statement of denial in the mass media knowing that she might agree to
something lesser.
She refused to do that and at one time cried.
Finally she agreed to write the letter.
The letter that she wrote was then taken to Dato' Mohd Said and Dato'
Amir Junus for their perusal.
Dato' Amir Junus rang up the accused
and read the letter to him in order to ensure that it was in accordance
with what he had wanted.
The accused directed certain amendments to be made which were done
accordingly.
The handwritten letter of Ummi is exh. P29. It reads as follows:
Kenyataan Umum OlehUmmi Hafilda binti AliI/C No A0793275Saya
dengan ini ingin membuat satu kenyataan umum berhubung dengan laporan
yang telah dikemukakan kepada YAB Perdana Menteri bertarikh 5hb Ogos
1997 mengenai Perihal Salahlaku Timbalan Perdana Menteri.Saya
mengakui keterlanjuran telah berlaku di dalam beberapa pendakwaan yang
dikemukakan di mana didapati beberapa fakta tersebut tiada asas yang
boleh menjurus kepada tohmahan dan fitnah bagi pihak yang tertuduh.Kekeliruan
dan kekecohan telah berlaku di mana saya dapati ada pihak-pihak
tertentu yang tidak bertanggungjawab telah cuba mengeksploitasikan dan
mengeruhkan lagi keadaan dengan pelbagai surat layang yang rata-ratanya
berbau fitnah bagi tujuan politik mereka.
Saya ingin
menafikan sekeras-kerasnya bahawa saya terbabit dalam penerbitan
surat-surat layang yang timbul selepas tarikh 5hb Ogos 1997.Rentetan
dari peristiwa tersebut, kekesalan timbul pada diri saya di mana tanpa
disedari pelbagai implikasi telah timbul, di antaranya kestabilan
politik negara juga turut terjejas.
Saya menyesali di atas apa yang berlaku dan mengaku akan membetulkan keadaan supaya isu ini tidak berlanjutan.Oleh
itu saya ingin mengambil kesempatan melalui pengakuan terbuka ini untuk
memohon maaf di atas keterlanjuran tersebut dan saya merayu kepada
pihakpihak yang berkepentingan supaya menghentikan segera spekulasi ini
yang telah pun menular ke seluruh negara supaya isu ini dapat dihentikan
demi kepentingan parti dan negara.Yang benarT.T. UMMI HAFILDA BINTI ALI I/C No: A0793275 Tarikh: 29hb Ogos 1997The letter as amended was typed and was taken back to Ummi.
She was not satisfied with it. However, after some persuasion she agreed to sign it. It is exh. P22 and reads as follows:
KENYATAAN UMUM OLEHUMMI HAFILDA BINTI ALII/C NO. A 0793275Saya
mengakui keterlanjuran telah berlaku didalam tuduhan yang dikemukakan
kepada YAB Perdana Menteri di mana didapati aduan tersebut tiada berasas
sama sekali dan boleh menjurus kepada tohmahan dan fitnah bagi
individuindividu berkenaan.Kekeliruan dan kekecohan telah
berlaku di mana saya dapati ada pihak-pihak tertentu yang tidak
bertanggungjawab telah cuba mengeksploitasikan keadaan dengan pelbagai
surat layang dan mengaitkan nama saya yang rata-ratanya berbau fitnah
bagi tujuan politik mereka.
Saya ingin menafikan
sekeras-kerasnya bahawa surat-surat yang diedarkan yang kononnya di
tandatangan oleh saya bukanlah surat saya kepada YAB Perdana Menteri
tetapi telah direka oleh orang-orang tertentu.Saya menyesali diatas apa yang berlaku dan mengaku akan membetulkan keadaan supaya isu ini tidak berlanjutan.Oleh
itu saya ingin mengambil kesempatan melalui pengakuan terbuka ini untuk
memohon maaf diatas keterlanjuran tersebut dan saya merayu kepada
pihakpihak yang berkepentingan supaya menghentikan segera fitnah ini.Yang Benar,T.T. UMMI HAFILDA BINTI ALI I/C NO: A 0793275 Tarikh: 29 hb. Ogos, 1997.She was also asked to write a covering letter to the accused which she did.
It is exh. P21 and reads as follows:
29hb Ogos 1997Dato' Sri Anwar Ibrahim Timbalan Perdana Menteri Jabatan Perdana Menteri Jalan Dato' Onn Kuala LumpurPenjelasan UmumMerujuk kepada perkara di atas, bersama-sama ini disertakan dengan penjelasan mengenai pengakuan umum yang dilampirkan.
Saya memohon maaf di atas kesulitan yang timbul berhubung perkara berbangkit.Sekian.
Terima Kasih.Yang Benar, T.T. UMMI HAFILDA BT ALIACP
Mazlan then handed both the letters to Dato' Amir Junus who put them in
an envelope addressed to the accused.
He gummed it and placed a stamp on it. He then handed it to ASP Abdul
Aziz bin Hj. Ahmad to have the stamp cancelled at the Post Office.
This instruction was carried out. ASP Abdul Aziz was not cross-examined.
Dato' Amir Junus said that this was done to show that the envelope had
been posted to the office of the accused through the post office.
On 29 August 1997 Dato' Mohd Said and Dato' Amir Junus went to the
accused's Official Residence to hand over the letters written by Ummi
and Azizan.
The accused opened the envelope and read the letters.
He was satisfied with them.
It is of interest to note that exhs.
P20, P21 and P22 carry the Received Rubber Stamp of the Deputy Prime
Minister's Office.
Suhaime bin Yunus who is in charge of receiving letters in the Deputy
Prime Minister's Office said that the Received Rubber Stamp that he puts
on letters received are the same as on exhs. P20, P21 and P22. When he
stamps a letter he puts a number within it. Exhibits P20, P21 and P22 do
not have any number on the stamp.
He also records the letters he receives in a register.
He produced exh. P34 which is a certified copy of the register for 30
August 1997.
Exhibits P20, P21 and P22 are not recorded there.
He concluded that he did not receive these letters on 30 August 1997 and
was not cross-examined.
On 30 August 1997, SAC Musa and the
Director of CID, Dato' Ismail Che Ros, met the accused at his request.
Tan Sri Mohtar Abdullah, the Honourable Attorney General, was also
present.
The accused asked SAC Musa about the investigation being carried out on
exh. P15. SAC Musa said that the police would carry out a detailed
investigation to ascertain if the allegations made were true or not and
that the investigation was still at an early stage and not completed
yet.
The accused said that the matter need not be investigated as it was
contrary to YAB Prime Minister's decision that the matter had been
settled and that it was a slander.
The accused said that he did not want any action to be taken against
Ummi and Azizan.
On 2 September 1997 SAC Musa informed ASP Zull
Aznam to get ready Azmin, Shamsidar, Dato' Nallakaruppan, Aton and ASP
Zull Aznam himself for the purpose of recording their statements.
His purpose was to find out their relationship and any other statement
they may wish to make.
When he told
ASP Zull Aznam his purpose for wanting to record
their statements ASP Zull Aznam said that he will contact him.
On the same day at 11.50am SAC Musa received a phone call from Azmin
saying that the accused wanted to see him at his office. SAC Musa met
the accused at 12.20pm at the Prime Minister's Department.
At the meeting the accused asked SAC Musa what was the use of him
recording statements from the witnesses as Ummi and Azizan had written
letters to him denying their allegations of sexual misconduct and sodomy
against him. SAC Musa replied that he wanted to record their statements
in order to complete his investigation before submission to the
Attorney General.
The accused then gave him exhs. P20, P21 and P22 and instructed him to
stop the investigation. SAC Musa then reminded the accused of the
Attorney General's instructions that all investigations on government
officers and leaders have to be forwarded to him.
When this procedure was explained to the accused he instructed SAC Musa
not to send the investigation papers to the Attorney General. SAC Musa
then left taking with him exhs. P20, P21 and P22. In his office SAC Musa
went through these documents together with exhs. P17 and P18.
On 3
September 1997 SAC Musa discussed his investigation with Dato' Ismail
Che Ros and showed him the documents that he had gone through.
They decided to send the investigation papers to the Honourable Attorney
General with a recommendation that no further action be taken on the
case.
At that stage the investigation was not completed yet.
Statements had not been recorded from Azmin, Shamsidar, Aton, Dato'
Nallakaruppan and ASP Zull Aznam. SAC Musa said that the documents
influenced him to close the case.
At that time he did not know how they were prepared by Ummi and Azizan
nor that the Special Branch was involved in their preparation.
On 8 September 1997 SAC Musa met the Honourable Attorney General to
brief him on his investigation into exhs. P16 and P14A, B and C and
showed him exhs. P17, P18, P20, P21 and P22. He suggested that no
further action be taken in the investigation.
After reading the exhibits the Honourable Attorney General agreed. SAC
Musa said that without these documents he would have carried out a more
thorough investigation into exhs. P16 and P14A, B and C. He also said
that if he had found that the allegations were true he would have
proposed that the accused be prosecuted.
He said that he found out about the involvement of the Special Branch in
obtaining exhs. P17, P18, P20, P21 and P22 while investigating into P56
which was made on 19 June 1998 - the report on Buku 50 Dalil.
He had interviewed Ummi, Azizan, Dato' Mohd Said, Dato' Amir Junus, ACP
Mazlan and DSP Aziz and had found out about the involvement of the
Special Branch in the preparation of exhs. P17, P18, P20, P21 and P 22.
Dato'
Mohd Said said that directions were given to them by the accused to
obtain the retractions.
He said that he had to follow the instructions given by the accused as
he was the Deputy Prime Minister and not any ordinary person.
He said that he could not have refused it and had no choice.
Thus he felt compelled to carry out the instructions.
He said that he continued to direct his officers to neutralise Ummi and
Azizan notwithstanding the fact that there were some difficulties in
doing so as the direction that he had received was from the Deputy Prime
Minister.
Dato' Amir Junus said that he obeyed the instructions given by the
accused as he was the Deputy Prime Minister as well as the Minister of
Finance.
He added that if the accused was an ordinary man he would not have
obeyed the instructions.
In obtaining the letters both ACP Mazlan and DSP Aziz were carrying out
the instructions of Dato' Mohd Said and Dato' Amir Junus.
The Submissions Of Parties At The Close Of The Case For The Prosecution
I
shall deal with a major part of the submission of the parties and my
response thereto now while some other features of the submission will be
highlighted in the context of the relevant parts of the judgment as it
progresses.
(i) The Standard Of Proof On The Prosecution At The Close Of Its Case
In
contending that the standard of proof on the prosecution at the close
of its case is beyond reasonable doubt the defence conceded that this is
governed by s. 180 of the Criminal Procedure Code which reads as follows:
180(1) When the case for the prosecution is concluded, the court shall consider whether the prosecution has made out aprime facie case against the accused.(2) If the court finds that the prosecution has not made out a prima facie case against the accused, the court shall record an order of acquittal.(3) If the court finds that a prime facie
case has been made out against the accused on the offence charged the
court shall call upon the accused to enter on his defence.It was argued that the phrase"prima facie"
which has not been defined in the section means "beyond unreasonable
doubt". In support of this argument the defence referred to Munusamy v. PP
[1987] 1 CLJ 250; [1987] 1 MLJ 492 where it was held that if an accused
person remains silent after the court has ruled that there is a prima facie
case he must be convicted.
As the trial could end at that stage the proof required at the close of
the case for the prosecution is beyond reasonable doubt.
The result, as contended, is that the court must as of necessity
evaluate the evidence of the prosecution witnesses at that stage on a
maximum evaluation of credibility and reliability.
It was submitted that this court is bound by the judgment of the Court
of Appeal in Lt Kol Yusof bin Abdul Rahman v. Kol Anuar bin Md Amin [1997] 2 CLJ 752; [1997] 1 MLJ 562.
The
standard of proof on the prosecution at the end of its case has been
subject to some judicial controversy culminating in amendments to the
Criminal Procedure Code in this area of the law.
In Lt Kol Yusof bin Abdul Rahman v. Kol Anuar bin Md Amin [1997] 1 MLJ 562 Mahadev Shankar JCA in speaking for the Court of Appeal reviewed cases such as Haw Tua Tau v. PP [1981] 1 CLJ 123; [1981] 2 MLJ 49, Arulpragasan a/l Sandaraju v. PP [1996] 4 CLJ 597; [1997] 1 MLJ 1, Junaidi bin Abdullah v. PP [1993] 4 CLJ 201; [1993] 3 MLJ 217, Khoo Hi Chiang v. PP
[1994] 2 CLJ 151; [1994] 1 MLJ 265 and the proposed amendments to the
Criminal Procedure Code at its Bill stage which has now become law and
said at pp. 575-576:
Standing by itself, the term 'prima facie' means 'at first sight'. But a 'prima facie'
case means a case has proceeded to that stage where it is regarded as
proved because the evidence led supports such a finding if evidence to
the contrary is disregarded.See Black's Law Dictionary (4th edn) which goes on to say:A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie
case then, is one which is established by sufficient evidence, and can
be overthrown only by rebutting evidence adduced on the other side.This definition is no different from that contained in Mozley and Whiteley's Law Dictionary (11th edn, 1993) which reads (at p. 208):A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie
case, then, is one which is established by sufficient evidence, and can
be overthrown only by rebutting evidence adduced by the other side.With the greatest respect to all concerned, we think that the implications of what constitutes 'a prima facie case' in a jury trial and a trial in which a judge is sitting alone are quite different.
The omission to appreciate this appears to have resulted in the importation of judicialdicta from jury trials in Commonwealth countries which has only served to cloud the real issues in Malaysia.Where a judge is sitting with a jury, what he considers to be a prima facie case is of necessity circumscribed by his limited role on the issue as to whether there is evidence to go to the jury (see R v. Galbraith [1981] 73 Cr APP r 124 referred to by Edgar Joseph Jr SCJ in Khoo Hi Chiang [1994] 1 MLJ 265 at p 290). The relevant passage in this judgment is set out in full in his
judgment in Arulpragasan at p 43). The equation of such a duty to a judge sitting alone as though aprima facie case meant the same thing in a summary trial is not correct in the Malaysian context.And at pp. 577-578:
To
put it another way, what the court is concerned with at the close of
the prosecution's case is the probative force of the prosecution's
evidence.
Taken in its totality, its force must be sufficient (if no further
evidence is adduced to the contrary) to induce the court to believe in
the existence of the facts stated in the charge or to consider its
existence so probable that a prudent man ought to act upon the
supposition that those facts existed or did happen.
This exercise cannot be postponed to the end of the trial.The
law requires the court to carry it out then and there whether or not
the submission is made and before the court announces its decision to
call for the defence.In summary trials, therefore, establishing a prima facie
case is simply just another way of saying that the prosecution evidence
at its close must be such as would, if unrebutted, warrant the
conviction of the accused.
However, for the benefit of those who see more in Haw Tua Tau
than they should, this does not mean that a conviction should
automatically follow if the defence is called.
That will happen if the defence calls no evidence at all to rebut the
prosecution case, and does nothing before the end of the trial to
dissuade the court from the view it has taken.
In other
words, calling for the defence is not of itself a pronouncement of guilt
or a conviction but a ground for proceeding with the next stage of the
case when it becomes the accused's obligation to tip the scales of
justice back in his favour.The degree of proof required to establish a prima facie
case is easiest demonstrated by asking ourselves what the court should
do after the defence is called, if the accused elects to remain silent,
calls no evidence, and cannot come up with any good reason why the
earlier conclusion was wrong, eg, by bringing new authorities which take
a different view of the law or pointing out some inherent weaknesses in
the prosecution case he may have overlooked earlier.
Thus unqualified, and unrebutted the court has to convict on the very
same material.
Nobody would dare suggest as a matter of prudence that the degree of
proof required at this stage is not proof beyond all reasonable doubt.
Nobody has yet satisfactorily explained why it should be any different
at the close of the case for the prosecution in a summary trial.
Each state (sic) calls for the decision by the judge or magistrate of a legal issue which only predicates that degree of certainty required by s. 3 of the Evidence Act.Consequently,
it is the opinion of this court that merely because some parts of the
prosecution evidence support the charge, the defence should not be
called regardless of the state of the rest of the evidence.
The court must make an assessment of the prosecution evidence as a whole
and must acquit if it cannot accept the prosecution's case because it
cannot be believed (or is not credible - it means the same thing) by
reason of material contradictions or for any other reasons.
What emerges from this illuminating judgment is clear.
The meaning of a "prima facie" case in s. 180(1) of the Criminal Procedure Code must be understood in the context of a non-jury trial. A prima facie
case arises when the evidence in favour of a party is sufficiently
strong for the opposing party to be called on to answer.
The evidence adduced must be such that it can be overthrown only by
rebutting evidence by the other side.
Taken in its totality the force of the evidence must be such that, if
unrebutted, it is sufficient to induce the court to believe in the
existence of the facts stated in the charge or to consider its existence
so probable that a prudent man ought to act upon the supposition that
those facts existed or did happen.
As this exercise cannot be postponed to the end of the trial a maximum
evaluation of the credibility of witnesses must be done at the close of
the case for the prosecution before the court can rule that a prima facie
case has been made out in order to call for the defence.
Be that as it may, I am unable to agree with the defence submission that
this means that the prosecution must prove its case beyond reasonable
doubt at that stage. A case can be said to have been proved beyond
reasonable doubt only upon a consideration and assessment of all the
evidence (see Canadian Criminal Evidence 3rd edn by PK McWilliams
QC para 39:10000). It must be observed that in a criminal trial if the
defence raises a reasonable doubt as to the truth of the prosecution
case or as to the accused's guilt there will be an acquittal, and if no
such doubt is raised, a conviction (see Mah Kok Cheng v. R [1953]
MLJ 46). This evidential burden may be discharged by the defence either
in the course of the prosecution case or in the course of its own case
(see Wong Chooi v. PP [1967] 2 MLJ 180). It follows that a case
cannot be said to have been proved beyond reasonable doubt until the
accused has concluded his case. A trial is said to be concluded when the
accused, after he has been called upon to enter his defence, either
elects to remain silent or gives a statement from the dock or gives
evidence on oath.
If the accused elects to remain silent and fails to show why the finding
of prima facie case is wrong for any reason the case will be
said to have been proved beyond reasonable doubt as the accused will
have no more opportunity of raising a reasonable doubt.
Where the accused gives a statement from the dock or gives evidence on
oath the court will have to consider all the evidence before it. If the
court is satisfied that no reasonable doubt has been raised in that
exercise the case will similarly be said to have been proved beyond
reasonable doubt.
This accords with the new s. 182A of the Criminal Procedure Code
which provides that at the conclusion of the trial, the court shall
consider all the evidence adduced before it and shall decide whether the
prosecution has proved its case beyond reasonable doubt.
Thus a prima facie case as prescribed by the new s. 180(1) of the Criminal Procedure Code must mean a case which if unrebutted would warrant a conviction.(ii) Whether Only Two Charges Should Have Been Preferred Against The Accused
In
submitting that only two charges ought to have been preferred against
the accused the defence contended that the first and the third charges
should have been the basis of one charge and the second and fourth
charges of the other.
However, no reasons were advanced in support of the argument apart from a
mere statement to that effect.
It is probably anchored on the similarity of the factual matrix of the
two sets of charges in that the manner in which the accused used his
position and the advantage he obtained thereby are the same.
This submission is answered by s. 165(1) of the Criminal Procedure Code
which provides that if in one series of acts so connected together as
to form the same transaction more offences than one are committed by the
same person, he may be charged with and tried at one trial for every
such offence.
Illustration (b) to the section is a good example of how the section
operates.
It reads as follows:
A has in his possession several
seals, knowing them to be counterfeit, and intending to use them for the
purpose of committing several forgeries punishable under section 446 of
the Penal Code. A may be separately charged with and convicted of the
possession of each seal under section 473 of the Penal Code.The test in determining whether two or more acts constitute the same transaction was laid down in the Indian case of Amrita Lal Hozra v. Emperor 42 Cal 957 in the following words:
It
is not possible to frame a comprehensive formula of universal
application to determine whether two or more acts constitute the same
transaction; but circumstances which must bear on the determination of
the question in an individual case may be easily indicated: they are
proximity of time, unity or proximity of place, continuity of action and
community of purpose.This test has been approved and applied in cases such as Jaafar bin Hussain v. PP [1950] MLJ 154; Chin Choy v. PP [1955] MLJ 236; Cheong Sik Kwan v. PP [1959] MLJ 189 and PP v. Ridwan Kok bin Abdullah [1996] 2 CLJ 346; [1995] 2 MLJ 745.
In
this case there can be no dispute that there was proximity of time,
unity or proximity of place, continuity of action and community of
purpose in respect of the charges.
The events in respect of all the charges took place from 12 August 1997
to 3 September 1997.
All the denial letters were obtained in a continuous series of acts for
the purpose of having the allegations retracted.
However, the transaction reveals more offences than one.
The allegations were made by two separate persons in respect of two
separate matters.
The letters of denial were obtained from them on separate occasions and
served separate purposes.
Each of the acts referred to in the four charges therefore form a
separate offence in respect of which separate charges can lawfully be
preferred as done. I was therefore unable to agree with the submission
advanced.
(iii) Whether A Police Report Must Be Lodged To Commence An Investigation
It
was contended by the defence that until now no police report has been
lodged against the accused in respect of any abuse of power or
corruption.
It was argued that a police report must be lodged in respect of any
crime in order to facilitate a proper police investigation and that
there cannot be an investigation into an alleged crime without a
complaint.
The defence referred to the police reports marked as exhs. P16 and P56
and said that they are not complaints against the accused. P16 was made
by ASP Zull Aznam on behalf of the accused on the advice of Dato' Mohd
Said and Dato' Amir Junus. P56 is a complaint of criminal defamation
against the author of Buku 50 Dalil and was lodged by Azmin on behalf of
the accused.
In reply the prosecution said that SAC Musa testified that the
investigation into the offences with which the accused has been charged
was as a result of exh. P56. SAC Musa classified this report under s. 499 of the Penal Code
for an offence of criminal defamation and said that it is normal
procedure for the police to ascertain the truth or otherwise of the
allegations in complaints of this nature.
The prosecution concluded by saying that it is not unusual for a person
who makes a report for himself to be charged when the investigation into
the report made by him necessitates that course of action.
I
agree with the submission of the prosecution that a person who makes a
report on a matter may himself be charged as a result of investigation
conducted by the police on the report.
Such a course of action is not prohibited by s. 107(1) of the Criminal Procedure Code which deals with information relating to the commission of an offence.
The section reads as follows:
Every information relating
to the commission of an offence, if given orally to an officer in charge
of a police station, shall be reduced to writing by him or under his
direction and be read over to the informant.The section
merely relates to the giving of information about the commission of a
crime and does not in any way prescribe the persons to be charged
following the investigation. A report lodged pursuant to the section
will be the basis upon which the police will commence their
investigation.
The word "information" in the section means something in the nature of a
complaint or accusation or at least information of a crime, given with
the object of putting the police in motion in order to investigate, as
distinguished from information obtained by the police when actively
investigating a crime (seeMallal's Criminal Procedure 5th edn
paras 4152 and 4154). As the object of the section is merely to activate
the investigative function of the police it does not mean that a person
who makes a report cannot himself be charged if the investigation
reveals an offence against him.
Furthermore, the section does not say that there can be no investigation
without a report.
It has been held by the Privy Council that the receipt and recording of a
report is not a condition precedent to the setting in motion of a
criminal investigation and that there is no reason why the police, if in
possession through their own knowledge or by means of credible though
informal intelligence which genuinely leads them to the belief that a
cognizable offence has been committed, should not of their own motion
undertake an investigation into the truth of the matters alleged (seeEmperor v. Khwaja Nazir Ahmad
AIR [1945] PC 18). It has also been held that a police report is not a
condition precedent for the commencement of a criminal prosecution (see Apren Joseph v. State of Kerala AIR [1973] SC 1; Herchun Singh & Ors v. PP [1969] 2 MLJ 209). I also refer to PP v. Foong Chee Cheong [1970] 1 MLJ 97 where Gill J (as he then was) said at pp. 97-98:
However
important a document a first information report is, it can never be
treated as a piece of substantive evidence and the fact that no first
information report was made is not in itself a ground for throwing out a
case.
The powers of the police to investigate do not depend solely on Chapter
XIII of the Criminal Procedure Code.
The duties of a police officer as set out in section 20 of the Police
Act, 1967 include apprehending all persons whom he is by law authorised
to apprehend and these duties are amplified in section 23 of the
Criminal Procedure Code.Most of these duties
imply a power to investigate whether there has been an information under
section 107 of the Criminal Procedure Code or not. (See Vellasamy V. Rex [1941] 1 LNS 96.)I
therefore held that the investigation and prosecution of the accused
based on exhs. P16 and/or P56 is valid in law.
In any event there is no requirement that such investigation and
prosecution must be based on a police report with the result that the
action instituted against the accused is valid in law notwithstanding
the absence of a police report against him.
(iv) Evidential Value Of The Accused's Cautioned Statement At The Close Of The Case For The Prosecution
On 27 September 1998 the accused made a cautioned statement (exh. D72) which was tendered in evidence by the defence.
The material parts of it read as follows:
S Adakah Dato' Seri faham amaran yang telah dibacakan kepada Dato' Seri?J Ya, saya faham.
S Adakah Dato' Seri ingin menanya apa-apa berkaitan dengan amaran tersebut?J
Saya ingin menegaskan bahawa saya seharusnya berhak menemui peguambela
segera memandangkan pertuduhan-pertuduhan yang begitu banyak terhadap
saya.
Saya juga bimbang keadaan fisikal saya lebih-lebih
lagi setelah dipukul sebaik sahaja saya dimasukkan ke-dalam lokup Bukit
Aman pada malam Isnin yang lalu.S Adakah Dato'
Seri mengarahkan beberapa pegawai Polis untuk menutup kes Dato' Seri
berhubung surat layang yang disiasat oleh polis?J Tidak.S Adakah Dato' Seri ingin menambah apa-apa atau meminda apa-apa didalam kenyataan ini?J Tidak.It was the contention of the defence that the court should consider the cautioned statement as it is evidence pursuant to s. 113 of the Criminal Procedure Code.
The
law relating to the evidential value of a cautioned statement which is
exculpatory, as the cautioned statement of the accused in this case is,
is well settled.
In Pendakwa Raya v. Mansor bin Mohd Rashid [1997] 1 CLJ 233;
[1996] 3 MLJ 560 Chong Siew Fai CJ (Sabah and Sarawak) in writing for
the Federal Court referred to a plethora of authorities such as PP v. Adetunji Adeleye Sule [1993] 2 MLJ 70, PP v. Chan Kim Choi [1989] 1 MLJ 404 and R v. Storey and Anwar [1968] 52 Cr App R 334 and said at pp. 575-576:
In
relation to the use of the exculpatory statement of the first
respondent (D25), we note that the learned trial judge had used the
statement to conclude that Amran occupied room 'K' in the house.
Learned counsel for the first respondent had also submitted before us
that the first respondent's statement, D25, showed that he (the first
respondent) did not negotiate nor did he ask the second respondent to
buy the cannabis.With respect, we are of the view
that the approach was wrong. A purely exculpatory or self-serving
statement is not evidence of the facts stated though it may be admitted
to show the reaction or attitude of the accused at the time when he made
it. And in considering whether there is a case to answer, the trial
judge ought not take into account such a statement as the basis for
founding an order of acquittal and discharge.As Edgar Joseph Jr FCJ explained in PP v. Adetunji Adeleye Sule
[1993] 2 MLJ 70 a cautioned statement which is wholly exculpatory
should not be made the foundation of an order of acquittal especially at
the close of the case for the prosecution, since at that stage the
accused not having given evidence himself, his explanation could not be
tested by cross-examination.
It is therefore clear that the
cautioned statement made by the accused cannot be made the foundation of
an order of acquittal at the close of the case for the prosecution.
It may warrant consideration at the end of the trial when the accused
has adduced evidence.
(v) The Effect Of Carrying Out Investigation Into The Case After The Accused Was Charged
The defence argued that in this case the investigation was not complete when the accused was charged.
Reference was made to PP v. Tan Kim San [1980] 2 MLJ 98 to say that this is wrong in law.
I
agree that in normal circumstances an investigation should be complete
before a person is charged.
It would surely be wrong to commence a prosecution without any
investigation at all on the material ingredients to be proved.
Where such investigation has been carried out I do not see any
illegality with the police carrying out further investigation to suit
the exigencies of a case as it unfolds itself once the trial has
commenced.
In this case the evidence of SAC Musa makes it clear that the police had
recorded the necessary statements from the witnesses between June and
September 1998.
That was before the accused was charged in court.
The further investigation conducted by SAC Musa was with regard to the
DNA tests which have now been expunged and the recording of some further
statements.
Though the evidence relating to the DNA tests is no longer relevant SAC
Musa explained that the delay in conducting this investigation was due
to difficulties in obtaining blood samples from the accused.
The recording of statements from MaAmin and Rahim King after the trial
commenced is not unreasonable as their role assumed prominence only when
exhs. D55 and D90 were tendered by the defence. I was therefore unable
to say with confidence that the prosecution charged the accused first
and investigated later.
When he was charged the necessary investigation had been carried out.
It cannot therefore be said that the investigation was not complete when
the accused was charged.
In any event, the court is not concerned with when and how evidence was
obtained but only with its admissibility (see Ng Yin Kwok v. PP [1989] 3 MLJ 168).
(vi)
Whether It Is Permissible For A Witness To See His Statement Given To
The Police Under Section 112 Of The Criminal Procedure Code Before
Giving Evidence
In this case ACP Mazlan had given a statement to the police.
On being asked in cross-examination about this statement he said:
Kalau saya ta' silap I gave a statement under section 112 CPC sometime early September or end of August tahun ini.
Saya ada satu salinan statement itu.
Pegawai penyiasat memberi satu salinan kepada saya.In objecting to the statement having been given to ACP Mazlan the defence said this:
The
evidence of PW1, PW2, PW7 and PW11 beats an IBM computer in its
details.
Is it humanly possible to remember such exact details as to the time and
conversations? It is submitted that the evidence of the said witness in
such exact and minute details is impossible and incredible.
It is submitted that they must all be coached to give such detailed
evidence.See: PP v. Datuk Harun bin Idris [1977] 1 MLJ 15, 19.The
secret was revealed when SP7 said that he was given his 112 CPC
statement by the investigating officer.
The investigating officer Musa (PW13) denied giving any 112 CPC
statement to witnesses.
He said 112 CPC statements are privileged.
If PW7 had his 112 CPC statements, why should not all the other
prosecution witnesses be given 112 CPC statements so that they can
follow their 112 CPC statements and give 'coached' evidence.
See: Moomin bin Seman v. PP [1993] 3 MLJ 282.
The giving of 112 CPC statements also renders nonsensical the provisions of s. 159 of the Evidence Act 1950.
No wonder the exact details are too good to be true.
See: Dato' Mokhtar Hashim v. PP [1983] 3 MLJ 232.This
submission, couched in language in the way it was advanced, could have
been better articulated with a more legal undertone.
Be that as it may, the principal argument of the defence is that the
statement should not have been shown to the witness as it violates s.
159 of the Evidence Act 1950 following its interpretation in Moomin bin Seman v. PP
[1993] 4 CLJ 61; [1993] 3 MLJ 282.
In that case Richard Tallalla J held that the giving of a police
statement to a witness before he gives evidence has the effect of
negating ss. 159 and 160 of the Evidence Act 1950.
In so ruling his Lordship declined to follow cases such as R v. Richardson [1971] 2 All ER 773 and Lim Hong Yap v. PP [1978] 1 MLJ 154.
In the latter case Wee Chong Jin CJ said at p. 158:
We
agree that there can be no general rule that witnesses may not before
trial see the statements they made at some period reasonably close to
the time of the event which is the subject of the trial.Indeed
one can imagine many cases, particularly those where the material
witnesses are persons such as police officers or narcotic officers whose
daily duties consist of investigating activities of a criminal nature,
where such a role would militate very greatly against the interests of
justice.In England, inR v. Westwell [1976] 2 All
ER 812, the Court of Appeal, Criminal Division, has also held that the
fact that the prosecution has failed to inform the defence that
witnesses had seen their statements before giving evidence can be no bar
to conviction.
In our opinion the law is the same in Singapore.
I am unable to
see why the law should be any different in Malaysia.
In my opinion a police statement can be shown to a witness before he
gives evidence.
There is no legal prohibition against this.
Section 159 of the Evidence Act 1950 is confined in its operation to
contemporaneous statements and, in this case, the police statement is
obviously not a contemporaneous one.
In any event, the section is restricted in its operation to refreshing
of memory "while under examination". As Sarkar on Evidence 15th edn, vol II says at p. 2295:
But the words do not seem to debar a witness from referring to any such writing before his examination.To that extent I part company with the views expressed by Richard Tallala J in Moomin bin Seman v. PP
[1993] 4 CLJ 61; [1993] 3 MLJ 282. I pause to add that the weight of
the evidence of a witness who gives evidence after having seen his
police statement may be affected on the facts of a particular case.
In this case ACP Mazlan was not cross-examined beyond asking him whether
he had seen his statement.
The cross-examination ought to have proceeded further in order to enable
the court to determine whether the defence had been prejudiced by the
witness having seen the statement.
The other witnesses referred to by the defence were not cross-examined
as to whether they had been shown their statements. I am unable to agree
with the suggestion that they were coached based on the way they gave
evidence and on the totality of the evidence adduced.
(vii) Whether An Adverse Inference Should Be Drawn Against The Prosecution For Failure To Call Certain Witnesses
The
defence contended that an adverse inference should be drawn against the
prosecution for its failure to call as witnesses YAB Prime Minister,
the Honourable Attorney General, Tun Daim Zainuddin, Dato' Seri Megat
Junid, the IGP, Dato' Ismail Che Ros, Dato' Aziz Shamsuddin, ASP Zull
Aznam, Azmin and Shamsidar.
The provision of law that deals with the drawing of an adverse inference for failure to call a witness is s. 114(g) of the Evidence Act 1950 which reads as follows:
The
court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct, and public and private business, in their relation to the
facts of the particular case.ILLUSTRATIONSThe court may presume -205(g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;The scope of this subsection was considered by the (then) Supreme Court in Munusamy v. PP [1987] 1 MLJ 492 where Mohamed Azmi SCJ said at p. 494:
It
is essential to appreciate the scope of section 114(g) lest it be
carried too far outside its limit.
Adverse inference under that illustration can only be drawn if there is
withholding or suppression of evidence and not merely on account of
failure to obtain evidence.It may be drawn from
withholding not just any document, but material document by a party in
his possession, or for nonproduction of not just any witness but an
important and material witness to the case.It is settled
law that in a criminal trial the prosecution has a discretion, provided
that there is no wrong motive, as to whether or not to call any
particular witness and in particular has a discretion not to call in
support of its case a witness whom it does not believe to be a witness
of truth (see Khoon Chye Hin v. PP [1961] MLJ 105; Adel Muhammed El Dabbah v. Attorney General for Palestine
[1944] AC 156). There is no obligation compelling the prosecution to
call all witnesses who speak to facts which it desires to prove (see Malak Khan v. Emperor 72 IA 305). Thus the prosecution is not duty bound to call all the witnesses from whom statements may have been taken (see PP v. Teh Cheng Poh [1980] 1 MLJ 251). This accords with s. 134
of the Evidence Act 1950 which provides that no particular number of
witnesses shall in any case be required for the proof of any fact.
This section enshrines the well recognised maxim that "evidence has to
be weighed and not counted." As a general rule a court can and may act
on the testimony of a single witness though uncorroborated and one
credible witness outweighs the testimony of a number of other witnesses
of indifferent character (see Vadivelu Thevar v. State of Madras
AIR [1957] SC 614). What is significant is that the prosecution must
call the necessary witnesses to unfold the narrative upon which its case
is based.
In this regard reference may be made to the advice delivered by the
Privy Council in the celebrated case of Seneviratne v. R [1936] 3 All ER 36 where Lord Roche said at p. 48:
Their
Lordships do not desire to lay down any rules to fetter discretion on a
matter such as this which is so dependent on the particular
circumstances of each case.
Still less do they desire to discourage the utmost candour and fairness
on the part of those conducting prosecutions; but at the same time they
cannot, speaking generally, approve of an idea that a prosecution must
call witnesses irrespective of considerations of number and of
reliability, or that a prosecution ought to discharge the functions both
of prosecution and defence.If it does so
confusion is very apt to result, and never is it more likely to result
than if the prosecution calls witnesses and then proceeds almost
automatically to discredit them by cross-examination.On the type of witnesses who must be called by the prosecution Lord Roche said in the same case at p. 49:
Witnesses
essential to the unfolding of the narrative upon which the prosecution
case is based must, of course, be called by the prosecution whether in
the result the effect of their testimony is for or against the
prosecution.Thus an adverse inference for not calling a
witness cannot be drawn if there is sufficient other evidence to support
the prosecution case (see Namasiyiam & Ors v. PP [1987] 1
CLJ 540; [1987] 2 MLJ 336). No adverse inference can also be drawn when a
witness has been offered for cross-examination (see Saw Thean Teik v. R [1953] MLJ 124) or has been made available to the defence and the defence did not call the witness (see PP v. Chee Kon Fatt
[1991] 2 CLJ 2564). If a witness has been made available to the defence
there can be no suggestion, as stated by Lord Thankerton in the case of
Adel Muhammed El Dabbah v. Attorney General for Palestine [1944] AC 156, "205 that the prosecutor has been influenced by some oblique motive" (see Samsudin v. PP [1962] MLJ 405). However, where the prosecution evidence falls short of proving a prima facie case the right of not calling a witness by merely offering him to the defence will not be available (see Abdullah Zawawi v. PP [1985] 2 CLJ 2; [1985] 2 MLJ 16; PP v. Chew Yoo Choi [1990] 2 MLJ 444; Teoh Hoe Chye v. PP [1987] 1 CLJ 471; [1987] 1 MLJ 250).
I
shall now consider whether an adverse inference should be drawn against
the prosecution for its failure to call the witnesses referred to in
the submission of the defence.
YAB Prime Minister And The IGP
The
defence submitted on the materiality of these two persons based on
exhs. D25, IDD23 and IDD24. D25 is a report sent by Dato' Mohd Said to
YAB Prime Minister.
It was contended that this report stated that there were persons hiding
behind the curtain in making the allegations against the accused with an
agenda of their own and that YAB Prime Minister and the IGP are
material witnesses with regard to this report.
It was further contended that in a second report sent to YAB Prime
Minister these names were mentioned and that this could have been denied
if these two persons had been called as witnesses by the prosecution.
IDD23 is a press report where YAB Prime Minister was reported to have
said that there was no case with regard to the allegations against the
accused. IDD24 is a similar press statement by the IGP.
In my
opinion the argument raised by the defence to portray the significance
of YAB Prime Minister and the IGP as material witnesses in reliance on
the exhibits referred to has only to be stated to be rejected.
With regard to exh. D25 the material witness is its author, Dato' Mohd
Said, who was extensively cross-examined on it. If the defence wanted
further clarification on this exhibit they ought to have questioned its
maker when he was in the witness box or could even have applied to
recall him for that purpose.
That was not done.
Thus both YAB Prime Minister and the IGP would be in no position to
assist the court in answering any questions on exh. D25 as they would
have no personal knowledge of its contents.
The so-called second report was allegedly sent by Dato' Mohd Said to YAB
Prime Minister.
Dato' Mohd Said, after some lengthy questioning, said there was no such
report.
How this report can thus be considered as material when the evidence
discloses that there was no such report is beyond my imagination.
On the materiality of these two persons with regard to exhs. IDD23 and
IDD24 it must be observed that these exhibits, just as exh. D25 was, are
defence exhibits.
It is the responsibility of the defence to call the makers of the
statements in the two press reports to prove them if the reports are
considered material to its case.
Alternatively, they could have been sought to be admitted under s. 81 of the Evidence Act 1950.
It is no part of the prosecution's function to discharge the evidential
burden of the defence.
In the circumstances it was my view that the failure by the prosecution
to call YAB Prime Minister and the IGP is not fatal to its case as their
evidence is not necessary to unfold the narrative upon which the
prosecution case is based.
The Honourable Attorney General And Dato' Ismail Che Ros
It
was contended by the defence that the Honourable Attorney General and
Dato' Ismail Che Ros were material witnesses who ought to have been
called in view of the part played by them with regard to the second and
fourth charges.
They met the accused together with SAC Musa on 30 August 1997 when the
accused said that the allegations need not be investigated.
On 3 September 1997 Dato' Ismail Che Ros and SAC Musa decided to send
the investigation papers to the Honourable Attorney General with a
recommendation to take no further action on the case.
On 8 September 1997 SAC Musa met the Honourable Attorney General who
agreed to the recommendation.
It must be borne in mind that the
crux of the advantages alleged to have been obtained by the accused in
the second and fourth charges are the use of the denial letters by him.
When he handed over the letters to SAC Musa on 2 September 1997 nobody
else was present.
Thus SAC Musa is the only witness who can testify on this fact.
What happened thereafter is the action taken based on the letters.
The evidence of SAC Musa is sufficient to narrate the action taken.
Furthermore, the action taken was also not challenged by the defence.
In the circumstances the Honourable Attorney General and Dato' Ismail
Che Ros are in no position to testify on the use made by the accused of
the denial letters to save himself from any criminal action.
It was therefore my view that they were not essential to unfold the
narrative upon which the prosecution case was based.
Accordingly, they were not material witnesses who ought to have been
called.
Tun Daim Zainuddin And Dato' Seri Megat Junid
The
defence did not submit on the materiality of Tun Daim Zainuddin and
Dato' Seri Megat Junid as witnesses who ought to have been called apart
from merely mentioning their names in respect of whom an adverse
inference ought to be drawn for failure to call them as witnesses.
The burden is on the defence to show the importance of the evidence of
these two persons which it failed to discharge.
Be that as it may, the available evidence shows that their role in this
case is minimal.
Tun Daim Zainuddin merely met Ummi to listen to her complaints while
Dato' Seri Megat Junid only met Ummi on some occasions and was alleged
to have handed over a copy of exh. P14A, B and C to the IGP. As evidence
of their meeting with Ummi is not relevant to the prosecution case they
are not material prosecution witnesses.
It was therefore my view that the failure by the prosecution to call
them as witnesses is not fatal.
Dato' Aziz Shamsuddin
Dato'
Aziz Shamsuddin is the Political Secretary to YAB Prime Minister.
He is one of the persons to whom Ummi had handed exh. P14A, B and C to
be handed over to YAB Prime Minister.
According to Ummi Dato' Aziz Shamsuddin is in possession of a taped
conversation between the accused and Azizan where the accused is alleged
to have asked Azizan to deny all the allegations.
The defence contended that the taped conversation ought to have been
produced.
In my opinion Dato' Aziz Shamsuddin is not a material
witness as the handing over of exh. P14A, B and C to YAB Prime Minister
is not in issue in this case.
The alleged request by the accused asking Azizan to deny the allegations
as contained in the taped conversation, though of some importance, does
not warrant the drawing of an adverse inference against the prosecution
as it is not essential to the unfolding of the narrative upon which the
prosecution case is based.
Ummi has given oral evidence of the contents of the taped conversation.
Such oral evidence is sufficient and the tape recording is only relevant
as corroboration of the conversation.
The defence did not crossexamine Ummi to determine whether the taped
conversation could have contained anything inconsistent with her oral
evidence. I was therefore of the view that the non-production of the
taped conversation was not fatal to the case for the prosecution.
The possession of the taped conversation by Dato' Aziz Shamsuddin does
not therefore make him a material witness.
ASP Zull Aznam
The
defence contended that ASP Zull Aznam, being the maker of exh. P16, is
an important witness.
It was argued that he could have explained how and why the meetings
between the accused and Dato' Mohd Said and Dato' Amir Junus were
arranged.
Further he could have explained how and why Azizan came to see the
accused in or about June/July 1998 at his house after unsuccessfully
trying to see the accused at his office.
In my opinion ASP Zull
Aznam is not an important witness with regard to exh. P16 as he merely
made the report on behalf of the accused.
The making of the report is not disputed.
In addition there is sufficient other evidence to explain the making of
exh. P16. With regard to the contention that he could have explained why
the meetings between the accused and Dato' Mohd Said and Dato' Amir
Junus were arranged sufficient evidence has been adduced by the
prosecution on this issue.
His explanation on how and why Azizan came to see the accused in or
about June/July 1998 is not necessary as there is sufficient other
evidence on it. Azizan has given his version of the meeting.
If ASP Zull Aznam is in a position to provide an explanation for the
meeting which is contrary to the assertion of Azizan then it is for the
defence to call him as its witness, if necessary, bearing in mind the
fact that it is not the duty of the prosecution to prove the case for
the defence. I was therefore of the view that ASP Zull Aznam was not a
material witness necessary to unfold the case for the prosecution.
Azmin
The
defence contended that Azmin, being the maker of exh. P56, is an
important witness.
It was argued that he could also have given evidence about the UMNO
General Assembly in June 1998 and about the distribution at the meeting
of Buku 50 Dalil which contained a reproduction of exh. P14A, B and C.
In
my opinion Azmin is not an important witness with regard to exh. P56 as
he merely made it on behalf of the accused.
The making of the report is also not disputed.
In addition there is sufficient other evidence to explain the making of
exh. P56. His knowledge about the UMNO General Assembly in June 1998 and
the distribution of Buku 50 Dalil and its contents at that meeting are
not relevant to the issues in this case. I was therefore of the view
that Azmin was not a material witness who ought to have been called by
the prosecution.
Shamsidar
The defence
contended that Shamsidar is an important witness with regard to the
allegation of sexual misconduct made against the accused.
As I had
ruled that the truth or falsity of the allegations is not a fact in
issue her evidence is not only immaterial but also irrelevant to the
case for the prosecution.
It follows that it was not necessary for the prosecution to have called
her as a witness.
Notwithstanding what I have said thusfar I must
also point out that all the witnesses referred to by the defence in
support of its argument were made available to the defence and it
exercised its right to call all of them except the Honourable Attorney
General.
As I said earlier this precludes the application of the presumption in s. 114(g) of the Evidence Act 1950 in view of the fact that the prosecution evidence did not fall short of proving a prima facie case without them.
(viii) Media Publicity
It
was contended by the defence that the extensive reporting of the
evidence of witnesses given in this case in the media has weakened the
value of the evidence adduced.
It was pointed out that Dato' Amir Junus's evidence on the meaning of
"gempar" is an indication of this.
This objection has some
substance.
It is equivalent to a person being present in court while evidence is
being given and who is later called as a witness.
Local cases have taken the view that the fact that a witness remains in
court during the progress of a trial is no ground for refusing to allow
him to give evidence, although it may reduce the weight to be attached
to such evidence as may be given (see Edwards v. East India Co [1840] 3 Ky 6; Mohamed Nor v. PP [1939] MLJ 305).
It
is my misfortune to have to say that in this case there was no
crossexamination of any of the witnesses to ascertain the extent to
which they may have been influenced by media reports of the evidence
adduced.
Thus I am unable to say whether any witness has been so influenced.
As far as I know this is perhaps the first case which has attracted so
much media attention largely due to the public interest that it has
generated.
Given that trials are transparent and open to the public the media
publicity given to the evidence adduced in this case is inevitable.
However, that cannot be sacrificed at the altar of justice for the
accused which is paramount. I have therefore made it my duty to
scrutinise the evidence of every witness, particularly in cases where
the evidence of witness is similar to that of a previous witness, in as
much detail as possible in order to ensure that the accused is not
prejudiced in any way by the media publicity.
(ix) Whether Dato' Mohd Said, Dato' Amir Junus, ACP Mazlan, DSP Aziz And SAC Musa Are Accomplices
It
was the submission of the defence that all these police officers are
accomplices on the assumption that their version of the sequence of
events is true.
The law relating to accomplice evidence is well
settled.
An accomplice is a person who has concurred fully in the criminal
designs of another for a certain time, until getting alarmed, or from
some other cause, has turned against his former associate, and gives
information against him (see R v. Mullins [1848] 3 Cox CC 526; Rattan Singh v. PP
[1971] 1 MLJ 162). This makes it clear that there can be no automatic
finding that a person is an accomplice merely because of his actus reus. In this regard I refer to Ng Kok Lian v. PP [1983] 2 MLJ 379 where Salleh Abas CJ (Malaya) (as he then was) said at p. 382:
To
be an accomplice the witness who received the bribe must be the one who
was abetting the offence of giving it committed by the accused the
giver.
Only then would the receiver be regarded as particeps criminis. This means that just as the giver is a principal offender requires mens rea,
so does an accomplice witness who received the gratification.
If he received the gratification innocently or without any corrupt
motive or if he did not receive it at all, although it was given to him,
as far as he is concerned the gift did not change its character to
become an illegal gratification just because the giver (the accused)
gave it with corrupt motive or with evil intention.
Thus in every case when the issue is raised that a witness is an
accomplice the Court must study the evidence and make the necessary
finding.There can be no rule of law or evidence that a witness is automatically an accomplice just because of his actus reus. The whole idea is completely contrary to the basic concept of criminal liability.The court must first decide whether a witness is an accomplice (see Nathan v. PP [1972] 2 MLJ 101). His credibility must then be assessed just like that of any other witness.
The court must then decide whether his evidence is to be accepted without corroboration or not.
This was explained by Cussen J in PP v. Haji Ismail and Anor [1940] MLJ 76 at p. 79 in the following terms:
There
is no question of the mechanical application of any general rule of
presumption.
When it is a question of this particular presumption, the credibility of
the witness who is in the position of the accomplice must be
individually judged just as any other witness, the same consideration
being applied, with the added one that he is an accomplice.
The court must consider who and what he is, his demeanour, bearing, the
manner and quality and substance of his evidence in itself and in
relation to all the circumstances of the case.
The nature, quality and degree of his complicity must be examined.Then
finally the Court must form its opinion whether he is to be given
credit and his evidence accepted without corroboration or not.The
degree of complicity of an accomplice has always been one of the
matters to be considered in deciding whether or not corroboration can be
dispensed with (see Soosay Dass v. PP [1951] MLJ 57; Rauf bin Haji Ahmad v. PP
[1950] MLJ 190). Sometimes the accomplice is not a willing participant
in the offence but a victim of it. When he acts under a form of pressure
which it would require some firmness to resist, the Privy Council has
held that reliance can be placed on his uncorroborated evidence (see Srinivas Mall Bairoliya v. Emperor [1947] AIR PC 135). In The Queen v. Liyanage [1965] 67 NLR 193 this view was adopted.
The Court said at p. 213:
Sometimes the accomplice acts
under a form of pressure which it would have required some firmness to
resist, as for instance when he is a subordinate police officer who
receives orders from his superior in the force and finds it difficult to
disobey such orders.The explanation to section
114 205 show that 'the force of the presumption to be drawn (against the
evidence of an accomplice) varies as the malice to be imputed to the
deponent'. Whatever attenuates the wickedness of the accomplice tends at
the same time to diminish the presumption that he will not acknowledge
and confess it with sincerity and truth.It was contended by the defence that Dato' Mohd Said, Dato' Amir Junus, ACP Mazlan, DSP Aziz and SAC Musa were all particeps criminis
and accessories before and after the fact in procuring or aiding and
abetting the commission of the offence.
It was argued that the offence alleged to have been committed by the
accused could not have been committed without their participation.
With regard to SAC Musa it was argued that his meeting with the accused
on 30 August 1997 and his obtaining of exhs. P17, P18, P19, P20, P21 and
P22 followed by his recommendation to the Honourable Attorney General
that no further action be taken on the investigation renders him an
accomplice.
It was contended that all these police officers may have done what they
did in order to please the accused and turned against him upon
commencement of investigation in order not to jeopardise their position.
This is supported by the fact that they did not make any report against
the accused.
By implicating the accused they have saved themselves from any action
and that there is a possibility that they have concocted the evidence
against the accused in order to minimise their role.
The position of Dato' Mohd Said, Dato' Amir Junus, ACP Mazlan and DSP Aziz
I
agree that without the participation of these witnesses the accused
could not have committed the offences.
Both Dato' Mohd Said and Dato' Amir Junus carried out the direction of
the accused to obtain the letters from Ummi and Azizan.
The direction given by the accused and the carrying out of it for the
purpose of obtaining the letters constitute one of the elements in the
charges.
They instructed ACP Mazlan and DSP Aziz to change the stand of Ummi and
Azizan within 24 hours.
Dato' Amir Junus said that the instruction given to ACP Mazlan and DSP
Aziz to make Ummi and Azizan to retract their allegations is contrary to
the practice of the Special Branch and that that was the first time the
technique was applied outside their normal routine.
He also said that the instructions given by the accused to him and Dato'
Mohd Said were similar to the instructions they gave to ACP Mazlan and
DSP Aziz.
Thus they had executed the design of the accused to obtain the letters
from Ummi and Azizan.
Without them the accused could not have committed the offences and the
steps taken by them to obtain the letters show that they were fully
conscious of what they were doing. I therefore ruled that Dato' Mohd
Said and Dato' Amir Junus are accomplices.
On 17 August 1997 DSP
Aziz was handed over copies of exhs. P15 and P14A, B and C by ACP
Mazlan.
They were instructed by Dato' Mohd Said to neutralise Ummi and Azizan
within 24 hours.
They understood the instructions they received to mean that they must
change the stand of Ummi and Azizan so that they will withdraw all the
allegations of sexual misconduct against the accused.
The evidence also discloses that ACP Mazlan and DSP Aziz took active
steps to obtain the letters from Ummi and Azizan by threatening them.
DSP Aziz told Ummi that if she did not give the letter the accused may
take retaliatory action against her.
He took Azizan to the accused's house on 18 August 1997 at 11.45pm.
He said that what he was asked to do was very odd and outside his normal
duties.
Contrary to normal practice he was instructed to carry out his duties in
this case before he could identify what kind of threat Ummi and Azizan
posed. ACP Mazlan said that he felt it was strange for the Special
Branch to use the turning over and neutralisation process in a case of
this nature.
When he was instructed to obtain the second set of letters from Ummi and
Azizan (exhs. P20 and P22) he was informed by Dato' Mohd Said that the
accused was not satisfied with exhs. P17 and P18. A similar instruction
was given by Dato' Amir Junus to ACP Mazlan and DSP Aziz when he asked
them to obtain the second letter from Ummi.
It is therefore clear that ACP Mazlan and DSP Aziz knew that they were
instructed by their superiors to obtain the letters on the direction of
the accused.
As they had actively participated in the offences committed by the
accused they are also accomplices.
I shall now consider whether
their evidence, subject to a finding on their credibility, requires
corroboration.
This depends on the degree of their complicity in the offences committed
by the accused.
Dato' Mohd Said said that he had to follow the instructions given by the
accused as he was the Deputy Prime Minister and not any ordinary
person.
He felt compelled to carry out the instructions and could not have
refused them.
Thus he had no choice in the matter.
Dato' Amir Junus was in a similar position.
In addition he was also subjected to instructions from Dato' Mohd Said,
his superior officer, to carry out what the accused wanted. ACP Mazlan
and DSP Aziz were subordinate police officers who carried out the orders
of their superiors.
They said that they felt compelled to carry out the instructions.
It is therefore clear that all the police officers were not willing
participants in the offences but victims of them.
They acted under a form of pressure which would have required some
firmness to resist.
In fact they had no choice but to comply with the orders.
In the circumstances reliance can be placed on their uncorroborated
evidence subject of course to it being found to be credible.
The Position Of SAC Musa
The
fact that SAC Musa met the accused on 30 August 1997 and that he
obtained exhs. P20, P21 and P22 followed by his recommendation to the
Honourable Attorney General that no further action be taken on the
investigation does not on its own make him an accomplice.
To make such a finding on those facts would amount to an automatic
finding that he is an accomplice merely because he was involved in the
commission of the offences by the accused.
On 30 August 1997 the accused merely told SAC Musa that the matter need
not be investigated. SAC Musa did not agree to it. The handing over of
exhs. P20, P21 and P22 by the accused to SAC Musa on 2 September 1997
does not clothe him with the colour of an accomplice as, at that time,
he did not know of the history of those documents.
When he recommended that no further action be taken on the investigation
based on these documents he did not know about the involvement of the
Special Branch in their preparation.
He came to know of that only very much later when he was investigating
into exh. P56. Thus, even though SAC Musa acted on these documents he
did not have the mens rea in the commission of the offences by the accused as he did not know the history of those documents.
In the premises it is my view that he is not an accomplice.
(x) Credibility Of Witnesses For The Prosecution
The defence submitted on the credibility of Dato' Mohd Said, Dato' Amir Junus, ACP Mazlan, DSP Aziz, SAC Musa, Azizan and Ummi.
The
Privy Council has stated that the real tests for either accepting or
rejecting the evidence of a witness are how consistent the story is with
itself, how it stands the test of cross-examination, and how far it
fits in with the rest of the evidence and the circumstances of the case
(see Bhojraj v. Sita Ram AIR [1936] PC 60). It must, however, be observed that being unshaken in crossexamination is not per se an all-sufficient acid test of credibility.
The inherent probability or improbability of a fact in issue must be the prime consideration (see Muniandy & Ors v. PP
[1966] 1 MLJ 257). It has been held that if a witness demonstrably
tells lies, his evidence must be looked upon with suspicion and treated
with caution, but to say that it should be entirely rejected would be to
go too far (see Khoon Chye Hin v. PP [1961] MLJ 105). It has
also been held that discrepancies and contradictions there will always
be in a case.
In considering them what the court has to decide is whether they are of
such a nature as to discredit the witness entirely and render the whole
of his evidence worthless and untrustworthy (see De Silva v. PP
[1964] MLJ 81). The Indian Supreme Court has pointed out that one hardly
comes across a witness whose evidence does not contain a grain of
untruth or at any rate exaggerations, embroideries or embellishments
(see Ugar v. State of Bihar AIR [1965] SC 277). It is useful to refer to PP v. Datuk Haji Harun bin Haji Idris [1977] 1 MLJ 15 where Raja Azlan Shah FJ (as His Highness then was) said at p. 19:
In
my opinion discrepancies there will always be, because in the
circumstances in which the events happened, every witness does not
remember the same thing and he does not remember accurately every single
thing that happened 205 The question is whether the existence of
certain discrepancies is sufficient to destroy their credibility.There
is no rule of law that the testimony of a witness must either be
believed in its entirety or not at all. A court is fully competent, for
good and cogent reasons, to accept one part of the testimony of a
witness and to reject the other.In the absence of any
contradiction, however, and in the absence of any element of inherent
improbability the evidence of any witness, whether a police witness or
not, who gives evidence on affirmation, should normally be accepted (see
PP v. Mohamed Ali [1962] MLJ 257).
I shall now consider the credibility of the witnesses for the prosecution who came under attack by the defence.
Dato' Mohd Said
In
cross-examination Dato' Mohd Said was asked this question: "If someone
higher than the Deputy Prime Minister were to instruct you to lie in
court would you do it?" The defence focussed on his answer, "I may or
not lie" and said that it sums up his credibility and character with the
result that no credence can be given to his evidence.
The prosecution in reply said that this answer is purely hypothetical
and that it must be understood in its proper context.
It has been held that a hyper-technical approach by taking sentences
torn out of context here or there from the evidence which does not go to
the root of the matter would not ordinarily permit rejection of the
evidence as a whole (see State of Uttar Pradesh v. Anthony AIR [1985] SC 48). It is therefore necessary to consider the context in which Dato' Mohd Said gave the answer.
In this regard my notes of evidence read as follows:
Question: If someone higher than the DPM were to instruct you to lie in court would you do it?Answer: The point is no one asked me. It would depend on the situation. I may or may not lie.Question: What are the instances when you would lie?Answer: I would not know.Question: You are a most unscrupulous man.Answer: That is counsel's opinion.Question: I am justified in saying it from your own answer.Answer: Your questions are like that.Question: When would you lie?Answer: I would not know.This line of questioning was continued by the defence at the end of Dato' Mohd Said's re-examination with leave of Court.
It runs as follows:
Question: You admitted earlier that
you may or may not lie depending on the circumstances. I put it to you
that you have an inclination to lie.Answer: I do not have
the inclination to lie and I have already informed the Court that I
will not lie in this Court before the Judge.
The original question asked by the defence Counsel was a theoretical question.Question:
Earlier you had told the Court that you may or may not lie if an
important man were to ask you to do so. I put it to you that you have an
inclination to lie.Answer: I have already answered it.Question: I put it to you that since you said you may lie if asked by a person of importance, you are an unreliable person.Answer: I am reliable.
The
answer of Dato' Mohd Said that he may or may not lie is, as stated by
him, in response to a theoretical question.
It must be understood in the context of the evidence that I have
reproduced and not in isolation.
The answer given is so theoretical that Dato' Mohd Said himself said
that he would not know the instances when he would lie.
It is a general and frank statement to suit the circumstances of a
particular occasion.
However, what is important is that he has said that no one had asked him
to lie in court and that he would not lie in this court.
It is also significant to note that he had said that he has no
inclination to lie.
Thus, the answer given by him is neutralised by the fact that no one had
asked him to lie in court and that he has no inclination to lie.
If I were to accept the defence contention, then, by the same token, I
have to rule Dato' Mohd Said as a reliable witness based on his answer
given in cross-examination that he is reliable.
Further, by the same process of reasoning of the defence I will have to
rule Dato' Amir Junus as a credible witness based on his answer in
cross-examination that he will not lie to save his skin.
It is my view that the defence argument is anchored on an isolated
theoretical answer without taking into account the other circumstances
of the case.
In the final analysis the credibility of Dato' Mohd Said depends on the
evidence he has given in court based on the principles of assessment of
the credibility of a witness that I have discussed earlier and not, as
contended by the defence, on an isolated and a part only of an answer
given.
The defence also contended that Dato' Mohd Said is a
witness who kept changing his position.
It was pointed out that when he was questioned as to whether he had sent
a report to YAB Prime Minister his answer was a spontaneous no. When
confronted with a press statement by YAB Prime Minister he resiled from
his earlier position and admitted that he did send a report.
He also denied having sent a second report when his answer showed that
there was a second report.
The fact that Dato' Mohd Said admitted having sent a report to YAB Prime
Minister after he was shown a press statement does not, to my mind,
show that he kept on changing his position.
It was not suggested to him that his earlier answer was a lie.
The spontaneous answer he gave when he was referred to the press
statement shows that he was reminded of the report that he had sent to
YAB Prime Minister and had replied accordingly.
With regard to the existence of the second report he said initially that
at the most he could have sent two reports.
Later he said that he does not think that there was such a report though
he does not deny it. To a further question he again said that he does
not think that there is such a report.
Being pressed further he said that he could have sent one or two reports
but most probably only one.
Later he said that he does not think that there is another report.
He then said that having looked at the first report he is quite certain
that that could be the only report that he sent to YAB Prime Minister
and that it is unlikely that he would have prepared a second report.
Finally upon being questioned by the court he said that he is quite
certain that there was no second report.
The answers given by Dato' Mohd Said do not show that there was a second
report.
The general tenor of his evidence was that though he was not sure of the
existence of the second report the probabilities are that there was
none. I was satisfied with his answer when he said that he is quite
certain that there was no second report.
It is my view that the manner in which Dato' Mohd Said answered the
questions on both instances did not give me the impression that he was
being evasive or was changing his position.
He was just not sure of the reports.
When a witness is not sure of an answer it does not mean that he is
changing his stand.
On the contrary it may suggest that he is truthful and also that he has
not been coached.
With regard to the questioning on the second report it must be noted
that the questions were the same though couched in different words.
The answers given are therefore understandable.
The argument advanced thus has no substance.
The defence also
attacked the credibility of Dato' Mohd Said by its reference to his
change of language in describing the tone in which the accused asked him
to act.
It was contended that he said that in the initial stages the accused
"requested" him to do certain things.
After a 15-minute break in proceedings the witness suddenly changed the
tone of his evidence.
Instead of using the word "request" he used the word "directed" and
thereafter used the same word.
The defence suggested that something drastic must have happened during
the break.
It was contended that as Dato' Mohd Said was prepared to change the
complexion of his evidence it affects his credibility.
It was said that he was cross-examined on this point and that his reply
was that he construed the word "request" as a "direction". For reasons
which I will consider in a later part of the judgment I do not agree
that the language used by Dato' Mohd Said to describe his communications
with the accused affects the colour of his credibility in any way.
It must also be observed that Dato' Mohd Said was not cross-examined or
challenged on his sudden change of language from "requested" to
"directed" as claimed by the defence in its submission.
In my
opinion therefore the challenge mounted by the defence against the
credibility of Dato' Mohd Said is baseless.
His version of the sequence of events is consistent with itself and fits
in with the rest of the evidence adduced.
He has withstood lengthy and vigorous cross-examination though I am
aware that the fact that a person is unshaken in cross-examination is
not an acid test of his credibility.
In the circumstances of the case and coupled with his demeanour and the
manner in which he gave evidence it is my firm finding that he is a
credible witness.
Dato' Amir Junus
It was
contended that the evidence of Dato' Amir Junus must be considered in
the context of the evidence of Dato' Mohd Said in that he did a repair
job of the evidence of Dato' Mohd Said and that what he said is riddled
with embellishments, exaggerations and contradictions.
The defence in making this general statement did not condescend to
particularise the allegation.
Be that as it may, the law that I have referred to on the assessment of
credibility of witnesses makes it clear that these features are common
in the evidence of any witness.
If they are of a material nature the evidence must be scrutinised with
greater care unless its inherent improbabilities make it unsafe.
My perusal of his evidence with meticulous care does not disclose any
material embellishments, exaggerations or contradictions.
Another
assault launched against the credibility of Dato' Amir Junus was the
approaches he made to the accused in respect of some contracts.
What he said in cross-examination on this issue is as follows:
Saya
tidak bersetuju sama sekali bahawa saya ada berjumpa En Azmin Ali
bercakap tentang projek perniagaan untuk saya.
Saya ulang lagi sekali bahawa saya tidak pernah meminta apa-apa projek
melalui En Azmin Ali. I never approached Azmin Ali for such favours.
Melalui Azmin saya tidak pernah sekali-kali memohon apa-apa projek.
Saya ada berjumpa tertuduh tetapi bukan melalui Azmin.
Saya berjumpa dengan tertuduh. I agree that I introduced a friend to the
accused with regard to a business matter.
At that particular time belum lagi untuk saya participate dalam projek
itu.
Ada kemungkinan besar saya participate dalam projek itu apabila saya
bersara.
Berkenaan dengan ekuiti firma sekuriti di Sabah saya cuma menolong kawan
saya.
Kawan ini adalah kawan Dato' Seri Anwar sendiri.
Kalau saya ta' silap, kawan itu adalah Dato' Salleh Said Kruak.
Saya setuju bahawa saya meintroducekan En Lau Thian Hock kepada
tertuduh.
Saya meluahkan perasaan saya untuk mendapat sebahagian dari ekuiti dalam
satu firma sekuriti tetapi saya tidak mendapat apaapa. I was not
disappointed. I deny that I was trying to do some side business.
Bagi saya, saya hanya menolong kawan saya bukan saya kecewa seperti yang
dikatakan oleh peguam. I deny that I was disappointed and angry with
the accused.
Saya setuju saya ada membawa En Lau Thian Hock ke rumah tertuduh
sebanyak 3 kali di atas persetujuan tertuduh.
Saya tidak bersetuju dengan cadangan peguam bahawa saya telah memalukan
tertuduh dan telah dimarahi oleh tertuduh kerana membawa Lau Thian Hock
ke rumahnya.
Saya tidak dapat apa-apa dari Lau Thian Hock.
Saya tidak setuju bahawa saya ada mengatakan kepada tertuduh bahawa I
was in SB for all my life and have no money. I deny that as a result I
became very angry and frustrated. I deny that I still hold a grudge
against the accused and that that caused me to exaggerate and embellish
the evidence against him.
Apa-apa keterangan yang saya beri dalam kes ini adalah mengikut
kejadian-kejadian yang berlaku.Based on this evidence the
defence said that Dato' Amir Junus was trying to make a fortune through
the accused and must have thought that it was a golden opportunity to
make big money.
At this stage of the submission I enquired whether there was any
evidence to support the argument.
The reply was that it was put to the witness and that he did not agree.
The extract from the notes of evidence that I have reproduced above
shows that it was never put to him.
Even if it was put to him it cannot become evidence when it is denied.
The court can only form inferences from the evidence adduced.
Thus there is no evidence to show that Dato' Amir Junus intended to make
a fortune out of his connection with the accused.
However, his evidence shows that he intended to participate in a
business enterprise upon his retirement for which purpose he introduced a
friend to the accused.
He denied that he bears a grudge against the accused and that this
caused him to exaggerate and embellish the evidence against the accused.
I am unable to accept this argument because if Dato' Amir Junus was
indeed annoyed with the accused he would have lodged a report against
him long ago.
As a matter of fact he did not do anything about it till police started
investigating into the matter after the report on Buku 50 Dalil (exh.
P56) was lodged.
It is clear that if there was no such investigation the question of
Dato' Amir Junus giving evidence against the accused would never have
arisen.
When Dato' Amir Junus was asked whether he had told the
accused that his telephone had been tapped the answer was in the
negative.
When this matter was pursued by the defence after a day's break in the
hearing, Dato' Amir Junus said:
Saya ingin memberi
penjelasan.
Apa yang dikatakan oleh peguam ialah telefon tertuduh ditap pada 1996.
Tetapi di sini saya ingin memberi penjelasan bahawa pada bulan Jun atau
Julai, 1996 tertuduh telahpun berhubung dengan Pengarah Cawangan Khas
pada masa itu, Dato' Norian Mai, mengatakan bahawa terdapat kehilangan
wang di rumah tertuduh.
Dato' Norian telahpun mengarah saya bersama dengan beberapa pegawai
pergi ke rumah tertuduh dan berbincang dengan tertuduh mengenai dengan
kehilangan wang, kalau ta' silap saya, 4 juta ringgit.
In 1996 saya tidak katakan telefon itu ditap atau tidak.
Pada tahun 1995 Dato' Seri Anwar telahpun memberi kebenaran untuk
telefonnya di rumah dimonitor untuk mengetahui siapakah yang melakukan
pencurian di rumahnya.
Saya tidak bersetuju bahawa saya berbohong.
Saya tidak setuju bahawa ini adalah sesuatu yang baru saya reka.Saya tidak setuju bahawa saya telah memberitahu tertuduh yang telefonnya ditap kerana beliau mempunyai ramai musuh politik.It
was contended by the defence that the answer of Dato' Amir Junus is
tinged with vindictiveness.
After the break in the hearing he was eager to answer the question and
grabbed the opportunity to give an answer which was unrelated to the
question.
The answer was vicious and uncalled for.
It is fabricated and totally irrelevant.
If in fact the question of RM4 million is true it would have formed the
subject matter of another charge. I agree with the defence that the
answer given by Dato' Amir Junus was irrelevant.
But it was an irrelevant answer to an equally irrelevant question.
Be that as it may, it is not uncommon for witnesses who are asked
certain questions to go further and explain the answer so as to portray a
more accurate picture of the situation.
If the examining party feels that the explanation is not necessary it is
his duty to stop the witness.
Although the questions and answers in connection with the tapping of the
accused's telephone are irrelevant I am unable to agree that the
answers show vindictiveness on the part of Dato' Amir Junus as alleged.
No evidence was adduced to that effect nor does the evidence that I have
reproduced support such an inference.
The argument of the defence
that Dato' Amir Junus is a vindictive and dangerous witness whose
evidence is embellished and exaggerated cannot withstand the forceful
effect of exhs. P42 to P47 which I have reproduced in an earlier part of
the judgment.
These are contemporaneous notes of the meetings that the accused had
with Dato' Mohd Said and Dato' Amir Junus that the latter had made.
These notes are consistent with the oral evidence of Dato' Amir Junus
and their authenticity was not challenged at all in crossexamination.
On the evidential value of contemporary documents, like these notes, I
consider it appropriate to refer to the dissenting speech of Lord Pearce
in the House of Lords inOnassis v. Vergottis [1968] 1 Lloyds' R
403 where his Lordship in considering the judicial process in assessing
the credibility of an oral witness said at p. 431:
Thirdly,
though he is a truthful person telling the truth as he sees it, did he
register the intentions of the conversation correctly and, if so, has
his memory correctly retained them? Also, has his recollection been
subsequently altered by unconscious bias or wishful thinking or by
overmuch discussion of it with others? Witnesses, especially those who
are emotional, who think that they are morally in the right, tend very
easily and unconsciously to conjure up a legal right that did not exist.
It is a truism, often used in accident case, that with every day that
passes the memory becomes fainter and the imagination becomes more
active.
For that reason a witness, however honest, rarely persuades a judge that
his present recollection is preferable to that which was taken down in
writing immediately after the accident occurred.
Therefore, contemporary documents are always of the utmost
importance.... All these problems compendiously are entailed when a
judge assesses the credibility of a witness; they are all part of one
judicial process.
And in the process, contemporary documents and admitted or
incontrovertible facts and probabilities must play their proper part.It
has been held that the purpose of such evidence of a witness's previous
statements is and can only be to support his credit, when his veracity
has been impugned, by showing a consistency in his oral evidence (see Fox v. General Medical Council [1960] 3 All ER 225). As Dixon CJ said in Nominal Defendant v. Clements [1960] 104 CLR 476 at p. 479:
If
the credit of a witness is impugned as to some material fact to which
he deposes on the ground that his account is a late invention or has
been lately devised or reconstructed, even though not with conscious
dishonesty, that makes admissible a statement to the same effect as the
account he gave as a witness if it was made by the witness
contemporaneously with the event or at a time sufficiently early to be
inconsistent with the suggestion that his account is a late invention or
reconstruction.As a witness's credit is normally
attacked in cross-examination it may be permissible to adduce evidence
of his previous statement in re-examination (see R v. Connolly
[1991] 2 QD R 171). It is my view that the admission of the notes as
evidence in the examination-in-chief of Dato' Amir Junus is not
objectionable as the substance of his evidence is similar to that of
Dato' Mohd Said which had already come under severe attack before the
former gave evidence.
The earlier admission of this evidence serves the purpose of giving the
defence an opportunity to challenge them in view of the defence
advocated which, however, was not done.
Be that as it may, the notes having been made contemporaneously with the
meetings among the parties are also admissible under s. 6 of the Evidence Act as part of the res gestae (see Chhotka v. State AIR [1958] Cal 482); Milne v. Leisler [1862] 158 ER 686; Stanfield v. Rosin [1966] Qd R 10; R v. Dawes [1992] 2 Qd R 435) and under 157 of the same Act to show consistency (see Mohamed Ali v. PP [1962] MLJ 230). I pause to say a few words about s. 157 of the Evidence Act 1950. ERSR Coomaraswamy in his book entitledThe Law of Evidence vol. II Book 2 p. 757, in commenting on s. 157 of the Sri Lanka Evidence Act which is similar to ours, says at p. 757:
Nokes
points out that Stephen's conception of corroboration, as seen in s.
157 of the Indian Evidence Act, is now regarded as fallacious....
Therefore the corroboration set out in s. 157 is only for the purpose of
showing that the witness is consistent.In Ariyadasa v. The Queen [1966] 68 NLR 257 TS Fernando J said:
The
corroboration that s. 157 contemplates is not corroboration in the
conventional sense in which the term is used in courts of law, but in
the sense of consistency in the conduct of the witness tending to render
his testimony more acceptable.In my opinion therefore
exhs. P42 to P47, being contemporary documents, play a critical role in
enhancing the credibility of Dato' Amir Junus.
His evidence is also consistent with the rest of the evidence adduced by
the prosecution.
He had withstood lengthy and vigorous cross-examination though I am
aware that the fact that a person is unshaken in cross-examination is
not an acid test of his credibility. I scrutinised his evidence with
greater care bearing in mind the fact that he may have been aware of the
evidence of Dato' Mohd Said publicised in the media.
Having taken into account these factors, the manner in which he gave his
answers and based on his demeanour while giving evidence it is my firm
finding that his evidence is credible.
ACP Mazlan And DSP Aziz
It
was contended by the defence that if the instructions given by Dato'
Mohd Said and Dato' Amir Junus to ACP Mazlan and DSP Aziz were unlawful
the latter were acting unlawfully as very senior and experienced police
officers.
Yet they said that they followed the law and did not do anything
unlawful.
They said that they only follow lawful orders and never follow unlawful
orders.
However, they unashamedly made confessions of unlawful conduct.
What they did was against the law.
It was contended that a police officer who admits to unlawful conduct
can never be trusted or believed.
The statutory obligations contained in the Police Act and the Criminal
Procedure Code are dead letters and meaningless to such an officer.
If they can turn over and neutralise people there is nothing to prevent
them from themselves turning over against the accused who no longer
holds office.
It is true that the evidence of ACP Mazlan and DSP
Aziz reveal that they considered the turning over operation that they
conducted on Ummi and Azizan as strange and odd.
But it must be remembered that they were instructed by their superiors
to carry out the operation.
It does not mean that merely because they turned over and neutralised
Ummi and Azizan there is nothing to prevent them from giving evidence
against the accused for two reasons.
Firstly, no such suggestion was put to them in cross-examination so as
to give them an opportunity to counter such an allegation.
Secondly, they have not given any evidence against the accused.
Their evidence is merely confined to what they did pursuant to
instructions from their superiors.
If it was felt that their evidence was not true then their
cross-examination ought to have been aimed in that direction which was
not done.
The relevant part of the evidence of ACP Mazlan and DSP Aziz pertinent
to the charges are that they turned over Ummi and Azizan with the result
that they gave the denial letters involuntarily.
Yet no questions were directed at them in order to challenge their
evidence that the letters were not given voluntarily.
Thus the submission on their credibility is a mere conjecture
unsupported by any evidence or inferences that can validly be drawn from
answers given.
I found that both witnesses gave their answers in a
frank and unhesitating manner without being evasive.
They were unshaken in cross-examination though I am aware that the fact
that a witness is unshaken in cross-examination is not an acid test for
his credibility.
Their evidence is consistent with the other evidence adduced in the
case. I subjected the evidence of ACP Mazlan to greater scrutiny in
order to ascertain whether he had been influenced by the media publicity
of the evidence of other witnesses and by his police statement that he
had read before giving evidence.
In the circumstances it is my firm finding that the evidence of ACP
Mazlan and DSP Aziz are credible.
SAC Musa
The
defence contended that the manner in which SAC Musa carried out his
investigation shows that he is an interested witness.
It was argued that he had been involved in this case from 15 August 1997
at the request of Dato' Mohd Said.
He had witnessed conversations relating to investigations into exhs. P16
and P14A, B and C. He participated in the arrest of Ummi and Azizan.
He recorded a police statement from the accused on 19 August 1997.
He met the accused together with Dato' Ismail Che Ros and the Honourable
Attorney General on 30 August 1997.
He recommended that no further action be taken in the case and met the
Honourable Attorney General on 8 September 1997 for the purpose of
getting the latter's approval in respect of his recommendation.
In saying that SAC Musa swore highly damaging, vicious and prejudicial
affidavits against the accused in Dato' Nallakaruppan's case the
defence posed this question: Can such an interested and vital witness be
expected to conduct an independent, unbiased and aboveboard
investigation? He was also involved in the cases involving Sukma and
Munawar.
The defence also alleged that SAC Musa did not conduct a proper
investigation to reveal the truth in that he did not take any statements
from Datin Seri Wan Azizah nor did he take any statements from YAB
Prime Minister, Tun Daim Zainuddin and Tan Sri Rahim Thamby Chik to rule
out political conspiracy.
Without having taken such statements he said in his evidence that he had
ruled out political conspiracy.
I agree that an investigating
officer must be independent and display a high sense of integrity.
It is his duty to ensure that innocent persons are not charged and to
that extent he must make every effort to discover the truth.
With regard to the narration of the defence on the course of action
taken by him from 15 August 1997 to 8 September 1997 I am unable to
comprehend the object of slipping it into this area of argument.
If it is to show that SAC Musa, by taking those steps, had shown an
interest in the case then it displays a poor understanding of the role
of an investigating officer which is to gather information regarding a
complaint.
That was precisely what SAC Musa did in relation to a complaint handed
to him.
He did the acts which formed part of the subject matter of the argument
of the defence in the course of carrying out investigation into the
complaint.
Surely he cannot be penalised for doing what he is duty-bound to do.
With regard to the affidavits he swore in the case of Dato' Nallakaruppan
I am unable to find anything wrong with it. Being the investigating
officer in that case he was the most appropriate person to answer
certain allegations raised in that case.
In any event, it can only be a statement of his findings as of that date
and may be affected by other facts that he might discover later.
Thus it is irrelevant to the issues in this case.
On the failure of SAC Musa to record statements from Datin Seri Wan
Azizah, YAB Prime Minister, Tun Daim Zainuddin and Tan Sri Rahim Thamby
Chik it is my view that an investigating officer cannot be faulted for
not recording statements from persons whom he does not consider to be
relevant to his investigation.
In his re-examination SAC Musa explained that he did not record
statements from some of these witnesses in view of the minimal role
played by them in this case.
Be that as it may, failure to record a statement from a person who may
even turn out to be material to a case is not fatal.
What is fatal is the failure by the prosecution to call such a person as
a witness.
Such failure may result in an application to draw an adverse inference
against the prosecution which was done in this case with respect to some
of the persons named.
A consideration of the evidence of SAC
Musa, relevant to the issues before the court, will be of more
assistance in assessing his credibility than the argument advanced.
The sequence of events narrated by him on the action taken by him up to
30 August 1997 is consistent with the other evidence adduced in the
case.
His evidence on how he came into possession of exhs. P17, P18, P20, P21
and P22 has not been challenged by the defence.
He said that exhs. P17 and P18 were handed to him by Dato' Amir Junus.
It is of critical importance to note that he said that exhs. P20, P21
and P22 were handed over to him by the accused when he met the latter on
2 September 1997.
This, it must be remembered, is an element to be proved with regard to
the second and fourth charges.
Thus there is internal consistency in his evidence as to how he came
into possession of all these exhibits by virtue of his evidence having
been not contradicted.
The evidence of SAC Musa therefore fits in with the rest of the evidence
adduced by the prosecution and the circumstances of the case.
The manner in which he gave evidence and his demeanour while doing so
are unimpeachable.
The vigorous crossexamination that he was subjected to did not result in
his credit being shaken, though, I do realise that that alone is not an
acid test of his credibility.
It is therefore my firm finding that his evidence is credible.
Azizan
It
was contended by the defence that Azizan is a thoroughly unreliable
witness as he was a pawn in a game played by others with an agenda of
their own.
In support of this proposition the defence relied on exhs. D25, P17 and
the oral evidence of Dato' Mohd Said.
It was argued that when Dato' Mohd Said was asked whether there was a
political conspiracy his answer was, "I may have said it." Later he
replied in the affirmative.
This, said the defence, shows that Azizan was used as a pawn.
The prosecution, in reply, said that there was no such evidence.
The defence said that the submission is supported by exh. D25 and the
evidence of Dato' Mohd Said who, in answer to a question as to whether
there was a political conspiracy, said, "I may have said it." Extracts
from my notes of evidence of what Dato' Mohd Said said on this issue
read as follows:
Question: Did the report you sent to the
Prime Minister contain a statement by you to the effect that the
allegations were politically motivated?Answer: I don't quite remember saying anything on this.Question:
In that report that you sent to the Prime Minister did you state that
Dato' Megat Junid, his wife and a few others were behind a plot to
topple the accused?Answer: I doubt very much I said that....Question: In your report do you remember stating that the persons named conspired to topple Dato' Seri Anwar?Answer: No.Question:
In your report did you state that Dato' Megat Junid, Dato' Shamsuddin,
Tun Daim and some corporate leaders have conspired to topple Dato' Seri
Anwar?Answer: I don't think I wrote that.When
this portion of the notes of evidence was read to the defence there was
a quick and unexplained change in the argument and the incongruous
reply was that exh. P17 read in the light of the evidence of Dato' Mohd
Said means that he would have told the accused that there was a
political conspiracy.
What Dato' Mohd Said said with regard to this reframed argument runs as
follows:
Question: Did you inform the accused that these allegations were politically motivated?Answer:
I may have said that. I cannot remember. I think it was the accused who
told me that the allegations were politically motivated. I am quite
sure I did not tell it to the accused.
Again, the submission of
the defence is based on evidence which it thinks the witness may have
said when in actual fact he did not say it. I pause to add that a
challenge to a witness's evidence must be based on what is on the record
and not by way of mere submission (see Pie bin Chin v. PP [1985]
1 MLJ 234). Cases are decided by the evidence adduced and the
inferences to be drawn therefrom and not on what a witness would or
ought to have said.
It was also contended that Azizan is not
reliable as he had changed his stand several times and that one such
instance is his narration of the events that took place as described in
exh. P17. There is no evidence to suggest that exh. P17 was written
voluntarily by Azizan.
On the other hand the available evidence shows that exh. P17 is the
result of the turning over and neutralisation operation conducted on
him.
Thus the proposition that Azizan's credibility is affected by his change
of position in exh. P17 has no merit as it is not his voluntary
statement. I pause to add that SAC Musa denied in his crossexamination
that he had told the accused that Azizan had given different versions in
his five statements to the police.
This goes to enhance the consistency of Azizan's evidence.
It was
also argued that the fact that Azizan went to the Official Residence of
the accused to apologise to him operates against him.
It was said that there is no evidence to show that he was forced to go
there.
Dato' Amir Junus said that on 18 August 1997 at about 8.30pm he received
a telephone call from the accused saying that he wanted to come to the
Special Branch office to see Azizan.
On being advised against this the accused asked for Azizan to be taken
to his Official Residence. DSP Aziz took Azizan to the accused's
Official Residence on that day at 11.45pm.
Azizan said in his evidence that DSP Aziz took him to the accused's
Official Residence.
The accused scolded him and he apologised to the accused.
He said in cross-examination that it is not true that it was he who
wanted to meet the accused.
He said that he was told by a Special Branch officer that the accused
wanted to see him.
He said that he apologised to the accused for being involved in this
matter.
This part of the defence submission is therefore inconsistent with the
evidence adduced.
It was also submitted that Azizan is an
accomplice as he has admitted that he was sodomised by the accused.
As such, the defence contended, he ought not to be believed unless his
evidence is corroborated.
This submission is irrelevant as the fact in issue is only the
allegation made by him and not its truth.
Therefore the question of him being an accomplice on the ground advanced
and the resultant need for corroboration does not arise.
For the same reason the fact that Azizan made the allegation five years
later is also irrelevant.
In any event he has explained satisfactorily why he decided to make the
complaint after five years.
Azizan's statement in cross-examination that he was not sodomised by the
accused was also canvassed to discredit him.
This, although explained by him in re-examination, is also not relevant
as I had expunged all evidence relating to the truth or falsity of the
allegation.
Exhibit D55 is a statutory declaration affirmed by Azizan and the material parts of it read as follows:
AKUAN BERSUMPAH1.
Saya, AZIZAN BIN ABU BAKAR (NO. K/P. 600814-05-5115) adalah seorang
warganegara Malaysia yang cukup umur yang beralamat di No. 3402,
Pangsapuri Dahlia A, Jalan 3/11, Bandar Baru Selayang, 68100 Batu Caves,
Selangor Darul Ehsan.2. Saya berikrar dan
bersumpah bahawa saya tidak pernah mengenali penulis atau pencetak buku
yang bertajuk "50 Dalil Mengapa Anwar Tidak Boleh Menjadi PM"
(seterusnya dirujuk sebagai "buku tersebut").3.
Saya berikrar dan bersumpah bahawa saya tidak terlibat dalam apa jua
cara pun dengan penulisan, percetakan, penjualan dan pengedaran buku
tersebut.4. Saya berikrar dan bersumpah bahawa
saya telah dihubungi oleh pihak polis baru-baru ini berhubung dengan
siasatan mengenai buku tersebut.
Maka saya telah pergi ke Ibu Pejabat Polis di Bukit Aman untuk membantu
siasatan polis.
Ketika itu pihak polis telah merujuk saya kepada bahagian buku tersebut yang berkait dengan saya.5.
Saya berikrar dan bersumpah bahawa kandungan buku tersebut setakat mana
ianya merujuk kepada saya adalah tidak benar sama sekali, dan adalah
berniat jahat.6. Saya membuat Akuan Bersumpah ini
atas alasan agar kenyataan-kenyataan saya mengenai perkara-perkara yang
tersebut di atas adalah dirakam sebagai rekod peribadi saya.
Saya telahpun memberi kenyataan mengenai perkaraperkara tersebut di atas
semasa saya dihubungi oleh pihak polis dalam penyiasatan polis mengenai
buku tersebut.
Seterusnya saya akan memberi keterangan
bersumpah mengenai perkara-perkara yang termaktub dalam Akuan Bersumpah
ini pada sebarang prosiding kehakiman yang berkaitan dengan perkara buku
tersebut kelak.7. Saya membuat Akuan Bersumpah
ini dengan penuh kepercayaan bahawa segala kandungan dalam akuan ini
adalah benar mengikut pengetahuan saya dan saya membuat akuan ini dengan
kerelaan hati saya sendiri tanpa paksaan dari sesiapa dan menurut
kehendak yang terkandung dalam Akta Akuan Berkanun, 1960.
The
defence contended that exh. D55 makes Azizan a completely unreliable
witness whose evidence cannot be believed.
As it was made in accordance with his instructions given to his own
lawyer, Sukdev Singh, it must be held to be true with the result that it
completely discredits his evidence.
The evidence on exh. D55
started with the prosecution tendering through Azizan a police report
(exh. P49) that he had made in connection with the making of the
exhibit.
When he was asked whether he made exh. D55 voluntarily the defence
objected to such evidence being adduced as the exhibit had not been
produced and that the issue of voluntariness must be decided by the
Court later for the purpose of possible impeachment of the witness. I
thus ruled that the voluntariness is to be determined at a later stage
if the defence chooses to proceed with impeachment of the witness.
The defence later said that exh. D55 is not in the possession of the
accused.
However, the defence has a copy of it. It is of interest to note that
the defence subsequently produced the original (exh. D55) without
offering any explanation as how it came into its possession.
I
shall now narrate briefly the events that led to the affirmation of exh.
D55 by Azizan.
He said that in June 1998 he was informed by ASP Zull Aznam that the
accused wanted to see him. ASP Zull Aznam took him to the accused's
Official Residence.
With regard to his conversation with the accused he said:
Saya
dapati tertuduh ada di dalam bilik tersebut.
Tidak ada orang lain di bilik tersebut.
Seterusnya saya berjabat tangan dengan tertuduh dan tertuduh bertanyakan
khabar saya dan keluarga.
Tertuduh menyuruh saya duduk di kerusi di hadapannya.
Lalu dia memberitahu saya yang pihak polis akan membuat penyiasatan ke
atas Buku 50 Dalil dan tertuduh memberitahu saya yang saya akan
dipanggil untuk memberi keterangan kepada polis.
Selepas itu tertuduh menyuruh saya untuk menafikan kepada pihak polis
tentang apa yang berlaku.
Saya memberitahu kepadanya yang saya tidak mengenali penulis buku dan
tidak membaca buku tersebut iaitu Buku 50 Dalil.
Bagi pemahaman saya ianya ada berkaitan dengan penyiasatan polis sebelum
ini yang mana saya telah membuat satu surat memohon maaf dan satu
kenyataan umum pada bulan August, 1997.
Pertemuan lebih kurang 5 - 10 minit dan saya terus pulang ke rumah saya.Dalam
bilik itu saya difahamkan yang saya untuk membuat penafian yang
berkaitan dengan saya diliwat dan menulis surat pengakuan bersumpah yang
tandatangani bertarikh 5.8.97.With regard to the circumstances in which he made exh. D55 Azizan said in cross-examination:
Pada
akhir June 1998 apabila saya berjumpa peguam Sukdev Singh itulah
pertama kali saya berjumpa dengannya.
Pada pertama kali saya berjumpa peguam Sukdev Singh saya tidak memberi
apa-apa arahan kepadanya kerana saya tidak pernah melantiknya.
Semasa saya jumpa peguam Sukdev Singh Rahim King yang banyak bercakap
dan saya kadang-kadang bercakap.Apabila Sukdev
Singh bertanya tempat kerja saya dan adakah saya membaca buku 50 Dalil
saya katakan bahawa saya tidak ada membaca atau melihat buku 50 Dalil.When Azizan met Sukdev Singh for the second time one MaAmin was with him.
Azizan told Sukdev Singh that he has to go to Bukit Aman to give a statement.
Both Sukdev Singh and MaAmin took him to Bukit Aman and then left.
Azizan said:
Saya tidak mengajak En Sukdev tetapi dia ingin mengikut saya ke Bukit Aman.Saya tidak meminta Sukdev mengikut saya ke Bukit Aman.With regard to his third visit to the office of Sukdev Singh, Azizan said:
Kali
ketiga saya berjumpa Sukdev ialah selepas saya pergi ke Bukit Aman
setelah diberitahu oleh Rahim King yang saya dikehendaki membuat satu
akuan bersumpah seperti yang diarahkan oleh bossnya iaitu tertuduh.
Saya sendiri tidak tahu sama ada tertuduh ada menyuruh Rahim King
membuat apa-apa.
Tetapi itulah apa yang diberitahu oleh Rahim King iaitu dia menyuruh
saya membuat satu laporan polis dan akuan bersumpah.
Saya tidak membuat laporan polis.
Rahim King memberitahu saya sebelum membuat laporan polis saya
dikehendaki berjumpa peguam Sukdev dahulu.
Kali ini saya ke pejabat Sukdev bersama MaAmin setelah diarahkan oleh
Rahim King.
Saya ada berjumpa dan bercakap dengan Sukdev Singh pada kali ketiga ini.
Saya ingat ini adalah pada minggu terakhir bulan Julai 1998.
Saya ada berjumpa peguam Sukdev secara seorang sahaja setelah saya
diberitahu oleh MaAmin dan peguam Sukdev yang saya terpaksa
menandatangani akuan bersumpah yang telah siap dibuatnya.
Saya berjumpa Sukdev seorang iaitu pada 10 Ogos 1998.
Pada mulanya saya tidak mahu menandatangani akuan bersumpah tersebut
kerana terdapat ayat pada akuan tersebut yang saya memang menandatangani
perakuan bersumpah saya.
Lalu peguam Sukdev membuat pindaan ke atas ayat itu dan saya masih tidak
mahu menandatanganinya kerana saya telah dipanggil ke Bukit Aman untuk
memberi keterangan.
Lalu peguam Sukdev mengatakan kepada saya iaitu akuan bersumpah ini
hanyalah berkaitan Buku 50 Dalil sahaja.
Saya masih enggan.
Peguam Sukdev masih mengatakan bahawa ianya hanya berkaitan dengan Buku
50 Dalil.
Pada masa itu perasaan takut saya kerana sering dihubungi oleh MaAmin
dan Rahim King.
Saya merasa takut dan kerja-kerja saya terganggu.
Saya bersetuju bahawa pindaan ada dibuat kepada surat sumpah itu.
Pindaan itu dibuat kerana saya tidak bersetuju atau puas hati dengan
ayat tersebut.
Seingat saya pindaan dibuat adalah kepada para. 5. Itu sahaja pindaan
yang diminta dan dibuat.
Sebelum saya menandatangani saya ada membaca para. 1, 2, 3 dan 4. Saya
tidak minta En Sukdev meminda para. 1, 2, 3 dan 4. Saya ta' ingat ada
berapa para. di surat sumpah itu sebab saya tidak diberikansalinan.
Saya faham Bahasa Malaysia tetapi saya perlu penjelasan yang lebih daripada peguam tersebut.
Saya ada minta penjelasan dari peguam.
Penjelasan yang diberi ianya hanyalah berkaitan dengan Buku 50 Dalil sahaja, katanya.Saya boleh baca Bahasa Malaysia.Setelah
saya dibawa oleh peguam Sukdev Singh ke pejabat seorang Pesuruhjaya
Sumpah di Jalan Masjid India yang saya tidak tahu namanya saya
menandatanganinya setelah merasa takut dan terpaksa.
Saya tidak memberitahu pesuruhjaya sumpah bahawa saya dipaksa membuat
akuan tersebut oleh kerana peguam Sukdev ada bersama.
Pada hari itu saya seorang sahaja pergi ke pejabat peguam Sukdev dari
pejabat saya di Alor Gajah dengan memandu kereta syarikat.
Sebelum menandatangani akuan berkanun saya telah membaca semua
kandungannya di pejabat peguam Sukdev.
Setelah membaca akaun berkanun itu saya tidak minta Sukdev membuat
apa-apa pindaan lagi.
Saya juga tidak memberitahu apa-apa yang terkandung di dalam akuan
berkanun tersebut kerana pesuruhjaya sumpah banyak bertanya kepada
peguam Sukdev.
Saya tidak memberitahu pesuruhjaya sumpah bahawa apa-apa yang terkandung
di dalam akuan berkanun itu adalah tidak betul atau tidak benar kerana
pesuruhjaya sumpah banyak bertanya kepada Sukdev.
Pesuruhjaya sumpah ada minta kad pengenalan saya.
Saya menandatangani akuan berkanun itu di hadapan pesuruhjaya sumpah dan
peguam Sukdev.
Pesuruhjaya sumpah tidak menanyakan saya apa-apa sebelum saya
menandatangani akuan berkanun itu.
Saya tidak bersetuju bahawa keterangan saya yang pesuruhjaya sumpah
tidak menanyakan apa-apa sebelum saya menandatangani akuan berkanun
tersebut adalah bohong atau tidak benar.
Saya ta' ingat pesuruhjaya sumpah ini.
Seingat saya dia seorang Cina dan berkaca-mata.
Saya tidak membuat apa-apa pengaduan.
Ini kerana pesuruhjaya sumpah ini tidak melakukan apa-apa yang salah.As to the truth of the contents of exh. D55 Azizan said:
Saya tidak ingat kandungan akuan berkanun itu sekarang.
Yang seingat saya akuan berkanun itu tidak benar.Terdapatnya
ayat yang menafikan saya menandatangani akuan bersumpah yang saya
tandatangani pada 5.8.1997.... Saya hanya membuat P49 pada 16.9.98
kerana saya telah memikirkan yang tertuduh tidak berkuasa lagi kerana
saya telah dipaksa untuk menandatangani akuan berkanun bertarikh 10.8.98
adalah tidak benar dan tanpa kerelaan saya.On being cross-examined as to whether all the contents of exh. D55 are untrue Azizan said:
Yang
seingat saya alamat rumah, nama saya adalah benar.... Para. 1 adalah
betul.
Para. 2 pun betul.
Para. 3 pun betul.
Para. 4 pun betul.
Para. 5 tidak betul.
Saya tidak bersetuju bahawa para. 5 adalah betul.
Berkenaan dengan para. 6 saya ada memberi kenyataan semasa dihubungi
oleh pihak polis.
Para. 6 adalah betul.... Saya ada menyuruh peguam Sukdev meminda para. 5
tetapi beliau mengatakan biarkanlah ayat itu begitu sahaja.
Saya setuju kerana saya merasa takut dan pada masa itu fikiran saya
terganggu.
Perasaan takutlebih mendalami jiwa saya.
Saya tidak bersetuju bahawa apabila saya katakan kandungan para. 5 tidak
benar itu adalah pembohongan oleh saya.... Saya tidak bersetuju bahawa
saya telah membayar RM10 bagi akuan berkanun ini.
Peguam Sukdev yang membayarkannya.
Saya tidak setuju saya yang membayar RM10 itu.
Saya tidak setuju tiada siapa yang menakutkan saya untuk membuat akuan
berkanun ini.
Saya tidak setuju bahawa akuan berkanun ini disediakan oleh Sukdev atas
arahan-arahan saya.
Saya tidak bersetuju bahawa para. 5 di IDD 54 telah disediakan oleh
peguam Sukdev atas arahan saya.Saya telah dipaksa
untuk menandatangani IDD54 setelah sering dihubungi oleh MaAmin, Rahim
King kerana mereka adalah orang-orang suruhan tertuduh.On being re-examined as to the contents of exh. D55 Azizan said:
Pada masa saya menandatangani D55, Buku 50 Dalil tidak dibaca kepada saya.
Juga tidak dibaca sebelumnya.
Sebelum saya menandatangani D55 saya juga tidak membaca Buku 50 Dalil ini.
Pada sekitar waktu itu saya menandatangani D55 Buku 50 Dalil itu tidak ditunjukkan kepada saya.Sehingga hari ini saya tidak pernah membaca Buku 50 Dalil.Even
if exh. D55 was prepared by Sukdev Singh on the instructions given by
Azizan it cannot be held to be true if there is evidence to suggest that
it may not be so. In the light of the police report made by Azizan and
the evidence he gave in court about being pressured to swear the
statutory declaration by Rahim King and MaAmin the defence carries the
burden of establishing that it was executed voluntarily being the party
which has introduced it in evidence.
On the available evidence I am unable to rule that exh. D55 was affirmed
by Azizan voluntarily.
His evidence shows that he affirmed it under pressure.
It follows that exh. D55 is not entitled to any weight in the absence of
any further evidence.
Be that as it may, it must be observed that exh. D55 makes no specific
reference to exh. P14C. Paragraph 5 of exh. D55 only states that any
reference in Buku 50 Dalil to Azizan is not true.
Azizan said in reexamination that when he swore exh. D55 he had not read
Buku 50 Dalil.
Thus there can be no question of para. 5 of exh. D55 referring to exh.
P14C with the result that there is no denial of Azizan signing it. In
substance exh. D55 is only a denial by Azizan of any involvement of him
with Buku 50 Dalil.
It does not affect his evidence on exh. P14C in any way.
It follows that even if I were to hold that exh. D55 was sworn by Azizan
voluntarily it does not conflict with his oral evidence in court.
Furthermore, even if it can be argued that para. 5 of exh. D55 refers to
exh. P14C Azizan's clear oral evidence that he signed the letter was
not challenged in cross-examination thereby leaving two versions for the
court to consider.
In such circumstances the court is entitled to act on the oral evidence
given in court if satisfied that it is true (see Tan Chow Soo V. Ratna Ammal [1967] 1 LNS
178). In that event I would accept the oral evidence of Azizan as it is consistent with the evidence of other witnesses.
It
is significant to remember that the important aspects of the evidence
of Azizan pertinent to the charges are that he signed exh. P14C and that
he was subjected to the turning over process by ACP Mazlan and DSP Aziz
pursuant to which he wrote exhs. P17 and P20 involuntarily.
The fact that he signed exh. P14C was not challenged except for the
submission that he did not narrate all its contents to Ummi. I have
already dealt with that issue.
However, there was no challenge to his evidence on how he came to write
exhs. P17 and P20. The bulk of his cross-examination was on collateral
matters from which he came out unscathed.
It must also be observed that Azizan was subjected to several days of
cross-examination which he withstood very well. I do realise that the
fact that a witness is unshaken in cross-examination is not an acid test
for his credibility.
Azizan's evidence is consistent with itself and with the other evidence
adduced by the prosecution.
Having also taken into account the manner in which he gave his answers
and his demeanour while giving evidence it is my firm finding that his
evidence is credible.
Ummi
The principal line
of attack against the credibility of Ummi by the defence was that she
has a motive for doing what she did.
It was contended that she was motivated by promises to send exh. P14A, B
and C. It was alleged that she said she could not remember whether she
got any benefits.
The defence said that this amounted to bribery and corruption.
The prosecution objected to this part of the submission as it is based
on an extract from tampered tapes of which fact the defence was aware. I
ordered that there shall be no submission on the taped conversation as
they are not in evidence before the court.
The submission again continued on a similar line.
It was said that she had a motive to carry out her scheme.
She arranged for Dr. Restina to meet Azizan and also arranged for him to
see Tan Sri Rahim Thamby Chik.
She took Azizan to see a lawyer.
Thus she had a hand in everything from the beginning.
As such she would do everything within her power to influence Azizan to
lie.
Exhibit P18 reveals that there was a political conspiracy and that she
was a part of it. Thus she will be obliged to lie as she is an
interested witness.
This part of the submission is not supported by the evidence nor was
there evidence from which such an inference could be drawn.
In any event, even if there was a conspiracy it is irrelevant as the
fact in issue is whether she had written exhs. P14A, B and C and not her
motive for doing so.
In her cross-examination several other
questions were directed at her in order to damage her credibility.
She denied that she had been disowned by her father; that she had sold
her father's Mercedes Benz motor car without his permission; that she
had been arrested for "khalwat" and that she had a lot of debts.
She denied them.
She said that she could not remember whether she had written a letter to
her father saying that she had obtained a contract worth millions of
ringgit.
She denied that she had written love letters to the accused and that she
was jealous of Shamsidar.
She said that she came to know Khairuddin bin Abu Hassan only recently.
She also denied a conversation that she allegedly had in the toilet with
one Ziela Jalil.
She also denied that she wrote exh. P14A, B and C so that Azmin will
divorce his wife Shamsidar and that she wrote it without the knowledge
of her parents.
She denied that she confessed to her father and her brother Azmin nor
anybody else that she wrote exh. P14A, B and C for money; that she is
looking for ways and means of getting the balance due to her and that
Azizan will get a first payment of RM1 million.
She also denied that she was made use of by corporate and political
leaders. I do not consider her answers to be relevant as what is in
issue is only the fact of her making the allegations and not her motive
for doing so. As this line of cross-examination goes to Ummi's credit
the answers she gave are final and she cannot be contradicted on them
pursuant to s. 153 of the Evidence Act 1950 which I shall consider in a
later part of the judgment.
It was then argued that the statutory
declaration (exh. D90) that she affirmed shows that she is not the
author of exh. P14A, B and C as she has denied writing it and that it
has the effect of demolishing her evidence.
Exhibit D90 reads as follows:
STATUTORY DECLARATIONI,
Cik Ummi Hafilda binti Ali (NRIC No. A0793275) of No. 1E, Jalan
Seladang, Kg. Klang Gate Baru, Setapak, Kuala Lumpur do hereby and
sincerely declare that:1. I am not involved nor
have anything to do whatsoever with the publication of the book "50
Dalil Mengapa Anwar Tidak Boleh Jadi Perdana Menteri" nor with the
author of the book. I had not in anyway contributed to nor colluded with
its publication although some elements are now trying to implicate me
in order to give credibility to the contents of the book. I do not know
the author of the book and have no contact or communication with him
directly or indirectly.2. By reason of the matters
stated above, I deny I had supplied the letter appearing in the book
purportedly written by me to YAB Perdana Menteri.
Further,
the photograph in which I appeared together with two others which was
published in the book was not supplied by me although I remember giving a
copy of the letter and the photograph to the police sometime in August
1997.3. I also deny that I have anything to do
with the circulation of the letter which I am alleged to have written to
the YAB Perdana Menteri. I am not the originator of the "surat layang"
and have no idea of the identity of the person or persons behind it.
4.
I hope that my name will not be dragged into this shameful episode as
any matter concerning my family members should be decided and be
resolved within the family as it is not a matter for public discussion. I
trust my wishes will be respected.AND I make
this solemn declaration conscientiously believing the same to be true
and by virtue of the provisions of the Statutory Declarations Act, 1960.When she was cross-examined on the circumstances in which she affirmed exh. D90 she said:
Saya
ada membuat surat pengakuan berkanun pada 23.6.98. Ketika itu saya
menandatangani SD itu ianya berlaku dalam keadaan terdesak.
Berdasarkan pada SD itu saya menganggapnya adalah benar. (Saksi dirujuk
kepada SD.) Inilah SD yang dibuat oleh saya. I do not have the original.
Saya tidak pasti siapa memegang salinan asal ini. (Salinan asal dirujuk
kepada saksi.) Ini adalah salinan asal - ditanda sebagai D90. (Saksi
dirujuk kepada para. 3 di D90.) I have stated this there.
Ini ditulis oleh peguam.
Maksud saya di para. 3 saya tidak terlibat sama sekali dengan surat yang
ditulis kepada PM yang terdapat di Buku 50 Dalil.
With regard to the second sentence in para. 3 maksud saya surat layang
yang dimaksudkan adalah Surat Talqin Untuk Anwar dan saya sendiri tidak
mengetahui identiti orang di belakang surat itu.
Peguam yang menyediakan SD ini adalah En Yeoh. (Saksi dirujuk kepada
para. 2 di D90.) Ini adalah benar.
Saya perlukan sedikit penjelasan.Saya tidak
pernah membekalkan sebarang surat ataupun gambar kepada penulis Khalid
Jafri tetapi ini tidak bermakna saya menafikan kandungan surat asal yang
telah saya hantar kepada YAB PM.Q What do you mean by "purportedly" in para. 2?A
Maksud yang kononya surat yang ditulis saya kepada YAB PM kerana saya
tidak mengetahui sama sekali kandungan surat yang dimuatkan oleh Khalid
Jafri dalam Buku 50 Dalil.
Buku itu saya tidak terlibat langsung.(Saksi dirujuk kepada para. 4.) Ini adalah benar.In re-examination she said:
(Saksi dirujuk kepada D90.) Saya ada didesak oleh abang saya Azmin melalui Dato' Sng Chee Hua untuk membuat ini.A
peculiar feature of the manner in which exh. D90 was tendered in
evidence was that Ummi was first asked whether she had the original
statutory declaration in her possession and whether she knew who had the
original.
When she replied in the negative the original was suddenly shown to her
by the defence.
She explained that with regard to the first sentence in paras. two and
three of exh. D90 she was not involved in the contents of the letter as
appearing in Buku 50 Dalil.
It was submitted by the defence that the word "purportedly" in paras.
two of the exhibit shows that Ummi did not write exh. P14A, B and C. She
said that the word was used to refer to the letter appearing in Buku 50
Dalil of which she had no knowledge.
Be that as it may, her explanation arises for consideration only if exh.
D90, a defence exhibit, is proved to have been affirmed voluntarily.
The evidence of Ummi shows that she affirmed it under pressure.
Thus, on the available evidence I am unable to rule that it was affirmed
voluntarily.
It follows that exh. D90 is not entitled to any weight in the absence of
any further evidence.
Even if I were to hold that exh. D90 was sworn by Ummi voluntarily it
does not alter her oral evidence in any way as the contents of exh. D90
only relate to Buku 50 Dalil and not to exh. P14A, B and C. In any event
it must be noted that her oral evidence that she signed exh. P14A and
had sent it together with exh. P14B and C was not challenged in
cross-examination.
If, therefore, I were to take exh. D90 into account to say that exh.
P14A, B and C was not written by her there would be two versions for the
Court to consider, that is to say, one as contained in her oral
evidence and the other in exh. D90. In such circumstances the court is
entitled to act on the oral evidence given in court if satisfied that it
is true (see Tan Chow Soo V. Ratna Ammal [1967] 1 LNS
178). In that event I would accept the oral evidence of Ummi as it is consistent with the evidence of other witnesses.
It
must be observed that the salient parts of the evidence of Ummi
relevant to the charges are that she prepared exh. P14A, B and C and
that she was subjected to the turning over process by ACP Mazlan and DSP
Aziz pursuant to which she wrote exhs. P18, P21 and P22 voluntarily.
She denied a defence suggestion that she did not draft exh. P14A, B and C
and that it was drafted by Dato' Seri Megat Junid.
Exhibit P38A-V is a handwritten draft by her of exh. P14A, B and C thus
supporting her evidence that she drafted them.
Even if they were drafted by someone else the fact remains that they
contain allegations made by her.
It was never put to her that she did not sign and send exh. P14A and B
together with P14C. She denied a defence suggestion that she wrote exhs.
P18 and P22 voluntarily.
In my opinion Ummi's evidence is consistent with itself and with the
other evidence adduced by the prosecution.
She was not shaken in cross-examination though I am aware that it is not
an acid test for credibility.
She gave her answers very confidently.
Having also taken into account her demeanour while giving evidence it is
my firm finding that her evidence is credible.
(xi) Corroboration
It was contended by the defence that the evidence of the accomplices must be corroborated.
It was held in R v. Mullins
[1848] 3 Cox CC 526 that corroboration does not mean that there should
be independent evidence of that which the accomplice relates, otherwise
the accomplice's testimony would be unnecessary.
In the celebrated case of R v. Baskerville [1916] 2 KB 658
Viscount Reading LCJ said that what is required is some additional
evidence rendering it probable that the story of the accomplice is true,
and that it is reasonably safe to act upon his statement.
His Lordship said at p. 667:
We hold that evidence in
corroboration must be independent testimony which affects the accused by
connecting or tending to connect him with the crime.In
other words, it must be evidence which implicates him, that is, which
confirms in some material particular not only the evidence that the
crime has been committed, but also that the prisoner committed it.The word "implicate" does not necessarily mean "incriminate" or "inculpate"; it may mean only "involve" (see R v. Kerim [1988] 1 Qd R 426). Ong CJ (Malaya) said in Brabakaran v. PP [1966] 1 MLJ 64 that corroborative evidence is not necessarily restricted to the oral evidence of an independent witness.
It may be circumstantial as well as direct (see R v. Tripodi [1961] VR 180). InDoney v. R
[1990] 171 CLR 207 it was held that consistent with its role of
confirming other evidence rather than amounting itself to evidence which
necessarily leads to conviction, the corroborative evidence does not
need to be proven beyond reasonable doubt.
I shall consider in a
later part of the judgment whether the evidence of Dato' Mohd Said,
Dato' Amir Junus, ACP Mazlan and DSP Aziz are corroborated.
I shall now consider the reasons why I held that the prosecution had made out a prima facie case against the accused in respect of the charges preferred against him.
The Ingredients To Be Proved By The Prosecution
Section 2(1) of Ordinance No. 22, under which the four charges against the accused have been preferred, reads as follows:
2(1)
Any Member of the administration or any Member of Parliament or the
State Legislative Assembly or any public officer, who while being such a
Member or officer commits any corrupt practice shall be guilty of an
offence and shall be liable on conviction to imprisonment for a term not
exceeding fourteen years or to a fine not exceeding twenty thousand
ringgit or to both such imprisonment and fine.In order to
prove the charges against the accused the prosecution has to establish
two ingredients, that is to say, that he was a Member of the
administration at the material time and that while being such Member he
committed a corrupt practice.
The first ingredient to be proved by
the prosecution is common to all the charges.
The second ingredient involves proof of the manner in which the accused
used his position for his advantage as enumerated in the four charges.
They are as follows:
First Charge
(a) That the
accused directed Dato' Mohd Said bin Awang, Special Branch Director and
Amir bin Junus, Special Branch Deputy Director II to obtain a written
statement from Azizan bin Abu Bakar denying his allegation of sodomy as
contained in his "Pengakuan Bersumpah" dated 5 August 1997 which they
obtained as directed.
(b) for the purpose of saving himself from embarrassment.
Second Charge
(a)
That the accused directed Dato' Mohd Said bin Awang, Special Branch
Director and Amir bin Junus, Special Branch Deputy Director II to obtain
a written public statement from Azizan bin Abu Bakar denying the
allegation of sodomy as contained in his "Pengakuan Bersumpah" dated 5
August 1997 which they obtained as directed.
(b) which he used for the purpose of protecting himself against any criminal action.
Third Charge
(a)
That the accused directed Dato' Mohd Said bin Awang, Special Branch
Director and Amir bin Junus, Special Branch Deputy Director II to obtain
a written statement from Ummi Hafilda bt Ali denying the allegation of
sexual misconduct and sodomy as contained in her confidential report
entitled "Perihal Salah Laku Timbalan Perdana Menteri" dated 5 August
1997 which they obtained as directed.
(b) for the purpose of saving himself from embarrassment.
Fourth Charge
(a)
That the accused directed Dato' Mohd Said bin Awang, Special Branch
Director and Amir bin Junus, Special Branch Deputy Director II to obtain
a written public statement from Ummi Hafilda bt Ali denying the
allegation of sexual misconduct and sodomy as contained in her
confidential report entitled "Perihal Salah Laku Timbalan Perdana
Menteri" dated 5 August 1997 which they obtained as directed. (b) which
he used for the purpose of protecting himself against any criminal
action.
I shall now deal with the two ingredients
(a) Member Of The Administration The Law
Section
2(2) of Ordinance No. 22 provides that the expression "Member of the
administration" (hereafter referred to as "the phrase") has the meaning
assigned to it in art. 160(2) of the Federal Constitution (hereafter
referred to as "art. 160(2)"). The phrase is defined in art. 160(2) in
the following manner:
'Member of the administration'
means, in relation to the Federation, a person holding office as
Minister, Deputy Minister, Parliamentary Secretary or Political
Secretary and, in relation to a State, a person holding a corresponding
office in the State or holding office as member (other than an official
member of the Executive Council).Thus a Federal Minister
is a Member of the administration within the meaning of s. 2(1) of
Ordinance No. 22. As all four charges refer, inter alia, to the
office of Deputy Prime Minister held by the accused it is necessary to
determine whether this office comes within the scope of the word
"Minister" as appearing in the meaning assigned to the phrase by art.
160(2). This would depend on whether it is permissible to extend the
meaning of the word to include the office of the Deputy Prime Minister,
and for that matter, that of the Prime Minister.
The first
observation that I would like to make is that the relevant part of art.
160(2) which defines the phrase must be construed as if it were a part
of Ordinance No. 22 as it has been adopted by the latter as its
definition section for the purpose of defining the meaning of the
phrase.
Thus the ordinary rules relating to statutory interpretation would
become relevant insofar as the application of art. 160(2) to Ordinance
No. 22 is concerned.
It is a fundamental rule of statutory interpretation that in
interpreting a statute the intention of Parliament must first be
ascertained.
If the words of a statute are in themselves precise and unambiguous the
court must give effect to them according to their natural and ordinary
meaning, as the words themselves best declare the intention of
Parliament.
If, however, adhering to their grammatical and ordinary meaning would
lead to some absurdity, or some repugnancy or inconsistency with the
other parts of the statute, the grammatical and ordinary sense of the
words may be modified so as to avoid the absurdity and inconsistency,
but no further (see Trustees of the Kheng Chin Tin Hon Kong and Burial Ground v. Collector of Land Revenue [1992] 1 SLR 425). In Hong Kong Bank (M)
Bhd v. Raja Letchumi a/p Ramarajoo & Ors [1996] 4 CLJ 155; [1996] 2 MLJ 34 Gopal Sri Ram JCA said in the Court of Appeal that ever since Heydon's case
[1584] 76 ER 637 courts are obliged to look at the historical
background of a statute in order to ascertain the purpose for which it
was enacted.
However, when a statute says that a word or a phrase shall mean certain
things, the definition is a hard and fast definition and no other
meaning can be assigned to it (see Gough v. Gough [1891] 2 QB 665; Bristol Trams Co v. Bristol
59 LJQB 449). Be that as it may, art. 160(2) itself states in
unmistakable terms that the meanings it gives to expressions are
applicable "205 unless the context otherwise requires 205." This means
that the meaning given to an expression by art. 160(2) may be modified
to suit the context in which it is used in the body of the text.
The word "context" means not only the part which immediately precedes or
follows a section, but the whole Act (see Jaques v. Stafford
[1890] 11 LR (NSW) 127). It is a rule of construction that where a
statutory meaning is given to a word and the context shows that it is to
have a different signification from the defined meaning, the latter
meaning should be departed from to the extent that its use or context
renders necessary (see Re Jennings Gould v. South Australian Superannuation Fund Board
[1945] SASR 50). It has also been held that an interpretation section
of an Act must yield to a context in the enacting portion of the statute
(see Stevens v. Colonial Sugar Refining Co Ltd [1920] 28 CLR
330). Where an ambiguity arises as to whether the legislature has used a
general expression in its narrower or in its wider sense, the court
will place that meaning upon the expression which will most effectually
carry out the object of the section.
In such cases it becomes necessary to examine the context, the subject
matter, and the object and purpose of the enactment as disclosed by its
provisions (see Bank of Australia/Asia v. Hall [1907] 4 CLR 1514). As an illustration of a situation where the assigned meaning to a word was modified I refer to PP v. Datuk Tan Cheng Swee & Ors
[1979] 1 MLJ 166 where the accused was charged under s. 2(1) of
Ordinance No. 22 for having committed a corrupt practice while being a
public officer.
With regard to the meaning of the expression "public officer" s. 2(2) of
Ordinance No. 22 provides that it has the meaning assigned to it in s. 2
of the Prevention of Corruption Act 1961.
At the High Court Ajaib Singh J (as he then was) said that by assigning a
specific meaning to the term "public officer" the inference is that the
legislature intended that the term should mean only that as defined in s. 2 of the Prevention of Corruption Act 1961 and nothing else (at pp. 168-169) and held that the accused was not a public officer as prescribed.
In deliberating over this stand taken by the learned judge the Federal Court, on appeal, referred to Dyke v. Elloitt, The Gauntlet [1872-4] AC 184 where James LJ said at p. 191:
No
doubt all penal statutes are to be construed strictly, that is to say,
the court must see that the thing charged as an offence is within the
plain meaning of the words used, and must not strain the words on any
notion that there has been a slip, that there has been a casus omissus,
that the thing is so clearly within the mischief that it must have been
intended to be included if thought of. On the other hand, the person
charged has a right to say that the thing charged, although within the
words, is not within the spirit of the enactment.But
where the thing is brought within the words and within the spirit,
there a penal enactment is to be construed, like any other instrument,
according to the fair common sense meaning of the language used, and the
court is not to find or make any doubt or ambiguity in the language of a
penal statute, where such doubt or ambiguity would clearly not be found
or made in the same language in any other instrument.The
Federal Court adopted this view in the interpretation of a statute and
held that the accused was a public officer within the meaning of the
definition section.
In the case at bar it must be observed that
the object of Ordinance No. 22 is wide so as to bring to book corrupt
politicians and public officers who abuse their public positions or
office for their pecuniary or other advantage (see Haji Abdul Ghani bin Ishak & Anor. v. PP [1981] 2 MLJ 230). In this regard I also refer to PP v. Datuk Tan Cheng Swee & Ors. [1979] 1 MLJ 166 where Chang Min Tat FJ in speaking for the Federal Court said at p. 178:
The
Emergency (Essential Powers) Ordinance No. 22 of 1970 is enacted to
widen the campaign against bribery and corruption and now makes a penal
offence any practice that comes within the definition of corrupt
practice in the Ordinance, which previously would have escaped the net
of the Penal Code and the Prevention of Corruption Act.It
cannot be disputed that the definition of the phrase in art. 160(2)
refers to high ranking politicians.
The Prime Minister and the Deputy Prime Minister are the number one and
number two politicians respectively in the country.
To give a literal meaning to the word "Minister" would lead to the
absurd and ludicrous position of excluding the captains of politics from
the tentacles of Ordinance No. 22 and thereby defeat the very object
and purpose for which it was enacted.
Bearing in mind, therefore, the object of Ordinance No. 22 and the
context in which the word "Minister" appears in the definition of the
phrase in art. 160(2) it is my view that the word is used in its general
sense and that it must be given an extended meaning in its application
to Ordinance No. 22 to include the Prime Minister and the Deputy Prime
Minister.
The view that I have taken is further supported by s. 3 of the
Interpretation Acts 1948 and 1967 which defines the word "Minister" in
the following terms:
'Minister' means, subject to s. 8(2),
a Minister of the Government of Malaysia (including the Prime Minister
and a Deputy Minister).The reference to a "Deputy
Minister" in the section I have just referred to would include a Deputy
Prime Minister on the principles that I have discussed earlier.
The Evidence Adduced
The
prosecution must establish that the accused was the Deputy Prime
Minister and Minister of Finance at all material times.
In order to prove this ingredient the prosecution called as its witness
Dato' Alias bin Ali, the Deputy Secretary General in the Prime
Minister's Department.
His duties include assisting the Chief Secretary in handling the weekly
Cabinet Meetings and the processing of appointments to administrative
and constitutional posts.
He knows the accused personally.
In support of his statement that the accused was the Deputy Prime
Minister at the material time he tendered in evidence the appointment
letter appointing the accused to that post signed by YAB Prime Minister
(exh. P30); his letter of appointment as a Federal Minister signed by
DYMM Yang Di-Pertuan Agong (exh. P31); and a copy of Government Gazette
PU(A) 203 dated 1 June 1995 referring to his appointment as Deputy Prime
Minister and Minister of Finance (exh. P32) and PU(A) 118 dated 24
March 1994 referring to his appointment as Deputy Prime Minister (exh.
P38). Dato' Alias bin Ali said that the accused held the posts till 2
September 1998.
This evidence was not challenged by the defence.
As a matter of fact the defence conceded in its submission that it is a
fact that the accused was the Deputy Prime Minister and Minister of
Finance at the material time and that this ingredient is not challenged.
I was therefore satisfied that the prosecution had adduced prima facie
evidence to show that the accused was the Deputy Prime Minister and
Minister of Finance at the material time and, thus, a Member of the
adminsitration within the meaning of s. 2(2) of Ordinance No. 22.
(b) While Being Such Member Commits A Corrupt Practice
This ingredient involves proof of two elements by the prosecution.
They are:
(i) the manner in which the accused used his position and
(ii) the advantage that he obtained
I shall deal with the two elements separately.
(i) The Manner In Which The Accused Used His Position The Law
This
ingredient is governed by the phrase "corrupt practice" which is
defined in s. 2(2) of Ordinance No. 22 in the following terms:
'Corrupt
practice' means any act done by any Member or officer referred to in
sub-section (1) in his capacity as such Member or officer, whereby he
has used his public position or office for his pecuniary or other
advantage; and without prejudice to the foregoing, in relation to a
Member of a State Legislative Assembly includes any act which is
contrary to the provision of sub-section (8) of s. 2 of the Eighth
Schedule to the Federal Constitution or the equivalent provision in the
Constitution of a State.In this regard I also refer to PP v. Dato' Haji Mohamed Muslim bin Haji Othman [1983] 1 MLJ 245 where Hashim Yeop A Sani J (as he then was) said at p. 247:
From
the definition of 'corrupt practice' it is clear that what the law aims
to strike at is any act done by a member of the Administration or
public officer whereby he has used his public position or office for his
pecuniary or other advantage.In other words the
law aims to strike at every act of a member of the Administration or
public officer which amounts to an abuse of his public position or
office for his personal advantage.A corrupt practice
within the meaning of s. 2(1) of Ordinance No. 22 therefore occurs when a
Member or officer uses his public position or office for his pecuniary
or other advantage.
A matter of concern is whether the words "205
any act done by any Member 205 in his capacity as such Member, whereby
he has used his public position or office for his pecuniary or other
advantage 205" appearing in the definition of the expression "corrupt
practice" in s. 2(2) of Ordinance No. 22 mean that the act done must be
one that is connected to the duties of the Member, that is to say,
whether it must have a bearing to the discharge of his duties as such
Member.
It was the contention of the defence that the words "205 in such
capacity 205" refer to a capacity to exercise power and that, on the
facts of this case, in order for the accused to use his public position
for his advantage he must have had authority over the Special Branch.
If he did not have that authority he would not have had the power to
direct the Special Branch officers on the performance by them of their
duties.
They must, therefore, have been responsible to the accused in his
capacity as Deputy Prime Minsiter and Minister of Finance in order for
him to exercise authority over them.
The prosecution in its reply said that s. 2(2) of the Ordinance No. 22
is drafted in such a way that it is not a requirement of the section
that the accused must do an act in connection with his own duties as
Deputy Prime Minister or Minister of Finance in order to be liable.
This interpretation is in accord with the expression "any act" in s.
2(2) which must be given a very wide and not a restrictive
interpretation with the result that it covers any act of an accused
person depending on the circumstances of each case.
In support of this argument reference was made to Dhaneshwar Narain Saxena v. The Delhi
Administration AIR [1962] SC 195;Dalpat Singh & Anor. v. State of Rajasthan AIR [1969] SC 17; Kewal Krishnan v. State [1975] Cr LJ 1963 and Attorney General of Hong Kong v. Ip Chiu & Anor.[1980] 2 WLR 332.
In
interpreting the ambit of the words in question I find it necessary to
travel to other jurisdictions which have legislative provisions similar
to s. 2(1) of Ordinance No. 22 in the absence of local authorities on
the point. I shall first refer to s. 5 of the Indian Prevention of
Corruption Act 1947 the material parts of which read as follows:
5(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty:(a) 205(b) 205(c) 205(d)
If he by corrupt or illegal means or by otherwise abusing his position
as a public servant, obtains for himself or for any other person any
valuable things or pecuniary advantage.(2) Any
public servant who commits criminal misconduct in the discharge of his
duty shall be punishable with imprisonment for a term which may extend
to seven years or with the fine or both.It must be
observed that s. 5(1)(d) read with s. 5(2) makes specific reference to
abuse of position in the discharge of duty of a public servant.
In State of Ajmer v. Shivji Lal AIR [1959] SC 847 a government
teacher obtained money from a person for procuring a job in the Railway
Running Shed as a result of which he was charged for an offence under s.
5. It was held that the mere receipt of money by a public servant even
if it be by corrupt means is not sufficient to make out an offence under
s. 5(2) read with s. 5(1)(d) as the words "by otherwise abusing his
position" read with the words "in the discharge of his duty" appearing
in the section make it quite clear that an offence under the section
requires that the public servant should misconduct himself in the
discharge of his own duty and that since it is not part of the duty of a
government teacher to make appointments in a Railway Running Shed,
there would be no question of his committing misconduct in the discharge
of his duty when he takes money for procuring a job for a person in the
Railway Running Shed.
As the Supreme Court said:
The offence under this
provision consists of criminal misconduct in the discharge of his duty.
In order, therefore, that this offence is committed there should be
misconduct by the public servant in the discharge of his duty.
In other words the public servant must do something in connection with
his own duty and thereby obtain money for himself or for any other
person by corrupt or illegal means or by otherwise abusing his position.
If a public servant takes money from a third person in order to corrupt
some other public servant and there is no question of his misconducting
himself in the discharge of his own duty, that action may be an offence
under s. 161 of the Indian Penal Code but would not be an offence under
s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act.
The essence of an offence under s. 5(2) read with s. 5(1)(d) is that
the public servant should do something in the discharge of his own duty
and thereby obtain any valuable thing or pecuniary advantage for himself
or for any other person by corrupt or illegal means or by otherwise
abusing his position.
The words 'by otherwise abusing his position' read along with the words
'in the discharge of his duty' appearing in s. 5(1)(d) make it quite
clear that an offence under that section requires that the public
servant should misconduct himself in the discharge of his own duty.
In the present case, the accused was a teacher and it was no part of his
duty to make appointments in the Running Shed at Abu Road.
There would, therefore, be no question of his committing misconduct in
the discharge of his duty when he took money for procuring a job for
Prem Singh in the Running Shed.So far, therefore,
as the charge under s. 5(1)(d) is concerned, we are of opinion that
there was no question of the accused misconducting himself in the
discharge of his own duty in the circumstances of this case and it must
fail.This view, however, did not find favour with a different panel of the Supreme Court in Dhaneshwar Narain Saxena v. The Delhi Administration
AIR [1962] SC 195.
In that case the appellant was an Upper Division Clerk in the office of
the Chief Commissioner of Delhi.
He had come to know one Ram Narain, who was the main prosecution witness
in the case and who was a fireman attached to the Delhi Fire Brigade.
Ram Narain had for a long time been anxious to obtain a license for a
double-barrelled shot-gun.
It was alleged that he had sought the assistance of the appellant who
had nothing to do with the issuing of licenses for firearms which is
done by the office of the Deputy Commissioner, Delhi.
The prosecution's case, which rested mainly on the evidence of Ram
Narain, was that he had submitted two applications during the year 1953
for the purpose of obtaining the license with the assistance of the
appellant.
Those applications did not produce any result.
In 1954 he made another attempt and approached the appellant to help
him.
The appellant held out hopes of success in obtaining the license if he
was paid Rs250.
Ram Narain paid only Rs140 and promised to pay the remaining amount
after his sister's marriage.
Thus, the third application for the license was made in which Ram
Narain's salary was declared to be Rs105 per month.
This attempt was successful and Ram Narain was granted the necessary
license.
Eventually the authorities concerned were apprised of the fact that the
salary of Ram Narain was only Rs85 per month and that the declaration in
the form that his salary was Rs105 per month had been falsely made with
a view to get over the difficulty that applications for licenses for
firearms by Government servants drawing less than Rs100 per month would
not ordinarily be considered.
When the authorities came to know the true facts about Ram Narain's
status in Government service, his license was cancelled.
When queried Ram Narain said that his salary had been falsely declared
on the advice of the appellant.
Ram Narain again approached the appellant for help.
The appellant demanded another Rs180 as a reward for getting the license
restored.
The matter was then reported to the police.
The appellant was arrested when a part of the sum agreed was handed to
him.
In the Supreme Court the appellant relied on State of Ajmer v. Shivji Lal
AIR [1959] SC 847 and argued that in order to attract the operation of
s. 5(1)(d) it was a necessary element of the crime charged that the
public servant should have misconducted himself in the discharge of his
own duty, and that if the official favour promised by the public servant
to the giver of the money was not in the hands of the public servant,
he could not be said to have misconducted himself in the discharge of
his own duty.
In rejecting this submission Sinha CJ in writing for the court said at
pp. 198- 199:
In order to bring the charge home to an
accused person under cl. (d) aforesaid of the section, it is not
necessary that the public servant in question, while misconducting
himself, should have done so in the discharge of his duty.
It would be anomalous to say that a public servant has misconducted
himself in the discharge of his duty. 'Duty' and 'misconduct' go ill
together.
If a person has misconducted himself as a public servant, it would not
ordinarily be in the discharge of his duty, but the reverse of it. That
'misconduct', which has been made criminal by s. 5 of the Act, does not
contain the element of discharge of his duty, by public servant, is also
made clear by reference to the provision of cl. (c) of s. 5(1). It is
well settled that if a public servant dishonestly or fraudulently
misappropriates property entrusted to him, he cannot be said to have
been doing so in the discharge of his official duty (vide the case of Hori Ram Singh v. Emperor
[1939] FCR 159; AIR [1939] FC 43). An application for special leave to
appeal from that decision was refused by the Privy Council inHori Ram Singh v. Emperor
[1940] FCR 15; AIR [1940] PC 54. This court, therefore, misread the
section when it observed that the offence consists in criminal
misconduct in the discharge of the official duty.
The error lies in importing the description of the offence into the
definition portion of it. It is not necessary to constitute the offence
under cl. (d) of the section that the public servant must do something
in connection with his own duty and thereby obtain any valuable thing or
pecuniary advantage.
It is equally wrong to say that if a public servant were to take money
from a third person, by corrupt or illegal means or otherwise abusing
his official position, in order to corrupt some other public servant,
without there being any question of his misconducting himself in the
discharge of his own duty, he has not committed an offence under s.
5(1)(d). It is also erroneous to hold that the essence of an offence
under s. 5(2), read with s. 5(1)(d), is that the public servant should
do something in the discharge of his own duty and thereby obtain a
valuable thing or pecuniary advantage.It is therefore
clear that the interpretation accorded to s. 5(1)(d) of the Indian
Prevention of Corruption Act 1947 is that it is not necessary that the
public servant must do something in connection with his own duty and
thereby obtain any valuable thing or pecuniary advantage.
I shall next refer to s. 87 of the Criminal Code of Queensland the material parts of which read as follows:
Any person who -(1)
Being employed in the Public Service, or being the holder of any public
office, and being charged with the performance of any duty by virtue of
such employment or office, not being a duty touching the administration
of justice, corruptly asks, receives, or obtains, or agrees or attempts
to receive or obtain, any property or benefit of any kind for himself
or any other person on account of any thing already done or omitted to
be done, or to be afterwards done or omitted to be done, by him in the
discharge of the duties of his office; or(2)
Corruptly gives, confers, or procures, or promises or offers to give or
confer, or to procure or attempt to procure, to, upon, or for, any
person employed in the Public Service, or being the holder of any public
service, or to, upon, or for, any other person, any property or benefit
of any kind on account of any such act or omission on the part of the
person so employed or holding such office; is guilty of a crime....This provision came up for consideration in R v. David
[1931] QWN 2 where a policeman was given a travelling rug to do away
with a jar of petrol found on the accused's premises after a fire.
The accused was charged under s. 87 of the Criminal Code.
The prosecution submitted that, whilst the policeman had no duty to get
rid of the petrol, he did have a duty to retain it and the expression
"in the discharge of the duties of his office" meant "in the course of
his duties". Macrossan SPJ rejected this submission saying:
The
act referred to - the getting rid of the petrol - did not come within
the proper discharge of the officer's duty.
It was not the carrying out of a duty which he had.
Section 87 applies to cases where the act, sought to be performed or
omitted arises out of a duty already incumbent on the official - as in
the granting of licenses.The chairman of a Board
which grants licenses might be offered money to grant a certain
license.... That would come within s. 87 - 'In the discharge of his
duty'.In Herscu v. R [1992] LRC (Crim) 606 the
High Court of Australia comprising Mason CJ, Brennan, Deane, Toohey and
Gaudron JJ took the unanimous view that R v. David [1931] QWN 2
was wrongly decided and ought not to be followed.
In that case the appellant controlled a company which was the developer
of a shopping centre and was dissatisfied with certain conditions
relating to access to the centre imposed by the planning authority.
He made two payments of $50,000 each to the Minister for Local
Government and Main Roads for attempting to ensure that the planning
authority approved changes in the access conditions.
He was charged on two counts of official corruption and was convicted.
The issue that arose for determination by the High Court was whether an
attempt by the Minister to secure the approval of the council to changes
in the access to the shopping centre could, as a matter of law, be
regarded as an act done "in the discharge of the duties of his office"
as Minister for Local Government and Main Roads.
The appellant's argument was that, because the Minister lacked any power
as a matter of law to require the council to change the conditions of
the planning consent in relation to access, he could be under no duty to
do so and his attempt to procure a change was not an act done in the
discharge of the duties of his office as Minister.
He further submitted that a person is not charged with the performance
of such a duty unless he is subjected to a legally binding obligation to
do a particular act or make a particular omission.
In answer to this Mason CJ, Dawson, Toohey and Gaudron JJ said at p.
611:
The section is concerned with the violation or
attempted violation of official duty rather than with the actual
performance of official duty.Official corruption
necessarily involves impropriety and it is not to be supposed that s. 87
is limited to those cases where the act or omission in question would,
apart from the corrupt influence, be proper.In his judgment Brennan J said at pp. 614-615:
It is submitted that the phrase 'duties of his office' in s. 87
refers only to duties imposed by law by virtue of the particular office
held.
On this argument, when s. 87 refers to 'being charged with the
performance of any duty', it refers to a legal liability to perform a
particular duty.
No such duty was established in this case. I am unable to accept so
narrow an interpretation of s. 87.
It is the leading code provision dealing with official corruption, a
social evil which might occur not only when the holder of a public
office is given a benefit on account of doing what he is legally bound
to do but also when the holder of a public office is given a benefit on
account of his using the influence of his office to secure an object
(though it lies in the power of others to effect the object sought) or
on account of his exercising a discretion vested in lieu to
secure an object.
Indeed, official corruption is less likely to occur and is likely to be
less insidious in relation to the performance of a duty which a public
officer is obliged to perform than in relation to the use of influence
or the exercise of a discretion.
It would be absurd to interpret s. 87 as applicable only to a case where
a bribe was paid on account of a public officer doing what he is
legally bound to do or on account of his abstaining from doing what he
is legally bound not to do. The scope of s. 87 can hardly be limited to
the giving of a benefit to a public officer to induce him to act in
accordance with his legal duty: see Attorney-General of Hong Kong v. Ip Chiu [1980] AC 663, [1980] 2 WLR 332, where such a payment was thought to fall outside the scope of similar offence.In
ordinary speech, 'the discharge of the duties' of the holder of a
public office connotes far more than performance of duties which the
holder of the office is legally bound to perform: rather the term
connotes the performance of the functions of that office.
The functions of an office consist in the things done or omitted which
are done or omitted in an official capacity.
The phrase 'being charged with the performance of any duty' thus means
no more than being responsible for performing the functions of the
public office.
That phrase distinguishes the holder of a merely honorific public office
from the holder of a public office responsible for the performance of
official functions. A broad interpretation of s. 87 is better adopted to
effect its purpose than a narrow interpretation.
When the office is such that the holder wields influence or is in a
position to wield influence in matters of a particular kind the wielding
of influence in a matter of that kind is a discharge of the duties of
the office.
Such a wielding of influence is something done in an official capacity.
The minister administering the City of Brisbane Act under which the
Council operates and the City of Brisbane Town Planning Act which
confers power on the council to amend the conditions applicable to a
development approval might be expected to have considerable influence on
the council's consideration of an application to amend conditions.
As Judge Shanahan, the learned trial judge, put it to the jury in the course of his summing up:You look at the reality of the situation, members of the jury.
Does
a local authority ignore a letter from the Minister for Local
Government?... if a developer or a ratepayer goes to the Minister with a
problem and asks him to intervene, to help in the area of his
responsibility, would the Minister be in the discharge of the duties
which he is charged by virtue of his being the Minister if he does
something about that?'Sometimes the minister's
influence might be properly wielded - where, for example, considerations
affecting main roads are relevant to planning issues - but there are
opportunities for improperly influencing council decisions.The
Australian view is therefore in line with the Indian thinking, that is
to say, it is not necessary that the act complained of must be within
the scope of duty of the public officer concerned.
This broad approach was adopted, correctly in my opinion,
notwithstanding the qualification in the relevant statutory provisions
to the effect that the act complained of must be one that was done in
the discharge of the duties of office of the officer concerned.
I
shall finally refer to s. 4(2) of the Prevention of Bribery Ordinance
1974 of Hong Kong the material parts of which read as follows:
Any
public servant who, without lawful authority or reasonable excuse,
solicits or accepts any advantage as an inducement to or reward for or
otherwise on account of his - (a) performing or abstaining from
performing, or having performed or abstained from performing, any act in
his capacity as a public servant 205 shall be guilty of an offence.This provision of law came up for review in Hong Kam-pin v. The Queen
[1973] HKLR 120.
In that case two auxiliary police constables on duty went to a church
hall where a private dance was being held, and, falsely alleging that a
fight had taken place on the premises, threatened to break up the party.
When pleaded with by the party organiser, one of the accused said, "You
know how to react 205" and held out his palm.
The organiser then proffered $20, but was told, "That is insufficient -
$30." They did, however, in the event accept $20 and then departed.
They were later charged under s. 4(2) and convicted by a magistrate of
corruptly soliciting and accepting the money as an inducement to abstain
from taking action in respect of an offence against public order
alleged to have been committed at the church hall and convicted.
They appealed.
Leonard J summarised the argument of the appellants in this way at p.
126:
The point made, somewhat audaciously, by (the
appellants' counsel) was that since no actual offence against public
order was alleged and since no such offence could properly be alleged by
the appellants the sum solicited and received could not be said to have
been solicited or received by the appellants 'as an inducement to or
otherwise on account of their abstaining from performing an act in their
capacities as public servants.' To put it another way, if the
appellants had acted as found by the magistrate they might have been
guilty of the offence of demanding with menaces but not of an offence
under s. 4(2).... Indeed, (the appellants' counsel) in the course of his
argument stated: 'I seek to equate this situation with the case of a
police officer who by producing a gun in the street gets money from an
innocent passer-by.' He pointed out that there was nothing in the
evidence to suggest anything disorderly about the dance or that the
complainants might have thought there was.... He submitted that as all
parties must have known that the appellants had no authority to break up
the dance, it followed that it could not be said they were acting in
their capacities as public servants - the threat must have been, and
been regarded by all, as a private threat.In answer to this his Lordship said at p. 129:
Here
the vital words are 'in his capacity as a public servant'... It
becomes, I consider, clear that the word 'capacity' cannot be intended
to bear the narrow meaning which (the appellants' counsel) would have me
assign to it. 205 As I see it the question which one must ask oneself
when considering the corruptness of a gift given to or solicited by a
public servant in order to induce him to abstain from a proposed course
of action is 'would that gift have been given or could it have been
effectively solicited if the person in question were not the kind of
public servant he in fact was?' If the answer is 'Of course not' as it
is in this case then the gift has been solicited or given to him in his
capacity as a public servant and is a corrupt one. 205 The present
ordinance aims at the mischief of a police officer obtaining a gift from
a member of the public for forbearing to act in a manner which would be
embarrassing to that members of the public whether or not he be
entitled virtute officii to do the act forborne provided of course that
the embarrassment sought to be avoided by the gift could not equally
easily have been caused by the police officer had he not been a police
officer.In approving this dictum Lord Edmund-Davies in delivering the advice of the Privy Council in Attorney-General of Hong Kong v. Ip Chiu & Anor.[1980] 2 WLR 332 said at p. 338:
It
has to be said respectfully that the Court of Appeal never really dealt
with Leonard J's test.Indeed, however unwittingly, they in effect
discarded it, for more than once they equated a public servant's
'capacity' with his 'duty' and thus considerably narrowed the former
word, which is the only one contained in s. 4(2).It has
therefore been held that the word "capacity" in s. 4(2) is not the
equivalent of "duty" and that the true test whether an advantage has
been solicited or accepted by a person in the capacity of a public
servant is whether the gift would have been given or could have been
effectively solicited if the person in question were not the kind of
public servant that he in fact was; if the answer to that question were
in the negative, then the person had taken the gift in his capacity as a
public servant, provided that the embarrassment sought to be avoided by
the gift could not equally easily have been caused by any person not
holding that office.
I must point out that there is no
qualification in the definition of the expression "corrupt practice" in
s. 2(2) of Ordinance No. 22 as in the Indian and Queensland legislation
that I have referred to. It does not require that the act done must be
in relation to the discharge of duties of the officer concerned.
It merely refers to any act done by any Member or officer in his
capacity as such Member or officer whereby he has used his public
position or office for his pecuniary or other advantage.
That the act done must have been done in the capacity of the Member as
such Member is similar to the language employed in s. 4(2) of the
Prevention of Bribery Ordinance 1974 of Hong Kong.
The judgment of the Privy Council in Attorney-General of Hong Kong v. Ip Chiu & Anor.[1980] 2 WLR 332
is therefore a good guide in interpreting the relevant part of the
expression "corrupt practice" in s. 2(2) of Ordinance No. 22. Thus the
word "capacity" in the definition must not be equated with "duty". The
true test would therefore be whether the act done would have been done
or could have been effectively done if the person in question were not the
kind of Member that he in fact was.
If the answer to the question is in the negative, then the act of the
Member is one that was done in his capacity as such Member whereby he
has used his public office for his advantage, provided that it could not
equally easily have been done by any person not holding that office.
It applies to any advantage obtained by the Member or officer concerned
by the use of his influence.
The Evidence Adduced
The
prosecution must prove that the accused directed Dato' Mohd Said and
Dato' Amir Junus to obtain from Ummi and Azizan the written statements
dated 18 August 1997 addressed to YAB Prime Minister with regard to the
first and third charges and the public statements with regard to the
second and the fourth charges to deny the allegations.
The evidence relating to the manner in which the accused used his
position in relation to the first and the third charges and in relation
to the second and fourth charges are inter-related.
As this ingredient forms a continuous series of acts in respect of both
sets of charges I shall deal with them together.
In proof of this ingredient the prosecution must establish that:
(1)
Azizan made an allegation of sodomy as contained in his Pengakuan
Bersumpah dated 5 August 1997 against the accused and Ummi made an
allegation of sexual misconduct and sodomy as contained in her
confidential report entitled Perihal Salah Laku Timbalan Perdana Menteri
dated 5 August 1997 against the accused;
(2) the accused
directed Dato' Mohd Said and Dato' Amir Junus to obtain from Ummi and
Azizan written statements addressed to YAB Prime Minister and public
statements denying the allegations and that they obtained the statements
as directed.
I shall consider the two elements separately.
(1) Whether Azizan And Ummi Made The Allegations Against The Accused
The
prosecution is only required to prove that Azizan and Ummi made the
allegations as contained in Pengakuan Bersumpah dated 5 August 1997
(exh. P14C) and in Perihal Salah Laku Timbalan Perdana Menteri dated 5
August 1997 (exh. P14A and B) respectively against the accused.
With regard to exh. P14C Azizan identified it as the one that was signed by him.
It contains allegations of sodomy against the accused.
On the manner in which it was prepared Azizan said in cross-examination:
(Saksi
dirujuk kepada P14C.) Tidak sesiapa yang menyuruh saya membuat P14C.
Saya buat atas kerelaan saya sendiri.
Sebelum membuat P14C saya ada berbincang dengan Ummi Hafilda apa yang
telah terjadi ke atas diri saya.Kami sama-sama berjumpa untuk
membincangkan perkara ini. 205Berkenaan dengan P14C pada mulanya Ummi tidak mengetahui tentang perbuatan liwat yang terjadi ke atas diri saya.
Saya telah menceritakan kejadian yang berlaku ke atas saya.
Ummi pada mulanya tidak ada reaksi apa-apa.Saya yang menyuruh Ummi membuat P14C kerana Ummi mahir dalam penggunaan bahasa.
Dia bersetuju 205.P14C disediakan oleh Ummi dengan persetujuan saya. (P14C dirujuk kepada saksi.) Saya tiada semasa P14C disediakan.
Semasa saya sampai di pejabat Ummi P14C telah sedia ditaip.
Saya tidak tahu siapa yang mendraf P14C. Saya pergi ke pejabat Ummi setelah diberitahu P14C telah siap ditaip.
Saya bersetuju bahawa saya yang memberi fakta-faktanya dan Ummi yang hasilkan P14C ini.
Saya cuma memberitahu Ummi tentang di mana tempat kejadian itu.
Saya tidak berikan Ummi tarikh dan waktu kejadian kerana setiap kejadian saya tidak ingat tarikh dan waktu.
Saya hanya memberitahu Ummi yang ini berlaku pada malam hari atau siang hari. 205Dengan maklumat yang saya berikan kepada Ummi Ummi telah menyediakan P14C dan saya tandatangani.In his re-examination he said:
Saya membaca P14C sebelum menurunkan tandatangan saya.Sebelum
menurunkan tandatangan saya di P14C saya faham dan setuju dengan
kandungan P14C tersebut. P14C mengandungi fakta yang saya sendiri lalui.It
was contended by the defence that there is doubt as to whether exh.
P14C is that of Azizan as he had merely told Ummi that he was sodomised
many times and the places where they took place.
If he had given her only these facts there is no explanation for the
existence of the other materials in the exhibit.
It was therefore submitted that Azizan is not the author of the contents
of exh. P14C and that Ummi had fabricated whatever was not told to her.
The evidence of Azizan that I have reproduced shows that his reference
to what he had told Ummi and what he did not tell her is restricted to
particulars of the acts of sodomy.
He only told her the places and frequency and not the dates and time the
sodomy took place.
He did not say that he did not tell her about the other contents of exh.
P14C. He has made it clear that it was prepared by Ummi on information
supplied by him.
Before he signed it he read it and had agreed with its contents.
Thus the question of parts of exh. P14C having been fabricated does not
arise.
In this regard Ummi said in her cross-examination:
(Saksi
dirujuk kepada P14C.) 205 Saya minta Azizan untuk menandatangani surat
ini dengan persetujuan maklumat ini diberikan adalah benar.I
pause to add that Azizan's answer that he did not know who actually
drafted exh. P14C is understandable as he was not there when it was
drafted.
The evidence of Ummi shows that she drafted it. In her cross-examination
she said:
(Saksi dirujuk kepada P14C.) Saya yang membuat ini.Thus
there is evidence to show that the allegations against the accused in
exh. P14C were made by Azizan as he had signed it after it had been
prepared by Ummi.
As I have discussed in an earlier part of the judgment when dealing with
the credibility of Azizan this finding is not affected in any way by
the contents of exh. D55. He had denied a defence suggestion that he had
mentioned that the signature on exh. P14C was not his nor that he had
denied that the signature was his.
With regard to Ummi's
authorship of exh. P14A, B and C it was suggested in cross-examination
to her that it was not drafted by her.
In reply she said:
Saya tidak bersetuju bahawa saya bukanlah orang yang mendraf P14A, B dan C. Saya tidak pernah menulis buku.Question: Is it not true that you told your brother Azmin that P14A, B and C were drafted by Dato' Seri Megat?Answer: Itu adalah satu pembohongan besar dari Azmin.When further cross-examined on the same issue she said:
Saya
juga tidak ada menyatakan bahawa surat itu telah didraf oleh Dato' Seri
Megat Junid dan meminta saya menaip surat itu untuk diserahkan kepada
Puan Ziela.Ummi has denied the defence suggestion that
exh. P14A, B and C were drafted by Dato' Seri Megat Junid.
The fact that she is the person who drafted it is supported by exh.
P38A-V which is a handwritten draft by her of exh. P14A, B and C and
exh. P35 which is a computer diskette with the contents of exh. P14A, B
and C in it. These were among the exhibits that ASP Zulkifli bin Mohamed
took possession of from the office of Ummi on 18 August 1997.
Her evidence that the draft is in her handwriting was not challenged by
the defence. I therefore accepted her evidence that the draft was
prepared by her.
This supports her evidence that exh. P14A was signed by her and that
exh. P14B and C were prepared by her.
It must be observed that it was never effectively put to Ummi that she
did not sign and send exh. P14A and B together with P14C. As a matter of
fact a large part of her cross-examination proceded on the basis that
she was the writer of exh. P14A, B and C. However, it did take a
different turn in a later part of the cross-examination when in answer
to questions she said:
Adalah benar bahawa pada 14.7.98
saya ada bertemu dengan Azmin, Azman dan Dato' Sng di Restoran Sri
Melayu bagi meminta kerjasama saya.
Saya tidak bersetuju bahawa di Restoran Sri Melayu bahawa saya mengaku
saya bukanlah penulis kepada P14A, B dan C tetapi mengatakan saya
bukanlah penulis kepada Buku 50 Dalil.
Saya tidak bersetuju bahawa Azmin ada bertanyakan kepada saya, 'That you
have involved Dato' Seri Anwar in our family misunderstanding.' Di
pertemuan itu saya bersetuju hanya saya, Azman, Azmin dan Dato' Sng
berada di restoran itu.Saya tidak bersetuju bahawa Azmin ada mengatakan bahawa apa yang saya buat adalah tidak betul.It
will be observed that the cross-examination started with a suggestion
that Ummi was not the writer of exh. P14A, B and C and ended with a
further suggestion that Azmin had told her that what she did was wrong.
If she was not the writer of the exhibit then the question of her having
done anything wrong does not arise.
The cross-examination therefore does not seek to challenge her
authorship of the exhibit effectively.
In any event the evidence that I have referred to earlier is sufficient
to establish her authorship of the exhibit.
It is my further view that even if exh. P14A, B and C were drafted by
someone else the fact remains that she had signed exh. P14A which is the
covering letter for exh. P14B and C. In that event exh. P14B becomes an
allegation made by Ummi by virtue of her having adopted it. Thus there
is evidence to show that the allegations against the accused in exh.
P14B were made by Ummi.
As I have discussed in an earlier part of the judgment when dealing with
the credibility of Ummi this finding is not affected in any way by the
contents of exh. D90. I must also point out that the directions given by
the accused to Dato' Mohd Said and Dato' Amir Junus to obtain the
retraction letters from Ummi and Azizan coupled with the subsequent
obtaining of the letters and their handing over to the accused show that
the accused had accepted the fact that Ummi and Azizan had made the
allegations.
I have already stated in an earlier part of the
judgment that the truth of falsity of the allegations is not in issue.
The prosecution need only prove the fact of the allegations having been
made by Azizan and Ummi.
Their motive for making the allegations for any form of benefits, if
any, argued as being relevant by the defence, is not an issue in the
charges and is therefore irrelevant.
The charges also do not require proof to show, as contended, that exh.
P14A, B and C were sent to YAB Prime Minister.
Thus there is evidence to show that Ummi and Azizan had made the allegations against the accused.
(2) Whether The Accused Directed Dato' Mohd Said And Dato' Amir
Junus
To Obtain From Ummi And Azizan Written Statements Addressed To YAB
Prime Minister And Public Statements Denying The Allegations And That
They Obtained The Statements As Directed
The charges state
that the accused directed Dato' Mohd Said and Dato' Amir Junus to
obtain from Ummi and Azizan written statements addressed to YAB Prime
Minister during the period 12 August 1997 to 18 August 1997 in respect
of the first and third charges and the public statements on or about 27
August 1997 in respect of the second and fourth charges denying the
allegations and that they obtained the statements as directed.
As the persons to whom the directions were given are Dato' Mohd Said and
Dato' Amir Junus their evidence is critical to establish this element. I
have dealt with the relevant parts of their evidence in an earlier part
of the judgment. I shall now set out an outline of their evidence in
chronological order.
11 August 1997
The accused asked Dato' Mohd Said to look into a letter containing wild allegations against him.
12 August 1997
Upon being informed by ASP Zull Aznam Dato' Mohd Said and Dato' Amir Junus met the accused at his Official Residence at 10pm.
He asked them about exh. P14A, B and C. He told them that it was written by Ummi.
He asked them to trace Ummi and Azizan in order to find out more about the letter and why it was written.
Dato' Amir Junus made a note (exh. P42) of this meeting.
13 August 1997
Upon
being informed by ASP Zull Aznam Dato' Mohd Said and Dato' Amir Junus
met the accused at his Official Residence at 10pm.
The discussion was on the latest development on exh. P14A, B and C. The
accused was informed that the letter had been given to the IGP by Dato'
Seri Megat Junid and that Ummi and Azizan had not been traced yet.
The accused urged them to locate Ummi and Azizan immediately and
interview them.
He asked them to "gempar" the two persons.
Dato' Mohd Said said that he understood the word to mean "205 to
surprise them and to put fear in them 205" because of the letter.
Dato' Amir Junus said that it meant to interview them and frighten them
so that they will not spread the allegations in the letter.
Dato' Amir Junus made a note (exh. P42) of this meeting.
15 August 1997
Upon
being informed by ASP Zull Aznam Dato' Mohd Said and Dato' Amir Junus
met the accused at his Official Residence at 2pm.
They talked about exh. P14A, B and C. The accused was also informed
about exh. P15. He showed them a copy of it and asked them to
investigate fully into it. Dato' Mohd Said and Dato' Amir Junus
suggested to the accused that a police report be made on exh. P15. He
did not want to make a report as he did not want the case to be
investigated by the CID and because of the adverse publicity as he is a
politician and Deputy Prime Minister.
They managed to convince him to make a report.
When he agreed to lodge the report he told them that even though the
case was going to be investigated by the CID he did not want the matter
to go to Court as, in that event, it would be publicised.
Dato' Amir Junus made a note (exh. P43) of this meeting. ASP Zull Aznam
lodged the police report (exh. P16).
16 August 1997
Upon being informed by ASP Zull Aznam Dato' Mohd Said and Dato' Amir Junus met the accused at his Official Residence at 10pm.
The accused told them that if they managed to arrest Ummi and Azizan he did not want them to be detained for long.
He wanted them to be questioned deeply as to why they wrote the letter.
He repeated his request that he wanted the two to be traced as early as possible.
Dato' Amir Junus made a note (exh. P43) of this meeting.
18 August 1997
Upon
the request of the accused Dato' Mohd Said and Dato' Amir Junus met him
at his Official Residence at 12.30am.
They briefed him about the arrest of Ummi and Azizan.
The accused directed them that Ummi and Azizan were to retract and deny
their allegations as contained in exh. P14 A, B and C in writing within
24 hours.
He said that he did not want them to be detained for long and that their
case should not be brought to court.
He also wanted them to ensure that there is no publicity.
The accused wanted the retraction letters to be in writing.
Dato' Amir Junus kept a note (exh. P44) of this meeting.
At about noon on the same day Dato' Mohd Said and Dato' Amir Junus were called by the accused to his Official Residence.
They told him that Ummi and Azizan had changed their mind and were willing to retract the allegations.
He told them that Ummi and Azizan should write letters of denial to YAB Prime Minister.
Dato' Amir Junus kept a note (exh. P45) of this meeting.
At about midnight on the same day Dato' Mohd Said and Dato' Amir Junus met the accused at his Official Residence.
They showed him Exhs. P17 and
P18. He was satisfied with exh. P17
but not with exh. P18. The accused then asked them to monitor the
movement of Ummi and Azizan.
Dato' Amir Junus made a note (exh. P46) of the meeting.
27 August 1997
Upon
being informed by ASP Zull Aznam Dato' Mohd Said and Dato' Amir Junus
met the accused at his Official Residence at 10pm.
He directed them to get another letter each from Ummi and Azizan.
The letters, to be in the form of public statements, were to be more
committed, convincing, firm and must deny and withdraw all the
allegations contained in exh. P14A, B and C. The letters were to be open
letters without being addressed to anybody and were to be posted to the
accused's office.
He wanted the letters to fully declare that he was not involved in any
sex scandal.
Dato' Amir Junus kept a note (exh. P47) of this meeting.
28 August 1997
The public statement of Azizan was read to the accused over the telephone by Dato' Amir Junus.
The accused made some amendments to the letter.
29 August 1997
The public statement of Ummi was read to the accused over the telephone by Dato' Amir Junus.
The accused made some amendments to the letter.
Later in the same
day Dato' Mohd Said and Dato' Amir Junus went to the accused's Official
Residence and handed over to him exhs. P20, P21 and P22.
I shall
now consider the challenge mounted by the defence against the
prosecution evidence relating to the directions given by the accused.
With regard to the lodging of the police report (exh. P16) Dato' Mohd Said, to a suggestion in cross-examination, said:
I
agree that the accused initially did not want to make a report because
of the adverse publicity as he is a politician and Deputy Prime
Minister.He said something to that effect.On this issue Dato' Amir Junus, upon being cross-examined, said:
Laporan
polis berkenaan dengan kes ini telah pun dibuat pada 15.8.97 oleh ASP
Zull Aznam untuk menjalankan siasatan ke atas surat layang Talqin
Terbuka dan atas kes ini.
Laporan polis itu dibuat atas nasihat pihak polis.Saya bersetuju tertuduh mengikut nasihat polis. 205Saya
bersetuju bahawa Special Branch memaklumkan tertuduh bahawa
dakwaandakwaan tersebut adalah serius dan telah dinasihatkan untuk
membuat laporan polis.
Thus Dato' Mohd Said has agreed with the
defence suggestion that the accused initially did not want to make a
report because of the adverse publicity as he is a politician and Deputy
Prime Minister.
Dato' Amir Junus also agreed with the defence suggestion that later the
accused agreed to make the report on their advice.
This line of cross-examination of the two witnesses shows that the
defence case on the reason for the lodging of the police report is
similar to that advanced by the prosecution.
It is the case for
the prosecution that it was the accused who summoned Dato' Mohd Said and
Dato' Amir Junus to meet him on the various occasions.
Upon cross-examination on this issue Dato' Mohd Said said:
I
reported to the accused progressively from time to time on the results
of the investigation at his Official Residence. I did not brief the
accused on my own accord.
Because the accused called us to brief him we went.By 'us' I mean my deputy and I.Dato' Amir Junus said in cross-examination:
Appointment untuk saya jumpa dengan tertuduh selalunya dibuat antara ASP Zull dan saya.Saya tidak tahu sama ada ASP Zull membuat appointment melalui En Azmin...Saya
setuju bahawa dari masa ke semasa Cawangan Khas dipanggil oleh tertuduh
untuk mentaklimatkan perkembangan siasatan yang dijalankan dan
maklumat-maklumat yang didapati.
Kebanyakan appointment telah dipanggil oleh tertuduh melalui Zull Aznam dan bukan Cawangan Khas.The
manner in which the questions were put to the witnesses shows that the
accused agreed that he contacted Dato' Mohd Said and Dato' Amir Junus
regularly to brief him on the progress of the investigation.
This is indicative of the deep interest that he took in the
investigation.
The accused's instruction to Dato' Mohd Said and
Dato' Amir Junus to frighten Ummi and Azizan was challenged by the
defence with reference to the meaning of the word "gempar". On the
meaning to be ascribed to the word Dato' Mohd Said, on a suggestion put
to him, said:
I don't agree that 'gempar' could mean a slight caution.The word is not the equivalent of 'acah'. The word 'gempar' means to surprise and to put a little fear.It will therefore be observed that the use of the word "gempar" by the accused is not disputed.
What was challenged was only its meaning.
On the nature of the
directions given by the accused to Dato' Mohd Said and Dato' Amir Junus
it was suggested to them that the accused only asked them to investigate
into the allegations thoroughly and fully.
This was denied by them.
Dato' Mohd Said agreed that the accused asked him to investigate fully
and deeply into the allegations.
However, upon further cross-examination he said:
Earlier accused told us to look for them.
We tried to look for them.
That was in the beginning only.Later on there were more instructions.In this regard Dato' Amir Junus said in cross-examination:
Tertuduh
telah mulai 12.8.97 telah mengarah SP1 dan saya untuk mengesan Ummi dan
Azizan serta mencungkil maklumat-maklumat mengenai mengapa mereka
membuat dakwaan-dakwaan terhadap tertuduh.
This is only to find out why they wrote the letters.Saya tidak setuju tertuduh tidak memberi arahan-arahan kepada kami.When
it was put to Dato' Amir Junus that the accused never directed them to
do anything but merely requested Dato' Mohd Said to conduct a thorough
investigation into the case he said:
Kami diarah untuk
mengesan Ummi and Azizan dan mendapatkan maklumatmaklumat dari mereka. I
do not agree that he merely requested us as suggested.And later:
Question: I put it to you that accused only requested you to investigate fully.Answer:
Tertuduh mengarahkan kami untuk mengesan Ummi dan Azizan dan
mendapatkan maklumat kenapa mereka membuat dakwaan-dakwaan dan bukan to
investigate fully.Both Dato' Mohd Said and Dato' Amir
Junus have therefore denied the defence suggestion that they were only
asked to investigate into the matter thoroughly and fully.
If in
fact it is true that Dato' Mohd Said and Dato' Amir Junus were only
instructed to investigate into exh. P16 thoroughly then the steps taken
by them to obtain the retraction letters would be part of their
investigative process done on their own initiative.
However, this was not put to them in cross examination.
On the contrary what was put to Dato' Amir Junus goes this way:
I
put it to you that only after the Special Branch briefed accused and
said that they have investigated and found the allegations to be untrue
and that it involved a political conspiracy against him and Ummi and
Azizan were prepared to retract their allegations that the accused
requested for the retractions.What was put to Dato' Amir
Junus has obvious reference to exhs. P17 and P18 as it is the case for
the prosecution that the accused wanted Ummi and
Azizan to write a
letter of denial to YAB Prime Minister after he was informed by Dato'
Mohd Said and Dato' Amir Junus that they were willing to retract their
allegations.
With regard to exhs. P20 and P22 Dato' Mohd Said and Dato' Amir Junus
met the accused at his Official Residence on 27 August 1997 at about
10pm.
The accused gave them further directions.
As Dato' Mohd Said said:
That night he directed us to get in touch with Ummi and Azizan and from them to get another letter from each of them.
He wants the letters to fully disclose that the accused was not involved in any sex scandal.
He wants the letters to be open letters without being addressed to anybody.
It was to be an open letter.
He wanted the letters to be posted to the Deputy Prime Minister's Office.
We had to meet again with Ummi and Azizan to write the letters.
The accused told us to get the letters from the two persons and post to his office.After that I instructed Dato' Amir to carry out the instruction of the accused.Dato' Amir Junus said:
Apabila
saya dan SP1 berada di rumah tertuduh, tertuduh telahpun mengarahkan
kami mendapatkan satu surat pengakuan yang berbentuk kenyataan umum
daripada Ummi dan Azizan.
Kenyataan umum yang dikehendaki oleh tertuduh ialah satu kenyataan yang
lebih committed, meyakinkan dan tegas, serta menafikan dan menarik balik
kesemua dakwaan-dakwaan yang terkandung di dalam ID14. Tertuduh juga
telah mengarahkan supaya surat ini diposkan ke pejabat Dato' Seri Anwar
Ibrahim, Timbalan Perdana Menteri.Surat ini hendaklah diperolehi daripada Ummi dan Azizan.Dato'
Amir Junus, to a suggestion by the defence, that the accused never
instructed him and Dato' Mohd Said to obtain the public statements from
Ummi and Azizan said:
Saya tidak bersetuju bahawa tertuduh langsung tidak mengarah saya dan SP1 untuk mendapatkan kenyataan umum dari Ummi dan Azizan.The
defence suggested in cross-examination to Dato' Amir Junus that the
accused neither expressed satisfaction with nor made corrections to any
of the letters.
This is what he said:
Saya tidak bersetuju bahawa pada
28.8.97 langsung tiada perbualan telefon di antara tertuduh dan saya
pada jam lebihkurang 11.30 malam.
Saya tidak setuju bahawa tertuduh tidak pernah berbincang tentang kes
ini melalui telefon.
Saya tidak setuju bahawa saya tidak membaca draf ID22 kepada tertuduh.
Saya tidak setuju bahawa tertuduh tidak meminda atau pembetulan dibuat
di atas ID29. Saya tidak bersetuju yang tertuduh tidak meluahkan
kepuasan hatinya kepada mana-mana dokumen.Saya mengatakan dalam keterangan saya bahawa beberapa ayat-ayat di para yang terakhir di ID29 digugurkan oleh tertuduh.ACP
Mazlan gave evidence on the corrections made to exh. P19 by the
accused.
This supports the evidence of Dato' Amir Junus that the accused made
corrections to the letter.
The normal rule that one accomplice cannot corroborate the evidence of
another accomplice does not apply in the case of Dato' Amir Junus and
ACP Mazlan in view of my finding that although they are accomplices
their evidence does not require corroboration.
As their evidence can be accepted without corroboration the evidence of
one can be used to support that of the other.
Furthermore, the evidence of Ummi and Azizan also show that corrections
were in fact made to exhs. P19 and P29.
With regard to the
prosecution evidence on the request by the accused to post the public
statements to his office Dato' Mohd Said, in answer to a question in
cross-examination, said:
Question: I am instructed that the accused never requested that ID19 to ID22 be posted to his office?Answer: The instruction to me was that they should be posted to the Deputy Prime Minister's office.(Saksi dirujuk kepada ID19 hingga ID22.) Three of the exhibits carry a rubber stamp. ID19 does not have a rubber stamp.
The stamps do not have an initial.It
will be noted that apart from a suggestion that the accused did not ask
for the public statements and that he did not want them to be posted to
his office the manner in which he received them from Dato' Mohd Said
and Dato' Amir Junus was not subjected to any cross-examination.
The evidence of Suhaime bin Yunus that he did not affix the Received
Rubber Stamps on the letters was not challenged.
If the accused had not asked for the public statements he would surely
have questioned Dato' Mohd Said and Dato' Amir Junus on the sinister
manner in which they were handed to him, that is to say, by having them
placed in an envelope with his name and address on it with a stamp which
had been cancelled.
The affixing of the Received Rubber Stamps on the letters indicates that
the accused wanted them to have the appearance of having been received
through the post.
This shows that he had asked Dato' Mohd Said and Dato' Amir Junus to
have the letters posted to his office.
As he had asked for the letters to be posted he would have had some form
of communication prior to that with Dato' Mohd Said and Dato' Amir
Junus regarding the letters.
In the circumstances that would be the request for the letters as
disclosed by the evidence.
The fact that exhs. P17 and P18 were
voluntarily written as stated in exh. D25, the report sent by Dato' Mohd
Said to YAB Prime Minister, proves beyond reasonable doubt that after
investigations were carried out the allegations were found to be false
and baseless.
Thus the accused was fully justified to have asked for the retractions
of the allegations.
That was the submission made by the defence.
It was further submitted that this must be read with Dato' Mohd Said's
evidence that the accused asked him to investigate into the matter fully
and that the accused did not ask for the retractions straightaway.
It is true that in that report Dato' Mohd Said had stated that exhs. P17
and P18 were written voluntarily by Ummi and Azizan.
He had also said that the letters form the primary basis of exh. D25. As
to why he said the letters were written voluntarily he said in
re-examination:
When we conduct a turning over operation
and if it is successful and which was in this case the fact that Ummi
and Azizan wrote the letters themselves I concluded it was voluntary.This is how the Special Branch looks at it. In D25 I did not mention the methods employed to obtain ID17 and ID18. 205When I wrote D25 my Special Branch investigation was not completed.The
method employed to obtain exhs. P17 and P18 shows that the written
statements were not voluntarily written.
When exh. D25 was written the Special Branch investigation was also not
completed yet.
Dato' Mohd Said has explained why he concluded that the letters were
written voluntarily, that is to say, that it is a Special Branch way of
looking at it by virtue of the turning over operation being successful
and Ummi and Azizan having written the letters in their own handwriting.
Such a view cannot be sustained in law.
The argument advanced by the defence therefore has no merit.
Thus
the defence case, as put to the prosecution witnesses, is that the
accused did ask for retraction of the allegations from Ummi and Azizan
when they were prepared to retract their allegations though he never
asked for the public statements.
It will be observed that the challenges by the defence of the directions
given by the accused to Dato' Mohd Said and Dato' Amir Junus were put
in the form of suggestions to them. A suggestion in cross-examination
can only be indicative of the case put forward or the stand taken by the
party on whose behalf the cross-examination is being conducted, but to
no extent whatsoever can it be a substitute for evidence if it is
clearly repudiated by the witness to whom it is made.
In this regard it was observed in Emperor v. Karmuddin Sheikh AIR [1932] Cal 375:
Mere
suggestions by a pleader or advocate for the accused do not amount to
evidence of the fact suggested, unless they are either partly or wholly
accepted by the witness for the prosecution.It follows
that whatever was put to Dato' Mohd Said and Dato' Amir Junus and denied
by them cannot be considered as evidence at this stage.
In my
opinion, therefore the case for the defence as put to the prosecution
witnesses in cross-examination indicates that exh. P16 was lodged by the
accused on the advice of Dato' Mohd Said and Dato' Amir Junus after his
initial reluctance to avoid publicity and when Ummi and Azizan were
prepared to retract their allegations he requested for the written
statements.
The evidence indicates, contrary to the defence suggestion, that the
accused asked for the public statements.
Certain other features of the case are inconsistent with the accused
merely asking for a thorough investigation.
With regard to the prosecution evidence that the accused asked Dato'
Mohd Said and Dato' Amir Junus to "gempar" Ummi and Azizan the only
challenge made to the word was its meaning.
Thus the defence has accepted the fact that the word was used by the
accused.
The prosecution evidence that Ummi and Azizan should be traced quickly
and that they should not be detained for long and that their case should
not be investigated by the CID or brought to court was not challenged.
These coupled with the fact that the accused contacted Dato' Mohd Said
and Dato' Amir Junus regularly to brief him on the progress of the
investigations support the prosecution's case that he asked for the
retractions.
The evidence discloses that there is ample corroboration to support this
finding.
The evidence of Ummi and Azizan on the manner in which they were asked
to write the denial letters shows that they were compelled to write it.
This corroborates the evidence of ACP Mazlan and DSP Aziz.
This coupled with the existence of the letters, exhs. P17, P18, P20 and
P22 corroborates the evidence of Dato' Mohd Said and Dato' Amir Junus
that they directed ACP Mazlan and DSP Aziz to obtain them.
The fact that exhs. P20, P21 and P22 were handed to the accused is
corroborated by the presence of the Received Rubber Stamps of his office
on them.
Suhaime bin Yunus who said that he did not receive the letters was not
cross-examined.
So it is clear that the accused received them.
The accused further used the letters of 2 September 1997 when he handed
them to SAC Musa.
It is therefore my view that there is sufficient corroboration of the
evidence of the accomplices.
In the circumstances I accepted the prosecution evidence that the
accused asked Dato' Mohd Said and Dato' Amir Junus to have the
allegations made by Ummi and Azizan denied and retracted.
A matter
of significance is whether what the accused asked Dato' Mohd Said and
Dato' Amir Junus to do amount to directions as contemplated by the
charges.
It was contended by the defence that the directions that Dato' Mohd Said
claimed to have been given by the accused were in actual fact only
requests which he himself construed as directives.
It was argued that a request is one that is done politely with no
compulsion.
The person to whom a request is made has an option of acceding to it or
refusing to follow it. If a person is directed to do something then
there is some measure of compulsion or authority attached to it. It was
submitted that the evidence of Dato' Mohd Said reveals that there was
only a request from the accused which he was not obliged to comply with.
The defence concluded by saying that the word "directed" in the four
charges is therefore misplaced as it is not borne out by the evidence. I
shall first consider the cross-examination of Dato' Mohd Said on this
issue as relied on by the defence.
It runs as follows:
Question: Would you agree that from the start the accused all along requested you to look into this matter fully and deeply?Answer: It is the interpretation of the word request.Question: You said it depends how you interpret the word request.Answer: Yes.Question: You interpreted it as a direction?Answer: Coming from the DPM I interpreted it as a direction.The word "direction" is defined in Black's Law Dictionary as:
That which is imposed by directing; a guiding or authoritative instruction; order; command. Highes v. Van Bruggen 44 NM 534, 105 p. 2d 494, 497.And the verb "direct" as:
To point to; guide; order; command; instruct.To advise; suggest; request.A
direction is therefore something that is stated authoritatively.
Whether I tell my secretary, "Please type this notes of evidence" in a
calm and polite voice or utter the same words in a loud and commanding
tone it still amounts to a direction as she is compelled to obey it.
Thus the tone in which a direction is given becomes irrelevant where the
person to whom it is given is compelled to obey it. A direction can
therefore be communicated in the form of a request, suggestion,
instruction or in any other manner provided that there is a compulsion
to obey it. As a matter of fact a perusal of the notes of evidence
reveals that Dato' Mohd Said had used the words "asked", "urged",
"wanted", "directed", "told" and "instructed" to describe the
communications between him and the accused.
The communications from the accused to Dato' Mohd Said and Dato' Amir
Junus would therefore amount to a direction if they felt compelled to
obey them.
The defence argued that in order to say that the
accused had used his public position to his advantage in respect of the
four charges he must have had authority over the Special Branch in law
to direct them.
If he did not have that authority he would not have had the power to
direct Dato' Mohd Said and Dato' Amir Junus in matters pertaining to the
performance of their duties.
The defence referred to their evidence where they said that at all
material times they were only responsible to the IGP and the Minister of
Home Affairs.
There was no evidence to show that they were
responsible to the accused in his capacity as the Deputy Prime Minister
or as Minister of Finance.
Accordingly, it was contended, the words "205 in his capacity 205" in s.
2(2) of Ordinance No. 22 refers to a capacity to exercise power. I have
already considered the law relating to this argument in some detail in
an earlier part of the judgment.
In substance, the view that I had expressed is that the "capacity" in s.
2(2) of Ordinance No. 22 must not be equated with "duty". The true test
would be whether the act done would have been done or could have been
effectively done if the person in question were not the kind of Member
that he in fact was.
If the answer to the question is in the negative, then the act of the
Member is one that was done in his capacity as such Member whereby he
has used his public office for his advantage, provided that it could not
equally easily have been done by any person not holding that office.
I shall now advert to the evidence adduced in order to determine whether the position of the accused comes within this meaning.
In his cross-examination Dato' Mohd Said said this:
Question: If you believed the allegations to be true, why did you direct that they be retracted?Answer: I did it because it was an instruction from the Deputy Prime Minister.
Even
if the Prime Minister, Minister of Home Affairs or IGP ask me to do it
my belief is I should not do but the situation may be such that I have
to do it despite my belief.In his re-examination he said:
In
respect of the instructions or directions given by the accused I could
not have refused it. I had no choice. I had to follow the instructions.
This is because he was the Deputy Prime Minister and not any ordinary
person.Because of that I felt compelled to do it.Dato'
Amir Junus, on being asked in his examination-in-chief as to whether he
would follow the instructions of the accused if he was not the Deputy
Prime Minister and Minister of Finance said:
Jika tertuduh
seorang biasa dan bukannya Timbalan Perdana Menteri dan Menteri
Kewangan saya tidak akan mematuhi arahan-arahan yang diberi.In his cross-examination he said:
Question: Jika Timbalan Perdana Menteri memberikan arahan adakah kamu perlu mematuhi arahan tersebut? 205Answer:
Jika saya menerima arahan dari Timbalan Perdana Menteri saya sebagai
kakitangan Kerajaan saya terpaksa menerima arahan-arahan itu.
Arahan-arahan yang saya terima daripada Timbalan Perdana Menteri adalah
bersama dengan pegawai atasan saya.
Question: Can you obey an order from the Timbalan Perdana Menteri who is not your superior officer?Answer:
Saya sebagai seorang kakitangan Kerajaan dan arahan-arahan daripada
Timbalan Perdana Menteri saya terpaksa mematuhi arahan itu.Question:
As a police officer knowing your duties can you take orders from the
Timbalan Perdana Menteri who is not your superior officer?Answer: Seperti yang saya katakan tadi saya menerima arahan itu bersamasama dengan pegawai atasan saya.
Oleh itu saya terpaksa mematuhi arahan-arahan yang diberi oleh Timbalan Perdana Menteri.Question: If the Timbalan Perdana Menteri whom you admit is not your superior officer gives you an order do you have to obey it?Answer:
Saya sebagai pegawai Kerajaan arahan-arahan yang diberi oleh Timbalan
Perdana Menteri who is also at the time a government officer maka saya
tiada ada pilihan lain mematuhi arahan-arahan yang diberi kepada saya.
Jikalau arahan-arahan yang diberi oleh Timbalan Perdana Menteri saya akan merujuk kepada pegawai atasan saya.It
is thus clear that Dato' Mohd Said and Dato' Amir Junus felt compelled
to obey the accused because he was the Deputy Prime Minister and
Minister of Finance.
They would not have obeyed him if he was an ordinary man.
The corollary is that the communications from the accused to Dato' Mohd
Said and Dato' Amir Junus amount to directions as contemplated by the
four charges.
I shall now consider the evidence relating to the manner in which the statements were obtained.
The Obtaining Of Exhs. P17 And P18
Upon
the arrest of Ummi and Azizan the accused directed Dato' Mohd Said and
Dato' Amir Junus on 18 August 1997 at 12.30am that Ummi and Azizan were
to retract and deny their allegations as contained in exh. P14A, B and
C. He wanted the retraction letters to be addressed to YAB Prime
Minister.
At 1.30am on the same day Dato' Mohd Said and Dato' Amir Junus
instructed ACP Mazlan and DSP Aziz to obtain a retraction of the
allegations made by Ummi and Azizan within 24 hours.
He said that the interrogation to obtain a retraction is known within
the Special Branch as a Turning Over Operation.
The object in turning over Ummi and Azizan was to make them change their
stand.
Dato' Amir Junus explained that the instruction given to the two
officers was not normally done by the Special Branch.
He explained it this way:
Arahan-arahan yang diberikan
kepada SP7 dan SP2 adalah bukan perkara biasa dalam Cawangan Khas.
Saya ingin menerangkan perkara ini dalam Bahasa Inggeris.
In normal circumstances the Special Branch normally collects
intelligence gathering before we arrest anybody.
In the case of Ummi and Azizan there was no intelligence gathering but
just to surface them and to identify them.
This is contrary to Special Branch practice.
The second aspect when we turn over or neutralise any target we will go
for the truth of the facts pertaining to the case.
But in the case of Ummi and Azizan there was no instruction given to
extract the truth of the matter but to neutralise them.
This is again not the normal norms of Special Branch practice.
The technique of turning over and neutralisation in Special Branch is
only applicable to targets who are having communist ideology, religious
fanaticism and extremism.But in the case of Ummi
and Azizan which is of a criminal nature the technique was applied and
this is the first time that we applied this kind of technique in cases
of this nature.ACP Mazlan was instructed to interrogate
Azizan and DSP Aziz Ummi. DSP Aziz said that the instructions he
received from Dato' Amir Junus meant that he had to change the stand of
Ummi and Azizan so that they will withdraw all the allegations as
contained in exh. P14A, B and C.
At about 2.30am on 18 August 1997
ACP Mazlan and DSP Aziz gave a preliminary assessment of their
interrogation of Ummi and Azizan to Dato' Mohd Said. DSP Aziz informed
him that it would be a bit difficult to deal with Ummi as she was still
very strong in her belief of her allegations. ACP Mazlan reported that
it would be easier to deal with Azizan.
Both the officers concluded, as a result of the interrogation, that
there was some basis in the allegations.
Dato' Mohd Said then said:
In spite of that I directed
them to go again to neutralise them to make them change the stand. I
still directed my men to neutralise Ummi and Azizan even after being
told that there is some basis in their allegations because the direction
I received was from the Deputy Prime Minister.In this regard Dato' Amir Junus said:
Setelah
SP2 dan SP7 memberi taklimat kepada saya dan SP1 kami telah memberi
arahan supaya mereka meneruskan meneutralisekan Ummi dan Azizan.Saya dan SP1 telah mengarahkan mereka untuk terus meneutralisekan Ummi dan Azizan kerana mematuhi kehendak tertuduh.At about 6am on the same day ACP Mazlan informed Dato' Mohd Said and Dato' Amir Junus that Azizan had been neutralised.
At 10am on the same day DSP Aziz informed them that Ummi had been neutralised.
At about noon on that day they were called by the accused to his Official Residence.
Dato' Mohd Said said:
Dato' Amir and I went.
We briefed him on the result of the interrogation.
We told him that they had already changed their stand and they are willing to retract the allegation.During
this meeting the accused directed us that the two arrestees should
write letters of apology addressed to YAB Prime Minister.Dato' Mohd Said passed over this instruction to ACP Mazlan and DSP Aziz on the same day at 4.30pm.
This instruction was carried out.
At about 6pm DSP Aziz handed the first draft of the letter from Ummi.
With regard to this draft Dato' Mohd Said said:
After taking a look at the letter I said it was not good enough. I told DSP Aziz to get a more committed letter from Ummi.
The first draft was not clear. I thought the letter was not good enough to be sent to the Prime Minister.The wordings, construction of sentences and apology were not really there.On this issue Dato' Amir Junus said:
Selepas
saya dan SP1 meneliti surat yang ditulis oleh Ummi itu, surat itu tidak
memenuhi kehendak tertuduh, iaitu untuk menafikan segala
dakwaan-dakwaan.Saya dan SP1 telah mengarahkan SP2 untuk Ummi menulis surat yang lebih tegas lagi.At
about 9.30am on the same day ACP Mazlan and DSP Aziz handed over the
letters from Azizan (exh. P17) and Ummi (exh. P18) to Dato' Mohd Said.
At about midnight on the same day Dato' Mohd Said and Dato' Amir Junus
handed over the two letters to the accused at his Official Residence.
Dato' Mohd Said said:
That night Dato' Amir and I met the
accused in his house. I gave the accused copies of ID17 and ID18. The
accused read the two letters and as far as ID17 was concerned the
accused was satisfied with it. He was not very pleased with ID18.On this issue Dato' Amir Junus said:
Apabila
saya dan SP1 telah menyerahkan ID17 dan ID18 kepada tertuduh tertuduh
telah pun membaca kedua-dua surat tersebut.
Selepas membaca ID17 tertuduh meluahkan perasaan bahawa surat ini
bolehlah diterima tetapi apabila membaca surat ID18 yang ditulis oleh
Ummi tertuduh kurang puashati dan bukan seperti yang dikehendaki.Bagi ID17 tertuduh telah mengatakan, 'Ini boleh,' tetapi bagi surat ID18, 'Bukan macam ini'.I
consider it necessary to outline the prosecution evidence to show the
manner in which Ummi and Azizan were turned over and neutralised into
preparing exhs. P17 and P18. With regard to the turning over of Ummi DSP
Aziz said:
Pendekatan yang kami gunakan berteraskan
pendekatan psychology.
Dalam context ini kami telah menimbulkan ketakutan dalam diri Ummi
dengan cara menggemparnya dari sudut undang-undang berkaitan tahanan di
bawah Akta Keselamatan Dalam Negeri dan Akta Hasutan.
Ummi juga ditakutkan dengan kemungkinan tindakbalas dari orang yang
dituhmah yang mana merupakan Menteri Kewangan dan Timbalan Perdana
Menteri pada ketika itu.
Selain daripada itu terdapat dua lagi pendekatan yang digabungkan.
Pertama, soalsiasat yang berterusan dengan soalan yang bertalu-talu
tanpa henti bagi menimbulkan suasana seolah-olah akan berlaku ancaman
physical.
Kedua, pendekatan memujuk dan nasihat bagi tujuan mengelirukan sasaran.Ketiga-tiga
pendekatan ini telah menimbulkan tekanan mental yang tinggi sehingga
Ummi hilang daya melawan dan menyerah kepada pasukan soalsiasat.Daripada
pukul 11.00 malam 17.8.97 sehingga pukul 7.00 pagi 18.8.97 saya dan
pasukan saya telah menjalankan proses soalsiasat ke atas Ummi tanpa
henti.
Setelah saya mendapati Ummi telah berjaya
dineutralisekan saya telah memaklumkan mengenai kejayaan tersebut kepada
SP1 pada sekitar jam 10.00 pagi.After DSP Aziz received instructions to obtain the retraction letter from Ummi he discussed the matter with her.
As he said:
Walaupun pada ketika itu Ummi telah berjaya
diturn overkan tetapi dia tidak sanggup menurunkan pendirian baru ini
dalam bentuk tulisan dengan alasan adalah sukar untuk menunjukkan
pertukaran pendirian dalam tempoh kurang dari 24 jam.
Saya meneruskan pujukan dan nasihat bagi meyakinkan Ummi untuk menulis
surat berkenaan yang mana akhirnya beliau hanya bersetuju menulis surat
memohon maaf.
Memandangkan surat asal yang bertarikh 5.8.97 dialamatkan kepada Dato'
Seri Dr Mahathir, Perdana Menteri Malaysia maka surat memohon maaf juga
dialamatkan kepada Perdana Menteri.
Setelah Ummi bersetuju untuk menulis surat memohon maaf berkenaan kami
telah berbincang mengenai bentuk surat yang bakal ditulis.Peranan saya dalam tulisan surat ini lebih berbentuk selaku penasihat.Pukul
6.00 petang 18.8.97 saya telah mengemukakan surat yang telah siap
ditulis oleh Ummi kepada SP1. Setelah SP1 menerima surat tersebut beliau
telah berasa tidak puashati kerana surat itu terlalu mendatar dan tidak
committed. SP1 mengarahkan satu surat yang lebih tegas dan committed
ditulis oleh Ummi.
Saya telah pergi berjumpa dengan Ummi
semula dan berbincang berkaitan dengan arahan berkenaan yang mana
akhirnya pada sekitar jam 8.00 malam satu surat yang lebih tegas dan
committed telah dihasilkan.Ummi explained why she wrote exh. P18 in this way:
Soalsiasat
itu telah dijalankan berterusan tanpa henti dari pukul 12.00 malam
hingga pukul 7.00 pagi 18.8.97. Dalam jangkamasa itu saya tidak
dibenarkan untuk tidur.
Cara soalsiasat dikendalikan adalah begitu kasar dan lebih bercorak
kepada ancaman dan ugutan.
Semasa saya disoalsiasat pegawai polis tersebut telah meminta saya
membuat satu surat penafian dan menarik balik segala pertuduhan yang
saya kemukakan seperti di P14A dan P14B. Saya tidak bersetuju sama
sekali untuk membuat surat penafian tersebut.
Saya tidak bersetuju untuk membuat surat penafian kerana saya yakin
pertuduhan di dalam laporan saya mempunyai asas yang begitu kukuh untuk
disiasat oleh pihak polis.
Apabila saya tidak bersetuju mereka masih meneruskan penderaan mental
terhadap saya untuk saya mengubah pendirian saya.
Pada akhirnya saya bersetuju untuk membuat surat penafian tersebut.Saya
bersetuju kerana saya telah diancam dan diugut oleh DSP Aziz Hussain
untuk menghantar saya ke lockup Jalan Travers sebelum ditahan di bawah
ISA selama 2 tahun.With regard to the turning over of Azizan ACP Mazlan said that he started his interrogation at about 1.45am on 18 August 1997.
After the initial interrogation ACP Mazlan believed in the allegations made by Azizan.
He informed Dato' Mohd Said about this but was told to continue with the turning over process. ACP Mazlan said:
Saya terpaksa mematuhi arahan tersebut walaupun saya tahu dia agak aneh sedikit.He then continued:
Selain
daripada ASP Ariff bin Ariffin dan Ketua Inspektor Zamri bin Hashim
lebih kurang jam 5.00 pagi SP2 telah masuk membantu saya dalam prosess
turning over.
Teknik yang saya lakukan dalam process turning over lebih kepada
persuasive methods.
Jadi process ini agak lambat sedikit untuk dapatkan result.
Oleh itu pada ketika itu Azizan masih belum dineutralise. SP2 yang
mempunyai perwatakan garang (fierce) menyoal Azizan dan lebihkurang satu
jam selepas itu Azizan dianggap telah dineutralise.
Azizan dianggap dineutralisekan lebihkurang jam 6.00 pagi.Azizan tidak diberi masa untuk tidur sebab tugas yang saya lakukan mesti complete dalam masa 24 jam.According to ACP Mazlan the steps he took to obtain the denial letter from Azizan are as follows:
Setelah
saya menerima arahan dari SP1 saya meneruskan menjalankan arahan itu di
mana saya pergi ke bilik soalsiasat untuk mendapatkan surat penafian
tersebut dari Azizan.
Di sini saya menghadapi masalah di mana Azizan enggan menafikan dalam
bentuk surat yang ia pernah diliwat oleh tertuduh.
Saya terpaksa memujuk beliau untuk mendapatkan surat penafian tersebut.
Di akhir prosess ini Azizan cuma bersedia untuk menulis sepucuk surat
memohon maaf ke atas keterlanjurannya membuat surat pengakuan bersumpah
iaitu ID14C. Ada ketika saya memujuk Azizan untuk mendapatkan surat
berkenaan itu.
Dua pegawai saya ASP Ariff dan Ketua Inspektor Zamri terlibat bersama
saya memujuk Azizan untuk mendapatkan surat berkenaan iaitu surat
penafian.
Saya mengambil masa selama lebihkurang 2 jam memujuk Azizan untuk
mendapatkan surat penafian.
Sekitar 8.00 malam barulah Azizan bersedia menulis satu surat memohon
maaf yang dialamatkan kepada YAB Perdana Menteri.
Surat tersebut dialamatkan kepada YAB Perdana Menteri oleh kerana
pengakuan bersumpahnya iaitu ID14C juga dialamatkan kepada Perdana
Menteri.
Saya cuma memberi sedikit guidance kepada Azizan untuk menulis surat
tersebut tetapi fakta di dalamnya adalah karangan Azizan sendiri
khususnya mengenai memohon maaf di atas keterlanjurannya.
Azizan selesai menulis surat tersebut sekitar jam 9.00 malam.Setelah Azizan selesai menulis surat berkenaan saya sampaikan surat tersebut kepada SP1.Azizan explained the circumstances in which he wrote exh. P17 in this way:
Sewaktu
saya disoalsiasat saya disoalsiasat bersendirian dalam sebuah bilik.
Pada awal saya disoalsiasat oleh ACP Mazlan saya maklumkan bahawa apa
yang terkandung di dalam P14C adalah benar sambil bersumpah dengan nama
Allah dan memegang Surah Yasin sekiranya saya berbohong maka saya akan
dilaknati Allah.
Selepas itu pegawai soalsiasat meminta saya membuat satu surat penafian
yang saya telah diliwat dialamatkan kepada YAB Perdana Menteri.
Sebelum saya diminta menulis surat ini saya telah disoalsiasat
berterusan sehingga pagi.
Saya telah disoalsiasat dengan kasar bertalu-talu tanpa henti. DSP Aziz
(SP2) ada menyoalsiasat saya. DSP Aziz menyuruh saya mengadakan bukti
yang saya telah diliwat oleh tertuduh. SP2 juga bertanya kepada saya
bagaimana kejadian liwat itu berlaku dan mengenai latarbelakang saya.
DSP Aziz menyoalsiasat saya dengan kasar bertalu-talu tanpa henti dengan
nada suara yang tinggi.
Dengan nada yang tinggi DSP Aziz menyuruh saya mengadakan bukti
sekiranya tertuduh main buntut saya.
Dia juga mengatakan sekiranya saya tidak dapat mengadakan bukti saya
akan ditahan di bawah s. 117 sehingga 14 hari dan seterusnya akan
ditahan sehingga 60 hari tanpa perbicaraan.
Dan saya akan ditahan di bawah ISA selama dua tahun.
Selepas saya dikatakan begitu oleh SP2 saya telah mengatakan sekiranya
seorang perempuan bolehlah dibuktikan melalui darahnya saya lelaki saya
rasa susah untuk buktikan.
Saya juga mengeluh kerana pengakuan bersumpah saya maka saya akan
ditahan di bawah ISA. Selepas jawapan saya kepada SP2 SP2 berkata 'Tahu
pun'. Apabila SP2 mengatakan 'Tahu pun' kepada saya tangannya menghentak
meja dan jarinya menunjuk ke muka saya.
Perwatakan SP2 sangat garang dan menakutkan saya.
Dia menghentakkan tangannya dengan tiba-tiba tanpa saya sedari.Begitu juga dengan jarinya semasa menunjuk ke muka saya.Saya
disoalsiasat sehingga 18.8.97 sehingga jam 8.00 malam.
Sewaktu saya disoalsiasat saya tidak dibenarkan berehat dan disoal
bertalu-talu.
Apabila saya diminta menulis surat kepada YAB Perdana Menteri saya tidak
bersetuju kerana pengakuan bersumpah saya adalah benar.
Sekiranya saya menarik balik maka saya dianggap berbohong.
Tujuan surat adalah untuk menafikan yang saya telah diliwat oleh
tertuduh.
Pada mulanya apabila saya tidak bersetuju untuk menulis surat penafian
saya telah ditakutkan dan disoal bertalu-talu.
Akhirnya setelah saya diberikan kertas dan pen saya membuat satu surat
205 Saya tidak membuat surat P17 ini atas kerelaan sendiri.
The obtaining of exhs. P20 and P21
On
28 August 1997 Dato' Mohd Said and Dato' Amir Junus told ACP Mazlan
that the accused was not satisfied with exhs. P17 and P18 and hence
instructed him to get a more committed and convincing public statement.
ACP Mazlan met Azizan on the same day at 8.30pm at the Kelab Golf PDRM
Titiwangsa to obtain the letter from him.
As ACP Mazlan said:
Apabila saya bertemu dengan Azizan di
Kelab Golf saya perhatikan Azizan memang tertekan (being pressured) di
mana beliau telah meluahkan rasa frustration tetapi saya telah memujuk
dan cuba menenangi hati supaya mendapatkan surat penafian yang lebih
committed.
Process memujuk dan menenangi hati beliau mengambil masa hampir dua jam.
Akhirnya sekitar jam 11.00 malam Azizan bersetuju menulis sepucuk surat
menafikan sama sekali yang beliau telah diliwat oleh tertuduh.
Beliau bersetuju dan menulis sepucuk surat penafian tersebut lebihkurang
jam 10.30 malam dan saya maklumkan perkara itu kepada Dato' Amir.
Dato' Amir ketika itu berada di rumahnya dan beliau telah datang ke
Kelab Golf untuk melihat sendiri surat penafian.
Sekitar jam 11.00 malam apabila Dato' Amir melihat surat tersebut beliau
telah menelefon tertuduh menggunakan handphonenya sendiri.
Dato' Amir telah membaca melalui telefon isi kandungan surat tersebut
kepada tertuduh di mana saya lihat Dato' Amir membuat perubahan kepada
surat tersebut.
Selepas membuat perubahan ke atas draf surat tersebut saya diarah oleh
Dato' Amir supaya meminta Azizan menulis kembali surat yang telah
dipinda.
Di sini saya juga terasa tertekan oleh sebab terpaksa merayu kepada
Azizan mengubah kembali surat yang ditulis olehnya.
Saya berjumpa kembali Azizan yang sedang menunggu di Kelab Golf.
Saya jelaskan kepada Azizan apa yang berlaku dan di sini Azizan juga
merasa hampa dan dia berkata once for all beliau akan turuti permintaan
saya.Beliau telah menulis kembali dan dalam surat
ini beliau menafikan sama sekali beliau pernah menulis pengakuan
bersumpah iaitu ID14C. Di peringkat awal di draf yang pertama beliau
menafikan yang beliau pernah diliwat tetapi kali ini beliau menafikan
yang beliau pernah menulis pengakuan bersumpah iaitu ID14C.The
final draft that Azizan signed is exh. P19. Exhibit P20 is the
typewritten version of it. On the corrections made to the letter by the
accused Dato' Amir Junus said:
Sesampainya saya di Kelab
Golf SP7 telah pun menunjukkan kepada saya surat yang ditulis oleh
Azizan.
Selain daripada SP7 Azizan juga berada di situ.
Saya telah membaca surat yang ditulis oleh Azizan dan seterusnya saya
telahpun menelefon tertuduh dan membacakan kenyataan umum yang ditulis
oleh Azizan.
Melalui telefon tertuduh telahpun membuat beberapa pembetulan.
Di antara pembetulan-pembetulan yang dibuat, jikalau saya masih ingat
perkataan seperti 'penafian' mestilah dimasukkan di dalam salah satu
paragraph surat itu dan juga 'Azizan tidak pernah menulis pengakuan
bersumpah'. Surat yang saya maksudkan ialah surat pengakuan sumpah
Azizan, (Saksi dirujuk kepada ID14C.) Yang saya maksudkan ialah ID14C.
Tertuduh minta saya menambahkan dalam kenyataan umum Azizan satu
perenggan lagi.Selepas menerima arahan-arahan ini
saya telah menyerahkan kenyataan umum yang dipinda oleh saya yang
diarahkan oleh tertuduh melalui telefon kepada SP7.And later said:
Semasa
saya membaca surat ini di pagi 29.8.1997 chop rubber stamp yang diletak
di sini tidak terdapat pada surat ini.
Perenggan yang ditambah di surat ini ialah para terakhir yang berbunyi,
'Saya merasa kesal di atas apa yang telah berlaku dan berharap dengan
penjelasan ini dapat memperbetulkan keadaan.' Para ini telah diarahkan
oleh tertuduh semasa saya bercakap melalui telefon dengan tertuduh pada
malam 28.8.1997.Perkataan 'penafian' yang dimaksudkan ialah di para pertama barisan 2 '205 tidak pernah menulis pengakuan bersumpah 205'.Azizan's explanation for writing exh. P19 is as follows:
Pada
28.8.97 saya ada berjumpa dengan ACP Mazlan (SP7). Saya telah dibawa
oleh SP7 ke Kelab Golf Titiwangsa.
Saya pergi ke Kelab Golf lebihkurang jam 8.00 malam.
Di Kelab Golf SP7 meminta saya membuat satu surat kenyataan umum yang
lebih baik bagi menafikan yang saya diliwat.
Maksud 'lebih baik' ialah lebih meyakinkan.
Apabila permintaan ini dibuat oleh SP7 saya merasa kecewa kerana
sememangnya saya telah diliwat oleh tertuduh.
Seterusnya SP7 telah memujuk saya untuk membuat surat kenyataan umum.
ACP Mazlan terus memujuk saya agar saya membuat satu kenyataan umum
Setelah dipujuk saya membuat satu kenyataan umum.
Saya menandatangani surat kenyataan umum tersebut.
Setelah saya menulis surat ini saya telah menyerahkannya kepada SP7.
Selepas itu saya telah diminta untuk membuat sedikit pindaan bagi
menafikan yang saya pernah membuat surat pengakuan bersumpah.
Tidak ada pindaanpindaan lagi yang dibuat.
Saya diminta menulis semula surat kenyataan umum yang telah dipinda itu.Pada
mulanya saya tidak bersetuju untuk menulis semula surat itu dengan
pindaan-pindaannya sebagaimana diminta. ACP Mazlan terus memujuk dan
saya membuatnya kerana merasa takut dan tertekan 205 Apabila saya
menandatangani P20 ini chop setem getah tidak terdapat pada P20 itu.After
exhs. P19 and P20 were handed over to Dato' Amir Junus on 29 August
1997 at about 9am by ACP Mazlan and DSP Aziz he instructed them to get a
public statement from Ummi. ACP Mazlan, DSP Aziz and woman constable
Noraini bt Abdullah met Ummi at Room No 1426 in Pan Pacific Hotel at
about 10.30am.
In describing how the statement was obtained from Ummi ACP Mazlan said:
Apabila
saya dan SP2 bertemu dengan Ummi kita jelaskan kepada Ummi mengenai
arahan yang saya terima daripada Dato' Amir.
Di sini kami menghadapi satu masalah untuk mendapatkan surat penafian
dari Ummi.
Ummi adalah perwatakan (strong character). Kami hadapi masalah untuk
mendapatkan surat penafian itu.
Dari jam 10.30 pagi sehingga 4.00 petang Ummi enggan menulis surat
penafian.
Pada peringkat permulaan kami cadangkan beliau membuat kenyataan akhbar.
Kami tahu beliau tidak akan melakukannya.
Pada suatu ketika Ummi menangis.
Kami tahu beliau tidak akan membuat kenyataan akhbar tetapi beliau
mungkin bersetuju untuk membuat something lesser than kenyataan akhbar.
Kami cadangkan satu surat berbentuk kenyataan umum.
Ini pun terpaksa melalui process berdolak dalik.Akhirnya
jam lebihkurang 3.00 petang beliau telah bersetuju menulis sepucuk
surat kenyataan umum. (Saksi dirujuk kepada D29.) Inilah kenyataan umum
yang ditulis oleh Ummi.ACP Mazlan and DSP Aziz then took the letter (exh. P29) to Dato' Amir Junus for his perusal.
As Dato' Amir Junus said:
Selepas membaca surat ini dan
untuk menentukan bahawa kandungannya memenuhi kehendak tertuduh saya
telah menelefon tertuduh dan membaca surat ini melalui telefon kepada
tertuduh.
Pada ingatan saya tertuduh telah mengarahkan saya untuk membuangkan dua
paragraph. (Saksi dirujuk kepada ID22.) Separuh daripada para. 2 di ID29
digugurkan.
Para. 4 di ID29 iaitu 'Rintihan dan peristiwa tersebut 205 terjejas' di
gugurkan.
Ayat 'spekulasi 205 negara' digugurkan tetapi ditambah dengan
menggantikan '205 segera fitnah ini.' Para. 1 di ID29 juga gugurkan.Saya telah mengubahsuai ID29 ini mengikut kehendak tertuduh.After the amendments were made Dato' Amir Junus handed over the draft to DSP Aziz to be typed.
It was then taken to Ummi for her signature.
As ACP Mazlan said:
Seterusnya Ummi telah meluahkan
perasaan tidak puashatinya ke atas kenyataan umum yang ditulis olehnya
oleh sebab telah diubahsuai dan dipinda 205 Apabila Ummi tidak
berpuashati dengan ID22 kami terus memujuk Ummi untuk menandatangani
ID22. Akhirnya Ummi bersetuju untuk menandatangani ID22 di samping
meminda namanya yang telah tersilap ditaip.Ummi was also asked to write a covering letter (exh. P21) to the accused.
She described the circumstances in which she signed exh. P22 in this way:
DSP
Aziz telah menyuruh saya membuat suatu kenyataan umum memohon maaf
untuk disiarkan secara langsung di semua stesyen TV1, 2 dan 3. Saya
tidak bersetuju sama sekali kerana ini mungkin menjejaskan credibiliti
saya sebagai orang yang tidak mempunyai prinsip.
Akhirnya DSP Aziz telah meminta saya membuat satu kenyataan umum secara
bertulis.
Pada mulanya saya tidak bersetuju sama sekali kerana seperti yang saya
nyatakan pertuduhan saya mempunyai asas yang kukuh untuk diketengahkan.
Setelah hampir lima jam di dalam bilik tersebut saya dipaksa dengan
keadaan yang tidak selesa akhirnya saya bersetuju. 205 DSP Aziz telah
menyatakan kepada saya bahawa Dato' Said Awang tidak berpuashati dengan
P29 dan dia telah kemukakan satu kenyataan umum yang lain yang sudah
ditaip untuk saya tandatangan.
Mulanya saya tidak bersetuju untuk menanda-tangani kerana ianya berbeza
dengan P29 yang saya tulis.
Akhirnya saya telah menandatangani surat yang ditaip setelah dipaksa
lagi oleh DSP Aziz.The evidence of ACP Mazlan and DSP
Aziz that they conducted the turning over operation on the instructions
of Dato' Mohd Said and Dato' Amir Junus was not challenged in
cross-examination.
As a matter of fact ACP Mazlan agreed to a defence suggestion that in
carrying out his duties he followed the instructions of Dato' Mohd Said
though he denied a later inconsistent suggestion that he was not telling
the truth.
Their evidence shows that Ummi and Azizan wrote the letters against
their will.
This was not challenged in cross-examination.
No suggestion was put to Azizan to show that he did not write the
letters voluntarily.
Such a suggestion was put to Ummi and she said:
Saya tidak bersetuju bahawa segala penafian yang dibuat oleh saya adalah secara sukarela dan tanpa paksaan.In
my opinion what was put to Ummi would have been of greater value if ACP
Mazlan and DSP Aziz had been challenged on the evidence they gave with
regard to the circumstances in which she wrote the letters.
Dato'
Amir Junus then placed exhs. P19, P20, P21 and P22 in an envelope and
gummed it. He then wrote the name and address of the accused on the
envelope and affixed a stamp on it. He then asked ASP Aziz Ahmad to take
the envelope to the post office to have the stamp cancelled which he
did.
The purpose in having the stamp cancelled was to show that the envelope
had been posted to the office of the accused.
On 29 August 1997 at about 9.30pm Dato' Mohd Said and Dato' Amir Junus
took the envelope to the Official Residence of the accused to be handed
to him.
Dato' Amir then said:
Tujuan kami menghantarkan envelope
itu ke rumah tertuduh kerana tertuduh menghendaki surat itu sampai
kepada tertuduh dengan cepat dan selamat.
Apabila sampai di rumah tertuduh pada malam itu saya bersama dengan SP1
sampai ke rumah tertuduh dan telah memberi envelope yang mengandungi
surat-surat ID19, ID20, ID21, ID22 dan juga surat yang bertulis oleh
Ummi kepada tertuduh.
Selepas itu tertuduh telah membuka envelope itu dan membaca kesemua
surat yang ada di dalam envelope itu.Selepas tertuduh membaca suratsurat itu tertuduh menyatakan kepuasan hatinya.The
Received Rubber Stamp which now appears on exhs. P20, P21 and P22 to
indicate that the letters were received by the accused's office were not
there when Dato' Amir Junus placed the letters in the envelope.
Suhaime bin Yunus was attached to the accused's office in August 1997.
It was his duty to receive and open letters.
He affixes the Received Rubber Stamp on all letters that he opens.
The stamp that he affixes are those as appearing on exhs. P20, P21 and
P22. He also inserts a number on the stamp and makes an entry of the
number on a register.
Exhibits P20, P21 and P22 do not have the numbers and the receipt of
these letters is not entered in the register.
In the concluding part of his evidence he said:
Saya tidak menerima ID20, ID21 dan ID22 pada 30.8.1997.It
was contended by the defence that if the police had, in the course of
obtaining the letters from Ummi and Azizan, exceeded their powers the
accused cannot be blamed for it as there was no request on his part to
use whatever method that was used.
Dato' Mohd Said said in cross-examination that in order to follow the
instructions of the accused they had to arrest Ummi and Azizan.
And in re-examination he said:
Ummi and Azizan were
detained for the purpose of getting the intelligence on the letter that
they had written and also to a turning over operation in order to get a
denial from them as directed by the Deputy Prime Minister. ID17 and ID18
are the result of the turning over operation.On this issue Dato' Amir Junus said in his examination-in-chief:
Pada
ketika itu SP1 telah memberikan arahan kepada SP7 dan SP2 untuk
menemuduga Ummi dan Azizan dan mencungkil maklumat-maklumat yang
terperinci mengenai ID14 dan mereka ini hendaklah dineutralisekan dan
menarik balik semua dakwaan-dakwaan yang dibuat oleh mereka ke atas
tertuduh dan process ini hendaklah dijalankan dalam masa 24 jam.Arahan-arahan
yang diberikan oleh tertuduh kepada SP1 dan saya dan arahan-arahan yang
saya dan SP1 sampaikan kepada SP2 dan SP7 adalah sama.Process
turning over dan juga neutralisation ini adalah untuk mencapai
penarikan balik semua tuhmahan-tuhmahan yang dibuat oleh Ummi dan
Azizan.
Yang mengarahkan kami untuk menarik balik semua tuhmahan-tuhmahan ini adalah tertuduh sendiri. 205Walaupun
arahan-arahan yang dikeluarkan oleh SP1, iaitu turn over dan
neutralise, kepada SP2 dan SP7 ini adalah untuk memenuhi kehendak arahan
yang dikeluarkan oleh tertuduh. 205When Dato' Amir Junus
was asked in cross-examination whether the accused asked him to use the
turning over and neutralisation process on Ummi and Azizan he said:
Apa
yang tertuduh menyuruh Special Branch buat terhadap Ummi dan Azizan
untuk mereka menarik balik dan menafikan semua dakwaan-dakwaan terhadap
tertuduh.
Untuk mencapaikan hasrat itu Special Branch telah menggunakan technique
turning over dan neutralisation sebab masa yang diberikan hanya 24 jam
sahaja.
The accused asked us to do something for them to retract their
allegations.He did not make specific reference to
the technique of turnover and neutralisation. 205 Tidak benar bahawa
tertuduh tidak meminta sesuatu dilakukan supaya Ummi dan Azizan mengubah
pendirian mereka.This submission of the defence is
unworthy of consideration.
It is not the case for the prosecution that the accused asked Dato' Mohd
Said and Dato' Amir Junus to use the turn over operation to obtain the
letters and that he is being charged for the use of that method.
As I said earlier there is evidence to show that he directed them to
obtain the letters.
The time given to them by the accused to make Ummi and Azizan to retract
and deny their allegations was only 24 hours.
Thus they used a method known to them to comply with the directions
given.
It cannot therefore be argued that the police had exceeded their powers
as the accused had directed them to do something to make Ummi and Azizan
retract their allegations within a short period of time.
The evidence shows that Dato' Mohd Said and Dato' Amir Junus merely used
their standard Special Branch turnover and neutralisation process in
order to comply with the directions of the accused though he did not
specify the method of interrogation to be used.
Thus there is
evidence to show that the accused directed Dato' Mohd Said and Dato'
Amir Junus to obtain from Ummi and Azizan written statements addressed
to YAB Prime Minister during the period 12 August 1997 to 17 August 1997
in respect of the first and third charges and public statements on or
about 27 August 1997 in respect of the second and fourth charges denying
the allegations that they had made against him and that the statements
were obtained as directed by the accused.
(ii) The Advantage Obtained By The Accused The Law
In
its submission the defence, while acknowledging that the object of
Ordinance No. 22 is to widen the scope against bribery and corruption
and to make penal offences not covered by the Penal Code or the Prevention of Corruption Act 1961,
went on to argue that there must be a limit to its ambit and
application.
It was contended that in any charge under s. 2(1) of Ordinance No. 22
there must be a pecuniary element.
Thus in order for any advantage obtained to come within the section it
must be one which is in the form of money or money's worth, property or
valuable instruments.
The prosecution contended that the words "other advantage" in s. 2(1) of
Ordinance No. 22 have a wide meaning and referred to Haji Abdul Ghani bin Ishak & Anor v. PP [1981] 2 MLJ 230 and Nunis v. PP [1982] 2 MLJ 114.
The
meaning of the expression "pecuniary or other advantage" has been the
subject of intense judicial scrutiny in several judgments.
In analysing the meaning of the word "pecuniary" in s. 2(1) of Ordinance
No. 22 Wan Yahya J (as he then was) said in Haji Abdul Ghani bin Ishak & Anor v. PP [1981] 2 MLJ 230 at p. 235:
In
my view any interest relating to money or money's worth, any interest
that could be converted into money, or any interest the object of which
is to make money falls in the category of pecuniary interest.Raja Azlan Shah CJ (Malaya) (as His Majesty then was) made it clear in Haji Abdul Ghani bin Ishak & Anor v. PP [1981] 2 MLJ 230 that the word "other" in the expression "pecuniary or other advantage" is not caught by the ejusdem generis rule.
This is what his Lordship said at pp. 246-247:
It is
therefore no longer in dispute that the object of the Ordinance is wide
so as to bring to book corrupt politicians and public officers who abuse
their public positions or office for their pecuniary or other
advantage.
The use in the Ordinance of the words "pecuniary or other advantage" is
significant.
The word "other" appearing in the context of the definition is not
caught by the ejusdem generis rule.We are fortified in this view by the statement of Lord Diplock to this very effect in Quazi v. Quazi and it might perhaps be useful to set out this part of his judgment in extenso:It
was not the husband's case that the divorce by talaq was obtained in
Pakistan by proceedings that were 'judicial'; it is the reference in the
section to 'other proceedings' on which he relied.
The argument for the wife is that these words, which on the face of them
would include any proceedings that were not judicial, are to be read as
limited to proceedings that are quasi judicial, by application of theejusdem generis
rule.
This involves reading 'other' as if it meant 'similar' and, as it seems
to me, is based on a misunderstanding of that well-known rule of
construction that is regrettably common.
As the Latin words of the label attached to it suggest the rule applies
to cut down the generality of the expression 'other' only where it is
preceded by a list of two or more expressions having more specific
meanings and sharing some common characteristics from which it is
possible to recognise them as being species belonging to a single genus
and to identify what the essential characteristics of that genus are.
The presumption then is that the draftman's mind was directed only to
that genus and that he did not, by his addition of the word 'other' to
the list, intend to stray beyond its boundaries, but merely to bring
within the ambit of the enacting words those species which complete the
genus but have been omitted from the preceding list either inadvertently
or in the interests of brevity.
Where, however, as in
section 2 of the Recognition Act, the word 'other' as descriptive of
proceedings is preceded by one expression only that has a more specific
meaning, viz 'judicial', there is no room for the application of any ejusdem generis
rule; for unless the draftsman has indicated at the very least two
different species to which the enacting words apply there is no material
on which to base an inference that there was some particular genus of
proceedings to which alone his mind was directed when he used the word
'other', which on the face of it, would embrace all proceedings that
were not judicial, irrespective of how much or little they resembled
judicial proceedings.Therefore the word 'advantage' is also to be construed widely.
I also refer to Statutory Interpretation 4th edn. by Pearce and Geddes where the learned authors say at p. 102:
The absence of a genus is seen in acute form where only one word appears before the general expression.In Allen v. Emmerson[1944] KB 362
the court had to consider the scope of the expression 'theatre or other
place of entertainment'. It held that the specific reference to
'theatre' did not limit the general words to places of the same genus as
theatres. A number of Australian decisions have adopted a like approach
in regard to the scope of the words 'building or other place'. The
'place' does not have to be something akin to a building: Lake Macquarie Shire Council v. Aetes [1977] 1 NSWLR 126; Plummer v. Needham [1954] 56 WALRI. Compare Bond v. Foran
[1934] 52 CLR 364 where Dixon J at 376, in considering the expression
'house, office, room, or other place' held that 'place' must be
something ejusdem generis with the words which preceded it. There a genus was created and limited the general expression.Thus
the meaning of the word "advantage" cannot be construed in line with
the meaning of the preceding word "pecuniary". As Raja Azlan Shah CJ
(Malaya) (as His Majesty then was) said in the passage that I have
referred to earlier the word "advantage" must be construed widely (see
also PP v. Datuk Tan Cheng Swee & Ors. [1979] 1 MLJ 166). In
spelling out the meaning of the word "advantage" Abdul Hamid FJ (as he
then was) while sitting in the High Court in Nunis v. PP [1982] 2 MLJ 114 said at pp. 116- 117:
What
constitutes an advantage within the ambit of s. 2(1) of the Ordinance
and as defined by the words 'corrupt practice' would depend on the facts
of each particular case.
An advantage to a public officer who uses his public position may not
necessarily be an advantage to another public officer who similarly uses
his public position.
The circumstances surrounding must be considered, for instance, the mode
and manner in which the public position is so used; the nature of
relationship between such public officer and the party in whose favour
the public position is used; the interest the public officer shows or
may have in the matter and the benefit that may be accrued to the public
officer pecuniary or otherwise or for money or money's worth.It is
difficult, if not impossible, to specify exhaustively the exact
circumstances under which the use by a public officer of his public
position can be said to be to his advantage.To my mind it
is the clear intention of the legislature that the words 'other
advantage' should be given a very wide meaning covering the variety of
situations depending on the facts of each case.
To
consider otherwise would not indeed promote or give effect to the
intention of the legislature and the object underlying the provision.I also refer to the Shorter Oxford English Dictionary 3rd edn which sets out the meaning of the word "advantage" to include inter alia 'a favouring circumstances', 'benefit' and 'to benefit, profit', 'to be beneficial to etc'.
There
is to my mind no mystery in the word 'advantage'. The expression is to
be construed widely to include a benefit or gain of some kind other than
pecuniary.If a public officer abuses his public position to advance a
private or personal interest whereby it is accrued to him either a
pecuniary gain or benefit or something which is personally beneficial to
him even though someone else may derive direct benefit from it, that
advantage is, in my view the kind of advantage that the legislative has
in mind.In Salvation Army v. Canterbury Hotel Union
[1985] 2 NZLR 366 it was held that an advantage accrues when it
produces a more favourable situation than otherwise would have been the
case.
It must also be observed that where general words follow specific
reference to a matter it may not have been intended for the general
words to be limited in their operation at all.
In Rands Oldroyd [1959] 1 QB 204, for example, the interpretation
of s. 16 of the Local Government Act 1933 was in issue.
It required a member of a local authority who "has any pecuniary
interest, direct or indirect, in any contract or proposed contract or
other matter" to disclose such interest and refrain from voting at any
meeting at which the matter was being considered.
The court held that the section was intended to cover all matters where a
member might have a conflict of interest and the general words should
not be regarded as limited by the specific matters mentioned.
In
the case of Ordinance No. 22 it is its object to strike at any act done
by a member of the administration or public officer whereby he has used
his public position or office for his pecuniary or other advantage.
The object and purpose of Ordinance No. 22 therefore precludes the
limitation of the words "other advantage" by the specific word
"pecuniary". In my opinion, therefore, the argument advanced by the
defence on the meaning of the words "other advantage" in s. 2(1) of
Ordinance No. 22 has absolutely no merit.
The Evidence Adduced
I
shall consider the advantage contemplated by the first and third
charges together as they are similar and that in respect of the second
and fourth charges together for the same reason.
First And Third Charges
In
order to appreciate the advantage obtained by the accused in respect of
these charges it is necessary to bear in mind the role he played in
procuring the written statements, that is to say, exhs. P17 and P18.
Exhibit
P14A, B and C had been publicly circulated to some extent.
Exhibit P15 which contained allegations against the accused some of
which were similar to those in exh. P14A, B and C was also being
circulated publicly.
On 12 August 1997 the accused asked Dato' Mohd Said and Dato' Amir Junus
to look for Ummi and Azizan in order to find out more about exh. P14A, B
and C and why it was written.
The very next day he asked them to locate Ummi and Azizan quickly and
"gempar" them so that they will not circulate the allegations in exh.
P14A, B and C. Two days later he showed them exh. P15. They asked him to
make a police report.
Initially he did not want to do so as he did not want the case to be
investigated by the CID and because of the adverse publicity it would
generate as he is a politician and the Deputy Prime Minister.
He finally agreed to make a report but did not want the matter to go to
court as in that event it will be publicised.
On 16 August 1997 the accused once again told them to trace Ummi and
Azizan as soon as possible.
After their arrest on 17 August 1997 at about 11pm the accused wanted to
see Dato' Mohd Said and Dato' Amir Junus immediately.
When they met him at his Official Residence at about 12.30am on 18
August 1997 he directed them to get a retraction of the allegations made
by Ummi and Azizan within 24 hours.
He repeated his request that he did not want the two to be detained for
long and that their case should not be brought to court and that he did
not want any publicity.
At about noon on the same day Dato' Mohd Said and Dato' Amir Junus were
again called by the accused to his Official Residence.
They told him that Ummi and Azizan had changed their mind and were
willing to retract the allegations.
He told them that Ummi and Azizan should write a letter of denial to YAB
Prime Minister.
The letters written by Ummi and Azizan are exhs. P17 and P18. Two days
later on 20 August 1997 Dato' Mohd Said handed exhs. P17 and P18
together with his report, exh. D25, to YAB Prime Minister recommending
that the matter be closed.
The frequency and urgency with which
the accused summoned Dato' Mohd Said and Dato' Amir Junus to give them
instructions and the speed at which he wanted the retraction letters
show that he was gravely affected by the allegations in exh. P14A, B and
C. They will generate adverse publicity against the accused as he is a
politician and the Deputy Prime Minister.
This is made evident by the fact that in his meetings with Dato' Mohd
Said and Dato' Amir Junus he told them repeatedly that he did not want
any publicity.
He instructed them to "gempar" Ummi and Azizan so that they will not
circulate the allegations contained in exh. P14A, B and C. He did not
want them to be detained for long.
Thus he wanted the matter to be closed as soon as possible so as to
avoid any adverse publicity.
His initial reluctance to make a police report amplifies this.
He only agreed to do so upon certain terms.
He wanted the written statements to be addressed to YAB Prime Minister.
The letters were obtained and forwarded to YAB Prime Minister.
The chronology of events clearly indicates that the accused wanted to
prevent the allegations from being publicised so as to avoid any form of
embarrassment to himself by getting the written statements from Ummi
and Azizan.
Once they write these letters they would not be able to proceed any
further with their allegations by virtue of their change in stand.
The very fact of having written the letters will deny them the
opportunity of repeating the allegations.
The letters have therefore saved the accused from embarrassment.
The corollary is that the accused's position and dignity are not
affected.
This is because the letters had placed the accused in a more favourable
position than would have been the case if there had been no such
letters.
The letters negate the effect of exh. P14A, B and C and its further
circulation and operate as a favourable circumstance for the personal
benefit of the accused as they save him from embarrassment.
The result is the same whether the allegations are true or false as they
are still allegations as such.
To my mind this is a more substantial benefit than that held to be so in
Nunis v. PP [1982] 2 MLJ 114 which, as described by Abdul Hamid FJ (as he then was) at p. 117, is as follows:
It is clear from the evidence that the respondent abused his public position when he assisted or gave aid to his brother-in-law.
It was beneficial to him personally that by so doing he could provide benefits to close members of his family.
It was undoubtedly a comfort to him to be able to effect financial gain to them or their company.To
my mind, an act on the part of the respondent was an act of showing
favour to his sister's husband or the brother-in-law to effect financial
advantage to him.The advantage obtained by Nunis in that case was the derivation of comfort by effecting financial gain to his relatives.
In this case the accused gained direct comfort by procuring the written statements in respect of the allegations against him.
The
defence contended that there was nothing wrong in the accused seeking
to save himself from embarrassment by having Ummi and Azizan to deny
their allegations and added that:
205 embarrassment can be
caused by allegations which are true as well as by allegations which
are false.
It is a fact that many people do not sue for defamation as they want to
avoid embarrassment being caused to them by the defamatory matter being
published even though the defamatory matters published are not true.
To most people it would be more preferable to get the person responsible
for publishing the libel or slander to apologise without going to Court
in order to avoid the attendant adverse publicity.
If they do not go to Court they get the people responsible for the
publication of the defamatory matters to apologise or retract the
matter.
There is nothing legally or morally wrong with that.
There is nothing wrong for a person to take steps to correct an
injustice.
That is the position where the allegation is not true.
If it is true and discloses an offence then the use by the public
officer of his public position in order to get the allegation retracted
would be for the purpose of protecting himself from any criminal action.
Such use of public position is for a corrupt or dishonest purpose.
There is a difference between seeking to have a true and a false
allegation retracted.
In the case of a true allegation what is sought to be done is to cover
up or conceal a legal wrong.In the case of the untrue allegation what is sought to be done is to obtain a remedy for an injustice.The
advancement of the submission on the basis of a distinction between the
truth and the falsity of the allegations is faulty as that is not in
issue in the case.
Be that as it may, I agree with the argument that it is proper for a
person to have a defamatory matter against him retracted in order to
avoid the embarrassment of going to court so as to save himself from the
attendant adverse publicity.
But this is subject to an important injunction.
Such a person must not take the law into his own hands to resolve the
problem as, for example, by beating up the person concerned to retract
the defamatory matter.
He could approach the person himself in a recognised manner to resolve
the problem or appoint an advocate and solicitor to do so. I would also
agree that if a person lodges a police report on the matter and requests
the police to investigate thoroughly he does no wrong.
Thus anything that is done must be within the confines of the law.
The evidence shows that the accused went beyond the permissible limits
of the law.
The charges in this case relate to a Deputy Prime Minister and Minister
of Finance using the police against certain individuals in a purely
personal matter.
The directions that he gave to Dato' Mohd Said and Dato' Amir Junus to
have the allegations retracted show that he had abused his position.
The manner in which he wanted the allegations to be retracted is not a
lawful way of doing so. I am therefore of the view that the argument
raised cannot be sustained.
Second And Fourth Charges
On
15 August 1997 SAC Musa was handed exh. P15. On 18 August 1997 he
caused a search to be made in Ummi's office and Azizan's house from
where various documents were recovered.
On 19 August 1997 Dato' Amir Junus gave SAC Musa copies of exhs. P17,
P18 and P14A, B and C. He said that upon receipt of the latter he wanted
to continue with the investigation in order to find out the truth of
the allegations made against the accused.
Thus on the same day he recorded a police statement from the accused who
denied the allegations.
On 30 August 1997 the accused, at a meeting with SAC Musa, Dato' Ismail
Che Ros and the Honourable Tan Sri Mohtar Abdullah, inquired from SAC
Musa about the investigation being carried out on exh. P15. SAC Musa
told him that the police would carry out a detailed investigation to
ascertain whether the allegations were true or not and that the
investigation was still at an early stage and not completed yet.
The accused said that it was not necessary to investigate into the
matter as it was contrary to YAB Prime Minister's decision that it has
been settled and that it was a slander.
The accused also said that he did not want any action to be taken
against Ummi and Azizan.
On 2 September 1997 SAC Musa informed ASP
Zull Aznam to get ready Azmin, Shamsidar, Dato' Nallakaruppan, Aton and
ASP Zull Aznam himself for the purpose of recording their statements.
His purpose was to find out their relationship and to take any other
statement that they may wish to give.
He informed ASP Zull Aznam about his purpose in wanting to record the
statements whereupon ASP Zull Aznam told SAC Musa that he will contact
him later. ASP Zull Aznam later informed SAC Musa that the accused
wanted to meet him.
When SAC Musa met the accused the latter asked him what was the use of
his recording statements from the witnesses as Ummi and Azizan had
written letters to him denying the allegations. SAC Musa replied that he
wanted to record their statements in order to complete his
investigation before submission to the Attorney General.
The accused then gave him exhs. P20, P21 and P22 and instructed him to
stop the investigation. SAC Musa then reminded the accused of the
Attorney General's instructions that all investigations on government
officers and leaders have to be forwarded to him.
The accused instructed SAC Musa not to send the investigation papers to
the Attorney General.
On 3 September 1997 SAC Musa showed the denial letters to Dato' Ismail
Che Ros. They decided to send the investigation papers to the Attorney
General with a recommendation to take no further action on the matter.
On 8 September 1997 the Attorney General agreed after having read the
denial letters. SAC Musa said that the letters influenced him to
recommend that no further action be taken in the case even though the
investigation was not complete as the documents contained a denial of
the allegations.
When asked in cross-examination why he recommended that no further
action should be taken in the case SAC Musa said:
Saya
mengesyorkan kes in di NFA berdasarkan surat-surat yang saya terima
iaitu P17, ID18, P20, ID21 dan ID22 yang diserahkan kepada saya oleh
tertuduh dan juga arahan tertuduh supaya memberhentikan siasatan saya.He
said that without those letters he would have carried out a more
thorough investigation into exhs. P16, P14A, B and C and that if he had
found the allegations in those documents to be true he would have
recommended that the accused be prosecuted.
At that time he did not know the circumstances in which Ummi and Azizan
had prepared the letters.
He also did not know about the involvement of the Special Branch in the
preparation of the letters then.
He came to know the manner in which the letters were prepared only when
he was investigating into the report on Buku 50 Dalil in 1998.
To a
question by the defence SAC Musa said that on 30 August 1997 he met the
accused in his office.
It was not put to him that he did not meet the accused on that day.
With regard to what transpired at this meeting SAC Musa was
crossexamined on the basis that the accused was merely echoing YAB Prime
Minister's statement in exhibit ID23 that the matter had been closed.
It goes as follows:
Question: When you met accused at his
office you told the Court that he said to you that there is no need to
investigate further because the Prime Minister had considered the matter
closed.Answer: Tertuduh ada beritahu pada saya
bahawa sekiranya saya meneruskan siasatan ianya bercanggah dengan
kenyataan yang dibuat oleh Perdana Menteri bahawa kes ini telah selesai
dan perkara ini dianggap sebagai fitnah.Question: Even if he had said that he was merely echoing what the Prime Minister had said.Answer: Benar.
Tertuduh merujuk kepada statement yang dibuat oleh Perdana Menteri. 205Question: In this statement the Prime Minister had said that the matter is closed.Answer: Mengikut akhbar ini ada disebut oleh Perdana Menteri yang menyatakan perkara ini telah ditutup.Question: Accused being the Deputy Prime Minister had to abide by what the Prime Minister had stated.Answer: Itu saya tidak tahu.SAC
Musa said that he did not consider YAB Prime Minister's statement as a
direction to him to close the case.
The accused's reliance on YAB Prime Minister's statement to the effect
that the matter is closed shows that he had in fact told SAC Musa that
it is not necessary to investigate into the matter, as, otherwise there
is no relevance in referring to the press statement.
With regard
to the meeting on 2 September 1997 it was put to SAC Musa that the
accused never told him not to send the investigation papers to the
Attorney General.
In reply he said:
Saya tidak setuju bahawa tertuduh tidak mengarahkan saya untuk tidak menghantar kertas siasatan kepada Peguam Negara.He did not agree with a defence suggestion that:
205 saya tidak disuruh oleh tertuduh supaya jangan menyiasat kes ini.When
he was asked whether he agreed that after perusal of the documents and
after consulting Dato' Ismail Che Ros he decided that no further action
is to be taken on the investigation he said:
Lima dokumen
yang saya terima telah mempengaruhi saya untuk mencadangkan siasatan di
dalam kes ini di NFA. Saya bersetuju selepas meneliti kelima-lima
dokumen yang saya terima saya telah mengesyorkan siasatan di dalam kes
ini di NFA. Saya juga telah kemudiannya mengesyorkan kepada Peguam
Negara untuk siasatan ini di NFA. Peguam Negara telah bersetuju di atas
cadangan saya untuk NFA kes ini.To a defence suggestion
as to whether the accused told him that YAB Prime Minister had told the
accused, that is to say, "Sorry that Aziz Shamsuddin was involved. I
should have sacked him.
But as I have said the case is closed," SAC Musa said:
Tertuduh tidak memberitahu saya yang PM memberitahu perkara-perkara yang disebutkan oleh peguam.Tidak benar bahawa tertuduh memberitahu saya perkara ini pada 2.9.97.The
line of cross-examination shows that the defence did not challenge the
fact of SAC Musa having met the accused on 30 August 1997 and 2
September 1997.
His evidence that the accused handed to him exhs. P20, P21 and P22 on 2
September 1997 was also not challenged.
He agreed with the defence suggestion that these documents and exhs. P17
and P18 influenced him to recommend that no further action be taken on
the investigation.
What was suggested to him was only that the accused never told him to
send the investigation papers to the Attorney General and that the
accused did not tell him not to investigate the case.
These suggestions were denied.
There is therefore evidence to show
that SAC Musa met the accused on 30 August 1997 and 2 September 1997
and that the accused handed over exhs. P20, P21 and P22 to SAC Musa and
gave the instructions as testified by him.
It must be observed
that the investigation concerned serious allegations against the
accused.
Despite the denial of the allegations by the accused in his police
statement to SAC Musa on 19 August 1997 the investigation did not come
to an end as SAC Musa wanted to record further statements.
It was SAC Musa's intention to record these statements that prompted the
accused to make use of the denial letters to stop the investigation
from proceeding any further.
He succeeded in doing so. I say this because the denial letters that the
accused gave SAC Musa caused the investigation to end abruptly.
This is made evident by the fact that the letters influenced SAC Musa to
recommend that no further action be taken in the case even though the
investigation was not complete.
It is superfluous to state that an investigation into the allegations
clearly involves the accused directly as the allegations were against
him.
As the investigation was brought to an abrupt end there will be no
further inquiry into the allegations.
The pre-mature termination of the investigation is an advantage to the
accused as it thereby prevents the relevant authorities from making a
decision on a possible prosecution.
The accused has therefore saved himself from any criminal action by
using exhs. P20 and P22 which had been unlawfully obtained.
This brings into sharp focus the contention of the defence that the
accused could not have been prosecuted if the allegations are not true
with the result that he would have obtained no benefit when the
investigation was stopped.
The submission requires a consideration of whether the accused would
have obtained an advantage if no criminal action is ultimately taken
against him by virtue of the allegations being found to be false at the
proper conclusion of the investigation.
To my mind this does not alter the advantage obtained by the accused in
any way.
It must be reiterated that the advantage obtained is only one of the
elements involved in the charges.
Thus it must not be read in isolation.
It must be read together with the manner in which the public statements
were obtained.
Viewed in that light it will be seen that the investigation came to an
end as a result of the use of the denial letters obtained unlawfully on
the direction of the accused.
The investigation was therefore stopped by unlawful means.
One cannot adopt an illegal course of action to obtain a benefit in the
belief that he is entitled to it. He has to allow law and order to take
its normal course.
Be that as it may, the argument advanced had in fact been considered in PP v. Dato' Haji Mohamed Muslim bin Haji Othman
[1983] 1 MLJ 245 where the accused was charged for having been present
at a meeting in respect of a matter in which he had an interest.
It was argued that his presence at the meeting would have made no
difference to the approval of his application.
In reply to this Hashim Yeop A Sani J (as he then was) said at pp.
248-249:
A number of witnesses both prosecution and
defence said that they took no objection to the presence of the accused.
In my view the fact that no one took objection to the presence of the
accused at that meeting does not alter the position in law.Nor
the fact that according to some witnesses his presence would have made
no difference whatsoever and that the application would have been
approved any way.I was therefore unable to agree with the argument advanced by the defence.
Thus
there is evidence to show that the accused had obtained an advantage in
respect of the four charges as contemplated by them.
Finding
I was therefore satisfied that the prosecution had made out a prima facie
case to show that the accused, whilst being the Deputy Prime Minister
and Minister of Finance had in such capacity committed corrupt practices
in respect of the four charges preferred against him within the meaning
of s. 2(1) of Ordinance No. 22. I then called upon the accused to enter
his defence.
When the three alternatives were explained to him he elected to give
evidence on oath.
The Case For The defence
The accused gave evidence over a period of seven days. I shall summarise his evidence as given on the various dates.
Examination-in-chief 8 February 1999
The
accused became an UMNO member in 1967 but was active only from 1982.
He became UMNO Youth Chief in 1982 and UMNO Vice-President from 1987 to
1993 when he rose to become the Deputy President.
In 1982 he was appointed as a Deputy Minister in the Prime Minister's
Department; in 1983 as Minister of Culture, Youth and Sports; in 1984 as
Minister of Agriculture; in 1986 as Minister of Education; in 1991 as
Minister of Finance and in 1993 as Deputy Prime Minister.
In August 1997 he was the Deputy Prime Minister and Minister of Finance.
He was also the Chairman of various Cabinet Committees, including the
Jawatankuasa Pengurusan dan Keutuhan Kerajaan.
This committee receives complaints relating to corrupt practices.
As the accused said:
Semua complaint yang dibuat telah
dimajukan kepada BPR. BPR akan menyiasat dan dari masa ke semasa memberi
laporan kemajuan siasatan kepada Perdana Menteri dan dalam beberapa kes
kepada saya sendiri kerana saya Pengerusi Jawatankuasa ini dan juga
persepsi masyarakat bahawa jika ada aduan rasuah yang serius lebih baik
dimajukan kepada pengetahuan saya supaya kes itu tidak ditutup dengan
mudah.
Apa yang dimajukan oleh BPR kepada Perdana Menteri atau saya berikutnya
ianya laporan kemajuan siasatan.
Laporan ini selalunya memberikan kemajuan siasatan sama ada kes itu
dianggap serius atau tidak.
Akan tetapi untuk memberikan keputusan mengambil tindakan atau tidak
akan dirujuk kepada Jabatan Peguam Negara.Rujukan ini dibuat oleh BPR kepada Jabatan Peguam Negara.Prior
to and after 1997 Dato' Mohd Said and Dato' Amir Junus used to see the
accused frequently to brief him on the latest political and economic
issues and the general public reaction to government policies and the
leadership.
As the accused said:
My meetings with the Special Branch were once a month on the minimum.
There were occasions when we had more meetings.
Because of my busy schedule I normally see them at home after a function.
This is not an unusual practice as I meet other government officers and ministers at home at night.
It could be from 9.30 p.m. to 10.00 p.m. and can even be later.The
meetings with the Special Branch were cordial and friendly like most of
my meetings. I have also met the Special Branch officers especially
Dato' Mohd Said in my office on a few occasions.A few
days before exh. P14A, B and C came to his knowledge the accused met YAB
Prime Minister who told him that he had received a letter containing
some wild allegations.
The accused then added:
He advised me to read and destroy.
I reiterate that he said learn from his experience and ignore such
malicious allegations. I brought the letter to my office, read it and
because Azmin is Ummi's brother I confided in him. I asked him to shred
the letter after reading it. He told me that he had shredded it.With regard to exh. P14A, B and C he said:
P14 was the first time that Ummi made allegations against me. 205 I cannot recall how P14A, B and C came to my knowledge.But I can recollect that the first serious discussion on P14 was when Dato' Mohd Said and Dato' Amir Junus came to see me.On
11 August 1997 Dato' Mohd Said saw the accused in the morning for a
scheduled briefing.
He came alone.
After the briefing the accused asked him to stay back.
The accused asked him whether he was aware of exh. P14. At that time the
accused had been told of this letter but had not seen it. As the
accused continued:
He told me that he was aware and that
he will find out and give me a briefing later.He mentioned that he would
bring with him PW11. On that morning we did not have the time to
discuss the contents of the letter.PW1 and PW11
came to brief me either that night or the following night. (Witness
refers to his personal diary for 1997). The meeting on 11.8.1997 was at
8.45 a.m. Thereafter the entries are not in the diary as the meetings
were very private.At the next meeting Dato' Mohd Said and
Dato' Amir Junus informed the accused that the IGP had already received
exh. P14A, B and C from Dato' Seri Megat Junid.
He had a look at the letter and told them that it was not the letter
that he had received from YAB Prime Minister.
He then said:
They expressed their concern.
The timing was to coincide with the UMNO General Assembly. I did not
take the matter very seriously and told them about the Prime Minister's
advice. I considered the allegations to be malicious, scurrilous and
irresponsible. I denied the allegations vehemently.
But they said to me that it is not the allegations they are interested
in but they suspect attempts by some politicians to smear my reputation.
That was when I said to them that I agree with their suggestion that it
must be investigated thoroughly. I think PW1 said deeply.
They told me that the IGP had already received the letter.
As they came to see me after their meeting with the IGP my impression
was that the IGP was fully aware of what they intend to do. PW1 and PW11
were concerned because they believed that there were other
personalities involved in the writing of the letter.
We must appreciate that the discussion I had with PW1 and PW11 were very
frank and open.
They were of course very concerned.
The Special Branch was concerned because they felt that this issue
relates to the security of the country and an attempt to smear the
reputation of the leaders. PW1 and PW11 were keen to investigate to find
out the personalities involved and those orchestrating from behind. I
agreed with them because I know fully well the malicious interest of the
writers. I do accept that I have political foes who would stop at
nothing to achieve their agenda.
We did discuss P15. But I am not sure whether it was on the 11th or at
the following meeting. I have seen P15 before. I first saw it on the
11th or at the following meeting.Some of the
allegations in P15 are similar to the allegations in P14. That is why we
discussed P14 and P15 together with PW1 and PW11. P15 was brought to my
attention by either PW1 or PW11.With regard to the
lodging of the police report, exh. P16, the accused said that Dato' Mohd
Said proposed that he should lodge a report in order to facilitate
investigation.
Initially he did not agree to do so as there are hundreds of such
letters and YAB Prime Minister had advised him to ignore such letters.
As the accused continued:
Finally, I agreed to make a
report. I agreed because I trusted PW1 when he said that this is
critical because we should not allow irresponsible elements to proceed
with such malicious allegations and to find out the truth including
those conspiring with them.
When I decided to lodge a police report I thought that the investigation
will be confined to the letter and the conspirators.On the specific
allegations I told them in no uncertain terms that these were
fabrications and I denied vehemently.The accused then discussed the matter with ASP Zull Aznam so that the latter could prepare a draft and lodge the report.
The accused then said:
The making of the report and its contents were on the advice of PW1 though the draft was made by ASP Zull Aznam.At
the time of the making of the report there was no discussion or
suggestion by the accused or Dato' Mohd Said or Dato' Amir Junus on the
arrest of Ummi and Azizan.
As the accused said:
What they told me was that they were searching for them.My understanding then was that they wanted to talk to these people.After P16 was lodged I left it to the police to handle the matter.On 17 August 1997 the IGP informed the accused that Ummi and Azizan had been arrested.
According to the accused the IGP
205 said that since PW1
and PW11 were with him he thought it would be better for them to come
and see me in order to brief me on the latest situation.They came to my official residence.They gave him a briefing.
The accused then said:
Since Ummi and Azizan were arrested I must
admit that I was a bit concerned that they should not be detained for
long. I did agree initially with PW1 that this matter should be
investigated but once I knew of the involvement of Dato' Aziz and Dr
Restina I was keen that they should investigate it thoroughly and to get
to the bottom of it.
On the following night Dato' Mohd
Said and Dato' Amir Junus briefed the accused on the latest situation.
They told him that Azizan had regretted what he had done, had retracted
the letter and wanted to see the accused to apologise to him.
On the other hand Ummi, even though she had retracted the letter, did
not propose to see him.
Though initially not keen the accused later agreed to see Azizan.
The meeting between the accused and Azizan was brief.As the accused explained:I
felt sorry for him when he said that he was confused.
At first he said he did not sign.
Then he said he signed but did not read it. I was not pleased with his
explanation. I just listened to what he said.
What struck me was when he said that he was sorry and 'salah besar' for
making the allegations and 'saya murtad'. When I heard these words, I
said, 'Okaylah, baiklah' as I thought he was really genuine in making
the apology.
So he left.
9 February 1999The accused explained why he did not want Ummi and Azizan to be detained for long.
As he said:I
told the police not to detain Ummi for too long because Ummi happens to
be the sister of my private secretary, Azmin Ali and the family is
known to me. Similarly Azizan was my wife's former driver and his family
is also known to us and the police informed me that their arrest was
the result of my police report.
On his discussions with Dato' Mohd Said and Dato' Amir Junus up to 17 August 1997 the accused said:Prior
to and up to the 17th my discussions with PW1 and PW11 were friendly
and informal.
There were suggestions made by them on what they thought the police have
to do. That was why I was advised to lodge this report initially.
But knowing police and some of their tactics from my earlier experience
of being detained a long time ago I do not want them to use rough
methods, bully which seems to be the practice now.
That was why I told them as confirmed by PW1, firstly, janganlah tahan
lama-lama and, secondly, gempar sikit-sikit cukuplah. (Witness referred
to construction of gempar by PW1 and PW11.) By the phrase 'gempar
sikit-sikit' is like what we say to our children like behave yourself,
do not be naughty. PW11 has been too long in Sabah.
The phrase was used in the context of a friendly and informal session.
They came out with the story of the grand design of some political
personalities out to finish me. So in the midst of that discussion I
suggested that they should investigate fully and get the truth out from
Ummi and Azizan.
The accused said that before Dato' Mohd
Said and Dato' Amir Junus came to his house on the night of 17 August
1997 the IGP spoke to him and told him of the arrest of Ummi and Azizan.
The IGP considered it as a security issue and therefore assigned Dato'
Mohd Said and Dato' Amir Junus to brief him.
When the IGP spoke to the accused on the telephone the accused had just
arrived from Langkawi at about 11pm.With regard
to the manner in which the meetings between him and Dato' Mohd Said and
Dato' Amir Junus were arranged the accused said that there were
occasions when he invited them to meet him but on many occasions Dato'
Amir Junus would call ASP Zull Aznam for an appointment.On 18 August 1997 he met Dato' Mohd Said and Dato' Amir Junus at about lunch time at his Official Residence.
According to him:On
that day they informed me of the results of the investigation of Ummi
and Azizan and Ummi and Azizan had indicated that they regretted their
actions and that they were made use of and they have written letters to
that effect. I was not sure whether the letter had been written or in
the midst of writing.
He said that they came to see him again on that night.
They brought with them the letters written by Ummi and Azizan.
The letters are exhs. P17 and P18. He said that when he received these letters he had no idea as to how they were obtained.He then said:I assumed as per my instruction that the police should do what was right and proper.
Up to that time the question of criminal action against him never arose.On being asked whether any such action was in contemplation at any time he said:To
my knowledge based on my discussions with PW1 and PW11 and later on
even with my discussions with the Attorney General this was never ever
contemplated or considered. I was the complainant and victim.
It would therefore be ludicrous to imagine criminal action to be
preferred against me.
The accused also said that he never ever suggested that he should meet or see Azizan.He also did not suggest that he should question Azizan at the office of the Special Branch.On
20 August 1997 Dato' Amir Junus made an appointment through ASP Zull
Aznam to see the accused.
At that meeting Dato' Mohd Said and Dato' Amir Junus informed the
accused of their report (exh. D25) to YAB Prime Minister and also handed
to him an unsigned copy of the report.
On 25 August 1997 he read a statement made by YAB Prime Minister in the
newspapers (exh.
D23).The accused said that after exhs. P17 and P18 were handed to him exhs. P14 and P15 were being widely circulated.
By 27 August 1997 the latter two letters had become public knowledge.
On that day Dato' Mohd Said and Dato' Amir Junus came to see him.
They told him that they will have to deal with the issue.As he said:They
considered several options, that is, either to suggest that Azizan and
Ummi speak directly to the media or come up with a public statement. I
had to remind them that because of the Prime Minister's suggestion that I
should completely ignore the issue of the allegations so I had to leave
it to PW1 and PW11.
He said that there was no telephone conversation between him and Dato' Amir Junus on the night of 28 August 1997.
He did not suggest to Dato' Amir Junus for any amendments to be made to exh. P29 which, he said, is a very good statement.When
asked why Dato' Amir Junus would lie when he said that amendments were
made by him the accused said that he believed Dato' Amir Junus was upset
with him as he had taken objection to businessmen being brought along
by Dato' Amir Junus to see him.On 29 August 1997 exhs. P20, P21 and P22 were handed to the accused.On
30 August 1997 the accused had a meeting in his office with the
Attorney General and Dato' Ismail Che Ros. As to whether SAC Musa was
present at the meeting the accused said:This is noted in
my diary as '10.00 pagi AG dan Dato' Ismail Che Ros'. It is not stated
in my diary that SAC Musa also came. I also checked with my PA Azmin and
he said that he would put down the name if Musa had attended the
meeting.
At the meeting the accused had a short discussion
with the Attorney General and Dato' Ismail Che Ros. He relayed to them
the statement from YAB Prime Minister as reported in the newspapers on
25 August 1997.After Dato' Ismail Che Ros left
the Attorney General expressed concern over the irresponsible and
malicious attacks made against the accused.On 31
August 1997 the accused had a meeting with YAB Prime Minister who told
him, "Sorry that Aziz was involved. I should have sacked him."On 3 September 1997 Dato' Amir Junus made an appointment to see the accused through ASP Zull Aznam.
He and Dato' Mohd Said then met the accused between 9.30pm and 10pm.
They handed to him an unsigned copy of a report which had been sent by Dato' Mohd Said to YAB Prime Minister.
The report was marked as IDD123.
The accused said that this report was only located recently by his wife from some boxes.
He said that it was found only about a week ago and was not available when Dato' Mohd Said gave evidence.
The accused also tendered in evidence exhs. D76 and D77. They are copies of letters that he had sent to YAB Prime Minister.
He explained their contents.The accused said that the report referred to in para. of exh. D77 is exh. IDD123.10 February 1999The
accused continued to explain the contents of exhs. D76 and D77. He then
said that on 2 September 1998 he had a meeting with YAB Prime Minister.The accused was arrested on 20 September 1998.
He was assaulted by the police.
He gave a statement to the police (exh. D72) on 27 September 1998 at 9.45am.
When questioned on this statement he said:The
only question asked of me was whether I gave my instructions to the
police to close the case relating to the flying letters investigated by
the police.
My answer was no I did not.
This was the first time since the investigations were conducted in 1997
that I was asked this question.
This happens to be the first serious question by the CID after I was
assaulted.
The accused then gave an account of Azizan's attempt to see him in June 1998.This is what he said:In
June 1998 Azizan tried to see me at the Ministry of Finance but I did
not agree and he met my officer Mohamed Ahmad and my ADC Zull Aznam.
That was at the Ministry of Finance.
Mohamed Ahmad is a senior PA at the Treasury.
Azizan tried to make an appointment through Mohamed and Zull Aznam. I
refused to see him as it was not necessary for me to see him. I did not
want to see him because by then I had lodged a police report (P56) on
Buku 50 Dalil.
So I did not see him.
And also because he wanted to discuss some business propositions with
me. After that he contacted Zull Aznam a number of times and also
through Abdullah Sani, my driver, seeking an appointment.
About a week later I agreed to see him. I saw him.
He came to the house.
He did not discuss business propositions with me because I made it clear
to Zull Aznam to convey to him my views that if he has any business
proposals he should submit it to the Treasury.
So he mentioned Buku 50 Dalil and said that at no time was he ever
involved in the preparation or distribution of the book.
He never made any accusations against me regarding the accident
involving his wife.
When he talked about his wife he broke down. I said to him that I did
not accuse him of being involved in the conspiracy with regard to the
accident. I did not tell him to deny to the police about any sodomy or
any other issue because at the relevant time the matter as far as I know
was closed.
When the accused was asked whether he had given any instructions to SAC Musa on 30 August 1997 not to investigate he said:I
did not give any such instructions to Musa Hassan or to anyone else for
that matter. I have checked my records and with my staff that SAC II
Musa was not there in the office at that meeting on the 30th.
When
asked whether he had told SAC Musa not to take statements from Azmin,
Shamsidar, Dato' Nallakaruppan, Aton and ASP Zull Aznam the accused
said:I did not give any instructions to Musa not to take statements from those persons.
It would be absurd for me to give such instructions when I myself asked Zull Aznam to lodge a police report on my behalf.
How could I then suggest to the police not to question even Zull Aznam.
In
answer to a question as to whether he told SAC Musa not to send the
investigation papers to the Attorney General the accused said:I did not give such instructions.
There was a meeting with Musa at about that time.
But I cannot remember the date of that meeting. I had only one meeting with SAC Musa.
That was when he recorded my statement.
The accused was
then asked whether he had given instructions to Dato' Mohd Said and
Dato' Amir Junus to get Ummi and Azizan to retract their allegations.In reply he said:I did not give any instructions to PW1 and PW11 to get Ummi and Azizan to retract their allegations.
In a later part of his evidence he said.I did not give any instructions to PW1 and PW11 to obtain the Kenyataan Umum from Ummi and Azizan.
Prior to 25 August 1998 the accused had two meetings with the IGP with regard to this case.
The first one was in late June 1998 at the accused's Official Residence.
Present with the IGP were Tan Sri Norian, the Deputy IGP, and two other senior police officers.
The second meeting was in early August 1998 at the accused's office in the Prime Minister's Department.
Present with the IGP were the Deputy IGP and the Director of the CID, Dato' Yaacob.After the meeting the Deputy IGP and Dato' Yaacob left leaving behind the IGP. The accused had a discussion with the IGP.With regard to his power over the police by virtue of his position the accused said:As
the Minister of Finance I had no authority or jurisdiction or power
over the police, Special Branch and PW1 and PW11. As the Deputy Prime
Minister I had no authority or jurisdiction over the police or the
Special Branch. I as Minister of Finance and as Deputy Prime Minister
did not use my office or position in relation to the investigation into
P14 or P15.
11 February 1999The
accused explained the contents of exhs. D76 and D77 in some detail.
He then referred to the letter "purportedly" written by Ummi prior to
exh. P14. That was the letter which was shown to him by YAB Prime
Minister and which he asked Azmin to shred.
As he said it is205
a different letter from P14 with the same covering letter.
The differences between P14 and that letter are, firstly, that letter
had some criticisms of Azmin Ali for his failure to support the family,
secondly, the reference to phone conversation and other details were not
there.
That is all I can remember.
That letter was shorter and in more decent language. P14 has a lot of
drama.
That letter was straightforward.
Cross-examinationThe accused said that on 8 May 1995 he took an oath to keep secrets as a Minister.
When exhs. P14A, B and C and P15 were referred to him he said:Dakwaan-dakwaan
dalam P14A, B dan C dan P15 adalah sebahagian besar dakwaan dan
tuhmahan jahat terhadap saya.
Saya bersetuju bahawa tujuan tuhmahan dalam P14A, B dan C adalah untuk
menjejaskan maruah dan nama baik saya.
Kandungannya yang berunsur fitnah dan bertujuan jahat tidak semestinya
akan menjejaskan nama baik saya sekiranya maklumat sebenar diketahui.
He
said that during his meeting with Dato' Mohd Said on 11 August 1997 he
was the one who raised the issue of exh. P14. At that time he did not
know about it. He said that it contained allegations which were
circulated by people who were paid.When asked
whether exh. P14 contained allegations that he was involved in
homosexual activities and had committed adultery with Azmin's wife he
said:Saya mengetahui P14 mengandungi tuhmahan dan fitnah
jahat terhadap saya oleh orang-orang jahat yang menuduh saya melakukan
kegiatan homo dan fitnah zina oleh orang-orang yang upah terhadap isteri
Mohd Azmin Ali.
When asked whether the allegations in exh. P14A, B and C were widely circulated in August 1997 he said:Saya setuju tuhmahan dan fitnah dalam P14A, B dan C telah tersebar secara meluas melalui satu conspiracy mulai Ogos 1997.
When
this answer was given the learned Deputy Public Prosecutor said that
the question of conspiracy is irrelevant. I reminded the accused to
answer the question as put.
He was then asked whether he agreed that the allegations in exh. P14
could expose him to humiliation and hatred by many.
In answer to that question he said:Tuhmahan dan fitnah di
dalam P14 tidak mudah menyebabkan kebencian ramai kerana rakyat juga
ingin mengetahui punca dan usaha penyebar fitnah.
When the question was repeated he said:Saya
bersyukur kerana meskipun ada tuhmahan jahat dan pakatan untuk menghina
dan menimbulkan kebencian ramai rakyat masih menyayangi saya dan tidak
terpengaruh dengan pakatan jahat tersebut.
When asked
whether the contents of exh. P14A, B and C could damage his reputation
as Deputy Prime Minister and Minister of Finance the accused said that
though the purpose of the allegations was to damage his reputation it
did not succeed.When the question was repeated he said:Saya tidak terjejas semata-mata kerana tuhmahan dan fitnah P14.
It
was then put to the accused that he would not want the allegations in
exhs. P14 and P15 to be widely circulated as they could expose him to
humiliation and hatred by many.In reply he said:Tuhmahan P14 dan P15 dari awal lagi diketahui fitnah besar dan jahat.
Tidak mungkin kalaupun tersebar luas boleh mengakibatkan penghinaan dan kebencian ramai.
When the question was repeated he said:Saya telah jelaskan bahawa fitnah dan tuhmahan tidak mungkin menjejaskan nama baik saya.
He
was then asked whether on 12 August 1997 he had instructed Dato' Mohd
Said and Dato' Amir Junus to trace Ummi and Azizan and to obtain
information as to why they had made the allegations in exh. P14A, B and
C. He denied that he gave such instructions and said that he only asked
them to investigate into the allegations in depth.It
was then put to him that he asked them to investigate into the
allegations in depth as he was concerned about exh. P14A, B and C. In
reply he said:Saya telah meminta SP1 dan SP11 untuk
menyiasat sedalam-dalamnya tentang P14B dan C kerana, pertama, saya
sedar dan tahu kandungannya adalah fitnah dan, kedua, Ketua Polis Negara
telah memaklumkan mengenai penerimaan P14 dan meminta SP1 dan SP11
meneruskan siasatan sebagai isu keselamatan.
It was then
put to the accused that on 13 August 1997 he instructed Dato' Mohd Said
and Dato' Amir Junus to trace Ummi and Azizan as soon as possible to
interview them and to "gempar" them.
He denied that he had instructed them.
He said that they came to his Official Residence to brief him on the
progress of the investigation based on instruction given to them by the
IGP. It was suggested to the accused that he asked Dato' Mohd Said and
Dato' Amir Junus to "... menggempar dan bukannya menggempar sikit-sikit
Ummi dan Azizan." His answer was this:Tidak setuju.
Apa yang berlaku ialah SP1 dan SP11 memaklumkan kepada saya kemajuan
siasatan dan saya menyatakan dalam perbualan ringan itu supaya mereka
(SP1 dan SP11) jangan terlalu keras, terutama konteks ianya berlaku,
SP11 dalam laporan bunyi agak marah dan keras terhadap Ummi dan Azizan.
Dalam kontek itu saya sebut janganlah macam itu, gempar sikit-sikit
cukuplah.
When the accused was asked whether the
instruction he gave to Dato' Mohd Said and Dato' Amir Junus to trace and
put fear in Ummi and Azizan meant that the police were forced to arrest
them he said:Saya tidak memberi arahan sama sekali seperti yang didakwa dan soal cara tindakan polis tidak pernah dibincang dengan saya.
With
regard to exh. P16 it was put to the accused that he lodged the report
through ASP Zull Aznam to enable Dato' Mohd Said to carry out his
instructions and for Ummi and Azizan to be arrested.His reply was this,Tidak
benar.
Saya yang buat laporan polis.
Saya tahu tujuannya.
Pada peringkat awal saya keberatan membuat laporan tetapi dinasihat oleh
SP1 untuk membolehkannya menyiasat sedalam-dalamya isu P14 dan P15.
When
asked whether on 15 August 1997 he had told Dato' Mohd Said and Dato'
Amir Junus that if the matter is investigated by the CID it should not
be brought to court the accused said:Kes tersebut
sepertimana yang dimaklumkan oleh Ketua Polis Negara kepada saya
melibatkan isu keselamatan.
Sebab itu sebelum CID memanjangkan saya harus dimaklumkan kemajuannya.
Saya juga akui saya tidak cenderung pada ketika itu untuk membawa
perkara itu ke Mahkamah kerana Special Branch baru memulakan siasatan.
It
was then put to the accused that he was not keen that the CID should
investigate into the matter as he did not want the truth to come out.To this he said:Tidak
benar.
Itu theory yang dipakai oleh musuh-musuh saya.
Kalaulah benar saya takut kebenaran dibongkar dengan maksud melindungi
atau saya telah membuat apa-apa kesalahan seperti yang dituhmah saya
tidak akan membuat laporan polis dan tidak pula meminta SP1 menyiasat
kes ini sedalam-dalamnya.
It was put to the accused that
he did not want the case to be brought to court as he was worried about
the publicity that it may bring against him.In response he said:Saya
tidak setuju kerana, pertama, saya sendiri yang membuat laporan polis
melalui Zull Aznam, kedua, saya bersetuju dengan Peguam Negara bila
beliau mencadangkan kepada saya untuk mengambil tindakan terhadap
orang-orang yang berkenaan.
Pada masa itu Perdana Menteri tidak bersetuju.
Jadi tidak benar saya khuatir publicity mengenai kes ini sekiranya
dibawa ke Mahkamah.
When told that the decision to take the matter to court could only be made by the public prosecutor he said:Saya setuju.
Kuasa pendakwaan ada pada Peguam Negara.
Sebab itu saya menjawab soalan, pertama, merujuk kepada laporan polis dan, kedua setelah mendapat pandangan Peguam Negara.
The
accused was then asked whether on 16 August 1997 he had told Dato' Mohd
Said and Dato' Amir Junus that if Ummi and Azizan were arrested they
were not to be detained for long.In reply he said:Saya ada menyebut kepada SP1 dan SP11 janganlah tahan Ummi dan Azizan lama-lama.
Pada masa itu SP1 dan SP11 kata pada saya, 'Dato' Seri baik hati sangat.
Orang fitnah macam itu pun masih kasihan lagi'.
When challenged that this was never stated by Dato' Mohd Said and Dato' Amir Junus the accused said:Ada mereka sebut.
Pada masa itu mereka menunjukkan simpati yang amat sangat kepada saya.
In
answer to further questions the accused said that on 18 August 1997 at
about 12.30am he did not instruct Dato' Mohd Said and Dato' Amir Junus
to obtain written statements from Ummi and Azizan to retract and deny
the allegations contained in exh. P14B and C. He said that the issue of
the statements being addressed to YAB Prime Minister did not arise till
June 1998.
He admitted that he received exhs. P17 and P18 possibly on the night of
18 August 1997.When it was put to him that he was the one who asked for these letters he said:Saya
tidak meminta salinan surat-surat tersebut.
Ini sebab biasanya Special Branch memang menyerahkan banyak laporan atau
surat yang penting untuk saya ketahui atau yang berkaitan dengan saya.
It was then put to the accused that the contents of exhs. P17 and P18 were important and beneficial to him.In answer to that he said:Surat-surat ini (P17 dan P18) memberikan penjelasan dan maklumat tentang pendirian kedua-dua mereka.
Saya telah minta pihak polis menyiasat sepenuhnya.
The accused was again asked whether the letters were of benefit and importance to him.He said:I did ask the police to investigate fully into the matter.
The letters are the result of the investigation.
To me what is important is the truth.
To that extent the letters are important to me.
To a
suggestion by the prosecution that on the night of 18 August 1997 it was
he himself who had wished to meet Azizan at the Special Branch office
but that it was not agreeable to Dato' Amir Junus the accused said:Saya tidak bersetuju.
Ini direka oleh SP11. Kalau saya nak jumpa, saya jumpa Azizan dan Ummi, kalau betul.
He denied a suggestion that he then instructed that Azizan be taken to his house.The accused was then referred to exhs. P20, P22 and D76. The questions and answers on these exhibits are as follows:Question: Adakah setuju bahawa P20 dan P22 membawa faedah kepada Dato' Seri?
Answer: Bagi saya soal faedah tidak berbangkit.
(DPP requests for answer.
Witness says that that is his answer.)
Question: Bersetuju atau tidak bahawa P20 dan P22 adalah penting kepada Dato' Seri?
Answer: Kebenaran penting bagi saya.
Question: Adakah P20 dan P22 penting kepada Dato' Seri?
Answer: P20 dan P22 ditulis oleh Azizan.
(DPP says that answer should be yes or no.)
Answer: Penjelasan Ummi dan Azizan terhadap tuhmahan dan fitnah adalah untuk memberikan kenyataan yang benar.
(DPP says that witness is evasive.)
Question:
Bersetujukah tidak bahawa P20 dan P22 telah dihantar oleh Dato' Seri
sendiri kepada Perdana Menteri bersama dengan D76 sebagai
lampiran-lampiran?
Answer: Soalan itu sangat mengelirukan kerana
D76 dihantar kepada Perdana Menteri satu tahun berikutnya dan saya
muatkan dalam lampiran hampir semua surat yang ada di dalam simpanan
termasuk P14 yang dikatakan telah juga dikirim kepada Perdana Menteri.
Saya tidak tahu sama ada sebahagian atau kesemua lampiran-lampiran
tersebut telah dihantar kepada Perdana Menteri sebelumnya.
Question: Setuju atau tidak bahawa P20 dan P22 telah dihantar kepada Perdana Menteri bersama dengan D76?
Question: Dato' Seri setuju atau tidak bahawa Dato' Seri memuatkan P20 dan P22 ke dalam D76 untuk perhatian Perdana Menteri?
Answer: D76 ditulis kepada Perdana Menteri sebagai lanjutan perbincangan di antara saya dengan Perdana Menteri.
(DPP: Soalan saya tidak dijawab.)
Answer: P20 dan P22, saya jawab setelah bincang dengan Perdana Menteri semua dokumen yang ada dalam rekod saya dilampirkan.
(Tan Sri AG says that the question is simple.)
Answer:
Saya ulangi iaitu lampiran-lampiran di D76 termasuk P20 dan P22
dihantar kepada Perdana Menteri sebagai lanjutan perbincangan yang saya
adakan dengan Perdana Menteri.
Question: Adakah Dato' Seri setuju
bahawa di dalam D76 Dato' Seri ada menyebut bahawa Azizan dan Ummi telah
menafikan dakwaandakwaan mereka seperti terkandung di dalam P14B dan C
melalui P20 dan P22?
Answer: Betul.
Ada reference di ms 5.
When the accused was asked whether
he had instructed Dato' Mohd Said and Dato' Amir Junus to obtain exhs.
P20 and P22 from Ummi and Azizan he said:Saya tidak pernah diberitahu sama sekali tentang apa yang disebut arahan itu.
He denied a suggestion that he was involved in the preparation of these letters.12 February 1999The
accused was then questioned on the loss of money from his house.
When he was asked whether he had lost two large sums of money from his
house the accused said that Dato' Amir Junus is not telling the truth.
When asked whether he had asked the Special Branch to investigate the loss he said:Bila
saya menjawat jawatan Timbalan Perdana Menteri pihak Special Branch
berpendapat kawalan keselamatan kawasan rumah haruslah lebih ketat lagi
dan tidak terdedah kepada orang ramai yang memasuki rumah dan kawasan
rumah.
The learned Deputy Public Prosecutor responded by saying that the question is simple and repeated it to which the accused said:Betul untuk mengawal keselamatan kawasan rumah dan ini saya sampaikan kepada Zull Aznam.
When asked whether he had asked the Special Branch to tap his telephone the accused said:Tidak
benar, tidak munasabah dan tidak masuk akal untuk saya meminta polis
merakam telefon rumah saya.
Bahkan, saya diberitahu telefon rumah saya dirakam beberapa tahun
sebelumnya sejak di rumah peribadi saya di Damansara sebelum berpindah
ke kediaman rasmi.
The accused was then referred to the meeting he had on 30 August 1997.
It was put to him that apart from the Attorney General and Dato' Ismail Che Ros SAC Musa was also present.He said:Setelah
menyemak buku diari pejabat dan bertanyakan kepada setiausaha Mohd
Azmin Ali kita tidak ada rekod kehadiran Musa Hassan pada tarikh
tersebut.
Nama-nama Peguam Negara dan Pengarah CID ada dicatat.
To a
further question he said that names of all officers who attend meetings
will be recorded if the number is small.When told that what he said was
not the truth the accused said:Saya jelaskan bahawa apa yang saya jawab itu betul mengikut catatan diari dan nota pejabat.
With regard to the meeting on 2 September 1997 the questions and answers go this way:Question:
Saya katakan pada pertemuan Dato' Seri dengan SP13 pada 2.9.1997 Dato'
Seri telah memberi arahan kepada SP13 untuk menutup kes berkaitan dengan
siasatan berkenaan dengan P16.
Answer: Saya tidak memberi arahan kepada SP13 untuk menutup kes.
Question:
Saya katakan kepada Dato' Seri bahawa Dato' Seri telah mengarahkan SP13
untuk tidak menghantar kertas siastan berkenaan P16 kepada Peguam
Negara pada pertemuan 2.9.1997 itu.
Answer: Ini tidak benar.
Direka kemudian sebagai bukti conspiracy polis.
Question: Saya katakan di dalam pertemuan itu juga Dato' Seri telah serahkan P20, P21 dan P22 kepada SP13.
Answer: Tidak benar saya serahkan kepada SP13.
The accused was questioned on matters relating to Buku 50 Dalil and briefings that the Special Branch gives YAB Prime Minister.
He was then queried on exhs. D76 and D77 and the significance of the oath that he took as a Minister.Re-examinationThe
re-examination started with the significance of the oath that the
accused had taken and the confidentiality of exhs. D76 and D77.22 February 1999The
accused was asked to explain what he meant when he said in
crossexamination that "semasa pertemuan saya dengan SP1 pada 11 August
1997 bukan saya mula bangkitkan isu P14". He said that what he:205
meant was, firstly, the meeting on 11.8.1997 with SP1 and SP11 was
after I received a call from the IGP informing me about P14 and
requesting SP1 and SP11 to see me in order to brief me. Secondly,
because the visit of SP1 and SP11 was pre-arranged they immediately
intimated to me about P14 on IGP's instructions.
Learned
counsel reminded the accused that he was referring to the meeting on the
morning of 11 August 1997 and that the question is confined to the
meeting with Dato' Mohd Said only.The accused then said:What
I said just now refers to the meeting at night on 11.8.1997.
On the morning of 11.8.1997 I met SP1 alone after the other officers
left. SP11 was not there at that time.
The briefing given to me by SP1 and the team in the morning of 11.8.1997
was based on the decision of the National Security Council.
That was an official meeting. P14 was not brought up at that meeting.
SP1 stayed back after the official meeting for a private chat.
But I did not bring up the issue of P14 because at that time I was
unaware of it. P14 was intimated to me only later by the IGP who
received the letter from Dato' Megat Junid.
The IGP intimated about P14 to me on the night of 11.8.1997.
That was when he suggested that SP1 and SP11 meet me in order to give a
briefing. (Saksi dirujuk kepada P14A, B dan C.) I was made aware of P14
by the IGP on the night of the 11th. A copy of P14 was later shown to me
by SP1 and SP11.
When asked to explain why he said in
cross-examination that "Tuhmahan dan fitnah di P14 tidak mudah
menyebabkan kebencian ramai kerana rakyat juga ingin mengetahui punca
dan usaha penyebab fitnah" the accused said:We cannot
underestimate the intelligence of the public.
They would certainly wish to know whether the scurrilous and malicious
allegations were perpetrated by responsible individuals or backed by a
group of conspirators.
When asked whether from his
knowledge his good name and reputation were affected in 1997 as a result
of exh. P14A, B and C the accused said:I thank God
Almighty that these vile attempts to slander my reputation was rejected
by the public excepting for the few enemies of mine in politics.
Wild allegations are common occurrences amongst politicians and public
figures.
As to whether IDD23 and IDD24 had any effect on
the allegations contained in exh. P14A, B and C in relation to exposing
him to public contempt and hatred the accused said:The
statements made by the Prime Minister and the IGP did not help in
allying public contempt because I did not believe, in the first place,
that the public took a serious note or view of such vile accusations.
When
asked what he meant when he said in cross-examination that "Tuhmahan
P14 bertujuan menjejaskan nama baik saya tetapi telah tidak berhasil" he
said:The intention of the conspirators was clear, that
is, to undermine me politically but they failed because the identities
of the conspirators were known and the allegations were baseless and
absurd.
He also said that it is most preposterous to
suggest that any absurd or vile accusation would adversely affect the
integrity of a person.The accused said that Dato'
Mohd Said and Dato' Amir Junus informed him that they were looking for
Ummi and Azizan so that they would be able to find out why exh. P14 was
written and who others were behind it. He was asked to explain the use
of the word "instruction" by him in his examinationin-chief and
"meminta" in cross-examination when he said, "Apa yang berlaku ialah
saya telah meminta SP1 dan SP11 menyiasat sedalam-dalamnya dakwaan P14B
dan C." He explained it in this way:I used consistently
the word 'instruct' to instruct officers as Deputy Prime Minister and
Minister of Finance to do what is right and proper according to the law.
Dozens of statements and speeches were to that effect.
Again the word 'instructions' is applicable to all officers.
When asked to explain the information given to him by the IGP about exh. P14A, B and C he said:The
instruction from the IGP was clear.
He informed me that P14 was a security matter because it was clearly an
attempt to undermine the leadership and to cause political instability.
So when SP1 and SP11 came to see me at my residence I suggested that
they investigate thoroughly P14. At that time I did not decide which
branch of the police would conduct investigations. SP1 and SP11 were
asked by the IGP to come and brief me. The IGP merely said that P14
involved me and as Deputy Prime Minister and Minister of Finance and he
would construe it as a security matter.
He said that in
his meeting with Dato' Mohd Said and Dato' Amir Junus on 13 August 1997
he merely suggested as a follow-up to their briefing to investigate exh.
P14 thoroughly.When asked what his purpose was in lodging exh. P16 through ASP Zull Aznam he said:
I decided to lodge P16 to allow the police to investigate P14 and P15 thoroughly.
In fact it is clear from the last sentence of P16. SP1 suggested that I make P16 in order to facilitate investigation.
He was then asked this question:Why is it that at that time you were not inclined to have this matter brought to Court?
And he answered it this way:I
want to clarify that there are two issues involved.
Firstly, the suggestion that I lodge a police report which initially I
was not inclined to make for reasons I have explained as we receive
hundreds of flying letters.
As a practice we in the government then do not make reports on such
matters.
Secondly, whether this issue should be taken to court at a late stage. I
was not inclined to decide on the matter then because the police was in
the midst of investigating.
The issue of whether to proceed or not was later on discussed by me with
the Attorney General.
He was then asked whether in his discussion with the Attorney General he was keen that the culprits be brought to justice.He said:The Attorney General was keen to charge the culprits. I concurred with him.
But I did caution him on the need to take note of the Prime Minister's position to consider the matter closed.
He
said that based on the advice of the Attorney General he was keen to
have the culprits charged so that the matter could be put to rest once
and for all.He said that the Attorney General did not consider any criminal action against him.After he lodged exh. P16 SAC Musa took his statement on 19 August 1997.
When asked whether he would have lodged exh. P16 if he was not keen on police investigation he said:I
would not have lodged a police report and I would not have requested
the police to investigate the case thoroughly if I did not want the
investigation.
He was then asked whether he had any suspicion that exhs. P17 and P18 were not voluntarily and properly obtained.He said in reply:There was never a suspicion that P17 and P18 were involuntary.
With
regard to the accused's evidence that Dato' Mohd Said and Dato' Amir
Junus had told him that he is a good hearted person the questions and
answers run as follows:Question: Why was the part of the
evidence of SP1 and SP11 saying that you are good hearted and still
pitying people who surrender, not brought up when SP1 and SP11 gave
evidence?
(DPP says this question is perplexing.)
Answer:
The question is straightforward. I did not bring it up earlier because I
thought that it would only be relevant to clarify matters if and when
asked.
There were many meetings.
Many of the reports would be irrelevant.
Many things were told to me but I had difficulty in informing court
unless asked.
This was said by SP1 and SP11, particularly so by SP11.
Question: Did you inform your counsel about this?
Answer: I informed my counsel about this after the evidence of SP1 and SP11.
With regard to the directions that he was alleged to have given SAC Musa on 30 August 1997 the accused said:Either
in the presence of the Attorney General or not I would not have given
the directions that I am alleged to have given SAC Musa on 30th August.
The Attorney General would have cautioned me if I had done so.
As to what transpired at the meeting on 2 September 1997 the accused said:With
regard to the meeting on 2.9.1997 I cannot recall what transpired at
the meeting except for the fact that Musa informed me of certain
developments or progress of his investigation.
But I did not give any instructions to him not to proceed as alleged by
him.
At that meeting, I reminded Musa of the Prime Minister's instructions as
reported in the papers.
24 February 1999The
accused said that there was no loss of RM4 million from his house as
stated by Dato' Amir Junus.
He did not on any occasion mention or complain about the so called loss
of so much money.
He mentioned to ASP Zull Aznam about the security of his Official
Residence and the possibility of documents being searched or petty cash
for marketing amounting to about RM2,000 getting lost.
This amount was made known to him by his wife.
He spoke about it to ASP Zull Aznam who took it up with the higher
authorities.
He came to know about the loss of the RM4 million only when Dato' Amir
Junus gave evidence.
He added:That was why I
maintain that this figure is a recent fabrication as part of the
attempt by the police and the Attorney General's Chambers to vilify me.
As to whether he obtained any benefit from exhs. P17 and P18 he said:With regard to P17 and P18 I derived no advantage or benefit whatsoever.
It is just like one being accused for being a murderer and then there is a withdrawal of the allegation the following day.
My contention has consistently been that the allegations were malicious and scurrilous and must be rejected.
He
said that the idea of getting the retraction letters from Ummi and
Azizan must be either from Dato' Mohd Said and Dato' Amir Junus or the
police and not his.He then said:They just informed me and showed me the letters.
When
the accused proceeded to say that at that point he had agreed with the
advice of the Attorney General that Ummi and Azizan should be prosecuted
learned counsel reminded him that that was at a later stage.The accused agreed that what the Attorney General told him was at a later stage.The accused called a total of 22 other witnesses to testify on his behalf.
They
are ASP Zull Aznam bin Haji Haron (DW2), Mohamed bin Ahmad (DW3),
Sivabalan s/o Ethirmanasingham (DW4), Ashrof Abdullah (DW5), Abdullah
Sani bin Said (DW6), Sa'odah binte Alias (DW7), Ngui Kee Heong (DW8),
Ma'Amin bin Latip (DW9), Manjeet Singh Dhillon (DW10), Zamani bin
Sulaiman (DW11), Dr Vasantha Nair (DW12), Rusdi bin Mustapha (DW13),
Mohd Azmin bin Ali (DW14), Sukdev Singh s/o Surjit Singh (DW15), Nor
Azman bin Abdullah @ Beginda anak Minda (DW16), Siti Mariam bt Mat Zain
(DW17), Ahmad Aznam bin Abdul Rahman (DW18), Mohd Faiz bin Abdullah
(DW19), Kathirasan s/o S N Abidaiappan (DW20), Datin Seri Wan Azizah bt
Wan Ismail (DW21) and Ong Cheng Keat (DW22). Mohd Kamil bin Othman (CW1)
was called and examined by the Court on behalf of the defence. I shall
refer to their evidence, where relevant, at a later stage when I
consider whether the prosecution has proved its case beyond reasonable
doubt on all the evidence adduced.Exclusion Of Certain EvidenceI shall now explain why I excluded certain categories of evidence.
They are as follows:(i) Evidence relating to political conspiracy(ii) Evidence relating to credit(iii) Evidence relating to the taped conversation(iv) Hearsay evidence(v) Evidence relating to other instances of alleged fabrication of evidence(vi) Evidence relating to legal professional privilege
(i) Evidence Relating To Political ConspiracyPolitical
conspiracy is a slogan that has been indiscriminately used by the
defence from the very beginning of the trial.
The battle cry of this slogan is that certain prominent politicians had
conspired to topple the accused and, in order to achieve that objective,
had enlisted the assistance of Ummi to make the allegations in return
for benefits.
As I have explained in an earlier part of the judgment the truth or
falsity of the allegations is not a fact in issue.
What the prosecution needs to prove is only the fact of making the
allegations.
That is all that is required of the prosecution as far as the
allegations are concerned.
Thus evidence of causative facts, motive and introductory or explanatory
facts relating to the making of the allegations are irrelevant pursuant
to ss. 7, 8 and 9 of the Evidence Act 1950
respectively.
This means that even if there were forces, be it political, corporate or
otherwise, behind Ummi in making the allegations evidence of such facts
would be irrelevant to the fact in issue.
This, to my mind, ought to have become apparent to even the most
uninitiated when I made the ruling on the irrelevancy of the truth or
falsity of the allegations at the end of the case for the prosecution.
What then is left for the defence to raise, apart from a denial that the
allegations were made, is that the evidence of the prosecution
witnesses relating to the directions given by the accused is a
fabrication.
That is a line of defence that was open to the defence from the very
beginning of the prosecution case.
Such a defence, properly advocated, would be a perfect web for a
conspiracy by whatever description it may be clothed or coloured.
If
that line of assault is not launched and pursued by legally acceptable
means the shout of political conspiracy will have no legal basis
whatsoever and will continue to remain as a smokescreen to hide away
from the real issues.The defence made an attempt to go
back to the issue of political conspiracy through a different route,
correctly, in my opinion, in the course of its case.
This happened when the accused, while giving evidence, made references to political figures who were against him, and said:After
3.9.1997 there was a change in the political and economic conditions
beginning with financial convulsions engulfing the region and different
policies advocated in dealing with the financial and economic crisis.
We in Malaysia began to feel the impact towards the end of 1997.
There was a major difference in policies between me as Minister of
Finance and the Prime Minister. I do believe this was generally known to
the public.
The introduction of this evidence led me to
interject and ask learned counsel to explain the relevance of this line
of questioning.
In reply to my question Raja Aziz Addruse, leading counsel for the
defence, said this:This is to establish conspiracy to
show change of attitude of the authorities towards the accused.
It was one of the reasons of the conspiracy to get rid of him.
The conspiracy issue is very important in this case because the
credibility of the police comes into question.
Why I say that the issue of conspiracy and credibility of the police are
important is because of the evident change in the attitude of PW1 and
PW11 as well as PW13 when we compare the time at September 1997 and
later on. One can see a major change.
Nobody has explained the change.
I then asked learned counsel whether this theory of conspiracy is aimed at showing that the allegations are false.In reply he said:No. To show the credibility of witnesses.
I
then asked him whether it meant that he was attempting to show that the
relevant police officers had given false evidence to which he gave an
answer in the affirmative.When asked to explain how he would establish this he said:Because
in 1997 all the contemporary documents including D25 had stated in no
uncertain terms that there were people behind the allegations.
I
then asked learned counsel whether the issue of conspiracy involving
police officers was put to the police witnesses when they gave evidence.In reply he said:PW1
was asked if a person higher than the Deputy Prime Minister were to
tell him to lie, would he lie? If there was conspiracy then that would
explain the change in attitude of the police towards accused.
That would also explain why what was in order in 1997 September became
in 1998 not in order all of a sudden.
That goes to credibility.
In any event it is not proper for the court to shut out the defence of
conspiracy.
Court may rule it out later.
In reply to the argument advanced the Honourable Attorney General said:With respect to my learned friend the question of conspiracy must be relevant to the charges.
It must be a conspiracy, to be relevant, involving the police.
In 1997 there was this investigation, if it can be called one, by the Special Branch.
There was a turning over process.
The investigation was not complete.
We did not know what had happened.
Based on those documents the investigation was aborted.
At that time the investigation officer was not aware of the turning over operation.
In 1998 there was no sabotage.
Arising out of the report on 50 Dalil there was a full investigation.
It was in the course of this investigation that the investigation officer discovered the turning over operation.
If at all there was a conspiracy does it involve the police? Political conspiracy has nothing to do with the charges.
The matter of conspiracy, if any, by the police was not put to the police officers.
Thus the question of change of attitude of police officers being linked to conspiracy is not relevant.
On
the need for the defence to put its case to the prosecution witnesses
Senior Deputy Public Prosecutor, Dato' Abdul Gani Patail, read a passage
form Chua Beow Huat v. PP [1970] 2 MLJ 29. Raja Aziz Addruse, in reply then said:Their
argument was perfectly alright at the end of their case.
That was accepted by Court.
That argument was because investigations were sabotaged by Special
Branch because of alleged directives allegedly given by accused.
Buku 50 Dalil was published in 1998.
There was a fresh investigation. SAC Musa discovered that there was
turning over.
That was their story.
Now we have to put our side of the story.
We have to explain the reason for this change.
I then posed this question to learned counsel:In
the absence of conspiracy involving police officers having been put to
prosecution witnesses, can you explain to me in what way was there a
conspiracy involving police officers to change their stand?
Learned counsel requested for the case to be stood down to enable him to check up the matter and when court resumed said:We
have IDD76 and IDD77. They are letters written by the accused to the
Prime Minister dated 25.8.1998 and 28.8.1998.
In IDD76 it is first line of p 3 and para (i) p 4 1st para 1, p 1 of
para 1 beginning with word "Mereka 205" IDD77 para 2. Evidence of PW13
on these exhibits given on 16.12.1998.
The argument
advanced shows that there has been a shift from political conspiracy to
police conspiracy.
This would be a valid defence.
Evidence to show that the police had conspired to change the stand of
the prosecution witnesses or to fabricate evidence against the accused
would be clearly relevant.
That would form a sound foundation for a conspiracy, by whatever name
the defence feels comfortable to describe it. The concept of a political
conspiracy without this basis is therefore meaningless.
It is this that ought to have attracted the attention of the defence
from the very beginning.
As the prosecution pointed out, with reference to Chua Beow Huat v. PP
[1970] 2 MLJ 29, the defence ought to have put this line of defence to
witnesses for the prosecution when they were cross-examined.
That, of course, does not mean that the defence cannot raise this issue
now and, in addition, it can always be put to the witnesses by having
them recalled.
However, even if the latter course is not followed the court is still
bound to consider any evidence adduced at the defence stage in respect
of that issue.Thus I made the following order:Evidence
may be adduced, if any, to show that there was a conspiracy by the
police to change their stand or conspiracy to create evidence against
the accused AND NO FURTHER. In this regard evidence of political
conspiracy against the accused, if any, is irrelevant.
Be
that as it may, it is superfluous to state that any such evidence
adduced must, in the first place, be admissible under the relevant
provisions of the Evidence Act 1950.Thus, for the avoidance of any doubt I made this clear to the defence on 12 February 1999 in the following words:I
would like to advise the defence that the introduction of collateral
facts, if any, to establish the theory of police conspiracy must be
shown to be relevant in accordance with the provisions of the Evidence
Act 1950.
To that extent I would appreciate submission from both parties before
such evidence, if any, is sought to be tendered in accordance with
Section 136 of the Evidence Act 1950.
(ii) Evidence Relating To CreditThe
defence had attempted during the prosecution case to adduce evidence to
discredit Ummi by showing that certain answers she gave under
crossexamination are not true, in particular, when she said:Saya tidak pernah didisowned by my parents.
Saya tidak bersetuju bahawa saya telah dibuang oleh bapa saya.
Saya tidak bersetuju bahawa saya menjual kereta Mercedes bapa saya tanpa kebenarannya untuk membayar hutang saya.
Saya tidak bersetuju bahawa saya mempunyai banyak hutang.
And when referred to a statutory declaration affirmed by her father stating that he had disowned her she had said:Ini
dilakukan tanpa pengetahuan saya tetapi saya berani mengatakan Azmin
telah berasuahkan bapa saya untuk melakukan perkara ini. 205 Saya tidak
menyalahkan bapa saya dalam hal ini kerana saya percaya ada dalang di
sebaliknya iaitu Azmin di mana dia telah menghadiahkan bapa saya sebuah
rumah bungalow yang bernilai, kalau ta' silap saya, RM300,000 dan sebuah
kereta Perdana yang dibeli secara tunai selepas kes 50 Dalil meletup.
When
Azmin was giving evidence during the defence case he was referred to
the part of the evidence of Ummi where she had said that he had bribed
his father to take his side.
Azmin said that Ummi is a compulsive liar.
When he was asked to substantiate the statement the prosecution
contended that this line of questioning should not be allowed based on s. 153 of the Evidence Act 1950.
The defence argued that it is relevant in relation to the credibility of Ummi.Having initially allowed the flow of questioning I invited parties to submit further on the law relating to this issue.The
prosecution started its submission by saying that questions asked of a
witness must be relevant.
The questions put in this instance are collateral in nature and the
answers given cannot be contradicted as they relate only to the credit
of Ummi and must be accepted as final though the answers given need not
be accepted as the truth.
The defence argued that if evidence cannot
be led to
contradict the evidence of Ummi the court may hold that the relevant
part of Ummi's evidence sought to be challenged has been accepted.It
was contended that Azmin must be allowed to give evidence on the issues
concerned to enable the court to assess the credibility of Ummi and to
show that she is biased.The answer to the argument advanced lies in s. 153 of the Evidence Act 1950 which reads as follows:When
a witness has been asked and has answered any question which is
relevant to the inquiry only so far as it tends to shake his credit by
injuring his character, no evidence shall be given to contradict him;
but if he answers falsely he may afterwards be charged with giving false
evidence.
Exception 1 - If a witness is asked whether he
has been previously convicted of any crime and denies it, evidence may
be given of his previous conviction.
Exception 2 - If a
witness is asked any question tending to impeach his impartiality and
answers it by denying the facts suggested, he may be contradicted.
It
must first be observed that when a witness has been asked in
crossexamination a question which is directly relevant to the matter in
issue, and he gives a denial or a certain reply, he may of course be
contradicted by independent evidence on all matters directly, relevant
to the issue.
But where the question relates to a fact which is collateral to the
issue, that is to say, where it is asked merely for discrediting a
witness and the witness gives an answer, he cannot be contradicted.
The reason for the rule is obvious.
The primary object of a trial is to confine itself to the points in
issue.
Questions asked with the sole object of shaking the credit of a witness
bring in their train many matters irrelevant or foreign to the inquiry,
and if the parties are allowed to adduce evidence to contradict them, it
is bound to draw away the mind from the points in issue and to protract
the investigation to an embarrassing and dangerous length.
There will be no end of proving collateral issues, and the real points
in dispute will be lost sight of. (See Sarkar on Evidence 14th
edn pp. 2070-2071.) This is a sound general rule, based on the
desirability of avoiding multiplicity of issues to the effect that the
answers given by a witness to questions put to him in cross-examination
concerning collateral facts must be treated as final.They
may or may not be accepted by the Court, but the cross-examiner must
take them for better or worse and cannot contradict them by other
evidence (see R v. Livingstone [1987] 1 Qd R 28). The test for determining whether a matter is collateral or not, according to Pollock CB in Attorney General v. Hitchcock [1847] 1 Exch 90, is this:If
the answer of a witness is a matter which you would be allowed on your
own part to prove in evidence - if it have such a connection with the
issues that you would be allowed to give it in evidence - then it is a
matter on which you may contradict him.
In Harris v. Tippett
[1811] 2 Comp 637 the defendant witness was asked in cross-examination
whether he had attempted to dissuade one of the plaintiff's witnesses
from attending the trial.
Upon his denying it Lawrence J held that a witness to the contrary could
not be called on the footing that, the questions not being relevant to
the issue, other witnesses cannot be called to contradict the answers
given.
In Piddington v. Bennett and Wood Pty Ltd [1940] 63 CLR 533 a
witness in a running down action, asked in cross-examination to account
for his presence at the scene of the accident said he had been to the
bank on behalf of a named person.
It was held on appeal that the trial judge had wrongly allowed the bank
manager to give evidence to the effect that no business was done on
behalf of the person named by the witness on the day of the accident.
Conversely in R v. Busby [1981] 75 Cr App R 79, a prosecution for
burglary and handling, police officers were cross-examined to the
effect that they had fabricated statements attributed to the accused and
indicative of his guilt, and had threatened W, a potential defence
witness, to stop him giving evidence.
These allegations were denied.
The trial judge ruled that the defence could not call W to give evidence
that he had been threatened by the officers, because this would go
solely to their credit.
Allowing the appeal against conviction, the Court of Appeal held that
the trial judge had erred and that the evidence was relevant to an issue
which had to be tried, because, if true, it would have supported the
defence case that the statements attributed to the accused had been
fabricated.
In R v. Phillips [1936] 26 Cr App R 17 the Court of Criminal
Appeal held that the accused should have been allowed to call evidence
to rebut his daughters' denial that they had been schooled by their
mother to give evidence against him. I pause to add that in both these
cases the evidence in rebuttal related to matters that had been
specifically raised and attributed to the witnesses concerned.Thus the rebuttal evidence sought to be introduced was directly in issue to the charges and was not a matter of credit.As
I have repeatedly stressed the truth or falsity of the allegations made
by Ummi is not relevant.
What is relevant is the fact that she had made the allegations.
Thus the motives, interest or conduct of Ummi in making the allegations
are irrelevant.
Accordingly, the facts whether she has been disowned by her father or
not; whether she has sold her father's Mercedes Benz motor car or not;
whether she is heavily indebted or not; or whether her brother Azmin has
bribed her father in order to disown her are not relevant to the issues
before the court and the answers she gave in reply to the questions in
issue must be taken as final and cannot be contradicted.
They are matters which the defence itself would not be permitted to
adduce in evidence in support of its case as they have no connection
with the facts in issue and are therefore irrelevant.
If it were otherwise the court will be embarking on the unnecessary task
of resolving the family dispute between Ummi and Azmin.
I therefore reversed my earlier ruling and ruled that the answers given by Ummi cannot be contradicted.(iii) Evidence Relating To The Taped ConversationOn
16 June 1998 Nor Azman bin Abdullah @ Beginda anak Minda, a defence
witness, went to London with his employer Dato' Sng Chee Hua, Ummi and
one George.
In the early part of the testimony of this witness the defence sought to
adduce in evidence parts of a conversation between him and Ummi
regarding Buku 50 Dalil.
Upon objection having been taken by the prosecution learned counsel said
that the evidence sought to be adduced is not about political
conspiracy but as to what happened in London, particularly, with regard
to exh. P14A, B and C. I over-ruled the objection of the prosecution and
ordered that the questioning of the witness be directed to the matters
stated by learned counsel.
Nor Azman then proceeded to say that he taped a conversation between
Ummi and Dato' Sng Chee Hua over a period of four days.
He recorded the conversation in a total of seven tapes.
Initially he said that as certain parts of the recording were not clear
he cut off those parts.
With the editing he did the seven tapes were reduced to four tapes.
His examination then proceeded this way:Question: Adakah kamu memotong apa-apa perbualan yang terang?
Answer: Ya, saya ada memotong perbualan yang sangat terang dan jelas.
Sebab saya memotongnya selepas Timbalan Perdana Menteri Dato' Seri Anwar Ibrahim mendengar tape tersebut.
Dato' Seri kata dia tidak mahu implicate nama Perdana Menteri di dalam tape tersebut.
Dato' Seri Anwar berkata Perdana Menteri baik dengannya.
Cuma pihak tertentu cuba memasukkan nama Perdana Menteri. 205
Question: Adakah bahagian yang terang selain daripada bahagian yang kamu sebut tadi juga dipotong dari 7 rakaman itu?
Answer: Ada, yang saya menyebut Perdana Menteri sudah berkarat.
Mungkin ada yang lain yang kasar saya potong yang saya ta' ingat. 205
Question: Bolehkah kamu ingat sekarang apakah bahagian lain yang kamu potong?
Answer: Ya, ada.
Question: Yang lain seperti Ummi menyebut nama-nama orang yang menaja Buku tersebut.
Question: Daripada dua pita adakah kamu jadikan kepada satu pita?
Answer: Ada.
He
said that he had burnt the original seven tapes.
He had given the four tapes to a lawyer called Yeoh for safekeeping
before they were handed to the police.
The defence then applied for the four tapes to be played in order to
prove that the conversation did take place in London between Ummi and
Dato' Sng Chee Hua as testified by Nor Azman.The
prosecution objected to the application on the ground that the
conversation does not relate to a fact in issue. I then asked learned
counsel whether the conversation in the tapes have anything to do with
exh. P14A, B and C. He said:It has something to do with
P14A, B, C because the only role of Ummi in relation to Buku 50 Dalil is
with regard to P14A, B, C. The direct bearing between the tapes and
P14A, B, C is that the only role of Ummi in relation to the book is
P14A, B, C which she alleges she wrote.
There is nothing in the tapes to show that she did not write P14A, B, C.
In
making a ruling I took two factors into consideration.
Firstly, on the statement by learned counsel himself the tapes have
nothing to do with the fact of the making of the allegations by Ummi.
The material parts of the conversation had already been put to Ummi in
the course of the case for the prosecution when she was cross-examined.
They relate to Buku 50 Dalil, Ummi's hatred of the accused and some
mention of money.
She denied them and said that she cannot remember some parts of the
conversation.
These matters are not relevant to the facts in issue in this case with
regard to the making of the allegations by her.
Her answers of denial cannot therefore be contradicted pursuant to s.
153 of the Evidence Act 1950 which I have discussed earlier.
Secondly, Nor Azman's evidence indicated that the tapes have been
tampered with on the instructions of the accused.
The conversation in the four tapes sought to be admitted is therefore
not an accurate account of what actually transpired between the parties.
In addition the fact that the original seven tapes were burnt and not
retained is in itself a suspicious circumstance and casts serious doubts
on the authenticity of the edited four tapes.
As I said in Mohd Ali Jaafar V. Pp [1998] 4 BLJ
208if there is no evidence to show that a taped conversation is
an accurate account of a conversation that occurred, then it is not
admissible.Accordingly, I disallowed the application to play the tapes with a view to them being admitted in evidence.(iv) Hearsay EvidenceNor
Azman while giving evidence, said that Ummi showed him Buku 50 Dalil at
the Subang Airport, Kuala Lumpur when they were on their way to London.
After he was examined on several matters relating to the book he was asked:Adakah Ummi memberitahu kamu dari manakah beliau dapat buku itu?
The
prosecution objected to this question being asked on the ground that
the answer given will be hearsay.
The defence argued that what is attempted to be adduced is whether Nor
Azman heard from Ummi where she got the book from.
It was contended that it would fall within the scope of s. 60(1)(b) and
(c) of the Evidence Act 1950 as direct evidence.
It was further argued that the answer is admissible to show that the
statement was made (in answer to the question) and not in proof of its
truth.When I asked learned counsel the purpose
which is sought to be established by proving the fact of the statement
having been made he said:PP v. Subramaniam did not confine itself to the receipt of such evidence only to show the mental state of the witness.
In this case it is admissible merely to show that the statement was made.
This is a case where Ummi was called.
She was a witness in this case.
It will only be hearsay if this witness testifies about what Ummi told him of what someone else told her i.e. double hearsay.
The law relating to hearsay evidence is well settled.As Mr LMD de Silva said in Subramaniam v. PP [1956] MLJ 220 at p. 222:Evidence
of a statement made to a witness by a person who is not himself called
as a witness may or may not be hearsay.
It is hearsay and inadmissible when the object of the evidence is to
establish the truth of what is contained in the statement.
It is not hearsay and is admissible when it is proposed to establish by
the evidence, not the truth of the statement, but the fact that it was
made.
The fact that the statement was made, quite apart from its truth, is
frequently relevant in considering the mental state and conduct
thereafter of the witness or of some other person in whose presence the
statement was made.
The last part of the passage was referred to by the Federal Court in Leong Hong Khie v. PP [1986] 2 MLJ 206 where Seah FJ in writing for the court said at 209:In
our opinion, the general proposition laid down by the Privy Council in
that case must be read subject to this condition, viz., that the
statement must be directly relevant in considering the state of kind of
the witness to whom it had been made.
In other words, the proposition could only apply when the mental state
of the witness evidenced by the statement was itself directly in issue
at the trial.
The reference to a statement made to a
witness by a person who is not himself called as a witness means that
the rule applies to what can be described as firsthand hearsay.
To that extent learned counsel's submission that the rule applies only
to double hearsay cannot be sustained.
When learned counsel said that the statement is sought to be admitted to
show that it was made and not to establish its truth I asked him the
purpose for such admission.
He said that it is admissible merely to show that it was made.
In my opinion the fact that a statement was made does not on its own
make it admissible.
It must be shown to be relevant to a fact in issue as the fact that a
statement has been made may be admissible for many purposes.
It becomes relevant only when it is desired, for instance, to show the
state of mind of the person to whom it is made and that the mental state
of the witness evidenced by the statement is itself directly in issue
at the trial.
It is to ascertain this purpose that I asked learned counsel the reason
for which he wanted the answer of Nor Azman to be admitted.
If the purpose is not shown the court would be in no position to rule on
the relevancy of the statement with regard to the facts in issue, and,
if it is not relevant at all the statement would amount to hearsay and
thereby become inadmissible.This is made clear by a passage from the book entitled Hearsay: A Practical Guide Through the Thicket by Irving Younger at p. 12 as follows:Back to our witness: 'On October 15. I spoke with my brother.
He was in London.
We spoke by phone.
He said to me, "It's raining here in London."' 'Objection! Hearsay!'
If the judge is alert, he will say, 'Counselor, what are you trying to prove?'
Suppose
that the proponent says, 'Your Honor, I am trying to prove that the
transatlantic telephone was in good working order on that day.'
It is not hearsay.
The statement is not offered to prove the truth of what it asserts.
'Your Honor, I am trying to prove that his brother was alive on that day.'
Not hearsay.
We
could continue with many hypothetical relevances, each of which leads
to the conclusion that the out-of-court statement is not hearsay.
But consider one particular relevance.
Witness on the stand: 'I spoke with my brother.
My brother said to me, "It's raining here in London."'
'Objection!'
'Counselor, what are you trying to prove?'
'Your Honor, I am trying to prove that it was raining in London.'
Now it is hearsay. Only now is the out-of-court statement being offered to prove the truth of what it asserts: that it was raining in London.
This is the only relevance that can make the statement hearsay.
'Objection sustained.
Call your next witness.'
I made this inquiry in accordance with s. 136(1) of the Evidence Act 1950, which I shall discuss in some detail shortly, in order to rule on the relevancy of the proposed evidence.As
learned counsel failed to advance any cogent reason to show the
relevance of the proposed answer I allowed the objection raised by the
prosecution.(v) Evidence Relating To Other Instances Of Alleged Fabrication Of EvidenceThe
defence proposed to adduce evidence of requests to persons to fabricate
evidence against the accused and extraction of confessions from persons
saying that they had been sodomised by the accused by the police in
support of the defence of police conspiracy.
As I had some doubts as to the evidential value of the evidence sought
to be adduced I asked both parties to submit on the relevancy of such
evidence before the witnesses are called.
The first matter that requires consideration is the power of the court
to require a party to disclose the relevancy of the evidence of a
proposed witness before the witness gives evidence.
This brings into focus s. 136(1) of the Evidence Act 1950 which reads as follows:When
either party proposes to give evidence of any fact, the court may ask
the party proposing to give the evidence in what manner the alleged
fact, if proved, would be relevant; and the court shall admit the
evidence if it thinks that the fact, if proved, would be relevant, and
not otherwise.
Questions of admissibility of evidence are
questions of law and are determinable by the judge.
If it is the duty of the judge to admit all relevant evidence, it is no
less his duty to exclude all irrelevant evidence.
Section 5 of the Evidence Act 1950 declares that evidence may be given
in any suit or proceeding of the existence or non-existence of every
fact in issue and of such other facts as declared to be relevant and of
no others.
It follows from this that a party to a suit or proceeding is entitled to
give evidence of only facts which are declared relevant under the
provisions of the Evidence Act 1950.The judge is
empowered to allow only such evidence to be given as is, in his opinion,
relevant and admissible and in order to ascertain the relevancy of the
evidence which a party proposes to give, the judge may ask the party
proposing to give evidence, in what manner the alleged fact, if proved,
would be relevant, and he may then decide as to its admissibility (seeSarkar on Evidence 15th ed pp. 2152-2153). As the Law of Evidence by Monir 10th ed vol II says at p. 1399:This
section, therefore, gives to the court the power to ask a party
tendering evidence of a particular fact to show how the fact if proved
would be relevant, and the evidence can be admitted only if the court is
satisfied that it is relevant.
It is therefore manifestly
patent that the court has been endowed with the power to exclude
evidence which it considers to be irrelevant. A matter of critical
importance is whether this power can be exercised by the court before a
proposed witness begins to give evidence.
In my opinion the language employed in the sub-section clearly
contemplates the exercise of the power at that stage as it empowers the
court to inquire from a party "205 in what manner the alleged fact, if
proved, would be relevant 205" when a party "205 proposes to give
evidence of any fact 205" and to admit the evidence only if it finds it
to be relevant.
The word "proposes" means the court can exercise the power given by the
sub-section when a party wishes to call a witness, that is to say,
before a proposed witness begins to give evidence.As Field's Law of Evidence 10th ed vol VI says in its commentary on the Indian equivalent section at p. 5624:The
practice of admitting evidence and reserving the question of its
admissibility for further consideration is unwise and much to be
regretted.
If the evidence is once admitted, it is impossible to say what its
effect may be on the mind of the person who hears it. It is most
desirable that the question of admissibility should be finally decided
when the objection to questions is taken: Per Petheram CJ in Jadu Rai v. Bhubotaran Nundy ILR 17 Cal 173 at p 186; see also Emperor v. Panchkeri Dutt 1 LR 52 Cal 67, AIR 1925 Cal 587; Seikh Abdul v. Emperor AIR 1925 Cal 887 at p 888.
It has been held that the court may conduct this exercise even when a party applies to summon a person as a witness.In saying this I draw support from the Law of Evidence by Woodroffe and Amir Ali 16th ed vol IV which says at p. 3569:Where
a party applies for summoning a person as his witness to give evidence
in the case, a duty is cast by Section 136 of the Evidence Act on the
Court to inquire from the party summoning the witness in what manner the
evidence of the witness would be relevant for the purpose of the case.
The Court should issue summons only if it thinks fit that the evidence
would be relevant for the decision and not in mechanical manner (Sankaran v. Dr Ambulakshan Nair 1989 (2) KLT 570).
In
my opinion, therefore, a party does not have an automatic right to call
a person as a witness.
The court has the power, and, indeed is duty-bound, to inquire into the
relevancy of a proposed witness before he begins to give evidence.
The object is to ensure that evidence is confined to relevant facts and
does not stray beyond the proper limits of the issues at trial.
In order to ask a party "205 in what manner the alleged fact, if proved,
would be relevant 205" as provided by the sub-section it is necessary
for the party to give a summary of the proposed evidence when asked by
the court.
It is only with such a summary can the court be in a position to rule on
the relevancy of the proposed evidence.
The court will then have to decide on its relevancy on the assumption
that the proposed evidence will be successfully proved. I interpolate to
add that the exclusion of witnesses on the principles that I have
discussed is not an infringement of the right of an accused person to
defend himself. I say this because such a right can be limited by the
provisions of any written law (see Yusuf Husain v. Emperor AIR
[1918] All 189). The Evidence Act 1950 limits the type of evidence that
is admissible in a trial including the presentation of a defence.
Section 136(1) is the vehicle for excluding evidence that is rendered
irrelevant by the Evidence Act 1950.The power of the court under this sub-section is therefore clear.The
defence gave a summary of the evidence of the proposed witnesses. I
shall set out only a brief outline of the proposed evidence, though, in
ruling on their relevancy I considered the full summary as disclosed by
the defence.
Manjeet Singh Dhillon was to testify on his conversation with a Senior
Deputy Public Prosecutor, Dato' Abdul Gani Patail, with regard to the
reduction of a charge faced by his client Dato' Nallakaruppan.
It was alleged that Dato' Abdul Gani Patail was not prepared to consider
the request for the reduction of the charge unless Dato' Nallakaruppan
co-operates by implicating the accused by giving information concerning
several women.
Azmin, while in police custody, was stripped and asked to say that he
had been sodomised by the accused and that the accused is corrupt, a
womaniser and a sodomist.
Jamal is based in the United States.
He was asked by a Malaysian Embassy official to fabricate evidence
against the accused in return for a big sum of money to say that he had a
sexual relationship with him.
He refused.
Sukma Darmawan, Dr Munawar and Mior Abdul Razak were subjected to
extreme mental and physical torture by the police and forced to confess
that the accused had sodomised them.
Dato' Nallakaruppan was also forced to fabricate evidence against the
accused.
He would testify that the allegations made by SAC Musa in his affidavit
dated 2 September 1998 against the accused are fabricated.
Three
editors from the daily Nanyang Siang Pau would prove a statement by YAB
Prime Minister to the effect that there might be political instability
in the country if the accused is acquitted and that there will be no
disorder if there was a conviction.In submitting that the
evidence proposed to be adduced is relevant the defence said that it
must be considered in the light of the fact that the prosecution
evidence is fabricated.
The evidence will show the steps taken by the various authorities in
order to "frame" or "fix-up" the accused.
Evidence has been fabricated against him with the prime motive to remove
him from his position as Deputy Prime Minister and Minister of Finance.
As the defence further said:
It is our submission that this
process of removing the accused was a two-stage process.
Firstly, the events of August 1997 arose out of an attempt by several
persons in authority to use Azizan and Ummi in order to create false
allegations of sexual misconduct against the accused.
It is our contention that this plan was not able to come to fruition
since it came to the attention of the IGP and the IGP and senior
officers of the Special Branch who then actively proceeded on their own
in the interests of national security to take the necessary steps to
counter the plan to topple the Deputy Prime Minister in 1997.
The police kept both accused and the Prime Minister informed of this
scheme.
Consequently in 1997 the Prime Minister stated that the allegations are
not true.
As a consequence of that nothing happened in 1997.
With regard to the second stage of the plan to topple accused occurred
in 1998.
Therefore the old allegations were brought to light.
Thus an explanation had to be given as to why Ummi and Azizan acted the
way they did.
The most convenient way to explain this is to say that accused directed
the police to get the retractions.
It was contended that
the defence of fabrication cannot be considered in isolation and all ten
charges have to be viewed together.It was then said:Right from inception of this case the defence has been that these charges are false and fabricated.
That is the foundation of the defence to all the charges.
It
was then argued that the evidence of the proposed witnesses is direct
evidence of fabrication of evidence against the accused by the police.
The evidence will show the involvement of SAC Musa in the case and the
plan by the police to get innocent people to fabricate evidence against
the accused.
The evidence will show a common modus operandi on the part of the
police and is proximate in point of time and method.
If this evidence is allowed to be adduced and if accepted by the court
it would render it highly probable that the charges are indeed a
fabrication.
The evidence is directly relevant to the facts in issue and would form
similar fact evidence.
The evidence will show a deliberate and well planned system of
fabrication constituting a police conspiracy.
The evidence is also admissible under ss. 6, 7, 8 and 11 of the Evidence
Act 1950.
The defence then outlined certain points in the proposed evidence to
show system.
The defence referred to cases such as R v. Phillips [1936] 26 Cr App R 17, R v. Busby [1981] 75 Cr App R 79 and R v. Marsh
[1986] 83 Cr App R 165.
The prosecution, in its submission, said that the proposed evidence has
no connection with the charges.
As it is not directly connected to the facts in issue its admissibility
is governed by ss. 11 and 15 of the Evidence Act 1950.
In order to be admissible the proposed evidence must be closely
connected to the facts in issue.
No evidence has been adduced by the defence to show that there is any
fabrication of evidence by the police with the result that the
provisions of law referred to have no application.
In its reply the defence contended that this is the first time where a
senior officer has been removed and thus the purpose of the charges must
be considered.My first observation is that the
first part of the defence submission and its reply are more political in
nature and irrelevant.
As I have repeatedly advised the defence the so-called defence of
political conspiracy is irrelevant by virtue of the issues to be
established by the prosecution.
What is relevant is the concept of police conspiracy, if any, to
fabricate evidence against the accused.
Such a conspiracy must be established by evidence rendered admissible by
the Evidence Act 1950.
The proposed evidence relates to collateral facts and such evidence is
generally not admissible.However, the proposed evidence may be admissible under ss. 11 and15 of the Evidence Act 1950 if there is compliance with the requirements of the sections which I shall now consider.Section 11 Evidence Act 1950The section reads as follows:Facts not otherwise relevant are relevant -
(a) if they are inconsistent with any fact in issue or relevant fact;
(b)
if by themselves or in connection with other facts they make the
existence or non-existence of any fact in issue or relevant fact highly
probable or improbable.
This section provides for the relevancy of collateral facts.As Sarkar on Evidence 15th ed vol 1 says at p. 255:This
section has been expressed in very wide language, but it does not mean
that any and every fact which by a chain of reasoning may be shown to
have a bearing, however remote, on any fact in issue or relevant fact,
is relevant. 205 The words of the section are no doubt very wide, but in
determining relevancy the court in the exercise of a sound discretion
should see that the connection between the fact to be proved and the
fact sought to be given in evidence is so close or immediate as to
render the co-existence of the two highly probable or improbable.
It has been seen that collateral facts are ordinarily excluded and the
section embodies one of the instances in which collateral facts may be
relevant.
The words "highly probable" control the type of collateral facts that may be admitted under this section.As Sarkar on Evidence 15th ed vol I says at p. 262:The words are not 'reasonable probably'. The significant word is 'highly'. This means more than normal standard of probability.
The
collateral facts sought to be admitted must be reasonably conclusive to
show that it is consistent or inconsistent with a fact in issue (see Ismail v. Hasnal; Abdul Ghafar v. Hasnal
[1968] 1 MLJ 108). Thus the section makes only those facts admissible
which, assuming they are admitted in evidence, will be of great weight
in bringing the court to a conclusion one way or the other as regards
the existence or non-existence of the facts in question (see In re Indian Companies Act 13 MLT 282; Govt of Bombay v. Merwanji 10 Bom LR 907; Bhuiya v. Ramkali
A [1971] P & H9). The illustrations to the section indicate clearly
what is the standard of high probability or high improbability that is
required before evidence can be admitted under this section (see Babulal v. WIT Ltd A
[1957] C 709). Illustration (a) to the section deals with the defence
of alibi.
In the case of that defence if the element of time of the crime is
definitely fixed, and the accused is shown to have been at some other
place at that time, the two facts are mutually inconsistent and the
truth of the charge cannot be established (see R v. Brennan
[1806] 30 St Tr 58). Thus proof of the defence of alibi will enable the
court to decide one way or the other as regards the truth of the charge.This explains in clear terms the ambit of the section.Evidence
adduced by the defence to show that the police has fabricated or
attempted to fabricate evidence against the accused in other instances
will not show that the existence of the facts in issue are highly
improbable or that they are inconsistent with the facts in issue.
Merely because the police had fabricated evidence against the accused in
other instances does not mean that the truth of the charges in this
case cannot be established.
The proposed evidence will not have the weight in bringing the court to a
conclusion one way or the other as regards the existence or
non-existence of the facts in issue in this case.
This is because the connection between the facts to be proved and the
facts sought to be given in evidence are not so close or immediate as to
render the co-existence of the two highly probable or improbable.
It does not have the weight to show that the two facts are mutually
inconsistent.
The only purpose that the proposed evidence may serve will be to show
that by virtue of the conduct of the police in other cases involving the
accused there is a possibility that the same method of fabricating
evidence was employed in this case.
But a mere possibility does not meet the stringent requirements of the
section.
Be that as it may, it must be observed that s. 11 must be construed as
being limited in its operation by s. 54 of the Evidence Act 1950.
So construed s. 11 renders inadmissible the evidence of one crime (not
reduced to legal certainty by a conviction) to prove the existence of
another unconnected crime, even though it is cognate.
In this regard I refer to the case of R v. Parbhudas Ambaram [1874] 11 BHCR 90 the headnote of which reads as follows:Section
11 of the Indian Evidence Act should not be construed in its widest
significance, but considered as limited in its effect by s. 54 of the
Act. So construed, Section 11 renders inadmissible the evidence of one
crime (not reduced to legal certainty by a conviction) to prove the
evidence of another unconnected crime, even though it is cognate.
Accordingly, the possession by an accused person of a number of
documents suspected to be forged is no evidence to prove that he has
forged the particular document, with the forgery of which he is charged.
PER
WEST J:- Where a person charges another with having forged a promissory
note, and denies having ever executed any promissory note at all, the
evidence that a note, similar to the one alleged to be forged, was, in
fact, executed by that person, is not admissible, nor even would a
judgment, founded upon such note, be so: Sections 43 and 153 of the
Indian Evidence Act.
On similar principles the accused
would be excluded from adducing the proposed evidence as it is
unconnected, even though cognate, with the evidence in this case.The proposed evidence cannot therefore be admitted in evidence under this section.Section 15 Evidence Act 1950The section reads as follows:When
there is a question whether an act was accidental or intentional or
done with a particular knowledge or intention, the fact that the act
formed part of a series of similar occurrences, in each of which the
person doing the act was concerned, is relevant.
This section deals with evidence of similar facts.As Bray J observed in R v. Bond [1906] 2 KB 389 at p. 414:A careful examination of the cases where evidence of this kind is admitted shows that they may be grouped under three heads:
(1) where the prosecution seeks to prove a system or course of conduct
(2) where the prosecution seeks to rebut a suggestion on the part of the prisoner of accident or mistake
(3) where the prosecution seeks to prove knowledge by the prisoner of some fact.
To admit evidence under this section evidence of the other acts tendered must be of the same specific kind as that in question.As Lawrence J said in R v. Bond [1906] 2 KB 389 at p. 424:In
proximity of time, in method, or in circumstances there must be a nexus
between the two sets of facts, otherwise no inference can be safely
deduced therefrom.
Thus facts of a kind different to the main fact or transaction are not admissible.
This is illustrated by the case of R v. Fisher [1910] 1 KB 149.
In that case the accused obtained a pony and cart from the owner, saying
he wanted it for his invalid wife, and that he would take it on a
week's trial; he agreed to pay 2l for the use of the pony and cart for a
week if he did not keep it, andas some sort of security for the price he gave a bill of exchange for 25l.
Itwas
proved that his wife was not an invalid and that the whole story was
false.
The case for the prosecution was that this was a fraudulent transaction.
The prosecution adduced in evidence another instance where the accused
had obtained provender by falsely representing that he was carrying on a
business and was therefore in a position to pay for goods supplied to
him.
In holding this evidence to be inadmissible Channell J said at p. 153:Applying
these principles to this case, the charge here is that the prisoner
obtained the pony and cart from the prosecutor by making certain
statements.
The falsity of those statements is not proved by giving evidence that in
other cases the prisoner made other false statements, though it does
tend to shew that the prisoner was a swindler.
But there is no rule of law that swindling is, as regards proof,
different from any other offence, and if a man is charged with swindling
in a particular manner, his guilt cannot be proved by shewing that he
has also swindled in some other manner.
We are of opinion that the evidence as to the other cases was
inadmissible in this case, because it was not relevant to prove that he
had committed the particular fraud for which he was being charged, in
that it only amounted to a suggestion that he was of a generally
fraudulent disposition.
On the other hand, if all the cases had been frauds of a similar
character, shewing a systematic course of swindling by the same method,
then the evidence would have been admissible.
It must be emphasised that similar fact evidence is not necessarily only evidence for the prosecution.
The defence may also resort to such evidence.As JRS Forbes says in his book entitled Similar Facts at pp. 128-129:In Knight v. Jones; Ex parte Jones
[1981] Qd R 98 evidence of illegal or officious conduct by an arresting
officer on other occasions was received to explain why the defendant
refused to submit to a 'breath test' pursuant to the Traffic Act 1949
(Qld). When similar fact evidence is tendered by an accused person the
policy of balancing probative force against prejudice does not apply and
the evidence need only be cogent enough to raise a reasonable doubt (R v. Livingstone [1987] 1 Qd R 39). However, the requirement of striking similarity still applies.
That requirement was not satisfied in R v. Livingstone
[1987] 1 Qd R 39 where the defendant, in answer to a charge of
assaulting a police officer, claimed that the police officer was really
the assailant.
Evidence of assaults by the same officer on other members of the public
fell short of the requisite degree of similarity because it did not
reveal an investigative system and was in truth no more than an
allegation of unrelated assaults on the two witnesses.
On the other hand there was an investigative system in the South African
case of S v. Letsoko [1964] (4) SA 768 (AD). In that case the appellants, who were members of the Bantu race, were charged with sabotage.
The similar facts question arose upon a voir dire held to
consider the admissibility of confessions which were obtained by police
violence.
In support of their direct testimony on that point the prisoners sought
to lead evidence from other Bantu that the police sabotage squad
systematically assaulted all the members of that race or tribe who were
arrested on suspicion of committing the offence.It
was held that if several of them gave credible evidence of the alleged
police "system", and testified that they, too, had suffered under it,
there would be a nexus, sufficient in point of time, method and
circumstances to corroborate the appellant's own evidence of violent
treatment leading to involuntary confessions.As I said
earlier in order to render the proposed evidence admissible as similar
facts it must be of the same specific kind as in this case.
However, in this case it was not even suggested to the prosecution
witnesses in crossexamination that their evidence is fabricated at the
instance of the police or the prosecution.
The accused merely made some general statements that the evidence
against him is fabricated.
That, of course, does not mean that the defence set up cannot be
considered.
In any event the proposed evidence relates to fabrication and attempts
to get fabricated evidence against the accused for sexual misconduct.
The evidence of Dato' Mohd Said, Dato' Amir Junus, ACP Mazlan and DSP
Aziz, even if fabricated, relates to directions given for the retraction
of allegations of sexual misconduct only and not to allegations of
sexual misconduct by them with the accused.
The evidence of Ummi and Azizan only relates to the making of
allegations and not the commission of sexual misconduct by them with the
accused.
Thus the facts of this case have no nexus with the proposed evidence in
point of method and circumstance.
The evidence of fabrication sought to be elicited from the proposed
witnesses and the fabrication of evidence in this case, if any, are
therefore not of the same specific kind to show any system.
It falls into the category of facts sought to be adduced in R v. Letsoko [1910] 2 KB 149 and unlike in S v. Letsoko [1964] (4) SA 768 (AD). The proposed evidence is therefore not admissible as evidence of similar facts.I
therefore ruled the proposed evidence as being irrelevant.
It is therefore inadmissible.
The statement allegedly made by YAB Prime Minister has absolutely no
relevance to the charges. I also disallowed Dr Vasantha Nair, a defence
witness, from giving medical evidence on the injuries sustained by the
accused as it is not relevant to the charges.
On similar grounds I disallowed the defence application to recall Dr Halim Mansar, a prosecution witness.(vi) Evidence Relating To Legal Professional PrivilegeThe
defence called two advocates and solicitors as witnesses whose proposed
evidence related to communications they had with clients.
One
was Sukdev Singh practising under the name and style of Tetuan Azlan
Shah, Sukdev & Co. He said he was appointed by Azizan to act for
him.
The prosecution contended that as Sukdev Singh had said that he had been
appointed by Azizan to act for him it must be shown that he has
obtained the express consent of his client before he can disclose any
communications between him and Azizan.When asked whether he had obtained
the consent of Azizan to disclose communications made to him in the
course of and for the purpose of his employment as an advocate and
solicitor he said:Saya tidak mempunyai persetujuan atau kelulusan anakguam saya En Azizan bin Abu Bakar seperti yang diminta oleh Tuan Peguam.
In
the light of this answer the Honourable Attorney General asked the
court to give the necessary directions at that stage.
The defence referred to the evidence of Azizan to argue that as he had
said that he was threatened by Sukdev Singh to affirm the statutory
declaration (exh. D55) the solicitor must be allowed to rebut the
allegation.
It was further argued that the evidence on the allegation would come
within the proviso to s. 126 of the Evidence Act 1950
and thereby permit Sukdev Singh to give evidence on the matter.
This argument, as pointed out by the Honourable Attorney General,
presupposes the fact that exh. D55 was affirmed involuntarily.
In response to this the defence said that its contention is that the
exhibit was affirmed voluntarily.
The other advocate and solicitor called by the defence was Mohd Faiz bin
Abdullah ("Mohd Faiz") practising under the name and style of Faiz
& Co. In 1998 he acted as solicitor for the accused in a civil suit
involving Buku 50 Dalil.
Whilst handling that matter he came to know about exh. P14C. In early
July 1998 he met Azizan in his office with Sukdev Singh and a Malay
gentleman.
In answer to a question Mohd Faiz said that Azizan and Sukdev Singh came
to his office for the purpose of discussing matters pertaining to Buku
50 Dalil.
He then said that Azizan asked to be shown the pengakuan bersumpah
contained in Buku 50 Dalil. I then asked the defence what evidence it
sought to elicit from this witness in order to determine whether s. 126
of the Evidence Act 1950 applies.
Learned counsel said that this witness will say that when exh. P14C was
shown to Azizan he denied that the signature on it was his.
The prosecution contended that such evidence is privileged and can be
disclosed only as authorised. I then directed that there be further
examination of this witness in order to determine whether there was a
solicitor client relationship between him and Azizan.
When asked by the defence Mohd Faiz said that he did not act for Azizan
and that he did not give any advice to him nor was any advice sought.
Under cross-examination by the prosecution Mohd Faiz said that he posed
certain questions to Azizan about exh. P14C. He agreed that he also
engaged in a conversation with Sukdev Singh in respect of legal issues
pertaining to those parts that concerned Azizan.
He said that his discussion with Sukdev Singh involved exh. P14C and
Azizan.
He agreed that he offered his advice on certain legal issues to them.
The meeting was called by Sukdev Singh.When asked
whether he agreed that other than offering his opinion he also offered
his assistance to them to do whatever they wanted Mohd Faiz said:I
discussed legal issues with Sukdev Singh pertaining to this matter as
between lawyers. I offered assistance to Sukdev that I would be prepared
to discuss further with him on that matter.
Also to look up the law.
He offered the same assistance to me.
The defence argued
that the question of privilege does not arise in this case as Mohd Faiz
was not the solicitor or legal adviser to Azizan.
Neither did he take on the role of being a counsel to Sukdev Singh.
The discussion that took place was one between two solicitors, each
acting for his own client.
Thus any view put forward by either solicitor is not privileged.
The contention of the prosecution was that Sukdev Singh went to the
office of Mohd Faiz as solicitor for Azizan.
The discussion was on Buku 50 Dalil as far as it concerned Azizan.It
was argued that as Sukdev Singh consulted Mohd Faiz on behalf of Azizan
there was a solicitor client relationship between Azizan and Mohd Faiz.The arguments advanced before me bring into focus s. 126 of the Evidence Act 1950 which reads as follows:(1)
No advocate shall at any time be permitted, unless with his client's
express consent, to disclose any communication made to him in the course
and for the purpose of his employment as such advocate by or on behalf
of his client, or to state the contents or condition of any document
with which he has become acquainted in the course and for the purpose of
his professional employment, or to disclose any advice given by him to
his client in the course and for the purpose of such employment.
Provided that nothing in this section shall protect from disclosure
(a) any such communication made in furtherance of any illegal purpose;
(b)
any fact observed by any advocate in the course of his employment as
such showing that any crime or fraud has been committed since the
commencement of his employment.
(2) It is immaterial whether the attention of the advocate was or was not directed to the fact by or on behalf of his client.
This
rule is established for the protection of the client, not of the
advocate, and is founded on the impossibility of conducting legal
business without professional assistance, and on the necessities, in
order to render that assistance effectual, of securing full and
unreserved intercourse between the two (seeJones v. Great Central Ry [1910] AC 4; Lyell v. Kennedy 9 App Cas 81, Wheeler v. Le Merchant 17 Ch D 675). As Jessel MR said in Anderson v. Bank [1876] LR 2 Ch D 644 at p. 649:It
is absolutely necessary that a man, in order to prosecute his rights or
to defend himself from an improper claim should have recourse to the
assistance of professional lawyers, and it being so absolutely
necessary, it is equally necessary, to use a vulgar phrase, that he
should be able to make a clean breast of it to the gentleman and whom he
consults with a view to the prosecution of his claim, or the
substantiating his defence against the claim of others; that he should
be able to place unrestricted and unbounded confidence in the
professional agent, and that the communcation he so makes to him should
be kept secret, unless with his consent (for it is his privilege, and
not the privilege of the confidential agent), that he should be enabled
properly to conduct his litigation.
That is the meaning of the rule.
It must be observed that the strict enforcement of this rule will sometimes operate so as to exclude the truth.However, as Sarkar on Evidence 15th edn vol. II says at p. 2027:205
but if any law reformer feels inclined to condemn the rule on this
ground, he will do well to reflect on the eloquent language of the late
Knight Bruce, LJ, who falicitously observed:
Truth, like all other
good things, may be loved unwisely, - may be pursued too keenly, - may
cost too much.
And surely the meanness and the mischief of prying into a man's
confidential consultations with his legal adviser, the general evil of
infusing reserve and dissimulation, uneasiness, suspicion, and fear,
into those communications which must take place, and which, unless in a
condition of perfect security, must take place uselessly or worse, are
too great a price to pay for truth itself (Pearce v. P [1846] 16 LJ Ch 153; Tay s 915).
It
is not every communication made by a client to an advocate that is
privileged from disclosure.However, whatever a man says to his legal
adviser about his private affairs with a view to obtaining professional
advice is presumed to have been said in confidence and the object is to
protect all such confidential communications (see Sarkar on Evidence 15th edn vol II p 2034). The privilege also extends to acts of the client observed by the advocate (see Robson v. Kemp
5 Esp 52). As the privilege is that of the client he may expressly
waive it under s. 126 or impliedly under s. 128 of the Evidence Act 1950
by calling the advocate as his witness.I shall first
consider the position of Sukdev Singh.
The evidence that the defence intended to elicit from him is that exh.
D55 was affirmed voluntarily by Azizan and that he must also be allowed
an opportunity to rebut the allegation that Azizan had been threatened
by him to affirm the exhibit.
With
regard to the question of whether exh. D55 was
affirmed voluntarily it would relate to evidence of what Azizan had told
the solicitor and what the solicitor may have observed from the acts of
Azizan regarding the affirmation of the exhibit.
This raises the issue of whether a solicitor may disclose the
circumstances in which his client executed a document without the
express consent of the client.
In making a ruling I was guided by the judgment of Abdul Malek J (as he
then was) in Subrayan v. Sinnan 7 Mallal's Digest (1998 Reissue)
No 1727.
In that case P applied for a declaration that the land registered in the
name of D was actually being held by D in trust for him absolutely. P
also applied for an order that D tranfers the land to him and for an
injunction to restrain D from transferring the land to any other person.
P stated that he had paid for the land and that D was registered as the
owner of the land for administrative convenience. D denied P's story
and stated that he had bought the land with a loan from P. The court
disallowed X and Y, who were advocates and solicitors in the
transaction, from giving evidence relating to the land based on s. 126.
Accordingly, I held that Sukdev Singh is precluded from giving evidence
on the circumstances in which exh. D55 was executed to show that it was
affirmed voluntarily in the absence of express consent from Azizan.
The argument that such evidence is permissible under the proviso to s.
126 cannot be sustained as it is the contention of the defence that exh.
D55 was affirmed voluntarily.
Thus the question of it being executed for an illegal purpose or as
showing that any crime or fraud has been committed does not arise.
The proviso to s. 126 is therefore inapplicable.
The further argument that a solicitor must be allowed to rebut an
allegation made by his client in order to clear his name notwithstanding
the fact that he has not obtained express consent from his client to do
so is indeed attractive.
Surely a client cannot be allowed to make unfounded allegations against
his solicitor and leave the solicitor defenceless to clear his name.
Such a situation must, however, be balanced against the need to adhere
to the rationale underlying the law relating to privilege and the right
of the solicitor to defend himself.
The first matter that arises for determination is whether the fact that
Azizan has made an allegation against Sukdev Singh in cross-examination
means that he has consented to waive his privilege.
The answer given by Azizan in cross-examination is a result of his
failure to claim privilege.
Such failure on the part of a client to claim privilege when he is under
cross-examination does not amount to "express consent" given by him to
his legal adviser to disclose a communication which is otherwise
privileged under s. 126 (see Bhagwani v. Deooram AIR [1933] Sind
47). It follows that Sukdev Singh would not be able to tell his side of
the story without express consent from Azizan.
This may appear to prejudice the position of Sukdev Singh.
The judgment of Bayley J in Cooke v. Maxwell 171 ER 614 provides a guideline to find a solution to the problem.
This is what his Lordship said with regard to a document which is partly privileged and partly not at p. 615:And
that supposing the document, on principles of public policy, to be
excluded, no parol evidence could be received of any part, since this
would be prejudicial to the party to be affected by it, since part would
be revealed, and that which tended to give an explanation of it in
favour of the party, might be excluded.
In the
circumstances it is my view that as Sukdev Singh is precluded from
giving an explanation regarding the allegation made by Azizan the
relevant evidence of Azizan must be excluded in the interest of justice.
I therefore ruled that the part of the evidence of Azizan that makes an
allegation against Sukdev Singh is to be treated as irrelevant both
against Sukdev Singh and for the purpose of making a decision in this
case.I shall now consider the position of Mohd Faiz.
He was the solicitor for the accused in respect of a defamation suit regarding Buku 50 Dalil.
He had a meeting with Azizan and Sukdev Singh at the request of the latter.
Both solicitors assisted each other with mutual offers of further assistance in the affairs of their respective clients.
That has made them agents of each other.
Insofar as the issue before me is concerned Mohd Faiz has become the agent of Sukdev Singh.
His position is therefore governed bys. 127 of the Evidence Act 1950 which reads as follows;Section 126 shall apply to interpreters and the clerks or servants of advocates.
In commenting on this section Sarkar on Evidence 15th edn vol. II says at p. 2046:As
it is not possible for lawyers to transact all their business in person
and they have to employ clerks or agents, the privilege necessarily
extends to facts coming to their knowledge in the course of their
employment.
The protection extends to all the necessary organs by which such
communications are effected and therefore an interpreter, or an
intermediate agent is under the same obligations as the legal adviser
himself.
The rule also extends to a solicitor's town or local agent (Tay s 920).
It has never been questioned that the privilege protects communications
to the attorney's clerks and his other agents for rendering his services
(Wig s 230).
Mohd Faiz is therefore in the same position
as Sukdev Singh and may disclose communications made to him by Azizan
only with the express consent of the latter.The Submissions Of Parties At The Close Of The Case For The defenceAt
the close of its case the defence submitted that the prosecution has
not proved its case beyond reasonable doubt to which the prosecution
replied. I allowed the defence application to reply to the points raised
by the prosecution though there is no such right in law. I did so as
ideally it should be for the prosecution to submit first since it
carries the burden of proof with the defence
having the last say. I gave anxious consideration to the submissions of both parties.I shall now deal with some of the arguments raised by the defence.(i) Evidential Value Of Newspaper ReportsThe defence tendered in evidence certain newspaper reports.
They are as follows:Exhibit D23This
is a press statement by YAB Prime Minister dated 25 August 1997 in The
New Straits Times where he said that the accusations against the accused
are ridiculous based on a report that he had received.
He said that the police had investigated the matter and had concluded that there was no case.Exhibit D24This
is a press statement dated 3 September 1997 in The News Straits Times
by the IGP where he said that the allegations against the accused have
been found to be untrue.Exhibit D75This
is another press statement dated 3 September 1997 in The Sun by the IGP
where he said that the two authors of poison-pen letters alleging that
the accused was involved in sex scandals have confessed that they
fabricated the matter.Exhibit D129This
is a press statement dated 26 August 1997 in The New Straits Times by
the accused saying that as stated by YAB Prime Minister the allegations
are baseless and should not be pursued.Exhibit D132This is a press statement dated 26 August 1997 in The Sun by the accused about the allegations against him.Exhibit D134This
is a press statement dated 25 August 1997 in Utusan Malaysia by YAB
Prime Minister saying that the allegations against the accused are
slanderous with a political motive.The defence called in evidence the reporters who were present at the various
press
conferences described above.
They confirmed that they were at the press conferences and took down
notes of the speeches and that the respective press statements are their
stories.
They also said that no attempts were made by the persons who made the
speeches to have the stories corrected.
They also produced original copies of the newspapers in which the
statements appeared from their file.As they wanted the original newspapers back I permitted photostat copies to be tendered in evidence.The
issue that arose for determination with regard to these exhibits was
whether the press statements can be taken in proof of the truth of their
contents in the absence of the persons who gave the statements being
called as witnesses.
The defence, in its well presented argument, referred to s. 81 of the
Evidence Act 1950 and some Indian authorities to argue that with the
calling of the reporters the press statements are admissible to
establish the truth of the statements made.
The
prosecution contended that, in the absence of the makers of the
statements being called as witnesses, the press statements amount to
hearsay.The answer to the rival contentions lie, as argued by the defence, in s. 81 of the Evidence Act 1950 which reads as follows:The
Court shall presume the genuineness of every document purporting to be
the Gazette, a State Gazette or the London Gazette, or the Government
Gazette of any part of the Commonwealth, or to be the Gazette issued by
the local Government of any part of the Commonwealth, or to be a
newspaper or journal, or to be a copy of a private Act of Parliament
printed by her Britannic Majesty's printer, and of every document
purporting to be a document directed by any law to be kept by any
person, if the document is kept substantially in the form required by
law and is produced from proper custody.
For the purpose
of the argument before me the part of the section that is relevant is
only the part which deals with the presumption of genuineness of
newspapers.
It must first be observed that the presumption contained in this section
is rebuttable pursuant to s. 4(2) of the Evidence Act 1950.On the
evidential value of a newspaper report a mere production of it is not
proof of the truth of its contents (see Bawa Sarup Singh v. Crown AIR [1925] Lah 299). In this regard the Supreme Court of India observed in Samont N Balakrishna v. George Fernandez [1969] 3 SCR 603:A
newspaper report without any further proof of what had actually
happened through witnesses is of no value.
It is at best a second-hand secondary evidence.
It is well-known that reporters collect information and pass it on to
the editor who edits the news item and then publishes it. In this
process the truth might get perverted or garbled.
Such news items cannot be said to prove themselves although they may be
taken into account with other evidence if the other evidence is
forcible.
As the Indian Supreme Court said in Laxmi Raj Shetty v. State of TamilNadu
AIR [1988] SC 1274 it is now well settled that a statement of fact
contained in a newspaper is merely hearsay and therefore inadmissible in
evidence in the absence of the maker of the statement appearing in
court and deposing to have perceived the fact reported.
In order to render the newspaper report admissible in evidence to prove
its contents the person who made the speech, or the person in whose
presence the speech was made, or the reporter of the newspaper, who
heard the speech and sent the report to be published in the newspaper,
must be produced (see Khilumal v. Arjundas AIR [1959] Raj 280).
It is my view that proof of a newspaper report by a person other than by
the person who made the speech is rendered admissible as an exception
to the hearsay rule by virtue of the presumption of genuineness attached
to a newspaper by this section.Pursuant to this
presumption the report is presumed to be accurate, unless rebutted,
thereby removing the reasons for which hearsay is excluded. I therefore
hold that the newspaper reports tendered by the defence are admissible
in evidence to establish the truth of their contents.(ii) Complicity Of Prosecution WitnessesThe
defence repeated its submission made at the close of the prosecution
case that Dato' Mohd Said and Dato' Amir Junus are accomplices.
It was contended that the prosecution's reply at the end of its case
that they are not accomplices cannot be sustained.
In the absence of any other evidence coming on record I still hold that
Dato' Mohd Said, Dato' Amir Junus, ACP Mazlan and DSP Aziz are
accomplices.
It is my finding, based on the whole of the evidence adduced, that their
evidence is credible.
With regard to Dato' Amir Junus the evidence adduced by the defence on
his business interests is largely the same as it was earlier.
Thus I see no reason to review my finding on his credibility on account
of this reason.
It must be observed that his credibility is enhanced by the contemporaneous notes that he had kept.(iii) Admissibility And Evidential Value Of Exh. D123This exhibit, according to the accused, was the second report given to him by Dato' Mohd Said on 3 September 1997.
He said that it was located only about a week before he gave evidence on 9 February 1999 by his wife from some boxes.
Datin Seri Wan Azizah bt Wan Ismail, the wife of the accused, said that her husband gave it to her in early September 1997.
She read it and kept in a cupboard.
When they moved out of their Official Residence on 3 September 1998 it was packed in one of the boxes.
She said that she found it about a month before she gave evidence on 12 March 1999 and handed it to the lawyers.
Dato'
Mohd Said was recalled by the defence to identify this report.
When he was asked whether it is a report from the Special Branch he said
that it looks like one though he is not very sure.
He said that he is not sure because it does not have a file reference
number and is not signed.
He said that where such a report is not signed it is followed by a
covering letter.
The covering letter would be addressed to the person to whom the
unsigned report is given.
He said that the contents of the report appear familiar to him.
He agreed that the report appears to be an extension of exh. D25 and
that the contents of both reports are related.
He also said that the prints on both the reports appear to be the
same.The cross-examination of Dato' Mohd Said then goes this way:Question:
I am putting it to you that IDD123 is a copy of the Special Branch
report which was given by you to Dato' Seri Anwar on 3.9.1997.
Answer: No.
Question: I also put it to you that this is your second report following D25.
Answer: No. It is not my second report.
The
defence argued that the report ought to be admitted in evidence in
proof of its contents and referred to the evidence of Dato' Mohd Said on
the similarities between this report and exh. D25 to support its
argument.
It was contended that the mode and manner in which the report was
ultimately found was convincingly explained by the accused and Datin
Seri Wan Azizah bt Wan Ismail.
Thus, the defence said, there is no reason to doubt that the report is
indeed and in fact a report of the Special Branch which was handed over
to the accused on 3 September 1997 and, accordingly, should be admitted
in evidence on the authority of Dato' Mokhtar bin Hashim v. PP [1983] 2 CLJ 10; [1983] 1 MLJ 232 and Datuk Haji Harun bin Haji Idris & Ors v. PP
[1978] 1 MLJ 240.
In opposing this submission the prosecution contended that Dato' Mohd
Said had said that there was no second report.Dato' Mohd Said had also
denied that it is the second report and had said that he was not sure
that it is a Special Branch report because it has no file reference
number and a covering letter.As stated by Dato' Mohd Said
the report does not have a file reference number and a covering letter
which reports of this nature have.
He has denied having given D123 to the accused and that it is his second
report. I am inclined to accept his evidence on this issue as I find it
strange that a person in the capacity of the accused would take home
what is purportedly a highly confidential document.
It is more strange for him to have given it to his wife who kept it in
the cupboard after having read it herself.
Therefore it is my finding that exh. D123 is not a copy of the so-called
second report as claimed by the defence.
Hence it cannot be admitted in proof of its contents.
However,
I admitted it as a document claimed by Datin Seri
Wan Azizah bt Wan Ismail to have been received by her from her
husband.In the light of the background surrounding the report it is not
entitled to any evidential value.(iv) Police Statements Of Ummi And AzizanAfter
Ummi and Azizan gave their written statements, that is to say, exhs.
P17 and P18, they also gave a statement to the police pursuant to s. 112 of the Criminal Procedure Code.
The defence contended that these police statements ought to have been
adduced in evidence by the prosecution under s. 157 of the Evidence Act
1950.
The police statements would show whether they are
consistent with or in conflict with exhs. P17 and P18. In the absence of
the prosecution having produced them, it was argued, they should be
treated as being consistent with exhs. P17 and P18. In fact, the defence
added, the evidence of SAC Musa to the effect that the police
statements of Azizan were consistent mean that they must be consistent
with exh. P17.I shall first refer to the evidence
of SAC Musa in order to ascertain whether the defence is correct in its
conclusion that Azizan's police statements are consistent with exh.
P17. That is what he said in cross-examination:Azizan telah membuat lebih kurang lima pernyataan.
Tidak ada pernyataan yang dibuat oleh Azizan yang dia menafikan bahawa dia diliwat oleh tertuduh.
Without
for a moment going into the truth of the allegations it is my view that
SAC Musa's evidence shows that the statements given by Azizan are
inconsistent with exh. P17. SAC Musa's evidence would therefore,
contrary to the submission of the defence, strengthen the case for the
prosecution in that exh. P17 is not a reflection of what Azizan had
stated in his police statements.It is perhaps for this purpose that the
prosecution re-examined SAC Musa when he said that Azizan made only one
statement in respect of this case and another four in respect of exh.
P49 in this line:Apakah yang dinyatakan oleh SP12 (Azizan) di dalam percakapannya di bawah s. 112 berkaitan dengan tertuduh?
This question was met with vehement objection by the defence.My notes of evidence on the objection reads as follows:(En Bachan objects as the contents of a s. 112 statement is not admissible.)
I
disallowed the question based on the objection taken.
It is indeed bizarre for the defence, having objected to the
admissibility of Azizan's statement earlier, to now take a diametrically
different stand on the failure by the prosecution to produce it.Be that
as it may, I shall now consider the argument raised by the defence in
an objective manner. A police statement recorded under s. 112 of the Criminal Procedure Code is absolutely privileged (see Martin Rhienus V. Sher Singh [1949] 1 LNS
49; Husdi v. PP [1979] 2 MLJ 304). However, the defence may have access to it for the purpose of impeaching the credit of a witness (see Husdi v. PP [1980] 2 MLJ 80). It is made admissible in evidence by s. 157 of the Evidence Act 1950 which reads as follows:In
order to corroborate the testimony of a witness, any former statement
made by him whether written or verbal, on oath, or in ordinary
conversation, relating to the same fact at or about the time when the
fact took place, or before any authority legally competent to
investigate the fact, may be proved.
The words in the
section "205 or before any authority legally competent to investigate
the fact 205" clearly refer to a police statement made in the course of a
police investigation. I pause to add that the statement can be used
under this section only to show consistency and not for purposes of
corroboration (see Aziz bin Mohamed Din v. PP [1997] 1 CLJ Supp
523; [1996] 5 MLJ 473). As I said in an earlier part of the judgment it
should be used only when the testimony of the witness who made the
statement has been challenged. I consider it necessary to make an
observation on the application of the section in the light of the
objection raised.
The use of the words "205 may be proved" in the section make the use of a
former statement for the purpose of the section discretionary.
Thus the prosecution may, if it so desires, waive the privilege attached
to a police statement and use it for the purpose of the section. A
failure to use it can never be fatal to the prosecution case as it would
only be the prosecution which will suffer as a result of not using a
prior consistent statement to bolster the credit of a witness which has
been challenged.
It will therefore cause no prejudice to the defence.
On the contrary it will be to its advantage.
If the defence has a hunch that the statement is inconsistent with a
witness's testimony in court then an application should be made to
impeach the credit of the witness by use of the statement.
In any event, as a police statement is privileged no adverse inference
can be drawn from his non-production.This is
based on the principle that the drawing of an adverse inference for the
failure to produce a privileged document would be to destroy the
privilege itself (see Weston v. Pearymohon 40 C 898; Dulhin v. Harnandan 30 MLJ 624, A [1916] PC 157).Having
had the opportunity to study the law in some detail in order to resolve
the objection raised by the defence now I must say, with a sense of
regret, that I had erred when I disallowed the prosecution from adducing
in evidence, through SAC Musa, the statement made to the police by
Azizan. I make no comment now on the conduct of the defence in taking
the inconsistent stand with regard to the police statement of Azizan
except to leave it to them to battle with their own conscience.
In the premises the objection raised by the defence is totally
unwarranted and I reject it in the strongest possible terms.
(v) Whether Statements Made By The Accused Amount To HearsayThe
defence started off this part of the submission by saying that I had
ruled, despite objections, that the evidence of the conversation which
the accused had with YAB Prime Minister, the Honourable Attorney
General, the IGP and others are hearsay.
The submission then runs this way:The
defence had no choice but to accept this court's ruling graciously
despite the defence disagreement.
That being so then the same law and ruling must apply to the
prosecution.
This would mean that all the evidence of PW1, PW11, PW12 and PW13 where
DSAI allegedly stated certain things including most importantly the
alleged instruction given to SP1 and SP11 must of necessity and pursuant
to and in accordance with this Honourable Court's ruling be applied
with equal rigor and force against the prosecution and all such evidence
of what allegedly DSAI said must be ruled inadmissible and therefore
expunged.
The law must apply equally and in the same manner to the prosecution and
the defence.
That will leave not an iota or shred of evidence against DSAI and as
night follows day and day follows night DSAI on this ground alone must
be acquitted.
The opening part of this submission would
seem to suggest that I had erred in excluding the alleged conversations
that the accused had with certain persons despite strong objection.
The basis upon which I made the ruling is the very basis upon which the
defence had on numerous occasions objected to prosecution witnesses
giving evidence of out of court statements.
It is sufficient for me to refer to just one example from the
examination-in-chief of SAC Musa.It is as follows:Question: Bagaimana kamu tahu bahawa ID38A - V adalah dokumen yang ditulis tangan oleh Ummi?
Answer: Saya mengetahui yang ID38A - V adalah tulisan Ummi kerana beliau memberitahu saya bahawa ini adalah tulisan tangannya.
(En Bachan says that this is hearsay as Ummi must be called. DPP says admissibility and weight must not be confused.
Court: The statement to be proved by Ummi.)
It can thus be
comprehended with ease that the ruling that I made with regard to the
conversations referred to in this objection is as the night follows the
day and the day follows the night.Having said that I shall consider whether the out of court statements of an accused person amount to hearsay.
This requires a consideration of ss. 17, 18 and 21 of the Evidence Act 1950 which deal with admissions.
Section 17 says that:An
admission is a statement, oral or documentary, which suggests any
inference as to any fact in issue or relevant fact, and which is made by
any of the persons, and under the circumstances, hereinafter mentioned.
Section 18(1) provides that statements made by a party to the proceedings are admissions.The word "proceeding" in s. 18(1) may be civil or criminal (see Sarkar on Evidence 14th edn. vol. I p. 323). An accused is a "party to the proceeding" (see Sarkar on Evidence 15th vol. I p. 372). As the Law of Evidence by Woodroffe and Amir Ali 16th edn. vol. I says at p. 739:In
criminal cases, the accused is always a party, and his admissions are
admissible against him, subject of course to the provisions of ss. 24 to
27.
A party's own statements are in all cases admissible against himself (see Slatterie v. Pooley 6 M & W 664). Thus s. 21 provides, inter alia, that admission are relevant and may be proved as against the person who makes them.
An admission is treated as an exception to the hearsay rule and thus admissible.As Sarkar on Evidence 14th edn. vol. I says at p. 309:The
ordinary idea of hearsay is what is heard out of court from a
non-witness, and admissions are therefore generally treated as
exceptions to the hearsay rule.
Admissions are not, however, open to all the objections applicable to
hearsay testimony.
It is true that they are unsworn statements made out of court like
hearsay testimony, but they are statements not of third persons but of a
party to the proceeding and for the reason stated about what a party
said against his interest may be presumed to be true.
An admission is therefore substantive evidence of the fact admitted (see Union of India v. Koksh Builders and Financiers AIR [1977] SC 409; Lam Choon & Co. v. Lim Yam Hong [1931] SSLR 96). This rationale is lucidly explained by Subba Rao J in Sahoo v. State of UP AIR [1966] SC 40 at p. 42 in the following words:A
scrutiny of the provisions of ss. 17 to 30 of the Evidence Act
discloses as one learned author puts it, that statement is a genus,
admission is the species and confession is the sub-species.
Shortly stated, a confession is a statement made by an accused admitting
his guilt.
What does the expression 'statement' mean? The dictionary meaning of the
word 'statement' is 'the act of stating, reciting or presenting
verbally or on paper.' The term 'statement', therefore, includes both
oral and written statements.
Is it also a necessary ingredient of the term that it shall be
communicated to another? The dictionary meaning of the term does not
warrant any such extension; or the reason of the rule underlying the
doctrine of admission or confession demands it. Admissions and
confessions are exceptions to the hearsay rule.
The Evidence Act places them in the category of relevant evidence
presumably on the ground that, as they are declarations against the
interest of the person making them, they are probably true.
The probative value of an admission or a confession does not depend upon
its communication to another, though, just like any other piece of
evidence, it can be admitted in evidence only on proof.
This proof in the case of oral admission or confession can be offered
only by witnesses who heard the admission or confession, as the case may
be. The following illustration pertaining to a written confession
brings out the said idea; A kills B; enters in his diary that he had
killed him, puts it in his drawer and absconds.
When he places his act on record, he does not communicate to another;
indeed, he does not have any intention of communicating it to a third
party.
Even so, at the trial the said statement of the accused can certainly be
proved as a confession made by him.
If that be so in the case of a statement in writing, there cannot be any
difference in principle in the case of an oral statement.
Both must stand on the same footing.
This aspect of the doctrine of confession received some treatment from
well-known authors on evidence, like Taylor, Best and Phipson.
In 'A Treatise on the Law of Evidence ' by Taylor, 11th edn. vol. I, the following statement appears at p. 596:
What
the accused has been overheard muttering to himself, or saying to his
wife or to any other person in confidence will be receivable in
evidence.
In 'The Principles of the Law of Evidence ' by W M Best, 12th edn.
At p. 454, it is stated much to the same effect thus:
Words addressed to others, and writing, are no doubt the most usual forms; but words uttered in soliloquy seem equally receivable.
We also find the following passage in 'Phipson on Evidence ', 7th edn.
At p. 262:
A statement which the prisoner had been overhead
muttering to himself, if otherwise than in his sleep, is admissible
against him, if independently proved.
Further reference may be made to Wigmore onEvidence vol. IV 1048 (at p. 3) as follows:The
theory of the Hearsay rule that an extra-judicial assertion is excluded
unless there has been sufficient opportunity to test the grounds of
assertion and the credit of the witness by cross-examination by the
party against whom it is offered eg, if Jones had said out of court "The
party-opponent Smith borrowed this fifty dollars', Smith is entitled to
an opportunity to cross-examine Jones upon that assertion.
But if it is Smith himself who said out of court, 'I borrowed this fifty
dollars,' certainly Smith cannot complain of lack of opportunity to
cross-examine himself because his assertion is admitted against him.
Such a request would be absurd.
Hence the objection of the Hearsay rule falls away, because the very
basis of the rule is lacking, viz, the need and prudence of affording an opportunity of cross-examination.
I
therefore hold that the statements made by the accused to Dato' Mohd
Said and Dato' Amir Junus, being relevant, are admissible.
It is superfluous to state that any statement allegedly made by the
accused which does not suggest any inference as to any fact in issue or
relevant fact would not amount to an admission and would therefore be
inadmissible.
Thus the objection raised cannot be sustained.(vi) Failure To Call Evidence In RebuttalIn
the course of giving evidence the accused narrated certain
conversations that he had with YAB Prime Minister and the IGP. When the
accused gave evidence of these conversations the defence had intimated
to me that the makers of the statements may be called to prove the
conversations. I then made a ruling that pending proof of the
conversations the evidence given by the accused is not to be published
by the media.
The defence closed its case without calling the relevant persons as
witnesses.
The objection now raised is worded as follows:The
prosecution although indicating that they may call rebuttal evidence
did not do so. As such it is submitted that the adverse inference
against the prosecution should be invoked for failure to call rebuttal
evidence from the Honourable Prime Minister, the Honourable AG, the IGP,
Dato' Megat Junid and Tun Daim.
The defence cannot be expected to call the said witnesses who are so
obviously hostile against DSAI. These witnesses were specifically named
in the prosecution and defence case and yet no attempt was made to call
them in the prosecution case, or at least, offer them for
cross-examination to the defence or even as rebuttal witnesses of which
the prosecution gave notice to the defence in the defence case.
This
is indeed a very peculiar submission.
As I have stated in an earlier part of the judgment it is not part of
the prosecution's duty to prove the case for the defence.
Yet that is what this submission demands.
The witnesses referred to were made available to the defence.
The defence exercised its right to call all of them except the
Honourable Attorney General.
As I had stated in an earlier part of the judgment they are not material
to the case for the prosecution.
If the defence had felt that they were material to its case it ought to
have called them.
The failure to call them, though no adverse inference can be drawn
therefrom, on the ground that they may be hostile indicates the
Defence's lack of confidence in having them in the witness stand.
The defence must be aware of s. 154 of the Evidence Act 1950
which deals with the manner of treating hostile witnesses.
To therefore argue that the prosecution ought to have called them on
that ground cannot be sustained.
Be that as it may, the question of rebuttal evidence from these
witnesses arises only if the defence had successfully adduced evidence
that requires to be rebutted by them.
In the case of the alleged conversations that the accused had with YAB
Prime Minister, the Honourable Attorney General, the IGP and Tun Daim
such evidence, being hearsay, are inadmissible.
Thus the prosecution has nothing to rebut.
The question of raising an adverse inference for a failure to call them
therefore does not arise.(vii) Showing Of Police Statement To A Witness In The Course Of His Cross-examinationI had allowed the prosecution to show MaAmin parts of his police statement when he was being cross-examined.
In submitting that I was wrong in doing so the defence said:It
is respectfully submitted that Your Lordship erred in allowing the
prosecution, despite the defence objection, to show DW9 his s. 112
statement and to be cross-examined on it.
It is submitted that the
contents of s. 112 statements are inadmissible in evidence.
The prosecution cannot be allowed to adduce the contents of s. 112
statements indirectly under the guise of cross-examination.
The only manner in which a s. 112 statement and its contents can be
brought in on record is and only if impeachment proceedings under s. 155
of Evidence Act 1950 is undertaken.
There was no attempt by the prosecution to institute impeachment
proceedings.
As such the usage of s. 145 of Evidence Act to show the contents to the
Honourable Court and cross-examination of a witness thereon without
applying to impeach is wrong in law.
It is an indirect way to admit the contents of s. 112 statement as
evidence.
In this regard we would like to point out that the
attempt by the defence to cross-examine Ummi (PW17) by her statement on
tape recording was denied.
We submit that s. 145 is a step towards impeachment under s. 155 and
unless an application for impeachment is intended or made s. 145 cannot
be utilised.
The first observation that I would like to
make is that the comparison made to the rejection of the application to
cross-examine Ummi on certain taped conversation is totally
unmerited.The application was rejected for different reasons.The
episode relating to the showing of the police statement to MaAmin
started this way.
On 2 March 1999 when MaAmin was being cross-examined the prosecution
made an attempt to refer him to his police statement.
The defence objected. I upheld the objection because s. 145(1) of the
Evidence Act 1950 clearly states that a witness may be cross-examined as
to previous statements made by him in writing or reduced into writing,
and relevant to matters in question to the suit or proceeding in which
he is cross-examined, without the writing being shown to him or being
proved.
On 3 March 1999 when the prosecution asked MaAmin whether he wished to
see his police statement I reminded the prosecution of the ruling that I
had made the previous day.
The prosecution gave an explanation for asking MaAmin the question with
which I did not agree.
The proceeding then took this course:DPP
now says that he wishes to show witness the statement with the object
of finding the truth and giving him a chance of explaining the
discrepancies in the interest of justice under s. 145(1) of Evidence Act
1950.
Hj Sulaiman We have had a look at Moomin's case.
Prosecution must say that they are going to contradict the witness.
defence has no objection if court and defence have sight of the relevant
part of the statement.
Dato' Gani Prosecution proposes to show two parts to witness.
Court
Copy of relevant parts to be shown to court in order to determine
whether they are relevant. (Court adjourns for a while to read the
material parts of the statement.)
Court Does the defence wish to see the statement?
En Bachan Yes.
(Document shown to defence.
Document to be marked as P130.)
En Bachan Concede that as contended by DPP there is a discrepancy but it is minor and not relevant.
Court It is relevant and is a major inconsistency. DPP to proceed.
The
relevant parts of the police statement were then shown to MaAmin.
After MaAmin gave an explanation on the inconsistency between his
evidence in court and what he had stated in his police statement the
learned Senior Deputy Public Prosecutor said that he did not wish to go
further into the issue.Thus the matter ended at that stage.The
extract from my notes of evidence which I have reproduced shows in
unmistakable and crystalline terms that the police statement was shown
to MaAmin with the full consent and knowledge of, and, with
participation by the defence.
To now argue that the court allowed the statement to be shown to the
witness "205 despite the defence objection 205" is a misrepresentation
of what transpired in court.
Even if the defence is referring, due to an oversight, to the first
occasion when objection was raised to the statement being shown to
MaAmin there is absolutely no justification for doing so as the
objection raised was upheld.
It is perhaps appropriate for
me to state that submissions made by counsel must be reflective of what
actually transpired in court.Be that as it may, I do not
see anything wrong with the procedure adopted by the prosecution in
showing the statement to the witness.
The prosecution, as intimated to the court, was proceeding in accordance
with s. 145(1) of the Evidence Act 1950.
The statement was shown to the witness pursuant to the second part of
the sub-section which states that: 205 but, if it is intended to
contradict him by the writing, his attention must, before the writing
can be proved, be called to those parts of it which are to be used for
the purpose of contradicting him.
The words "205 which are
to be used for the purpose of contradicting him" mean that before the
process of contradiction takes place the statement may be shown to the
witness.As Sarkar on Evidence 14th edn. vol. II says at p. 2035:The
object is to give him a chance of explaining the discrepancy or
inconsistency and to clear up the particular point of ambiguity or
dispute.
That is precisely what the prosecution did.
After MaAmin gave an explanation the prosecution decided not to proceed
any further.In the circumstances the objection raised by the defence has
absolutely no merit.Principles Governing The Conduct Of A defenceBefore
I embark on a consideration of the whole of the evidence in order to
decide whether the prosecution has proved its case beyond reasonable
doubt I consider it necessary to refer to some principles governing the
conduct of a defence.If the accused intends to suggest
that a prosecution witness is not speaking the truth on a particular
point the witness's attention must be directed to that fact in
cross-examination.
In support I can do no better than refer to the words of Lord Chancellor Herschell in Browne v. Dunn [1893] 6 R 69 where his Lordship said at p. 70:Now,
My Lords, I cannot help saying that it seems to me to be absolutely
essential to the proper conduct of a cause where it is intended to
suggest that a witness is not speaking the truth on a particular point,
to direct his attention to the fact, by some questions put in
cross-examination showing that that imputation is intended to be made,
and not to take his evidence and pass it by as a matter altogether
unchallenged and then, when it is impossible for him to explain, as
perhaps he might have been to do if such questions had been put to him,
the circumstances which it is suggested indicate that the story he tells
ought not to be believed, to argue that he is a witness unworthy of
credit.
My Lords, I have always understood that if you intend to impeach a
witness you are bound, whilst he is in the box, to give him an
opportunity of making any explanation which is open to him, and, as it
seems to me, that is not only a rule of professional practice in the
conduct of a case, but is essential to fair play and fair dealing with
witnesses.
The effect of a failure to cross-examine a
witness on a material point was lucidly explained by Raja Azlan Shah CJ
(Malaya) (as His Highness then was) in speaking for the Federal Court in
Wong Swee Chin v. PP [1981] 1 MLJ 212 at p. 213 in the following
terse words: Mr Jagjit Singh also raised as one of his main grounds of
appeal that the trial judge erred in law when he held that the failure
of the defence to cross-examine the two prosecution witnesses on the
ammunition actually found in the trouser pockets of the appellant at the
time of his arrest (the subject-matter of the trial charge) consituted a
clear admission of the charge of possession by the appellant.
We consider that statement of the law as a misdirection. A correct
statement of the law is that failure of the defence to cross-examine the
prosecution witnesses on the matter merely goes to the credibility of
their testimony, to wit, the fact that they found the ammunition in the
appellant's trouser pockets remains unshaken.
On this point we need only say there is a general rule that failure to
cross-examine a witness on a crucial part of the case will amount to an
acceptance of the witness's testimony.
But as is common with all general rules there are also exceptions as
pointed out in the judgment of the Supreme Court of New Zealand in Transport Ministry v. Garry [1973] 1 NZLR 120 where Haslam J said at page 122:In Phipson on Evidence
11th edition paragraph 1544 the learned authors suggest examples by way
of exception to the general principle that failure to cross-examine
will amount to an acceptance of the witness's testimony, viz, where
205
the story is itself of an incredible or romancing character, orthe
abstention arises from mere motives of delicacy 205 or whencounsel
indicates that he is merely abstaining for convenience,e.g., to save
time.
And where several witnesses are called to thesame point it is not always
necessary to cross-examine them all.The
nature of the defence is to be ascertained not only from the evidence of
the accused himself but also from the trend of the cross-examination of
the prosecution witnesses and from the arguments of the accused's
counsel at the close of the trial (see Kuli and Ors v. Emperor
AIR [1930] Cal 442). It is therefore important for the accused to put
his essential and material case to the prosecution witnesses in
cross-examination.This is a principle of essential justice and was neatly stated by Mukhrji J in AEG Carapiet v. AY Derderian AIR [1961] in the following terms:The
law is clear on the subject.
Wherever the opponent has declined to avail himself of the opportunity
to put his essential and material case in crossexamination, it must
follow that he believed that the testimony given could not be disputed
at all.
It is wrong to think that this is merely a technical rule of evidence.
It is a rule of essential justice.
It serves to prevent surprise at trial and miscarriage of justice,
because it gives notice to the other side of the actual case that is
going to be made when the turn of the party on whose behalf the
cross-examination is being made comes to give and lead evidence by
producing witnesses.
It has been stated on high authority of the House of Lords that this
much a counsel is bound to do when cross-examining that he must put to
each of his opponent's witnesses in turn, so much of his own case as
concerns that particular witness or in which that witness had any share.
If he asks no question with regard to this, then he must be taken to
accept the plaintiff's account in its entirety.
Such failure leads to miscarriage of justice, first by springing
surprise upon the party when he has finished the evidence of his
witnesses and when he has no further chance to meet the new case made
which was never put and secondly, because such subsequent testimony has
no chance of being tested and corroborated.
On the effect of a failure by the defence to put its case to the prosecution witnesses useful reference may be made to Alcontara a/l Ambross Anthony v. PP [1996] 1 MLJ 209 where Edgar Joseph Jr FCJ said at p. 218:Speaking
generally, in a criminal trial, the whole point and purpose of the
defence having to put its case to such of the prosecution witnesses as
might be in a position to admit or deny it, is to enable the prosecution
to check on whether an accused's version of the facts is true or false,
and thus avoid the adverse comment, that the defence is a recent
invention - in other words, 'kept up its sleeve', as it were - and
revealed for the first time when the accused makes his defence from the
witness box or the dock, thus detracting from the weight to be accorded
to the defence.
However, failure on the part of the defence, as aforesaid, can never, by
itself, relieve the prosecution of its duties of establishing the
charge against the accused beyond reasonable doubt.
205 it is
settled law that, although a court may view with suspicion a defence
which has not been put to the appropriate prosecution witnesses who
might have personal knowledge of the points at issue, the court is still
bound to consider the defence, however weak, and to acquit if not
satisfied that the prosecution has discharged the burden of proof which
tests upon it.
The position is, however, different when the new defence raised could not have been raised at an earlier stage (see Emperor v. Kameshwan Lal & Ors. AIR [1933] Pat 481).Reassessment Of Credibility Of Witnesses For The ProsecutionI
have already dealt with the credibility of the prosecution witnesses at
the close of the case for the prosecution. A reassessment of their
'credibility and the credibility of the defence witnesses on the whole
of the evidence adduced is to a large extent interwoven with the defence
evidence advanced.
This will become apparent when I consider whether the prosecution has
proved its case against the accused beyond reasonable doubt.
However, the credibility of Ummi and Azizan requires immediate
consideration in the light of certain evidence that was adduced.
Ummi
The defence called evidence in an attempt to show that Ummi affirmed
exh. D90 voluntarily.
If successfully proved this will have a bearing on the credibility of
Ummi.
It will be recalled that she said in her evidence that the exhibit was
prepared by a lawyer called Yeoh and that she was pressured by her
brother Azmin through Dato' Sng Chee Hua to affirm it. In order to
establish the voluntariness of this exhibit the relevant evidence
adduced by the defence is that of Azmin, Nor Azman and Ngui Kee Heong.
Dato' Sng Chee Hua was not called as a witness.Neither was lawyer Yeoh
called on the ground as stated by the defence:We were
proposing to call lawyer Yeoh Chong Keong who was the lawyer involved in
the preparation of D90. In view of Court's ruling under ss. 126 and 127
of Evidence Act concerning professional privilege we are unable to call
him for the same reasons.
Azmin said that he met Ummi on 30 June 1998.On being asked whether she mentioned exh. D90 at this meeting he said:Ummi
ada menyebut kepada saya bahawa kalau saya tidak percaya dengan
pengakuan-pengakuan beliau selama dua kali bahawa beliau tidak menulis
surat berkenaan maka bolehlah saya rujuk kepada surat akuan sumpah (D90)
yang telah dibuat oleh beliau beberapa hari sebelum perjumpaan dengan
saya.
He was then asked:Question: Did Ummi show you D90? Answer: Ya.
His further evidence on this issue runs as follows:Question: Did you have anything whatsoever to do with D90?
Answer:
Tidak sama sekali kerana semenjak surat disebar pada Ogos, 1997 inilah
kali pertama, iaitu 26.6.98, saya berjumpa dengan dia.
Question: Did you use any influence or did you put any pressure on her to prepare D90 through Dato' Sng?
Answer: Again I would like to repeat that she is a compulsive liar.
Question: Did you or did you not?
Answer: Saya tidak mendesak Ummi.
Question: Adakah kamu mendesak Ummi melalui Dato' Sng?
Answer: Saya tidak mendesak Ummi melalui sesiapa pun.
Question: Do you know the lawyer who prepared D90?
Answer: Tidak.
Question: Did you accompany Ummi to whoever prepared this statutory declaration?
Answer: Tidak.
In
cross-examination Azmin denied that his evidence relating to exh. P14
and the fact that Ummi told him that she did not write it are not true.
Nor Azman said that he drove Ummi to the office of lawyer Yeoh at her
request.
She had wanted to appoint the lawyer as her solicitor.
He did not know the purpose for which she appointed him.
He did not see anybody pressurising Ummi in the office of the lawyer.
Nor did she appear to be pressurised.
When learned counsel began to question Nor Azman on exh. D90 I informed
him that the line of questioning may infringe s. 126 of the Evidence Act
1950 as Nor Azman was in the position of an agent of Ummi.In saying that I had in mind Wheeler v. Le Merchant 17 Ch D 675 where Jessel MR said:The
actual communication to the solicitor is of course protected whether it
is made by the client in person or is made by an agent on behalf of the
client 205
Learned counsel merely said that s. 126 does
not apply as Nor Azman was not an agent or clerk of the solicitor.
As he did not convince me that Nor Azman was not the agent of Ummi or
that any evidence that was sought to be elicited from the witness
related to any communication made by him to the solicitor with regard to
exh. D90 I disallowed the line of questioning.
Ngui Kee Heong was the Commissioner for Oaths before whom exh. D90 was
affirmed by Ummi.
On 23 June 1998 he went to the office of Dato' Sng Chee Hua at the
request of the secretary to the latter.
When he arrived there exh. D90 was in the midst of being drafted by
lawyer Yeoh Cheong Keng in Dato' Sng Chee Hua's room.
Ngui Kee Heong had to wait for about 20 - 30 minutes for it to be
prepared.
Ummi was also present there.
Exhibit D90 was then affirmed and attested.
He said that Ummi signed it after she had read it and was satisfied.He said that she affirmed the exhibit willingly and voluntarily.As
I said in an earlier part of the judgment the burden is on the defence
to establish that exh. D90, an exhibit tendered by the defence, was
affirmed voluntarily by Ummi in the light of her evidence that she was
pressurised into affirming it. The first observation to be made on the
evidence led by the defence is that the exhibit came into existence
under very strange circumstances.
It was executed in the office of Dato' Sng Chee Hua. It was prepared by
the solicitor, not in his office, but in the office of Dato' Sng Chee
Hua. Ngui Kee Heong was summoned there to attest it. This lends weight
to
Ummi's evidence that she was pressurised to affirm the
exhibit.
The defence did not adduce any evidence of what transpired between Ummi
and Dato' Sng Chee Hua in the latter's office when exh. D90 was
affirmed.
This is very significant as it is her contention that it was Dato' Sng
Chee Hua who communicated Azmin's pressure to her.
Dato' Sng Chee Hua is therefore a material witness who ought to have
been called by the defence.
If he had been called he would have thrown light on Ummi's allegations.
However, he was not called as a witness even though the defence had
accepted him when he was made available by the prosecution.
The general rule is that s. 114(g) of the Evidence Act 1950 does not
operate against the defence but where there is an onus on it, as in this
instance, to prove an issue the presumption may be invoked (see Baharom v. PP [1960] MLJ 249, Choo Chang Teik v. PP
[1991] 3 CLJ 2387; [1991] 3 MLJ 423). I therefore hold that an adverse
inference should be drawn against the defence for its failure to call
Dato' Sng Chee Hua as its witness in order to prove the voluntariness of
exh. D90. The evidence of Ngui Kee Heong to the effect that Ummi
affirmed the exhibit willingly and voluntarily does not carry much
weight as he would not know what preceded her affirmation of the
exhibit.
The evidence of Azmin on this issue is in two parts.
The first is his evidence of what Ummi allegedly told him on 30 June
1998.
This was not put to Ummi when she was being crossexamined neither was
she re-called for that purpose.
In such circumstances the evidence of Dato' Sng Chee Hua, if adduced,
and found to be favourable, would have been of assistance to the
defence.
Thus I am unable to give any weight to this part of the evidence of
Azmin.
The second is his evidence that he did not use any influence or pressure
on Ummi to prepare exh. D90 through Dato' Sng Chee Hua. As I said
earlier Dato' Sng Chee Hua ought to have been called to explain this
allegation as he was the one who was supposed to have conveyed it to
Ummi.
In view of the adverse inference that I have drawn against the defence
for the failure to call him as a witness I am unable to give any weight
to this part of Azmin's evidence also.In the
premises it is my view that the defence has not established, on a
balance of probabilities, that exh. D90 was affirmed by Ummi
voluntarily.Ummi had, when under
cross-examination, denied that she had sent a letter to YAB Prime
Minister prior to exh. P14A, B and C. With regard to this alleged letter
the accused said in his evidence:P14 was the first time
that Ummi made allegations against me. I was handed another letter of
allegations.
The allegations in that letter were shorter and milder.
Part of the allegations was against Ummi's brother Azmin for him not
helping her. I read that letter.
It was handed to me by the PM. He told me to read it and to destroy it
205 I brought the letter to my office, read it and because Azmin is
Ummi's brother I confided in him. I asked him to shred the letter after
reading it. He told me that he had shredded it.
The accused's evidence does not show that the letter given to him by YAB Prime Minister was written by Ummi.
In fact he has clearly stated that exh. P14 was the first time that Ummi had made allegations against him.However, in a later part of his evidence he said:Prior to P14 in July 1997 I received a letter purportedly written by Ummi 205
Despite the change in evidence it remains as a letter "purportedly" written by Ummi and not one actually written by her.
It will therefore be observed that the accused has not said that the letter was written by Ummi.Learned counsel himself referred to it as being "purportedly" written by Ummi when he examined Azmin on the issue by asking:Are you aware of a letter purportedly written by Ummi to the Prime Minister in 1997?
There
is therefore no justification for Azmin to say it is Ummi's letter when
he said that it was her letter to YAB Prime Minister containing
allegations against the accused.
Thus I find this part of Azmin's evidence to be not credible.In
such circumstances the failure by the prosecution to cross-examine him
on this part of his evidence does not amount to an acceptance of it.
Accordingly, I am unable to accept Azmin's evidence that it was Ummi's
letter and hold that she did not write any letter to YAB Prime Minister
prior to exh. P14A, B and C.The result is that
Ummi's credit has not been affected in any way, particularly by the
evidence of Azmin, on the issues under consideration.Azizan
Azizan said that he was pressured into affirming exh. D55. I have set
out in some detail his evidence on this issue in an earlier part of the
judgment.
He had testified that he was pressured into affirming the exhibit by
Rahim King and MaAmin. I have ruled as irrelevant his complaint against
Sukdev Singh.
What requires scrutiny is the testimony of Azizan that he did not
appoint Sukdev Singh as his solicitor for the preparation of exh. D55
while the latter said otherwise.
In my opinion what appears to be a contradiction is not really so
bearing in mind the circumstances in which Sukdev Singh was appointed. I
shall advert to this issue later.
In an attempt to show that exh. D55 was affirmed voluntarily the defence
called MaAmin, Sukdev Singh and Ngui Kee Heong.
Rahim King was not called.In his examination-in-chief MaAmin said that Azizan and he were like brothers.
In the first week of July 1998 Azizan asked him to follow him to the office of a lawyer.
The lawyer is a Sikh.
He had followed Azizan to the lawyer's office only once.
He had not met the lawyer prior to that.
He followed Azizan into the
lawyer's office.
Azizan and the lawyer had a conversation and he did not give any
instructions to the lawyer on behalf of Azizan.
The accused did not at anytime ask him to see or influence Azizan in any
way.
He also did not threaten Azizan.
If this was the only evidence of MaAmin I would have had little
difficulty in rejecting Azizan's evidence on the circumstances in which
he affirmed exh. D55. But that was not to be. Contrary to his earlier
evidence that he followed Azizan to the lawyer's office only once MaAmin
narrated another instance when he went to the lawyer's office in a
later part of his examination-in-chief.
Worse was to come.
In cross-examination he said that he had been to the lawyer's office
three to four times.
He then said that in early July 1998 Rahim King, a friend of his, asked
him to come to Restaurant Tom Yam in Kuala Lumpur.
There Rahim King introduced him to Azizan.
That was the first time he met Azizan.
MaAmin said that Rahim King gave him a small sum of money for keeping an
eye on Azizan.
After the meeting the three of them went to the Sikh lawyer's office.
In the lawyer's office Rahim King and Azizan conversed with the lawyer
in English.With regard to the connection between
the statutory declaration affirmed by Azizan and Rahim King the
cross-examination of MaAmin runs as follows:Question: Adakah kamu tahu bahawa En Rahim King ada menyuruh Azizan membuat satu surat akuan sumpah?
Answer: Tidak tahu.
Question:
Saya mengatakan kepada kamu bahawa kamu tahu bahawa Rahim King ada
menyuruh Azizan membuat satu surat akuan, betul atau tidak?
Answer: Saya tidak tahu dan tidak pasti kerana saya melihat Azizan dan Rahim King bercakap sahaja.
Question:
Selain daripada waktu itu pada masa-masa yang lain adakah kamu tahu
Rahim King telah menyuruh Azizan membuat satu surat akuan sumpah?
Answer: Tahu.
Question: Pada bila masa yang kamu tahu bahawa En Rahim King telah menyuruh En Azizan membuat satu surat akuan sumpah?
Answer: Tarikhnya saya sudah lupa.
Tempatnya ialah di verandah rumah Rahim King.
Itu pun mereka berdua sahaja yang bercerita.
Yang saya melihat dari jarak sedikit daripada mereka berdua.
Hanya saya melihat Azizan memegang sekeping kertas dan mereka berbual di dalam Bahasa Inggeris.
Saya juga tidak dapat dipastikan bahawa itu adalah surat yang dikatakan.
MaAmin was cross-examined on several telephone conversations between him and Rahim King.
As a result of a telephone call from Rahim King at the end of July 1998 MaAmin made several attempts to contact Azizan.
He managed to contact Azizan in his office in Alor Gajah.
Azizan seemed to know why MaAmin came to see him.
Azizan was angry.MaAmin was not re-examined on most of the evidence he gave in cross-examination.It
is my view that Azizan became a client of Sukdev Singh through the
introduction of Rahim King.
This is evident from the fact that it was Rahim King who took Azizan to
the lawyer's office.
MaAmin was aware that Rahim King had asked Azizan to prepare a statutory
declaration though he was not sure whether the paper that Azizan was
holding in Rahim King's house on a particular occasion was the document.
The logical and reasonable inference to be drawn from these
circumstances is that Rahim King was the person behind the preparation
of the statutory declaration and had asked Sukdev Singh to prepare it
for Azizan.
To that extent Sukdev Singh is right when he said that Azizan was his
client.
Azizan is also right when he said that he did not appoint the solicitor
in view of the fact that it was Rahim King who took him to the
solicitor's office coupled with the fact that it was Rahim King who was
behind the preparation of the statutory declaration.
Be that as it may, the evidence of MaAmin given in cross-examination
synchronises with the evidence of Azizan with regard to the pressure
exerted on him by Rahim King and MaAmin to affirm exh. D55. My first
observation is that I do not accept MaAmin's evidence that he and Azizan
were like brothers.
MaAmin was keeping an eye on Azizan for a certain purpose.
He was paid money by Rahim King to keep an eye on Azizan.
This is not what brothers do to each other.
Thus the evidence of MaAmin on the voluntariness of exh. D55 is
suspicious.
It becomes clear when the circumsances in which it was prepared are
considered.
The key player behind the preparation of exh. D55 was Rahim King.
He kept in touch with MaAmin to ensure that Azizan goes to the lawyer's
office.
He had a hand in the affirmation of the statutory declaration by Azizan.
This is made evident by the connection between Rahim King and the
statutory declaration as testified by MaAmin.
In view of the material role played by Rahim King the defence ought to
have called him as a witness to explain the evidence of MaAmin.
The failure to do so compels me to draw an adverse inference against the
defence on the issue of establishing whether exh. D55 was affirmed
voluntarily.
Ngui Kee Heong's evidence is of no assistance in making a ruling on this
issue as he would not know the events that led to the affirmation of
exh. D55. In any event the role played by Rahim King and MaAmin are
consistent with the evidence of Azizan that he was pressured by them to
affirm exh. D55. In the circumstances it is my finding that the defence
has not established, on a balance of probabilities, that exh. D55 was
affirmed by Azizan voluntarily.
As I said in an earlier
part of the judgment exhs. D55 and D90 were tendered in evidence by the
defence in mysterious circumstances.
That leads to an inquiry into the identification of the person who was
behind the preparation of these exhibits.
The evidence of Mohd Faiz reveals that he was acting for the accused in a
defamation suit over the publication of Buku 50 Dalil at about the same
time the exhibits were affirmed.
Mohd Faiz had a meeting with Azizan and Sukdev Singh.
Sukdev Singh is the solicitor who prepared exh. D55. The inference to be
drawn from these facts is that Mohd Faiz would have had an interest in a
document like D55 in the preparation of the suit for his client, the
accused.This must be read with the evidence of Azizan in
cross-examination when he said:Rahim King dan MaAmin adalah kawan tertuduh dan bukan kawan saya.
And later:Saya
telah dipaksa untuk menandatangani IDD54 setelah sering dihubungi oleh
MaAmin, Rahim King kerana mereka adalah orang-orang suruhan tertuduh.
It
is therefore clear that Rahim King and MaAmin were friends and
"orangorang suruhan" of the accused.
The further inference to be drawn from the circumstances of the case,
that is to say, that the accused was preparing a defamation suit in
respect of Buku 50 Dalil; that Buku 50 Dalil contained a reproduction of
exhs. P14B and C; that Rahim King and MaAmin were friends and
"orang-orang suruhan" of the accused; the part played by Rahim King and
MaAmin in getting Azizan to affirm exh. D55; that Mohd Faiz was acting
for the accused in the defamation suit and that he had a meeting with
Azizan and Sukdev Singh and the fact that the originals of exhs. D55 and
D90 were in the possession of the defence, is that the person who
wanted the statutory declarations was none other than the accused
himself for use in the defamation suit.This
finding is necessary in order to determine whether it was the accused
who wanted to see Azizan or whether it was the other way round when they
had a conversation on Buku 50 Dalil in June 1998.Azizan
said that it was the accused who wanted to see him through ASP Zull
Aznam in June 1998.
The accused said that it was Azizan who wanted to see him.The defence
sought to support this part of the evidence of the accused through ASP
Zull Aznam, Mohamed bin Ahmad and Abdullah Sani bin Said ("Abdullah
Sani"). With regard to the supporting evidence of ASP Zull Aznam on this
issue the answer of what was put to Azizan in cross-examination is
this:
Saya tidak bersetuju bahawa sebenarnya sayalah yang
menghubungi ASP Zull Aznam kerana saya hendak berjumpa tertuduh
berkenaan satu hal peribadi.
ASP Zull Aznam said that in
June 1998 he was informed by Abdullah Sani that Azizan had contacted him
to get an appointment to see the accused. ASP Zull Aznam conveyed this
message to the accused who reluctantly agreed to see Azizan.When asked whether Azizan came to see the accused ASP Zull Aznam said:Setelah
dipersetujui oleh Dato' Seri Anwar saya telah meminta Abdullah Sani
untuk menghubungi Azizan dan seterusnya menetapkan tarikh, waktu dan
tempat pertemuan tersebut.
This shows that there is a
shift from what was put to Azizan which was that it was Azizan who
contacted ASP Zull Aznam.
On the other hand ASP Zull Aznam said that Azizan approached him through
Abdullah Sani and that he had told Abdullah Sani to contact Azizan
after the accused had agreed to see him.What Abdullah Sani said on this issue is of interest and it is this:Dalam bulan June 1998 Azizan ada menghubungi saya melalui telefon.
Dia memberitahu saya bahawa dia hendak berjumpa dengan Dato' Seri Anwar.
Azizan menelefon saya di rumah saya.
Azizan berkata dia hendak berjumpa dengan Dato' Seri.
Azizan berkata dia ada masalah sedikit.
Dia tidak memberitahu masalahnya.
Azizan menelefon saya kerana dia kenal dengan saya.
Saya menyuruh Azizan menghubungi Zull Aznam.
Saya tidak tahu sama ada Azizan ada menghubungi Zull Aznam.
Saya ada memberitahu ASP Zull Aznam berkenaan dengan permintaan Azizan.
Saya tidak tahu sama ada Azizan ada datang berjumpa dengan Dato' Seri selepas itu.
Thus
after Abdullah Sani had informed ASP Zull Aznam about the request of
Azizan to meet the accused he did not know what happened thereafter.
His evidence does not show that ASP Zull Aznam asked him to contact
Azizan after the accused had agreed to see him.
This contradicts the evidence of ASP Zull Aznam.
With regard to the evidence of Mohamed bin Ahmad Azizan had agreed in
cross-examination by the defence that he had met this person in relation
to a contract for one of his friends.
The testimony of Mohamed bin Ahmad that Azizan had told him that he
wanted to see the accused at that meeting was not put to Azizan in his
cross-examination.
Mohamed bin Ahmad's evidence therefore loses its value.
In the circumstances, I am unable to accept the evidence of these
supporting witnesses by virtue of matters not being put to them and the
contradictions amongst themselves. I am also unable to accept the
accused's evidence on this issue.
He said in his evidence that Azizan contacted ASP Zull Aznam and
Abdullah Sani to see him on some business matters.
When he agreed to meet Azizan he had made it clear that there should be
no discussion on business matters.
If no business matters could be discussed I am unable to comprehend why
the accused agreed to see him given the allegations made by Azizan
against him.
It must be remembered that at that point of time the allegations made in
1997 had re-surfaced as part of Buku 50 Dalil.
Reports had been made on the book.
Upon a consideration of the timing of the meeting between Azizan and the
accused, the unsatisfactory evidence of the supporting witnesses on
this issue and the circumstances of the case it is my firm finding of
fact that it was the accused who wanted to meet Azizan.
With regard to the meeting between the accused and Azizan on 18 August
1997 it is also my finding that it was the accused who wanted to see
Azizan.
My finding is based on the circumstances of the case and two other
reasons.
Firstly, Azizan would not have volunteered to see the accused in view of
his mental and physical condition at that time.Secondly,
if in fact the conversation that took place at the meeting was as
described by the accused I do not see why Azizan should write exh. P17
just prior to the meeting with such great reluctance.The result is that the credibility of Azizan has not been affected by the defence evidence that I have referred to.Whether The Prosecution Has Proved Its Case Against The Accused Beyond Reasonable Doubt On All The Evidence AdducedI
shall approach this part of the judgment on the same basis that I did
at the close of the case for the prosecution by specific reference to
the ingredients to be proved.(a) Member Of The AdministrationThe prima facie
evidence adduced by the prosecution to show that the accused was a
Member of the administration, to wit, Deputy Prime Minister and Minister
of Finance at the material time was not disputed by the defence.
As
a matter of fact the accused himself said in his evidence that he was
the Minister of Finance from 1991 and Deputy Prime Minister from 1993
and that he held both the posts till his dismissal on 2 September 1998.Thus
the prosecution has proved beyond reasonable doubt that the accused was
Deputy Prime Minister and Minister of Finance and, thus, a Member of
the administration at the material time within the meaning of s. 2(2) of
Ordinance No 22.(b) While Being Such Member Commits A Corrupt PracticeAs I said earlier this ingredient involves proof of two elements by the prosecution.
They are:(i) the manner in which the accused used his position, and(ii) the advantage that he obtained.
As
I have referred to the evidence adduced at the end of the case for the
prosecution with regard to this ingredient earlier I do not think it
necessary to reproduce it here. I shall now consider the evidence
adduced by the defence so as to decide, on the whole of the evidence,
whether the prosecution has proved this ingredient beyond reasonable
doubt. I shall do so by reference to the two elements separately.(i) The Manner In Which The Accused Used His PositionAs
I did at the close of the case for the prosecution I shall consider the
evidence relating to the manner in which the accused used his position
in relation to all four charges together under the following
sub-headings:(1) Whether Azizan And Ummi Made The Allegations Against The AccusedThe
accused, in his evidence, did not challenge the fact that the
allegations in exh. P14B and C were made by Ummi and Azizan.
He said that exh. P14 was the first time that Ummi had made allegations
against him.
He said that when exh. P16 was lodged there was no suggestion by him nor
Dato' Mohd Said or Dato' Amir Junus for the arrest of Ummi and Azizan.
When they were arrested the accused was concerned that they should not
be detained for long.
He said that he also told Dato' Mohd Said and Dato' Amir Junus to
"gempar" Ummi and Azizan "sikit-sikit cukuplah". On 17 August 1997 Dato'
Mohd Said and Dato' Amir Junus informed the accused of the arrest of
Ummi and Azizan.
On the following night the accused was informed by Dato' Mohd Said and Dato' Amir Junus:205 that Azizan had regretted what he did, retracted the letter and wanted to apologise.
Ummi, on the other hand, although she had also retracted the letter but did not suggest or propose to see me.
On
the night of 18 August 1997 Dato' Mohd Said and Dato' Amir Junus handed
over exhs. P17 and P18, the written statements of Ummi and Azizan, to
the accused.
By 27 August 1997 exh. P14A, B and C had become public knowledge.
On that day Dato' Mohd Said and Dato' Amir Junus came to see him.As he said:They
considered several options, that is, either to suggest that Azizan and
Ummi speak directly to the media or come up with a public statement. I
had to remind them that because of the Prime Minister's suggestion that I
should completely ignore the issue of the allegations so I had to leave
it to PW1 and PW11.
On 29 August 1997 exhs. P20 and P22,
the public statements of Ummi and Azizan, and exh. P21, the covering
letter of Ummi, were handed to the accused.
Azmin said that these letters were handed to him by the accused to affix
the Received Rubber Stamp on them. I pause to add that the accused did
not say in his evidence that the allegations were not made by Ummi and
Azizan.
Thus his own evidence shows that he has accepted the fact that exh. P14B
and C were allegations made by Ummi and Azizan respectively.
The fact that Azizan signed exh. P14C was not challenged by the defence
in its case.
My finding that exhs. D55 and D90 were not voluntarily affirmed
precludes me from giving any weight to these exhibits.Thus
they do not affect the evidence of Ummi and Azizan on exh. P14B and C
in any way. I must add that on the evidence adduced, particularly the
unchallenged evidence of Ummi on exhs. P38A - V and P35, there can be no
dispute that the draft for exh. P14A, B and C were not prepared by
Dato' Seri Megat Junid but by none other than Ummi herself.Be
that as it may, the defence attempted to lead another line of evidence
through Azmin to show that exh. P14 was not written by Ummi.
This is what Azmin said in answer to questions:Question: What did Ummi tell you on 26.6.1998 about P14?
Answer: Pada 26.6.1998 Ummi memberitahu saya bahawa beliau tidak menulis surat berkenaan.
Question: Where did she utter these words?
Answer: Di rumah abang saya Mohd Azman.
Question: That was the first time she brought this to your attention?
Answer: Ya.
Question: Did you have a subsequent meeting with her?
Answer: Saya bertemu dengan Ummi sekali lagi pada 30.6.1998 jam 1.20 petang.
Question: Where did you meet her?
Answer: Di pejabat Dato' Sng Chee Hua.
Question: Did she repeat what she told you earlier?
Answer: Dalam pertemuan berkenaan Ummi sekali lagi menegaskan bahawa beliau tidak menulis surat berkenaan.
Question: How did she come about saying this a second time?
Answer:
Walaupun Ummi telah memberi pengakuan bahawa beliau tidak menulis surat
berkenaan pada 26.6.1998 saya terpaksa bertanya beliau sekali lagi
kerana saya mengenali beliau yang selalu berbohong semasa bercakap.
Question: What did you ask her to prompt her to come up with this statement?
Answer:
Saya bertanya kepada Ummi mengapa beliau sanggup melemparkan fitnah
yang kejam terhadap saya dan keluarga serta Saudara Anwar sedemikian
beliau sendiri tahu bahawa tuduhan-tuduhannya tidak berasas dan boleh
meruntuhkan rumahtangga.
Question: What was her reply?
Answer:
Beliau sekali lagi menegaskan beliau tidak menulis surat itu.
Maka saya bertanya kepada beliau kalau beliau tidak menulis surat ini
apakah peranannya? Pada saat ini Ummi menjawab that she was promised
money and projects to fabricate evidence. 205
Question: As regards P14 did Ummi tell you who drafted that letter?
Answer:
Ummi memberitahu saya bahawa surat berkenaan didrafkan oleh Dato' Megat
Junid.
Beliau juga memberitahu saya sekiranya saya bercadang untuk mengambil
tindakan undang-undang saya patut mengambil tindakan terhadap Dato'
Megat Junid kerana beliau adalah dalang di belakang surat berkenaan.
If
the object of the defence is to show, by the introduction of this
evidence, that Ummi is not the writer of exh. P14A, B and C then it is
inconsistent with the evidence of the accused.
In any event I shall consider the value of this evidence.
The first observation to be made is that the conversation between Azmin
and Ummi that allegedly took place on 26 June 1998 and 30 June 1998
ought to have been put to Ummi in her cross-examination.
She was questioned about the meeting between her and Azmin on 26 June
1998.
But it was not put to her that she did not write exh. P14A, B and C as
now testified by Azmin.
Instead she said that at that meeting she was asked to deny her
allegations.
No reference was made to her about the meeting of 30 June 1998.
As the conversation that allegedly took place on both the dates
regarding exh. P14A, B and C was not put to Ummi when she gave evidence
she ought to have been recalled by the defence for that purpose.
In the circumstances the alleged conversation as described by Azmin
becomes inadmissible on the principles laid down in Awadh v. State
of MP AIR [1956] SC 788.
In any event it becomes suspicious when viewed against the background of
the evidence of the accused himself on this issue and the prosecution
evidence which I have considered earlier showing that the allegations in
exh. P14B were made by Ummi.It is therefore
clear that the evidence of Azmin that Ummi told him that she did not
write exh. P14A, B and C is a recent invention.The
defence submission that there is serious doubt that exh. P14B was
prepared by Ummi as she did not sign it and that exh. P14A though
signed, is only a covering letter, has no merit. A proper reading of
exh. P14A will reveal that it refers to,inter alia, exh. P14B as being the report of Ummi.
Thus there is no
necessity for the report to be signed as
it is an enclosure to a signed letter.
The report therefore becomes that of Ummi's. With regard to exh. P14C
the defence contended that the signature on it ought to have been
verified by a document examiner to confirm the signature.
In my opinion it is not necessary to do so. Verification by a document
examiner is one mode of proving the signature.
The best method of proving a signature on a document is by evidence of
the person whose signature it is who had affixed the signature on it.
Azizan has confirmed that the signature on exh. P14C is his.
That evidence was not challenged.Thus there is no onus on the
prosecution to look for other modes of proof.It
is therefore my finding that the defence has not raised any reasonable
doubt, on the whole of the evidence adduced, that Ummi and Azizan made
the allegations. I therefore hold that this element has been proved
beyond reasonable doubt.(2) Whether The
Accused Directed Dato' Mohd Said And Dato' Amir Junus To Obtain From
Ummi And Azizan Written Statements Addressed To YAB Prime Minister And
Public Statements Denying The Allegations On The Dates Prescribed In The
Charges And That They Obtained The Statements As Directed.The
central theme of the defence case is that the accused only asked Dato'
Mohd Said and Dato' Amir Junus to investigate into the allegations
thoroughly and fully and that the written statements and public
statements were obtained by them on their own. I shall now refer to the
various features of the evidence adduced by the defence in order to
determine, on the whole of the evidence adduced, whether they have
raised a reasonable doubt in the prosecution case that the accused had
directed Dato' Mohd Said and Dato' Amir Junus to obtain the statements
which were obtained as directed.I shall first consider
the manner in which the accused came to know about exh. P14A, B and C,
the circumstances in which he first met Dato' Mohd Said alone regarding
this matter and later together with Dato' Amir Junus.
This is significant as it is these initial meetings that set the train
of events in motion. A proper appreciation of these facts will throw
light on the interest shown by the accused in the allegations against
him from the very beginning.
The accused said in his evidence that he met Dato' Mohd Said alone after
a scheduled meeting at his office on the morning of 11 August 1997 at
his request.
As the accused said:It was an
official meeting.
In this meeting PW1 came alone.
After the briefing I asked him to stay back and enquired from him
whether he was aware of P14. At that time I had been told of P14 but had
not seen it.
Dato' Mohd Said said that he was aware and that he will find out about it and give a briefing later.
He informed the accused that he would bring along Dato' Amir Junus with him.
That is what the accused said in his examinationin-chief.In cross-examination he said:Semasa pertemuan saya dengan SP1 pada 11.8.1997 saya bukanlah yang berbangkitkan isu P14.
This is what he said in his re-examination:When
I said in cross-examination 'semasa pertemuan saya dengan SP1 pada
11.8.1997 bukan saya mula bangkitkan isu P14' what I meant was, firstly,
the meeting on 11.8.1997 with SP1 and SP11 was after I received a call
from the IGP informing me about P14 and requesting SP1 and SP11 to see
me in order to brief me. Secondly, because the visit of SP1 and SP11 was
pre-arranged they immediately intimated to me about P14 on IGP's
instructions. (Counsel reminds witness that he is referring to the
meeting on the 11th morning and the question is confined to SP1 only.)
What I said just now refers to the meeting at night on 11.8.1997.
On the morning of 11.8.1997 I met SP1 alone after the other officers
left. SP11 was not there at that time. 205 SP1 stayed back after the
official meeting for a private chat.
But I did not bring up the issue of P14 because at that time I was
unaware of it. P14 was intimated to me only later by the IGP who
received the letter from Dato' Megat Junid.
The IGP intimated about P14 to me on the night of 11.8.1997.
That was when he suggested that SP1 and SP11 meet me in order to give a
briefing. 205 SP1 and SP11 were asked by the IGP to come and brief me.
He
has confirmed, after having been brought back from confusion by his
counsel, that he did not raise the issue of exh. P14A, B and C with
Dato' Mohd Said and that the IGP had asked Dato' Mohd Said and Dato'
Amir Junus to brief him.
This conflicts with what he said in his examination-inchief.
There are therefore internal inconsistencies within the evidence of the
accused on the way he met Dato' Mohd Said alone in the morning of the
11th; the conversation he had with Dato' Mohd Said regarding exh. P14A, B
and C at that meeting; the circumstances in which he first came to know
of exh. P14A, B and C and the manner in which he met Dato' Mohd Said
and Dato' Amir Junus at the next meeting, that is to say, that it was
the IGP who had asked them to meet him to give a briefing.
It is the case for the prosecution that on the 11th morning the accused
asked Dato' Mohd Said to look into a letter containing wild allegations
against him.
Then Dato' Mohd Said and Dato' Amir Junus met the accused at his
Official Residence the next day upon Dato' Amir Junus being informed by
ASP Zull Aznam that the accused wanted to meet them.
The accused's evidence was not put in crossexamination to Dato' Mohd
Said or Dato' Amir Junus.
The weight of the evidence of the accused therefore suffers as a result
of the internal inconsistencies in his evidence and such evidence not
having been put to Dato'Mohd Said and Dato' Amir Junus in their cross-examination by the defence.Further
defence evidence suggests that the matter goes beyond weight. ASP Zull
Aznam was asked this question in cross-examination:Pada
12.8.1997 lebih kurang 8.00 malam kamu ada membuat panggilan telefon
kepada Dato' Amir untuk menyampaikan pesan bahawa Dato' Seri Anwar ingin
bertemu dengan Dato' Amir dan Dato' Mohd Said di kediaman rasmi Dato'
Seri pada malam itu?
And he replied:Ya.
He was then asked:Kamu membuat panggilan telefon itu atas arahan Dato' Seri, bukan?
And he replied:Ya.
Thus
I find that it was the accused who wanted to see Dato' Mohd Said and
Dato' Amir Junus on the 12th and it was not they who wanted to see him
on the instructions of the IGP as now claimed by him in his testimony.
The evidence of the accused himself in another part of his
examination-in-chief with regard to the meeting on the 12th supports my
finding.This is what he said:The next meeting I had with the Special Branch was on the evening of that day or the following evening.
At that meeting PW1 and PW11 informed me that the IGP had already received P14 from Dato' Seri Megat Junid.
The
fact that Dato' Mohd Said and Dato' Amir Junus met the accused on his
instructions and the further fact that they informed him that the IGP
had already received exh. P14 A, B and C mean that the accused had no
prior communication with the IGP as claimed by him.
It is therefore my finding that the sequence of events that happened on
the 11th and up to the meeting of the 12th is as stated by the
prosecution witnesses and the version as described by the accused is an
after-thought to embroider his defence.This shows that the accused was concerned about the allegations from the very beginning.The
circumstances under which the accused lodged the police report (exh.
P16) on exh. P15 through ASP Zull Aznam is significant to determine the
state of mind of the accused at that time.
The prosecution evidence is that when Dato' Mohd Said and Dato' Amir
Junus met the accused on 15 August 1997 at about 2pm he showed them exh.
P15. They advised him to make a police report.
He did not agree initially.
Dato' Mohd Said had agreed with a defence
suggestion that
the accused did not want to make a report initially because of the
adverse publicity as he is a politician and Deputy Prime Minister.
It was for this reason, as shown by the unchallenged prosecution
evidence, that he did not want the case to be investigated by the CID.
That he had a hand in the branch of the police that ought to investigate
the matter is supported by the fact that when he met Dato' Mohd Said
and Dato' Amir Junus on 12 August 1997 he had not decided on that matter
yet.As he said in examinationin-chief:At that time I did not decide which branch of the police would conduct investigations.
It
is therefore clear that the accused did not want the matter to be
investigated by the CID. When he was asked in cross-examination whether
on 15 August 1997 he had told Dato' Mohd Said and Dato' Amir Junus that
if the matter is investigated by the CID it should not be brought to
court he said:Saya juga akui saya tidak cenderung pada
ketika itu untuk membawa perkara itu ke Mahkamah kerana Special Branch
baru memulakan siasatan.
When further cross-examined that
he did not want the case to be brought to court as he was worried about
the publicity that it may bring against him the accused said:Saya
tidak setuju bahawa, pertama, saya sendiri yang membuat laporan polis
melalui Zull Aznam, kedua, saya bersetuju dengan Peguam Negara bila
beliau mencadangkan kepada saya untuk mengambil tindakan terhadap
orang-orang yang berkenaan.
Pada masa itu Perdana Menteri tidak bersetuju.
Jadi tidak benar saya khuatir publisiti mengenai kes ini sekiranya
dibawa ke Mahkamah.
Thus what the accused says, by these
two answers, is that he was not inclined that the matter must be brought
to court though he was not worried about the publicity for the reasons
given by him.
The claim that he was not worried about the publicity because he himself
had made the report loses value in view of his own testimony in
examination-in-chief that initially he did not agree to make a report
and that he only agreed finally upon being persuaded.
His reference to the Honourable Attorney General is an attempt to cloud
the issues as the latter was nowhere in the picture at that time.
The reasons given by the accused therefore do not support his answer to
the question as put by the prosecution.
The unchallenged prosecution evidence that he did not want the matter to
be investigated by the CID and his admission that he was not inclined
that it be brought to court support the inference that he was concerned
about the attendant publicity.
In any event his evidence that he was not worried about the publicity is
a departure from what was put to and agreed by Dato' Mohd Said in his
cross-examination.
Thus I am unable to give any weight to this part of the evidence of the
accused and hold that he did not want to make a report initially because
of the adverse publicity by virtue of his position.
My finding on the reasons why the accused did not want to lodge a police
report initially coupled with the fact that he did not want the matter
to be investigated by the CID further show that he was very concerned
about the allegations.The role he played in
deciding on the branch of the police that should conduct the
investigation militates against his stand that he had merely asked the
police to investigate and had left it to them to do what was right and
proper.The next matter for consideration is the manner in
which the meetings between Dato' Mohd Said and Dato' Amir Junus and the
accused were arranged.
If they were arranged by Dato' Mohd Said and Dato' Amir Junus it would
show their concern over the matter as testified by the accused.
If they were arranged by the accused then it will indicate the concern
and interest of the accused in the investigation.
It is the case for the prosecution that it was the accused who contacted
Dato' Mohd Said and Dato' Amir Junus regularly.
Their line of cross-examination when they gave evidence also shows that
the defence case as put was that the accused had contacted them
regularly to brief him on the progress of the investigation.
On this issue the accused said in his evidence:There were occasions when I invited them to come but on many occasions PW11 would call ASP Zull Aznam.
The
accused is trying to suggest that many of the appointments to see him
were at the behest of Dato' Amir Junus. I have already referred to the
appointment ASP Zull Aznam made for the meeting of the 12th.As to the meeting on the 13th the accused, in answer to a question in cross-examination, said:Tidak
benar bahawa SP1 and SP11 diarah oleh saya.
Mereka datang ke rumah rasmi saya untuk memaklumkan kemajuan siasatan
berdasarkan arahan Ketua Polis Negara kepada mereka sebelumnya.
Thus his evidence is that he did not call for Dato' Mohd Said and Dato' Amir Junus for the meeting on 13 August 1997.With regard to this and subsequent meetings ASP Zull Aznam said in answer to questions in cross-examination:Question:
Betul atau tidak bahawa sekali lagi pada 13.8.1997 kamu ada membuat
panggilan telefon kepada Dato' Mohd Said Awang menyampaikan pesan Dato'
Seri Anwar yang Dato' Seri Anwar ingin bertemu dengan Dato' Said Awang
dan Dato' Amir di kediaman rasmi Dato' Seri Anwar, bukan?
Answer: Ya.
Question: Tarikh-tarikh lain di mana kamu menelefon PW1 dan PW11 atas arahan Dato' Seri kamu tidak ingat?
Answer: Betul.
As
the accused's testimony does not accord with what was put by the
defence to the prosecution witnesses it loses weight. I accept the
evidence of ASP Zull Aznam as it is consistent with what was put by the
defence to the prosecution witnesses on this issue.
It is therefore my finding that it was the accused who contacted Dato'
Mohd Said and Dato' Amir Junus regularly, through ASP Zull Aznam, in
respect of the meetings that they had.This indicates his concern and interest in the progress of the investigation.The
method of interrogation used by the Special Branch officers on Ummi and
Azizan is what is referred to as the Turning Over and Neutralisation
Operation.
The object of the operation is to change the stand of a person on a
certain view held by him.
This was the first time that the operation had been conducted in a case
of this nature.
It was successfully employed to neutralise Ummi and Azizan.
If that was done without any request from the accused it would support
the defence case that he did not ask for a denial and retraction of the
allegations.
The prosecution case is that this method was
used in order to comply with the instructions of the accused. A finding
on this issue will help to decide whether the accused had merely asked
for a thorough investigation. I will now deal with the relevant
evidence.Firstly, exhs. P17 and P18 were obtained within
24 hours of the arrest of Ummi and Azizan.
The prosecution evidence on this was not challenged by the defence.
When ACP Mazlan and DSP Aziz received instructions from Dato' Mohd Said
and Dato' Amir Junus they were told that they should make Ummi and
Azizan withdraw and deny their allegations within 24 hours.
Dato' Mohd Said and Dato' Amir Junus did not give this instruction on
their own initiative.
It originated from the accused himself.
This was stated by Dato' Amir Junus when he was cross-examined by the
defence.
This is what he said:Question: Are you seriously suggesting that accused asked you turn over and neutralise Ummi and Azizan?
Answer:
Apa yang tertuduh menyuruh Special Branch buat terhadap Ummi dan Azizan
untuk mereka menarik balik dan menafikan semua dakwaan-dakwaan terhadap
tertuduh.
Untuk mencapaikan hasrat itu Special Branch telah menggunakan technique
turning over dan neutralisation sebab masa yang diberikan hanya 24 jam
sahaja.
Dato' Amir Junus was not subjected to any further
cross-examination on this part of his answer so as to neutralise this
evidence.
Neither did the accused deny or explain it away when he gave evidence.Thus it is my finding that the accused asked for the retractions and denials to be made within 24 hours.Secondly,
the prosecution evidence that the accused asked Dato' Mohd Said and
Dato' Amir Junus to trace Ummi and Azizan quickly was not challenged in
the course of the case for the prosecution.
Though the accused did not say anything about this in his
examination-in-chief he denied that he gave such instructions in his
cross-examination.
By reason of the failure of the defence to cross-examine the prosecution
witnesses on this issue the denial on the issue by the accused loses
weight.
Taking into account the fact that the accused wanted the retractions and
denials within 24 hours I am unable to accept this denial by the
accused.
It is thus my finding that the accused asked Dato' Mohd Said and Dato' Amir Junus to trace Ummi and Azizan quickly.Thirdly,
the prosecution case is that on 13 August 1997 the accused asked Dato'
Mohd Said and Dato' Amir Junus to "gempar" Ummi and Azizan.
As I said earlier the defence challenge on this was only as to the
meaning of the word "gempar". However, what the accused said in his
evidence is that he said "gempar sikit-sikit cukuplah". Thus the accused
has admitted that he asked for Ummi and Azizan to be "gempar" though
"sikit-sikit cukuplah". The degree of the "gempar" to be used as stated
by the accused was not put to Dato' Mohd Said and Dato' Amir Junus in
their cross-examination.
This brings into question whether the accused really qualified the
degree of "gempar" to be used.
My first observation is that the fact remains that the accused asked for
Ummi and Azizan to be "gempar". Whether it is "sikit-sikit cukuplah" or
not really does not alter the intention with which the instruction was
given.
However, based on the totality of the evidence
adduced and particularly having regard to the defence challenge being
only on the meaning of the word it is my finding that the accused used
the word "gempar" without any qualification.Fourthly, it
is the case for the prosecution that the accused did not want Ummi and
Azizan to be detained for long.
He admitted in his evidence that he told this to Dato' Mohd Said and
Dato' Amir Junus.
His initial explanation for giving this instruction was because he knew
them.
Later he said that he gave this instruction because he did not want them
to be bullied.
Though the reasons advanced are contradictory the fact remains that the
accused did tell Dato' Mohd Said and Dato' Amir Junus not to detain Ummi
and Azizan for long.
It must also be noted that the defence did not challenge the prosecution
evidence on this.
Neither were the reasons now offered by the accused put to the
prosecution witnesses.
It is therefore my view that the explanation now advanced is an
after-thought meant to project the impression that the accused did not
have any unlawful motive in giving the instruction.
In an effort to support this projection the accused said in his
cross-examination that when
asked for Ummi and Azizan not to be detained for long Dato' Mohd Said and Dato' Amir Junus had told him:Dato' Seri baik hati sangat.
Orang fitnah macam itu pun masih kasihan lagi.
When challenged that this was never stated by them he said:Ada mereka sebut.
Pada masa itu mereka menunjukkan simpati yang amat sangat kepada saya.
The
accused, in his re-examination, was asked why this piece of evidence
was not brought up when Dato' Mohd Said and Dato' Amir Junus gave
evidence.
The object of learned counsel in pursuing this line of questioning was
obviously to ascertain why it was not put to the witnesses in their
crossexamination so as to avoid any allegation of recent invention.
The accused said that he did not bring it up earlier as he thought it
would be only relevant to clarify matters if and when asked.To a further question as to whether he informed his counsel about this, this is what he said:I informed my counsel about this after the evidence of SP1 and SP11.
Both
the witnesses were not recalled by the defence in the course of the
case for the prosecution to confront them with this piece of
conversation so as to ascertain whether they uttered the words.
But when these two witnesses were recalled by the defence in the course
of its case the words alleged to have been said by them were not put to
them.In view of the challenge made by the
prosecution that the words were not uttered by the witnesses, the fact
that it was not put to Dato' Mohd Said and Dato' Amir Junus despite the
claim by the accused that he had informed his counsel about it, I am
compelled to conclude that the words were not uttered by them and that
it is an after-thought in order to embellish the defence.My
findings that the accused asked Dato' Mohd Said and Dato' Amir Junus to
trace Ummi and Azizan early, to "gempar" them, not to detain them for
long and to make Ummi and Azizan retract their allegations within 24
hours show that the neutralisation of Ummi and Azizan was done by the
Special Branch in order to comply with the instructions of the accused.
It is totally inconsistent as a follow-up by the Special Branch to a
mere request for a thorough investigation into the matter. I must
immediately state that there is no evidence to even suggest that the
accused asked for this method to be used.
But it was a method used by the Special Branch so as to achieve the
result expected.
The matters that I have considered thus far point to the inference that
the accused was actively involved in the investigation from the very
beginning to make Ummi and Azizan retract their allegations as he was
very concerned.
The resultant matter for consideration is whether there is positive
evidence to show that he had asked for the written statements and the public statements.In an attempt to show that the request for the letters did not come from him the accused said:The idea of getting the retraction letters from Ummi and Azizan must be either from SP1 and SP11 or the police.
But it was not from me. They just informed me and showed me the letters.
This answer is in direct contradiction to what was put to Dato' Amir Junus under cross-examination.It is this:I
put it to you that only after the Special Branch briefed the accused
and said that they have investigated and found the allegations to be
untrue and that it involved a political conspiracy against him and Ummi
and Azizan were prepared to retract their allegations that the accused
requested for the retraction.
Thus the defence case as put
in the course of the case for the prosecution is that the accused did
in fact ask for the retractions.
There is therefore a shift in the defence evidence on this issue from
what was put in the course of the prosecution case.There was a further
shift in another part of the accused's evidence when he said, with
reference to exhs. P20 and P22, that when Dato' Mohd Said and Dato' Amir
Junus met him on 27 August 1997 they:205 considered
several options, that is, either to suggest that Azizan and Ummi speak
directly to the media or come up with a public statement. I had to
remind them that because of the Prime Minister's suggestion that I
should completely ignore the issue of the allegations so I had to leave
it to PW1 and PW11.
Not only was this version not put to
Dato' Mohd Said and Dato' Amir Junus in their cross-examination but it
is also inconsistent with the accused's earlier evidence that they
merely informed him and showed him the public statements.Be
that as it may, a consideration of the prosecution evidence that the
accused asked for the public statements to be posted to his office will
shed light on this issue.
If the accused had asked for the public statements to be posted to him
it would obviously mean that he had some prior communication about them
with Dato' Mohd Said and Dato' Amir Junus.
This is what Dato' Mohd Said said with regard to this request:He wants the letters to be open letters without being addressed to anybody.
It was to be an open letter.
He wanted the letter to be posted to the Deputy Prime Minister's office.
In his cross-examination on this he said:Question: I am instructed that the accused never requested that ID19 to ID22 be posted to his office.
Answer: The instruction to me was that they should be posted to the Deputy Prime Minister's office.
A
similar answer was given by Dato' Amir Junus in his
examination-in-chief and when challenged in cross-examination he denied
that the accused did not ask for it to be posted.
Dato' Amir Junus has noted this request in exh. P47. It will therefore
be observed that the request for the letters to be posted to the office
of the accused was a live issue in the course of the case for the
prosecution.
The defence had disputed the fact that the accused had asked for the
letters to be posted to his office at that stage.
However, the accused did not give any evidence on this issue.
What now requires determination is whether the accused had in fact made
such a request.
Dato' Amir Junus testified that he handed over exhs. P20, P21 and P22 to
the accused in a sealed envelope addressed to him and with the postal
stamp on it cancelled.
The letters were later found to have the Received Rubber Stamp of the
accused's office.
It is of interest to note that the accused did not attempt to explain
the presence of the Received Rubber Stamp on the letters when he gave
evidence.Azmin was cross-examined on this issue by the prosecution in the following manner:Question: (Sila lihat P20, P21 dan P22.) Kamu ada terima surat-surat ini daripada tertuduh?
Answer: Ada terima.
Question: (Lihat pada chop di ketiga-tiga exhibit ini.) Adakah kamu yang meletakkan chop pada ketiga exhibit ini?
Answer: Saya yang meletakkan chop-chop ini.
Question:
Bersetuju atau tidak bahawa P20, P21 dan P22 telah disampaikan kepada
kamu oleh Dato' Seri Anwar untuk dichopkan tarikh penerimaannya?
Answer: Ya.
Azmin
was not re-examined on this.
It is therefore true that the accused received exhs. P20, P21 and P22 as
described by Dato' Amir Junus.
The accused had handed them to Azmin to affix the Received Rubber Stamp,
obviously, to give the impression that they were received through the
post.
The inference to be drawn from this is that the accused, as testified by
Dato' Mohd Said and Dato' Amir Junus, had asked for the letters to be
posted to his office.
This finding is cemented by the fact that the accused did not give any
evidence denying that he had asked for the letters to be posted to him
although he had specifically put to the prosecution witnesses that he
had not asked them to do so. It must be noted that a suggestion does not
become evidence unless it is supported by affirmative testimony.
There was no such evidence.
It is also not necessary for the request, being an admission made by the
accused, to have been put to him by the prosecution (see Biswanath Prasad v. Dwarka Prasad
AIR [1974] SC 117). The failure by the accused to give evidence on this
issue therefore means that he has accepted the prosecution evidence on
it. It is thus my firm finding that the accused had asked for the public
statements to be posted to his office.The fact
that the accused asked for them to be posted to him means that there was
some prior communication between him and Dato' Mohd Said and Dato' Amir
Junus regarding these letters.This inference will have
added weight if the accused, as contended by the prosecution, had asked
for corrections to be made to the public statements.
The evidence of Dato' Amir Junus on the corrections made to the public
statement of Azizan and exh. P29 by the accused, which I have outlined
earlier, was challenged by the defence.
The accused in denying that he made any corrections to the public statements said:On
the night of the 28th I did not have any telephone conversation with
PW11. I did not suggest any amendments to P29 because P29 is a very good
statement.
Why should I amend it further? Somebody else must have asked him to
amend it. He did not discuss this with me on the phone.
The
corrections were not made by Azizan and Ummi as they themselves were
unhappy with the amendments.
The accused has denied that he made the corrections to exh. P29 and, in
support, has said that it is a very good statement and does not require
any amendment.The explanation offered by the accused requires a
comparison of exh. P29 with exh. P22. In particular I refer to the
statement in exh. P29 which says:Saya ingin menafikan
sekeras-kerasnya bahawa saya terbabit dalam penerbitan surat-surat
layang yang timbul selepas tarikh 5hb Ogos 1997.
This is
merely a denial by Ummi that she was involved in the publication of any
poison pen letters after 5 August 1997.There is therefore no denial that
she wrote exh. P14A, B and C. On the other hand the relevant part of
exh. P22 is worded this way:Saya ingin menafikan
sekeras-kerasnya bahawa surat-surat yang diedarkan yang kononnya
ditandatangani oleh saya bukanlah surat saya kepada YAB Perdana Menteri
tetapi direka oleh orang-orang tertentu.
This is a denial
by Ummi that the letter allegedly signed by her and sent to YAB Prime
Minister is hers. I am therefore unable to accept the accused's
explanation that exh. P29 is stronger.Having also
taken into account the other circumstances of the case it is my finding
that the corrections made to the public statements of Azizan and exh.
P29 were made on the instructions of the accused.With
regard to the obtaining of exhs. P17 and P18 the accused said in his
examination-in-chief that when he received these letters he had no idea
as to how they were obtained and that he:205 assumed as per my instructions that the police should do what was right and proper.
The
words "205 as per my instructions 205" suggest that the letters were
obtained according to his instructions, or, at the very least there was
talk between the accused and Dato' Mohd Said and Dato' Amir Junus prior
to the obtaining of the letters.
This is inconsistent with the earlier part of his testimony when he said
that he did not know how they were obtained.
Thus the accused was asked to explain the use of the word "instruction"
in his reexamination.In reply he said:I
used consistently the word 'instruct' to instruct officers as Deputy
Prime Minister and Minister of Finance to do what is right and proper
according to the law.
Dozens of statements and speeches were to that effect.
Again the word 'instruction' is applicable to all officers.
This
explanation lends weight to the view that the accused did in fact give
instructions to Dato' Mohd Said and Dato' Amir Junus with regard to
exhs. P17 and P18. If what he says is that the word "instruction" refers
to anything that he tells his officers that does not deny the fact that
he did in fact communicate about exhs. P17 and P18 to Dato' Mohd Said
and Dato' Amir Junus prior to them being obtained.The
reaction of the accused when exhs. P17 and P18 were handed to him will
have a strong bearing on whether he had asked for them.
It is the case for the prosecution that he had in fact expressed his
views on exhs. P17 and P18 when they were handed to him.
In this regard Dato' Amir Junus said:Selepas
membaca ID17 tertuduh meluahkan perasaan bahawa surat ini bolehlah
diterima tetapi apabila membaca surat ID18 yang ditulis oleh Ummi
tertuduh kurang puas hati dan bukan seperti yang dikehendaki.
Bagi ID17 tertuduh mengatakan, 'Ini bolehlah,' tetapi bagi surat ID18,
'Bukan macam ini'.
When Dato' Amir Junus was cross-examined on this he said:Saya tidak bersetuju yang tertuduh tidak meluahkan kepuasan hatinya kepada mana-mana dokumen.
However,
this aspect of the challenge to the prosecution evidence was not
carried through by the accused when he gave evidence.
Again it is not necessary for the prosecution to have put this to the
accused when he was cross-examined as it is an admission.
In the circumstances the crossexamination of Dato' Amir Junus on this
issue loses its effect and amounts to an acceptance by the defence of
his evidence.It is therefore my finding that the accused expressed his views on exhs. P17 and P18 as testified by Dato' Amir Junus.It follows that the accused had made corrections to the public statements and had expressed his views on the written statements.
These
findings strengthen and support my earlier view that the accused did in
fact communicate with Dato' Mohd Said and Dato' Amir Junus about the
written statements and public statements prior to them being obtained.Before
I proceed any further I shall deal with some arguments raised by the
defence in its submission. I shall first refer to certain matters that
were put to Dato' Mohd Said and Dato' Amir Junus when they were recalled
by the defence during its case.
They are of importance to the defence case.
If what was put to them did indeed take place it will support the defence case that the accused did not ask for the retractions.In the case of Dato' Mohd Said what was put to him is as follows:Question: Do you agree that on 11.8.1997 you met Dato' Seri Anwar's private secretary, Mohd Azmin bin Ali?
Answer: I do not agree.
Question:
I am putting it to you that you did meet him on 11.8.1997 and requested
him to speak to his sister Ummi to request her to retract the
allegations against Dato' Seri Anwar.
Answer: I did not meet Azmin.
So this question does not arise.
Azmin had said in his
evidence that he met Dato' Mohd Said on 11 August 1997 at 8.45am before
the latter met the accused.
It is at this meeting that Dato' Mohd Said is alleged to have made the
request to Azmin to ask Ummi to retract the allegations.
If this conversation did take place then the accused could not have
asked for the retractions because at that time Dato' Mohd Said had not
met the accused yet.
Dato' Mohd Said's answer is that since he did not meet Azmin on that
date and time the question of the conversation does not arise.
It must be noted that at that time Dato' Mohd Said had just come to know
of the allegations the previous night and as he said in his
examinationin-chief:On the 11th morning the three of us
met in my office at about 7.00 a.m. for them to brief me further.
After that I directed them to brief the IGP while I went to the Deputy
Prime Minister's office for a scheduled briefing on another matter.
This
piece of evidence was not challenged by the defence.
It is my view that Dato' Mohd Said could not have asked for the
retractions as testified by Azmin as he had just come to know of the
allegations.
The IGP could not have asked him to do so as Dato' Mohd Said had not met
the IGP then.
One other feature of this evidence requires consideration.
Azmin had said that he met Dato' Mohd Said at 8.45am on 11 August 1997.
The accused originally said that Dato' Mohd Said met him on that day at
about 9am.But having referred to his personal diary for 1997 he said:The meeting on 11.8.1997 was at 8.45 a.m.
Surely Dato' Mohd Said could not have been at both places at the same time.Having
considered these factors and the totality of the evidence adduced I
agree with Dato' Mohd Said that there was no such conversation. I have
no hesitation in saying that the alleged request by Dato' Mohd Said is
an afterthought to bolster the defence.With regard to Dato' Amir Junus what was put to him was that he had a telephone conversation with ASP Zull Aznam.
It goes this way:Question: Do you remember the date Dato' Seri Anwar came back from Pulau Langkawi?
Answer: I won't know the exact date he came back from Langkawi.
It could be the 16th or 17th.
Question: It is that date I am
referring to. I put it to you that you phoned ASP Zull Aznam several
times but there was no response from Dato' Seri Anwar.
Then you finally told ASP Zull Aznam over the phone that you had to get
retractions fast from both these people and then ASP Zull Aznam asked
you whether you had obtained clearance from Dato' Seri Anwar.
You said that there is no time as we have to act fast.
You responded further by saying that Dato' Seri Anwar is taking things
too easy.
Is that true?
Answer: Saya ada menelefon ASP Zull Aznam pada
17.8.97 jam lebih kurang 11.15 malam untuk memberitahu kepada tertuduh
melalui ASP Zull bahawa polis telah pun menangkap Ummi dan Azizan.
Saya tidak pernah menyatakan kepada ASP Zull tentang sikap tertuduh dan
juga mengenai surat retraction.
Ini adalah tidak wajar bagi seorang senior officer untuk mengatakan
sedemikian.
Question: So you do not agree.
Answer: I do not agree.
Question: I put it to you that the conversation took place.
Answer: Tidak.
ASP
Zull Aznam had said that he had the conversation with Dato' Amir Junus
on 17 August 1997 at 11pm or 11.30pm. ASP Zull Aznam had said that in
that conversation he was first told that Dato' Mohd Said and Dato' Amir
Junus were coming to see the accused.
In that event it would have been unnecessary for Dato' Amir Junus to
have told ASP Zull Aznam anything more.
As I mentioned earlier the credibility of Dato' Amir Junus had been
enhanced by the notes he kept of the meetings with the accused.With
regard to the request of the accused for the retractions the relevant
note is exh. P44. Having considered the explanation offered by Dato'
Amir Junus against the background of his credibility and the totality of
the evidence adduced it is my firm finding that the alleged
conversation between ASP Zull Aznam and Dato' Amir Junus did not take
place and is an after-thought to give weight to the defence.The defence also submitted on a suggestion that was put by the prosecution to the accused in cross-examination.
It is this:Saya
katakan bahawa Dato' Seri telah meminta SP1 and SP11 untuk menyiasat
sedalamnya tentang P14B dan C kerana Dato' Seri adalah concerned
berkenaan P14B dan C.
The defence submission is worded in this way:Since
this was put by the DPP it is part of the prosecution case.
This fact alone completely destroys and demolishes the prosecution case
and renders the allegations of SP1 and SP11 that DSAI gave instructions
to retract completely untrue and again materially corroborates Dato'
Seri Anwar Ibrahim's defence in a very cogent manner. 205 To top it all,
the DPP also put in line with the defence version for thorough
investigation and fully. 205 But we would like to emphasise and
reiterate that the whole case of the prosecution collapsed when the
learned DPP put what has been the defence of DSAI from commencement of
the case. 205 This is the crux of the defence case which was also put by
the prosecution.
Surely this is a very vital and material corroboration of DSAI's
version.
The defence case is that the accused merely asked
for a thorough and full investigation.
The prosecution case is that it went beyond that because, as reflected
by the evidence, the accused was concerned about the allegations.
Thus what was put to the accused by the prosecution is a gist of its
case.The defence submission completely overlooks the use of the word "concerned" in what was put.It was then contended by the defence that as Dato' Amir Junus had said
that
the instructions he carried out in this case were from his superior
officer it cannot be said that the accused had directed him as stated in
the charges.
It is in evidence that the accused gave the directions to both Dato'
Mohd Said and Dato' Amir Junus together.
Thus the fact remains that the accused gave directions to Dato' Amir
Junus also.
What Dato' Amir Junus did was to carry out the directions with the
consent of his superior officer, Dato' Mohd Said.
That is purely an administrative arrangement between them.
As far as the accused is concerned he gave directions to Dato' Amir
Junus as well.
That is precisely what he has been charged with.The submission therefore has no merit.The
defence, in its further submission, said that the concepts of turning
over and neutralising are unknown to the law and have no sanction of the
law.
These concepts are a frolic of the Special Branch which the court must
not condone or sanction.
The acceptance of the evidence of Dato' Mohd Said and Dato' Amir Junus
would thus mean that the court is tolerating such misbehaviour which
must be avoided at all costs. I must state that I am distressed that the
turning over and neutralisation operation has been resorted to in this
case.
However, this submission does not enhance the
defence case as the accused is in court today for having caused the
Special Branch to resort to just such methods as a result of his
directions to get the retraction letters.It was further
contended that it is now easy for Ummi and Azizan to change their
stories and say that they were threatened into making exhs. P17 and P18.
This submission has no substance based on the unchallenged evidence of
ACP Mazlan, DSP Aziz, Ummi and Azizan which clearly shows that the
letters are not voluntary.
It follows that the question of Ummi and Azizan changing their stories to say that they were threatened does not arise.The
cumulative effect of the findings that I have made, that is to say,
that the sequence of events as described by the accused up to 12 August
1997 is an after-thought; that he is the one who contacted Dato' Mohd
Said and Dato' Amir Junus regularly; that he did not want to lodge a
police report initially because of the adverse publicity by virtue of
his position; that he was not inclined that the matter be brought to
court; that he did not want the matter to be investigated by the CID;
that he wanted Ummi and Azizan to be traced quickly and did not want
them to be detained for long; that he asked Dato' Mohd Said and Dato'
Amir Junus to "gempar" them; that he wanted Ummi and Azizan to retract
and deny their allegations within 24 hours and, finally, and most
importantly, the evidence showing his prior communications regarding
exhs. P17, P18, P20 and P22 with Dato' Mohd Said and Dato' Amir Junus in
the manner that I have described earlier leads me to conclude that the
accused went beyond a request for a thorough investigation and had in
fact asked Dato' Mohd Said and Dato' Amir Junus to obtain the written
statements
and public statements from Ummi and Azizan.
The unchallenged evidence of ACP Mazlan, DSP Aziz, Ummi and Azizan which
I have narrated earlier coupled with my findings show that the
statements were obtained as directed.The evidence
of Dato' Mohd Said, Dato' Amir Junus, ACP Mazlan and DSP Aziz is
corroborated as stated by me in an earlier part of the judgment.I
pause to add that my finding is strengthened by the alternative defence
set up by the accused.
The principal defence of the accused is that he did not direct Dato'
Mohd Said and Dato' Amir Junus to obtain the retraction letters from
Ummi and Azizan.
It was submitted by the defence both at the close of the prosecution
case and at the close of its own case that if it is found that the
accused gave directions then Dato' Mohd Said and Dato' Amir Junus are
accomplices.
This alternative submission will make the accused the principal offender
with Dato' Mohd Said and Dato' Amir Junus as accomplices. I have found
them to be accomplices and that they are credible.
The submission of the defence, which I had accepted, makes it
inconsistent with the principal defence.
There is nothing illegal in an accused setting up an alternative defence
which is inconsistent with the main defence set up by him.
But, as observed by Newbould and Suhrawardy JJ in Nagendra Chandra Dhar v. King-Emperor AIR [1923] Cal 717 at p. 718:By
setting up an inconsistent defence there can be no doubt that the case
for the accused becomes considerably weaker than if he settled his best
line of defence and set up that defence only.
The final
matter for determination is whether the request of the accused to Dato'
Mohd Said and Dato' Amir Junus to obtain the written statements and
public statements amounts to a direction by him in his capacity as
Deputy Prime Minister and Minister of Finance.
In seeking to show that the accused did not give the direction in such
capacity the accused said that the discussions between him and them were
conducted in a friendly and informal manner.He then added:As
the Minister of Finance I had no authority or jurisdiction or power
over the police, Special Branch and PW1 or PW11. As the Deputy Prime
Minister I had no authority or jurisdiction over the police or the
Special Branch. I as Minister of Finance and as Deputy Prime Minister
did not use my office or position in relation to the investigations into
P14 or P15.
This part of the evidence is inconsistent
with an earlier part of his testimony when he said that on 12 August
1997 he had not decided which branch of the police would conduct the
investigations.
This is an admission of his authority over the police.
The fact that he can summon senior police officers to go to his Official
Residence at his request also shows his authority over them.
The accused's admission that he did not want Ummi and Azizan to be
detained for long also shows his authority over Dato' Mohd Said and
Dato' Amir Junus.
Be that as it may, even if the accused had no authority, jurisdiction or
power over Dato' Mohd Said and Dato' Amir Junus it is not relevant
pursuant to the proper test to be applied which I have considered in
some detail in an earlier part of the judgment.
In accordance with that test the communications from the accused to
Dato' Mohd Said and Dato' Amir Junus amount to directions as
contemplated by the charges.
The defence submitted that the proper test for determining this question
should be the one laid down by the Privy Council in Phaindra Chandra Neogy v. The King AIR [1949] PC 117 in following its earlier judgment in Gill & Anor. v. The King
AIR [1948] PC 128 to rule that a public servant can only be said to act
or to purport to act in the discharge of his official duty, if his act
is such as to lie within the scope of his official duty.The Privy Council case of Attorney- General of Hong Kong v. Ip Chiu & Anor.[1980] 2 WLR 332 which I had found to be most helpful in formulating the proper test to be applied has expressly referred to Gill & Anor v. The King
AIR [1948] PC 128 and distinguished it on the ground that the language
of the provision of law in that case, that is to say, "any act done or
purporting to be done in the execution of his duty as a servant of the
Crown" is different and therefore inapplicable. I am a little surprised
that the defence has sought to refer to these cases as I had, when the
defence was submitting at the close of the case for the prosecution,
brought to its attention Attorney-General of Hong Kong v. Ip Chiu & Anor.[1980] 2 WLR 332 where Gill & Anor v. The King AIR [1948] PC 128 has been explained.It
is therefore my finding that the defence has not raised any reasonable
doubt, on the whole of the evidence adduced, that the accused directed
Dato' Mohd Said and Dato' Amir Junus in his capacity as a Member of the
administration, to obtain from Ummi and Azizan written statements
addressed to YAB Prime Minister and public statements denying the
allegations on the dates prescribed in the charges and that they
obtained the statements as directed. I therefore hold that this element
has been proved beyond reasonable doubt.(ii) The Advantage Obtained By The AccusedI shall consider this element in the same manner as I had classified them earlier.First And Third ChargesThe accused did not give any evidence on this issue in the course of his examination-in-chief.
When
he was asked in cross-examination whether the allegations in exh. P14A,
B and C could expose him to humiliation and hatred he said:Tuhmahan
dan fitnah di dalam P14 tidak mudah menyebabkan kebencian ramai kerana
rakyat juga ingin mengetahui punca dan usaha penyebar fitnah.
When the question was repeated he said:Saya
bersyukur kerana meskipun ada tuhmahan jahat dan pakatan untuk menghina
dan menimbulkan kebencian ramai rakyat masih menyayangi saya dan tidak
terpengaruh dengan pakatan jahat tersebut.
When asked
whether the contents of exh. P14A, B and C could damage his reputation
as Deputy Prime Minister and Minister of Finance the accused said that
though the purpose of the allegations was to damage his reputation it
did not succeed.When the question was repeated he said:Saya tidak terjejas semata-mata kerana tuhmahan dan fitnah P14.
It
was then put to the accused that he would not want the allegations to
be widely circulated as they could expose him to humiliation and hatred
by many.In reply he said:Tuhmahan P14 dan P15 dari awal lagi diketahui fitnah besar dan jahat.
Tidak mungkin kalaupun tersebar luas boleh mengakibatkan penghinaan dan kebencian ramai.
When the question was repeated he said:Saya telah jelaskan bahawa fitnah dan tuhmahan tidak mungkin menjejaskan nama baik saya.
It
was then put to him that he asked Dato' Mohd Said and Dato' Amir Junus
to investigate into the allegations in depth as he was concerned about
exh. P14A, B and C. In reply he said:Saya telah meminta
SP1 dan SP11 untuk menyiasat sedalam-dalamnya tentang P14B dan C kerana,
pertama, saya sedar dan tahu kandungannya adalah fitnah dan, kedua,
Ketua Polis Negara telah memaklumkan mengenai penerimaan P14 dan meminta
SP1 dan SP11 meneruskan siasatan sebagai isu keselamatan.
The
answer given by the accused is an evasive one.
In an attempt to avoid answering the question he has given reasons to
explain why he asked for the matter to be investigated thoroughly. I
must immediately observe that the two reasons given by the accused for
asking Dato' Mohd Said and Dato' Amir Junus to investigate the matter
thoroughly contradict other parts of his own evidence.
The first reason as given by the accused, that the allegations were
slanderous, is inconsistent with his earlier evidence when he said that
he agreed with Dato' Mohd Said and Dato' Amir Junus that the matter must
be investigated thoroughly after they told him that they suspected
there were attempts by some politicians to smear his reputation.
With regard to the second reason advanced by the accused I find, as I
have explained earlier, that the evidence shows that the IGP did not
communicate with the accused as claimed.In the
light of the evasive answer given and considered with my earlier
findings on the concern shown by the accused it is my view that he was
indeed concerned about exh. P14A, B and C.As I said at
the close of the prosecution case the advantage obtained by the accused
in these charges must be considered in the light of the role he played
in procuring the written statements, that is to say, exhs. P17 and P18.
The facts, on the whole of the evidence, are substantially the same as
at the close of the prosecution case.
The accused did not want to lodge a report because of the adverse
publicity by virtue of his position.
He did not want the matter to be investigated by the CID. He was not
inclined that the matter be brought to court.
He wanted Ummi and Azizan to be traced quickly and asked Dato' Mohd Said
and Dato' Amir Junus to "gempar" them.
He did not want them to be detained for long.
He wanted them to retract and deny their allegations within 24 hours.
He contacted Dato' Mohd Said and Dato' Amir Junus regularly to be
briefed.
These facts show that the accused was very concerned about the
allegations.
It follows that the answers given by the accused in crossexamination on
the effect of the allegations on him are an attempt by him to embellish
his stand that he was not concerned with the allegations.
The fact that the accused wanted the allegations to be retracted and
denied within 24 hours is particularly significant.
The retraction of the allegations at such speed neutralises the effect
of the allegations.
Although the accused sought to portray
this in a somewhat different light he was aware of this, as reflected
by his answer to a question in re-examination in the following words:With regard to P17 and P18 I derived no advantage or benefit whatsoever.
It is just like one being accused for being a murderer and then there is a withdrawal of the allegation the following day.
This
explains the urgency with which he acted.
Just as in the example provided by him he wanted the allegations made
against him to be retracted within 24 hours so that they will have no
effect.The manner in which he went about
obtaining the written statements clearly shows that he wanted the
letters to save himself from embarrassment. I have dealt with this
question at the end of the prosecution case and I find the conclusion
only strengthened by the defence evidence.Second And Fourth ChargesThe
evidence in respect of the advantage obtained by the accused under
these two charges stem from the meetings between him and SAC Musa on 30
August 1997 and 2 September 1997.
With regard to the
meeting on 30 August 1997 the accused said in his examination-in-chief
that he had a meeting with the Honourable Attorney General and Dato'
Ismail Che Ros on that day.As to whether SAC Musa was present at the meeting he said:This
is noted in my diary as '10.00 pagi AG dan Dato' Ismail Che Ros'. It is
not stated in my diary that SAC Musa also came. I also checked with my
PA Azmin and he said that he would put down the name if Musa had
attended the meeting.
When asked again in his
examination-in-chief whether he had given any instructions to SAC Musa
on 30 August 1997 not to investigate into the matter the accused said:I
did not give any such instructions to Musa Hassan or to anyone else for
that matter. I have checked my records and with my staff that SAC II
Musa was not there in the office at that meeting on the 30th.
It
was put to the accused in cross-examination that apart from the
Honourable Attorney General and Dato' Ismail Che Ros, SAC Musa was also
present at the meeting on 30 August 1997.In reply the accused said:Setelah
menyemak buku diari pejabat dan bertanyakan kepada setiausaha Mohd
Azmin Ali kita tidak ada rekod kehadiran Musa Hassan pada tarikh
tersebut.
Nama-nama Peguam Negara dan Pengarah CID ada dicatat.
As to the directions that he was alleged to have given SAC Musa on 30 August 1997 the accused said in his re-examination:Either
in the presence of the Attorney General or not I would not have given
the directions that I am alleged to have given SAC Musa on 30th August.
The Attorney General would have cautioned me if I had done so.
Thus
what the accused says is that he did not meet SAC Musa on that day for
two reasons, firstly, by virtue of the entry on his diary and, secondly,
his records and staff including Azmin confirm that SAC Musa did not
attend the meeting.
The second reason advanced is hearsay and therefore inadmissible as to
its truth.
The first reason is based on the fact that SAC Musa's name does not
appear in the diary.
That on its own does not necessarily mean that SAC Musa did not meet the
accused.
As I said earlier the cross-examination of SAC Musa had in fact
proceeded on the basis that he met the accused on 30 August 1997.
It was not put to SAC Musa that he did not meet the accused on that day.
The weight of the evidence of the accused on this issue therefore
becomes weak.
In the circumstances it is my finding that SAC Musa did meet the accused
on 30 August 1997 at the latter's office.The
resultant matter for consideration is whether the accused gave any
instructions to SAC Musa on that day.
Although the accused denied that he gave any instructions to SAC Musa on
that day such denial is not consistent with the cross-examination of
SAC Musa when the latter gave evidence.The accused said in his evidence that at that meeting he relayed to the Honourable Attorney General and Dato' Ismail Che Ros:205 the message from the Prime Minister as reported in the newspapers on 25.8.1997.
This
is inconsistent with what was put to SAC Musa during his
crossexamination that this was told to him by the accused.
In any event the relaying of the message is meaningless unless, as
testified by SAC Musa, it was preceded by a statement to the effect that
it was not necessary to investigate into the matter. I pause to add
that the accused while seeking to assert that he did not give the
instructions had admitted making such a statement to SAC Musa with
reference to the meeting on 2 September 1997.
Based on the line of cross-examination of SAC Musa and the evidence of
the accused that I have just mentioned it is my view that he did in fact
bring YAB Prime Minister's statement to the attention of SAC Musa on 30
August 1997.
The reliance of the accused on YAB Prime Minister's statement to the
effect that the matter is closed shows, as testified by SAC Musa, that
the accused had in fact told SAC Musa that it is not necessary to
investigate into the matter, as, otherwise it is not relevant for any
reference to be made to the statement.It is therefore my finding that the accused did give the instructions to SAC Musa, as testified by him, on 30 August 1997.With
regard to the meeting on 2 September 1997 the accused was asked in his
examination-in-chief whether he had told SAC Musa not to send the
investigation papers to the Honourable Attorney General.
In reply he said:I did not give such instructions.
There was a meeting with Musa at about that time.
But I cannot remember the date of that meeting. I had only one meeting with SAC Musa.
That was when he recorded my statement.
When asked whether
he had told SAC Musa not to take statements from Azmin, Shamsidar,
Dato' Nallakaruppan, Aton and ASP Zull Aznam the accused said:I did not give any instructions to Musa not to take statements from those persons.
It would be absurd for me to give such instructions when I myself asked Zull Aznam to lodge a police report on my behalf.
How could I then suggest to the police not to question even Zull Aznam.
The cross-examination of the accused on this issue goes as follows:Question:
Saya katakan pada pertemuan Dato' Seri dengan SP13 pada 2.9.1997 Dato'
Seri telah memberi arahan kepada SP13 untuk menutup kes berkaitan dengan
siasatan berkenaan dengan P16.
Answer: Saya tidak memberi arahan kepada SP13 untuk menutup kes.
Question:
Saya katakan kepada Dato' Seri bahawa Dato' Seri telah mengarahkan SP13
untuk tidak menghantar kertas siasatan berkenaan P16 kepada Peguam
Negara pada pertemuan 2.9.1997 itu.
Answer: Ini tidak benar.
Direka kemudian sebagai bukti conspiracy polis.
Question: Saya katakan di dalam pertemuan itu juga Dato' Seri telah serahkan P20, P21 dan P22 kepada SP13.
Answer: Tidak benar saya serahkan kepada SP13.
In his re-examination the accused was questioned as to what transpired at the meeting on 2 September 1997.This is his reply:With
regard to the meeting on 2.9.1997 I cannot recall what transpired at
the meeting except for the fact that Musa informed me of certain
developments or progress of his investigation.
But I did not give any instructions to him not to proceed as alleged by
him.
At that meeting, I reminded Musa of the Prime Minister's instructions as
reported in the papers.
On this issue it is also necessary to consider the evidence of ASP Zull Aznam and Azmin.
Both these defence witnesses did not give any evidence on this meeting in their examination-in-chief.The relevant part of the crossexamination of ASP Zull Aznam runs as follows:Question: Apabila kamu membuat P16 itu kamu inginkan pihak polis menjalankan siasatan dengan terperinci?
Answer: Ya, betul.
Question:
Jadi oleh yang demikian pada 2.9.1997 apabila SAC Musa meminta kamu
menghubungi saksi-saksi kamu sudah semestinyalah bersedia untuk membantu
SAC Musa menghubungi saksi-saksi tersebut?
Answer: Ya, saya sememangnya bersedia untuk membantu beliau.
Question:
Betul bukan bahawa kamu telah memberitahu Dato' Seri Anwar tentang
permintaan SAC Musa untuk menemubual saksi-saksi tersebut?
Answer:
Saya memberitahu Dato' Seri Anwar Ibrahim tentang perkara ini
disebabkan ianya melibatkan saya dan Mohd Azmin Ali selaku staff
peribadi Dato' Seri Anwar pada ketika itu.
Question: Kamu tidak menghubungi saksi-saksi tersebut sepertimana yang diminta oleh SAC Musa?
Answer: Saya tidak menghubungi saksi-saksi lain kecuali saya memaklumkan perkara ini kepada Che Mohd Azmin Ali. 205..
Question:
Pada 2.9.1997 selepas kamu memaklumkan kepada Dato' Seri Anwar tentang
permintaan SAC Musa itu, betul atau tidak bahawa lebih kurang 11.30 pagi
SAC Musa datang menemui kamu di Jabatan Perdana Menteri?
Answer:
Pada hari tersebut lebih kurang jam 11.30 atau 11.45 pagi SAC Musa ada
menjenguk ke dalam pejabat saya dan memaklumkan kepada saya bahawa
beliau sudah sampai untuk bertemu dengan Dato' Seri Anwar Ibrahim.
Question:
Betul bukan bahawa SAC Musa datang menemui kamu memaklumkan kepada
Dato' Seri Anwar tentang permintaan SAC Musa itu kepada kamu?
Answer: Betul.
Question: Kamu tahu atau tidak siapakah yang mengarahkan SAC Musa datang untuk bertemu Dato' Seri Anwar pada hari itu?
Answer: Saya tidak tahu.
In
his re-examination ASP Zull Aznam said that SAC Musa's request to him
to get the witnesses ready was conditional upon being contacted again.
He said that SAC Musa did not get back to him.On this issue the crossexamination of Azmin is as follows:Question:
Pada 2.9.1997 jam lebih kurang 12.30 tengah hari ASP Zull Aznam ada
memberitahu kamu mengenai kehadiran SAC Musa (SP13) di pejabat Timbalan
Perdana Menteri untuk bertemu dengan tertuduh.
Answer: Ya.
Question:
Pada hari yang sama, iaitu 2.9.1997, adakah SAC Musa bertemu dengan
Dato' Seri Anwar di pejabat Timbalan Perdana Menteri?
Answer: Saya pohon keizinan untuk merujuk diary saya.
Saya perlu merujuk kepada diary terlebih dahulu.
Question: Pada
ingatan kamu adakah kamu nampak SAC Musa masuk ke dalam pejabat Timbalan
Perdana Menteri untuk berjumpa dengan tertuduh pada hari itu?
Answer: Saya tidak nampak.
Question:
Sebelum ASP Zull Aznam memberitahu kamu mengenai kehadiran SAC Musa
adakah kamu menghubungi SAC Musa melalui telefon untuk memaklumkan
kepadanya bahawa Timbalan Perdana Menteri ingin berjumpa dengan SAC
Musa.
Answer: If I had called SAC Musa for the appointment I would have definitely entered it in the diary.
Question:
Saya mengatakan pada kamu bahawa kamu ada menelefon SP13 pada hari itu
untuk memaklumkan padanya bahawa Timbalan Perdana Menteri iaitu tertuduh
ingin berjumpanya di pejabat Timbalan Perdana Menteri.
Answer: Soalannya sama.
Question: Sekarang saya mengatakan.
Answer: Saya tidak bersetuju.
The
first matter for determination is whether the meeting on 2 September
1997 did in fact take place as described by SAC Musa.
The accused started off by saying in his examination-in-chief that he
could not remember the date of the meeting.
He then qualified it by saying that he had only one meeting with SAC
Musa, that is to say, when his police statement was recorded.
It must be noted that the accused's police statement was recorded by SAC
Musa on 19 August 1997.
My earlier finding that the accused did in fact meet SAC Musa on 30
August 1997 means that the accused had more than one meeting with SAC
Musa contrary to his assertion.
The cross-examination of the accused on this issue pre-supposed the fact
that there was a meeting on that day but the accused did not challenge
it in any way.
Be that as it may, the accused's answer given in his re-examination that
with regard to the meeting on 2 September 1997 he could not recall what
transpired except for what SAC Musa told on the progress of the
investigation amounts to an admission that he did in fact meet SAC Musa
on 2 September 1997.
It follows that Azmin's evidence that he must check his diary in order
to ascertain whether SAC Musa met the accused on that day and that he
did not see SAC Musa going into the accused's office is an evasive
attempt to avoid answering the questions.It is therefore my finding that SAC Musa did meet the accused on 2 September 1997.The
next matter for deliberation is whether the accused handed over exhs.
P20, P21 and P22 to SAC Musa and instructed him to stop the
investigations. ASP Zull Aznam has confirmed that SAC Musa asked him to
get the witnesses ready on 2 September 1997.
He also said that after he had informed the accused about the request of
SAC Musa, SAC Musa came to see the accused. ASP Zull Aznam also said
that after this meeting SAC Musa did not contact him again regarding the
taking of statements from the witnesses.
The evidence of SAC Musa is that no further action was taken on the
investigation pursuant to what transpired between him and the accused at
the meeting.
This explains the evidence of ASP Zull Aznam that SAC Musa did not
contact him again
after 2 September 1997.
So something must have transpired between SAC Musa and the accused at
the meeting.
In determining what transpired between them I shall first consider the
accused's denial that he handed over exhs. P20, P21 and P22 to SAC Musa
at that meeting.When these letters were referred to SAC Musa in his examination-in-chief he said:Ketiga-tiga dokumen ini adalah dokumen-dokumen yang diberikan kepada saya oleh tertuduh.
SAC
Musa was not cross-examined on this and neither was it put to him that
these letters were not handed over to him by the accused on 2 September
1997.
Thus the accused's evidence that he did not hand them to SAC Musa
becomes very weak.
The accused has also denied that he gave any instructions to SAC Musa at
the meeting.
But he said that he reminded SAC Musa of YAB Prime Minister's "205
instructions as reported in the papers." If he did not give the
instructions to SAC Musa as testified by the latter I do not see the
relevance of the accused's reference to YAB Prime Minister's statement
at the meeting unless it was preceded by other instructions.
Be that as it may, it is the case for the prosecution and also the basis
of the cross-examination of SAC Musa that the accused referred to YAB
Prime Minister's press statement to SAC Musa at the meeting on 30 August
1997.
It was neither the case for the prosecution nor that of the defence, at
that stage, that the accused referred to YAB Prime Minister's press
statement to SAC Musa on 2 September 1997.
In my opinion therefore the alleged reference of the statement to SAC
Musa, as the accused said he did, on 2 September 1997 is because of too
many shifts by the accused in his line of defence from that adopted in
cross-examination, the variations and denials in his testimony and the
resultant confusion arising therefrom.
In the premises the accused's evidence must be looked at with grave
suspicion.
It is my view that the fact that upon receipt of exhs. P20, P21 and P22
SAC Musa took immediate steps to recommend that no further action be
taken on the investigation supports his evidence that he received
instructions from the accused to do so. It is therefore my finding that
the accused gave instructions to SAC Musa to stop the investigation upon
handing over to him exhs. P20, P21 and P22. I must also point out that
SAC Musa had agreed to a defence suggestion that these letters together
with exhs. P17 and P18 made him recommend that no further action be
taken in the matter. I am therefore unable to give any credence to the
cautioned statement of the accused, exh. D72, where he had said that he
did not instruct any police officer to stop the investigation.
On the evidence adduced I am also unable to agree with the defence
submission that the accused used exhs. P20 and P22 only on 25 August
1998 when he wrote to YAB Prime Minister.
In the premises it is my finding that the accused had used exhs. P20 and
P22 to stop the investigation in order to save himself from any
criminal action.
The premature termination of the investigation is an advantage to the
accused as it thereby prevents the relevant authorities from making a
decision on a possible prosecution.The accused has therefore saved himself from any criminal action by using exhs. P20 and P22.It
is therefore my finding that the defence has not raised any reasonable
doubt, on the whole of the evidence adduced, on the issue of the
advantage obtained by the accused. I therefore hold that this element
has been proved beyond reasonable doubt.The findings that
I have made reduce to dust the defence of the alleged police
conspiracy. I say this because despite the fact that this alleged
defence was pursued with much persistence, no evidence was adduced to
show that the prosecution evidence had been fabricated as a result of
such a conspiracy.
No suggestions were put to the police witnesses in their
cross-examination, or, for that matter, even when Dato' Mohd Said and
Dato' Amir Junus were recalled by the defence, so as to give them an
opportunity to explain whether they had fabricated evidence against the
accused pursuant to a police conspiracy.
The only suggestion of fabrication that was put was to Dato' Amir Junus.
But it had nothing to do with a conspiracy by the police but more by
Dato' Amir Junus for personal reasons.
It was put to him that he gave false and fabricated evidence against the
accused to save his skin, his gratuity and his pension rights.
This was denied by him.
The accused alluded to a conspiracy against him by saying that the
attitude of the police changed against him in 1998 as compared to in
1997.
The findings that I have made show why there was such a change.
Thus the story of the alleged police conspiracy collapsed even before it
could take off.
On the contrary my acceptance of the alternative submission of the
defence that Dato' Mohd Said and Dato' Amir Junus were accomplices of
the accused leaves no room for doubt that it was the accused who had led
them into a conspiracy in order to cover-up the allegations that had
been made against him so as to safeguard his position.
The allegations remained covered-up from August 1997 to June 1998 when
the accused caused a police report to be made on Buku 50 Dalil.
The resultant investigation into this report by another branch of the
Police Department revealed the involvement of the Special Branch in
procuring exhs. P17, P18, P20 and P22 on the directions of the accused.
Therefore what was coveredup by the accused was exploded by he himself
when he caused the report to be made.
The explosion exposed the truth.
Until then it was the belief of all persons concerned that the
allegations against the accused had been lawfully and voluntarily
withdrawn.
It was this belief that caused YAB Prime Minister, the Honourable
Attorney General and the IGP to issue statements saying that the
complaints against the accused were baseless.
If not for the police report made into Buku 50 Dalil they and the people
of Malaysia would have
continued with that belief.
The reality that must now be faced is that the statements that were
issued cannot in any way be the yardstick for arguing that since the
accused had been declared to be innocent in 1997 the change in attitude
towards him in 1998 was due to a conspiracy and fabrication of evidence
by the accused himself.The change in attitude developed late simply because the truth had been hidden earlier.VerdictHaving
considered the whole of the evidence adduced I am satisfied that in
view of the numerous contradictions and inconsistencies in the defence
evidence not only in that of the accused himself but also in that of his
own witnesses the defence is unworthy of any credence.
Further
the defence has failed to raise any reasonable doubt as to the truth of
the prosecution case or as to the accused's guilt for the reasons that I
have considered earlier. I therefore find that the prosecution has
proved its case against the accused beyond reasonable doubt on all four
charges and, in the upshot, I find him guilty as charged.SentenceWhen
I asked the defence to address the court on sentence learned counsel
applied for the case to be stood down in order to confer with the
accused. I allowed the request.
When court resumed learned counsel said that the accused would like to
address the court himself.
After some initial reluctance I allowed the application.
The accused then proceeded to read his plea in mitigation from a
prepared text.
It centred on the allegation of political conspiracy against him and
attacks on the judiciary.
It was not what one would call a plea in mitigation.
The Honourable Attorney General felt compelled to object several times
to what the accused was reading.
Being concerned, I reminded the accused to confine himself to a proper
plea in mitigation to better serve his own interests.
He persisted in reading his text.
When he finished reading I turned to his counsel and asked him whether
he had anything to say in the confident expectation that he would put up
a plea in mitigation.
But counsel replied that he did not wish to say anything.
The Honourable Attorney General then spoke of the seriousness of the
offence for which the accused had been found guilty.
He added that the accused, apart from being the Deputy Prime Minister
and Minister of Finance at the material time, was also the Chairman of
the Cabinet Committee on Management and Integrity.
The task of that committee is to ensure that the government is free from
corruption.
By committing these offences the accused had betrayed the trust that YAB
Prime Minister and the Government had in him.
The offences committed by the accused must be viewed at gravely as it
undermines the administration of justice.
What he did was for his own personal advantage.
The Honourable
Attorney General then prayed for a
deterrent sentence and said that the sentences in respect of the first
and third charges and the second and fourth charges should run
consecutively as they relate to offences committed at different times. I
then asked learned counsel again whether he had anything to say.
On this occasion too he said that he does not wish to say anything.This
indicates that there was not only an absence of remorse on the part of
the accused but also an unwillingness to make a plea in mitigation.It
is settled law that a court should, when sentencing an accused, take
into account all considerations relevant to the case, including the
gravity of the offence, the circumstances surrounding the commission of
the offence, the antecedents of the accused, the deterrent effect that
punishment is to have, any factor that warrants special attention either
in favour or against the accused and above all the public interest (see
Lim Guan Eng V. Pp [2000] 2 CLJ 541).
I hasten to reiterate that the defence deprived me of the benefit of
information regarding factors that may be in favour of the accused in
assessing sentence by failing to advance a proper plea in mitigation.
This was despite my requests to the accused himself when he was reading
the text to concentrate on matters that may mitigate the sentence to be
imposed.
My repeated requests to learned counsel for anything that he may wish to
say was also futile as he declined to address the court on sentence.
Thus I had to carry out the sentencing exercise only on the material available to me.In
assessing the appropriate sentence to be passed on the accused the
first matter to be considered is the object of Ordinance No. 22, under
which the accused was charged and found guilty, which was enacted to
widen the campaign against corruption.
It serves to strike at any act done by a politician or public officer
whereby he has used his public position to his advantage.
In my opinion any sentence passed for an offence under s. 2(1) of
Ordinance No. 22 must take into account the position occupied by the
politician or public officer concerned and the nature of the abuse of
office.
Even in Nunis v. PP [1982] 2 MLJ 114, a case involving abuse of
office by a fire officer, the sentence imposed was two years'
imprisonment after due consideration having been given to the fact that
the charge was hanging over his head for several years.
In commenting on the severity of offences of this nature Abdul Hamid FJ (as he then was) said in Nunis v. PP [1982] 2 MLJ 114 at p. 118:Perhaps
it would also be appropriate to say that if there is a hope for the
country to have a clean and efficient administration it is essential
that members of the administration should not be corrupt.
Offences for corrupt practice committed by a public officer, Members of
Parliament and Assemblymen must therefore be dealt with severely.
Public interest demands it.
In this case the accused was
the second highest ranking official in the country at the material time.
The manner in which he abused his office hits at the very core of the
administration of justice.
Its seriousness cannot be underestimated.
It is not the act of a minor official upon another.
It is the act of the second most powerful official in the country upon
two ordinary citizens who led ordinary lives.
If complaints of ordinary citizens like them can be caused to be
retracted by persons in high authority, with impunity as in this case,
through misuse of agencies such as the police or Special Branch the
ordinary citizen would be deprived of justice and protection of the law.
There can be no double standards in the administration of justice.
It is the birthright of every citizen.
It is ironical for a person to make use of the police and the Special
Branch to stifle or suppress complaints for his own benefit and, when
the truth is exposed, turn the tables against the same agencies and
boldly accuse them of fabrication of evidence against him. I was
therefore of the opinion that the accused must be given an appropriate
custodial sentence.
Upon a consideration of the maximum term of imprisonment under s. 2(1)
of Ordinance No. 22 which is 14 years I was of the view that the initial
calculation of the sentence to be imposed should be in the range of
nine years' imprisonment.As D A Thomas says in his book entitled Principles of Sentencing at p. 39:From
the initial figure calculated by reference to the seriousness of the
offence allowance may be made by way of mitigation for good character,
or for moderately good character.
However, in assessing
the allowance to be given from my calculation of the initial figure I
had to strain myself to look for mitigating circumstances in favour of
the accused in the absence of any plea in mitigation from him or his
counsel. I considered, on my own, the accused's service to the nation
for 16 years, his previous clean record and that he is a married man
with several young children.
The factors against the accused are the attempted use of tampered
evidence and a good part of the defence consisting of after-thoughts.
The offences for which I had found the accused guilty do not reveal them
to be merely inadvertent and technical in nature but ones that were
pre-meditated and executed over a period of time.The accused did not display any sign of remorse from the very beginning of the trial till its conclusion.I
also considered the period the accused had been in remand from the date
of his arrest.
As he had been in remand for about seven months prior to being found
guilty I had to determine whether it should be taken into account in
assessing sentence.
It will have a bearing on the commencement of the date of sentence.
This is governed by s. 282(d) of the Criminal Procedure Code which reads as follows:With regard to sentences of imprisonment the following provisions shall be followed: (a) 205
(b) 205
(c) 205
(d)
every sentence of imprisonment shall take effect from the date on which
the same was passed unless the court passing such sentence otherwise
directs.
The sub-section makes it clear that the normal
rule is that a sentence takes effect from the date on which it is
passed. A departure from this rule is permissible if the court so
directs at its discretion.
As it is a discretionary power an application to that effect must be
made by the accused when he is making his plea in mitigation.
Where a person has been in remand prior to his conviction such period
may be taken into account in one of two ways in determining the
sentence.
The method chosen will play a decisive role in fixing the date of
commencement of the sentence.
It may be considered as a factor in assessing the sentence to be imposed
in which event the sentence must commence from the date of conviction.
If it is not so considered the sentence may be ordered to take effect
from the date of arrest.
In the case of the former the length of the sentence that would
otherwise have been imposed would be reduced.
In the case of the latter no such reduction would be ordered but the
sentence would be back-dated so as to span the period of the remand.As it is a matter of discretion a court may decline to take any account of the period in remand (see R v. Clarke [1996] 87 A Crim R 441). There is no obligation to back-date a sentence in all cases (see Muir v. H M Advocate [1985] SCCR 402). As a matter of fact I had the occasion to consider this area of the law in PP v. Iran bin Sakdon [1998] 4 J Cr 415 where I said at pp. 421-422:The
learned Magistrate has taken into account the period of remand of the
accused prior to his conviction in imposing sentence and has at the same
time ordered the imprisonment term to commence from the date of arrest.
Section 282(d) of the Criminal Procedure Code provides that every
sentence of imprisonment shall take effect from the date on which the
same was passed unless the court passing such sentence otherwise
directs.
Such a direction may include an order that a sentence of imprisonment is
to take effect from the date on which the offender was arrested.
The exercise of this power is discretionary (see Sinniah Pillay v. PP
[1992] 1 SLR 225). A court may also make some allowance in imposing
sentence where the accused has spent a long time in custody while
awaiting trial (see R v. Layton [1959] Crim LR 61; R v. Newman [1959] Crim LR 138; R v. Yakimovitch
[1960] Crim LR 66). The exercise of this power is again discretionary
and thus I would not agree, with respect, with the view expressed in Lian Kian Boon v. PP
[1991] 1 MLJ 51 'that in the ordinary course of events the period of
his detention should have been taken into consideration and deducted
from the sentence of 12 months.' In my opinion a period of remand can
therefore operate in favour of an offender in only one of the two
following ways.
If the sentence of imprisonment is to take effect from the date it was
passed then the period spent in remand may be considered in assessing
the prison term.
If that course is adopted then the prison term cannot be ordered to take
effect from the date of arrest.
If the period spent in remand is not taken into account in assessing
sentence then the sentence of imprisonment imposed may be ordered to
take effect from the date of arrest. A consideration of the period in
remand in assessing sentence followed by an order that the sentence of
imprisonment is to take effect from the date of arrest amounts to double
credit being given for the same factor.
This is wrong in law.
In the case of the accused it must
be observed that he has been in remand in respect of 10 charges, five of
which relate to sodomy allegedly committed by him.
Thus his remand is also in respect of offences other than the four
charges for which I had found him guilty.
In R v. McHugh [1985] 1 NSWLR 588 it was held that it is
desirable to back-date a sentence where the pretrial custody exclusively
refers to the offence for which sentence is being passed (see also R v. Reed
[1992] 2 VR 484). As the accused's remand is also in respect of other
offences the commencement of the sentence from his date of arrest will
therefore be not appropriate.
Thus I took into account the period spent by the accused in remand, even
in the absence of any application having been made to that effect, by
reducing the length of sentence that would otherwise have been imposed.
In the circumstances I convicted the accused and passed a sentence of
six years' imprisonment in respect of each of the four charges. I
ordered that the sentences are to run concurrently notwithstanding the
fact that there was no reply from the defence to the prosecution
submission for the sentences to be consecutive.As
I have taken account of the period the accused had spent in remand in
assessing the sentence my order was that the sentence shall commence
from the date of conviction.The defence applied for a stay of execution pending appeal and referred to me cases such as Re Kwan Wah Yip & Anor. [1954] 1 LNS
78and Ganesan v. PP [1983] 2 MLJ 369.
The prosecution relied on the same cases in opposing bail.
In considering the application I took into account factors such as the
seriousness of the offences for which the accused has been found guilty
and the defence advanced which consisted of after-thoughts and the
attempted use of tampered evidence.
Accordingly, I dismissed the application.
Posts
