[2003] 1 MLJ 247
Hewlett Packard Sales (M) Sdn Bhd v Active Team Mould Engineering Sdn Bhd & Ors
Headnote
Court Details
HIGH COURT (KUALA LUMPUR) — SUIT NO D1–-22–-1966 OF 1999
VINCENT NG J
27 SEPTEMBER 2002
Catchwords
Civil Procedure — Appeal — Reinstatement — Appeal struck out due to non-attendance — Whether the non-attendance at the hearing of the matter was culpable — Whether the applicant tendered or presented sufficient material in his application, to show that he has a plausible or arguable defence/claim
Summary
This is an application to reinstate an appeal (encl 24) which had been struck out due to non-attendance of the third defendant (‘D3’) and his counsel. The issue for determination of the court is whether to reinstate encl 24. In an application for reinstatement two questions, in the interests of the due administration of justice, fall to be considered, namely: (i) whether the non-attendance at the hearing of the matter was culpable; and (ii) whether the applicant tendered or presented sufficient material in his application, to show that he has a plausible or arguable defence/claim.
Holdings
Held, dismissing the application with costs:
(1) The assertion of Mr Hiew, that the Bar Council Box No 502 was in fact his firm’s box number for the lower courts, smacked of negligence on the part of his firm’s employees. At any rate, as he had acknowledged that an earlier encl 23 (being the notice of appeal against the senior assistant registrar’s decision disallowing the use of an affidavit) was duly received by his firm though it bore the same box number stamped as ‘Box No 502’, the court was not at all persuaded to the view that encl 24 did not reach his firm (see p 250B–C).
(2) On the second question, para 7(b) of encl 29 only contained a general and bare statement that there were in the appeal, without condescending to any particulars pertaining to the question of or to at least state, for example, that the merits were as set out in the defence or an earlier affidavit (if notice of intention to use same had been given). As encl 29 was totally devoid of such particulars, the court held that there was no material presented to the High Court to found any exercise of the court’s discretion (see p 250D–E).
Bahasa Summary
Bahasa Malaysia summary
Ini adalah satu permohonan untuk menghidupkan semula satu rayuan (lampiran 24) yang telah dibatalkan oleh sebab ketidakhadiran defendan ketiga (‘D3’) dan peguam beliau. Persoalan untuk ditentukan oleh mahkamah adalah sama ada untuk menghidupkan semula lampiran 24. Dalam satu permohonan untuk penghidupan semula dua persoalan, demi kepentingan pentadbiran keadilan, perlu dipertimbangkan, iaitu: (i) sama ada ketidakhadiran di perbicaraan perkara tersebut adalah salah; dan (ii) sama ada pemohon telah mengemukakan bahan yang mencukupi dalam permohonan beliau, untuk menunjukkan bahawa beliau mempunyai satu pembelaan/tuntutan yang munasabah.
Bahasa Holdings
Diputuskan, menolak permohonan dengan kos:
(1) Penegasan Mr Hiew, bahawa Bar Council Box No 502 sememangnya nombor kotak firma beliau untuk mahkamah-mahkamah rendah, adalah nyata sebagai satu kecuaian di pihak firma beliau. Walau apa sekalipun, memandangkan beliau telah mengetahui bahawa satu lampiran 23 (iaitu notis rayuan terhadap penolong kanan pendaftar yang tidak membenarkan penggunaan afidavit) telah diterima dengan sempurna oleh firma beliau walaupun ia mempunyai nombor kotak yang sama iaitu ‘Box No 502’, mahkamah tidak percaya langsung tentang pendapat bahawa lampiran 24 tidak sampai ke firma beliau (lihat ms 250B–C).
(2) Berhubung dengan persoalan kedua, perenggan 7(b) kepada afidavit yang menyokong permohonan untuk penghidupan semula (‘lampiran 29’) hanya mengandungi satu pernyataan yang umum dan asas bahawa terdapat merit dalam rayuan tersebut, tanpa melebihi apa-apa butiran berkaitan persoalan tentang merit atau sekurang-kurangnya menyatakan, sebagai contoh, bahawa merit tersebut telah dinyatakan dalam pembelaan atau afidavit terdahulu (jika notis tentang niat untuk menggunakan yang sama telah diberikan). Memandangkan lampiran 29 langsung tidak mempunyai butiran-butiran sedemikian, mahkamah telah memutuskan bahawa tiada bahan telah dikemukakan kepada Mahkamah Tinggi yang membolehkan mahkamah menggunakan budi bicaranya (lihat ms 250D–E).]
Notes
For cases on reinstatement, see 2 Mallal’s Digest (4th Ed, 2001 Reissue) paras 1169–1171.
Legislation referred to
Rules of the High Court 1980 O 14
Lawyers
CP Lee (Azman, Davidson & Co) for plaintiff/respondent.
YL Hiew (G Gunaseelan & Assoc) for the third defendant/applicant.
Judgement - Vincent Ng J
Vincent Ng J : As the third defendant’s (‘D3’) appeal against my decision concerns a very short point pertaining the exercise of the court’s discretionary powers, I shall make an earnest endeavour to write a truly brief judgment coupled with an equally serious effort to avoid discussing trite and well settled law.
Normally, an application to reinstate a matter which has been struck out is uneventful. If there is no objection from the other side, it is often reinstated as a matter of course subject to costs to the adverse side.
Yet nevertheless, quite occasionally a court is confronted with a vigorous objection from the opposing side. This happened in the instant case when I heard encl 30, in which D3 had sought reinstatement of the appeal (‘encl 24’) which was struck out by me on 2 April 2002 due to non-attendance of D3 and his counsel at the hearing of the same. Enclosure 24 was D3’s appeal against the decision of the senior assistant registrar allowing the plaintiff to enter summary judgment under O 14 of the Rules of the High Court 1980 (‘the RHC’) against D3 (the first defendant did not contest and the second defendant had earlier admitted liability on the plaintiff’s claim) in the sum of RM1,244,222 (a joint liability figure) being the aggregate sum due to the plaintiff on rental of various equipment.
The objection to a reinstatement of encl 24 (‘the appeal’) by the plaintiff was through its counsel, Mr CP Lee, expressed in the following terms:
We object to the reinstatement because the supporting affidavit Lampiran 29 did not disclose any in the appeal. It only states that ‘rayuan D3 memang bermerit’. The first defendant (the borrower) did not contest and the second defendant (the other guarantor) admitted liability — only D3 now wishes to contest. Summary judgment was granted. No defence was filed and there was no notice of intention to use affidavits in respect of other applications as required under the RHC. Even assuming that they were in fact unaware of the 2 April 2002 hearing of encl 24, yet they now have the opportunity to show that they have an arguable appeal. In this case, I now observe that they themselves rubber stamped ‘Box No 502’ (Bar Council Box) and the court would have deposited encl 24 in that box.
Mr YL Hiew for D3, who chose not to file any defence, could only attempt the following reply:
Box number chopped by us at the back of Lampiran 24 is our lower court BC Box number. I acknowledge that Lampiran 23 (notice of appeal against the SAR’s decision disallowing use of an affidavit) was received by us though the same chop ‘Box No 502’ was stamped on the back of Lampiran 23. Both counsel attended the 3 April 2002 hearing stated in Lampiran 23 and appeal was withdrawn. I would also ask this court to exercise its discretion under O 92 r 4 of the RHC. I concede that the affidavit supporting the application for reinstatement only stated that ‘rayuan D3 memang bermerit dan bukannya remeh temeh’ but does not refer to paragraphs in other affidavits which deals with the question of .
Hence, I am seized with the duty to carefully examine the material in the application before me to determine whether to reinstate encl 24. In an application for reinstatement two questions, in the interests of the due administration of justice, fall to be considered, namely:
(i) whether the non-attendance at the hearing of the matter was culpable; and
(ii) whether the applicant tendered or presented sufficient material in his application, to show that he has a plausible or arguable defence/claim.
On the first question, I find the assertion of Mr Hiew, that the Bar Council Box No 502 was in fact his firm’s box number for the lower courts, smacks of negligence on the part of his firm’s employees. At any rate, as he had acknowledged that an earlier encl 23 (being the notice of appeal against the SAR’s decision disallowing the use of an affidavit) was duly received by his firm though it bore the same box number stamped as ‘Box No 502’, I am not at all persuaded to the view that encl 24 did not reach his firm.
On the second question, three pre-eminently trite principles have to be borne in mind in an application for reinstatement. Firstly, an applicant could not require a court to reinstate a struck out matter as of right — it is not merely a matter of partaking in an automatic formal exercise before the judge, with the opponent as spectator. Secondly, reinstatement involves an exercise of the court’s discretion. Thirdly, there must be sufficient material before the court to enable it to found the exercise of its discretion. Counsel for D3 appears to be unaware of the first two principles and has clearly breached the third. I find a serious infirmity in the affidavit supporting the application for reinstatement (‘encl 29’) affirmed on 12 June 2002. On the question of , para 7(b) of encl 29 only contains a general and bare statement that there were in the appeal, without condescending to any particulars pertaining to the question of or to at least state, for example, that the merits are as set out in the defence or an earlier affidavit (if notice of intention to use same has been given). As encl 29 was totally devoid of such particulars, I am driven to hold that there is no material presented to this court to found any exercise of the court’s discretion. In any event, I would agree with counsel for the plaintiff’s submission that: ‘even assuming that the firm of solicitors for D3 had not received encl 24, yet D3 now have the opportunity to show that he has an arguable appeal’. This, in my judgment upon settled principles, is clearly fatal to the application and I dismissed encl 30 with costs to the plaintiff.
Application dismissed with costs.
Reported by Ezatul Zuria Azhar
Sunday, November 8, 2009
Public Prosecutor v Ottavio Quattrocchi
[2003] 1 MLJ 225
Public Prosecutor v Ottavio Quattrocchi
Headnote
Court Details
HIGH COURT (KUALA LUMPUR) — CRIMINAL REVIEW NO 43–11 OF 2002
AUGUSTINE PAUL J
13 DECEMBER 2002
Catchwords
Criminal Procedure — Extradition — Applicable laws — Appearance on behalf of public prosecutor — Categories of person enumerated in s 41 of the Extradition Act 1992 — Whether person must be in the employment of the government of a country
Criminal Procedure — Extradition — Discharge, basis for — Decision of sessions court — Superior courts’ power to review — Whether any issue that will render an extradition inquiry groundless can be raised as an preliminary issue — Whether the fugitive criminal an “accused” person — Whether the prosecution identified the offence alleged to be committed — Whether the prosecution identified the corresponding local law for the offence alleged to be committed — Whether the court must be furnished with a copy of the charge — Extradition Act 1992 ss 6 and 41(1)
Summary
At the request of the Government of India, the Minister of Home Affairs, Malaysia issued a special direction under the Extradition Act 1992 (‘the Act’) for the extradition of the respondent who was accused of committing the offences of criminal conspiracy and cheating and dishonestly inducing delivery of property in India. The respondent is an Italian national and was resident in India at all material times. He was duly arrested and produced before the sessions court to inquire into the extradition matter. At the commencement of the inquiry, the respondent raised a preliminary objection to the further conduct of the inquiry on the ground that no charges had been served on the respondent. The sessions court took the view that the court should be in a position at the beginning to determine whether the offences are extradition offences under s 6 of the Act. Without a proper description of the offences, the respondent will be prejudiced in conducting his defence. In the circumstances, the sessions court directed that the respondent be discharged. The prosecution promptly applied for a review of the order made by the sessions court pursuant to s 37 of the Act. At the commencement of the hearing, the deputy public prosecutor applied for leave to allow Dato’ Dr Cyrus V Das and Mr Steven Thiruneelakandan, both advocates and solicitors, to hold a watching brief for the Government of India. When the proceeding had already commenced the deputy public prosecutor informed the court that the public prosecutor had authorized Dato’ Dr Cyrus V Das to appear on his behalf.
Holdings
Held:
(1) The process of an advocate and solicitor holding a watching brief is a form of legal representation for a person. If that person is already represented by counsel to conduct the proceeding, it is inappropriate for him to be further represented by another counsel in a different form. In the case of an extradition inquiry, the public prosecutor acts on the instruction of the requesting country. To that extent, the Government of India was already represented in the proceedings. Accordingly, the court dismissed the application to allow the two counsels to hold a watching brief for the Government of India (see pp 232I–233B).
(2) The validity of the authorization given by the public prosecutor is dependent on the interpretation to be accorded to s 41(1) of the Act. The words ‘… or legal officer …’ are followed by the words ‘… in the employment of the government of any country …’. The question for determination is whether this qualification is confined in its operation to just a ‘legal officer’ or also includes the preceding two categories of persons. The absence of a comma before the words ‘… or legal officer …’ in the subsection means that the qualification made must be construed conjunctively. The very fact of employment of an advocate and solicitor for the purpose of appearing in this proceeding will not render him to be a person in the employment of the government of any country for the purpose of the s 41(1) of the Act as its language refers to a person who is already in employment. In the circumstances, the three categories of persons enumerated in s 41(1) of the Act refer to persons ‘… in the employment of the government of any country …’. Accordingly, the court declined to accept the authorization of the public prosecutor (see pp 233E–F, 234E–F); Prithipal Singh v Datuk Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Intervener) [1993] 3 MLJ 336 followed.
(3) An order of discharge may therefore be made at any stage of the proceedings if the charge is found to be groundless. Therefore, an issue as to jurisdiction or any other matter that would render an extradition inquiry groundless could be raised as a preliminary issue. Thus, it was appropriate to consider the matters that confer jurisdiction on a sessions court to conduct an extradition inquiry in order to ascertain whether the objection that was entertained was regular (see p 235D–E).
(4) In accordance with the principle enunciated in In re Ismail [1968] 3 WLR 495, it is only when the magistrate takes cognizance of an offence by the issue of a summons or warrant of arrest can it be said that the prosecution of a person has commenced in order to describe him as an ‘accused’ person. Therefore, sufficient material must be placed before the court at the commencement of the extradition inquiry to show, inter alia, that the fugitive criminal was an ‘accused’ person within the meaning of the Act. If he is not, there can be no extradition proceeding against him (see p 237A–D).
(5) The prosecution should not undertake an extradition inquiry in respect of an offence committed in another country if it was unable to identify the corresponding local law. In this case the identification of the corruption offence alleged to have been committed by the respondent in India as stated in the requisition was open to doubt. It was not clear whether it referred to a conspiracy to commit the offence under the Prevention of Corruption Act 1947 or a substantive offence under the said Act. The respondent could not be liable for the substantive offence as he was not a public servant. There was also nothing on record identifying the corresponding Malaysian offences. This was absolutely necessary in order to ensure compliance with s 6 of the Act. Without an identification of the corresponding Malaysian offences at the commencement of the inquiry, it just could not proceed as it had to be conducted in accordance with our laws (see p 239B–F).
(6) The court must also be furnished with a copy of the charge. It was only with a charge would the court be in a position to decide what evidence was relevant and admissible and whether the evidence adduced was sufficient. It would also ensure identification of the relevant corresponding Malaysian law so as to facilitate a determination of compliance with the double criminality rule. It was also essential that a charge in accordance with the law of the requesting country be furnished and if it cannot be done so, for whatever reason, at least a statement of the particulars of the offence must be supplied. Where there was a statutory requirement for a charge to be formulated in a certain manner then it must be presented as required. Where there was no such stipulation there can be no objection to a charge being presented in an informal manner provided that it contained the necessary particulars (see pp 241F–G, 242F–G).
Bahasa Malaysia summary
Atas permintaan Kerajaan India, Menteri Dalam Negeri, Malaysia telah mengeluarkan satu arahan khas di bawah Akta Ekstradisi 1992 (‘Akta tersebut’) untuk mengekstradisikan responden yang dituduh melakukan kesalahan-kesalahan konspirasi jenayah dan penipuan dan secara tidak jujur menyebabkan penyerahan hartanah di India. Responden adalah seorang warganegara Itali dan penduduk tetap di India pada setiap masa matan. Beliau telah ditangkap dan dikemukakan seperti yang sepatutnya di hadapan mahkamah sesyen bagi menyiasat perkara extradisi tersebut. Pada permulaan siasatan tersebut, responden telah menimbulkan satu bantahan awal terhadap pengendalian seterusnya siasatan tersebut atas alasan tiada pertuduhan telah disampaikan ke atas responden. Mahkamah sesyen berpendapat bahawa mahkamah pada awal lagi patut menentukan sama ada kesalahan-kesalahan tersebut adalah kesalahan-kesalahan ekstradisi di bahawa s 6 Akta tersebut. Tanpa apa-apa gambaran sebenar tentang kesalahan-kesalahan tersebut, responden akan diprejudiskan apabila mengendalikan pembelaan beliau. Dalam keadaan sedemikian, mahkamah sesyen telah mengarahkan agar responden dibebaskan. Pihak pendakwa dengan segera telah memohon untuk satu kajian semula terhadap perintah yang dibuat oleh mahkamah sesyen tersebut menurut s 37 Akta tersebut. Pada permulaan perbicaraan, timbalan pendakwa raya telah memohon kebenaran untuk membenarkan Dato’ Dr Cyrus V Das dan En Steven Thiruneelakandan, kedua-duanya peguambela dan peguamcara, mengadakan satu pemerhati arahan untuk Kerajaan India. Apabila prosiding bermula, timbalan pendakwa raya telah memaklumkan kepada mahkamah bahawa pendakwa raya telah memberi kuasa kepada Dato’ Dr Cyrus V Das untuk hadir bagi pihaknya.
Bahasa Holdings
Diputuskan:
(1) Proses seorang peguambela dan peguamcara sebagai pemerhati arahan adalah satu bentuk perwakilan sah untuk seseorang. Jika seseorang itu telahpun diwakili oleh peguam untuk mengendalikan prosiding, adalah tidak sesuai baginya untuk diwakili juga oleh seorang peguam lain dalam bentuk yang berbeza. Di dalam kes siasatan ekstradisi, pendakwa raya bertindak atas arahan negara yang memohon ekstradisi tersebut. Setakat perkara itu, Kerajaan India telah diwakilkan di dalam prosiding ini. Oleh itu, mahkamah menolak permohonan untuk membenarkan kedua-dua peguam tersebut mengadakan pemerhati arahan untuk Kerajaan India (lihat ms 232I–233B).
(2) Kesahihan pemberian kuasa yang diberikan oleh pendakwa raya bergantung kepada tafsiran s 41(1) Akta tersebut. Perkataan-perkataan ‘… or legal officer …’ adalah diikuti dengan perkataan-perkataan ‘… in the employment of the government of any country …’. Persoalan untuk ditentukan adalah sama ada kelayakan ini terbatas dalam penguatkuasaannya kepada hanya seorang ‘legal officer’ atau termasuk juga kedua-dua kategori individu sebelumnya. Ketiadaan tanda koma sebelum perkataan-perkataan ‘… or legal officer …’ di dalam subseksyen tersebut bermakna bahawa kelayakan yang dibuat harus ditafsirkan sebagai penghubung. Hakikat pengambilan bekerja seorang peguambela dan peguamcara bagi tujuan menghadirkan diri dalam prosiding ini tidak akan menjadikan beliau seorang yang diambil bekerja oleh kerajaan mana-mana negara bagi tujuan s 41(1) Akta tersebut kerana bahasanya merujuk kepada seseorang yang telahpun diambil bekerja. Dalam keadaan demikian, ketiga-tiga kategori individu yang disebut satu persatu dalam s 41(1) Akta tersebut merujuk kepada mereka yang ‘… in the employment of the government of any country …’. Sewajarnya, mahkamah enggan untuk menerima pemberian kuasa pendakwa raya tersebut (lihat ms 233E–F, 234E–F); Prithipal Singh v Datuk Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Intervener) [1993] 3 MLJ 336 diikuti.
(3) Satu perintah pembebasan boleh dibuat pada mana-mana peringkat prosiding jika pertuduhan didapati tidak berasas. Oleh itu, satu persoalan tentang bidang kuasa atau apa-apa perkara yang mengakibatkan satu siasatan ekstradisi tidak berasas boleh ditimbulkan sebagai satu persoalan awal. Oleh demikian, adalah wajar untuk menimbangkan perkara-perkara yang memberikan bidang kuasa kepada mahkamah sesyen untuk mengendalikan satu siasatan ekstradisi bagi tujuan menentukan sama ada bantahan yang dipertimbangkan adalah mengikut aturan (lihat ms 235D–E).
(4) Bersesuaian dengan prinsip yang dinyatakan dengan jelas dalam In re Ismail [1968] 3 WLR 495, ia adalah hanya apabila majistret mengambil perhatian tentang satu kesalahan dengan mengeluarkan satu saman atau waran tangkap maka boleh ia dikatakan bahawa pendakwaan seseorang telah dimulakan supaya dapat disifatkan beliau sebagai seorang ‘tertuduh’. Oleh itu, bahan yang mencukupi harus dikemukakan di hadapan mahkamah di permulaan siasatan ekstradisi tersebut untuk menunjukkan, antara lain, bahawa penjenayah pelarian tersebut adalah seorang ‘tertuduh’ dalam maksud Akta tersebut. Sekiranya beliau bukan, maka tidak boleh ada prosiding ekstradisi terhadap beliau (lihat ms 237A–D).]
(5) Pihak pendakwa tidak sepatutnya mengendalikan satu siasatan ekstradisi berhubung satu kesalahan yang dilakukan di negara lain jika ia gagal untuk mengenalpasti undang-undang tempatan yang sama. Dalam kes ini, pengenalpastian kesalahan rasuah yang dikatakan telah dilakukan oleh responden di India sebagaimana yang dinyatakan dalam rekuisisi tersebut boleh diragui. Adalah tidak jelas sama ada ia merujuk kepada satu konspirasi untuk melakukan kesalahan di bawah Akta Pencegahan Rasuah 1947 atau satu kesalahan substantif di bawah Akta tersebut. Responden tidak boleh dipertanggungjawabkan kerana kesalahan substantif tersebut kerana beliau bukan seorang kakitangan awam. Tidak terdapat di dalam rekod kesalahan-kesalahan yang sama seperti di Malaysia. Ini sememangnya perlu bagi tujuan memastikan s 6 Akta tersebut dipatuhi. Tanpa satu pengenalpastian kesalahan-kesalahan yang sama seperti di Malaysia di permulaan siasatan, ia tidak boleh diteruskan kerana ia harus dikendalikan bersesuaian dengan undang-undang di sini (lihat ms 239B–D).
(6) Mahkamah juga mesti diberikan sesalinan kertas pertuduhan. Hanya dengan satu kertas pertuduhan mahkamah dapat memutuskan apa keterangan yang relevan dan boleh diterima dan sama ada keterangan yang dikemukakan adalah mencukupi. Ia juga akan memastikan pengenalpastian undang-undang Malaysia yang sama untuk memberikan satu penentuan tentang pematuhan perautan jenayah yang sama tersebut. Adalah penting juga satu kertas pertuduhan yang bersesuaian dengan undang-undang negara yang memohon diberikan dan jika itu tidak boleh dilakukan, untuk apa sebab sekalipun, sekurang-kurangnya satu pernyataan butiran kesalahan diberikan. Di mana terdapat satu keperluan statutori untuk satu kertas pertuduhan dibentuk dalam cara tertentu maka ia mesti dikemukakan seperti yang dikehendaki. Di mana tidak dinyatakan sedemikian maka tiada bantahan terhadap kertas pertuduhan boleh dikemukakan dalam cara yang tidak formal kecuali ia mengandungi butiran-butiran yang tertentu (lihat ms 241F–G, 242F–G).]
Notes
For cases on applicable laws on extradition, see 5 Mallal’s Digest (4th Ed, 2001 Reissue) paras 1576–1579.
For cases on basis for discharge, see 5 Mallal’s Digest (4th Ed, 2001 Reissue) para 1595.
Cases referred to
Ata Muhammad v Shankar Das AIR 1924 Lah 279 (refd)
Baldev Singh v State of Himachal Pradesh (1987) 2 SCC 510 (refd)
Carbines v Pittock (1908) VLK 292 (refd)
Charron v Government of the United States of America & Anor [2000] 1 WLR 1793 (refd)
Che Ani bin Itam v PP [1984] 1 MLJ 113 (refd)
Cheng Keng Hoong v Government of the Federation of Malaya [1967] 2 MLJ 1 (refd)
Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 (refd)
Commissioner of Police v Tanos (1958) 98 CLR 383 (refd)
DYTM Tengku Idris Shah ibni Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn Bhd & Anor [2002] 2 MLJ 11 (refd)
German Federal Republic v Sotoriadis [1974] 2 AC 1 (refd)
Government of Canada & Anor v Aronson [1989] 2 All ER 1025 (refd)
Ismail, In Re [1968] 3 WLR 495 (refd)
Mohinder Singh Gill v The Chief Election Commissioner AIR 1978 SC 851 (refd)
Munnich v Godstone Rural District Council [1966] 1 WLR 427 (refd)
Naghdi, Re [1900] 1 WLR 317 (refd)
Norman and Moran v National Dock Labour Board [1957] 1 Lloyd’s Rep 455 (refd)
Ong Ah Chuan v PP [1981] 1 MLJ 64 (refd)
Ozie Powell v State of Alabama 287 US 45 (refd)
Pepper v Hart [1993] 1 All ER 42 (refd)
Prithipal Singh v Datuk Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Intervener) [1993] 3 MLJ 336 (folld)
PP v Karnal Singh [1970] 1 MLJ 49 (refd)
R v Bow Street Metropolitan Magistrate & Ors; Ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827 (refd)
R v Governor of Pentonville Prison, ex p Osman [1990] 1 WLR 277 (refd)
R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 (refd)
Ridge v Baldwin [1964] AC 40 (refd)
Russell v Duke [1949] 1 All ER 109 (refd)
Santosh Kumar Sundarasca v Orissa State Civil Supplies Corp 1992 Cr LJ 2230 (refd)
State of Orissa v Dr (Miss) Binapani Dei AIR 1067 SC 1269 (refd)
Triambak Pati Tripathi v BHS & I Education, Allahabad AIR 1973 All 1 (refd)
Union of India v Tulsiram Patel AIR 1985 SC 1416
Legislation referred to
Anti Corruption Act 1997 s 11(a)
Criminal Procedure Code ss 141(iii), 379
Criminal Procedure Code [India] ss 173,190, 204, 240
Emergency (Essential Powers) Ordinance No 22 of 1970 s 2(1)
Extradition Act 1992 ss 2, 3, 4, 5, 6(1), (2)(b), 18, 19, 37(1), 41(1), 44
Federal Constitution art 5(1)
Interpretation Acts 1948 and 1967 s 17A
Penal Code ss 40(2), (3), 165, 120B(1), (2), 420
Penal Code [India] ss 120-B(1), 420
Prevention of Corruption Act 1947 ss 5(1)(d), (2)
Lawyers
Kamarul Hisham bin Kamaruddin (Deputy Public Prosecutor) for the applicant.
Muhammad Shafee Abdullah (Rabinder Singh with him) (Shafee & Co) for the respondent.
Cyrus V Das (Steven Thiruneelakandan with him (Shook Lin & Bok) as amicus curiae.
Judgement - Augustine Paul J
Augustine Paul J : At the request of the Government of India the Minister of Home Affairs, Malaysia issued a special direction under the Extradition Act 1992 (‘the Act’) for the extradition of one Ottavio Quattrocchi (‘the respondent’) who was accused of committing the following offences in India:
Criminal conspiracy (s 120-B); read with s 420 (cheating and dishonestly inducing delivery of property) of Indian Penal Code 1860 and s 5(2) read with s 5(1)(d) (criminal misconduct) of the Prevention of Corruption Act 1947.
The respondent is an Italian national and was resident in India at all material times. He was duly arrested and produced before the sessions court to inquire into the extradition matter on 20 December 2000. At the commencement of the inquiry, learned counsel for the respondent raised a preliminary objection to the further conduct of the inquiry on the ground that no charges had been served on the respondent. The prosecution contended that the absence of charges was not fatal. At that point of time, the proceeding before the sessions court was stayed by the High Court following an application made by the respondent. When the High Court dismissed the said application, the matter was remitted back to the sessions court. The learned sessions court judge, in delivering his judgment on the preliminary objection raised, took the view that the court should be in a position at the beginning to determine whether the offences are extradition offences under s 6 of the Act. As he said in his judgment:
While on this point I do not agree with the contention of the prosecution that the court postpones the finding of the issue of ‘double criminality’ until after hearing all the evidence tendered. If this approach is taken the court may very well end up in embarking on an exercise in futility if after hearing all the evidence the court discovers that the offences do not fall under the principle of ‘double criminality’ at the outset. It is my opinion therefore the court should at the beginning of the proceedings determine whether the offences committed can be regarded as extradition offences under s 6 of the Act.
He further held that without a proper description of the offences the respondent will be prejudiced in conducting his defence. He referred to s 19 of the Act and said:
This section gives the subject the opportunity of adducing evidence to show he did not do the acts specified in the offences. Before he can lead such evidence in my opinion he should know the very acts he is supposed to have committed. He can only do this if the offences have been sufficiently particularized.
He also said that without a proper description of the offences it would be impossible for the court to decide whether evidence that is led is admissible or not. He then concluded by saying that it is necessary for a proper description of the offences to have been made available to the court. He added that the tendering of charges would have been preferable. In the circumstances he directed that the respondent be discharged. The prosecution promptly applied to this court for a review of the order made by the sessions court pursuant to s 37 of the Act.
Before I proceed any further it is necessary for me to deal with two applications that were made before me.
Application to hold a watching brief
At the commencement of the hearing before me the learned deputy public prosecutor applied for leave to allow Dato’ Dr Cyrus V Das and Mr Steven Thiruneelakandan, both advocates and solicitors, to hold a watching brief for the Government of India. In my opinion, the process of an advocate and solicitor holding a watching brief is a form of legal representation for a person. If that person is already represented by counsel to conduct the proceeding it is inappropriate for him to be further represented by another counsel in a different form. Ordinarily, the public prosecutor cannot be said to represent the complainant in a criminal prosecution. He does not take instructions from the complainant but acts for the state and exercises his own discretion as the guardian of public interest. However, in the case of an extradition inquiry he acts on the instructions of the requesting country to some extent. This is evidenced by s 37(1) of the Act where, in applying for a review when a fugitive criminal has been discharged, he acts ‘… at the request of the country seeking the return …’. To that extent the Government of India is already represented in the proceedings. Accordingly, I dismissed the application. However, I invited counsel to be present in court to render whatever assistance they could which they did graciously. They were not hindered from participation at any stage of the proceeding. I appreciate and acknowledge the immense contribution made by them.
Authorization by the public prosecutor under s 41 of the Act
When the proceeding had already commenced the learned deputy public prosecutor informed me that the public prosecutor had authorized Dato’ Dr Cyrus V Das to appear on his behalf under s 41(1) of the Act which reads as follows:
Any barrister, advocate and solicitor or legal officer in the employment of the government of any country may with the written authorization of the public prosecutor appear on his behalf in any proceedings under this Act.
The validity of the authorization given by the public prosecutor is dependent on the interpretation to be accorded to this subsection. The words ‘… or legal officer …’ are followed by the words ‘… in the employment of the government of any country …’. The question for determination is whether this qualification is confined in its operation to just a ‘legal officer’ or also includes the preceding two categories of persons. The absence of a comma before the words ‘… or legal officer …’ in the subsection means that the qualification made must be construed conjunctively as applying to all the three categories of persons mentioned. In support I refer to Prithipal Singh v Datuk Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Intervener) [1993] 3 MLJ 336 where Eusoff Chin SCJ (as he then was) said at p 341:
We find that Parliament had deliberately inserted a comma after the words ‘Federal Territory’ and the significance cannot be ignored because without the comma, the words ‘Secretary General’ and ‘public officer’ must be read conjunctively, but with the comma, these words must be read disjunctively.
I derive further support for this view from s 379 of the Criminal Procedure Code (‘CPC’) which refers to a similar authorization being given to a local advocate and solicitor. Thus, s 41 of the Act must have been specially enacted for a different purpose as Parliament is presumed to know the existing law. This intention can be gathered from the speech given in Parliament in connection with the Extradition Bill as reported in Penyata Rasmi Parlimen, (Jilid 1 Bil 75), Rabu, 30 Oktober 1991 at p 74:
Tuan Yang di-Pertua, satu lagi peruntukan baru yang sekarang ini tidak terdapat dalam undang-undang ekstradisi yang sedia ada ialah peruntukan yang dicadangkan dalam Fasal 41 Rang Undang-undang ini. Fasal ini membenarkan seseorang pegawai undang-undang ataupun peguam dari sebuah negara asing menguruskan sesuatu kes ekstradisi atau membantu Pendakwa Raya di Mahkamah di dalam kes ekstradisi. Peruntukan ini dicadangkan kerana adalah difikirkan bahawa di dalam kes-kes yang kompleks, yang mungkin memakan masa yang panjang untuk diselesaikan, adalah lebih baik jika pegawai undang-undang atau peguam asing yang telah menguruskan kes itu dari mulanya dan lebih arif tentang kerumitannya, membuktikan kes itu di Mahkamah. Walau bagaimanapun, pegawai atau peguam sedemikian hanya boleh berbuat demikian dengan kebenaran bertulis daripada Pendakwa Raya. Bagi maksud-maksud kes yang begini, Fasal 41 ini memperuntukkan bahawa undang-undang berkenaan dengan perihal kemasukan pegawai dan peguam itu serta hak mereka untuk hadir di Mahkamah tidaklah terpakai bagi pegawai undang-undang atau peguam asing itu.
Reference to parliamentary material as an aid to the construction of legislation as approved in Pepper v Hart [1993] 1 All ER 42 was followed by cases such as Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 and DYTM Tengku Idris Shah ibni Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn Bhd & Anor [2002] 2 MLJ 11. This purposive approach to the construction of statutes is reflected in s 17A of the Interpretation Acts 1948 and 1967. The purpose of Parliament is therefore clear. It is also my view that the very fact of employment of an advocate and solicitor for the purpose of appearing in this proceeding will not render him to be a person in the employment of the government of any country for the purpose of the subsection as its language refers to a person who is already in employment. In the circumstances I hold that the three categories of persons enumerated in the subsection refer to persons ‘… in the employment of the government of any country …’. Accordingly, I declined to accept the authorization of the public prosecutor. This is an order which I made with considerable regret as Dato’ Dr Cyrus V Das is one of the foremost advocates and solicitors in the country and his advocacy skills, preparation of a case and conduct in court in the highest traditions of the Bar are too well-known. Despite my ruling, he and his colleague were given full liberty to address the court as amicus curiae.
The right to raise a preliminary objection
In his submission before me, the learned deputy public prosecutor contended that the learned sessions court judge should not have entertained the objection as an order of discharge can only be made at the conclusion of the inquiry. He said that this procedure is not authorized by the Act unlike in ordinary criminal trials where it is permitted by the CPC.
A court can hear a matter only if it has jurisdiction to do so. Consent or waiver cannot confer jurisdiction or power on the court to hear and determine an issue or a cause of action which is non-existent (see Cheng Keng Hoong v Government of the Federation of Malaya [1967] 2 MLJ 1). A trial conducted without jurisdiction is a nullity (see Public Prosecutor v Karnal Singh [1970] 1 MLJ 49). It is therefore pointless for the court to proceed with a hearing if at the end it is found to be a nullity for want of jurisdiction. If a jurisdictional objection is apparent at the commencement of the inquiry I do not see any reason why it cannot be raised at that stage as the inquiry cannot proceed further without a resolution of the issue. In this regard, I also refer to the procedure governing the conduct of an extradition inquiry. It is said that an extradition inquiry is conducted in like manner as a committal proceeding the procedure for which is governed (now repealed) by the CPC. Section 44 of the Act provides for the application of the provisions of the CPC in relation to matters not covered by the Act. Section 141(iii) of the CPC (now repealed), a provision dealing with committal proceedings, provides as follows:
Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by such Magistrate he considers the charge to be groundless.
An order of discharge may therefore be made at any stage of the proceedings if the charge is found to be groundless. It is therefore my view that an issue as to jurisdiction or any other matter that will render an extradition inquiry groundless can be raised as a preliminary issue. Thus it is appropriate to consider the matters that confer jurisdiction on a sessions court to conduct an extradition inquiry in order to ascertain whether the objection that was entertained was regular. This is governed by s 18 of the Act which reads as follows:
A sessions court shall have the powers and jurisdiction to inquire into an extradition matter brought before it in accordance with the procedure specified under this Act.
The sessions court has been conferred with jurisdiction to inquire into an extradition matter which has been brought before it in accordance with the procedure specified under the Act. A sessions court may therefore satisfy itself at the commencement of the inquiry that it relates to an extradition matter and that it was brought before it in accordance with the procedure specified under the Act. With regard to the latter, there must be compliance with either s 2 or s 3 or s 4 of the Act, as the case may be, and other related matters. Compliance with either one of these provisions will give the sessions court jurisdiction to inquire into the extradition matter. An extradition matter is one that relates to a fugitive criminal. Section 5 of the Act defines a ‘fugitive criminal’ as meaning:
… any person who is accused of or convicted of an extradition offence committed within the jurisdiction of another country and is, or is suspected to be, in some part of Malaysia …
A ‘fugitive criminal’ is therefore a person who is accused of or convicted of an extradition offence in another country and is in Malaysia. This involves two major elements. They are that:
(i) the fugitive criminal must be a person who has been accused or convicted; and
(ii) it must be in respect of an extradition offence.
I shall now consider them.
(a) The fugitive criminal must have been accused or convicted
The fact of conviction is comprehensible while the word ‘accused’ requires some deliberation. I interpolate to add that this deliberation is confined to the requirement of the Act only and is not of general application. The clearest indication of a person being an ‘accused’ person is when he is charged in court as it is a formal accusation for a crime. However, such certainty of definition is not free from difficulties in its application to extradition cases. A person may have absconded from a country before being charged and he may be required for that very purpose. The requirement of law may also be such that he can be charged only in his presence. A restriction of the meaning of the word ‘accused’ to a person who has been charged in court will therefore defeat the object of the process of extradition. Its construction must therefore be flexible so as to take into account the laws of other jurisdictions and the circumstances of each case. However, any flexibility of definition must at least refer to a situation where there is clear indication of a prosecution as a person cannot be extradited on mere suspicion or for purposes of interrogation as his return would be for the purpose of a trial. This approach accords with In Re Ismail [1968] 3 WLR 495 where it was held that a person is an accused person when the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. This will require an intense focus on the particular facts of each case. Thus, as Lord Steyn said at p 499:
It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of ‘accused’ person. It is also common ground that it is not enough that he is in the traditional phrase ‘wanted by the police to help them with their inquiries’.
What therefore requires consideration is the point of time at which it can be said that a prosecution has commenced if it is not confined to the fact of being charged. I shall commence with the position from the point of view of Indian law where a charge is framed by the court only in the presence of the accused as provided by s 240 of their Criminal Procedure Code. Prior to this, the necessary documents are sent to the magistrate empowered to take cognizance of the offence under s 173. In the case of a matter initiated by a police report, the magistrate may take cognizance of the offence based on the documents submitted to him under s 190. He will then issue a summons or a warrant of arrest under s 204. As Sarkar on Criminal Procedure (7th Ed) says at p 660:
This section relates to commencement of a criminal proceeding.
And further down on the same page,
On issue of process a person complained against becomes an ‘accused’ (Gulab 38 C880).
Thus, in accordance with the principle enunciated in In Re Ismail [1968] 3 WLR 495, it is only when the magistrate takes cognizance of an offence by the issue of a summons or warrant of arrest can it be said that the prosecution of a person has commenced in order to describe him as an ‘accused’ person. This is logical as the issue of process is a clear indication of a prosecution. Where evidence of such cognizance is not available reliance must be placed on other documents to determine whether a person is an ‘accused’ person. The absence of any evidence will only amount to a suspicion that a person has committed the offence which is insufficient to place him in the category of an ‘accused’ person. In my opinion, therefore, sufficient material must be placed before the court at the commencement of the extradition inquiry to show, inter alia, that the fugitive criminal is an ‘accused’ person within the meaning of the Act. If he is not, there can be no extradition proceeding against him. It would thus be a folly to go through the process of an extradition inquiry only to realize at the end of it that the person whose extradition is sought is only suspected to have committed an extradition offence and is not an ‘accused’ person.
In order to show that the respondent is a person ‘accused’ of an offence for the purpose of the Act, the prosecution referred to a warrant of arrest issued against the respondent by the Special Judge, Delhi. As I said earlier, a warrant is sufficient to show that criminal proceedings have been commenced thereby indicating that the person concerned is an ‘accused’ person. The warrant of arrest states that the respondent has been charged with the offence of:
120-B IPC r/w 420 IPC and s 5(2) r/w 5(1)(d) of PC Act 1947 and substantive offences thereof.
The reference in the warrant to the substantive offence against the respondent under the Prevention of Corruption Act 1947 is clearly unsustainable as the said Act, being applicable only to public servants, is inapplicable to the respondent as he is not a public servant. The respondent contended that this renders the warrant defective. In dealing with errors in taking cognizance of an offence, Pasayat J said in Santosh Kumar Sundarasca v Orissa State Civil Supplies Corp 1992 Cr LJ 2230:
At the stage of cognizance, the magistrate is required to see if a prima facie offence is made out. He is not required to make an elaborate analysis of the materials, and/or to see possibility of conviction or acquittal. The law on the point has been succinctly stated in AIR 1976 S C 1947: (1976 Cr LJ 1933) Sont Nagawwa v Veeranna Shivalingappa Konjalji. Further, the scope for interference with an order taking cognizance, when the prosecution is at the initial stage, is very limited, and has to be applied rarely with circumspection only when the uncontroverted allegations do not establish the offence.
In my opinion, the reference to the substantive offences in the warrant of arrest can be ignored. It has been held that no objection can be taken if a tribunal specifies one or more heads of action and then proceeds only on one head and this is so even if one of the heads not pursued is unjustified (see Norman and Moran v National Dock Labour Board [1957] 1 Lloyd’s Rep 455). The defect in the warrant of arrest therefore does not infect the whole of it. Thus, what is significant is the reference in the warrant to the two charges in respect of which extradition is sought. They are sufficient to describe the respondent as an ‘accused’ person for the purpose of the Act. I must emphasize that the requirement for a person to be an ‘accused’ person within the meaning of the Act and the need for a charge, which I will consider in a later part of the judgment, are separate and distinct concepts. While a person must be an ‘accused’ person before he can be termed a fugitive criminal, the charge becomes relevant only at the stage of the extradition inquiry. As I will explain later, the charge is also a matter that goes towards jurisdiction.
(b) The accusation or conviction must be in respect of an extradition offence
Section 5 of the Act defines an ‘extradition offence’ as meaning:
… an offence described in sub-s 6(2) or 6(3) …
Section 6 of the Act reads as follows:
(1) A fugitive criminal shall only be returned for an extradition offence.
(2) For the purposes of this Act, an extradition offence is an offence, however described, including fiscal offences —
(a) which is punishable, under the laws of a country referred to under para 1(2)(a) or 1(2)(b), with imprisonment for not less than one year or with death; and
(b) which, if committed within the jurisdiction of Malaysia, is punishable under the laws of Malaysia with imprisonment for not less than one year or with death:
Provided that, in the case of an extraterritorial offence, it is so punishable under the laws of Malaysia if it took place in corresponding circumstances outside Malaysia.
(3) An offence shall also be an extradition offence if it consists of an attempt or a conspiracy to commit, or an abetment of the commission of, any offence described in sub-s (2).
The test for criminality is the date of the commission of the alleged offence which is the subject of the extradition request and not the date of receipt of the extradition request (see R v Bow Street Metropolitan Magistrate & Ors; Ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827). Section 6 of the Act makes it clear that in order for an offence to qualify as an ‘extradition offence’ it must not only be an offence punishable under the laws of the requesting country with imprisonment for not less than one year or with death, it must, at the same time, be also an offence in Malaysia punishable with imprisonment for not less than one year or with death. This is a reference to the ‘double criminality rule’ as explained in Government of Canada & Anor v Aronson [1989] 2 All ER 1025. As Oppenheim says in his book entitled International Law (8th Ed) Vol 1 at p 701:
… no person is to be extradited whose deed is not a crime according to the criminal law of the State which is asked to extradite, as well as of the State which demands extradition.
As provided by s 6(1) of the Act itself a fugitive criminal shall only be returned for an extradition offence. In my opinion, therefore, the prosecution should not undertake an extradition inquiry in respect of an offence committed in another country if it is unable to identify the corresponding local law. It can thus be appreciated with ease the folly of conducting an extradition inquiry only to realize at the end that it is not an extradition offence.
In this case, the identification of the corruption offence alleged to have been committed by the respondent in India as stated in the requisition is open to doubt. It is not clear whether it refers to a conspiracy to commit the offence under the Prevention of Corruption Act 1947 or a substantive offence under the said Act. The respondent cannot be liable for the substantive offence as he is not a public servant. The prosecution upon being asked by me to clarify the position confirmed that the requisition refers to:
(1) Section 120-B read with s 420 of the Indian Penal Code; and
(2) Section 120-B read with ss 5(2) and 5(1)(d) of the Prevention Corruption Act 1947.
The next matter of concern is that there is nothing on record identifying the corresponding Malaysian offences. This is absolutely necessary in order to ensure compliance with s 6 of the Act. Without an identification of the corresponding Malaysian offences at the commencement of the inquiry it just cannot proceed as it has to be conducted in accordance with our laws. Upon a query from me, the prosecution said that there are corresponding offences in Malaysia in respect of the two Indian offences. The first offence has a corresponding offence in s 120B(1) read with s 420 of the Malaysian Penal Code. With regard to the second offence, the prosecution submitted that its corresponding Malaysian offence can be found in either s 165 of the Penal Code or s 11(a) of the Anti Corruption Act 1997 or s 2(1) of the Emergency (Essential Powers) Ordinance No 22 of 1970. I shall hereafter refer to the last two provisions of law as ‘the corruption charges.’ I shall consider in the course of the judgment whether the corruption charges constitute offences under Malaysian law so as to satisfy the requirements of s 6 of the Act.
The need for a charge
The critical matter for deliberation is the objection of the respondent that he has not been furnished with the charges so as to enable him to conduct his defence fairly and effectively. It was contended by the prosecution that it is not possible to tender the Indian charges as they can only be framed in the presence of the respondent as provided by s 240 of the Indian Criminal Procedure Code and that service of the requisition documents on the respondent was sufficient to provide the required particulars. It was further argued that the Act does not require the formulation of a charge. The primary question that requires to be answered is whether there is a right to a charge under the Act even if it does not authorize it. The answer becomes apparent if the purpose of a charge is understood. A person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him (see Union of India v Tulsiram Patel AIR 1985 SC 1416). This is because one of the fundamental principles of natural justice is that a party in a legal proceeding must have a reasonable opportunity of presenting his case (see Russell v Duke [1949] 1 All ER 109). Thus he must be given notice of the case or the charges which he has to meet (see Triambak Pati Tripathi v BHS & I Education, Allahabad AIR 1973 All 1). In Ozie Powell v State of Alabama 287 US 45 it was held that notice is one of the preliminary steps essential to the passing of an enforceable judgment. Disclosure of the charge must therefore be made in reasonable time to allow the person affected to prepare his defence (see R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299). Failure to provide a charge will be equivalent to a denial of the opportunity to be heard. As Geoffrey Flick says in his book entitled Natural Justice (2nd Ed) at p 55:
Professor de Smith correctly observed that in a large majority of the reported cases where a breach of the audi alteram partem rule had been alleged, no notice whatsoever of the action to be taken had been given to the person claiming to be aggrieved, and that failure to give prior notice had been the equivalent of a denial of the opportunity to be heard: de Smith p 196.
Any order or decision in matters involving civil consequences, which includes civil liberties (see Mohinder Singh Gill v The Chief Election Commissioner AIR 1978 SC 851), has to be made consistently with rules of natural justice (see State of Orissa v Dr (Miss) Binapani Dei AIR 1067 SC 1269). This must be so unless the statute specifically rules out the application of natural justice (see Baldev Singh v State of Himachal Pradesh [1987] 2 SCC 510). As Dixon and Webb JJ said in Commissioner of Police v Tanos (1958) 98 CLR 383 at p 396:
But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment.
This view is consistent with art 5(1) of the Federal Constitution which provides that no person shall be deprived of his life or personal liberty save in accordance with law. The word ‘law’ in art 5(1) refers to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation at the commencement of the Constitution (see Che Ani bin Itam v Public Prosecutor [1984] 1 MLJ 113; Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64). The rules of natural justice have been part of the common law of England for centuries and are therefore guaranteed by the Federal Constitution. This means that the deprivation of a person’s life or personal liberty in accordance with the rules of natural justice is a constitutional right unless otherwise provided for by statute. An order of extradition to be made against a person is without doubt a matter of personal liberty and falls squarely within the ambit of this right. Thus the absence of any provision in the Act relating to a charge does not mean that there is no right to it. On the contrary, such absence confirms the right. In any event, the necessity for a charge can be found in s 141(iii) of the CPC, to which I have referred earlier, which recognizes the existence of a charge. In German Federal Republic v Sotoriadis [1974] 2 AC 1, Lord Diplock in dealing with the procedure to be followed in an extradition hearing said, inter alia, that the arrested person must be informed of the charges (at p 29). The charge will articulate the particulars of the offence and the relevant law infringed in a legal form. It is the recognized form of furnishing particulars of an offence in a criminal proceeding. As the inquiry will proceed as if the offences had been committed in Malaysia the charge must be in Malaysian law. This will require an identification of the corresponding Malaysian offences. As Lloyd LJ said in R v Governor of Pentonville Prison, ex p Osman [1990] 1 WLR 277 at p 302:
The practice in extradition cases has been that the English ‘offences’ are stated in the authority to proceed in very general terms. The magistrate is not, of course, concerned with whether the offence is made out in foreign law. He is concerned solely with whether the evidence would support committal for trial in England, if the conduct complained of had taken place in England: see In re Nielson [1984] AC 606. So the magistrate is furnished at the commencement of the hearing with a schedule of charges based on the alleged conduct and formulated in accordance with English law.
Thus, the court must also be furnished with a copy of the charge. It is only with a charge will the court be in a position to decide what evidence is relevant and admissible and whether the evidence adduced is sufficient. It will also ensure identification of the relevant corresponding Malaysian law so as to facilitate a determination of compliance with the double criminality rule. It is also essential that a charge in accordance with the law of the requesting country be furnished and if it cannot be done so, for whatever reason, at least a statement of the particulars of the offence must be supplied. With regard to the significance of the time when the charge must be served, Jones on Extradition and Mutual Assistance (2nd Ed) in referring to Re Naghdi [1900] 1 WLR 317 says at p 335:
The representative of the requesting state must formulate the charges by the committal hearing and provide the defence with a copy.
It was held in German Federal Republic v Sotoriadis, supra, that an extradition hearing cannot start until the magistrate has been informed what the crime is in respect of which the requisition has been made and which will be the subject matter of the hearing. This is for the obvious reason that the failure to do so is a breach of a fundamental rule of natural justice and thereby deprives the court of jurisdiction to proceed. Thus, the charge must be furnished to the court and the fugitive criminal at least before the commencement of the inquiry so that it will serve its purpose. It has been held that a judicial decision reached where there is no notice or where there is improper notice in material respects is without jurisdiction and liable to be quashed (see Ata Muhammad v Shankar Das AIR 1924 Lah 279). In Ridge v Baldwin [1964] AC 40, it was held that a decision contrary to natural justice was a nullity, being vitiated by want of jurisdiction. I fail to understand why charges in the Malaysian context were not served, even at this stage, despite the fact that the absence of charges has been a bone of contention between the parties for the last two years. It could have been supplemented with particulars of the offence in Indian law. I do not see any difficulty in complying with this requirement even in the case of a jurisdiction where a charge cannot be framed at the time of the request for extradition. The Malaysian charge is, after all, only for the purpose of conducting the inquiry and not for the purpose of being the foundation for prosecution in the requesting country.
The absence of charges prompted the prosecution to contend that the required particulars can be found in the requisition documents. This raises the question of whether the absence of a charge is fatal. A charge is a formal accusation for a crime. Its fundamental requirements are, as stated in Penumbra of Natural Justice (2nd Ed) by TG Choudhury at p 136:
Notice must be fair, adequate and sufficient in order to enable a person charged to prepare his defence. It must bring home to him the nature of the charge, and contain sufficient particulars to enable him to appreciate the case he will have to meet. A mere vague information that important business is to be discussed or that charges are to be brought and an invitation to discuss an incident are insufficient.
Where there is a statutory requirement for a charge to be formulated in a certain manner then it must be presented as required. Where there is no such stipulation, there can be no objection to a charge being presented in an informal manner provided that it contains the necessary particulars. Thus, in Charron v Government of the United States of America & Anor [2000] 1 WLR 1793, it was held that while the service of a charge is good practice what is essential is that the person whose extradition is requested should know the details of the offences in respect of which the extradition is sought. It has been held that if the notice is contained in separate pieces of paper which, as a whole, convey all that is required it is not deficient (see Munnich v Godstone Rural District Council [1966] 1 WLR 427). It will not serve its purpose if a party is left guessing as to what the charge actually is (see Carbines v Pittock (1908) VLK 292). It would therefore suffice if, instead of a charge, a brief summary of the facts is provided from which the particulars of the offence and the relevant law can be discerned with ease. No such summary was furnished in this case. It is unreasonable to expect the required particulars to be identified from pages and pages of documents that have been supplied in this case. However, in order to address the submission of the prosecution a perusal of the documents tendered is required in order to determine and identify the particulars of the offences. This process may appear to be a consideration of the merits of the case but it is necessary to do so in order to identify the particulars of the offences so as to rule whether they constitute sufficient notice of the charges.
I will first deal with the offence of cheating. The thrust of this offence is the receipt of money by the respondent following the appointment of AE Services Limited of the United Kingdom at his behest as the consultants of Bofors since the appointment of agents was prohibited. However, it must be observed that para 13 of the ‘charge sheet’ of the Indian authorities refers to the prohibition as
the present Government did not approve of the appointment of Indian agent acting for foreign suppliers.
The prohibition is therefore only of the appointment of Indian agents. As AE Services Limited is United Kingdom-based their appointment as consultants to Bofors does not infringe the prohibition. In any event, cl 33.1 of the agreement entered into between the Government of India and Bofors some two weeks after the imposition of the prohibition has the effect of negating it. It reads as follows:
All the provisions of this Contract including the Annexures, Enclosures and Clauses shall be harmoniously construed. The Parties have executed this Contract on the basis that the provisions in the Clauses and Annexures both inclusive represent the entire Contract. This Contract sets forth the entire undertaking of the Parties in respect of transactions contemplated hereby and supersedes all prior agreements, arrangements, representations or understanding relating to the subject matter hereof.
If the prohibition has been superseded by the agreement it ceases to be one. It cannot therefore be the foundation for the offence of cheating. The two issues that I have mentioned, having been addressed by learned counsel for the respondent, did not find their way into the reply by the prosecution. When I invited the prosecution and the two counsel to submit on them, there was no positive response worthy of consideration. These facts cannot therefore be termed or treated as particulars for the offence of cheating in lieu of a charge thereof. In the circumstances, it is not possible to discern the particulars for the offence of cheating from the documents made available.
With regard to the corruption charges and s 165 of our Penal Code, identified by the prosecution as corresponding Malaysian offences to the Indian corruption charge, there is sufficient evidence on record to show that the respondent received large sums of money from AE Services Limited. That, unfortunately, is the beginning of a major and substantial obstacle. The prosecution has identified three possible provisions of Malaysian law which may correspond to the Indian corruption charge. The elements for each of the three charges are different. Clearly, it is not possible for the respondent to identify with precision the particulars of the offence that he has to answer as he is confronted with three possible offences. That is prejudicial to the respondent. In any event, before attempting to consider their particulars, it is perhaps more pertinent to first determine whether a conspiracy to commit them is an offence under Malaysian law. The offence of conspiracy is governed by our s 120B of the Penal Code which reads as follows:
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for a term of two years or upwards shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment for a term not exceeding six months, or with fine, or with both.
The offences are punishable with imprisonment for a term of more than two years as stipulated in s 120B(1). Section 120B(2) is irrelevant as it provides for imprisonment for offences for a term not exceeding six months only and will thereby not come within s 6(2)(b) of the Act. The next matter for consideration is whether the offences are capable of coming within s 120B. This is governed by the word ‘offence’ in s 120B(1) which is defined in s 40 of our Penal Code as follows:
(1) Except in the Chapter and sections mentioned in sub-ss (2) and (3), the word ‘offence’ denotes a thing made punishable by this Code.
(2) In Chapter IV and in ss 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 289 and 445, the word ‘offence’ denotes a thing punishable under this Code or under any other law for the time being in force.
(3) In ss 141, 176, 177, 201, 202, 212, 216 and 441, the word ‘offence’ has the same meaning when the thing punishable under any other law for the time being in force is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.
The general rule as provided by s 40(1) is that a reference to the word ‘offence’ is a reference to an offence under the Penal Code only. Section 165, being a Penal Code offence, falls within this category and s 120B(1) can therefore be read with it. It therefore qualifies as an extradition offence within the meaning of s 6(2)(b) of the Act. The corruption charges are clearly not made punishable under the Penal Code. On the application of the general rule the corruption charges would therefore not fall under s 120B(1) of the Penal Code. However, there are exceptions to the general rule as provided by sub-ss (2) and (3) of s 40 pursuant to which the word ‘offence’ also includes a thing punishable under any other law. If therefore s 120B(1) of the Penal Code falls within these exceptions then a conspiracy to commit the corruption charges will be an offence under the section. Unfortunately the exceptions provided in sub-ss (2) and (3) of s 40 do not include s 120B of the Penal Code with the result that the corruption charges cannot be read with s 120B(1). It follows that a conspiracy to commit the corruption charges are not offences in Malaysia. I pause to add that in India s 120-B has been included in s 40 of their Penal Code thereby producing a different result. In the circumstances the corruption charges do not qualify as extradition offences as defined under s 6(2)(b) of the Act. Furthermore, s 11(a) of the Anti Corruption Act 1997 is inapplicable as it did not exist at the time of the commission of the Indian corruption offence. I will now consider the particulars of the Malaysian offence of conspiracy to commit an offence under s 165 as it has qualified as an extradition offence. Under s 165 of the Penal Code the elements that require proof are:
(a) that the accused was a public servant at the time of the commission of the offence;
(b) that he accepted or obtained or agreed to accept or attempted to obtain for himself or for someone else, a valuable thing;
(c) which he obtained from the person described in (b); and
(d) that he gave no consideration for it, or that the consideration given was known by him to be inadequate.
The elements that I have enumerated contemplate the existence of an identifiable public servant who has obtained or agreed to obtain a valuable thing. The documents do not reveal the existence of any such person. Thus it is not possible to formulate the particulars of this offence. In the case of the corruption charges even if a conspiracy to commit them is indeed an offence under Malaysian law it is not possible, just as in the case of s 165 of the Penal Code, to identify a public servant who has obtained or agreed to obtain a benefit. As the particulars of the offences cannot be identified the need for charges assume significance. At the end of its submission the prosecution invited the court to make an order, as an alternative solution, for the prosecution to frame and serve the charges and thereby re-open the inquiry. I cannot comply with this request for two reasons. Firstly, I cannot make an order for charges to be framed when I know that it cannot be done in light of the reasons that I have discussed earlier. Secondly, I do not see any reason why I should accede to a request to order a party to do something when that party is unwilling to do it itself. If, on the other hand, the prosecution itself had tendered the charges I would have seriously considered remitting the case back to the sessions court for hearing, subject to submissions by the respondent. But that was not done. The problems encountered in this case could have been avoided if charges had been framed and served.
Without the charges or, in the alternative, proper particulars of the offences, the inquiry before the sessions court just could not have started. In the upshot, it is my view that failure to supply the court and the respondent with the charges is fatal. The ruling made by the learned sessions court judge on the preliminary objection raised by the respondent is therefore correct in law. Accordingly, I confirm the order of discharge made by him and dismiss this application. I must place on record, my deep appreciation to counsel for both parties for their extensive research on the issues involved with an eloquent presentation of the fruits of their labour with graceful charm.
Order accordingly.
Reported by Peter Ling
Public Prosecutor v Ottavio Quattrocchi
Headnote
Court Details
HIGH COURT (KUALA LUMPUR) — CRIMINAL REVIEW NO 43–11 OF 2002
AUGUSTINE PAUL J
13 DECEMBER 2002
Catchwords
Criminal Procedure — Extradition — Applicable laws — Appearance on behalf of public prosecutor — Categories of person enumerated in s 41 of the Extradition Act 1992 — Whether person must be in the employment of the government of a country
Criminal Procedure — Extradition — Discharge, basis for — Decision of sessions court — Superior courts’ power to review — Whether any issue that will render an extradition inquiry groundless can be raised as an preliminary issue — Whether the fugitive criminal an “accused” person — Whether the prosecution identified the offence alleged to be committed — Whether the prosecution identified the corresponding local law for the offence alleged to be committed — Whether the court must be furnished with a copy of the charge — Extradition Act 1992 ss 6 and 41(1)
Summary
At the request of the Government of India, the Minister of Home Affairs, Malaysia issued a special direction under the Extradition Act 1992 (‘the Act’) for the extradition of the respondent who was accused of committing the offences of criminal conspiracy and cheating and dishonestly inducing delivery of property in India. The respondent is an Italian national and was resident in India at all material times. He was duly arrested and produced before the sessions court to inquire into the extradition matter. At the commencement of the inquiry, the respondent raised a preliminary objection to the further conduct of the inquiry on the ground that no charges had been served on the respondent. The sessions court took the view that the court should be in a position at the beginning to determine whether the offences are extradition offences under s 6 of the Act. Without a proper description of the offences, the respondent will be prejudiced in conducting his defence. In the circumstances, the sessions court directed that the respondent be discharged. The prosecution promptly applied for a review of the order made by the sessions court pursuant to s 37 of the Act. At the commencement of the hearing, the deputy public prosecutor applied for leave to allow Dato’ Dr Cyrus V Das and Mr Steven Thiruneelakandan, both advocates and solicitors, to hold a watching brief for the Government of India. When the proceeding had already commenced the deputy public prosecutor informed the court that the public prosecutor had authorized Dato’ Dr Cyrus V Das to appear on his behalf.
Holdings
Held:
(1) The process of an advocate and solicitor holding a watching brief is a form of legal representation for a person. If that person is already represented by counsel to conduct the proceeding, it is inappropriate for him to be further represented by another counsel in a different form. In the case of an extradition inquiry, the public prosecutor acts on the instruction of the requesting country. To that extent, the Government of India was already represented in the proceedings. Accordingly, the court dismissed the application to allow the two counsels to hold a watching brief for the Government of India (see pp 232I–233B).
(2) The validity of the authorization given by the public prosecutor is dependent on the interpretation to be accorded to s 41(1) of the Act. The words ‘… or legal officer …’ are followed by the words ‘… in the employment of the government of any country …’. The question for determination is whether this qualification is confined in its operation to just a ‘legal officer’ or also includes the preceding two categories of persons. The absence of a comma before the words ‘… or legal officer …’ in the subsection means that the qualification made must be construed conjunctively. The very fact of employment of an advocate and solicitor for the purpose of appearing in this proceeding will not render him to be a person in the employment of the government of any country for the purpose of the s 41(1) of the Act as its language refers to a person who is already in employment. In the circumstances, the three categories of persons enumerated in s 41(1) of the Act refer to persons ‘… in the employment of the government of any country …’. Accordingly, the court declined to accept the authorization of the public prosecutor (see pp 233E–F, 234E–F); Prithipal Singh v Datuk Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Intervener) [1993] 3 MLJ 336 followed.
(3) An order of discharge may therefore be made at any stage of the proceedings if the charge is found to be groundless. Therefore, an issue as to jurisdiction or any other matter that would render an extradition inquiry groundless could be raised as a preliminary issue. Thus, it was appropriate to consider the matters that confer jurisdiction on a sessions court to conduct an extradition inquiry in order to ascertain whether the objection that was entertained was regular (see p 235D–E).
(4) In accordance with the principle enunciated in In re Ismail [1968] 3 WLR 495, it is only when the magistrate takes cognizance of an offence by the issue of a summons or warrant of arrest can it be said that the prosecution of a person has commenced in order to describe him as an ‘accused’ person. Therefore, sufficient material must be placed before the court at the commencement of the extradition inquiry to show, inter alia, that the fugitive criminal was an ‘accused’ person within the meaning of the Act. If he is not, there can be no extradition proceeding against him (see p 237A–D).
(5) The prosecution should not undertake an extradition inquiry in respect of an offence committed in another country if it was unable to identify the corresponding local law. In this case the identification of the corruption offence alleged to have been committed by the respondent in India as stated in the requisition was open to doubt. It was not clear whether it referred to a conspiracy to commit the offence under the Prevention of Corruption Act 1947 or a substantive offence under the said Act. The respondent could not be liable for the substantive offence as he was not a public servant. There was also nothing on record identifying the corresponding Malaysian offences. This was absolutely necessary in order to ensure compliance with s 6 of the Act. Without an identification of the corresponding Malaysian offences at the commencement of the inquiry, it just could not proceed as it had to be conducted in accordance with our laws (see p 239B–F).
(6) The court must also be furnished with a copy of the charge. It was only with a charge would the court be in a position to decide what evidence was relevant and admissible and whether the evidence adduced was sufficient. It would also ensure identification of the relevant corresponding Malaysian law so as to facilitate a determination of compliance with the double criminality rule. It was also essential that a charge in accordance with the law of the requesting country be furnished and if it cannot be done so, for whatever reason, at least a statement of the particulars of the offence must be supplied. Where there was a statutory requirement for a charge to be formulated in a certain manner then it must be presented as required. Where there was no such stipulation there can be no objection to a charge being presented in an informal manner provided that it contained the necessary particulars (see pp 241F–G, 242F–G).
Bahasa Malaysia summary
Atas permintaan Kerajaan India, Menteri Dalam Negeri, Malaysia telah mengeluarkan satu arahan khas di bawah Akta Ekstradisi 1992 (‘Akta tersebut’) untuk mengekstradisikan responden yang dituduh melakukan kesalahan-kesalahan konspirasi jenayah dan penipuan dan secara tidak jujur menyebabkan penyerahan hartanah di India. Responden adalah seorang warganegara Itali dan penduduk tetap di India pada setiap masa matan. Beliau telah ditangkap dan dikemukakan seperti yang sepatutnya di hadapan mahkamah sesyen bagi menyiasat perkara extradisi tersebut. Pada permulaan siasatan tersebut, responden telah menimbulkan satu bantahan awal terhadap pengendalian seterusnya siasatan tersebut atas alasan tiada pertuduhan telah disampaikan ke atas responden. Mahkamah sesyen berpendapat bahawa mahkamah pada awal lagi patut menentukan sama ada kesalahan-kesalahan tersebut adalah kesalahan-kesalahan ekstradisi di bahawa s 6 Akta tersebut. Tanpa apa-apa gambaran sebenar tentang kesalahan-kesalahan tersebut, responden akan diprejudiskan apabila mengendalikan pembelaan beliau. Dalam keadaan sedemikian, mahkamah sesyen telah mengarahkan agar responden dibebaskan. Pihak pendakwa dengan segera telah memohon untuk satu kajian semula terhadap perintah yang dibuat oleh mahkamah sesyen tersebut menurut s 37 Akta tersebut. Pada permulaan perbicaraan, timbalan pendakwa raya telah memohon kebenaran untuk membenarkan Dato’ Dr Cyrus V Das dan En Steven Thiruneelakandan, kedua-duanya peguambela dan peguamcara, mengadakan satu pemerhati arahan untuk Kerajaan India. Apabila prosiding bermula, timbalan pendakwa raya telah memaklumkan kepada mahkamah bahawa pendakwa raya telah memberi kuasa kepada Dato’ Dr Cyrus V Das untuk hadir bagi pihaknya.
Bahasa Holdings
Diputuskan:
(1) Proses seorang peguambela dan peguamcara sebagai pemerhati arahan adalah satu bentuk perwakilan sah untuk seseorang. Jika seseorang itu telahpun diwakili oleh peguam untuk mengendalikan prosiding, adalah tidak sesuai baginya untuk diwakili juga oleh seorang peguam lain dalam bentuk yang berbeza. Di dalam kes siasatan ekstradisi, pendakwa raya bertindak atas arahan negara yang memohon ekstradisi tersebut. Setakat perkara itu, Kerajaan India telah diwakilkan di dalam prosiding ini. Oleh itu, mahkamah menolak permohonan untuk membenarkan kedua-dua peguam tersebut mengadakan pemerhati arahan untuk Kerajaan India (lihat ms 232I–233B).
(2) Kesahihan pemberian kuasa yang diberikan oleh pendakwa raya bergantung kepada tafsiran s 41(1) Akta tersebut. Perkataan-perkataan ‘… or legal officer …’ adalah diikuti dengan perkataan-perkataan ‘… in the employment of the government of any country …’. Persoalan untuk ditentukan adalah sama ada kelayakan ini terbatas dalam penguatkuasaannya kepada hanya seorang ‘legal officer’ atau termasuk juga kedua-dua kategori individu sebelumnya. Ketiadaan tanda koma sebelum perkataan-perkataan ‘… or legal officer …’ di dalam subseksyen tersebut bermakna bahawa kelayakan yang dibuat harus ditafsirkan sebagai penghubung. Hakikat pengambilan bekerja seorang peguambela dan peguamcara bagi tujuan menghadirkan diri dalam prosiding ini tidak akan menjadikan beliau seorang yang diambil bekerja oleh kerajaan mana-mana negara bagi tujuan s 41(1) Akta tersebut kerana bahasanya merujuk kepada seseorang yang telahpun diambil bekerja. Dalam keadaan demikian, ketiga-tiga kategori individu yang disebut satu persatu dalam s 41(1) Akta tersebut merujuk kepada mereka yang ‘… in the employment of the government of any country …’. Sewajarnya, mahkamah enggan untuk menerima pemberian kuasa pendakwa raya tersebut (lihat ms 233E–F, 234E–F); Prithipal Singh v Datuk Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Intervener) [1993] 3 MLJ 336 diikuti.
(3) Satu perintah pembebasan boleh dibuat pada mana-mana peringkat prosiding jika pertuduhan didapati tidak berasas. Oleh itu, satu persoalan tentang bidang kuasa atau apa-apa perkara yang mengakibatkan satu siasatan ekstradisi tidak berasas boleh ditimbulkan sebagai satu persoalan awal. Oleh demikian, adalah wajar untuk menimbangkan perkara-perkara yang memberikan bidang kuasa kepada mahkamah sesyen untuk mengendalikan satu siasatan ekstradisi bagi tujuan menentukan sama ada bantahan yang dipertimbangkan adalah mengikut aturan (lihat ms 235D–E).
(4) Bersesuaian dengan prinsip yang dinyatakan dengan jelas dalam In re Ismail [1968] 3 WLR 495, ia adalah hanya apabila majistret mengambil perhatian tentang satu kesalahan dengan mengeluarkan satu saman atau waran tangkap maka boleh ia dikatakan bahawa pendakwaan seseorang telah dimulakan supaya dapat disifatkan beliau sebagai seorang ‘tertuduh’. Oleh itu, bahan yang mencukupi harus dikemukakan di hadapan mahkamah di permulaan siasatan ekstradisi tersebut untuk menunjukkan, antara lain, bahawa penjenayah pelarian tersebut adalah seorang ‘tertuduh’ dalam maksud Akta tersebut. Sekiranya beliau bukan, maka tidak boleh ada prosiding ekstradisi terhadap beliau (lihat ms 237A–D).]
(5) Pihak pendakwa tidak sepatutnya mengendalikan satu siasatan ekstradisi berhubung satu kesalahan yang dilakukan di negara lain jika ia gagal untuk mengenalpasti undang-undang tempatan yang sama. Dalam kes ini, pengenalpastian kesalahan rasuah yang dikatakan telah dilakukan oleh responden di India sebagaimana yang dinyatakan dalam rekuisisi tersebut boleh diragui. Adalah tidak jelas sama ada ia merujuk kepada satu konspirasi untuk melakukan kesalahan di bawah Akta Pencegahan Rasuah 1947 atau satu kesalahan substantif di bawah Akta tersebut. Responden tidak boleh dipertanggungjawabkan kerana kesalahan substantif tersebut kerana beliau bukan seorang kakitangan awam. Tidak terdapat di dalam rekod kesalahan-kesalahan yang sama seperti di Malaysia. Ini sememangnya perlu bagi tujuan memastikan s 6 Akta tersebut dipatuhi. Tanpa satu pengenalpastian kesalahan-kesalahan yang sama seperti di Malaysia di permulaan siasatan, ia tidak boleh diteruskan kerana ia harus dikendalikan bersesuaian dengan undang-undang di sini (lihat ms 239B–D).
(6) Mahkamah juga mesti diberikan sesalinan kertas pertuduhan. Hanya dengan satu kertas pertuduhan mahkamah dapat memutuskan apa keterangan yang relevan dan boleh diterima dan sama ada keterangan yang dikemukakan adalah mencukupi. Ia juga akan memastikan pengenalpastian undang-undang Malaysia yang sama untuk memberikan satu penentuan tentang pematuhan perautan jenayah yang sama tersebut. Adalah penting juga satu kertas pertuduhan yang bersesuaian dengan undang-undang negara yang memohon diberikan dan jika itu tidak boleh dilakukan, untuk apa sebab sekalipun, sekurang-kurangnya satu pernyataan butiran kesalahan diberikan. Di mana terdapat satu keperluan statutori untuk satu kertas pertuduhan dibentuk dalam cara tertentu maka ia mesti dikemukakan seperti yang dikehendaki. Di mana tidak dinyatakan sedemikian maka tiada bantahan terhadap kertas pertuduhan boleh dikemukakan dalam cara yang tidak formal kecuali ia mengandungi butiran-butiran yang tertentu (lihat ms 241F–G, 242F–G).]
Notes
For cases on applicable laws on extradition, see 5 Mallal’s Digest (4th Ed, 2001 Reissue) paras 1576–1579.
For cases on basis for discharge, see 5 Mallal’s Digest (4th Ed, 2001 Reissue) para 1595.
Cases referred to
Ata Muhammad v Shankar Das AIR 1924 Lah 279 (refd)
Baldev Singh v State of Himachal Pradesh (1987) 2 SCC 510 (refd)
Carbines v Pittock (1908) VLK 292 (refd)
Charron v Government of the United States of America & Anor [2000] 1 WLR 1793 (refd)
Che Ani bin Itam v PP [1984] 1 MLJ 113 (refd)
Cheng Keng Hoong v Government of the Federation of Malaya [1967] 2 MLJ 1 (refd)
Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 (refd)
Commissioner of Police v Tanos (1958) 98 CLR 383 (refd)
DYTM Tengku Idris Shah ibni Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn Bhd & Anor [2002] 2 MLJ 11 (refd)
German Federal Republic v Sotoriadis [1974] 2 AC 1 (refd)
Government of Canada & Anor v Aronson [1989] 2 All ER 1025 (refd)
Ismail, In Re [1968] 3 WLR 495 (refd)
Mohinder Singh Gill v The Chief Election Commissioner AIR 1978 SC 851 (refd)
Munnich v Godstone Rural District Council [1966] 1 WLR 427 (refd)
Naghdi, Re [1900] 1 WLR 317 (refd)
Norman and Moran v National Dock Labour Board [1957] 1 Lloyd’s Rep 455 (refd)
Ong Ah Chuan v PP [1981] 1 MLJ 64 (refd)
Ozie Powell v State of Alabama 287 US 45 (refd)
Pepper v Hart [1993] 1 All ER 42 (refd)
Prithipal Singh v Datuk Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Intervener) [1993] 3 MLJ 336 (folld)
PP v Karnal Singh [1970] 1 MLJ 49 (refd)
R v Bow Street Metropolitan Magistrate & Ors; Ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827 (refd)
R v Governor of Pentonville Prison, ex p Osman [1990] 1 WLR 277 (refd)
R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 (refd)
Ridge v Baldwin [1964] AC 40 (refd)
Russell v Duke [1949] 1 All ER 109 (refd)
Santosh Kumar Sundarasca v Orissa State Civil Supplies Corp 1992 Cr LJ 2230 (refd)
State of Orissa v Dr (Miss) Binapani Dei AIR 1067 SC 1269 (refd)
Triambak Pati Tripathi v BHS & I Education, Allahabad AIR 1973 All 1 (refd)
Union of India v Tulsiram Patel AIR 1985 SC 1416
Legislation referred to
Anti Corruption Act 1997 s 11(a)
Criminal Procedure Code ss 141(iii), 379
Criminal Procedure Code [India] ss 173,190, 204, 240
Emergency (Essential Powers) Ordinance No 22 of 1970 s 2(1)
Extradition Act 1992 ss 2, 3, 4, 5, 6(1), (2)(b), 18, 19, 37(1), 41(1), 44
Federal Constitution art 5(1)
Interpretation Acts 1948 and 1967 s 17A
Penal Code ss 40(2), (3), 165, 120B(1), (2), 420
Penal Code [India] ss 120-B(1), 420
Prevention of Corruption Act 1947 ss 5(1)(d), (2)
Lawyers
Kamarul Hisham bin Kamaruddin (Deputy Public Prosecutor) for the applicant.
Muhammad Shafee Abdullah (Rabinder Singh with him) (Shafee & Co) for the respondent.
Cyrus V Das (Steven Thiruneelakandan with him (Shook Lin & Bok) as amicus curiae.
Judgement - Augustine Paul J
Augustine Paul J : At the request of the Government of India the Minister of Home Affairs, Malaysia issued a special direction under the Extradition Act 1992 (‘the Act’) for the extradition of one Ottavio Quattrocchi (‘the respondent’) who was accused of committing the following offences in India:
Criminal conspiracy (s 120-B); read with s 420 (cheating and dishonestly inducing delivery of property) of Indian Penal Code 1860 and s 5(2) read with s 5(1)(d) (criminal misconduct) of the Prevention of Corruption Act 1947.
The respondent is an Italian national and was resident in India at all material times. He was duly arrested and produced before the sessions court to inquire into the extradition matter on 20 December 2000. At the commencement of the inquiry, learned counsel for the respondent raised a preliminary objection to the further conduct of the inquiry on the ground that no charges had been served on the respondent. The prosecution contended that the absence of charges was not fatal. At that point of time, the proceeding before the sessions court was stayed by the High Court following an application made by the respondent. When the High Court dismissed the said application, the matter was remitted back to the sessions court. The learned sessions court judge, in delivering his judgment on the preliminary objection raised, took the view that the court should be in a position at the beginning to determine whether the offences are extradition offences under s 6 of the Act. As he said in his judgment:
While on this point I do not agree with the contention of the prosecution that the court postpones the finding of the issue of ‘double criminality’ until after hearing all the evidence tendered. If this approach is taken the court may very well end up in embarking on an exercise in futility if after hearing all the evidence the court discovers that the offences do not fall under the principle of ‘double criminality’ at the outset. It is my opinion therefore the court should at the beginning of the proceedings determine whether the offences committed can be regarded as extradition offences under s 6 of the Act.
He further held that without a proper description of the offences the respondent will be prejudiced in conducting his defence. He referred to s 19 of the Act and said:
This section gives the subject the opportunity of adducing evidence to show he did not do the acts specified in the offences. Before he can lead such evidence in my opinion he should know the very acts he is supposed to have committed. He can only do this if the offences have been sufficiently particularized.
He also said that without a proper description of the offences it would be impossible for the court to decide whether evidence that is led is admissible or not. He then concluded by saying that it is necessary for a proper description of the offences to have been made available to the court. He added that the tendering of charges would have been preferable. In the circumstances he directed that the respondent be discharged. The prosecution promptly applied to this court for a review of the order made by the sessions court pursuant to s 37 of the Act.
Before I proceed any further it is necessary for me to deal with two applications that were made before me.
Application to hold a watching brief
At the commencement of the hearing before me the learned deputy public prosecutor applied for leave to allow Dato’ Dr Cyrus V Das and Mr Steven Thiruneelakandan, both advocates and solicitors, to hold a watching brief for the Government of India. In my opinion, the process of an advocate and solicitor holding a watching brief is a form of legal representation for a person. If that person is already represented by counsel to conduct the proceeding it is inappropriate for him to be further represented by another counsel in a different form. Ordinarily, the public prosecutor cannot be said to represent the complainant in a criminal prosecution. He does not take instructions from the complainant but acts for the state and exercises his own discretion as the guardian of public interest. However, in the case of an extradition inquiry he acts on the instructions of the requesting country to some extent. This is evidenced by s 37(1) of the Act where, in applying for a review when a fugitive criminal has been discharged, he acts ‘… at the request of the country seeking the return …’. To that extent the Government of India is already represented in the proceedings. Accordingly, I dismissed the application. However, I invited counsel to be present in court to render whatever assistance they could which they did graciously. They were not hindered from participation at any stage of the proceeding. I appreciate and acknowledge the immense contribution made by them.
Authorization by the public prosecutor under s 41 of the Act
When the proceeding had already commenced the learned deputy public prosecutor informed me that the public prosecutor had authorized Dato’ Dr Cyrus V Das to appear on his behalf under s 41(1) of the Act which reads as follows:
Any barrister, advocate and solicitor or legal officer in the employment of the government of any country may with the written authorization of the public prosecutor appear on his behalf in any proceedings under this Act.
The validity of the authorization given by the public prosecutor is dependent on the interpretation to be accorded to this subsection. The words ‘… or legal officer …’ are followed by the words ‘… in the employment of the government of any country …’. The question for determination is whether this qualification is confined in its operation to just a ‘legal officer’ or also includes the preceding two categories of persons. The absence of a comma before the words ‘… or legal officer …’ in the subsection means that the qualification made must be construed conjunctively as applying to all the three categories of persons mentioned. In support I refer to Prithipal Singh v Datuk Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Intervener) [1993] 3 MLJ 336 where Eusoff Chin SCJ (as he then was) said at p 341:
We find that Parliament had deliberately inserted a comma after the words ‘Federal Territory’ and the significance cannot be ignored because without the comma, the words ‘Secretary General’ and ‘public officer’ must be read conjunctively, but with the comma, these words must be read disjunctively.
I derive further support for this view from s 379 of the Criminal Procedure Code (‘CPC’) which refers to a similar authorization being given to a local advocate and solicitor. Thus, s 41 of the Act must have been specially enacted for a different purpose as Parliament is presumed to know the existing law. This intention can be gathered from the speech given in Parliament in connection with the Extradition Bill as reported in Penyata Rasmi Parlimen, (Jilid 1 Bil 75), Rabu, 30 Oktober 1991 at p 74:
Tuan Yang di-Pertua, satu lagi peruntukan baru yang sekarang ini tidak terdapat dalam undang-undang ekstradisi yang sedia ada ialah peruntukan yang dicadangkan dalam Fasal 41 Rang Undang-undang ini. Fasal ini membenarkan seseorang pegawai undang-undang ataupun peguam dari sebuah negara asing menguruskan sesuatu kes ekstradisi atau membantu Pendakwa Raya di Mahkamah di dalam kes ekstradisi. Peruntukan ini dicadangkan kerana adalah difikirkan bahawa di dalam kes-kes yang kompleks, yang mungkin memakan masa yang panjang untuk diselesaikan, adalah lebih baik jika pegawai undang-undang atau peguam asing yang telah menguruskan kes itu dari mulanya dan lebih arif tentang kerumitannya, membuktikan kes itu di Mahkamah. Walau bagaimanapun, pegawai atau peguam sedemikian hanya boleh berbuat demikian dengan kebenaran bertulis daripada Pendakwa Raya. Bagi maksud-maksud kes yang begini, Fasal 41 ini memperuntukkan bahawa undang-undang berkenaan dengan perihal kemasukan pegawai dan peguam itu serta hak mereka untuk hadir di Mahkamah tidaklah terpakai bagi pegawai undang-undang atau peguam asing itu.
Reference to parliamentary material as an aid to the construction of legislation as approved in Pepper v Hart [1993] 1 All ER 42 was followed by cases such as Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 and DYTM Tengku Idris Shah ibni Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn Bhd & Anor [2002] 2 MLJ 11. This purposive approach to the construction of statutes is reflected in s 17A of the Interpretation Acts 1948 and 1967. The purpose of Parliament is therefore clear. It is also my view that the very fact of employment of an advocate and solicitor for the purpose of appearing in this proceeding will not render him to be a person in the employment of the government of any country for the purpose of the subsection as its language refers to a person who is already in employment. In the circumstances I hold that the three categories of persons enumerated in the subsection refer to persons ‘… in the employment of the government of any country …’. Accordingly, I declined to accept the authorization of the public prosecutor. This is an order which I made with considerable regret as Dato’ Dr Cyrus V Das is one of the foremost advocates and solicitors in the country and his advocacy skills, preparation of a case and conduct in court in the highest traditions of the Bar are too well-known. Despite my ruling, he and his colleague were given full liberty to address the court as amicus curiae.
The right to raise a preliminary objection
In his submission before me, the learned deputy public prosecutor contended that the learned sessions court judge should not have entertained the objection as an order of discharge can only be made at the conclusion of the inquiry. He said that this procedure is not authorized by the Act unlike in ordinary criminal trials where it is permitted by the CPC.
A court can hear a matter only if it has jurisdiction to do so. Consent or waiver cannot confer jurisdiction or power on the court to hear and determine an issue or a cause of action which is non-existent (see Cheng Keng Hoong v Government of the Federation of Malaya [1967] 2 MLJ 1). A trial conducted without jurisdiction is a nullity (see Public Prosecutor v Karnal Singh [1970] 1 MLJ 49). It is therefore pointless for the court to proceed with a hearing if at the end it is found to be a nullity for want of jurisdiction. If a jurisdictional objection is apparent at the commencement of the inquiry I do not see any reason why it cannot be raised at that stage as the inquiry cannot proceed further without a resolution of the issue. In this regard, I also refer to the procedure governing the conduct of an extradition inquiry. It is said that an extradition inquiry is conducted in like manner as a committal proceeding the procedure for which is governed (now repealed) by the CPC. Section 44 of the Act provides for the application of the provisions of the CPC in relation to matters not covered by the Act. Section 141(iii) of the CPC (now repealed), a provision dealing with committal proceedings, provides as follows:
Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if for reasons to be recorded by such Magistrate he considers the charge to be groundless.
An order of discharge may therefore be made at any stage of the proceedings if the charge is found to be groundless. It is therefore my view that an issue as to jurisdiction or any other matter that will render an extradition inquiry groundless can be raised as a preliminary issue. Thus it is appropriate to consider the matters that confer jurisdiction on a sessions court to conduct an extradition inquiry in order to ascertain whether the objection that was entertained was regular. This is governed by s 18 of the Act which reads as follows:
A sessions court shall have the powers and jurisdiction to inquire into an extradition matter brought before it in accordance with the procedure specified under this Act.
The sessions court has been conferred with jurisdiction to inquire into an extradition matter which has been brought before it in accordance with the procedure specified under the Act. A sessions court may therefore satisfy itself at the commencement of the inquiry that it relates to an extradition matter and that it was brought before it in accordance with the procedure specified under the Act. With regard to the latter, there must be compliance with either s 2 or s 3 or s 4 of the Act, as the case may be, and other related matters. Compliance with either one of these provisions will give the sessions court jurisdiction to inquire into the extradition matter. An extradition matter is one that relates to a fugitive criminal. Section 5 of the Act defines a ‘fugitive criminal’ as meaning:
… any person who is accused of or convicted of an extradition offence committed within the jurisdiction of another country and is, or is suspected to be, in some part of Malaysia …
A ‘fugitive criminal’ is therefore a person who is accused of or convicted of an extradition offence in another country and is in Malaysia. This involves two major elements. They are that:
(i) the fugitive criminal must be a person who has been accused or convicted; and
(ii) it must be in respect of an extradition offence.
I shall now consider them.
(a) The fugitive criminal must have been accused or convicted
The fact of conviction is comprehensible while the word ‘accused’ requires some deliberation. I interpolate to add that this deliberation is confined to the requirement of the Act only and is not of general application. The clearest indication of a person being an ‘accused’ person is when he is charged in court as it is a formal accusation for a crime. However, such certainty of definition is not free from difficulties in its application to extradition cases. A person may have absconded from a country before being charged and he may be required for that very purpose. The requirement of law may also be such that he can be charged only in his presence. A restriction of the meaning of the word ‘accused’ to a person who has been charged in court will therefore defeat the object of the process of extradition. Its construction must therefore be flexible so as to take into account the laws of other jurisdictions and the circumstances of each case. However, any flexibility of definition must at least refer to a situation where there is clear indication of a prosecution as a person cannot be extradited on mere suspicion or for purposes of interrogation as his return would be for the purpose of a trial. This approach accords with In Re Ismail [1968] 3 WLR 495 where it was held that a person is an accused person when the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. This will require an intense focus on the particular facts of each case. Thus, as Lord Steyn said at p 499:
It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of ‘accused’ person. It is also common ground that it is not enough that he is in the traditional phrase ‘wanted by the police to help them with their inquiries’.
What therefore requires consideration is the point of time at which it can be said that a prosecution has commenced if it is not confined to the fact of being charged. I shall commence with the position from the point of view of Indian law where a charge is framed by the court only in the presence of the accused as provided by s 240 of their Criminal Procedure Code. Prior to this, the necessary documents are sent to the magistrate empowered to take cognizance of the offence under s 173. In the case of a matter initiated by a police report, the magistrate may take cognizance of the offence based on the documents submitted to him under s 190. He will then issue a summons or a warrant of arrest under s 204. As Sarkar on Criminal Procedure (7th Ed) says at p 660:
This section relates to commencement of a criminal proceeding.
And further down on the same page,
On issue of process a person complained against becomes an ‘accused’ (Gulab 38 C880).
Thus, in accordance with the principle enunciated in In Re Ismail [1968] 3 WLR 495, it is only when the magistrate takes cognizance of an offence by the issue of a summons or warrant of arrest can it be said that the prosecution of a person has commenced in order to describe him as an ‘accused’ person. This is logical as the issue of process is a clear indication of a prosecution. Where evidence of such cognizance is not available reliance must be placed on other documents to determine whether a person is an ‘accused’ person. The absence of any evidence will only amount to a suspicion that a person has committed the offence which is insufficient to place him in the category of an ‘accused’ person. In my opinion, therefore, sufficient material must be placed before the court at the commencement of the extradition inquiry to show, inter alia, that the fugitive criminal is an ‘accused’ person within the meaning of the Act. If he is not, there can be no extradition proceeding against him. It would thus be a folly to go through the process of an extradition inquiry only to realize at the end of it that the person whose extradition is sought is only suspected to have committed an extradition offence and is not an ‘accused’ person.
In order to show that the respondent is a person ‘accused’ of an offence for the purpose of the Act, the prosecution referred to a warrant of arrest issued against the respondent by the Special Judge, Delhi. As I said earlier, a warrant is sufficient to show that criminal proceedings have been commenced thereby indicating that the person concerned is an ‘accused’ person. The warrant of arrest states that the respondent has been charged with the offence of:
120-B IPC r/w 420 IPC and s 5(2) r/w 5(1)(d) of PC Act 1947 and substantive offences thereof.
The reference in the warrant to the substantive offence against the respondent under the Prevention of Corruption Act 1947 is clearly unsustainable as the said Act, being applicable only to public servants, is inapplicable to the respondent as he is not a public servant. The respondent contended that this renders the warrant defective. In dealing with errors in taking cognizance of an offence, Pasayat J said in Santosh Kumar Sundarasca v Orissa State Civil Supplies Corp 1992 Cr LJ 2230:
At the stage of cognizance, the magistrate is required to see if a prima facie offence is made out. He is not required to make an elaborate analysis of the materials, and/or to see possibility of conviction or acquittal. The law on the point has been succinctly stated in AIR 1976 S C 1947: (1976 Cr LJ 1933) Sont Nagawwa v Veeranna Shivalingappa Konjalji. Further, the scope for interference with an order taking cognizance, when the prosecution is at the initial stage, is very limited, and has to be applied rarely with circumspection only when the uncontroverted allegations do not establish the offence.
In my opinion, the reference to the substantive offences in the warrant of arrest can be ignored. It has been held that no objection can be taken if a tribunal specifies one or more heads of action and then proceeds only on one head and this is so even if one of the heads not pursued is unjustified (see Norman and Moran v National Dock Labour Board [1957] 1 Lloyd’s Rep 455). The defect in the warrant of arrest therefore does not infect the whole of it. Thus, what is significant is the reference in the warrant to the two charges in respect of which extradition is sought. They are sufficient to describe the respondent as an ‘accused’ person for the purpose of the Act. I must emphasize that the requirement for a person to be an ‘accused’ person within the meaning of the Act and the need for a charge, which I will consider in a later part of the judgment, are separate and distinct concepts. While a person must be an ‘accused’ person before he can be termed a fugitive criminal, the charge becomes relevant only at the stage of the extradition inquiry. As I will explain later, the charge is also a matter that goes towards jurisdiction.
(b) The accusation or conviction must be in respect of an extradition offence
Section 5 of the Act defines an ‘extradition offence’ as meaning:
… an offence described in sub-s 6(2) or 6(3) …
Section 6 of the Act reads as follows:
(1) A fugitive criminal shall only be returned for an extradition offence.
(2) For the purposes of this Act, an extradition offence is an offence, however described, including fiscal offences —
(a) which is punishable, under the laws of a country referred to under para 1(2)(a) or 1(2)(b), with imprisonment for not less than one year or with death; and
(b) which, if committed within the jurisdiction of Malaysia, is punishable under the laws of Malaysia with imprisonment for not less than one year or with death:
Provided that, in the case of an extraterritorial offence, it is so punishable under the laws of Malaysia if it took place in corresponding circumstances outside Malaysia.
(3) An offence shall also be an extradition offence if it consists of an attempt or a conspiracy to commit, or an abetment of the commission of, any offence described in sub-s (2).
The test for criminality is the date of the commission of the alleged offence which is the subject of the extradition request and not the date of receipt of the extradition request (see R v Bow Street Metropolitan Magistrate & Ors; Ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827). Section 6 of the Act makes it clear that in order for an offence to qualify as an ‘extradition offence’ it must not only be an offence punishable under the laws of the requesting country with imprisonment for not less than one year or with death, it must, at the same time, be also an offence in Malaysia punishable with imprisonment for not less than one year or with death. This is a reference to the ‘double criminality rule’ as explained in Government of Canada & Anor v Aronson [1989] 2 All ER 1025. As Oppenheim says in his book entitled International Law (8th Ed) Vol 1 at p 701:
… no person is to be extradited whose deed is not a crime according to the criminal law of the State which is asked to extradite, as well as of the State which demands extradition.
As provided by s 6(1) of the Act itself a fugitive criminal shall only be returned for an extradition offence. In my opinion, therefore, the prosecution should not undertake an extradition inquiry in respect of an offence committed in another country if it is unable to identify the corresponding local law. It can thus be appreciated with ease the folly of conducting an extradition inquiry only to realize at the end that it is not an extradition offence.
In this case, the identification of the corruption offence alleged to have been committed by the respondent in India as stated in the requisition is open to doubt. It is not clear whether it refers to a conspiracy to commit the offence under the Prevention of Corruption Act 1947 or a substantive offence under the said Act. The respondent cannot be liable for the substantive offence as he is not a public servant. The prosecution upon being asked by me to clarify the position confirmed that the requisition refers to:
(1) Section 120-B read with s 420 of the Indian Penal Code; and
(2) Section 120-B read with ss 5(2) and 5(1)(d) of the Prevention Corruption Act 1947.
The next matter of concern is that there is nothing on record identifying the corresponding Malaysian offences. This is absolutely necessary in order to ensure compliance with s 6 of the Act. Without an identification of the corresponding Malaysian offences at the commencement of the inquiry it just cannot proceed as it has to be conducted in accordance with our laws. Upon a query from me, the prosecution said that there are corresponding offences in Malaysia in respect of the two Indian offences. The first offence has a corresponding offence in s 120B(1) read with s 420 of the Malaysian Penal Code. With regard to the second offence, the prosecution submitted that its corresponding Malaysian offence can be found in either s 165 of the Penal Code or s 11(a) of the Anti Corruption Act 1997 or s 2(1) of the Emergency (Essential Powers) Ordinance No 22 of 1970. I shall hereafter refer to the last two provisions of law as ‘the corruption charges.’ I shall consider in the course of the judgment whether the corruption charges constitute offences under Malaysian law so as to satisfy the requirements of s 6 of the Act.
The need for a charge
The critical matter for deliberation is the objection of the respondent that he has not been furnished with the charges so as to enable him to conduct his defence fairly and effectively. It was contended by the prosecution that it is not possible to tender the Indian charges as they can only be framed in the presence of the respondent as provided by s 240 of the Indian Criminal Procedure Code and that service of the requisition documents on the respondent was sufficient to provide the required particulars. It was further argued that the Act does not require the formulation of a charge. The primary question that requires to be answered is whether there is a right to a charge under the Act even if it does not authorize it. The answer becomes apparent if the purpose of a charge is understood. A person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him (see Union of India v Tulsiram Patel AIR 1985 SC 1416). This is because one of the fundamental principles of natural justice is that a party in a legal proceeding must have a reasonable opportunity of presenting his case (see Russell v Duke [1949] 1 All ER 109). Thus he must be given notice of the case or the charges which he has to meet (see Triambak Pati Tripathi v BHS & I Education, Allahabad AIR 1973 All 1). In Ozie Powell v State of Alabama 287 US 45 it was held that notice is one of the preliminary steps essential to the passing of an enforceable judgment. Disclosure of the charge must therefore be made in reasonable time to allow the person affected to prepare his defence (see R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299). Failure to provide a charge will be equivalent to a denial of the opportunity to be heard. As Geoffrey Flick says in his book entitled Natural Justice (2nd Ed) at p 55:
Professor de Smith correctly observed that in a large majority of the reported cases where a breach of the audi alteram partem rule had been alleged, no notice whatsoever of the action to be taken had been given to the person claiming to be aggrieved, and that failure to give prior notice had been the equivalent of a denial of the opportunity to be heard: de Smith p 196.
Any order or decision in matters involving civil consequences, which includes civil liberties (see Mohinder Singh Gill v The Chief Election Commissioner AIR 1978 SC 851), has to be made consistently with rules of natural justice (see State of Orissa v Dr (Miss) Binapani Dei AIR 1067 SC 1269). This must be so unless the statute specifically rules out the application of natural justice (see Baldev Singh v State of Himachal Pradesh [1987] 2 SCC 510). As Dixon and Webb JJ said in Commissioner of Police v Tanos (1958) 98 CLR 383 at p 396:
But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment.
This view is consistent with art 5(1) of the Federal Constitution which provides that no person shall be deprived of his life or personal liberty save in accordance with law. The word ‘law’ in art 5(1) refers to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation at the commencement of the Constitution (see Che Ani bin Itam v Public Prosecutor [1984] 1 MLJ 113; Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64). The rules of natural justice have been part of the common law of England for centuries and are therefore guaranteed by the Federal Constitution. This means that the deprivation of a person’s life or personal liberty in accordance with the rules of natural justice is a constitutional right unless otherwise provided for by statute. An order of extradition to be made against a person is without doubt a matter of personal liberty and falls squarely within the ambit of this right. Thus the absence of any provision in the Act relating to a charge does not mean that there is no right to it. On the contrary, such absence confirms the right. In any event, the necessity for a charge can be found in s 141(iii) of the CPC, to which I have referred earlier, which recognizes the existence of a charge. In German Federal Republic v Sotoriadis [1974] 2 AC 1, Lord Diplock in dealing with the procedure to be followed in an extradition hearing said, inter alia, that the arrested person must be informed of the charges (at p 29). The charge will articulate the particulars of the offence and the relevant law infringed in a legal form. It is the recognized form of furnishing particulars of an offence in a criminal proceeding. As the inquiry will proceed as if the offences had been committed in Malaysia the charge must be in Malaysian law. This will require an identification of the corresponding Malaysian offences. As Lloyd LJ said in R v Governor of Pentonville Prison, ex p Osman [1990] 1 WLR 277 at p 302:
The practice in extradition cases has been that the English ‘offences’ are stated in the authority to proceed in very general terms. The magistrate is not, of course, concerned with whether the offence is made out in foreign law. He is concerned solely with whether the evidence would support committal for trial in England, if the conduct complained of had taken place in England: see In re Nielson [1984] AC 606. So the magistrate is furnished at the commencement of the hearing with a schedule of charges based on the alleged conduct and formulated in accordance with English law.
Thus, the court must also be furnished with a copy of the charge. It is only with a charge will the court be in a position to decide what evidence is relevant and admissible and whether the evidence adduced is sufficient. It will also ensure identification of the relevant corresponding Malaysian law so as to facilitate a determination of compliance with the double criminality rule. It is also essential that a charge in accordance with the law of the requesting country be furnished and if it cannot be done so, for whatever reason, at least a statement of the particulars of the offence must be supplied. With regard to the significance of the time when the charge must be served, Jones on Extradition and Mutual Assistance (2nd Ed) in referring to Re Naghdi [1900] 1 WLR 317 says at p 335:
The representative of the requesting state must formulate the charges by the committal hearing and provide the defence with a copy.
It was held in German Federal Republic v Sotoriadis, supra, that an extradition hearing cannot start until the magistrate has been informed what the crime is in respect of which the requisition has been made and which will be the subject matter of the hearing. This is for the obvious reason that the failure to do so is a breach of a fundamental rule of natural justice and thereby deprives the court of jurisdiction to proceed. Thus, the charge must be furnished to the court and the fugitive criminal at least before the commencement of the inquiry so that it will serve its purpose. It has been held that a judicial decision reached where there is no notice or where there is improper notice in material respects is without jurisdiction and liable to be quashed (see Ata Muhammad v Shankar Das AIR 1924 Lah 279). In Ridge v Baldwin [1964] AC 40, it was held that a decision contrary to natural justice was a nullity, being vitiated by want of jurisdiction. I fail to understand why charges in the Malaysian context were not served, even at this stage, despite the fact that the absence of charges has been a bone of contention between the parties for the last two years. It could have been supplemented with particulars of the offence in Indian law. I do not see any difficulty in complying with this requirement even in the case of a jurisdiction where a charge cannot be framed at the time of the request for extradition. The Malaysian charge is, after all, only for the purpose of conducting the inquiry and not for the purpose of being the foundation for prosecution in the requesting country.
The absence of charges prompted the prosecution to contend that the required particulars can be found in the requisition documents. This raises the question of whether the absence of a charge is fatal. A charge is a formal accusation for a crime. Its fundamental requirements are, as stated in Penumbra of Natural Justice (2nd Ed) by TG Choudhury at p 136:
Notice must be fair, adequate and sufficient in order to enable a person charged to prepare his defence. It must bring home to him the nature of the charge, and contain sufficient particulars to enable him to appreciate the case he will have to meet. A mere vague information that important business is to be discussed or that charges are to be brought and an invitation to discuss an incident are insufficient.
Where there is a statutory requirement for a charge to be formulated in a certain manner then it must be presented as required. Where there is no such stipulation, there can be no objection to a charge being presented in an informal manner provided that it contains the necessary particulars. Thus, in Charron v Government of the United States of America & Anor [2000] 1 WLR 1793, it was held that while the service of a charge is good practice what is essential is that the person whose extradition is requested should know the details of the offences in respect of which the extradition is sought. It has been held that if the notice is contained in separate pieces of paper which, as a whole, convey all that is required it is not deficient (see Munnich v Godstone Rural District Council [1966] 1 WLR 427). It will not serve its purpose if a party is left guessing as to what the charge actually is (see Carbines v Pittock (1908) VLK 292). It would therefore suffice if, instead of a charge, a brief summary of the facts is provided from which the particulars of the offence and the relevant law can be discerned with ease. No such summary was furnished in this case. It is unreasonable to expect the required particulars to be identified from pages and pages of documents that have been supplied in this case. However, in order to address the submission of the prosecution a perusal of the documents tendered is required in order to determine and identify the particulars of the offences. This process may appear to be a consideration of the merits of the case but it is necessary to do so in order to identify the particulars of the offences so as to rule whether they constitute sufficient notice of the charges.
I will first deal with the offence of cheating. The thrust of this offence is the receipt of money by the respondent following the appointment of AE Services Limited of the United Kingdom at his behest as the consultants of Bofors since the appointment of agents was prohibited. However, it must be observed that para 13 of the ‘charge sheet’ of the Indian authorities refers to the prohibition as
the present Government did not approve of the appointment of Indian agent acting for foreign suppliers.
The prohibition is therefore only of the appointment of Indian agents. As AE Services Limited is United Kingdom-based their appointment as consultants to Bofors does not infringe the prohibition. In any event, cl 33.1 of the agreement entered into between the Government of India and Bofors some two weeks after the imposition of the prohibition has the effect of negating it. It reads as follows:
All the provisions of this Contract including the Annexures, Enclosures and Clauses shall be harmoniously construed. The Parties have executed this Contract on the basis that the provisions in the Clauses and Annexures both inclusive represent the entire Contract. This Contract sets forth the entire undertaking of the Parties in respect of transactions contemplated hereby and supersedes all prior agreements, arrangements, representations or understanding relating to the subject matter hereof.
If the prohibition has been superseded by the agreement it ceases to be one. It cannot therefore be the foundation for the offence of cheating. The two issues that I have mentioned, having been addressed by learned counsel for the respondent, did not find their way into the reply by the prosecution. When I invited the prosecution and the two counsel to submit on them, there was no positive response worthy of consideration. These facts cannot therefore be termed or treated as particulars for the offence of cheating in lieu of a charge thereof. In the circumstances, it is not possible to discern the particulars for the offence of cheating from the documents made available.
With regard to the corruption charges and s 165 of our Penal Code, identified by the prosecution as corresponding Malaysian offences to the Indian corruption charge, there is sufficient evidence on record to show that the respondent received large sums of money from AE Services Limited. That, unfortunately, is the beginning of a major and substantial obstacle. The prosecution has identified three possible provisions of Malaysian law which may correspond to the Indian corruption charge. The elements for each of the three charges are different. Clearly, it is not possible for the respondent to identify with precision the particulars of the offence that he has to answer as he is confronted with three possible offences. That is prejudicial to the respondent. In any event, before attempting to consider their particulars, it is perhaps more pertinent to first determine whether a conspiracy to commit them is an offence under Malaysian law. The offence of conspiracy is governed by our s 120B of the Penal Code which reads as follows:
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for a term of two years or upwards shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment for a term not exceeding six months, or with fine, or with both.
The offences are punishable with imprisonment for a term of more than two years as stipulated in s 120B(1). Section 120B(2) is irrelevant as it provides for imprisonment for offences for a term not exceeding six months only and will thereby not come within s 6(2)(b) of the Act. The next matter for consideration is whether the offences are capable of coming within s 120B. This is governed by the word ‘offence’ in s 120B(1) which is defined in s 40 of our Penal Code as follows:
(1) Except in the Chapter and sections mentioned in sub-ss (2) and (3), the word ‘offence’ denotes a thing made punishable by this Code.
(2) In Chapter IV and in ss 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 289 and 445, the word ‘offence’ denotes a thing punishable under this Code or under any other law for the time being in force.
(3) In ss 141, 176, 177, 201, 202, 212, 216 and 441, the word ‘offence’ has the same meaning when the thing punishable under any other law for the time being in force is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.
The general rule as provided by s 40(1) is that a reference to the word ‘offence’ is a reference to an offence under the Penal Code only. Section 165, being a Penal Code offence, falls within this category and s 120B(1) can therefore be read with it. It therefore qualifies as an extradition offence within the meaning of s 6(2)(b) of the Act. The corruption charges are clearly not made punishable under the Penal Code. On the application of the general rule the corruption charges would therefore not fall under s 120B(1) of the Penal Code. However, there are exceptions to the general rule as provided by sub-ss (2) and (3) of s 40 pursuant to which the word ‘offence’ also includes a thing punishable under any other law. If therefore s 120B(1) of the Penal Code falls within these exceptions then a conspiracy to commit the corruption charges will be an offence under the section. Unfortunately the exceptions provided in sub-ss (2) and (3) of s 40 do not include s 120B of the Penal Code with the result that the corruption charges cannot be read with s 120B(1). It follows that a conspiracy to commit the corruption charges are not offences in Malaysia. I pause to add that in India s 120-B has been included in s 40 of their Penal Code thereby producing a different result. In the circumstances the corruption charges do not qualify as extradition offences as defined under s 6(2)(b) of the Act. Furthermore, s 11(a) of the Anti Corruption Act 1997 is inapplicable as it did not exist at the time of the commission of the Indian corruption offence. I will now consider the particulars of the Malaysian offence of conspiracy to commit an offence under s 165 as it has qualified as an extradition offence. Under s 165 of the Penal Code the elements that require proof are:
(a) that the accused was a public servant at the time of the commission of the offence;
(b) that he accepted or obtained or agreed to accept or attempted to obtain for himself or for someone else, a valuable thing;
(c) which he obtained from the person described in (b); and
(d) that he gave no consideration for it, or that the consideration given was known by him to be inadequate.
The elements that I have enumerated contemplate the existence of an identifiable public servant who has obtained or agreed to obtain a valuable thing. The documents do not reveal the existence of any such person. Thus it is not possible to formulate the particulars of this offence. In the case of the corruption charges even if a conspiracy to commit them is indeed an offence under Malaysian law it is not possible, just as in the case of s 165 of the Penal Code, to identify a public servant who has obtained or agreed to obtain a benefit. As the particulars of the offences cannot be identified the need for charges assume significance. At the end of its submission the prosecution invited the court to make an order, as an alternative solution, for the prosecution to frame and serve the charges and thereby re-open the inquiry. I cannot comply with this request for two reasons. Firstly, I cannot make an order for charges to be framed when I know that it cannot be done in light of the reasons that I have discussed earlier. Secondly, I do not see any reason why I should accede to a request to order a party to do something when that party is unwilling to do it itself. If, on the other hand, the prosecution itself had tendered the charges I would have seriously considered remitting the case back to the sessions court for hearing, subject to submissions by the respondent. But that was not done. The problems encountered in this case could have been avoided if charges had been framed and served.
Without the charges or, in the alternative, proper particulars of the offences, the inquiry before the sessions court just could not have started. In the upshot, it is my view that failure to supply the court and the respondent with the charges is fatal. The ruling made by the learned sessions court judge on the preliminary objection raised by the respondent is therefore correct in law. Accordingly, I confirm the order of discharge made by him and dismiss this application. I must place on record, my deep appreciation to counsel for both parties for their extensive research on the issues involved with an eloquent presentation of the fruits of their labour with graceful charm.
Order accordingly.
Reported by Peter Ling
Tuesday, October 27, 2009
Loh Hee Thuan v Mohd Zani bin Abdullah
[2003] 1 MLJ 213
Loh Hee Thuan v Mohd Zani bin Abdullah
Headnote
Court Details
HIGH COURT (PULAU PINANG) — CIVIL APPEAL NO 12–304 OF 2000
KAMALANATHAN RATNAM J
27 NOVEMBER 2002
Catchwords
Damages (Personal Injury or Death) — Personal injuries — Deduction from award of damages — Assessment of damages — Whether trial judge had erred in making deduction — Whether appellant ought not to have been awarded loss of future earnings as he had not proved that he was in good health — Civil Law Act 1956 s 28A(2)(c)(i)
Words and phrases — ‘proved or admitted’ — Civil Law Act 1956 s 28A(2)(c)(i)
Summary
The appellant’s claim was dismissed with costs in the lower court. The appeal court allowed the appellant’s appeal and apportioned liability as follows: appellant 2/3 liable and the respondent 1/3 liable. This is the appellant’s appeal against the award of damages of the sessions court. The appellant complained that the award was too low. The respondent cross appealed on two issues: (i) that the appellant ought not to have been awarded loss of future earnings as he had not proved that he was in good health as is required to be proved pursuant to s 28A(2)(c)(i) of the Civil Law Act 1956 (‘the Act’); and (ii) if the court was mindful to make the award then a deduction ought to be made pursuant to the Court of Appeal’s decision in Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512.
Holdings
Held, allowing the appellant’s appeal and dismissing the respondent’s cross appeal:
(1) Whilst it was true that the appellant in this case before the court cannot boast of any intellectual achievements, yet there was no doubt that the appellant too must be considered as a conscious sufferer. From what he was to be what he is, to be constantly supervised and cared for and attended to, must certainly have a demoralizing and demeaning effect on the person. The court was of the view that a sum of RM100,000 would constitute a fair award (see p 218B–C); Dr Yusuff bin Haji Mansur v Changkat Jering Sdn Bhd [1997] 5 MLJ 530 followed.
(2) Whilst the court has a discretion to award a sum that is reasonable for hospital bills, the court found that in the special circumstances of this case it was unreasonable to have awarded only one-third the sum. Therefore, the court set aside the award of one-third made by the sessions court and granted the appellant the full claim on hospital bills (see pp 218F, 219B).
(3) The court did not think that the words ‘proved or admitted’ that the appellant was in good health as found in s 28A(2)(c)(i) of the Act must mean that the appellant’s entire personal medical records must be tendered before the court could consider to make an award for loss of future earnings. The fact that he had led a normal life up to the time of the accident and had led evidence that he was ‘receiving earnings by his own labor or other gainful activity before he was injured’ was sufficient to satisfy the requirement of proof as stated in s 28A(2)(c)(i) of the Act (see p 221G–H).
(4) The issue of assessing loss of earnings is fixed. It is only in cases of loss of support that a scaling down needs to be done, such as in dependency cases. The court’s task has been made much simpler in this case since it was the appellant himself who was claiming for his own loss of future earnings. In the circumstances, there was no place in this case for the applicability of the decision in Takong Tabari. The appellant was entitled to his full award of damages without any deduction of one-third (see p 223H–I); Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512 distinguished and Chan Chin Ming & Anor v Lim Yok Eng[1994] 3 MLJ 233 followed.
Bahasa Malaysia summary
Tuntutan perayu ditolak dengan kos di mahkamah bawahan. Mahkamah rayuan telah membenarkan rayuan perayu dan membahagikan liabiliti seperti berikut: perayu menanggung 2/3 liabiliti dan responden menanggung 1/3 liabiliti. Ini adalah rayuan perayu terhadap award ganti rugi mahkamah sesyen. Perayu telah mengadu bahawa award tersebut terlalu rendah. Responden telah membuat rayuan balas berhubung dua persoalan: (i) bahawa perayu tidak sepatutnya diawardkan dengan kehilangan mata pencarian kerana beliau tidak dapat membuktikan bahawa beliau berada dalam keadaan sihat sebagaimana yang perlu dibuktikan menurut s 28A(2)(c)(i) Akta Undang-Undang Sivil 1956 (‘Akta tersebut’); dan (ii) jika mahkamah ingin membuat award maka satu pemotongan patut dibuat menurut keputusan Mahkamah Rayuan dalam Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512.
Bahasa Holdings
Diputuskan, membenarkan rayuan perayu dan menolak tuntutan balas responden:
(1) Meskipun adalah benar bahawa perayu dalam kes ini semasa di hadapan mahkamah tidak bercakap besar tentang apa-apa pencapaian intelektual, tetapi tidak boleh diragukan bahawa perayu juga harus dipertimbangkan sebagai seorang yang sentiasa mengalami penderitaan. Daripada apa beliau sebelumnya dan apa yang beliau telah jadi sekarang, sentiasa perlu diurus dan dijaga, pasti mempunyai kesan yang melemahkan semangat dan merendahkan maruah ke atas seseorang itu. Mahkamah berpendapat bahawa jumlah RM100,000 adalah satu award yang adil (lihat ms 218B–C); Dr Yusuff bin Haji Mansur v Changkat Jering Sdn Bhd [1997] 5 MLJ 530 diikut.
(2) Meskipun mahkamah mempunyai budi bicara untuk mengawardkan satu jumlah yang munasabah untuk bil-bil hospital, mahkamah mendapati bahawa dalam keadaan-keadaan khas kes ini ia adalah tidak munasabah untuk mengawardkan hanya satu pertiga jumlah tersebut. Oleh itu, mahkamah telah mengenepikan award satu pertiga yang dibuat oleh mahkamah sesyen dan membenarkan perayu mendapat tuntuan penuh ke atas bil-bil hospital tersebut (lihat ms 218F, 219B).
(3) Mahkamah tidak berpendapat bahawa perkataan-perkataan ‘proved or admitted’ yang perayu adalah dalam keadaan sihat sebagaimana yang didapati dalam s 28A(2)(c)(i) Akta tersebut membawa maksud bahawa segala laporan peribadi perubatan perayu harus ditenderkan di hadapan mahkamah sebelum mahkamah boleh menimbangkan satu award untuk kehilangan mata pencarian masa hadapan. Hakikat bahawa beliau telah menjalani kehidupan seperti orang biasa sehingga saat kemalangan tersebut dan telah mengemukakan keterangan bahawa beliau ‘receiving earnings by his own labor or other gainful activity before he was injured’ adalah mencukupi untuk memuaskan keperluan pembuktian sebagaimana yang dinyatakan dalam s 28A(2)(c)(i) Akta tersebut (lihat ms 221G–H).
(4) Persoalan tentang menilai kehilangan mata pencarian adalah tetap. Hanya dalam kes kehilangan penyara yang memerlukan pengurangan dibuat, contohnya dalam kes-kes tanggungan. Tugas mahkamah menjadi lebih senang dalam kes ini memandangkan perayu sendiri yang menuntut kehilangan mata pencarian masa hadapan beliau. Dalam keadaan sedemikian, tiada tempat dalam kes ini untuk memakai keputusan dalam Takong Tabari. Perayu berhak untuk mendapat award penuh ke atas ganti rugi tanpa pemotongan sejumlah satu pertiga (lihat ms 233H–I); Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512 dibeza and Chan Chin Ming & Anor v Lim Yok Eng[1994] 3 MLJ 233 diikut.]
Notes
For cases on deduction from award of damages, see 6 Mallal’s Digest (4th Ed, 1997 Reissue) paras 448–449.
Cases referred to
Chong Chee Khong & Anor v Ng Yeow Hin [1997] 5 MLJ 786 (refd)
Dr Yusuff bin Haji Mansur v Changkat Jering Sdn Bhd [1997] 5 MLJ 530 (folld)
Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233 (folld)
Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512 (distd)
Legislation referred to
Civil Law Act 1956 ss 7(3)(iv)(d), 8, 28A(2)(c)(i)
Evidence Act 1950 s 114(g)
Lawyers
Brijnandan Singh Bhar (Brijnandan Singh Bhar & Co) for the appellant.
P Ramanathan (VP Nathan & Partners) for the respondent.
Judgement - Kamalanathan Ratnam J:
Kamalanathan Ratnam J:
Preliminary issues In this case, I heard the plaintiff’s appeal against liability. In the lower court, the plaintiff’s claim was dismissed with costs. On 31 October 2001, I allowed the plaintiff’s appeal and apportioned liability as follows: plaintiff 2/3 liable and the defendant 1/3 liable. This is the plaintiff’s appeal against the award of damages of the sessions court.
At the outset of the hearing of the appeal, Mr Ramanathan for the respondent/defendant intimated that although he was only served with the memorandum of appeal the day before, he was prepared to go on with the hearing of the appeal provided Mr Brijnandan for the appellant agreed to the respondent’s oral application to cross appeal on two issues:
(i) that the plaintiff ought not to have been awarded loss of future earnings as he had not proved that he was in good health as is required to be proved pursuant to s 28A(2)(c)(i) of the Civil Law Act 1956 (‘the Act’); and
(ii if the court was mindful to make the award then a deduction ought to be made pursuant to the Court of Appeal’s decision in Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512.
Mr Brijnandan readily agreed and also informed the court, that he was also ready to respond to the two issues raised by Mr Ramanathan.
General damages for pain & suffering
The sessions court judge awarded a sum of RM66,000 for the head injuries which he classified as follows:
(i) cerebral contusion — RM3,000.
(ii) multiple contusions in the right temporal parietal and occipital region — RM3,000.
(iii) cystic encephalomalacia with gliosis, moderate atrophy at the left frontal and temporal lobes and diffuse brain atrophy resulting in slurred speech, inability to walk normally, inability to run and could fall easily with a chance of developing post-trauma epilepsy — RM60,000.
Mr Brijnandan complains that this award of RM66,000 is too low. On the date of the accident, ie 30 January 1996, the plaintiff was admitted to Hospital Seberang Prai. His Glasgow Coma Score (‘GCS’) on admission was 4/15. In 1974, Teasdale and Jennett in Glasgow, developed a system for conscious level assessment. They discarded vague terms such as stupor, semicoma and deep coma, and instead described conscious level in terms of eye opening, verbal response, and motor response. The GCS is now used widely and in many hospitals throughout the world. Recording is consistent irrespective of the status of the observer and can be carried out just as reliably by a nurse as by a neurosurgeon. A score may be applied to each category of the grading system and the total sum to give an overall value ranging from three to fourteen. For example, if there is no eye opening, no vertical response and extending to pain a score of four is given (see Neurology and Neurosurgery Illustrated (3rd Ed) by Churchill Livingstone). With this background, it is necessary to see the first medical report from Hospital Seberang Jaya. His GCS had improved from four to 10/15. He was however immediately sent to General Hospital, Pulau Pinang. Whilst there his GCS improved to 14/15. He was then readmitted to Hospital Seberang Prai. From here he was sent to Hospital Bukit Mertajam for nursing care. Whilst here he collapsed and developed sudden onset of shortness of breath and his GCS came down to 3/15. His family immediately discharged him and had him admitted to Loh Guan Lye Specialist Centre (‘Specialist Centre’) where the consultant neurosurgeon stated that when the patient was admitted to the Specialist’s Centre he had been unconscious since the accident. Since the defendant had not referred the patient to a specialist of his choice and since this aspect of the factual finding of the neurosurgeon had not been challenged, I find that the patient had indeed been unconscious for 11 days since he was admitted to the Specialist Centre on 11 February 1996.
The neurosurgeon’s final assessment was that the plaintiff has now a change of character and behaviour in that he is now an entirely different person. He has very poor memory and is unable to remember the names of his very close friends. He is aggressive, easily angered and is unable to tolerate children whereas in the past he used to take care of children.
Presently he is unable to do anything at home. He is unable to walk normally and is unable to run. He is unstable and may fall easily. He suffers giddiness when there is a change of position. His right hand shakes when he holds anything. He is unable to read or write properly. He has slurred speech and is unable to talk normally and his speech is not understandable. He is also unable to work. He has diffuse brain atrophy. He had multiple haemorrhage contusion of the brain in both hemisphere. The specialist was of the view that these disabilities are permanent and that he cannot recover surgically or medically.
Counsel for the appellant referred me to the case of Dr Yusuff bin Hj Mansur v Changkat Jering Sdn Bhd & Anor [1997] 5 MLJ 530. The plaintiff there complained that he was in a depressive state when he started teaching at the University as he was unable to function satisfactorily. Amongst other things he had difficulty in concentration, there was loss of intellectual and cognitive functioning, he showed impairment in reasoned logical thinking and had an impaired ability to plan and organize tasks.
Whilst the learned senior assistant registrar had awarded RM60,000, on appeal Mohd Noor Ahmad J (as he then was) raised the award of damages to RM110,000 on the basis that whilst the plaintiff was not a mere vegetable he was a conscious sufferer. In that condition it would be particularly painful and distressing for a person such as the plaintiff with his intellectual achievements to find himself in the condition he was now in, especially to be incapable of any intellectual work. Whilst it is true that the plaintiff in the case before me cannot boast of any such intellectual achievements as Dr Yusuff, yet there is no doubt in my mind that the plaintiff too must be considered as a conscious sufferer. From what he was to be what he is, to be constantly supervised and cared for and attended to, must certainly have a demoralizing and demeaning effect on the person. I am of the view that a sum of RM100,000 would constitute a fair award under this head.
Claim for loss of interest in sex and impotency
On this issue I found no evidence in the medical reports to substantiate such a claim. Mr Brijnandan with his usual candour, admitted that there was no such medical evidence. However, he contended that the evidence of the husband and corroborated by the evidence of the wife would be sufficient to back up this claim. When I pointed out that such evidence was self-supporting and was insufficient without corroborative independent medical opinion Mr Brijnandan withdrew this claim.
Was the court correct in awarding only one-third of the hospital bills
The total hospital bill at Loh Guan Lye Specialist Centre amounted to RM5,819.95. Counsel for the defendant argued that the onus is upon the plaintiff to show that the Hospital Bukit Mertajam was incompetent to handle the situation. I do not think it is a question of incompetence. Every government hospital has adequate facilities and trained doctors. The question is not one of incompetence as the facts of this case will unfold. Whilst the court has a discretion to award a sum that is reasonable, I find that in the special circumstances of this case it was unreasonable to have awarded only one-third of the sum. There is evidence that on admission initially to Hospital Seberang Jaya, the plaintiff was immediately sent to the General Hospital, Pulau Pinang. Obviously, this would have indicated to the plaintiff’s family that the plaintiff’s injuries were indeed serious enough to warrant immediate transfer to the main hospital in Penang. After a few days, he was then re-admitted to Hospital Seberang Prai. From there, he was readmitted to Hospital Bukit Mertajam and as the medical report says, for nursing care. Whilst at this hospital, he collapsed and developed sudden onset of shortness of breath and most important of all, his GCS score came down from about normal 14/15 to 3/15. Is it any wonder that the plaintiff’s family members decided to immediately take the plaintiff to a private Specialist Centre for special medical treatment? Bearing in mind that the plaintiff was sent to Hospital Bukit Mertajam for nursing care, his sudden collapse and the lowering of his GCS to 3/15 must have frightened the family members into thinking that the plaintiff was not getting the nursing care he actually needed. What is important is that the family members were put in an apprehension of fear of losing the plaintiff. It is no use being wiser after anything unforetold had happened to the plaintiff. The prompt and caring attention attributed to the plaintiff by his immediate family members ought not to be disregarded. After all the sum is reasonable and not exhorbitant. I therefore set aside the award of one-third made by the sessions court and grant the plaintiff the full claim of RM5,818.95. In any case, there was no challenge by the defence that any of the bills were exhorbitant. They admitted to the entire bills. The only issue was whether the total sum was reasonable.
Insufficient award for future loss
It is not in dispute that the plaintiff was a salted-fish seller. He submitted his income tax J Form for year of assessment 1995 which showed his total earnings as amounting to RM14,876 thus averaging RM1,240 per month. Under cross-examination the only question asked of the plaintiff was as follows:
Q: Encik pasti dapat RM1,000 sebulan.
A: Saya pasti.
In addition, the plaintiff called his tax manager (‘SP7’) who prepared his accounts to be forwarded to the income tax. SP7 testified under cross-examination that he personally prepared the accounts of the plaintiff and that his profits for the year 1995 as shown in the documents amounted to RM15,283. The accident, we know, occurred on 30 January 1996. Mr Ramanathan for the defendant argued that this court ought not to disturb the findings of the trial court in having awarded RM500 per month as loss of income because the J Form produced was for year of assessment 1995 which meant that it only reflected the earned income of 1994. In support he relied on Chong Chee Khong & Anor v Ng Yeow Hin [1997] 5 MLJ 786. This was a case decided by me and in my view has no relevance to this case. In Chong Chee Kong, I rejected the first plaintiff’s claim that he was subsequently, after the accident, employed by one ‘Exclusive Enterprise’ and was paid RM300 per month. I rejected this evidence on the basis that since the employer was available and was not called to testify, s 114(g) of the Evidence Act 1950 would apply. But by no stretch of the imagination can I apply Chong Chee Khong to the case before me because the plaintiff in this case not only had documentary evidence to prove his claim, he also called his tax manager to testify. In answer to a question from the court, Mr Ramanathan admitted that he did not raise this submission before the session court judge. I must take it therefore that Mr Ramanathan had indeed conceded to this award when he did not avail himself of the opportunity of raising the issue before the trial judge, before whom he ought to have raised any such objection.
I therefore award a sum of RM1,000 per month for the number of years awarded by the sessions court.
No award for nursing care
During the course of his submission, counsel for the plaintiff informed the court that by inadvertence he had omitted to include in his memorandum of appeal this fifth ground, praying for nursing care which was rejected by the sessions court. Whilst I pointed out to Mr Brijnandan that since he had not included this prayer in his memorandum I would not, in all fairness to the defence, allow this. I was extremely surprised when Mr Ramanathan interjected to say that he had no objection to this prayer being included as he was ready to argue that the learned sessions court judge was right in dismissing this claim. With such a concession, I agree to allow Mr Brijnandan’s oral application to amend the memorandum of appeal.
Mr Brijnandan claimed a sum of RM200 per month as cost of future nursing care for the same number of years of purchase given for future loss of earnings, ie for five years. The plaintiff complains that in his judgment the learned sessions court judge did not give any reason why he did not make any award under this head. He merely said ‘Nursing care tidak dibenarkan’.
Mr Ramanathan argued that this was not an apt case to award cost of nursing care since the medical report did not state that he needed nursing care. The wife testified that whilst the husband is able to walk inside the house she does not allow him outside because of his unstable walk. There is clear medical evidence that after the accident the plaintiff has an unstable walk and has giddiness especially when changing position and the specialist had categorically stated that the plaintiff is unable to walk normally. Obviously, whilst the wife would be able to minister to him, she certainly would have to devote much of her time which she would have otherwise spent on house work, towards attending to her husband. It is fair therefore that the plaintiff be provided with some assistance for the same number of years as has been awarded for loss of future earnings. But what is a fair sum to award? Since the defendant had not made any suggestions, I accept the sum of RM200 suggested by Mr Brijnandan. The plaintiff will therefore have a sum of RM200 per month for five years. There will be no interest on this award.
I now have to consider the cross appeal raised by Mr Ramanathan.
No evidence that plaintiff is in good health
Mr Ramanathan referred me to s 28A(2)(c)(i) of the Act which reads as follows:
(c) in awarding damages for loss of future earnings the court shall take into account:
(i) that in the case of a plaintiff who has attained the age of fifty-five years or above at the time when he was injured, no damages for such loss shall be awarded; and in any other case, damages for such loss shall not be awarded unless it is proved or admitted that the plaintiff was in good health but for the injury and was receiving earnings by his own labor or other gainful activity before he was injured.
Counsel pointed out that the medical reports of the plaintiff showed that prior to the accident, the plaintiff was suffering from diabetes mellitus and hypertension. Whilst there is evidence in the first medical report that the plaintiff had a history of diabetes mellitus, there was no recorded evidence that he was suffering from hypertension. Mr Ramanathan also contended that the plaintiff had pulmonary embolism and also had a stroke. The medical report from General Hospital Pulau Pinang stated that the CT scan showed that there was an old infarct in the right basal ganglia. As for the diabetes, Mr Pandyaraj, a medical specialist from Hospital Seberang Jaya testified that the diabetes was under control because if it was not, the plaintiff would have been referred to the medical side for treatment and in which case he would have recorded this fact in the medical report. He also confirmed that diabetes by itself could not cause contusion of the brain. Contusion could only be caused by trauma such as an accident. As for the old infarct, SP4, the doctor who attended to the plaintiff at Hospital Besar Pulau Pinang, testified that the old infarct could not have caused the residuals sustained by the plaintiff. Finally, SP5 the neurosurgeon who actually attended to the plaintiff testified that the contusion to the brain was not caused by a stroke but by a hard blow to the head such as from a trauma. He further testified that the plaintiff had normal blood pressure and that there was no record of diabetes. He also confirmed that the old infarct had nothing to do with the residuals sustained by the plaintiff.
After Mr Ramanathan had submitted on this issue, I asked him if he had raised all these issues before the learned sessions court judge for his consideration. Mr Ramanathan said that he had not. However, it was his argument that even if he did not do so at the trial stage he was entitled as of right to raise this issue at the appellate stage since an appeal is by way of a rehearing.
On the facts, I find that there is sufficient evidence to show that the plaintiff was leading a normal life before the accident. Whilst the plaintiff’s wife testified that her husband had diabetes, the medical reports and the various doctors’ evidence showed that the plaintiff’s diabetes was well under control. As for the old infarct, there is no reason to doubt the neurosurgeon who testified that the residual defects the plaintiff is undergoing were not due to the old infarct but to injury to the brain caused by the accident.
I do not think that the words ‘proved or admitted’ that the plaintiff was in good health as found in s 28A(2)(c)(i) of the Act must mean that the plaintiff’s entire personal medical records must be tendered before the court could consider to make an award for loss of future earnings. The fact that he had led a normal life up to the time of the accident and had led evidence that he was ‘receiving earnings by his own labor or other gainful activity before he was injured’ is sufficient in my view to satisfy the requirement of proof as stated in s 28A(2)(c)(i) of the Act. But in this case the plaintiff is in an even better position. Since Mr Ramanathan had conceded that he did not raise these issues before the learned sessions court judge, it is my judgment that by his conduct he had ‘admitted’ that the plaintiff was in good health and that such conduct is sufficient in my view to satisfy the requirement of the word ‘admitted’ as stated in s 28A(2)(c)(i) of the Act. The defendant’s cross appeal on this issue must therefore fail.
One-third deduction based on Takong Tabari
In Takong Tabari, the plaintiff’s husband died as a result of ‘inflammable gas escaping and causing explosions’. The plaintiff had claimed damages under ss 7 and 8 of the Act. The trial judge awarded the plaintiff RM270,000 for loss of dependency but from this amount he deducted one-third for contingencies, other vicissitudes of life and accelerated payment thereby leaving a balance of RM180,000 as general damages.
The plaintiff appealed against this decision contending that there should not be any deduction from the total loss of dependency awarded to her and that such a deduction was contrary to law due to proviso (d) of s 7(3)(iv) of the Act and therefore the discretion to deduct a sum for contingencies, other vicissitudes of life and accelerated payment at common law was no longer available because there was already a built-in deduction in the statutory formula itself and that a further deduction was improper.
The Court of Appeal held that it was bound by the decision of the then Supreme Court in Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233 which stated that as a matter of interpretation if Parliament had intended to depart from the general system of law, it would express its intention with irresistible clearness and as proviso (d) to s 7(3)(iv) of the Act lacked such clearness, the common law practice of making deductions for contingencies, other vicissitudes of life and accelerated payments continued to be in force.
It is therefore necessary to reproduce s 7(3)(iv)(d) which reads as follows:
(iv) in assessing the loss of earnings in respect of any period after the death of a person where such earnings provide for or contribute to the damages under this section the court shall:
(a) …
(b) …
(c) …
(d) take into account that in the case of a person who was of the age of thirty years and below at the time of his death, the number of years’ purchase shall be 16; and in the case of any other person who was of the age range extending between thirty one years and fifty four years at the time of his death, the number of years’ purchase shall be calculated by using the figure 55, minus the age of the person at the time of death and dividing the remainder by the figure 2.
In Chan Chin Ming, the mother of an unmarried 25-year-old son claimed for loss of support caused by his death. One of the issues before the court was whether in a claim by a parent for loss of support in respect of an unmarried son, the statutorily fixed number of year’s purchase as set out in s 7(3)(iv)(d) of the Act was applicable. The Supreme Court ruled that the court retained the discretion to reduce the number of years of purchase to a period less than 16 years to provide for contingencies and the contingency considered in Chan Chin Ming was the prospect of the deceased marrying had he not died. The Supreme Court thus reduced the statutorily fixed 16 years to seven years.
It is important to note that in Chan Chin Ming, the Supreme Court said at pp 242–243 as follows:
Let us examine sub-para (d) reproduced above. It deals with first, the assessment of loss of earnings, and not, be it noted, loss of support. They are related to each other but are yet distinctly apart, for it will be remembered that the earnings of the deceased, or the amount of such earnings by the deceased by virtue of his death is merely the starting point in assessing the loss of support sustained by a dependant, before taking account of personal expenses of the deceased and contingencies, see Davies v Powell Duffryn Associated Collieries (No 2) (1942) AC 601 at p 617.
The distinctiveness of the loss of support from the loss of earnings is worth emphasizing once more because it is an indisputable fact that the duration of loss of support sustained by a parent in respect of an unmarried child ordinarily and simply cannot be ever so long as the duration of the loss of support sustained by a widow and the children in respect of her husband, for example. Please see the Federal Court’s decision on this point to the same effect in Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ 153 in which the number of years’ purchase fixed by the court of first instance at 17 years, was reduced to seven years for a mother who claimed similarly as a dependant in respect of her deceased unmarried child. This Federal Court case was decided before sub-para (d) came into force, it should be noted.
Having regard to the state of the general system of the law before the coming into force of sub-para (d) on 1 October 1984, sub-para (d) seems to be tailor-made for a claim by a spouse and children as dependants in respect of a deceased spouse, because under the general system of law, both before and after the enactment of sub-para (d), the duration of a claim for loss of support is usually as long as the deceased’s loss of earnings which would have been earned had the deceased lived.
On the other hand, the state of the general system of law relating to a parent’s claim as a dependant for loss of support in respect of an unmarried child before the enactment of sub-para (d) was that such loss of support would either cease or be reduced considerably on the almost invariable contingency of subsequent marriage of such unmarried child. If the learned judge was right, it would mean that this aspect of the law was swept away or changed.
What can be distilled from these principles is that the issue of assessing loss of earnings is fixed. It’s only in cases of loss of support that a scaling down needs to be done, such as in dependency cases.
My task has been made much simpler in this case since it is the plaintiff himself who is claiming for his own loss of future earnings. In the circumstances, there is no place in this case for the applicability of the decision in Takong Tabari. The plaintiff is entitled to his full award of damages without any deduction of one-third.
Since the appellant/plaintiff had succeeded in his appeal and the respondent having failed on both issues on his cross appeal, I award the appellant the costs of this appeal and the cross appeal.
Appellant’s appeal allowed and respondent’s cross appeal dismissed.
Reported by Peter Ling
Loh Hee Thuan v Mohd Zani bin Abdullah
Headnote
Court Details
HIGH COURT (PULAU PINANG) — CIVIL APPEAL NO 12–304 OF 2000
KAMALANATHAN RATNAM J
27 NOVEMBER 2002
Catchwords
Damages (Personal Injury or Death) — Personal injuries — Deduction from award of damages — Assessment of damages — Whether trial judge had erred in making deduction — Whether appellant ought not to have been awarded loss of future earnings as he had not proved that he was in good health — Civil Law Act 1956 s 28A(2)(c)(i)
Words and phrases — ‘proved or admitted’ — Civil Law Act 1956 s 28A(2)(c)(i)
Summary
The appellant’s claim was dismissed with costs in the lower court. The appeal court allowed the appellant’s appeal and apportioned liability as follows: appellant 2/3 liable and the respondent 1/3 liable. This is the appellant’s appeal against the award of damages of the sessions court. The appellant complained that the award was too low. The respondent cross appealed on two issues: (i) that the appellant ought not to have been awarded loss of future earnings as he had not proved that he was in good health as is required to be proved pursuant to s 28A(2)(c)(i) of the Civil Law Act 1956 (‘the Act’); and (ii) if the court was mindful to make the award then a deduction ought to be made pursuant to the Court of Appeal’s decision in Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512.
Holdings
Held, allowing the appellant’s appeal and dismissing the respondent’s cross appeal:
(1) Whilst it was true that the appellant in this case before the court cannot boast of any intellectual achievements, yet there was no doubt that the appellant too must be considered as a conscious sufferer. From what he was to be what he is, to be constantly supervised and cared for and attended to, must certainly have a demoralizing and demeaning effect on the person. The court was of the view that a sum of RM100,000 would constitute a fair award (see p 218B–C); Dr Yusuff bin Haji Mansur v Changkat Jering Sdn Bhd [1997] 5 MLJ 530 followed.
(2) Whilst the court has a discretion to award a sum that is reasonable for hospital bills, the court found that in the special circumstances of this case it was unreasonable to have awarded only one-third the sum. Therefore, the court set aside the award of one-third made by the sessions court and granted the appellant the full claim on hospital bills (see pp 218F, 219B).
(3) The court did not think that the words ‘proved or admitted’ that the appellant was in good health as found in s 28A(2)(c)(i) of the Act must mean that the appellant’s entire personal medical records must be tendered before the court could consider to make an award for loss of future earnings. The fact that he had led a normal life up to the time of the accident and had led evidence that he was ‘receiving earnings by his own labor or other gainful activity before he was injured’ was sufficient to satisfy the requirement of proof as stated in s 28A(2)(c)(i) of the Act (see p 221G–H).
(4) The issue of assessing loss of earnings is fixed. It is only in cases of loss of support that a scaling down needs to be done, such as in dependency cases. The court’s task has been made much simpler in this case since it was the appellant himself who was claiming for his own loss of future earnings. In the circumstances, there was no place in this case for the applicability of the decision in Takong Tabari. The appellant was entitled to his full award of damages without any deduction of one-third (see p 223H–I); Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512 distinguished and Chan Chin Ming & Anor v Lim Yok Eng[1994] 3 MLJ 233 followed.
Bahasa Malaysia summary
Tuntutan perayu ditolak dengan kos di mahkamah bawahan. Mahkamah rayuan telah membenarkan rayuan perayu dan membahagikan liabiliti seperti berikut: perayu menanggung 2/3 liabiliti dan responden menanggung 1/3 liabiliti. Ini adalah rayuan perayu terhadap award ganti rugi mahkamah sesyen. Perayu telah mengadu bahawa award tersebut terlalu rendah. Responden telah membuat rayuan balas berhubung dua persoalan: (i) bahawa perayu tidak sepatutnya diawardkan dengan kehilangan mata pencarian kerana beliau tidak dapat membuktikan bahawa beliau berada dalam keadaan sihat sebagaimana yang perlu dibuktikan menurut s 28A(2)(c)(i) Akta Undang-Undang Sivil 1956 (‘Akta tersebut’); dan (ii) jika mahkamah ingin membuat award maka satu pemotongan patut dibuat menurut keputusan Mahkamah Rayuan dalam Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512.
Bahasa Holdings
Diputuskan, membenarkan rayuan perayu dan menolak tuntutan balas responden:
(1) Meskipun adalah benar bahawa perayu dalam kes ini semasa di hadapan mahkamah tidak bercakap besar tentang apa-apa pencapaian intelektual, tetapi tidak boleh diragukan bahawa perayu juga harus dipertimbangkan sebagai seorang yang sentiasa mengalami penderitaan. Daripada apa beliau sebelumnya dan apa yang beliau telah jadi sekarang, sentiasa perlu diurus dan dijaga, pasti mempunyai kesan yang melemahkan semangat dan merendahkan maruah ke atas seseorang itu. Mahkamah berpendapat bahawa jumlah RM100,000 adalah satu award yang adil (lihat ms 218B–C); Dr Yusuff bin Haji Mansur v Changkat Jering Sdn Bhd [1997] 5 MLJ 530 diikut.
(2) Meskipun mahkamah mempunyai budi bicara untuk mengawardkan satu jumlah yang munasabah untuk bil-bil hospital, mahkamah mendapati bahawa dalam keadaan-keadaan khas kes ini ia adalah tidak munasabah untuk mengawardkan hanya satu pertiga jumlah tersebut. Oleh itu, mahkamah telah mengenepikan award satu pertiga yang dibuat oleh mahkamah sesyen dan membenarkan perayu mendapat tuntuan penuh ke atas bil-bil hospital tersebut (lihat ms 218F, 219B).
(3) Mahkamah tidak berpendapat bahawa perkataan-perkataan ‘proved or admitted’ yang perayu adalah dalam keadaan sihat sebagaimana yang didapati dalam s 28A(2)(c)(i) Akta tersebut membawa maksud bahawa segala laporan peribadi perubatan perayu harus ditenderkan di hadapan mahkamah sebelum mahkamah boleh menimbangkan satu award untuk kehilangan mata pencarian masa hadapan. Hakikat bahawa beliau telah menjalani kehidupan seperti orang biasa sehingga saat kemalangan tersebut dan telah mengemukakan keterangan bahawa beliau ‘receiving earnings by his own labor or other gainful activity before he was injured’ adalah mencukupi untuk memuaskan keperluan pembuktian sebagaimana yang dinyatakan dalam s 28A(2)(c)(i) Akta tersebut (lihat ms 221G–H).
(4) Persoalan tentang menilai kehilangan mata pencarian adalah tetap. Hanya dalam kes kehilangan penyara yang memerlukan pengurangan dibuat, contohnya dalam kes-kes tanggungan. Tugas mahkamah menjadi lebih senang dalam kes ini memandangkan perayu sendiri yang menuntut kehilangan mata pencarian masa hadapan beliau. Dalam keadaan sedemikian, tiada tempat dalam kes ini untuk memakai keputusan dalam Takong Tabari. Perayu berhak untuk mendapat award penuh ke atas ganti rugi tanpa pemotongan sejumlah satu pertiga (lihat ms 233H–I); Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512 dibeza and Chan Chin Ming & Anor v Lim Yok Eng[1994] 3 MLJ 233 diikut.]
Notes
For cases on deduction from award of damages, see 6 Mallal’s Digest (4th Ed, 1997 Reissue) paras 448–449.
Cases referred to
Chong Chee Khong & Anor v Ng Yeow Hin [1997] 5 MLJ 786 (refd)
Dr Yusuff bin Haji Mansur v Changkat Jering Sdn Bhd [1997] 5 MLJ 530 (folld)
Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233 (folld)
Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512 (distd)
Legislation referred to
Civil Law Act 1956 ss 7(3)(iv)(d), 8, 28A(2)(c)(i)
Evidence Act 1950 s 114(g)
Lawyers
Brijnandan Singh Bhar (Brijnandan Singh Bhar & Co) for the appellant.
P Ramanathan (VP Nathan & Partners) for the respondent.
Judgement - Kamalanathan Ratnam J:
Kamalanathan Ratnam J:
Preliminary issues In this case, I heard the plaintiff’s appeal against liability. In the lower court, the plaintiff’s claim was dismissed with costs. On 31 October 2001, I allowed the plaintiff’s appeal and apportioned liability as follows: plaintiff 2/3 liable and the defendant 1/3 liable. This is the plaintiff’s appeal against the award of damages of the sessions court.
At the outset of the hearing of the appeal, Mr Ramanathan for the respondent/defendant intimated that although he was only served with the memorandum of appeal the day before, he was prepared to go on with the hearing of the appeal provided Mr Brijnandan for the appellant agreed to the respondent’s oral application to cross appeal on two issues:
(i) that the plaintiff ought not to have been awarded loss of future earnings as he had not proved that he was in good health as is required to be proved pursuant to s 28A(2)(c)(i) of the Civil Law Act 1956 (‘the Act’); and
(ii if the court was mindful to make the award then a deduction ought to be made pursuant to the Court of Appeal’s decision in Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512.
Mr Brijnandan readily agreed and also informed the court, that he was also ready to respond to the two issues raised by Mr Ramanathan.
General damages for pain & suffering
The sessions court judge awarded a sum of RM66,000 for the head injuries which he classified as follows:
(i) cerebral contusion — RM3,000.
(ii) multiple contusions in the right temporal parietal and occipital region — RM3,000.
(iii) cystic encephalomalacia with gliosis, moderate atrophy at the left frontal and temporal lobes and diffuse brain atrophy resulting in slurred speech, inability to walk normally, inability to run and could fall easily with a chance of developing post-trauma epilepsy — RM60,000.
Mr Brijnandan complains that this award of RM66,000 is too low. On the date of the accident, ie 30 January 1996, the plaintiff was admitted to Hospital Seberang Prai. His Glasgow Coma Score (‘GCS’) on admission was 4/15. In 1974, Teasdale and Jennett in Glasgow, developed a system for conscious level assessment. They discarded vague terms such as stupor, semicoma and deep coma, and instead described conscious level in terms of eye opening, verbal response, and motor response. The GCS is now used widely and in many hospitals throughout the world. Recording is consistent irrespective of the status of the observer and can be carried out just as reliably by a nurse as by a neurosurgeon. A score may be applied to each category of the grading system and the total sum to give an overall value ranging from three to fourteen. For example, if there is no eye opening, no vertical response and extending to pain a score of four is given (see Neurology and Neurosurgery Illustrated (3rd Ed) by Churchill Livingstone). With this background, it is necessary to see the first medical report from Hospital Seberang Jaya. His GCS had improved from four to 10/15. He was however immediately sent to General Hospital, Pulau Pinang. Whilst there his GCS improved to 14/15. He was then readmitted to Hospital Seberang Prai. From here he was sent to Hospital Bukit Mertajam for nursing care. Whilst here he collapsed and developed sudden onset of shortness of breath and his GCS came down to 3/15. His family immediately discharged him and had him admitted to Loh Guan Lye Specialist Centre (‘Specialist Centre’) where the consultant neurosurgeon stated that when the patient was admitted to the Specialist’s Centre he had been unconscious since the accident. Since the defendant had not referred the patient to a specialist of his choice and since this aspect of the factual finding of the neurosurgeon had not been challenged, I find that the patient had indeed been unconscious for 11 days since he was admitted to the Specialist Centre on 11 February 1996.
The neurosurgeon’s final assessment was that the plaintiff has now a change of character and behaviour in that he is now an entirely different person. He has very poor memory and is unable to remember the names of his very close friends. He is aggressive, easily angered and is unable to tolerate children whereas in the past he used to take care of children.
Presently he is unable to do anything at home. He is unable to walk normally and is unable to run. He is unstable and may fall easily. He suffers giddiness when there is a change of position. His right hand shakes when he holds anything. He is unable to read or write properly. He has slurred speech and is unable to talk normally and his speech is not understandable. He is also unable to work. He has diffuse brain atrophy. He had multiple haemorrhage contusion of the brain in both hemisphere. The specialist was of the view that these disabilities are permanent and that he cannot recover surgically or medically.
Counsel for the appellant referred me to the case of Dr Yusuff bin Hj Mansur v Changkat Jering Sdn Bhd & Anor [1997] 5 MLJ 530. The plaintiff there complained that he was in a depressive state when he started teaching at the University as he was unable to function satisfactorily. Amongst other things he had difficulty in concentration, there was loss of intellectual and cognitive functioning, he showed impairment in reasoned logical thinking and had an impaired ability to plan and organize tasks.
Whilst the learned senior assistant registrar had awarded RM60,000, on appeal Mohd Noor Ahmad J (as he then was) raised the award of damages to RM110,000 on the basis that whilst the plaintiff was not a mere vegetable he was a conscious sufferer. In that condition it would be particularly painful and distressing for a person such as the plaintiff with his intellectual achievements to find himself in the condition he was now in, especially to be incapable of any intellectual work. Whilst it is true that the plaintiff in the case before me cannot boast of any such intellectual achievements as Dr Yusuff, yet there is no doubt in my mind that the plaintiff too must be considered as a conscious sufferer. From what he was to be what he is, to be constantly supervised and cared for and attended to, must certainly have a demoralizing and demeaning effect on the person. I am of the view that a sum of RM100,000 would constitute a fair award under this head.
Claim for loss of interest in sex and impotency
On this issue I found no evidence in the medical reports to substantiate such a claim. Mr Brijnandan with his usual candour, admitted that there was no such medical evidence. However, he contended that the evidence of the husband and corroborated by the evidence of the wife would be sufficient to back up this claim. When I pointed out that such evidence was self-supporting and was insufficient without corroborative independent medical opinion Mr Brijnandan withdrew this claim.
Was the court correct in awarding only one-third of the hospital bills
The total hospital bill at Loh Guan Lye Specialist Centre amounted to RM5,819.95. Counsel for the defendant argued that the onus is upon the plaintiff to show that the Hospital Bukit Mertajam was incompetent to handle the situation. I do not think it is a question of incompetence. Every government hospital has adequate facilities and trained doctors. The question is not one of incompetence as the facts of this case will unfold. Whilst the court has a discretion to award a sum that is reasonable, I find that in the special circumstances of this case it was unreasonable to have awarded only one-third of the sum. There is evidence that on admission initially to Hospital Seberang Jaya, the plaintiff was immediately sent to the General Hospital, Pulau Pinang. Obviously, this would have indicated to the plaintiff’s family that the plaintiff’s injuries were indeed serious enough to warrant immediate transfer to the main hospital in Penang. After a few days, he was then re-admitted to Hospital Seberang Prai. From there, he was readmitted to Hospital Bukit Mertajam and as the medical report says, for nursing care. Whilst at this hospital, he collapsed and developed sudden onset of shortness of breath and most important of all, his GCS score came down from about normal 14/15 to 3/15. Is it any wonder that the plaintiff’s family members decided to immediately take the plaintiff to a private Specialist Centre for special medical treatment? Bearing in mind that the plaintiff was sent to Hospital Bukit Mertajam for nursing care, his sudden collapse and the lowering of his GCS to 3/15 must have frightened the family members into thinking that the plaintiff was not getting the nursing care he actually needed. What is important is that the family members were put in an apprehension of fear of losing the plaintiff. It is no use being wiser after anything unforetold had happened to the plaintiff. The prompt and caring attention attributed to the plaintiff by his immediate family members ought not to be disregarded. After all the sum is reasonable and not exhorbitant. I therefore set aside the award of one-third made by the sessions court and grant the plaintiff the full claim of RM5,818.95. In any case, there was no challenge by the defence that any of the bills were exhorbitant. They admitted to the entire bills. The only issue was whether the total sum was reasonable.
Insufficient award for future loss
It is not in dispute that the plaintiff was a salted-fish seller. He submitted his income tax J Form for year of assessment 1995 which showed his total earnings as amounting to RM14,876 thus averaging RM1,240 per month. Under cross-examination the only question asked of the plaintiff was as follows:
Q: Encik pasti dapat RM1,000 sebulan.
A: Saya pasti.
In addition, the plaintiff called his tax manager (‘SP7’) who prepared his accounts to be forwarded to the income tax. SP7 testified under cross-examination that he personally prepared the accounts of the plaintiff and that his profits for the year 1995 as shown in the documents amounted to RM15,283. The accident, we know, occurred on 30 January 1996. Mr Ramanathan for the defendant argued that this court ought not to disturb the findings of the trial court in having awarded RM500 per month as loss of income because the J Form produced was for year of assessment 1995 which meant that it only reflected the earned income of 1994. In support he relied on Chong Chee Khong & Anor v Ng Yeow Hin [1997] 5 MLJ 786. This was a case decided by me and in my view has no relevance to this case. In Chong Chee Kong, I rejected the first plaintiff’s claim that he was subsequently, after the accident, employed by one ‘Exclusive Enterprise’ and was paid RM300 per month. I rejected this evidence on the basis that since the employer was available and was not called to testify, s 114(g) of the Evidence Act 1950 would apply. But by no stretch of the imagination can I apply Chong Chee Khong to the case before me because the plaintiff in this case not only had documentary evidence to prove his claim, he also called his tax manager to testify. In answer to a question from the court, Mr Ramanathan admitted that he did not raise this submission before the session court judge. I must take it therefore that Mr Ramanathan had indeed conceded to this award when he did not avail himself of the opportunity of raising the issue before the trial judge, before whom he ought to have raised any such objection.
I therefore award a sum of RM1,000 per month for the number of years awarded by the sessions court.
No award for nursing care
During the course of his submission, counsel for the plaintiff informed the court that by inadvertence he had omitted to include in his memorandum of appeal this fifth ground, praying for nursing care which was rejected by the sessions court. Whilst I pointed out to Mr Brijnandan that since he had not included this prayer in his memorandum I would not, in all fairness to the defence, allow this. I was extremely surprised when Mr Ramanathan interjected to say that he had no objection to this prayer being included as he was ready to argue that the learned sessions court judge was right in dismissing this claim. With such a concession, I agree to allow Mr Brijnandan’s oral application to amend the memorandum of appeal.
Mr Brijnandan claimed a sum of RM200 per month as cost of future nursing care for the same number of years of purchase given for future loss of earnings, ie for five years. The plaintiff complains that in his judgment the learned sessions court judge did not give any reason why he did not make any award under this head. He merely said ‘Nursing care tidak dibenarkan’.
Mr Ramanathan argued that this was not an apt case to award cost of nursing care since the medical report did not state that he needed nursing care. The wife testified that whilst the husband is able to walk inside the house she does not allow him outside because of his unstable walk. There is clear medical evidence that after the accident the plaintiff has an unstable walk and has giddiness especially when changing position and the specialist had categorically stated that the plaintiff is unable to walk normally. Obviously, whilst the wife would be able to minister to him, she certainly would have to devote much of her time which she would have otherwise spent on house work, towards attending to her husband. It is fair therefore that the plaintiff be provided with some assistance for the same number of years as has been awarded for loss of future earnings. But what is a fair sum to award? Since the defendant had not made any suggestions, I accept the sum of RM200 suggested by Mr Brijnandan. The plaintiff will therefore have a sum of RM200 per month for five years. There will be no interest on this award.
I now have to consider the cross appeal raised by Mr Ramanathan.
No evidence that plaintiff is in good health
Mr Ramanathan referred me to s 28A(2)(c)(i) of the Act which reads as follows:
(c) in awarding damages for loss of future earnings the court shall take into account:
(i) that in the case of a plaintiff who has attained the age of fifty-five years or above at the time when he was injured, no damages for such loss shall be awarded; and in any other case, damages for such loss shall not be awarded unless it is proved or admitted that the plaintiff was in good health but for the injury and was receiving earnings by his own labor or other gainful activity before he was injured.
Counsel pointed out that the medical reports of the plaintiff showed that prior to the accident, the plaintiff was suffering from diabetes mellitus and hypertension. Whilst there is evidence in the first medical report that the plaintiff had a history of diabetes mellitus, there was no recorded evidence that he was suffering from hypertension. Mr Ramanathan also contended that the plaintiff had pulmonary embolism and also had a stroke. The medical report from General Hospital Pulau Pinang stated that the CT scan showed that there was an old infarct in the right basal ganglia. As for the diabetes, Mr Pandyaraj, a medical specialist from Hospital Seberang Jaya testified that the diabetes was under control because if it was not, the plaintiff would have been referred to the medical side for treatment and in which case he would have recorded this fact in the medical report. He also confirmed that diabetes by itself could not cause contusion of the brain. Contusion could only be caused by trauma such as an accident. As for the old infarct, SP4, the doctor who attended to the plaintiff at Hospital Besar Pulau Pinang, testified that the old infarct could not have caused the residuals sustained by the plaintiff. Finally, SP5 the neurosurgeon who actually attended to the plaintiff testified that the contusion to the brain was not caused by a stroke but by a hard blow to the head such as from a trauma. He further testified that the plaintiff had normal blood pressure and that there was no record of diabetes. He also confirmed that the old infarct had nothing to do with the residuals sustained by the plaintiff.
After Mr Ramanathan had submitted on this issue, I asked him if he had raised all these issues before the learned sessions court judge for his consideration. Mr Ramanathan said that he had not. However, it was his argument that even if he did not do so at the trial stage he was entitled as of right to raise this issue at the appellate stage since an appeal is by way of a rehearing.
On the facts, I find that there is sufficient evidence to show that the plaintiff was leading a normal life before the accident. Whilst the plaintiff’s wife testified that her husband had diabetes, the medical reports and the various doctors’ evidence showed that the plaintiff’s diabetes was well under control. As for the old infarct, there is no reason to doubt the neurosurgeon who testified that the residual defects the plaintiff is undergoing were not due to the old infarct but to injury to the brain caused by the accident.
I do not think that the words ‘proved or admitted’ that the plaintiff was in good health as found in s 28A(2)(c)(i) of the Act must mean that the plaintiff’s entire personal medical records must be tendered before the court could consider to make an award for loss of future earnings. The fact that he had led a normal life up to the time of the accident and had led evidence that he was ‘receiving earnings by his own labor or other gainful activity before he was injured’ is sufficient in my view to satisfy the requirement of proof as stated in s 28A(2)(c)(i) of the Act. But in this case the plaintiff is in an even better position. Since Mr Ramanathan had conceded that he did not raise these issues before the learned sessions court judge, it is my judgment that by his conduct he had ‘admitted’ that the plaintiff was in good health and that such conduct is sufficient in my view to satisfy the requirement of the word ‘admitted’ as stated in s 28A(2)(c)(i) of the Act. The defendant’s cross appeal on this issue must therefore fail.
One-third deduction based on Takong Tabari
In Takong Tabari, the plaintiff’s husband died as a result of ‘inflammable gas escaping and causing explosions’. The plaintiff had claimed damages under ss 7 and 8 of the Act. The trial judge awarded the plaintiff RM270,000 for loss of dependency but from this amount he deducted one-third for contingencies, other vicissitudes of life and accelerated payment thereby leaving a balance of RM180,000 as general damages.
The plaintiff appealed against this decision contending that there should not be any deduction from the total loss of dependency awarded to her and that such a deduction was contrary to law due to proviso (d) of s 7(3)(iv) of the Act and therefore the discretion to deduct a sum for contingencies, other vicissitudes of life and accelerated payment at common law was no longer available because there was already a built-in deduction in the statutory formula itself and that a further deduction was improper.
The Court of Appeal held that it was bound by the decision of the then Supreme Court in Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233 which stated that as a matter of interpretation if Parliament had intended to depart from the general system of law, it would express its intention with irresistible clearness and as proviso (d) to s 7(3)(iv) of the Act lacked such clearness, the common law practice of making deductions for contingencies, other vicissitudes of life and accelerated payments continued to be in force.
It is therefore necessary to reproduce s 7(3)(iv)(d) which reads as follows:
(iv) in assessing the loss of earnings in respect of any period after the death of a person where such earnings provide for or contribute to the damages under this section the court shall:
(a) …
(b) …
(c) …
(d) take into account that in the case of a person who was of the age of thirty years and below at the time of his death, the number of years’ purchase shall be 16; and in the case of any other person who was of the age range extending between thirty one years and fifty four years at the time of his death, the number of years’ purchase shall be calculated by using the figure 55, minus the age of the person at the time of death and dividing the remainder by the figure 2.
In Chan Chin Ming, the mother of an unmarried 25-year-old son claimed for loss of support caused by his death. One of the issues before the court was whether in a claim by a parent for loss of support in respect of an unmarried son, the statutorily fixed number of year’s purchase as set out in s 7(3)(iv)(d) of the Act was applicable. The Supreme Court ruled that the court retained the discretion to reduce the number of years of purchase to a period less than 16 years to provide for contingencies and the contingency considered in Chan Chin Ming was the prospect of the deceased marrying had he not died. The Supreme Court thus reduced the statutorily fixed 16 years to seven years.
It is important to note that in Chan Chin Ming, the Supreme Court said at pp 242–243 as follows:
Let us examine sub-para (d) reproduced above. It deals with first, the assessment of loss of earnings, and not, be it noted, loss of support. They are related to each other but are yet distinctly apart, for it will be remembered that the earnings of the deceased, or the amount of such earnings by the deceased by virtue of his death is merely the starting point in assessing the loss of support sustained by a dependant, before taking account of personal expenses of the deceased and contingencies, see Davies v Powell Duffryn Associated Collieries (No 2) (1942) AC 601 at p 617.
The distinctiveness of the loss of support from the loss of earnings is worth emphasizing once more because it is an indisputable fact that the duration of loss of support sustained by a parent in respect of an unmarried child ordinarily and simply cannot be ever so long as the duration of the loss of support sustained by a widow and the children in respect of her husband, for example. Please see the Federal Court’s decision on this point to the same effect in Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ 153 in which the number of years’ purchase fixed by the court of first instance at 17 years, was reduced to seven years for a mother who claimed similarly as a dependant in respect of her deceased unmarried child. This Federal Court case was decided before sub-para (d) came into force, it should be noted.
Having regard to the state of the general system of the law before the coming into force of sub-para (d) on 1 October 1984, sub-para (d) seems to be tailor-made for a claim by a spouse and children as dependants in respect of a deceased spouse, because under the general system of law, both before and after the enactment of sub-para (d), the duration of a claim for loss of support is usually as long as the deceased’s loss of earnings which would have been earned had the deceased lived.
On the other hand, the state of the general system of law relating to a parent’s claim as a dependant for loss of support in respect of an unmarried child before the enactment of sub-para (d) was that such loss of support would either cease or be reduced considerably on the almost invariable contingency of subsequent marriage of such unmarried child. If the learned judge was right, it would mean that this aspect of the law was swept away or changed.
What can be distilled from these principles is that the issue of assessing loss of earnings is fixed. It’s only in cases of loss of support that a scaling down needs to be done, such as in dependency cases.
My task has been made much simpler in this case since it is the plaintiff himself who is claiming for his own loss of future earnings. In the circumstances, there is no place in this case for the applicability of the decision in Takong Tabari. The plaintiff is entitled to his full award of damages without any deduction of one-third.
Since the appellant/plaintiff had succeeded in his appeal and the respondent having failed on both issues on his cross appeal, I award the appellant the costs of this appeal and the cross appeal.
Appellant’s appeal allowed and respondent’s cross appeal dismissed.
Reported by Peter Ling
Subscribe to:
Posts (Atom)
Posts
