"Maka YAA
Dato Siti Norma nampak bahawa sabitan Dato Seri Anwar bukan sahaja tidak
salah, bahkan selamat juga. Dengan demikian, saya bersependapat dengan
kesimpulan awal Tun DM di www.chedet.com tajuk “Anwar” yang mana Tun DM
mengatakan “Jika dihitung kita akan dapati kesemua 10 hakim yang
mendengar kes Anwar meliwat Azizan bersetuju perbuatan liwat oleh Anwar
memang benar, walaupun dua di antara mereka memberi alasan teknikal
untuk tidak menjatuhkan hukuman salah ke atasnya. Dakwaan oleh orang
tertentu bahawa pembebasan Anwar adalah kerana dia tidak melakukan
jenayah liwat adalah tidak benar.”" - Prof Madya DR Abdul Rani Bin Kamarudin, Pensyarah Undang-Undang (Akta Keterangan & Tatacara Jenayah), Kulliyah Undang2 Ahmad Ibrahim, IIUM
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN JENAYAH NO: 05-6-2003 (W)
ANTARA
DATO’ SERI ANWAR BIN IBRAHIM … PERAYU
DAN
PENDAKWA RAYA … RESPONDEN
RAYUAN JENAYAH NO. 05-7-2003 (W)
SUKMA DARMAWAN SASMITAAT MADJA … PERAYU
DAN
PENDAKWA RAYA … RESPONDEN
CORAM: ABDUL HAMID MOHAMAD F.C.J.
RAHMAH HUSSAIN F.C.J.
TENGKU BAHARUDIN SHAH TENGKU MAHMUD J.C.A.
MAJORITY JUDGMENT OF
ABDUL HAMID MOHAMAD F.C.J.
AND TENGKU BAHARUDIN SHAH TENGKU MAHMUD J.C.A.
In this
judgment, Dato’ Seri Anwar bin Ibrahim will be referred to as “the first
appellant” and Sukma Darmawan Sasmitaat Madja will be referred to as
“the second appellant”.
The first appellant was charged with an offence punishable under section 377B of the Penal Code.
The second
appellant was charged with two offences. The first charge is for
abetting the first appellant in the commission of the offence with which
the first appellant was charged. The second charge is similar to the
charge against the first appellant i.e. under section 377B of the Penal
Code.
Both the
appellants were tried jointly. The first appellant was convicted and
sentenced to nine years imprisonment commencing from the expiry of the
sentence he was then serving in the first trial. High Court Kuala Lumpur
Criminal Trial No. 45-48-1998 (1999)2 M.L.J. 1 (H.C), (2002)2 M.L.J.
486 (C.A.) and (2002) 3 M.L.J. 193 (F.C.)). The second appellant was
convicted on both charges and sentenced to six years imprisonment and
two strokes for each charge with the sentences of imprisonment to run
concurrently. For the judgment of the High Court in the present case,
see (2001) 3 M.L.J. 193.
They appealed to the Court of Appeal. Their appeals were dismissed – see (2004) 1 M.L.J. 177.
They appealed to this court and this is the majority judgment of this court.
Section 87(3)
of the Courts of Judicature Act 1964 (“CJA 1964”) provides that a
criminal appeal to this court “may lie on a question of fact or a
question of law or on a question of mixed fact and law.” The position is
the same as in the case of the Court of Appeal hearing an appeal from a
trial in the High Court as in this case – see section 50(3) CJA 1964.
In this
judgment, we shall first consider whether the trial judge had correctly,
in law and on the facts, called for the defence. If he had not, it
would not be necessary for us to consider the defence: the appellants
are entitled to an acquittal. Only, if we find that the learned trial
judge had correctly called for the defence that we will have to consider
whether he had correctly convicted the appellants at the close of the
case for the defence.
In so doing,
this court (and the trial court too), as a court of law, is only
concerned with the narrow `legal issue i.e. whether, at the end of the
prosecution’s case, the prosecution had proved beyond reasonable doubt
that, in respect of both appellants, the appellants had sodomised Azizan
bin Abu Bakar (“Azizan”) at Tivoli Villa one night between the month of
January until March 1993 and, in respect of the second appellant only,
whether he had abetted the offence committed by the first appellant.
In considering
whether the defence was correctly called, this court, being an appellate
court not only will consider whether all the ingredients of the
offences have been proved beyond reasonable doubt, but will also
consider whether there have been misdirections or non-directions
amounting to misdirections that have caused a substantive miscarriage of
justice.
It must be
borne in mind that the duty on the part of the prosecution at the close
of the case for the prosecution is to prove beyond reasonable doubt, not
only, that the offence was committed one night at Tivoli Villa, but
also that that “one night” was in the month of January until and
incluing the month of March 1993. Even if it is proved that the incident
did happen but if it is not proved “when”, in law, that is not
sufficient. This is because the period during which the offence is
alleged to have been committed is an essential part of the charge. It
becomes even more important when the defence, as in this case, is that
of alibi. The appellants must know when (usually it means the day or
date, but in this case the period from and including the month of
January until and including the month of March 1993) they are alleged to
have committed the offence to enable them to put up the defence of
alibi.
In this respect
we propose to take the bull by the horns. We shall consider, first,
whether the prosecution had proved beyond reasonable doubt not only that
the offence was committed, but whether it was committed one night
during the three months’ period. That would call for the evaluation of
Azizan’s evidence, and determining whether the second appellant’s
confession is admissible. There will be sub-issues that will have to be
determined e.g. the impeachment proceeding against Azizan, whether
Azizan is an accomplice and the issue of voluntariness of the second
appellant’s confession. After deciding on those issues, we shall
consider whether, in view of our findings on them, the decision of the
learned trial judge to call for defence can stand. If it cannot stand,
the matter ends there. If it can still stand, then only we shall
consider the other issues raised at the close of the case for the
prosecution. Only if after considering all the issues raised in respect
of the case for the prosecution we are satisfied that the learned trial
judge had correctly called for the defence that we shall consider the
defence. Otherwise we do not have to as the appellants would also be
entitled to an acquittal at the close of the case for the prosecution.
Credibility of Azizan: general observation
For reasons
best known to the defence which is also not difficult for us to
understand, learned counsel for the appellants, especially Mr.
Christopher Fernando, kept stressing that Azizan was an outright liar.
Actually, in doing so, he had placed a very high burden on the
appellants. For the purpose of the case, in a criminal trial, it is not
necessary for the defence to show or for the court to arrive at a
conclusion that Azizan is a liar before his evidence may be regarded as
unreliable. Azizan may not be a liar but his evidence may or may not be
reliable. Further, some parts on his evidence may be reliable and some
may not be.
Before
considering Azizan’s credibility as a witness, one point must be made so
that whatever conclusion we arrive at will not be an issue vis-a-vis
the earlier finding of the High Court in the first trial which had been
confirmed by the Court of Appeal and this court.
It is to be
noted that Azizan’s credibility had been considered in the earlier case.
All the three courts, including this court, had found that he was a
credible witness.
We must point
out that that is a separate matter. His credibility as found by the
courts in that case was in respect of that case, based on the evidence
he gave in that case. In that case the main issue was whether the first
appellant directed Dato’ Mohd. Said bin Awang, Director of the Special
Branch and Amir Junus, Deputy Director II of the Special Branch to
obtain a written statement from Azizan denying and withdrawing his
(Azizan’s) allegation of sodomy against the first appellant as contained
in his (Azizan’s) statutory declaration dated 5 August 1997 (Exh. P14C
in the first trial and Exh. P5 in this trial which will be referred to
as Exh. P14C/P5) which they (Mohd. Said and Amir Junus) obtained in the
form of a written statement dated 18 August 1997 (Exh. P17 in the first
trial). That was the substance of the offence in the first trial. The
substance of the main offence in the instant appeal is whether the
appellants sodomised Azizan at Tivoli Villa one night in January until
and including March 1993.
Secondly, is it
true that Azizan’s statutory declaration dated 5 August 1997 (Exh.
P14C/P5) and Azizan’s statement dated 18 August 1997 (Exh.P17 in the
earlier trial) featured strongly in this trial and appeal. But, as
pointed out by this court, in the judgment of Haidar FCJ (as he then
was) in the earlier appeal at page 213:
“In respect of
(1) (i.e. allegation of sodomy by the first appellant in Exh. P14C/P5 –
added), after the evaluation of the evidence, the learned judge ruled
there is evidence to show that Ummi and Azizan had made the allegations.
In fact, in our view, the defence did not seriously dispute that the
allegations were made but contended that they were false and fabricated.
However, in view of the amendment to the charges, the truth or falsity
of the allegation was no longer in issue. There are no reasons for us to
disagree with the learned judge when he said at p 114 that:
“….. there is evidence to show that Ummi and Azizan had made the allegations against the accused.”
The principles
adopted by the appellate courts not only in this country but also in
other common law jurisdictions have been reproduced at length by the
Court of Appeal - see from page 206 to 208 of (2004) 1 MLJ. The Court of
Appeal reproduced dicta made in the following cases: Clarke Edinburgh
Tramways (1919) SC (HL) 35 @ 36 (per Lord Shaw of Dunfermline), Powell
and Wife v Streatham Manor Nursing Home (1935) AC 243 at p.249 (per
Viscount Sankey L.C.), Herchun Singh & Ors. v Public Prosecutor
(1969) 2 MLJ 209 at p. 211 (per H.T. Ong C.J. (Malaya), Lai Kim Hon
& Ors v. Public Prosecutor (1981) 1 MLJ 84 (per Abdul Hamid F.J. (as
he then was), Kandasamy v. Mohamed Mustafa (1983)2 MLJ 85 (P.C.) (per
Lord Brightman) and Goh Leng Kwang v. Teng Swee Lin & Ors (1994) 2
MLJ 5 (Singapore). Even learned counsel for the appellants did not
disagree with the principles stated in those cases. We shall not repeat
them except to quote a few short passages from the judgments and point
out the contexts in which they were made.
In Herchun Singh & Ors v. Public Prosecutor (1969) 2 MLJ 209 at p. 211, H.T. Ong (C.J. (Malaya)) said:
“This view of
the trial judge as to the credibility of a witness must be given proper
weight and consideration. An appellate court should be slow in
disturbing such finding of fact arrived at by the judges, who had the
advantage of seeing and hearing the witness, unless there are
substantial and compelling reasons for disagreeing with the finding: see
Sheo Swarup v. King-Emperor AIR 1934 PC 227.”
It must be
noted that, in Herchun Singh’s case (supra), the police report made
shortly after the robbery by the complainant, not only failed to
identify the appellants but contained a further statement “I do not know
them (saya tidak kenal)”. This was contradicted by the complainant who
denied those words, in fact, he remembered telling the police about
Adaikan, the third appellant, as well as giving a description of the
first appellant. He remembered telling the policeman who wrote the
complainant’s police report that there were Sikhs among the robbers and
that one of them was a brother of the estate watchman but whose name he
could not recollect at the time he made the report. Ong Hock Thye (C.J.
(Malaya)) then said:
“The learned
trial judge, having heard the complainant’s explanation, was satisfied
that the latter was still very much shaken by the alarming experience he
had undergone when he made his report but that, despite his agitation,
he did mention the names to the police. This was a finding of fact that
the report which was taken down contain errors and omissions for which
the constable was responsible.”
This passage is
then followed by the passage quoted earlier. So, that passage must be
read and understood in the light of that finding of fact i.e. that the
police report contain errors and ommissions. Indeed, in Herchun Singh’s
case (supra) the learned Chief Justice (Malaya) distinguished Ah Mee v.
Public Prosecutor (1967) MLJ 220 (F.C.) In that case, a rape case, the
Federal Court held that in view of the inconsistencies in the evidence
of the complainant it was unsafe to rely on her uncorroborated evidence
and therefore the conviction must be set aside. This is in spite of the
fact that the trial judge considered that the complainant’s credibility
was unimpeached and had stated that he was personally impressed by his
demeanor.
Ah Mee (supra)
is a case where the complainant’s own evidence is inconsistent, not a
case in which the evidence of one witness on a particular point is
contradictory to that of another witness, and the judge believes one
witness and not the other.
We shall only
refer to another Federal Court judgment in Lai Kin Hon & Ors v.
Public Prosecutor (1981) 1 MLJ 84. In that case, in a passage quoted by
the Court of Appeal in the instant appeal, Abdul Hamid F.J. (as he then
was) said:
“Viewed as a
whole it seems clear that the finding of fact made by the trial judge
turned solely on the credibility of the witnesses. The trial judge heard
the testimony of each witness and had seen him. He also had the
opportunity to observe the demeanour of the witnesses. Discrepancies
will always be found in the evidence of a witness but what a judge has
to determine is whether they are minor or material discrepancies. And
which evidence is to be believed or disbelieved is again a matter to be
determined by the trial judge based on the credibility of each witness.
In the final analysis it is for the trial judge to determine which part
of the evidence of a witness he is to accept and which to reject. Viewed
in that light we did not consider it proper for this court to
substitute its findings for that of the learned trial judge.
The principle
of law governing appeals in criminal cases on questions of fact is well
established, in that the Appeal Court will not interfere unless the
balance of evidence is grossly against the conviction especially upon a
finding of a specific fact involving the evaluation of the evidence of a
witness founded on the credibility of such witness.”
In that case
the Federal Court did not interfere with the finding of the trial judge
because the court was of the view that the trial judge had enough
evidence before him which, if believed, would justify his finding the
appellant guilty.
Of course, the
general principle is not in dispute. However, it is the application of
the principle to a particular situation that is difficult and, more
often then not, in dispute.
Clearly, an
appellate court does not and should not put a brake and not going any
further the moment it sees that the trial judge says that that is his
finding of facts. It should go further and examine the evidence and the
circumstances under which that finding is made to see whether, to borrow
the words of H.T. Ong (C.J. Malaya) in Herchun Singh’s case (supra)
“there are substantial and compelling reasons for disagreeing with the
finding.” Otherwise, no judgment would ever be reversed on question of
fact and the provision of section 87 CJA 1964 that an appeal may lie not
only on a question of law but also on a question of fact or on a
question of mixed fact and law would be meaningless.
Azizan’s
credibility was attacked, first, through the impeachment proceeding and,
having failed in the impeachment proceeding, on ground of
contradictions in his evidence made in the earlier trial and in this
trial. The learned trial judge correctly stated in his judgment that the
“defence is entitled to embark on the assault of the credibility of
Azizan based on the facts of the case even after a ruling has been made
by the court that his credit is saved.” – see page 250, letter “G” of
(2001) 3 MLJ. The Court of Appeal, after citing the learned trial judge
at length and stating the law, agreed with the decision of the learned
trial judge on the impeachment proceeding and the learned trial judge’s
finding that “Azizan was a reliable, credible and truthful witness
notwithstanding some of the discrepancies and contradictions that were
higlighted by the defence.” – see page 215, letter B (2004) 1 MLJ 215.
It is said that
these are concurrent finding of facts of the two courts but, again,
that does not mean that this court should shy away from analysing the
evidence to see whether there are “substantial and compelling reasons
for disagreeing with the finding”, again borrowing the words of H.T. Ong
(C.J. (Malaya) in Harchun Singh (supra).
Impeachment proceeding
The impeachment
proceeding was in respect of Azizan’s inconsistent statements in his
testimony in the previous trial and in this trial. The inconsistent
statements are, in brief, in the first trial he said he was not
sodomised by the first appellant after May 1992. But in this trial, he
said that he continued to be sodomised after that. This becomes of
utmost importance because the charge, as finally amended, gives the date
of the offence as from January until March 1993. His explanation was
that what he meant by the earlier statement was that he was not
sodomised in the first appellant’s house after May 1992.
The learned
trial judge accepted Azizan’s explanation that what he meant by the
statement that he was not sodomised by the first appellant after
September (later, May) 1992 was that he was not sodomised in the first
appellant’s house. His reason was that the questions were asked in
relation to his visits to the first appellant’s house after May 1992.
The Court of Appeal found that there was nothing wrong with the
conclusion of the learned trial judge. Even though we are not absolutely
satisfied with the explanation, we are not inclined to disturb that
finding for the following reasons. First, unlike the learned trial
judge, we do not have the advantage of seeing and hearing the witness.
Secondly, in an
impeachment proceeding, Azizan was placed in the position of an
accused. Therefore, if there is any doubt, the benefit of the doubt
should be given to him.
Thirdly, the
effect of impeachment seems to be very harsh. Not only his whole
evidence will be disregarded, he is also liable to prosecution for
perjury. On the question whether, where a witness is impeached, his
whole evidence is to be disregarded, there appears to be conflicting
decisions in our courts. Earlier cases seem to take the rigid view that
once a witness is impeached, his whole evidence becomes worthless (see
Koay Chooi v. R. (1955) MLJ 209, Mathew Lim v. Game Warden, Pahang
(1960) MLJ 89 and Public Prosecutor v. Munusamy (1980) 2 MLJ 133 (F.C.).
On the other hand, in Public Prosecutor v. Mohd. Ali bin Abang &
Ors. (1994) 2 MLJ 12, Chong Siew Fai J (as he then was) took the view
that the fact that the credibility of a witness is impeached does not
mean that all his evidence must be disregarded. It is still incumbent
upon the court to carefully scrutinize the whole of the evidence to
determine which parts of her evidence are the truth and which should be
disregarded. The learned Judge followed the Singapore case of Public
Prosecutor v Somwang Phattanasaeng (1992) 1 SLR 138. Indeed there is
also another Singapore High Court case to the same effect: Public
Prosecutor v Mohammed Faizal Shah (1998) 1 SLR 333. However, no
reference was made to the earlier Malaysian cases, including the
judgment of this court in Munusamy (supra).
As the point
was not argued before us, and also since it is not necessary for this
court to decide on the issue in this appeal, we would leave it to
another occasion and in a proper case for it to be decided upon by this
court, if it need be.
The point is,
if we accept the view prior to Mohd. Ali bin Abang (supra), which we
should, in view of Munusamy (supra), a Federal Court judgment, then the
effect of an impeachment order, if made against Azizan would be very
drastic. Not only that, he may even be subject to prosecution.
But, the fact
that he was not impeached does not mean that his whole evidence must be
believed. His evidence will have to be scrutinised with care, bearing in
mind the dent in his credibility caused by his contradicting
statements. At the end of the day, his evidence may be found to be
reliable in some parts and not in others. And, at that stage, if there
is any doubt, the benefit of the doubt must be given to the appellants
because they are the accused.
Azizan’s evidence regarding the date of offence
The only person
who was present during the alleged incident, other than the appellants,
was Azizan. The person who was alleged to have been sodomised was
Azizan. So, he should be the only person, other than the appellants, who
should know when he was sodomised.
Is he really consistent in his evidence about the “date” of the offence?
The first time
he mentioned about the date of sodomy (at luxurious hotels), was in Exh.
P14C/P5 dated 5 August 1997. The period given was around 1992 (“sekitar
tahun 1992”). But, in P14C/P5 he did not mention Tivoli Villa. So we do
not know whether he meant to include it or not. In any event, in the
charge dated 5 October 1998 against the first appellant regarding Tivoli
Villa incident, the date of the commission of the offence was stated as
“May 1994” (Jilid 1, page 239).
Who gave the
“May 1994” date to the police? Logically, the date of the commission of
the offence could only come from Azizan as he was the “victim”, the only
person present other than the appellants.
In this trial, on 3 August 1999, Azizan was cross-examined by Mr. Christopher Fernando:
“S: Adakah kamu beritahu pihak polis kamu diliwat pada bulan Mei 1994?
J: Saya tak ingat.”
………………………………..
S: Adakah kamu tahu tuduhan asal terhadap Dato’ Seri Anwar adalah pada Mei 1994?
J: Ya, saya tahu.
S: Adakah kamu diberitahu polis kamu diliwat pada bulan Mei 1994?
J: Saya tak ingat.”
(Jilid 2, page 992 to 993)
On 4 August 1999, still under cross-examination:
“S: Adakah awak berithau polis bahawa awak diliwat oleh Dato’ Seri Anwar dan Sukma pada bulan Mei 1994?
J: Tidak.”
(Jilid 2, page 999)
Still under cross-examination on 9 August 1999:
“S: Adakah
tidak sebelum hari ini awak ada memberitahu mahkamah ini bahawa awak
tidak ada memberitahu polis bahawa awak diliwat oleh Dato’ Seri Anwar
dan Sukma pada tahun 1994?
J: Ada.
S: Jikalau awak
tidak beritahu tarikh iaitu tahun 1994 siapakah beritahu polis ianya
berlaku dalam bulan Mei 1994? (Tidak ada jawapan).”
(Jilid 2 page 1028 to 1029)
On 16 August 1999, now under re-examination by the Attorney General:
“S: Adakah awak katakan apa-apa kepada polis mengenai apa-apa kejadian dalam tahun 1994.
J: Saya beritahu polis yang saya ada diliwat pada tahun 1994.”
(Jilid 2, 1055)
So, having
denied that he informed the police that he was sodomised by the
appellants in 1994, he finally admitted that he did tell the police that
he was sodomised in 1994. That answers the question that he earlier on
did not answer when asked: if he did not tell the police the 1994 date
who informed the police that the incident happened in May 1994?
On 23 April
1999, the second appellant was charged. The date of the offence was
given as “May 1992”. Three days later, on 27 April 1999, the charge
against the first appellant was also amended from “May 1994” to “May
1992”. How did this date come about? SAC 1 Musa provides the answer: it
was based on “other statements” made by Azizan. (Jilid 2. Page 1101).
After the amendment, notices of alibi were served on the prosecution.
Then, it was found that the construction of Tivoli Villa had not been
completed yet!
On this point, the evidence of Azizan given on 4 August 1999 reads:
“S: Setuju atau tidak pada bulan Mei 1992, Tivoli Villa (belum siap dibina)?
J: Setuju.”
(Jilid 2, page 998).
On 7 June 1999 the charges were amended from “May 1992” to “between the month of January until March 1993”.
On 3 August 1999 under cross-examination, Azizan said that he gave that “date” to the police on 1 June 1999 (Jilid 2, page 993).
Towards the end of his evidence, when re-examined by the then Attorney General, another point cropped up. Azizan said:
“J: SAC1 Musa
telah meminta saya untuk mengingati dengan jelas tentang kejadian
pertama kali saya diliwat di Tivoli Villa.” (emphasis added)
(Jilid 2, page 1064)
Note that he
now talked about SAC1 Musa asking him to remember the incident that he
was sodomised by the appellants for the first time at Tivoli Villa. SAC1
Musa (SP9) also said the same thing:
“J: Saya minta
Azizan mengingatkan tarikh pertama kali dia di liwat oleh Dato’ Seri
Anwar dan Sukma di Tivoli Villa.” (emphasis added).
(Jilid 2, page 1096)
So, even at the
end of his evidence, while he was certain about the January until March
1993 date, he came up with another poser: was there a second or third
incident that he was sodomised by both the appellants at Tivoli Villa?
To sum up, he
gave three different dates in three different years, the first two
covering a period of one month each and the third covering a period of
three months as the date of the alleged incident.
Regarding his finding on Azizan’s credibility, the learned trial judge said:
“It is to be
observed that May 1994 and May 1992 are not the months we are concerned
with in the instant charges against both the accused. These months are
relevant only in respect of the earlier charges which have been amended.
We are not concerned with these charges. I had dealt with the amendment
of these charges earlier in this judgment and had ruled that the
amendment was lawfully made in the proper exercise of the discretion by
the Attorney General. In his testimony Azizan said he was confused
because he was asked about the months of May 1994 and May 1992
repeatedly as stated above. I find as a fact that he was confused. When a
witness is confused, it does not mean he was lying. The naked truth is
that he could not remember what he had said. I am satisfied he was not
lying. In any event, the issue whether he told the police he was
sodomized in May 1994 and May 1992 are not the issues in the current
charges against both the accused. The issue is whether he was sodomized
by both the accused between the months of January and March 1993 at
Tivoli Villa. I therefore rule the credit of Azizan is not affected on
this score.
It was also
argued that the evidence of Azizan cannot be accepted in the light of
the evidence of SAC-1 Musa. It was pointed out that SAC-1 Musa in is
evidence said five statements were recorded from Azizan and that all
these statements were in relation to sodomy. The allegations are
consistent and true. He also testified that there was a necessity to
amend the charges because there were contradictions in the date. It was
submitted that there were two versions of the prosecution case on a
fundamental ingredient i.e the dates. In this respect, it is necessary
to recapitulate what Azizan had said about the dates. In his evidence
which I had referred to earlier he was confused about the dates as he
was asked repeatedly the same questions on the dates May 1994 and May
1992. In substance what he said on this issue was that he could not
remember whether he told the police he was sodomized in May 1994
although he did say that he did not inform the police that he was
sodomized in 1992.
Be that as it
may, the evidence of SAC-1 Musa clearly states that Azizan was
consistent in his statements on the issue of sodomy although he was not
sure of the exact dates. The relevant dates we are concerned with in the
present charges are between the months of January and March 1993.
Azizan emphatically said in evidence that he was sodomized by both Dato’
Seri Anwar and Sukma at Tivoli Villa between January to March 1993.
Whether he was sodomized in May 1994 or May 1992 is not relevant as
these dates are not in issue to be decided in this case. I see no merits
on this contention and the credit of Azizan is not affected on this
ground.” (Page 255 to 256 of (2001) 3 MLJ).
It is true that
May 1994 and May 1992 are not the dates that we are concerned with in
the instant charges. But, in determining whether Azizan’s evidence
regarding the date in the present charges is reliable or not we do not
think that they are not relevant. All the dates must have been given by
Azizan as he was the “victim” and the only person present during the
incident other than the appellants. Indeed evidence shows that he did
give those dates to the police. We accept that he may not be lying. He
may be confused. May be he cannot remember because the incident happened
many years earlier and unlike in most sexual cases, he did not lodge a
police report immediately. In fact he did not lodge a police report at
all. But, the fact that he may be confused or he cannot remember is the
point. You do not prove a thing by forgetting or by being confused about
it. That is why the charge against the first appellant had to be
amended twice. The fact that the amendments were lawfully made is of no
consequence. We accept that the amendments were lawfully made. But, we
are talking about the consistency of Azizan’s evidence regarding the
date of the commission of the offence.
And, it is not a
matter of one or two days, one or two weeks or even one or two months.
It covers a period of three years (1992, 1993 and 1994) and, even the
last date given was one night in a period of three months!
Furthermore, we
note that on the issue whether he informed the police that he was
sodomised in 1994, having said he could not remember twice, Azizan
denied informing the police, but under re-examination he admitted that
he did inform the police of the fact. We also note that the learned
trial judge had recorded his observation of Azizan when giving evidence,
e.g. “tidak ada jawapan”, “witness is very evasive and appears to me
not to answer simple question put to him.”
In the
circumstances, even though, for the reasons that we have given, we do
not interfere with the finding of the trial judge in the impeachment
proceeding, when we consider Azizan’s evidence as a whole, we are unable
to agree with the “firm finding” of the learned trial judge and the
Court of Appeal that Azizan “is a wholly reliable, credible and truthful
witness”. Evidence does not support such a finding. He was most
uncertain, in particular about the “date” of the offence, not just the
day or the week or even the months but the year. We do not say he is an
“outright liar” as Mr. Christopher Fernando was trying to convince us.
But, considering the whole of his evidence, he is certainly not the kind
of witness described by the learned trial judge.
Is Azizan an accomplice?
Both the High
Court and the Court of Appeal found that Azizan was not an accomplice.
On this point too we are not going to repeat the law which has been
stated by both the High Court and the Court of Appeal. Instead, we will
focus on the facts.
The reason for his finding that Azizan was not an accomplice is to be found in this paragraph.
“In the instant
case the evidence shows that Azizan was invited to visit Tivoli Villa
by Sukma. Azizan went there to see Sukma’s new apartment. He went there
not with the intention of committing sodomy with both the accused. His
actus reus alone is not sufficient to make him an accomplice, there must
also be the intention on his part (see Ng Kok Lian’s case). For reasons
I therefore find that Azizan is not an accomplice.”
(page 250 of (2001) 3 MLJ
The Court of Appeal added nothing to it in agreeing with the finding of the learned trial judge.
In our view, if
the learned trial judge was looking for mens rea he should look at the
surrounding circumstances. This is where evidence of similar facts
becomes relevant. This is not a case of a person who was merely present
at the time of the commission of the offence or participated in it only
once. By his own evidence, he was sodomised 10 to 15 times at various
places, including in the house of the first appellant over a number of
years. He never lodged any police report. He never complained about it
until he met Ummi in 1997. He did not leave the job immediately after he
was sodomised the first time, we do not know when. Even after he left
the job, he went back again to work for the first appellant’s wife. Even
after he left the second time, he continued to visit the appellant’s
house. He even went to the first appellant’s office. When invited by the
second appellant to go to Tivoli Villa, he went. He said he was
surprised to see the first appellant there. Yet he stayed on. Signalled
to go into the bedroom, he went in. There is no evidence of any protest.
He followed whatever “instructions” given to him.
He said he
submitted under fear and was scared of both the appellants. A person may
allow himself to be sodomised under fear once or twice but certainly
not 10 to 15 times over a number of years. He is not a child nor an
infirm. Even on this occasion, when he saw the first appellant there, he
would have known of the possibility of the first appellant wanting to
sodomise him again. Why did he not just go away? Instead, by a mere
signal, he went into the bedroom, as if he knew what was expected of
him. He did nothing to resist, in fact co-operated in the act. And,
after the first appellant had finished and went to the bathroom, he
remained in that “menungging” position. What was he waiting for in that
position? Indeed the whole episode, by his own account, appears like a
repetition of a familiar act in which each actor knows his part. And,
after that he went back to the place again, twice and talked about the
incident as “the first time” he was sodomised there, giving the
impression that there was a second or third time. Are all these
consistent with a person who had submitted under fear? We do not think
so. Therefore, in our judgment Azizan is an accomplice, though he may be
a reluctant one.
Second Appellant’s Confession
The prosecution
sought to introduce the confession of the second appellant recorded by
Encik Abdul Karim bin Abdul Jalil, a Session’s Court Judge acting as a
Magistrate (“the magistrate”) on 17 September 1998.
A trial within a
trial was held. At the end of it the learned trial judge held that the
confession was properly recorded and voluntarily made and admitted it as
evidence. The Court of Appeal agreed with him.
The attack on
the confession can be divided into two parts. The first was on what the
magistrate did or did not do in recording the confession. This has been
enumerated by the learned trial judge as points (a) to (g) – see page
232 of (2001) 3 MLJ. We have no reason to differ from the findings of
the learned trial judge on those points.
The second part
is on the issue of voluntariness of the confession. In this regard, the
fact the magistrate who recorded the confession said that he was
satisfied that the confession was made voluntarily, does not mean that
the trial court must accept that the confession was voluntarily made.
The magistrate formed his opinion from his examination, oral and
physical, and his observation of the confessor. He formed his opinion
from what he saw of the confessor and what was told to him by the
confessor, in answer to his questions or otherwise. A confessor may, at
the time of making the confession, tell a magistrate that he is making
the confession voluntarily and the magistrate may believe him. But, that
does not mean that the trial court must automatically accept that the
confession was voluntarily made and therefore admissible. If that is the
law, then the trial within a trial would not be necessary at all
because every confession that is recorded by a magistrate is recorded
after the magistrate is satisfied of its voluntariness. But, though the
magistrate may be jusitfied based on his examination and observation of
the confessor that the confessor was making the confession voluntarily,
the trial court, after holding a trial within a trial and hearing other
witnesses as well, may find otherwise. That is what a trial within a
trial is for.
We do not
question the opinion of the learned magistrate that he was satisfied
that the second appellant was making his confession voluntarily. Neither
do we find that the other grounds forwarded in respect of the recording
of the confession have any merit.
What is more
important is for this court to examine whether the finding of the
learned trial judge that the confession was voluntarily made after the
trial within a trial is correct.
In this regard
too, the learned trial judge had stated the law correctly which was
amplified by the Court of Appeal (see page 228 – 229 of (2004) 1 MLJ).
We agree with them. However, we would like to add that, of late, this
court, in considering the voluntariness of cautioned statement made
under section 37A of the Dangerous Drugs Act 1952 has accepted that if
there appears to be “suspicious circumstances surrounding the making of,
or recording of, the cautioned statement” it is incumbent on the trial
judge to hold it inadmissible: Tan Ewe Huat v. Public Prosecutor (2004) 1
MLJ 559 F.C. In so doing, this court followed the judgment of the Court
of Appeal in Chan Ming Cheng v. Public Prosecutor (2002) 3 MLJ 741 in
which Gopal Sri Ram JCA, delivering the judgment of the court said:
“There is no
burden on an accused person to prove that the statement recorded from
him is involuntary. The burden lies on the prosecution to show
positively that the statement was voluntarily given. There is also no
burden on an accused to raise a reasonable doubt as to the voluntariness
of a cautioned statement. The only burden on an accused is to show
suspicious circumstances surrounding the making of or recording of the
cautioned statement. So long as the suspicion is reasonable as to the
voluntariness of the statement, it is incumbent on the trial judge to
hold it inadmissible.”
It must be
pointed out that the provision of section 37A (1)(a) of the Dangerous
Drugs Act 1952 is similar to the provision of section 24 of the Evidence
Act 1950.
In dealing with
this issue, it appears to us that the learned trial judge considered
each allegation by the second appellant and denial by the police
officers in question and concluded that he believed the police officers
and held that the confession was voluntarily made.
In the
circumstances of this case which, we must say, is different from any
other case that we know of, we think we have to consider the whole
circumstances surrounding the arrest of the second appellant and the
related investigations.
As we are
considering the question of voluntariness of the confession which is a
question of fact, we have no choice but to reproduce the evidence, even
though it is quite long.
We shall
summarise the evidence of the second appellant first. The second
appellant was arrested by ASP Rodwan (TPW3) and three other police
officers at about 1.00 p.m. on 6 September 1998 at Societe Cafe, Lot 10
Shopping Complex, Bukit Bintang. He was then having lunch with his
sister Komalawati (TDW2). He was taken to the lower ground of Lot 10 and
pushed into a Proton Saga car and his hands were handcuffed. He was
then taken to his car. ASP Rodwan and the other police officers
ransacked (“membongkar”) his car in the presence of the public. From
there he was taken to Bukit Aman. During the journey, ASP Rodwan played
the speech of the first appellant condemning (“memaki dan mencaci”) the
former Prime Minister.
They stopped at
Bukit Aman only to park the second appellant’s car and then proceeded
to his apartment at Tivoli Villa. In the car he was verbally abused
(“memaki hamun”). At the apartment they ransacked the whole place but
did not find anything that they were looking for. They broke the door of
the room of the second appellant’s sister in spite of the fact that he
told them that the key was with her. Between 3.00 p.m. to 4.00 p.m. he
was taken to Bukit Aman. At ASP Rodwan’s office he was asked to sit at
one corner with his hands handcuffed. At that time, they were jumping
merrily (“bersuka-suka dan meloncat-loncat”). ASP Rodwan was filling a
form. At that time the second appellant heard Zaini, one of the
officers, asking ASP Rodwan: “Boss, borang nak tahan dia ni atas dasar
apa? Rodwan jawab “entah.” He was taken to the lock up. Before entering
he was asked to remove all his clothes except for his under pants. He
was not given food that evening/night as he was told by the officer in
charge of the lock-up that meal time was over. In fact he had not eaten
the whole day.
On the second
day, in the morning, 7 September 1998, he was taken to ASP Rodwan’s
offfice. There he met a person by the name of “Zul” (ASP Zulkifly bin
Mohamed, TPW4). After ascertaining his identity, according to the second
appellant, ASP Zulkifli lifted his shirt and pinched his nipple while
making fun of him using shameful words (“memulas-mulas buah dada
(nipple) saya dengan sekuat-kuatnya dengan mempersendakan diri saya
dengan kata-kata yang memalukan”). At the office, ASP Rodwan asked him
to make a statement regarding his homosexual relationship with the first
appellant. When he denied, ASP Rodwan challenged him to take an oath
with the Quran in the presence of a religious teacher (“Ustaz”). He
accepted the challlenge but no “Ustaz” came.
Later in the
same day, 7 September 1998, he was taken to see a magistrate. The
magistrate made a remand order of two weeks straight away.
In the
afternoon, he was taken back to Bukit Aman. There ASP Rodwan told him
that he was under his (ASP Rodwan’s) detention (“di bawah tahanan saya”)
and it was better for him to tell about his (the second appellant’s)
homosexual relationship with the first appellant. When he denied, ASP
Rodwan told him if he was prepared to talk he could go home faster. If
not he would be handed over to the Special Investigation Unit which
officers were very rough and he would regret later.
He also said he
was suffering from asthma and at night it became worse and he asked to
be allowed to wear his T-shirt to cover his chest.
At about 7.00
a.m. on the third day, 8 September 1998, two officers took him to a
meeting room at the third floor. There were six officers in the room. In
the room he was asked to strip naked, while still being handcuffed and
he was asked to turn around so that they could see his whole body. When
he sat down on a chair, all the officers simultaneously scolded him:
“Who ask you to sit down?” They removed his spectacles and knocked it
(“mengetuk-ngetuk”) as if to break it. After he sat down an officer
stood up, kicked his chair and he fell down. They did not question him
then. They merely scolded him simultaneously and continuously very close
to his ears in a very high and rough tone. This went on until about
1.30 pm. He was in that room from about 8.00 am or 8.30 am to about 1.30
p.m.
After lunch, at
about 2.00 p.m. or 2.30 p.m. he was taken to the same room again. The
same thing happened again, until about 4.30 p.m. or 5.00 p.m.
On the fourth
day, 9 September 1998, he was taken to a room. There were a few people
there including one Dr. Zahari (Dr. Zahari Noor (TDW5)). Dr. Zahari
examined his whole body paying particular attention to his private part
and his anus. He also inserted his finger into his (the second
appellants’) anus. He was naked during the examination. ASP Rodwan
directed the cameraman to take photographs of the second appellant while
naked but Dr. Zahari stopped it as he did not require the photographs.
But ASP Rodwan said it was necessary for the purpose of the
investigation. Photographs of him, naked and in various positions and
close ups of his private part, were taken (and in fact tendered in the
main trial as P7 A – G.)
After that he
was taken to the same room on the third floor again. There were six
people there. The second appellant identified C/I Sampornak bin Ismail
(TRW2), D/Kpl Ahmad Bustami bin Ayob (TRW3), D/Kpl Mokhtaruddin bin Suki
(TRW5), D/Kpl. Hamdani bin Othman (TRW4). They told him that the
photographs would be used as evidence, but not for what.
As had happened on the previous day, he was roughly scolded until about 4.30 p.m. or 5.00 p.m.
On the fifth
day, 10 September 1999, the interrogation continued. On that day they
were rougher. They threatened that if he did not follow their
instructions he would be detained under the Internal Security Act for
two years and then for a further two years. They also told thim that he
could be charged like Dato’ Nalla. They could place bullets in his car
which was then at Bukit Aman. They also threatened him that they could
pay someone to shoot him and no one would suspect the police for it.
On 11 September
1998, the sixth day, his stand was not strong anymore (“saya tidak lagi
teguh dengan pendirian saya”) because he could no longer bear what was
being done to him and he followed their instructions. After that they
became nice to him. They removed the handcuff, lowered their voices,
allowed him to wear shirt and trousers, gave him drink, cigarette and
cakes in the morning. Asked by learned counsel, what they wanted from
him, the second appellant said that they wanted him to admit that he had
sexual relationship with the first appellant.
The interrogation continued on the following days, in a more friendly manner.
On 16 September
1998, the eleventh day of his detention, at about 7.30 a.m. or 8.30
a.m. ASP Rodwan came to see him at the lock-up. He informed the second
appellant that he should make a statement before a magistrate. He agreed
after ASP Rodwan told him that he would be released after making a
confession before a magistrate. On the following day, 17 September 1998,
the twelfh day, he was taken to see the magistrate (TPW1) who recorded
his confession. Asked by his counsel how he could make such a long
confession, about 10 or 12 pages, he said he was guided by ASP Rodwan
repeatedly. ASP Rodwan also told him it was allright if he were to make
mistakes but what was more important was to give a clear and detailed
evidence (“keterangan”) about his homosexual relaitonship with the first
appellant and Azizan.
Cross-examined
by Mr. Karpal Singh he said that from 6 September 1998 to 16 September
1998 he was taken to the interrogation room every day including Sunday.
Each day he was interrogated from about 8.30 a.m. to 1.00 p.m. and from
about 2.00 p.m. or 2.15 p.m. until 4.30 p.m., though at times until 5.30
p.m. or even 6.30. It was about 8 hours a day for 10 days.
Still under
cross-examination by Mr. Karpal Singh, on 18 September 1998 (one day
after the confession was recorded) SAC1 Musa told him that if he engages
his own lawyer he would be charged under section 377B of the Penal Code
but if he uses the lawyer appointed by him (“jika saya gunakan yang dia
lantik”) he would only be charged under section 377D and would be
sentenced to three months only. The lawyer in question is Encik Mohd.
Noor Don who went to see him at about 4.30 p.m. on the same day, 18
September 1998. He said Mohd. Noor Don told him if he pleaded guilty and
said he had repented (“bertaubat”) he would only be sentenced to one
day imprisonment.
Under
cross-examination by Dato’ Gani, he admitted that he had filed an
affidavit in Criminal Case No.44-166-1998 that the name of the lawyer
mention by SAC1 Musa was Zulkifli Nordin instead of Mohd. Noor Don. He
also admitted that on 30 September 1998 (note that this is 11 days after
he was charged in the sessions court in which he was represented by
Mohd. Noor Don) he signed a letter confirming that Mohd. Noor Don had
acted for him on 19 September 1998 on his instructions. However, he said
he was forced to sign the letter by SAC1 Musa. Then he was referred to
Tun H.S.Lee Police Report No.25536/98 (Exh. T.P.1) lodged by the second
appellant.
Under
re-examination he explained the inconsistency between his affidavit
dated 10 December 1998 while he was under detention at Bukit Aman and
his evidence in court thus: Mohd. Noor Don told him that SAC1 Musa told
him (Mohd. Noor Don) that he (the second appellant) would be sentenced
to one day imprisonment but the second appellant told Mohd. Noor Don
that SAC1 Musa had told him (the second appellant) that the sentence
would be three months. Mohd. Noor Don then went to see SAC1 Musa and
came back and told him (second appellant) that he (Mohd. Noor Don) had
confirmed with SAC1 Musa that the sentence would be one day
imprisonment.
He also
confirmedd that the letter dated 30 September 1998, signed by the second
appellant confirming the apointment of Mohd. Noor Don as his (the
second appellant’s) counsel was prepared by SAC1 Musa.
An important
witness for the second appellant in the trial within a trial is Mr.
Ganesan a/l Karupanan, an advocate and solicitor (TDW4). He said that he
was appointed to act for the second appellant on 6 September 1998. On
the next day, he came to know that the second appellant was at Bukit
Aman. He wrote a letter to the Inspector General of Police. On 8
September 1998 in an attempt to meet the second appellant, he went to
see ASP Rodwan at Bukit Aman. He was told that he had to get the
permission of SAC1 Musa.
On the
following day, 9 September 1998 he wrote to SAC1 Musa informing him that
the second appellant’s sister would like to see him. He tried to see
the second appellant on 7, 8, 9 and 11 September 1998 but was not
successful. He even wrote to the Attorney General seeking his
assistance. On 14 September 1998 ASP Rodwan called him and told him to
go to his office because he wanted to record a statement from him. He
also contacted SAC1 Musa who told him the same. Neither SAC1 Musa nor
ASP Rodwan contacted him before the second appellant was charged in the
Session’s Court on 19 September 1998. Under cross-examination by Mr.
Christopher Fernando he said he made six attempts altogether, three were
purely to see the second appellant and the other three were in respect
of the recording of his statement.
Under
cross-examination by Mr. Karpal Singh he said that between 7 September
1998 until 18 September 1998 he was not told by the police or the
Attorney General’s Chambers that some other lawyer had taken over as
counsel for the second appellant. However, on 19 September 1998 the day
the second appellant was charged in the Session’s Court, at 9.00 a.m. he
received a telephone call from Mohd. Noor Don who told him that the
second apellant had appointed him as his counsel. Mohd. Noor Don also
told him that he received a telephone call from the second appellant the
previous night who wanted him (Mohd. Noor Don) to act for him.
Regarding Zulkifli Nordin, Ganesan said he told Zulkifli to check what was happening in Court on 19 September 1998.
Under
cross-examination by Datuk Gani he said he was appointed to act for the
second appellant by the socond appellant’s sister, Komalawati.
At the
beginning of the trial within a trial the prosecution called 4
witnesses. I shall skip the evidence of Encik Abdul Karim, the recording
magistrate. The second witness, Mr. Kathi Velayudhan a/l Palaniappan
(TPW2) merely produced the records of proceedings in Criminal Case
No.62-135-98, which also includes the confession that was tendered in
mitigation.
The third
witness was ASP Mohd. Rodwan bin Hj. Mohd. Yunus (TPW3). He informed the
court that he arrested the second appellant on 6 September 1998 at
about 1.00 p.m. at Lot 10, Bukit Bintang. On the following day, 7
September 1998, at about 12.45 p.m. he took the second appellant to see a
magistrate who made a remand order effective from 7 September 1998 to
20 September 1998 (a period of 14 days).
According to
him, on 16 September 1998 at about 3.00 p.m., the second appellant was
brought to his office. After the second appellant told him something he
took the second appellant to see SAC1 Musa. SAC1 Musa asked him to tape
the second appellant’s confession. The reason was because the case was a
sensitive case and it was to avoid accusations (“tohmahan”) that it was
a police invention being made later. The recording was done from
4.30p.m. to 5.05 p.m.
On 17 September
1998, ASP Rodwan took the second appellant to see a magistrate because
the second appellant “wanted to make a confession on his own will”.
Cross-examined
by Mr. Govind Singh Deo, ASP Rodwan admitted that the second appellant
was investigated in relation to Police Report No.14140/98 lodged by
Mohd. Azmin Ali mentioned earlier. Asked whether the second appellant
was investigated as a witness, ASP Rodwan replied that he recorded the
second appellant’s statement as a witness. He admitted that he did not
contact the second appellant before he was arrested. He admitted that at
Tivoli Villa he was told by the second appellant that the key to his
sister’s room was with her and agreed that they (the police party) broke
the door to the room. He admitted, at Tivolli Villa, the second
appellant was handcuffed. He denied that the second appellant was made
to remove all his clothes except for the under pants while at the
lock-up. Asked about his duties in the investigation of the case, he
said it was to assist in the investigation regarding the book “50
Dalil”. The interrogation was done by “pihak Bantuan Teknik” from the
Interrogation and Photography Division of the Criminal Division (my
translation). He admitted that when he took the second appellant to see
the magistrate on 7 September 1998, it was he who asked for a 14-day
remand straight away. He also admitted it was not a normal practice for a
magistrate to make a 14-day remand order. When asked, he answered that
he took the second appellant to see the magistrate who gave the 14-day
remand order at the High Court, not at the magistrate’s court, as usual.
Asked why, he said it was because he was instructed (by SAC1 Musa) to
take the second appellant to see Tuat Mat Zaraai (“kerana saya diarah
untuk membawa Sukma untuk berjumpa dengan Tuan Mat Zaraai”). Asked
whether it was fixed, he said he did not know. He said that after that
he met the second appellant on 9, 10 16 and 17 September 1998 but he was
not present during all the interrogations. He admitted that on 9
September 1998 the second appellant was examined by Dr. Zahari Noor
(TDW5) who also examined the second appellant’s anus and that he (ASP
Rodwan) instructed that photographs be taken. He denied that when he
took the second appellant to see the magistrate to have his confession
recorded he told the second appellant that he would be released the
following day if he made the confession.
Cross-examined
by Mr. Karpal Singh why the second appellant was remanded for 14 days he
said it was to investigate further regarding the second appellant’s
homosexual involvement and to look for witnesses.
Coming to the
day the second appellant was charged in court in respect of Criminal
Case No.62-135-98, i.e. on 19 September 1998, ASP Rodwan admitted
meeting Zulkifli Nordin, an advocate and solicitor who wanted to meet
the second appellant. He also admitted that Ganesan (TDW4) had also
tried to meet the second appellant during the latter’s detention but was
not successful. He admitted that Ganesan had written to him, telephoned
him and even saw him on 10 September 1998 for that purpose but he did
not allow Ganesan to meet the second appellant.
Re-examined by
the Deputy Public Prosecutor, he said that on 19 September 1998, the
second appellant’s counsel was Mohd. Noor Don.
The next
witness called by the prosecution was ASP Zulkifli Mohamed (TRW4). He
accompanied ASP Rodwan to get the remand order on 7 September 1998. He
denied all the allegations made by the second appellant against him,
mentioned earlier.
We now go to
the rebuttal witnesses called by the prosecution. The first rebuttal
witness was SAC1 Musa bin Hassan (TRW1). He said that at about 9.30 a.m.
on 18 September 1998 he met the second appellant. He told the second
appellant that he would be charged under section 377D of the Penal Code.
He showed two letters from Ganeson (TDW4) and asked him whether he
would like to appoint the solicitor who wrote those letters. He also
showed the second appellant call cards of lawyers for him to choose. On
the same day at about 4.30 p.m. he arranged for the second appellant to
contact Encik Mohd. Noor Don, by telephone. Mohd. Nor Don came to see
the second appellant twice. He denied all the allegations made by the
second appellant regarding the appointment of Mohd. Noor Don and
regarding the charge to be preferred against him and the sentence he
would receive.
On 30 September
1998 Mohd. Noor Don telephoned him. He said he wanted to see the second
appellant which he did at 3.40 p.m. Shown the letter dated 30 September
1998 he denied forcing the second appellant to sign it.
Under
cross-examination by Mr. Jagdeep Singh Deo, he admitted that he met the
second appellant twice i.e. on 16 September 1998 and 18 September 1998.
He admitted that it was he who instructed that the second appellant’s
confession be recorded, after 10 days detention. He agreed that
according to Ganeson’s letter dated 10 September 1998, Ganeson was still
acting for the second appellant. However, until 18 September 1998 he
did not get a confirmation about Ganeson’s appointment. Neither did he
contact Ganeson. Asked whether it was usual for him to recommend a
lawyer to detainees, his reply was “Not necessarily”. He denied that
when he saw the second appellant on 18 September 1998, he told the
second appellant not to use the services of Ganeson and that if the
second appellant were to plead guilty he would only be sentenced to
three month’s imprisonment. He admitted that the second appellant’s
sister met him when the second appellant was under remand. Asked why he
did not ask the second appellant to get his sister to engage a lawyer
for him, he replied that the second appellant was under investigation.
Asked whether the second appellant was still under investigation on 18
September 1998, he said “No”. He also did not provide the second
appellant the facility to contact his sister for the purpose of engaging
a lawyer. He admitted he was in court throughout the proceeding on 19
September 1998 and he met Zulkifli Nordin who informed the court that he
was acting for the second appellant. Asked whether he knew that the
appointment of Mohd. Noor Don was disputed (“dipertikaikan”), he replied
that the appointment of Mohd. Noor Don was not disputed. He was then
shown the notes of evidence of the Criminal Case No.62-11-35-98. The
record reads:
“En. Zulkifli
Keluarga OKT
melantik saya untuk mewakili OKT. Keluarga OKT X kenal P/OKT. Keluarga
OKT mempertikai perlantikan Encik Mohd. Nor Don. Minta izin bercakap.”
(My translation
“The accused’s
family has appointed me to represent the accused. The accused’s family
does not know the accused’s lawyer. The accused’s family disputes the
appointment of Encik Mohd. Noor Don. I ask for permission to speak.”)
SAC1 Musa was
then asked whether the record was wrong. He said “I don’t know.” Put to
him that Mohamed Nor Don’s appointment was disputed. He replied “No”. He
admitted that according to the record Mohamed Nor Don asked for one
day’s imprisonment but denied that it was the same as (“selaras dengan”)
what he had informed Mohamed Nor Don.
Shown the
letter dated 30 September 1998, he said he did not know who typed the
letter, but on that day Mohd. Nor Don did meet the second appellant at
Bukit Aman. He denied it was typed on his instruction.
He was further
cross-examined by Mr. Karpal Singh. He admitted that in 1997 he
investigated the allegations (“tohmahan-tohmahan”) against the first
appellant. He did not carry out a full investigation in 1997. However he
admitted that he recommended that no further action be taken on the
file and that a full investigation be carried out first before such
recommendation be made. He also admitted that he made similar
recommendation to the Attorney General who agreed with him. The file was
however re-opened in June 1998 based on the police report by Mohd.
Azmin Ali concerning the book “50 Dalil”. The following question and
answers read:
“S: You arranged for a meeting in your office between Mohamed Nor Don and Sukma?
J: Benar, pada 30.9.98.
S: Sebelum tarikh ini, Mohamed Nor Don belum dilantik.
J: Saya setuju.
S: You allowed the use of your office by Mohamed Nor Don to see Sukma.
J: Yes.”
He admitted
that the second appellant was a timid person and “most probably” was
prone to be more succeptible to breaking down. He was aware of the
beating of the first appelllant by the Inspector General of Police. He
was aware that the second appellant was not questioned within the first
24 hours. He agreed that a statement from the second appellant was
video-taped and it was something new. He admitted that he was given a
copy of the second appellant’s confession on 17 September 1998 by ASP
Rodwan (at 6.00 p.m).
Under
re-examination by the Deputy Public Prosecutor, he explained that he
recommended the investigation against the first appellant to be closed
in 1997 because the first appellant called him to his office and handed
to him letters purportedly signed by Ummi Hafilda and Azizan to the
effect that they had withdrawn the allegations (“tohmahan”) against the
first appellant and directed him to close the investigation as the
allegations were unfounded. Regarding the meeting with Mohamed Nor Don
he said it was the latter who contacted him. He said the investigation
was completed on 17 September 1998 after he received the confession. He
denied it was he who appointed Mohamed Nor Don to act for the second
appellant.
The second
rebuttal witness was K/Insp. Sampornak Ismail (TRW2). He said that on 7
September 1998 at about 3.00 p.m. he was told by ASP Rodwan to
interrogate the second appellant. He carried out the interrogation with
five other officers (D/Kpl. Ahmad Bustami (TRW3). D/Kpl. Mokhtaruddin
(TRW5), D/Kpl. Hamdani (TRW4), Lee Tuck Seng (TRW7) and Tan Hwa Cheng
(TRW6). He was the leader of the team. The interrogation started on 8
September 1998 and completed on 15 September 1998 onwards, he was
assisted by three detectives. The interrogations were conducted from
9.00 a.m. to 12.30 p.m. and then from 2.00 p.m. to 4.45 p.m. He admitted
that at the beginning of the interrogation on 8 September 1998 he asked
the second appellant to remove his shirt and trousers to examine
whether he had any injury which was a normal procedure. He denied all
the specific allegations made by the second appellant which I need not
repeat e.g. the kicking of the chair, the knocking of his spectacles,
the scolding, the threat etc.
Cross-examined
by Mr. Govind Singh Deo, he agreed that the interrogation was in respect
of the book “50 Dalil" which he had not seen but was given pages 63 and
64 by ASP Rodwan. Asked who else was mentioned in the book, he replied
if he was not mistaken another person by the name of Azizan was also
mentioned. Asked whether any other name was mentioned he said he could
not remember. Asked whether it was a high profile case, he said he did
not understand the meaning of high profile. When explained to him he
said “Now I understand”. Pressed further whether he now knew the name of
a “famous person” (“orang yang terkenal”) mentioned in the said pages
given to him, he replied: “Now I know – Dato’ Seri Anwar Ibrahim. Before
the interrogation, I did not know.” Asked for how long the second
appellant was completely undressed on 8 September 1999, he said about
four minutes. He admitted that he and four other officers repeatedly
questioned the second appellant, but not simultaneously. He denied all
the specific allegations made by the second appellant. He repeated that
the purpose of the interrogation was to obtain “intelligence statement”
which means “risikan keselamatan negara” as instructed by ASP Rodwan.
Asked whether
the second appellant was a timid person he said he was not clear what
“timid” means. After it was explained to him, he replied: “He was a
normal person (“Dia seorang yang biasa”). He said that the interrogation
was about 5 to 6 hours a day.
Under
re-examination by the learned Deputy Public Prosecutor, K/Insp.
Sampornak said he started recording intelligence statement from the
second appellant from 13 September 1998 until 15 September 1998. Of
course he denied the specific allegations made by the second appellant.
Another
rebuttal witness called by the prosecution was Det. Kpl. Ahmad Bustami
bin Ayob (TRW3). Basically his evidence was similar to that of K/Insp.
Sampornak (TRW2). He said that interrogation (“soal siasat”) started on 8
September 1998 until 15 September 1998. Out of that, from 8 September
1998 to 12 September 1998 were question and answer sessions. From 13
September 1998 to 15 September 1998 K/Insp Sampornak (TRW2) recorded
intelligence statement from the second appellant. He said that they
treated him as a usual offender (“sebagai pesalah biasa”). Allegations
made by the second appellant were put to him by the learned Deputy
Public Prosecutor and he too denied them all.
Kpl. Hamdani
bin Othman (TRW4) was another rebuttal witness called by the
prosecution. He too denied all the allegations made by the second
appellant.
The evidence of
Det./Kpl. Mokhtaruddin bin Suki (TRW5) is similar to that of the other
rebuttal witness. He too denied all the allegations made by the second
appellant. Under cross-examination he denied that the purpose of the
interrogation was to obtain a confession from the second appellant. It
was to obtain “risikan” (intelligence statement). He stated that the
second appellant was not interrogated as a witness, but as an offender
(sebagai seorang yang salah”). Asked what was the offence, he said he
did not know.
In the earlier
part of the cross-examination he admitted that no confession
(“pengakuan”) was obtained from the second appellant. But, just before
the court adjourned for lunch, the record reads as follows:
“S: Adakah kamu dan ahli-ahli yang menjalankan soal siasat puas hati atas jawapan Sukma?
J: Puas hati.
S: Bilakah kamu puas hati dengan jawapannya – hari pertama, hari kedua, hari ketiga?
J: Pada hari yang akhir.”
(Jilid 1 page 444)
He said that the interrogation started on 8 September until 15 September 1998.
Of course, under re-examination, after the lunch break, he explained it thus:
“S: Awak ada mengatakan di dalam soal balas awak berpuashati di hari terakhir. Apa yang kamu puas hati?
J: Saya berpuas
hati Sukma telah memberi kerjasama dengan baik dan memastikan segala
cerita-cerita telah dijelaskan tidak diada-adakan dan saya tidak mahu
ada unsur-unsur penganiayaan.”
(Jilid 1 page 748)
[We think we
should point out that there appears to be mistake in the notes of
evidence at page 749 of Jilid 1 where it was recorded that it was TRW4
(Del/Kpl. Hamdani Othman) who was giving evidence. If the sequence of
the notes of evidence is followed, it should be TRW 5 (Mokhtaruddin
Suki)]
We do not think we have to summarise the evidence of the other rebuttal witness.
Our first
comment is that there seems to be so many unusual things that happened
regarding the arrest and the confession of the second appellant.
First, the
second appellant was not arrested pursuant to a report by a victim that
he was sodomised as in a normal case. He was arrested pursuant to a
report made by Mohd. Azmin Ali who complained that the book “50 Dalil”
contained blasphemous and shameful allegations (“tohmahan”) against him,
his wife and his family. The report has nothing to do with the second
appellant. But the book contained allegations of homosexual relationship
between the first appellant and the second appellant, that too as can
be understood, he was the passive participant or the receipient. Had the
dominant partner been a “Mr. Nobody”, no one would have raised an
eyelid. But the “dominant partner” being the first appellant who was
what he was then at the point of time that was then he became important
as a source of obtaining evidence against the first appellant. So, he
was arrested. What was he arrested for? The second appellant’s evidence,
though denied, that Zaini asked ASP Rodwan “Boss, borang nak tahan dia
ni atas alasan apa?” and ASP Rodwan’s answer “Entah” seems to offer the
answer: They were not sure themselves. However, ASP Rodwan’s evidence
offers the answer. First, when asked whether the second appellaant was
investigated as a witness, he answered that the second appellant’s
statement was recorded as a witness. Later, when asked why he requested
for a 14-day remand, he replied: “Untuk menyiasat lanjut tentang
penglibatan OKT dalam homosexual, dan untuk mencari saksi-saksi.” So,
that was the reason: to look for evidence and witnesses regarding the
second appellant’s involvement in homosexual activities, with whom?
Clearly with the first appellant.
But, if that
was the reason, why arrest the second appellant and subject him to the
kind of interrogation done even if the version of the prosecution
witnesses were to be accepted. You call him and record his statement,
first, at least.
Secondly, the
remand order of 14 days one stretch and the circumstances under which it
was obtained is unusual. No questioning was done during the first 24
hours. Then he was taken to see a magistrate to get a remand order, not
to the magistrate’s court where magistrates are but to see a particular
officer at the High Court. We take judicial notice that there are no
magistrates in the High Court, only officers who had served as
magistrates and who remain gazetted as magistrates. Requested by ASP
Rodwan, he gave a 14 day remand order straight away, something that even
ASP Rodwan admitted as unusual.
Back in Bukit
Aman, intensive interrogation went on for ten days. The officers kept
saying that the purpose of the interrogation was to obtain “intelligence
statements” which was explained by ASP Sampornak, the leader of the
interrogation team, to mean “risikan keselamatan negara”. However, the
way the interrogation was done justifies Det. Kpl. Mokhtaruddin Suki
(TRW5) to form an opinion that the second appellant was not interrogated
as a witness, but as an offender even though he did not know what
offence. Another rebuttal witness of the prosecution, Det. Kpl. Ahmad
Bustami bin Ayob (TRW3) also said that the second appellant was
interrogated as a “normal offender” (“pesalah biasa”).
Thirdly, within
two days after the confession was recorded by the magistrate, the
second appellant was charged for having allowed the first appellant to
sodomise him in April 1998 at the latter’s official residence, an
offence under section 377D of the Penal Code. Normally, it is the
sodomiser who is charged or both are charged together. But, we must make
it very clear that there is nothing wrong legally speaking with that
charge. But again, we are only looking at all the surrounding
circumstances relating to the confession.
Fourthly, the
appointment of Mohd. Noor Don as counsel for the second appellant in
that case is rather unusual too. Ganeson, purportedly appointed by the
second appellant’s sister, had been trying to see the second appellant.
He was not successful in all his attempts. Instead, he was called to
Bukit Aman twice to have his statements recorded. Then we have the
involvement of SAC1 Musa in the appointment of Mohd. Noor Don. It is
very pertinent to note that SAC 1 Musa admitted that Mohd. Noor Don was
not appointed by the second appellant before 30 September 1998 which
means that he was only appointed 11 days after he had appeared in court
and “mitigated” for the second appellant. Even if we were to accept SAC 1
Musa’s own evidence (even though we must say, in this respect, the
second appellant’s version is not improbable) does the fact that he gave
Mohd. Noor Don’s card to the second appellant, arranged for the second
appellant to call Mohd. Noor Don by telephone, allowed Mohd. Noor Don
the use of his office to meet the second appellant, denied access by
Ganeson even though at earlier stage, and also Mohd. Noor Don’s
tendering of the confession in mitigation (we will say more about this
later), the appearance of Zulkifli Nordin in court at the behest of
Ganeson to see what was happening, the denial by SAC1 Musa that Zulkifli
Nordin disputed the confession even though he was shown the notes of
proceedings of the court, the belated letter dated 30 September 1998 (11
days after the second appellant was charged and convicted) confirming
Mohd. Noor Don’s appointment, not raise some suspicion about the actions
of the police relating to the confession?
Fifthly, the
tendering of the confession by Mohd. Noor Don “in mitigation” of
sentence in criminal case No.4-62-135-98. Even unrepresented accused do
not do such a thing, what more an advocate and solicitor representing an
accused person. Tendering a confession stating that an accused has
committed other offences in mitigation of sentence is a contradiction in
terms, to say the least. When you are pleading for a lenient sentence,
you simply do not inform the court that you have committed other
offences!
Whether it was
the intention or not, the reason for the tendering of the confession in
that case, is to be found in this case. The whole notes of proceedings
of the case including the confession was tendered in evidence in this
case and the tendering of the confession in mitigation of sentence in
the Sessions Court case was used as an argument to prove its
voluntariness: the second appellant had used it, therefore it has been
made voluntarily. Again, we must say, there is nothing wrong legally
speaking about it all. But, again, we are looking at the circumstances
surrounding the confession to determine whether it was voluntarily made.
We have covered all the “unusual” circumstances surrounding the confession. Now, a few more things.
First, even the
first appellant who, until his dismissal (on 2 September 1998) was the
Deputy Prime Minister of Malaysia, was deemed fit to be assaulted by no
other than the then Inspector General of Police. Would it not be too
much to expect that the second appellant was given a completely
different kind of treatment during his detention?
Secondly, it is
easier for seasoned police officers to deny specific allegations put to
them either by the learned Deputy Public Prosecutor or learned counsel
than for the second appellant to create the story especially when it
covers a period of about 10 days. In fact, the version given by the
prosecution witnesses confirms many of what the second appellant told
the court, except for the specific allegations which are denied. Indeed,
on those matters, the prosecution’s witnesses especially C/Insp.
Sampornak, even from reading the notes of evidence, can be clearly seen
to be evasive.
Thirdly,
Det/Kpl. Mokhtaruddin Suki (TRW5), whose evidence we have reproduced
earlier admitted that no confession (“pengakuan”) was obtained from the
second appellant but on the last day of the interrogation (15 September
1998) they were “satisfied with his answers.” Note that on the next day,
16 September 1998 the taping of the second appellant’s statement was
done and on the following day, 17 September 1998, the second appellant
was taken to see the magistrate who recorded his confession. Although
Det/Kpl Mokhtaruddin Suki (TRW5) tried to explain it after the lunch
break, he appears to say that they did not obtain the confession
(“pengakuan”) earlier but on the last day (15 September 1998) they were
satisfied with the second appellants “answers” or as he puts it in the
re-examination, he “had given good co-operation.” In other words, having
been satisfied on 15 September 1998, the interrogation stopped,
followed by the taping on the following day and the recording of the
confession by the magistrate on the next day. It also fits with the
second appellant’s version.
Fourthly, it
was argued that the fact that the second appellant could narrate a story
of that length and detail shows that he was not “programmed” and that
he was making the confession voluntarily. Here too, we think, that the
defence, in alleging that the confession was “programmed”, was making
things more difficult for themselves. Understandably, the defence was
trying to clear the apppellants totally from any indication of
homosexual involvement. But, in so doing, the defence was placing a very
heavy burden on themselves. It is not easy for any court, or indeed any
reasonable man, to accept the story that the second appellant was
“programmed” to make a story of that length and detail.
Be that as it
may, the fact that the second appellant was not “programmed” to make the
confession does not necessarily mean that the confession was
voluntarily made. The fact that the confession is true, if it is true,
does not make it admissible if it is not voluntarily made.
Two things
should not be confused. Voluntariness and admissibility should not be
confused with truth of the confession and the weight to be attached to
it. A confession may be true yet if it is not voluntarily made, it is
not admissible in evidence. A confession, though false, is admissible in
evidence if it is voluntarily made, even though it may not be acted
upon when considering the weight to be given to it at a later stage.
The learned
trial judge, having stated the law correctly, which we shall not repeat,
went on to consider the various allegations made by the second
appellant and the evidence of the prosecution witnesses, in which they
denied all the allegations made by the second appellant and concluded
that he believed the prosecution witnesses. Of course, he had the
advantage of seeing and hearing them. But, we do not think that it is
just a matter of seeing and hearing the witness. What is more important,
in the circumstances of this case, is to look at the broader picture,
including all the surrounding circumstances enumerated above. This, with
respect, the learned trial judge had failed to do. In our judgment and
with respect, that is a misdirection or a non-direction amounting to a
misdirection.
We would pose
the following questions. Applying the words of section 24 of the
Evidence Act 1950, considering all the surrounding and unusual
circumstances that we have enumerated, does it not appear that the
making of the confession has been caused by any inducement, threat or
promise having reference to the charge against the accused person,
proceeding from a person or persons in authority and sufficient in the
opinion of the court to give the accused person ground which would
appear to him reasonable for supposing that by making it he would gain
an advantage or avoid any evil of a temporal nature in reference to the
proceeding against him? Applying Dato’ Mokhtar Hashim’s case (supra),
has the prosecution proved beyond reasonable doubt that the confession
was made voluntarily? Or, to put it another way, considering all the
circumstances enumerated above, are the allegations of the second
appellant so improbable that it does not appear that the making of the
confession was not voluntary, or that it does not raise any reasonable
doubt that the confession was not made voluntarily? Or, applying the
“classic test” laid down in Director of Public Prosecutions v Ping Ling
(1975) 3 All E.R. 175, has the prosecution established “beyond
reasonable doubt that it was voluntary, in the sense that it was not
obtained from him either by fear or prejudice or hope of advantaage
created by a person in auhtority, or by oppression [which test] should
be applied in a manner which is part objective, part subjective”? – per
Abdolcader F.J. in Dato’ Mokhtar Hashim (supra) and cited by the Court
of Appeal – see page 229 of (2004) 1 MLJ. Or, applying Tan Ewe Huat
(supra) and Chan Ming Cheng (supra), are there no “suspicious
circumstances surrounding the making of” the confession? If we consider
these questions seriously in the light of all the surrounding
circumstances that we have enumerated, we do not think that we can
reasonably conclude that there was no doubt as to the voluntariness of
the confession or that it does not appear that it was made
involuntarily.
We are asked to
believe beyond any reasonable doubt as if, after the arrest and having
“slept” over it, the second appellant was full of repentence and he
would like to clear his chest because he had kept the secret for too
long. (“Lama sangat dalam dada, saya hendak meluahkan segala-galanya.”)
We accept that the second appellant had said that to the recording
magistrate. It may even be that he was telling the magistrate what he
truly felt then. But, under what circumstances did it come about? That
must be considered. It came after 10 days of intensive interrogation and
12 days of detention (up to the time he made that statement to the
magistrate), when for all intents and purposes he was arrested as a
witness but interrogated as an offender and ended as an accused, twice.
Indeed he was charged two days later for allowing the first appellant to
sodomise him the record of which was introduced as evidence in this
trial.
With respect,
the learned trial judge and the Court of Appeal had failed to consider
all the surrounding circumstances, many of which unusual, before and
after the confession was made. It may be asked: why should the
surrounding circumstance after the making of the confession be relevant?
It is true that what happened after the making of the confession does
not affect the state of mind of the second appellant leading to the
making of the confession. But, it reflects on the police oficers: it
shows that they wanted a confession from the second appellant. Of course
there is nothing wrong with that but we are looking at it in
determining whether the confession was voluntarily made. The learned
trial judge appears to have only considered the specific allegations
made by the second appellant regarding the treatment given to him during
his detention and during the interrogation and the denials by the
police officers and he believed the police officers. The Court of
Appeal, without much analysis of the facts, agreed with the learned
trial judge. In our judgment there is a serious misdirection that
warrants this court to intervene in the finding of the two courts on the
issue.
In this
respect, we are supported by the dictum of Abdolcader F.J. in Dato’
Mokhtar Hashim (supra) at page 272 and quoted by the Court of Appeal in
this case at page 229 of (2004) 1 MLJ:
“It is open to
an appellate court to interfere with the finding on a question as to the
voluntariness of a confession if the impunged finding has been reached
without applying the true and relevant tests and consideration of
relevant matters (Sarwan Singh v. State of Punjab [A.I.R. 1957 S.C. 637,
643], Public Prosecutor v. Thum Soo Chye [(1954) MLJ 96, 99].”
Indeed, the
surrounding circumstances in this case are much more serious than those
in other cases in which this court and the Court of Appeal had found it
fit to interfere e.g. Tan Ewe Huat (F.C) (supra), Chan Ming Cheng (C.A)
(supra) Hasibullah bin Mohd. Ghazali v Public Prosecutor (1993) 3 MLJ
321) (S.C.) and Dato’ Mokhtar Hashim (F.C.)(supra)
Effects of our findings
Having made our
findings on Azizan’s evidence, in particular regarding the “date” of
the offence and on the issue whether he is an accomplice and the second
appellant’s confession, we think we are now in a position to consider
the prosecution’s case, whether, in view of the said findings, the
prosecution had proved the case beyond reasonable doubt that justifies
the calling for the defence and a conviction, if he chooses to remain
silent. The burden of proof is the same as at the end of the case for
the defence. If at the end of the case for the prosecution, the court
has a reasonable doubt that any of the ingredients of the charge had
been proved, the accused is entitled to an acquittal without his defence
being called. This is again trite law.
The court, as a
court of law, is concerned with proof in accordance with the
requirement of the law, not whether, the judge reading the records is
convinced that the incident did happen or not. He must be satisfied
beyond reasonable doubt, that every ingredient of the charge has been
proved on evidence admissible in law and in accordance with the
requirement of the law.
In this
respect, the dicta of Abdul Hamid C.J. (Malaya) (as he then was) in Teoh
Hoe Chye v Public Prosecutor (1987) 1 MLJ 222 at 230 (S.C.) quoting Ong
Hock Thye Ag. C.J. (Malaya) in Sia Soon Son v. Public Prosecutor (1966)
1 M.L.J. 116 (F.C.) is worth quoting:
“In this
regard, it behoves us to reiterate that “the requirement of strict proof
in a criminal case cannot be relaxed to bridge any material gap in the
prosecution evidence. Irrespective of whether the court is otherwise
convinced in its own mind of the guilt or innocence of an accused, its
decision must be based on the evidence adduced and nothing else ……….”
(Sia Soon Son v. Public Prosecutor (1966) 1 MLJ 116.”
We shall now
consider whether, based on our findings on the three main points, at the
end of the case for the prosecution, the prosecution had proved its
case beyond reasonable doubt, that being the law applicable to this
case.
The “date” of the commission of the offence
The learned
trial judge, when discussing the question “whether the charges are vague
or weak” concluded that the charges contain sufficient particulars as
required by section 153(1) of the Criminal Procedure Code. The Court of
Appeal agreed with him. We too agree with him. Ku Lip See v. Public
Prosecutor (1982) 1 M.L.J. 194 (F.C.) is a case on point.
However, we
think we have to say something on the oft-quoted sentence from the
judgment of Atkin J in Severo Dossi 13 Cr.App.R158:
“From time
immemorial a date specified in an indictment has never been a material
matter unless it is actually an essential part of the alleged offence.”
The learned
trial judge in this case quoted it in support of his statement “In any
event a date in the charge has never been material” when he was
discussing whether the charges are vague and weak, not whether it is
material that it must be proved. He merely quoted the sentence as quoted
in Law Kiat Lang v. Public Prosecutor (1966) 1 M.L.J. 215 (F.C.) and Ho
Ming Siang v. Public Prosecutor (1966) 1 MLJ 252.
To understand the context in which that statement was made, we should look at the facts of that case.
In that case, a
1918 judgment of the Court of Criminal Appeal in England, the appellant
(accused) was charged with indecently assaulting a child “on March
19th, 1918,” and with indecently assaulting another child “between
September 12th and 30th, 1917.” The jury found the appellant not guilty
with regard to the March 19th charge but “If the indictment covers other
dates, Guilty”. They also found him not guilty of indecently assaulting
the second child. On the application of the prosecution the
Deputy-Chairman amended the indictment by substituting “on some day in
March” for the words “on March 19th, 1918”, and the jury then found the
appellant guilty on the amended charged.
The judgment of Atkin J., inter alia, reads:
“The first
point taken on behalf of the appellant is that there was no power to
amend the indictment, and that when the jury found that the appellant
had not committed the acts charged against him on the day specified in
the indictment but on some other day or days they found him Not Guilty
and that verdict must stand. It appears to us that that is not a correct
contention in law. From time immemorial a date specified in an
indictment has never been a material matter unless it is actually an
essential part of the alleged offence. “And alhtough the day be alleged,
yet if the jury finds him guilty on another day the verdict is good,
but then in the verdict it is good to set down on what day it was done
in respect of the relation of the felony; and the same law is in the
case of an indictment,” 2 Inst.318 …………”.
It is to be
noted that in that case the court was concerned with the power of the
court to amend the charge from 19th March 1918 to “on some day in March”
of the same year as the jury had found that the charge bearing the
specific date 19th March had not been proved but it was proved that the
offence was committed in the month of March. That is the context in
which that statement was made. Even then, the sweeping opening words
were qualified by the words “unless it is actually an essential part of
the alleged offence.”
That passage
was quoted by the Federal Court in Law Kiat Liang v. Public Prosecutor
(supra). That case is one of the “Konfrontasi” cases. In the first
charge the date of the alleged offence was given as “between 2.00 a.m.
on 2nd day of September, 1964 and 12.00 noon on the 4th day of September
1964.”
In the judgment of the court, Thomson L.P., after reproducing the charges, straight away went on to say:
“With regard to
the first of these charges, the dates are wrong and the charge was at
no time amended. This in itself, however, is without importance. As was
observed by Atkin J in the case of Servo Dossi …….”
The learned
Lord President went on to cite the same sentence reproduced earlier.
Nothing more was said on it. No reference was made the section 153(1) of
the Criminal Procedure Code, our written law. However, considering his
statement that “the dates are wrong”, it appears to us that in that
case, as in Servo Dossi followed by the court, it was proved that the
offence was committed on another day (or period) but not the date (or
period) specified in the charge. That being the case, it is
understandable why having referred to that case he said no more about
the appeal before him on that point. The only difference is that in the
Federal Court case, the charge was not amended.
The case of Ho
Ming Siang v. Public Prosecutor (supra) is similar to Law Kiat Lang v.
Public Prosecutor (supra). Even the date of the alleged offence in the
first charge is the same. That part of the judgment is a repetition of
what was said in Law Kiat Lang v Public Prosecutor (supra).
It must be
noted that in all these cases, the court did find that the offences were
proved to have been committed on another date, even though not on the
date stated in the charges. In the circumstances, the convictions were
upheld.
In the instant
appeals, it is not that the offences have been proved to have been
committed on another day, not being the date stated in the charge. The
question of amending the charges does not arise. It is simply a question
whether the alleged offences have to be proved to have been committed
as per charge, including the date. As has been pointed out, the Federal
Court in the two cases referred to earlier did not address its mind to
the provision of section 153(1) of the Criminal Procedure Code. Perhaps
that was because it was only dealing with the question whether the
charges should have been amended. In the instant appeals we are dealing
with the question whether, the offences not having been proved to have
been committed on another date, it must be proved to have been committed
on the date stated in the charges. Section 153(1) of the Criminal
Procedure Code clearly states that “The charge shall contain such
particulars as to the time ….” Since it is mandatory to state the “time”
(i.e. date or period) when an offence is alleged to have been
committed, clearly it is a “material matter” and an “essential part of
the alleged offence”, to use the words of Atkin J. in the exception
stated by him, even if that case is applied. If the law clearly provides
that the charge shall contain particulars as to “time”, it follows that
such particulars must be proved.
In any event,
reading the judgment of the High Court, even though the learned judge
did not mention the date of the offence when he listed the ingredients
to be proved (see (2000) 3 M.L.J. at page 276), it is clear from his
judgment that when he found that the charges had been proved, he meant
the date as well. So, there is really no issue whether the date of the
alleged offences as stated in the charges have to be proved. The issue
is whether it is proved.
The concluding
paragraph of the learned trial judge’s judgment on the inconsistencies
of Azizan’s evidence regarding the date of the offence reads:
“Be that as it
may, the evidence of SAC-1 Musa clearly states that Azizan was
consistent in his statements on the issue of sodomy although he was not
sure of the exact dates. The relevant dates we are concerned with in the
present charges are between the months of January and March 1993.
Azizan emphatically said in evidence that he was sodomized by both Dato’
Seri Anwar and Sukma at Tivoli Villa between these dates and he gave
the reasons for remembering the dates. This evidence was not
successfully challenged. It is therefore established on this evidence
that Azizan was sodomized by both Dato’ Seri Anwar and Sukma in Tivoli
Villa between January to March 1993. Whether he was sodomized in May
1994 or May 1992 is not relevant as these dates are not in issue to be
decided in this case. I see no merits on this contention and the credit
of Azizan is not affected on this ground.” (page 255 to 256 of (2001) 3
M.L.J.)
The only
evidence available to prove the date of the commission of the offence is
that of Azizan. The second appellant’s confession, even if admissible
(but which we hold is not) does not help. It was made on 17 September
1998. He mentioned the date as “Dalam lebih kurang dua atau tiga tahun
yang lalu waktu dan tahun yang tepat saya tidak ingat ……”. “Two or three
years ago” can only mean in 1996 or 1995. The learned trial judge
interpreted that phrase to include 1993. This is what he said:
“In my view,
the phrase ‘dua atau tiga tahun yang lalu’ does not conclusively
establish that the date of the commission of the offences could not be
1993. I do not agree with the contention of the defence that ‘dua atau
tiga tahun yang lalu’ would be in 1995 or 1994 because this may also
include 1993. This year cannot be excluded for the simple reason that
Sukma himself was not sure of the exact date but only giving an
estimated date. He could have said with precision that the year was 1994
or 1995 if he was sure that what he meant by ‘dua atau tiga thaun yang
lalu’ refers to these years but he said ‘tahun yang tepat saya tidak
ingat.’ This in my view does not exclude 1993.” (page 263 of (2001) 3
M.L.J.)
With respect,
such an interpretation is unwarranted. The phrase “waktu dan tahun yang
tepat saya tidak ingat” cannot reasonably be interpreted to expand the
period of “dua atau tiga tahun yang lalu”. The phrase “tahun yang tepat
saya tidak ingat” follows immediately the phrase “dua atau tiga tahun
yang lalu.” It must therefore be read in that context. “……… tahun yang
tepat” must necessarily refer to the “dua atau tiga tahun yang lalu”. It
means he could not remember the exact year but it was two or three
years earlier. It cannot also mean five years earlier. Such an
interpretation is not reasonable, whatmore in a criminal trial. In a
criminal trial even if a word or phrase or statement is open to two
interpretations, the one in favour of the accused should be adopted.
This is not even such a case. There is no reasonable alternative
interpretation that can be given. In any event, this discussion is on
the basis that the confession is admissible. Since we have held that the
confession is not admissible, the confession need not be considered at
all. There is no other evidence, oral or documentary, to support the
“date” of the offence.
So, we have to rely on Azizan’s evidence alone to prove the “date” of the offence.
The learned
trial judge found Azizan a truthful, credible and reliable witness. He
was even prepared to convict the appellants on Azizan’s evidence alone.
But, we find
that Azizan’s evidence, especially on the “date” of the commission of
the offence doubtful. He had given three different periods, the first
two covering one month each and the last covering three months, in three
different years (1992, 1993 and 1994), including one (“May 1992”) when
the construction of Tivoli Villa was not even ready. Besides, he also
contradicted himself on the issue whether he informed the police that he
was sodomised in 1994. His demeanor even prompted the learned trial
judge to record that he was “very evasive and appears to me not to
answer simple question put to him” when he was cross-examined as to the
manner the police finally obtained from him the “date” specified in the
charges. On such evidence, can the court accept that the “date” of the
offence has been proved beyond reasonable doubt? In considering his
evidence whether it proves the offence or not, any benefit of the doubt
should be given to the appellants who are the accused.
There is yet
another point concerning the date of the commission of the offence. The
notes of evidence on 19 August 1999 shows that when Mr. Karpal Singh
requested for an adjournment to enable SAC1 Musa (SP9) to carry out an
investigation in respect of alibi for the period from January 1993 to
March 1993, the then Attorney General, at first had no objection.
However, after the lunch break, he objected to the postponement on the
ground that, at that stage, he had advised SAC 1 Musa that there was
nothing more to investigate. And he said this:
“Peguam Negara:
Saya telah memberi nasihat pada saksi ini (SAC1 Musa – added) siasatan
lanjut berkaitan dengan alibi yang diberi oleh kedua-dua pihak pembela
(tidak perlu (?)– added) kerana pihak pendakwa mempunyai rekod dan
keterangan berkaitan dengan pergerakan (movement) Dato’ Seri Anwar di
dalam negara dan di luar negara dari tahun 1992 hingga September 1998
iaitu tarikh pemecatan.”
(Jilid 2, page 1124)
The point is
this. If the prosecution had such a record, which should include the
night(s) the first appellant went to Tivola Villa, then the prosecution
should be able to know when the first appellant visited Tivoli Villa.
Instead, the prosecution had given three “dates” as the date of the
commission of the offence covering a period of three years (1992, 1993
and 1994) and the final date covers a period of three months. It only
shows that even the prosecution was not sure.
Furthermore, as
agreed by both parties before us, the prosecution did supply the
diaries of the first appellant to the defence for inspection. This
happened on 21 October 1999 (Jilid 2 page 1371). However, as admitted by
the prosecution, only diaries for 1994 to 1999 were made available.
That is because:
“2. Pihak kami
hanya mengambil buku dairi milik Dato’ Seri Anwar bin Ibrahim dari tahun
1994 hingga 1999. Dairi 1993 tidak ada dalam simpanan kami.”
(Jilid 5, page
2984 – letter dated (?) Jun 1999 from SAC 1 Musa in reply to S.N. Nair’s
letter dated 18 June 1999 (Jilid 5, page 2983).
It must be
noted that this letter was written soon after the date in the charges
was amended to read “from January until March 1993”. The statement of
SAC1 Musa in his reply may be true. But, it is not free from suspicion.
In the
circumstances, our conclusion is that the prosecution had not proved one
of the material particulars of the charge i.e. the “date” of the
commission of the offence.
The broader question: Has the prosecution proved its case beyond reasonable doubt?
Putting aside
the issue about the date for a while, we shall now consider the broader
question i.e. whether the prosecution has proved the charges beyond
reasonable doubt that warrants the calling for the defence.
We have found Azizan to be an accomplice.
Section 133 of the Evidence Act 1950 provides:
“133. An
accomplice shall be a competent witness against an accused person; and a
conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.”
The illustration (b)of section 114 of the same Act however provides:
“The court may pressume –
(a) (a) …………….
(b) (b) That an accomplice is unworthy of credit unless he is corroborated in material particulars.”
In Madam Guru & Another v. Emperor (1923) Vol.24 Cr.LJ 723, it was held that:
“Under section
133 of the Evidence Act the evidence of an accomplice by itself would be
sufficient for the purpose of conviction; but it is a rule of practice
founded on experience that in every case where an accomplice has given
evidence the court must raise a presumption that he is unworthy of
credit unless corroborated in material partiuclars. Failure to raise
that presumption is an error of law”.
In Yap Ee Kong
& Anor v. Public Prosecutor (1981) 1 MLJ 144 (F.C.), Raja Azlan Shah
C.J.(Malaya) (as he then was) had this to say:
“It is trite
law that although an accomplice is a competent witness a conviction is
not illegal merely because it proceeds upon the uncorroborated testimony
of an accomplice. All leading authorities have stated in clear terms
that it has long been a rule of practice or rule of prudence which has
become virtually equivalent to a rule of law for the judge or jury to be
warned of the danger of convicting on the uncorroborated testimony of
an accomplice. It is a matter of prudence except where circumstances
make it safe to dispense with that there must be corroboration of the
evidence of an accomplice.”
Regarding the “nature and extent of corroboration”, his Lordship then said:
“The rules are lucidly expounded by Lord Reading in Baskerville’s case, supra. The rules may be formulated as follows:
(1) (1) There
should be some independent confirmation tending to connect the accused
with the offence although it is not necessary that there should be
independent confirmation of every material circumstance;
(2) (2) The
independent evidence must not only make it safe to believe that the
crime was committed but must in some way reasonably connect or tend to
connect the accused with it by confirming in some material particular
the testimony of the accomplice; and
(3) (3) The
corroboration must come from independent sources, thus bringing out the
rule that ordinarily the testimony of an accomplice would not be
sufficient to corroborate that of another.”
On the same point, the Privy Council, in Dowse v. Attorney-General, Federation of Malaya (1961) 27 MLJ 249 held:
“2) evidence,
to be corroborative, must be truly probative of the relevant issue; that
is, it must positively implicate the accused person and positively show
or tend to show the truth of the accomplice’s story that the accused
committed the offence. A fact which is indifferently consistent with the
accomplice’s story and the accused’s denial of it is neutral and
supplies no corroboration.”
On the issue
whether corroboration is at all necessary where the evidence of the
accomplice is itself “uninspiring and unacceptable”, the then Chief
Justice (Malaya) applied the principles enunciated by Lord Morris of
Borth-y-Gest in Director of Public Prosecutions v Hester (1973) A.C.
296, 315:
“The essence of
corroborative evidence is that one creditworthy witness confirms what
another creditworthy witness has said ….. The purpose of corroboration
is not to give validity or credence to evidence which is deficient or
suspect or incredible but only to confirm and support that which as
evidence is sufficient and satisfactory and credible: and corroborative
evidence will only fill its role if it itself is completely credible
evidence.”
His Lordship then went on to say:
“Accordingly
the court should first evaluate the evidence of an accomplice and if the
same is found uninspiring and unacceptable then corroboration would be
futile and unnecessary.”
The dictum of
Lord Hailsham in Director of Public Prosecutions v Kilbourne (1973) 1
All E.R. 440 at p.452 quoted by the learned trial judge at (2001) 3 MLJ
at p.268 is also to the same effect.
We do not go so
far as to say that Azizan’s evidence is “uninspiring and unacceptable”
or that all his evidence is not credible. All that we say is that some
parts of his evidence are rather doubtful or are inconsistent. So, we
would still look for corroborative evidence.
Is there such
corroborative evidence? Tun Hanif Omar’s evidence, for example,
regarding the conduct of the first appellant when told to stop his
wayward activities i.e. he did not protest, at the most, only supports
the first appellant’s homosexual activities, not the specific charge.
Likewise, Dr.
Mohd. Fadzil’s (SP2’s) evidence. Even though the learned trial judge
ruled that his evidence was relevant he did not find that Dr. Mohd.
Fadzil’s evidence corroborated Azizan’s evidence. The Court of Appeal
agreed with learned trial judge’s view. We agree with the views of both
the courts.
Regarding the
conduct of the first appellant, two incidents were considered by the
learned trial judge. The first is where the first appellant asked Azizan
to deny his statutory declaration which was sent to the then Prime
Minister. Secondly, where he asked SAC1 Musa to close the investigation
into the allegation made against him in police report No.2706/97.
On the first, this is what the learned trial judge said:
“In the
‘Pengakuan Bersumpah’ Azizan said that the act of sodomy took place
‘sekitar tahun 1992’. By this it is clear that it is not confined to
just acts of sodomy committed in 1992. It could include acts committed
in 1991 or 1993. This view is supported by what Azizan said in cross
examination that he did tell Umi Hafilda who drafted P5 some of the
places only and the date i.e. sekitar 1992 where the acts took place. He
did not tell Umi all the places but this does not necessarily mean that
the acts did not take place elsewhere. Therefore when Azizan signed P5
he also had in mind the incident at Tivoli Villa. Thus when Dato’ Seri
Anwar asked Azizan to deny P5 to the police, the accused is specifically
also referring to the Tivoli incident. In my view, this amounts to
Dato’ Seri Anwar asking Azizan to lie, as stated by Azizan in his
evidence, about the acts of sodomy which would include the Tivoli
incident. This amounts to suborning of false evidence and is evidence of
conduct against the accused under s 8 of the Act. I shall deal with the
application of this section later.” (Page 271 of (2001) 3 M.L.J.)
We note that
towards the tail-end of his evidence, in re-examinaiton by the
prosecution, Azizan had expanded the words “sekitar tahun 1992” in his
statutory declaration to include “early 1993”. Now the learned trial
judge has expanded it further to include both 1991 and 1993 as well. He
did so to impute that Azizan, when signing Exh. P5 also had in mind the
incident at Tivoli Villa despite the fact that it was not even a
luxurious hotel as those named therein. With respect, in a criminal
trial, such an interpretation should not be given. By doing so, the
learned trial judge was not only not giving an interpretation which was
more favourable to the appellant, but was actually expanding the
evidence to connect Exh.P5 with the offences for which the appellants
are charged and to hold that the conduct of the first appellant in
asking Azizan to deny the contents of of Exh. P5 is corroborative
evidence.
The second
conduct is in respect of the first appellant’s request to SAC1 Musa to
close the investigation into the alleged sexual misconduct against the
first appellant in 1997 based on a police report lodged by ASP Zull
Aznam in connection with an anonymous letter entitled “Talqin Untuk
Anwar Ibrahim”. The learned trial judge held that that act amounts to
asking SAC1 Musa to destroy evidence “relevant to help the court to come
to a finding of fact whether there was indeed fabrication of evidence
in respect of sodomy alleged to be committed by Dato’ Seri Anwar
Ibrahim”. He then concluded:
“For the above
reasons and in the circumstances I find that the conduct of Dato’ Seri
Anwar as described referred to above is relevant and admissible and to
that extend (sic) enhances the credibility of Azizan and corroborates
his evidence on the allegation of sodomy committed against him”. (page
273 of (2001) 3 M.L.J.
The Court of
Appeal, without saying much, agreed with him “although such evidence
could not be said to be directly in relation to the offence as per
charge." So, even if we agree with the Court of Appeal, it does not
help.
So, we find no
corroborative evidence of the nature and extent described in the cases
cited above, nor “of a convincing cogent and irresistable character” –
see Jegathesan v. Public Prosecutor (1980) 1 MLJ 167.
In the
circumstances, is it safe to convict the appellant on Azizan’s evidence
alone? No doubt Azizan has been consistent in admitting the incident at
Tivoli Villa despite the shame that would have been caused to him by
such admission though made years later, but we are doubtful as to when
it happened and his purported role as the innocent victim therein. As
such we are really in no position to say that his story is unusually
convincing nor can we find any reason to give it special weight that
warrants a conviction to be recorded on his evidence alone. We do not
think it is safe to convict on his evidence alone.
Furthermore,
the offence is a sexual offence. Even though a conviction founded on the
uncorroborative evidence of the complainant is not illegal provided
that the presiding judge warns himself of the danger of convicting on
such uncorroborated evidence (see Chin Nam Hong v. P.P. (1965) MLJ 40,
it is unsafe to convict on an uncorroborated testimony of the person on
whom the offence is said to have been committed unless for any special
reason that testimony is of special weight – see Ganpart v Emperor AIR
1918 Lab.322 and Bal Mukundo Singh v. Emperor) 1937) 38 Cr.L.J.
70(Cal.).
In this
respect, our discussion and conclusion regarding corroborative evidence
in support of the evidence of an accomplice and in respect of Azizan’s
evidence is applicable. On this ground too it is unsafe to convict the
appellants on Azizan’s uncorroborated evidence alone.
To summarise
our judgment, even though reading the appeal record, we find evidence to
confirm that the appellants were involved in homosexual activities and
we are more inclined to believe that the alleged incident at Tivoli
Villa did happen, sometime, this court, as a court of law, may only
convict the appellants if the prosecution has successfully proved the
alleged offences as stated in the charges, beyond reasonable doubt, on
admissible evidence and in accordance with established principles of
law. We may be convinced in our minds of the guilt or innocence of the
appellants but our decision must only be based on the evidence adduced
and nothing else. In this case Azizan’s evidence on the “date” of the
incident is doubtful as he had given three different “dates” in three
different years, the first two covering a period of one month each and
the last covering a period of three months. He being the only source for
the “date”, his inconsistency, contradiction and demeanor when giving
evidence on the issue does not make him a reliable source, as such, an
essential part of the offence has not been proved by the prosecution. We
also find the second appellant’s confession not admissible as it
appears not to have been made voluntarily. Even if admissible the
confession would not support the “date” of the commission of the
offences charged. We have also found Azizan to be an accomplice.
Therefore corroborative evidence of a convincing, cogent and
irresistable character is required. While the testimonies of Dr. Mohd.
Fadzil and Tun Haniff and the conduct of the first appellant confirm the
appellants’ involvement in homosexual activities, such evidence does
not corroborate Azizan’s story that he was sodomised by both the
appellants at the place, time and date specified in the charge. In the
absence of any corroborative evidence it is unsafe to convict the
appellants on the evidence of an accomplice alone unless his evidence is
unusually convincing or for some reason is of special weight which we
find it is not. Furthermore, the offence being a sexual offence, in the
circumstances that we have mentioned, it is also unsafe to convict on
the evidence of Azizan alone.
For all the
above reasons, we are not prepared to uphold the conviction. Since the
applicbale law in this case requires that the prosecution must prove its
case beyond reasonable doubt before the defence may be called, the
burden being the same as is required to convict the appellants at the
end of the case for the defence, we are of the view that the High Court
has misdirected itself in calling for the appellants to enter their
defence. They should have been acquitted at the end of the case for the
prosecution.
We therefore allow the appeals of both appellants and set aside the convictions and sentences.
We must record
our appreciation for the meticulous recording of the notes of evidence
by the learned trial judge, without which we would not be able to
scrutinise the evidence, the submissions and the grounds for every
ruling and decision that he had made in the preparation of this
judgment.
2 September 2004.
(DATO’ ABDUL HAMID BIN HAJI MOHAMAD)
Hakim Mahkamah Persekutuan
Malaysia.
Bagi Pihak Perayu Pertama:
1. Mr. Christopher Fernando
2. Mr. Karpal Singh
3. Encik Pawancheek Marican
4. Puan Kamar Ainiah
5. Mr. S.N. Nair
6. Encik Zulkifli Nordin
7. Ms Marisa Regina
8. Encik Saiful Izham Ramli
Bagi Pihak Perayu Kedua:
1. Mr. Jagdeep Singh Deo
2. Mr. Gobind Singh Deo
3. Mr. Ramkarpal Singh Deo
4. Encik Shamsul Iskandar Mohd. Amin
Mewakili Pendakwa Raya:
1. Tan Sri Abdul Gani Patail
2. Dato’ Mohd. Yusof b. Zainal Abiden
3. Dato’ Azahar bin Mohamed
4. Encik Tun Abdul Majid b. Tun Hamzah
5. Encik Mohamad Hanafiah bin Zakaria
6. Encik Shamsul bin Sulaiman
7. Encik Ishak bin Mohd. Yusof
8. Encik Md. Azar Irwan bin Mohd. Arifin
Sumber: tun faisal dot com
Sumber: tun faisal dot com
