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HIGH COURT MALAYA, KUALA LUMPUR AUGUSTINE PAUL J CRIMINAL TRIALS NOS: 45-48-98 & 45-49-98 24 APRIL 1999 [1999] 2 CLJ 215 Augustine Paul J: Dato' Seri Anwar bin Ibrahim (hereafter referred to as "the accused"), the former Deputy Prime Minister and Minister of Finance of Malaysia was produced before me on 5 October 1998 charged with five counts of sodomy under s. 377B of the Penal Code and five counts of corrupt practices under s. 2(1) of the Emergency (Essential Powers) Ordinance No. 22 of 1970 (hereafter referred to as "Ordinance No. 22"). He claimed trial to all ten charges. The prosecution applied for four charges under s. 2(1) of Ordinance No. 22 to be tried together pursuant tos. 165 of the Criminal Procedure Code. The defence did not object. I allowed the application. The four charges as originally framed read as follows: (English translation of the charges) On 13 January 1999 the prosecution applied for leave to amend all four
charges at the close of its case.
It must be observed that the original charges relate to abuse of power
under s. 2(1) of Ordinance No. 22. The references in the charges to
sexual misconduct and sodomy "committed" by the accused relate to
another offence.
This does not accord with s. 163 of the Criminal Procedure Code which
provides that for every distinct offence of which any person is accused
there shall be a separate charge.
In order to avoid the duplicity in the charges I allowed the application
to amend them.
The four charges as amended read as follows: (English translation of the charges) 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 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: 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: YAB 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. Akhirnya pada 9hb. 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. Anwar: Ya, bercakap. Anwar: Hah 205 tulah suara you seksi sangat. Apabila gagang telefon diletakkan, maka berdetak hati saya mengesahkan gerangan si-lelaki tersebut dengan pembantu-rumah. 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. Sekali lagi dengan kuasa Allah, akhirnya pemandu kereta Shamsidar Taharin iaitu Azizan Abu Bakar telah datang ke pejabat saya pada 19hb. Pada 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. Dalam perjalanan, saya sempat menelefon abang sulung, Mohd Azman Ali untuk turut serta. Seluruh keluarga terperanjat, sedih tertekan, terhina oleh perbuatan keji insan munafik Anwar Ibrahim. YAB, kami tidak melaporkan kepada Mohamed Azmin kerana percaya bahawa kasih-sayang dan kesetiaannya terhadap isteri dan ketua tidak berbelah bagi. YAB, pada 10hb. 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. Saya juga telah dituduh oleh insan munafik Anwar Ibrahim bahawa saya ini (syok dekat dia melalui perbualannya dengan Datuk Seri Megat Junid) pada 2hb. Beliau seolah-olah melatah akan kesalahannya sendiri. Anwar ada menelefon Azizan pada 13hb. 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. 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. 7. Saya juga memohon jasa baik YAB untuk merahsiakan laporan ini demi keselamatan kami sekeluarga. Akhirnya doa-doa kami insan-insan teraniaya dimakbulkan oleh Allah. Segala pertolongan, pertimbangan dan kerjasama serta kasih-sayang YAB sebagai seorang Bapa Kepimpinan sangatlah dihargai dan disanjung tinggi. Shazrin: Maklong, jangan cubit Fifa. Mummy kata dia anak Menteri. Liyana: Alah maklong ni, mummy kan cakap pelan-pelan, lama-lama dengan Uncle Anwar, mestilah boyfriend dia. Perbuatan terkutuk ini telah dilakukan untuk beberapa kali sekitar tahun 1992 tanpa kerelaan saya. Sepanjang bekerja di bawah naungan beliau, Anwar, saya sering dipanggil untuk melakukan perkara terkutuk itu walaupun untuk beberapa kali saya cuba menolaknya. 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. 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. Oleh: t.t. I/C: 5980324 Alamat: 54, Jalan Bersatu 1 Taman Bersatu, 48000 Rawang Tarikh: 5hb. On 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: 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:- 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. On 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: Pada 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. 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. 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. On 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: Kedua-dua tajuk telah ditangkap pada malam 17 OGOS 97 oleh pihak Jabatan Siasatan Jenayah. 2. Di dalam pertemuan ini, Dato' Seri ANWAR telah dimaklumkan tentang rentetan penangkapan kedua-dua tajuk berkenaan. 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: 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: 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. 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. Exhibit P18 reads as follows: Dengan 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. 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. Melalui penyiasatan ringkas yang saya lakukan sendiri, saya berasa yakin bahawa pemanggil itu adalah YB Anwar bin Ibrahim. 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. 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. 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. Di waktu itu saya difahamkan ianya akan diserahkan kepada Perdana Menteri secepat mungkin. Sehubungan itu mereka menjanjikan perlindungan keselamatan terhadap diri saya dan juga diri Azizan. Cara penghantaran surat mungkin salah di mana telah melalui beberapa proses orang tengah yang kini diragui kejujurannya. YAB, saya bagi pihak keluarga ingin memohon maaf sekiranya laporan sulit ini telah menimbulkan pelbagai kekeliruan yang berbangkit. On 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: 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: YAB DATO' SERI DR MAHATHIR BIN MOHAMAD PERDANA MENTERI MALAYSIA, PEJABAT PERDANA MENTERI, JALAN DATO ONN, 50502 KUALA LUMPUR 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. 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. 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. Dato' 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: 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. Dato' 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: Segala apa yang terkandung di dalam surat tersebut adalah semata-mata fitnah belaka. On 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: 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. 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. The 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: 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. She was also asked to write a covering letter to the accused which she did. It is exh. P21 and reads as follows: Merujuk kepada perkara di atas, bersama-sama ini disertakan dengan penjelasan mengenai pengakuan umum yang dilampirkan. Sekian. ACP 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: 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: 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. 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 And at pp. 577-578: 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. 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. 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: 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: 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: 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: 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: J Ya, saya faham. J Saya ingin menegaskan bahawa saya seharusnya berhak menemui peguambela segera memandangkan pertuduhan-pertuduhan yang begitu banyak terhadap saya. 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: 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: In objecting to the statement having been given to ACP Mazlan the defence said this: 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. 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: 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: 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 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 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: On the type of witnesses who must be called by the prosecution Lord Roche said in the same case at p. 49: 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: 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: 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: 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 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: 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: 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. 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: 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: 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: 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: 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: In Ariyadasa v. The Queen [1966] 68 NLR 257 TS Fernando J said: 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: 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: 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: 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. 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. 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: With regard to the circumstances in which he made exh. D55 Azizan said in cross-examination: 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: With regard to his third visit to the office of Sukdev Singh, Azizan said: 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. As to the truth of the contents of exh. D55 Azizan said: On being cross-examined as to whether all the contents of exh. D55 are untrue Azizan said: On being re-examined as to the contents of exh. D55 Azizan said: 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: 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. 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. When she was cross-examined on the circumstances in which she affirmed exh. D90 she said: 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. In re-examination she said: 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: 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: 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: 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: 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: 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: 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: 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: 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: 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: 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: 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: 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: 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: In his judgment Brennan J said at pp. 614-615: 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. You look at the reality of the situation, members of the jury. 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: 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: In answer to this his Lordship said at p. 129: 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 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: Berkenaan 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. Saya yang menyuruh Ummi membuat P14C kerana Ummi mahir dalam penggunaan bahasa. 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. In his re-examination he said: 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: 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: 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: When further cross-examined on the same issue she said: 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: 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: On this issue Dato' Amir Junus, upon being cross-examined, said: Saya 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: Dato' Amir Junus said in cross-examination: Saya setuju bahawa dari masa ke semasa Cawangan Khas dipanggil oleh tertuduh untuk mentaklimatkan perkembangan siasatan yang dijalankan dan maklumat-maklumat yang didapati. 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: 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: In this regard Dato' Amir Junus said in cross-examination: 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: And later: 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: 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: Dato' Amir Junus said: 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: 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: 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: (Saksi dirujuk kepada ID19 hingga ID22.) Three of the exhibits carry a rubber stamp. ID19 does not have a rubber stamp. 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: 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: 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: The word "direction" is defined in Black's Law Dictionary as: And the verb "direct" as: 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: Answer: I did it because it was an instruction from the Deputy Prime Minister. In his re-examination he said: 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: In his cross-examination he said: Answer: 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. Answer: Seperti yang saya katakan tadi saya menerima arahan itu bersamasama dengan pegawai atasan saya. 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. 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: 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 this regard Dato' Amir Junus said: 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' 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: On this issue Dato' Amir Junus said: 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: On this issue Dato' Amir Junus said: 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: 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. After DSP Aziz received instructions to obtain the retraction letter from Ummi he discussed the matter with her. As he said: 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. Ummi explained why she wrote exh. P18 in this way: 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: He then continued: According to ACP Mazlan the steps he took to obtain the denial letter from Azizan are as follows: Azizan explained the circumstances in which he wrote exh. P17 in this way: 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: 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: And later said: Azizan's explanation for writing exh. P19 is as follows: 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: ACP Mazlan and DSP Aziz then took the letter (exh. P29) to Dato' Amir Junus for his perusal. As Dato' Amir Junus said: 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: 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: 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: 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: 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: 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: On this issue Dato' Amir Junus said in his examination-in-chief: Process turning over dan juga neutralisation ini adalah untuk mencapai penarikan balik semua tuhmahan-tuhmahan yang dibuat oleh Ummi dan Azizan. When 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: 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: 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 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. 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: 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: 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. 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'. 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: 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: 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: 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: Answer: Benar. 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: He did not agree with a defence suggestion that: 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: 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: 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: 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: 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: 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: With regard to exh. P14A, B and C he said: 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: 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: 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: 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: 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: On 17 August 1997 the IGP informed the accused that Ummi and Azizan had been arrested. According to the accused the IGP 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. 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. The accused explained why he did not want Ummi and Azizan to be detained for long. 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. 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. On 18 August 1997 he met Dato' Mohd Said and Dato' Amir Junus at about lunch time at his Official Residence. 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. I assumed as per my instruction that the police should do what was right and proper. 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. 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. 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. 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. 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 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. 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. 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. 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. 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. 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. I did not give any instructions to PW1 and PW11 to get Ummi and Azizan to retract their allegations. I did not give any instructions to PW1 and PW11 to obtain the Kenyataan Umum from Ummi and Azizan. 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. The 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. 205 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. The accused said that on 8 May 1995 he took an oath to keep secrets as a Minister. 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. 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. Saya setuju tuhmahan dan fitnah dalam P14A, B dan C telah tersebar secara meluas melalui satu conspiracy mulai Ogos 1997. Tuhmahan dan fitnah di dalam P14 tidak mudah menyebabkan kebencian ramai kerana rakyat juga ingin mengetahui punca dan usaha penyebar fitnah. 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. Saya tidak terjejas semata-mata kerana tuhmahan dan fitnah P14. Tuhmahan P14 dan P15 dari awal lagi diketahui fitnah besar dan jahat. Tidak mungkin kalaupun tersebar luas boleh mengakibatkan penghinaan dan kebencian ramai. Saya telah jelaskan bahawa fitnah dan tuhmahan tidak mungkin menjejaskan nama baik saya. 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. 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. Saya tidak memberi arahan sama sekali seperti yang didakwa dan soal cara tindakan polis tidak pernah dibincang dengan saya. 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. 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. 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. 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. 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. 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'. Ada mereka sebut. Pada masa itu mereka menunjukkan simpati yang amat sangat kepada saya. 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. Surat-surat ini (P17 dan P18) memberikan penjelasan dan maklumat tentang pendirian kedua-dua mereka. Saya telah minta pihak polis menyiasat sepenuhnya. 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. Saya tidak bersetuju. Ini direka oleh SP11. Kalau saya nak jumpa, saya jumpa Azizan dan Ummi, kalau betul. 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. Saya tidak pernah diberitahu sama sekali tentang apa yang disebut arahan itu. The 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. 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. Betul untuk mengawal keselamatan kawasan rumah dan ini saya sampaikan kepada Zull Aznam. 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. 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. Saya jelaskan bahawa apa yang saya jawab itu betul mengikut catatan diari dan nota pejabat. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Why is it that at that time you were not inclined to have this matter brought to Court? 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. 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. After he lodged exh. P16 SAC Musa took his statement on 19 August 1997. 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. There was never a suspicion that P17 and P18 were involuntary. 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. 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. 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. The 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. 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. 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. They just informed me and showed me the letters. The accused called a total of 22 other witnesses to testify on his behalf. I shall now explain why I excluded certain categories of evidence. (vi) Evidence relating to legal professional privilege Political 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. 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. 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. 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. No. To show the credibility of witnesses. Because in 1997 all the contemporary documents including D25 had stated in no uncertain terms that there were people behind the allegations. 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. 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. 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. 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? 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. 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. 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. 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. 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. 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 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. 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. 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. On 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. 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. 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. Nor 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. Adakah Ummi memberitahu kamu dari manakah beliau dapat buku itu? 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. 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. 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. 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.' The 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. 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. 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. 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. 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). 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. 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. 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. 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 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 are not 'reasonable probably'. The significant word is 'highly'. This means more than normal standard of probability. 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. 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. 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. 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. 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. as some sort of security for the price he gave a bill of exchange for 25l. was 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. 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. 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. 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. 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. The defence called two advocates and solicitors as witnesses whose proposed evidence related to communications they had with clients. Saya tidak mempunyai persetujuan atau kelulusan anakguam saya En Azizan bin Abu Bakar seperti yang diminta oleh Tuan Peguam. 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. (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. 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. 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). 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 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. 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. Section 126 shall apply to interpreters and the clerks or servants of advocates. 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). At 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 The defence tendered in evidence certain newspaper reports. This 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. The defence called in evidence the reporters who were present at the various 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 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. 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. The 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. This 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. 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. 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, After 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. Azizan telah membuat lebih kurang lima pernyataan. Tidak ada pernyataan yang dibuat oleh Azizan yang dia menafikan bahawa dia diliwat oleh tertuduh. Apakah yang dinyatakan oleh SP12 (Azizan) di dalam percakapannya di bawah s. 112 berkaitan dengan tertuduh? (En Bachan objects as the contents of a s. 112 statement is not admissible.) 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. 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. The 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 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. 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.) 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. 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. 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. 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. 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. 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. In 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 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. I had allowed the prosecution to show MaAmin parts of his police statement when he was being cross-examined. 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 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. 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 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. 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 object is to give him a chance of explaining the discrepancy or inconsistency and to clear up the particular point of ambiguity or dispute. 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. 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. 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 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. 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. I 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. 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. 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. Question: Did Ummi show you D90? Answer: Ya. 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. 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 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 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. Prior to P14 in July 1997 I received a letter purportedly written by Ummi 205 Are you aware of a letter purportedly written by Ummi to the Prime Minister in 1997? 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. 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 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. 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. Rahim King dan MaAmin adalah kawan tertuduh dan bukan kawan saya. Saya telah dipaksa untuk menandatangani IDD54 setelah sering dihubungi oleh MaAmin, Rahim King kerana mereka adalah orang-orang suruhan tertuduh. 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. Setelah dipersetujui oleh Dato' Seri Anwar saya telah meminta Abdullah Sani untuk menghubungi Azizan dan seterusnya menetapkan tarikh, waktu dan tempat pertemuan tersebut. 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. The 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 I said earlier this ingredient involves proof of two elements by the prosecution. (ii) the advantage that he obtained. The 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. 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. 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. 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. 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. 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 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. 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. Semasa pertemuan saya dengan SP1 pada 11.8.1997 saya bukanlah yang berbangkitkan isu P14. 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. 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? Ya. Kamu membuat panggilan telefon itu atas arahan Dato' Seri, bukan? Ya. 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 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 At that time I did not decide which branch of the police would conduct investigations. Saya juga akui saya tidak cenderung pada ketika itu untuk membawa perkara itu ke Mahkamah kerana Special Branch baru memulakan siasatan. 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. 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. There were occasions when I invited them to come but on many occasions PW11 would call ASP Zull Aznam. 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. 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. 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. 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. 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. 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. 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. 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 Dato' Seri baik hati sangat. Orang fitnah macam itu pun masih kasihan lagi. Ada mereka sebut. Pada masa itu mereka menunjukkan simpati yang amat sangat kepada saya. I informed my counsel about this after the evidence of SP1 and SP11. 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 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. 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. 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. 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. 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. 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. 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. 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. 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. Saya ingin menafikan sekeras-kerasnya bahawa saya terbabit dalam penerbitan surat-surat layang yang timbul selepas tarikh 5hb Ogos 1997. 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. 205 assumed as per my instructions that the police should do what was right and proper. 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. 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. 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'. Saya tidak bersetuju yang tertuduh tidak meluahkan kepuasan hatinya kepada mana-mana dokumen. It follows that the accused had made corrections to the public statements and had expressed his views on the written statements. 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. 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. 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. The meeting on 11.8.1997 was at 8.45 a.m. With regard to Dato' Amir Junus what was put to him was that he had a telephone conversation with ASP Zull Aznam. 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. The defence also submitted on a suggestion that was put by the prosecution to the accused in cross-examination. 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. 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. It was then contended by the defence that as Dato' Amir Junus had said 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. 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. 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 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. 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. 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. The accused did not give any evidence on this issue in the course of his examination-in-chief. Tuhmahan dan fitnah di dalam P14 tidak mudah menyebabkan kebencian ramai kerana rakyat juga ingin mengetahui punca dan usaha penyebar fitnah. 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. Saya tidak terjejas semata-mata kerana tuhmahan dan fitnah P14. Tuhmahan P14 dan P15 dari awal lagi diketahui fitnah besar dan jahat. Tidak mungkin kalaupun tersebar luas boleh mengakibatkan penghinaan dan kebencian ramai. Saya telah jelaskan bahawa fitnah dan tuhmahan tidak mungkin menjejaskan nama baik saya. 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. 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. 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. The 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. 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. 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. 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. 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. 205 the message from the Prime Minister as reported in the newspapers on 25.8.1997. 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. 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. 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. 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. 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. 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. 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 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 Ketiga-tiga dokumen ini adalah dokumen-dokumen yang diberikan kepada saya oleh tertuduh. 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 Having 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. When 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 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. 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. 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. 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. 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. 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 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. 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. |
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Counsel: For the prosecution - Tan Sri Mohtar Abdullah (Dato' Heliliah Yusof, Dato' Abdul Gani Patail, Azahar Mohamed, Mohd Yusof Hj Zainal Abidin, Stanley C Augustin, Nordin Hassan & Shamsul Sulaiman with him) For the defence - YM Raja Aziz Addruse (Sulaiman Abdullah, Christopher Fernando, Gurbachan Singh Pannu, Zainur Zakaria, Pawan Chik Marican, Kamar Ainiah Kamaruzaman, Sankara N Nair, Zulkifli Noordin & Robyn Choi with him); M/s Raja Aziz Addruse Reported by WA Sharif |
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