tag:blogger.com,1999:blog-23223244677019675842024-03-19T00:37:11.665-07:00Malaysian Case LawRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.comBlogger35125tag:blogger.com,1999:blog-2322324467701967584.post-31101639824990831232023-02-06T19:45:00.001-08:002023-02-06T19:45:48.779-08:00<p> <span style="background-color: #f7f7f8; color: #374151; font-family: Söhne, ui-sans-serif, system-ui, -apple-system, "Segoe UI", Roboto, Ubuntu, Cantarell, "Noto Sans", sans-serif, "Helvetica Neue", Arial, "Apple Color Emoji", "Segoe UI Emoji", "Segoe UI Symbol", "Noto Color Emoji"; font-size: 16px; white-space: pre-wrap;">As technology continues to play an increasingly important role in our daily lives, the need for lawyers with expertise in cyber law is growing. The increasing reliance on the internet and digital devices has given rise to a range of legal issues related to data privacy, cybercrime, and online disputes. In this context, it is becoming increasingly important for lawyers to have a deep understanding of the legal and technical aspects of these issues.</span></p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-family: Söhne, ui-sans-serif, system-ui, -apple-system, "Segoe UI", Roboto, Ubuntu, Cantarell, "Noto Sans", sans-serif, "Helvetica Neue", Arial, "Apple Color Emoji", "Segoe UI Emoji", "Segoe UI Symbol", "Noto Color Emoji"; font-size: 16px; margin: 1.25em 0px; white-space: pre-wrap;">One of the key reasons why lawyers need to focus on cyber law now is the growing number of cybercrime cases. In recent years, the number of cyber attacks has increased dramatically, and these attacks can have serious consequences for individuals and businesses. Cybercrime can result in the theft of sensitive information, financial losses, and reputational damage. Lawyers who specialize in cyber law are well positioned to help their clients navigate these complex legal issues and ensure that their rights and interests are protected.</p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-family: Söhne, ui-sans-serif, system-ui, -apple-system, "Segoe UI", Roboto, Ubuntu, Cantarell, "Noto Sans", sans-serif, "Helvetica Neue", Arial, "Apple Color Emoji", "Segoe UI Emoji", "Segoe UI Symbol", "Noto Color Emoji"; font-size: 16px; margin: 1.25em 0px; white-space: pre-wrap;">Another reason why lawyers need to focus on cyber law is the increasing importance of data privacy. With the rise of big data and the collection of vast amounts of personal information by companies, privacy concerns have become a top priority for many individuals and businesses. Lawyers who specialize in cyber law can advise their clients on the various legal and regulatory requirements related to data privacy, and help them navigate the complex landscape of privacy laws and regulations.</p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-family: Söhne, ui-sans-serif, system-ui, -apple-system, "Segoe UI", Roboto, Ubuntu, Cantarell, "Noto Sans", sans-serif, "Helvetica Neue", Arial, "Apple Color Emoji", "Segoe UI Emoji", "Segoe UI Symbol", "Noto Color Emoji"; font-size: 16px; margin: 1.25em 0px; white-space: pre-wrap;">In addition to the growing demand for lawyers with expertise in cyber law, this area of practice is also becoming increasingly lucrative. As businesses and individuals become more aware of the need for legal protection in the digital age, they are willing to pay premium fees for legal services that can help them protect their interests and mitigate the risks associated with technology.</p><p style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; background-color: #f7f7f8; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: #374151; font-family: Söhne, ui-sans-serif, system-ui, -apple-system, "Segoe UI", Roboto, Ubuntu, Cantarell, "Noto Sans", sans-serif, "Helvetica Neue", Arial, "Apple Color Emoji", "Segoe UI Emoji", "Segoe UI Symbol", "Noto Color Emoji"; font-size: 16px; margin: 1.25em 0px 0px; white-space: pre-wrap;">Finally, it is important to note that cyber law is a rapidly evolving field. As technology continues to evolve and new legal issues emerge, lawyers who specialize in cyber law will need to stay up-to-date with the latest developments and changes in the law.</p>Raghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-86555881570767072452023-02-06T19:36:00.000-08:002023-02-06T19:36:22.013-08:00<p> <b><span color="var(--tw-prose-body)" face="Söhne, ui-sans-serif, system-ui, -apple-system, "Segoe UI", Roboto, Ubuntu, Cantarell, "Noto Sans", sans-serif, "Helvetica Neue", Arial, "Apple Color Emoji", "Segoe UI Emoji", "Segoe UI Symbol", "Noto Color Emoji"" style="font-size: 1rem; white-space: pre-wrap;">The Legal Landscape of the Digital Age:</span><span color="var(--tw-prose-body)" face="Söhne, ui-sans-serif, system-ui, -apple-system, "Segoe UI", Roboto, Ubuntu, Cantarell, "Noto Sans", sans-serif, "Helvetica Neue", Arial, "Apple Color Emoji", "Segoe UI Emoji", "Segoe UI Symbol", "Noto Color Emoji"" style="font-size: 1rem; white-space: pre-wrap;"> Why Lawyers Need to Focus on Cyber Law Now</span></b></p><p><span style="font-family: Söhne, ui-sans-serif, system-ui, -apple-system, "Segoe UI", Roboto, Ubuntu, Cantarell, "Noto Sans", sans-serif, "Helvetica Neue", Arial, "Apple Color Emoji", "Segoe UI Emoji", "Segoe UI Symbol", "Noto Color Emoji"; font-size: 1rem; white-space: pre-wrap;">As technology continues to advance and our reliance on the internet grows, the need for lawyers who specialize in cyber law has never been greater. In today's digital age, it is increasingly common for businesses and individuals to encounter legal issues related to the use of technology and the internet. These issues, which can range from data privacy concerns to cybercrime and online disputes, require a deep understanding of the legal and technical aspects of the online world.</span></p><p><span style="font-family: Söhne, ui-sans-serif, system-ui, -apple-system, "Segoe UI", Roboto, Ubuntu, Cantarell, "Noto Sans", sans-serif, "Helvetica Neue", Arial, "Apple Color Emoji", "Segoe UI Emoji", "Segoe UI Symbol", "Noto Color Emoji"; font-size: 1rem; white-space: pre-wrap;">Cyber law is a rapidly evolving field, and staying up-to-date with developments and changes in the law will be crucial for lawyers who specialize in this area. From the increasing use of cloud computing and the Internet of Things (IoT) to the widespread adoption of social media and the rise of e-commerce, there are many new challenges and opportunities in the world of cyber law.</span></p><p><span style="font-family: Söhne, ui-sans-serif, system-ui, -apple-system, "Segoe UI", Roboto, Ubuntu, Cantarell, "Noto Sans", sans-serif, "Helvetica Neue", Arial, "Apple Color Emoji", "Segoe UI Emoji", "Segoe UI Symbol", "Noto Color Emoji"; font-size: 1rem; white-space: pre-wrap;">One of the main reasons why lawyers need to focus on cyber law now is the increasing importance of data privacy. With more and more personal and sensitive information being shared online, it is crucial for individuals and businesses to understand their rights and obligations when it comes to protecting this information. Lawyers who specialize in cyber law can help their clients navigate the complex world</span></p><div class="flex-1 overflow-hidden" style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; flex: 1 1 0%; font-family: Söhne, ui-sans-serif, system-ui, -apple-system, "Segoe UI", Roboto, Ubuntu, Cantarell, "Noto Sans", sans-serif, "Helvetica Neue", Arial, "Apple Color Emoji", "Segoe UI Emoji", "Segoe UI Symbol", "Noto Color Emoji"; overflow: hidden;"><div class="react-scroll-to-bottom--css-ysfew-79elbk h-full dark:bg-gray-800" style="--tw-border-spacing-x: 0; 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--tw-translate-x: 0; --tw-translate-y: 0; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; height: 745.6px; overflow-y: auto; width: 1276px;"><div class="flex flex-col items-center text-sm h-full dark:bg-gray-800" style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; align-items: center; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; display: flex; flex-direction: column; font-size: 0.875rem; height: 745.6px; line-height: 1.25rem;"><div class="w-full border-b border-black/10 dark:border-gray-900/50 text-gray-800 dark:text-gray-100 group bg-gray-50 dark:bg-[#444654]" style="--tw-bg-opacity: 1; 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box-sizing: border-box; display: flex; flex-direction: column; gap: 0.75rem; position: relative; width: calc(100% - 115px);"><div class="flex justify-between" style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; display: flex; justify-content: space-between;"><div class="text-gray-400 flex self-end lg:self-center justify-center mt-2 gap-3 md:gap-4 lg:gap-1 lg:absolute lg:top-0 lg:translate-x-full lg:right-0 lg:mt-0 lg:pl-2 visible" style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-text-opacity: 1; --tw-translate-x: 100%; --tw-translate-y: 0; align-self: center; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; color: rgba(172,172,190,var(--tw-text-opacity)); display: flex; gap: 0.25rem; justify-content: center; margin-top: 0px; padding-left: 0.5rem; position: absolute; right: 0px; top: 0px; transform: translate(var(--tw-translate-x),var(--tw-translate-y)) rotate(var(--tw-rotate)) skewX(var(--tw-skew-x)) skewY(var(--tw-skew-y)) scaleX(var(--tw-scale-x)) scaleY(var(--tw-scale-y)); visibility: visible;"><button class="p-1 rounded-md hover:bg-gray-100 hover:text-gray-700 dark:text-gray-400 dark:hover:bg-gray-700 dark:hover:text-gray-200 disabled:dark:hover:text-gray-400" style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; appearance: button; background-image: none; border-color: rgb(217, 217, 227); border-radius: 0.375rem; border-style: solid; border-width: 0px; cursor: pointer; font-family: inherit; font-size: 16px; font-weight: inherit; line-height: inherit; margin: 0px; padding: 0.25rem;"><svg class="h-4 w-4" fill="none" height="1em" stroke-linecap="round" stroke-linejoin="round" stroke-width="2" stroke="currentColor" viewbox="0 0 24 24" width="1em" xmlns="http://www.w3.org/2000/svg"><path d="M14 9V5a3 3 0 0 0-3-3l-4 9v11h11.28a2 2 0 0 0 2-1.7l1.38-9a2 2 0 0 0-2-2.3zM7 22H4a2 2 0 0 1-2-2v-7a2 2 0 0 1 2-2h3"></path></svg></button><button class="p-1 rounded-md hover:bg-gray-100 hover:text-gray-700 dark:text-gray-400 dark:hover:bg-gray-700 dark:hover:text-gray-200 disabled:dark:hover:text-gray-400" style="--tw-border-spacing-x: 0; 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--tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; display: flex; flex-direction: row; gap: 0.75rem; margin-left: auto; margin-right: auto; max-width: 48rem; padding-top: 1.5rem;"><div class="relative flex h-full flex-1 md:flex-col" style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; display: flex; flex-direction: column; flex: 1 1 0%; height: 95.2px; position: relative;"><div class="flex ml-1 mt-1.5 md:w-full md:m-auto md:mb-2 gap-0 md:gap-2 justify-center" style="--tw-border-spacing-x: 0; --tw-border-spacing-y: 0; --tw-ring-color: rgba(59,130,246,0.5); --tw-ring-offset-color: #fff; --tw-ring-offset-shadow: 0 0 transparent; --tw-ring-offset-width: 0px; --tw-ring-shadow: 0 0 transparent; --tw-rotate: 0; --tw-scale-x: 1; --tw-scale-y: 1; --tw-scroll-snap-strictness: proximity; --tw-shadow-colored: 0 0 transparent; --tw-shadow: 0 0 transparent; --tw-skew-x: 0; --tw-skew-y: 0; --tw-translate-x: 0; --tw-translate-y: 0; border: 0px solid rgb(217, 217, 227); box-sizing: border-box; display: flex; gap: 0.5rem; justify-content: center; margin: auto auto 0.5rem; width: 768px;"></div></div></form></div>Raghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-69149213778564974132012-06-09T07:23:00.000-07:002012-06-09T07:23:34.167-07:00hang on folksHang on folks. I am vacation and will be back soon.Raghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-22276794527924121602010-04-23T17:45:00.000-07:002010-04-23T17:45:11.178-07:00Tiger Powerhitz Sdn Bhd v Guinness Anchor Marketing Sdn Bhd[2003] 1 MLJ 314<br />
<br />
<br />
<span style="color: #990000; font-size: large;"><strong>Tiger Powerhitz Sdn Bhd v Guinness Anchor Marketing Sdn Bhd</strong></span><br />
<br />
Headnote<br />
<br />
Court Details<br />
<br />
HIGH COURT (KUALA LUMPUR) — CIVIL SUIT NO S3–22–509 OF 2000<br />
<br />
ARIFIN ZAKARIA J<br />
<br />
7 JUNE 2002<br />
<br />
Catchwords<br />
<br />
Civil Procedure — Contempt of court — Order of commital, application for — Committal proceedings — Body corporate — Whether the alleged contemnor had notice of the order as provided in O 45 r 7(3)(a) of the Rules of the High Court 1980 — Non-indorsement of notice as required under O 24 r 7(4) of the Rules of the High Court 1980 — Whether the court had discretion to nevertheless enforce the order granting leave to issue committal proceedings — Whether court should exercise such discretion — Rules of the High Court 1980 O 24 r 7(4) & O 45 r 7(3)(a)<br />
<br />
Summary<br />
<br />
The court granted an ex parte injunction order (‘the injuction order’) prohibiting the defendant, its agents or servants from using the name ‘Tiger Powerhitz’ in concerts sponsored and carried out by the defendant or in any charity show, event, presentation in any manner carried out by the defendant using the name ‘Tiger Powerhitz’. The plaintiff obtained an ex parte order (‘the order’) for leave to institute contempt proceedings against one of the directors of the defendant (‘the alleged contemnor’), for breach of the injunction order. The defendant and the alleged contemnor filed an application to set aside the order.<br />
<br />
Holdings<br />
<br />
Held, striking out the plaintiff’s motion and allowing the defendant’s application:<br />
<br />
(1) Order 45 r 7(3)(a) of the Rules of the High Court 1980 (‘the RHC’) states that an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in O 45 r 5(ii) and (iii) unless a copy of the order has been served personally on the officers against whose property leave is sought to issue a writ of seizure and sale or against whom an order for committal is sought (see p 317C–D).<br />
<br />
(2) The alleged contemnor was never personally served with the injunction order and as such the defendant and the alleged contemnor had no notice of the terms of the injunction order. Further, it was common ground that the alleged contemnor was not present when the injunction order was made, nor was he ever notified of the terms of the injunction order, either by telephone, telegram or otherwise (see p 317D–E; Class One Video Distributors Sdn Bhd & Anor v Chanan Singh a/l Sher Singh & Anor [1997] 5 MLJ 209 distinguished.<br />
<br />
(3) The injunction order did not contain the proper endorsement as required by O 24 r 7(4) and Form 87 of the RHC. So long as the alleged contemnor had knowledge of the terms of the order, the non-endorsement of the penal notice is not fatal. However, in the <br />
<br />
<br />
<br />
Page 315>>present case, it has been established that the alleged contemnor had no knowledge of the terms of the order (see p 318E–G).<br />
<br />
<span style="color: #073763;">Bahasa Summary</span><br />
<span style="color: #073763;"><br />
</span><br />
<span style="color: #073763;">Bahasa Malaysia summary</span><br />
<span style="color: #073763;"><br />
</span><br />
<span style="color: #073763;">Mahkamah telah memberikan satu perintah injunksi ex parte (‘perintah injunksi tersebut’) yang melarang defendan, ejen-ejen atau pekerja-pekerjanya menggunakan nama ‘Tiger Powerhitz’ dalam konsert-konsert yang dianjurkan dan diadakan oleh defendan atau dalam mana-mana pertunjukan amal, persembahan dan pertunjukan dalam apa-apa cara yang diadakan oleh defendan menggunakan nama ‘Tiger Powerhitz’. Plaintif telah mendapatkan satu perintah ex parte (‘perintah tersebut’) untuk kebenaran memulakan prosiding penghinaan terhadap salah satu daripada pengarah defendan (‘penghina yang dikatakan’), kerana perlanggaran perintah injunksi tersebut. Defendan dan penghina yang dikatakan tersebut telah memfailkan satu permohonan untuk mengenepikan perintah tersebut.</span><br />
<span style="color: #073763;"><br />
</span><br />
<span style="color: #073763;">Bahasa Holdings</span><br />
<span style="color: #073763;"><br />
</span><br />
<span style="color: #073763;">Diputuskan, menolak usul plaintif dan membenarkan permohonan defendan:</span><br />
<span style="color: #073763;"><br />
</span><br />
<span style="color: #073763;">(1) Aturan 45 k 7(3)(a) Kaedah-Kaedah Mahkamah Tinggi 1980 (‘KMT’) menyatakan bahawa satu perintah yang menghendaki satu badan korporat membuat atau menahan daripada membuat satu perbuatan tidak sepatutnya dikuatkuasakan sebagaimana yang disebutkan dalan A 45 k 5(ii) dan (iii) kecuali satu salinan perintah tersebut telah disampaikan secara persendirian ke atas pegawai-pegawai yang mana kebenaran hartanah dipohon untuk mengeluarkan satu writ penyitaan dan jualan atau terhadap mereka satu perintah kerana penghinaan dipohon (lihat ms 317C–D).</span><br />
<span style="color: #073763;"><br />
</span><br />
<span style="color: #073763;">(2) Penghina yang dikatakan tersebut tidak pernah disampaikan secara persendirian dengan perintah injunksi tersebut dan oleh itu defendan dan penghina yang dikatakan tersebut tidak mempunyai notis tentang terma-terma perintah injunksi tersebut. Tambahan pula, ia adalah diketahui semua bahawa penghina yang dikatakan tersebut tidak hadir semasa perintah injunksi tersebut dibuat, dan beliau juga tidak pernah dimaklumkan tentang terma-terma perintah injunksi tersebut, sama ada melalui telefon, telegram atau sebaliknya (lihat ms 317D–E); Class One Video Distributors Sdn Bhd & Anor v Chanan Singh a/l Sher Singh & Anor [1997] 5 MLJ 209 dibeza. </span><br />
<span style="color: #073763;"><br />
</span><br />
<span style="color: #073763;">(3) Perintah injunksi tersebut tidak mengandungi pengindorsan yang betul sebagaimana yang dikehendaki oleh A 24 k 7(4) dan Borang 87 KMT. Selagi penghina yang dikatakan tersebut mempunyai pengetahuan tentang terma-terma perintah tersebut, notis penting yang tidak diindorskan tersebut tidak membawa mudarat. Namun begitu, dalam kes semasa, adalah terbukti bahawa </span><br />
<span style="color: #073763;"><br />
</span><br />
<span style="color: #073763;"><br />
</span><br />
<span style="color: #073763;"><br />
</span><br />
<span style="color: #073763;">Page 316>>penghina yang dikatakan tersebut tidak mempunyai pengetahuan tentang terma-terma perintah tersebut (lihat ms 318E–G).]</span><br />
<br />
Notes<br />
<br />
Notes<br />
<br />
For cases on application for order of commital, see 2 Mallal’s Digest (4th Ed, 2001 Reissue) Paras 1500–1512.<br />
<br />
Cases referred to<br />
<br />
Cases referred to<br />
<br />
Class One Video Distributors Sdn Bhd & Anor v Chanan Singh a/l Sher Singh & Anor [1997] 5 MLJ 209 (distd)<br />
<br />
Datuk Hong Kim Sui v Tiu Shi Kian & Anor [1987] 1 MLJ 345 (refd)<br />
<br />
Iberian Trust Ltd v Founders Trust and Investment Co, Ltd [1932] 2 KB 87 (refd)<br />
<br />
Kesatuan Pekerja-Pekerja Perusahaan Dunlop Malaysia v Md Jaafar bin Abdul Carrim & Anor [1998] 2 MLJ 244 (refd)<br />
<br />
Malaysian Bar v Tan Sri Dato Abdul Hamid bin Omar [1989] 2 MLJ 281 (refd)<br />
<br />
Yukilon Manufacturing Sdn Bhd & Anor v Dato’ Wong Gek Meng & Ors (No 4) [1998] 7 MLJ 551 (refd)<br />
<br />
Legislation referred to<br />
<br />
Legislation referred to<br />
<br />
Rules of the High Court 1980 O 24 r 7(4), O 45 rr 5(ii), (iii), 7(3)(a), Form 87<br />
<br />
Lawyers<br />
<br />
Mahadevi Nadchatiram (Shanti Segaram with her) (Mahadevi Nadchatiram & Partners) for the plaintiff.<br />
<br />
Khoo Guan Huat (Eow Kean Fatt with him) (Skrine) for the defendants.<br />
<br />
Judgement - Arifin Zakaria J<br />
<br />
Arifin Zakaria J : On 24 July 2000, this court granted an ex parte injunction order (‘the order’) prohibiting the defendant, its agents or servants from using the name ‘Tiger Powerhitz’ in the following concerts sponsored and carried out by the defendant on:<br />
<br />
<br />
<br />
(1) 27 July 2000 at Dewan Jubli Intan (Baru) Segamat;<br />
<br />
(2) 29 July 2000 at SJK @ Tuan Poon School;<br />
<br />
(3) 30 July 2000 at Dewan Raya Gelang Patah, Gelang Patah, Johor; and<br />
<br />
(4) 3 August 2000 at Hokkien Association Hulu Klang,<br />
<br />
<br />
<br />
or in any charity show, event, presentation in any manner carried out by the defendant using the name ‘Tiger Powerhitz’. The plaintiff alleged that the defendant failed to comply with the order by:<br />
<br />
<br />
<br />
(1) placing advertisements in Sin Chew Jit Poh and Quang Ming Daily on 27 July 2000; and<br />
<br />
(2) publishing a magazine entitled Tiger Powerhitz on 28 July 2000.<br />
<br />
<br />
<br />
<br />
<br />
Page 317>><br />
<br />
On 30 November 2001, the plaintiff obtained an ex parte order from this court for leave to institute contempt proceedings against Micheal Daniel Van Der Poel, one of the directors of the defendant company, for breach of the order.<br />
<br />
On 24 January 2002, the defendant and Micheal Daniel Van Der Poel (‘the alleged contemnor’) filed an application (encl 47) to set aside the order dated 30 November 2001. The said application and the plaintiff’s notice of motion were heard together. After hearing submissions of counsel for the parties, I allowed the said application with costs and struck out the plaintiff’s notice of motion with no order as to costs.<br />
<br />
My grounds for allowing the defendant’s and the alleged contemnor’s application are as follows.<br />
<br />
The alleged contemnor was not personally served with a copy of the order<br />
<br />
Order 45 r 7(3)(a) of the Rules of the High Court 1980 (‘the RHC’) states that an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in O 45 r 5(ii) and (iii) unless a copy of the order has been served personally on the officers against whose property leave is sought to issue a writ of seizure and sale or against whom an order for committal is sought. It was contended for the defendant and the alleged contemnor that the defendant and the alleged contemnor were never personally served with the order and as such the defendant and the alleged contemnor had no notice of the terms of the order. Further, it is common ground that the alleged contemnor was not present when the order was made, nor was he ever notified of the terms of the order, either by telephone, telegram or otherwise. It is also not in dispute that the alleged contemnor was away in Australia on his annual leave during the period between 18 July 2000 to 8 August 2000 during which the order was made by the court. Thus, on the facts before me, I find that the plaintiff failed to satisfy this court that the alleged contemnor had been notified of the terms of the order by telephone or telegram or he was otherwise made aware of the terms of the order.<br />
<br />
In his submission, the learned counsel for the plaintiff sought to rely on the case of Class One Video Distributors Sdn Bhd & Anor v Chanan Singh a/l Sher Singh & Anor [1997] 5 MLJ 209, where at p 216 Haidar J (as he then was) said:<br />
<br />
<br />
<br />
In this case, though the order was not personally served on the second defendant, I am satisfied that the second defendant — having had the benefits of counsel’s advice — is deemed to know the terms of the order. In any event, the second defendant did not deny that he had knowledge of the terms of the order. The word ‘otherwise’ in r 7(6) would be wide enough to cover this situation.<br />
<br />
<br />
<br />
I find that the facts of the abovementioned case can be distinguished from the present case as the alleged contemnor here had categorically denied knowledge of the terms of the order and further he had also expressly stated in his affidavit (encl 46) that he was not notified by his solicitors of the terms of the order.<br />
<br />
<br />
<br />
Page 318>><br />
<br />
Similarly with the Privy Council case of Datuk Hong Kim Sui v Tiu Shi Kian & Anor [1987] 1 MLJ 345 which was cited by counsel for the plaintiff. In that case, the solicitors wrote to the client (alleged contemnors) about the terms of the order. However, the alleged contemnors chose not to abide by the injunction order. Moreover the second injunction order was served on the company ‘Red Rose’ on the same day.<br />
<br />
As Sir Ivor Richardson stated at p 347:<br />
<br />
<br />
<br />
Thus the Rules recognize that directors and officers are the human agencies responsible for the conduct of the affairs of companies. They fix a director with liability for the conduct of the company and so with liability for any breach by the company of an injunction where the director has appropriate notice that he is liable to process of execution if the company disobeys the order. (Emphasis added.)<br />
<br />
<br />
<br />
In the present case, there is no evidence before the court indicative of the fact that the director had any appropriate notice of the order.<br />
<br />
For the above reasons, it is my finding that the alleged contemnor had not personally been served with the order, nor had he been given the appropriate notice. Therefore, in the circumstances, I hold that he could not be held liable for contempt of the order.<br />
<br />
There was no proper penal endorsement<br />
<br />
It is not in dispute that the order does not contain the proper endorsement as required by O 24 r 7(4) and Form 87 of the RHC. The plaintiff contended that this was not fatal to the application. The case of Class One Video Distributor Sdn Bhd was cited in support of his contention.<br />
<br />
In that case Haidar J at p 216 stated:<br />
<br />
<br />
<br />
In the circumstances I am of the view that, following Allport Alfred James [[1989] 1 MLJ 388], which cited with approval the English case of Sofroniou [(1991) FCR 322], the defect in not complying with the indorsement of the penal notice is not fatal so long as the second defendant had knowledge of the terms of the order. (Emphasis added.)<br />
<br />
<br />
<br />
What can be discerned from that case is that so long as the alleged contemnor had knowledge of the terms of the order, the non-endorsement of the penal notice is not fatal. However, in the present case it has been established that the alleged contemnor had no knowledge of the terms of the order. Therefore, the authority cited could not support the plaintiff’s argument.<br />
<br />
In this context, reference should also be made to the case of Yukilon Manufacturing Sdn Bhd & Anor v Dato’ Wong Gek Meng & Ors (No 4) [1998] 7 MLJ 551, there Abdul Malik Ishak J at p 558 states in no uncertain terms:<br />
<br />
<br />
<br />
Different penal notices should be used in cases of mandatory and prohibitory orders and also in a case where the order is against an individual or a corporation. In the case of an order against a company or a corporation, the penal notice must be specific and should name all the directors and officers of <br />
<br />
<br />
<br />
Page 319>>the company or corporation and that order should be served on each and every person named in the penal notice.<br />
<br />
<br />
<br />
I wholly agree with the view of the learned judge and for the same reasons the court order of 30 November 2001 ought to be set aside.<br />
<br />
Ambiguity in the order<br />
<br />
It is evident that the purpose of the order was to restrain the defendant from using the name of ‘Tiger Powerhitz’ in the Tiger Powerhitz Charity Show Concerts held between 27 July 2000 to 3 August 2000 at the specified venues. It is contended for the defendant and the alleged contemnor that the order did not expressly state that the defendant is restrained from advertising the same or publishing the Tiger Powerhitz magazines. It is argued that in view of the apparent ambiguity in the order, therefore, the defendant and the alleged contemnor could not be held liable for the alleged breach of the order.<br />
<br />
In the case of Iberian Trust Ltd v Founders Trust and Investment Co, Ltd [1932] 2 KB 87, Luxmore J stated at p 95:<br />
<br />
<br />
<br />
From this it appears that in order to constitute a contempt of court for which the directors may be punished there must be wilful disobedience either by the company or its servants or directors to do something which it has been ordered to do. Now, turning back to Rowlatt J’s order, what is it that the defendant company have been ordered to do which the company and its directors have failed to do? In terms, the order does not direct the defendant company to do anything — it says: ‘that the plaintiffs do have a return of the said shares within fourteen days.’ Am I to spell out of that an order on the defendant company to do something? I think not. If the court is to punish anyone for not carrying out its order, the order must in unambiguous terms direct what is to be done. (Emphasis added.)<br />
<br />
<br />
<br />
The same principle has been adopted in the case of Kesatuan Pekerja-Pekerja Perusahaan Dunlop Malaysia v Md Jaafar bin Abdul Carrim & Anor [1998] 2 MLJ 244 where his lordship Nik Hashim J at pp 249–250 stated:<br />
<br />
<br />
<br />
First and foremost, it must be emphasized that ‘committal is a very serious matter. The courts must proceed very carefully before they make an order to commit to prison; and rules have been laid down to secure that the alleged contemnor knows clearly what is being alleged against him and has every opportunity to meet the allegations’ (per Cross J in Re B(JA) (An Infant) [1965] 1 Ch 1112).<br />
<br />
The rules governing the application for an order of committal is provided for under O 52 of the RHC. Authorities have shown that the procedural rules must be complied with and be strictly enforced. Lord Denning MR in McIlraith v Grady [1968] 1 QB 468 at p 477 said:<br />
<br />
‘… we must remember the fundamental principle that no man’s liberty is to be taken away unless every requirement of the law has been strictly complied with … .’<br />
<br />
…<br />
<br />
It is also the law that the grounds on which an order of committal is sought must be set out in the statement accompanying the notice of motion (see O 52 rr 2(2) and 3(3)). Although there is no requirement for the notice of motion to set out <br />
<br />
<br />
<br />
Page 320>>the grounds, nevertheless this information must be stated in the statement with sufficient particularity to enable the person alleged to be in contempt to meet the charge … . The nature of the contempt must be identified and spelt out precisely. The person alleged to be in contempt must know what exactly he is said to have done or omitted to do which constitute a contempt of court (see Chiltern District Council v Keane [[1985] 2 All ER 118]).<br />
<br />
<br />
<br />
In the present case, I am satisfied that even though the order did not expressly mention the acts complained of it is, however, clear from its terms that the defendant is to be restrained from using the name ‘Tiger Powerhitz’. Therefore, in my opinion, it is not open to the defendant to argue that the advertisements and the publication of Tiger Powerhitz magazine fall outside the ambit of the order. However, I am satisfied with the explanation given by the defendant that all the necessary measures and steps that need to be taken were taken by the defendant to ensure compliance with the order the moment defendant was made aware of the order but due to shortage of time, the advertisements in both Sin Chew Jit Poh and Quang Ming Daily on 27 July 2000 and the publication of the magazine on 28 August 2000 could not be stopped. The detailed explanation is found in paras 25, 32 and 34 of the affidavit of the alleged contemnor in encl (53).<br />
<br />
Delay<br />
<br />
The other factor to be considered is the delay in making the application by the plaintiff. In this case there was a delay of almost 15 months by the plaintiff in filing the application for leave to institute committal proceedings. The plaintiff did not offer any explanation for the delay. <br />
<br />
In the case of Malaysian Bar v Tan Sri Dato Abdul Hamid bin Omar [1989] 2 MLJ 281, the Supreme Court stated that contempt is a serious matter and should be pursued within a reasonable time. In that case, it was held that a lapse of nearly nine months was an inordinate delay. In the present case, there was a delay of 15 months and no explanation was given by the plaintiff. In the circumstances, I find that there has been an inordinate delay on the part of the plaintiff. This is clearly another factor which weighs against the plaintiff.<br />
<br />
Conclusion<br />
<br />
In the light of the above, I am of the considered view that the defendant’s and the alleged contemnor’s application to set aside the leave granted to the plaintiff to commence committal proceedings against the alleged contemnor ought to be allowed, and for the same reasons, the plaintiff’s substantive motion for committal be struck out. With regard to costs, I order that the costs of this application to be paid by the plaintiff to the defendant and there will be no order as to costs as regards the plaintiff’s motion for committal.<br />
<br />
<br />
<br />
Plaintiff’s motion struck out, defendant’s application allowed.<br />
<br />
<br />
<br />
Reported by Peter LingRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-65109679653488778962010-04-23T17:36:00.000-07:002010-04-23T17:36:45.182-07:00Malaysian European Production System Sdn Bhd v Zurich Insurance (M) Bhd[2003] 1 MLJ 304<br />
<br />
<br />
<span style="color: #990000;"><strong>Malaysian European Production System Sdn Bhd v Zurich Insurance (M) Bhd</strong></span><br />
<br />
Headnote<br />
<br />
Court Details<br />
<br />
HIGH COURT (PULAU PINANG) — CIVIL APPEAL NO 12–376 OF 2002<br />
<br />
KAMALANATHAN RATNAM J<br />
<br />
6 JANUARY 2003<br />
<br />
Catchwords<br />
<br />
Arbitration — Stay of proceedings — Application — Steps taken in proceedings — Dispute between parties to refer matter to arbitration as stated in the policy insurance — Whether the defendant had taken a step in the proceedings — Whether sessions court had power to grant stay — Whether there was any dispute to refer to arbitration — Arbitration Act 1952 s 6<br />
<br />
Summary<br />
<br />
The plaintiff bought a policy insurance from the defendant designed to cover the insured’s death and if death or disablement occured, then the insured’s estate or the insured was entitled to a sum except if the death or disablement resulted directly or indirectly from suicide or attempted suicide. During the period cover, one of the plaintiff’s employees (‘the insured’) died due to ‘pulmonary aedema to acute drowning’. The plaintiff informed the defendant of this fact by a fax message and further filed this suit against the defendant on 22 May 2002 and the first return date of the summons was on 17 July 2002. On 11 June 2002, the plaintiff served by registered post the summons on the defendant. The defendant’s solicitors then sent a letter purportedly dated 16 February 2002, ie before the summons was filed, asking for an extension of time to file its defence. Whilst this wrongly dated letter requested the plaintiff’s solicitors to serve the summons on them, the plaintiff’s solicitor’s clerk had in the meantime filed an affidavit of service on 19 June 2002 confirming that he had served the summons on the defendant by AR Registered post. On 4 September 2002, the defendant filed an application to stay all proceedings and to refer the matter to arbitration as stated in the policy of insurance. The learned sessions court judge granted an order in terms of the defendant’s application. Dissatisfied with that decision, the plaintiff appealed. The issues for the court’s determination were whether: (i) the defendant had taken a step in the proceedings when it asked for an extension of time in the letter dated 16 February 2002; (ii) the sessions court had power to grant the stay; and (iii) there was any dispute to refer the matter to arbitration as stated in the policy insurance.<br />
<br />
Holdings<br />
<br />
Held, dismissing the appeal with costs:<br />
<br />
(1) Since the plaintiff had consented to the defendant’s request for extension of time and since application for a stay of proceedings was filed before the next return date and the plaintiff who had indeed served the summons as early as on 11 June 2002 on the defendant personally, had failed to take judgment on 17 July 2002 or the next return date, the defendant had not, by merely writing the letter dated 16 February 2002, taken any step in the <br />
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Page 305>>proceedings within the meaning of s 6 of the Arbitration Act 1952 (‘the Act’) (see pp 311H–312A); Ford’s Hotel Co v Bartlett [1896] AC 1 and Sanwell Corp v Trans Resources Corp Sdn Bhd & Anor [2002] 2 MLJ 625 followed.<br />
<br />
(2) Section 6 of the Act is specific. The words ‘any party to the legal proceedings may … apply to the court’ must logically mean, the court in which the proceedings had been commenced. That is why whilst all other sections in the Act make reference to the High Court, it is only s 6 that does not refer to the High Court. It merely says ‘apply to the court’. If the said section is to bear the meaning given by the plaintiff, then there is no reason why the legislators when formulating this section had not said ‘apply to the High Court’. Since the words ‘High Court’ have been specifically left out, then it was not for this court to read otherwise into the Act. In the circumstances, the application for stay had been properly taken in the sessions court (see p 312F–H).<br />
<br />
(3) The relevant portion to consider in the arbitration clause were the words ‘all differences arising out of this policy’. It was clear that there was a difference of opinion out of this policy. The plaintiff said that the death was accidental and thus was covered by the policy. The defendant said that the death was caused by suicide. There could be no clearer instance of a difference between the parties. What is essential is that the court should, on the material before it, be in a position to express its satisfaction that the defendant is ready and willing to do all things necessary to the proper conduct of the arbitration. The available evidence in this case clearly supported the inference that the defendant was ready and willing to do all things necessary to refer the matter to arbitration (see p 313C–F); Accounting Publications Sdn Bhd v Ho Soo Furniture Sdn Bhd [1998] 4 MLJ 497 followed.<br />
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Bahasa Summary<br />
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Bahasa Malaysia summary<br />
<br />
Plaintif telah membeli satu insurans polisi daripada defendan dengan tujuan melindungi kematian pengambil insurans dan jika kematian atau kehilangan upaya berlaku, maka waris pengambil insurans atau pengambil insurans berhak kepada sejumlah wang kecuali jika kematian atau kehilangan upaya tersebut adalah secara langsung atau tidak langsung akibat daripada bunuh diri atau percubaan membunuh diri. Dalam tempoh perlindungan tersebut, salah seorang daripada pekerja plaintif (‘pengambil insurans’) telah mati akibat ‘pulmonary aedema to acute drowning’. Plaintif telah memaklumkan kepada defendan tentang fakta ini melalui satu pesanan faks dan selanjutnya memfailkan guaman ini terhadap defendan pada 22 Mei 2002 dan tarikh pulangan pertama saman tersebut adalah pada 17 Julai 2002. Pada 11 Jun 2002, plaintif telah menyampaikan saman tersebut melalui pos berdaftar ke atas defendan. Peguamcara defendan kemudian telah menghantar sepucuk surat yang dikatakan bertarikh <br />
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Page 306>>16 Februari 2002, iaitu sebelum saman tersebut difailkan dan telah meminta perlanjutan masa bagi membolehkan ia memfailkan pembelaannya. Sementara surat yang bertarikh salah tersebut meminta peguamcara plaintiff menyampaikan saman tersebut ke atas mereka, kerani peguamcara plaintif telah pada masa yang sama memfailkan satu afidavit penyampaian pada 19 Jun 2002 mengesahkan bahawa beliau telah menyampaikan saman tersebut ke atas defendan melalui pos AR Berdaftar. Pada 4 September 2002, defendan telah memfailkan satu permohonan untuk menggantung semua prosiding dan untuk merujuk perkara tersebut kepada timbangtara sebagaimana yang dinyatakan dalam insurans polisi tersebut. Hakim mahkamah sesyen yang arif telah membenarkan perintah seperti yang dipohon dalam permohonan defendan. Berasa tidak puas hati dengan keputusan tersebut, plaintif telah merayu. Persoalan-persoalan untuk ditentukan oleh mahkamah adalah sama ada: (i) defendan telah mengambil langkah dalam prosiding bila ia meminta perlanjutan masa melalui surat bertarikh 16 Februari 2002 tersebut; (ii) mahkamah sesyen mempunyai kuasa untuk membenarkan penggantungan tersebut; dan (iii) terdapat apa-apa pertikaian untuk merujuk perkara tersebut kepada timbangtara sebagaimana yang dinyatakan dalam insurans polisi tersebut.<br />
<br />
Bahasa Holdings<br />
<br />
Diputuskan, menolak rayuan dengan kos:<br />
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(1) Memandangkan plaintif telah bersetuju dengan permintaan defendan untuk lanjutan masa dan memandangkan permohonan untuk satu penggantungan prosiding telah difailkan sebelum tarikh pulangan berikutnya dan plaintif yang telahpun menyampaikan saman tersebut seawal 11 Jun 2002 ke atas defendan sendiri tetapi telah gagal untuk mendapatkan penghakiman pada 17 Julai 2002 atau tarikh pulangan berikutnya, defendan tidak boleh dianggap, dengan hanya menulis sepucuk surat bertarikh 16 Februari 2002 tersebut, telah mengambil apa-apa langkah dalam prosiding bagi maksud s 6 Akta Timbangtara 1952 (‘Akta tersebut’) (lihat ms 311H–312A); Ford’s Hotel Co v Bartlett [1896] AC 1 dan Sanwell Corp v Trans Resources Corp Sdn Bhd & Anor [2002] 2 MLJ 625 diikut.<br />
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(2) Seksyen 6 Akta tersebut adalah spesifik. Perkataan-perkataan ‘any party to the legal proceedings may … apply to the court’ secara logiknya bermaksud, mahkamah di mana prosiding tersebut dimulakan. Itu adalah sebabnya tatkala semua seksyen lain dalam Akta tersebut merujuk kepada Mahkamah Tinggi, hanya s 6 tidak merujuk kepada kepada Mahkamah Tinggi. Ia hanya menyatakan ‘apply to the court’. Sekiranya seksyen tersebut membawa maksud seperti yang diberikan oleh plaintif, maka tiada sebab untuk badang perundangan semasa membentuk seksyen ini tidak menyatakan ‘apply to the High Court’. Memandangkan perkataan-perkataan ‘High Court’ secara spesifiknya tidak dimasukkan, maka ia bukanlah untuk mahkamah ini membaca <br />
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Page 307>>sebaliknya ke dalam Akta tersebut. Dalam keadaan sedemikian, permohonan untuk penggantungan tersebut adalah tindakan betul di hadapan mahkamah sesyen (lihat ms 312F–H).<br />
<br />
(3) Bahagian yang relevan untuk dipertimbangkan dalam klausa timbangtara tersebut adalah perkataan-perkataan ‘all differences arising out of this policy’. Adalah jelas bahawa terdapat pendapat yang berbeza tentang polisi ini. Plaintif menyatakan bahawa kematian tersebut adalah satu kemalangan dan oleh itu dilindungi oleh polisi tersebut. Defendan menyatakan bahawa kematian tersebut adalah akibat bunuh diri. Tiada keadaan yang lebih jelas tentang satu perbezaan antara pihak-pihak tersebut. Apa yang penting adalah mahkamah hendaklah, berdasarkan bahan di hadapannya, berada dalam kedudukan untuk menyatakan kepuasannya yang defendan bersedia dan berkesanggupan untuk membuat apa yang perlu bagi satu tindakan timbangtara yang betul. Keterangan yang ada dalam kes ini dengan jelas menyokong inferens bahawa defendan bersedia dan berkesanggupan membuat apa yang perlu untuk merujuk perkara tersebut ke timbangtara (lihat ms 313C–F); Accounting Publications Sdn Bhd v Ho Soo Furniture Sdn Bhd [1998] 4 MLJ 497 diikut.]<br />
<br />
Notes<br />
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Notes<br />
<br />
For cases on application for stay of proceedings, see 1 Mallal’s Digest (4th Ed, 1998 Reissue) paras 1016–1033.<br />
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Cases referred to<br />
<br />
Cases referred to<br />
<br />
Accounting Publications Sdn Bhd v Ho Soo Furniture Sdn Bhd [1998] 4 MLJ 497 (refd)<br />
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Brighton Marine Palace & Pier Ltd v Woodhouse [1893] 2 Ch 486 (refd)<br />
<br />
Ford’s Hotel Co v Bartlett [1896] AC 1 (folld)<br />
<br />
Interscope Versicherung Sdn Bhd v Sime Axa Assurance Bhd [1999] 2 MLJ 529 (refd)<br />
<br />
Sanwell Corp v Trans Resources Corp Sdn Bhd & Anor [2002] 2 MLJ 625 (folld)<br />
<br />
Trans Resources Corp Sdn Bhd v Sanwell Corp & Anor (No 2) [1999] 2 MLJ 609 (refd)<br />
<br />
Usahabina v Anuar bin Yahya [1998] 7 MLJ 691 (refd)<br />
<br />
Legislation referred to<br />
<br />
Legislation referred to<br />
<br />
Arbitration Act 1952 s 6<br />
<br />
Rules of the High Court 1980 O3 r 5(3), O 12 rr 6, 7<br />
<br />
Appeal from<br />
<br />
Appeal from: Civil Suit No 52–1131 of 2002 (Sessions Court 2, Pulau Pinang)<br />
<br />
Lawyers<br />
<br />
Simon Tan (Lee Hean Cheng & Co) for the plainitff/appellant.<br />
<br />
P Ramanathan (VP Nathan & Partners) for the defendant/respondent.<br />
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Page 308>><br />
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Judgement - Kamalanathan Ratnam J:<br />
<br />
Kamalanathan Ratnam J:<br />
<br />
Facts The plaintiff bought a Group Personal Accident Policy from the defendant and paid a premium of RM1,989.13. The policy covered the insured namely the insured person named or referred to in the specification of Insured Persons (Insured). The policy, inter alia, was designed to cover the insured’s death during the period of cover and if death or permanent disablement occurred, then in either case, the insured’s estate or the insured was entitled to a sum of RM120,000. However, one of the exceptions to the payment was if the death or disablement resulted directly or indirectly from suicide or attempted suicide. On 26 March 2000 which was during the period of cover, one of the plaintiff’s employees (‘the insured’), Barbara a/p Anthony Dass died and the death certificate issued by the Government Hospital showed the cause of death as ‘pulmonary aedema to acute drowning’. On 28 March 2000, the plaintiff informed the defendant of this fact by a fax message.<br />
<br />
Unfortunately, no other correspondence has been enclosed in the appeal record to show when the defendant actually repudiated liability to the plaintiff. There must have been a repudiation because the plaintiff filed this suit against the defendant on 22 May 2002 and the first return date of the summons was on 17 July 2002. On 11 June 2002, the plaintiff served by registered post the said summons on the defendant.<br />
<br />
The next relevant letter exhibited by the parties is a letter from the defendant’s solicitors to the plaintiff and purportedly dated 16 February 2002. I cannot understand why the defendant’s solicitors dated the letter even before the summons was filed, and yet stated the correct summon number on the said letter. As the facts would unfold, the contents of this letter are very important to both parties. This letter is reproduced for its contents.<br />
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<br />
VP NATHAN & PARTNERS<br />
<br />
PEGUAMBELA DAN PEGUAMCARA<br />
<br />
Your Reference: L/274/2001/LHC/ST<br />
<br />
When Replying Please<br />
<br />
Quote Our Reference: VPN/PRM/RN/SM/B 15202P 16/2/2002<br />
<br />
M/s Lee Hean Cheng & Co.<br />
<br />
Advocates & Solicitors,<br />
<br />
No 41-5-3, 5th Floor, ATTENTION: MR. SIMON TAN<br />
<br />
Wisma Prudential, FAX/POST<br />
<br />
Jalan Cantonment,<br />
<br />
10250 Penang.<br />
<br />
Dear sirs,<br />
<br />
Re: Penang Sessions Court (2) Civil Action No 52–1131–2002<br />
<br />
We refer to the telephone conversation between our Mr PR Manecksha and your Mr Simon Tan this afternoon.<br />
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We shall be obliged if you will serve on us a copy of the summons and statement of claim as we have instruction to enter appearance and file a defence.<br />
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Page 309>><br />
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We confirm that you will get as a mention on behalf on 2 August 2002 and give us at least one month to enable us to file the defence.<br />
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We thank you for your indulgence.<br />
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In the meantime please note that the reference for this file is B 39202P and shall be obliged if you will use same in all future correspondence.<br />
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Kindly, update your records.<br />
<br />
Yours faithfully,<br />
<br />
Sgd.<br />
<br />
<br />
<br />
Whilst this wrongly dated letter requests the plaintiff’s solicitors to serve the summons on them, the plaintiff’s solicitor’s clerk had in the meantime filed an affidavit of service on 19 June 2002 confirming that he had served the summons on the defendant by AR Registered post.<br />
<br />
In the meantime on 4 September 2002, the defendant filed an application to stay all proceedings and to refer the matter to arbitration as stated in the policy of insurance. The learned sessions court judge granted an order in terms of the defendant’s application. Dissatisfied with that decision the plaintiff has appealed. <br />
<br />
Findings of the court<br />
<br />
The plaintiff raised three issues on appeal before me.<br />
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(1) That the defendant had taken a step in the proceedings<br />
<br />
It was the plaintiff’s contention that having written the letter dated 16 February 2002 and in which the defendant had sought and obtained an extension of ‘at least one month to enable us to file the defence’, the defendant had taken a step in the proceedings. The plaintiff relied heavily upon the recent decision of the Federal Court in Sanwell Corp v Trans Resources Corp Sdn Bhd & Anor [2002] 2 MLJ 625. I heard Sanwell’s case at first instance (see Trans Resources Corp Sdn Bhd v Sanwell Corp & Anor (No 2) [1999] 2 MLJ 609). I held that the entry of a conditional appearance pursuant to O 12 rr 6 and 7 of the Rules of the High Court 1980 (‘the RHC’) is only available to cases where the defendant complained of an irregularity or defect in the originating process or service of the process upon him and/or where the defendant alleges that the court is without jurisdiction to deal with the dispute. I further held that the entering of an unconditional appearance could not amount to a waiver of the defendant’s right to proceed to arbitration on the basis that the plaintiff’s filing of the civil suit did not amount to either an irregularity or a defect in the writ or service thereof and in opposing the action it had not been the first defendant’s contention that the court has no jurisdiction to deal with the dispute. It must be noted that in Sanwell’s case, the defendant did not ask for nor apply to court for an extension of time to file the defence. In deciding as I did, I did not follow the decision of another High Court in Usahabina v Anuar bin Yahya [1998] 7 MLJ 691. In Usahabina, the contractor who agreed to build a house sued the house owner to recover his cost. The defendant owner having entered a conditional appearance because of the <br />
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Page 310>>existence of an arbitration clause failed to file his defence within the stipulated period. However, the plaintiff contractor allowed by letter, the defendant’s request for an extension of one week to file the defence. Since the defendant had failed to file the defence within the extended period, the plaintiff entered judgment in default of defence. Soon thereafter, the defendant applied by summons to set aside the judgment in default and to stay all proceedings pending reference to arbitration. On these facts, the High Court held that the defendant’s request for extension of time to file his defence did not amount to the taking of any steps in the proceedings. However, the court went on to hold that the filing of an unconditional appearance meant that the defendant had elected to allow the action to go on and had accordingly submitted to the jurisdiction of the court and that this amounted to a step in the proceedings thereby precluding the defendant from obtaining an order staying the proceedings.<br />
<br />
In Interscope Versicherung Sdn Bhd v Sime Axa Assurance Bhd [1999] 2 MLJ 529, the Court of Appeal upheld the decision in Usahabina. I must admit that when I decided Sanwell, I did not have the benefit of the decision of the Court of Appeal in Interscope. However when Sanwell went up to the Court of Appeal, the Court of Appeal relied on its own decision in Interscope and reversed Sanwell. The Federal Court in hearing Sanwell, very meticulously went through each of these cases and decided that the entry of appearance was a mandatory procedural step to be taken by an applicant in proceedings in the High Court. It was a step in the proceedings as required by the RHC. However, it was a permitted, excluded or an exempted step in the proceedings that did not amount to a step in the proceedings within the meaning of s 6 of the Arbitration Act 1952 (‘the Act’) which would prejudice the applicant’s right to apply for a stay of the proceedings. The Federal Court went on to hold that if the applicant had served any pleadings, then he had clearly taken a step in the proceedings within the meaning of s 6 of the Act, since he has elected to proceed with the proceedings in the High Court and would therefore be barred from applying for a stay of proceedings to refer the dispute to arbitration. However, the Federal Court went on to hold that if the applicant had taken any other action in the proceedings other than steps of entering appearance or serving pleadings, the court would then have to consider whether such action amounted to a step in the proceedings by determining the nature of the action and whether or not it indicated an unequivocal intention to proceed with the suit and to abandon the right to have the dispute disposed off by arbitration.<br />
<br />
Relying on the decision of the Federal Court, the plaintiff argued that by applying and obtaining an extension of time to file the defence, the defendant had indicated an unequivocal intention to proceed with the suit and had therefore abandoned the right to have the dispute disposed off by arbitration. Having considered carefully the arguments of the plaintiff, I do not agree with this view. As very succinctly explained by Mohtar Abdullah FCJ in Sanwell, the defendant only applied to stay proceedings after it had failed to file the defence within the extended period of time given to it and after the plaintiff had obtained judgment. By then it was too late.<br />
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<br />
Page 311>><br />
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From reading the judgment of the Federal Court in Sanwell, it becomes clear that the defendant had two choices upon receipt of extension of time. He could have filed the defence or he could have within the extended time applied for a stay without taking any other step.<br />
<br />
In Brighton Marine Palace & Pier Ltd v Woodhouse [1893] 2 Ch 486, North J held that asking for time by letter is not taking a step in the action; it is taking a step outside the action altogether. I agree with this proposition of the law. The defendant can apply for extension of time pursuant to O 3 r 5 of the RHC. It is pertinent to reproduce O 3 r 5 which reads as follows:<br />
<br />
<br />
<br />
5 Extension, etc of time<br />
<br />
(1) The court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules or by any judgment, order or direction, to do any act in any proceedings.<br />
<br />
(2) The court may extend any such period as is referred to in para (1) although the application for extension is not made until after the expiration of that period.<br />
<br />
(3) The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the court being made for that purpose.<br />
<br />
(4) …<br />
<br />
<br />
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Since sub-r (3) provides for written consent by a letter without the need for an order of court, I hold that having given the written consent, the plaintiff cannot now seek to argue that the granting of the consent must be held against the defendant. Of course, the application by letter dated 16 February 2002 was made under sub-r (3) which provides for enlargement of time without taking any step in the proceedings. It is clear that the very object of sub-r (3) is to enable the parties to enlarge time by consent without the need to apply to court and thus taking a step in the proceedings. However, if the plaintiff had refused the application for extension of time then the defendant would have been compelled to apply to court and this would be tantamount to taking a step in the proceedings. This view becomes all the more clear with the Federal Court’s reference to the case of Ford’s Hotel Co v Bartlett [1896] AC 1. In Ford’s Hotel Co, the House of Lords held that when a defendant took out a summons or obtained an order for further time to deliver his defence, he is deemed to have taken a step in the proceedings within the meaning of the Act and was not afterwards entitled to apply for a stay on the ground that the proceedings were brought in respect of a matter agreed to be referred to arbitration.<br />
<br />
In the circumstances, it is my judgment that since the plaintiff had consented to the defendant’s request for extension of time and since application for a stay of proceedings was filed before the next return date and the plaintiff who had indeed served the summons as early as on 11 June 2002 on the defendant personally, had failed to take judgment on 17 July 2002 or the next return date, the defendant had not, by merely writing the <br />
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<br />
<br />
Page 312>>letter dated 16 February 2002, taken any step in the proceedings within the meaning of s 6 of the Act.<br />
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(2) Sessions court has no power to grant a stay<br />
<br />
To fully appreciate this argument of the plaintiff, it is necessary to reproduce s 6 of the Act which reads as follows:<br />
<br />
<br />
<br />
Power to stay proceedings where there is submission to arbitration<br />
<br />
If any party to an arbitration agreement or any person claiming through or under him commences any legal proceedings against any other party to the arbitration, or any person claiming through or under him, in respect of any matter agreed to be referred to arbitration, any party to the legal proceedings may, before taking any other steps in the proceedings, apply to the court to stay the proceedings, and the court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement, and that the applicant was at the time when the proceedings were commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.<br />
<br />
<br />
<br />
The plaintiff’s case is that the sessions court does not have the jurisdiction to give an order to refer the matter to arbitration. This is because the ‘High Court’ as defined in the Act means the High Court in Malaya or the High Court in Sabah or Sarawak as the case may require. Further the plaintiff argued that all references to ‘court’ in the Act, referred to the High Court. The plaintiff also pointed out that O 69 of the RHC governs arbitration proceedings and that there are no such provisions in the Subordinate Courts Rules 1980. Counsel for the plaintiff argued that the defendant ought to have applied by way of an originating motion to the High Court for a stay of proceedings under s 6 of the Act and that the defendant ought not to have applied in the sessions court itself.<br />
<br />
I do not accept this argument. Section 6 of the Act is specific. The words ‘any party to the legal proceedings may … apply to the court’ must logically mean, the court in which the proceedings had been commenced. That is why whilst all other sections in the Act make reference to the High Court, it is only s 6 that does not refer to the High Court. It merely says ‘apply to the court’. If the said section is to bear the meaning given by the plaintiff, then there is no reason why the legislators when formulating this section had not said ‘apply to the High Court’. Since the words ‘High Court’ have been specifically left out, then it is not for this court to read otherwise into the Act.<br />
<br />
In the circumstances, it is my judgment that the application for stay has been properly taken in the sessions court.<br />
<br />
(3) There is no dispute<br />
<br />
The plaintiff argued that there is no dispute at all to refer the matter to arbitration since it is the plaintiff’s case that the plaintiff can only claim if the death occurred as a result of an accident and the plaintiff points out that that is also the defence’s case.<br />
<br />
<br />
<br />
Page 313>><br />
<br />
The clause relating to arbitration as found in the policy reads as follows:<br />
<br />
<br />
<br />
10 Arbitration<br />
<br />
All differences arising out of this policy shall be referred to the decision of an Arbitrator to be appointed in writing by the parties in difference or if they cannot agree upon a single Arbitrator, to the decision of two Arbitrators one to be appointed in writing by each of the parties, within one (1) calendar month after having been required in writing so to do by either of the parties or in case the Arbitrators do not agree, of an Umpire appointed in writing by the Arbitrators before entering upon the reference.<br />
<br />
The Umpire shall sit with the Arbitrators and preside at their meetings and the making of an award shall be a condition precedent to any right of action against the company. If the company shall disclaim liability to the Insured for any claim hereunder and such claim shall not within twelve (12) calendar months from the date of such disclaimer have been referred to arbitration under the provisions herein then the claim shall for all purposes be deemed to have abandoned and shall not thereafter be recoverable hereunder.<br />
<br />
<br />
<br />
To my mind, the relevant portion to consider are the words ‘all differences arising out of this policy’. It is clear that there has arisen a difference of opinion out of this policy. The plaintiff says that the death is accidental and thus is covered by the policy. The defendant says that the death was caused by suicide. There can be no clearer instance of a difference between the parties. In Accounting Publications Sdn Bhd v Ho Soo Furniture Sdn Bhd [1998] 4 MLJ 497, the Court of Appeal had said that what is essential is that the court should, on the material before it, be in a position to express its satisfaction that the defendant is ready and willing to do all things necessary to the proper conduct of the arbitration. The Court of Appeal emphatically has stated that at such an early stage, there is little a defendant is obliged to do in the arbitration beyond asserting a willingness to appoint an arbitrator. The available evidence in the case before me clearly supports the inference that the defendant is ready and willing to do all things necessary to refer the matter to arbitration.<br />
<br />
Whilst I agree that this case is one that is eminently suited for trial before a court, yet it is imperative that the court must agree with the views expressed by the parties in the policy that they would rather arbitrate than litigate.<br />
<br />
In the circumstances, this appeal is dismissed with costs.<br />
<br />
<br />
<br />
Appeal dismissed with costs.<br />
<br />
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Reported by Ezatul Zuria AzhariRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-87402423435302373992010-04-12T05:33:00.000-07:002010-04-12T05:33:55.996-07:00Yong Yit Swee & Ors v Sri Inai (Pulau Pinang) Sdn Bhd & Anor[2003] 1 MLJ 290<br />
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<strong><span style="color: #38761d; font-size: large;">Yong Yit Swee & Ors v Sri Inai (Pulau Pinang) Sdn Bhd & Anor</span></strong><br />
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Headnote<br />
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Court Details<br />
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SESSIONS COURT (GEORGETOWN) — SUMMONS NOS 53–25 OF 1992—53–33 OF 1992<br />
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HO MOOI CHING J<br />
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14 MAY 1995<br />
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Judgement - Ho Mooi Ching J:<br />
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Ho Mooi Ching J: In the early hours of 16 February 1989, there was a fire at premises No 1, Park Road, Pulau Pinang which claimed four lives and caused injury to five others. It is undisputed that the premises belonged to the second defendant, the Majlis Perbandaran Pulau Pinang (‘MPPP’) which had rented it out to the first defendant, Sri Inai (Pulau Pinang) Sdn Bhd and that the first defendant used it as a hostel for students attending the Sekolah Sri Inai (‘the school’).<br />
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The tenancy of the premises had been obtained by way of tender. Although the third party, one EM Augustin (‘DW2’) submitted the documents in his own name, he had signed them in his capacity as principal of the school as evidenced by the stamp endorsed on all the relevant documents (pp 13–15, 18 and 23 of Bundle A, an agreed bundle of documents). Correspondence relating to the tenancy (p 23 of Bundle A) was typed on paper carrying the letterhead of the school and the words used ‘Sila hantar kepada kami satu salinan’ (emphasis added) suggest that he was acting for the first defendant, rather than in his own personal capacity. He was also a director of the first defendant company which ran the school. In the absence of any evidence to the contrary, I accept that he was, at all material times, acting as the agent of first defendant. This fact was never disputed by the first defendant, nor was it seriously disputed by the MPPP. The application submitted by DW2 was approved by the MPPP by letter dated 19 December 1986 (p 19 of Bundle A). The tenancy for a term of two years was subsequently renewed for a further term of one year on the same terms, until 19 December 1989.<br />
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The building in question was a two-storey building, with the ground floor of brick with mortar covering and the first floor of timber frame and partition walls of brick (photo 3 of Bundle C referred to). At all material times, the top floor was occupied by 13 students attending Forms 3–5 in the school, and the ground floor by two wardens. Lee Boon Ming, Surin Thinagaran, Tan Hock San and Anand Govindarajoo died as a result of the fire and their parents sue for damages caused thereby (Summons Nos 53–26, 27, 28 and 33 of 1992). Teoh Hsium Choon (‘PW2’), Lee Seng Chong (‘PW4’), Vigneshwara a/l Kumarashwaran (‘PW5’), Yeoh Ee Kee (‘PW9’) and Yong Yit Swee (‘PW13’) sue for damages in their own names (Summons Nos 53, 25, 29, 30, 31 and 32–92). All the abovementioned cases were consolidated.<br />
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At the close of the hearing, this court apportioned liability equally between the two defendants. There was no finding of contributory negligence against the students. Awards of general and special damages, interest and costs were made in all the cases. Both defendants now appeal <br />
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Page 291>>against the decision of this court in its entirety. I set out below the grounds for my decision.<br />
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The plaintiffs’ claims are based on negligence and breach of statutory duty. I agree with the submissions of learned counsel for the plaintiffs, Mr M Thayalan that both defendants largely blame each other for the incident. However, the second defendant raised the question of contributory negligence by the students. As submitted, with regard to contributory negligence, the two issues to be decided were whether the students were wholly or contributorily negligent in not making a more timely escape from the burning premises and whether PW5 contributed to the negligence by switching on the water heater at night. However, as the second issue had not been pleaded as a particular of negligence, I do not propose to deal with it, except insofar as to say that there was no evidence that PW5 had switched on the heater and left it on that night or even if there had been such evidence, that such an act amounted to negligence. In any case, it would have no effect on the claims of the other plaintiffs.<br />
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Liability<br />
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The layout of the premises is as shown in the plans P1A and P1B. It is common ground that there were three rooms marked Form 3, Form 4 and Form 5. The rooms marked Form 3 and Form 4 were connected by way of a door marked ‘Y. Another door in the Form 3 room had been sealed off by cabinets placed at ‘X’. Four boys Surin, PW4, PW13 and Lee Boon Ming occupied the Form 3 room but at the relevant time, PW13 had bunked in with PW2 in the Form 4 room. The Form 4 room was occupied by Khor Seng Choong, Anand, PW2, PW14, Tan Hock San and Yap Lip San. The Form 5 room was occupied by PW5, PW9 and William Lee Kok Foong. The wardens Frederick Augustine and Saw Bang Leong (‘DW1’) occupied the room marked ‘Warden’s Room’ in P1A.<br />
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The cause of the fire is relevant in determining liability. The plaintiffs called one Peter John Cook (‘PW3’) to testify regarding the cause of the fire and other related matters. PW3 came with highly impressive credentials as set out in exh P3. His evidence as a fire expert had been accepted by courts in Malaysia, Singapore and England. In the case of Polyvitte Ltd v Commercial Union Assurance Co PLC [1987] 1 Lloyd’s Rep 379, Garland J (in exh P4) found PW3 ‘a careful and reliable witness, who gave his evidence with restraint and consistency’. I came to the same conclusion after hearing his evidence in this case. Not only was he unshaken in cross-examination, more importantly, he was able to give reasons for the theories advanced by him after taking into account the physical evidence. His findings were consistent with the accounts of witnesses who were at the scene at the time of the fire.<br />
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The second defendant called a chemist from the Chemistry Department, Ng Hock Sing (‘DW3’), to testify as to the cause of the fire. It was clear from his evidence that he has had no special training in fire investigations and prevention. Although his evidence as an expert has been accepted by courts in Malaysia, there was no indication that this was in <br />
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Page 292>>relation to fire investigations. His opinion that the fire started in the Form 5 room was based on the fact that there were signs of intense heat on the walls and ceiling. The charring was near the beds but he disagreed that this was due to the mattresses having caught fire (photos 43 and 44). The warden, DW1 testified that he had seen falling debris outside his window but there was no evidence that the fire started in the Form 5 room, as submitted by learned counsel for the second defendant. When confronted with the testimony of the Form 5 boys that their room was not on fire, he admitted he may have been wrong about the origin of the fire. Although PW5 said he saw one of the beds in the room on fire, this was just before his second attempt to leave the room and not at the outset when they became aware of the fire. DW3 also admitted not knowing whether the fire originated in the roof void and offered no opinion as the cause of the fire. Although he had the advantage of being at the scene a few hours after the fire, his lack of specialized training in this field did not render this a very useful advantage. The unchallenged testimony of the Form 5 boys was at variance with his testimony and on the grounds stated, I did not accept his evidence nor his status as a fire expert.<br />
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The second defendant also called Shabudin bin Salleh (‘DW9’), an engineer with Tenaga Nasional Bhd who conducted an inspection of the premises on 18 December 1989 and interviewed the warden Frederick Augustin and student, William Lee, both of whom were not called as witnesses, rendering parts of his report hearsay. He opined that the fire originated from the Form 3 or Form 4 rooms, but again this was contrary to the unchallenged evidence of the students, PW2, PW5, PW13 and PW14, that when they awoke, there was no fire in the rooms, only a glow from the hall. His opinion was untenable. With regard to the cause of the fire, DW9 said that the fire could have been electrical, either as a result of a short circuit or loose contact resulting in resistive heating. He admitted that he came to those conclusions based on hearsay evidence. Nevertheless, his opinion that resistive heating was a possible cause was consistent with PW3’s evidence.<br />
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After careful consideration of the evidence, I preferred the evidence of PW3 for the reasons stated below. He explained that in order to determine the cause of the fire, one has to determine its origin. He was of the view that it originated in the roof void, after studying the fire structure. As evidenced by the photographs annexed to his report, it is clear that most of the damage was to the roof and first floor of the building while the ground floor was relatively intact except for the wardens’ room and parts of the hall (photos 46–61, 26–29). His opinion that falling debris had caused the mattresses to burn and that the mattress fire had charred the walls and ceiling was entirely plausible as the charred portions were near the two beds. It is also consistent with the evidence of PW5 and PW9 that their room was not on fire and even when PW9 left the room, he only saw thick smoke and not fire. This supports PW3’s opinion that the fire in portions of the ground floor, were due to falling debris at a later stage of the fire.<br />
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He explained that when fire originates from inside a room, the fire would rise to the ceiling due to the buoyancy of the hot gasses. If the ceiling <br />
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Page 293>>is intact, the fire would spread horizontally at the ceiling until some part of the compartment fails. In the majority of buildings, the window glass being the least resistant would be the first to go, allowing fire to vent from the windows and leaving clear evidence of flame escape. However, if the ceiling is breached first, the buoyancy of the gasses would create a chimney effect with the fire gasses venting from the top of the compartment and combustion air drawn in through the windows even if there are window openings. In this case, there was no evidence of flame escape, leading PW3 to conclude that when the fire developed on the first floor, the roof had been destroyed. He was also of the view that the even fire damage on the first floor was indicative of a fire that was already fully developed before the first floor was involved. Had the fire started in any part of the first floor, all things being equal, the damage would have been worst there, the fire having burnt longest at that spot.<br />
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Christopher Khoo (‘PW1’), a passerby who was at the scene at 2.57am and stayed to raise the alarm and render assistance testified that he saw flames twice the height of the house at the portion of the roof over the Forms 3 or 4 rooms. He confirmed that only the roof was on fire when he first arrived. Based on his evidence and that of the students who testified that their rooms on the first floor were not on fire when they sought to make their escape, I had no difficulty in accepting PW3’s evidence that the fire originated from the roof.<br />
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According to the PW3, since the fire originated from the roof void, there were only two plausible causes, ie electrical fault or ignition of part of the roof structure by a stray firework. Two possible causes were resistive heating or short circuit. He ruled out a short circuit as there was no evidence of a blown fuse. Resistive heating results from a dirty or loose connection in an electrical circuit, and the amount of heat generated would depend on the electrical rating of the appliance connected to the circuit. In the instant case, the only appliances capable of generating this sort of fault were the water heaters, of which only the one in the Form 6 room was working.<br />
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There is no dispute that spent fireworks were found in the grounds and that the fire occurred in the Chinese New Year period. Based on the evidence, PW3’s opinion as to the two plausible causes of the fire was reasonable and unchallenged, and I accept it. The plaintiffs conceded that they do not lay the blame for causing the fire at the defendants’ door. However, they argue that the defendants were under a duty to take certain measures to prevent or minimize damage and injury due to the fire. There is no dispute that the building was in existence even before 1922. PW3 was the only witness to express any opinion as to the fire resistance of the building. He defined fire resistance to mean the period for which the structure will retain its structural integrity and maintain the temperature on the non-exposed side of that structure at a temperature low enough not to create a hazard on the other side. In the context of that definition, he was of the view that each element of the structure had a fire resisting period of very much less than an hour. He volunteered the opinion that a fire test would have to be done to determine the precise fire resisting period but he <br />
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Page 294>>estimated that the timber floor had a fire resisting period of ¼ hour, based on his experience. This was not challenged and I accepted it.<br />
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There was only one staircase leading from the upstairs hall to the ground floor. It did not qualify as a final exit as it did not discharge one to safety outside the building. The only staircase which gave direct access to a final exit was adjacent to the Forms 3 and 4 rooms, but this had been permanently sealed with floorboards (photos 20–22). PW3 was of the opinion that if it had not been sealed off, there may have been no loss of life as all the fatalities occurred among the occupants of those two rooms who had desperately tried to seek an exit. From the photographs, the staircase appeared relatively intact. All the windows had been rifted with fixed grilles or BRC mesh except for one marked ‘T’ on P1B (on the first floor) from which PW2 jumped. There were no other secondary exits although there was no shortage of exits on the ground floor. It is undisputed that there were three dry powder fire extinguishers, two on the ground floor and one on the first floor but according to PW3, they were not placed on exit routes except for the one in the kitchen, which could arguably be said to be so placed. PW3 testified that had he been asked to do a fire survey, he would have recommended a total of nine fire extinguishers per floor, including water extinguishers. Rather than an open staircase, there should have been at least two protected staircases from the first floor. There should also have been a hose reel with a reliable supply of water and smoke detectors at ceiling level on both floors and in the roof void. As the building was to be used as a hostel for students aged between 15–17, it was especially important that they be given fire drills, taught to use fire fighting equipment and acquainted with escape routes. There was no emergency lighting in the entire building. It is common ground that although they had occupied the premises for more than one year before the fire, the first defendant had never conducted any fire drills or taught the boys how to use the fire extinguishers.<br />
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It could hardly be said that fire was not a foreseeable risk. Indeed DW2 was clearly aware of such a risk since he had installed the fire extinguishers and had them serviced. In the approval letter of the MPPP (p 19 of Bundle A), condition (e) was that the premises were to be used as a hostel ‘dan kegunaannya tertakluk kepada kelulusan daripada jabatan-jabatan yang berkenaan termasuk penukaran kegunaan serta keperluan dari segi perlindungan kebakaran, jika perlu’. It was undisputed that DW2 did nothing to comply with this condition and the MPPP did nothing to ensure compliance. DW2 did not consult the Fire Department regarding fire prevention measures although he did comply with condition (f) by taking out fire insurance. DW2 merely assumed that the approval of his application by the MPPP meant that it was safe and suitable for its intended use. He also admitted that neither of the wardens was given any instructions regarding fire safety.<br />
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In the case of Government of Malaysia & Ors v Jumat bin Mahmud & Anor [1977] 2 MLJ 103, the Federal Court held that (at p 104): <br />
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… by reason of the special relationship of teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care for the safety of the pupil. The <br />
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Page 295>>duty of care on the part of the teacher to the plaintiff must commensurate with his/her opportunity and ability to protect the pupil from dangers that are known or that should be apprehended and the duty of care required is that which a careful father with a very large family would take care of his own children. <br />
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Applying this principle to the facts, I found that the first defendant having undertaken to accommodate the students in the premises was under a duty to protect them from known dangers or those that should be apprehended. For the reasons set out, the danger from fire was definitely one which was foreseeable, and had the first defendant taken the steps or perhaps even some of the measures on fire prevention recommended by PW3, damage could have been minimized, if not averted. It was obvious from the evidence of the students that they only became aware of the fire after it had been burning for some time. Had an alarm been installed, they may have been aware of it earlier and gained valuable time in ensuring a safe exit. Doubtless, PW3’s recommendations may have been given with the benefit of hindsight, but in my view, some of the measures should have been taken had the persons in charge applied their minds to the risk of fire or obtained the advice of the Fire Department. On the facts and the law, I found the first defendant negligent and liable to the plainfiffs.<br />
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I also accepted the submissions of learned counsel for the plaintiffs that the first defendant was liable under the head of occupier’s liability. The case of Maclenan v Segar [1917] 2 KB 325 was relied on. There it was held that: <br />
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Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them. The rule is subject to the limitation that the defendant is not to be hold responsible for defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration, repair or maintenance of the promises.<br />
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Applying this principle to the facts, the first defendant was also liable for breach of the warranty that the premises were as safe for the purpose of a hostel as reasonable care and skill on the part of anyone could make them.<br />
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The plaintiffs also submitted that the first defendant had contravened the provisions of the Uniform Building By-Laws 1986 (‘the UBBL’). It was further submitted that the second defendant being the enforcement authority of the UBBL was liable to the plaintiffs for failing to enforce it. It is common ground that the UBBL came into force for the State of Pulau Pinang on 1 January 1986. Parts VII, VIII and IX and the Schedules of that statement deal with fire requirements and the issue in dispute is whether these apply to the said premises.<br />
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By-law 254 reads: <br />
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Buildings which on the date of commencement of these By-laws have been erected, or in the course of being erected or have not been erected but plans <br />
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Page 296>>have been submitted and approved, and which according to by-law 134 fall within the classification of Place of assembly, Shop, Office, Other.<br />
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Residential and buildings exceeding 18.5m and buildings which are classified as hazardous or special risks shall be modified or altered to comply with Parts VII and VIII of these by-laws within:<br />
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(a) one year from the date of commencement of these by-laws in the case of buildings up to three storeys; and<br />
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(b) three years from the date of commencement of these by-laws in the case of buildings exceeding three storeys.<br />
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Learned counsel for the second defendant submitted that the by-law must be read conjunctively. This leads to the situation that Parts VII and VIII can only apply to buildings which fall within one of the classifications under by-law 134, exceed 18.5m in height and are classified as hazardous and special risks. Several authorities were submitted on the interpretation of statutes. In Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189, the House of Lords held that the duty of the court is to interpret the words which the legislature has used; ‘those words may be ambiguous, but even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited’. Also, in the case of Commissioner of Stamps, Straits Settlements v Oei Tjong Swan & Ors [1933] Vol II SSR 107, His Lordship, Lord Macmillan in delivering the judgment of the Privy Council observed that the best and safest guide to the intention of the legislature is afforded by what the legislature said.<br />
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Even applying the principle in these cases, I am of the view that the by-law should be read disjunctively as there would otherwise be no need to repeat the word ‘building’ after the second and third ‘and’. By contrast, there is no ‘building’ after the first ‘and’; so that there are three distinct categories of buildings.<br />
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In the case of Public Prosecutor v Sharikat Perusahaan Makanan Haiwan Berkerjasama-sama [1969] 2 MLJ 250, reg 5 of the Food Control (Rice Milling) Regulations 1950 made under the BMA Food Control Proclamation, fell under consideration. The regulation reads: <br />
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No person shall work or operate any mill driven by a machine or an engine for the purpose of milling padi into rice or for polishing rice save under and in accordance with the terms and conditions of a licence issued in that behalf. <br />
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It was agreed that a regulation under the BMA Food Control Proclamation must be consistent with the Control of Supplies Act 1961, in order to have any force at all.<br />
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Section 6(1) gives the minister power to make regulations to carry into effect the provisions of the Act and s 6(2)(i) authorizes him to regulate and control the ‘milling of padi and the polishing of rice and the sale thereof’. It was argued for the respondents that the use of the word ‘and’ in s 6(2)(i) between the words ‘milling of padi’ and ‘the polishing of rice’ and again repetition between the words ‘the polishing of rice’ and the ‘sale thereof’ indicates that the word ‘and’ was to be read conjunctively. In other words, the regulation and control must relate to that whole and unbroken process <br />
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Page 297>>of milling, polishing and sale. Sharma J rejected the argument and observed that it ignored the provisions of s 6(1) and the opening words of s 6(2) of the Act. His Lordship held that ‘it was occasionally necessary to read the conjunction “and” as if it were “or” so that the meaning and the intent of the legislature can be carried out.’<br />
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In the instant case, as rightly pointed out by learned counsel for the plaintiffs, reading the word ‘and’ in by-law 254 conjunctively would mean that the UBBL would not apply to a building carrying out the most hazardous operations if, for example, its height did not exceed 18.5m. This would be contrary to the intent of the legislature as the UBBL clearly aim to promote fire prevention and safety. Following the case of Syarikat Perusahaan Makanan Haiwan Berkerjasama-sama, this is one of the cases where the word ‘and’ must be read as ‘or’ to carry out the meaning and intention of the legislature.<br />
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In my view, the premises in question fall into the first category. There is no dispute that they were built before 1922 and there are approved plans in respect of them.<br />
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By-law 134 provides, inter alia, that: <br />
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For the purpose of this Part every building or compartment shall be regarded according to its use or intended use as falling within one of the purpose groups set out in the Fifth Schedule of the By-law …. <br />
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The Fifth Schedule designates five purpose groups. Counsel for the second defendant argues that the premises fall within the first purpose group, ie ‘small residential’ which covers private dwelling houses. In this case, there is no doubt that the house was used as a hostel.<br />
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The plaintiffs rely on the case of Hobson v Tulloch [1898] 1 Ch 424, in which it was held that a covenant not to use a home ‘for any trade or manufacture, or for any other purpose other than a private residence’ was broken by using it as a boarding house for scholars attending a school in the neighborhood kept by the owner of the house in question. It was held that such user converts the house from private residence to the business of boarding house.<br />
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The facts are on all fours with those in the instant case. By using the house as a hostel for the students attending the school run by the first defendant, the first defendant had converted the house to the business of boarding house. On the facts, the premises did not fall under group II, IV or V, but clearly fall within category III, ie ‘other residential’ since it was used as accommodation for residential purpose other than any premises comprised in groups I and II. It follows that Parts VII and VIII of the UBBL applied to the premises, yet there was clearly no attempt by either defendant to comply with its requirements.<br />
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By-law 166 provides that except as provided by by-law 167, there shall be not less than two separate exits from each storey. By-law 167 provides that except as provided for in by-law 194, there shall be at least two storey exits for every compartment. ‘Storey exit’ is defined in by-law 133 and means a fire rated door to a protected staircase or a corridor protected with <br />
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Page 298>>fire resisting structure in accordance with the Ninth Schedule. In the instant case, there was no protected staircase or corridor as prescribed. By-law 194 has no application to this case. Even if it can be proved that the top most floor does not exceed 12m in height, the premises were not used for any occupancy other than for domestic or office purposes. It was used for the business of a boarding house. Although PW3 had expressed the opinion that the fire resisting period of each element of the structure was much less than an hour, no tests had been done in accordance with BS 476; Part 1:1953 (see by-law 133). Nonetheless, since at least one of the conditions of by-law 194 had not been complied with, the by-law did not apply.<br />
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There were no emergency exit signs in the premises as required by by-law 172. There were no means of detecting fire (see by-law 225(1)). Fire extinguishers were not in prominent positions on exit routes (see by-law 227). Water storage capacity and water flow rate for fire fighting systems in accordance with the Tenth Schedule were required by by-law 247. In the Tenth Schedule, the requirements were set out according to the category of use and category ‘Other Residential’ was further divided into sub-groups including ‘2. Hostels and Dormitories’. This is clearly the category into which these premises fall. For two to three-storey buildings in that category of use, there is a requirement for a hose reel, a manual electrical fire alarm system and single point unit emergency illumination. PW3 had testified that there was no hose reel, worse still, the water pressure was too low, there was no more than a drip from the taps in the Form 4 bathroom when the students tried to obtain water on the night of the fire. Indeed, the problem of low water pressure had been brought to the attention of the landlord, the MPPP by letter D26 and a reply given by letter D28 dated 19 November 1987. In spite of awareness of this problem, nothing was done by either party to ensure that there was water storage required for the hose reel as set out in the Tenth Schedule. There was also no emergency power system as required by by-law 253.<br />
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It is clear from the submissions for the second defendant that there was no need to comply with the UBBL because the premises were to be classified under the purpose group ‘small residential’, and the provisions did not apply. For the reasons stated, I am of the opinion that their classification was wrong.<br />
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I accept the submission for the plaintiffs that the second defendant was liable for the injury and damage caused by their failure to enforce the provisions of the UBBL in their capacity as local authority entrusted with that responsibility and also in their capacity as landlord.<br />
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In the case of Tok Jwee Kee v Tay Ah Hock & Sons Ltd & Town Council, Johore Bharu [1969] 1 MLJ 195, the plaintiff claimed a declaration that the approval of the building plans by the Johore Town Council was contrary to the Town Boards Enactment. He also sought damages against the council and the owner of the land on which the building was built. It had been alleged that there had been a breach of building by-laws but the only damage alleged was damage to the appellants property from failing cement plasters. The Federal Court considered the provisions of the Town Boards <br />
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Page 299>>Enactment and the by-laws made thereunder. Section 145 provided that the Board shall refuse to approve the plan of any new building unless it was in conformity with the approved plan. The Federal Court hold that the prohibition in s 145 is clearly a statutory duty imposed on the council and the council is liable in damages for breach of that duty if it is thought that the duty is for the benefit not of the public generally but of individuals or of a particular or definable class of the public, provided that the Enactment provides no remedy, civil or criminal for such a breach. It was also held that the same principle applies to the by-laws. On the facts of the case, it was held that the duty imposed by s 145 is owed not to the public, but to a broad class — a particular definable class of the public of which the plaintiff was one.<br />
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In the instant case, the UBBL were made in accordance with the provisions of the Street Drainage and Buildings Act 1974. It cannot be denied that the MPPP as the local authority must be under a statutory duty to enforce the Act and its by laws although there is no provision in such clear terms as s 145 in Tok Jwee Kee’s case. It was also the owner and landlord. Following Tok Jwee Kee’s case, it can also be said that they owed a duty to a particular definable class of the public, ie the occupants of the premises in question, to ensure compliance with the UBBL.<br />
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Learned counsel for the first defendant and the plaintiffs also relied on the case of Anns & Ors v London Borough of Merton [1977] 2 AER 492, in order to attach liability to the second defendant. In that case, the plaintiffs claimed damages against the council for negligence by the servants or agents in approving the foundations on which a block of maisonettes had been erected and/or in failing to inspect the foundations. The House of Lords considered whether the council were under a duty of care towards the plaintiffs who were lessees of the maisonettes which had suffered from various defects. It was held that although the Public Health Act 1936 and the by-laws did not impose a duty on the council to inspect the foundations, it did not follow that a failure to inspect could not constitute a breach of the common law duty of care; it was the duty of the council to give proper consideration of the question whether they should inspect or not. The council would be liable to the plaintiffs if it were proved that in failing to carry out an inspection, they had not properly exercised their discretion and had failed to exercise reasonable care in their acts or omissions to secure that the by-laws applicable to the foundations were complied with.<br />
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Ann’s case was overruled by the House of Lords in Murphy v Brentwood District Council [1990] 2 All ER 908 but only insofar as to say that a local authority was not liable in negligence to a building owner or occupier for the cost of remedying a dangerous defect in the building which resulted from the negligent failure of the authority to ensure that the building was designed or erected in conformity with the accepted standards prescribed by the building regulations or by-laws but which became apparent before the defect caused physical injury, because the damage suffered in such circumstances was not material or physical damage but the purely economic loss of the expenditure incurred in remedying the defect to avert the danger or in abandoning the building. In the instant case, the loss suffered by the <br />
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Page 300>>plaintiffs was certainly not purely economic but material and physical damage.<br />
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The second defendant sought alternatively to rely on s 95(2) of the Street, Drainage and Building Act 1974:<br />
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<br />
The local authority (D2) or officer or employee of the local authority shall not be subject to any action, claim, liabilities or demand whatsoever arising out of any building or other works carried out in accordance with the provisions of this Act or any by-laws made thereunder (UBBL 1986) or by reason of the fact that such building works or the plans thereof are subject to inspection and approval by the local authority and nothing in this Act or any by-laws made thereunder shall make it obligatory for the local authority to inspect any building, building works or materials to ascertain that the provisions of this Act of any by-laws made thereunder are complied with.<br />
<br />
<br />
<br />
After studying the provision, I agree with learned counsel for the plaintiff that the immunity conferred by the section is in relation to ‘works carried out in accordance with the provisions of this Act or any by-laws made thereunder’. As no works were carried out in respect of this case nor any plans submitted, the section is not applicable.<br />
<br />
Had the second defendants ensured compliance with the UBBL, there is little doubt that all the occupants could have escaped death if not injury. As pointed out, a fire alarm would have alerted them much earlier. If there had been a second staircase, the Forms 3 and 4 boys could have used that since they were misled by the glow from the hall in presuming that the main staircase was on fire. A hose reel with the required water storage capacity could have proved vital in fighting the fire, as would fire extinguishers strategically placed.<br />
<br />
In the circumstances of the fire, it was inevitable that the boys panicked. PW2 described their efforts in trying to break open the BRC mesh at the windows. Their efforts to obtain water faded as there was no water from the taps. Ultimately, PW2 jumped from the first floor window marked ‘T’ in P1B. In the circumstances, he could not be blamed for not failing to make a more timely escape nor could he have been held contributorily negligent for the injuries suffered by him, which were incurred directly as a result of his trying to escape.<br />
<br />
On the evidence, the boys had acquitted themselves as well as could be expected and certainly better than the two adults charged with looking after them. PW1 said that both wardens were in a state of panic. Both pushed their motorcycles from the house. Although DW1 testified that Frederick Augustin tried to use a fire extinguisher but failed, there was no evidence that he helped the boys to escape in any way. PW5 confirmed that it was one of the other boys, William, who urged him to run out of the house, which he did in spite of the thick smoke outside his room. He saw neither DW1 nor Frederick Augustin shouting at the boys to tell them to get out. This was left to PW1 and the boys who had escaped. DW1 was more intent on saving his belongings than his charges. He was mindlessly removing his belongings even as PW2 called to him for help in moving him away from the house after jumping down from the window. When even adults had reacted <br />
<br />
<br />
<br />
Page 301>>as DW1 had done, there can surely be no criticism levelled against teenaged boys who, though terror stricken had done their best to save themselves. They had never participated in any fire drills nor been given any instructions on what to do in the event of a fire. In the circumstances, I found no contributory negligence against the plaintiffs, and found both defendants equally to blame, as submitted by learned counsel for the plaintiffs and the first defendant.<br />
<br />
Quantum<br />
<br />
Cases 53–26, 27, 28 and 33–92 involve fatalities and it was agreed that on proof of 100% liability the plaintiffs in each of the cases were entitled to RM10,000 as bereavement apart from Surin Thinagaran whose charred body was found at the scene, the other three boys only died after a lapse of time. However, there was no evidence as to whether they were in a coma or underwent pain and suffering. There being no claim under this head, no award was made for pain and suffering (see Thangavelu v Chia Kok Bin [1981] 2 MLJ 227). Agreed special damages in each of the cases were RM3291.50, RM3040.50, RM5040.50 and RM12,500 respectively. In 53–26–92, item 4 of the special damages was disputed although there is no dispute that the plaintiff had paid PW3 the sum of S$13,296.20 for the preparation of his report, P5. P5 was a comprehensive report supported by photographs and plans relied on not only by the plaintiffs but also by the defence. It was invaluable in assisting the court to form conclusions about the fire. The other reports D29 and D32 were certainly not of much assistance as they were not as detailed or lucid. I am of the view that the expense incurred was not excessive for the degree of expertise that it bought and I allowed it.<br />
<br />
53–25–92–(Yong Yit Swee)<br />
<br />
The plaintiff suffered burns on 50% of his body and underwent six operations. He carries permanent scars on the front and back of the trunk of his body and on all four limbs. He suffers permanent disabilities set out in P13, P14 and P25. In the case of Pengarah Institut Penyelidikan Perubatan & Anor v Inthra Devi & Anor [1988] 1 MLJ 19, the plaintiff sustained 65% first and second degree burns involving parts of the face, trunk, both thighs and both upper limbs. She underwent surgery on two occasions where areas with skin loss were covered with skin graft. She developed keloid scars on almost the whole of the front of the body left upper limb, both thighs and areas behind the knees and legs. She would require RM3,000–RM5,000 annually for surgical rehabilitation. She was also found to require indefinite psychiatric therapy throughout her life. She was awarded RM80,000 for general damages apart from awards for plastic surgery and the cost of psychiatric therapy.<br />
<br />
Applying that case, I awarded the sum of RM70,000 as general damages. The injuries and disabilities are comparable to those in Inthra Devi’s case. Moreover, Inthra Devi’s case was decided eight years ago and <br />
<br />
<br />
<br />
Page 302>>the effects of inflation should be considered. In the circumstances, the award was not excessive.<br />
<br />
53–29–92 (Lee Seng Choong)<br />
<br />
The plaintiff suffered 50% third degree burns and underwent six operations — P15 and P24 referred to. P15 mentions the severe pain and suffering he had undergone. He has thick scars over both sides of his neck, on his chest and both thighs. He has contractures of the neck, both hands, ankles and feet. His hands are severely deformed. There are permanent disabilities. Applying Inthra Devi’s case, I awarded RM80,000 for the burns, scars and associated disabilities.<br />
<br />
For the loss of his right little finger, and the severe contracture of his right hand, I assessed the sum of RM30,000 based on the case of Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd [1982] 2 MLJ 71. In that case, the plaintiff was awarded RM15,000 for pain and suffering and loss of amenities, associated with the loss of two middle fingers and part of the index finger of the right hand. This case was decided in 1982, more than 13 years ago and in view of the plaintiffs injuries and disabilities which were more serious, I awarded the sum of RM30,000. Total general damages of RM110,000 were awarded. Agreed special damages of RM7151.20 were also awarded.<br />
<br />
53–30–92 (Vigneshwara)<br />
<br />
He suffered superficial to deep dermal or full thickness burns on 30% of his body with keloid scars on both arms and some limitations of movement of his left hand. He has undergone two operations (P16 and P17 referred to). In the case of Low Mei Yong (An Infant) (Spinster) suing by her mother and next friend Ng Chen Fong (mw) v Yeoh Geok Keow (mw) (Dass on Quantum in Accident Claims, Vol III, 374, the four year old plaintiff sustained 4% friction burns over her right upper thigh which required skin grafting. Apart from some hypertrophic scars, there was no other disability. She was awarded general damages of $9500 in 1982.<br />
<br />
In this case, the plaintiff’s burns covered a far greater part of his body and left keloid scars. He also had some limitation of movement which was not suffered by the plaintiff in Low Mei Yong’s case, which is a 13 year old decision. In the circumstances, I awarded a sum of RM30,000 for general damages and RM14,578 agreed special damages.<br />
<br />
53–31–92 (Yap Lip San)<br />
<br />
He suffered 70% body burns and underwent six operations (exh P18 refers). There is no doubt his injuries were serious but there was no evidence of any residual disabilities. Based on the authority referred to in 53–25–92, he was awarded general damages of RM50,000 based on the case of Low Mei Yong. His burns covered a greater portion of his body compared to the plaintiff in Low Mei Yong’s case and the award is justifiably greater.<br />
<br />
<br />
<br />
Page 303>><br />
<br />
For the closed fracture of the neck of the femur associated with four operations and 3cm shortening, I awarded the sum of RM26,000 (exhs P19, P20, P21 and P22 referred to). In Victor Alphonse Sebastian & Ors v Lee Ah Leek [1987] 2 MLJ xxi, general damages of RM33,000 were awarded for a fracture of the right midshaft femur with 1.5cm shortening, inability to squat and pain in his right knee.<br />
<br />
I awarded the sum of RM26,000 as general damages for pain and suffering and loss of amenities, as the disabilities were fewer although the shortening was more.<br />
<br />
Learned counsel for the second defendant had submitted that the injury to the femur was too remote. I rejected this submission as I found that the fracture was directly related to his attempt to escape the fire. He had jumped to effect a hasty escape which was what the second defendant demanded of the teenaged occupants and they should not be heard to argue that the damage caused in such attempt was too remote. Agreed special damages of RM6,000 were also awarded.<br />
<br />
In my view, the damages awarded were not excessive but reasonable, in view of the facts and authorities. Interest on general damages was awarded at 8%pa from the date of service of summons till the date of judgment while that on special damages was 4% per annum from the date of accident till date of judgment. Interest on the judgment sum was awarded at 8%pa from the date of judgment till satisfaction. Costs were also awarded.Raghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-4952364547344128652010-03-14T08:05:00.000-07:002010-03-14T08:05:19.966-07:00Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee & Ors*Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee & Ors*<br />
<br />
Headnote<br />
<br />
Court Details<br />
<br />
COURT OF APPEAL (KUALA LUMPUR) — CIVIL APPEAL NO P–04–8 OF 1998<br />
<br />
GOPAL SRI RAM, ABDUL KADIR SULAIMAN AND ALAUDDIN JJCA<br />
<br />
19 NOVEMBER 2002<br />
<br />
Catchwords<br />
<br />
Civil Procedure — Judicial precedent — Federal Court — Decision of High Court overlooked relevant decision of Federal Court — Whether High Court had acted contrary to the doctrine of precedent<br />
<br />
<br />
<br />
Tort — Negligence — Duty of care — Whether discharge of such duty dependent on facts of particular case — Whether degree of care dependent on magnitude of risk — Assumption of responsibility to perform professional or quasi-professional services for plaintiff relying on such services — Whether duty of care to be imposed — Assumption of responsibility and factum of reliance may be express or inferred from circumstances of each case<br />
<br />
<br />
<br />
Tort — Negligence — Duty of care — Whether pre-existing contractual relationship necessary for duty of care to arise<br />
<br />
<br />
<br />
Tort — Occupier’s liability — Duty of care — Nature, scope and extent of duty owed by landlord to lawful visitors of his tenant<br />
<br />
<br />
<br />
Tort — Occupier’s liability — Duty of care — Whether duty of care owed by landlord of premises to lawful visitors of tenant<br />
<br />
Summary<br />
<br />
[* The judgment of the learned sessions court judge, Ho Mooi Ching, is published immediately after this Court of Appeal judgment. See p 290.The first defendant (appellant) — a school, rented an old dwelling house from the second defendant (tenth respondent) — a local authority.] The first defendant rented the house which belonged to the second defendant for use as a hostel to accommodate some of its students. The second defendant despite knowing that young children would live in the old house, did nothing to upgrade the building to ensure that it was safe for use as a hostel by young children. Subsequently a fire broke out in the house claiming the lives of several children and causing serious injury to others. An action was filed in the sessions court against the defendants in respect of the accident and at the conclusion of its trial, the sessions court judge found the defendants equally liable for the deaths and injuries caused by the fire. The first defendant appealed to the High Court contending that the second defendant should be held solely liable. The second defendant cross-appealed for the same purpose. The High Court however dismissed the appeal, allowed the cross appeal and awarded costs against the plaintiff. Whilst the High Court accepted the findings of fact made by the sessions court judge, it found for the second defendant purely on a point of law. The High Court decided that as a matter of law the second defendant whether as a landlord or a local authority owed no duty of care to the plaintiffs. The first defendant thus appealed to the Court of Appeal with leave.<br />
<br />
Holdings<br />
<br />
Held, allowing the appeal, setting aside the order of the High Court and restoring the order of the sessions court:<br />
<br />
(1) Whether the duty of care has been discharged in a given case depends on a number of factors present or absent on the peculiar fact pattern of the particular case. In other words, the degree of care that ought to be exercised depends among other matters on the magnitude of risk to which a plaintiff is exposed in particular circumstances. Presently, the law of tort imposes a duty of care on a defendant who assumes responsibility to perform professional or quasi-professional services for a plaintiff who relies on those services. In such cases the relationship between the parties is itself sufficient without more to give rise to a duty on the part of the defendant to exercise reasonable skill and care in doing so. The assumption of responsibility and the factum of reliance may be either express or may reasonably be inferred from the circumstances of the particular case. In the instant case, the sessions court judge would have been entirely justified in finding liability against the first defendant on the basis that it had assumed responsibility for the safety of the innocent pupils while they resided at the hostel and the latter had in turn relied on the former to make the hostel reasonably safe (see pp 281C–D, H, 282A–B); Government of Malaysia & Ors v Jumat bin Mahmud & Anor [1977] 2 MLJ 103 and Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors [1981] 2 MLJ 27 followed; Hedley Byrne & Co v Heller & Partners [1964] AC 465; Smith v Eric S Bush [1989] 2 All ER 514 and Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 referred.<br />
<br />
(2) In Malaysia, the Federal Court decision of Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 accepted the proposition that Donoghue v Stevenson [1932] AC 562 overrides cases that preceded it where courts insisted upon a pre-existing contractual relationship in order for a duty of care to arise. It is entirely up to our courts to develop our common law jurisprudence according to the needs of our local circumstances. This is in keeping with the common law tradition (see p 285D–E); Invercargill City Council v Hamlin [1996] 1 All ER 756 and Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356 followed. Following the jurisprudence encapsulated in the case of Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283, a landlord of premises stands in sufficiently close proximity to the lawful visitors of his tenant. In accordance with Malaysian common law, a landlord of premises owes a duty of care to the lawful visitors of his tenant (see p 286A, C–D); Cavalier v Pope [1906] AC 428 distinguished; AC Billings & Sons Ltd v Riden [1958] AC 240 and Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 followed; Travers v Gloucester Corporation [1947] 1 KB 71 and Sutherland Shire Council v Heyman [1985] 157 CLR 424 referred.<br />
<br />
(3) The nature, scope and extent of the duty owed by a landlord to the lawful visitors of his tenant is to ensure that the premises that are let out are safe for the purposes for which they are meant to be used and the defect complained of by the entrant must be a defect of which the landlord had knowledge or means of knowledge (see pp 286D–287C); Jones v Bartlett [2000] HCA 56 followed. <br />
<br />
(4) The evidence on record showed that the second defendant, despite being a local authority whose duty it was to enforce compliance of the Uniform Building By-Laws 1986 (‘the By-Laws’), did not comply with those very By-Laws when letting out the building in question to the first defendant. It did not take any steps to meet the requirements of the By-Laws in respect of the availability of a safe exit for occupants in the event of a fire. It was well aware that the building was to be used as a hostel for young children. In such circumstances the second defendant was not a bare landlord. It exposed the plaintiffs to the risk of injury by its failure to comply with the relevant By-Laws. It knew the purpose for which its property was to be used. It was also well aware of the harm that would ensue to the children by reason of the absence or inadequacy of fire escape exits. Accordingly, the second defendant as the landlord of the premises in question owed a duty of care to the lawful visitors of its tenant and was in breach of that duty (see pp 287F–288B); Donoghue v Stevenson [1932] AC 562 and Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 followed.<br />
<br />
(5) The High Court erred in important respects. By refusing to apply AC Billings & Sons Ltd v Riden [1958] AC 240 on the ground that it was a case decided after the coming into force of the Civil Law Act 1956, it overlooked the decision of the Federal Court in Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 which applied AC Billings and was a decision binding on it. The High Court had thus acted contrary to the doctrine of precedent. The High Court’s interpretation of s 3 of the Civil Law Act 1956 did not also accord with the decision of Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356 which decision was also binding on it. As an appellate court will not disturb the apportionment of liability for an accident made by the trial court except in the rarest of cases — and the present case was not such a case — the apportionment of equal liability by the sessions court had to be restored. The High Court had found the first defendant 100% liable on a ground of law with which the Court of Appeal could not agree (see pp 288E–F, 289C–D); AC Billings & Sons Ltd v Riden [1958] AC 240; Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 and Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356 followed.<br />
<br />
Bahasa Malaysia summary<br />
<br />
Defendan pertama (perayu) — sebuah sekolah, telah menyewa sebuah rumah kediaman lama daripada defendan kedua (responden kesepuluh) — satu badan berkuasa. Defendan pertama telah menyewa rumah tersebut yang dimiliki oleh defendan kedua untuk digunakan sebagai sebuah asrama bagi menempatkan beberapa orang penuntutnya. Defendan kedua walaupun mengetahui bahawa budak-budak akan tinggal di rumah lama tersebut, tidak membuat apa-apa pembaikan ke atas bangunan tersebut bagi memastikan ia selamat untuk digunakan sebagai sebuah asrama untuk budak-budak. Selepas itu satu kebakaran telah berlaku dalam rumah tersebut yang meragut nyawa beberapa orang budak tersebut dan menyebabkan yang lain mengalami kecederaan serius. Satu tindakan telah difailkan di mahkamah sesyen terhadap defendan-defendan berhubung kemalangan tersebut dan di penutup perbicaraannya, hakim mahkamah sesyen mendapati defendan-defendan bersama-sama bertanggungjawab atas kematian dan kecederaan akibat kebakaran tersebut. Defendan pertama telah merayu ke Mahkamah Tinggi dengan menghujahkan bahawa defendan kedua sepatutnya menanggung tanggungjawab sepenuhnya. Defendan kedua telah membuat rayuan balas bagi tujuan yang sama. Mahkamah Tinggi bagaimanapun telah menolak rayuan tersebut, membenarkan rayuan balas tersebut dan mengawardkan kos terhadap plaintif. Walaupun Mahkamah Tinggi menerima penemuan-penemuan fakta yang dibuat oleh hakim mahkamah sesyen, ia berpihak kepada defendan kedua semata-mata berdasarkan undang-undang. Mahkamah Tinggi telah memutuskan bahawa berdasarkan undang-undang defendan kedua sama ada sebagai tuanpunya tanah atau satu badan berkuasa tidak mempunyai kewajipan berjaga-jaga ke atas plaintif-plaintif. Defendan pertama oleh itu telah merayu ke Mahkamah Rayuan dengan kebenaran. <br />
<br />
Bahasa Holdings<br />
<br />
Diputuskan, membenarkan rayuan tersebut, mengenepikan perintah Mahkamah Tinggi dan mengekalkan perintah mahkamah sesyen:<br />
<br />
(1) Sama ada kewajipan berjaga-jaga telah dilepaskan dalam suatu kes bergantung kepada faktor-faktor yang wujud atau tiada dalam corak fakta khusus kes tertentu. Dalam perkataan lain, tahap berjaga-jaga yang patut ada bergantung kepada, antara perkara lain, besarnya pendedahan plaintif terhadap risiko-risiko dalam keadaan-keadaan yang tertentu. Pada ketika ini, undang-undang tort mengenakan satu kewajipan berjaga-jaga ke atas defendan yang menerima tanggungjawab untuk melaksanakan khidmat profesional atau quasi-profesional untuk plaintif yang bergantung kepada khidmat tersebut. Dalam keadaan demikian, hubungan antara pihak-pihak adalah dengan sendirinya mencukupi tanpa perlu menimbulkan satu kewajipan di pihak defendan untuk mengambil sikap mahir dan berjaga-jaga yang munasabah semasa berbuat demikian. Penerimaan tanggungjawab dan faktor pergantungan boleh dinyatakan atau boleh disimpulkan daripada keadaan-keadaan kes tertentu. Dalam kes semasa, hakim mahkamah sesyen mempunyai justifikasi dalam penemuan liabiliti terhadap defendan pertama berdasarkan ia telah menerima tanggungjawab untuk keselamatan penuntut-penuntut yang tidak bersalah semasa mereka menetap di asrama tersebut dan penuntut-penuntut tersebut juga bergantung kepada defendan pertama untuk menjadikan asrama tersebut selamat untuk diduduki (lihat ms 281C–D, H, 282A–B); Government of Malaysia & Ors v Jumat bin Mahmud & Anor [1977] 2 MLJ 103 dan Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors [1981] 2 MLJ 27diikut; Hedley Byrne & Co v Heller & Partners [1964] AC 465; Smith v Eric S Bush [1989] 2 All ER 514 dan Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 dirujuk.<br />
<br />
(2) Di Malaysia, keputusan Mahkamah Persekutuan dalam Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 menerima kenyataan bahawa Donoghue v Stevenson [1932] AC 562 mengatasi kes-kes yang sebelumnya di mana mahkamah menegaskan perlunya satu hubungan kontraktual wujud sebelum satu kewajipan berjaga-jaga timbul. Ia terpulang sepenuhnya kepada mahkamah kita untuk membentuk jurisprudens common law menurut keperluan keadaan tempatan di sini (lihat ms 285D–E); Invercargill City Council v Hamlin [1996] 1 All ER 756 dan Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356 diikut. Mengikut jurisprudens yang terkandung dalam Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283, seorang tuanpunya tanah suatu premis mempunyai keadaan berdekatan yang mencukupi terhadap tetamu-tetamu penyewanya yang sah. Menurut common law Malaysia, seorang tuanpunya tanah suatu premis mempunyai satu kewajipan berjaga-jaga kepada tetamu penyewanya yang sah (lihat ms 286A, C–D); Cavalier v Pope [1906] AC 428 dibeza; AC Billings & Sons Ltd v Riden [1958] AC 240 dan Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 diikut; Travers v Gloucester Corporation [1947] 1 KB 71 dan Sutherland Shire Council v Heyman [1985] 157 CLR 424 dirujuk.<br />
<br />
(3) Sifat, skop dan setakat mana kewajipan seorang tuanpunya tanah kepada tetamu-tetamu penyewanya yang sah adalah untuk memastikan bahawa premis yang disewakan adalah selamat bagi tujuan ia digunakan dan kerosakan yang diadukan oleh orang yang masuk tersebut mestilah satu kerosakan yang mana tuanpunya tanah mempunyai pengetahuan atau sumber pengetahuan (lihat ms 286D–287C).<br />
<br />
(4) Keterangan atas rekod menunjukkan bahawa defendan kedua, meskipun merupakan satu badan berkuasa tempatan yang mempunyai kewajipan untuk menguatkuasakan kepatuhan Undang-Undang Kecil Bangunan Seragam 1986 (‘Undang-Undang Kecil tersebut’), telah tidak mematuhi Undang-Undang Kecil tersebut apabila ia menyewakan bangunan yang dipersoalkan kepada defendan pertama. Ia tidak mengambil apa-apa langkah untuk memenuhi keperluan-keperluan Undang-Undang Kecil tersebut berhubung kewujudan satu jalan keluar untuk penghuni-penghuni jika berlaku kebakaran. Ia juga sedar bahawa bangunan tersebut digunakan sebagai asrama untuk budak-budak. Dalam keadaan sedemikian, defendan kedua bukan seorang tuanpunya tanah kosong. Ia mendedahkan plaintif-plaintif kepada risiko kecederaan oleh sebab kegagalannya untuk mematuhi Undang-Undang Kecil tersebut yang relevan. Ia mengetahui tujuan hartanah tersebut digunakan. Ia juga memang sedar tentang kecederaan yang akan menimpa budak-budak tersebut oleh sebab ketiadaan jalan keluar kecemasan semasa kebakaran yang mencukupi. Sewajarnya, defendan kedua sebagai tuanpunya tanah premis yang dipersoalkan mempunyai kewajipan berjaga-jaga kepada tetamu-tetamu sah penyewanya dan telah melanggar kewajipan tersebut (lihat ms 287F–288B); Donoghue v Stevenson [1932] AC 562 dan Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 diikut.<br />
<br />
(5) Mahkamah Tinggi telah terkhilaf dalam aspek-aspek penting. Dalam keengganannya untuk memakai AC Billings & Sons Ltd v Riden [1958] AC 240 atas alasan ia merupakan satu kes yang diputuskan selepas penguatkuasaan Akta Undang-Undang Sivil 1956, ia telah terlepas perhatian tentang keputusan Mahkamah Persekutuan dalam Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 yang memakai AC Billings dan ia adalah satu keputusan yang mengikatnya. Mahkamah Tinggi oleh itu telah bertindak bertentangan dengan doktrin duluan. Tafsiran Mahkamah Tinggi terhadap s 3 Akta Undang-Undang Sivil 1956 juga tidak bersependapat dengan Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356 di mana keputusannya juga mengikatnya. Memandangkan satu mahkamah rayuan tidak akan campur tangan dalam pembahagian liabiliti suatu kemalangan yang dibuat oleh mahkamah perbicaraan kecuali dalam kes-kes yang jarang sekali — dan dalam kes sekarang bukan kes sedemikian — pembahagian liabiti yang sama rata oleh mahkamah sesyen harus dikekalkan. Mahkamah Tinggi mendapati defendan pertama bertanggungjawab 100% atas satu alasan undang-undang yang Mahkamah Rayuan tidak bersetuju (lihat ms 288E–F, 289C–D); AC Billings & Sons Ltd v Riden [1958] AC 240; Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 dan Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor diikut.]<br />
<br />
<br />
<br />
Notes<br />
<br />
For cases on the duty of care in negligence, see 12 Mallal’s Digest (4th Ed, 2000 Reissue) paras 687–694.<br />
<br />
For cases on judicial precedent, see 2 Mallal’s Digest (4th Ed, 2001 Reissue) paras 3611–3612.<br />
<br />
For cases on occupier’s liability, see 12 Mallal’s Digest (4th Ed, 2000 Reissue) paras 1186–1189.<br />
<br />
Cases referred to<br />
<br />
AC Billings & Sons Ltd v Riden [1958] AC 240 (folld)<br />
<br />
Cavalier v Pope [1906] AC 428 (distd)<br />
<br />
Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356 (folld)<br />
<br />
Donoghue v Stevenson [1932] AC 562 (folld)<br />
<br />
Government of Malaysia & Ors v Jumat bin Mahmud & Anor [1977] 2 MLJ 103 (folld)<br />
<br />
Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465 (refd)<br />
<br />
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 (refd)<br />
<br />
Invercargill City Council v Hamlin [1996] 1 All ER 756 (folld)<br />
<br />
Jones v Bartlett [2000] HCA 56 (folld)<br />
<br />
Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 (folld)<br />
<br />
Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors [1981] 2 MLJ 27 (folld)<br />
<br />
Pyrenees Shire Council v Day (1998) 151 ALR 147 (refd)<br />
<br />
Robbins v Jones [1863] 143 ER 768 (refd)<br />
<br />
Smith v Eric S Bush [1989] 2 All ER 514 (refd)<br />
<br />
Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee & Ors [1998] 3 AMR 284 (refd)<br />
<br />
Stovin v Wise [1996] 3 All ER 801 (refd)<br />
<br />
Sutherland Shire Council v Heyman [1985] 157 CLR 424 (refd)<br />
<br />
Travers v Gloucester Corporation [1947] 1 KB 71 (refd)<br />
<br />
Union of India v United India Assurance Co Ltd AIR 1998 SC 640 (refd)<br />
<br />
Legislation referred to<br />
<br />
Civil Law Act 1956 s 3(1)<br />
<br />
Occupiers Liability Act 1957<br />
<br />
Uniform Building By-Laws 1986<br />
<br />
Appeal from<br />
<br />
Appeal from: Civil Appeal No 12–46 of 1995 (High Court, Pulau Pinang)<br />
<br />
Lawyers<br />
<br />
Jagdeep Singh Deo (Karpal Singh with him) (Karpal Singh & Co) for the appellant.<br />
<br />
M Thayalan (Thayalan & Assoc) for the first to ninth respondents.<br />
<br />
Gurbachan Singh (Mohamed Aslam bin Mohamed Mydin and Meyappan with him) (Presgrave & Matthews) for the tenth respondent.<br />
<br />
Judgement - Gopal Sri Ram JCA (delivering judgment of the court):<br />
<br />
Gopal Sri Ram JCA (delivering judgment of the court):<br />
<br />
The facts In the early hours of the morning of 16 February 1989, a fire broke out in the building at No 1, Park Road, Pulau Pinang. It claimed several lives and caused serious injury to others. They were all young children. We will say in a moment how they came to be there.<br />
<br />
For convenience, we will refer to the parties to this appeal by the title assigned to each of them in the court of first instance.<br />
<br />
The first defendant is a school. It has a campus in Pulau Pinang. It needed a hostel to accommodate some of its students there. It found a building, a very old dwelling house. According to the unchallenged evidence, the building had been in existence even before 1922.<br />
<br />
The second defendant is a local authority. It owned the building in question. It let the old building out to the first defendant. It knew very well the use to which the first defendant would put the building. It knew that young children would live in that old building. But it did nothing to upgrade the building to ensure that it was safe for use as a hostel by young children. That much is borne out by the evidence. And there is no serious dispute about this.<br />
<br />
In all the letting was for three years. The initial term was for two years from 20 December 1986 until 19 December 1988. This was later extended to 19 December 1989. Throughout the term, the premises were used as a hostel. Young children who attended the first defendant’s school lived there. And that is why they were there on the day of the tragedy.<br />
<br />
The judgment of the sessions court<br />
<br />
In due course, an action was filed in the sessions court against the defendants in respect of the accident. The second defendant’s position was attacked both in its capacity as a landlord and a local authority. There was a fairly lengthy trial. At its conclusion, the court found for the plaintiffs. In an exceptionally well-reasoned judgment,†[ * dagger; See p 280 for the judgment.] the learned sessions court judge (Ms Ho Mooi Cheng) held the defendants equally liable for the deaths and the injury caused by the fire.<br />
<br />
She took the case before her through the correct steps of legal reasoning. First, she carefully analyzed the evidence including that of the expert witness (‘PW3’) called by the plaintiffs. Having done so, she came to the conclusion that the premises were unsafe at the material time. Next, she turned to the law, in particular to the basis on which liability might properly be founded against the first defendant. She held, quite rightly, that the first defendant and its affected pupils stood in a special relationship to each other and that accordingly a duty of care was owed by the former to the latter. In arriving at this conclusion, she correctly directed herself on the law by applying the following dictum of Raja Azlan Shah FJ (as he then was) in Government of Malaysia & Ors v Jumat bin Mahmud & Anor [1977] 2 MLJ 103, at p 104:<br />
<br />
<br />
<br />
It is accepted that by reason of the special relationship of teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care, for the safety of the pupil. The duty of care on the part of the teacher to the plaintiff must commensurate with his/her opportunity and ability to protect the pupil from dangers that are known or that should be apprehended and the duty of care required is that which a careful father with a very large family would take of his own children (see Ricketts v Erith Borough Council [1943] 2 All ER 629, 631). It is not a duty of insurance against harm but only a duty to take reasonable care for the safety of the pupil.<br />
<br />
<br />
<br />
We pause to make two points. First, it must be noted that the aforesaid dictum of Raja Azlan Shah FJ contains a statement in very general terms of the nature of the duty owed by a teacher to his or her pupil. However, whether the duty has been discharged in a given case depends upon a number of factors present or absent on the peculiar fact pattern of the particular case. In other words, the degree of care that ought to be exercised depends, among other matters, on the magnitude of risk to which a plaintiff is exposed in particular circumstances. Thus, as Salleh Abas FJ observed in Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors [1981] 2 MLJ 27, at p 28:<br />
<br />
<br />
<br />
In conclusion we are of the opinion that having regards to what we have discussed above, the respondents were therefore negligent for failing to take all reasonable and proper steps to prevent the appellant under their care from sustaining the injury and that their teacher did not check the condition of the garden tools nor provided a safe system of holding the gardening class. This is not a case where the teacher, as in the case of Government of Malaysia & Ors v Jumat bin Mohamed & Anor [1977] 2 MLJ 103, had provided sufficient supervision but could not prevent the injury from being inflicted because of the stupidity of a pupil, whose exuberant behaviour was unknown to the teacher. But this is a case where a teacher appreciating that the boys were handling dangerous instruments had not given sufficient warning as to their use nor had she taken steps to see that pupils were positioned within such distance between them as to avoid injuries from being inflicted. There is a world of difference between the use of a changkol and that of a pencil.<br />
<br />
<br />
<br />
The second point we make is this. There has been, at least since the late 1980’s a development in the tort of negligence through a process by which the principle stated in Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465 in relation to pure economic loss caused by careless statements has been incrementally extended. At present, the law of tort imposes a duty of care on a defendant who assumes responsibility to perform professional or quasi-professional services for a plaintiff who relies on those services. It is important to emphasize that in such cases, the relationship between the parties is itself sufficient, without more, to give rise to a duty on the part of the defendant (who provides the services) to exercise reasonable skill and care in doing so (see Smith v Eric S Bush [1989] 2 All ER 514; Henderson v Merrett Syndicates Ltd [1995] 2 AC 145). It may also be added for good measure that the assumption of responsibility and the factum of reliance may be either express (as in Hedley Byrne & Co v Heller & Partners Ltd) or may reasonably be inferred from the circumstances of the particular case (as happened in Henderson v Merrett Syndicates Ltd).<br />
<br />
So too here. The learned sessions court judge, when she wrote her judgment in May 1995, would have been entirely justified in finding liability against the first defendant on the basis that it has assumed responsibility for the safety of the innocent pupils while they resided at the hostel and that the latter had in turn relied on the former to make the hostel reasonably safe.<br />
<br />
We return to the sessions court’s judgment. Having found against the first defendant, the learned sessions court judge proceeded to find liability against the second defendant. She appears to have treated the case against this defendant as being a straightforward application of Donoghue v Stevenson [1932] AC 562. It is this part of her judgment that has attracted controversy in the present appeal. Whether she was right in the approach she took is a matter that we will address later in this judgment.<br />
<br />
The judgment of the High Court<br />
<br />
The first defendant was unhappy with the finding of negligence made against it. It appealed to the High Court. It wanted the second defendant to be held solely liable for the accidental fire. The second defendant cross- appealed for the same purpose. The High Court dismissed the appeal but allowed the cross appeal. It awarded costs against the plaintiffs although they had not appealed and played only a passive role throughout the intermediate appeal. The High Court accepted the findings of fact made by the sessions court. It found for the second defendant purely on a point of law. It held that as a matter of law, the second defendant whether as a landlord or a local authority owed no duty of care to the plaintiffs.<br />
<br />
The basis of the High Court’s findings appear sufficiently from its judgment which is to be found in Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee & Ors [1998] 3 AMR 2847. We will merely summarize the main grounds which the High Court advanced for allowing the second defendant’s cross appeal. These are, first, the second defendant owed no duty to the plaintiffs in its capacity as landlord because of the rule in Cavalier v Pope [1906] AC 428. Second, the common law rules governing an occupier’s liability continue to operate in Malaysia although the position in England had been altered by the Occupiers Liability Act 1957. Third, the decision of the House of Lords in AC Billings & Sons Ltd v Riden [1958] AC 240 had made an inroad into Cavalier v Pope but that decision could not be applied here because it came after 7 April 1956, the determinative date set by s 3(1) of the Civil Law Act 1956 for the application of English common law by our courts. Fourth, that there was no reason to rely on the proviso to s 3(1) to — in the words of the statute — make such qualifications as local circumstances render necessary.<br />
<br />
The summary of the High Court’s views on this head of liability appear in the following passage of its judgment (at p 2866):<br />
<br />
<br />
<br />
As can be seen from these authorities, the general rule is that (it appears that in England ‘was’), apart from any express or implied contract, the landlord is under no duty to his tenant or any other person who enters the demised premises during the tenancy, to take care that the premises are safe, whether at the commencement of the tenancy or during its continuance. The lease transfers all obligations towards third parties from the landlord to the tenant. <br />
<br />
As a result, the landlord, who can no longer be regarded as the occupier of the demised premises is exempted from liability for any dangers existing on them. In England, one of the first steps in the erosion of this immunity of the lessor came from the decision of the House of Lords in AC Billings & Sons Ltd v Riden [1958] AC 240. (Note the date). In England today, the immunity has largely disappeared, principally in consequence of legislation, namely the Occupiers Liability Act 1957 and the Defective Premises Act 1972 (both English statutes). However the decision in Cavalier v Pope is still the law in England, where the facts fall outside the scope of the said legislation.<br />
<br />
This reminds us of the danger of following post-1956 English cases which were in fact based on new legislation there.<br />
<br />
In my view the common law on 7 April 1956 is as stated by the learned authors referred to above and as stated in Cavalier v Pope and Bottomley v Bannister. I do not see any reason why I should invoke the proviso to s 3(1) of the Civil Law Act 1956 ‘to make such qualifications as local circumstances render necessary’. (Emphasis added.)<br />
<br />
<br />
<br />
Having negatived the second defendant’s liability as a landlord in tort, the High Court went on to examine whether there was any liability in contract. It held there was none. It also negatived the second defendant’s liability in tort in its capacity as a local authority for failing to enforce the relevant building by-laws in respect of its building.<br />
<br />
Against the High Court’s decision, the first defendant has appealed to this court with leave.<br />
<br />
Does a landlord owe a duty of care to his tenant’s lawful visitors?<br />
<br />
Before us, all points advanced in the courts below were taken. In view of its peculiar importance, we propose to deal with so much of the first defendant’s case that is directed against the nature and extent of the duty of care, if any, owed by the second defendant in its capacity as landlord to the plaintiffs.<br />
<br />
The starting point is, of course, Cavalier v Pope. That case concerned a dilapidated house which the owner had let unfurnished to the tenant. There was no written agreement governing the letting. The flooring of the kitchen was in a defective condition and the tenant and his wife threatened to leave. The landlord’s agent promised that, if the tenant stayed, repairs would be made. Some months later, but before any repairs had been made, the wife (the appellant) fell through the kitchen floor. The appellant and her husband brought an action for breach of contract against the landlord. The husband succeeded at trial. But it was the wife’s claim that was the subject of the appeal before the House of Lords. She failed on the basis that she was not privy to the contract of repair between her husband and the landlord’s agent. An examination of the speeches of the Law Lords reveals no reference whatsoever to the tort of negligence.<br />
<br />
When dealing with that decision, it is important to bear in mind that the House there was not laying down any new rule. It was merely affirming the decision in Robbins v Jones [1863] 143 ER 768 where Erle CJ said:<br />
<br />
<br />
<br />
A landlord who lets a house in a dangerous state, is not liable to the tenant’s customers or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumbledown house; and the tenant’s remedy is upon his contract, if any.<br />
<br />
<br />
<br />
In our view, Cavalier v Pope is merely an illustration of the application of the doctrine of privity of contract. It is not a case in tort.<br />
<br />
We next turn to AC Billings v Riden [1958] AC 240. We find it sufficient to quote from the headnote of the report:<br />
<br />
<br />
<br />
Contractors reconstructing the front approach to a house in which lived a caretaker and his wife so obstructed the normal approach that it became impassable. Their workmen suggested to the caretaker’s wife that persons might go in and out of the house by using the forecourt of the house next door, a route involving danger because it led through a narrow way between bushes and the unfenced sunk area of the house. On a November evening after dark the respondent, a woman of 71, visiting the caretaker and his wife by invitation, used that way in on the wife’s suggestion. In leaving by the same way; after declining an offer to escort her, she fell into the area next door sustaining injuries:<br />
<br />
Held, that the contractors had been negligent and were liable in damages to the respondent, who, although she was guilty of contributory negligence, did not act unreasonably in attempting to use the alternative means of egress.<br />
<br />
The contractors owed a duty to all persons who might be expected lawfully to visit the house to take such care as was, in all the circumstances, reasonable to ensure that they were not exposed to danger. Where, as here, the respondent was aware of the danger but, in all the circumstances, a reasonable person would have risked incurring it, the contractors were not absolved from liability either by giving a warning or by reliance on the respondent’s knowledge. In considering what a reasonable person would realise or would do in a particular situation, regard must be had to human nature, and if, in that situation, the great majority of people would behave in one way, it is not right to say that a reasonable man would have behaved in another.<br />
<br />
<br />
<br />
AC Billings v Riden was applied with approval by the former Federal Court in Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283. Salleh Abas CJ (Malaya) said at pp 284–285:<br />
<br />
<br />
<br />
As to the issue of negligence, Felda did not know that the contractor in breach of the agreement with Felda had sub-contracted the work. Counsel for Felda, therefore, submitted that as the subcontract was unauthorized, the sub-contractor’s employee, ie the deceased, must in the circumstances of the case be a trespasser and as such Felda owed him no duty of care at all.<br />
<br />
With respect, we disagree. The submission seems to us to be an attempt to revive a notion which had long been discarded in that tortious liability depends upon contractual relationship and that since Felda and the deceased had no contractual relationship with each other, Felda therefore owed no duty of care to him at all.<br />
<br />
This notion was abandoned in England by the House of Lords in Donoghue v Stevenson [1932] AC 562, 580 and it was, to paraphrase Professor Winfield, given a ‘decent burial’ by the Privy Council in Grant v Australian Knitting Mills Ltd [1936] AC 85, 101–102. An attempt to revive it was repelled by Lord Denning in Greene v Chelsea Borough Council [1954] 2 QB 127, 138. These cases establish that a person owes a duty of care even to persons who have no contractual relationship with him, and that his liability to an injured person depends upon whether the injury was caused by his act or omission. It is the nature of his act and omission that makes him liable. Thus a contractor who obstructed the normal approach to a house which he was engaged to reconstruct was held liable to a visitor of the house, when the latter was injured as a result of using a dangerous alternative access, despite the fact that the visitor had been informed of and appreciated the danger (see AC Billings & Sons Ltd v Riden [1958] AC 240). The duty cast upon the contractor in this case was not derived from the contract between him and the owner of the house but one which is cast by law in that because of the danger created by him, he must take a reasonable care to ensure that visitors were not exposed to it. (Emphasis added.)<br />
<br />
<br />
<br />
The importance of the decision of the Federal Court in Lembaga Kemajuan Tanah Persekutuan v Mariam lies in the acceptance in Malaysia of the proposition that Donoghue v Stevenson has had an overriding effect upon cases that preceded it where courts insisted upon a pre-existing contractual relationship in order for a duty of care to arise. Cavalier v Pope is one such case. Accordingly, it is in our view irrelevant that the courts in England regard Cavalier v Pope as being unaffected by the Delphic pronouncement of Lord Atkin in Donoghue. See, for example, Travers v Gloucester Corporation [1947] 1 KB 71, a case cited by learned counsel for the second defendant. It is entirely up to our courts to develop our common law jurisprudence according to the needs of our local circumstances. The Privy Council accepts this to be in keeping with the common law tradition. So, in Invercargill City Council v Hamlin [1996] 1 All ER 756, Lord Lloyd Berwick said at p 764:<br />
<br />
<br />
<br />
But in the present case, the judges in the New Zealand Court of Appeal were consciously departing from English case law on the ground that conditions in New Zealand are different. Were they entitled to do so? The answer must surely be ‘Yes’. The ability of the common law to adapt itself to the differing circumstances of the countries in which it has taken root is not a weakness, but one of its great strengths. Were it not so, the common law would not have flourished as it has, with all the common law countries learning from each other.<br />
<br />
<br />
<br />
The approach of our courts to the development of our common law is to be found in the judgment of Hashim Yeop A Sani CJ (Malaya) delivered in the Supreme Court case of Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356 where he said at p 361:<br />
<br />
<br />
<br />
Section 3 of the Civil Law Act 1956 directs the courts to apply the common law of England only in so far as the circumstances permit and save where no provision has been made by statute law. The development of the common law after 7 April 1956 (for the States of Malaya) is entirely in the hands of the courts of this country.<br />
<br />
<br />
<br />
Following the jurisprudence encapsulated in Lembaga Kemajuan Tanah Persekutuan v Mariam, in our judgment, a landlord of premises stands in sufficiently close proximity to the lawful visitors of his tenant. And the latter is certainly someone whom the former ought to have in his contemplation when letting out his building. In short, the relationship under discussion falls squarely within the Atkinian formula. We take this opportunity to point out that our decision is entirely in keeping with the common law philosophy in relation to the tort of negligence. That philosophy was expressed by Brennan J in Sutherland Shire Council v Heyman [1985] 157 CLR 424 at p 481:<br />
<br />
<br />
<br />
It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative, or to reduce or limit the scope of the duty.<br />
<br />
<br />
<br />
For the foregoing reasons, we hold that in accordance with our common law, a landlord of premises owes a duty of care to the lawful visitors of his tenant.<br />
<br />
The nature, scope and extent of the duty<br />
<br />
As for the nature and scope of the duty owed by a landlord to the lawful visitors of his tenant, we refer to two passages in the joint judgment of Gummow and Hayne JJ in the Australian High Court in Jones v Bartlett [2000] HCA 56. In the first passage, their Honours when dealing with the nature of the duty of care owed by a landlord to his tenant said:<br />
<br />
<br />
<br />
The relationship between landlord and tenant is so close and direct that the landlord is obliged to take reasonable care that the tenant not suffer injury. In considering the degree of care which must be taken, and the means by which a tenant may be injured, it must be borne in mind, as already discussed, that ordinarily the landlord will surrender occupation of the premises to the tenant. Thus, the content of any duty is likely to be less than that owed by an owner-occupier who retains the ability to direct what is done upon, with and to the premises. Broadly, the content of the landlord’s duty to the tenant will be conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence. (Emphasis added.)<br />
<br />
<br />
<br />
In the second passage they said:<br />
<br />
<br />
<br />
[D]angerous defects are unlikely to discriminate between tenants and those on the premises whether as an incident of a familial or other personal relationship, as in this case, Cavalier v Pope, and Northern Sandblasting, [the reference here is to Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313] or some other social or business relationship or occasion. The landlord’s duty to take reasonable care that the premises contained no dangerous defects, owed in the sense earlier described to the tenants, extends to those other entrants we have identified. <br />
<br />
Nevertheless, the duty of the landlord owed to these third parties, in many cases, will be narrower than that owed to them by an occupier such as a tenant. An example of facts not involving the placing of a duty on the landlord is a slippery floor; an unsecured gate to a fenced swimming pool may be another. The duty of care of the landlord to the third party is only attracted by the presence of dangerous defects in the sense identified earlier in these reasons. These involve dangers arising not merely from occupation and possession of premises, but from the letting out of premises as safe for purposes for which they were not safe. What must be involved is a dangerous defect of which the landlord knew or ought to have known.’ (Emphasis added.)<br />
<br />
<br />
<br />
To summarize, the duty owed by a landlord to the lawful visitors of his tenant is to ensure that the premises that are let out are safe for the purposes for which they are meant to be used and the defect complained of by the entrant must be a defect of which the landlord had knowledge or means of knowledge. This then is the nature, scope and extent of the duty in question.<br />
<br />
We now turn to deal with the present appeal.<br />
<br />
The present appeal<br />
<br />
Learned counsel for the second defendant has argued against the imposition of any duty of care on his client in the circumstances of the present case. He says that his client, unlike the statutory body in Lembaga Kemajuan Tanah Persekutuan v Mariam, was a bare landlord in the sense that it was not engaged in any positive act on the premises that produced the harm suffered by the plaintiffs.<br />
<br />
This is no doubt an important argument. For, as a matter of policy the law governing the tort of negligence does not, as a general rule, impose liability for omissions.<br />
<br />
But a closer look at the principle reveals that it protects only pure omissions. It does not apply to a case where a defendant creates a danger, eg, by leaving an unlit vehicle on the highway. In such a case, the defendant would be under a duty to warn others of the danger he has created.<br />
<br />
Learned counsel for the plaintiffs has drawn our attention to the evidence on record which clearly shows that the second defendant, despite being a local authority whose duty it is to enforce compliance of the Uniform Building By-Laws 1986 (‘the By-Laws’) did not comply with those very By-Laws when letting out the building in question to the first defendant. It is plain from the evidence that the second defendant did not take any steps to meet the requirements of the By-Laws particularly in respect of the availability of a safe exit for occupants in the event of a fire. That indeed was the finding of the sessions court. Add to this the fact that the second defendant was well aware that the building was to be used as a hostel to be occupied by young children. In these circumstances we agree with learned counsel for the plaintiffs that the second defendant was not a bare landlord. The second defendant did in fact expose the plaintiffs to the risk of injury by its failure to comply with the relevant By-Laws.<br />
<br />
Like the manufacturer of the product in Donoghue, the second defendant here knew the purpose for which his property was to be used. Equally, it was well aware of the harm that would ensue to the children by reason of the absence or inadequacy of fire escape exits.<br />
<br />
It follows that we are not, in the present instance, extending the law of negligence into a new field. We are not even making an incremental advance. All that is required of us here is a straightforward application of Donoghue v Stevenson. The ground for this is, as we have already said, established by Lembaga Kemajuan Tanah Persekutuan v Mariam. We therefore reject the submission of learned counsel for the second defendant.<br />
<br />
For the foregoing reasons, we hold that the second defendant as the landlord of the premises in question did owe a duty of care to the lawful visitors of his tenant and was in breach of that duty.<br />
<br />
Was the High Court right?<br />
<br />
It is apparent for the reasons given thus far that we are unable to agree with the decision of the High Court. In our view, that court erred in important respects.<br />
<br />
In the first place, it refused to apply AC Billings v Riden, apparently on the ground that it was a case decided after the coming into force of the Civil Law Act 1956. The High Court appears to have overlooked the decision of the Federal Court in Lembaga Kemajuan Tanah Persekutuan v Mariam, which applied AC Billings v Riden and was a decision that was plainly binding on it. Accordingly, in our respectful view, the High Court acted contrary to the doctrine of precedent.<br />
<br />
Further, the High Court’s interpretation of the proviso to s 3 of the Civil Law Act 1956 does not accord with the interpretation given to that provision by the CJ (Malaya) in Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor. Again, the High Court overlooked this decision also plainly binding on it.<br />
<br />
The local authority point<br />
<br />
The High Court also reversed the sessions court on the ground that the second defendant in its capacity as a local authority did not owe a duty of care as a matter of law. This finding was attacked before us by counsel for the first defendant. We were referred to Stovin v Wise [1996] 3 All ER 801. The majority speeches in the House in that case support the second defendant here.<br />
<br />
But our attention was drawn to the powerful dissent of Lords Nicholls of Birkenhead and Slynn of Hadley and we were invited to adopt these in preference to the views of the majority. We note that the courts of Australia have indeed done so. See, Pyrenees Shire Council v Day [1998] 151 ALR 147. The Supreme Court of India in Union of India v United India Assurance Co Ltd AIR 1998 SC 640, in a judgment delivered by that most learned and eminent judge Jagannadha Rao J, has also developed jurisprudence in keeping with the views of the minority in Stovin’s case.We have found the discussion of the cases and the argument addressed to us on the point to be of much interest. It is a point of law which our courts may have to resolve in some case in the future. But the present instance is not the case for this court to do that. The approach we have taken will render any views we express on the subject pure obiter. We therefore decline to enter upon this part of the case.<br />
<br />
The apportionment of liability<br />
<br />
The sessions court found the defendants equally liable. When opening the appeal, counsel for the first defendant argued that it is the second defendant which ought to be held solely liable. However, under pressure of argument, counsel retreated from his earlier position and conceded that the apportionment of liability inter se the defendants made by the sessions court should be restored.<br />
<br />
Counsel was correct in the concession he made. Save in the rarest of cases — and the present instance is not such a case — an appellate court will not disturb the apportionment of liability for an accident made by the trial court. The High Court found the first defendant 100% liable. But it did so on a ground of law with which we do not agree. Accordingly, the apportionment by the sessions court must be restored.<br />
<br />
The result<br />
<br />
For the reasons already given, the appeal is allowed. The order of the High Court in all respects is set aside. The order of the sessions court is restored. The second defendant will pay all the costs of the plaintiffs and the first defendant at all levels except costs in the sessions court, that is to say, that the plaintiffs and the first defendant will tax their respective bills against the second defendant.<br />
<br />
Before we conclude, we would like to thank all counsel for their careful argument. But we must make special mention of Mr Gurubachan Singh and Mr Thayalan who appeared for the second defendant and the plaintiffs respectively. The brevity of their argument and their citation of relevant cases has made our task far less burdensome.<br />
<br />
<br />
<br />
Appeal allowed, order of the High Court set aside and order of the sessions court restored.<br />
<br />
<br />
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Reported by Andrew Christopher SimonRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-50631414927002220722010-02-03T17:28:00.000-08:002010-02-03T17:28:48.529-08:00THE LAWS OF ULTIMATE REALITY<span style="background-color: white;"><strong><span style="color: red;">THE LAWS OF ULTIMATE REALITY</span></strong> </span><br />
<br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Law of Mechanical Repair</span></em></strong> <br />
<span style="color: blue;">After your hands become coated with grease, your nose will begin to itch and you'll have to pee</span>. <br />
<br />
<br />
<br />
<strong><em><span style="background-color: white;"> <span style="color: red;">Law of Gravity</span> </span></em></strong><br />
<span style="color: blue;">Any tool, when dropped, will roll to the least accessible corner.</span><br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Law of Probability </span></em></strong><br />
<span style="color: blue;">The probability of being watched is directly proportional to the stupidity of your act.</span><br />
<br />
<br />
<br />
<strong><span style="color: red;"> Law of Random Numbers</span> </strong><br />
<span style="color: blue;">If you dial a wrong number, you never get a busy signal and someone always answers.</span><br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Law of the Alibi </span></em></strong><br />
<span style="color: blue;">If you tell the boss you were late for work because you had a flat tire, the very next morning you will have a flat tire.</span><br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Variation Law </span></em></strong><br />
<span style="color: blue;">If you change lines (or traffic lanes), the one you were in will always move faster than the one you are in now (works every time)</span><br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Law of the Bath </span></em></strong><br />
<span style="background-color: white; color: blue;">When the body is fully immersed in water, the telephone rings. </span><br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Law of Close Encounters</span></em></strong> <br />
<span style="color: blue;">The probability of meeting someone you know increases dramatically when you are with someone you don't want to be seen with.</span><br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Law of the Result </span></em></strong><br />
<span style="color: blue;">When you try to prove to someone that a machine won't work, it will</span>.<br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Law of Biomechanics </span></em></strong><br />
<span style="color: blue;">The severity of the itch is inversely proportional to the reach.</span><br />
<br />
<br />
<br />
<span style="color: red;"><strong><em> Law of the Theater</em></strong></span> <br />
<span style="color: blue;">At any event, the people whose seats are furthest from the aisle arrive last</span>.<br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> The Starbucks Law </span></em></strong><br />
<span style="color: blue;">As soon as you sit down to a cup of hot coffee, your boss will ask you to do something which will last until the coffee is cold.</span><br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Murphy's Law of Lockers </span></em></strong><br />
<span style="color: blue;">If there are only two people in a locker room, they will have adjacent lockers.</span><br />
<br />
<br />
<br />
<em><strong><span style="color: red;"> Law of Physical Surfaces</span></strong></em> <br />
<span style="color: blue;">The chances of an open-faced jelly sandwich landing face down on a floor covering are directly correlated to the newness and cost of the carpet/rug.</span><br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Law of Logical Argument </span></em></strong><br />
<span style="color: blue;">Anything is possible if you don't know what you are talking about.</span><br />
<br />
<br />
<br />
<strong><em><span style="background-color: red; color: white;"><span style="background-color: white; color: black;"> <span style="color: red;">Brown's Law of Physical Appearance</span></span><span style="background-color: white; color: red;"> </span></span></em></strong><br />
<span style="color: blue;">If the shoe fits, it's ugly.</span><br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Oliver's Law of Public Speaking </span></em></strong><br />
<span style="color: blue;">A closed mouth gathers no feet</span>.<br />
<br />
<br />
<br />
<strong><em><span style="color: red;"> Wilson's Law of Commercial Marketing Strategy</span></em></strong> <br />
<span style="color: blue;">As soon as you find a product that you really like, they will stop making it.</span><br />
<br />
<br />
<span style="color: blue;"></span><br />
<strong><em><span style="color: red;"> Doctors' Law </span></em></strong><br />
<span style="color: blue;">If you don't feel well, make an appointment to go to the doctor, by the time you get there you'll feel better. Don't make an appointment and you'll stay sick. </span>Raghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-78788091992434683892010-01-28T05:31:00.000-08:002010-01-28T17:24:33.622-08:00Kerajaan Negeri Terengganu v Petroliam Nasional Bhd & Anor<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiVqjIXwqp2ZOYbokQM__ESFNgCtbK2XoMGTfF80nYZVyusa7A5-Mv5tfLcwHzch1WS065U6NqDhAuKcrolAbuxzrqDTOy14dwFmpYmgsAjaCvfwOzddPVMzjOjUEK_R4jHu3udNtz6Q9g8/s1600-h/petronas.gif" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="148" kt="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiVqjIXwqp2ZOYbokQM__ESFNgCtbK2XoMGTfF80nYZVyusa7A5-Mv5tfLcwHzch1WS065U6NqDhAuKcrolAbuxzrqDTOy14dwFmpYmgsAjaCvfwOzddPVMzjOjUEK_R4jHu3udNtz6Q9g8/s320/petronas.gif" width="320" /></a></div>[2003] 1 MLJ 260<br />
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<br />
<strong><span style="color: #0b5394;">Kerajaan Negeri Terengganu v Petroliam Nasional Bhd & Anor</span></strong><br />
<br />
<span style="color: red;">Headnote</span><br />
<br />
<span style="color: red;">Court Details</span><br />
<br />
<span style="color: #0b5394;">HIGH COURT (KUALA LUMPUR) — CIVIL OF COURT NO S3–21–99 OF 2001</span><br />
<br />
ARIFIN ZAKARIA J<br />
<br />
29 AUGUST 2002<br />
<br />
<span style="color: red;">Catchwords</span><br />
<br />
Civil Procedure — Preliminary issue — Application for issues or questions raised in pleadings to be tried on preliminary basis — Whether the issues or questions could be appropriately dealt with under O 14A and/or O 33 of the RHC — Rules of the High Court O 14A & O 33<br />
<br />
<span style="color: red;">Summary</span><br />
<br />
On 22 July 1975, the Government of the State of Terengganu (‘the plaintiff’), by the then Menteri Besar, signed a vesting instrument, vesting on the first defendant the ownership, rights, powers, liberties and privileges of exploring, exploiting, winning and obtaining petroleum. On the same date an agreement was entered into by both parties whereby it was agreed that in consideration of the vesting instrument, the first defendant shall make payments in the form of a yearly sum amounting to the equivalent of 5% of the value of petroleum won and saved in the State of Terengganu and sold by the first defendant, its agent or contractors. Accordingly payments were made until March 2000 when the first defendant ceased to make such payment. The plaintiff brought this action against both the defendants based on several causes of action as set out in its statement of claim wherein the plaintiff sought several reliefs. After the close of the pleadings, the first and second defendants filed summons in chambers (‘SIC’) in encll (4) and (6) respectively seeking leave of the court for the determination of several preliminary issues of law under O 14A and/or O 33 of the Rules of the High Court 1980 (‘the RHC’). The defendants contended that the determination of those issues, one way or the other, would be decisive of the matter before the court. The plaintiff strenously resisted the defendants’ application in encll (4) and (6). The question before the court was whether the issues of both facts and law arising in the instant case could be appropriately dealt with under O 14A and/or O 33 r 2 of the RHC.<br />
<br />
<span style="color: red;">Holdings</span><br />
<br />
Held, dismissing the defendants’ application with costs:<br />
<br />
(1) The plaintiff should be given the opportunity to call witnesses to give evidence on the factual background leading to the execution of the two agreements. This was highly relevant to the interpretation and construction of the two agreements. Whether such evidence would support the plaintiff’s case was a matter which should be left to the trial judge to decide after having heard the witness or witnesses concerned (see p 270A–B).<br />
<br />
(2) Order 14A and O 33 procedures should only be used in clear and simple cases. Having considered the pleadings and submissions of the parties, the court decided that the case was far from being plain and simple. It raised a number of complex legal issues involving, among other, the interpretation and construction of the Federal and State Constitutions, international conventions, the Petroleum Development Act 1974 and a number of other statutes. Further, the parties had failed to come to an agreement on the facts relevant to the issues before the court (see pp 271B–C, 272D–E).<br />
<br />
<span style="color: red;">Bahasa Malaysia summary</span><br />
<br />
Pada 22 Julai 1975, Kerajaan Negeri Terengganu (‘plaintif’), menerusi Menteri Besarnya ketika itu, telah menandatangani satu instrumen meletakhak ke atas defendan pertama pemunyaan, hak, kuasa, kebebasan dan keistimewaan mencari, menggali dan mengambil petroleum. Pada tarikh yang sama satu perjanjian telah dimasuki oleh kedua-dua pihak yang mana telah dipersetujui bahawa sebagai balasan instrumen meletakhak tersebut, defendan pertama akan membuat bayaran dalam bentuk jumlah tahunan yang bersamaan dengan 5% nilai petroleum yang telah diambil dari Negeri Terengganu dan dijual oleh defendan pertama, ejen dan kontraktornya. Bayaran-bayaran tersebut telah dibuat sehinggalah bulan Mac 2000 bila mana defendan pertama berhenti membuat pembayaran tersebut. Plaintif mengambil tindakan ini terhadap kedua-dua defendan berlandaskan beberapa kausa tindakan yang dinyatakan di dalam pernyataan tuntutannya yang mana plaintif telah memohon beberapa relif. Setelah penutupan pliding, defendan pertama dan kedua telah memfailkan saman dalam kamar lampiran (4) dan (6) masing-masing memohon kebenaran mahkamah bagi memutuskan beberapa isu permulaan yang berkaitan dengan undang-undang di bawah A 14A dan/atau A 33 Kaedah-kaedah Mahkamah Tinggi 1980 (‘KMT’). Defendan-defendan menyatakan bahawa keputusan ke atas isu-isu tersebut akan dapat menentukan perkara yang dihadapkan di hadapan mahkamah. Plaintif membantah permohonan defendan di dalam lampiran (4) dan (6). Persoalan di hadapan mahkamah adalah sama ada isu-isu yang berkaitan dengan fakta dan undang-undang di dalam kes semasa dapat ditentukan dengan sewajarnya di bawah A 14A dan/atau A 33 k 2 KMT.<br />
<br />
<span style="color: red;">Bahasa Holdings</span><br />
<br />
Diputuskan, menolak permohonan defendan-defendan dengan kos:<br />
<br />
(1) Plaintif seharusnya diberi peluang untuk memanggil saksi-saksi bagi memberi keterangan berkenaan dengan fakta-fakta yang membawa kepada penyempurnaan kedua-dua perjanjian tersebut. Ini adalah sangat relevan untuk terjemahan dan pentafsiran kedua-dua perjanjian tersebut. Sama ada keterangan sedemikian akan menyokong kes plaintif adalah perkara yang patut ditentukan oleh hakim perbicaraan setelah beliau mendengar saksi-saksi yang dikatakan (lihat ms 270A–B).<br />
<br />
(2) Prosedur-prosedur di dalam A 14A dan A 33 hanya boleh digunakan di dalam kes-kes yang jelas dan mudah. Setelah menimbangkan pliding-pliding dan hujah-hujah kedua-dua pihak, mahkamah memutuskan bahawa kes ini bukanlah kes yang jelas dan mudah. Ia telah menimbulkan beberapa isu undang-undang yang kompleks yang melibatkan, antara lainnya, pentafsiran Perlembagaan Persekutuan dan Negeri, konvensyen antarabangsa, Akta Kemajuan Petroleum 1974 dan beberapa lagi undang-undang. Tambahan lagi, kedua-dua pihak telah gagal untuk mencapai persetujuan ke atas fakta-fakta yang relevan bagi isu-isu yang dihadapkan ke mahkamah (lihat 271B–C, 272D–E).]<br />
<br />
<span style="color: red;">Notes</span><br />
<br />
For cases on preliminary issues, see 2 Mallal’s Digest (4th Ed, 2001 Reissue) para 4903.<br />
<br />
<span style="color: red;">Cases referred to</span><br />
<br />
Ahmad Tajudin bin Hj Ishak v Suruhanjaya Pelabuhan Pulau Pinang [1997] 1 MLJ 241 (refd)<br />
<br />
Allen v Gulf Oil Ltd [1981] AC 1001 (refd)<br />
<br />
Citibank NA v Ooi Boon Leong & Ors [1981] 1 MLJ 282 (refd)<br />
<br />
Korso Finance Establishment Anstalt v John Wedge unrep, 15 February 1994 CA Transcript No 14/387 (refd)<br />
<br />
MBf Capital Bhd & Anor v Tommy Thomas & Anor (No 5) [1998] 3 MLJ 226 (refd)<br />
<br />
Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474 (refd)<br />
<br />
Palaniappa Chettiar v Sithambaram Chettiar & Ors [1982] 1 MLJ 186 (refd)<br />
<br />
Prenn v Simmonds [1971] 3 All ER 237 (refd)<br />
<br />
SI Rajah & Anor v Dato’ Mak Hon Kam & Ors (No 1) [1993) 3 MLJ 741 (refd)<br />
<br />
Tilling v Whiteman [1982] AC 1 (refd)<br />
<br />
<span style="color: red;">Legislation referred to</span><br />
<br />
Companies Act 1965<br />
<br />
Evidence Act 1950<br />
<br />
Petroleum Development Act 1974 s 2<br />
<br />
Rules of the Supreme Court [Eng] O 14<br />
<br />
Rules of the High Court 1980 O 14A r 1(2), O 33 r (2)<br />
<br />
Supreme Court Practice 1999 Vol 1 para 14A/2/5<br />
<br />
<span style="color: red;">Lawyers</span><br />
<br />
Tommy Thomas (Sitpah Silvaratnam and Megat S Merican with him) (Tommy Thomas) for the plaintiff.<br />
<br />
Cecil Abraham (RS Nathan and Rishwant Singh with him) (Shearn Delamore & Co) for the first defendant.<br />
<br />
Dato’ Azahar bin Mohamed (Dato’ Mary Lim and Azizah bte Nawawi with him) (Attorney General’s Chambers) for the second defendant.<br />
<br />
Judgement - Arifin Zakaria J: <br />
<br />
Arifin Zakaria J: The plaintiff is the Government of the State of Terengganu, one of the component states of the Federation of Malaysia. The first defendant is a body corporate incorporated under the Companies Act 1965 and conferred with the rights, powers, privileges and liberties set out in the Petroleum Development Act 1974 (‘PDA’). The second defendant is the Government of Malaysia. The PDA came into force on 1 October 1974, s 2 which provides:<br />
<br />
<br />
<br />
(1) The entire ownership in, and the exclusive rights, powers, liberties and privileges of exploring, exploiting, winning and obtaining petroleum whether onshore or offshore of Malaysia shall be vested in a Corporation to be incorporated under the Companies Act, 1965, or under the law relating to incorporation of companies.<br />
<br />
(2) The vesting of the ownership, rights, powers, liberties, and privileges referred to in sub-s (1) shall take effect on the execution of an instrument in the form contained in the Schedule to this Act.<br />
<br />
(3) The ownership and the exclusive rights, powers, liberties and privileges so vested shall be irrevocable and shall enure for the benefit of the Corporation and its successor.<br />
<br />
<br />
<br />
On the 22 July 1975, the vesting instrument was signed by the then Menteri Besar of the plaintiff, vesting on the first defendant the ownership, rights, powers, liberties and privileges of exploring, exploiting, winning and obtaining petroleum. On the same date, an agreement was entered into between the plaintiff and the first defendant whereby it was agreed that in consideration of the vesting instrument granted by the plaintiff to the first defendant, the first defendant shall make cash payments in the form of a yearly sum amounting to the equivalent of 5% of the value of petroleum won and saved in the State of Terengganu and sold by the first defendant, its agents or contractors. Accordingly, payments were made by the first defendant to the plaintiff from the year 1978 until March 2000, when the first defendant ceased to make such payment.<br />
<br />
The plaintiff brought this action against both the first and second defendants based on several causes of action as set out in the statement of claim wherein the plaintiff seeks the following reliefs, namely:<br />
<br />
<br />
<br />
(A) As against the first defendant:<br />
<br />
(i) specific performance of the principal and supplementary agreements;<br />
<br />
(ii) an order that the first defendant pays within 14 days of an order of this court to the plaintiff the cash payments due and payable on 1 September 2000 and at future dates in accordance with the terms of the principal and supplementary agreements;<br />
<br />
(iii) damages for breach of contract; and<br />
<br />
(iv) general damages.<br />
<br />
(B) As against the second defendant:<br />
<br />
(i) general damages;<br />
<br />
(ii) aggravated damages; and<br />
<br />
(iii) exemplary damages.<br />
<br />
(C) As against both defendants:<br />
<br />
(i) interest on all sums ordered to be paid at such rate and for such period as the courts deems fit;<br />
<br />
(ii) costs; and<br />
<br />
(iii) further or other reliefs.<br />
<br />
<br />
<br />
After the close of pleadings, the first and second defendants respectively filed the summons in chambers (‘SIC’) (encll (4) and (6) respectively) seeking leave of this court for the determination of several preliminary issues of the law under O 14A and/or O 33 of the Rules of the High Court 1980 (‘the RHC’).<br />
<br />
The proposed questions or issues of law as formulated by the first defendant are found in Appendix I to their SIC which for ease of reference are reproduced below:<br />
<br />
<br />
<br />
<span style="color: red;">PROPOSED QUESTIONS OR ISSUES OF LAW</span><br />
<br />
1 Did the plaintiff have any rights over petroleum won and saved in the ‘continental shelf’ (as defined in the Continental Shelf Act 1966 (‘CSA’) (hereinafter ‘Continental Shelf’) off the plaintiff s coast up and just prior to:<br />
<br />
(i) the enactment of the Petroleum Development Act 1974 (‘PDA’)?<br />
<br />
(ii) the execution of the Agreement dated 22 March 1975 between the plaintiff and the first defendant?<br />
<br />
2 Did the plaintiff vest any rights to petroleum won and saved in the Continental Shelf off the plaintiff’s coast in the first defendant vide:<br />
<br />
(i) the ‘Vesting instrument’?<br />
<br />
(ii) the Agreement dated 22 March 1975 between the plaintiff and the first defendant?<br />
<br />
3 Is the plaintiff entitled to payment under s 4 of the PDA in respect of petroleum won and saved in the Continental Shelf off the plaintiffs coast?<br />
<br />
4 Does the doctrine of estoppel apply to Petronas?<br />
<br />
5 Has the plaintiff any legitimate expection of continuing to receive payment from the first defendant in respect of petroleum won and saved in the Continental Shelf off the plaintiffs coast?’<br />
<br />
<br />
<br />
The proposed questions or issues of law as formulated by the second defendant are found in Appendix A to their SIC which are reproduced below:<br />
<br />
<br />
<br />
<span style="color: red;">PROPOSED QUESTIONS OR ISSUES OF LAW</span><br />
<br />
1 Did the plaintiff have any rights under the law over petroleum won and saved in the ‘continental shelf’ (as defined under the Continental Shelf Act 1966) adjacent to the plaintiffs coast up and just prior to —<br />
<br />
(i) the enactment of the Petroleum Development Act 1974?<br />
<br />
(ii) the execution of the Agreement dated 22 March 1975 between the plaintiff and the first defendant?<br />
<br />
2 If the answer to the first question is in the negative, can the plaintiff nevertheless validly vest any rights under the law in respect of petroleum won and saved in the ‘continental shelf’ (as defined under the Continental Shelf Act 1966) so as to enable the plaintiff to receive payment in respect of the same, vide —<br />
<br />
(i) the ‘Vesting Instrument’?<br />
<br />
(ii) the Agreement dated 22 March 1975 between the plaintiff and the first defendant?<br />
<br />
3 On a true and proper construction of the intent and purpose of s 4 of the Petroleum Development Act 1974, is payment due to the plaintiff in respect of petroleum won and saved in the ‘continental shelf’ (as defined under the Continental Shelf Act 1966) pursuant to the ‘Vesting Instrument’ and the Agreement dated 22 March 1975 entered into between the plaintiff and the first defendant.<br />
<br />
<br />
<br />
Mr Cecil Abraham, the learned counsel for the first defendant contends that the disputes in this suit principally revolve around the interpretation of the provisions of the Federal Constitution, the State Constitution of Terengganu, the agreements, statutes and conventions referred to in the pleadings. He then submits that the court is perfectly able to elucidate the provisions of the constitutions, agreements, statutes and conventions without the aid of extrinsic or oral evidence. It is the defendants’ contention that these questions or issues if determined one way or the other will be decisive of the matter before the court. The learned counsel for the second defendant, Dato’ Azahar bin Mohamed in large measure adopts the submission of Mr Cecil Abraham and adds that the proposed statement of agreed facts which he contends, are based on undisputed facts derived from the plaintiff’s own pleadings, are sufficient to assist the court to determine the core issues, that is, whether the plaintiff has any rights to petroleum in the continental shelf off the coast of Terengganu between the years 1911–1975.<br />
<br />
The plaintiff strenuously resists these applications on the grounds appearing in the affidavit of Tun Dato’ Dr Haji Mohd Salleh bin Abas affirmed on 24 December 2001. These are found in paras 7–15 of his affidavit which, for ease of reference, are reproduced below:<br />
<br />
<br />
<br />
7 First the pleadings. The statement of claim contains 87 paras and in 28pp. The defence filed on behalf of Petronas is in 52 paras and 29pp. The defence filed on behalf of the second defendant (‘the Federal Government’) is in 65 paras and runs to 33pp. Our reply to each defence is equally lengthy and extensive. The pleadings total 113 pp.<br />
<br />
8 Secondly, the causes of action relied upon by the Terengganu State Government in its statement of claim are exhaustive in nature. As against Petronas are raised causes of action in private law founded in breach of contract, estoppel and breaches of statutory duty. Public law causes of action include breaches of arts 8 and 13 of the Federal Constitution and breaches of administrative law for acting ultra vires the Petroleum Development Act 1974.<br />
<br />
9 As against the Federal Government, the Terengganu State Government relies upon causes of action based on the tort of inducing breach of contract and upon public law for damages for violations of the Federal Constitution and Petroleum Development Act 1974, including aggravated and or exemplary damages.<br />
<br />
10 Thirdly, numerous issues of complexity are raised in the pleadings. Thus, each cause of the action it self raises multiple issues of fact and law.<br />
<br />
11 Fourthly, myriad question of law fall for determination. They include novel and difficult legal questions, some of which have never been considered b any court. Such questions cannot be answered in isolation or in a vacuum; they can only be properly determined after evidence, both documentary and viva voce, are adduced and facts emerge at trial. Hence, it is vital for the factual matrix to evolve and develop before an attempt is made to determine legal questions.<br />
<br />
12 Fifthly, discovery of documents is fundamental to this case. A review of the pleadings will indicate and that this suit involves massive documentation, including historical sources pertaining to the rights and privileges of the Terengganu State Government and issues of sovereignty. Justice cannot be achieved in dealing with the documents by the short-cut method proposed by the defendants.<br />
<br />
13 Sixthly, having regard to the pleaded issues, it is vital that witnesses testify in the normal way in a trial and be subject to cross-examination so that this honorable court is put in a position to make findings of fact which would then assist the court to reach conclusions on the respective cases of the three parties.<br />
<br />
14 Finally, having regard to the complex issues of fact and law, and the scale and magnitude of the cash payments, one can reasonably expect this case to go on appeal, first to the Court of Appeal and thereafter, if leave is secured, to the Federal Court. The appellate courts would be in a much better position to hear the appeals after a trial rather than a summary disposal as envisaged by the defendants.<br />
<br />
15 This is a heavy commercial/constitutional case of public and national interest. It cannot be disposed off in a summary way.’<br />
<br />
<br />
<br />
Order 14A of the RHC<br />
<br />
It is pertinent to consider the scope and efficacy of O 14A. This order was first introduced into our RHC by PU(A) 342/2000. The objective of the order is to expedite the final disposal of an action at interlocutory stage with the view of saving costs and time. This order was adopted from O 14A of the English Rules of the Supreme Court with some modification. Our O 14A of the RHC reads as follows:<br />
<br />
<br />
<br />
1 Determination of questions of law and construction (O 14 r 1):<br />
<br />
(1) The court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the court that —<br />
<br />
(a) such question is suitable for determination without the full trial of the action; and<br />
<br />
(b) such determination will finally determine the entire cause or matter or any claim or issue therein.<br />
<br />
(2) Upon such determination the court may dismiss the cause or matter or make such order or judgment as it thinks just.<br />
<br />
<br />
<br />
In Korso Finance Establishment Anstalt v John Wedge (unrep, 15 February 1994 CA Transcript No 14/387) the English Court of Appeal laid down the following principles:<br />
<br />
<br />
<br />
1 An issue is a disputed point of fact or law relied on by way of claim or defence.<br />
<br />
2 A question of construction is well capable of constituting an issue.<br />
<br />
3 If a question of construction will finally determine whether an important issue is suitable for determination under O 14A and where it is a dominant feature of the case a court ought to proceed to so determine such issue.<br />
<br />
4 Respondents to an application under O 14A are not entitled to contend they should be allowed to hunt around for evidence or something that might turn up on discovery which could be relied upon to explain or modify the mean in of the relevant document. If there were material circumstances of which the court should take account in construing the document, they must be taken to have been known, and could only be such as were known, to the parties when the agreement was made. In the absence of such evidence the court should not refrain from dealing with the application.<br />
<br />
<br />
<br />
(see The Supreme Court Practice 1999 Vol 1 para 14A/2/5).<br />
<br />
It should of course be noted that under O 14A r 1(2) of the RHC, the court has a wide discretion. It may upon determination of the question of law or construction dismiss the action or make such order or judgment as it thinks just. Thus, the action may be disposed of without a full trial and the judgment or order will have the same force and effect as the judgment or order after a full trial of the action. The defendants herein urged the court to adopt this procedure in the disposal of this case.<br />
<br />
O 33 r 2 of the RHC<br />
<br />
In the alternative the defendants seek to rely on O 33 r 2 of the RHC, which provides as follows:<br />
<br />
<br />
<br />
(2) The court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.<br />
<br />
<br />
<br />
Order 33 r (2) of the RHC came to be considered by our courts in a number of cases. One such cases is Palaniappa Chettiar v Sithambaram Chettiar & Ors [1982] 1 MLJ 186, where the FC held that (at pp 186–187):<br />
<br />
<br />
<br />
The learned judge was correct in holding that it would be convenient to try the preliminary issue, as if the contention of the respondents is upheld, this could conclude the whole proceedings and it would be unnecessary to try other issues.<br />
<br />
<br />
<br />
In SI Rajah & Anor v Dato’ Mak Hon Kam & Ors (No 1) [1993) 3 MLJ 741, Lim Beng Choon J, allowed the application of the defendant for preliminary question to be determined by the court at the close of the plaintiff’s case. After considering a large number of authorities, the learned judge concluded that:<br />
<br />
<br />
<br />
(1) Order 33 r 2 RHC 1980 has a very wide scope and is applicable to questions of fact or questions partly of fact and partly of law raised by a party to the suit ‘before or at and after the trial ‘of the suit. However, before deciding to allow the preliminary questions to be raised, the court must bear in mind the following observations:<br />
<br />
(a) As a general rule the court will exercise its power under O 33 r 2 if and only if the trial of the question will result in a substantial saving of time and expenditure which otherwise would have to be expended should the action go to trial as a whole. <br />
<br />
(b) An order under the said rule should not be made in respect of matters which by reason of the obscurity either of the facts or the law ought to be decided at the trial of the suit.<br />
<br />
(c) Preliminary points of law have been described as too often treacherous short cuts but where it is a trial of so-called issues of fact, the justification is even harder to discern.<br />
<br />
(d) A preliminary question should be carefully and precisely framed so as to avoid difficulties of interpretation as to what is the real question which is being ordered to be tried as a preliminary issue.<br />
<br />
<br />
<br />
In MBf Capital Bhd & Anor v Tommy Thomas & Anor (No 5) [1998] 3 MLJ 226 Kamalanathan JC (as he then was) at p 228 sets out the principles applicable to an application under O 33 r 2 of the RHC in the following words:<br />
<br />
<br />
<br />
It is obvious that this application is made pursuant to O 33 r 2 of the Rules of the High Court 1980 (‘the RHC’). Having read the cases relating to this rule, namely Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474, Arab Malaysian Finance Bhd v Meridien International Credit Corp Ltd London [1993] 3 MLJ 193, Dominic J Puthucheary v Jet Age Construction Sdn Bhd & Anor [1997] 2 MLJ 252, and the Supreme Court Practice 1997 and Halsbury’s Law of England (4th Ed), the relevant principles by which an application under this rule is to be dealt with can be distilled. The following principles stand out, namely:<br />
<br />
(1) This rule confers upon the court a discretionary power to order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, to be tried before, at or after the trial of the cause or matter.<br />
<br />
(2) The said application may not be appropriate where facts are in dispute or extrinsic evidence is required to be adduced.<br />
<br />
(3) The application should not be dealt with on the basis of a hypothetical set of facts.<br />
<br />
(4) The overriding consideration is whether the application would result in a substantial saving of time and expenditure.<br />
<br />
(5) The point of law should be raised on the pleadings.<br />
<br />
(6) That the court should warn itself against the abuse of this process.<br />
<br />
<br />
<br />
Findings of the court<br />
<br />
Applying the above stated principles to the present case, the question is could the issues of both facts and law arising in this case appropriately be dealt with under O 14A and/or O 33 r 2 of the RHC. To answer this question, it is incumbent upon me to firstly consider the issues raised in the pleadings.<br />
<br />
The defendants in their applications identified a total of eight principle issues, the answer to which, they contend, would ultimately determine the outcome of this suit. The plaintiff in its reply contends that the proposed issues as formulated by the defendants fall to deal with all the issues raised by the plaintiff in the statement of claim. The plaintiff submits that the eight issues, as formulated by the defendants are very much oriented to the defence case. If the court were to decide the matter based on these issues alone it would naturally prejudice the plaintiff s case as it would not cover the dispute in its entirety. Upon scrutiny of the statement of claim it is apparent that the plaintiff is relying on six causes of actions as against the first defendant and six causes of action against the second defendant which are tabulated below:<br />
<br />
<br />
<br />
A As against the first defendant<br />
<br />
(i) Breach of contract – paras 53 and 66 of the statement of claim.<br />
<br />
(ii) Unfair discrimination – para 55 to 58.<br />
<br />
(iii) Deprivation of property without compensation – paras 59–60.<br />
<br />
(iv) Estoppel – para 61.<br />
<br />
(v) Unlawful directional/ultra vires – paras 62–65.<br />
<br />
(vi) Legitimate expectation – paras 6.1–6.4 of the reply.<br />
<br />
B As against the second defendant.<br />
<br />
(i) Ultra vires – paras 67 of the statement of claim.<br />
<br />
(ii) Relevant and irrelevant considerations – para 68.<br />
<br />
(iii) Error of law – para 69.<br />
<br />
(iv) Wednesbury unreasonableness – paras 70.<br />
<br />
(v) Tort of inducing breach of contract – paras 72–77.<br />
<br />
(vi) ‘Government contracts’ – paras 78–81.<br />
<br />
<br />
<br />
I shall now deal with some of these issues. Firstly, on the question of the alleged breach of contract by the first defendant. The learned counsel for plaintiff submits that even on the question of the alleged breach of contract alone, the plaintiff is entitled to call extrinsic evidence to show the aim and genesis of the principal and supplementary agreements (‘the two agreements’). In support, he cited the case of Prenn v Simmonds [1971] 3 All ER 237 where Lord Wilberforce at p 241 stated:<br />
<br />
<br />
<br />
In my opinion, then, evidence of negotiations, or of the parties’ intentions, and a fortiori of Dr Simmonds’s intentions, ought not to be received, and evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contract, including evidence of the ‘genesis’ and objectively the ‘aim’ of the transaction.<br />
<br />
<br />
<br />
The plaintiff further referred to the local case of Citibank NA v Ooi Boon Leong & Ors [1981] 1 MLJ 282, there Raja Azlan Shah CJ (Malaya) (as he then was) at p 283 stated with approval the view of Lord Wilberforce above, and said that the factual background to a contract is admissible in evidence as falling outside the scope of the prohibitory provision of our Evidence Act 1950.<br />
<br />
Having considered the matter, I find there is substance in the plaintiff’s assertion that the plaintiff should be given the opportunity to call witnesses to give evidence on the factual background leading to the execution of the to give evidence two agreements. I must say, this is highly relevant to the interpretation and construction of the two agreements. As to whether or not such evidence would support the plaintiff’s case is a matter which should be left to the trial judge to decide after having heard the witness or witnesses concerned.<br />
<br />
In the light of the above, I am of the considered view that it is premature for me, at this stage of the proceeding, to come to the conclusion that such evidence is irrelevant to the issues before the court. To do so would tantamount to shutting the plaintiff out from presenting its case in the best possible way it chooses. That would be a serious inroad into the judicial process. For the aforesaid grounds, I agree with the plaintiff’s submission that the evidence of the factual background leading to the execution of the two agreements between the plaintiff and the first defendant is highly relevant to the interpretation and construction of the two agreements.<br />
<br />
The other ground relied upon by the plaintiff in opposing the defendant’s applications is the apparent failure on the part of the defendants to consider fully the alternative causes of actions in formulating the legal issues for the decisions of the court. These are, as against the first defendant: unfair discrimination, estoppel and legitimate expectation. With respect to the claim against the second defendant the alternative causes of actions are based on the principles of ultra-vires, error of law, relevant and irrelevant considerations and Wednesbury unreasonableness. The plaintiff s counsel maintains that on these issues, it is necessary for the plaintiff to adduce oral evidence in support of the claim. Having considered the matter, I am incline to agree with plaintiff s submission. My reasons for saying so are as follows.<br />
<br />
In this regard suffice for me to consider the issue of unfair discrimination. What is unfair discrimination? This was considered by the Court of Appeal in Ahmad Tajudin bin Hj Ishak v Suruhanjaya Pelabuhan Pulau Pinang [1997] 1 MLJ 241. It is recognized in that case that unfair discrimination is an actionable wrong. It was held that to be actionable, discrimination must be accompanied by an element of harshness or unfair bias in favour of one and against another. Further, it was held that one who claims to have suffered unfair discrimination in the hands of another cannot succeed unless he is able to demonstrate that he suffered some injury recognized by law. The injury may take the form of pecuniary loss or non precuniary loss, such as injury to reputation, property or livelihood.<br />
<br />
As stated by Abdul Malek Ahmad JCA (as he then was) at p 251 of Ahmad Tajudin bin Hj Ishak:<br />
<br />
<br />
<br />
Counsel and judge were quite wrong, of course. They overlooked the far reaching provisions of arts 5(1) and 8(1) of the Federal Constitution (‘the Constitution’). The combined effect of these two articles is to strike down any arbitrary or harsh and unfair action which adversely affects the quality of life. See Tan Tek Senjz v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 and Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and Anor App [1996] 1 MLJ 481. It follows that where a person’s livelihood or reputation is adversely affected by a decision, then the decision maker must act fairly and reasonably.<br />
<br />
<br />
<br />
I agree with the plaintiff’s contention that witnesses may need to be called to support the plaintiff’s claim that the first defendant had unfairly discriminated against the plaintiff, and also to show how far reaching the effect of the defendant’s action on the plaintiff. For those reasons, I am satisfied that the issues herein could not properly be resolved in the manner as prayed for by the defendants.<br />
<br />
Perhaps, I should emphasize that O 14A and O 33 of the RHC procedures should only be used in clear and simple cases. This proposition is supported by a long line of authorities. In this regard, I would firstly refer to the cautionary words of Lord Wilberforce in Allen v Gulf Oil Ltd [1981] AC 1001 (HL) at p 1010:<br />
<br />
<br />
<br />
My Lords, I and other of your Lordships have often protested against the procedure of bringing, except in clear and simple cases, points of law for preliminary decision. The procedure indeed exists and is sometimes useful. In other cases, and this is it frequently so where they reach the House, they do not serve the cause of justice. The present is such an example. The question as originally framed was clearly inept. It was recast by Kerr J into an improved form. But both judges in the court of Appeal found it either unintelligible or unanswerable: so I believe do some at least Your Lordships. The fact is that the result of the case must depend upon principles of law which are themselves flexible. There are too may variables to admit of a clear-cut solution in advance.<br />
<br />
<br />
<br />
Our Supreme Court in Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474, at p 480 expressed a similar sentiment:<br />
<br />
<br />
<br />
At this juncture it is pertinent to quote – Sachs LJ in the case of Radstock Co-operative & Industrial Soceity Ltd v Norton Radstock Urban District Council [1968] Ch 605. At p 632 Sachs LJ says:<br />
<br />
‘In the category of cases which come before the courts in an unsatisfactory form the one now under consideration ranks high. Any preliminary issue which falls to be tried in the course of an action should always be one in which great care is taken to ensure that the issue presented for decision is well-defined and that the facts upon which it has to be considered are clearly ascertainable. In the present case there is not simply a single point for consideration but a whole series, and no such care was taken as regards any of them; moreover, when the pleadings came to be amended in the middle of the trial before the judge at first instance, the result was to make the matters less rather than more clear.’<br />
<br />
This is an apt quotation applicable in the present appeal. The issues in this case are riddled with complexities and the facts are in dispute so that to have recourse to O 33 r 2 [of the Rules of the High Court 1980], in our view, should not be had in the first place. In this respect, the observation of Lord Evershed MR in Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 373 at p 396 is appropriate to show that under certain circumstances O 33 r 2 is not the correct procedure to adopt:<br />
<br />
‘… I repeat what I said at the beginning, that the course which this matter’ has taken emphasizes, as clearly as any case in my experience has emphasized the extreme unwisdom – save in very exceptional case – of adopting this procedure of preliminary issues. My experience has taught me (and this case emphasizes the teaching) that the shortest cut so attempted inevitably turns out to be the longest way round.’<br />
<br />
<br />
<br />
Lord Wilberforce in the often quoted judgment of Tilling v Whiteman [1982] AC 1 again expressed his strong reservation in adopting the procedure of allowing preliminary points to be taken. At p 17, he said:<br />
<br />
<br />
<br />
Pleadings were exchanged, and the case came on for trial in May 1977 with both sides legally represented. The learned judge took what has turned out to be an unfortunate course. Instead of finding the facts, which should have presented no difficulty and taken little time, he allowed a preliminary point of law to be taken, whether Case 10 applies to a case where there are joint owners one only of which requires the house in a residence. So the case has reached this House on hypothetical facts, the correctness of which remain to be tried. I, with others of your Lordships, have often protested against the practice of allowing preliminary points to be taken, since this course frequently adds to the difficulties of courts of appeal and tends to increase the cost and time of legal proceedings. If this practice cannot be confined to cases where the facts are complicated and the legal issue short and easily decided, cases outside this guiding principle should at least be exceptional.<br />
<br />
<br />
<br />
Having considered the pleadings and submissions of the parties, I find this is far from being a plain and simple case. It raises a number of complex legal issues involving, among others, the interpretation and construction of the Federal and State Constitutions, international conventions, the PDA and a number of other statutes. Further, the parties thus far failed to come to an agreement on the facts relevant to the issues before the court. For those reasons, I hold that this is not a fit and proper case to be proceeded with under O 14A or O 33 of the RHC. For the above reasons I am, therefore, constrained to dismiss the defendants’ application in encls (4) and (6) herein with costs. However, for completeness I should stress that this is not the end of the matter, as the court is yet to make its finding on the merits. Towards that end I direct that, barring any appeal against my decision, this case be forthwith sat down for pre trial case management pursuant to O 34 of the RHC.<br />
<br />
<br />
<br />
Defendants’ application dismissed with costs.<br />
<br />
<br />
<br />
Reported by Zahid TaibRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-77279866832115021312010-01-21T06:22:00.000-08:002010-01-21T06:22:33.547-08:00Selvam Holdings (Malaysia) Sdn Bhd v Grant Kenyon & Eckhardt Sdn Bhd (BSN Commercial Bank Malaysia Bhd & Ors, Intervenors)[2003] 1 MLJ 251<br />
<br />
<br />
<span style="color: #0b5394;">Selvam Holdings (Malaysia) Sdn Bhd v Grant Kenyon & Eckhardt Sdn Bhd (BSN Commercial Bank Malaysia Bhd & Ors, Intervenors)</span><br />
<br />
<span style="color: red;">Headnote</span><br />
<br />
<span style="color: blue;">Court Details</span><br />
<span style="color: blue;"><br />
</span><br />
<span style="color: blue;">HIGH COURT (KUALA LUMPUR) — SAMAN PEMULA NO D1–24–56 OF 1993</span><br />
<span style="color: blue;"><br />
</span><br />
<span style="color: blue;">VINCENT NG J</span><br />
<br />
13 SEPTEMBER 2002<br />
<br />
<span style="color: red;">Catchwords</span><br />
<br />
Civil Procedure — Bill of costs — Taxation — Appeal against decision of senior assistant registrar — Whether appellant could appeal to judge in chambers against taxation — Rules of the High Court 1980 O 59 rr 34(1), 36, (1)<br />
<br />
<br />
<br />
Civil Procedure — Res judicata — Decision, finality of earlier decision — Whether Selvam Holdings (Malaysia) Sdn Bhd and Selvam Holdings (M) Sdn Bhd are the same entity<br />
<br />
<span style="color: red;">Summary</span><br />
<br />
The first and second intervenors (‘the intervenors’) filed a bill of costs (encl 60) against Jean Louis Jeyaraj (‘JLJ’) pursuant to a High Court order dated 7 November 1997 (‘the 7 November 1997 order’). When the case came up for taxation of the bill of costs before the learned senior assistant registrar (‘SAR’), counsel for JLJ asked for an adjournment to file an application to set aside the 7 November 1997 order. Counsel for the intervenors objected because Selvam Holdings (Malaysia) Sdn Bhd’s (the plaintiff) appeal to the Court of Appeal against the 7 November 1997 order was dismissed and leave to the Federal Court was also dismissed. The SAR allowed taxed costs of RM66,344.50, inclusive of allocatur to the intervenors. JLJ (‘the appellant’) filed a notice of appeal to the judge in chambers (encl 61) against the SAR’s decision. Counsel for the appellant raised a new issue as to whether the intervenors had locus to seek the taxation for costs pursuant to the 7 November 1997 order, when the same was not complied with and that the SAR had no jurisdiction to hear the taxation proceedings. The appellant stated that Selvam Holdings (Malaysia) Sdn Bhd was a company incorporated under the Companies Act 1965, whereas Selvam Holdings (M) Sdn Bhd was a non-existant entity and the winding up order dated 19 November 1979 to wind up Selvam Holdings (M) Sdn Bhd by Grant Kenyon & Eckhardt Sdn Bhd (the defendant) was set aside by an order of court dated 15 April 1993 and did not bind Selvam Holdings (Malaysia) Sdn Bhd. The 15 April 1993 order was subsequently set aside by the 7 November 1997 order. The appellant stated that since the 7 November 1997 order was not complied with, the 15 April 1993 order was still valid. <br />
<br />
<span style="color: red;">Holdings</span><br />
<br />
Held, dismissing the appeal and awarding costs to the intervenors:<br />
<br />
(1) The appellant was trying to re-canvass the issue as to whether ‘Selvam Holdings (Malaysia) Sdn Bhd’ and ‘Selvam Holdings (M) Sdn Bhd’ referred to one and the same entity. This issue was settled with curial finality by the Court of Appeal, wherein the said decision of 7 November 1997 was confirmed in toto. The intervenors must not be subjected to endless attempts by the appellant to re-open the same issues which have already been dealt with by a court of competent jurisdiction — and a fortiori by another court of higher jurisdiction. In his judgment, his Lordship Abdul Aziz J (as he then was) held that the name ‘Selvam Holdings (Malaysia) Sdn Bhd’ and ‘Selvam Holdings (M) Sdn Bhd’ referred to one and the same company and that the winding up order dated 19 November 1979 was properly made and coupled with proper appointments of receivers and managers and liquidators. Besides there being no appeal filed against this order, the Court of Appeal had also held that there was a valid winding up order against Selvam Holdings (Malaysia) Sdn Bhd (see pp 256F–H, 257B–C).<br />
<br />
(2) The notice of appeal (encl 61) was filed in contravention of O 59 rr 34(1) and 36(1) of the Rules of the High Court 1980 (‘the RHC’). There was no provision in the RHC for lodgment of appeals to the judge in chambers against the taxation per se — what was only allowed an aggrieved party was to apply for review of certain items or part of an item in the bill of costs taxed by the registrar. This view was consistent with logic as the taxation stage of any civil proceeding presupposes the legitimacy and integrity of the judgment or order pertaining to the merits of the entire case adjudicated. It was common ground that there was no application to the learned SAR under O 59 r 34(1) of the RHC for review of her decision, which was a precondition to the filing of a review of items in the taxation under O 59 r 36 before this court. The appellant’s procedural approach was couched as an appeal rather than an application under O 59 r 36(1). There was no provision in the RHC for an appeal against the taxation proceedings and for the further reason that the appellant did not at all raise the issue of ‘locus’ before the SAR, encl 61 was in effect an application for review under r 36(1) bereft of any item or items sought for review (see p 258C–F).<br />
<br />
<br />
<br />
<span style="color: red;">Bahasa Malaysia summary</span><br />
<br />
Pencelah-pencelah pertama dan kedua (‘pencelah-pencelah tersebut’) telah memfailkan bil kos (kandungan 60) terhadap Jean Louis Jeyaraj (‘JLJ’) menurut perintah Mahkamah Tinggi bertarikh 7 November 1997 (‘perintah 7 November 1997 tersebut’). Apabila kes tersebut dihadapkan untuk penetapan bil kos di hadapan penolong kanan pendaftar (‘PKP’), peguam JLJ telah memohon satu penangguhan kes untuk memfailkan permohonan untuk mengenepikan perintah 7 November 1997. Peguam pencelah-pencelah membantah kerana rayuan Selvam Holdings (Malaysia) Sdn Bhd (plaintif) kepada Mahkamah Rayuan terhadap perintah 7 November 1997 telah ditolak dan kebenaran untuk merayu kepada Mahkamah Persekutuan tidak diberi. PKP telah membenarkan kos yang ditetapkan sebanyak RM66,344.50, termasuk alokatur kepada pencelah-pencelah. JLJ (‘perayu’) telah memfailkan notis rayuan kepada hakim dalam kamar (kandungan 61) terhadap keputusan PKP. Peguam perayu telah membangkitkan isu baru, sama ada pencelah-pencelah mempunyai locus untuk menetapkan kos menurut perintah 7 November 1997, memandangkan perintah tersebut tidak dipatuhi dan PKP tidak mempunyai bidang kuasa untuk mendengar prosiding penentapan kos tersebut. Perayu menyatakan bahawa Selvam Holdings (Malaysia) Sdn Bhd merupakan sebuah syarikat berdaftar di bawah Akta Syarikat 1965, sementara Selvam Holdings (M) Sdn Bhd merupakan sebuah entiti yang tidak wujud dan perintah penggulungan bertarikh 19 November 1979 untuk menggulungkan Selvam Holdings (M) Sdn Bhd oleh Grant Kenyon & Eckhardt Sdn Bhd (defendan) telah diketepikan oleh perintah mahkamah bertarikh 15 April 1993 dan tidak mengikat Selvam Holdings (Malaysia) Sdn Bhd. Perintah 15 April 1993 telah diketepikan oleh perintah 7 November 1997. Perayu menyatakan bahawa memandangkan perintah 7 November 1997 tidak dipatuhi, perintah 15 April 1993 masih sah.<br />
<br />
<span style="color: red;">Bahasa Holdings</span><br />
<br />
Diputuskan, menolak rayuan dan memberikan kos kepada pencelah-pencelah:<br />
<br />
(1) Perayu cuba membangkitkan semula isu sama ada ‘Selvam Holdings (Malaysia) Sdn Bhd’ dan ‘Selvam Holdings (M) Sdn Bhd’ merujuk kepada entiti yang sama. Isu ini telah diputuskan secara muktamad oleh Mahkamah Rayuan, di mana keputusan 7 November 1997 telah ditetapkan in toto. Pencelah-pencelah tidak boleh tertakluk kepada pencubaan-pencubaan oleh perayu untuk membuka semula isu-isu yang sama yang telah diputuskan oleh mahkamah yang mempunyai bidang kuasa yang kompeten — dan fortiori oleh mahkamah yang mempunyai bidang kuasa yang lebih tinggi. Di dalam penghakiman beliau, Abdul Aziz J (beliau seperti pada masa itu) telah memutuskan bahawa nama ‘Selvam Holdings (Malaysia) Sdn Bhd’ dan ‘Selvam Holdings (M) Sdn Bhd’ merujuk kepada syarikat yang sama dan perintah penggulungan bertarikh 19 November 1979 telah dibuat dengan sah dengan perlantikan penerima-penerima dan pengurus-pengurus dan penyelesai-penyelesai yang betul. Selain daripada tiada rayuan yang telah difailkan terhadap perintah tersebut, Mahkamah Rayuan telah memutuskan bahawa terdapat satu perintah penggulungan yang sah terhadap Selvam Holdings (Malaysia) Sdn Bhd (lihat ms 256F–H, 257B–C).<br />
<br />
(2) Notis rayuan (kandungan 61) telah difailkan melanggar A 59 kk 34(1) dan 36(1) Kaedah-Kaedah Mahkamah Tinggi 1980 (‘KMT’). Tiada peruntukan di dalam KMT untuk penyerahsimpanan rayuan-rayuan kepada hakim di dalam kamar terhadap penetapan per se — pihak yang terkilan hanya dibenarkan memohon kajian semula butiran tertentu atau sebahagian daripada butiran di dalam bil kos oleh pendaftar. Pandangan ini adalah konsisten dengan logik memandangkan bahawa peringkat penetapan sebarang prosiding sivil mengandaikan kesahan dan integriti penghakiman atau perintah yang berhubung dengan merit-merit kes tersebut. Telah dipersetujui bahawa tiada permohonan kepada PKP di bawah A 59 k 34(1) KMT untuk kajian semula keputusan beliau, yang merupakan prasyarat pemfailan kajian semula butiran di dalam penetapan tersebut di bawah A 59 k 36 di hadapan mahkamah ini. Pendekatan berprosedur perayu diungkapkan sebagai suatu rayuan dan bukan permohonan di bawah A 59 k 36(1). Tiada peruntukan di dalam KMT untuk rayuan terhadap prosiding penetapan dan kerana defendan tidak membangkitkan isu ‘locus’ di hadapan PKP, kandungan 61 merupakan permohonan di bawah k 36(1) yang tidak mempunyai sebarang butiran atau butiran-butiran untuk dikaji semula (lihat ms 258C–F).<br />
<br />
<span style="color: red;">Notes</span><br />
<br />
For cases on finality of earlier decisions, see 2 Mallal’s Digest (4th Ed, 2001 Reissue), paras 5102–5118.<br />
<br />
For cases on taxation, see 2 Mallal’s Digest (4th Ed, 2001 Reissue), paras 1362–1363.<br />
<br />
Cases referred to<br />
<br />
Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 (refd)<br />
<br />
Lim Soh & Ors v Allen & Gledhill [2001] 3 CLJ 233 (refd)<br />
<br />
Selvam Holdings (M) Sdn Bhd v Grant Kenyon & Eckhardt Sdn Bhd; (BSN Commercial Bank (M) Bhd & Ors, intervenors) [2000] 3 MLJ 201 (refd)<br />
<br />
Selvam Holdings (Malaysia) Sdn Bhd v Toby Lam & Anor [1994] MLJU 429; 4 CLJ 899 (refd)<br />
<br />
<span style="color: red;">Legislation referred to</span><br />
<br />
Companies Act 1965<br />
<br />
Rules of the High Court 1980 O 59 rr 34(1), 35(1), 36, (1), (4)<br />
<br />
<span style="color: red;">Lawyers</span><br />
<br />
K Periasamy (Periasamy K) for the appellant/plaintiff.<br />
<br />
Harjit Singh (Gill & Tang) for the respondents/first and second intervenors.<br />
<br />
Judgement - Vincent Ng J:<br />
<br />
Vincent Ng J:<br />
<br />
A preamble The first and second intervenors filed a bill of costs (encl 60) against Jean Louis Jeyaraj (‘JLJ’) pursuant to a High Court order dated 7 November 1997 (‘the 7 November 1997 order’).<br />
<br />
When the case came up for taxation of the bill of costs on 8 November 2001 before the learned senior assistant registrar (‘SAR’), the counsel for JLJ asked for an adjournment on the grounds that JLJ intends to file an application to set aside the court order dated 7 November 1997. Counsel for the intervenors objected and informed the learned SAR that Selvam Holdings (Malaysia) Sdn Bhd’s (plaintiff) appeal to the Court of Appeal against the 7 November 1997 order was dismissed with costs and leave to the Federal Court was also dismissed with costs.<br />
<br />
The taxation of the bill of costs went on and the learned SAR delivered her decision on 19 November 2001 allowing taxed costs of RM66,344.50 inclusive of allocatur to the first and second intervenors (‘the intervenors’).<br />
<br />
This resulted in JLJ (appellant) filing a notice of appeal to the judge in chambers (encl 61) against the decision of the learned SAR. When encl 61 came up for hearing on 12 March 2002, the counsel for the appellant raised a new issue (which was not canvassed before the SAR), namely, whether the intervenors had locus to seek the taxation for costs pursuant to the court order dated 7 November 1997 when same was not complied with — worthy of note is that the quantum of taxed costs was not in dispute.<br />
<br />
This is how the appellant had put her case before me. Selvam Holdings (Malaysia) Sdn Bhd is a company incorporated and registered in Malaysia under the Companies Act 1965 on 17 December 1971, whereas, Selvam Holdings (M) Sdn Bhd is a non-existent entity. On 19 November 1979, a winding up order was made vide Petition No 34–1979 against Selvam Holdings (M) Sdn Bhd (‘the 19 November 1979 order’) on the application by Grant Kenyon & Eckhardt Sdn Bhd (defendant), but the 19 November 1979 order was set aside by an order of court dated 15 April 1993 (‘the 15 April 1993 order’) in the following terms:<br />
<br />
<br />
<br />
(i) that the winding up order dated 19 November 1979 against Selvam Holdings (M) Sdn Bhd is null and void;<br />
<br />
(ii) that the said winding up order does not bind Selvam Holdings (Malaysia) Sdn Bhd; and<br />
<br />
(iii) hence, Selvam Holdings (Malaysia) Sdn Bhd has not been wound up.<br />
<br />
<br />
<br />
However, it is common ground that the 15 April 1993 order was on 7 November 1997 set aside (by the 7 November 1997 order) in the following terms, that:<br />
<br />
<br />
<br />
(a) the intervenors be allowed leave to intervene in this action and be added as defendants to the suit;<br />
<br />
(b) cause papers be amended accordingly to reflect (a);<br />
<br />
(c) the order of court dated 15 April 1993 be set aside;<br />
<br />
(d) that the costs of and incidental to the applications herein be taxed and paid forthwith by Jean Louis Jeyaraj Selvam and/or K Jaya Simbun & Associates (be it be noted that Jean Louis Jeyaraj Selvam was a director of Selvam Holdings (Malaysia) Sdn Bhd and Messrs K Jaya Simbun & Associates were the then solicitors for JLJ.)<br />
<br />
<br />
<br />
It has never been controverted that the 7 November 1997 order, including order (d) above, was upheld by the Court of Appeal on 10 March 2000 (see Selvam Holdings (M) Sdn Bhd v Grant Kenyon & Eckhardt Sdn Bhd; (BSN Commercial Bank (M) Bhd & Ors, intervenors) [2000] 3 MLJ 201). It is also a fact that Selvam Holdings (Malaysia) Sdn Bhd’s (plaintiff) application for leave to appeal to the Federal Court was dismissed with costs on 3 July 2000. The argument put forward by the appellant’s (JLJ) solicitors is that the learned SAR had no jurisdiction to hear the taxation proceedings as the peremptory order of the court dated 7 November 1997 was not complied with. And that, in view of the non-compliance of the court order dated 7 November 1997, the court order dated 15 April 1993 remains valid — the case of Lim Soh & Ors v Allen & Gledhill [2001] 3 CLJ 233 was cited in support. It is material here to note that this issue was also not canvassed by the appellant in the Court of Appeal.<br />
<br />
In his written submission, learned counsel for the appellant also ventured an opinion that the Court of Appeal in Selvam Holdings (M) Sdn Bhd v Grant Kenyon & Eckhardt Sdn Bhd had wrongly interpreted the factual matrix in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393, a Federal Court judgment. He was also of the view that the judgment of his Lordship Abdul Aziz JC (as he then was) in Selvam Holdings (Malaysia) Sdn Bhd v Toby Lam & Anor [1994] MLJU 429; 4 CLJ 899 should not have been accepted and endorsed by the Court of Appeal.<br />
<br />
After having carefully studied the written submission of counsel for the appellant, I am left with the view that the appellant is trying in an oblique fashion to, in effect, re-canvass the issue as to whether ‘Selvam Holdings (Malaysia) Sdn Bhd’ and ‘Selvam Holdings (M) Sdn Bhd’ refer to one and the same entity. Clearly, this issue was settled with curial finality by the Court of Appeal as aforesaid, wherein the said decision of 7 November 1997 was confirmed in toto.<br />
<br />
Surely, in my judgment the intervenors cannot be subjected to endless attempts by the appellant to re-open the same issues which have already been dealt with by a court of competent jurisdiction — and a fortiori by another court of higher jurisdiction. This principle was expounded in the case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, a Supreme Court decision, at p 197:<br />
<br />
<br />
<br />
What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur.<br />
<br />
<br />
<br />
It would be an abuse of the process of court for parties to be allowed to re-open the same issues over and over again. In his judgment delivered on 24 October 1994 in Originating Motion No D6–25–42–92, his Lordship Abdul Aziz J (as he then was) held that the name ‘Selvam Holdings (Malaysia) Sdn Bhd’ and ‘Selvam Holdings (M) Sdn Bhd’ refer to one and the same company and that the winding up order dated 19 November 1979 was properly made and coupled with proper appointments of receivers and managers and liquidators. Besides there being no appeal filed against this order, the Court of Appeal had also held that there is a valid winding up order against Selvam Holdings (Malaysia) Sdn Bhd. Indeed notably, in the appeal against the 7 November 1997 order, the Court of Appeal commented that ‘the appellant’s behaviour was highly questionable and that of their solicitors most unprofessional’. This conclusion drove the Court of Appeal to order costs to be borne by JLJ personally.<br />
<br />
I am also of the view that it is highly contemptuous on the part of counsel for the appellant, Mr K Periasamy, to have thought it fit to nonchalantly let fall from his mouth the following outrageous words:<br />
<br />
<br />
<br />
They have no locus because Selventhiranathan J’s judgment dated 7 November 1997 was wrong. There was an appeal against the order but the Court of Appeal wrongly interpreted the factual matrix in Badiaddin … as stated by me in p 10 of Lampiran 63B of my written submission. Selvam Holdings (M) which was ordered to be wound up is a non-existent company.<br />
<br />
<br />
<br />
What surprised me is that such words could issue forth from his mouth when he full well knew that it was not open to the appellant to question the endorsement of the order of his Lordship Abdul Aziz J by the Court of Appeal, when the application to the Federal Court for leave was turned down — which rendered absolute finality to the entire proceedings. <br />
<br />
My attention was also drawn by counsel for the intervenors to the fact that the notice of appeal to me (encl 61) was filed in contravention of O 59 rr 34(1) and 36(1) of the RHC. Rules 34(1), 35(1) and the pertaining r 36(1) and (4) provide as follows:<br />
<br />
rule 34(1):<br />
<br />
<br />
<br />
(1) Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by the Registrar, or with the amount allowed by the Registrar in respect of any item, may apply to the Registrar to review his decision in respect of that item.<br />
<br />
<br />
<br />
rule 35(1):<br />
<br />
<br />
<br />
(1) On reviewing any decision in respect of any item, the Registrar may receive further evidence and may exercise all the powers which he might exercise on an original taxation in respect of that item, including the power to award costs of and incidental to the proceedings before him; and any costs awarded by him to any party may be taxed by him and may be added to or deducted from any other sum payable to or by that party in respect of costs.<br />
<br />
<br />
<br />
rule 36(1) and (4):<br />
<br />
<br />
<br />
(1) Any party who is dissatisfied with the decision of the Registrar to allow or to disallow any item in whole or in part on review under r 34 or 35, or with the amount allowed in respect of any item by the Registrar on any such review, may apply to a judge for an order to review the taxation as to that item or part of an item, if but only if, one of the parties to the proceedings before the Registrar requested the Registrar in accordance with r 35(3) to state the reasons for his decision in respect of that item or part on the review.<br />
<br />
(4) Unless the judge otherwise directs, no further evidence shall be received on the hearing of an application under this rule, and no ground of objection shall be raised which was not raised on the review by the Registrar … (Emphasis added.)<br />
<br />
<br />
<br />
In my view, there is (for obvious and logical reasons) no provision in the RHC for lodgment of appeals to the judge in chambers against the taxation per se — what is only allowed an aggrieved party is to apply for review of certain items or part of an item in the bill of costs taxed by the registrar. This view is consistent with logic as the taxation stage of any civil proceeding presupposes the legitimacy and integrity of the judgment or order pertaining to the merits of the entire case adjudicated. It is common ground that there was no application to the learned SAR under O 59 r 34(1) of the RHC for review of her decision, which is a precondition to the filing of a review of items in the taxation under O 59 r 36 before me. I am entirely conscious of the fact that the appellant’s procedural approach to me is couched as an appeal rather than an application under O 59 r 36(1). However, as, in my considered view, there is no provision in the RHC for an appeal against the taxation proceedings and for the further reason that the appellant did not at all raise the issue of ‘locus’ before the SAR, encl 61 is in effect an application for review under r 36(1) bereft of any item or items sought for review — clearly, an attempt by the back door (I may say) to ‘knock off’, not one, but all the items taxed bill by nullifying the whole process of taxation.<br />
<br />
In the event, I dismissed the appeal in encl 61 and awarded costs to the intervenors.<br />
<br />
In postlude<br />
<br />
As soon as the appeal was dismissed, counsel for the intervenors requested that this court order that costs on encl 61 be borne by Mr K Periasamy personally, due to his contumacious and culpable conduct, as he was at all times aware of the earlier decisions and yet took it upon himself to represent JLJ who paid scant regard to or was contemptuous of the earlier court orders from various levels. In response, I suggested that should the appellant take this matter further, counsel for the intevenors could then quite justifiably pray for costs here and in the court above to be personally borne by the solicitors. As it promptly turned out, an appeal to the Court of Appeal against my decision here was indeed filed by Messrs Periasamy K.<br />
<br />
<br />
<br />
Appeal dismissed and costs awarded to the intervenors.<br />
<br />
<br />
<br />
Reported by Chew Phye KenRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-15205964992408570812009-11-08T06:49:00.000-08:002009-11-08T06:49:12.160-08:00Hewlett Packard Sales (M) Sdn Bhd v Active Team Mould Engineering Sdn Bhd & Ors[2003] 1 MLJ 247<br />
<br />
<br />
Hewlett Packard Sales (M) Sdn Bhd v Active Team Mould Engineering Sdn Bhd & Ors<br />
<br />
<span style="color: red;">Headnote</span><br />
<br />
Court Details<br />
<br />
<span style="color: red;">HIGH COURT (KUALA LUMPUR) — SUIT NO D1–-22–-1966 OF 1999</span><br />
<br />
<span style="color: blue;">VINCENT NG J</span><br />
<br />
27 SEPTEMBER 2002<br />
<br />
<span style="color: red;">Catchwords</span><br />
<br />
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<br />
<br />
<span style="color: red;">Summary</span><br />
<br />
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.<br />
<br />
<span style="color: red;">Holdings</span><br />
<br />
Held, dismissing the application with costs:<br />
<br />
(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).<br />
<br />
(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).<br />
<br />
<span style="color: red;">Bahasa Summary</span><br />
<br />
Bahasa Malaysia summary<br />
<br />
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.<br />
<br />
<span style="color: red;">Bahasa Holdings</span><br />
<br />
Diputuskan, menolak permohonan dengan kos:<br />
<br />
(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).<br />
<br />
(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).]<br />
<br />
<br />
<span style="color: red;">Notes</span><br />
<br />
For cases on reinstatement, see 2 Mallal’s Digest (4th Ed, 2001 Reissue) paras 1169–1171.<br />
<br />
<br />
<br />
<span style="color: red;">Legislation referred to</span><br />
<br />
Rules of the High Court 1980 O 14<br />
<br />
<span style="color: red;">Lawyers</span><br />
<br />
CP Lee (Azman, Davidson & Co) for plaintiff/respondent.<br />
<br />
YL Hiew (G Gunaseelan & Assoc) for the third defendant/applicant.<br />
<br />
<span style="color: red;">Judgement - Vincent Ng J</span><br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
Mr YL Hiew for D3, who chose not to file any defence, could only attempt the following reply:<br />
<br />
<br />
<br />
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 .<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
(i) whether the non-attendance at the hearing of the matter was culpable; and<br />
<br />
(ii) whether the applicant tendered or presented sufficient material in his application, to show that he has a plausible or arguable defence/claim.<br />
<br />
<br />
<br />
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.<br />
<br />
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.<br />
<br />
<br />
<br />
Application dismissed with costs.<br />
<br />
<br />
<br />
Reported by Ezatul Zuria AzharRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-86049224391836750772009-11-08T06:42:00.000-08:002009-11-08T06:42:00.560-08:00Public Prosecutor v Ottavio Quattrocchi[2003] 1 MLJ 225<br />
<br />
<br />
Public Prosecutor v Ottavio Quattrocchi<br />
<br />
<span style="color: red;">Headnote</span><br />
<br />
Court Details<br />
<br />
<span style="color: red;">HIGH COURT (KUALA LUMPUR) — CRIMINAL REVIEW NO 43–11 OF 2002</span><br />
<br />
<span style="color: blue;">AUGUSTINE PAUL J</span><br />
<br />
13 DECEMBER 2002<br />
<br />
<span style="color: red;">Catchwords</span><br />
<br />
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<br />
<br />
<br />
<br />
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)<br />
<br />
<span style="color: red;">Summary</span><br />
<br />
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.<br />
<br />
<span style="color: red;">Holdings</span><br />
<br />
Held:<br />
<br />
(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).<br />
<br />
(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.<br />
<br />
(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).<br />
<br />
(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). <br />
<br />
(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).<br />
<br />
(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).<br />
<br />
<span style="color: red;">Bahasa Malaysia summary</span><br />
<br />
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.<br />
<br />
<span style="color: red;">Bahasa Holdings</span><br />
<br />
Diputuskan:<br />
<br />
(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).<br />
<br />
(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.<br />
<br />
(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).<br />
<br />
(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).]<br />
<br />
(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).<br />
<br />
(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).]<br />
<br />
<span style="color: red;">Notes</span><br />
<br />
For cases on applicable laws on extradition, see 5 Mallal’s Digest (4th Ed, 2001 Reissue) paras 1576–1579.<br />
<br />
For cases on basis for discharge, see 5 Mallal’s Digest (4th Ed, 2001 Reissue) para 1595.<br />
<br />
<span style="color: red;">Cases referred to</span><br />
<br />
Ata Muhammad v Shankar Das AIR 1924 Lah 279 (refd)<br />
<br />
Baldev Singh v State of Himachal Pradesh (1987) 2 SCC 510 (refd)<br />
<br />
Carbines v Pittock (1908) VLK 292 (refd)<br />
<br />
Charron v Government of the United States of America & Anor [2000] 1 WLR 1793 (refd)<br />
<br />
Che Ani bin Itam v PP [1984] 1 MLJ 113 (refd)<br />
<br />
Cheng Keng Hoong v Government of the Federation of Malaya [1967] 2 MLJ 1 (refd)<br />
<br />
Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 (refd)<br />
<br />
Commissioner of Police v Tanos (1958) 98 CLR 383 (refd)<br />
<br />
DYTM Tengku Idris Shah ibni Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn Bhd & Anor [2002] 2 MLJ 11 (refd)<br />
<br />
German Federal Republic v Sotoriadis [1974] 2 AC 1 (refd)<br />
<br />
Government of Canada & Anor v Aronson [1989] 2 All ER 1025 (refd)<br />
<br />
Ismail, In Re [1968] 3 WLR 495 (refd)<br />
<br />
Mohinder Singh Gill v The Chief Election Commissioner AIR 1978 SC 851 (refd)<br />
<br />
Munnich v Godstone Rural District Council [1966] 1 WLR 427 (refd)<br />
<br />
Naghdi, Re [1900] 1 WLR 317 (refd)<br />
<br />
Norman and Moran v National Dock Labour Board [1957] 1 Lloyd’s Rep 455 (refd)<br />
<br />
Ong Ah Chuan v PP [1981] 1 MLJ 64 (refd)<br />
<br />
Ozie Powell v State of Alabama 287 US 45 (refd)<br />
<br />
Pepper v Hart [1993] 1 All ER 42 (refd)<br />
<br />
Prithipal Singh v Datuk Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Intervener) [1993] 3 MLJ 336 (folld)<br />
<br />
PP v Karnal Singh [1970] 1 MLJ 49 (refd)<br />
<br />
R v Bow Street Metropolitan Magistrate & Ors; Ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827 (refd)<br />
<br />
R v Governor of Pentonville Prison, ex p Osman [1990] 1 WLR 277 (refd)<br />
<br />
R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 (refd)<br />
<br />
Ridge v Baldwin [1964] AC 40 (refd)<br />
<br />
Russell v Duke [1949] 1 All ER 109 (refd)<br />
<br />
Santosh Kumar Sundarasca v Orissa State Civil Supplies Corp 1992 Cr LJ 2230 (refd)<br />
<br />
State of Orissa v Dr (Miss) Binapani Dei AIR 1067 SC 1269 (refd)<br />
<br />
Triambak Pati Tripathi v BHS & I Education, Allahabad AIR 1973 All 1 (refd)<br />
<br />
Union of India v Tulsiram Patel AIR 1985 SC 1416<br />
<br />
<span style="color: red;">Legislation referred to</span><br />
<br />
Anti Corruption Act 1997 s 11(a)<br />
<br />
Criminal Procedure Code ss 141(iii), 379<br />
<br />
Criminal Procedure Code [India] ss 173,190, 204, 240<br />
<br />
Emergency (Essential Powers) Ordinance No 22 of 1970 s 2(1)<br />
<br />
Extradition Act 1992 ss 2, 3, 4, 5, 6(1), (2)(b), 18, 19, 37(1), 41(1), 44<br />
<br />
Federal Constitution art 5(1)<br />
<br />
Interpretation Acts 1948 and 1967 s 17A<br />
<br />
Penal Code ss 40(2), (3), 165, 120B(1), (2), 420<br />
<br />
Penal Code [India] ss 120-B(1), 420<br />
<br />
Prevention of Corruption Act 1947 ss 5(1)(d), (2)<br />
<br />
<span style="color: red;">Lawyers</span><br />
<br />
Kamarul Hisham bin Kamaruddin (Deputy Public Prosecutor) for the applicant.<br />
<br />
Muhammad Shafee Abdullah (Rabinder Singh with him) (Shafee & Co) for the respondent.<br />
<br />
Cyrus V Das (Steven Thiruneelakandan with him (Shook Lin & Bok) as amicus curiae.<br />
<br />
<span style="color: red;">Judgement - Augustine Paul J</span><br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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.<br />
<br />
Before I proceed any further it is necessary for me to deal with two applications that were made before me.<br />
<br />
Application to hold a watching brief<br />
<br />
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.<br />
<br />
Authorization by the public prosecutor under s 41 of the Act<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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.<br />
<br />
The right to raise a preliminary objection<br />
<br />
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.<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
… 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 …<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
(i) the fugitive criminal must be a person who has been accused or convicted; and<br />
<br />
(ii) it must be in respect of an extradition offence.<br />
<br />
<br />
<br />
I shall now consider them.<br />
<br />
(a) The fugitive criminal must have been accused or convicted<br />
<br />
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:<br />
<br />
<br />
<br />
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’.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
This section relates to commencement of a criminal proceeding.<br />
<br />
<br />
<br />
And further down on the same page,<br />
<br />
<br />
<br />
On issue of process a person complained against becomes an ‘accused’ (Gulab 38 C880).<br />
<br />
<br />
<br />
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.<br />
<br />
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:<br />
<br />
<br />
<br />
120-B IPC r/w 420 IPC and s 5(2) r/w 5(1)(d) of PC Act 1947 and substantive offences thereof.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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.<br />
<br />
(b) The accusation or conviction must be in respect of an extradition offence<br />
<br />
Section 5 of the Act defines an ‘extradition offence’ as meaning:<br />
<br />
<br />
<br />
… an offence described in sub-s 6(2) or 6(3) …<br />
<br />
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<br />
Section 6 of the Act reads as follows:<br />
<br />
<br />
<br />
(1) A fugitive criminal shall only be returned for an extradition offence.<br />
<br />
(2) For the purposes of this Act, an extradition offence is an offence, however described, including fiscal offences —<br />
<br />
(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<br />
<br />
(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:<br />
<br />
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.<br />
<br />
(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).<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
… 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. <br />
<br />
<br />
<br />
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.<br />
<br />
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:<br />
<br />
<br />
<br />
(1) Section 120-B read with s 420 of the Indian Penal Code; and<br />
<br />
(2) Section 120-B read with ss 5(2) and 5(1)(d) of the Prevention Corruption Act 1947.<br />
<br />
<br />
<br />
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.<br />
<br />
The need for a charge<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
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<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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:<br />
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The representative of the requesting state must formulate the charges by the committal hearing and provide the defence with a copy.<br />
<br />
<br />
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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.<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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.<br />
<br />
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 <br />
<br />
<br />
<br />
the present Government did not approve of the appointment of Indian agent acting for foreign suppliers.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
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.<br />
<br />
<br />
<br />
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.<br />
<br />
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:<br />
<br />
<br />
<br />
(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.<br />
<br />
(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.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
(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.<br />
<br />
(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.<br />
<br />
(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.<br />
<br />
<br />
<br />
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:<br />
<br />
<br />
<br />
(a) that the accused was a public servant at the time of the commission of the offence;<br />
<br />
(b) that he accepted or obtained or agreed to accept or attempted to obtain for himself or for someone else, a valuable thing;<br />
<br />
(c) which he obtained from the person described in (b); and<br />
<br />
(d) that he gave no consideration for it, or that the consideration given was known by him to be inadequate.<br />
<br />
<br />
<br />
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.<br />
<br />
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.<br />
<br />
<br />
<br />
Order accordingly.<br />
<br />
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<br />
Reported by Peter LingRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com1tag:blogger.com,1999:blog-2322324467701967584.post-57350980307196759652009-10-27T06:42:00.000-07:002009-10-27T06:42:03.809-07:00Loh Hee Thuan v Mohd Zani bin Abdullah[2003] 1 MLJ 213<br />
<br />
<br />
Loh Hee Thuan v Mohd Zani bin Abdullah<br />
<br />
<span style="color: blue;">Headnote</span><br />
<br />
Court Details<br />
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<span style="background-color: white; color: red;">HIGH COURT (PULAU PINANG) — CIVIL APPEAL NO 12–304 OF 2000</span><br />
<br />
KAMALANATHAN RATNAM J<br />
<br />
27 NOVEMBER 2002<br />
<span style="background-color: white;"></span><br />
<span style="color: blue;">Catchwords</span><br />
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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)<br />
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Words and phrases — ‘proved or admitted’ — Civil Law Act 1956 s 28A(2)(c)(i)<br />
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<span style="color: blue;">Summary</span><br />
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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.<br />
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<span style="color: blue;">Holdings</span><br />
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Held, allowing the appellant’s appeal and dismissing the respondent’s cross appeal:<br />
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(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. <br />
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(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).<br />
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(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).<br />
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(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.<br />
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<span style="color: blue;">Bahasa Malaysia summary</span><br />
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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.<br />
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<span style="color: blue;">Bahasa Holdings</span><br />
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Diputuskan, membenarkan rayuan perayu dan menolak tuntutan balas responden:<br />
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(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. <br />
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(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).<br />
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(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).<br />
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(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.]<br />
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<span style="color: blue;">Notes</span><br />
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For cases on deduction from award of damages, see 6 Mallal’s Digest (4th Ed, 1997 Reissue) paras 448–449.<br />
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<span style="color: blue;">Cases referred to</span><br />
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Chong Chee Khong & Anor v Ng Yeow Hin [1997] 5 MLJ 786 (refd)<br />
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Dr Yusuff bin Haji Mansur v Changkat Jering Sdn Bhd [1997] 5 MLJ 530 (folld)<br />
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Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233 (folld)<br />
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Takong Tabari v Government of Sarawak & Ors and another appeal [1998] 4 MLJ 512 (distd)<br />
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<span style="color: blue;">Legislation referred to</span><br />
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Civil Law Act 1956 ss 7(3)(iv)(d), 8, 28A(2)(c)(i)<br />
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Evidence Act 1950 s 114(g)<br />
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<span style="color: blue;">Lawyers</span><br />
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Brijnandan Singh Bhar (Brijnandan Singh Bhar & Co) for the appellant.<br />
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P Ramanathan (VP Nathan & Partners) for the respondent.<br />
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Judgement - Kamalanathan Ratnam J:<br />
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Kamalanathan Ratnam J:<br />
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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.<br />
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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:<br />
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(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<br />
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(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.<br />
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Mr Brijnandan readily agreed and also informed the court, that he was also ready to respond to the two issues raised by Mr Ramanathan.<br />
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General damages for pain & suffering<br />
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The sessions court judge awarded a sum of RM66,000 for the head injuries which he classified as follows:<br />
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(i) cerebral contusion — RM3,000.<br />
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(ii) multiple contusions in the right temporal parietal and occipital region — RM3,000.<br />
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(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.<br />
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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.<br />
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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.<br />
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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.<br />
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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. <br />
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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.<br />
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Claim for loss of interest in sex and impotency<br />
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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.<br />
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Was the court correct in awarding only one-third of the hospital bills<br />
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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.<br />
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Insufficient award for future loss<br />
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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:<br />
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Q: Encik pasti dapat RM1,000 sebulan.<br />
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A: Saya pasti.<br />
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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.<br />
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I therefore award a sum of RM1,000 per month for the number of years awarded by the sessions court.<br />
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No award for nursing care<br />
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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.<br />
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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’.<br />
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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.<br />
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I now have to consider the cross appeal raised by Mr Ramanathan.<br />
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No evidence that plaintiff is in good health<br />
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Mr Ramanathan referred me to s 28A(2)(c)(i) of the Act which reads as follows:<br />
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(c) in awarding damages for loss of future earnings the court shall take into account:<br />
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(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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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One-third deduction based on Takong Tabari<br />
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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.<br />
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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.<br />
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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.<br />
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It is therefore necessary to reproduce s 7(3)(iv)(d) which reads as follows:<br />
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(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:<br />
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(a) …<br />
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(b) …<br />
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(c) …<br />
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(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.<br />
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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. <br />
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It is important to note that in Chan Chin Ming, the Supreme Court said at pp 242–243 as follows:<br />
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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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.<br />
<br />
<br />
<br />
<span style="color: red;">Appellant’s appeal allowed and respondent’s cross appeal dismissed.</span><br />
<br />
<br />
<br />
Reported by Peter LingRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-56656762734186677692009-10-23T21:25:00.001-07:002009-10-23T21:25:33.076-07:00Sime Securities Sdn Bhd (formerly known as UMBC Securities Sdn Bhd) v Anthony Lee Sin Choy[2003] 1 MLJ 204<br />
<br />
<br />
Sime Securities Sdn Bhd (formerly known as UMBC Securities Sdn Bhd) v Anthony Lee Sin Choy<br />
<br />
Headnote<br />
<br />
Court Details<br />
<br />
HIGH COURT (KUALA LUMPUR) — CIVIL PROCEEDINGS NO D5–22–5 OF 1996<br />
<br />
KANG HWEE GEE J<br />
<br />
3 DECEMBER 2002<br />
<br />
Catchwords<br />
<br />
Securities — Stokebroker — Negligence — Damages — Standard of care — Whether licensed stockbroker entitled to sell shares as it thought fit — Whether negligent in not selling earlier at higher price — Whether failure to carry out client’s instruction, a breach on part of licensed stockbroker<br />
<br />
Summary<br />
<br />
The defendant was a client of the plaintiff, a licensed stockbroker of the Kuala Lumpur Stock Exchange (‘KLSE’). The plaintiff’s claim in this case was in respect of the payment of 50 lots of Cash shares which the plaintiff had purchased on the defendant’s instruction. The defendant did not take up the shares when they were due for payment on the eighth day of transaction (‘T+7’) as required under the rules of trading then prevailing. Under the same rules, the plaintiff would be entitled to force sell them through the exchange by the ninth day of transaction (‘T+8’) and to remit any contra gain or contra loss to the defendant’s trading account. But the plaintiff did not force sell the shares on that day or on the subsequent days thereafter until the Cash counter was suddenly suspended by the KLSE. The suspension was lifted and the counter reopened for trading a month later. Still the shares were not forced sold. The defendant then instructed the plaintiff to sell the shares. The plaintiff sold them only some seven months and three weeks later. The plaintiff’s claim against the defendant was for the payment of the 50 lots of Cash shares purchased less the amount recovered by force selling. The plaintiff also claimed a further late payment charge, costs and interests. The defendant denied owing the plaintiff the sum claimed. Instead, he counterclaimed on the basis that had the plaintiff sold the shares as instructed by him, he would have a contra gain instead of a contra loss when the shares were force-sold.<br />
<br />
Holdings<br />
<br />
Held, dismissing the plaintiff’s claim and allowing the defendant’s counterclaim:<br />
<br />
(1) In the instant case, it was clear that the obligation of the defendant to pay for the purchase of the shares by T+7 had not been varied. It followed therefore, the plaintiff’s failure to sell the shares on T+8 as mandated by the KLSE was by its own default. No evidence was adduced as to why the plaintiff only sold the shares some seven months after the date of transaction. One can therefore conclude that the sale could not have been conducted bona fide to recover the plaintiff’s loss (see p 210A–B); UMBC Securities Sdn Bhd v Tan Chee Aan [2001] 3 MLJ 410 distinguished.<br />
<br />
(2) By failing to exercise its right to force sell the shares on T+8 as required under the prescribed regulations for selling-out, the plaintiff must be taken to have waived its right to sell them on that day. A failure on the part of the plaintiff to sell them as directed constituted a breach of an essential term of the contract express or implied to which the defendant would be entitled to claim damages (see pp 210H, 211B).<br />
<br />
(3) A failure to carry out the instruction constituted a breach on the part of plaintiff of its obligation to sell the shares on the instruction of the defendant. The defendant was therefore entitled to counterclaim on the basis that had the shares been sold on his instruction, he could have made a substantial contra gain instead of suffering a contra loss when the plaintiff force sold them (see p 211G–H); Keppel Finance Ltd v Phoon Ah Lek [1994] 3 MLJ 26 distinguished.<br />
<br />
Bahasa Malaysia summary<br />
<br />
Defendan adalah pelanggan plaintif, seorang broker saham berlesen dengan Kuala Lumpur Stock Exchange (‘KLSE’). Tuntutan plaintif dalam kes ini adalah berhubung pembayaran 50 lot saham-saham Cash yang mana telah dibeli oleh plaintif atas arahan defendan. Defendan tidak mengambil saham-saham tersebut apabila saham-saham tersebut perlu dibayar pada hari kelapan transaksi (‘T+7’) sebagaimana yang dikehendaki di bawah peraturan-peraturan perdagangan yang wujud ketika itu. Di bawah peraturan-peraturan yang sama, plaintif akan berhak untuk memaksa jual saham-saham tersebut melalui pertukaran tersebut menjelang hari kesembilan transaksi (‘T+8’) dan meremitkan apa-apa keuntungan atau kerugian kontra kepada akaun perdagangan defendan. Namun demikian plaintif tidak memaksa jual saham-saham tersebut pada hari tersebut atau pada hari-hari berikutnya sehinggalah kaunter Cash tiba-tiba digantung oleh KLSE. Penggantungan tersebut telah ditarik balik dan kaunter tersebut dibuka semula untuk dagangan sebulan kemudian. Namun begitu saham-saham tersebut masih tidak dipaksa jual. Defendan kemudiannya mengarahkan plaintif untuk menjual saham-saham tersebut. Plaintif telah menjual saham-saham tersebut hanya selepas tujuh bulan dan tiga minggu. Tuntutan plaintif terhadap defendan adalah untuk pembayaran 50 lot saham-saham Cash yang telah dibeli kurang daripada jumlah yang diperolehi melalui jualan paksa. Plaintif juga menuntut caj bayaran lewat, kos dan faedah. Defendan menafikan berhutang dengan plaintif bagi jumlah yang dituntut. Sebaliknya, beliau menuntut balas atas dasar bahawa jika plaintif telah menjual saham-saham tersebut sebagaimana yang diarahkan oleh beliau, beliau akan mendapat keuntungan kontra dan bukan kerugian kontra apabila saham-saham tersebut dipaksa jual.<br />
<br />
Bahasa Holdings<br />
<br />
Diputuskan, menolak tuntutan plaintif dan membenarkan tuntutan balas defendan:<br />
<br />
(1) Dalam kes semasa, adalah jelas bahawa tanggungjawab defendan untuk membayar saham-saham bagi pembelian saham-saham melalui T+7 tidak diubah. Berikutan itu, kegagalan plaintif untuk menjual saham-saham tersebut pada T+8 sebagaimana yang diberi mandat oleh KLSE adalah melalui kegagalannya sendiri. Tiada keterangan telah dikemukakan berhubung kenapa plaintif hanya menjual saham-saham tersebut tujuh bulan selepas tarikh transaksi tersebut. Seseorang boleh membuat kesimpulan bahawa jualan tersebut tidak dikendalikan secara bona fide untuk mendapat balik kerugian plaintif (lihat ms 210A–B); UMBC Securities Sdn Bhd v Tan Chee Aan [2001] 3 MLJ 410 dibeza.<br />
<br />
(2) Dengan kegagalan untuk melaksanakan hak untuk menjual paksa saham-saham tersebut pada T+8 sebagaimana dikehendaki di bawah peraturan-peraturan penjualan yang dinyatakan, plaintif harus dianggap telah mengenepikan haknya untuk menjual saham-saham tersebut pada hari tersebut. Satu kegagalan di pihak plaintif untuk menjual saham-saham tersebut sebagaimana yang diarahkan membentuk satu pelanggaran terma penting kepada kontrak secara langsung atau tersirat yang mana defendan akan berhak menuntut ganti rugi (lihat ms 210H, 211B).<br />
<br />
(3) Satu kegagalan untuk melaksanakan arahan membentuk satu perlanggaran di pihak plaintif terhadap tanggungjawab beliau menjual saham-saham tersebut atas arahan defendan. Defendan oleh itu berhak untuk menuntut balas atas dasar sekiranya saham-saham tersebut telah dijual atas arahan beliau, beliau mungkin dapat memperolehi keuntungan kontra yang besar dan tidak mengalami kerugian kontra apabila plaintif menjual secara paksa saham-saham tersebut (lihat ms 211G–H); Keppel Finance Ltd v Phoon Ah Lek [1994] 3 MLJ 26 dibeza.<br />
<br />
Notes<br />
<br />
For cases on negligence on the part of a stockbroker, see 11 Mallal’s Digest (4th Ed, 2001 Reissue) paras 915–919.<br />
<br />
Cases referred to<br />
<br />
Associated Pan Malaysia Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn Bhd [1990] 3 MLJ 287 (refd)<br />
<br />
Keppel Finance Ltd v Phoon Ah Lek [1994] 3 MLJ 26 (distd)<br />
<br />
UMBC Securities Sdn Bhd v Tan Chee Aan [2001] 3 MLJ 410 (distd)<br />
<br />
Legislation referred to<br />
<br />
Legislation referred to<br />
<br />
Contracts Act 1950 s 64<br />
<br />
Rules for Trading by Member Companies r 8<br />
<br />
Lawyers<br />
<br />
R Yogeswari Rathakrishnan (Che Mokhtar & Co) for the plaintiff.<br />
<br />
Steven Puung (Isharidah, Ho, Chong & Menon) for the defendant.<br />
<br />
Judgement - Kang Hwee Gee J<br />
<br />
Kang Hwee Gee J : The defendant, Anthony Lee Sin Choy, was a direct client of the plaintiff, UMBC Securities Sdn Bhd, a licensed stockbroker of the Kuala Lumpur Stock Exchange (‘KLSE’). <br />
<br />
The plaintiff’s claim in this case was in respect of the payment of 50 lots of Cash shares which the plaintiff had purchased on his instruction on 1 March 1994.<br />
<br />
The purchase was made through the plaintiff’s dealer’s representative, Leow Yuen Fong but placed through its Senior General Manager, Yong Yuen Fatt with whom the defendant was well acquainted with.<br />
<br />
The defendant did not take up the shares when they were due for payment on the eighth day of transaction (‘T+7’) as required under the rules of trading then prevailing. Under the same rules, the plaintiff would be entitled to force sell them through the exchange by the ninth day of transaction (‘T+8’) and to remit any contra gain or contra loss to the defendant’s trading account. <br />
<br />
But the plaintiff did not force sell the shares on that day or on the subsequent days thereafter until the Cash counter was suddenly suspended by the KLSE on 16 May 1994. <br />
<br />
According to Yeap Hock Beng, an officer in the plaintiff’s credit control department, Yong gave instruction to him not to force sell the shares on T+8. But whether he also gave instruction not to force sell with respect to the period after T+8 is unclear from the evidence.<br />
<br />
The suspension was lifted and the counter reopened for trading a month later on 17 June 1994. <br />
<br />
Still the plaintiff did not act to force sell the shares. <br />
<br />
Three days later on the morning of 20 June 1994 Cash shares were trading at a high of RM11.20. The defendant decided to act. At about 11am on that day, according to his testimony, he tried to contact Leow. Unable to get him at his desk, he then rang Yong and after informing him of his predicament, requested Yong to pass on the instruction to Leow to sell all the 50 lots. <br />
<br />
According to Yong (who gave evidence for the defendant), he immediately carried out the instruction. At lunch time, however, he was informed by Leow that his instruction had not been carried out but was assured that he would try to sell them in the afternoon at RM11.20 or higher. He informed Leow to monitor the price carefully in order to have them sold. By afternoon however, the price of Cash shares had dropped reaching a low of RM9.60 for the day. Leow was unable to sell them at RM11.20 and so they remained unsold.<br />
<br />
Leow who gave evidence for the plaintiff however, denied that he was ever instructed by Yong to sell the 50 lots of Cash shares on 20 June 1994.<br />
<br />
Still the shares were not forced sold after 20 June 1994. They were sold only some seven months and three weeks later on 13 February 1995 by the plaintiff’s Credit Control Department by two transactions for the cumulative sum of RM335,920. No evidence was adduced as to why there was such a long delay in disposing of the shares.<br />
<br />
The disputes<br />
<br />
The plaintiff’s claim against the defendant was for the payment of the 50 lots of Cash shares purchased on his instruction on 1 March 1994 less the amount recovered by force selling on 20 June 1994, to arrive at the sum of RM226,790.42. The plaintiff also claimed a further late payment charge of RM72,067.26, costs and interests. <br />
<br />
The defendant denied owing the plaintiff the sum claimed. Instead, he counterclaimed on the basis that had the plaintiff sold the 50 lots Cash shares on 20 June 1994 as instructed by him, he would have a contra gain of RM49,619.33 instead of a contra loss of RM226,790.42 when the shares were force-sold on 20 June 1994. <br />
<br />
The basis of the plaintiff’s claim<br />
<br />
The plaintiff’s claim against the defendant is premised entirely on the argument that the defendant was bound by cl (a) read with cl (f) of the Account Application form which he had signed with the plaintiff. The two clauses read as follows:<br />
<br />
<br />
<br />
By signing below, I … … …<br />
<br />
(a) request you to open an account in UMBC Securities Sdn Bhd (UMBCS) and undertake to abide by the rules and regulations of the Kuala Lumpur Stock Exchange and the Securities Act. <br />
<br />
(b) authorized you to deal with all the stocks and/or shares bought for my account for which I have not paid in any manner you deem fit.<br />
<br />
<br />
<br />
The relevant rule and regulation of the KLSE referred to in cl (a) above was the prescribed regulations for selling-out made pursuant to r 8 of the Rules for Trading by Member Companies (then in force). It read as follows:<br />
<br />
<br />
<br />
Member companies shall close-off purchase positions of clients who fail to pay for their purchases by 12:30pm on the seventh market day following the date of contract and shall on an immediate delivery basis institute a selling-out by the eighth day the securities or any of the securities for which the client has not made full payment by the said due date. The member companies may at any time thereafter sue such clients for the difference and all losses and expenses consequent upon such selling-out. It shall not be necessary for member companies to give notice of all such selling-out and all damages which the member companies may sustain shall be recoverable from the clients as liquidated damages.<br />
<br />
<br />
<br />
It was argued that the above rule and regulation to which the defendant had undertaken to abide by, clearly allowed the plaintiff to force sell any shares that had not been paid for by the seventh day of transaction (‘T+7’). Read with cl (f) of the account application form signed by the defendant, this means that the plaintiff was at liberty to sell them at any time it deemed fit. It was therefore perfectly legitimate, so it was argued, for the plaintiff to sell off the Cash shares on 13 February 1995 as cl (f) gave it a free hand to dispose of them ‘in any manner you deemed fit’.<br />
<br />
Counsel for the plaintiff relied on my earlier decision in UMBC Securities Sdn Bhd v Tan Chee Aan [2001] 3 MLJ 410 wherein I had ruled on the same cl (f) of a similar shareholder’s application form involving the same plaintiff on a similar issue, that (at p 422):<br />
<br />
<br />
<br />
Additionally, the plaintiff was entitled to rely on cl (f) which authorized it to deal with the shares ‘in any manner you deemed fit’ to sell them at the appropriate time they deemed fit. Provided the sale was conducted bona fide to recover the loss that the plaintiff may have to incur by the failure of the defendant to pay for them, the sales could not be impeached.<br />
<br />
<br />
<br />
It must be noted that the force selling rule and regulation of the KLSE did not apply in that case as the plaintiff had agreed to the defendant’s request not to force sell the shares upon the latter’s default on T+ 7. What the court had to decide in that case was whether the disposal of the shares some 15 days later after due notice to the defendant was legitimate. <br />
<br />
The ruling itself allowed the plaintiff the liberty to sell the shares ‘in any manner you deemed fit’ not in all instances but only if they were sold bona fide with the intention of recovering the plaintiff’s loss. And since they were disposed of with reasonable promptitude when the defendant eventually failed to pay for them, it was held that the disposal was perfectly legitimate.<br />
<br />
The ruling that the plaintiff was entitled to rely on cl (f) was intended to apply only in the limited factual setting of that case. To elucidate, perhaps more need to be said of the construction of cl (f) of the shareholder’s application form that the defendant had signed in that case. At common law, a party who is entitled to claim damages for breach of contract is nevertheless under a duty to mitigate against the loss that the other party has to bear. He would be allowed to claim only so much of the loss that he cannot avoid. The principle can be better understood by referring to a passage in Mcgregor on Damages (16th Ed) at para 285:<br />
<br />
<br />
<br />
The first and most important rule is that the plaintiff must take all reasonable steps to mitigate the loss to him consequent upon the defendant’s wrong and cannot recover damages for any such loss which he could thus have avoided but has failed through unreasonable action or inaction, to avoid. Put shortly, the plaintiff cannot recover for avoidable loss.<br />
<br />
<br />
<br />
The words ‘conducted bona fide to recover the loss’ in the context of UMBC Securities Sdn Bhd v Tan Chee Aan, was meant to correlate to the duty of the plaintiff to mitigate the defendant’s loss, that is to say, the duty to sell the shares at a reasonably opportune time taking into consideration the volatile price movement of the stock market, so as to minimize the defendant’s loss. <br />
<br />
It would of course be somewhat unrealistic to impose an overly onerous duty on the stockbroker by insisting that he sells them off at the highest price to mitigate his client’s loss. Time is always of the essence in the volatile environment of the stock exchange and a stockbroker is perfectly entitled to look after his own interest in as much as he may have to contemplate on his client’s interest. I would therefore consider the stockbroker’s duty discharged if he acts bona fide with reasonable promptitude to dispose of his client’s shares to recover his loss at the price then prevailing.<br />
<br />
In the instant case, it is clear that the obligation of the defendant to pay for the purchase of the shares by T+7 had not been varied. It follows therefore, the plaintiff’s failure to sell the shares on T+8 as mandated by the KLSE was by its own default. No evidence was adduced as to why the plaintiff only sold the shares some seven months after the date of transaction. One can therefore conclude that the sale could not have been conducted bona fide to recover the plaintiff’s loss. The plaintiff could not therefore rely on cl (f) to justify the sale of the shares on 13 February 1995. <br />
<br />
The plaintiff’s contra-loss or the defendant’s contra-gain?<br />
<br />
The dispute cannot be resolved by the KLSE rules and regulations with respect to force selling as the plaintiff had failed to force sell the shares on T+8 and the rules and regulations did not provide the plaintiff with the right to force sell after that date. It has to be resolved by considering the respective right of the parties under the law sans the KLSE rules and regulations. <br />
<br />
At common law a party may waive (with or without consideration) his right or a part thereof in a contract. That principle is embodied in s 64 of the Contracts Act 1950, which read as follows:<br />
<br />
<br />
<br />
Every promise may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he may thinks fit.<br />
<br />
<br />
<br />
An authoritative rendition of that section was made by Gunn Chit Tuan SCJ (as he then was) in the Supreme Court case of Associated Pan Malaysia Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn Bhd [1990] 3 MLJ 287 at pp 295–296:<br />
<br />
<br />
<br />
But we agreed with Mr Sri Ram that s 64 of our Contracts Act 1950, which was also not brought to the attention of the learned judge, represents a departure from the common law in England. Our law on waiver in s 64 of the Contracts Act 1950, is similar to the Indian law on the general principles of waiver under which it is open to a promisee to dispense with or remit wholly or in part the performance of the promise made to him or he can accept any promise which he thinks fit. Under our law neither consideration nor an agreement will be necessary.<br />
<br />
<br />
<br />
By failing to exercise its right to force sell the shares on T+8 as required under the prescribed regulations for selling-out, the plaintiff must be taken to have waived its right to sell them on that day. Having arrived at this finding, one must now proceed to determine the ensuing rights and obligations of the parties starting with the premise that, in law once the shares were purchased the ownership of those shares remained with the defendant notwithstanding that he had not paid for them. They would continue to remain in his ownership, notwithstanding that the plaintiff had a contractual right to sell them off to recover the purchase price in the event that he failed to pay for them. Unless and until they were sold, the defendant continued to exercise control and dominion over the shares consistent with his status as owner and may direct the plaintiff to sell them at any time on his terms. He was therefore perfectly at liberty to direct the plaintiff to sell the shares at RM11.20 on 20 June 1994 when they were relisted on the KLSE as he would in the normal course, as the shares were still in the hands of the plaintiff. A failure on the part of the plaintiff to sell them as directed constituted a breach of an essential term of the contract express or implied to which the defendant would be entitled to claim damages.<br />
<br />
The claim involved transactions of some antiquity, when the plaintiff was then known as UMBC Securities Sdn Bhd. By the time this suit is heard eight years later, both the Senior General Manager, Yong Yuen Fatt and his subordinate the dealer’s representative Leow Yuen Fong, had left the plaintiff. Not surprisingly therefore in this trial, they found themselves on opposite sides giving contradicting evidence with respect to whether any instruction was given to the latter to force sell when the Cash counter reopened for trading on 20 June 1994. The truth however need not be determined as it is immaterial whether or not any such instruction was given. It is clear to me that the defendant did instruct the senior general manager to convey the sell order to the dealer’s representative and in the absence of any evidence of a collusion between the defendant and the senior general manager, I am apt to find that instruction constitutes an effective order to the plaintiff to sell the shares on 20 June 1994 for the following reasons:<br />
<br />
<br />
<br />
(1) Yong Yuen Fatt was a senior employee of the plaintiff who had assumed the responsibility to instruct the dealer’s representative to sell the shares;<br />
<br />
(2) he was well aware of the defendant’s position with respect to the 50 lots of Cash shares; and<br />
<br />
(3) all the defendant’s previous dealings with the plaintiff including the purchase of the 50 lots of Cash shares had been conducted through the Senior General Manager, Yong Yuen Fatt, and never directly with the dealer’s representative Yeow Yuen Fong.<br />
<br />
<br />
<br />
A failure to carry out the instruction constitutes a breach on the part of plaintiff of its obligation to sell the shares on the instruction of the defendant. The evidence clearly points to the fact that the shares could be sold at RM11.20 on 20 June 1994. The defendant was therefore entitled to counterclaim on the basis that had the shares been sold on his instruction on 20 June 1994 at that price, he could have made a substantial contra gain instead of suffering a contra loss when the plaintiff force sold them only on 13 February 1995. <br />
<br />
The decision in Keppel Finance distinguished<br />
<br />
At first blush the decision may appear to be at variance with the decision of VC George J (as he then was) in Keppel Finance Ltd v Phoon Ah Lek [1994] 3 MLJ 26. The court in that case had to decide whether Keppel Finance to whom the defendant had charged his shares to obtain a loan in a share margin trading account had the right to sell them when the value of shares pledged fell below the margin. The decision of the court in that case fell on the construction of cl 13 of the loan agreement and a clause of the memorandum of deposit that the defendant signed with the plaintiff. <br />
<br />
Clause 13 of the loan agreement read as follows: <br />
<br />
<br />
<br />
When the security created by this agreement shall become enforceable the lender shall without prejudice to any other remedies … forthwith be entitled as and when they shall think fit with or without notice to all or any of the following:<br />
<br />
(a) sell or dispose of the securities or any part thereof … in such manner and for such consideration the lender shall think fit.<br />
<br />
<br />
<br />
The clause in the memorandum of deposit read as follows:<br />
<br />
<br />
<br />
… if and whenever the market value of the mortgaged securities does not exceed my indebtedness by 154% you are at liberty without demand or notice to sell as you think fit all or any part of the mortgaged securities …<br />
<br />
<br />
<br />
The lender Keppel Finance did not sell the shares when they fell below the margin several times but sold them very much later at the expiry of the loan period by which time the amount realized from the sale became grossly insufficient to pay off the loan. It was held that the loan agreement gave the lender Keppel Finance the liberty to sell the shares as it saw fit and that they were not expected to forthwith sell off all the shares on default or on the margin not being met. The defendant’s argument that the lender had been negligent in not disposing of the shares immediately after the margin was breached was rejected.<br />
<br />
It will be at once discernible that the decision in Keppel Finance is concerned only with the right of a finance company to dispose of shares that had been charged to it under an agreement to secure a loan. That right to dispose of the shares in any manner it thinks fit, it is clear was acquired under the loan agreement. It is not concerned with the right of the stockbroker as in the present case, to dispose of shares bought for a client on his instruction which was not paid for by a certain date — where that right to deal with the shares as owner had never been curtailed and had always remained with the defendant. At most, the plaintiff could only claim a lien over the unpaid shares; but so long as they still remain in the hands of the plaintiff, the defendant retained the right to deal with them as owner including the right to instruct the plaintiff to sell them.<br />
<br />
The plaintiff’s claim is dismissed with costs. The defendant’s counterclaim is allowed with costs.<br />
<br />
<br />
<br />
Plaintiff’s claim dismissed and defendant’s counterclaim allowed.<br />
<br />
<br />
<br />
Reported by Peter LingRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-48681657117506226692009-10-23T21:14:00.001-07:002009-10-23T21:14:33.546-07:00Majlis Perbandaran Melaka Bandaraya Bersejarah v First Consolidated Sdn Bhd2003] 1 MLJ 199<br />
<br />
<br />
Majlis Perbandaran Melaka Bandaraya Bersejarah v First Consolidated Sdn Bhd<br />
<br />
Headnote<br />
<br />
Court Details<br />
<br />
COURT OF APPEAL (KUALA LUMPUR) — CIVIL APPEAL NO M–03–34 OF 1995<br />
<br />
DENIS ONG, MOHD SAARI, AZMEL JJCA<br />
<br />
29 AUGUST 2002<br />
<br />
Catchwords<br />
<br />
Civil Procedure — Attachment — Garnishee order made absolute — Respondent’s application for order made absolute was granted — Whether appellant (garnishee) still owed money to judgment debtor — Whether trial judge misdirected himself in not considering exhibits tendered<br />
<br />
Summary<br />
<br />
The respondent had obtained an order for a judgment sum of RM493,227.80 against Padu Ehsan Sdn Bhd (‘PESB’). The judgment was not satisfied to the extent of RM153,448.02. Later, the respondent came to know that PESB was the earthwork contractor for the appellant (garnishee). Pursuant to the contract between the appellant and PESB, it was alleged that the appellant still owed money to PESB. The respondent applied to the senior assistant registrar (‘SAR’) for a garnishment order nisi under O 49 r 1(1) of the Rules of the High Court 1980 (‘the RHC’) to be made absolute which the learned SAR refused to grant. On appeal to the judge in chambers, the learned judge allowed the appeal and granted the order to be made absolute. This appeal was against that order. The issue for determination was whether the first and second interim payments had been disbursed to PESB by the appellant.<br />
<br />
Holdings<br />
<br />
Held, allowing the appeal with costs:<br />
<br />
The learned judge had misdirected himself in not considering exhs P3 and P6 and the endorsements of the two cheques (exhs P10 and P11). Had the learned judge considered the endorsements of the two cheques together with the contemporaneous documents, he would have reached a different conclusion. Upon a perusal of exhs P3, P6, P10 and P11, the court was satisfied that the first and second interim payments totalling RM714,900 were in fact disbursed to PESB. As such, it could not be said that the appellant owed RM714,900 to PESB (see p 203A–B). <br />
<br />
Bahasa Malaysia summary<br />
<br />
Responden telah memperolehi perintah untuk jumlah penghakiman sebanyak RM493,227.80 terhadap Padu Ehsan Sdn Bhd (‘PESB’). Penghakiman tersebut tidak terlaksana sebanyak RM153,448.02. Setelah itu, responden mendapat tahu bahawa PESB merupakan kontraktor kerja-kerja tanah untuk perayu (yang digarnis). Menurut perjanjian di antara perayu dan PESB, telah dikatakan bahawa perayu masih berhutang kepada PESB. Responden telah memohon kepada penolong kanan pendaftar (‘PKP’) untuk suatu perintah garnisan nisi di bawah A 49 k 1(1) Kaedah-Kaedah Mahkamah Tinggi 1980 (‘KMT’) untuk dimutlakkan, di mana ia telah ditolak oleh PKP. Dalam rayuan kepada hakim dalam kamar, hakim yang arif telah membenarkan rayuan tersebut dan mengarah supaya perintah tersebut dimutlakkan. Rayuan ini adalah terhadap perintah itu. Isu untuk ditentukan adalah sama ada bayaran-bayaran interim pertama dan kedua telah dibayar kepada PESB oleh perayu.<br />
<br />
Bahasa Holdings<br />
<br />
Diputuskan, membenarkan rayuan tersebut dengan kos:<br />
<br />
Hakim yang arif telah salah arahkan dirinya sendiri dengan tidak menimbang eksh P3 dan P6 dan pengendorsan dua cek tersebut (eksh P10 dan P11). Jikalau hakim tersebut telah menimbang pengendorsan dua cek tersebut bersama dengan dokumen-dokumen semasa, beliau akan membuat keputusan yang lain. Setelah meneliti eksh P3, P6, P10 dan P11, mahkamah berpuas hati bahawa bayaran-bayaran interim pertama dan kedua berjumlah RM714,900 telahpun dibayar kepada PESB. Oleh itu, tidak boleh dikatakan bahawa perayu berhutang kepada PESB sebanyak RM714,900 (lihat ms 203A–B).<br />
<br />
Notes<br />
<br />
For cases on garnishee order made absolute, see 2 Mallal’s Digest (4th Ed, 2001 Reissue) paras 1361-1362<br />
<br />
Legislation referred to<br />
<br />
Legislation referred to<br />
<br />
Rules of the High Court 1980 O 49 r 1(1)<br />
<br />
Appeal from: Civil Suit No 22–113 of 1992 (High Court, Melaka)<br />
<br />
Lawyers<br />
<br />
Adillah Ahmad Nordin (Ng Kong Peng and J Amardas with her) (Nordin & Phua) for the appellant (garnishee).<br />
<br />
Yau Jiok Hua (Yau Jiok Hua & Co) for the respondent.<br />
<br />
Judgement - Mohd Saari JCA<br />
<br />
Mohd Saari JCA (delivering judgment of the court): In the court below, the learned SAR who heard the application for a garnishment order nisi under O 49 r 1(1) of the Rules of the High Court 1980 refused to grant the order to be made absolute. On appeal to the judge in chambers, the learned judge allowed the appeal and granted the order to be made absolute. Against the order, the appellant (garnishee) appealed.<br />
<br />
Prior to the application for such a garnishment order, the respondent (JC) obtained an order for a judgment sum of RM493,227.80 against Padu Ehsan Sdn Bhd (‘PESB’) in the High Court at Johor Bahru (vide Civil Suit No 22–114–1992). The judgment was not satisfied to the extent of RM153,448.02. Later, the respondent came to know that PESB was the earthwork contractor for the appellant (garnishee). Pursuant to the contract between the appellant and PESB, it was alleged that the appellant still owed money to PESB.<br />
<br />
At the initial stage of the hearing of this appeal, the parties agreed that (exh P7) p 230 and (exh P6) p 234 form part of the appeal record. They also agreed that pp 231–233 and pp 235–243 of the appeal record be expunged.<br />
<br />
The dispute is over first and second interim payments. The issue for determination is whether the first interim payment of RM530,200 and the second interim payment of RM184,700 had been disbursed to PESB.<br />
<br />
The facts from the appeal record as narrated by Mr Ng (the learned counsel for the appellant) was that the present case involved four interim payments, namely: <br />
<br />
<br />
<br />
First payment RM530,200 <br />
<br />
Second payment RM184,700 <br />
<br />
Third payment RM696,000 <br />
<br />
Fourth payment RM300,000 <br />
<br />
<br />
<br />
The respondent (JC) did not dispute that payments nos 3 and 4 had been made. The dispute was in respect of payments nos 1 and 2. The appellant’s (garnishee’s) case was that payments nos 1 and 2 totaling RM714,900 had been fully disbursed to PESB.<br />
<br />
The court’s attention was drawn to a number of documents. For the purpose of this appeal, we need only to mention certificate of interim payment no 3 (exh P6) at p 234 of the appeal record, Bank Negara cheque for RM530,200 (exh P10) at p 305 of the appeal record, Bank Negara cheque for RM184,700 (exh P11) at p 312 of the appeal record and the statement of final account (exh P3) at pp 291–293.<br />
<br />
In the case of the certificate of interim payment (exh P6), PESB acknowledged having received the sum of RM696,000. In the same document, the words ‘Bayaran Interim Terdahulu’ RM714,900 were inserted therein, implying that said amount was disbursed to PESB. RM714,900 was the total amount of first and second interim payments.<br />
<br />
The disbursement of RM714,900 is supported by the evidence of the two cheques (exh P10 and exh P11) which bear the endorsement of Bank of Commerce (M) Bhd. PESB’s account with Bank of Commerce is no 04010550739007. The account number of PESB on the cheques and vouchers tally.<br />
<br />
The appellant’s case is further reinforced by the evidence of the statement of final account (exh P3). In that statement, at p 293 of appeal record, one Kuan Ee Leong, director of PESB, acknowledged receipt of the interim payments (nos 1 to 4) amounting to RM1,710,900 which amount would have included payments nos 1 and 2 totalling RM714,900. In the same statement, at p 293 of appeal record, the following words appear:<br />
<br />
<br />
<br />
Saya/Kami* yang menandatangani di bawah ini mengaku penerimaan Perakuan Muktamad di atas dan setelah meneliti butir-butir terkandung di dalamnya, bersetuju dengan Bayaran Muktamad Disyorkan Kena Dibayar dan mengaku bahawa Saya/Kami* tidak ada tuntutan lanjut di bawah kontrak ini. <br />
<br />
<br />
<br />
t.t. t.t. <br />
<br />
………………………. ………………………. <br />
<br />
Tandatangan Saksi Tandatangan Kontraktor <br />
<br />
Nama Penuh: MD NOR BIN AB HAMID Nama Penuh: KUAN EE LEONG <br />
<br />
No K/P: 7267060 No K/P: 4866046 <br />
<br />
Alamat: SSB-1 Batu 2½ PADU EHSAN SDN BHD <br />
<br />
Bukit Baru Dalam 391-N, (1st FLOOR), JALAN MAWAR <br />
<br />
Melaka TAMAN PERINGGIT JAYA, <br />
<br />
75400 MELAKA <br />
<br />
TEL NO: 06-247927 <br />
<br />
FAX/TEL NO: 06-247968 <br />
<br />
………………………. <br />
<br />
Cap Kontraktor <br />
<br />
Tarikh: 6 OKT 1993 Tarikh: 6 OKT 1993 <br />
<br />
<br />
<br />
<br />
<br />
Mr Yau, counsel for the respondent (JC), argued that there was no evidence that the amounts as stated in exhs P10 and P11 were credited into the account of PESB. Only endorsements appeared on the two cheques and anybody could have put the endorsements there.<br />
<br />
In the judgment of the learned judge in the court below, his Lordship, at p 042 of the appeal record, said:<br />
<br />
<br />
<br />
I could only conclude from all the available facts that P10 and P11 never left the Jabatan Akauntan Negara’s office and that no payments thus had been made to the judgment debtor. The unblemished and spotless cheques which caused the court to be even more suspicious of the assertion of PW3 could only support my findings that the garnishee still owed the judgment debtor to the tune of RM714,900.<br />
<br />
<br />
<br />
The appellant argued that the learned judge in the court below failed to consider the endorsement by Bank of Commerce on the two cheques (exhs P10 and P11). His Lordship’s observation about it was that both the cheques were unblemished, which as conceded by the respondent was not correct. Further, in his judgment, the trial judge made no reference to exh P3 and exh P6. In this regard, we agree with the appellant that the learned judge misdirected himself in not considering exh P3 and exh P6 and the endorsements on the two cheques (exhs P10 and P11). Had the learned judge considered the endorsements on the two cheques together with the contemporaneous documents (exhs P3 and P6), he would have reached a different conclusion.<br />
<br />
In conclusion, upon a perusal of contemporaneous documents (exhs P3, P6, P10 and P11) in totality, we are satisfied that first and second payments totaling RM714,900 were in fact disbursed to PESB. As such it could not be said that the appellant owed RM714,900 to PESB. In the premises, we allowed the appeal with costs here and below, set aside the order of the learned trial judge and further ordered that the deposit be refunded to the appellant.<br />
<br />
<br />
<br />
Appeal allowed with costs.<br />
<br />
<br />
<br />
Reported by Zahid TaibRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-15861345102306437502009-10-18T03:57:00.000-07:002009-10-19T22:57:52.994-07:00Public Prosecutor v Dato’ Seri Anwar bin Ibrahim & Anor[2001] 3 MLJ 193<br />
<br />
<br />
Public Prosecutor v Dato’ Seri Anwar bin Ibrahim & Anor<br />
<br />
Headnote<br />
<br />
Court Details<br />
<br />
HIGH COURT (KUALA LUMPUR) — CRIMINAL TRIALS NO 45–51 OF 1998 AND NO 45–26 OF 1999<br />
<br />
ARIFIN JAKA J<br />
<br />
30 APRIL 2001<br />
<br />
Catchwords<br />
<br />
Criminal Law — Carnal intercourse against order of nature — Sodomy — Whether penetration must be proved — Failure to prove potency of accussed — Whether all ingredients proved — Abetment of sodomy, whether proved — Penal Code ss 107, 109 & 377B<br />
<br />
<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhLBfFcsx-XniewIKnpj-a0u6S2b8OE-2P7r40pAs-Ju7UBJyHI_CiyFL7XZJzJCU6kk0LYTgj34cjCPCOPkJ3euwtb8YseJ5-cNCwtNuAWAJ5sJKlzBeiTwtPpOdvt8S_NG_f2jmZheqIh/s1600-h/Dato+Seri+Anwar+Ibrahim+(4).jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhLBfFcsx-XniewIKnpj-a0u6S2b8OE-2P7r40pAs-Ju7UBJyHI_CiyFL7XZJzJCU6kk0LYTgj34cjCPCOPkJ3euwtb8YseJ5-cNCwtNuAWAJ5sJKlzBeiTwtPpOdvt8S_NG_f2jmZheqIh/s320/Dato+Seri+Anwar+Ibrahim+(4).jpg" vr="true" /></a><br />
</div><br />
<br />
Criminal Procedure — Charge — Alteration or amendment of — Numerous amendments to date of offence in charge — Whether amendments made in good faith — Accused not prejudiced — Whether charge as amended clear and unambiguous — Whether charge valid<br />
<br />
<br />
<br />
Criminal Procedure — Trial — Confession to magistrate — Admissibility of — Jurisdiction of High Court to admit confession by holding trial within a trial — Meaning of ‘inquiry or trial’ in s 115(1) of Criminal Procedure Code, whether only confined to preliminary inquiry — Whether confession should be excluded<br />
<br />
<br />
<br />
Evidence — Burden of proof — Alibi — Alibi did not cover whole period stated in charge — Whether defence of alibi proved<br />
<br />
<br />
<br />
Evidence — Confession — Co-accussed’s confession — Contradiction with other evidence adduced — Whether court could accept only part of confession supported by other evidence — Whether confession was voluntarily made — Whether confession corroborated — Subsequent letter by co-accused, whether fresh evidence to justify review as to admissibility of confession<br />
<br />
<br />
<br />
Evidence — Credibility — Assessment of — Impeachment and subsequent conviction by Syariah Court — Contradiction with evidence given at previous trial — Whether contradictions explained — Whether mere fact of allowing impeachment proceedings automatically meant that witness was unreliable and untruthful — Witness convicted by Syariah Court, whether witness should be recalled to assess credibility — Whether conviction ground for disbelieving witness — Whether credit of witness affected by impeachment and subsequent conviction<br />
<br />
<br />
<br />
Evidence — False evidence — Defence of conspiracy to fabricate evidence — Whether proved<br />
<br />
<br />
<br />
Evidence — Impeachment — Credit of witness — Contradiction with evidence given at previous trial — Whether contradictions explained — Whether mere fact of allowing impeachment proceedings automatically meant that witness was unreliable and untruthful — Whether credit of witness affected<br />
<br />
<br />
<br />
Evidence — Proof of — Sodomy — Penetration — Whether penetration must be proved by medical evidence alone<br />
<br />
<br />
<br />
Evidence — Statement — Press statements — By Prime Minister and Inspector General of Police — Statements point to innocence of accused, whether relevant<br />
<br />
<br />
<br />
Evidence — Witness — Recalling of — Witness convicted by Syariah Court — Whether witness should be recalled to confirm his conviction and assess his credibility — Whether proceedings in Syariah Court relevant in assessing credibility of witness<br />
<br />
Summary<br />
<br />
Both the accused were charged separately for offences under the Penal Code. In Criminal Trial No 45–51–98, the accused Dato’ Seri Anwar bin Ibrahim (‘Dato’ Seri Anwar’) was charged with an offence punishable under s 377B of the Penal Code for committing carnal intercourse against the order of nature with one Azizan bin Abu Bakar (‘Azizan’) in May 1994. Subsequently the prosecution amended the original charge in respect of the year 1994 stated therein to read 1992. In Criminal Trial No 45–26–99, the accused Sukma Darmawan Sasmitaat Madja (‘Sukma’) was charged with two offences, firstly for abetting Dato’ Seri Anwar in committing carnal intercourse against the order of nature and secondly for committing carnal intercourse against the order of nature with Azizan. The offences were alleged to have been committed at Sukma’s apartment, Tivoli Villa. At the commencement of the joint trial, the amended charge against Dato’ Seri Anwar was amended again in respect of ‘dalam bulan Mei 1992’ (in the month of May 1992) to read ‘di antara bulan Januari hingga Mac 1993’ (between the months of January and March 1993). The charges against Sukma was also amended in the same manner. The defence took strong objection to the amendment of the charges. Both accused applied to strike out the proceedings on the ground that the amendment was not made in good faith and was an abuse of the process of the court. The court had dismissed the applications to strike out the proceedings on the ground that they were devoid of any merits.<br />
<br />
The prosecution sought to admit the confession of Sukma through its witness En Abdul Karim bin Abdul Jalil, a sessions court judge who recorded it in his chambers. The defence contested the admission in evidence of the confession on the ground that it was not made voluntarily. A trial within a trial was held to ascertain whether or not there was any substance in the objection taken by counsels for the defence. At the commencement of the proceedings in the trial within a trial, counsel for Dato’ Seri Anwar raised a preliminary objection as to whether the court has the jurisdiction to embark on the issue of admission of any statement or confession made by an accused person for purpose of use in this proceeding by holding a trial within a trial. Sukma’s confession was recorded under s 115 of the CPC (FMS Cap 6). It was submitted that s 115 was enacted for the purpose of using the confession in the High Court after a preliminary enquiry in the magistrate’s court. As a preliminary enquiry has been abolished, the High Court has no jurisdiction to conduct a trial within a trial and this would mean the confession can be used only in a magistrate’s court. <br />
<br />
The defence had embarked on the impeachment of Azizan on the basis that there was a contradiction between the statements he made when he gave evidence in the trial of Dato’ Seri Anwar on charges of corrupt practices and his testimony in the present trial. The defence also challenged the evidence of Azizan on the principal ground that he was an unreliable witness and was not a witness of truth because he gave inconsistent statements in his testimony. It was argued that the fact the court allowed impeachment proceedings be brought against Azizan was acknowledgement of the fact that there were material contradictions in his testimony and this by itself was a ground for disbelieving Azizan and rejecting his evidence. The other ground advanced by the defence for attacking the credibility of Azizan was his conviction in the Mahkamah Syariah. It was contended by the defence that it was necessary to recall Azizan to give evidence to confirm his conviction and to assess his credibility.<br />
<br />
The defence of Dato’ Seri Anwar substantially was that of alibi, denial that he went to Tivoli Villa and conspiracy to fabricate evidence. Sukma’s defence briefly related to alibi and the offences against him could not have been committed as alleged due to the renovation of his apartment.<br />
<br />
Holdings<br />
<br />
Held, finding both accused guilty on the charges against them:<br />
<br />
(1) On a close scrutiny of the explanation by Azizan, the court found no difficulty in accepting it under the circumstances and on the evidence available. The statements in question which form the basis of the impeachment of Azizan must be read in the context of the questions that were asked. The court found that there was in fact no contradiction at all between what he had said in the previous trial and the evidence he gave in this instant proceedings in respect of the act of sodomy as stated in the charges against both accused. In any event, even assuming that there was a material contradiction, the court was more than satisfied that Azizan had successfully explained the contradiction beyond any doubt. Therefore, the court ruled that the impeachment proceeding failed and the credit of Azizan was saved and remained intact and further that in truth, in fact and in substance Azizan was a truthful witness (see p 229D–F).<br />
<br />
(2) The High Court had the jurisdiction to decide the question of admissibility of the confession made by Sukma to En Karim who acted in his capacity as a magistrate. This is clearly borne by the wordings of s 115(1) which says that the statement or confession may be recorded by the magistrate as any time before the inquiry or trial. The words used are ‘inquiry or trial’. ‘Inquiry’ as defined in s 2 of the CPC includes every inquiry conducted under this Code before a magistrate. It is not confined only to a preliminary inquiry. Once the statement or confession is recorded by the magistrate, it can be used in any court if it is relevant and it <br />
<br />
<br />
<br />
Page 196>>becomes the duty of the trial court or the court which hears the inquiry to determine the admissibility of the statement or confession. The preliminary point raised by the defence counsel was a non-issue (see p 230E–G).<br />
<br />
(3) Having considered all the evidence adduced in the trial within the trial and the submission of counsels both for the prosecution and in all the circumstances, the court was satisfied that there were no grounds sufficient to persuade the court in the exercise of its discretion that the court should exclude the confession as evidence. The court therefore admitted in evidence the confession made by Sukma on the ground that the prosecution had proved beyond reasonable doubt that it was made voluntarily in the sense that it was not obtained by threat, inducement, promise or oppression (see p 244E–F).<br />
<br />
(4) It was clear in the charges it was specified the offences were alleged to have been committed one night at about 7.45pm between the months of January and March 1993 at Tivoli Villa, in the Federal Territory of Kuala Lumpur. These particulars were sufficient to clothe the charges with clarity and certainty. The charges as amended were clear and unambiguous and as such both the accused had not in any way been misled by the charges as framed. They were not in any way prejudiced by the failure of the prosecution to state the exact date and this omission had not occassioned a miscarriage of justice. In any event a date in the charge has never been material (see p 249C–E).<br />
<br />
(5) The evidence showed that Azizan was invited to visit Tivoli Villa by Sukma. Azizan went there to see Sukma’s new apartment. He went there not with the intention of committing sodomy with both the accused. His actus reus alone was not sufficient to make him an accomplice. There must also be the intention on his part (see p 250E–F).<br />
<br />
(6) The mere fact of allowing the impeachment proceeding to be brought does not automatically mean that the witness is unreliable and untruthful witness and his evidence be rejected. The application to impeach was allowed to enable the witness to explain the discrepancies. It is the finding of the court at the end of the impeachment proceeding whether the witness has explained the material discrepancies that is important. The court had made a ruling that Azizan’s credit was saved after having considered all the evidence adduced (see p 251D–E).<br />
<br />
(7) In his testimony Azizan said he was confused because he was asked about the months of May 1994 and May 1992 repeatedly. The court found as a fact that he was confused. When a witness is confused, it does not mean he was lying. The truth was that he could not remember what he had said. In any event the issue whether he told the police he was sodomized in May 1994 and May 1992 were not the issues in the current charges against both the accused. The issue was whether he was sodomized by both the accused between the months of January and March 1993. Therefore the court ruled that the credit of Azizan was not affected on this score (see p 255C–E).<br />
<br />
(8) It was futile for this court to make an order to recall Azizan because to allow such an application would amount to opening up the case against Azizan which had been decided by the Syariah Court. This court cannot and should not do that as Azizan was lawfully tried before a forum properly constituted under an Enactment enforceable in the state of Melaka. Furthermore the evidence recorded does not relate to the substance of the charges on which both the accused were being tried in the instant case. The charges against Azizan in the Syariah Court had no bearing and connection at all with the charges faced by both the accused. The evidence to be adduced by recalling Azizan would not assist the court to arrive at a just decision of the case before the court (see p 256F–H).<br />
<br />
(9) What transpired in the Syariah Court would not be relevant in assessing the credibility of Azizan. A conviction of a witness for an offence is not a ground for disbelieving a witness. It follows therefore that the mere fact that Azizan was convicted in the Syariah Court under the Syariah law was no ground for discrediting his evidence given in the instant trial and to disbelieve him (see p 258B).<br />
<br />
(10) It was the court’s finding that in relation to the charges against both the accused, Azizan was a wholly reliable, credible and truthful witness taking into consideration the whole of his evidence notwithstanding inconsistencies, discrepancies and contradictions which did not detract the weight and truth of his evidence in relation to the ingredients of the charges against both accused. Azizan’s description and direct experience of being sodomized completely negative any probability that Azizan was tutored or coached as claimed by the defence counsel. No reasonable person or judge could on the evidence come to any other finding than the firm and unescapable conclusion that both accused sodomized him. Only persons directly and actively subjected to these acts of sodomy would be able to narrate the details of the whole episode (see p 258C–F).<br />
<br />
(11) The court found that based on the evidence of Azizan, what Sukma stated in the confession that he and Dato’ Seri Anwar sodomized Azizan as stated in the charge was true. If there was any contradiction in any part of the confession with the other evidence adduced, the court was entitled to accept part and reject part of the evidence (see p 263E).<br />
<br />
(12) Azizan’s evidence was indeed a very strong piece of independent evidence to prove that Dato’ Seri Anwar committed sodomy on Azizan as stated in the charge against him. The court was prepared to act on this evidence alone independently, disregarding and ignoring the confession of Sukma. It was therefore not necessary for the court to call the confession in aid. In any event, an accused can be convicted solely on the basis of a confession by his co-accused, provided the evidence emanating from the confession satisfies the court beyond reasonable doubt of the accused’s guilt. The confession of Sukma can therefore be used standing on its own against Dato’ Seri Anwar (see pp 265B–C, 266G).<br />
<br />
(13) The court had found Azizan to be a reliable and truthful witness. It follows that corroboration is required. The conduct of Dato’ Seri Anwar by asking Azizan to deny his ‘pengakuan bersumpah’ (sworn testimony) which was sent to the Prime Minister, and by asking the investigation officer to close investigation into the allegation against him was relevant and admissible and to that extent enhanced the credibility of Azizan and corroborated his evidence on the allegation of sodomy committed against him (see pp 268C, 271C–D, 273D).<br />
<br />
(14) The court had found Sukma’s confession was voluntarily made and therefore admissible. The court had also found that the relevant part of the confession which in respect of the commission of sodomy by both accused on Azizan was true and reliable. The court could therefore act on the confession. It was a piece of substantive evidence. The relevant part of the confession clearly implicated not only Sukma but also Dato’ Seri Anwar that both sodomized Azizan at Tivoli Villa which was the subject matter of the charges against the accused. Therefore the court found that the confession sufficiently supported and corroborated Azizan’s evidence (see p 274B–C).<br />
<br />
(15) Assuming that the court was wrong that there was corroboration, the court had in its mind the risk of convicting an accused on uncorroborated evidence. The court warned itself of the dangers of convicting both accused on the sodomy charges on uncorroborated evidence of Azizan but nevertheless in this case the court was satisfied and convinced that the charges of sodomy against both accused had been proved beyond a reasonable doubt even though there was no corroboration (see p 274D–E).<br />
<br />
(16) The court found that the prosecution had established all the ingredients of the charge under s 377B of the Penal Code, ie that the accused had carnal intercourse with a person; that such intercourse was against the order of nature; that the accused did the act voluntarily and that there was penetration. Penetration need not be proved by medical evidence alone. It can be proved by other evidence such as in this case by the direct evidence of Azizan which was supported by the confession of Sukma (see pp 276F, 278C, 279A, C).<br />
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(17) The failure of the prosecution to adduce evidence to establish the potency of both accused was not fatal to the prosecution case. If the defence of the accused is that he is impotent, it is up to him to establish that fact. Therefore the court ruled that it was not incumbent upon the prosecution to prove potency of both accused to establish its case beyond reasonable doubt at the end of the case for the prosecution (see p 280A, C–D).<br />
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(18) The evidence showed that Sukma invited Azizan to his apartment and made arrangement for Dato’ Seri Anwar to be present at the same time for the purpose of committing the act of sodomising Azizan. These were acts which connect Sukma with the steps of the transactions which were criminal and were also acts which show that Sukma intentionally aided and abetted the commission of the offence as envisage under the third limb of s 107 of the Penal Code and were also acts done by Sukma to facilitate the commission of the offence under explanation 2 of s 107 (see pp 282H–283A).<br />
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(19) It was also established by evidence that Sukma was voluntarily and purposely present witnessing the commission of the offence by Dato’ Seri Anwar and offered no opposition to it or at least to express his dissent. Thus the presence of Sukma cannot be taken to mean mere presence but more to it, it would under the circumstances afford cogent evidence which would justify this court in finding that Sukma wilfully encouraged the commission of the offence and so aided and abetted it. Further, there was also evidence in the confession that Sukma brought Dato’ Seri Anwar to his apartment for the purpose of allowing the latter to sodomize Azizan and as such the act of Sukma was evidence of active complicity on the part of Sukma and was caught by s 109 of the Penal Code. The result was that the court found as a fact that the prosecution had proved beyond reasonable doubt that in fact and in law Sukma abetted Dato’ Seri Anwar in the commission of the act of sodomy on Azizan (see p 283A–C).<br />
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(20) The alibi of both the accused did not cover the whole of the period between January to March 1993 as stated in the charge. The alibi covered the period only from 4 February to March 1993 and was therefore incomplete. Therefore the court held that the defence of alibi failed. The defence that both the accused never went to Tivoli Villa at 7.45pm between January to March 1993 also failed based on the evidence of Azizan which the court accepted as truthful and reliable (see p 316F–G).<br />
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(21) On the evidence adduced through the witnesses called on behalf of Dato’ Seri Anwar, the court was satisfied and found that the defence of conspiracy to fabricate evidence against Dato’ Seri Anwar had not been substantiated by admissible and cogent evidence. The witnesses gave hearsay evidence which was inadmissible. The court also found that the evidence given was tailored to accommodate the defence (see p 304D-E).<br />
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(22) The newspaper reports containing public statements made by the Prime Minister and the Inspector General of Police that the allegations and accusations against Dato’ Seri Anwar that he was involved in sex scandals were slanderous and untrue had no connection with the charge on which Dato’ Seri Anwar was being tried. They were irrelevant. The charge against Dato’ Seri Anwar was brought about as a result of a second investigation carried out by the police. The court had to decide on the charge according to the evidence adduced in court and nothing else. The press statements cannot be regarded as evidence in this trial as they were irrelevant (see p 309A–D).<br />
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(23) The evidence only showed that Sukma did not occupy the apartment before April 1993. The fact remained that he had access to the apartment from December 1992. There was no evidence to show that the keys to the apartment were not in his possession at the time when the renovation works were in progress. Sukma had unrestricted and free access to the apartment. Therefore the court concluded that Azizan’s evidence that he was sodomized in the apartment was unshaken and reliable (see p 312B–C).<br />
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(24) The court rejected the application to review the ruling on the admissibility of the confession on the ground that there was no fresh evidence to justify the review of the ruling. The court found that the evidence of a letter written by Sukma while he was in his cell in Bukit Aman lock up to Dato’ Seri Anwar did not reveal any fresh evidence. All what was stated therein had been narrated by Sukma in his evidence at the trial within a trial. The court was more inclined to the view that the letter was an afterthought (see pp 314G–H, I–315A).<br />
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(25) After taking into account all the mitigating factors available, the court was of the view that the appropriate sentence on Dato’ Seri Anwar was nine years imprisonment to run consecutively from the present sentence he is now serving. As for Sukma, the court took into consideration he is liable to whipping and this is a factor which merits a lesser sentence of imprisonment. After taking into consideration the mitigating factors, the court sentenced Sukma to six years imprisonment with effect from the date of conviction and two strokes on the first charge and six years on the second charge and two strokes. The sentence of imprisonment to run concurrently (see p 319G–320A).<br />
<br />
Bahasa Malaysia summary<br />
<br />
Kedua-dua tertuduh telah dipertuduhkan secara berasingan untuk kesalahan-kesalahan di bawah Kanun Keseksaan. Dalam Perbicaraan Jenayah No 45–51–98, tertuduh Dato’ Seri Anwar bin Ibrahim (‘Dato’ Seri Anwar’) telah dipertuduhkan dengan satu kesalahan yang boleh dihukum di bawah s 377B Kanun Keseksaan kerana melakukan persetubuhan bertentangan dengan aturan tabii dengan seorang bernama Azizan bin Abu Bakar (‘Azizan’) pada bulan Mei 1994. Berikutnya pihak pendakwa telah meminda tuduhan asal berkenaan tahun ‘1994’ yang dinyatakan di dalamnya kepada ‘1992’. Dalam Perbicaraan Jenayah No 45–26–99, tertuduh Sukma Darmawan Sasmitaat Madja (‘Sukma’) telah dipertuduhkan dengan dua kesalahan, pertamanya kerana membantu Dato’ Seri Anwar dalam melakukan persetubuhan bertentangan dengan aturan tabii dan keduanya kerana melakukan persetubuhan bertentangan dengan aturan tabii dengan Azizan. Kesalahan-kesalahan tersebut dikatakan telah berlaku di pangsapuri Sukma, Tivoli Villa. Pada permulaan perbicaraan bersama, tuduhan terpinda terhadap Dato’ Seri Anwar dipinda sekali lagi berkenaan ‘dalam bulan Mei 1992’ kepada ‘di antara bulan Januari hingga Mac 1993’. Tuduhan terhadap Sukma juga dipinda dalam cara yang sama. Pihak pembelaan membantah secara tegasnya terhadap pemindaan tuduhan-tuduhan tersebut. Kedua-dua tertuduh memohon supaya prosiding dibatalkan berdasarkan alasan bahawa pemindaan tidak dibuat dengan suci hati dan merupakan satu penyalahgunaan proses mahkamah. Mahkamah telah menolak permohonan untuk membatalkan prosiding atas alasan bantahan-bantahan tersebut adalah tanpa sebarang merit.<br />
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Pihak pendakwa cuba memasukkan pengakuan Sukma melalui saksinya En Abdul Karim bin Abdul Jalil, seorang hakim mahkamah sesyen yang mencatatkannya dalam kamarnya. Pihak pembelaan mencabar kemasukan keterangan pengakuan tersebut berdasarkan alasan bahawa ia tidak dibuat secara sukarela. Satu perbicaraan dalam perbicaraan telah dilangsungkan untuk menentukan sama ada atau tidak terdapat sebarang hujah yang teguh dalam bantahan yang dibuat oleh peguam untuk pihak pembelaan. Di permulaan prosiding perbicaraan dalam perbicaraan, peguam bagi pihak Dato’ Seri Anwar membangkitkan bantahan permulaan mengenai sama ada mahkamah mempunyai bidang kuasa untuk memulakan isu penerimaan masuk mana-mana pernyataan atau pengakuan yang dibuat oleh seorang tertuduh untuk tujuan penggunaan dalam prosiding ini dengan mengadakan perbicaraan dalam perbicaraan. Pengakuan Sukma telah dicatatkan di bawah s 115 Kanun Acara Jenayah (NMB Bab 6). Ia dihujahkan bahawa s 115 digubalkan untuk tujuan menggunakan pengakuan di Mahkamah Tinggi selepas siasatan permulaan di mahkamah majistret. Oleh kerana siasatan permulaan telah pun dimansuhkan, Mahkamah Tinggi tidak berbidang kuasa untuk melangsungkan perbicaraan dalam perbicaraan dan ini akan bermaksud pengakuan hanya boleh digunakan dalam mahkamah majistret sahaja. <br />
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Pihak pembelaan telah memulakan pencabaran Azizan atas dasar bahawa terdapat satu percanggahan di antara pernyataan yang dibuat olehnya ketika beliau memberi keterangan dalam perbicaraan Dato’ Seri Anwar atas tuduhan amalan rasuah dan keterangannya di dalam perbicaraan sekarang. Pihak pembelaan juga mencabar keterangan Azizan atas alasan utama bahawa beliau adalah seorang saksi yang tidak boleh dipercayai dan bukanlah seorang saksi yang bercakap benar kerana beliau memberi pernyataan yang tidak konsisten dalam keterangannya. Dihujahkan hakikat bahawa mahkamah membenarkan prosiding pencabaran terhadap Azizan merupakan penerimaan hakikat bahawa terdapat percanggahan yang material dalam keterangannya dan ini dengan sendirinya adalah satu alasan untuk tidak mempercayai Azizan dan menolak keterangan beliau. Satu lagi alasan yang dikemukakan oleh pihak pembelaan untuk menyerang kebolehpercayaan Azizan adalah sabitannya dalam Mahkamah Syariah. Ia dihujahkan oleh pihak pembelaan bahawa adalah perlu untuk memanggil Azizan semula untuk memberi keterangan bagi mengesahkan sabitannya dan untuk menilai kebolehpercayaan beliau.<br />
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Pembelaan Dato’ Seri Anwar pada dasarnya adalah alibi, penyangkalan bahawa beliau telah pergi ke Tivoli Villa dan persubahatan untuk memalsukan keterangan. Pembelaan Sukma secara ringkas berkaitan dengan alibi dan kesalahan terhadapnya tidak mungkin dilakukan sebagaimana yang dikatakan disebabkan pengubahsuaian pangsapurinya.<br />
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Bahasa Holdings<br />
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Diputuskan, mendapati kedua-dua tertuduh bersalah atas pertuduhan terhadap mereka:<br />
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(1) Atas satu pemeriksaan teliti penjelasan Azizan, mahkamah tidak mendapati sukar untuk menerima penjelasan tersebut di bawah keadaan ini dan atas keterangan yang ada. Pernyataan yang berkenaan yang membentuk asas pencabaran Azizan mestilah dibaca dalam konteks soalan yang ditanya. Mahkamah mendapati bahawa sebenarnya tiada percanggahan sama sekali di antara apa yang dikatakannya dalam perbicaraan sebelum ini dan keterangan yang diberikannya dalam prosiding ini berhubung dengan perbuatan liwat seperti yang dinyatakan dalam tuduhan terhadap kedua-dua tertuduh. Walau apa pun juga, sekalipun menganggap bahawa terdapat satu percanggahan yang material, mahkamah lebih daripada puas hati bahawa Azizan telah berjaya menjelaskan percanggahan tersebut melampaui sebarang keraguan. Dengan itu, mahkamah memutuskan bahawa prosiding pencabaran gagal dan keyakinan Azizan diselamatkan dan masih utuh dan selanjutnya dari segi kebenaran, fakta dan keseluruhannya Azizan merupakan seorang saksi yang bercakap benar (lihat ms 229D–F).<br />
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(2) Mahkamah Tinggi berbidang kuasa untuk memutuskan persoalan kebolehterimaan pengakuan yang dibuat oleh Sukma kepada En Karim yang bertindak dalam keupayaannya sebagai seorang majistret. Ini jelas dipaparkan oleh susunan kata s 115(1) yang mengatakan bahawa pernyataan atau pengakuan boleh dicatatkan oleh majistret bila-bila masa sebelum siasatan atau perbicaraan. Perkataan-perkataan yang digunakan adalah ‘siastan atau perbicaraan’. ‘Siasatan’ sebagaimana yang ditakrifkan dalam s 2 Kanun Acara Jenayah termasuk setiap siasatan yang dijalankan di bawah Kanun ini di hadapan seorang majistret. Ia bukannya terhad kepada siasatan permulaan sahaja. Sebaik sahaja pernyataan atau pengakuan dicatatkan oleh majistret, ia boleh digunakan di mana-mana mahkamah sekiranya relevan dan ia menjadi tanggungjawab mahkamah perbicaraan atau mahkamah yang mendengar siasatan untuk menentukan kebolehterimaan pernyataan atau pengakuan tersebut. Hujah permulaan yang dibangkitkan oleh peguam bagi pihak pembelaan bukanlah satu isu (lihat ms 230E–G).<br />
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(3) Setelah menimbang segala keterangan yang dikemukakan dalam perbicaraan dalam perbicaraan dan penghujahan peguam untuk kedua-dua pihak pendakwa dan pembelaan dan dalam semua keadaan, mahkamah berpuas hati tiada apa-apa alasan yang cukup yang dapat meyakinkan mahkamah dalam pelaksanaan budi bicaranya bahawa mahkamah harus mengecualikan pengakuan tersebut sebagai keterangan. Oleh itu mahkamah menerima masuk keterangan ke atas pengakuan yang dibuat oleh Sukma atas alasan bahawa pihak pendakwa telah membuktikan melampaui keraguan munasabah bahawa ia dibuat secara sukarela dalam ertikata ia tidak diperolehi secara ugutan, dorongan, janji atau penindasan (lihat ms 244E–F).<br />
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(4) Adalah jelas daripada pertuduhan, kesalahan-kesalahan tersebut dikatakan berlaku suatu malam kira-kira pada pukul 7.45 malam antara bulan Januari dan Mac 1993 di Tivoli Villa, dalam Wilayah Persekutuan Kuala Lumpur. Butir-butir ini adalah cukup untuk memberikan tuduhan tersebut kejelasan dan kepastian. Pertuduhan-pertuduhan seperti yang dipinda adalah jelas dan tidak boleh disalah-sangka lagi dan dengan demikian kedua-dua tertuduh tidak diperdayai oleh pertuduhan sebagaimana dinyatakan dalam apa-apa cara. Mereka tidak terjejas dalam apa-apa cara oleh kegagalan pihak pendakwa untuk menyatakan tarikh yang sebenarnya dan peninggalan ini tidak menyebabkan kegagalan keadilan. Walau apa pun juga, tarikh dalam tuduhan tidak pernah menjadi material (lihat ms 249C–E).<br />
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(5) Keterangan menunjukkan Azizan telah dijemput melawat Tivoli Villa oleh Sukma. Azizan telah ke sana untuk melihat pangsapuri baru Sukma. Beliau telah ke sana bukan dengan tujuan <br />
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Page 204>>melakukan liwat dengan kedua-dua tertuduh. Actus reus sahaja tidak mencukupi untuk menjadikannya seorang subahat. Mestilah wujud tujuan di pihaknya (lihat ms 250E–F).<br />
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(6) Hakikat semata-mata untuk membenarkan prosiding pencabaran untuk dimulakan tidak bermakna secara automatik bahawa saksi adalah seorang yang tidak boleh dipercayai dan tidak bercakap benar dan keterangannya harus ditolak. Permohonan untuk mencabar dibenarkan untuk membolehkan saksi menjelaskan percanggahan. Adalah keputusan mahkamah di penutup prosiding pencabaran sama ada saksi telah menjelaskan perbezaan material yang penting. Mahkamah telah membuat keputusan bahawa kebolehpercayaan Azizan diselamatkan setelah menimbang segala keterangan yang dikemukakan (lihat ms 251D–E).<br />
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(7) Dalam keterangannya Azizan mengatakan beliau keliru kerana beliau ditanya mengenai bulan Mei 1994 dan Mei 1992 berulang kali. Mahkamah mendapati bahawa memang beliau keliru. Apabila seseorang saksi keliru, ia tidak bermakna beliau tidak bercakap benar. Sebenarnya beliau tidak dapat ingat apa yang telah dikatakannya. Walau apa pun juga, isu sama ada beliau memberitahu pihak polis beliau telah diliwat pada bulan Mei 1994 dan Mei 1992 bukanlah isu-isu dalam tuduhan kini terhadap kedua-dua tertuduh. Isu adalah sama ada beliau telah diliwat oleh kedua-dua tertuduh antara bulan Januari dan Mac 1993. Oleh yang demikian, mahkamah memutuskan bahawa kebolehpercayaan Azizan tidak terjejas atas perkara ini (lihat ms 255C–E).<br />
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(8) Adalah sia-sia untuk mahkamah ini membuat perintah untuk memanggil semula Azizan kerana membenarkan permohonan begitu seolah-olah membuka kes terhadap Azizan yang telah diputuskan oleh mahkamah syariah. Mahkamah ini tidak boleh dan tidak harus membuat demikian kerana Azizan telah dibicarakan secara sah di hadapan satu forum yang ditubuhkan dengan wajarnya di bawah satu Enakmen yang berkuatkuasa di negeri Melaka. Tambahan pula keterangan yang dicatatkan tidak berhubung dengan isi tuduhan yang mana kedua-dua tertuduh sedang dibicarakan dalam kes ini. Tuduhan-tuduhan terhadap Azizan di mahkamah syariah tidak mempunyai sebarang kaitan dengan tuduhan yang dihadapi oleh kedua-dua tertuduh. Keterangan yang bakal dikemukakan dengan memanggil semula Azizan tidak akan membantu mahkamah mencapai keputusan yang saksama ke atas kes di hadapan mahkamah (lihat ms 256F–H).<br />
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(9) Apa yang berlaku di mahkamah syariah tidak relevan dalam menilai kebolehpercayaan Azizan. Sabitan seorang saksi untuk satu kesalahan bukanlah satu alasan untuk tidak mempercayai saksi tersebut. Ini bermakna hakikat bahawa Azizan telah disabitkan di mahkamah syariah di bawah undang-undang syariah bukanlah alasan untuk tidak mempercayai keterangan yang diberikan olehnya dalam perbicaraan ini dan untuk tidak mempercayainya (lihat ms 258B). <br />
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(10) Adalah keputusan mahkamah bahawa berkenaan dengan tuduhan terhadap kedua-dua tertuduh, Azizan merupakan seorang saksi diharap, yang boleh dipercayai sepenuhnya dan bercakap benar dengan mengambil kira keseluruhan keterangannya tanpa mengira hujah yang tidak konsisten, perbezaan dan penyangkalan yang tidak mengurangkan darjah keberatan dan kebenaran keterangannya berkaitan dengan unsur-unsur tuduhan terhadap kedua-dua tertuduh. Gambaran dan pengalaman secara langsung Azizan bahawa beliau diliwat sesungguhnya menolak sebarang kemungkinan bahawa Azizan telah diajar atau diarah seperti yang dikatakan oleh peguam pembela. Tiada orang atau hakim yang munasabah mungkin mencapai keputusan selain daripada kesimpulan bahawa kedua-dua tertuduh telah meliwatnya. Hanya pihak yang telah dibabitkan secara terus dan aktif dalam perbuatan meliwat ini boleh menghuraikan butir-butir adegan ini (lihat ms 258C–F).<br />
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(11) Mahkamah mendapati bahawa berdasarkan keterangan Azizan, apa yang dinyatakan oleh Sukma dalam pengakuan tersebut bahawa beliau dan Dato’ Seri Anwar telah meliwat Azizan seperti yang dinyatakan dalam tuduhan adalah benar. Andainya terdapat apa-apa percanggahan di mana-mana bahagian pengakuan dengan keterangan lain yang dikemukakan, mahkamah berhak menerima sebahagian dan menolak bahagian lain keterangan tersebut (lihat ms 263E).<br />
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(12) Keterangan Azizan memanglah satu contoh keterangan bebas yang amat kukuh untuk membuktikan bahawa Dato’ Seri Anwar telah meliwat Azizan seperti yang dinyatakan dalam tuduhan terhadapnya. Mahkamah sedia untuk bertindak atas keterangan ini secara bebas, tanpa mengambil kira dan mengabaikan pengakuan Sukma. Maka ianya tidak perlu untuk mahkamah untuk memanggil pengakuan sebagai sokongan. Walau apa pun juga, seorang tertuduh boleh disabitkan semata-mata atas pengakuan oleh tertuduh bersama, dengan syarat keterangan yang berasal dari pengakuan tersebut memuaskan mahkamah melampaui keraguan munasabah tentang kesalahan tertuduh. Maka, pengakuan Sukma boleh digunakan secara sendiri terhadap Dato’ Seri Anwar (lihat ms 265B–C, 266G).<br />
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(13) Mahkamah telah mendapati Azizan sebagai seorang saksi yang boleh diharap dan boleh dipercayai. Ini bermakna keterangan sokongan diperlukan. Kelakuan Dato’ Seri Anwar dalam meminta Azizan menafikan pengakuan bersumpah yang dihantar kepada Perdana Menteri, dan dengan meminta <br />
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Page 206>>pegawai siasatan untuk menutup siasatan ke dalam tohmahan terhadapnya adalah relevan dan boleh diterima masuk dan setakat itu mengukuhkan kebolehpercayaan Azizan dan menyokong keterangannya ke atas dakwaan liwat yang dilakukan terhadap dirinya (lihat ms 268C, 271C–D, 273D).<br />
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(14) Mahkamah telah mendapati pengakuan Sukma telah dibuat secara sukarela dan dan dengan itu boleh diterima. Mahkamah juga mendapati bahawa bahagian pengakuan yang relevan berhubung dengan kegiatan meliwat oleh kedua-dua tertuduh ke atas Azizan adalah benar dan boleh dipercayai. Maka mahkamah boleh bertindak atas keterangan tersebut. Ianya satu contoh keterangan substantif. Bahagian pengakuan yang relevan jelas membabitkan bukan sahaja Sukma tetapi juga Dato’ Seri Anwar bahawa kedua-dua mereka meliwat Azizan di Tivoli Villa yang merupakan hal perkara tuduhan terhadap tertuduh. Dengan itu mahkamah mendapati bahawa pengakuan tersebut menyokong keterangan Azizan dengan secukupnya (lihat ms 274B–C).<br />
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(15) Dengan beranggapan bahawa mahkamah terkhilaf bahawa terdapatnya keterangan sokongan, mahkamah telah mengingati risiko mensabit seorang tertuduh atas keterangan yang tidak disokong. Mahkamah memberi peringatan kepada dirinya mengenai bahaya mensabit kedua-dua tertuduh atas tuduhan liwat berdasarkan keterangan Azizan yang tidak disokong tetapi walau bagaimanapun dalam kes ini mahkamah puas dan yakin bahawa tuduhan liwat terhadap kedua-dua tertuduh telah dibuktikan melampaui keraguan munasabah walaupun tiada keterangan sokongan (lihat ms 274D–E).<br />
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(16) Mahkamah mendapati bahawa pihak pendakwa telah membuktikan semua unsur pertuduhan di bawah s 377B Kanun Keseksaan, iaitu bahawa tertuduh telah melakukan hubungan syahwat dengan seorang individu; bahawa persetubuhan sedemikian adalah bertentangan dengan aturan tabii; bahawa tertuduh telah melakukan perbuatan secara sukarela dan bahawa tembusan (penetration) telah berlaku. Tembusan tidak perlu dibuktikan melalui keterangan perubatan sahaja. Ia boleh dibuktikan melalui keterangan lain seperti dalam kes ini oleh keterangan langsung Azizan yang disokong oleh pengakuan Sukma (lihat ms 276F, 278C, 279A, C).<br />
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(17) Kegagalan pihak pendakwa untuk mengemukakan keterangan bagi menunjukkan keupayaan kedua-dua tertuduh untuk bersetubuh tidak padah kepada kes pihak pendakwa. Sekiranya pembelaan tertuduh adalah bahawa beliau mati pucuk, ia terletak padanya untuk membuktikan hakikat itu. Dengan itu mahkamah memutuskan bahawa ia bukanlah kewajipan pihak pendakwa untuk membuktikan keupayaan kedua-dua tertuduh untuk bersetubuh untuk membuktikan kesnya melampaui keraguan munasabah di penutup kes pihak pendakwa (lihat ms 280A, C–D).<br />
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(18) Keterangan menunjukkan bahawa Sukma telah menjemput Azizan ke pangsapurinya dan mengaturkan supaya Dato’ Seri Anwar hadir pada masa yang sama untuk tujuan meliwat Azizan. Ini merupakan tindakan yang mengaitkan Sukma dengan langkah transaksi yang bersifat jenayah dan juga merupakan perbuatan yang menunjukkan bahawa Sukma menggalak atau menolong kegiatan kesalahan dengan sengaja seperti yang dibayangkan di bawah anggota ketiga s 107 Kanun Keseksaan dan juga merupakan perbuatan yang dilakukan oleh Sukma untuk memudahkan kegiatan kesalahan di bawah penjelasan 2 s 107 (lihat ms 282H–283A).<br />
<br />
(19) Adalah juga dibuktikan oleh keterangan bahawa Sukma hadir secara sukarela dan dengan sengaja untuk menyaksikan perbuatan kesalahan oleh Dato’ Seri Anwar dan tidak melawan atau sekurang-kurangnya menyatakan bantahan. Justeru itu kehadiran Sukma tidak boleh dianggap sebagai bermakna kehadiran semata-mata tetapi lebih dari itu, di bawah keadaan ini ia akan menyediakan keterangan yang meyakinkan yang akan menjustifikasikan keputusan mahkamah dalam mendapati bahawa Sukma menggalakkan kegiatan kesalahan tersebut secara sengaja dan telah membantu dan mendorong kegiatan sedemikian. Selanjutnya, juga terdapat bukti dalam pengakuan bahawa Sukma membawa Dato’ Seri Anwar ke pangsapurinya untuk tujuan membenarkan Dato’ Seri Anwar meliwat Azizan dan perbuatan Sukma yang demikian adalah keterangan atas subahat yang aktif pada pihak Sukma dan dirangkumi oleh s 109 Kanun Keseksaan. Keputusannya mahkamah mendapati sebagai hakikat bahawa pihak pendakwa telah membuktikan melampaui keraguan munasabah bahawa dari segi fakta dan undang-undang Sukma telah menggalakkan Dato’ Seri Anwar dalam kegiatan meliwat Azizan (lihat ms 283A–C).<br />
<br />
(20) Alibi kedua-dua tertuduh tidak meliputi keseluruhan tempoh di antara bulan Januari dan Mac 1993 seprti yang dinyatakan dalam tuduhan. Alibi hanya merangkumi tempoh dari 4 Februari hingga Mac 1993 dan dengan itu ia tidak lengkap. Maka mahkamah memutuskan bahawa pembelaan alibi gagal. Pembelaan bahawa kedua-dua tertuduh tidak pernah pergi ke Tivoli Villa pada pukul 7.45 petang di antara bulan Januari dan Mac 1993 juga gagal berdasarkan keterangan Azizan yang diterima oleh mahkamah sebagai benar dan boleh dipercayai (lihat ms 316F–G).<br />
<br />
(21) Berhubung dengan keterangan yang dikemukakan melalui saksi-saksi yang dipanggil bagi pihak Dato’ Seri Anwar, mahkamah puas hati dan mendapati bahawa pembelaan persubahatan untuk memalsukan keterangan terhadap Dato’ Seri Anwar tidak <br />
<br />
<br />
<br />
Page 208>>dikukuhkan oleh keterangan yang boleh diterima masuk dan meyakinkan. Saksi-saksi memberikan keterangan dengar cakap yang tidak boleh diterima masuk. Mahkamah juga mendapati bahawa keterangan telah disesuaikan bagi memberi pertimbangan kepada pembelaan (lihat ms 304D–E).<br />
<br />
(22) Laporan akhbar yang mengandungi pernyataan umum yang dibuat oleh Perdana Menteri dan Ketua Inspektor Polis bahawa tohmahan dan tuduhan terhadap Dato’ Seri Anwar bahawa beliau terbabit dalam skandal seks adalah fitnah dan tidak benar tidak berkaitan dengan tuduhan atas mana Dato’ Seri Anwar dibicarakan. Mereka adalah tidak relevan. Pertuduhan terhadap Dato’ Seri Anwar adalah disebabkan akibat siasatan kedua yang dijalankan oleh pihak polis. Mahkamah harus memutuskan tuduhan menurut keterangan yang dikemukakan di mahkamah dan tidak lain daripada itu. Pernyataan akhbar tidak boleh dianggap sebagai keterangan dalam perbicaraan ini kerana mereka adalah tidak relevan (lihat ms 309A–D).<br />
<br />
(23) Keterangan cuma menunjukkan bahawa Sukma tidak menduduki pangsapuri sebelum bulan April 1993. Hakikat masih kekal bahawa beliau mempunyai laluan kepada pangsapuri tersebut dari bulan Disember 1992. Tiada keterangan untuk menunjukkan bahawa kunci untuk pangsapuri tersebut tidak berada dalam miliknya pada masa kerja-kerja pengubahsuaian sedang dijalankan. Sukma mempunyai peluang untuk menggunakan pangsapuri tersebut secara bebas dan tanpa halangan. Dengan itu mahkamah menyimpulkan bahawa keterangan Azizan bahawa beliau telah diliwat di pangsapuri tersebut adalah kukuh dan boleh dipercayai (lihat ms 312B–C).<br />
<br />
(24) Mahkamah menolak permohonan untuk mengkaji semula keputusan atas kebolehterimaan pengakuan tersebut atas alasan bahawa tidak terdapat keterangan baru untuk menjustifikasikan pengkajian semula keputusan tersebut. Mahkamah mendapati bahawa keterangan tentang sepucuk surat yang ditulis oleh Sukma semasa beliau berada dalam kurungan di Bukit Aman dialamatkan kepada Dato’ Seri Anwar tidak menonjolkan apa-apa keterangan baru. Apa yang dinyatakan dalamnya telah diceritakan oleh Sukma dalam keterangannya di perbicaraan dalam perbicaraan. Mahkamah lebih cenderung terhadap hemat bahawa surat tersebut ditambahkan sebagai cadangan kemudian (lihat ms 314G–H, I–315A).<br />
<br />
(25) Setelah menimbang semua faktor peringanan yang ada, mahkamah berpandangan bahawa hukuman yang wajar dijatuhkan ke atas Dato’ Seri Anwar adalah hukuman penjara sembilan tahun yang hendaklah dijalankan secara berturut-turut dari hukuman yang sedang dijalankannya. Berkenaan dengan Sukma, mahkamah mengambil kira beliau boleh disebat dan ini <br />
<br />
<br />
<br />
Page 209>>merupakan satu faktor yang mewajarkan hukuman yang lebih ringan. Selepas mengambil kira faktor peringanan, mahkamah menjatuhkan hukuman penjara enam tahun ke atas Sukma berkuatkuasa dari tarikh sabitan dan dua sebatan atas tuduhan pertama dan enam tahun atas tuduhan kedua dan dua sebatan. Hukuman penjara hendaklah dijalankan secara serentak (lihat ms 319G–320A).]<br />
<br />
Notes<br />
<br />
For cases on confession to a magistrate, see 5 Mallal’s Digest (4th Ed, 1997 Reissue) paras 3329–3330.<br />
<br />
For cases on confession of co-accussed, see 7 Mallal’s Digest (4th Ed, 2001 Reissue) paras 617–631.For cases on alteration or amendment of charges, see 5 Mallal’s Digest (4th Ed, 2001 Reissue) paras 680–736.<br />
<br />
For cases on credibility of a witness, see 7 Mallal’s Digest (4th Ed, 2001 Reissue) paras 921–959.<br />
<br />
For cases on impeachment generally, see 7 Mallal’s Digest (4th Ed, 2001 Reissue) paras 1584–1603.<br />
<br />
For cases on recalling of witness, see 7 Mallal’s Digest (4th Ed, 2001 Reissue) paras 2504–2513.<br />
<br />
Cases referred to<br />
<br />
Abdullah Zawawi v PP [1985] 2 MLJ 16 (refd)<br />
<br />
Arulpragasan a/l Sandaraju v PP [1997] 1 MLJ 1 (refd)<br />
<br />
Aziz bin Muhamad Din [1996] 5 MLJ 473 (refd)<br />
<br />
Bal Mukundo Singh v Emperor (1937) 38 Cr LJ 70 (Cal) (refd)<br />
<br />
Bhuboni Sahu v The King AIR 1949 PC 257 (refd)<br />
<br />
Brabakaran v PP [1966] 1 MLJ 64 (refd)<br />
<br />
Chandrasekaran & Ors v PP [1971] 1 MLJ 153 (refd)<br />
<br />
Chean Siong Guat v PP [1969] 2 MLJ 63 (refd)<br />
<br />
Chin Seow Noi & Ors v PP [1994] 1 SLR 135 (refd)<br />
<br />
Chiu Nang Hong v PP [1965] MLJ 40 (refd)<br />
<br />
Coward v Stapleton (1953) 90 CLR 573 (refd)<br />
<br />
Dalip Bhagwan Singh v PP [1998] 1 MLJ 1 (refd)<br />
<br />
Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 232 (refd)<br />
<br />
Director of Public Prosecutions v Kilbourne [1973] 1 All ER 440 (refd)<br />
<br />
Emperor v Sari Das AIR 1926 Lah 375 (refd)<br />
<br />
Ferguson v Weaving [1951] 1 KB 814 (refd)<br />
<br />
Ganpart v Emperor AIR 1918 Lah 322 (refd)<br />
<br />
Gipp v R (1998) 155 ALR 15 (refd)<br />
<br />
Goh Ah Yew v PP [1949] MLJ 150 (refd)<br />
<br />
Gopala bin Rama (1896) Unrep Cr C 865 (Bombay High Court) (refd)<br />
<br />
Hasibullah bin Mohd Ghazali v PP [1993] 3 MLJ 321 (refd)<br />
<br />
Herchun Singh & Ors v PP [1969] 2 MLJ 209 (refd)<br />
<br />
Ho Ming Siang v PP [1966] 1 MLJ 252 (refd)<br />
<br />
Hussin bin Sillit v PP [1988] 2 MLJ 232 (refd)<br />
<br />
Ibrahim v King [1914] AC 599 (refd)<br />
<br />
Illian & Anor v PP [1988] 1 MLJ 421 (refd)<br />
<br />
Jacob v PP [1949] MLJ 70 (refd)<br />
<br />
Jaginder Singh & Ors v Attorney General [1983] 1 MLJ 71 (refd)<br />
<br />
Juraimi bin Husin v PP [1998] 1 MLJ 537 (refd)<br />
<br />
Karpal Singh v PP [1991] 2 MLJ 544 (refd)<br />
<br />
Kesavan Senderan v PP [1999] 1 CLJ 343 (refd)<br />
<br />
Khilumal v Arjundas AIR 1959 Raj 280 (refd)<br />
<br />
Koh Eng Soo v Rex [1950] MLJ 52 (refd)<br />
<br />
Ku Lip See v PP [1982] 1 MLJ 194 (refd)<br />
<br />
Laxmi Raj Shetty v State of Tamil Nadu AIR 1988 SC 1274 (refd)<br />
<br />
Law Kiat Lang v PP [1966] 1 MLJ 215 (refd)<br />
<br />
Liew Kaling & Ors v PP [1960] MLJ 306 (refd)<br />
<br />
Lim Guan Eng v Pendakwa Raya [1998] 3 MLJ 14 (refd)<br />
<br />
Lim Kah Wan v PP [1985] 2 CLJ 473 (refd)<br />
<br />
Lim Yow Choon v PP [1972] 1 MLJ 205 (refd)<br />
<br />
Makin v The Attorney General for New South Wales [1894] AC 57 (refd)<br />
<br />
Manipur State v Naosekpam Nimai Singh & Anor AR 1953 Manipur 7 (Vol 40 CN 6) (refd)<br />
<br />
Mat v PP [1963] MLJ 263 (refd)<br />
<br />
Miller v Minister of Pensions [1947] 2 All ER 372 (refd)<br />
<br />
Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169 (refd)<br />
<br />
Muthusamy v PP [1948] MLJ 57 (refd)<br />
<br />
Ng Kok Lian Anor v PP [1983] 2 MLJ 379 (refd)<br />
<br />
Noliana bte Sulaiman v PP [2000] 4 MLJ 752 (refd)<br />
<br />
PP v Aidil bin Ma’arof [1992] 2 CLJ 1239 (refd)<br />
<br />
PP v Chan Choon Keong & Ors [1989] 2 MLJ 427 (refd)<br />
<br />
PP v Chong Boo See [1988] 3 MLJ 292<br />
<br />
PP v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1 (refd)<br />
<br />
PP v Datuk Haji Harun bin Haji Idris (No 2) [1977] 1 MLJ 15 (refd)<br />
<br />
PP v Datuk Haji Harun bin Haji Idris & Ors [1977] 1 MLJ 180 (refd)<br />
<br />
PP v Haji Kassim [1971] 2 MLJ 115 (refd)<br />
<br />
PP v Kamde bin Raspani [1988] 3 MLJ 289 (refd)<br />
<br />
PP v Law Say Seek & Ors [1971] 1 MLJ 199 (refd)<br />
<br />
PP v Lim Chen Len [1981] 2 MLJ 41 (refd)<br />
<br />
PP v Mardai [1950] MLJ 33 (refd)<br />
<br />
PP v Mustaffa bin Ahmad [1986] 1 MLJ 302 (refd)<br />
<br />
PP v Ooi Wang San [1998] 2 MLJ 765 (refd)<br />
<br />
PP v Phon Nam [1988] 3 MLJ 415 (refd)<br />
<br />
PP v Tee Tean Siong & Ors [1963] MLJ 201 (refd)<br />
<br />
PP v Veeran Kutty & Anor [1990] 3 MLJ 498 (refd)<br />
<br />
Queen v Coney & Ors (1882) 8 QBD 534 (refd)<br />
<br />
R v Baskerville [1916] 2 KB 658 (refd)<br />
<br />
R v Bow Street Metropolitan Stipendiary Majistrate & Ors; Ex p Pmochet Ugarte (No 2) [1999] 1 All ER 577 (refd)<br />
<br />
R v Brophy [1981] 2 All ER 705 (refd)<br />
<br />
R v Fulling [1987] 2 All ER 65 (refd)<br />
<br />
R v Priestly (1967) 51 Cr App R 1 (refd)<br />
<br />
R v Severo Dossi (1918) 13 Cr App R 158 (refd)<br />
<br />
R v Watson [1980] 2 All ER 293 (refd)<br />
<br />
Rajmal Marwadi v Emperor (1925) Nagpur 372 (refd)<br />
<br />
Ramli bin Kecik [1986] 2 MLJ 53 (refd)<br />
<br />
Regina v Mullins 3 Cox CC 526 (refd)<br />
<br />
Shankar v State of Rajasthan AIR 1978 SC 1248 (refd)<br />
<br />
Shanmugam v PP [1963] MLJ 125 (refd)<br />
<br />
Shri Ram v State of UP AIR 1975 SC 175 (refd)<br />
<br />
Sim Tiew Bee v PP [1973] 2 MLJ 200 (refd)<br />
<br />
Sjn Thomas a/l Manivello v Lt Kol Din Yati bin Dahlan & Ors [1998] 3 MLJ 329 (refd)<br />
<br />
Srinivas Mall Bairoliya v Emperor AIR 1947 PC 135 (refd)<br />
<br />
Subramaniam v PP [1956] MLJ 220 (refd)<br />
<br />
Tan Too Kia v PP [1980] 2 MLJ 187 (refd)<br />
<br />
Ti Chuee Hiang v PP [1995] 2 MLJ 433 (refd)<br />
<br />
TN Nathan v PP [1978] 1 MLJ 134 (refd)<br />
<br />
Transport Ministry v Garry [1973] 1 NZLR 120 (refd)<br />
<br />
Vasan Singh v PP [1988] 3 MLJ 412 (refd)<br />
<br />
W v Egdell & Ors [1989] 2 WLR 689 (refd)<br />
<br />
Wong Kam Ming v R [1979] 1 All ER 939 (refd)<br />
<br />
Wong Swee Chin v PP [1981] 1 MLJ 212 (refd)<br />
<br />
Yaacob v PP [1966] 1 MLJ 67 (refd)<br />
<br />
Yap Chai Chai & Anor v PP [1973] 1 MLJ 219 (refd)<br />
<br />
Yau Heng Fang v PP [1985] 2 MLJ 335 (refd)<br />
<br />
Legislation referred to<br />
<br />
Legislation referred to<br />
<br />
Criminal Procedure Code ss 2, 113, 115(1), (2), 117, 153(i), 282(d), 289(c), 290, 376(1), 402A(1), 418A, 425<br />
<br />
Customs Act 1952 s 52<br />
<br />
Emergency (Essential Powers) Ordinance (No 22) 1970 s 2(1)<br />
<br />
Enakmen Kesalahan Syariah Negeri Melaka 1991 ss 53(1), 52<br />
<br />
Enakmen Keterangan Mahkamah Syariah 1994 (Melaka Enakmen No 12 tahun 1994)<br />
<br />
Evidence Act [Sing] s 30<br />
<br />
Evidence Act 1872 [India] s 30<br />
<br />
Evidence Act 1950 ss 8(2), 14, 17, 24, 26, 30, 103 illustration (b), 136(1)<br />
<br />
Evidence Ordinance s 126<br />
<br />
Federal Constitution art 145(3)<br />
<br />
Internal Security Act 1960<br />
<br />
Lock Up Rules 1953 r 7<br />
<br />
Penal Code ss 107 explanation 2, 109, 292(a), 354, 377A, 377B<br />
<br />
Police and Criminal Evidence Act 1984 [Eng] s 76(2)(a)<br />
<br />
Statutory Declarations Act 1960 s 2<br />
<br />
Syariah Court Evidence (Federal Territories) Act 1997 s 83<br />
<br />
Appeal from<br />
<br />
Appeal from: Arrest Cases No 1–62–145 of 1998 and No 1–62–46 of 1999 (Sessions Court, Kuala Lumpur)<br />
<br />
Lawyers<br />
<br />
Mohtar Abdullah (Attorney General) (Abdul Gani Patail, Azhar Mohamad, Mohd Yusof Zainal Abidin, Majid bin Hamzah, Nordin bin Hassan and Shamsul bin Sulaiman with him) (Deputy Public Prosecutors) for the Attorney General.<br />
<br />
Raja Aziz Addruse (Karpal Singh, Sulaiman bin Abdullah, Christopher Fernando, Zainur Zakaria, Pawancheek Merican, Gurbachan Singh, Zulkifli Nordin, Robyn Choi and SN Nair with him) (Karpal Singh & Co) for the first accused.<br />
<br />
Gobind Singh Doe (Jagdeep Singh Deo and Eric Paul Sen with him) (Karpal Singh & Co) for the second accused.<br />
<br />
CV Prabahkaran watching brief for Azmin Ali.<br />
<br />
Ng Aik Guan watching brief for Daim Zainuddin and Abdul Aziz bin Shamsudin.<br />
<br />
Judgement - Arifin Jaka J:<br />
<br />
Arifin Jaka J: This is a joint trial of both the accused herein who are being charged separately for offences under the Penal Code. In Criminal Trial No 45–51–98 the accused Dato’ Seri Anwar bin Ibrahim (‘Dato’ Seri Anwar’) was first produced before the sessions court judge Kuala Lumpur on 29 September 1998 charged with an offence punishable under s 377B of the Penal Code (‘the Code’). The charge as originally framed reads as follows:<br />
<br />
<br />
<br />
Bahawa kamu pada satu malam dalam bulan Mei 1992, lebih kurang jam 7.45, di Unit No 10–7–2, Tivoli Villa, Jalan Medang Tanduk, Bangsar, dalam Wilayah Persekutuan Kuala Lumpur telah dengan sengaja melakukan persetubuhan yang bertentangan dengan aturan tabii dengan Azizan bin Abu Bakar dengan memasukkan zakar kamu ke dalam duburnya dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 377B Kanun Keseksaan.<br />
<br />
<br />
<br />
The case was transferred to the High Court in Kuala Lumpur pursuant to the certificate (P1) issued by the PP in the exercise of his powers under s 418A(1) of the Criminal Procedure Code (‘the CPC’) and was mentioned before the High Court judge on 10 October 1998. The case came up for mention again before the court on 14 April 1999, 27 April 1999 and 4 May 1999. On 27 April 1999 the prosecution amended the original charge in respect of the year 1994 stated therein to read 1992. The charge as amended reads as follows:<br />
<br />
<br />
<br />
Bahawa kamu, pada satu malam dalam bulan Mei 1992 lebih kurang jam 7.45, di Unit No 10–7–2, Tivoli Villa, Jalan Medang Tanduk, Bangsar, dalam Wilayah Persekutuan Kuala Lumpur telah dengan sengaja melakukan persetubuhan yang bertentangan dengan aturan tabii dengan Azizan bin Abu Bakar dengan memasukkan zakar kamu ke dalam duburnya dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah S 377B Kanur Keseksaan.<br />
<br />
<br />
<br />
In Criminal Trial No 45–26–99 Sukma Darmawan Sasmitaat Madja (‘Sukma’) was first produced before the sessions court judge on 23 April 1999 charged with two offences firstly for abetting Dato’ Seri Anwar in committing carnal intercourse against the order of nature in May 1992, an offence punishable under s 109 read with s 377B of the Code and secondly for committing an offence punishable under 377B of the Code. The charges as originally framed read as follows:<br />
<br />
<br />
<br />
Pertuduhan Pertama<br />
<br />
Bahawa, pada satu malam dalam bulan Mei 1992, lebih kurang jam 7.45, di Unit No 10–7–2, Tivoli Villa, Jalan Medang Tanduk, Bangsar, dalam Wilayah Persekutuan Kuala Lumpur, Dato’ Seri Anwar bin Ibrahim telah melakukan persetubuhan yang bertentangan dengan aturan tabii dengan Azizan bin Abu Bakar, di mana Dato’ Seri Anwar bin Ibrahim tersebut telah memasukkan zakarnya ke dalam dubur Azizan bin Abu Bakardan kamu padahari dan di tempat yang sama, telah bersubahat melakukan kesalahan tersebut di mana kesalahan tersebut telah dilakukan hasil daripada persubahatan kamu, dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 109 dibaca bersama s 377B Kanun Keseksaan (NMB Bab 45).<br />
<br />
Pertuduhan Kedua<br />
<br />
Bahawa kamu, pada satu malam dalam bulan Mei 1992 lebih kurang jam 7.45, di Unit No 10–7–2, Tivoli Villa, Jalan Medang Tanduk, dalam Wilayah Persekutuan Kuala Lumpur telah dengan sengaja melakukan persetubuhan yang bertentangan dengan aturan tabii dengan Azizan bin Abu Bakar dengan memasukkan zakar kamu ke dalam dubur Azizan bin Abu Bakar tersebut dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 377B Kanun Keseksaan (NMB Bab 45).<br />
<br />
<br />
<br />
The case was also transferred to the High Court on a certificate (P2) issued by the PP by virtue of his powers under s 418A(1) of the CPC.<br />
<br />
The joint trial commenced from 7 June 1999 and was concluded on 8 August 2000 which spread over a period of fourteen months. The trial took a long time to conclude due to intermittent postponements at the request of both parties and due to unavoidable circumstances. At the commencement of the trial on 7 June 1999 the amended charge against Dato’ Seri Anwar was amended again in respect of ‘dalam bulan Mei 1992’ to read ‘di antara bulan Januari hingga Mac 1993’ (the second amendment). The charges against Sukma was also amended in the same manner, ie in respect of the year 1992 to read ‘di antara bulan Januari hingga Mac 1993’.<br />
<br />
The charge against Dato’ Seri Anwar as finally amended reads as follows:<br />
<br />
<br />
<br />
Bahawa kamu, pada satu malam di antara bulan Januari hingga Mac 1993, lebih kurang jam 7.45 malam, di Unit No 10–7–2, Tivoli Villa, Jalan Medang Tanduk, Bangsar dalam Wilayah Persekutuan Kuala Lumpur telah dengan sengaja melakukan persetubuhan bertentangan dengan aturan tabii dengan Azizan bin Abu Bakar dengan memasukkan zakar kamu ke dalam duburnya dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 377B Kanun Keseksaan (NMB Bab 45).<br />
<br />
<br />
<br />
English Translation:<br />
<br />
<br />
<br />
That you, on one night between the months of January to March 1993, at or about 7.45 at Unit No 10–7–2, Tivoli Villa, Jalan Medang Tanduk, Bangsar, in the Federal Territory of Kuala Lumpur, did voluntarily commit carnal intercourse against the order of nature with Azizan bin Abu Bakar by introducing your penis into his anus, and you have thereby committed an offence punishable under s 377B of the Penal Code (FMS Cap 45).<br />
<br />
<br />
<br />
The charges against Sukma were amended and are as follows:<br />
<br />
Pertuduhan Pertama:<br />
<br />
<br />
<br />
Bahawa, pada satu malam di antara bulan Januari hingga Mac 1993, lebih kurang jam 7.45, di Unit No 10–7–2 Tivoli Villa, Jalan Medang Tanduk, Bangsar, dalam Wilayah Persekutuan Kuala Lumpur, Dato’ Seri Anwar bin Ibrahim telah melakukan persetubuhan yang bertentangan dengan aturan tabii dengan Azizan bin Abu Bakar, dimana Dato’ Seri Anwar bin Ibrahim tersebut telah memasukkan zakarnya di dalam dubur Azizan bin Abu Bakar dan kamu pada hari dan tempat yang sama, telah bersubahat melakukan kesalahan tersebut di mana kesalahan tersebut telah dilakukan hasil daripada persubahatan kamu, dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s l09 dibaca bersama s 377B Kanun Keseksaan (NMB Bab 45).<br />
<br />
<br />
<br />
English Translation:<br />
<br />
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<br />
That, on one night between the months of January to March 1993, at or about 7.45 at Unit No 10–7–2, Tivoli Villa, Jalan Medang Tanduk, Bangsar, in the Federal Territory of Kuala Lumpur Dato’ Seri Anwar bin Ibrahim did commit carnal intercourse against the order of nature with Azizan bin Abu Bakar to wit the said Dato’ Seri Anwar bin Ibrahim did introduce his penis into the anus of Azizan bin Abu Bakar and that you on the same day and at the same place did abet in the commission of the said offence where the said offence was committed in consequence of your abetment and you have thereby committed an offence punishable under s 109 read together with s 377B of the Penal Code (FMS Cap 45).<br />
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Pertuduhan Kedua:<br />
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Bahawa kamu pada satu malam di antara bulan Januari hingga Mac 1993 lebih kurang jam 7.45, di Unit No 10–7–2, Tivoli Villa, Jalan Medang Tanduk, Bangsar dalam Wilayah Persekutuan Kuala Lumpur, telah dengan sengaja melakukan persetubuhan bertentangan dengan aturan tabii dengan Azizan bin Abu Bakar dengan memasukkan zakar kamu ke dalam dubur Azizan bin Abu Bakar tersebut dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 377B Kanun Keseksaan (NMB Bab 45).<br />
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English Translation:<br />
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That you, on one night between the months of January to March 1993, at or about 7.45, at Unit No 10–7–2, Tivoli Villa, Jalan Medang Tanduk, Bangsar, in the Federal Territory of Kuala Lumpur, did voluntarily commit carnal intercourse against the order of nature with Azizan bin Abu Bakar by introducing your penis into the anus of the said Azizan bin Abu Bakar, and you have thereby committed an offence punishable under s 377B of the Penal Code (FMS Cap 45).<br />
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Both the accused claimed trial to the charges and with the consent of all parties a joint trial of both accused was proceeded with. At the commencement of the trial counsels for both accused raised objections orally to the amendment of the charges on the principal ground that the amendment was made in bad faith and is an abuse of the process of the court. Counsels urged the court to disallow the amendment and strike out the charges against both accused. The question that has to be decided in respect of this application is whether the court can entertain such an application made orally to strike out the case summarily before evidence is adduced.<br />
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In Karpal Singh v PP [1991] 2 MLJ 544 at p 548, Tun Abdul Hamid Omar LP, in delivering judgment of the Supreme Court then, suggests the procedure to be followed in such an application as follows:<br />
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Generally the procedure would appear to be that the accused should apply by motion to a High Court to quash the indictment and he then has to prove either on the face of the indictment or by an affidavit that the charge has been preferred without jurisdiction or has a substantial and apparent defect. We are not aware of any court acting merely on the oral statement of a counsel.<br />
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Guided by this pronouncement on the procedure I acceded to the request by the defence counsels for an adjournment to enable them to file a notice of motion to strike out the charges and the proceedings. Both accused filed separate applications by way of notice of motion in Criminal Application No 44–27–1999 by Dato’ Seri Anwar, and Criminal Application No 44–25–1999 by Sukma. I dismissed the applications after a hearing as I found that there were no merits in the applications. The reasons for the dismissal are stated in detail in my grounds of judgment in the notice of motion. An appeal against my judgment is pending in the Court of Appeal.<br />
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Another point raised by En Karpal Singh on behalf of Sukma arising out of the amendment of the charges is in relation to the notice of alibi which has been given to the PP before the commencement of this trial. Under s 402A(1) of the CPC it is provided that where an accused seeks to put forward a defence of alibi, evidence in support thereof shall not be admitted unless the accused shall have given notice in writing thereof to the PP at least ten days before the commencement of the trial. It was pointed out by En Karpal Singh that Sukma has given notice of alibi in writing to the PP ten days before the commencement of trial on the basis of the charges before the amendment in compliance with s 402A(1) of the CPC. The current trial which is about to commence is on the basis of the amended charges. It was submitted that the accused in the instant case has to give fresh notice in writing to the PP at least ten days before the commencement of this trial. A trial is said to commence when the prosecution calls its first witness.<br />
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In Sjn Thomas a/l Manivello v Lt Kol Din Yati bin Dahlan & Ors [1998] 3 MLJ 329 it was held, ‘A trial begins when the charge is read to the accused person and his plea taken but it only commences at the trial proper when the prosecution calls its first witness’.<br />
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It was submitted by En Karpal Singh that if the notice is given jus before the commencement of this trial then there is the risk that it is mistrial as no sufficient notice has been given under the law. Encik Karpal Singh requested for an adjournment to enable Sukma to give a fresh notice to the PP. It is trite law that the requirement of pre-trial notice of alibi be given under s 402A(1) of the CPC is mandatory and the court has no discretion to waive it (see PP v Lim Chen Len [1981] 2 MLJ 41 which is approved by the Federal Court in Ku Lip See v PP [1982] 1 MLJ 194 and Vasan Singh v PP [1988] 3 MLJ 412).<br />
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The issue to be decided is whether the accused is under a duty to give a fresh notice of alibi in view of the amendment to the charges. The prosecution conceded that the accused are at liberty to give notice if they want to do so. It was further submitted that the accused need not give s fresh notice of alibi as the notice that has been served earlier is valid.<br />
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In Hussin bin Sillit v PP [1988] 2 MLJ 232, the Supreme Court had the occasion to consider the question of giving a fresh notice of alibi as required under s 402A(1) of the CPC after the original charge had been amended. It says at p 237:<br />
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We would hasten to add that if alibi notice had been served in relation to the original charge, then the accused would be under no duty pursuant to the provisions of s 402A to serve a second notice merely because the prosecution had elected to amend the charge at the commencement or in the course of the trial.<br />
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I am of the view that the notice of alibi given earlier by the accused to the PP in the instant case in relation to the original charge is valid and remains effective despite the amendment of the charges at the commencement of this trial. On the authority of Hussin bin Sillit’s case, I rule that it is not necessary for the accused to give a fresh notice of alibi to the PP as in the circumstances the requirements under s 402A(1) of the CPC has been duly complied with. The accused is entitled to give evidence in support of the defence of alibi at the trial.<br />
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The prosecution case<br />
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The prosecution led evidence through nine witnesses to prove its case beyond reasonable doubt on the truth of the charges against both accused and the evidence are as follows.<br />
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The prosecution started to unfold its story through Azizan bin Abu Bakar (SP6) — (‘Azizan’). He served as a driver to Datin Seri Dr Wan Azizah from early 1989 to September 1992 and for a brief spell of two weeks in 1994 before the Hari Raya Puasa. Except for the period of two weeks in 1994 Azizan was employed as a driver by Sime Darby Sdn Bhd from early October 1992 to early 1996. From January 1996 to the middle of August 1997 he was employed as a driver to Shamsidar bte Taharin, the wife of Mohd Azmin bin Ali who was at that time the private secretary of Dato’ Seri Anwar. Azizan is currently the Marketing and Administrative Manager of Syarikat Destine Trading Sdn Bhd at Alor Gajah, Melaka but does not own any shares in the company. He spent eleven gruelling days in the witness box, three days in examination-in-chief, seven days in cross examination and one day in re-examination. Because his evidence was relied upon principally by the prosecution to prove its case a meticulous and careful scrutiny of his evidence is necessary.<br />
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Azizan came to know Sukma who was the adopted brother of Dato’ Seri Anwar when he (Azizan) was working as a driver to Datin Seri Dr Wan Azizah, Dato’ Seri Anwar’s wife. Sukma stayed at that time at Dato’ Seri Anwar’s house. He also knew that from early 1993 Sukma stayed in an apartment at Tivoli Villa, Jalan Medang Tanduk, Bangsar, Kuala Lumpur.<br />
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One afternoon between the months of January and March 1993 (he cannot remember the exact date) he met Sukma at Dato’ Seri Anwar’s house at No 8, Jalan Setia Murni Satu, Bukit Damansara, Kuala Lumpur. Azizan went to the house for the purpose of visiting Dato’ Seri Anwar’s children who were close to him. Sukma invited him to visit his apartment at Tivoli Villa. This was the first time he visited the apartment. Sukma did not tell him the purpose for inviting him to the apartment. On the same day in the evening Azizan went to the apartment. He drove his own car to the place and arrived there at about 7.15 pm. On arrival he was stopped by the security guard on duty at the entrance to the condominium as he had no car sticker. The guard checked with Sukma by phone. He was allowed in and with the help of the security guard he managed to locate the apartment which is known as No 10–7–2.<br />
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On arrival at the apartment, Sukma himself opened the door and invited him in. He was surprised and stunned when he saw Dato’ Seri Anwar was present in the sitting room. He was surprised as he did not expect Dato’ Seri Anwar to be there as well. Sukma did not tell him (Azizan) at the time when he invited Azizan to the apartment that some other people would also be in the apartment. Dato’ Seri Anwar signaled by using his hand to Azizan to go into a room which was in fact a bedroom. He was followed into the bedroom by both accused. Azizan continued giving evidence in camera and narrated in great detail what happened in the bedroom. He said that Dato’ Seri Anwar asked him to remove his shirt but he was reluctant to do so as he was sure he would be sodomized. This evidence was objected to by Mr Fernando on behalf of Dato’ Seri Anwar on the ground that it is inadmissible, irrelevant and highly prejudicial. I overruled the objection and admitted the evidence as relevant under s 14 of the Evidence Act 1950 (‘the Act’) being facts showing the existence of the state of mind of Azizan and the intention of Dato’ Seri Anwar which is relevant to the issue before this court.<br />
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Azizan further said that Dato’ Seri Anwar removed his clothings and he was completely naked. In such a situation which was forced on him, Azizan removed his shirt and trousers except his underwear. He said he was shy to remove his underwear. At that time Sukma who was fully dressed was also in the bedroom. Dato’ Seri Anwar who was by then lying on the bed pulled Azizan to the bed and removed Azizan’s underwear who was by then lying on the bed. What transpired thereafter was clearly narrated by Azizan. He started by unfolding the preliminary acts performed by Dato’ Seri Anwar before the actual act of sodomy was committed. At the request of Dato’ Seri Anwar, Azizan sucked his penis. Dato’ Seri Anwar kissed him ‘dan memperlakukan saya sebagai seorang perempuan dengan mencium saya di bahagian leher, telinga dan kedua-dua puting dada saya’.<br />
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Azizan proceeded to describe how this act of sodomy was committed on him. Dato’ Seri Anwar inserted his penis into Azizan’s anus when he was lying on his back on bed. While in that position Azizan said, ‘pada mulanya dia mengangkat kedua-dua belah kaki saya dengan tangannya dan memasukkan zakarnya ke dalam dubur saya’. Dato’ Seri Anwar’s penis remained in his anus for about two minutes and Azizan complained of pain. Dato’ Seri Anwar then pulled out his penis and applied some cream to it and also around Azizan’s anus. He then sodomized Azizan who was then in the ‘menonggeng’ position from behind for quite sometime until he reached orgasm.<br />
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Dato’ Seri Anwar then went to the bathroom. At that time Azizan was still in the ‘menonggeng’ position. He saw Sukma was already naked. Sukma was in standing position and he pulled Azizan towards him and sodomized Azizan from behind while in the ‘menonggeng’ position.<br />
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Azizan said he was annoyed with both the accused because they had sodomized him. He said he allowed Dato’ Seri Anwar to sodomize him because he was scared of him as he was the Minister of Finance at that time and he feared that Dato’ Seri Anwar would take action against him. As for Sukma, Azizan said he allowed him to sodomize him (Azizan) because he was scared Dato’ Seri Anwar was present in the room and Azizan was under the impression that both the accused had conspired (berpakat) to sodomize him.<br />
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Azizan also testified that he would not have gone to Sukma’s apartment if he knew that he would be sodomized. He said that before the incident at the apartment as referred to in the charges in this instant case he had been sodomized without his consent more than once by the same person in early 1992. He was further asked: ‘Orang yang awak katakan meliwat awak lebih dari satu kali pada awal tahun 1992, siapakah orang itu?’ <br />
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This question was objected to strenuously by the defence counsel for both accused. It was contended by Mr Fernando that by asking this question, the prosecution is to adduce bad character evidence which is irrelevant and highly prejudicial to Dato’ Seri Anwar. The prosecution contended that the question is permissible to show the state of Azizan’s mind at that stage which is relevant under s 14 of the Act, which is knowledge of Azizan that Dato’ Seri Anwar would sodomize him. The question was asked to find out from Azizan and to confirm the fact that he would not have gone to Sukma’s apartment if he was told by Sukma that Dato’ Seri Anwar would also be at the apartment at the same time when he <br />
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Page 219>>was there. After hearing arguments I made a ruling allowing the question to be asked as I am of the view that the answer to the question would be relevant as evidence to show the state of mind of Azizan at that time which is relevant under s 14 of the Act and not for the purpose of showing that Dato’ Seri Anwar had committed other offences.<br />
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Azizan proceeded with his testimony and said that he made a sworn declaration (akuan bersumpah) (exh P5) alleging that he has been sodomized by Dato’ Seri Anwar in and around 1992. He alleged in P5 that he was sodomized by Dato’ Seri Anwar without the public or his wife’s knowledge in luxurious hotels such as PJ Hilton, Hyatt Saujana and Holiday Villa. He said he made the declaration without any motive or intention to topple Dato’ Seri Anwar and it was made on his own free will.<br />
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Azizan said this declaration was drafted by Umi Hafilda on his instructions and he signed it. P5 was given to the Prime Minister and copies to lawyer En Karpal Singh and the police officers who recorded his statements.<br />
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After he left as a driver to Datin Seri Dr Wan Azizah he came back to work as her driver at her request for about two weeks before Hari Raya in 1994 and left again because he feared that the incident which happened to him earlier may probably happen again to him.<br />
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He further testified that sometime at the end of June 1998 ASP Zull Aznam who was then the ADC to Dato’ Seri Anwar contacted him by phone and requested him to go to the police quarters in the vicinity of the official residence of Dato’ Seri Anwar. On arrival there, Zull Aznam told him that Dato’ Seri Anwar wanted to meet him. Zull Aznam brought him to see Dato’ Seri Anwar. There was a discussion between Dato’ Seri Anwar and Azizan but not in the presence of ASP Zull Aznam. Dato’ Seri Anwar asked Azizan to deny what he had stated in his declaration (P5) if he was called by the police. Azizan said he did not respond to the request because what he had stated in P5 was the truth and Dato’ Seri Anwar had asked him to lie.<br />
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Azizan being the main and important witness was heavily, intensively and meticulously cross-examined by the defence counsels which at times amounted to harassment and lasting for seven days. His evidence in cross examination are as follows. He confirmed that all the facts that he had stated in P5 came from him although it was prepared by Umi Hafilda. He said it is not true that except for the venues where he alleged that he was sodomized by Dato’ Seri Anwar the rest of what were written in P5 came from Umi herself. He agreed that at the previous hearing of the case against Dato’ Seri Anwar he told the court that he only told Umi Hafilda of the places where he was alleged to have been sodomized. He did not tell Umi about Tivoli Villa and the bungalow in Port Dickson. He only told her some of the places where he was sodomized. He testified he was brought by Umi Hafilda to meet Tan Sri Rahim Thamby Chik after P5 was sent to the Prime Minister and Ziela Jalil went along. The first time he met Umi concerning P5 was in early July 1997. He disclosed that he spent two or three nights at Dr Ristina Majid’s house. He went there to seek shelter because he was <br />
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scared as he was being followed by unknown persons whom he suspected to be police personnel. He denied the suggestion by the defence counsel that he spent two or three nights at Dr Ristina’s house because she was one of the conspirators to topple Dato’ Seri Anwar and that she assured Azizan that he would be protected. He also denied this was the reason why he did not report to the police. Azizan also admitted Dr Ristina introduced him to a person by the name of Taib Salamon and BK Tan at Bangsar Shopping Complex in August 1997 in the presence of Umi Hafilda. He did not know who made the appointment for him to be introduced to Taib Salamon and BK Tan but he was under the impression that it was made by Dr Ristina. At that time Azizan did not know that Taib Salamon was expelled as an officer from the police force. Nobody told him about this. He came to know only after he was arrested. Azizan further said that he did not tell the Special Branch that he was influenced by Taib Salamon to make the statutory declaration (P5). Azizan denied that Taib Salamon and BK Tan were sent by Dato’ Aziz Shamsudin to meet him under the disguise that they were from the Special Branch and that they told Azizan not to be scared and asked Azizan to write P5. He was arrested and was interrogated by the Special Branch before he was handed over to the Criminal Investigation Department (CID).<br />
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Azizan further testified the first statement he gave to the police was recorder by ASP Mazlan on 18 August 1997. He gave a number of statements after that but he cannot remember how many. The statements were recorded not by the same officer and amongst the officers who recorded his statements were ASP Rodwan and SAC-1 Musa. He cannot remember for sure how many statements were taken from him but he was definite that in September 1998 one statement was taken and in 1999 one statement was taken on 1 June 1999 by SAC-1 Musa. He confirmed that in the various statements he gave he did mention ‘liwat’. He denied that his story that he was sodomized by Dato’ Seri Anwar is fabricated. He also denied that he told Zull Aznam that he fabricated evidence that he was sodomized by Dato’Seri Anwar because of money or because he was asked by Umi Hafilda so that Dato’ Seri Anwar would be removed as Deputy Prime Minister.<br />
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He admitted that in June 1998 he went to the Ministry of Finance to meet En Mohamad bin Ahmad who was the Secretary of Dato’ Seri Anwar. He went there to enquire about an application for a contract made by Dato’ Taufik Yap Abdullah who was one of the directors of Syarikat Destine Trading. He went there at the request of Lau Fong Wah, another director of the company. It was put to Azizan that he gave evidence in the previous trial of Dato’ Seri Anwar that Dato’ Seri Anwar was reluctant to meet him. The prosecution objected to this question on the ground that they were unsure whether this is part of the evidence that was expunged by the learned judge from the record of that trial. Arguments were advanced by both parties on the issue whether this part of evidence was expunged but at the end of the day the prosecution withdrew the objection for the moment indicating they may raise the objection again if the defence challenge the credibility of Azizan based on the record in the previous proceedings. In answer to the suggestion by the defence Azizan denied that he said at the earlier trial Dato’ Seri Anwar was reluctant to see him.<br />
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On being asked by Mr Fernando, the defence counsel for Dato’ Seri Anwar, Azizan said he told the police he was sodomized by Dato’ Seri Anwar but not in 1994. He did not know who told the police Dato’ Seri Anwar sodomized him in 1992. He did not know who told the police Dato’ Seri Anwar and Sukma sodomized him in May 1992 at Tivoli Villa. He agreed that he was not sodomized by Dato’ Seri Anwar and Sukma in May 1992 at Tivoli Villa. He said SAC-1 Musa did not ask him to amend the date but he (SAC-1 Musa) only asked him to remember the date clearly in connection with the incident he was sodomized by Dato’ Seri Anwar and Sukma. He did not agree to the suggestion by the defence counsel that SAC-1 Musa forced him to amend the date from May 1992 to between January and March 1993 because Tivoli Villa did not exist in May 1992. He testified Sukma sodomized him for about five minutes. The bed on which he was sodomized was a queen size bed.<br />
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He further said he was working with Sime Darby as a driver at the time when he alleged he was sodomized by both the accused. He worked for six days in a week except on Sunday. He worked from 7.30 to 5.30 pm. On the day when the alleged sodomy took place he went to Dato’ Seri Anwar’s house at about 3.00pm. He met Dato’ Seri Anwar’s three children. Before he went to the house he fetched his employer’s children from Sekolah Kebangsaan Bukit Damansara and Sekolah Menengah Sri Hartamas. Before that he was at his office. The incident did not happen in the month of Ramadan. He cannot remember whether the incident took place on a Friday. He did not agree he could have been mistaken about the time when the sodomy took place because the incident happened four or five months after he left as a driver to Dato’ Seri Wan Azizah in September 1992 and at a time when Sukma has just moved into occupation of Tivoli Villa. SAC-1 Musa did not suggest the date between January to March 1993 but it was he who gave the date to SAC-1 Musa.<br />
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The first time he went to Sukma’s apartment was on the day the incident took place. He denied the suggestions by defence counsel that he helped Sukma to move his belongings to Tivoli Villa before January 1993.<br />
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The next witness for the prosecution was Senior Assistant Commissioner of Police SAC-1 Musa bin Haji Hassan (‘SAC-1 Musa’). At that material time he was the Assistant Director of Prosecution and Legal Division of the Criminal Investigation Department (‘CID’). His testimony may briefly be summarized as follows.<br />
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On 6 September 1998 at about 1.00pm he instructed ASP Rodwan to arrest Sukma and searched his house. He told ASP Rodwan that there was evidence Sukma was involved in homosexual activities. En Karpal Singh objected to the evidence on the ground it is hearsay. I overruled the objection. In my view it is not hearsay as the witness was actively involved in the investigation and therefore he has personal knowledge of the evidence. The witness was allowed to continue with his evidence. He said the arrest was in connection with Dang Wangi Police Report No 144140/98. The report is about the book entitled ‘50 Dalil, Kenapa Anwar Tidak Boleh Jadi Perdana Menteri’. On 1 June 1999, he met Azizan at 1.30 pm at his office at his (SAC-1 Musa’s) request. He recorded a statement from Azizan. Before recording the statement he asked Azizan to recollect the date when he was sodomized for the first time by both the accused at Tivoli Villa. He asked Azizan to recollect the date because the date mentioned in the charge may not be accurate. He realized this after carrying on an investigation as a result of a notice of alibi given by the defence. Azizan told him that the first time he was sodomized by both the accused at Tivoli Villa was between January to March 1993. Azizan said he remembered the date as it was just after four or five months after his resignation as a driver to Datin Seri Wan Azizah and at that time Sukma has just moved into the apartment which he had bought. He said he did not send Azizan for a medical examination because the incident of sodomy took place about five years before and from his experience in investigating rape cases an incident that happened a long time before may not leave any traces.He testified that in his investigation he did not find any conspiracy by anybody to use Azizan to topple Dato’ Seri Anwar. He was cross-examined at length by the counsel for Dato’ Seri Anwar. He did not record the statement from Azizan on 18 August 1997. It was recorded by ASP Mazlan on his instruction. The date May 1992 which was not based on that statement but on a statement by Azizan recorded in 1998 by ASP Rodwan in connection with the investigation on ‘Buku 50 Dalil’. He did not agree that from the 1997 statement there was no basis for any charge against both the accused. SAC-1 Musa further testified he received the notice of alibi on 27 May 1999 and carried out a thorough investigation into the alibi as stated in the notice.<br />
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As a result of the investigation he found that the apartment referred to in the charges against both the accused has not been completed. He agreed that as the investigation officer he made a recommendation to the director of CID to refer the matter to the Attorney General’s Chambers. He also agreed that the statement recorded in 1998 by ASP Rodwan upon which the first amendment of the charge which stated the date is May 1992 was based had been blown wide open by the alibi. He did not recommend Azizan to be charged as Azizan had not made a false statement. The date May 1992 which was stated in the amended charge was not based on the statement dated 18 August 1997 but on a statement by Azizan recorded in 1998 by ASP Rodwan in connection with the investigation on the ‘Buku 50 Dalil’.<br />
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He did not agree that from the 1997 statement there was no basis for any charge against both the accused. He did not recommend Azizan to be charged for perjury as he had not made a false statement.<br />
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He agreed with the suggestion of the defence counsel that if the sodomy was committed for a period of less than five years at the time of the alleged commission, he would have sent the victim for medical examination. In 1997, he was the investigation officer. He agreed that at one stage that the original charge mentioned the year 1994 and that it was within time for him to send Azizan for medical examination. He did not send Azizan for medical examination because apart from his experience he also referred to medical books from which he formed the opinion that there would be no trace that a person has been raped or sodomized if the offence has been committed a long time ago. Based on the evidence pertaining to the issue of the medical examination on Azizan, En Karpal Singh applied for this witness to be charged for contempt of court on the ground that he has lied in court when he testified on oath. He submitted that in one breath this witness said the cut off period for sending the victim of rape for medical examination is five years and in the other breath shortly or immediately after he said not five years. This is a serious contradiction which amount to lying in court.<br />
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A contempt of court is a serious offence; it is an act committed with the intention to interfere with the due administration of justice. In general a witness who gives false testimony in court on oath will be liable to prosecution for perjury. He would also expose himself to contempt of court only if the false testimony amounts to interference obstruction or frustration of the administration of justice (see Jaginder Singh & Ors v Attorney General [1983] 1 MLJ 71). The Australian case of Coward v Stapleton (1953) 90 CLR 573 was referred to in Jaginder Singh’s case where at p 73 the facts of that case as stated briefly are that ‘the appellant was a bankrupt who in his public examination gave answers of which a substantial number represented, in the opinion of the Federal Court of Bankruptcy, ‘a shuffling and a fantastic attempt to conceal the truth’ about his financial dealings. The court thereupon ordered that the bankrupt be committed for contempt of court upon the basis that he had refused to answer questions. On appeal the High Court held that the order must mean that the learned Judge considered that some of the purported answers not only were untrue but were so plainly absurd as to convey an intention not to give any real answers to the questions to which they relate’. Further his Lordship Raja Azlan Shah Ag LP (as his Majesty then was) succinctly summarized at p 73 the general proposition that emerged from the case as follows:<br />
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What does emerge as a general proposition from Coward v Stapleton is that ‘there must be a manifestation in some form of an intention on the part of the witness not to give a real answer’, a finding that takes the case across the borderline that separates perjury from contempt. False testimony, together with a refusal to answer questions amounts to an obstruction of the administration of justice which is punishable as a contempt; false testimony, without more, does not’.<br />
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It is clearly established from the principles enunciated above that a witness commits contempt of court only if he has lied with the evinced intention to interfere with the administration of justice. Additionally, it must be recognized that the summary jurisdiction of the court to punish for contempt is to be exercised with caution, and only when it is urgent and imperative to act immediately, but it should not shrink from exercising that jurisdiction where being satisfied beyond reasonable doubt of the contempt, it becomes in the particular circumstances its duty to do so (see Jaginder Singh’s case).<br />
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The issue at hand is whether in the instant case there is a basis for the application to charge SAC-1 Musa for contempt of court. I have carefully considered the evidence given by this witness and the submissions by both the prosecution and the defence counsels. On the evidence, I find that the witness was expressing his opinion based on his experience and from what he gathered from books he read in the subject and come to a conclusion. His opinion may or may not be right. He is entitled to express his views on the subject. In my view SAC-1 Musa was not lying. The answers he gave must be read in the context of the questions asked. He has not finished his evidence and if there are any contractions in his evidence he may be able to explain and clarify during re-examination. There is no evidence to show that the witness had refused to answer any questions that were put to him and that the refusal to answer could be clothed with the evinced intention to interfere with the administration of justice. His opinion may or may not be right but that does not mean he was lying. For the above reasons, I found without any hesitation that the application to impeach SAC-1 Musa was without merit and was therefore dismissed.<br />
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After the ruling SAC-1 Musa was further cross-examined. He testified that Azizan made five statements in the course of the investigation. The first statement was recorded on 18 August 1997, the second statement on 3 September 1997, the third statement on 7 July 1998, the fourth statement on 3 October 1998 and the fifth statement on 1 June 1999. He recorded the fourth and fifth statements whilst the first and second statements were recorded by ASP Mazlan. He disagreed with the defence counsel’s suggestion that all the statements are not consistent on the allegations of sodomy against both the accused. He explained the first and second statements were recorded pursuant to a report Travers Report No 2706/96 lodged by ASP Zull Aznam in relation to an anonymous letter entitled ‘Talking untuk Anwar Ibrahim’. He said that there was a basis for the investigation based on the letter.<br />
<br />
No further action was taken as a result of the investigation because Dato’ Seri Anwar directed the investigation to be closed. The matter was not taken up with the Prime Minister.<br />
<br />
He said he did not know that on 24 August 1997 the Prime Minister came out with a public statement. He thought the statement was based on the report of the Special Branch investigation into the declaration by Azizan (P5) and Umi Hafilda’s letter. The other three statements were recorded based on Dang Wangi Report No 14140/98 (P8). He testified that there were no contradictions in the statements. When cross-examined further SAC-1 Musa agreed that investigation could still be conducted into the alibi even when the trial is going on. He said he was prepared to investigate now into the alibi. En Karpal Singh picked this up as an issue and contended that in the interest of justice this witness should be allowed to carry out this investigation. When the trial resumed after a short recess the Attorney General informed the court that he has advised SAC-1 Musa that there was no need to investigate further into the alibi as the prosecution has the record and evidence with regard to the movement of Dato’ Seri Anwar both in and outside this country from 1992 to date of his dismissal from the cabinet. Despite this information given by the Attorney General as the PP En Karpal Singh still insisted that SAC-1 Musa be allowed to investigate further into the alibi notice as it is part and parcel of his duty. He submitted that SAC-1 Musa who was the investigation officer had under oath agreed to carry out the investigation to verify the truth or otherwise of the alibi. This amounts to an undertaking by SAC-1 Musa on oath which if not proceeded with would amount to a breach of the undertaking and any one who induces the witness to breach the undertaking would be a party to obstruction and frustration of the administration of justice.<br />
<br />
In saying this the learned counsel was obviously referring to the PP when he gave the advice to SAC-1 Musa not to carry further investigation into the alibi on the grounds which had been stated earlier in this judgment. It was further submitted that the failure to carry out investigation at this stage has placed the defence at a disadvantage as the date in the charge has been amended to between January and March 1993. With due respect I fail to see how the defence was placed to a disadvantage as a result of the amendment of the dates in the charges under the circumstances. After all the accused is not prevented from adducing evidence of alibi in the event if his defence is called in view of my ruling earlier in this judgment that the notice of alibi given by the defence before the amendment of the charges is still valid. The question whether further investigation into the alibi ought to be carried out by the police is entirely their choice. The police while carrying out the investigation is subject to the direction of the Attorney General in his capacity as the PP who has the power and the discretion under art 145(3) of the Federal Constitution (‘the Constitution’) to, inter alia, to conduct proceedings for an offence other than proceedings before a Syariah Court or a court-marshall. In addition under s 376(1) of the CPC, the Public Prosecutor has the control and direction of criminal proceedings under the Code. It is to be recognized that the purpose of giving notice of the alibi by the defence under the CPC is to divert the mischief of the defence disclosing his defence of alibi at a late stage of the trial.<br />
<br />
It is settled that once the defence of alibi is properly raised by the defence the prosecution has the discretion to investigate into the alibi if they feel like doing so. I made an observation and expressed my view that it is entirely the prosecution’s choice whether to carry out any investigation on receipt of the notice. If they choose not to investigate it is their prerogative. They cannot be forced to investigate. The prosecution knows best the evidence they have in their possession to challenge the defence of alibi. It is the prosecution’s own funeral if as a result of non investigation the evidence adduced by the defence in support of the alibi is not challenged. The court will decide whether the defence of alibi will succeed or not on the evidence available before the court. On that observation En Karpal Singh informed the court that he wished to proceed with the cross examination of SAC-1 Musa. Hence it was not necessary for me to make a ruling whether SAC-1 Musa should be ordered to investigate further into the alibi.<br />
<br />
In further cross examination SAC-1 Musa said that he did not record any statement from the Prime Minister and from Tan Sri Rahim Nor, the Inspector General of Police. He, however, recorded a statement from Ziela, Megat Junid’s wife.<br />
<br />
In re-examination he said he carried out an investigation on report of the notice of alibi on 27 May 1997. SAC-1 Musa was the last witness called by the prosecution. At the end of his evidence both the prosecution and the defence agreed to address the court on the issue of the impeachment of Azizan bin Abu Bakar. I would deal with this issue first before hearing submission by both the prosecution and the defence at the end of the case for the prosecution.<br />
<br />
Impeachment of Azizan bin Abu Bakar (SP6)<br />
<br />
The defence has embarked on the impeachment of Azizan bin Abu Bakar. An application to impeach the credit of Azizan was made by Mr Fernando, the leading counsel for Dato’ Seri Anwar on the basis that there is a contradiction between the statements he made when he gave evidence in the trial of Dato’ Seri Anwar on charges of corrupt practices under the Emergency (Essential Powers) Ordinance No 22 of 1970 vide High Court Criminal Trial No 45–48–98 and 45–49–98 (the earlier trial) and his testimony in the present trial. The defence alleged that there is a major contradiction between Azizan’s statement in the earlier trial of Dato’ Seri Anwar and his testimony in the present trial. The learned counsel produced the record of proceedings (D6) of the earlier trial. <br />
<br />
<br />
<br />
It can be seen that he made two statements in the earlier trial:<br />
<br />
(a) In examination in chief at p 242 of D6 he said:<br />
<br />
Saya setuju bahawa Dato’ Seri Anwar tidak meliwat saya sebab itulah saya masih pergi ke rumahnya antara tahun 1992 dan 1997. Jika tidak saya tentu menjauhkan diri dari rumahnya. (‘the first statement’) <br />
<br />
(b) In re-examination at p 273 of D6 he said:<br />
<br />
Selepas bulan sembilan 1992 sehingga sekarang tertuduh tidak meliwat saya. (‘the second statement’)<br />
<br />
<br />
<br />
In his testimony from the witness box in the present trial Azizan said he was sodomized between the months of January and March 1993. I asked Azizan to explain the contradictions. On examining D6 it appears to me there are material contradictions between the statements he made in the earlier trial and his evidence in the present trial.<br />
<br />
It is to be borne in mind that one of the principles involved in an impeachment proceeding is that where the witness does not admit making the previous statement then the previous statement must be proved (see Muthusamy v PP [1948] MLJ 57). In our present case Azizan admitted making the statement and the need for proving the statement does not arise. The prosecution did, however, raise the issue that the first and second statements as stated in the record of the earlier trial was expunged by the learned j udge from the record. This issue was not seriously pursued by the prosecution and the hearing continues whereby both the prosecution and the defence submitted on the impeachment of the witness.<br />
<br />
Another principle of importance to be noted in an impeachment proceeding is that when a witness shown to have made a previous statement inconsistent with the evidence by the witness at the trial, the evidence given at the trial shall be disregarded as unreliable (per Hashim Yeop A Sani J in Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 232). It follows, therefore, the question that has to be determined is whether what Azizan had said in the earlier trial firstly that he was not sodomized by Dato’ Seri Anwar and that was why he continued to go to Dato’ Seri Anwar’s house between 1992 and 1997 and secondly that he was not sodomized after September 1992 was inconsistent with his evidence in the present trial when he said he was sodomized between the months of January and March 1993. If there is inconsistency then the evidence in this instant trial would be disregarded as unreliable. To determine whether there is such an inconsistency, it is necessary to look at Azizan’s explanation. His explanation can be found in his testimony in his own words from the witness box which reads as follows:<br />
<br />
<br />
<br />
Apabila saya katakan saya tidak diliwat selepas Mei 1992, di dalam perbicaraan dahulu saya maksudkan kejadian diliwat tidak berlaku di rumahnya. Itu adalah bagi menjawab soalan peguambela mengapa saya masih berkunjung ke rumah Dato’ Seri Anwar. Kejadian liwat memang berlaku terhadap saya selepas Mei 1992 dan selepas saya berhenti kerja tetapi bukan berlaku di rumahnya. Saya juga ada memberitahu semasa perbicaraan dahulu kejadian tidak dapat saya lupakan berlaku di rumah Sukma di Tivoli Villa dan saya tidak ditanya tahun bila liwat itu berlaku. Apabila saya memberi keterangan di hadapan mahkamah ini itulah sebabnya saya beritahu liwat berlaku di dalam tahun 1993 di antara bulan Januari dan Mac 1993.<br />
<br />
<br />
<br />
Azizan was cross-examined by Mr Fernando and for the purpose of the impeachment proceeding it is necessary to refer only to his testimony in connection with the incident of sodomy which took place in Sukma’s apartment at Tivoli Villa as stated in his explanation. He agreed with the suggestion of the learned counsel that he was not sodomized by Dato’ Seri Anwar and Sukma in May 1992 at Tivoli Villa. As regards the incident which took place at Sukma’s apartment, Azizan was emphatic that he was sodomized at Tivoli Villa between the months of January and March 1993 as can be gathered from the following question and answer:<br />
<br />
<br />
<br />
Question: Adakah awak beritahu polis awak diliwat di antara Januari hingga Mac 1993 di Tivoli Villa? <br />
<br />
Answer: Ya, ada. <br />
<br />
<br />
<br />
It was contended by Mr Fernando that Azizan was not telling the truth, it was SAC-1 Musa, the investigation officer who forced Azizan to change the date from May 1992 to between January and March 1993. On this point Azizan was asked:<br />
<br />
<br />
<br />
Question: Jikalau awak cakap benar kenapa SAC-1 Musa suruh awak pinda tarikh itu dari Mei 1992 ke Januari hingga Mac 1993? <br />
<br />
Answer: SAC-1 Musa suruh saya mengingatkan dengan jelas tentang saya diliwat oleh Dato’ Seri Anwar dan Sukma di Tivoli Villa. <br />
<br />
Question: Ini bermakna jikalau SAC-1 Musa tidak suruh kamu pada 1 Jun 1999 pinda tarikh itu tentu kamu tidak akan buat apa-apa? <br />
<br />
Answer: Tidak setuju. <br />
<br />
Question: Kamu setuju atas tindakan SAC-1 Musa memaksa kamu meminda tarikh itu daripada Mei 1992 ke Januari hingga Mac 1993 kerana Tivoli Villa tidak wujud pada bulan Mei 1992? <br />
<br />
Answer: Tidak setuju. <br />
<br />
<br />
<br />
It is clear from the answers given by Azizan that he was not forced or asked by SAC-1 Musa to say that the incident took place between the months of January and March 1993. SAC-1 Musa only reminded Azizan to be sure of the incident of sodomy by both the accused at Tivoli Villa. In his evidence Azizan was emphatic that he was sodomized at Tivoli Villa between January and March 1993. I find that it was Azizan who told SAC-1 Musa about the incident at Tivoli Villa and not SAC-1 Musa who forced him to say that he was sodomized.<br />
<br />
At the outset it should be noted that both the statements he made in the earlier trial were in answer to questions which are inter-connected in the sense that they relate to Azizan’s visit to Dato’ Seri Anwar’s house between 1992 and 1997. The first statement was made in answer to the question put to the witness in cross examination namely ‘I put it to you, you were not sodomized by Dato’ Seri Anwar Ibrahim and that is why you continued to visit him in his house between 1992 and 1997 otherwise you would have kept far away’.<br />
<br />
The second statement was in answer to the question in re-examination:<br />
<br />
<br />
<br />
Adakah peristiwa liwat terhadap kamu oleh tertuduh masih berlaku selepas bulan sembilan 1992?<br />
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To my mind the two statements are the same in the sense that they are related to the same incident namely Azizan was sodomized after September 1992. Azizan in his explanation said what he meant when he said in the earlier trial that he was not sodomized after May 1992 was that he was not sodomized in Dato’ Seri Anwar’s house when he was asked ‘mengapa saya masih berkunjung ke rumah Dato’ Seri Anwar’. He further said without any reservation in his explanation that ‘kejadian liwat memang berlaku terhadap saya selepas Mei 1992 dan selepas saya berhenti kerja tetapi bukan di rumahnya’.<br />
<br />
It is to be noted that it is in evidence that Azizan stopped work as a driver to Datin Seri Dr Wan Azizah at the end of September 1992. It is therefore crystal clear that his explanation covers the second statement as well. Under these circumstances, it is futile for the defence counsel to maintain that Azizan has not explained the second statement he made in the earlier trial. It can be gathered clearly from his explanation he was sodomized after September 1992 but not in Dato’ Seri Anwar’s house but elsewhere. Azizan is very consistent with his story that he was not sodomized in the house but elsewhere after September 1992. He said this in the earlier trial where he said:<br />
<br />
<br />
<br />
Salah satu perbuatan yang tidak dapat saya lupakan ialah peristiwa di rumah Sukma di Tivoli Villa di mana tertuduh telah meliwat saya dahulu dan diikuti dengan adik angkatnya meliwat saya.<br />
<br />
<br />
<br />
He also gave similar evidence to this effect in his testimony before this court with the addition that he was sodomized at Tivoli Villa between the months of January and March 1993.<br />
<br />
On a close scrutiny of the explanation by Azizan, I find no difficulty in accepting it under the circumstances and on the evidence available. The explanation is logical and not inherently incredible bearing in mind the questions that were posed to him. The statements in question which form the basis of the impeachment of Azizan must be read in the context of the questions that were asked. I find that there is in fact no contradiction at all between what he had said in the previous trial and the evidence he gave in this instant proceedings in respect of the act of sodomy as stated in the charges against both accused. In any event, even assuming that there is a material contradiction I am more than satisfied that Azizan has successfully explained the contradiction for reasons stated above beyond any doubt. I, therefore, ruled that the impeachment proceeding failed and the credit of Azizan was saved and remained intact and further that in truth, in fact and in substance Azizan was a truthful witness.<br />
<br />
A trial within a trial to determine the voluntariness or otherwise of the confession of Sukma<br />
<br />
The next point in focus is the confession of Sukma. The prosecution seeks to admit the confession of Sukma through its witness En Abdul Karim bin Abdul Jalil, a sessions court judge (formerly known as President of Sessions Court) Kuala Lumpur who recorded it in his chambers on 17 September 1998. The defence is vigorously contesting the admission in evidence of the confession on the ground that it was not made voluntarily. A trial within a trial was held to ascertain whether or not there was any substance in the objection taken by the counsels for the defence and this, as to be expected, took up a great deal of time.<br />
<br />
At the commencement of the proceedings in the trial within a trial En Karpal Singh, counsel for Dato’ Seri Anwar raised a preliminary point as to whether the court has the jurisdiction to embark on the issue of admission of any statement or confession made by an accused person for purpose of use in this proceedings by holding a trial within a trial. The confession was recorded under s 115 of the CPC which gives the power to a magistrate to record a statement or a confession made to him at any time before the commencement of the inquiry or trial.<br />
<br />
The learned counsel submitted that s 115 of the CPC was enacted for the purpose of using the confession in the High Court after a preliminary enquiry in the magistrate’s court. As a preliminary enquiry has been abolished, the High Court has no jurisdiction to conduct a trial within a trial and this would mean the confession can be used only in a magistrate’s court. These cases against both accused were originally registered in the sessions court and it was contended that even the sessions court cannot use the confession and therefore has not have the jurisdiction to enquire into the admissibility of the confession.<br />
<br />
It cannot be denied that the charges against both accused were originally registered in the sessions court but they were transferred legally to the High Court pursuant to s 418A of the CPC which provides the Public Prosecutor ‘may in any particular case triable by a criminal court subordinate to the High Court issue a certificate specifying the High Court in which the proceedings are to be instituted or transferred’. The Public Prosecutor has acted under this provision and issued the said certificates (P1 and P2). Even though a preliminary enquiry has been abolished, these two cases are rightly brought for trial in the High Court under the said certificates issued pursuant to s 418A of the CPC.<br />
<br />
In my view the High Court has the jurisdiction to decide the question of admissibility of the confession made by Sukma to En Karim who acted in his capacity as a magistrate. This is clearly borne by the wordings of s 115(1) of the CPC which says that the statement or confession may be recorded by the magistrate at any time before the inquiry or trial. The words used are ‘inquiry or trial’. Section 115(1) of the CPC is only procedural in nature and imposes a duty on a magistrate to record a statement which could be used in any enquiry or trial. ‘Inquiry’ as defined under s 2 of the CPC includes every inquiry conducted under this code before a magistrate. It is not confined only to a preliminary enquiry. Once the statement or confession is recorded by the magistrate it can be used in any court if it is relevant and it becomes a duty of the trial court or the court which hears the inquiry to determine the admissibility of the statement or confession. For these reasons I am of the view that the preliminary point raised by the learned defence counsel is a non-issue and I therefore ruled that this court has the jurisdiction to hold a trial within a trial to determine the admissibility of the confession in this case.<br />
<br />
The prosecution started by calling four witnesses to prove the voluntariness of the confession namely Abdul Karim bin Abdul Jalil (TPW1), Kathir Velayudhan a/l Pallniappan (TPW2), ASP Mohd Rodwan bin Mohd Yusof (TPW3) and ASP Zulkifly bin Mohamad (TPW4). At the end of the evidence given by these four witnesses the prosecution closes its case in the trial within a trial. En Karpal Singh then sought to make a submission of no case to answer at that stage. The learned deputy PP objected saying that there is no such right open to the accused at the end of the prosecution case. He relied on the speech of Lord Fraser in the House of Lord in R v Brophy [1981] 2 All ER 705 at p 709 (which is quoted in Aziz bin Muhamad Din [1996] 5 MLJ 473 at p 502):<br />
<br />
<br />
<br />
It is of the first importance for the administration of justice that an accused person should feel completely free to give evidence at the voire dire of any improper methods by which a confession or admission has been extracted from him, for he can almost never make an effective challenge of its admissibility without giving evidence himself. He is thus virtually compelled to give evidence in the voire dire … .<br />
<br />
<br />
<br />
The learned deputy pointed out that it is essential that accused must make a specific allegations and identify the officer as the person who has threatened or abused him (see Tan Too Kia v PP [1980] 2 MLJ 187). It was further submitted that the court must be given an opportunity to hear all the evidence both by the prosecution and the defence in order to make a finding whether the confession is admissible or otherwise.<br />
<br />
The issue at hand is whether the defence can make a submission. In PP v Aidil bin Ma’arof [1992] 2 CLJ 1239, Chong Siew Fai J (as he then was) allowed the counsel for the defence to submit at the conclusion of the prosecution case although his Lordship overruled the defence counsel’s submission and on the facts and evidence adduced by the prosecution His Lordship ordered the trial within a trial to continue.<br />
<br />
With respect I agree with the procedure adopted by the learned judge in allowing the defence counsel to submit at the end of the prosecution case in a trial within a trial. I therefore allowed the defence counsel to make a submission of no case to answer at the end of the prosecution case. I venture to add that allowing the defence to make a submission of no case to answer at this stage, if allowed, would enable the court to make a ruling that the impugned confession or statement is inadmissible on the evidence adduced. The exercise would save time for the court as there is no need to proceed further with the trial within the trial. On the evidence led this far I take the view that the trial within the trial should continue.<br />
<br />
The relevant statutory provisions to be considered relating to admissibility of the confession in this case are ss 24 and 26 of the Act. Section 24 of the Act provides that a confession is irrelevant in a criminal proceeding if the making of it appears to the court to have been induced by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid an evil of a temporal nature in reference to the proceeding against him. Section 26 of the Act states that no confession made by any person whilst he is in the custody of the police officer, unless it is made in the immediate presence of a president of a sessions court or magistrate, shall be proved against that person.<br />
<br />
The central issue to be determined in the instant case is whether on the evidence adduced by the prosecution at the end of its case in the trial within the trial this court can and is justified to make a ruling that the confession made by Sukma is inadmissible and should therefore be excluded as evidence.<br />
<br />
In determining this issue it is incumbent upon me to consider the grounds advanced by the defence counsel in urging me to make a ruling to exclude the confession. The learned defence counsels raised a number of points in their submission to support their contention that the confession is inadmissible and should therefore be excluded at this stage as the prosecution has not proved beyond reasonable doubt that the confession was made voluntarily. I shall now deal with the points raised by the defence counsels that are relevant.<br />
<br />
Firstly, it was contended that there is no compliance of the provision of the law by the recording sessions court judge who acted as a magistrate. It is to be noted that there is no dispute as to the capacity of the recording officer. In respect of the non-compliance it was submitted that:<br />
<br />
<br />
<br />
(a) the magistrate did not record the confession in full as required. The recording of the confession made under s 115 of the CPC which lays down the procedure to be followed.<br />
<br />
(b) the magistrate fails to ascertain where Sukma was detained before the recording of the confession and where he would be taken after the recordings.<br />
<br />
(c) the magistrate did not take steps to ascertain the voluntariness of the confession.<br />
<br />
(d) the magistrate did not use the word ‘didorong’ in the confession.<br />
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(e) the magistrate has failed in his duty to inform Sukma that he can either make a statement or confession.<br />
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(f) there was no numbering of the pages and no signature on each page of the confession.<br />
<br />
(g) ommission by magistrate to ask for motive of Sukma in making the confession.<br />
<br />
<br />
<br />
As to point (a) above the defence counsels alleged non-compliance of s 115(2) of the CPC which provides that such statement or confession should be recorded in full in writing by the magistrate to whom it is made and shall then be forwarded to the magistrate if different before whom the case is to be enquired or tried. In this connection it was submitted that there is a direct infringement of this section by the magistrate by giving a copy of the confession to ASP Rodwan in an envelope who later gave it to SAC-1 Musa. It is in evidence that a copy was indeed handed over by the magistrate to ASP Rodwan and that the original copy was kept by him. The question is whether there is an infringement of this section under these circumstances. I am of the view that this is not an infringement as it is clear this is not prohibited by this section. What the section requires, inter alia, is that the confession shall be forwarded to the magistrate before whom the case is to be inquired or tried. It does not mean that he should not give it to the police. In any event the handing over of a copy of the confession does not prejudice Sukma at all. The section also requires that the confession should be recorded in full. The recording magistrate in his testimony said that the confession contains what Sukma told him when the confession was recorded. This implies he recorded the confession in full. On the above premise I hold that this ground fails. <br />
<br />
As regards (b) above I have no hesitation to hold that the submission is without merit. It is not a requirement under the law that the magistrate is obliged to ascertain where Sukma was detained, for how long he was being detained and where he (Sukma) would be taken after the recording. It is no doubt provident for the magistrate to make each enquiry to assist him to come to a conclusion on the issue of voluntariness of the confession. He did make some enquiries shown in his evidence when he asked Sukma this:<br />
<br />
<br />
<br />
Question: Bila awak ditangkap? <br />
<br />
Answer: 6 September 1998, pukul 1.35 petang. <br />
<br />
Question: Berapa lama awak ditahan? <br />
<br />
Answer: 12 hari. <br />
<br />
<br />
<br />
The next point taken up by the defence counsel was that the magistrate did not take steps to ascertain the voluntariness of the confession (point (c) above) on the evidence as it stands it is clear that the magistrate made a genuine endeavour to find out to ascertain the voluntariness of the confession. He asked Sukma pertaining questions for the purpose of satisfying himself that Sukma wanted to make the confession voluntarily on his own free will. The questions and the answering given by Sukma inter alia, are as follows:<br />
<br />
<br />
<br />
Questions: Awak tahu saya siapa? <br />
<br />
Answers: Hakim <br />
<br />
Questions: Kepada siapa awak mula-mula menyatakan niat awak hendak buat pengakuan ini? <br />
<br />
Answers: Kepada Pegawai Polis di Bukit Aman nama En Rodwan Mohd Yusof. <br />
<br />
Questions: Bila awak hendak membuat pengakuan ini? <br />
<br />
Answers: Semalam — 16 September 1998. <br />
<br />
Questions: Adakah sesiapa yang mengugut atau paksa awak atau menyuruh awak buat pengakuan ini? <br />
<br />
Answers: Tidak ada sesiapa. <br />
<br />
Questions: Sekarang masih ada masa jika awak ingin tukar fikiran awak, jika awak hendak dari membuat pengakuan. <br />
<br />
Answers: Saya masih dengan sukarela hendak membuat pengakuan ini. <br />
<br />
Questions: Awak mesti tahu bahawa apa-apa percakapan atau pengakuan yang awak berikan kepada saya boleh digunakan terhadap awak dalam perbicaraan awak kelak. <br />
<br />
Answers: Saya fahami betul. Saya masih hendak buat pengakuan. <br />
<br />
<br />
<br />
The magistrate also took further precaution to find out whether there are injuries found on Sukma’s body. He found no injuries from the waist upwards. He was told by Sukma that there were no injuries below his waist. Sukma did not complain about anything at all to him. When he recorded the confession he made sure that the police personnel who brought Sukma to him left the room and the handcuffs were removed. Only Sukma and the magistrate were in the room when the confession was recorded and the door to the room was closed. In cross examination he reiterated what he had said earlier. He admitted that this is the first time he recorded a confession under s 115 of the CPC. He disagreed to the suggestion by the defence counsel that he did not comply with the requirements under s 115 of the CPC. He said he did not know that Sukma had been under police detention for twelve days before he was brought before him and that while under such detention Sukma was subjected to rough and inhuman treatment. In re-examination he said that throughout the recording of the confession Sukma did not appear to be depressed (tertekan); in fear (bimbang), scared (ketakutan), confused (bingung). Sukma was relaxed and calm throughout when the confession was recorded. En Karim also said that Sukma did not at any time complain to him that he was treated roughly and in an inhuman manner while under detention. It is clear from this evidence that the magistrate had done more than what was necessary for him to do to ascertain the voluntariness of the confession. The allegation that what the magistrate did was mechanical has no merit at all. I am more than satisfied on the evidence that the magistrate had taken all necessary steps to satisfy himself that there was no inducement, threat or promise made by anyone to Sukma that prompted him to make the confession. <br />
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Point (d) above states that the magistrate did not use the word ‘dorong’ in the confession. It was submitted by the defence that failure by the magistrate to use the word ‘didorong’ (induced) at p 6 of the confession would mean that the confession was not voluntarily made. The learned counsel relied on PP v Chan Choon Keong & Ors [1989] 2 MLJ 427, where it was held, inter alia, that the word ‘inducement’ which is obtainable in s 113 of the CPC has to be explained and made understood to the accused who made the statement when administering the caution pursuant to that section and failure of the recording officer to give the correct word for ‘inducement’ in Hokkien by the recording officer would result that a proper caution has not been administered as required under the section. In our instant case, there is no requirement for the magistrate who recorded the confession to explain the word ‘inducement’ and made understood to Sukma as this is not required under s 115 of the CPC. The authority relied upon by the learned counsel concerns the caution to be administered as required under s 113 of the CPC and it does not apply in our case. In any event it is not correct for the learned counsel to say that the magistrate did not use the word ‘didorong’. ‘Inducement’ in Bahasa Malaysia means ‘memujuk’ dan ‘mendorong’ (see Dwibahasa — Bahasa Inggeris-Bahasa Malaysia (Dewan Bahasa dan Pustaka 1989). It is in evidence at p 6 of the confession that the magistrate used the word ‘dipujuk’ when he said: <br />
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Saya berpuas hati beliau membuat pengakuannya dengan sukarela tanpa dipaksa, diugut, dipujuk atau pun dijanjikan apa-apa untuk membuat pengakuan ini. <br />
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Accordingly, I hold that the submission is devoid of any merit whatsoever. The next point raised (point (e)) is the magistrate has failed in his duty to inform Sukma that he can either make a statement or confession before recording the confession. I am of the view that there is no duty imposed on the magistrate under the law to inform Sukma that he can either make a confession or a statement as contended by the defence counsel. In any event the magistrate did tell Sukma that ‘apa-apa percakapan atau pengakuan yang awak berikan kepada saya boleh digunakan terhadap awak dalam perbicaraan awak kelak’. This serves as a caution to Sukma that whatever he said to him can be used against him at his trial. In my view this is sufficient safeguard to ensure that the magistrate is satisfied that the confession is made voluntarily. This point does not help Sukma at all, too, is without merit.<br />
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Point (f) highlighted that the pages in the confession (P4) were not numbered and not initialled. It was submitted that it was necessary that this should be done to avoid interloping and removal of the pages and there is a possibility this could have happened. It is not required under the law that every page should be numbered and initialled but it is only a matter of practice and prudence. There is no evidence to show that there were additions or subtractions in P4 as a result of the failure to number and initial on every page. The original of P4 has been in the custody of the magistrate who recorded it until it was produced in court when he gave evidence. In the absence of any contrary evidence I accept that P4 represents the true record of what transpired between the magistrate and Sukma. Accordingly, I hold that this submission too has no merit. <br />
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It was also submitted that there is an omission on the part of the magistrate to record the questions asked and the answers thereto to show the motive of Sukma in making the confession. It is in evidence that the magistrate did not record in P4 two questions and the answers given by Sukma. The first question relates to the purpose (tujuan) of Sukma in making the confession. The second question was asked to find out whether there were injuries on Sukma. This evidence was elicited during cross examination of the magistrate. It is to be noted that he was not asked what were the questions and answers. In re-examination, however, he confirmed that these two questions were not recorded but he was positive that he did ask these questions. The answer given by Sukma to the first question posed by the magistrate why he wanted to make the confession as in P4 was ‘lama sangat dalam dada saya hendak meluahkan segala-galanya’. It was submitted on behalf of the defence that the question and answer as regards the motive of Sukma was an afterthought as it came about in cross examination. This submission cannot be accepted as the omission to record the question and answer was highlighted only during cross examination though he was never asked by the defence what the question and answer was. It was only right for the prosecution to re-examine the magistrate to bring out what the question and answer was, so that a proper meaning could be deduced from them. It was submitted further that it is not enough for the magistrate to say that he did put to Sukma questions and was satisfied that he would give the confession voluntarily. The learned magistrate ought to have recorded each and every question put to Sukma and the answers given by him more specifically those which go to prove the voluntary nature of the confession. Mere certificate of the magistrate in absence of any record of questions and answers that he was satisfied that the confession was a voluntary one is not conclusive and the confession may still be involuntary (see Manipur State v Naosekpam Nimai Singh & Anor AIR 1953 Manipur 7 (Vol 40 CN 6). It is to be noted that in that case the other questions which the magistrate asked were not disclosed to the court whereas in our instant case the question and answer to the important issue relating to motive was asked and disclosed to the court. The failure to record this question is not fatal as there is evidence that the magistrate had made enquiries to satisfy himself as to the voluntariness of the confession. <br />
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This brings me to the question whether the oral testimony given by the magistrate runs foul of ss 91 and 92 of the Act and therefore inadmissible as contended by the defence counsel. It was submitted that no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to, or subtracting from the confession shall be admitted. The confession according to the defence counsel is one matter required by law to be reduced to the form of a document and accordingly comes within the provision of ss 91 and 92 of the Act. The question is whether the confession is a document within the contemplation of the clause ‘any matter required by law to be reduced to the form of a document’, as stated in ss 91 and 92 of the Act. The meaning and interpretation of this clause has been dealt with in PP v Datuk Haji Harun bin Haji Idris & Ors [1977] 1 MLJ 180 at p 183 where Abdoolcader J (as he then was) said: <br />
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In the context of the wording in s 92 of the Evidence Act, the clause ‘any matter required by law to be reduced to the form of a document’ would appear to refer to bilateral instruments and dispositive documents only, such as contracts, grants or other dispositions of property, which the law requires to be reduced to writing and not to every and all matters which the law requires to be reduced into a document, as for instance, the dispositions of witnesses which, though required by law to be reduced in the form of a document would not come within this section and oral evidence is therefore admissible to contradict such disposition. (Emphasis added.)<br />
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I would say for the same reasons the confession of an accused person though required by law to be reduced in the form of a document would not come within that section. On the authority of PP v Datuk Haji Harun bin Haji Idris & Ors, I hold that the oral testimony of the magistrate is admissible to show motive of Sukma to make the confession. <br />
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The second complaint by the defence was the failure of the prosecution to call SAC-1 Musa who was the investigation officer and Sampornak who was the leader of the team who interrogated Sukma. It was submitted by the defence what happened to Sukma during the period of his detention from 6 September 1998 to 17 September 1998 was not explained. These witnesses were not offered to the defence. There was a very serious gap in the prosecution case. The court should not be left to indulge in conjectures and possibilities (see Abdullah Zawawi v PP [1985] 2 MLJ 16 and Ti Chuee Hiang v PP [1995] 2 MLJ 433). <br />
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The onus is on the prosecution to prove voluntariness beyond reasonable doubt and not for the defence to prove involuntariness (see Hasibullah bin Mohd Ghazali v PP [1993] 3 MLJ 321 and Ibrahim v King [1914] AC 599 which was followed in PP v Chong Boo See [1988] 3 MLJ 292). The question of voluntariness involves a question of fact and must be decided on the evidence (Yaacob v PP [1966] 1 MLJ 67). I am of the view that the proper stage for the court to decide whether the prosecution has discharged the burden of proving that the confession was made voluntary is at the end of the trial within the trial when all the evidence including the evidence to be given by the accused and by his other witness (if any) has been adduced before the court. <br />
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It is difficult for me to decide at the end of the case for the prosecution to make a ruling to exclude the confession at this stage solely on the evidence adduced by the prosecution without hearing the accused himself and his witness (if any). In Wong Kam Ming v R [1979] 1 All ER 939, Lord Edmund Davies said at p 945: <br />
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As has already been observed, an accused seeking to challenge the admissibility of a confession may for all practical purposes be obliged to testify in the voire dire if his challenge is to have any chance of succeeding. <br />
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In R v Brophy at p 709 the speech of Lord Fraser in the House of Lords is instructive and relevant: <br />
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It is of the first importance for the administration of justice that an accused person should feel completely free to give evidence at the voire dire of any improper methods by which a confession or admission has been extracted from him, for he can almost never make an effective challenge of its admissibility without giving evidence himself. He is thus virtually compelled, to give evidence in the voire dire. <br />
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Based on these authorities, I am of the view it is therefore essential and obligatory for Sukma to give evidence in the trial within the trial. However, I must say that I allowed the defence counsel to make a submission at the end of the prosecution to see whether there are grounds for me to determine the issue of voluntariness at that stage. <br />
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In appropriate cases, it is open to the court to rule after the prosecution has adduced evidence in a trial within a trial that the contested statement or confession is inadmissible on the grounds that there was evidence to show that it is satisfied beyond reasonable doubt that there was a breach of the essential requirements of the provision of the law under which the making of the confession was recorded or made or that the court is in doubt as to the voluntariness of the confession (see PP v Aidil bin Ma’arof). <br />
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In the instant case on the evidence adduced by the prosecution I find that there is no breach of the provision of the law to justify this court to rule that the confession be excluded at this stage. I am satisfied that there is no doubt whatsoever as to the voluntariness of the confession on the evidence adduced by the prosecution this far. There is no evidence of any threat, inducement or promise coming from a person in authority. I also find there is no gaps in the prosecution case on the evidence adduced so far by the prosecution. As I had said earlier the court would be in a better position to decide on the voluntariness of the confession after hearing all the evidence and the facts at the conclusion of the trial within a trial. The prosecution may adduce further evidence in rebuttal after the evidence to be adduced by the defence. In conclusion I find that there is sufficient evidence at this stage to enable the court to conclude that there was compliance with the requirements of the law as laid down under s 115 of the CPC and that no threat, inducement or promise was made to Sukma. For the above reasons I rule that the trial within the trial is to proceed with the direction that Sukma be called to give evidence and to call other witnesses, if he so desires. At the end of the trial within the trial and after hearing the evidence to be adduced by the defence and the rebuttal evidence, if any, to be adduced by the prosecution, I shall then consider on the totality of the evidence and the cumulative effect whether the confession is admissible or otherwise.<br />
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I shall now proceed to consider whether the confession (P4) is voluntary. In considering voluntariness I am fully aware that the onus is on the prosecution to prove voluntariness beyond all reasonable doubt and not for the defence to prove involuntariness. (see Ibrahim v The King followed in Dato Mokhtar bin Hashim & Anor v PP and PP v Chong Boo See). It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt (see Shankar v State of Rajasthan AIR 1978 SC 1248). The confession must be made voluntarily in the sense that it was not made as a result of any inducement, threat or promise. Section 24 of the Act states that if the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him the confession is irrelevant and must be excluded. In order to warrant rejection of the confession all that has to be shown is a probability that it was not voluntarily made. A confession can be rejected on a valid ground or conjecture but there must be evidence or circumstances on which the conjecture can rest. If the accused is able to point to some circumstances which arise suspicion the confession cannot be admitted. A mere possibility that the confession was not voluntarily made is insufficient to warrant its rejection but a probability would suffice to warrant its rejection in evidence (PP v Law Say Seek & Ors [1971] 1 MLJ 199).<br />
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The trial within trial proceeded with Sukma himself giving evidence followed by four other witnesses on his behalf. The prosecution then called SAC-1 Musa, the investigation officer, Chief Inspector Sampornak, the leader of the investigation team, five detectives who were members of the investigation team and three police personnel who were on duty at the lock up on the relevant dates for the purpose of adducing evidence in rebuttal. The witness gave lengthy evidence and some of them were subjected to lengthy cross examination. I do not propose to deal with the evidence which I have carefully considered in great detail but shall refer to the relevant evidence when I deal with the points raised by the defence in their submission. At the end of the trial within the trial, En Karpal Singh again submitted at great length on the issue of non-compliance with s 115 of the CPC. I had carefully considered the submission of the learned defence counsel on this issue earlier at the end of the case for the prosecution in the trial within the trial and had ruled that there was due compliance with the section. It is therefore not necessary for me to reconsider this issue again as it would be sheer repetition.<br />
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In his evidence Sukma made various allegations with regard to the manner of his arrest on 6 September 1998, the treatment he received on the same day, the condition of the lock up cell in which he was kept during his detention, the manner he was interrogated by the interrogating team. He also alleged that he was subjected generally to inhuman treatment. In addition to these allegations, Sukma mentioned three specific instances which according to him show that the confession he made was made involuntarily. First he claimed he was forced by ASP Rodwan to make a statement to him about his homosexual relationship with Dato’ Seri Anwar before he was produced before the magistrate on 7 September 1998 for the purpose of obtaining a further demand order. It was also alleged later on the same day that after the remand order was obtained, ASP Rodwan threatened him by saying that as he is now under his custody it is better for him to tell him (ASP Rodwan) about his relationship with Dato’ Seri Anwar if he wants to go home early and does not have to wait for fourteen days or else he would be handed over to a special investigation team who are very rough and he would regret it.<br />
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Secondly, he claimed on 10 September 1998, he was threatened by Chief Inspector Sampornak (‘Sampornak’) by saying that he would be detained under the Internal Security Act 1960 for two years which can be extended for a further two years and the photographs taken during the medical examination on him by Dr Zahari Nor (‘TDW5’) would be used as evidence against him if he does not follow what the investigation team want him to say. He also alleged that Sampornak said the police would plant bullets in his car which was parked at Bukit Aman as bullets are cheap costing only 45 cents each, he would be charged like Dato’ Nallakaruppan and would be hanged and the police would hire a killer to shoot him and nobody would suspect that he was shot by the police. All these allegations were denied by Sampornak. I believe Sampornak and find that he did not threaten Sukma as alleged. I come to this finding for the simple reason that the allegation is beyond comprehension that for that matter any member of the investigating team would ever think of planting the bullets in Sukma’s car as the car was returned on the same day, ie 10 September to one of his friends. If it was true the police had such an intention why should they return the car? One would expect and surely the police would keep the car so that they can accomplish that mission to plant the bullets in the car. Again it is also unbelievable that the police would hire a killer to shoot Sukma whilst he was in custody. It would be a suicidal and foolish act for the police to do this. As regards the photographs, the evidence show that neither Sampornak nor any member of the investigation team knew the photographs existed. It, therefore, cannot be true that Sampornak ever said that the photographs would be used as evidence against Sukma. As regards the allegations that Sukma would be detained under the Internal Security Act, I find it difficult to believe that Sampornak ever said this. Sukma was under detention for alleged sexual offence of sodomy according to SAC-1 Musa, and on 7 September 1998 he was on further remand for fourteen days pursuant to a court order under s 117 of the CPC. He was not being detained under the Internal Security Act. If the police was mindful of detaining him under the Internal Security Act, they would have done so from the very beginning and they do not have to get a further remand to detain Sukma. For this reason I find the allegations are baseless and I rule there was no such threat held out by the investigating team on Sukma.<br />
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The third instance alleged by Sukma that on 16 September 1998, ASP Rodwan again promised Sukma that he would be released the next day after making the confession to the magistrate. I find that there is no evidence to show that ASP Rodwan ever met him between 7.30pm to 8.30pm on that day. There was, however, evidence from the lock up register that ASP Rodwan met him behind the counter outside the cell. ASP Rodwan denied he made the promise as alleged at that meeting. The meeting was a short one and other police personnel were present. It is very improbable that ASP Rodwan would make such a promise in the presence of the other personnel. I accept ASP Rodwan’s explanation he met Sukma to enquire about his well being and during the meeting it was Sukma who told him he wanted to make a statement. As a result of this, ASP Rodwan arranged for Sukma to meet SAC-1 Musa who directed to videotape what Sukma said. It was videotaped to avoid allegations. I have no reason to disbelieve ASP Rodwan under these circumstances.<br />
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The other allegation made by Sukma was that he was programmed systematically into making the confession. It was submitted by the defence that the programming is evidenced by the fact that Sampornak made notes when he interrogated Sukma. He forwarded it to SAC-1 Musa who would content himself Sukma was making progress as noted by Sampornak. The interruption was carried until 15 September 1998, whereby the information required by the police from Sukma was put into his month. I find that there is no evidence to suggest this programming, leave alone it was indeed done, because the purpose of the interrogation was to obtain an intelligence statement. The allegations of programming is a mere allegation unsupported by evidence. The defence tried to convince this court that there was such a programming by relying on the statement that was made on videotape on 16 September 1998, a day before the confession was recorded. It was contended the videotaped statement was made to ensure that Sukma would repeat what he had said in the videotape as programmed, to the magistrate when he made the confession the next day. I am of the view that the police is entitled to record the statements on videotape in the course of their investigation and also to have a confession recorded before a magistrate under the law. The mere fact that a videotaped statement was taken does not necessarily mean that he was programmed into making the confession. There is no evidence what the tape contained as the prosecution was not relying on it and the court is in no position to arrive at a ruling that there was indeed a programming of Sukma in making the confession under these circumstances.<br />
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There is another point which needs consideration and it is this: Whether the evidence and circumstances in this case would have sapped the free will of Sukma when he made the confession, in the sense that the confession was made under oppressive circumstances. The word oppression ‘imports something which tends to sap, and has sapped, that freewill which must exist before a confession is voluntary. Whether or not there is oppression in an individual case depends upon many elements. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and the characteristics of the person who makes the statement’, per Sachs J in R v Priestly (1967) 51 Cr App R 1.<br />
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In R v Fulling [1987] 2 All ER 65, Lord Lane CJ was of the view that oppression as found in s 76(2)(a) of the Police and Criminal Evidence Act 1984 (England) should be given its ordinary dictionary meaning. The Oxford English Dictionary the definition of the oppression runs as follows:<br />
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Exercise of authority or power in a burdensome, hash or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc, the imposition of unreasonable or unjust burdens.<br />
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In our local jurisdiction oppression is recognized as one of the grounds for excluding a statement or confession (see Dato’ Mokhtar Hashim v PP (FC)).<br />
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Bearing the above principle in mind, I now turn to consider the question whether the confession was obtained from Sukma in circumstances which amount to oppression within the definition by Sachs J in R v Priestly.<br />
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It was alleged by Sukma that he was subjected to embarrassment and humiliation at the time of his arrest on 6 September 1998. He was handcuffed and his car was searched in public. The police was carrying out their duty and I find there was nothing abnormal or illegal in what the police did at the time of arrest. Sukma also alleged that he was inhumanly treated and belittled by the police in the car when he was brought to Bukit Aman after the arrest where ASP Rodwan played loudly a cassette tape containing speeches of Dato’ Seri Anwar and hurled abusive and insulting words against Dato’ Seri Anwar. I agree with the prosecution when they say that ASP Rodwan has no plausible reasons whatsoever to abuse or insult Dato’ Seri Anwar as he would gain nothing by doing so. It is preposterous for an officer to say such things against Dato’ Seri Anwar who was a Minister of the crown. Even assuming the allegation was true, I do not see in what way this would affect the mind of Sukma when he made the confession about twelve days later on 17 September 1998. The embarrassment and humiliation, if there was any, would have disappeared from his mind with the passage of time. <br />
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Sukma also alleged that he was confined to a cell in the lock up which was damp, smelly and dirty. A visit to the cell was made at the request of the defence counsel. I am more than satisfied that the cell was clean and dry and not smelly at all. It is fit for human habitation, not of course comparable to a five star hotel.<br />
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He further alleged that he was only in his underwear on the night of 6 September 1998. The evidence does not support this allegation. It is in evidence that before he was placed in cell number 8 that evening, he was asked to remove his shirt and trousers by Cpl Shamsudin (‘TRW8’) for the purpose of examining whether there was any injuries on his body in accordance with the procedure laid down under r 7 of the Lock Up Rules 1953. After the examination by TRW8 Sukma was allowed to put on his dress again. It is therefore not true that he was only in his underwear the whole night. He was also given a blanket (see entry 4094 in Lock Up Register).<br />
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The other allegations are in respect of the manner how the interrogation was conducted. Sukma said that the interrogation was carried out in a rough manner which amounts to threat or oppression. He alleged that:<br />
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(a) During the interrogation he was asked to strip naked and to go round in circles while being handcuffed: The evidence given by Sampornak shows that Sukma was asked to undress only on the first day at the interrogation to see whether there were injuries on his body and after three or four minutes he was allowed to dress up and the handcuff was removed. This allegation has no merit.<br />
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(b) The interrogation team members hurled abuses at him simultaneously and repeatedly very close to his ears.<br />
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(c) The chair on which he sat during the interrogation process was kicked and he fell down.<br />
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(d) His spectacles was removed and was slammed on the table and thrown on to the floor. There is no evidence that his spectacles was broken or smashed to support the allegation that it was slammed or thrown on the floor. This allegation is mere figment of his imagination without any truth whatsoever.<br />
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(e) He was humiliated when he was examined by Dr Zahari Noor (TDW5) on 9 September 1998, in the presence of a lady when he was stripped naked and photographs were taken in the nude. The examination according to Dr Zahari entails the examination of his private parts etc and the clothes had to be removed. Photographs were taken for purposes of record and as evidence and not for other sinister purposes. The photograps were taken with Sukma’s permission. It is not true that the examination was carried out in the presence of a lady. The evidence is that the lady referred to is DSP Chong, a police officer who left the room before the medical examination commenced. There was no truth that the lady officer was present when he was examined by Dr Zahari. There was no humiliation at all in the circumstances and this allegation is devoid of merit.<br />
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(f) He alleged that he was programmed like a computer and drilled (to use the learned defence counsel’s words) to make him submit to the wishes of the police. On this allegation there is not an iota of evidence to show how, when, by whom and where he was programmed and drilled. In fact in evidence ASP Rodwan denied this allegation.<br />
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(g) It was alleged that he was subjected to long hours of interrogation for about 8 hours daily for’ a period of ten days. The evidence from the prosecution witnesses and the various entries in the Lock up Register show that Sukma was interrogated between 8.00/8.30 am to 12.30pm in the morning session and between 2.3 pm to 4.30 pm in the afternoon session. He would be returned to his cell by 4.30 pm and at times just before 6.00pm which is permissible under the lock up rules. The interrogation was carried out within the permissible time limit under the lock up rules. There is no evidence to show that Sukma was interrogated at odd hours until late in the night. It has been held that long hours and odd hours of interrogation would appear to be suggestive of oppression: (See Dato’ Mokhtar bin Hashim v PP).<br />
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In PP v Kamde bin Raspani [1988] 3 MLJ 289, it was held that 17½ hours of interrogation until early hours of the morning and carried out after 6.30 pm constituted oppression as this would breach the lock-up rules. However, even in cases where this is a breach of the lock-up rules there may be circumstances attending the breach which do not amount to oppression making the confession admissible (PP v Veeran Kutty & Anor [1990] 3 MLJ 498. In the instant case, I am satisfied that the interrogation was not carried out at odd hours in contravention of the lock up rules so as to render the confession inadmissible on the ground of oppression.<br />
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(h) It was also alleged that he was not given food. This cannot be true as the evidence shows that throughout the period of detention he was given food during lunch break and at dinner. He was not given food at dinner time only on the 6 September 1998, ie the day of his arrest. This is not disputed by the prosecution as the time for serving food was over. In any event, there is no evidence to show that Sukma was hungry for he could have asked for some food if it was true that he was hungry. He did not complain about food on other days and this fact enhances the truth that he was provided with food except for the first night after his detention. It is also in evidence that the interrogation was adjourned during lunch time. I am of the view the fact that he was not given food on the night of 6 September 1998 would not in any way have sapped his will to resist or so undermined him physically or mentally when he gave his confession on 17 September 1998, ie ten days later. Sukma is a young man. He appears to be physically but fit for his complaint that he is asthmatic, there is no evidence to show that his asthmatic condition was at a stage which affects his physical well being. This is obvious as he never complained during his detention that he suffered from any asthmatic attack and at no time was he attended to by a doctor for treatment of asthmatic attack during his detention. To my mind this evidence also serves to show that his interrogation was not carried out in a harsh and inhuman manner and he was treated well while under detention and while undergoing interrogation, otherwise he would have collapsed. Under these circumstances and for the above reasons, I find that there were no elements of oppressions, promise, threat and inducement or the use of other unlawful means that would render the confession inadmissible.<br />
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Having considered all the evidence adduced in the trial within the trial and the submission of counsels both for the prosecution and in all the circumstances, I was satisfied that there were no grounds sufficient to pursuade me in the exercise of my discretion that I should exclude the confession as evidence. I therefore admitted in evidence the confession made by Sukma on the ground that the prosecution had proved beyond reasonable doubt that it was made voluntarily in the sense that it was not obtained by threat, inducement, promise or oppression. The confession was marked as exh P4.<br />
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Applications made orally in the course of proceedings<br />
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Before considering the submission of the parties at the end of the case for the prosecution, it is appropriate at this stage to deal briefly some of the applications made by the defence counsel, to complete the record of this proceedings.<br />
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(a) The application to disqualify me to continue with the hearing of this case<br />
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On 27 September 1999, En Karpal Singh applied orally for an order that I should not continue with the hearing with this case. The ground for the application is that there is a real danger or reasonable apprehension or suspicion that I may be biased and not actual bias.<br />
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The facts relied upon by En Karpal Singh that occasion the making of the application are that before my elevation as a judge, I was a shareholder and a director in Dataprep Holdings Sdn Bhd. Mirzan Mahathir, a son of the Prime Minister was also a shareholder and director of the company. The appointment of a judge in this country is made by the King on the advice of the Prime Minister. It was submitted that the person responsible for putting into effect the prosecution of Dato’ Seri Anwar from the charges framed is in fact under the circumstances prevailing here by the Prime Minister.<br />
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As I had business connection with the Prime Minister’s son, it was contended that I should have disclosed this fact before the commencement of this case. It was submitted that the mere fact of my interest in the company is sufficient to disqualify me unless I had made sufficient disclosures. The learned counsel rely on R v Bow Street Metropolitan Stipendiary Magistrate and Ors; Ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 for his proposition. With the greatest respect, I see no logic in making the application. What is the relevance of my past association with the Prime Minister’s son in Dataprep Holdings Sdn Bhd in this proceedings? The company is not a party in this trial and neither is the Prime Minister’s son. The principle in Pinochet’s case does not apply.<br />
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The real danger and reasonable apprehension and suspicion that I may be biased as alleged although it is not alleged, I am biased is a mere allegation by the counsel without any basis. It is raised for the purpose to embarrass me and for no apparent reasons and to delay this proceedings. I dismissed the application as being one without any merit whatsoever.<br />
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(b) Application to show cause against various persons for commenting and making references to the trial<br />
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There was an application made by the Attorney General for an order to issue a notice to show cause against Dr Chandra Muzaffar to direct him to appear in court to explain why he should not be charged for contempt of court based on an article commenting on the order of this court on the admission of Sukma’s confession alleged to be written by him in the Internet.<br />
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I found that the Attorney General has not proved the authenticity of the article alleged to be written by Dr Muzaffar. I suggested to the Attorney General to institute proper proceedings for contempt if he so desires.<br />
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Encik Karpal Singh on numerous occasions also made application orally to cite the Prime Minister and other political figures for contempt of court.<br />
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I ruled that the court would not entertain oral applications to cite people for contempt. If any persons are aggrieved by any comments or references made by anybody in connection with the trial of Dato’ Seri Anwar, he or she should institute proper proceedings for contempt of court. I made a ruling that oral applications would not be entertained.<br />
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Submission at the end of the prosecution case<br />
<br />
The prosecution closed its case after calling nine witnesses on whose evidence the prosecution relies to prove its case against both the accused. <br />
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At the end of the prosecution case both parties submitted. I shall now deal with the submission of the parties.<br />
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(a) Azizan’s explanation in the impeachment proceedings<br />
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Mr Fernando again raised the issue of Azizan’s impeachment and advanced forcefully the argument that Azizan was not asked to explain the second statement which is ‘selepas bulan September 1992 sehingga sekarang tertuduh tidak meliwat saya.’ It was contended that Azizan did not give an explanation on this statement and the court has not considered it in making a ruling that Azizan’s credit is not impeached. I have no hesitation to say that this argument is without any merit. I have considered carefully the explanation given by Azizan earlier in this judgment when I discussed the issue of the impeachment of Azizan. I accepted his explanation for the reasons stated therein and ruled that his credit is saved. I need say no more on this as this is mere repetition.<br />
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(b) The standard of proof on the prosecution at the close of its case.<br />
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The standard of proof required of the prosecution at the end of its case under the law as it stands today is governed by s 180 of the CPC which reads as follows:<br />
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(1) When the case for the prosecution is concluded, the court shall consider whether the prosecution has made out a prima facie case against the accused.<br />
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(2) If the court finds that the prosecution has not made out a prima facie case against the accused, the court shall record an order of acquittal.<br />
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(3) If the court finds that a prima facie has been made out against the accused on the offence charged the court shall call upon the accused to enter his defence.<br />
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This section was introduced by the amendment to the CPC by the CPC (Amendment) Act 1997 (Act A979) which came about after the decision by the Federal Court in Arulpragasan a/l Sandaraju v PP [1997] 1 MLJ 1. This amended section would apply only to an act or omission constituting a criminal offence committed on or after 31 January 1997. In Dalip Bhagwan Singh v PP [1998] 1 MLJ 1, Peh Swee Chin FCJ (delivering the judgment of the Federal Court) explained the effect of the amendment as follows:<br />
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The said amendment would apply in our view, only to an act or omission constituting a criminal offence committed on or after 31 January 1997, and not to any such act or omission before 31 January 1997. For such act or omission committed before January 1997, the test laid down in Arulpragasan’s case, ie that of proof beyond a reasonable doubt at the close of the prosecution’s case, would still apply because the amendment is not couched in terms, either expressly or by necessary implication which would make it retrospective in operation (see also Bahruni bin Ismail v PP [1997] 2 MLJ 265).<br />
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It is therefore clear on the above authorities that the standard of proof required of the prosecution at the end of its case in the instant case before me is proof beyond a reasonable doubt on the charges against both accused as the alleged offences committed by the accused were between the month of January to March 1993. The test laid down in Arulpragasan’s case referred to in Dalip Singh’s case was enunciated in Arulpragasan a/l Sandaraju v PP at p 12 by Eusoff Chin CJ which reads as follows:<br />
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It is trite law that the onus is on the prosecution throughout the case in any criminal trial to prove the charge against the accused beyond a reasonable doubt. In my view the same standard of proof applies at the intermediate stage of the trial, ie at the close of the prosecution.<br />
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Both the prosecution and the defence are in agreement that the standard of proof required of the prosecution is proof beyond a reasonable doubt at the end of its case.<br />
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What then is the meaning of ‘beyond a reasonable doubt’?<br />
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In Liew Kaling & Ors v PP [1960] 26 MLJ 306 at p 311 Thomson CJ referred to Miller v Minister of Pensions [1947] 2 All ER 372 where Denning J (as he then was) described the degree of proof required in criminal cases as follows:<br />
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That degree is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.<br />
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The prosecution is said to have discharged its burden of proof beyond reasonable doubt if on the evidence at the end of the prosecution case the accused elects to remain silent the court must convict (see Arulpragasan’s case). The court must be satisfied that every ingredient of the charge has been proved beyond reasonable doubt.<br />
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(c) Amendment of the charges<br />
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As stated earlier in this judgment the charges against both accused were amended at the commencement of this trial. The defence took strong objection to the amendment of the charges. Both accused applied to strike out the proceedings on the ground that the amendment was not made in good faith and was an abuse of the process of the court and therefore prejudicial and oppressive to the accused. It is in evidence which is not disputed that the charges against both accused were amended twice by the prosecution. The original charge against Dato’ Seri Anwar stated that the offence was alleged to be committed in May 1994. This charge was amended first on 27 April 1999 in respect of the date of the commission of the offence which is from May 1994 to May 1992. The second time the charge was amended was on 7 June 1999 at the commencement of this trial. The amendment was in respect of the date mentioned in the amended charge, ie from May 1992 to between January to March 1993. The original charge against Sukma stated the date as May 1992 and this date was also amended to between the months of January to March 1993 on 7 June 1999.<br />
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I had heard the applications to strike out the proceedings in Miscellaneous Application No 44–27–99 and Miscellaneous Application No 44–25–99. I had dismissed these applications on the ground that they were devoid of any merits. The reasons for dismissing the applications are stated in my grounds of judgment therein. There is an appeal pending against this decision. This issue on the amendment of the charges was raised again in the submission at the end of the prosecution’s case. In view of the evidence adduced by the prosecution at this trial I shall briefly deal with this issue again. It is contended by the defence the charges as amended against both the accused are doomed to failure at the outset as they are false and fabricated. In support of this contention the defence submitted that the investigation officer, SAC-1 Musa was never asked for the reason why the charges have to be amended and neither was Azizan, the man who would have known, was asked for the reason. There was therefore according to the defence, no evidence to show why the date stated in the original charges had to be amended drastically. I agree with the submission of the prosecution that there is no requirement under the law that reasons must be given why the amendments were made. In any event the defence counsel, Mr Fernando himself has ventured to state the reasons why the date May 1992 was amended to between January to March 1993 when he submitted ‘we are not disputing the prosecution has the right, what we are questioning is the reason for the second amendment. I say the reason which he prosecution themselves readily admit is because the notice of alibi served upon them it was pointed out to them and they did verify that the venue mentioned in the charge the so-called place, ie Tivoli Villa was still under construction. That is why, they had to amend the charge’.<br />
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It is trite law that the Attorney General, who is also the PP has very wide discretion in all criminal prosecutions under the Penal Code other than proceedings before a Syariah Court, a native court or a court-martial, (see s 376(1) of the CPC and art 145(3) of the Constitution). I do not wish to deal with this point at length again at this stage as I had considered this in depth in my judgment in the applications by both accused to strike out the proceedings. Suffice for me to reiterate that the Attorney General has exercised his discretion properly and in accordance with the law and on the evidence available in amending the charges. I shall refer to and highlight the evidence later in this judgment when I deal with the question whether the prosecution has made out a case beyond reasonable doubt against both accused. In any event I am satisfied that the defence has failed to show that the amendments were made mala fide. My earlier ruling that the objection to the amendments of the charges be dismissed stand.<br />
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(d) Whether the charges are vague and weak<br />
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It was contended by the defence that the charges against the accused are vague and lack of certainty because no specific date is mentioned therein. It was submitted that the date between the months of January to March 1993 is vague. The complaint by the defence on this point is that the accused would not be able to meet the charges.<br />
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It is a requirement under s 153(i) of the CPC that particulars must always be given which would be sufficient to give the accused notice of the matter with which he is charged. Section 153(i) of the CPC states:<br />
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The charge shall contain such particulars as to the time and place of the alleged offence and the person, if any, against whom the thing, if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.<br />
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In this instant case it is clear that in the charges it is specified the offences were alleged to have been committed one night at about 7.45 pm between the months of January and March 1993 at Tivoli Villa, in the Federal Territory of Kuala Lumpur, I am of the view that these are particulars sufficient to clothe the charges with clarity and certainty. The charges as amended are clear and unambiguous and as such both the accused have not in any way misled by the charges as framed. Both the accused know what the charges are against them. They are not in any way prejudiced by the failure of the prosecution to state the exact date and this omission has not occasioned a miscarriage of justice. In any event a date in the charge has never been material. In R v Severo Dossi (1918) 13 Cr App R 158 (quoted in Law Kiat Lang v PP [1966] 1 MLJ 215 and Ho Ming Siang v PP [1966] 1 MLJ 252) Lord Atkin J observed:<br />
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From time in memorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence.<br />
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In Ku Lip See v PP, the accused was convicted on a charge of rape where the charge states that the alleged offence was committed between the month of May 1978 at about 7pm and the month of June 1978 at about 7pm. The Federal Court held that the charge has nevertheless specifically defined the time and place sufficiently to enable the applicant accused to answer the charge.<br />
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On the above premises, I was therefore unable to agree with the submission advanced by the defence that on this point the prosecution has failed to prove its case beyond reasonable doubt and both the accused should not be called to enter their defence. The submission is without any merit.<br />
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(e) Whether Azizan is an accomplice<br />
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An accomplice is defined in Wharton’s Law Lexicon as ‘a guilty associate in crime’. In Regina v Mullins 3 Cox CC 526, Maule J described an accomplice as a person who has concurred ‘fully in the criminal designs of another for a certain time, until getting alarmed or for some other cause, they turned upon their former associates and gave information against them. These persons may be truly called accomplice’.<br />
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When the issue whether a witness is an accomplice is raised ‘the court must study the evidence and make the necessary finding. There can be no rule of law or evidence that a witness is automatically an accomplice just because of his actus reus. The whole idea is completely contrary to the basic concept of criminal liability’ — per Salleh Abas CJ (as he then was) in Ng Kok Lian Anor v PP [1983] 2 MLJ 379. In deciding whether a witness is an accomplice the court has therefore to consider the evidence that is before it. Bearing in mind this principle can it be said that Azizan is an accomplice? Does the evidence show that Azizan is an accomplice? In his evidence he said in cross examination that he told the police he was sodomized between the months of January and March 1993 although he cannot remember the exact date on which the sodomy took place. It was contended by the prosecution that Azizan was not an accomplice because he was sodomized without his consent. He was under fear, he was scared of both the accused and was not a willing participant in the offence but a victim of it. The prosecution referred to Srinivas Mall Bairoliya v Emperor AIR 1947 PC 135 in support of its contention. With the greatest respect I do not agree with this submission. The case of Srinivas is not an authority for the proposition that a witness is not an accomplice just because there is no consent on his part in the commission of the act that forms the subject matter of the charge against the accused. The case laid down the principle that when an accomplice acts under a form of pressure which it would require some firmness to resist reliance can be placed on his uncorroborated evidence. In the instant case the evidence shows that Azizan was invited to visit Tivoli Villa by Sukma. Azizan went there to see Sukma’s new apartment. He went there not with the intention of committing sodomy with both the accused. His actus reus alone is not sufficient to make him an accomplice, there must also be the intention on his part (see Ng Kok Lian’s case). For the reasons I therefore find that Azizan is not an accomplice.<br />
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(f) Credibility of Azizan<br />
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After failing in the application to impeach Azizan based on the alleged contradictions between statements he made at an earlier trial of Dato’ Seri Anwar and his evidence given in this trial the defence vigorously challenged the evidence of Azizan bin Abu Bakar. The defence is entitled to embark on the assault of the credibility of Azizan based on the facts of the case even after a ruling has been made by the court that his credit is saved. The effect of refusing an application to impeach is set out in the book Impeachment Proceedings by S Augustine Paul at p 79 as follows:<br />
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Primarily the effect is that the previous inconsistent statement will no longer place the witness’ credit in any jeopardy as he has satisfactorily accounted for it. His credit would stand to be assessed on the same basis as that of any other ordinary witness and would depend on the facts of the case.<br />
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In Tan Gong Wai’s case after refusing an application to impeach the credit of a witness the learned trial judge decided to accept part of his evidence after considering the whole of the evidence and his inconsistent testimony in court. However, on appeal the Supreme Court held him to be an unreliable witness (see Tan Gong Wai v PP [1986] 2 MLJ 206). This shows that on the facts of a particular case a witness’ evidence can be considered as totally worthless even if his credit has been saved.<br />
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The challenge by the defence on the evidence of Azizan is on the principal ground that he is an unreliable witness and is not a witness of truth because he gave inconsistent statements in his testimony. It was submitted that his evidence is far from convincing as there are material contradictions in his testimony. The defence counsel, En Jagdeep Singh Deo for Sukma argued that the fact that I allowed impeachment proceedings be brought against Azizan in relation to his testimony in this proceeding as compared to his testimony in the earlier trial of Dato’ Seri Anwar is acknowledgement of the fact that there are material contradictions in his testimony and this by itself is a ground for disbelieving Azizan and rejecting his evidence. With due respect such an argument cannot be accepted because the mere fact of allowing the impeachment proceeding to be brought does not automatically mean that the witness is an unreliable and untruthful witness and his evidence be rejected. The application to impeach was allowed to enable the witness to explain the discrepancies. It is the finding of the court at the end of the impeachment proceeding whether the witness has explained the material discrepancies that is important. I have already dealt with the impeachment proceeding and had made a ruling that Azizan’s credit is saved after having considered all the evidence adduced at the end of the prosecution case and the facts and circumstances of this case bearing in mind the principle on which the court is guided in assessing the credit of a witness as stated in Dato Mokhtar bin Hashim & Anor v PP, which is ‘when a witness’ credit is sought to be impugned his credit stands to be assessed as a whole with the rest of the evidence at the appropriate stage, that is to say at the close of the case for the prosecution or for the defence as the case may be. No immediate order of a summary nature can or should be made … and the right of cross examination or re-examination according to the circumstances should not be denied as it might well be that in the exercise of such right his credit might be repaired, restored or re-establish.’ — per Eusoff Abdoolcader FJ. After considering the evidence as a whole at the end of the case for the prosecution I accepted the explanation of Azizan on the apparent material contradictions. For the reasons stated I reject the argument that by allowing the application to impeach Azizan the court has accepted the fact that there are material contradictions in Azizan’s testimony and his evidence should be rejected.<br />
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The next instance of discrepancies and contradictions in Azizan’s testimony alleged by the defence is in respect of Azizan’s evidence in relation to the date when the alleged offences were committed as stated in the charges against the accused in the instant proceeding. It was submitted by the defence that Azizan was not truthful when he testified concerning the dates on which the offences were committed. According to the defence <br />
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Page 252>>counsel, it was SAC-1 Musa, the Chief Investigation Officer in this case who had asked Azizan to change the date. In cross examination in answer to the question ‘who ask you to change the date from May 1992 to January to March 1993?’ Azizan said it was SAC-1 Musa who asked him to change the date. It was therefore submitted that Azizan lied on this issue. In this regard the notes of evidence read as follows:<br />
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Question: Adakah awak beritahu pihak polis awak diliwat di antara bulan Januari hingga Mac 1993? <br />
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Answer: Ada. <br />
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Question: Adakah tarikh Januari hingga Mac 1993 kamu beri kepada polis? <br />
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Answer: Ada. <br />
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Question: Apa pihak polis soal awak berkenaan tarikh yang disebut di dalam cahrge Januari–Mac 1993? <br />
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Answer: Polis suruh saya ingat dengan jelas. <br />
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Later Azizan was asked again about the date January to March 1993 though in different words as follows:<br />
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Question: Adakah kamu disuruh pinda tarikh itu kepada Januari hmgga Mac 1993? <br />
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Answer: Ya. <br />
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Question: Bila dan siapa suruh awak buat demikian? <br />
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Answer: Pegawai polis yang merakamkan statement saya. <br />
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Question: Dan kamu setuju dengan dia? <br />
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Answer: Ya. <br />
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Question: Siapa pegawai itu? <br />
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Answer: SAC-1 Musa. <br />
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Question: Pada 1 Jun 1999 dia suruh awak pinda tarikh itu? <br />
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Answer: Ya. <br />
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He was also cross examined by En Gobind Singh, the learned counsel for Sukma, on the same issue as follows:<br />
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Question: Kamu terima cadangan SAC-1 Musa berkenaan tarikh liwat dilakukan? <br />
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Answer: Saya yang memberitahu SAC-1 Musa tarikh tersebut dan SAC-1 Musa tidak mencadangkan tarikh itu kepada saya. <br />
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Question: Adakah SAC-1 Musa suruh kamu menentukan tarikh-tarikh tersebut? <br />
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Answer: Ya. Sebelum beliau merekodkan dan menyuruh saya mengingatkan dengan betul tarikh yang saya berikan kepadanya untuk direkodkan di dalam statement saya. <br />
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In re-examination Azizan said that it was he who informed SAC-1 Musa he was sodomized between January to March 1993. He was asked to explain what he meant when he said in cross examination it was SAC-1 Musa who asked him to change the date. His explanation is as follows:<br />
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SAC-1 Musa telah meminta saya untuk mengingati dengan jelas tentang kejadian pertama kali saya diliwat di Tivoli Villa. Saya mengatakan kepadanya tarikh yang tepat saya tidak pasti tetapi ianya berlaku selepas empat atau lima bulan saya berhenti kerja sebagai pemandu kepada Datin Seri Wan Azizah, iaitu pada bulan September 1992 dan saya memberitahunya bahawa kejadian tersebut adalah di antara bulan Januari hingga Mac 1993 lebih kurang pukul 7.30 malam.<br />
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It can be gathered from his explanation that what he meant by saying that it was SAC-1 Musa who asked him to change the date was that SAC-1 Musa asked him to remember the date clearly with regard to the incident that took place at Tivoli Villa for the first time.<br />
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SAC-1 Musa in his testimony said he sent for Azizan to see him at Bukit Aman on 1 June 1999. Azizan came at about 1.30pm. He asked Azizan to recollect the date when Azizan was sodomized by Dato’ Seri Anwar and Sukma for the first time at Tivoli Villa. Azizan informed him that the first time he was sodomized by Dato’ Seri Anwar and Sukma at Tivoli Villa was between January and March 1993. He recorded a statement from Azizan on the same day. This evidence corroborates what Azizan had said that it was he who told SAC-1 Musa of the date, ie between January and March 1993 as stated in the charges against both the accused. I accept the evidence of SAC-1 Musa on this issue as I find there is no reason why he should ask Azizan to change the date. He was only carrying out his duties as an Investigation Officer. He felt that there is a likelihood the date stated in the charge may not be accurate after carrying out further investigations on receipt of the notice of alibi. It is clear on the evidence adduced and under the circumstances of the case Azizan was not asked by SAC-1 Musa to change the date. I am convinced that it was Azizan who told SAC-1 Musa that he was sodomized by both the accused between January and March 1993 at Tivoli Villa. I find as a fact that Azizan was telling the truth.<br />
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It is also contended that Azizan is not reliable as he had contradicted himself in cross examination when he was asked about the months of May 1994 and 1992. A close scrutiny of the evidence would reveal that he was asked repeatedly in cross examination whether he told the police he was sodomized in May 1994 and May 1992. It must be noted that the former date was stated in the original charge and was later amended to read May 1992 and finally amended to between the months of January to March 1993. On 3 August 1999 he was asked:<br />
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Question: Adakah awak beritahu pihak polls kamu diliwat pada bulan Mei 1994? <br />
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Answer: Saya tidak ingat. <br />
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This question was repeated and his answer remained the same ‘saya tidak ingat’. On 9 August 1999 that is six days later he was asked again about the year 1994 as follows:<br />
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Question: Adakah awak beritahu pihak polis kamu diliwat oleh Dato’ Seri Anwar dan bukan dalam tahun 1994? <br />
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Answer: Ada. <br />
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Question Adakan tidak sebelum hari ini awak ada memberitahu mahkamah ini bahawa awak tidak ada memberitahu polis bahawa awak diliwat oleh Dato’ Seri Anwar dan Sukma pada tahun 1994? <br />
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Answer: Ada. <br />
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As regards the date May 1992 he was asked on 3 August 1999 as follows:<br />
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Question: Adakah awak beritahu pihak polis awak diliwat dalam bulan Mei 1992 oleh Dato’ Seri Anwar dan Sukma? <br />
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Answer: Tidak. <br />
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Question Benar atau tidak awak tidak beritahu polis tarikh tersebut? <br />
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Answer: Ya, benar. <br />
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Later he was again asked about May 1992 in the following manner:<br />
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Question: Kamu tahu atau tidak kamu memberi keterangan di dalam perbicaraan yang lepas bahawa selepas Mei 1992 kamu tidak diliwat oleh tertuduh sehingga hari ini? <br />
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Answer: Benar. <br />
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Question: Saya berkata kepada awak tuduhan dipinda dari Mei 1994 kepada Mei 1992 selepas kamu beri keterangan sedemikian. <br />
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Answer: Saya tak tahu. <br />
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Question: Katakan kepada kamu tuduhan asal terpaksa dipinda ke Mei 1992. <br />
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Answer: Tidak tahu. <br />
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Question: Dua hari sudah awak kata awak tahu tarikh dipinda tetapi hari ini awak kata tidak. <br />
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Answer: Kerana soalan ditanya berkali-kali berkenaan tahun 1992 dan 1994 dan saya terkeliru. <br />
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It is to be observed that May 1994 and May 1992 are not the months we are concerned with in the instant charges against both the accused. These months are relevant only in respect of the earlier charges which have been amended. We are not concerned with these charges. I had dealt with the amendment of these charges earlier in this judgment and had ruled that the amendment was lawfully made in the proper exercise of the discretion by the Attorney General. In his testimony Azizan said he was confused because he was asked about the months of May 1994 and May 1992 repeatedly as stated above. I find as a fact that he was confused. When a witness is confused, it does not mean he was lying. The naked truth is that he could not remember what he had said. I am satisfied he was not lying. In any event, the issue whether he told the police he was sodomized in May 1994 and May 1992 are not the issues in the current charges against both the accused. The issue is whether he was sodomized by both the accused between the months of January and March 1993 at Tivoli Villa. I therefore rule the credit of Azizan is not affected on this score.<br />
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It was also argued that the evidence of Azizan cannot be accepted in the light of the evidence of SAC-1 Musa. It was pointed out that SAC-1 Musa in his evidence said five statements were recorded from Azizan and that all these statements were in relation to sodomy. The allegations are consistent and true. He also testified that there was a necessity to amend the charges because there were contradictions in the date. It was submitted that there were two versions of the prosecution case on a fundamental ingredient ie the dates. In this respect, it is necessary to recapitulate what Azizan had said about the dates. In his evidence which I had referred to earlier he was confused about the dates as he was asked repeatedly the same questions on the dates May 1994 and May 1992. In substance what he said on this issue was that he could not remember whether he told the police he was sodomized in May 1994 although he did say that he did not inform the police that he was sodomized in 1992.<br />
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Be that as it may, the evidence of SAC-1 Musa clearly states that Azizan was consistent in his statements on the issue of sodomy although he was not sure of the exact dates. The relevant dates we are concerned with in the present charges are between the months of January and March 1993. Azizan emphatically said in evidence that he was sodomized by both Dato’ Seri Anwar and Sukma at Tivoli Villa between these dates and he gave the reasons for remembering the dates. This evidence was not successfully challenged. It is therefore established on this evidence that Azizan was sodomized by both Dato’ Seri Anwar and Sukma in Tivoli Villa between January to March 1993. Whether he was sodomized in May 1994 or May 1992 is not relevant as these dates are not in issue to be decided in this case. I see no merits on this contention and the credit of Azizan is not affected on this ground.<br />
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The other ground advanced by the defence for attacking the credibility of Azizan is his conviction in the Mahkamah Rendah Syariah Alor Gajah, Melaka. It was contended by the defence that it was necessary to recall Azizan to give evidence to confirm his conviction and to assess his credibility. An application was therefore made under s 425 of the CPC. This section is very familiar but for convenience, it is reproduced which is as follows:<br />
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Any court may at any stage of any inquiry, trial or other proceeding under this Code summon any person as witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.<br />
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It was argued by the defence counsels that it is essential and necessary to recall Azizan to give evidence which is essential to the just decision of the case. It has been decided in many cases that the court would allow a witness already examined to be recalled and re-examined at any stage of any enquiry, trial or other proceeding if it is satisfied that the evidence to be summoned would appear to the court to be essential to a just decision of the case (see PP v Phon Nam [1988] 3 MLJ 415, Jacob v PP [1949] MLJ 70). The fresh evidence to be adduced must also relate to the substance of the charge in order to assist the court to arrive at a just decision of the case (see Ramli bin Kecik [1986] 2 MLJ 53).<br />
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The question to be decided is whether it was necessary to recall Azizan to be re-examined on what had transpired at the hearing in the Syariah Court. To answer this question the court has to consider whether the court should exercise its discretion to recall Azizan under the circumstances prevalent in this case. I am of the view that it is futile for this court to make an order to recall Azizan because to allow such an application it would amount to opening up the case against Azizan which has been decided by the Syariah Court. This court cannot and should not do that as Azizan was lawfully tried before a forum properly constituted under an Enactment enforceable in the State of Melaka. Furthermore the evidence recorded as in M10 does not relate to the substance of the charges on which both Dato’ Seri Anwar and Sukma are being tried in the instant case. The charges against Azizan in the Syariah Court has no bearing and connection at all with the current charges faced by Dato’ Seri Anwar and Sukma. I am of the view that the evidence to be adduced by recalling Azizan will not assist this court to arrive at a just decision of this current case before this court. If at all the evidence is to be referred by this court, it is only for the purpose of considering the credibility of Azizan. Even then I am of the view that the evidence will not assist this court to assess the credibility of Azizan. I shall consider this issue later. I therefore dismissed the application to recall Azizan for the reason that his evidence will not assist the court to arrive at a just decision of this case. For the same reasons I also disallow the application to call the co-accused in the Syariah Court trial.<br />
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At the request of En Karpal Singh, one of the counsels for Dato’ Seri Anwar Ibrahim, and with the consent of the prosecution, the record of proceedings in the Mahkamah Rendah Syariah Alor Gajah, Melaka was produced through the Pembantu Penolong Pendaftar Mahkamah Rendah Syariah Alor Gajah and was marked as exh M10. The Pembantu Penolong Pendaftar was called to produce M10 under s 139 of the Act. It cannot be denied that from the record, it is clear that Azizan admitted that he committed the offences and he pleaded guilty at the hearing of the case on 28 September 1999. He was accordingly convicted on two charges of close proximity (khalwat) (‘the first charge’) and attempting to commit sexual intercourse (cuba melakukan persetubuhan haram) (‘the second charge’) under ss 53(1) and 52 respectively of the Enakmen Kesalahan Syariah Negeri Melaka 1991. He was fined RM2,500 in default six months imprisonment on the first charge and RM4,500 in default 12 months imprisonment and also to a sentence of imprisonment for a term of three months on the second charge.<br />
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I shall now consider whether the evidence adduced in the Syariah Court as recorded in M10 will assist this court to assess the credibility of Azizan. It was submitted by the defence counsel that this court has to take into account the evidence adduced in the Syariah Court to assess the credibility of Azizan. This is because Azizan in his evidence in this court has testified that he raised the allegation that he was sodomized by Dato’ Seri Anwar and Sukma about five years after the alleged incident has taken place because of religion and honour (demi kepentingan ugama dan maruah). It was submitted by the defence counsel this claim by Azizan portrays that he is a religious person and a person with high morals. It was contended that his convictions in the Syariah Court and the circumstances which went with it completely destroys his credibility to be attached to the evidence he gave in this instant trial. It was submitted that he is a witness not to be believed because under the Syariah law he does not measure up as a witness and his evidence should be rejected. En Karpal Singh referred to certain provision in the Enakmen Keterangan Mahkamah Syariah 1994 (Melaka Enakmen No 12 Tahun 1994) and the Syariah Court Evidence (Federal Territories) Act 1997 (‘Act 561’) pertaining to competency of a Muslim as a witness. It is provided under these legislations that for a Muslim to qualify as a witness he must satisfy certain stringent rules such as he must be adil, aqil and baligh. A Muslim is deemed to be adil if he carried out his religious obligations, performs the prescribed religious duties, abstains from committing capital sins and is not perpetually committing minor sins — (see the explanation to s 83 in Act). This guideline is applicable in a trial before the Syariah Court and not in a trial before this court where the provisions of the Act apply in respect of witnesses and the weight to be attached to the evidence adduced through the witnesses. In practice as far as the witnesses are concerned, it is left to the presiding judge who hears and sees the witness to attach to the evidence the weight it deserves based on the demeanour of the witnesses when giving evidence and the manner in which they answer questions during the trial. So in the instant case the credibility of Azizan is to be assessed when Azizan gave evidence before this court.<br />
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What transpired in the Syariah Court would not be relevant in assessing the credibility of Azizan. It has been held that a conviction of a witness for an offence is not a ground for disbelieving a witness (see Gipp v R [1998] 155 ALR 15 — High Court of Australia). It follows therefore the mere fact that Azizan was convicted in the Syariah Court under the Syariah law is no ground for discrediting his evidence given in the instant trial and to disbelieve him.<br />
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For the reasons I have stated above, I hold that the conviction of Azizan in the Syariah Court does not affect his credibility.<br />
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To summarize my judgment on the issue of the credibility of Azizan, it is my firm finding in relation to the charges against both accused that he is a wholly reliable, credible and truthful witness taking into consideration the whole of his evidence not withstanding inconsistencies, discrepancies and contradictions which did not detract the weight and truth of his evidence in relation to the ingredients of the charges against both accused.<br />
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Azizan has truthfully and without embellishment, distortion or exaggeration in his evidence narrated in minute detail how he was sodomized by Dato’ Seri Anwar and Sukma at the date and place as stated in the charges against both accused. Azizan in his evidence gave so much graphic detail of the preliminaries, and a vivid description how both accused penetrated his anus with their respective penises. His description and direct experience of being sodomized completely negatives any probability that Azizan was tutored or coached as claimed by the defence counsel. No reasonable person or judge could on the evidence come to any other finding than the firm and unescapable conclusion that both accused sodomized Azizan gaily whetting their appetites at Tivoli Villa. Only persons directly and actively subjected to these acts of sodomy would be able to narrate the details of the whole episode.<br />
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I am of the firm view that Azizan was speaking the whole truth when he said in evidence that he was sodomized at Tivoli Villa between the months of January and March 1993 by both accused as stated in the charge. There is no reason why he should come out with such meticulous details describing the preliminaries sex play indulged in by Dato’ Seri Anwar unless this was true. He has nothing to gain whatsoever but stood to lose everything if his evidence was not true as this would affect his self respect and his good name and standing in the eyes of the public and would also bring embarrassment to his family members. Further one cannot conceive that one would fabricate a serious charge of sodomy against the Minister of Finance and Deputy Prime Minister of Malaysia.<br />
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It cannot be denied that there are discrepancies in Azizan’s testimony. I have considered these discrepancies earlier and had made my finding on them. Apart from that, I do not find any serious discrepancies that would affect Azizan’s credibility or reliability as a witness of truth on the ingredients of the charges against both the accused.<br />
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It has been held that discrepancies may be found in any case but the question is whether that discrepancies are sufficient to affect or destroy the credibility of a witness. On this point it is useful to refer to PP v Datuk Haji Harun bin Haji Idris (No 2) [1977] 1 MLJ 15 where Raja Azlan Shah FJ (as his Highness then was) said at p 19 as follows:<br />
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In this case different witnesses have testified to different parts of what had happened or what had been said and also there are, in the evidence of the witnesses for the prosecution, some discrepancies, as would be expected of witnesses giving their recollections of a series of events that took place in 1971–1973. In my opinion discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened. … The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other.<br />
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In an earlier case of Chean Siong Guat v PP [1969] 2 MLJ 63, Abdul Hamid J (as he then was) opined that ‘Discrepancies may, in my view, be found in any case for the simple reason that no two persons can describe the same thing in exactly the same way … If, after considering them, if the magistrate finds that the discrepancies do not detract from the value of the testimony of the witness or witnesses, it would then be proper for him to regard the discrepancies as trivial and ignore them. On the other hand, if a magistrate finds that the discrepancies relate to a material point which would seriously affect the value of the testimony of the witness or witnesses, then it would be his duty to weigh the evidence carefully in arriving at the truth.’<br />
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Bearing in mind the above principles and taking into account the credible manner in which he gave evidence, his demeanour while giving evidence and his unchallenged and unshaken evidence on the details of sodomy committed at Tivoli Villa which is consistent with itself and the other evidence adduced by the prosecution, I have no hesitation in coming to the conclusion and a finding that Azizan’s evidence is wholly credible on all the facts relating to the act of sodomy committed on him by both the accused.<br />
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(g) The confession of Sukma<br />
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The prosecution sought to admit a confession made by Sukma which was recorded on 17 September 1998 by En Abdul Karim bin Abdul Jalil, sessions court judge (formerly known as President of the sessions court) in his capacity as a magistrate. I had made a ruling that the confession is admissible in evidence as being one which was made voluntarily after a lengthy hearing at a trial within a trial which was conducted to determine <br />
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the voluntariness or otherwise of the confession. This ruling settles the question of its admissibility of P4 but not its truth. My detailed reasonings are contained in my ruling which I had made earlier in this judgment at the end of the trial within a trial. The confession was marked as exh P4.<br />
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To start with it is important and necessary to refer and to be acquainted with the contents of the confession to get a clear perspective of the central issues revolving around the said confession. The confession (P4) starts with Sukma’s background. He said he came from Indonesia to study in Kuala Lumpur. He stayed with Datuk Ibrahim and his wife at No 27, Jalan SS1/43, Petaling Jaya. Datuk Ibrahim was his guardian. He shared a room with Dato’ Seri Anwar. He started a homosexual relationship with Dato’ Seri Anwar since 1976 or 1977 although he cannot remember the exact date. He said:<br />
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Selepas setahun hubungan kami semakin intim dan bermulalah hubungan oral sek saya melakukan terhadap dia. Selepas setahun kemudiannya dia ada melakukan liwat terhadap saya dengan menggunakan baby cream. Dia melakukan berselang-seli di antara onani, liwat dan oral.<br />
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He further said in the confession (P4) that the homosexual activities between him and Dato’ Seri Anwar continued after the latter got married once or twice a month. These activities took place at Dato’ Seri Anwar’s residence at Subang Jaya, Seksyen 14, Petaling Jaya and at No 8, Jalan Setia Murni 1, Damansara. He also said that homosexual activities took place between him, Dato’ Seri Anwar and one Ismail who he had introduced to Dato’ Seri Anwar. In the confession, Sukma also described the incident of liwat that took place at Tivoli Villa which is the subject matter of the charges against Dato’ Seri Anwar and himself in this instant trial. This portion of the confession is important and is reproduced below:<br />
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Dalam lebih kurang dua atau tiga tahun yang lalu waktu dan tahun yang tepat saya tidak ingat saya pernah membawa Dato’ Seri Anwar Ibrahim ke rumah saya untuk bertemu dengan Azizan (pemandu kereta Datin Seri) di rumah saya atas permintaan Dato’ Seri Anwar Ibrahim untuk melakukan hubungan sejenis. Rumah saya ini di Tivoli Villas.<br />
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Dianya terjadi seperti begini. Saya membuat janji kepada Azizan agar beliau datang ke Tivoli Villas pada pukul 7.30 petang. Pada pukul 7.00 petang saya menjemput Dato’ Seri Anwar Ibrahim dari rumah resmi beliau ke Tivoli Villas. Kami tiba di Tivoli Villas pada 7.15 petang, kurang lebih, dan pada 7.30 petang, Azizan datang ke rumah saya dengan kenderaan beliau sendiri. Setelah kami bertiga bersama, Dato’ Seri Anwar dan Azizan membuka baju masing-masing untuk mengadakan hubungan sejenis, saya ada melihat hubungan mereka berdua sekejap-sekejap. Di antara hubungan mereka ianya terjadi oral dan liwat iaitu Dato’ Seri Anwar Ibrahim melakukan ke Azizan dengan menggunakan cream baby tanpa menggunakan kondom. Selepas air mani Dato’ Seri Anwar keluar, Azizan mengajak saya untuk melakukan liwat terhadapnya. Tapi saya tidak mencapai ketahap maksimum. Semasa saya melakukan liwat ke atas Azizan Dato’ Seri Anwar berada di bilik air. Kejadian ini berlaku tiga kali di rumah saya di Tivoli Villas tetapi kali yang ketiga saya tidak menonton atau melakukan hubungan sejenis bersama mereka. Mereka hanya melakukan berdua dan saya menunggu di luar kamar.<br />
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The part of the confession reproduced above is self-explanatory. It says clearly that Azizan was sodomized at Sukma’s apartment at Tivoli Villa by both the accused. The defence contended that it cannot be true that Sukma fetched Dato’ Seri Anwar from ‘rumah resmi beliau’ to Tivoli Villa because No 47, Jalan Damansara, Damansara, Kuala Lumpur was not the official residence of Dato’ Seri Anwar in the months of January to March 1993. This contention cannot be right. A close examination of p 13 of the confession does not show that Sukma specify the address of Dato’ Seri Anwar’s official residence. Azizan clearly states ‘rumah resmi beliau’. What he meant by ‘rumah resmi’ was Dato’ Seri Anwar’s house at No 8, Jalan Setia Murni 1, Bukit Damansara, Kuala Lumpur where he referred to this house as ‘rumah resmi peribadi beliau’ earlier in the confession at p 10. It is also equally clear that the confession implicates not only Sukma (the maker of the confession) but also Dato’ Seri Anwar who is a co-accused.<br />
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Having said that I now consider the role played by the confession in the case for the prosecution against both the accused. It is settled law that a confession if voluntarily and truthfully made is an efficacious proof of guilt. When the prosecution relies on the basis of an accused’s confession for a conviction, the court must apply a double test as stated in Shankaria v State of Rajasthan AIR 1978 SC 1248 at p 1252 where it is stated:<br />
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(1) Whether the confession was perfectly voluntary?<br />
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(2) If so, whether it is true and trustworthy?<br />
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As against the maker, the confession can be used to support his conviction if the court believes it is voluntary and true. In Dato Mokhtar bin Hashim & Anor v PP at p 266, Hashim Yeop A Sani J (as his Lordship then was) stated the law on this issue as follows:<br />
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On the use of a confession as against the maker the position in law is clear. An accused can be convicted on his confession if the court believes it is voluntary and it is true.<br />
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I have already ruled that the confession was made voluntarily. It remains to be considered whether it is true and trustworthy. It is to be borne in mind that if a confession is found to be voluntary, the court must before acting upon it be satisfied what is stated therein is true and reliable. In judging the truth and reliability of the confession, the court should carefully examine the confession and compare it with the rest of the evidence in the light of the surrounding circumstances and probabilities of the case (see Shankaria v State of Rajasthan).<br />
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Now it is time for me to compare the confession with the rest of the evidence. It may be recalled that Sukma did not deny he had made the confession but said that it was made under compulsion, threat and promise and under circumstances which amount to oppression. His claim in substance was that he made the confession involuntarily and that the confession is false and untrue. He said that the story he adumbrated in the confession was put into his mouth by ASP Rodwan. When asked by his counsel in examination in chief on the circumstances under which he made the confession he said:<br />
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Encik Rodwan telah memberi guide kepada saya berulang-ulang kali dan sekiranya saya tersilap pun tidak mengapa yang lebih penting mesti memberi keterangan secara jelas dan detail mengenai hubungan homosexual di antara saya dengan Dato’ Seri Anwar dan Azizan.<br />
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ASP Rodwan denied that he ever asked Sukma to say what he said in the confession. I believe what he said because looking at the evidence as a whole it would appear the allegation is too far fetched and unreliable to be accepted. The confession appears to be a spontaneous account in minute and vivid details about the manner of the commission of the alleged sodomy by both the accused as stated in the charges. The way the acts of sodomy committed by both accused are narrated by Sukma in the confession is a tell- tale circumstances which shows undoubtedly that only the perpetrator would be able to narrate the events in that manner. Further it is difficult to believe that ASP Rodwan coached Sukma what to say in his confession. The evidence show that ASP Rodwan spent very little time with Sukma before the confession was recorded by En Abdul Karim. ASP Rodwan met him at the counter in the lock up in the presence of others. It would be beyond comprehension that ASP Rodwan would have programmed Sukma what to say in the confession as claimed by the defence under the circumstances. There is evidence that ASP Rodwan met Sukma on other occasions but the encounter was brief to enable ASP Rodwan to coach Sukma. Furthermore Sukma did not say any where in his evidence in categorical terms what ASP Rodwan actually told him what to say in his confession. The failure to condescend to details of what ASP Rodwan actually said to him cuts at the root of his allegation that he was coached by ASP Rodwan what to say. In the absence of evidence to this effect, I conclude that the allegation was wholly unsubstantiated. Under these circumstances, I rule that the allegation by Sukma that ASP Rodwan ‘telah memberi guide kepada saya berulang-ulang kali’ is without basis.<br />
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In addition, it was submitted by the defence that Sukma was programmed systematically into making the confession. I had dealt with this point earlier in this judgment. To recollect it is sufficient to say at this stage that my finding on this point was that there was no systematic programming of Sukma in making the confession. My reasons for making such a finding had been stated earlier and I therefore do not wish to repeat what I had already said on this point.<br />
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There is left the evidence of Dr Zahari Noor (TDW5) and Dr Abel Arumugam (SP8) to be considered in connection with the truth of the confession. Both witnesses examined Sukma for the purpose of showing whether Sukma was or was not sodomized. Their evidence would be relevant only to establish the truth of the confession with regard to the issue that he was sodomized. Even then I find the evidence of both these witnesses who were called as expert witness do not conclusively prove that Sukma was or was not sodomized. I attach no weight to this evidence as it does not help this court to decide the truth or otherwise of the confession.<br />
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It was further submitted that the confession contradicted Azizan’s evidence on the dates as stated in the charges. It does not relate to the offences on which both the accused are being charged. The defence pointed out that the sodomy stated in the confession refers to incidents which took place ‘dalam lebih kurang dua atau tiga tahun yang lalu’. This would mean according to the defence that the alleged offences could not have been committed in 1993. What Sukma said in the confession with regard to the date he was sodomized at Tivoli Villa was that he could not remember the exact year. This is what he said from the record:<br />
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Dalam lebih kurang dua atau tiga tahun yang lalu waktu dan tahun yang tepat saya tidak ingat — p 14 second para in confession (P4).<br />
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In my view, the phrase ‘dua atau tiga tahun yang lalu’ does not conclusively establish that the date of the commission of the offences could not be 1993. I do not agree with the contention of the defend that ‘dua atau tiga tahun yang lalu’ would be in 1995 or 1994 because this may also include 1993. This year cannot be excluded for the simple reason that Sukma himself was not sure of the exact date but only giving an estimated date. He could have said with precision that the year was 1994 or 1995 if he was sure that what he meant by ‘dua atau tiga tahun yang lalu’ refers to these years but he said ‘tahun yang tepat saya tidak ingat’. This in my view does not exclude 1993.<br />
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To summarize it is my finding that, based on the evidence of Azizan and in the circumstances, what Sukma stated in the confession that he and Dato’ Seri Anwar sodomized Azizan as stated in the charge is true.<br />
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In any event if there is any contradiction in any part of the confession with other evidence adduced, the court is entitled to accept part and reject part of the evidence (see Lim Yow Choon v PP [1972] 1 MLJ 205). I therefore conclude that what is stated by Azizan in the confession he was sodomized by both Dato’ Seri Anwar and Sukma at 7.45 pm between the months of January to March 1993 was true.<br />
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What then is the position as regards a co-accused? Can the confession be used against Dato’ Seri Anwar, the co-accused in this trial?<br />
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It was submitted by the defence counsels that the confession could not be used against Dato’ Seri Anwar under the circumstances of the case. This brings into focus s 30 of the Act which reads as follows:<br />
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When more persons than one are being tried jointly for the same offence, and a confession made by one of those persons affecting himself and some other of those persons is proved, the court may take into consideration the confession as against the other person as well as against the person who makes the confession.<br />
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The essential requirements for the application of this section, as can be gathered from the wordings of the section itself, are that there must be a joint trial of the persons for the same offence and the confession must be proved and it must be one affecting the maker and the co-accused. The section applies to confessions only and not to statements which do not admit the guilt of the person making the confession (see Bhuboni Sahu v The King AIR 1949 PC 257 and Herchun Singh & Ors v PP [1969] 2 MLJ 209). The confession must also affect the co-accused.<br />
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In Bhuboni Sahu v The King the Privy Council considered the application of s 30 of the Indian Evidence Act 1872 which is similar to our s 30 where Sir John Beaumont said that ‘a confession of a co-accused is obviously evidence of a very weak type … It is not required to be given on oath, nor in the presence of the accused and it cannot be tested in cross examination … Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weight with the other evidence’.<br />
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Juraimi bin Husin v PP [1998] 1 MLJ 537 was referred to by the defence to show the manner in which the section must be applied. In that case the Court of Appeal was of the view that the evidence against an accused must be first marshalled, putting aside the confession of the co-accused. If the court is prepared to convict on the other evidence, it may pray in aid of the co-accused’s confession to lend assurance to the conclusion of guilt already arrived at. This view is at variance from the view expressed by the Federal Court in Herchun Singh & Ors v PP where the principle of law in respect of the application of a confession of an accused person as against a co-accused was discussed and clarified. The view of the Federal Court is that the confession is used to lend assurance only in cases where the court is not prepared to act on the other evidence. The manner in which s 30 of the Act must be applied was clarified in Herchun Singh’s case by HT Ong (CJ Malaya) at p 210 where he said:<br />
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In our judgment, however, the proper interpretation of s 30 is that of Bose J in Kashmira Singh, as follows:<br />
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‘The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether “if it is believed” a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.<br />
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The principle enunciated in Herchun Singh was again emphasized and reiterated in the Federal Court in Yap Chai Chai & Anor v PP [1973] 1 MLJ 219.<br />
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It is now timely for me to consider the other evidence adduced by the prosecution against Dato’ Seri Anwar, a co-accused before taking into consideration the confession (P4) as against him. Apart from the confession there is the evidence of Azizan who testified that he was sodomized by Dato’ Seri Anwar at Sukma’s apartment at Tivoli Villa at about 7.30 pm between January and March 1993 as stated in the charge against him. This evidence was not successfully challenged by the defence, though an attempt was made to challenge it. I accepted his evidence for the reasons which I had stated when I dealt with the issue of Azizan’s credibility in the earlier part of this judgment and made a ruling that Azizan is a reliable and truthful witness. His evidence is wholly reliable and capable of belief, which I accept. It is indeed a very strong piece of independent evidence to prove that Dato’ Seri Anwar committed sodomy on Azizan as stated in the charge against him. I am prepared to act on this evidence alone independently, disregarding and ignoring the confession on the principle as laid down in Herchun Singh’s case. It is therefore not necessary for me to call the confession in aid.<br />
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In any event an accused can be convicted solely on the basis of a confession by his co-accused, provided the evidence emanating from the confession satisfies the court beyond reasonable doubt of the accused’s guilt. This is the interpretation given to s 30 of the Singapore Evidence Act by the Court of Appeal in Singapore in Chin Seow Noi & Ors v PP [1994] 1 SLR 135. This new approach adopted by the Singapore Court of Appeal in interpreting s 30 of the Singapore Evidence Act (which is similar to our s 30) is well discussed and set out in Augustine Paul’s Evidence: Practice and Procedure (2nd Ed) at p 294 as follows:<br />
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The Singapore courts have now interpreted this section in a different light. In Ramachandran a/l Suppiah & Anor v PP [1993] 2 SLR 671 the Court of Appeal had held that the section should be construed such that, as against an accused person, the confession of a co-accused could only play a supportive role and cannot by itself form the basis of a conviction. In the later case of Chin Seow Noi & Ors v PP [1994] 1 SLR 135 the Court of Appeal said that that decision must be regarded as having been given per incuriam because it was given without the benefit of any argument on or analysis of issues fundamental and crucial to the proper construction of this section. It was held that the natural interpretation of this section is that it allows the conviction of an accused to be sustained solely on the basis of a confession by his co-accused, provided the evidence emanating from the confession satisfies the court beyond reasonable doubt of the accused’s guilt. It was further held that the various Indian authorities which adopted a narrower construction of a similar provision in the Indian Evidence Act must be regarded as irrelevant in Singapore, because these Indian authorities were decided within the context of a law of evidence differing in material aspects from the Singapore law of evidence. The Court of Appeal said that the judgments in the Indian cases which had hitherto been followed are replete with statements to the effect that this section should be construed narrowly because the confession of a co-accused cannot be fitted within the restricted definition of ‘evidence’ given in s 3 of the Indian Evidence Act which begins with ‘Evidence means and includes’. The phrase ‘means and includes’ makes the definition both explanatory and exhaustive. This is in marked contrast to s 3 of the Singapore Evidence Act which uses the word ‘includes’. This makes the definition of ‘evidence’ an extensive one. Thus, as Yong Pung How CJ added at p 156:<br />
<br />
‘Within the context of our Evidence Act, “evidence” may thus be given not just the narrow statutory meaning explicitly spelt out in s 3 itself but also, where applicable, its ordinary, popular and natural meaning. In other words, the scope of admissible evidence as provided for in our Evidence Act is considerably broader than that provided for in the Indian equivalent. In contrast to the situation in India, in Singapore confessions by co-accused persons may be included in the whole body of what is understood to be “evidence” within the parameters set by our Evidence Act.’<br />
<br />
This interpretation has now been consistently followed by the courts in Singapore. See, for example, Abdul Rashid & Anor v PP [1994] 1 SLR 119 (CCA); Lee Yuan Kwang & Ors v PP [1995] 2 SLR 349 (CA); PP v Rozmaan bin Jusoh & Anor [1999] 2 SLR 181 (CA).<br />
<br />
<br />
<br />
I agree with the learned author that in interpreting this section, the local cases have followed the interpretation accorded to it by the Indian cases, without a consideration of the difference in meaning of the word ‘evidence’ in the Act and the Indian Evidence Act. The learned author further analysed the reasoning of the Singapore Court in arriving at the conclusion and concluded that the confession of a co-accused is in the same position with the evidence given by a co-accused and this means that such a confession is capable of standing on its own.<br />
<br />
This view was adopted by Augustine Paul J in Noliana bte Sulaiman v PP [2000] 4 MLJ 752 at p 761 where he said thus:<br />
<br />
<br />
<br />
Similarly the confession of a co-accused is entitled to due consideration like any other evidence that has been proved unlike its treatment in the Indian Courts in view of their narrow definition of the word ‘evidence’ (see Chin Seow Noi & Ors v PP [1994] 1 SLR 135; Abdul Rashid & Anor v PP [1994] 1 SLR 119; Lee Yuan Kwang & Ors v PP [1995] 2 SLR 349 and PP v Rozmaan bin Jusoh & Anor [1999] 2 SLR 181).<br />
<br />
<br />
<br />
I am inclined to adopt and follow the interpretation of s 30 by the Singapore Court of Appeal as I am of the same view with the learned author that it must be recognized that there is a difference in the provisions in respect of the definition of the word ‘evidence’ in s 3 between the Indian Evidence Act and our Act. As a result I conclude that a confession by an accused is capable of standing on its own and be used against a co-accused to support a conviction provided the evidence emanating from the confession satisfies the court beyond reasonable doubt of the accused’s guilt. The confession of Sukma can therefore be used standing on its own against Dato’ Seri Anwar.<br />
<br />
(h) Corroboration<br />
<br />
Before considering whether there is a need for corroboration and whether there is in fact corroboration in this case, I propose to state briefly the law on this subject. The word corroboration had no special technical meaning; by itself it meant no more than evidence tending to confirm other evidence (see Director of Public Prosecutions v Kilbourne [1973] 1 All ER 440). It has also been said that what is required is some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe for the court to act upon the evidence. In the celebrated case of R v Baskerville (1916) 2 KB 658 at p 667 Viscount Reading LCJ said:<br />
<br />
<br />
<br />
We hold that the evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.<br />
<br />
<br />
<br />
It has also been held that corroborative evidence is not necessarily restricted to the oral evidence of an independent witness. Corroboration can equally be well afforded by established facts and the logic of established facts sometimes speaks even more eloquently than words (see Brabakaran v PP [1966] 1 MLJ 64.<br />
<br />
I shall now deal with the question whether corroboration is required. It was contended by the defence that Azizan, a victim of the alleged sodomy, committed by both the accused is an accomplice and therefore his evidence needs to be corroborated. I have earlier in this judgment dealt with the question of an accomplice and the need for corroboration in respect of the evidence of an accomplice and made a ruling that Azizan is not an accomplice. Nevertheless in a case of this nature which is a sexual offence corroboration of Azizan’s evidence is desirable though not technically essential and the court should give sufficient attention to the matter (see Koh Eng Soon v Rex [1950] MLJ 52.<br />
<br />
In PP v Mardai [1950] MLJ 33 the accused was charged for an offence of outraging the modesty of a woman under s 354 of the Penal Code. On the issue of the need for corroboration of the complainant’s evidence Spenser-Wilkinson had this to say at p 33:<br />
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<br />
<br />
Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be corroborated; nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant’s story.<br />
<br />
<br />
<br />
An allegation of sodomy can be easily made but very difficult to refute and the evidence in support of such a charge has to be very convincing in order to convict the accused. In Emperor v Sari Das AIR 1926 Lah 375 it was said:<br />
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A charge under s 377 is one very easy to bring and very difficult to refute. Therefore the evidence in support of such a charge has to be very convincing.<br />
<br />
<br />
<br />
The evidence in support of such a charge must also be corroborated. It is said that ‘it is unsafe to convict on the uncorroborated testimony of the person on whom the offence is said to have been committed unless for any reason that testimony is of special weight — see Ganpart v Emperor AIR 1918 Lah 322. See also Bal Mukundo Singh v Emperor (1937) 38 Cr LJ 70 (Cal).<br />
<br />
It is therefore trite law that a complainant’s evidence in a sexual offence requires corroboration although a conviction founded on the uncorroborated evidence of the complainant is not illegal provided that the presiding judge must warn himself of the danger of convicting on such uncorroborated evidence (see Chiu Nang Hong v PP [1965] 31 MLJ 40).<br />
<br />
It was also contended by the defence that Azizan is not a reliable witness and his evidence should be rejected outright and the court does not have to look further and to consider the needs for corroboration (see Sarwan Singh v State of Punjab AIR 1957 SC 637 quoted in TN Nathan v PP [1978] 1 MLJ 134). In this connection, it is useful to refer to Director of Public Prosecutions v Kilbourne [1973] 1 All ER 440 at p 452 where Lord Hailsham said:<br />
<br />
<br />
<br />
Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness’s testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness’s testimony falls of its own inanition the question of his needing, or being capable of giving, corroboration does not arise.<br />
<br />
<br />
<br />
I have found Azizan to be a reliable and truthful witness for the reasons stated earlier in this judgment. It follows that corroboration is required.<br />
<br />
The next question to be decided is whether there was corroboration of the evidence of Azizan. It was contended by the defence that there was no corroborative evidence. I shall now deal with the issue whether there was in fact corroboration.<br />
<br />
(i) Evidence of Dr Mohd Fadzil bin Man (SP2)<br />
<br />
This doctor was called by the prosecution as its second witness. His evidence can be summarized as follows. Sukma came alone on 10 November 1994 to his clinic situated at Ampang Park Shopping Centre, Kuala Lumpur. He examined Sukma.<br />
<br />
Encik Karpal Singh objected to the evidence to be given by this witness even before the witness began to testify on the ground firstly that the evidence of this witness should not be tendered at this stage before the evidence of the principle witness is led or at least his examination-in-chief has been heard as the nature of the defence will not then have become apparent by cross examination (see Jacob v PP). With due respect that case does not help the defence in the present case as it was dealing with the evidence of system whereas in the present case the purpose of introducing the evidence is to show that Sukma is a homosexual which is relevant to the issue before this court.<br />
<br />
It was also contended by the defence that the evidence of bad character of the accused is not admissible as he has not attacked the character of the witnesses for the prosecution or he has not adduced evidence of good character under s 54 of the Evidence Act 1950. I am of the view that evidence of bad character is admissible under explanation 1 of the Act which reads:<br />
<br />
<br />
<br />
This section does not apply to cases in which the bad character of any person is itself a fact in issue.<br />
<br />
<br />
<br />
Secondly, it was argued that the communication between a doctor and patient is privileged, and it would also be a breach of the code of conduct governing doctors issued by the Malaysian Medical Council. I overrule the objection as there is no privilege under the law for a doctor from disclosing what transpired between him and his patient. As regards the code of conduct, I am of the view that Dr Fadzil does not commit a breach of his duty of confidentiality by disclosing what transpired between him and his patient (see W v Egdell & Ors [1989] 2 WLR 689).<br />
<br />
In PP v Haji Kassim [1971] 2 MLJ 115, the Federal Court held that the privilege excluding professional confidence in s 126 of the Evidence Ordinance does not protect professional disclosures made to clergymen or doctors.<br />
<br />
In his testimony Dr Fadzil said as a result of his examination, he concluded that Sukma suffered from a mental depression due to biological factors and family background. I need not go into details on the causes of the depression for which Sukma was suffering as it is not necessary. It is, however, relevant and necessary to observe that Dr Fadzil said that Sukma told him that he had homosexual relationship with his adopted brother and his business partner although he did not disclose the identity of these two persons. According to this witness, the danger of this homosexual activities in which Sukma was involved in is the important factor that cause Sukma mental depression. Sukma was given medicine for his sickness and was told to come back but he never did.<br />
<br />
At the end of the testimony, En Karpal Singh submitted that the evidence of this witness amounts to introduction of evidence which is prejudicial to both accused irrelevant and amounts to introduction of alleged causation of an offence which has no relation to the charges the accused is facing and applied to the court to expunge the evidence from the record.<br />
<br />
I dismissed the application to expunge the evidence as I am of the view that the evidence is relevant. The importance of the evidence of this witness cannot be overlooked and it is this, it establishes the fact that Sukma was involved in homosexual activities with his adopted brother (adik angkat) and his business partner. Dato’ Seri Anwar admitted in his evidence that Sukma is his adopted brother. What Sukma told this witness that he was involved in homosexual activities is a confession as defined under s 17 of the Evidence Act 1950 and its voluntariness is not disputed. This evidence is admissible to establish the fact that Sukma is a homosexual and is relevant to the issue of sodomy which is the subject matter of the charges against him.<br />
<br />
To summarize, I find that the evidence of Dr Fadzil does not amount to corroboration of Azizan’s evidence but evidence relevant to show that Sukma is a homosexual. The evidence is not corroboration because it does not relate to the offence of sodomy for which Dato’ Seri Anwar is being charged. In other words, the evidence does not confirm the story of Azizan that he was sodomized by both the accused.<br />
<br />
(ii) Evidence of Tun Hanif bin Omar (SP3)<br />
<br />
It was the contention of the prosecution that the evidence of Tun Hanif (SP3) amounts to corroboration. The evidence relied upon by the prosecution to support this contention is in respect of Dato’ Seri Anwar’s involvement in unusual sexual activities with two men who could be identified which he told to the Prime Minister. To recollect what Tun Hanif said in his evidence which is relied upon by the prosecution to support their contention is that on 9 October 1993 he went to see the Prime Minister at his office at about 8.30 or 8.35am together with Dato’ Zulkifly bin Abdul Rahman, who was at that time the Director of the Special Branch. His purpose of seeing the Prime Minister was to inform him that an investigation by the Special Branch revealed that there is evidence to show that Dato’ Seri Anwar Ibrahim, who was at that time the Minister of Finance has unusual sexual relationship with two persons who could be identified and who were males.<br />
<br />
The defence counsels for both accused objected to the evidence and submitted that this evidence should not be admitted as it is hearsay, irrelevant and prejudicial to the accused. The prosecution in reply to the objection submitted that it was leading evidence of similar facts and to rebut the defence and to show intention and state of mind of the accused. I overruled the objection because at that stage it was too early for me to rule whether it would be hearsay, irrelevant or prejudicial. The prosecution may call the Special Branch officers and the persons involved in the unusual sex activities with Dato’ Seri Anwar to prove the allegations. Tun Hanif further testified that one of the persons involved was a Pakistani citizen who had a permanent residence status of the United States. In cross examination the witness named the two persons who were involved as Sukma and Mior and in re-examination he disclosed a third person involved as Dr Munawir.<br />
<br />
It is to be noted that the evidence given by Tun Hanif on this issue of unusual sex activities involving Dato’ Seri Anwar with all the named persons was based on the Special Branch investigation. The officers who carried out the investigation were not called despite the indication to the court given by the prosecution that Dato’ Zulkifly, who was the Director of the Special Branch at that time, would be called. Neither were the three persons alleged to be involved were called to testify. After hearing submission by the prosecution and the counsels for both the accused at the end of the prosecution case, I decided not to admit the evidence. The allegations against Dato’ Seri Anwar were never verified and for this reason, I rule that Tun Hanif’s evidence on this issue is hearsay and therefore inadmissible. It follows therefore that the evidence of Tun Hanif on this issue cannot be considered as corroborative evidence. It is also not admissible as similar facts evidence as it has not been verified. I excluded this evidence as being prejudicial and irrelevant under the principle enunciated in the celebrated case of Makin v The Attorney General for New South Wales (1894) AC 57 Lord Herschell, Lord Chancellor said at p 65:<br />
<br />
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<br />
... It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.<br />
<br />
<br />
<br />
(iii) The conduct of Dato’ Seri Anwar<br />
<br />
The prosecution contended that the evidence of Azizan is also corroborated by the conduct of Dato’ Seri Anwar which is firstly by asking Azizan to deny his ‘Pengakuan Bersumpah’ which was sent to the Prime Minister, and secondly by asking SAC-1 Musa, the investigation officer to close investigation into the allegation against him. The investigation was in connection with police report no 2706/97.<br />
<br />
I shall now deal with the conduct of Dato’ Seri Anwar and determine whether it amounts to corroboration. Azizan testified that he was summoned through Zul Aznam by Dato’ Seri Anwar sometime at the end of June 1998 after the ‘Pengakuan Bersumpah’ (P5) was made. He met Dato’ Seri Anwar in a room at his official residence. Azizan said only two of them were in the room. He said Dato’ Seri Anwar asked him to deny his ‘Pengakuan Bersumpah’ if he is called by the police — in his own words ‘Dato’ Seri Anwar minta saya menafikan surat pengakuan sumpah saya sekiranya saya dipanggil oleh pihak polis’. He also said that he did not say anything to Dato’ Seri Anwar because Dato’ Seri Anwar had asked him to lie about P5 as its contents are true; again in his own words ‘kerana beliau menyuruh saya untuk berbohong memandangkan penyataan bersumpah saya adalah benar.’<br />
<br />
In the ‘Pengakuan Bersumpah’ Azizan said that the act of sodomy took place ‘sekitar tahun 1992’. By this it is clear that it is not confirmed to just acts of sodomy committed in 1992. It could include acts committed in 1991 or 1993. This view is supported by what Azizan said in cross examination that he did tell Umi Hafilda who drafted P5 some of the places only and the date ie sekitar 1992 where the acts took place. He did not tell Umi all the places but this does not necessarily mean that the acts did not take place elsewhere. Therefore when Azizan signed P5 he also had in mind the incident at Tivoli Villa. Thus when Dato’ Seri Anwar asked Azizan to deny P5 to the police, the accused is specifically also referring to the Tivoli incident. In my view, this amounts to Dato’ Seri Anwar asking Azizan to lie, as stated by Azizan in his evidence, about the acts of sodomy which would include the Tivoli incident. This amounts to suborning of false evidence and is evidence of conduct against the accused under s 8 of the Act. I shall deal with the application of this section later.<br />
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The second conduct of Dato’ Seri Anwar referred to by the prosecution is in respect of his request to SAC-1 Musa to close the investigation. SAC-1 Musa is the investigation officer of this case. He started to investigate into the allegation of sexual misconduct against Dato’ Seri Anwar in 1997 based on a police report lodged by ASP Zull Aznam in connection with an anonymous letter entitled ‘Talqin Kutuk Anwar Ibrahim’ despite his findings that the allegations against Dato’ Seri Anwar contained therein were not totally unfounded. The allegations were not fully and completely investigated despite the existence of ample evidence that warranted a full investigation because Dato’ Seri Anwar requested him to stop investigation. As a result no further action was taken on this investigation.<br />
<br />
Both Azizan and SAC-1 Musa were not challenged on this aspect of their testimonies. There is a general rule that failure to cross examine a witness on a crucial point of the case will amount to an acceptance of the witness’s testimony subject to exceptions as highlighted by Raja Azlan Shah CJ (as his Majesty then was) in Wong Swee Chin v PP [1981] 1 MLJ 212 at p 213 where His Lordship referred to the New Zealand case of Transport Ministry v Garry [1973] 1 NZLR 120 where Haslam J said at p 122:<br />
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In Phipson on Evidence (11th Ed) para 1544 the learned authors suggest examples by way of exception to the general principle that failure to cross-examine will amount to an acceptance of the witnesses testimony, viz, where:<br />
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‘… the story is itself of an incredible or romancing character, or the abstention arises from mere motives of delicacy … or when counsel indicates that he is merely abstaining for convenience, eg to save time. And where several witnesses are called to the same point it is not always necessary to cross-examine them all.’<br />
<br />
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In the present case there is no material to apply the exceptions to the general rule on the failure to cross examine the witness as pointed out in Wong Swee Chin’s case and the failure to cross-examine Azizan and SAC-1 Musa on this point amounts to an acceptance of their testimony. The two instances of the conduct of Dato’ Seri Anwar is subsequent conduct as envisaged in s 8 of the Act and ought to be taken into account. It is admissible under s 8(2) and illustration (e) of the Act. Section 8(2) of the Act reads as follows:<br />
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The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.<br />
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Illustration (e) reads as follows:<br />
<br />
‘A is accused of a crime.’<br />
<br />
The facts that either before or at the time of or after the alleged crime A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence or prevented the presence or procured the absence of persons who might have been witnesses or suborned persons to give false evidence respecting it are relevant.<br />
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<br />
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The conduct of Dato’ Seri Anwar was put in evidence as evidence of conduct under s 8 of the Act. By asking Azizan to lie to the police it amounts to suborning witness to give false evidence and by asking SAC-1 Musa to stop investigation into his sexual activities and misconduct is tantamount to asking SAC-1 Musa not to obtain further evidence from witnesses which to my mind is to ask SAC-1 Musa to destroy evidence. This is evidence which is relevant to help the court to come to a finding of fact whether there was indeed fabrication of evidence in respect of sodomy alleged to be committed by Dato’ Seri Anwar Ibrahim. It is startling to note that the defence did not touch on this aspect of the evidence. Be that as it may, in my opinion, this evidence of conduct of Dato’ Seri Anwar is a circumstance telling against him which he has to explain. This evidence is relevant where it would lend support to show that the accused is guilty (see Chandrasekaran & Ors v PP [1971] 1 MLJ 153).<br />
<br />
For the above reasons and in the circumstances I find that the conduct of Dato’ Seri Anwar as described and referred to above is relevant and admissible and to that extend enhances the credibility of Azizan and corroborates his evidence on the allegation of sodomy committed against him.<br />
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At this stage it is appropriate for me to refer and to reconsider my earlier ruling in allowing the question posed to Azizan in examination in chief which was as follows:<br />
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<br />
Orang yang awak katakan meliwat awak lebih dari satu kali pada awal 1992, siapakah orang itu?<br />
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This question was objected to by the defence counsel on the ground that it is inadmissible and prejudicial to the accused. When I made the ruling, I did not focus my mind on the evidential value of that evidence. After a proper appraisal of the evidence, I agree with the learned counsel that the evidence is prejudicial. The evidence relates to allegations by Azizan of ‘liwat’ on other occasions. It is mere allegations and the truth of which has not been proved. It cannot therefore amount to similar facts evidence and is therefore inadmissible on the principle laid down in the celebrated case of Makin v Attorney General for New South Wales, where Lord Herschell LC said:<br />
<br />
<br />
<br />
It is undoubtedly not competent for the prosecution to adduce evidence of criminal acts other than those covered in the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it is relevant to an issue before the jury and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed, or, to rebut a defence which would otherwise be open to the accused.<br />
<br />
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I therefore now change my earlier ruling and disallow the questions to be asked as the answer would be prejudicial to the accused.<br />
<br />
(iv) Sukma’s confession (P4) — whether it amounts to corroboration<br />
<br />
The prosecution also contended that the confession of Sukma also afforded corroboration of the evidence of Azizan. I have found the confession was voluntarily made and therefore admissible. I have also found that the relevant part of the confession which is in respect of the commission of sodomy by both Dato’ Seri Anwar and Sukma on Azizan is true and reliable. The court can therefore act on the confession. It is a piece of substantive evidence. The relevant part of the confession which has been produced earlier in this judgment clearly implicates not only Sukma (the maker of the confession), but also Dato’ Seri Anwar that both sodomized Azizan at Tivoli Villa which is the subject matter of the charges against the accused. I find therefore, that the confession (P4) sufficiently supports and corroborates Azizan’s evidence.<br />
<br />
Assuming that I am wrong that there was corroboration, I had in my mind the risk of convicting an accused on uncorroborated evidence. I warned myself of the dangers of convicting both accused on the sodomy charges on uncorroborated evidence of Azizan but nevertheless in this case, I am satisfied and convinced that the charges of sodomy against both accused have been proved beyond a reasonable doubt even though there was no corroboration. This principle had been laid down in Chiu Nang Hong v PP.<br />
<br />
(v) Whether the charge is false and fabricated<br />
<br />
It was contended by the defence that the charges on which Dato’ Seri Anwar and Sukma are being tried are false and fabricated. Mr Fernando, the leading Counsel for Dato’ Seri Anwar submitted that the present charges against both the accused are doomed to failure. He urged the court to consider very carefully why the date in the original charge ie May 1994 was amended to May 1992 (the first amendment) and subsequently amended to between January to March 1993 (the second amendment) in view of the evidence given by Azizan in respect of the dates. It is not disputed the amendments in respect of the dates were made. This is the prerogative of the prosecution to amend the charges under the law.<br />
<br />
The complaint of the defence is not on the right of the prosecution but the reason for the amendment. Azizan was asked in cross examination about the circumstances which led to the amendment of the charges. Azizan said he could not remember whether he told the police he was sodomized in 1994. It was pointed out by Mr Fernando that the amendment of the date from May 1994 to May 1992 was made because Azizan testified in the previous trial of Dato’ Seri Anwar that he was not sodomized after September 1992. The prosecution wanted a breathing space and amended the charge to May 1992. Mr Fernando also referred to the testimony of Azizan who said that he did not tell the police that he was sodomized one night in 1992. I have dealt with this evidence earlier and concluded for the reasons I had stated that whether Azizan told the police he was not sodomized in May 1992 is not relevant.<br />
<br />
This brings me to the question whether the amendment of the charges as they stand on which both accused are tried in this proceeding are false and fabricated. On the evidence of Azizan which I accepted, it is established beyond reasonable doubt that he was sodomized by Dato’ Seri Anwar and Sukma at Tivoli Villa between the months of January and March 1993. He denied the suggestion of the defence Counsel that his story that he was sodomized at Tivoli Villa as stated in the charges are not true. It is pertinent to note that the testimony of SAC-1 Musa clearly shows that Azizan without any hesitation told him that he was sodomized by both the accused at the place and time stated in the charges although Azizan could not remember the exact date. He gave reasons how he could remember the months as it was two or three months after he left as a driver to Datin Seri Dr Wan Azizah and Sukma has just moved into his apartment at Tivoli Villa. I accept the reasons given by Azizan as to how he could remember the months when the act of sodomy was committed.<br />
<br />
The ingredients to be proved<br />
<br />
I shall now deal with the ingredients to be proved in respect of the charges preferred against both the accused and then consider whether the prosecution has made out a case beyond reasonable doubt against them at the end of the prosecution case. Dato’ Seri Anwar faces a single charge whilst Sukma faces two charges. Dato’ Seri Anwar is being charged for voluntarily committing carnal intercourse against the order of nature with Azizan bin Abu Bakar, an offence punishable under s 377B of the Code (NMB Cap 45). Sukma faces two charges, firstly he is charged for abetting Dato’ Seri Anwar in committing the said offence punishable under s 109 read together with s 377B of the Code and secondly he is being charged with committing voluntarily carnal intercourse against the order of nature with Azizan bin Abu Bakar, an offence punishable under s 377B of the Penal Code. I shall deal first with the ingredient to be posed in the charge against Dato’ Seri Anwar and in the second charge against Sukma first as the offence alleged in the charges are similar.<br />
<br />
Section 377B of the Code, under which the charge against Dato’ Seri Anwar and against Sukma in the second charge, have been preferred reads as follows:<br />
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Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.<br />
<br />
<br />
<br />
Section 377A of the Penal Code provides:<br />
<br />
<br />
<br />
Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.<br />
<br />
Explanation — Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section.<br />
<br />
<br />
<br />
In order to prove the charge of committing carnal intercourse against the order of nature against Dato’ Seri Anwar and in the second charge against Sukma it is incumbent upon the prosecution to establish the following ingredients:<br />
<br />
<br />
<br />
(i) that the accused had carnal intercourse with a person; <br />
<br />
(ii) that such intercourse was against the order of nature; <br />
<br />
(iii) that the accused did the act voluntarily; <br />
<br />
(iv) that there was penetration. <br />
<br />
<br />
<br />
I shall now deal with these ingredients.<br />
<br />
(i) Whether both the accused had carnal intercourse<br />
<br />
It was submitted by counsels for both accused that the prosecution has failed to establish this ingredient as the evidence of Azizan bin Abu Bakar, the principal witness for the prosecution is not convincing and lacks corroboration. I have dealt at length with the evidence of Azizan and his credibility in an earlier part of this judgment. I had accepted the evidence of Azizan for the reasons which I have considered before arriving at that conclusion. To recapitulate it is sufficient to state that Azizan’s evidence show the details of how he was sodomized by both Dato’ Seri Anwar and Sukma at Tivoli Villa between the months of January and March 1993 at about 7.45 pm. His credibility was saved and there was a truth in his story.<br />
<br />
The defence counsel further submitted that the prosecution has failed to prove that both accused has committed the offence as there was no corroboration of Azizan’s testimony which is desirable in cases of sexual offences. I have considered this question of corroboration in an earlier part of this judgment where I found that there is corroboration in this case.<br />
<br />
I was therefore satisfied that the prosecution has successfully adduced sufficient evidence to prove beyond reasonable doubt that both Dato’ Seri Anwar and Sukma had committed carnal intercourse on Azizan. Thus the ingredient under (i) above has been proved beyond reasonable doubt.<br />
<br />
(ii) Whether such intercourse was against the order of nature<br />
<br />
The evidence of Azizan shows that both Dato’ Seri Anwar and Sukma has committed sexual connection with Azizan by the introduction of their respective penis into the anus of Azizan. This incident was clearly narrated by Azizan. In examination in chief Azizan said Dato’ Seri Anwar at first inserted his penis into his anus from the front when Azizan was lying on his back by lifting both of Azizan’s legs. Dato’ Seri Anwar’s penis remained in Azizan’s anus for about two minutes. Azizan complained he was in pain and Dato’ Seri Anwar then pulled out his penis from Azizan’s anus. Dato’ Seri Anwar then applied cream to his penis and Azizan’s anus. At the request of Dato’ Seri Anwar, Azizan changed his position to a ‘menonggeng’ (crouching) position. Dato’ Seri Anwar then introduced his penis into Azizan’s anus from behind in that position for quite sometime until he reached orgasm. In cross examination, Azizan denied the suggestion of En Fernando, the leading counsel for Dato’ Seri Anwar that he was not telling the truth and was not logical when he said that Dato’ Seri Anwar introduced his penis into his anus from in front. With respect, I disagree with the suggestion of the learned counsel for the simple reason that it is not something improbable or difficult to introduce one’s penis into the anus of another although it may not be an easy task to perform in reality.<br />
<br />
As regards Sukma, there is the evidence of Azizan (SP6) to show that the former sodomized the latter after Dato’ Seri Anwar. This was performed while Azizan was in the ‘menonggeng’’ position. In this regard, the record of proceedings reads as follows:<br />
<br />
<br />
<br />
Soalan : Semasa Dato’ Seri Anwar pergi ke bilik air siapa yang tinggal di bilik tidur? <br />
<br />
Jawapan: Saya dan Sukma. <br />
<br />
Soalan: Awak nampak Sukma dalam keadaan apa? <br />
<br />
Jawapan: Berbogel. <br />
<br />
Soalan: Adakah En Azizan tahu bila Sukma menanggalkan pakaiannya sehingga berbogel? <br />
<br />
Jawapan: Tidak tahu. <br />
<br />
Soalan: Ceritakan apa berlaku selepas itu. <br />
<br />
Jawapan: Sukma menghampiri saya dan menarik saya pada kedudukan menonggeng. <br />
<br />
Soalan: Macam mana dia menarik awak pada kedudukan menonggeng? <br />
<br />
Jawapan: Dia berada di tepi katil dan saya masih di atas katil. Dia menarik saya ke arah dia. Dia menarik semasa saya masih dalam keadaan menonggeng. <br />
<br />
Soalan: Apa berlaku seterusnya? <br />
<br />
Jawapan: Dia terus memasukkan zakarnya ke dalam jubur saya. Dia berdiri di tepi katil semasa dia memasukkan zakarnya ke dalam jubur saya dan saya berada dalam posisi menonggeng. <br />
<br />
Soalan: Berapa lama zakarnya berada di dalam jubur awak? <br />
<br />
Jawapan: Sehingga saya merasa air maninya keluar di dalam jubur saya. <br />
<br />
Soalan: Tetapi berapa lama zakarnya berada di dalam jubur awak sehingga air maninya keluar? <br />
<br />
Jawapan: Lebih kurang lima minit. <br />
<br />
<br />
<br />
Azizan’s evidence is supported by the confession of Sukma. In the confession Sukma stated ‘Selepas air mani Dato’ Seri Anwar keluar Azizan mengajak saya untuk melakukan liwat terhadapnya. Tapi saya tidak mencapai ke tahap maksimum’. It is to be noted what he said differs from what Azizan said in evidence. What Azizan said was it was Sukma who pulled him when he was in the ‘menonggeng’ position and introduced his penis into Azizan’s anus. Azizan never said he invited Sukma to perform the act. In any event, I am of the view that this contradiction is not material and is minor. The true fact is that Sukma did introduce his penis into Azizan’s anus. <br />
<br />
It is therefore clearly established by evidence that intercourse was performed by Dato’ Seri Anwar and Sukma on Azizan was against the order of nature. <br />
<br />
(iii) Whether both the accused did the act voluntarily<br />
<br />
This is the third ingredient to be proved by the prosecution. I am satisfied that on the evidence before this court, both accused committed the act of carnal intercourse against the order of nature voluntarily. There is no contrary evidence to show they were forced to commit the offence. On the other hand, the evidence of Azizan which remains uncontradicted clearly showed that Sukma invited him to his apartment on the day in question without telling Azizan the purpose for the invitation. In his confession Sukma said, inter alia, as follows:<br />
<br />
<br />
<br />
Saya pernah membawa Dato’ Seri Anwar Ibrahim ke rumah saya untuk bertemu Azizan (pemandu kereta Datin Seri) di rumah saya atas permintaan Dato’ Seri Anwar Ibrahim untuk melakukan hubungan sejenis. Rumah saya ini di Tivoli Villas.<br />
<br />
<br />
<br />
It is clear from what Sukma said in his confession the hidden purpose of inviting Azizan to his apartment was to assist Dato’ Seri Anwar to have carnal intercourse with Azizan at the request of Dato’ Seri Anwar Ibrahim himself. The act was completed. Under these circumstances the only logical conclusion to be made is that Dato’ Seri Anwar committed the act of sodomy at his own request and voluntarily. As for Sukma, I find that he committed the carnal act voluntarily. There is no evidence to show otherwise although in his confession he said that Azizan invited him to perform the act after Dato’ Seri Anwar whilst Dato’ Seri Anwar went to the bathroom. Azizan in his evidence never said that he invited Sukma to perform the act on him. He was not cross-examined on this issue. I accept Azizan’s evidence on this point as being more probable, reliable and credible because if it was he who invited Sukma to perform the act why should this happen immediately after Dato’ Seri Anwar has sodomized him in the presence of Dato’ Seri Anwar? Sukma was present in the same room at the time Dato’ Seri Anwar performed the act and he saw what was going on. Under these circumstances, it can safely be inferred that Sukma himself being a homosexual, had the urge to perform the act as well. Even assuming that Azizan did invite him to perform the act, this does pot mean that Sukma was forced to perform the act. He could have refused it. In the absence of other evidence to the contrary, I find that Sukma also performed the act voluntarily.<br />
<br />
(iv) Whether there was penetration<br />
<br />
Under the explanation to s 377A of the Penal Code penetration is sufficient to constitute the sexual connection necessary to the offence. The prosecution has to prove penetration as one of the elements. It was contended by the defence counsels for both Dato’ Seri Anwar and Sukma that the prosecution has not proved penetration as Azizan was not sent for medical examination. There is therefore no medical evidence to show penetration. On this point, I am of the view that one of the methods of proving penetration is by way of medical examination. I agree with the submission of the prosecution that penetration need not be proved by medical evidence alone. It can be proved by other evidence such as in this case by the direct evidence of Azizan which is supported by the confession of Sukma. The evidence of Azizan himself which I accept as reliable is the strongest evidence to prove penetration. The admission of Sukma in his confession stating that Dato’ Seri Anwar did sodomize Azizan until he reached orgasm is yet another piece of evidence to prove penetration. In this connection, it is useful to recollect what Sukma said in the confession in his own words which are as follows:<br />
<br />
<br />
<br />
Saya ada melihat hubungan mereka berdua sekejap-sekejap. Di antara hubungan mereka ianya terjadi oral dan liwat iaitu Dato’ Seri Anwar Ibrahim melakukan ke Azizan dengan menggunakan cream baby tanpa menggunakan kondom. Selepas air mani Dato’ Seri Anwar keluar Azizan mengajak saya untuk melakukan liwat terhadapnya. Tapi saya tidak mencapai ketahap maksimum. Semasa saya melakukan liwat ke atas Azizan Dato’ Seri Anwar berada di bilik air.<br />
<br />
<br />
<br />
I find that the prosecution has proved beyond reasonable doubt the element of penetration.<br />
<br />
It was also submitted by both counsels for Dato’ Seri Anwar and Sukma that it is incumbent upon the prosecution to prove potency of both the accused. The prosecution has not adduced evidence to prove potency of both accused. It has been said in the case of Gopala bin Rama (1896) Unrep Cr C 865 (a decision of the Bombay High Court) that penetration is only possible if the male organ had the power of erection, which, again, postulates that the man was potent (see Gour, Penal Law of India (10 Ed) Vol 4 at p 3237). As regard to the question of potency in Gopala’s case, the learned author commented:<br />
<br />
<br />
<br />
In Bombay it appears to have been laid down that potency of the accused must be proved in each case, but, it is submitted, this is not necessary, as potency being the usual and normal state of man, it will be presumed, until the contrary is established by the accused.<br />
<br />
<br />
<br />
In Ratanlal & Dhirajlal’s Law of Crimes (24th Ed) Vol 2, p 1800 the need for the prosecution to prove potency is considered as not being sound.<br />
<br />
The learned defence counsel in the present case also referred to Kesavan Senderan v PP [1999] 1 CLJ 343. It was pointed out that in that case the accused who was charged and convicted under s 377B of the Code, was sent to the doctor who conducted the potency test on him. The defence urged this court to consider the failure of the prosecution to adduce evidence to establish the potency of both the accused as fatal toils case. With due respect, I am unable to accept the contention that the failure to adduce such evidence is fatal to the prosecution case. In Kesavan’s case it was not the decision of the court that the prosecution must prove potency of the accused but that the result of the potency test would merely be one of the many pieces of evidence taken into consideration in deciding whether to believe the evidence of the complainant.<br />
<br />
The views of the learned judge appears to be in harmony with the views expressed by the learned authors in Gour, Penal Law of India and in Ratanlal & Dhirajlal’s Law of Crimes referred to earlier which is that it is not necessary that the potency of the accused must be proved in each case as potency will be presumed until the contrary is proved by the accused. I agree with these views and venture to add that if the defence of the accused is that he is impotent, it is up to him to establish that fact. For the reasons stated, I rule that it is not incumbent upon the prosecution to prove potency of both Dato’ Seri Anwar and Sukma to establish its case beyond reasonable doubt at the end of the case for the prosecution.<br />
<br />
Abetment<br />
<br />
I shall now consider the ingredients to be proved in the first charge against Sukma which states that he did abet in the commission of the offence by Dato’ Seri Anwar of carnal intercourse against the order of nature with Azizan bin Abu Bakar, an offence punishable under s 109 read together with s 377B of the Code.<br />
<br />
Section 109 reads: <br />
<br />
<br />
<br />
Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.<br />
<br />
<br />
<br />
Section 107 of the Code defines ‘abetment of a thing’ as follows: <br />
<br />
<br />
<br />
A person abets the doing of a thing who:<br />
<br />
(a) Instigates any person to do that thing;<br />
<br />
(b) Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or <br />
<br />
(c) Intentionally aids, by any act or illegal omission, the doing of that thing.<br />
<br />
Explanation 2: Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.<br />
<br />
<br />
<br />
The evidence adduced <br />
<br />
In order to prove the charge of abetment the prosecution has to establish that Sukma has done any one of the acts referred to in s 107 of the Code. <br />
<br />
To establish its case against Sukma on this charge the prosecution relies on the evidence of Azizan. I had ruled that the evidence of this witness is reliable, credible and acceptable. The question now to be considered is whether there is evidence adduced through this witness to show the complicity of Sukma in the abetment of the offence for which Dato’ Seri Anwar has been charged. The prosecution also relies on the accused’s own confession to prove the abetment. I shall deal with the evidence of Azizan first. In his testimony Azizan said that at about 3.00pm on the alleged date of the offence he met Sukma at Dato’ Seri Anwar’s house. Sukma’ invited him to visit his apartment at Tivoli Villa in Bangsar but he did not tell him the reason for the invitation nor did he tell Azizan that Dato’ Seri Anwar would be coming too. <br />
<br />
In his confession Sukma admitted that he brought Dato’ Seri Anwar to his apartment to meet Azizan at the latter’s request. In his own words which appears in the confession at pp 12–13 Sukma said: <br />
<br />
<br />
<br />
Dalam lebih kurang dua atau tiga tahun yang lalu waktu dan tahun yang tepat saya tidak ingat saya pernah membawa Datuk Seri Anwar Ibrahim ke rumah saya untuk bertemu Azizan (pemandu kereta Datin Seri) di rumah saya atas permintaan Dato’ Seri Anwar Ibrahim untuk melakukan hubungan sejenis. Rumah saya ini di Tivoli Villas tadi. Dianya terjadi seperti begini. Saya membuat janji kepada Azizan agar beliau datang ke Tivoli Villa pada pukul 7.30 petang. Pada pukul 7.00 petang saya menjemput Dato’ Seri Anwar Ibrahim dari rumah resmi beliau ke Tivoli Villas. Kami tiba di Tivoli Villa pada 7.15 petang, kurang lebih, dan pada 7.30 petang, Azizan datang ke rumah saya dengan kenderaan beliau sendiri.<br />
<br />
<br />
<br />
Azizan said he arrived at Tivoli Villa at about 7.15 pm. On arrival at the apartment he was startled when he saw Dato’ Seri Anwar was present there. Dato’ Seri Anwar performed the act of carnal intercourse on Azizan. It is also in Azizan’s evidence that Sukma was present at that time in the room and he was watching what was then going on. This evidence is supported by Sukma’s confession wherein he said at p 13: <br />
<br />
<br />
<br />
Setelah kami bertiga bersama, Dato’ Seri Anwar dan Azizan membuka baju masing-masing untuk mengadakan hubungan sejenis, saya ada melihat hubungan mereka berdua sekejap-sekejap.<br />
<br />
<br />
<br />
On the evidence, I am satisfied that Sukma was actually present in the room when the act of sodomy took place. It was the submission of the defence that mere presence of Sukma does not amount to abetment. According to the defence, there is no evidence whatsoever of instigation, conspiracy or aiding by Sukma to prove his participation in the commission of the offence by Dato’ Seri Anwar. The case of Shri Ram v State of UP AIR 1975 SC 175 was cited to support the contention that in order to constitute abetment the abettor must be shown to have ‘intentionally’ aided and abetted the commission of the crime and therefore active complicity is the gist of the offence of abetment under the third paragraph of s 107 of the Indian Penal Code (which is similar with s 107 of our Penal Code). <br />
<br />
The learned counsel referred to the case of Rajmal Marwadi v Emperor (1925) Nagpur 372 where it was held: <br />
<br />
<br />
<br />
It was long ago laid down in the case of Queen v Nim Chand Mookerjee that in order to convict a person of abetting the commission of a crime, it is not only necessary to prove that he has taken part in those steps of the transaction which are innocent, but in some way or other it is absolutely necessary to connect him with those steps of the transaction which are criminal.<br />
<br />
<br />
<br />
It has been held that a person who is present at the time of the commission of an offence and takes some part therein is said to aid and abet the commission of the offence. In Ferguson v Weaving [1951] 1 KB 814 at p 818 Lord Goddard CJ said: <br />
<br />
<br />
<br />
It is well known that the words ‘aid and abet’ are apt to describe the action of a person who is present at the time of the commission of an offence and takes some part therein.<br />
<br />
<br />
<br />
It has also been said in The Queen v Coney & Ors (1882) 8 QBD 534 to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to investigate the principal or principals. At pp 557–558 it is further said by Hawkins J: <br />
<br />
<br />
<br />
It is no criminal offence to stand by, a mere passive spectator of a crime even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place’ accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury for an aiding and abetting.<br />
<br />
<br />
<br />
In our local jurisdiction, it has been held in PP v Tee Tean Siong & Ors [1963] MLJ 201 that in the absence of other evidence, mere attendance at a show where ‘blue films’ are exhibited does not amount to abetment of the offence of exhibition under s 292(a) of the Code. Hashim J gave examples of the acts of the person or persons in attendance which amount to evidence of abetment. At p 201 the learned judge said: <br />
<br />
<br />
<br />
If, on the other hand, there is any cogent evidence that a few persons got together and incited or encouraged the possessor of the film to give a show by actually offering him payment in circumstances in which but for such incitement or encouragement there would have been no show, or where he provides knowingly the accommodation for such exhibition, such act will be caught by s 109 of the Penal Code and not otherwise. <br />
<br />
<br />
<br />
In the present case the evidence as stated earlier shows that Sukma invited Azizan to his apartment and made arrangement for Dato’ Seri Anwar to be present at the same time for the purpose of committing the act of sodomising Azizan. These are acts which connect Sukma with the steps of the transaction which are criminal as stated in Rajmal Marwadi and are also acts which show that Sukma intentionally aided and abetted the commission of the offence as envisage under the third limb of s 107 of the Code and are also acts done by Sukma to facilitate the commission of the offence under explanation 2 of s 107 of the Code. <br />
<br />
It is also established by evidence that Sukma was voluntarily and purposely present witnessing the commission of the offence by Dato’ Seri Anwar and offered no opposition to it or at least to express his dissent. Thus the presence of Sukma cannot be taken to mean mere presence but more to it, it would under the circumstances afford cogent evidence which would justify this court in finding that Sukma wilfully encouraged the commission of the offence and so aided and abetted it (see The Queen v Coney & Ors). <br />
<br />
Further there is also evidence in the confession that Sukma brought Dato’ Seri Anwar to his apartment for the purpose of allowing the latter to sodomize Azizan and such act of Sukma is evidence of active complicity on the part of Sukma and is caught by s 109 of the Code (see PP v Tee Tean Siong & Ors). The result is that I find as a fact that the prosecution has proved beyond a reasonable doubt that in fact and in law Sukma abetted Dato’ Seri Anwar in the commission of the act of sodomy on Azizan as particularized in the first charge against Sukma. <br />
<br />
Having regard to the totallity of the evidence adduced so far by the prosecution and after carefully considering the submission of counsels for both the accused and the prosecution, I am satisfied that the prosecution has successfully established a case beyond a reasonable doubt against Dato’ Seri Anwar and Sukma on the offences for which they are being charged. If they choose to remain silent at this stage which I hold they are perfectly entitled to do they can be convicted on the charges. As a consequence my order was that Dato’ Seri Anwar and Sukma were called upon to enter their defence on the charges against them. When the three alternatives were explained to them, both accused elected to give evidence on oath. <br />
<br />
The case for the defence<br />
<br />
Both Dato’ Seri Anwar and Sukma gave evidence on oath and they called a total of 29 other witnesses between them to testify on their behalf. I propose to deal briefly with the evidence of Dato’ Seri Anwar first. The relevant part of his evidence will be considered in detail when necessary later in this judgment when I deal with the defences of Dato’ Seri Anwar. His testimony started with his involvement in politics. He was elected as a member of Parliament in 1982 when he was 36 years old. He was appointed as a Deputy Minister in the same year. A year later in 1983 he became a member of the cabinet when he was appointed as a Minister of Culture Youth and Sports. In 1984 he was appointed as a Minister of Agriculture; 1986 as Minister of Education and in 1991 as a Minister of Finance. In 1993 he was promoted as the Deputy Prime Minister and concurrently holding the portfolio of Minister of Finance. His dismissal from the cabinet and from UMNO in September 1998 was an anticlimax to his meteoric rise in the political arena. <br />
<br />
The defence of Dato’ Seri Anwar substantially is that of alibi, denial that he went to Tivoli Villa and conspiracy to fabricate evidence. In addition the defence counsels raised the following issues in relation to Dato’ Seri Anwar’s defence which are as follows:<br />
<br />
<br />
<br />
(a) reviewing the ruling on the admissibility of Sukma’s confession (P4) and Azizan’s credibility. <br />
<br />
(b) that the charge against him is false and fabricated. <br />
<br />
(c) corroboration. <br />
<br />
(d) press statements in the newspapers.<br />
<br />
<br />
<br />
I now deal with the defence and the other issues raised separately. <br />
<br />
(1) The alibi<br />
<br />
It is contended by the defence that Dato’ Seri Anwar did not go to Sukma’s apartment in Tivoli Villa between January to March 1993, as state in his evidence. In this connection the evidence of Dato’ Seri Anwar runs as follows:<br />
<br />
<br />
<br />
Question: Saya katakan Dato’ Seri ada pergi ke pangsapuri Sukma di alamat Unit No 10–7–2, Tivoli Villa, Jalan Medang Tanduk, Bangsar di sebelah petang di antara bulan Januari dan Mac 1993? <br />
<br />
Answer: Tidak benar sama sekali. <br />
<br />
Question: Saya katakan kepada Dato’ Seri, Azizan ada datang ke pangsapuri tersebut apabila Dato’ Seri sudah berada di situ? . <br />
<br />
Answer: Tidak benar. <br />
<br />
Question: Saya katakan kepada Dato’ Seri bahawa Sukma berada di pangsapuri tersebut pada masa itu. <br />
<br />
Answer: Tidak benar. <br />
<br />
Question: Saya katakan kepada Dato’ Seri, lebih kurang jam 7.45 malam Dato’ Seri telah meliwat Azizan di dalam sebuah bilik di pangsapuri tersebut. <br />
<br />
Answer: Tidak benar. Fitnah jahat yang direka-reka oleh musuh-musuh politik saya. <br />
<br />
<br />
<br />
In support of the contention that Dato’ Seri Anwar did not go to Sukma’s apartment at the time he was alleged to have committed the offence as stated in the charge on which he is being tried evidence of alibi was adduced which forms one of his defences.<br />
<br />
To begin with En Karpal Singh in his submission adverted to the evidence of SAC-1 Musa who testified in cross examination that he was prepared to investigate further into the defence of alibi. It is to be recollected that the notice of alibi was given by the defence counsels for both accused based on the charges against both accused which stated the date of the alleged commission of the sodomy in May 1992. At the commencement of the trial when the charges against both accused were amended in respect of the date to between January to March 1993, En Karpal Singh applied for an adjournment to enable SAC-1 Musa to carry out further investigation into the alibi in view of the amendment. However, the learned Attorney General informed the court that he has advised SAC-1 Musa who said he was prepared to carry out the investigation that there is no necessity to carry out further investigation as the prosecution has the record of the movement of Dato’ Seri Anwar from 1992 right up to 1998. The learned Attorney General also indicated that in the event the defence is called and the defence of alibi is raised, it will be countered by evidence in the possession of the prosecution. It was argued by En Karpal Singh that having regard to the disclosure made by the learned Attorney General that the prosecution has knowledge of the movement of Dato’ Seri Anwar, it is incumbent on the prosecution to lead evidence on this issue even if the evidence would be against the prosecution. It was submitted that the failure of the prosecution to adduce evidence on the movement of Dato’ Seri Anwar between 1992 to 1998 is fatal and the court can conclude that both the accused are entitled to an acquittal.<br />
<br />
With due respect I am unable to agree with the submission of the learned counsel for the reason that I am of the view it is not necessary for the prosecution to adduce evidence of the movement of Dato’ Seri Anwar between 1992 to 1998 as this is not one of the ingredients of the charge. On the other hand, it is my considered view that it is for the defence to adduce evidence on the whereabouts of Dato’ Seri Anwar during that period in connection with the alibi of Dato’ Seri Anwar to create a reasonable doubt on the prosecution case. The submission of the learned defence counsel is therefore without merit.<br />
<br />
Having said that I shall now deal with the evidence adduced to support the defence of alibi of Dato’ Seri Anwar. A number of witnesses were called to testify on behalf of Dato’ Seri Anwar to show the alibi which covers the period between 4 February to 31 March 1993. It is the defence case that Dato’ Seri Anwar was not around in Kuala Lumpur around that period. Dato’ Seri Anwar in his evidence stated that he was in London from 4–9 February 1993 on an official visit to the United Kingdom accompanied by Tun Daim, Tan Sri Ali Abdul Hassan who was then the DG of the Economic Planning Unit, Dato’ Yaacob bin Abdul Hamid, a Treasury Officer and Khong Kim Yoon, a Bank Negara official.<br />
<br />
He left London for Paris in the evening of 9 February 1993. He was in Paris until the morning of 11 February 1993. He was accompanied by the same persons who were in London with him except Tun Daim and some personnel from the private sectors namely Tunku Adnan Mansor, Abdul Aziz Othman from Bank Bumiputra. Low Gee Teong from Asia Pacific Land and Dato’ Shaari Ramli. The purpose of this visit was to promote Labuan as an International Offshore Financial Centre.<br />
<br />
From Paris, Dato’ Seri Anwar proceeded to Frankfurt, Germany. He arrived in Germany on 11 February 1993 and remained there until 13 February 1993. From Frankfurt he left for home and arrived at Kuala Lumpur in the morning on Sunday 14 February 1993.<br />
<br />
En Mohd Zaid bin Ismail (SD14) who was at the material time the Pengarah Jabatan Hasil Dalam Negeri, Labuan testified that Dato’ Seri Anwar was in London, Paris and Frankfurt in the month of February 1993. He was one of the members of Dato’ Seri Anwar’s delegation. He left Kuala Lumpur for London on 6 February 1993. He confirmed that from London Dato’ Seri Anwar proceeded to Paris and Frankfurt. He attended together with Dato’ Seri Anwar the dialogue sessions with investors in London, Paris and Frankfurt.<br />
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On 16 February 1993 (Tuesday) he hosted a dinner for the delegates attending the OIC Conference in Kuala Lumpur. He left his house at 7.40 or 7.45 pm. The dinner ended at about 10.45 to 11.00 pm. Amongst the guests attending the reception was the Rector of International Islamic University and the Secretary General of the OIC.<br />
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On 17 February 1993 (Wednesday) he attended a poetry recital function at the Auditorium Dewan Bandaraya. He was there from 8.00 pm to about 11.00pm.<br />
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On 18 February 1993 (Thursday) he attended the Waltz Disney Ice Skating Show at Stadium Negara from 8.00 pm to about 11.30pm.<br />
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He left for Penang on 20 February 1993 and from there he left for Bangkok on 21 February 1993 and stayed there until 23 February 1993. To support this part of alibi he called En Jojie Samuel a/l MC Samuel, Salman bin Ahmad and Dato’ Zainal Abidin bin Alias to testify. En Jojie Samuel a/l MC Samuel, an Assistant Secretary, Ministry of Foreign Affairs in Kuala Lumpur was called as defence witness (SD 22). He confirmed that Dato’ Seri Anwar was on an official visit to Bangkok, Thailand from 21–23 February 1993 to attend a forum entitled ‘Towards One South East Asia in the 21 Century’. The itinerary of Dato’ Seri Anwar’s visit to Bangkok is exh D49.<br />
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En Salman bin Ahmad (SD 24) who was at the material time Pegawai Penasihat Kedutaan Malaysia in Bangkok and Dato’ Zainal Abidin bin Alias (SD 25) who was at the material time the Malaysian Ambassador to Thailand in their evidence confirmed that Dato’ Seri Anwar was in Bangkok from 21 February to 23 February 1993 attending the forum ‘Towards One South East Asia in the 21 Century’. They said in their evidence Dato’ Seri Anwar arrived in Bangkok on Flight MH 780 which left Penang at 1.20 pm. He left Bangkok for Kuala Lumpur on Flight TG 423 at 1.00 pm.<br />
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He returned to Kuala Lumpur on 23 February 1993 on the first day of Ramadhan. The month of Ramadhan in 1993 was from 23 February to 25 March 1993 and this period is excluded for the purpose of the alibi as Azizan in his evidence said the act of sodomy by Dato’ Seri Anwar did not take place during the month of Ramadhan.<br />
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From 24 March to 29 March 1993 Dato’ Seri Anwar was in Penang spending his Hari Raya there. In the evening on 29 March he attended an UMNO dinner function in Penang which was also attended by the then Menteri Besar of Johore, Tan Sri Muhyiddin Yassin and the then Deputy Chief Minister of Penang, Dr Ibrahim Saad. He returned to Kuala Lumpur the same night after the dinner. On 30 March 1993 he hosted an open house at his residence for Hari Raya which lasted from 9.00 or 9.30pm to 10.00 or 11.00 pm.<br />
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On 31 March 1993 he was at the residence of International Islamic University Rector, Dr Abdul Hamid Abu Sulaiman for Maghrib prayer and a gathering of about thirty Muslim scholars. The function ended at 10.30 or 11.00pm.<br />
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It is appropriate at this stage to state briefly the law on the defence of alibi. The defence of alibi is a legitimate defence and in fact is often the only evidence of an innocent man (see Vasan Singh v PP at p 414).<br />
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In Shanmugam v PP [1963] MLJ 125 it was held that where the defence to a criminal charge is an alibi, it is not necessary that the accused prove his guilt beyond reasonable doubt. All that he has to do is to cast a doubt upon the prosecution’s story; it is not necessary for this to be achieved that the evidence of the accused be corroborated.<br />
<br />
In Illian & Anor v PP [1988] 1 MLJ 421, it was held that as regards the defence of alibi, all that an accused person need to do is to raise a reasonable doubt that he was the person at the scene of the crime, the proper approach is for the trial judge to consider, at the close of the defence case whether he had succeeded in doing so.<br />
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Bearing in mind the law as stated above the question to be considered is whether Dato’ Seri Anwar has succeeded in raising a reasonable doubt that he was at the scene of the crime at the time as stated in the charge that is between January to 31 March 1993. It is clear that from Dato’ Seri Anwar’s evidence and the evidence of En Mohd Zaid (SD 14), En Jojie Samuel (SD 22), En Salman (SD 24) and Dato’ Zainal Abidin (SD 25) as stated above the defence has successfully established the alibi of Dato’ Seri Anwar covering the period from 4 February to 31 March 1993 with the exclusion of 15 February 1993 being a Monday. As regards 15 February (Monday) Azizan said in his evidence that he was at work the day before the said incident. I agree with the contention of the defence that on this evidence Monday would be excluded from the period as Azizan had also stated that he worked from Mondays to Saturdays. Now with respect to Friday (19 February) it was the contention of the defence that the incident could not have happened on a Friday as Azizan said he could not remember whether the day on which the sodomy by both the accused took place was a Friday. He said he performed Zohor prayer in his office on that day. This does not mean that the day could not be a Friday. It is not conclusive proof that if a person performed the Zohor prayer that day could not be a Friday as it does happen that a person may not go to Mosque for Friday prayer due to some reasons. I therefore disagree with the learned counsel’s contention that 19 February (Friday) is excluded. The prosecution did not challenge the alibi covering the said period. I therefore accepted the alibi for that period. It is to be remembered that the charge states that Dato’ Seri Anwar is alleged to have committed the act of sodomy on Azizan at 7.45 pm between January and March 1993. As the evidence of alibi adverted to above covers only the period from 4 February to March 1993 with the exclusion of Saturdays, Sundays and Mondays, we are left with the period from the whole of January to 3 February 1993 to be considered. There is no evidence adduced by Dato’ Seri Anwar or his witnesses to show his whereabouts from the whole of January to 3 February 1993. I therefore hold that the defence of alibi fails to raise a reasonable doubt as to his guilt or in the truth of the prosecution case.<br />
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(2) Denial by Dato’ Seri Anwar that he went to Tivoli Villa as stated in the charge<br />
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Dato’ Seri Anwar in his evidence denied he went to Sukma’s apartment at Tivoli Villa as alleged in the charge. This is a denial which I rejected in the face of overwhelming and convincing evidence of Azizan and Sukma. In his confession Sukma said that Dato’ Seri Anwar was in fact in Tivoli Villa where he committed the act of sodomy on Azizan.<br />
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(3) Conspiracy to fabricate evidence<br />
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One of the substantive defences of Dato’ Seri Anwar is that there was a political conspiracy to fabricate evidence against him. If it can be established that there was such a conspiracy, Dato’ Seri Anwar would be entitled to an acquittal. It was contended that there was a high level conspiracy to topple Dato’ Seri Anwar by procuring and using fabricated evidence. In trying to establish that there existed such a conspiracy to fabricate evidence Dato’ Seri Anwar himself gave evidence and called a number of witnesses. I shall now analyse the evidence adduced and decide whether there was in fact such a conspiracy to fabricate evidence.<br />
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Dato’ Seri Anwar alleged that the conspiracy to topple him involved the Prime Minister, Tun Daim Zainuddin, Dato’ Seri Rafidah Aziz, Tan Sri Rahim Thamby Chik, Dato’ Megat Junid, Datuk Aziz Shamsuddin, Tan Sri Tajuddin Ramli, Tan Sri Wan Azmi and Tan Sri Halim Saad. I reminded the learned counsel for the defence that a conspiracy to topple Dato’ Seri Anwar from his government and party posts are not relevant to the issues before the court. Political rivalry and toppling one another is common amongst politicians and is a norm in their daily activities. I also reminded the defence at the same time that a conspiracy to fabricate evidence against Dato’ Seri Anwar as far as the sodomy charge is concerned is undeniably relevant and the defence should therefore adduce evidence within that perimeter. Mr Fernando in fact appreciated this observation. Dato’ Seri Anwar said political and corporate figures were unhappy with him because he brought to the attention of the Prime Minister their wrong doings and misconduct including corrupt practices and abuse of power.<br />
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To support the allegation of conspiracy Dato’ Seri Anwar gave lengthy evidence and the relevant parts can be summarized as follows: He said he was very loyal to the Prime Minister and respected him. His relationship with the Prime Minister was very cordial in the beginning. He said that in 1997 when he was acting Prime Minister he came to know that some ministers and party leaders were not happy with his stand on issues concerning corruption, abuse of power and wastage of fund on mega projects. He had discussed these issues with the Director General of the Anti Corruption Agency and the Attorney General. Both of them had informed him that when a decision has been made by them to prosecute they had difficulties in doing so because the Prime Minister did not agree with them. Dato’ Seri Anwar continued his testimony and said that he had no choice but was forced to bring to the attention of the Prime Minister the issue of corruption when there was ample evidence and documents to support it.<br />
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Dato’ Seri Anwar testified that he began his discussion with the Prime Minister on the issue of corruption as early as in 1995 involving Tan Sri Rahim Thamby Chik when he handed to the Prime Minister the proposed charge against Tan Sri Rahim which was handed to him by the Attorney General in connection with a $39m in his name. He also testified that later in the same year at the request of the Prime Minister, he conveyed to Tan Sri Rahim that he had to resign as the Chief Minister of Melaka as there was an allegation that he was involved in a sex scandal with an underaged girl. Tan Sri Rahim wrote a letter of resignation in front of him. He also said that Tan Sri Rahim came to see him later at the end of 1995 seeking for his help to stop an investigation into his income tax affairs by the Jabatan Hasil Dalam Negeri. Dato’ Seri Anwar said he did not help him in this matter.<br />
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He further testified that he told the Prime Minister about Dato’ Seri Rafidah Aziz’s involvement in corrupt practices. He handed to him documents which were given by the Attorney General concerning alleged corruption involving Dato’ Seri Rafidah Aziz who was at that time and still is a minister in the administration. The allegation against Rafidah was that she was involved in corrupt practices and that there were proposed charges framed by the Attorney General’s Chambers against her. Dato’ Seri Rafidah Aziz came to know about his discussion with Dato’ Seri Dr Mahathir. She came to see Dato’ Seri Anwar a couple of times and at the meeting Dato’ Seri Rafidah raised the issue of her alleged involvement in corrupt practices which Dato’ Seri Anwar raised with Dato’ Seri Dr Mahathir. She was not happy with him and she appeared to give the impression that it was he who was instrumental in the initial investigation by the Anti-Corruption Agency and the subsequent proposed charges against her by the Attorney General’s Chambers. She also voiced her dissatisfaction over certain projects and she mentioned specifically Gunawan Steel. She was not happy with the way the Prime Minister and Tun Daim were handling the project. She was not happy with Tun Daim because he was awarded too many privatisation projects, land and shares. Dato’ Seri Anwar advised her to clarify with the Prime Minister about her complaints, but instead she wrote a letter (exh D12) to him. The letter discloses her dissatisfaction with the various accusations and insinuations about her integrity. She said inter alia in the letter that she was not worried but was simply fed up with the insinuations and allegations against her. She also stated that she wanted Dato’ Seri Anwar to talk to the Prime Minister about this and to convey to the Prime Minister that she was simply not interested in who gets what and all she cares about is that she does her work properly, ethically and responsibly. She was upset about the allegations levelled against her and she wanted Dato’ Seri Anwar to take up this matter with the Prime Minister. It is clear to me that this letter was written to voice her dissatisfaction with the way the Prime Minister was handling certain matters. It does not in any way show that she was angry with Dato’ Seri Anwar. Therefore the allegation by Dato’ Seri Anwar that Dato’ Seri Rafidah was angry with him and that was why she conspired with the others mentioned earlier to fabricate evidence against him is baseless.<br />
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The next point to be considered is the allegation levelled by Dato’ Seri Anwar against Tun Daim. Dato’ Seri Anwar also complained to the Prime Minister about Tun Daim. He testified that Tun Daim had received shares and cash more than US$600m from three corporate figures, namely Tan Sri Halim Saad, Tan Sri Wan Azmi Hamzah and Tan Sri Tajudin Ramli. He told the Prime Minister about this and handed to him the relevant documents in connection with this transaction. He claimed that no investigation or action was taken against Tun Daim by the Prime Minister. He further testified that Tun Daim played a very pronounced role in investigating the Prime Minister to remove him from the cabinet or party posts. He said Tun Daim instigated the Prime Minister to remove him to protect his business empire. He asked Tun Daim why he was so concerned in asking him to resign and to plan with the Attorney General the charges against him. It is in evidence that Tun Daim informed Dato’ Seri Anwar on 12 August 1998 in the morning before the cabinet meeting that the Attorney General had told him that he (Dato’ Seri Anwar) would be prosecuted immediately. This evidence is admissible to show the fact that Tun Daim told Dato’ Seri Anwar that he would be prosecuted but not as to its truth as neither the Attorney General nor Tun Daim were called to give evidence on this issue.<br />
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Dato’ Seri Anwar gave a number of other instances of Tun Daim’s wrong doings which he told to the Prime Minister to show that Tun Daim was unhappy with him. I do not find it necessary to deal with these instances as I find there are other evidence to show Tun Daim’s attitude towards Dato’ Seri Anwar. To my mind the instances were referred by Dato’ Seri Anwar in his evidence to highlight his displeasure with Tun Daim. Whatever wrong doings Tun Daim may have committed is not relevant to the issue before this court. What is relevant is whether as a result of what Dato’ Seri Anwar had told to the Prime Minister about Tun Daim, Tun Daim was angry with Dato’ Seri Anwar and conspire to fabricate evidence. I find there is no evidence that Tun Daim conspired to fabricate evidence. Dato’ Seri Anwar also said that he came to know Tun Daim met Umi Hafilda in pursuance of the conspiracy to fabricate evidence. This again, sad to say, is mere allegations. There is no evidence to show there was such a meeting and what was discussed between them. The evidence therefore does not help the defence to show there was a conspiracy to fabricate evidence involving Tun Daim. Now I move onto consider the role of Dato’ Megat Junid. Dato’ Seri Anwar reported to the Prime Minister that Dato’ Megat Junid was trying to influence the Attorney General and the judiciary to protect Dato’ Seri Rafidah Aziz and to reduce the proposed charges against her. This is a wild allegation and which is very mischievous. Dato’ Seri Anwar tried to refer to a letter written by Dato’ Megat Joned dated 21 September 1994 addressed to the Prime Minister. The Attorney General objected to the admission of this letter on the ground that it is not relevant to the present case. It concerns a case involving a senior officer attached to Dato’ Seri Rafidah Aziz’s ministry. It does not concern her and is therefore totally irrelevant. Mr Fernando argued that the letter is relevant as investigation has started. To this Dato’ Ghani for the prosecution replied that the letter was written on 21 September 1994 before any recommendation was made concerning Dato’ Seri Rafidah Aziz. After hearing the arguments, I ruled the letter is not relevant and ordered that it should not be marked as an exhibit.<br />
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Another point raised by Dato’ Seri Anwar with the Prime Minister concerning Dato’ Megat Junid was his alleged involvement in the murder of one Mustakizah and his gambling habit in the office. According to Dato’ Seri Anwar, Dato’ Megat Joned was very uneasy when he learnt that Dato’ Seri Anwar had informed the Prime Minister about this. He also told the Prime Minister that Dato’ Megat’s son was allotted shares by Dato’ Seri Rafidah Aziz. Dato’ Seri Anwar also testified that he was informed by the Special Branch that Dato’ Megat Junid was one of those involved in distributing the poison pen letters about him. Dato’ Megat Junid came to see him and said that he was not involved in distributing the letters but there is a possibility that his wife Ziela may be involved. Dato’ Seri Anwar said that the Special Branch’s report sent to the Prime Minister stated that Dato’ Megat Junid was involved in the conspiracy but was denied by Dato’ Seri Megat Junid.<br />
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The other person suspected by Dato’ Seri Anwar as one of the conspirators to fabricate evidence against him is Dato’ Aziz Shamsuddin who was the Prime Minister’s political secretary at the material time. Dato’ Seri Anwar testified he informed the Prime Minister that from what he gathered from the head of the Special Branch he suspected that Dato’ Aziz Shamsuddin was involved in a conspiracy to topple him by soliciting the help of Taib Salamon and BK Tan to defame him. He also informed the Prime Minister that Edaran Positif, a company owned by Dato’ Aziz’s son, Edy Aziz applied for a big contract with Angkasapuri which was not approved by the treasury. He further alleged that there was bad blood between Tan Sri Rahim Thamby Chik, Dato’ Seri Rafidah Aziz, Tun Daim Zainuddin, Dato’ Megat Junid and Dato’ Aziz Shamsuddin and Dato’ Seri Anwar as a result of his reports of corrupt practices and wrong doings against them to the Prime Minister. They were angry with him and conspired to fabricate evidence against him. <br />
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To determine whether there was a conspiracy to fabricate evidence involving those people mentioned by Dato’ Seri Anwar, it is necessary to scrutinize the evidence adduced by the witnesses called by the defence. In attempting to establish that there was such a conspiracy the defence called as witnesses Raja Kamaruddin bin Raja Abdul Wahid (SD6), DSP Zull Aznam bin Hj Haron (SD15), Abdullah Sani bin Said (SD17), Ma’amin bin Latip (SD18), Jamal Abder Rahman (SD19), Mohd Azmin bin Ali (SD21), Norazman bin Abdullah (SD28), Dato’ Shafee bin Yahya (SD30) and Manjeet Singh Dhillon (SD31). I shall now deal briefly with the relevant testimonies of these witnesses.<br />
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First, the testimony of Raja Kamaruddin bin Raja Abdul Wahid (SD6) (Raja Kamaruddin) who was at the material time Ketua UMNO Cawangan Bukit Seri Andalas in Kelang, Selangor. The importance of the evidence of this witness, if it is admissible, would show the active role of Dato’ Aziz Shamsuddin in fabricating of evidence against Dato’ Seri Anwar. He testified that four days after the UMNO general assembly in 1998, he was called by Dato’ Rais Zainuddin, a friend whom he has known since 1984/85, to his office. At that time three other UMNO activists namely Zul, Haji Zaharudin, and Omar were also present. He said he was told that there was a directive from Dato’ Aziz Shamsuddin, who was at the material time the political secretary to the Prime Minister, to prevent (menyekat) Dato’ Seri Anwar from becoming the Prime Minister. They had four meetings amongst themselves. He also said that on 26 June 1998 at about 11.45am they were brought by Dato’ Rais Zainuddin to Dato’ Aziz Shamsuddin’s office which was situated at the Prime Minister’s Department. According to this witness Dato’ Aziz Shamsuddin recruited all five of them namely Dato’ Rais Zainuddin, Zul, Haji Zaharudin, Omar and he himself to be members of the conspiracy. Dato’ Aziz Shamsuddin assigned to him the task of carrying out the political assassination of Dato’ Seri Anwar. He further testified that Dato’ Aziz Shamsuddin told him, inter alia:<br />
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(a) to set up an office as a centre for operation to carry out the political assassination of Dato’ Seri Anwar. All the expenses would be looked after by Dato’ Aziz Shamsuddin.<br />
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(b) to make plans to topple Dato’ Seri Anwar from becoming the Prime Minister.<br />
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(c) to topple Dato’ Seri Anwar’s supporters before the UMNO general assembly in 1998.<br />
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(d) not to concern himself with the book ‘50 Dalil Kenapa Anwar Tidak Boleh Menjadi Perdana Menteri’ and the question of sodomy (liwat) as this is his (Dato’ Aziz’s) responsibility. On this issue he was asked as follows:-<br />
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Question: Apakah arahan yang diberi oleh Dato’ Aziz Shamsuddin? <br />
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Answer: Dia arahkan saya sebagai seorang yang bertanggungjawab atas political assassination. Dia beri arahan kepada saya jangan masuk campur tentang Buku 50 Dalil dan tentang perkara liwat. Dia kata itu semua tanggungjawab dia. <br />
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Question: Apakah lagi arahan dan perbincangan di perjumpaan itu khasnya berkenaan dengan tuduhan liwat dan aduan liwat terhadap Dato’ Seri Anwar? <br />
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Answer: Bersabit dengan perkara liwat dan aduan liwat dalam perbincangan dengan Dato’ Aziz beliau mengatakan semua surat-surat dari Azizan dan Umi sebelum dihantar kepada Perdana Menteri, dia telah sken (scan) dan ubah isi kandungan surat-surat itu dan fotostat dan diedarkan kepada agen-agen dia diseluruh negara untuk memburukkan Dato’ Seri Anwar Ibrahim. <br />
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It appears that the purpose of adducing this evidence is to show that Dato’ Aziz Shamsuddin was responsible for the fabrication of evidence by scanning all the letters written by Umi and Azizan and by altering the contents. It was not explained which were the letters referred to but it can inferred these were the letters written by Umi Hafilda to the Prime Minister alleging sexual misconduct on the part of Dato’ Seri Anwar and the ‘surat akuan bersumpah’ dated 5 August 1997 (P5) by Azizan. It has to be recognized and accepted that we are not concerned with the letter written by Umi Hafilda as it is irrelevant to the issue in this case. We are only concerned with P5 which contained allegations of sodomy (liwat) by Dato’ Seri Anwar on Azizan. It must be appreciated that P5 was admitted only for the purpose of showing consistency of Azizan’s evidence on the question of sodomy (liwat) by Dato’ Seri Anwar and not as to its truth. Even assuming that the letter which was alleged to have been scanned and the contents have been altered by Dato’ Aziz Shamsuddin was P5 the allegation was most improbable as the evidence of Dato’ Seri Anwar shows that P5 was given to the Prime Minister by Megat Joned. There was no evidence to show that P5 was received by Dato’ Aziz Shamsuddin before it reached the Prime Minister. Under these circumstances, it cannot be true that Dato’ Aziz scanned and altered the contents of P5 as he had no opportunity to do so. Even assuming that he did so the letter alleged to be altered was never produced and there was no evidence it was even shown to Raja Kamaruddin. I therefore find as a fact that P5 was never altered as alleged. If there were any other letters written by Azizan and the contents of which were altered by Dato’ Aziz Shamsuddin surely the defence could have produced them at this trial. As no such letters were produced, I find as a fact that there existed no such letters. The allegation of fabricating of evidence by alterations of the contents of the letters written by Azizan cannot therefore be true and cannot be accepted. It was merely the fertile imagination of Raja Kamaruddin in a futile attempt to show there was a conspiracy to fabricate evidence.<br />
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The evidence of Raja Kamaruddin is based on what was told to him by Dato’ Aziz Shamsuddin about the fabrication of evidence. Raja Kamaruddin merely told the court what Dato’ Aziz Shamsuddin directed him to do but he did not say the manner how the fabrication of evidence against Dato’ Seri Anwar to be carried out. The truth of what Dato’ Aziz Shamsuddin told him has not been verified as Dato’ Aziz was not called as a witness. The evidence given by Raja Kamaruddin on the fabrication of evidence by Dato’ Aziz Shamsuddin is therefore hearsay and not admissible.<br />
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The law on hearsay evidence has been clearly established by abundant authorities. I need refer only to Subramaniam v PP [1956] MLJ 220 where Mr LMD de Silva said at p 222:<br />
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Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.<br />
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Raja Kamaruddin further said in his evidence that he did not want to get involved in the alleged conspiracy to fabricate evidence. He reported to Dato’ Seri Anwar about what Dato’ Aziz Shamsuddin told him about the fabrication of evidence. He made a report to Dato’ Seri Anwar (exh D38A). In the report, however, he did not mention that Dato’ Aziz Shamsuddin told him that he (Dato’ Aziz) were involved in the conspiracy to fabricate allegation of sodomy against Dato’ Seri Anwar. If it is true that Dato’ Aziz told him that he was involved in the conspiracy to fabricate evidence, such an important and serious matter would be mentioned in D38A. He also sworn a statutory declaration containing details of the alleged conspiracy to fabricate evidence. I am of the opinion that Raja Kamaruddin’s evidence is tailored to support the defence of fabrication of evidence advocated by Dato’ Seri Anwar.<br />
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The next witness called by the defence was DSP Zull Aznam bin Haji Haron (SD15) (Zull Aznam) who was the ADC to Dato’ Seri Anwar from 1997 to 1998. Zull Aznam’s evidence may be summarized as follows. Azizan was brought to Dato’ Seri Anwar’s official residence at night on 18 August 1997 (he is not too sure of the date) by Dato’ Said Awang, who was at that time Pengarah Cawangan Khas and his deputy Dato’ Amir Junus. Azizan came to Dato’ SeriAnwar’s residence as arranged by Dato’ Said Awang and Dato’ Amir Junus. They met Dato’ Seri Anwar for about 20 to 25 minutes. He was not present during the meeting. He did not know what was discussed by them. He sent Azizan back to his house after the meeting.<br />
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He further testified that in June 1998 (he cannot remember the exact date) he was informed by Dato’ Seri Anwar’s driver, Abdullah Sani that Azizan wanted an appointment to meet Dato’ Seri Anwar to seek his help in connection with a tender made by one Taufik Yap Abdullah. Dato’ Seri Anwar flatly refused to see Azizan and directed that Azizan could meet En Mohamad Ahmad, his setiausaha sulit kanan at that time about the matter. He arranged for Azizan to meet En Mohamad Ahmad.<br />
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About a week later Azizan tried again to meet Dato’ Seri Anwar. Dato’ Seri Anwar was again reluctant to meet Azizan. He further said that later with reluctance Dato’ Seri Anwar agreed to meet Azizan. Azizan came to Dato’ Seri Anwar’s house one night in June 1998. They met for about 20 minutes. He did not know what was discussed by them as he was not present at the meting. He met Azizan as soon as Azizan came out of Dato’ Seri Anwar’s house after the meeting. He alleged that Azizan told him that during the meeting with Dato’ Seri Anwar, Azizan denied he was involved in the production and publication of the book 50 Dalil Mengapa Anwar Tidak Boleh Menjadi Perdana Menteri. He said he asked Azizan why he wrote P5 and Azizan replied to use his own words ‘Dulu abang, saya dijanjikan dengan wang’ and added that he had to do it as he has no choice.<br />
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At the request of Dato’ Seri Anwar, Zull Aznam lodged a police report on 15 August 1997, which is Report No 2706/97 (exh D44). He wrote this report in the office of Dato’ Said Awang in the presence of Dato’ Said, SAC-1 Musa, ACP Mazlan Din and ASP Zulkifly Mohamad. He said he was told by Dato’ Said Awang and SAC-1 Musa what to include in the report.<br />
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In cross examination Zull Aznam said he gave two statements under s 112 of the CPC to ASP Mazli bin Mohamad on 30 October 1998 and 4 December 1998. The learned deputy PP, Dato’ Azhar indicated to the court his desire to impeach this witness. A copy of the statement was shown to me. At p 20 the witness stated ‘Saya juga tidak tahu menahu apa yang dibincangkan oleh mereka berdua’. I then pointed out to the learned deputy PP there is nothing inconsistent with this to the oral evidence he had given in this court. The learned deputy PP did not proceed with the impeachment of this witness.<br />
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Zull Aznam was further asked in cross examination why he did not lodge a police report when Azizan told him that he was promised money and that was why he made allegations against Dato’ Seri Anwar. He explained he did not make a police report because he was not sure of the truth of what Azizan had told him. He agreed that what Azizan told him was very serious and it amounts to corruption. He said he did not ask Azizan who promised him to give the money. He said he gave another statement under s 112 of the CPC to ASP Mazli bin Mohamad on 4 December 1998 and one statement earlier also under the same section to ASP Zulkifly Mohamad on 2 July 1998. He admitted that in his statements to the police, he never mentioned that Azizan told him he made allegations against Dato’ Seri Anwar because he was promised money (dijanjikan dengan wang). He said he knew Azizan was arrested before 18 August 1997. He confirmed that on 2 September 1997 SAC-1 Musa requested him to contact the witnesses in connection with the report (D 44) which he had lodged and that SAC-1 Musa informed him he wanted to record a statement from him under s 112 of the CPC. He informed Dato’ Seri Anwar about SAC-1 Musa’s request. He also testified that SAC-1 Musa came to see Dato’ Seri Anwar at the latter’s office at about 11.00 am on the same day. He said no statement was taken from him in connection with D44. In the report he mentioned about a letter entitled ‘Talqin Terbuka Untuk Anwar Ibrahim’ (IDD 21) which was given to him by one of the staff in Dato’ Seri Anwar’s office. In re-examination Zull Aznam explained he did not state in any of his statement to the police that Azizan told him he was promised money because he was not asked about this.<br />
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It is the case for the defence that Azizan admitted to Zull Aznam that he made the allegation of sodomy against Dato’ Seri Anwar in return for money. It was submitted by Mr Fernando, the leading counsel for Dato’ Seri Anwar that Zull Aznam’s evidence taken in isolation is enough for the court to acquit both the accused. He urged the court to accept the evidence of Zull Aznam as he is a witness of truth.<br />
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In assessing Zull Aznam’s evidence the court must also consider the evidence of Azizan on the same issue namely whether he told Zull Aznam he made the allegations against Dato’ Seri Anwar in return for money. When giving evidence Azizan said he did not meet Zull Aznam after he had met Dato’ Seri Anwar. He was asked in cross examination:<br />
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Question: Adakah kamu menjumpai dia selepas awak menemui Dato’ Seri Anwar? <br />
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Answer: Tidak ada. <br />
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Question: Adakah kamu jumpai dia sebelum kamu menemui Dato’ Seri Anwar pada occasion itu? <br />
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Answer: Ada. <br />
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Azizan further denied that he manufactured (mereka-reka) the story of liwat because of money. He was asked:<br />
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Question: Adakah kamu memberitahu beliau bahawa kamu merekakan perkara ini untuk wang? <br />
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Answer: Tidak. <br />
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Question: Saya katakan kepada kamu, kamu memberitahu ASP Zull Aznam bahawa kamu mereka-reka perkara ini kerana kamu dijanjikan wang? <br />
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Answer: Tidak setuju. <br />
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It is clear that there are two versions in respect of the issue whether Azizan told Zull Aznam that he manufactured (mereka-reka) the story of liwat because of money. According to Azizan he never told this to Zull Aznam whilst the latter said that Azizan told him this after he met Dato’ Seri Anwar at the end of June 1998. It is interesting to note that Dato’ Seri Anwar said in his evidence Zull Aznam told him in 1997 that:<br />
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Selepas Azizan berjumpa saya memohon maaf dan menyatakan kalau beliau membuat tuduhan seperti itu beliau gunakan istilah ‘Murtad’ dan bila beliau keluar dari rumah bersama Zull Aznam beliau memberitahu Zull Aznam terdapat faedah atau keuntungan yang melibatkan beliau terlanjur membuat dakwaan atas desakan Umi Halfida.<br />
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This evidence of Dato’ Seri Anwar contradicts what Zull Aznam said that is Azizan told him this after the meeting with Dato’ Seri Anwar at the end of June 1998. This contradiction has not been explained. Under these circumstances and in view of the evidence of Azizan denying he did not meet Zull Aznam after his meeting with Dato’ Seri Anwar at the end of June 1998 and denying he ever told Zull Aznam that he was promised money to make the allegations of sodomy against Dato’ Seri Anwar and looking at Zull Aznam’s evidence as a whole, I am inclined to the conclusion that Zull Aznam’s testimony is suspect. I have to treat his evidence with caution. My conclusion is further fortified by the fact that if Azizan did confess to Zull Aznam that he was promised money to fabricate evidence surely one would expect Zull Aznam would tell Dato’ Seri Anwar about this who would be expected to report this matter to the police so that an investigation could have been conducted or for that matter Zull Aznam himself should have lodged a police report as the alleged admission of Azizan that he made the allegations of sodomy against Dato’ Seri Anwar because of money as claimed by Zull Aznam is very material to the defence. If it is true that Azizan was paid for making the allegations that would create a doubt in the prosecution case. Zull Aznam explained that he did not lodge a police report on what Azizan was alleged to have told him because he was not sure whether what Azizan told him was true. I find it very difficult to accept this explanation because as a senior police officer it would be beyond comprehension that he would not take further action on this matter. The least expected of him was to lodge a police report. Another point to be noted is that Zull Aznam never mentioned to ASP Mazli and ACP Zulkifly about what Azizan told him. On the evidence as a whole, I find as a fact that Azizan did not tell Zull Aznam that he made the allegations of sodomy against Dato’ Seri Anwar because of money. I therefore attach no weight to Zull Aznam’s evidence on this issue.<br />
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The defence also called Ma’amin bin Latip (SD18) to give evidence. The gist of his evidence is that Azizan told him that he was never sodomized by Dato’ Seri Anwar. He testified that he was introduced to Azizan by Abdul Rahim bin Dahalan (Rahim King). Rahim King told Ma’amir ‘Awak tengok-tengok-lah dia kawan lama saya. Dia tidak ada saudara-mara di Melaka’. He admitted that Rahim King gave him some money but denied that he was paid to keep an eye on Azizan. He said Rahim King gave him the money to assist him because his son was ill at that time. He admitted that he did go with Abdul Rahim to accompany Azizan to a lawyer’s office at Jalan Masjid India twice. He confirmed that Rahim King asked Azizan to make a statutory declaration.<br />
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He further testified that Azizan told him that he (Azizan) was defamed (difitnahkah) in the book 50 Dalil inter alia that he was sodomized by Dato’ Seri Anwar. Azizan was not asked about this when he gave evidence. Azizan referred to Ma’amin but said he only told him he wanted to start a new life and nothing more. He did not mention about sodomy at all. For this reason I rule that Ma’amin’s evidence on this issue is hearsay as the purpose of introducing the evidence is to establish the truth of what was alleged to have been said by Azizan to Ma’amin. I therefore find that the evidence of Ma’amin is worthless as it does not establish the fact that Azizan made an admission to Ma’amin that he was not sodomized by Dato’ Seri Anwar.<br />
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The next evidence to be considered is that of Abdullah Sani bin Said (SD17) who at the material time was the driver of Dato’ Seri Anwar since 1983. Azizan is his close friend. In June 1998 Azizan came to visit him in his house as he had met with an accident. He testified that Azizan told him he wanted to see Dato’ Seri Anwar Ibrahim. Abdullah Sani informed Zull Aznam (SD15) who finally arranged for Azizan to meet him. Abdullah Sani asked Azizan about the sodomy (liwat). In answer Azizan denied he was sodomized by Dato’ Seri Anwar — to quote Abdullah Sani’s own words ‘Dia menafikan yang dia diliwat’.<br />
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Mr Gurubachan submitted that the evidence of this witness corroborates Zull Aznam’s evidence that Azizan wanted to see Dato’ Seri Anwar in June 1998. It was also submitted that the conduct of Azizan is contrary to the allegation of sodomy and is consistent with innocence of Dato’ Seri Anwar. It was also submitted that if a person is a victim of sodomy, he would not want to have anything to do with Dato’ Seri Anwar.<br />
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This submission to my mind is a simpliciter and the fact that Azizan went to see Dato’ Seri Anwar does not mean that he was not sodomized. He went there for other purposes. It is in evidence when he met Dato’ Seri Anwar they discussed about the death of Azizan’s wife and Azizan said he did not accuse Dato’ Seri Anwar was involved as his wife died as a result of an accident. Dato’ Seri Anwar asked him to deny his allegations he had made against the former if the police asked him about it. On the facts and evidence of this case, it cannot be said with honesty that the conduct of Azizan in visiting Dato’ Seri Anwar is contrary to the allegation of sodomy. He went there for a purpose which had been mentioned earlier.<br />
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It is not in dispute that Azizan went to see Dato’ Seri Anwar in June 1998 and this evidence is acceptable. The importance of the evidence of this witness is in respect of the alleged admission of Azizan that he told the witness he was not sodomized by Dato’ Seri Anwar. It has to be observed that some of the witnesses for the defence notably Zull Aznam, Ma’amin and this witness gave evidence to the effect that Azizan had told them he was not sodomized. Azizan denied that he ever told these witnesses that he was not sodomized. The evidence of Abdullah Sani on the issue whether Azizan told him he was not sodomized by Dato’ Seri Anwar is hearsay. The truth of what Azizan is alleged to have said to Abdullah Sani has not been verified as Azizan was never asked on this issue. In cross examination, he admitted that he said in the earlier trial of Dato’ Seri Anwar when he gave evidence that Azizan never told him about his problem and that Azizan only spoke to him over the phone and he did not know whether Azizan contacted Zull Aznam. In the present case, he testified that Azizan not only spoke to him, but visited him in his house as he was sick. The evidence of Abdullah Sani is suspect under these circumstances. I am inclined to believe that the evidence of Abdullah Sani was tailored to accommodate the defence of conspiracy to fabricate evidence especially by Azizan. I therefore attach no weight to his evidence.<br />
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Now I shall deal with the evidence of the next witness Jamal Abder Rahman (SD19), the owner of a limousine company in Washington. He testified that at the material time he had a contract with the Malaysian Embassy in Washington to provide limousine services to visiting VIPs including royalties from Malaysia. He further said that he met a Malaysian Diplomat in Washington by the name of Mustapha Ong. Sometime in 1998 he drove this diplomat to New York. During the journey Mustapha Ong asked him whether Dato’ Seri Anwar had made any sexual passes on him. He alleged that Mustapha Ong further said ‘If you say that he made passes on me we will make money’. Mustapha Ong also said ‘Why don’t you say that you brought some girls and boys to him so that we can get money’. He was very upset on hearing what Mustapha Ong said to him.<br />
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He dropped Mustapha Ong at a Malaysian diplomat’s house at the first Street, on the East side. The Malaysian diplomat came out and met them. He handed a booklet to Mustapha Ong who asked him (Jamal) to sign and Mustapha Ong said ‘Why don’t you sign this and we can make up to US$200,000. He did not sign the booklet and retorted ‘You change the name from Jamal to Mustapha Ong and say that Anwar Ibrahim make sexual passes at you, made love to you, say anything and you make the money. Have a good day’.<br />
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He then left New York for Washington. On arrival at Washington DC, he went straight to see Dato’ Dali who was then the Malaysian Ambassador in Washington. He told Dato’ Dali exactly what transpired between Mustapha Ong and him during the journey to New York. Dato’ Dali was very furious and assured Jamal that neither he himself (Dato’ Dali) nor the Malaysian Embassy has anything to do with it. Three months later Jamal went to see a friend of Dato’ Seri Anwar by the name of Sheikh Taha who was at that time the President of the Islamic University in Northern Virginia. He told Sheikh Taha what transpired between Mustapha Ong and him. He was advised to make an affidavit which he did. He did not know what happened to the affidavit after that.<br />
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It was submitted by Mr Fernando the evidence of Jamal Abder Rahman is relevant to show the level and intensity of efforts made to procure fabricated evidence against Dato’ Seri Anwar. This effort went even beyond the shores of Malaysia in the United States and the perpetrators are Malaysians.<br />
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It is to be noted that the evidence of Jamal Abder Rahman in substance is that he was asked to fabricate evidence by Mustapha Ong for a reward. He refused to do so. The evidence of this witness, if true, would show only an attempt by Mustapha Ong to procure fabricated evidence by using Jamal Abder Rahman. There was in fact no fabrication of evidence. In any event the evidence of Jamal Abder Rahman is hearsay as regards the truth as Mustapha Ong was not called despite the assurance by Mr Fernando he would be called. I am aware that no adverse inference can be drawn against the defence for failure to call a witness. There is no duty on the defence to call any evidence for all he has to do is to raise a reasonable doubt: see Goh Ah Yew v PP [1949] MLJ 150. In Lim Kah Wan v PP [1985] 2 CLJ 473 Edgar Joseph J (as he then was) stated the law with regards to adverse inference to be drawn against the accused at p 477 as follows:<br />
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Accordingly, no adverse inference can be drawn against an accused person by reason of his failure to call any witness. However, the failure to call any particular witness is a matter which the court may take into account in assessing the weight of evidence without drawing any adverse inference especially so when the potential witnesses were persons in respect of whom the prosecution had no means of knowing that they might have any relevant evidence to give until the accused himself came to give evidence. Regina v Gallagher [1974] 1 WLR 1204; PP v Lim Kuan Hock [1967] 2 MLJ 114 at p 115; Tay Choo Wah v PP [1976] 2 MLJ 95 at p 100.<br />
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In this case the defence is relying on the truth of what was said by Jamal Abder Rahman. In his evidence this witness narrated what Mustapha Ong allegedly told him. In other words, he testified on matters asserted out of court. It is incumbent upon the defence to adduce evidence by calling Mustapha Ong. For this reason no reliance can be placed on the evidence of this witness. I therefore ignored the evidence in connection with the fabrication of evidence.<br />
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The defence next witness is Mohd Azmin bin Ali (SD21) who was the former private secretary of Dato’ Seri Anwar until 2 September, 1998. He gave lengthy evidence on various topics and spent a lot of time in giving evidence about his relationship with his sister Umi Hafilda (Umi) and Umi’s character. He said, inter alia, that Umi was disowned by her father on various grounds. I cautioned the defence counsel to adduce only relevant evidence. Despite this observation, questions were still asked by the defence counsel about Umi’s activities, particularly about her relationship with a married man and her trip to London with Dato’ Sng and others, the disowning of her by her father. I am of the view that the evidence is irrelevant to the issue before this court. The evidence of Azmin shows that Umi had problems with the members of her family and these problems as highlighted by Azmin in his evidence are not the issues relevant in this trial. This proceeding is not to be treated as a forum to settle their family disputes.<br />
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The part of his testimony relating to the role played by Umi in the conspiracy to fabricate evidence against Dato’ Seri Anwar would be relevant. He testified that he met Dato’ Said Awang who was at that time Ketua Cawangan Khas at his office at about 8.45 am on 11 August 1997. Dato’ Said Awang came to see Dato’ Seri Anwar. Before seeing Dato’ Seri Anwar, Dato’ Said Awang had a conversation with him. Azmin said Dato’ Said Awang asked him to speak to Umi and ask her to retract the allegations she had made against Dato’ Seri Anwar. Azmin responded that he could not do that as he was not on talking terms with Umi. Subsequently about a year later, he met Umi at his brother’s house in Subang. At that meeting Umi told him that she did not write the letter containing allegations of sexual misconduct against Dato’ Seri Anwar which was circulated throughout the country. A few days later, he met Umi for the second time at Dato’ Sng Chee Hua’s office in Jalan Sultan Ismail, Kuala Lumpur. At this meeting, Azmin said Umi again repeatedly said she did not write the letter and further told him that she was promised money and contracts to fabricate evidence. He gave her a brotherly advice to stay away from the conspiracy but she told him that she cannot do that as some money has already been paid to her. Three days later, Azmin met Umi for the third time at restaurant Sri Melayu, Kuala Lumpur. At that meeting Umi repeated what she had said to him earlier and told him not to worry about her involvement because ASP Rodwan told her that Dato’ Seri Anwar will be charged in court and he will be dismissed from the government and party posts.<br />
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In cross examination Azmin was not shaken and stood to his evidence that Umi admitted she did not write the letter that was circulated and that she was paid to fabricate evidence. She also showed him her statutory declaration (D27). This is irrelevant to the issue before this court because the charge is based on the allegation of sodomy made by Azizan as stated in the charge.<br />
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The evidence given by Azmin is hearsay as it is based on what Umi told him and Umi was never called to testify even though she was offered by the prosecution. In any event Umi’s evidence whether she wrote the letter containing allegation of sexual misconduct against Dato’ Seri Anwar is irrelevant.<br />
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Azmin also testified that he was arrested on 19 September 1998. Azmin alleged that he was interrogated by six police officers after his arrest and was badly treated. He said he was stripped naked by the police and a photograph of his private part was taken. He was forced by the police to admit that he was sodomized by Dato’ Seri Anwar. In introducing this evidence, the purpose is obviously to show that there was an attempt by the police to ask Azmin to fabricate evidence against Dato’ Seri Anwar. No evidence was adduced to establish that the police interrogators asked Azmin as what was alleged. Azmin did not mention the name of even one of them and more importantly identify them, leave alone calling them to testify. The evidence is hearsay. In any event, the evidence is irrelevant as it has no nexus with the fabrication of evidence against Dato’ Seri Anwar in respect of the alleged sodomy on Azizan.<br />
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The last point to note as regards Umi is her statutory declaration (exh D27). It was pointed by Mr Fernando that Umi confessed to Azmin that she was not the writer of exh P5. She denied that she has anything to do with the circulation of the letter which was alleged to be written by her to the Prime Minister. She also said that she is not the originator of the ‘surat layang’ and has no idea of the identity of the person or persons behind it. This is clearly stated in exh D27.<br />
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It is to be observed that this statutory declaration has not in fact been proved. It was put in for identification only through En Ngui Kee Heong (SD23), a commissioner for oaths. It is therefore not exhibited in the strict sense and cannot therefore form part of the record in this case: See PP v Datuk Haji Harun bin Haji Idris & Ors. The circumstances under which D27 was made are not disclosed as the maker has not been called to give evidence and to be cross examined as to the truth of its contents. The contents of D27 is therefore hearsay. A statutory declaration is not a public document and it does not attract ss 35 or 74 of the Act. In Sim Tiew Bee v PP [1973] 2 MLJ 200 it was held that a ship’s manifest made in compliance with s 52 of the Customs Act 1952 was held to be a private document and therefore the maker must be called to produce it. By analogy, I am of the view that a statutory declaration made under s 2 of the Statutory Declarations Act 1960 does not make it a public document. As D27 has not been proved and properly admitted as such I disregard it completely and attach no weight on it at all. <br />
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In the premises it is my finding that Azmin’s evidence has not established that there was a conspiracy to fabricate evidence against Dato’ Seri Anwar involving Umi. <br />
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The next witness called to testify on behalf of Dato’ Seri Anwar was Nurazman bin Abdullah @ Beginda (SD 28). His testimony is focussed on what Umi told him. He said Umi told him, inter alia, that she forced Azizan to admit that he was sodomized by Dato’ Seri Anwar, that if Dato’ Seri Anwar was toppled she would be given by Tun Daim an ‘advertisement’ project at Sepang Airport worth RM10m, that the allegation of sodomy against Dato’ Seri Anwar was fabricated (direka-reka), that Dato’ Aziz Shamsuddin requested 40 copies of the book 50 Dalil Kenapa Anwar Tidak Boleh Menjadi Perdana Menteri from her and that the contents of the book 50 Dalil was fabricated (direka) by Khalid Jefri to topple Dato’ Seri Anwar. He further said Umi also told him that Dato’ Tunku Adnan, Tun Daim, Tan Sri Rahim Thamby Chik were involved in fabricating (mereka-reka) the allegation of sodomy against Dato’ Seri Anwar as stated in the book 50 Dalil . <br />
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It is indeed puzzling to note that Umi was not called to testify. The evidence of Nurazman is therefore inadmissible being hearsay and I therefore disregard it completely. <br />
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The defence called Dato’ Shafee bin Yahaya (SD 30) to testify. According to En Karpal Singh, one of the counsels for Dato’ Seri Anwar, the purpose of calling this witness is to give evidence to show that bad blood existed between Dato’ Seri Dr Mahathir and Dato’ Seri Anwar Ibrahim arising out of the raid of the office of the Director-General of the Economic Planning Unit by the Anti-Corruption Agency. <br />
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Dato’ Shafee who was the Director-General of the Anti-Corruption Agency until his retirement on 12 September 1998 testified, inter alia, that he raided the office of the Ketua Pengarah EPU (Economic Planning Unit) in the Prime Minister’s Department. He raided the office as a result of a complaint made by an aggrieved party. He further said that he was called up by the Prime Minister. He was scolded by him and he was taken aback. He also said that the Prime Minister asked him to close the case. I asked Mr Fernando of the relevancy of this line of questioning. His explanation was that he was trying to adduce evidence of circumstances which led to fabricating of evidence. The further testimony of this witness shows that he informed Dato’ Seri Anwar of the complaint against the Director General of the EPU and of his intention to raid the office of the Director General. Dato’ Seri Anwar asked him ‘Have you cleared this with the PM?’ He replied, ‘I mentioned this to PM, but he kept quiet.’<br />
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Dato’ Shafee again said in cross examination that the Prime Minister kept quiet when he was informed of the intention of the Anti-Corruption Agency to raid the office of the Director-General. The evidence goes this way:<br />
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Question: Apabila kamu memberitahu PM berkenaan niat kamu untuk mengeledah pejabat DG EPU, apakah PM berkata kepada kamu? <br />
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Answer: Pada ingatan saya waktu saya jumpa PM adalah berkaitan tajuk dengan perkara lain dan perkara EPU ini adalah di antara perkara yang disebutkan. <br />
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Question: Apabila pertama kali kamu berjumpa PM untuk memberitahu niat kamu untuk mengeledah pejabat Ketua Pengarah EPU, PM hanya berdiam? <br />
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Answer: Betul. <br />
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It is clear from these questions and answers that the Prime Minister just kept quiet when he was told by Dato’ Shafee about the impending raid of the office of the Director-General. If it is true that the Prime Minister was not happy with the raid, surely he would have told Dato’ Shafee not to proceed with the raid. Under these circumstances, I am of the view that it is absurd and incredible to believe that the Prime Minister scolded Dato’ Shafee for the raid and asked him to close the case. I am also of the view that Dato’ Shafee said this merely to create an adverse impression on the Prime Minister that he interfered with the work of the Anti-Corruption Agency. Even assuming that the PM was unhappy with the raid of the office of the Director General of the EPU, it cannot amount to circumstantial evidence without other relevant and admissible evidence being adduced, to show there could have been fabrication of evidence involving the Prime Minister. There must be evidence to show that the Prime Minister did in fact participate in the conspiracy to fabricate evidence against Dato’ Seri Anwar. There is none on this particular issue. The result is that I find that the evidence of Dato’ Shafee does not establish that the Prime Minister was involved in the alleged conspiracy to fabricate evidence. <br />
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The last witness called on behalf of Dato’ Seri Anwar in the attempt to establish conspiracy to fabricate evidence is En Manjeet Singh Dhillon (SD31). He was the defence counsel for Dato’ Nallakaruppan s/o Sollaimalai in Kuala Lumpur High Court Criminal Trial No 45–40–1998 wherein Dato’ Nallakaruppan was charged for an offence under the Internal Security Act 1960. Mr Manjeet Singh Dhillon informed the court that he has the expressed consent of his client to give evidence in court as required under s 126 of the Act. The evidence given by this witness can be briefly summarized as follows. On 2 October 1998, he had a meeting with Dato’ Abdul Gani in the latter’s chambers. At the meeting he said Dato’ Abdul Gani wanted his client to give evidence implicating Dato’ Seri Anwar with non-existent women. His client refused to co-operate because in doing so his client would be lying. He referred to an affidavit affirmed on 25 August 1998 by Dato’ Nallakaruppan (exh D54). The affidavit states how he was treated while he was under detention and about the interrogation carried out by the police. The affidavit contains matters which are not relevant to the issue before this court. In any event, the affidavit has not been properly produced in court as an exhibit on the principle laid down in PP v Datuk Haji Harun bin Haji Idris & Ors and Sim Tiew Bee v PP [1973] 2 MLJ 200. I therefore ignore the affidavit. For the same reasons, I also disregard the statutory declaration of Dr Munawar Ahmad Anees dated 7 November 1998 (D53). <br />
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Encik Manjeet Singh also referred to his statutory declaration dated 9 November 1998. The statutory declaration contains details of his discussion with the Attorney General and his officers Dato’ Azahar and Dato’ Abdul Gani on the issue of reducing the charge against his client Dato’ Nallakaruppan. On close scrutiny, I find that the statutory declaration does not mention anything about the fabrication of evidence against Dato’ Seri Anwar in respect of the sodomy (liwat) alleged to have been committed by Dato’ Seri Anwar on Azizan which is the subject matter of the charge. I fail to see the relevance of what is stated in Mr Manjeet Singh’s statutory declaration. The result is that I do not rely on the statutory declaration. <br />
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On the evidence adduced through the witness called on behalf of Dato’ Seri Anwar, I am satisfied and find that the defence of conspiracy to fabricate evidence against Dato’ Seri Anwar has not been substantiated. The defence of conspiracy to fabricate evidence therefore fails. <br />
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(4) Reviewing of rulings<br />
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In their submission at the end of the case for the defence the learned defence counsels urged the court to review the rulings earlier made at the end of the case for the prosecution which are firstly that the confession of Sukma was admissible and secondly that the credibility of Azizan was saved and therefore he was a reliable and truthful witness. <br />
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(a) Reviewing of admissibility of Sukma’s confession <br />
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The confession made by Sukma was admitted in evidence after a trial within a trial was held. At the end of the trial I made a ruling that the confession was voluntary and admissible. It was admitted in evidence and marked P4. <br />
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The learned defence counsel also urged the court to reconsider this ruling. This point is also raised again on behalf of Sukma. I shall deal with this point in detail later. For the time being it is sufficient for me to say that the ruling I had made still stand for the reasons which will appear later in this judgment when I consider the defence of Sukma. <br />
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(b) Reviewing of Azizan’ s credibility<br />
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It is to be noted that I have dealt with this issue at length at the end of the case for the prosecution. Mr Fernando, the leading counsel for Dato’ Seri Anwar raised this issue again. In the light of certain evidence that was adduced in the defence case the credibility of Azizan requires further consideration. <br />
<br />
Zull Aznam (SD15) testified that Azizan told him that he (Azizan) made the allegations against Dato’ Seri Anwar because he was promised money. Azizan was not asked in cross examination about this. It is beyond comprehension if Azizan said this to Zull Aznam surely one would expect Zull Aznam would lodge a report or at least inform Dato’ Seri Anwar about this. Dato’ Seri Anwar in his evidence said that Azizan told Zull Aznam about this when they met in 1997. But Zull Aznam contradicted this when he said this conversation between Azizan and himself when Azizan was alleged to have said he made the allegation against Dato’ Seri Anwar because of money took place in June 1998. This contradiction cannot be reconciled. I am inclined to believe that the conversation between Zull Aznam and Azizan never took place and I am convinced Azizan never told Zull Aznam that he made allegations against Dato’ Seri Anwar because he was promised money. The alleged conversation under the circumstances is the brainchild of Zull Aznam to suit the defence. The evidence of Abdullah Sani (SD17) is to the effect that Azizan told him sometime in June 1998 that he was never sodomized by Dato’ Seri Anwar. Azizan was never asked in cross examination about this. The evidence of this witness is hearsay. Further Abdullah Sani is not truthful as he admitted in cross examination upon being confronted with his earlier evidence in the previous trial of Dato’ Seri Anwar that Azizan never told him his problems. In addition to this in the earlier trial of Dato’ Seri Anwar he said Azizan spoke to him over the phone and he did not know whether Azizan contacted Zull Aznam. However, in the present trial he said he met Azizan in his house. This contradiction in his evidence casts suspicion on his credibility and I attach no weight to his evidence. Thus this witness also tailored his evidence to accommodate the defence. As a result, I find that Azizan’s credibility remains intact. <br />
<br />
Nurazman bin Abdullah (SD28) testified that Umi told him that she was the one who forced Azizan to allege that he was sodomized by Dato’ Seri Anwar. This evidence is hearsay as Umi was never called to testify on this issue. In any event Azizan denied that Umi forced him to allege that Dato’ Seri Anwar sodomized him. <br />
<br />
As regards exh D26, Akuan Bersumpah oleh Azizan, this was not produced through Azizan. The circumstances under which this exhibit was made by Azizan are never disclosed. The contents are inadmissible as it was not properly produced through the maker. I therefore attached no weight to it. <br />
<br />
Exhibit D23, Kenyataan Umum oleh Azizan was also not properly produced through the maker. Azizan was never asked about D23 when he was cross-examined. I therefore ignore D23 and I do not refer to it at all. <br />
<br />
He further submitted that Azizan is a totally unreliable and indeed a lying witness. He stressed that the court had made adverse observations on the demeanour of this witness when he testified and this affects his credibility. I therefore rule that on the evidence adduced by the defence that I have referred to above that the credibility of Azizan remains unaffected. <br />
<br />
It was also urged by the learned counsel that I should reconsider the impeachment proceedings against Azizan. I had earlier dismissed the application by the defence to impeach Azizan based on the contradictions between the statement he gave in the previous trial where Dato’ Seri Anwar was tried for offences of corrupt practice punishable under s 2(1) Emergency (Essential Powers) Ordinance No 22/1970 and the statement he gave in this trial. To recollect the relevant statements are as follows: <br />
<br />
<br />
<br />
(a) In the previous trial he said in cross examination:<br />
<br />
Saya setuju bahawa Dato’ Seri Anwar tidak meliwat saya sebab itulah saya masih pergi ke rumahnya antara tahun 1992 dan 1997. Kalau tidak saya tentu menjauhkan diri dari rumahnya.<br />
<br />
(b) In re-examination he said:- <br />
<br />
Selepas bulan sembilan 1992 sehingga sekarang tertuduh tidak meliwat saya.<br />
<br />
(c) In the present trial he testified that he was sodomized between the months of January to March 1993. <br />
<br />
<br />
<br />
I dismissed the application to impeach as I was satisfied that Azizan has successfully explained the discrepancies which I accepted hence my ruling that his credit was saved. The defence counsel’s submission at this stage is clearly a mere repetition of his earlier submission at the end of the case for the prosecution. I find there is no additional and fresh evidence adduced on which a review of my earlier ruling could be made. Therefore the submission deserves no further consideration at all. My earlier ruling that Azizan’s credibility is saved stands. <br />
<br />
(5) False and fabricated charge<br />
<br />
It is contended by the defence that the charge against Dato’ Seri Anwar is fabricated in that the prosecution amended the charge twice. I had dealt with this issue at length earlier in this judgment and ruled that the contention that the charge against Dato’ Seri Anwar is false and fabricated is without any basis. This point was raised again by Mr Fernando. <br />
<br />
He submitted that the court has to analyse the evidence given by Azizan in respect of the dates stated in the charge which was amended twice. It is pertinent to note that Azizan said in his cross examination that he did not tell the police he was sodomized in 1992 and in respect of 1994 at first he said he cannot remember whether he told the police he was sodomized in May 1994. About six days later during cross examination he was again asked about the year 1994. It went this way from my record: <br />
<br />
<br />
<br />
Question: Adakah awak beritahu pihak polis kamu diliwat oleh Dato’ Seri Anwar dan bukan dalam tahun 1994? <br />
<br />
Answer: Ada. <br />
<br />
Question: Adakah tidak sebelum hari ini awak ada memberitahu mahkamah ini bahawa awak tidak ada memberitahu polis bahawa awak diliwat oleh Dato’ Seri Anwar dan Sukma pada tahun 1994? <br />
<br />
Answer: Ada. <br />
<br />
<br />
<br />
It is clear from the answers given by Azizan that he told the police he was sodomized by Dato’ Seri Anwar but not in 1994 and that he told this court that he did not tell the police he was sodomized by Dato’ Seri Anwar and Sukma in 1994. It is important to note that the charges against Sukma right from the beginning never mentioned 1994. The charges against him stated May 1992 which was subsequently amended to read between January to March 1993. The year 1994 only appeared in the original charge against Dato’ Seri Anwar. The charge was subsequently amended twice in respect of the year. Azizan testified that he cannot remember whether he told the police that he was sodomized in 1994. He said he was confused. I have dealt with this aspect of the evidence earlier. Mr Fernando again advanced the argument that since Azizan did not tell the police he was sodomized in 1994 and 1992 then someone must have told the police that he was sodomized in 1994 and 1992 that occasioned the first amendment of the charge. Since this is not explained, the first amendment that is in respect of the date from 1994 to 1992 the result is that the charge as amended is a fabricated charge. With the greatest respect, I must say this submission is a mere repetition of the submission made by him earlier at the end of the case for the prosecution. I find no new or fresh evidence was adduced by the defence witnesses on this issue. I therefore rule that this submission is baseless and nothing further need be said about it. <br />
<br />
As regards the amendment of the charge in respect of the date from May 1992 to between the months of January to March 1993, it was made as a result of Azizan’s statement taken by SAC-1 Musa on 1 June 1999. As what I had said earlier in this judgment the prosecution has the right to amend the charge under the law based on the evidence as revealed by the investigation carried out by the police as a result of the police report, Dang Wangi Report No 14140/99 lodged by Mohd Azmin bin Ali. The investigation was carried out by SAC-1 Musa in 1998, which was the second investigation, in respect of the book entitled ‘50 Dalil Kenapa Anwar Tidak Boleh Menjadi Perdana Menteri’. The result of this second investigation occasioned the final amendment of the charge as it stands today. Whether the charge is false and fabricated is a question to be determined on the facts on evidence adduced in this case. To sustain a conviction against both the accused, the prosecution has to prove its case beyond a reasonable doubt against them which I shall deal later in this judgment. <br />
<br />
(6) Corroboration <br />
<br />
The defence counsel also submitted on the issue of corroboration which submission is substantially the same as what was submitted earlier at the end of the case for the prosecution. I find that the submission is a mere repetition and there is no basis for me to alter my finding on the issue of corroboration. My finding that there was corroboration with regard to Azizan’ s evidence stands. <br />
<br />
The last issue that needs to be considered is the statements made by the Prime Minister and the former Inspector General of Police in connection with the various allegations of sexual scandals against Dato’ Seri Anwar. <br />
<br />
(7) Press statements in the newspaper <br />
<br />
It was also the contention of the defence that the allegations of sexual misconduct against Dato’ Seri Anwar which surfaced in 1997 were dismissed by the Prime Minister as ridiculous, slanderous and made with political motive. The defence tendered in evidence newspaper reports containing public statements made by the Prime Minister and the Inspector General of Police at that time. These reports are as follows: <br />
<br />
<br />
<br />
Exhibit D14: <br />
<br />
This is a press statement by the Prime Minister in the Mingguan Malaysia dated 31 August 1997. He expressed his opinion that penyebar pelbagai khabar angin, termasuk mengenai perletakan jawatan Menteri Kewangan ‘sebenarnya patut ditembak’.<br />
<br />
Exhibit D18:<br />
<br />
This is a press statement dated 3 September 1993 in the New Straits Times by the then Inspector General of Police. He said that police investigation into two letters alleging sexual scandal involving Deputy Prime Minister Anwar Ibrahim found the charges to be untrue. <br />
<br />
Exhibit D41: <br />
<br />
This is a report prepared by Sivabalan (SD8) who was a reporter with Bernama at the material time. The report dated 24 August 1997 was entitled ‘Mahathir-Anwar No truth in letter alleging Anwar’s involvement in sex scandal’. This report was based on a statement by the Prime Minister at a press conference. He said that there was an attempt to sabotage Anwar’s image through allegations that Anwar was involved in a scandal. He also said that the allegations against Anwar are ridiculous based on a report he had received. He also said the case is closed after police investigation. <br />
<br />
Exhibit D42:<br />
<br />
This is a press statement entitled ‘Fitnah Anwar bermotif politik — PM’ which appeared in the Utusan Malaysia dated 25 August 1997 by the Prime Minister. He said that the allegations against Dato’ Seri Anwar are slanderous with a political motive (merupakan fitnah yang bermotifkan politik). <br />
<br />
<br />
<br />
The reporters who wrote the reports and were present at the various press conferences were called to testify. The newspaper reports described above are admissible in evidence to prove their contents as the reporters in whose presence the statements were made were called to give evidence (see Khilumal v Arjundas AIR 1959 Raj 280, Laxmi Raj Shetty v State of Tamil Nadu AIR 1988 SC 1274 referred to in PP v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1). <br />
<br />
These press statements by the Prime Minister and the then Inspector General of Police were based on the police investigation carried out in 1997 in connection with police report No 2706/97 (exh 44). <br />
<br />
The gist of these press statements is that the allegations and accusations against Dato’ Seri Anwar that he was involved in sex scandals were slanderous and untrue. The police had investigated the matter and had concluded that there was no case. <br />
<br />
SAC-1 Musa in his evidence stated that the investigation which was referred to in these press statements was incomplete as Dato’ Seri Anwar told him to stop the investigation because he has been cleared by the Prime Minister. <br />
<br />
With all humility, I am of the view that these press statements have no connection with the charges on which Dato’ Seri Anwar is being tried. They are irrelevant. The charge against Dato’ Seri Anwar was brought about as a result of a second investigation carried out by the police in respect of Dang Wangi Report No 14140/98 lodged by Mohamed Azmin bin Ali on 19 June 1998. The court has to decide on the charge according to the evidence adduced in court and nothing else. The press statements cannot be regarded as evidence in this trial, as they are, as what I said, irrelevant. <br />
<br />
Sukma’s defence<br />
<br />
Sukma himself gave evidence on oath and called a number of witnesses to testify on his behalf to support his defence. One of the witnesses which was required by the defence was Dato’ Seri Dr Mahathir bin Mohamad (Dr Mahathir), the Prime Minister. A subpoena had been served on him: The prosecution objected orally to the calling of Dr Mahathir as a witness and invited the court to make a ruling under s 136(1) of the Act whether Dr Mahathir ought to attend court to give evidence. <br />
<br />
I shall now deal with this objection briefly. I have considered this issue carefully and have made a ruling on this objection after hearing counsels for both the accused and the prosecution and after considering the affidavit evidence contained in affidavits filed by Dato’ Seri Anwar, Sukma and Dr Mahathir. The ruling was that the subpoena which had been served on Dr Mahathir was set aside and that accordingly Dr Mahathir need not attend court to testify on behalf of the defence. The reasons for the ruling are stated in my written judgment dated 21 April 2000 which for convenience is attached as an ‘Appendix’ to this judgment. It is not necessary for me to repeat the reasons here but it is sufficient to state that the ruling was made because I was satisfied that Dr Mahathir would not be able to give relevant evidence in his testimony to assist both the accused in their defence. As the evidence to be given by Dr Mahathir would not be relevant the ruling that Dr Mahathir need not appear in court to testify does not in any way prejudice both the accused. <br />
<br />
Sukma’s defence briefly relates to: <br />
<br />
<br />
<br />
(a) alibi; <br />
<br />
(b) the offences against him could not have been committed as alleged due to the renovation of his apartment; <br />
<br />
(c) there was no mattress and therefore it was not possible for him to commit the act of sodomy; <br />
<br />
(d) the review of the admissibility of his confession; <br />
<br />
(e) the review of Azizan’s credibility; and <br />
<br />
(f) the lack of corroboration. <br />
<br />
<br />
<br />
I shall now consider the evidence adduced by the defence. <br />
<br />
(a) The alibi <br />
<br />
I have already stated the law relating to alibi in an earlier part of this judgment when I dealt with the evidence of alibi of Dato’ Seri Anwar. It is to be recognized that the whereabouts of Dato’ Seri Anwar between January and March 1993 is important and relevant to the defence of Sukma in the sense that the alibi of Dato’ Seri Anwar for the period if accepted by the court then the charges against both the accused would undoubtedly fail. As what I had stated, I accepted the alibi of Dato’ Seri Anwar for the period from 4 February to 31 March 1993. I now deal with the period from January to 3 February 1993. Under the law when the defence of alibi is raised, it is for the defence to adduce evidence to establish the alibi. Section 103 of the act, illustration (b) provides: <br />
<br />
<br />
<br />
B wishes the court to believe that at the time in question he was else where. He must prove it.<br />
<br />
<br />
<br />
When such evidence is adduced by the defence for the purpose of establishing the alibi the court has to consider whether the evidence has raised a reasonable doubt on the prosecution case and not whether such evidence had created a reasonable doubt as to the innocence of the accused (see Yau Heng Fang v PP [1985] 2 MLJ 335). <br />
<br />
The question is whether Sukma has adduced evidence to show his alibi. As what I had found earlier in this judgment, Dato’ Seri Anwar has successfully accounted for his whereabouts from 4 February to 31 March 1993 excluding 19 February 1993. This part of the alibi would equally apply to Sukma under the circumstances of this case as it is the case of the prosecution that Sukma brought Dato’ Seri Anwar to his apartment on the day in question when the alleged incident of sodomy on Azizan took place.<br />
<br />
However, on close examination of the evidence adduced, I failed to find any evidence adduced by Sukma or any witness called by him to show his whereabouts for the period covering January to 31 March 1993. It is therefore my judgment that Sukma has not adduced any evidence to support his alibi for the said period by himself or through Dato’ Seri Anwar. His defence of alibi therefore fails. <br />
<br />
(b) Renovation<br />
<br />
Sukma said in evidence that the charges against him could not be sustained for the reason that he was not in occupation of the apartment — he moved into it in April 1993 as shown in his letter to Bandar Raya Developments Bhd (exh D36). The apartment was under major renovation according to Sukma and supported by the evidence of Rahimazlan (SD4) and Tan Seng Khoon (SD9). <br />
<br />
The renovation works was supervised by Rahimazlan (DW4). He said that the renovation works involved the breaking down of the wall between the master bedroom and another adjoining room and putting up a new wall in its place and fixing of wall and floor tiles in the bathroom of the master bedroom (wet trade) and carpentry works and laying carpets, fixing of air- condition units and fixing wall papers (dry trade). He was not very sure how long exactly it took for the renovation works to be completed but he said it took about four months. He also said the fixing of the wall paper for the whole apartment took four to five days from his experience. He does not know how long it took to complete the renovation of the master bedroom. He also said that the carpentry works involving the fixing of built-in cabinet in the kitchen, master bedroom in the dining hall took between four to six weeks. He further testified that renovation works carried out are shown in the plans (exhs IDD 37A, B & C). It is to be noted that these plans were produced for identification purposes only. They have not been properly tendered through the maker as they should have been and are not exhibits in the strict sense and cannot therefore form part of the record in this case (see PP v Datuk Haji Harun bin Haji Idris & Ors. I shall therefore disregard references to them. In any event IDD 37A states the Furniture Layout Plan for Condominium Renovation at Tivoli Villa belonging to Mr Suda Te Kanawa. It does not show it is in respect of Sukma’s apartment although it was for the use of Megareka Sdn Bhd. No evidence was adduced why the plan was used to show renovation works in respect of Sukma’s apartment. <br />
<br />
Be that as it may, I find from the evidence of SD4 and SD9 the technical supervisor of Bandar Raya Developments Bhd at the material time it was established there was a major renovation of the bathroom to the master bedroom only. In his evidence, he said in the month of January 1993 he inspected Unit No 10–7–2,Tivoli Villa and noticed that a major renovation work were carried out confined to the bathroom attached to the master bedroom. At the time he visited the apartment, he did not notice any other renovation works especially in the master bedroom and the second bedroom. He further said that he inspected the apartment probably one week before a letter dated 5 January 1993 (D32) was written. D32 was written by Chee Too Nam @ Chin Too Nam (SD8), the Senior Project Manager of Bandar Raya Developments Bhd based on what SD9 told him. SD9 confirmed the contents of D32 which stated, inter alia, that there was a major renovation to the master bathroom which involved the extension of the bathroom by approximately 2’ 0” into the master bedroom, removal of all the wall and floor tiles and sanitary wares including the reinforced concrete vanity top and false ceilings. On the evidence of SD4 and SD9, I am satisfied that there was renovation works being carried out to the master bathroom. This would mean that the other rooms are not in any way affected by the renovation works of the master bathroom and the knocking down of the wall. <br />
<br />
In his evidence Sukma said that he moved into the apartment in April 1993. From the notes of evidence this is what transpired: <br />
<br />
<br />
<br />
Question: Bilakah kamu pindah masuk ke apartment itu? <br />
<br />
Answer: Dalam bulan April l993. <br />
<br />
<br />
<br />
It was submitted by the prosecution that this evidence only shows that Sukma did not occupy the apartment before April 1993. The fact remains that he has access to the apartment from December 1992. There is no evidence to show that the keys to the apartment were not in his possession at the time when the renovation works were in progress. I agree with the submission by the prosecution that Sukma had unrestricted and free access to the apartment. I therefore conclude that Azizan’s evidence that he was sodomized in the apartment is unshaken and reliable. <br />
<br />
(c) Bed and mattress<br />
<br />
It was submitted by the defence that it was not possible for Sukma to commit sodomy as alleged in te apartment as there was no bed or mattress in the apartment until 11 February 1993. It is in the evidence of Rahimazlan that there was no bed or mattress in the apartment until 11 February 1993. The divans and mattresses according to the cash receipt (exh D35) were supplied on 11 February 1993. He further said that he received the items mentioned in D35 but admitted that he did not acknowledge receipt of the goods. <br />
<br />
I find upon close scrutiny that D35 appeared to me to be a new and freshly executed receipt with no visible signs of being an old receipt issued in 1993. Further it was not signed by the person who issued it. The authenticity of D35 is suspect. In any event, it shows clearly that what was supplied was three Divans and two VIP mattresses. This evidence is contrary to the reliable and credible evidence of Azizan who said that there was a bed (not a divan) and a queen size mattress in the room where he was sodomized. <br />
<br />
Rahimazlan is an interested witness as can be gathered from his evidence in cross examination which runs as follows: <br />
<br />
<br />
<br />
Question: Tidak keterlaluan jika saya katakan hubungan persahabatan awak dengan Sukma sangat rapat setelah mengenali dia sejak 1979? <br />
<br />
Answer: Saya setuju hubungan persahabatan kami adalah akrab. <br />
<br />
Question: Bolehkah dikatakan sebagai adik-beradik? <br />
<br />
Answer: Saya setuju. <br />
<br />
Question: Adakah awak bersimpati dengan Sukma atas nasib yang dihadapinya sekarang? <br />
<br />
Answer: Saya bersimpati dengannya. <br />
<br />
Question: Saya juga katakan awak merasa sebagai sebahagian daripada tanggungjawab anda sebagai sahabat Sukma awak perlu memberi sokongan moral kepadanya? <br />
<br />
Answer: Saya setuju. <br />
<br />
<br />
<br />
It is clear from the above evidence that SD4 came to court to assist to give moral support to Sukma to help Sukma in his predicament. I therefore treat his evidence in the circumstances with suspicion and caution. <br />
<br />
The next witness called by Sukma was Tan Seng Khoon (SD9). He was at the material time the technical supervisor of Bandar Raya Developments Bhd who inspected Sukma’s apartment in January 1993. In his evidence, he said, inter alia, that he saw no carpet or bed in the apartment. When he said this I am of the view that he was referring only to the master bedroom because he only noticed the renovation works in the master bathroom. There is no evidence that he inspected the other parts of the apartment. I am of the view therefore his evidence when he said there was no bed in the apartment cannot be accepted as conclusive that there was no bed or mattresses in the other rooms. I therefore do not accept his evidence that there was no bed or mattresses in the apartment at all before the delivery of the divans and mattresses in D35. <br />
<br />
In conclusion, I wish to state I prefer the evidence of Azizan whom I found to be a reliable and truthful witness. His evidence showed in fact that there was a bed and a queen size mattress in the room where he was sodomized. <br />
<br />
(d) Credibility of Azizan<br />
<br />
The learned counsel for Sukma referred again to the issue on the credibility of Azizan. It was submitted that Azizan has contradicted himself when he said at one point he was not sodomized and at another point he said he was sodomized. Azizan has not explained this contradiction. The defence complained that Sukma was denied the right to call the Prime Minister to testify on his behalf and this denial was a gross injustice to Sukma because this deprived Sukma of adducing evidence to establish that Azizan had told the Prime Minister he was not sodomized. According to the defence counsel the evidence to be adduced is relevant to assess the credibility of Azizan and to create a doubt in the prosecution case. I had earlier referred to the ruling on the necessity of the Prime Minister to give evidence which was that the Prime Minister would not be able to give relevant evidence. I find that no injustice has been caused to Sukma by the order made by this court that the Prime Minister need not be called as a witness. <br />
<br />
It was also raised by the learned counsel for Sukma that the dismissal of an application to recall Azizan under s 425 of the Code has also deprived Sukma of adducing evidence to attach Azizan’s credibility. To put the record straight, the application to recall Azizan for the purpose of adducing evidence specifically on his trial at the Mahkamah Syariah, Alor Gajah, Melaka and not for the purpose of clarifying other points in his evidence. The reasons for disallowing the application to recall Azizan has been dealt with earlier. <br />
<br />
In conclusion I must say that the submission of the defence counsels for both accused on the issue of credibility of Azizan except for the issue that Dr Mahathir was not in court to testify as a witness on behalf of the defence and the refusal of the court to allow Azizan to be recalled, is a repetition of what was submitted by them earlier at the end of the prosecution case. I had dealt with this issue in depth at that stage and my finding that Azizan is a truthful and creditable witness still stands as solid as the Rock of Gibraltar. <br />
<br />
(e) Reviewing the admissibility of Sukma’s confession (P4)<br />
<br />
In their submission, the defence counsels for both accused urged this court to review the ruling on the admissibility of the confession of Sukma. It is to be remembered that the caution statement was made voluntarily and admitted as exh P4 after a trial within a trial was held which lasted for about 18 days. <br />
<br />
The request for the review of the ruling can be entertained if further evidence emerges which is relevant to the voluntary character of the statement or confession. <br />
<br />
In R v Watson [1980] 2 All ER 293, it was held that because a judge retains control over the evidence to be submitted to the jury throughout a trial, he is not precluded, by the fact that he has already ruled at a trial within a trial in the jury’s absence that a written statement by the accused is admissible in evidence as being voluntary, from reconsidering that ruling at a later stage of the trial if further evidence emerges which is relevant to the voluntary character of the statement, and from ruling in the light of that evidence that the statement is not admissible. However, the occasions on which a judge should allow counsel to submit that a previous ruling on the admissibility of evidence should be reconsidered are likely to be rare, and judges should continue to discourage counsel from making such submissions where they are founded on tenuous evidnece (see also PP v Mustaffa bin Ahmad [1986] 1 MLJ 302). <br />
<br />
The ground relied on for the request to review the ruling on the admissibility of the confession was the evidence of a letter (D28) written by Sukma to Dato’ Seri Anwar. According to Sukma this letter was written by him in his cell in Bukit Aman lock up where he was detained after his conviction by the sessions court for another offence. It is to be noted the fact that D28 was written was not in issue. The question that has to be determined in respect of D28 is whether it is fresh evidence which would be a ground for reviewing the confession. D28 contains, inter alia, details pertaining to Sukma’s arrests, the ill treatment and the inhuman treatment he had received before his confession was recorded, the allegations that he was programmed by the police to implicate Dato’ Seri Anwar in the sodomy incident, that he created stories to please the police. A close perusal of D28 does not reveal any fresh evidence to justify the review of the ruling on the admissibility of Sukma’s confession. All what was stated therein had been narrated by Sukma in his evidence given at the trial within a trial. It is strange that D28 was not produced at the trial within the trial and not even referred to at that time. I am more inclined to the view that D28 did not exist at the time when he gave evidence during the trial within a trial. D28 was written for the purpose of tendering it at the defence stage as fresh evidence so that it can form the basis for the application to review the admissibility of Sukma’s confession. It is an afterthought and the contents do not amount to fresh evidence on which this court can review its earlier ruling on the admissibility of Sukma’s confession. The request for review of Sukma’s confession was therefore rejected. <br />
<br />
(f) Corroboration <br />
<br />
The issue of corroboration was raised again. In his submission En Gobind Singh Deo submitted that Azizan’s evidence is unusually convincing and the need for corroboration does not arise. This submission is also substantially a mere repetition of the earlier submission on this issue at the end of the prosecution case. The only new point highlighted in the submission this time is in connection with D28, the letter written by Sukma to Dato’ Seri Anwar in relation to his confession. I had considered this part of the evidence earlier where I had ruled that D28 does not justify this court to review the ruling on the admissibility of the confession and the admissibility of the confession stands. The question whether the confession can be used as corroborative evidence does not arise again in view of my ruling on the review of the admissibility of the confession. I therefore conclude that this submission has no merit. <br />
<br />
Before I embark on a consideration whether the defence has created a reasonable doubt on the prosecution case, I consider it necessary to state briefly the principles of law with regard to the burden of proof. The burden of proof lies throughout the trial on the prosecution to prove its case beyond a reasonable doubt against the accused. When the defence is called all that the accused has to do is to cast a reasonable doubt on the prosecution case.<br />
<br />
How the law is to be applied is found in the celebrated case of Mat v PP [1963] MLJ 263 where it was held if the court accepts the explanation given by or on behalf of the accused, it must acquit. But this does not entitle the court to convict if it does not believe that explanation, for he is still entitled to an acquittal if the explanation raises a reasonable doubt as to his guilt, as the onus of proving his guilt lies throughout on the prosecution. If upon the whole evidence the court is left in a real state of doubt, the prosecution has failed to satisfy the onus of proof which lies upon him. <br />
<br />
The principle enunciated in Mat’s case was adopted by the Supreme Court in Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169 where Azmi SCJ in delivering judgment of court said at p 171:<br />
<br />
<br />
<br />
We are of the view that whenever a criminal case is decided on the basis of the truth of the prosecution’s case as against the falsity of the defence story, a trial judge must in accordance with the principle laid down in Mat v PP go one step further before convicting the accused by giving due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution case. (see also Ishak Shaari v PP [1997] 3 CLJ Supp 223). <br />
<br />
<br />
<br />
Further it was held: <br />
<br />
<br />
<br />
It is a well-established principle of Malaysian criminal law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence with which he is charged. There is no similar burden placed on the accused to prove his innocence. He is presumed innocent until proven guilty. To earn an acquittal, his duty is merely to cast a reasonable doubt in the prosecution case. <br />
<br />
<br />
<br />
What constitutes reasonable doubt has been discussed and defined in many cases. In Liew Kaling & Ors v PP at p 306, Thomson CJ said that it may be that ‘reasonable doubt’ is little difficult to define. His Lordship then quoted from the judgment of Denning J (as he then was) in the case of Miller v Minister of Pensions, a passage, dealing with the degree of proof in a criminal case which reads as follows: <br />
<br />
<br />
<br />
That the degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice’ (see also PP v Saimin & Ors [1971] 2 MLJ 16. <br />
<br />
<br />
<br />
This brings me to the question whether the defence has raised a reasonable doubt on the prosecution case. I have carefully considered the evidence adduced by the prosecution and the defence as a whole. My conclusions are as follows: <br />
<br />
<br />
<br />
(1) it is my finding as a fact that the alibi of both the accused does not cover the whole of the period between January to March 1993 as stated in the charge. The alibi covered the period only from 4 February to 31 March 1993 and is therefore incomplete. The defence of alibi therefore fails;<br />
<br />
(2) the defence that both the accused never went to Tivoli Villa at 7.45 pm between January to March 1993 also failed based on the evidence of Azizan which I accepted as truthful and reliable; <br />
<br />
(3) the defence of conspiracy to fabricate evidence has not been substantiated by admissible and cogent evidence adduced by the defence. This defence also failed; <br />
<br />
(4) the voluntariness of Sukma’s confession (P4) is affirmed; <br />
<br />
(5) the truth of P4 has been established as far as it relates to both the accused; <br />
<br />
(6) there was corroboration on the evidence of Azizan; <br />
<br />
(7) the credibility of Azizan is affirmed; <br />
<br />
(8) Sukma has not cast any doubt on the prosecution case of abetment against him. There is ample evidence adduced that he abetted Dato’ Seri Anwar in committing sodomy against Azizan; <br />
<br />
(9) it is my finding that the defence evidence adduced on behalf of both the accused as a whole has not succeeded in creating any reasonable doubt on the case for the prosecution; <br />
<br />
(10) it is also my finding that the prosecution has proved its case beyond a reasonable doubt on the charges against both the accused.<br />
<br />
<br />
<br />
I accordingly found both Dato’ Seri Anwar and Sukma guilty on the charges against them. I accordingly convicted Dato’ Seri Anwar on the charge against him. I also accordingly convicted Sukma on the two charges against him. <br />
<br />
Mitigation <br />
<br />
Before imposing the sentence on both the accused, I asked the defence counsels to address the court on sentence. Mr Fernando, the leading counsel for Dato’ Seri Anwar requested for a short adjournment. When hearing resumed after a short adjournment he informed the court that Dato’ Seri Anwar elected to address the court himself. I allowed him to do so. Dato’ Seri Anwar in fact made a speech reading from a prepared text (see document marked ‘A’). A close examination of the text shows that he was making a political speech. He took the opportunity given to him to mitigate as a platform to highlight his grievances and dissatisfaction with Dato’ Seri Dr Mahathir. He attacked the integrity of Dato’ Seri Dr Mahathir. He continued reading and came up with an attack on the judicial system. He criticized my decision and said it is unjust, disgraceful and revolting and it disgraces the judiciary and this nation of ours. <br />
<br />
I reminded him to confine himself to relevant matters which the court can take into consideration before imposing an appropriate sentence under the circumstances of the case. He carried on reading the text. <br />
<br />
I find that his speech does not qualify as one which can be called as a plea of mitigating. The only relevant part in the text which is useful is a small portion where he said at the end that during his 17 years of service with the government, he was loyal to the government and the Prime Minister. His loyalty was based on principles. <br />
<br />
At the end of the speech by Dato’ Seri Anwar, I allowed Mr Karpal Singh, one of the counsels for Dato’ Seri Anwar to address the court on the law on the question of sentence. He referred to s 292 of the CPC which states, inter alia, that when a person who is undergoing a sentence of imprisonment is sentenced to imprisonment, such imprisonment shall commence either immediately or at the expiration of the imprisonment to which he has been previously sentenced, as the court awarding the sentence may direct. The learned counsel urged the court to impose the sentence on the accused to run from the date of conviction and not at the expiration of the imprisonment term of six years for which he is now serving with effect from 14 April 1999. He rightly conceded that the court has a discretion <br />
<br />
whether to order the sentence to be imposed to run concurrently or consecutively. He referred to the case of PP v Ooi Wang San [1998] 2 MLJ 765 where it was held by the Court of Appeal: <br />
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<br />
Section 292 of the CPC gives a discretion to the court, depending on the facts and circumstances of each particular case, whether to order the commencement of the sentence on such convicted persons, either immediately or at the expiration of the imprisonment to which he has been previously sentenced. <br />
<br />
<br />
<br />
Mr Fernando, the leading counsel for Dato’ Seri Anwar also addressed the court and urged the court to impose a sentence to commence from the date of arrest of the accused ie from 20 September 1998. He pointed out that there are no exceptional circumstances for this court to exercise its discretion to order sentence to run from date of conviction. On this submission reference may be made to s 282(d) of the CPC which is relevant and it provides that every sentence of imprisonment shall take effect from the date on which the same was passed unless the court passing such sentence otherwise direct. <br />
<br />
<br />
<br />
It can thus be gathered the court still has a discretion in this matter. <br />
<br />
<br />
<br />
On behalf of Sukma, Mr Gobind Singh Deo submitted that Sukma was born on 25 June 1961, unmarried, unemployed and is suffering from asthma and bronchities. No medical evidence to support that he is suffering from asthma and bronchities. He urged the court not to impose whipping due to his health condition. <br />
<br />
It was also submitted that Sukma has been put to severe trauma following the long trial which has attracted wide publicity both nationally and internationally. He has to live with a social stigma considering the nature of the offence for which he has been tried and convicted. Urge the court to impose the sentence to run concurrently. <br />
<br />
The learned Attorney General for the prosecution pointed out that the offences committed by both the accused are very serious offences of which they are liable to 20 years imprisonment and whipping. Under s 288 of the CPC, the court can impose a sentence of whipping not exceeding 24 strokes. He urged the court to impose a deterrent sentence to reflect the seriousness of the offence committed by both the accused. <br />
<br />
It is axiomatic that there are general principles in fixing sentence. In doing so the court has to consider the nature and gravity and seriousness of the offence, the antecedents of the accused, the deterrent effect of the punishment and above all the public interest (see Lim Guan Eng v Pendakwa Raya [1998] 3 MLJ 14). <br />
<br />
The court may also take into consideration whether the accused is genuinely contrite and regrets what he has done. <br />
<br />
In the instant case, Dato’ Seri Anwar did not show any remorse at all. On the other hand, he displayed an attitude of arrogance and disrespect to the bench and levelling against his former cabinet colleagues and political allies allegations of corruption and malpractices which are not relevant to the issues before the court. His purpose of making all these allegations against those people when he testified and repeating these allegations emphatically in his so-called mitigating address is to tarnish the image of all those people in the eyes of the public at a wrong forum when those people have no opportunity to defend themselves. <br />
<br />
Another factor which I took into consideration is the seriousness of the offence for which the accused is convicted. The seriousness of the offence is reflected by Parliament in its wisdom by enacting a law in the form of s 377B of the Code which provides for a sentence of 20 years imprisonment and whipping on conviction. <br />
<br />
I have tried my very best to look for mitigating circumstances in favour of Dato’ Seri Anwar, and with all humility, I find one that deserves recognition and consideration. This is the fact that he has served the country as a politician for 17 years. The factors that are against him are that he has committed a serious crime and one which is despicable and unacceptable to our society. He was a very high ranking officer being the number two in the hierachy of the country’s administration and he has not shown a high moral standard by committing sodomy, an offence which demands outright condemnation. It pains me to impose a custodial sentence on a former Deputy Prime Minister of the country but I have no choice. I would be failing in my duty if I do not impose a sentence commensurable with the offence. It is indeed pitiful and sad that Dato’ Seri Anwar indulged himself in such an act which is an act of self destruction which led to his downfall. <br />
<br />
Another factor to be taken into account is that Dato’ Seri Anwar is above 50 years of age and no whipping is to be imposed on him under s 289(c) of the CPC. I also considered he has one previous conviction. I am also inclined to order the sentence of imprisonment which I propose to impose to run consecutively after, the expiry of the sentence of six years which Dato’ Seri Anwar is now serving on the ground that the offence on which is now convicted is a distinct offence from the previous offence for which he is now serving imprisonment sentence. The order the present sentence to run concurrently to the sentence he is now serving would not reflect the seriousness of the offence. <br />
<br />
In the circumstances and after taking into consideration of all the mitigating factors available I am of the firm view that the appropriate sentence on Dato’ Seri Anwar is nine years imprisonment to run consecutively from the present sentence he is now serving. <br />
<br />
As for Sukma, I take into consideration he is liable to whipping and this is a factor which merits a lesser sentence of imprisonment. There are no compelling circumstances which would justify a light sentence on him. The state of his health does not warrant that whipping should not be imposed on him. The state of his health will be a matter for the Medical Officer to decide at the time of the inflicting of the punishment of whipping as provided for under s 290 of the CPC. <br />
<br />
In the circumstances and after taking into consideration of the mitigating factors, I sentenced Sukma to six years imprisonment with effect from date of conviction and two strokes on the first charge and six years on the second charge and two strokes. The sentence of imprisonment to run concurrently. <br />
<br />
The defence counsel on behalf of Sukma applied for a stay of execution. Despite an objection by the prosecution, I exercised my discretion to grant a stay taking into consideration that there is no likelihood of him absconding, since he has been attending the trial when he was on bail. I am also of the view that the accused should be given all the latitude to defend himself until his right of appeal is exhausted. I accordingly ordered the stay of execution and Sukma is released on a bail of RM50,000 with two sureties pending his appeal. I also ordered that his International Passport be retained in the custody of the court with liberty to apply.<br />
<br />
<br />
<br />
Both accused guilty on the charges against them.<br />
<br />
<br />
<br />
Reported by Jafisah JaafarRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-58199308360007341462009-10-18T02:56:00.001-07:002009-10-18T02:56:46.422-07:00Basil bin Omar v Public Prosecutor[2003] 1 MLJ 192<br />
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<br />
Basil bin Omar v Public Prosecutor<br />
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Headnote<br />
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Court Details<br />
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COURT OF APPEAL (KUALA LUMPUR) — CRIMINAL APPEAL NO S–05–27 OF 1994<br />
<br />
ABDUL HAMID MOHAMAD, MOHD SAARI, KC VOHRAH JJCA<br />
<br />
8 OCTOBER 2002<br />
<br />
Catchwords<br />
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Criminal Law — Dangerous Drugs Act (Malaysia) — s 39B(1)(a) — Whether accused had actual possession of the impugned drugs — Whether the impugned drugs were adequately examined<br />
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Criminal Procedure — Appeal — Evidence — Trial judge did not make affirmative finding that the accused had actual possession of the impugned drugs — Whether sufficient evidence to support finding of actual possession<br />
<br />
Summary<br />
<br />
This was an appeal against the decision of the High Court of Sandakan in which the appellant (‘the accused’) was convicted on a charge of trafficking 1,241g of cannabis under s 39B(1)(a) of the Dangerous Drugs Act 1952 (‘DDA’) and was sentenced to death under s 39B(2) thereof. On 31 January 1990, the accused boarded a taxi in front of Sandakan market to get to Jaya Chip. The accused sat in the front passenger seat next to the taxi driver (‘PW4’). At the time of boarding the taxi, the accused had a striped bag (P7) and a blue jacket (P8) with him. On the way there, the taxi was stopped at a roadblock set up by the police. At the roadblock, the accused was requested to come out of the taxi by PC Aziz (‘PW3’). Upon alighting from the taxi, the accused attempted to run away but was caught after putting up a struggle. On checking the front passenger seat, PW3 found a jacket on top of the striped bag. Upon examining the bag, PW3 found two packages containing dried leaves. The dried leaves were sent to the chemist for analysis and the result found that the dried leaves were cannabis. The issues for determination were whether the accused had actual possession of the impugned drugs and whether the impugned drugs were adequately examined and analyzed by the chemist (‘PW1’)<br />
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Holdings<br />
<br />
Held, dismissing the appeal:<br />
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(1) From the facts and circumstances of the case, the accused had physical control of the impugned drugs. On the conduct of the accused, the evidence established that: (i) on sighting the roadblock, the accused told PW4 to turn the taxi back to town; (ii) the accused covered the bag with his jacket; and (iii) the accused tried to run away and on being stopped, the accused put up a struggle. From the conduct and surrounding circumstances of the case, the irresistible inference was that the accused must have had knowledge of the impugned drugs inside the bag (see p 197C–F); Chan Pean Leong v Public Prosecutor [1956] MLJ 237 followed.<br />
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(2) The court distinguished Leong Bon Huat v Public Prosecutor [1993] 3 MLJ 11 in that the facts of that case showed that out of the cannabis weighing 793.85g, the chemist merely took a representative sample from 79.30g for analysis, leaving the balance of the cannabis not analyzed. In the instant appeal, the court observed that PW1 took representative samples weighing 120g from different parts of the impugned drugs in package exh ‘1’ for analysis and representative samples weighing 6g from different parts at random from the impugned drugs in package exh ‘2’. In the premise, the court held that the appeal on this issue was without merit (see pp 197H–198A); Leong Bon Huat v Public Prosecutor [1993] 3 MLJ 11 distinguished.<br />
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(3) Reverting to the first issue, the court was conscious of the fact that the learned trial judge did not make an affirmative finding that the accused was in actual possession of the impugned drugs. However, following Tunde Apatira & Ors v Public Prosecutor [2001] 2 MLJ 259 and the evidence against the accused, the court was of the view that it was appropriate to apply the proviso of s 60(1) of the Courts of Judicature Act 1964 (‘the CJA’) to this case (see p 198A, C–D); Tunde Apatira & Ors v Public Prosecutor [2001] 2 MLJ 259 followed.<br />
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Bahasa Malaysia summary<br />
<br />
Ini merupakan rayuan terhadap keputusan Mahkamah Tinggi Sandakan di mana perayu (‘tertuduh’) telah disabitkan di atas pertuduhan mengedar 1,241g kanabis di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 (‘ADB’) dan telah dijatuhkan hukuman mati di bawah s 39B(2). Pada 31 Januari 1990, tertuduh telah menaiki sebuah teksi di hadapan pasar Sandakan untuk pergi ke Jaya Chip. Tertuduh telah duduk di bahagian hadapan penumpang sebelah pemandu teksi tersebut (‘PW4’). Pada masa menaiki teksi tersebut, tertuduh mempunyai sebuah beg bercorak belang-belang (P7) dan jaket biru (P8) bersama beliau. Semasa ke sana, teksi tersebut telah berhenti di satu sekatan jalan yang diadakan oleh pihak polis. Di sekatan jalan tersebut, tertuduh telah diminta keluar daripada teksi tersebut oleh PC Aziz (‘PW3’). Sebaik sahaja turun daripada teksi tersebut, tertuduh cuba melarikan diri tetapi telah ditangkap selepas berlaku satu pergelutan. Semasa memeriksa tempat duduk penumpang di bahagian depan, PW3 menjumpai jaket di atas beg bercorak belang-belang tersebut. Semasa memeriksa beg tersebut, PW3 menjumpai dua bungkusan yang mengandungi daun-daun kering. Daun-daun kering tersebut telah dihantar kepada ahli kimia untuk dianalisa dan hasilnya menunjukkan bahawa daun-daun kering tersebut adalah kanabis. Persoalan-persoalan untuk ditentukan adalah sama ada tertuduh mempunyai milikan sebenar dadah yang dipersoalkan dan sama ada dadah yang dipersoalkan telah diperiksa dan dianalisa secukupnya oleh ahli kimia tersebut (‘PW1’).<br />
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Bahasa Holdings<br />
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Diputuskan, menolak rayuan tersebut:<br />
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(1) Daripada fakta-fakta dan keadaan-keadaan kes tersebut, tertuduh mempunyai kawalan fizikal ke atas dadah yang dipersoalkan. Berhubung perbuatan tertuduh, keterangan menunjukkan bahawa: (i) melihat sekatan jalan, tertuduh telah memberitahu PW4 untuk pusing balik ke pekan; (ii) tertuduh menutup beg tersebut dengan jaket beliau; dan (iii) tertuduh telah cuba melarikan diri dan apabila disuruh berhenti, tertuduh telah melawan. Daripada perbuatan dan keadaan sekeliling kes, inferens yang tidak dapat dibendung adalah bahawa tertuduh mestilah mempunyai pengetahuan tentang dadah yang dipersoalkan dalam beg tersebut (lihat ms 197C–F); Chan Pean Leong v Public Prosecutor [1956] MLJ 237 diikut.<br />
<br />
(2) Mahkamah telah membezakan Leong Bon Huat v Public Prosecutor [1993] 3 MLJ 11 di mana fakta-fakta dalam kes tersebut telah menunjukkan bahawa daripada sejumlah kanabis yang beratnya 793.85g, ahli kimia tersebut hanya mengambil satu contoh representatif daripada 79.30g untuk analisis, meninggalkan baki kanabis tersebut tidak dianalisa. Dalam rayuan semasa, mahkamah memperhatikan bahawa PW1 telah mengambil contoh representatif yang beratnya 120g daripada bahagian-bahagian yang berbeza dadah yang dipersoalkan dalam bungkusan eksh ‘1’ untuk analisis dan contoh-contoh representatif yang beratnya 6g daripada bahagian-bahagian yang berbeza dadah yang dipersoalkan dalam bungkusan eksh ‘2’. Dalam premis tersebut, mahkamah telah memutuskan bahawa rayuan berhubung persoalan ini adalah tanpa merit (lihat ms 197H–198A); Leong Bon Huat v Public Prosecutor [1993] 3 MLJ 11 dibeza.<br />
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(3) Berbalik kepada persoalan pertama, mahkamah peka tentang hakikat bahawa hakim perbicaraan yang arif tidak membuat satu penemuan yang kukuh bahawa tertuduh mempunyai milikan sebenar dadah yang dipersoalkan. Namun begitu, mengikut Tunde Apatira & Ors v Public Prosecutor [2001] 2 MLJ 259 dan keterangan terhadap tertuduh, mahkamah berpendapat bahawa adalah sesuai untuk memakai proviso s 60(1) Akta Mahkamah Kehakiman 1964 (‘AMK’) kepada kes ini (lihat ms 198A, C–D); Tunde Apatira & Ors v Public Prosecutor [2001] 2 MLJ 259 diikut.<br />
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Notes<br />
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For cases on Dangerous Drugs Act 1952 s 39B(1)(a), see 4 Mallal’s Digest (4th Ed, 2001 Reissue) paras 143–203.<br />
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For cases on evidence, see 5 Mallal’s Digest (4th Ed, 2001 Reissue) paras 255–294.<br />
<br />
Cases referred to<br />
<br />
Chan Pean Leon v PP [1956] MLJ 237 (folld)<br />
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Leong Bon Huat v PP [1993] 3 MLJ 11 (distd)<br />
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Muhammed Hassan v PP [1998] 2 CLJ 170 (refd)<br />
<br />
Tunde Apatira & Ors v PP [2001] 1 MLJ 259 (folld)<br />
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Legislation referred to<br />
<br />
Legislation referred to<br />
<br />
Courts of Judicature Act 1964 s 60(1)<br />
<br />
Dangerous Drugs Act 1952 ss 2, 39B, (1)(a), (2)<br />
<br />
Lawyers<br />
<br />
VK Liew (VK Liew & Co) for the appellant.<br />
<br />
Nurulhuda bte Mohd Nor (Attorney-General’s Chambers) for the respondent.<br />
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Judgement - Mohd Saari JCA<br />
<br />
Mohd Saari JCA (delivering judgment of the court): This appeal was against the decision of the High Court of Sandakan in which the appellant (‘the accused’) was convicted on a charge of trafficking under s 39B(1)(a) of the Dangerous Drugs Act 1952 (‘the DDA’) and was sentenced to death under s 39B(2) thereof. At the conclusion of the hearing, we unanimously dismissed the appeal.<br />
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The charge against the accused reads:<br />
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<br />
<br />
That you, on the 1st day of February 1990 at about 12.35 am, Jalan Batu Sapi, Pasir Putih, the District of Sandakan, in the State of Sabah, on your own behalf did traffic in a dangerous drug, to wit 1,241 grammes of cannabis and that you have thereby committed an offence under s 39B(1)(a) of the Dangerous Drugs Act 1952 (Revised 1980) and punishable under s 39B(2) of the same Act.<br />
<br />
<br />
<br />
The prosecution’s case<br />
<br />
Briefly, the facts are as follows. On 31 January 1990, at about midnight, PW4 was in his taxi, No SS 7011, in front of Sandakan market when PW4 was approached by the accused. They struck a bargain whereby PW4 agreed to take the accused to Jaya Chip which was at the end of Jalan Batu Sapi for a fare of RM10. The accused boarded the taxi and sat in the front passenger seat next to PW4. There was no other person in the taxi.<br />
<br />
At the time of boarding the taxi, the accused had a striped bag (P7) and a blue jacket (P8) with him. The taxi proceeded to Jaya Chip via Pasir Putih. On reaching Pasir Putih, the taxi stopped at a road-block which was set up by the police. At the roadblock, the accused came out of the taxi at the request of PC Aziz (‘PW3’). After having alighted from the taxi, the accused attempted to run away but PW3 caught him by the collar of his shirt. The accused put up a struggle before being handcuffed. On checking the front passenger seat, PW3 found a jacket on top of the striped bag (P7). PW3 took the bag to the bus stop near the roadblock. In examining the bag, PW3 found a plastic bag therein with the word ‘Ajinomoto’ written on it. In the plastic bag there were two packages stuffed with dried leaves. The police <br />
<br />
sent the dried leaves to the chemist for analysis. The result of the analysis was that the dried leaves in the two packages were cannabis within the meaning of s 2 of the DDA and weighed 1,241g.<br />
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The case for the defence<br />
<br />
The case for the defence was that on the night in question, the accused had gone to a fish market at Sandakan with two others. From the fish market, the accused took a taxi to go to Kg Bahagia. While en route to Kg Bahagia, the taxi stopped at a roadblock at Pasir Putih. At the roadblock, on the instruction of the police, he alighted from the taxi and went to a bus stop nearby. While at the bus stop, the police handcuffed him. The accused denied carrying anything when he boarded the taxi. He also denied that PW4 was the driver of the taxi. In short, the defence was one of frame-up. <br />
<br />
The issues<br />
<br />
At the hearing of this appeal, the issues which emerged were as follows:<br />
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(i) whether the accused had actual possession of the impugned drugs;<br />
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(ii) whether the impugned drugs were adequately examined and analyzed by the chemist (PW1).<br />
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<br />
<br />
On the first issue<br />
<br />
The learned deputy public prosecutor (‘DDP’) submitted that though there was no affirmative finding by the learned trial judge that the accused was in actual possession of the impugned drugs on the principle as enunciated in Muhammed Hassan v Public Prosecutor [1998] 2 CLJ 170, there was sufficient evidence to support a finding that the accused was in actual possession of the impugned drugs. Evidence was led by prosecution and was accepted by the trial judge may be enumerated as follows:<br />
<br />
<br />
<br />
(1) at all material times, PW4 was the driver of the taxi with the accused sitting next to the former. Such finding was supported by the evidence of police personnel;<br />
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(2) at the time of boarding the taxi, the accused was carrying a striped bag (exh P7);<br />
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(3) while in the taxi, the accused placed the bag and the jacket on his lap;<br />
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(4) on sighting the roadblock, the accused requested PW4 to turn back to town;<br />
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(5) on nearing the roadblock, the accused placed the bag on the floor board in front of him and covered it with the jacket;<br />
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(6) while at the roadblock, the accused tried to run away but was stopped by PW3. Before the accused was being handcuffed, the accused put up a struggle.<br />
<br />
<br />
<br />
In Chan Pean Leon v Public Prosecutor [1956] MLJ 237 at p 239, Thomson J (as he then was) said:<br />
<br />
<br />
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‘Possession’ itself as regards the criminal law is described as follows in Stephen’s Digest (9th Ed, p 304):<br />
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‘A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.’<br />
<br />
To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shewn that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. <br />
<br />
<br />
<br />
On the facts and circumstances of this case as stated above, we agree with the learned DPP that the accused had physical control of the impugned drugs. On conduct of the accused, the evidence established the following:<br />
<br />
<br />
<br />
(i) on sighting the roadblock, the accused told the taxi driver (PW4) to turn the taxi back to town;<br />
<br />
(ii) the accused covered the bag with his jacket;<br />
<br />
(iii) the accused tried to run away and on being stopped, the accused put up a struggle.<br />
<br />
<br />
<br />
From the conduct and surrounding circumstances of the case, the irresistible inference is that the accused must have had knowledge of the impugned drugs inside the bag. On this issue, our finding is in the affirmative.<br />
<br />
On the second issue<br />
<br />
Mr Liew, the learned counsel for the accused, told the court that this issue was his strongest point. Our attention was drawn to the impugned drugs in package exh ‘1’ and in package exh ‘2’. He submitted that the impugned drugs were not adequately analyzed on the ground that only 120g (a little bit more than 10%) was taken for analysis from package exh ‘1’ and only 6g was taken from the package exh ‘2’. The Supreme Court case of Leong Bon Huat v Public Prosecutor [1993] 3 MLJ 11 was cited in support of the defence’s case.<br />
<br />
Adverting to the evidence of PW1 (chemist), we observe that PW1 took representative samples weighing 120g from different parts of the impugned drugs in package exh ‘1’ for analysis and representative samples weighing 6g from different parts at random from the impugned drugs in package exh ‘2’. With greatest respect, we are of the view that the facts in Leong Bon Huat are distinguishable. In that case, according to the chemist’s testimony, out of the cannabis weighing 793.85g, he merely took a representative sample from 79.30g for analysis, leaving the balance of the cannabis not analyzed. In the premise, we hold that the appeal on this issue is without merit.<br />
<br />
Reverting to the first issue, we are conscious of the fact that nowhere in his judgment did the learned trial judge make an affirmative finding that the accused was in actual possession of the impugned drugs. However, we are reminded of the Federal Court case of Tunde Apatira & Ors v Public Prosecutor [2001] 1 MLJ 259. In that case, his lordship Gopal Sri Ram JCA said at p 266:<br />
<br />
<br />
<br />
As a general rule this court will, in the normal course of events, quash a conviction where there has been a misdirection. Exceptionally, a conviction will be upheld despite a misdirection where this court is satisfied, that a reasonable tribunal would have convicted the accused on the available evidence on a proper direction. The decision of this court in Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209 exemplifies the general rule, while that in Khoo Hi Chiang v PP [1994] 1 MLJ 265 illustrates the exception.<br />
<br />
<br />
<br />
As for the instant case, the evidence, both direct and circumstantial, against the accused is, in our view, overwhelming, hence this is an appropriate case for the proviso of s 60(1) of the Courts of Judicature Act 1964 to apply.<br />
<br />
In the premise and for reasons abovestated, we dismissed the appeal. The conviction and sentence imposed by the court below is hereby affirmed.<br />
<br />
<br />
<br />
Appeal dismissed.<br />
<br />
<br />
<br />
Reported by Zahid TaibRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-6435744349986306992009-10-17T06:24:00.001-07:002009-10-17T06:24:55.771-07:00<script type="text/javascript">
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</script>Raghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com2tag:blogger.com,1999:blog-2322324467701967584.post-51934108840994622792009-10-16T08:35:00.000-07:002009-10-16T08:35:26.513-07:00Lee Chin Cheng Dengkil Oil Palm v Kaplands Sdn Bhd[2003] 1 MLJ 177<br />
<br />
<br />
Lee Chin Cheng Dengkil Oil Palm v Kaplands Sdn Bhd<br />
<br />
Headnote<br />
<br />
Court Details<br />
<br />
COURT OF APPEAL (KUALA LUMPUR) — CIVIL APPEAL NO W–02–898 OF 2001<br />
<br />
ABDUL HAMID MOHAMAD, RICHARD MALANJUM AND ARIFIN ZAKARIA JJCA<br />
<br />
22 NOVEMBER 2002<br />
<br />
Catchwords<br />
<br />
Contract — Construction of terms of contract — Intention of parties — Whether parties had agreed that private caveat on land should not be treated as an encumbrance for purposes of the sale and purchase agreement — Whether phrase in recital that land was to be sold ‘in the present state and condition subject to all conditions of title’ prevailed over terms in agreement that land shall be free ‘from all encumbrances’<br />
<br />
<br />
<br />
Contract — Sale and purchase of land — Variation — Whether parties had agreed to vary terms of agreement — Whether provision in agreement was still applicable in view of variation — Whether it was necessary for respondent to give notice of termination pursuant to terms of the agreement in view of the variation<br />
<br />
<br />
<br />
Land Law — Restraint on dealings — Caveats — Private caveat — Whether private caveat was an encumbrance within the context of National Land Code 1965<br />
<br />
<br />
<br />
Words and Phrases — Encumbrances — Meaning of<br />
<br />
Summary<br />
<br />
The appellant was the registered owner of land known as Lot 6984, Mukim Dengkil, Daerah Sepang, Selangor (‘the said land’). By a sale and purchase agreement (‘the agreement’) dated 2 July 1997, the respondent agreed to purchase the said land at the price of RM39,808,750. Upon execution of the agreement, the respondent paid the deposit amounting to 10% of the purchase price. Clause 2.1 of the agreement stipulated, inter alia, that the said land shall be free ‘from all encumbrances and with vacant possession’. Clause 2.5 of the agreement provided that if at the time of presentation of the transfer in favor of the respondent, the title was not free from encumbrances other than caveats filed by the respondent and/or its financier, the respondent shall grant to the appellant a period of one month to remove the encumbrances failing which the respondent shall have the option to abort the purchase and the deposit shall then be refunded to the respondent. Clause 10.2 of the agreement provided that if the appellant should fail to complete the sale of the said property or default in any other obligations on the part of the appellant to be performed, the respondent shall be entitled to either claim for specific performance of the agreement or terminate the agreement by notice to the appellant, whereupon the appellant shall refund to the respondent the deposit. The respondent was concerned over a certain private caveat (‘the MPI caveat’) that had been entered against the said land and this had prompted the respondent to write to the appellant on 21 November 1997 and propose that the appellant be given a period of three months to clear the title from all encumbrances, other than <br />
<br />
<br />
<br />
Page 178>>the caveats filed by the respondent and/or its financier. It was further proposed that if at the end of the three month period, the encumbrances were still not removed, the respondent would have the option to abort the purchase or to grant a further extension of time thereon. The appellant replied to the respondent on 24 November 1997 stating its agreement to the respondent’s proposal. Accordingly, the balance sum had to be paid by 19 February 1998 (‘the completion date’). The respondent refused to pay the balance sum on the completion date due to the existence of the MPI caveat on the said land and aborted the agreement. The respondent claimed for the refund of the 10% deposit paid to the appellant but the appellant maintained that the respondent had wrongfully terminated the agreement and the appellant was entitled to forfeit the 10% deposit. The learned trial judge agreed with the respondent and entered judgment in favor of the respondent. This is the appellant’s appeal against the decision of the learned judge. <br />
<br />
Holdings<br />
<br />
Held, dismissing the appeal:<br />
<br />
(1) The word ‘encumbrances’ read within the context of the National Land Code 1965 included a private caveat. Therefore, the word ‘encumbrances’ as used in the agreement included the MPI caveat (see p 185C–D); Mewah Plus Property Sdn Bhd v Kluang District Government Servants Co-operative Housing Society Ltd [2000] 2 MLJ 456 followed.<br />
<br />
(2) If the parties had indeed agreed that the MPI caveat should not be treated as an encumbrance for the purpose of the agreement (as alleged by the appellant), then the parties could have expressly said so in the agreement itself. Further, even if there was an agreement between the parties to vary the terms of the agreement so as to disregard the private caveat for the purpose of the agreement, such variation would have to be evidenced in writing, as required by cl 21.3 of the agreement, which provided that no amendment of the provisions of the agreement shall be binding or effective unless it was in writing and signed by all the parties (see p 186C–F).<br />
<br />
(3) The phrase ‘… in the present state and condition subject to all conditions of title …’ as found in recital (B) of the agreement could not override cll 2.1 and 11.1 of the agreement that the said land shall be free ‘from all encumbrances and with vacant possession’. Therefore, in accordance with the terms of the agreement, the appellant was under an obligation to ensure that the said land was free from all encumbrances and with vacant possession on the completion date (see p 187A–B).<br />
<br />
(4) From the appellant’s letter dated 24 November 1997, it was clear that the parties had agreed to vary the terms of the agreement to the extent stated in the said letter. Therefore, by necessary implication, cl 2.5 of the agreement was no longer <br />
<br />
<br />
<br />
Page 179>>applicable in view of the variation, otherwise, the variation would be devoid of any effect whatsoever. The parties had, under the new terms, agreed to give the appellant a specific time frame to clear the title of the said land of all the encumbrances, other than those expressly excepted, failing which the respondent was given the option to abort the purchase. This was clearly intended to override the provisions of cl 2.5 of the agreement (see p 190C, H–I).<br />
<br />
(5) By virtue of the variation to the terms of the agreement as embodied in the appellant’s letter of 24 November 1997, it was no longer necessary for the respondent to give a notice under cl 10.2 of the agreement because under the varied terms, what the respondent was required to do at the end of the three month period was to see whether the title was free from all encumbrances other than the existing charge and the caveats filed by the respondent and/or its financier. If it was not, then the respondent had the option, without more, to abort the purchase or to grant a further extension of time to the appellant. If the respondent was not desirous of granting a further time then what the respondent needed to do was to give a notice, as had been done by the respondent in the instant case, to the appellant that it had chosen to abort the purchase and with such notice the respondent was immediately entitled to the refund of the deposit. No further notice under cl 10.2 of the agreement was required. Accordingly, the respondent’s letter of 20 February 1998 purporting to terminate the agreement was legally valid and effective (see p 191C–F).<br />
<br />
Bahasa Malaysia summary<br />
<br />
Perayu adalah pemilik berdaftar sekeping tanah yang dikenali sebagai Lot 6984, Mukim Dengkil, Daerah Sepang, Selangor (‘tanah tersebut’). Melalui satu perjanjian jual beli (‘perjanjian tersebut’) bertarikh 2 Julai 1997, responden telah bersetuju membeli tanah tersebut pada harga RM39,808,750. Setelah penyempurnaan perjanjian tersebut, responden telah membayar deposit berjumlah 10% daripada harga belian. Klausa 2.1 perjanjian menyatakan, antara lain, bahawa tanah tersebut perlu bebas ‘from all encumbrances and with vacant possession’. Klausa 2.5 perjanjian memperuntukkan bahawa jika pada masa penyampaian pemindahan tersebut yang berpihak kepada responden, hakmilik tersebut tidak bebas daripada sekatan selain daripada kaveat-kaveat yang difailkan oleh responden dan/atau pembiayanya, responden hendaklah memberikan perayu satu tempoh selama sebulan untuk membatalkan sekatan-sekatan tersebut yang mana jika perayu gagal berbuat demikian, responden mempunyai pilihan untuk membatalkan belian tersebut dan deposit tersebut hendaklah dikembalikan kepada responden. Klausa 10.2 kepada perjanjian tersebut memperuntukkan bahawa jika perayu <br />
<br />
<br />
<br />
Page 180>>gagal menyempurnakan jualan tanah tersebut atau gagal dalam apa-apa tanggungjawab di pihak perayu untuk dilaksanakan, responden berhak untuk sama ada menuntut pelaksanaan spesifik perjanjian tersebut atau menamatkan perjanjian tersebut melalui notis kepada perayu, di mana perayu hendaklah mengembalikan deposit kepada respondent. Responden bimbang tentang satu kaveat persendirian (‘kaveat MPI’) yang telah dimasukkan ke atas tanah tersebut dan ini telah menyebabkan responden menulis kepada perayu pada 21 November 1997 dan mencadangkan agar perayu diberikan satu tempoh selama tiga bulan untuk membebaskan hakmilik tersebut daripada semua sekatan, selain daripada kaveat-kaveat yang telah difailkan oleh responden dan/atau pembiayanya. Seterusnya telah dicadangkan jika di akhir tempoh tiga bulan tersebut, sekatan-sekatan tersebut masih tidak dibatalkan, responden akan mempunyai pilihan untuk membatalkan belian atau memberikan satu lanjutan masa yang lain. Perayu telah membalas kepada responden pada 24 November 1997 dengan menyatakan persetujuannya kepada cadangan responden. Sewajarnya, baki jumlah tersebut perlu dibayar pada 19 Februari 1998 (‘tarikh penyelesaian’). Responden enggan membayar baki jumlah tersebut pada tarikh penyelesaian oleh sebab kewujudan kaveat MPI atas tanah tersebut dan membatalkan perjanjian tersebut. Responden menuntut bayaran balik deposit sebanyak 10% yang telah dibayar kepada perayu tetapi perayu menegaskan bahawa responden telah membatalkan perjanjian tersebut dengan salah dan perayu berhak mengambil deposit 10% tersebut. Hakim perbicaraan yang arif bersetuju dengan responden dan memasuki penghakiman bagi pihak responden. Ini adalah rayuan perayu terhadap keputusan hakim yang arif.<br />
<br />
Bahasa Holdings<br />
<br />
Diputuskan, menolak rayuan tersebut:<br />
<br />
(1) Perkataan ‘encumbrances’ dibaca dalam konteks Kanun Tanah Negara 1965 termasuk kaveat persendirian. Oleh itu, perkataan ‘encumbrances’ sebagaimana yang digunakan dalam perjanjian adalah termasuk kaveat MPI tersebut (lihat ms 185C–D); Mewah Plus Property Sdn Bhd v Kluang District Government Servants Co-operative Housing Society Ltd [2000] 2 MLJ 456 diikut.<br />
<br />
(2) Sekiranya pihak-pihak sememangnya bersetuju bahawa kaveat MPI tidak patut dianggap sebagai satu sekatan bagi tujuan perjanjian (sebagaimana yang dikatakan oleh perayu), oleh itu pihak-pihak sepatutnya menyatakan sedemikian dalam perjanjian tersebut. Tambahan pula, jikapun terdapat satu perjanjian antara pihak-pihak untuk mengubah terma-terma perjanjian agar kaveat persendirian tidak dihiraukan bagi tujuan perjanjian tersebut, perubahan tersebut sepatutnya diberi keterangan secara bertulis, sebagaimana yang dikehendaki dalam kl 21.3 perjanjian tersebut, yang memperuntukkan bahawa tiada pindaan kepada peruntukan-peruntukan perjanjian tersebut akan mengikat atau <br />
<br />
<br />
<br />
Page 181>>berkuat kuasa kecuali ia secara bertulis dan ditandatangani oleh semua pihak (lihat ms 186C–F).<br />
<br />
(3) Ungkapan ‘… in the present state and condition subject to all conditions of title …’ sebagaimana didapati dalam resital (B) perjanjian tidak boleh mengatasi kl 2.1 dan 11.1 perjanijan bahawa tanah tersebut adalah bebas ‘from all encumbrances and with vacant possession’. Oleh itu, menurut terma-terma perjanjian, perayu adalah bertanggungjawab untuk memastikan bahawa tanah tersebut adalah bebas daripada semua sekatan dan dengan milikan kosong pada tarikh penyelesaian tersebut (lihat ms 187A–B).<br />
<br />
(4) Daripada surat perayu bertarikh 24 November 1997, adalah jelas bahawa pihak-pihak telah bersetuju untuk mengubah terma-terma perjanjian sebagaimana yang dinyatakan dalam surat tersebut. Oleh itu, melalui implikasi yang sewajarnya, kl 2.5 perjanjian tersebut tidak lagi terpakai memandangkan terdapatnya perubahan tersebut, jika tidak, perubahan tersebut tidak mempunyai apa-apa kesan langsung. Pihak-pihak telah, di bawah terma-terma baru, bersetuju untuk memberikan perayu satu tempoh masa yang spesifik untuk membebaskan hakmilik tanah tersebut daripada semua sekatan, selain daripada yang telah dinyatakan untuk dikecualikan, di mana jika gagal, responden akan diberikan pilihan untuk membatalkan belian tersebut. Adalah jelas terdapat niat untuk menolak peruntukan kl 2.5 perjanjian tersebut (lihat ms 190C, H–I).<br />
<br />
(5) Menurut perubahan terma-terma perjanjian sebagaimana yang terkandung dalam surat perayu bertarikh 24 November 1997, adalah tidak perlu untuk responden memberikan notis di bawah kl 10.2 perjanjian kerana di bawah terma-terma yang diubah tersebut, apa yang responden perlu buat di akhir tempoh tiga bulan tersebut adalah untuk melihat sama ada hakmilik tersebut bebas daripada semua sekatan selain daripada gadaian yang wujud dan kaveat-kaveat yang difailkan oleh respondent dan/atau pembiayanya. Jika tidak, maka responden mempunyai pilihan, tidak lebih daripada itu, untuk membatalkan belian tersebut atau memberikan lanjutan masa lagi kepada perayu. Jika responden tidak berhasrat untuk memberikan lanjutan masa, maka apa yang responden perlu buat adalah untuk memberikan satu notis, sebagaimana yang telah dilakukan oleh responden dalam kes semasa, kepada perayu bahawa ia telah memilih untuk membatalkan belian tersebut dan dengan notis sedemikian responden dengan serta-merta berhak untuk mendapat balik deposit tersebut. Tiada notis lanjutan di bawah kl 10.2 perjanjian yang diperlukan. Sewajarnya, surat responden bertarikh 20 Februari 1998 yang bertujuan untuk menamatkan perjanjian tersebut adalah sah di sisi undang-undang dan berkuatkuasa (lihat ms 191C–F).]<br />
<br />
<br />
<br />
Page 182>><br />
<br />
Notes<br />
<br />
For cases on intention of parties under construction of terms of contract, see 3 Mallal’s Digest (4th Ed, 2000 Reissue), paras 2381–2386.<br />
<br />
For cases on variation under sale and purchase of land, see 3 Mallal’s Digest (4th Ed, 2000 Reissue), paras 3716–3717.<br />
<br />
For cases on caveats, see 8 Mallal’s Digest (4th Ed, 2001 Reissue), paras 3015–3312.<br />
<br />
Cases referred to<br />
<br />
Chooi Siew Cheong v Lucky Height Development Sdn Bhd & Anor [1995] 1 MLJ 513 (refd)<br />
<br />
Karuppannan v Balakrishnen (Chong Lee Chin & Ors, third parties) [1994] 3 MLJ 584 (refd)<br />
<br />
Leggot v Barnett (1880) 15 Ch D 306 (refd)<br />
<br />
Mewah Plus Property Sdn Bhd v Kluang District Government Servants Co-operative Housing Society Ltd [2000] 2 MLJ 456 (folld)<br />
<br />
Railway Assets Corp v Elmspark Holding [1997] 3 MLJ 224 (refd)<br />
<br />
Woon Kim Poh v Sa’amah bt Hj Kasim [1987] 1 MLJ 400 (refd)<br />
<br />
Legislation referred to<br />
<br />
Legislation referred to<br />
<br />
National Land Code s 322(2)<br />
<br />
Appeal from<br />
<br />
Appeal from: Civil Suit No S7–(4)–22–321 of 1998 (High Court, Kuala Lumpur)<br />
<br />
Lawyers<br />
<br />
DP Naban (Ben CC Chan and Andrew Chiew Ean Vooi with him) (Lee Hishammuddin) for the appellant.<br />
<br />
Dato’ Mahinder Singh Dulku (Shahidah bte Aris with him) (Mahinder Singh Dulku & Co) for the respondent.<br />
<br />
Judgement - Arifin Zakaria JCA<br />
<br />
Arifin Zakaria JCA : The appellant (the defendant in the court below) is the registered owner of land known as Lot 6984, Mukim Dengkil, Daerah Sepang, Selangor (‘the said land’). By a sale and purchase agreement (‘the agreement’) dated 2 July 1997, the respondent (the plaintiff in the court below) agreed to purchase the said land at the price of RM39,808,750. Upon execution of the agreement, the respondent paid the sum of RM3,980,875 being the 10% deposit pursuant to cl 2.1 of the agreement. According to cl 2.2, the balance of the purchase price (‘the balance sum’) is to be paid on or before the expiry of 90 days from the application date or within seven days from the receipt of approval from the FIC, whichever shall be the later. Through exchange of letters it was agreed between the parties that the date of payment of the balance sum shall be 19 February 1998 (‘the completion date’).<br />
<br />
At the material time, three private caveats were lodged against the said land by:<br />
<br />
<br />
<br />
Page 183>><br />
<br />
<br />
<br />
(i) MPI Paper Mill Sdn Bhd dated 9 January 1995 (‘the MPI caveat’);<br />
<br />
(ii) Straw Paperboard Industries dated 24 October 1997; and<br />
<br />
(iii) Golden Skyline Sdn Bhd dated 18 October 1998.<br />
<br />
<br />
<br />
However, both before this court and the court below, the respondent only relied on the MPI caveat as a ground in support of its contention that the title of the said land was not free from encumbrances on the completion date. For that reason, the respondent refused to pay the balance sum on the completion date, and pursuant to cl 10.2 of the agreement, the respondent aborted the agreement and claimed for the refund of the 10% deposit paid to the appellant.<br />
<br />
The appellant, however, maintains that the respondent had wrongfully terminated the agreement and in the circumstances, the appellant was entitled to forfeit the 10% deposit. The learned trial judge agreed with the respondent and entered judgment in favor of the respondent. The appellant now appeals to this court against the decision of the learned judge.<br />
<br />
The premise upon which the respondent sought to terminate the agreement is borne out in the respondent’s letter of 20 February 1998, the material part of which reads: <br />
<br />
<br />
<br />
Your clients had previously agreed vide your letter of 24 November 1998 that at the end of the three months’ period which was determined to be 19 February 1998, the title is to be free from encumbrances, other than the BOC charge and the caveats filed by our client and/or its financier. The caveat filed by MPI Paper Mills Sdn Bhd was never agreed to be an exception to the abovementioned term. Further it was never agreed that our client is to present for registration the withdrawal of any caveat on behalf of your client. <br />
<br />
We have made a further search at the Land Office Shah Alam today and we note that the caveat filed by Straw Paperboard Sdn Bhd is still not lifted.<br />
<br />
As the title is still encumbered, our client now exercises the option to abort the purchase of the subject land and accordingly requests the immediate refund of the moneys due to them.<br />
<br />
<br />
<br />
The respondent in the main relies on cl 2.1 of the agreement which stipulates, inter alia, that the said land shall be free ‘from all encumbrances and with vacant possession’. It is common ground that on 20 February 1998, the MPI caveat was still in force against the said land.<br />
<br />
The first issue raised in this appeal is whether the MPI caveat is an ‘encumbrance’ for the purpose of the agreement. The learned counsel for the appellant contended that the word ‘encumbrances’ as found in the agreement does not include private caveats. The agreement does not define the word ‘encumbrances’. The learned trial judge relying on the case of Mewah Plus Property Sdn Bhd v Kluang District Government Servants Co-operative Housing Society Ltd [2000] 2 MLJ 456 and the case of Karuppannan v Balakrishnen (Chong Lee Chin & Ors, third parties) [1994] 3 MLJ 584 held that the MPI caveat, which is a private caveat, is an encumbrance within the context of the National Land Code (‘the NLC’).<br />
<br />
The nature and effect of a private caveat is governed by s 322(2) of the NLC which provides that:<br />
<br />
<br />
<br />
Page 184>><br />
<br />
<br />
<br />
The effect of any private caveat expressed to bind the land itself [or an undivided share in the land] shall, subject to sub-sections (4) and (5), be to prohibit so long as it continues in force the registration, endorsement or entry on the register document of title thereto of –<br />
<br />
(a) any instrument of dealing executed by or on behalf of the proprietor thereof, and any certificate of sale relating thereto;<br />
<br />
(b) any claim to the benefit of any tenancy exempt from registration granted by the said proprietor; and<br />
<br />
(c) any lien-holder’s caveat in respect thereof [:]<br />
<br />
[Provided that where the claim is in respect of a part of the land, the caveat binds the whole land and where the claim is in respect of an undivided share in the land, the caveat binds the whole of the undivided share in the land.]<br />
<br />
<br />
<br />
The Supreme Court in Woon Kim Poh v Sa’amah bt Hj Kasim [1987] 1 MLJ 400 explained the effect of a private caveat. At p 402 it said:<br />
<br />
<br />
<br />
The effect of a private caveat expressed to bind the land itself is to prevent any registered disposition of the land except with the caveator’s consent until the caveat is removed. See also Eng Mee Yong & Ors v V Letchumanan [1979] 2 MLJ 212. A caveat freezes the register at least until the caveator has taken court action to determine his claim — Judith Sihombing, p 588. In the Torrens system where registration is the very basis of the system the prohibition in s 322(2) must be strictly complied with. In other words the Registrar is statutorily obliged to refuse the registration because to do so would be a violation of an expressed provision of the National Land Code.<br />
<br />
<br />
<br />
In short, the effect of private caveat is to freeze the register at least until the caveat is removed. In similar vein, Gopal Sri Ram JCA in Mewah Plus Property Sdn Bhd at pp 459–460 said:<br />
<br />
<br />
<br />
With due respect to counsel for the appellant, we are unable to agree with his argument. In our judgment, the word ‘encumbrances’ in the two clauses already quoted refers to some impediment in the registered title to the said property which prevents the registration of title from the respondent to the appellant. As was pointed out to counsel during argument, ‘encumbrances’ in the context of the agreement in question means an encumbrance in the National Land Code sense. As to what amounts to an encumbrance in the context of the National Land Code, reference may be usefully made to two decisions of the Privy Council on the point.<br />
<br />
The first is T Damodaran v Choe Kuan Him [1979] 2 MLJ 267, where Lord Diplock when delivering the advice of the Board said (at p 269):<br />
<br />
‘In the National Land Code it is s 340 that expressly provides that the title of a person registered as proprietor of any land shall be indefeasible. The only exceptions are where there has been fraud, misrepresentation, forgery or an ultra vires acquisition purporting to have been made under statutory authority. None of these exceptions apply to the instant case. Interests in land, short of proprietorship, which are capable of being registered are leases, charges and easements. If registered they would amount to encumbrances within the meaning of a covenant against encumbrances; but unless registered they do not derogate from the unencumbered title of the registered proprietor of the land. Claims to be entitled to the proprietorship of land or a registrable interest in land, whether or not they are the subject of litigation, are not registrable as <br />
<br />
<br />
<br />
Page 185>>encumbrances on a registered title. Instead they are protected by the system of private caveats which, while leaving the registered title unqualified and intact, have the effect of preventing any dealing with it by the registered proprietor so long as the caveat remains in force; that is, until it is removed from the register. The way in which this system of protection operates was dealt with by their Lordships in the recent case of Eng Mee Yong & Ors v V Letchumanan [1979] 2 MLJ 212, to which reference may conveniently be made.’ <br />
<br />
The second is Letchumanan Chettiar v Palaniappa Chettier [1983] 1 MLJ 6, where (at p 9) Lord Templeman referred to a caveat upon the register as ‘the only relevant encumbrance’, thereby rendering a wider meaning to that expression than that given it by Lord Diplock in T Damodaran v Choe Kuan Him.<br />
<br />
<br />
<br />
(See further the case of Karuppanan v Balakrishnen cited by the learned judge.)<br />
<br />
Based on the above authorities, we agree with the learned judge that the word ‘encumbrances’ read within the context of the NLC would include a private caveat. Therefore, the word ‘encumbrances’ as used in the agreement would certainly include the MPI caveat.<br />
<br />
The further contention by learned counsel for the appellant is that in construing the word ‘encumbrances’ the court is entitled to look at the circumstances leading to the agreement. In support, he cited the case of Chooi Siew Cheong v Lucky Height Development Sdn Bhd & Anor [1995] 1 MLJ 513. In that case, Chong Siew Fai FCJ (as he then was) at p 522 said:<br />
<br />
<br />
<br />
Regard must also be had to any surrounding circumstances, if any, which might legitimately be taken into consideration. In Chamber Colliery Co Ltd v Twyerould [1915] 1 Ch 268n at p 272, Lord Watson said:<br />
<br />
‘I find nothing in this case to oust the application of the well-known rule that a deed ought to be read as a whole, in order to ascertain the true meaning of its several clauses, and that the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed, if that interpretation does no violence to the meaning of which they are naturally susceptible.’<br />
<br />
And, in Barton v Fitzgerald (1812) 15 East 530 at p 541, Lord Ellenborough CJ said:<br />
<br />
‘It is a true rule of construction that the sense and meaning of the parties in any particular part of an instrument may be collected ex antecedentibus et consequentibus: every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done.’<br />
<br />
<br />
<br />
(See also Railway Assets Corp v Elmspark Holding [1997] 3 MLJ 224.)<br />
<br />
In the present case, it is not disputed that in the course of the negotiations, the respondent was informed of the MPI caveat. This is evident from the exchange of letters between solicitors for the parties (see pp 476–492 of the appeal record.) This is supported by the witness statement of Dato’ Iqbal bin Kuppa Pitchai Rawther (PW1) (see Q & A 24 at p 648 of appeal record). DW2 (Mr Lee Boon Joo) in his witness statement at pp 659–660 of the appeal record went even further to say that <br />
<br />
<br />
<br />
Page 186>>Mr Chan Kai Kum, who was the director of the plaintiff, and En Shahrom, the respondent’s solicitor, in the course of the negotiations were specifically informed of MPI’s interest in the said land and that the respondent should not regard the MPI caveat as an encumbrance for the purpose of the agreement. He informed the court that both Mr Chew Kai Kum and En Shahrom agreed to this proposal. In his answer to question no 30, he said:<br />
<br />
<br />
<br />
It was agreed by Mr Chew Kai Kum and En Shahrom that the MPIPM’s private caveat should not be regarded as an encumbrance to the land. The defendant accepted that as well. The defendant had acted on that plaintiff’s agreement because the whole agreement would not go through otherwise.<br />
<br />
<br />
<br />
Having considered the appellant’s submission on this issue, we find that it is devoid of any merit. Our reason for saying so is that if the defendant’s allegation that the parties were in agreement that the MPI caveat should not be treated as an encumbrance for the purpose of the agreement, then the parties could have expressly said so in the agreement itself. The evidence of DW2 merely shows that the respondent was informed of the MPI caveat prior to the execution of the agreement; and nothing more. That being the case, we find it hard to accept the appellant’s contention that the parties have agreed that the MPI caveat was not to be regarded as an encumbrance for the purpose of the agreement.<br />
<br />
Further, we agree with the learned judge that if there is any agreement between the parties to vary or amend any terms of the agreement so as to disregard the MPI caveat for the purpose of the agreement, such variation or amendment will have to be evident in writing, as required by cl 21.3. The said clause clearly stipulates that no amendement of, or addition to, the provisions of the agreement shall be binding or effective unless it is in writing signed by all the parties. We find there is no such agreement between the parties.<br />
<br />
The appellant further contended that since the MPI caveat was in existence prior to the signing of the agreement, the respondent is, therefore, deemed to have accepted it as the parties have agreed to accept the said land ‘… in its present state and condition subject to all conditions of title …’ as per recital (B) of the agreement. The learned judge rejected this argument. In his judgment he said:<br />
<br />
<br />
<br />
In my view, the phrase ‘in its present state and condition’ does not replace the term ‘free from all encumbrances and with vacant possession’. Moreover, this phrase appears in the recital, it cannot override cll 2.1 and 11.1 as contained in the S & P Agreement. Thus, ‘free from all encumbrances and with vacant possession’ remains a fundamental term of the S & P Agreement and at the completion date, the said land was not ‘free from all encumbrances and with vacant possession’. It is clear that cll 2.1 and 11.1 have been breached.<br />
<br />
<br />
<br />
We entirely agree with the learned judge. As observed by Brett LJ in Leggot v Barnett (1880) 15 Ch D 306 at p 311:<br />
<br />
<br />
<br />
If there is any doubt about the construction of the governing words of that document, the recital may be looked at in order to determine what is the true <br />
<br />
<br />
<br />
Page 187>>construction; but if there is no doubt about the construction, the right of the parties are governed entirely by the operative part of the writing or the deed.<br />
<br />
<br />
<br />
Similarly in the present case, we are of the view that the phrase ‘… in the present state and condition subject to all conditions of title …’ as found in recital (B) could not override cll 2.1 and 11.1 of the agreement. In short, in accordance with the terms of the agreement, the appellant is under the obligation to ensure that the said land is free from all encumbrances and with vacant possession on the completion date.<br />
<br />
Reverting to the facts in the present case, it is common ground that on 19 February 1998, ie the new completion date, the MPI caveat was still in force against the said land, and that had prompted the plaintiff through its solicitors to write to the defendant’s solicitors purporting to abort the agreement pursuant to cl 2.5 of the agreement. The next issue is whether, the respondent had complied with the terms of the agreement in bringing the agreement to an end. This calls for our consideration cll 2.5 and 10 of the agreement. Clause 2.5 provides as follows:<br />
<br />
<br />
<br />
2.5 If at the time of presentation of the transfer in favor of the purchaser the title is not free from encumbrances other than caveats filed by the purchaser and/or its financier the purchaser shall grant to the vendor a period of one (1) month to clear the title to enable presentation of the transfer failing which the purchaser shall have the option to abort the purchase and upon exercise of such option by the purchaser the vendor shall refund to the purchaser the deposit and all other moneys paid by the purchaser to the vendor or to the vendor’s solicitors pursuant to the provisions of this agreement including interest (if any) in exchange for re-delivery of vacant possession of the said property and all documents delivered to the purchaser’s solicitors and/or the financier’s solicitors pursuant to the provisions of this agreement except for the said transfer which the purchaser’s solicitors are authorized to make an application to the collector of stamp duty for cancellation and refund of the stamp duty paid thereon.<br />
<br />
<br />
<br />
Therefore, according to this clause, the appellant is given a month’s grace to clear the title of any encumbrance other than the caveats filed by the respondent and/or its financier. If the appellant fails to clear the title of such encumbrances after the expiration of the said period then and only then would the respondent be entitled to abort the purchase.<br />
<br />
The other clause which governs default by parties is cl 10 of the agreement which reads as follows:<br />
<br />
<br />
<br />
10 DEFAULT BY THE PARTIES.<br />
<br />
10.1 If the purchaser shall default in payment of the balance of purchase price or otherwise in discharging the obligations of the purchaser in connection with payment or satisfaction of the balance of purchase price in accordance with the terms and conditions set out herein, or if the purchaser shall default in any other obligations on the part of the purchaser to be performed and observed in this agreement, the vendor shall be entitled to terminate this agreement forthwith by notice in writing to the purchaser and thereafter the deposit shall be absolutely forfeited to the vendor as agreed liquidated damages but all other payments by the <br />
<br />
<br />
<br />
Page 188>>purchaser towards the purchase price (if any) shall be refunded to the purchaser free of interest in exchange whereof the purchaser shall return or cause to be returned to the vendor all documents delivered to the purchaser’s solicitors and/or the purchaser’s financiers or its solicitors pursuant to the provisions of this agreement together with valid and registrable withdrawal of caveat lodged by the purchaser and/or the purchaser’s financiers accompanied by the necessary registration fees. The purchaser shall also re-deliver vacant possession of the said property if vacant possession has already been delivered to the purchaser. Thereafter this agreement shall be null and void and of no further force or effect and neither party shall have any claim whatsoever against the other and the vendor shall be entitled, at its absolute discretion to sell or otherwise deal with the said property in such manner as the vendor shall deem fit and keep any profit made on any such re-sale or dealing.<br />
<br />
10.2 If the vendor fails to complete the sale of the said property to the purchaser in accordance with the terms and conditions set out herein or if the vendor shall default in any other obligation on the part of the vendor to be performed and observed in this agreement and such default is not rectified by the vendor within seven (7) days of notice of such default given by the purchaser, the purchaser shall be entitled to at its option to either:<br />
<br />
(a) take such action as may be available to the purchaser at law to claim for specific performance of this agreement together with all relief flowing therefrom; OR<br />
<br />
(b) terminate this agreement by notice to the vendor whereupon the vendor shall refund to the purchaser the deposit together with any sum in excess thereof paid by the purchaser towards the purchase price free of interest in exchange wherefore the purchaser shall return or cause to be returned to the vendor all documents delivered by the vendor or the vendor’s solicitors to the purchaser’s solicitors and/or the purchaser’s financiers or its solicitors together with valid and registrable withdrawal of caveats lodged by the purchaser and/or purchaser’s financiers accompanied by the necessary registration fees.<br />
<br />
Thereafter this agreement shall be null and void and of no further force or effect and neither party shall have any claim whatsoever against the other and the vendor shall be entitled at its absolute discretion to sell or otherwise deal with the said property in such manner as the vendor shall deem fit.<br />
<br />
<br />
<br />
On the facts in the present case, the learned judge took the view that cl 10.2 of the agreement is the governing clause as regards the procedure to be followed by the respondent in order to abort the purchase of the said land. However, the learned judge made no reference whatsoever to cl 2.5 above. We reserve our comment on this to the later part of our judgment. In his judgment, the learned judge considered the circumstances leading to, and culminating in the termination of the agreement by the respondent; and he said:<br />
<br />
<br />
<br />
It is noted that what the plaintiff needs to do when a breach of the S & P Agreement occurs, is that he must serve on the defendant a seven (7) day notice of such default, and thereafter he is entitled to (a) specific performance or (b) terminate the S & P Agreement.<br />
<br />
<br />
<br />
Page 189>><br />
<br />
From the facts of the case, the completion date was 19 February 1998 and the plaintiff rescinded the S & P Agreement on the following day, ie 20 February 1998. It seems that in its anxiety to rescind the S & P Agreement, it failed to observe cl 10.2. The plaintiff submitted that there is no requirement of a seven day notice in view of the exchange of letters between the plaintiff and the defendant’s letters, as shown below.<br />
<br />
In the plaintiff’s letter dated 21 November 1977 (pp 37–38 of Bundle B), para (d) states:<br />
<br />
‘(d) that at the end of the three month period as stipulated in (a) above the vendor fails to clear the title from encumbrances, Kaplands shall have the option to abort the purchase and upon exercise of such option by Kaplands, the vendor shall refund to Kaplands the deposit already paid including interest or to grant a further extension of time thereon.’<br />
<br />
In reply, the defendant’s solicitor in its letter dated 24 November 1997 stated that ‘we confirm that our clients have agreed to the following pursuant to your letter to us dated 21 November 1997’ and repeated para (d) (p 42 of Bundle B). In his testimony (at p 20 of Notes) DW2 (a director of the defendant) rationalized that: <br />
<br />
‘10.2 notice was not given because of para (d) of the solicitor’s letter.’<br />
<br />
<br />
<br />
The learned counsel for the appellant contended that the learned judge’s finding is not supported by the evidence before the court. He contended that para (d) of the respondent’s letter dated 21 November 1997 does not have the effect of varying cll 2.5 and 10.2 of the agreement.<br />
<br />
Looking at the respondent’s letter of 21 November 1997, it appears that the respondent was concerned over certain private caveats that had been entered against the said land and this had prompted the respondent to propose that the appellant be given a period of three months to clear the title from all encumbrances, other than the caveats filed by the respondent and/or its financier. It is further proposed in sub-para (d) of the letter that if at the end of the three month period the appellant still fails to clear the title from those encumbrances, the respondent shall have the option to abort the purchase and upon exercise of such option by the respondent, the appallent shall refund to the respondent the deposit already paid including interest or to grant a further extension of time thereon. The appellant’s reply to the respondent’s letter of 21 November 1997 is contained in its letter of 24 November 1997. The material part of the letter reads as follows:<br />
<br />
<br />
<br />
We refer to our letter of even date and confirm that our clients have agreed to the following pursuant to your clients’ letter to us dated 21 November 1997:<br />
<br />
(a) That our clients be given a period of three (3) months to clear the title from encumbrances other than the caveats filed by Kaplands Sdn Bhd and/or its financier (‘purchaser’s caveats’) and the charge in favor of Bank of Commerce (M) Bhd (‘BOC Charge’) in respect of which we have already obtained a Discharge of Charge.<br />
<br />
(b) That payment of the balance purchase price be made within seven (7) days of notification to you or your clients that the title is free from encumbrances other than the purchaser’s caveat and the BOC Charge.<br />
<br />
(c) … <br />
<br />
<br />
<br />
Page 190>><br />
<br />
(d) If at the end of the three (3) month period stipulated in (a) above, our clients fail to clear the title from encumbrances other than the BOC Charge and the caveats filed by your clients and/or its financier, your clients will have the option to abort the purchase and upon exercise of such option our clients will refund to your clients the deposit paid including interest unless a further extension is agreed upon.<br />
<br />
(e) In the event your clients fail to pay the balance purchase price together with interest within seven (7) days of removal of the encumbrances other than the purchaser’s caveats and the BOC Charge then such default will amount to a default under cl 10.1 of the Sale and Purchase Agreement dated 2 July 1997 and the provisions of cl 10.1 shall apply.<br />
<br />
Apart from the above variations all other terms and conditions of the Sale and Purchase Agreement dated 2 July 1997 shall prevail.<br />
<br />
<br />
<br />
Thus, from the appellant’s own letter cited above, it is patently clear that the parties have agreed to vary or amend particular terms of the agreement to the extent stated in the said letter. This brings us to the main issue in contention: what is the effect of the variation or amendment, as agreed between the parties, on cll 2.5 and 10.2 of the agreement?<br />
<br />
The respondent contended, by virtue of the said variation, cll 2.5 and 10.2 of the agreement are no longer applicable and of no further effect. To put it simply, the respondent’s case is that by reason of the said variation the parties have agreed to a definite time frame for the appellant to clear the title of certain encumbrances failing which the respondent is given the option to abort the purchase. The respondent contended this is clearly intended to override cll 2.5 and 10.2 of the agreement otherwise the variation would be devoid of any meaning whatsoever. Reading the judgment of the learned trial judge, we think it is implicit in his judgment that he agreed with the respondent’s contention that cl 2.5 of the agreement is no longer of any effect in view of the agreed variation. And as regard cl 10.2, he said:<br />
<br />
<br />
<br />
The defendant seemed not to be serious about this cl 10.2 because upon the receipt of the termination letter, the defendant served upon the plaintiff a letter claiming for the forfeiture of the deposit. By the same token analogous to cl 10.2, the defendant had not served a seven day notice to the plaintiff, as cl 10.2 has imposed a duty to serve notice on one party, it is equally applicable to the other party, otherwise it offends the notion of justice.<br />
<br />
It is clear that in view of this evidence, a breach of cl 10.2 is not fatal. By the acts of the parties, they are no longer bound strictly by cl 10.2.<br />
<br />
<br />
<br />
We agree with the learned judge that by necessary implication, cl 2.5 is no longer applicable in view of the variation, otherwise as rightly contended by the respondent, the variation would be devoid of any effect whatsoever. We arrived at this conclusion on the premise that the parties had, under the new terms, agreed to give the appellant a specific time frame to clear the title of the said land of all the encumbrances, other than those expressly excepted, failing which the respondent is given the option to abort the purchase. This in our view is clearly intended to override the provisions of cl 2.5 of the agreement.<br />
<br />
<br />
<br />
Page 191>><br />
<br />
The only remaining issue is whether the respondent is still required to give the requisite notice as stipulated in cl 10.2 of the agreement when it decides to abort the purchase. Needless to say that no such notice was given to the appellant by the respondent. The learned judge held that the fact that the respondent failed to give such notice is not fatal to respondent’s case on the ground that the appellant likewise failed to give such a notice to the respondent in purporting to forfeit the deposit. He concluded by saying that by their acts the parties are no longer bound strictly by cl 10.2. We agree with the learned judge that, in the circumstances, the appellant is no longer required to give the notice as stipulated in cl 10.2, but for different reasons. Firstly, we are of the view that from the plain reading of cl 10.2 it is clear that it applies only to the respondent as the purchaser and not the appellant who is the vendor. For that reason we are of the view, contrary to what was held by the learned judge, that there is no obligation on the part of the appellant to give the respondent a notice under cl 10.2. In other words cl 10.2 only applies to the respondent. However, by virtue of the variation to the terms of the agreement as embodied in sub-para (d) of the appellant’s own letter of 24 November 1997, we are of the view that it is no longer necessary for the respondent to give a notice under cl 10.2 of the agreement.<br />
<br />
Under the new terms, as agreed between the parties, what the respondent (purchaser) needs to do at the end of the three month period is to see whether the title is free from all encumbrances other than the BOC charge and the caveats filed by the respondent or its financier. If the answer is in the negative, then the respondent has the option, without more, to abort the purchase or to grant a further extension of time to the appellant. If the respondent is not desirous of granting a further time, then what the respondent needs to do is to give a notice, as was done by the respondent, to the appellant that it had chosen to abort the purchase and with such notice, the respondent is immediately entitled to the refund of the deposit. No further notice under cl 10.2 is required. For these reasons, we are of the view that the respondent’s letter of 20 February 1998 purporting to terminate the agreement is legally valid and effective.<br />
<br />
For the above reasons we find no merit in this appeal and we dismissed the same with costs. We ordered that the deposit be paid to the respondent towards account of taxed costs.<br />
<br />
<br />
<br />
Appeal dismissed.<br />
<br />
<br />
<br />
Reported by Lim Lee NaRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-3256182293429920632009-10-16T07:34:00.000-07:002009-10-16T07:34:13.448-07:00Public Prosecutor v Darkasyi & Anor[2003] 1 MLJ 170<br />
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<br />
Public Prosecutor v Darkasyi & Anor<br />
<br />
Headnote<br />
<br />
Court Details<br />
<br />
HIGH COURT (JOHOR BAHRU) — CRIMINAL TRIAL NO (MT–1) 44–06 OF 2001<br />
<br />
SYED AHMAD HELMY JC<br />
<br />
3 JULY 2002<br />
<br />
Catchwords<br />
<br />
Criminal Law — Dangerous Drugs Act (Malaysia) — ss 39B, 41A — Whether sessions court was the appropriate forum in which the accused persons were to be produced and charged<br />
<br />
<br />
<br />
Criminal Procedure — Transfer of cases — Whether subordinate court has power to postpone the transfer of the case to the High Court<br />
<br />
Summary<br />
<br />
On 6 April 2001, the applicants were arrested. They were subsequently produced in the Sessions Court, Johor Bahru, where they were charged with an offence under s 39B of the Dangerous Drugs Act 1952 (‘the Act’). The charge was read to the applicants but no pleas were taken from them. The prosecuting officer asked for a postponement to enable the prosecution to obtain the chemist report before the Public Prosecutor would issue a consent and requisition for the matter to be transferred to the High Court for trial. The sessions court judge allowed the postponement and extended the remand of the applicants for two months. The applicants made an application against the decision of the sessions court judge, ordering the extension of the applicants’ remand until 20 September 2001. The issues were whether the sessions court was the appropriate forum in which the accused were to be produced and charged and whether the appropriate court has the power to postpone the transfer of the matter to the High Court when an accused person is first brought before it.<br />
<br />
Holdings<br />
<br />
Held, dismissing the applicants’ application in encl 3: <br />
<br />
(1) The term ‘subordinate court’ is defined under s 2 of the Act as having the meaning assigned thereto in s 3 of the Courts of Judicature Act 1964 (‘the CJA’). Section 3 of the CJA further defines ‘subordinate courts’ to mean ‘any inferior court from the decisions of which by reason of any written law there is a right of appeal to the High Court and means in relation to the High Court any such court as by any written law has jurisdiction within the local jurisdiction of the High Court’. From the definition given above, the term ‘subordinate court’ being an inferior court would include both the sessions court as well as the magistrate’s court (see p 174F–G).<br />
<br />
(2) The contention of counsel for the applicant that s 177A of the Criminal Procedure Code (‘the Code’) specifically prescribes the magistrate’s court as the appropriate forum for the accused to be produced and thereafter transmitted to the High Court cannot be acceded to. The procedure of transmission of a case in respect of any offence under the Act to trial by High Court is governed by <br />
<br />
<br />
<br />
Page 171>>s 41A of the Act and not s 177A of the Code. Section 41A of the Act expressly provides that whenever an accused person is charged under s39B of the Act which is triable exclusively by the High Court, he shall be produced before the appropriate subordinate court, ie either the magistrate’s or sessions court and the charge read and explained to him. Section 41A provides that sub-ss (1), (2) and (3) shall have effect notwithstanding any other written law to the contrary. Applying the principle of generalibus specilia derogant, s 41A of the Act, being a special provision, overrides s 177A of the Code (see p 175C–F).<br />
<br />
(3) On the second issue, the subordinate court has the power to postpone the case and remand the accused pending the production of the consent and requisition of the Public Prosecutor. Once the consent and requisition is produced by the Public Prosecutor, the subordinate court shall transfer the case and cause the accused to appear before the High Court as soon as may be practicable (see p 176E–F).<br />
<br />
Bahasa Malaysia summary<br />
<br />
Pada 6 April 2001, pemohon-pemohon telah ditangkap. Mereka kemudian dibawa ke Mahkamah Sesyen, Johor Bahru, di mana mereka dituduh dengan kesalahan di bawah s 39B Akta Dadah Berbahaya 1952 (‘Akta tersebut’). Pertuduhan telah dibaca kepada pemohon-pemohon tetapi tiada akuan yang telah diambil daripada mereka. Pegawai pendakwaan telah memohon penangguhan untuk membolehkan pihak pendakwaan memperolehi laporan ahli kimia sebelum Pendakwa Raya dapat mengeluarkan keizinan dan rekuisisi untuk membolehkan perkara tersebut dipindahkan ke Mahkamah Tinggi untuk perbicaraan. Hakim mahkamah sesyen telah membenarkan penangguhan kes tersebut dan telah melanjutkan tahanan pemohon-pemohon selama dua bulan. Pemohon-pemohon telah membuat permohonan terhadap keputusan hakim mahkamah sesyen tersebut memerintahkan perlanjutan tahanan pemohon-pemohon sehingga 20 September 2001. Isu-isu adalah sama ada mahkamah sesyen merupakan forum sesuai di mana orang-orang tertuduh patut dibawa dan dituduh dan sama ada mahkamah sesuai mempunyai kuasa untuk menangguh pemindahan perkara tersebut kepada Mahkamah Tinggi apabila seorang tertuduh dibawa ke hadapannya buat kali pertama.<br />
<br />
Bahasa Holdings<br />
<br />
Diputuskan, menolak permohonan pemohon-pemohon di dalam lampiran 3:<br />
<br />
(1) Terma ‘subordinate court’ ditafsirkan di bawah s 2 Akta tersebut sebagai mempunyai maksud di dalam s 3 Akta Mahkamah Kehakiman 1964 (‘AMK’). Sesyen 3 AMK menaksirkan ‘subordinate court’ sebagai ‘any inferior court from the decisions of which by reason of any written law there is a right of appeal to <br />
<br />
<br />
<br />
Page 172>>the High Court and means in relation to the High Court any such court as by written law has jurisdiction within the local jurisdiction of the High Court’. Daripada taksiran yang diberi di atas, terma ‘subordinate court’ sebagai sebuah mahkamah rendah adalah termasuk mahkamah sesyen dan mahkamah majistret (lihat ms 174F–G).<br />
<br />
(2) Pernyataan peguam pemohon bahawa s 177A Kanun Acara Jenayah (‘Kanun tersebut’) khusus menentukan mahkamah majistret sebagai forum yang sesuai untuk orang tertuduh dibawa and setelah itu dipindahkan ke Mahkamah Tinggi tidak dapat dipersetujui. Prosedur pemindahan kes berhubung dengan sebarang kesalahan di bawah Akta tersebut kepada perbicaraan di Mahkamah Tinggi dikawal oleh s 41A Akta tersebut dan bukan s 177A Kanun tersebut. Seksyen 41A Akta tersebut jelas memperuntukkan bahawa apabila seorang tertuduh dituduh di bawah s 39B Akta tersebut yang dibicarakan sepenuhnya oleh Mahkamah Tinggi, beliau akan dibawa ke mahkamah rendah yang sesuai, iaitu sama ada mahkamah majistret atau sesyen dan pertuduhan tersebut akan dibaca dan diterangkan kepada beliau. Seksyen 41A memperuntukkan bahawa subseksyen-subseksyen (1), (2) dan (3) akan berkuat kuasa walaupun terdapat undang-undang bertulis lain yang bercanggah. Memakai prinsip generalibus specilia derogant, s 41A Akta tersebut, yang merupakan peruntukan khas, mengatasi s 177A Kanun tersebut (lihat ms 175C–F).<br />
<br />
(3) Mengenai isu kedua, mahkamah rendah mempunyai kuasa untuk menangguhkan kes tersebut dan menahan tertuduh sementara menunggu keizinan dan rekuisis Pendakwa Raya. Apabila keizinan dan rekuisisi telah diberi oleh Pendakwa Raya, mahkamah rendah akan memindahkan kes dan akan mengarahkan tertuduh untuk hadir di hadapan Mahkamah Tinggi secepat mungkin (lihat ms 176E–F).<br />
<br />
Notes<br />
<br />
For cases on ss 39B, 41A of the Dangerous Drugs Act (Malaysia), see 4 Mallal’s Digest (4h Ed, 2000 Reissue), para 159.<br />
<br />
For cases on transfer of cases, see 5 Mallal’s Digest (4th Ed, 2001 Reissue), paras 3778–3811.<br />
<br />
Cases referred to<br />
<br />
PP v Chew Siew Luan [1982] 2 MLJ 119 (refd)<br />
<br />
PP v Lee Chan Sang [1989] 1 MLJ 224 (refd)<br />
<br />
Legislation referred to<br />
<br />
Legislation referred to<br />
<br />
Courts of Judicature Act 1964 s 3<br />
<br />
Criminal Procedure Code ss 177A, 388, Chapter XX<br />
<br />
<br />
<br />
Page 173>><br />
<br />
Dangerous Drugs Act 1952 ss 2, 39B, (3), (4), 41A, (1), (2), (3), 41B(1)(a)<br />
<br />
Federal Constitution art 145(3)<br />
<br />
Lawyers<br />
<br />
Teo Say Eng (Attorney-General’s Chambers) for the prosecution.<br />
<br />
Gobind Singh Deo (Karpal Singh & Co) for the applicants.<br />
<br />
Judgement - Syed Ahmad Helmy JC<br />
<br />
Syed Ahmad Helmy JC : The application herein is against the decision of the Sessions Court Judge in Johor Bahru made on 17 July 2001 ordering the extension of the applicant’s remand until 20 September 2001.<br />
<br />
The factual matrix reveals that the applicants were arrested on 6 April 2001. They were subsequently produced in the Sessions Court, Johor Bahru, where they were charged with an offence under s 39B of the Dangerous Drugs Act 1952 (‘the Act’).<br />
<br />
The charge was read to the applicants. No plea was taken from them. The prosecuting officer informed the sessions court that the prosecution has yet to obtain the chemist report. As such, the prosecuting officer asked for a postponement to enable the prosecution to obtain these reports before the Public Prosecutor would issue a consent and requisition for the matter to be transferred to the High Court for trial.<br />
<br />
The sessions court judge allowed the postponement and extended the remand of the applicants for a further two months.<br />
<br />
The applicants are challenging both the forum of the sessions court and its power to postpone the transfer of the matter to the High Court after an accused person is first brought before it.<br />
<br />
Two issues were placed before the court for determination, namely:<br />
<br />
<br />
<br />
(a) whether the sessions court was the appropriate forum in which the accused were to be produced and charged; and<br />
<br />
(b) whether the appropriate court has the power to postpone the transfer of the matter to the High Court when an accused person is first brought before it.<br />
<br />
<br />
<br />
The determination of the issues aforesaid would invariably involve an appraisal of the relevant provisions of the Act.<br />
<br />
Section 41A of the Act deals with special provisions relating to the transmission of a case to, and trial by, the High Court. It reads as follows:<br />
<br />
<br />
<br />
(1) Where any case in respect of an offence under this Act is triable exclusively by the High Court or is required by the Public Prosecutor to be tried by the High Court, the accused person shall be produced before the appropriate subordinate court which shall, after the charge has been explained to him, transmit the case to the High Court without holding a preliminary inquiry under Chapter XVII of the Criminal Procedure Code, and cause the accused person to appear or be brought before such Court as soon as may be practicable.<br />
<br />
(2) When the accused person appears or is brought before the High Court in accordance with subsection (1), the High Court shall fix a date for his trial which shall be held in accordance with the procedure under Chapter XX of the Criminal Procedure Code.<br />
<br />
<br />
<br />
Page 174>><br />
<br />
(3) The trial of a case transmitted to the High Court under subsection (1) shall be by a Judge of the High Court sitting alone, and the provisions of Chapters XXI and XXII of the Criminal Procedure Code shall not apply to such trial.<br />
<br />
(4) The provisions of subsections (1), (2) and (3) shall have effect notwithstanding any other written law to the contrary. (Emphasis added.)<br />
<br />
<br />
<br />
It is the applicants’ contention that the subordinate court referred to must relate to the magistrate’s court for the reason that since sub-s (2) of s 41A of the Act stipulates the requirement, such transfers are to be held in accordance with Ch XX of the Criminal Procedure Code (‘the Code’), which by s 177A thereof requires the production of the accused before a magistrate’s court, it follows that the appropriate court cannot be the sessions court.<br />
<br />
The learned prosecutor contends that the phraseology ‘appropriate court’ in s 41A of the Act must be interpreted to mean either the sessions court or the magistrate’s court whichever is appropriate for the reason that the definition of subordinate court under s 2 of the Act is assigned the same meaning as laid down by s 3 of the Courts of Judicature Act 1964 (‘the CJA’) where the term is defined as ‘any inferior court from the decisions of which by reason of any written law there is a right of appeal to the High Court and means in relation to the High Court any such court as by any written law has jurisdiction within the local jurisdiction of the High Court’. By reason thereof, the applicants production before the sessions court is the correct forum.<br />
<br />
The offence for which the applicants herein are being charged relates to dangerous drugs, the statutory provisions regulating such offences would be the Act and s 41A thereof is the regulatory provision pertaining to the transmission of cases to the High Court for trial in cases involving dangerous drugs.<br />
<br />
The term ‘subordinate court’ is defined under s 2 of the Act as having the meaning assigned thereto in s 3 of the CJA. Section 3 of the CJA further defines ‘subordinate courts’ to mean ‘any inferior court from the decisions of which by reason of any written law there is a right of appeal to the High Court and means in relation to the High Court any such court as by any written law has jurisdiction within the local jurisdiction of the High Court’.<br />
<br />
From the definition given above, it is my considered view that the term ‘subordinate court’ being an inferior court would include both the sessions court as well as the magistrate’s court.<br />
<br />
The word ‘appropriate’ which qualifies ‘subordinate court’ lands credence to my view aforesaid. Cambridge International Dictionary of English defines the word ‘appropriate’ to mean ‘suitable or right for a particular situation or occasion’. Thus it follows that the phrase appropriate subordinate court given its ordinary meaning would mean any subordinate court, either sessions court or magistrate’s court which is suitable for a particular situation. The construction aforesaid is further supported by the late Professor Mimi Kamariah where in her book Dangerous Drugs Laws, <br />
<br />
<br />
<br />
Page 175>>Malayan Law Journal Sdn Bhd, (1995 Ed) at p 49 in dealing with s 41A of the Act she was of the view that such an accused person may be brought before either the magistrate’s or sessions court.<br />
<br />
In this connection, it is pertinent to note that the Public Prosecutor by virtue of the power vested in him under ss 41A and 39B(3) and (4) of the Act and pursuant to art 145(3) of the Federal Constitution is empowered to choose the forum for the transmission of the case to the High Court for trial.<br />
<br />
In any event, whichever forum an accused is produced for the transmission of his case to the High Court will not prejudice him in anyway. Section 41A only confers jurisdiction on the subordinate court to receive the production of any accused person, to have the charge explained to him and to transmit his case to the High Court — it does not confer any power to the sessions court or the magistrate’s court to record any plea from the accused person.<br />
<br />
The strenuous contention of counsel for the applicant that s 177A of the Code specifically prescribes the magistrate’s court as the appropriate forum for the accused to be produced and thereafter transmitted to High Court, cannot be acceded to. I say so because s 177A of the Code is not applicable in this case as the procedure of transmission of a case in respect of any offence under the Act to trial by the High Court is governed by s 41A of the Act and not s 177A of the Code, as s 41A of the Act expressly provides that whenever an accused person is charged under s 39B of the Act which is triable exclusively by the High Court, he shall be produced before the appropriate subordinate court, ie either the magistrate’s or sessions court and the charge read and explained to him. Thereafter, the case is transmitted to the High Court. Section 41A provides that sub-ss (1), (2) and (3) shall have effect notwithstanding any other written law to the contrary. Applying the principle of generalibus specialia derogant, s 41A of the Act, being a special provision, overrides s 177A of the Code (see also Public Prosecutor v Chew Siew Luan [1982] 2 MLJ 119).<br />
<br />
Second issue<br />
<br />
Whether the ‘appropriate court’ has the power to postpone the transfer of the matter to the High Court when an accused is first brought before it.<br />
<br />
In determining the issue aforesaid, it is essential to advert to the relevant provisions of the Act, namely ss 41A(1) and 39B(3) and (4) thereof.<br />
<br />
The interpretation of all the three subsections read as a whole would be as follows: under s 41A(1) whenever an accused person is charged with an offence which is required by the Public Prosecutor to be tried by the High Court, he shall be produced before an appropriate subordinate court, ie a magistrate’s court or sessions court.<br />
<br />
Upon production as aforesaid, the charge will be read and explained to him but no plea will be taken from him as the subordinate court will have no jurisdiction to take a plea from an accused person under s 41A(1) of the Act; Public Prosecutor v Lee Chan Sang [1989] 1 MLJ 224.<br />
<br />
<br />
<br />
Page 176>><br />
<br />
Though s 41A(1) talks of transmission after the charge is read and explained, nevertheless it is predicated by the issuance of a consent and requisition of the Public Prosecutor as provided for by s 39B(3).<br />
<br />
It is only upon the consent and requisition being produced in court pursuant to s 39B(3) will the subordinate court embark on transmitting the case to High Court and ‘cause the accused person’ to appear or be brought before the High Court ‘as soon as may be practicable’ pursuant to ss 39B(3) and 41A(1) of the Act.<br />
<br />
The power of the transmission of a case to the High Court of the subordinate court is dependent on the production of the consent and requisition of the Public Prosecutor.<br />
<br />
According to s 39B(4) of the Act, when an accused is brought before a subordinate court before the Public Prosecutor has consented to the prosecution, the charge shall be explained to him but he shall not be called upon to plead, and the provisions of the law for the time being in force relating to criminal procedure shall be modified accordingly.<br />
<br />
Both the accused persons herein are charged under s 39B of the Act which carries a mandatory death sentence. The said offence is rendered unbailable under s 41B(1)(a) of the Act.<br />
<br />
By reason thereof, a subordinate court is empowered under s 41B(1)(a) of the Act, to be read with s 388 of the Code, to remand both the accused persons pending the issuance of the consent and requisition by the Public Prosecutor.<br />
<br />
It follows that the subordinate court has the power to postpone the case and remand the accused pending the production of the consent and requisition of the Public Prosecutor. Once the consent and requisition is produced by the Public Prosecutor, the subordinate court shall transfer the case and cause the accused to appear before the High Court as soon as may be practicable.<br />
<br />
By reason of the aforesaid, I accordingly dismiss the applicants’ application in encl 3.<br />
<br />
<br />
<br />
Applicants’ application in encl 3 dismissed.<br />
<br />
<br />
<br />
Reported by Chew Phye AunRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-40952724817658311742009-10-14T06:47:00.000-07:002009-10-14T06:47:04.775-07:00Krishnan Rajan a/l N Krishnan v Bank Negara Malaysia & Ors[2003] 1 MLJ 149<br />
<br />
<br />
Krishnan Rajan a/l N Krishnan v Bank Negara Malaysia & Ors<br />
<br />
Headnote<br />
<br />
Court Details<br />
<br />
HIGH COURT (KUALA LUMPUR) — CIVIL SUIT NO S5–23–36 OF 2001<br />
<br />
ABDUL MALIK ISHAK J<br />
<br />
16 NOVEMBER 2002<br />
<br />
Catchwords<br />
<br />
Civil Procedure — Preliminary issue — Application for issue or question raised in pleadings to be tried on preliminary basis — First defendant allegedly blacklisted plaintiff wrongfully pursuant to first defendant’s BMC Guidelines — Plaintiff sued defendants for defamation and negligence — Preliminary issue or question on whether BMC Guidelines were ultra vires and unlawful under s 30(1)(mmmm) of the Central Bank of Malaysia Act 1958 — Whether outcome of preliminary issue or question would result or substantially result in disposal of case — Whether there would be a substantial saving of expense and time — Rules of the High Court 1980 O 33 r 2<br />
<br />
Summary<br />
<br />
The plaintiff sued the defendants for defamation and negligence arising out of an incident in which the first defendant was said to have wrongfully blacklisted the plaintiff under the first defendant’s ‘Biro Maklumat Cek Operational Framework and Reporting Guidelines’ (‘BMC Guidelines’). The BMC Guidelines were issued by the first defendant pursuant to the Central Bank of Malaysia Act 1958 (‘the Act’). This was the plaintiff’s application (in encl 16) for an issue or question raised in the pleadings of this suit to be tried on a preliminary basis under O 33 r 2 of the Rules of the High Court 1980 (‘the RHC’) on the grounds that it would save considerable time and costs. The issue or question to be tried was whether the BMC Guidelines were ultra vires and unlawful under s 30(1)(mmmm) of the Act. Section 30(1)(mmmm) of the Act permitted the first defendant to establish a central bureau to collect information relating to the rejection by a paying bank of any cheque for reason of insufficient funds in the account of the drawer of the cheque and to disclose any such information to any bank for the purpose only of assisting the bank to assess the eligibility of the said drawer to maintain or open any current account with the bank. The plaintiff’s counsel submitted that s 30(1)(mmmm) of the Act cannot be construed so as to give powers to compulsorily blacklist a bad cheque offender. The first defendant’s contention was that this court should not invoke its discretionary powers under O 33 r 2 of the RHC since the determination of the preliminary issue or question would not substantially dispose of the cause or matter. This was because whether the BMC Guidelines were valid or otherwise, this court would still have to decide on the issue of whether the alleged maintenance of the blacklist amounted to a defamatory statement. Furthermore, transmission of information to the first defendant in the instant case was in coded form and the question of whether there was publication can only be determined at the trial proper by way of viva voce evidence. In this regard, extrinsic evidence would be required to be adduced to ascertain whether or not the maintenance of the blacklist amounted to publication. <br />
<br />
<br />
<br />
Holdings<br />
<br />
Held, dismissing the plaintiff’s application:<br />
<br />
(1) Order 33 r 2 of the RHC conferred upon the court a wide discretionary power to order any question or issue in a cause or matter, whether of fact or law or partly of fact and partly of law, to be tried before, at or after the trial of the cause or matter. An application under O 33 r 2 of the RHC was not appropriate where the facts were in dispute or where extrinsic evidence was required to be adduced. The overriding consideration to take into account was whether the application would result in a substantial saving of time and expenditure. In addition, the court should also be wary and warn itself against the abuse of this process (see p 154E–G).<br />
<br />
(2) Even if the court were to find the BMC Guidelines to be ultra vires, that outcome would not result or substantially result in the disposal of the case. The plaintiff’s actions for libel and negligence were distinct causes of action and independent of whether the BMC Guidelines were valid or otherwise. The disposal of the proposed question in encl 16 would not render the trial for the actions of libel and negligence unnecessary as this court must also determine whether the legal ingredients for the actions of libel and negligence had been satisfied. Accordingly, if this court were to try the preliminary point as framed in encl 16, there would not be a substantial saving of expense and time (see pp 167E–F, 168G–I).<br />
<br />
Bahasa Malaysia summary<br />
<br />
Plaintif mendakwa defendan-defendan untuk fitnah dan kecuaian yang timbul dari satu kejadian di mana defendan pertama dikatakan telah dengan salahnya menyenarai hitamkan plaintif di bawah ‘Biro Maklumat Cek Operational Framework and Reporting Guidelines’ (‘Garis Panduan BMC’) defendan pertama. Garis Panduan BMC dikeluarkan oleh defendan pertama menurut Akta Bank Negara Malaysia 1958 (‘Akta tersebut’). Ini merupakan permohonan plaintif (dalam lampiran 16) agar suatu isu atau soalan dibangkitkan dalam pliding guaman ini untuk dibicarakan atas dasar permulaan di bawah A 33 k 2 Kaedah-Kaedah Mahkamah Tinggi 1980 (‘KMT’) atas alasan bahawa ia akan menjimatkan masa dan kos. Isu atau soalan yang harus dibicarakan ialah sama ada Garis Panduan BMC adalah ultra vires dan menyalahi undang-undang di bawah s 30(1)(mmmm) Akta tersebut. Seksyen 30(1)(mmmm) Akta tersebut membenarkan defendan pertama supaya mewujudkan satu pusat biro untuk mengumpul maklumat berhubung dengan penolakan oleh satu bank pembayar atas mana-mana cek dengan alasan kekurangan wang dalam akaun pembayar cek dan untuk mendedahkan maklumat demikian kepada mana-mana bank untuk tujuan semata-mata membantu bank menilai keupayaan pembayar tersebut untuk mengekal atau membuka mana-mana akaun semasa dengan bank. Peguam plaintif berhujah bahawa maksud s 30(1)(mmmm) Akta <br />
<br />
tersebut tidak boleh ditafsir sehinggakan memberi kuasa untuk semestinya menyenarai hitamkan seorang pesalah cek tendang. Hujah defendan pertama adalah bahawa mahkamah ini tidak harus menggunakan kuasa berdasarkan budi bicara di bawah A 33 k 2 KMT oleh kerana penentuan isu atau soalan permulaan tidak akan menyelesaikan kausa atau perkara secara substantial. Ini adalah kerana sama ada Garis Panduan BMC adalah sah atau sebaliknya, mahkamah ini masih tetap harus memutuskan isu tentang sama ada pengekalan senarai hitam yang dikatakan membawa kepada satu pernyataan berfitnah. Tambahan pula, penyampaian maklumat kepada defendan pertama dalam kes ini adalah berbentuk kod dan soalan sama ada berlakunya terbitan hanya boleh diputuskan di perbicaraan sebenar melalui keterangan viva voce. Berhubung hal ini, keterangan luar perlu dikemukakan untuk menentukan sama ada pengekalan senarai hitam berjumlah kepada terbitan.<br />
<br />
Bahasa Holdings<br />
<br />
Diputuskan, menolak permohonan plaintif:<br />
<br />
(1) Aturan 33 k 2 KMT memberikan mahkamah kuasa berdasarkan budi bicara yang luas untuk memutuskan sebarang soalan atau isu dalam satu kausa atau perkara, sama ada mengenai fakta atau undang-undang atau sebahagian fakta dan sebahagian undang-undang, untuk dibicarakan sebelum, semasa atau selepas perbicaraan sesuatu kausa atau perkara. Satu permohonan di bawah A 33 k 2 KMT tidak wajar bila mana fakta-fakta dipertikaikan atau di mana keterangan luar perlu dikemukakan. Timbangan paling utama untuk diambil kira adalah sama ada permohonan tersebut akan mengakibatkan penjimatan masa dan perbelanjaan yang substantial. Tambahan pula, mahkamah juga harus berwaspada dan berjaga-jaga terhadap penyalahgunaan proses ini (lihat ms 154E–G).<br />
<br />
(2) Jikapun mahkamah mendapati Garis Panduan BMC adalah ultra vires, keputusan tersebut tidak akan mengakibatkan atau secara substantial mengakibatkan penyelesaian kes. Tindakan plaintif untuk fitnah dan kecuaian merupakan kausa tindakan berlainan dan bebas daripada sama ada Garis Panduan BMC adalah sah atau sebaliknya. Penyelesaian soalan yang dicadangkan dalam lampiran 16 tidak menyebabkan perbicaraan untuk tindakan fitnah dan kecuaian tidak perlu kerana mahkamah ini mesti juga memutuskan sama ada unsur-unsur perundangan untuk tindakan fitnah dan kecuaian telah dipenuhi. Oleh yang demikian, sekiranya mahkamah membicarakan hujah permulaan seperti yang dirangka dalam lampiran 16, penjimatan perbelanjaan dan masa yang substantial tidak mungkin berlaku (lihat ms 167E–F, 168G–I).]<br />
<br />
Notes<br />
<br />
For cases on preliminary issue, see 2 Mallal’s Digest (4th Ed, 2001 Reissue) para 4903.<br />
<br />
<br />
<br />
Cases referred to<br />
<br />
Arab Malaysian Finance Bhd v Meridien International Credit Corporation Ltd London [1993] 3 MLJ 193 (refd)<br />
<br />
Carl-Zeiss-Stiftung v Herbert Smith [1968] 2 All ER 1002 (refd)<br />
<br />
Chan Kum Loong v Hii Sui Eng [1980] 1 MLJ 313 (refd)<br />
<br />
Commonwealth Shipping Representative v P & O Branch Services [1923] AC 191 (refd)<br />
<br />
Dawson v Lunn (1984) 149 JP 491 (refd)<br />
<br />
Dominic J Puthucheary v Jet Age Construction Sdn Bhd & Anor; Module Construction Sdn Bhd & Ors v Jet Age Construction Sdn Bhd & Anor [1997] 2 MLJ 252 (refd)<br />
<br />
Everett v Ribbands & Anor [1952] 2 QB 198 (refd)<br />
<br />
Federal Insurance Co v Nakano Singapore (Pte) Ltd [1992] 1 SLR 390 (refd)<br />
<br />
Fulcrum Capital Sdn Bhd v Dato’ Samsudin Abu Hassan; Rahaz Sdn Bhd & Anor (Interveners) and another case [2000] MLJU 610; [2001] 5 CLJ 73 (refd)<br />
<br />
Holland v Jones (1917) 23 CLR 149 (refd)<br />
<br />
Huang Ee Hoe & Ors v Tiong Thai King & Ors [1991] 1 MLJ 51 (refd)<br />
<br />
Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474 (refd)<br />
<br />
Thanaraj a/l Manikam & Ors v Lower Perak Tamil Co-operative Society [1997] 4 MLJ 82 (refd)<br />
<br />
The Attorney-General & Ephraim Hutchings (Relator) v The Directors of the Great Eastern Railway Company [1880] 5 App Cas 473 (refd)<br />
<br />
Legislation referred to<br />
<br />
Central Bank of Malaysia Act 1958 ss 2, 30(1)(mmmm)<br />
<br />
Rules of the High Court 1980 O 33 r 2<br />
<br />
Banking and Financial Institutions Act 1989 ss s 43(3), 114<br />
<br />
Lawyers<br />
<br />
Amir bin Ismail (Goh Peng Hong and Tee Kim Chan with him) (Edmund Ponniah & Tee) for the plaintiff.<br />
<br />
Porres Royan (Shook Lin & Bok) for the first defendant.<br />
<br />
Adibah Ishak (Nur Nadia bte Mohd Amin with her) (Michael Chen, Gan, Muzafar & Azwar) for the second defendant.<br />
<br />
Chen Siew Mei (Raslan Loong) for the third defendant.<br />
<br />
Judgement - Abdul Malik Ishak J:<br />
<br />
Abdul Malik Ishak J:<br />
<br />
Introduction This is the plaintiff’s application in encl 16 by way of a summons in chambers for an issue or question raised in the pleadings of this civil suit to be tried on a preliminary basis under O 33 r 2 of the Rules of the High Court 1980 (‘the RHC’) on the grounds that it would save considerable time and costs. In its original text, encl 16 is worded in this way:<br />
<br />
<br />
<br />
Let All Parties concerned attend before the judge in chambers on the hearing of an application on the part of the plaintiff abovenamed for an order that the following question or issue raised by the pleadings in this action be tried as a <br />
<br />
preliminary issue before the trial of the other questions or issues in this action pursuant to O 33 r 2 of the Rules of the High Court 1980 and that until the determination of the preliminary issue all further proceedings in this action be stayed AND THAT such further or other directions be given for the trial of the said preliminary issue as may be necessary AND THAT the costs for this application be costs in the cause.<br />
<br />
The above-mentioned question or issue is the following:<br />
<br />
Upon the facts pleaded in paras 17, 18, 19, 20 and 21 of the statement of claim namely:<br />
<br />
17 The first defendant being a body established by statute and charge(d) under the law with the smooth and fair and efficient functioning of the banking system and industry through a sound financial structure for the country is under a statutory duty to ensure the proper and fair administration by any bank under its jurisdiction with member or members of the public. It has, amongst its many business(es), a duty as described under s 30(1)(mmmm) of the Central Bank of Malaysia Act 1958 (‘the said Act’).<br />
<br />
18 Pursuant to the said Act the first defendant issued a set of guidelines known as the Biro Maklumat Cek Operational Framework and Reporting Guidelines (‘BMC Guidelines’) but in breach of its duty under the said Act the said BMC Guidelines provides for a mandatory procedure to blacklist by the first defendant on a global concept against a member of the public.<br />
<br />
19 The said BMC Guidelines are ultra vires the said Act and is made in excess of the powers of the first defendant under the (said) Act.<br />
<br />
20 Further it is the contention of the plaintiff that notwithstanding anything stated in any legislation any powers which the first defendant may have and especially in relation to any powers that may be used to the detriment of the plaintiff or any other member of the public when exercised has to be exercised judiciously and in accordance with the principles of natural justice.<br />
<br />
21 It is also the contention of the plaintiff that such powers as blacklisting a member of the public should in any case be declared illegal as the same when exercised is highly draconian, onerous, inhuman and against all tenets of justice.<br />
<br />
and paras 21A and 21B of the defence of the first defendant, namely:<br />
<br />
21A The first defendant admits para 17 of the amended statement of claim.<br />
<br />
21B The first defendant admits that it issued the said BMC Guidelines as alleged in para 18 of the amended statement of claim but denies the rest of the paras 18, 19, 20, 21 and 22 of the amended statement of claim. The first defendant will rely on the said Act and the Banking And Financial Institutions Act 1989 (Act 372) for its position that the BMC Guidelines are lawful and valid.<br />
<br />
WHETHER the ‘Biro Maklumat Cek Operational Framework and Reporting Guidelines’ issued by the first defendant herein in February 1999 is ultra vires and unlawful under the provisions of s 30(1)(mmmm) of the Central Bank of Malaysia Act 1958 or any other laws of Malaysia.<br />
<br />
The grounds of this application are that the trial of that preliminary issue will result in a substantial saving of time and expenditure with respect to the trial of the action and is more convenient for all parties concerned.<br />
<br />
<br />
<br />
It is indeed an interesting application as it adds colour to the otherwise mundane court work. Order 33 r 2 of the RHC states as follows:<br />
<br />
<br />
<br />
The court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.<br />
<br />
<br />
<br />
and the relevant principles governing an application under this rule can be distilled, inter alia, from these three cases:<br />
<br />
<br />
<br />
(1) Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474 — a decision of the Supreme Court;<br />
<br />
(2) Arab Malaysian Finance Bhd v Meridien International Credit Corporation Ltd London [1993] 3 MLJ 193 — another decision of the Supreme Court; and<br />
<br />
(3) Dominic J Puthucheary v Jet Age Construction Sdn Bhd & Anor, Module Construction Sdn Bhd & Ors v Jet Age Construction Sdn Bhd & Anor [1997] 2 MLJ 252 — a decision of the Court of Appeal.<br />
<br />
<br />
<br />
Of course, there are other germane authorities on the subject that can be found in the local law journals but, for the present moment, the above three authorities would suffice. However, in the course of this judgment, I will refer to other elucidating authorities, both local and foreign. The principles of law that can be distilled from the long line of established authorities may conveniently be marshalled in these terms:<br />
<br />
<br />
<br />
(i) that the rule confers upon the court a wide discretionary power to order any question or issue in a cause or matter, whether of fact or law or partly of fact and partly of law, to be tried before, at or after the trial of the cause or matter;<br />
<br />
(ii) that the application under O 33 r 2 of the RHC may not be appropriate where the facts are in dispute or where extrinsic evidence is required to be adduced;<br />
<br />
(iii) that the overriding consideration, when taken in its correct perspective, is whether the application would result in a substantial saving of time and expenditure; and<br />
<br />
(iv) that the court should be wary and warn itself against the abuse of this process.<br />
<br />
<br />
<br />
Applying these salient principles to encl 16, it is the contention of the first defendant that this court should not invoke its discretionary powers under O 33 r 2 of the RHC because it would not result in a substantial saving of time and expenditure. It is the submission of Mr Porres Royan, the learned counsel for the first defendant, that the determination of the proposed question in the preliminary hearing would not have the effect of substantially disposing of the cause or matter. Going into specifics, Mr Porres Royan submitted that the issue as to whether the BMC Guidelines are valid or otherwise will not substantially dispose of the <br />
<br />
plaintiff’s claim in libel and the other defences pleaded by the other defendants. The second and the third defendants through their respective counsel, echoed the sentiments of Mr Porres Royan. The plaintiff, on the other hand, through its learned counsel in the person of En Amir bin Ismail held opposite views and he vigorously submitted that the application in encl 16 is properly made under O 33 r 2 of the RHC and that this court ought to entertain it.<br />
<br />
Arguments of the parties and the exposition of the law<br />
<br />
It is the submission of En Amir bin Ismail for the plaintiff that the application in encl 16 is not only appropriate but it is also within the contemplation of O 33 r 2 of the RHC and it is because of this that he says that the application should be dealt with in advance. He proceeds to submit on the following lines:<br />
<br />
<br />
<br />
(1) that the application in encl 16 can be disposed of quickly and simply as it is purely a question of law;<br />
<br />
(2) that the issue involved is quite obvious and that there is no lengthy and tedious arguments to pursue and it can simply and quickly be determined by the court; and<br />
<br />
(3) that it is a singular point of law of general importance which has hitherto affected a diverse cross section of the public and that it can be argued and concluded without any reference to and quite independent of the evidence or to the facts of the matter at hand.<br />
<br />
<br />
<br />
At first blush, all these submissions are quite attractive.<br />
<br />
On the relevant principles to be applied in construing whether the preliminary issue there ought to be tried, Chan Sek Keong J in the Singapore’s Court of Appeal case of Federal Insurance Co v Nakano Singapore (Pte) Ltd [1992] 1 SLR 390 had this to say (see pp 394–395 of the report):<br />
<br />
<br />
<br />
Thirdly, we are in full agreement with counsel with respect to the powers of the court under O 33 r 2 of the RSC. That rule expressly provides that the court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law to be tried before, at or after the trial of the cause or matter. It would be contrary to the express terms of that rule for a court to hold that it has no power to state a preliminary point even if it involves having to determine some issues of fact in order to determine the point of law. An action may involve many disputes on the facts as well as on the law, some more complex than others. It may be that the determination of a preliminary point in one way may make it unnecessary for other more complex issues of fact or law to be decided, thus resulting in a saving of time and expense of a protracted trial on those issues.<br />
<br />
In Everett v Ribbands [1952] 2 QB 198, Romer LJ began his judgment by stating that the point of law before the court should have been set down as a preliminary point before the hearing as the action was a substantial one and estimated to last three days. Similarly in Palaniappa Chettiar v Sithambaram Chettiar & Ors [1982] 1 MLJ 186, the judge adopted the same approach. In that case, there was a dispute amongst the children of the deceased with regard <br />
<br />
<br />
<br />
Page 156>>to the validity of his will. PC, a named beneficiary, applied for probate in July 1969 in Malaysia. SC, a disinherited son, commenced an action in September 1969 in India against PC and other beneficiaries under the will in connection with the properties of the deceased in India as well as in Malaysia. The action was settled in June 1972 by a consent order under which SC was given a share in the deceased’s estate. In 1976, PC brought another action to have the consent order declared null and void. The action was dismissed in June 1978. PC’s appeal to the High Court of Madras was also dismissed. SC then applied in the Malaysian action for an order that a preliminary issue as to whether PC was estopped per rem judicatam from contending that the will was valid, or applying for probate, be tried. The judge allowed the application on the ground that if the point was res judicata, then it would not be necessary to try the other issues, ie the deceased’s capacity to execute the will, his sanity and undue influence, thus avoiding the necessity of having to obtain evidence from India on those issues, which could be expensive and time-consuming. On appeal, the Federal Court refused to interfere with the judge’s decision having regard to the background of the case.<br />
<br />
<br />
<br />
Continuing further at p 397 of the report, Chan Sek Keong J said:<br />
<br />
<br />
<br />
Taking all the points made by counsel for the appellants, we may state as a general rule that the court will not exercise its power under O 33 r 2 to order a preliminary point of law to be tried, whether or not that point involves the prior determination of factual disputes affecting that point, unless the trial of that issue will result in a substantial saving of time and expenditure in respect of the trial of the action as a whole (including any counterclaim). It is a matter of discretion for the court to exercise in the circumstances of each case, bearing in mind that ‘Preliminary points of law too often are treacherous short cuts. Their price can be … delay, anxiety and expense’ (per Lord Scarman in Tilling v Whiteman [1979] 2 WLR 401; [1979] 1 All ER 737 at p 410).<br />
<br />
<br />
<br />
And his Lordship rounded up the matter when he said at p 398 of the report:<br />
<br />
<br />
<br />
In our view, Chua J applied the correct principle and took into account the relevant considerations in exercising his discretion in dismissing the appellants’ application. We agreed with him that, having regard to the circumstances, this was not a proper case for an order for the trial of a preliminary issue. The appeal was accordingly dismissed with costs.<br />
<br />
<br />
<br />
Next, it would be the case of Thanaraj a/l Manikam & Ors v Lower Perak Tamil Co-operative Society [1997] 4 MLJ 82, a decision of Kang Hwee Gee J, where the learned judge said at pp 88–89 of the report:<br />
<br />
<br />
<br />
Ideally, the procedure for the defendant to adopt was to plead the issue in their statement of defence under O 18 r 11 of the RHC 1980. He could then follow up by an application under O 33 r 2 and if it appears to the court that the decision on the preliminary issue substantially disposes of the case or matter or renders the trial of the cause or matter unnecessary, the court may then act under O 33 r 5 to dismiss the plaintiffs’ action (see Supreme Court Practice 1985 18/11/1 at p 276). Under O 33 r 2 however, the defendant need not plead the issue of law in his statement of defence and a formal application need not be made.<br />
<br />
It is clear to me firstly, that the issue of law raised in this instance would not require the ascertainment of any facts beyond those that appear in the <br />
<br />
pleadings and secondly that a decision on the issue if favourable to the defence would render the trial unnecessary which could only lead to much savings and costs. I therefore fail to see why the defendant should not be allowed to proceed with their application.<br />
<br />
<br />
<br />
This would be followed by the case of Huang Ee Hoe & Ors v Tiong Thai King & Ors [1991] 2 MLJ 51, where Chong Siew Fai J (as he then was) endorsed the speech of Lord Denning MR in Carl-Zeiss-Stiftung v Herbert Smith [1968] 2 All ER 1002, as can be seen at p 54 of the report:<br />
<br />
<br />
<br />
As stated by Lord Denning MR in Carl-Zeiss-Stiftung v Herbert Smith [1968] 2 All ER 1002 at p 1004:<br />
<br />
‘The true rule was stated by Romer LJ in Everett v Ribbands [1952] 2 QB 198. Where there is a point of law which, if decided in one way, is going to be decisive of the litigation, advantage ought to be taken of the facilities afforded by the rules of court to have it disposed of at the close of pleadings or very shortly afterwards. I have always understood such to be the practice.’<br />
<br />
<br />
<br />
Another case in point would be that of Fulcrum Capital Sdn Bhd v Dato’ Samsudin Abu Hassan; Rahaz Sdn Bhd & Anor (Interveners) and another case [2000] MLJU 610; [2001] 5 CLJ 73, and there, after reproducing O 33 r 2 of the RHC, I had this to say (see pp 97-104 of the MLJU report; pp 130–134 of the CLJ report):<br />
<br />
<br />
<br />
… and the court certainly has the wide discretion to order the preliminary issue as framed to be tried even before the trial of the cause or matter. The preliminary issue as framed can conveniently be said to be ‘partly of fact and partly of law’ and it is not a fictitious question. All the interested parties are present and it would be ideal to adjudicate on the preliminary issue as framed. According to Bright v Tyndall [1876] 4 Ch D 189 and Sumner v William Henderson & Sons [1963] 1 WLR 823 (CA), [1963] 2 All ER 712 (CA), the court will decline to hear fictitious questions where the events had not happened. It must be borne in mind that ‘any question or issue’ that calls for determination need not arise from the pleadings but it may surface through some other means and this is made possible by the existence of the phrase ‘or otherwise’ that appears in O 33 r 2 of the RHC. Fortunately, the preliminary issue as framed arose from the pleadings as well as through the documents that were referred to by the parties in the course of their arduous submissions. The preliminary issue as framed was not only bandied around by the parties during their submissions but it was also alluded to by James Foong J in his written judgment as adverted to earlier.<br />
<br />
Reverting back to the case of Bright v Tyndall, Malins VC was confronted with a special case to interpret the will of Mr Tyndall, a well known banker at Bristol who died leaving a very large fortune and six daughters who survived him and who were all alive at the material time. The property of Mr Tyndall was to be distributed in this way: ‘After the death of his daughters, the share of each daughter is given to the sons of the daughters who shall attain twenty-one and to the daughters who should marry under twenty-one, omitting the usual provision that the property shall vest in daughters who attain twenty-one or marry under that age.’ A question was posed under a special case for his Lordship to decide: Whether in the event of a daughter having daughters who attain twenty-one, and do not marry before, do they take a vested interest? <br />
<br />
Malins VC declined to decide the question as he was of the view that it would be injurious to the parties to decide the question until the events actually happened which would give rise to the question. At p 197 of the report, Malins VC had this to say:<br />
<br />
‘Now, the inconvenience of deciding such cases as this by anticipation is manifest. Suppose I were to come to the conclusion that no daughter that does not marry under twenty-one can take an interest, then I have taken away from the daughter, if such an event should arise, the chance of making the best she can of such a case when it does arise; and I have by anticipation made a declaration that she does not take an interest when there is no occasion for doing so whatever. The only reason suggested to me is that these young ladies when they marry ought to know whether the sons and daughters are to take, or whether only the daughters of a particular class are to take, viz, those who marry under twenty-one. I cannot regard that as a circumstance which renders it absolutely necessary that this question should now be decided. That the court will not, in all cases, decide such questions as a matter of course is most formally decided in Garlick v Lawson 10 Hare, pp, xiv by Vice Chancellor Wood, the same learned judge who decided Bell v Cade 2 J & H 122.’<br />
<br />
and the headnote merits reproduction where it states that:<br />
<br />
‘Upon a special case to obtain a decision whether persons not in esse would be entitled, under certain circumstances which might never arise, to a share in property, the court declined to decide the question, being of opinion that it would be injurious to the parties to have that decision until the events should happen which would give rise to the question.<br />
<br />
Where the interests of the parties to a special case are not of such a nature as to give the court jurisdiction to decide the questions, the court will not feel itself bound to decide upon a fictitious interest created for the express purpose of obtaining a decision.’<br />
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Factually speaking the facts in Bright v Tyndall can readily be distinguished. There the special case was posed when the events had not occurred as yet. Here, on the other hand, the preliminary issue as framed arose from a set of facts where the events had occurred. There the Act of Sir George Turner contained the following provision:<br />
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‘Provided, also, that if, upon the hearing of such special case as aforesaid, the court shall be of opinion that the questions raised thereby, or any of them, cannot properly be decided upon such case, the said court may refuse to decide the same.’<br />
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Here, O 33 r 2 of the RHC do not contain such a provision. However, O 33 r 5 of the RHC makes for an interesting reading; it states as follows:<br />
<br />
‘If it appears to the court that the decision of any question or issue arising in a cause or matter and tried separately form the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just.’<br />
<br />
In Sumner v William Henderson & Sons Ltd, a special case was submitted by the parties and the court had to decide the following preliminary questions of law for its opinion:<br />
<br />
(1) whether the defendants as employers could be liable for any negligence of the skilled and competent persons who had supervised and carried <br />
<br />
out the specialized work involved in the construction of the building which required skill and knowledge not possessed by the defendants; and<br />
<br />
(2) whether they could be held liable for any negligence by a reputable manufacturer of the cable.<br />
<br />
Sumner claimed damages under the Fatal Accidents Act 1846 to 1959, in respect of the death of his wife who was employed by the defendants as restaurant supervisor in the defendants’ store. Fire broke out in that store and his wife was asphyxiated by smoke in the course of her employment. The cause of the fire was not agreed upon by the parties. Phillimore J (see [1963] 1 All ER 408) determined the questions of law raised by the special case and he held that the defendants would be liable in law for any negligence of certain contractors and electrical engineers. The defendants appealed and the Court of Appeal (Sellers, Donovan and Russell LJJ) allowed the appeal and Sellers LJ delivering the judgment of the Court of Appeal had this to say (see pp 713-714 of the report):<br />
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‘In the present case no facts have been agreed and what the outcome of the evidence will be is most uncertain. It does not seem to us in the interests of either party that a hypothetical decision should be reached now. It might tie one or other of the parties to a decision which the facts might reveal as erroneous. Time is running out against possible claims against other parties, either directly by the plaintiff or as claims over for indemnity by the defendants, and we do not think that a decision now on the matters raised will satisfactorily relieve the parties from protecting themselves accordingly.<br />
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In our view the procedure by this special case was wrong; no judgment should have been given under it and it cannot properly be further pursued. We therefore, on this ground only, set aside the judgment given, so that the parties are free to argue the legal position on established facts, and we proceed no further with this appeal.’<br />
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Now, the marked differences between the present case and that of Sumner would be this. Here Fulcrum had extended the loan under the facility agreement to the defendants and the defendants agreed that they must pay the loan. The preliminary issue as framed arose out of the submissions of the parties and it was agreed upon by Madam DR John who acted for the defendants and the same preliminary issue was alluded to by James Foong J in his written judgment. The fact of borrowing was an established fact and this was never denied by the defendants. Whereas in Sumner’s case, the cause of the fire was hotly disputed by the parties and Sellers LJ was right in allowing the appeal by the defendants because the preliminary questions of law as framed would shackle the parties and prevent them from arguing ‘the legal position on established facts.’<br />
<br />
In Radstock Co-operative and Industrial Society Ltd v Norton-Radstock Urban District Council [1968] 1 Ch D 605, the Court of Appeal (Harman, Russell and Sachs LJJ) while deploring the method of adjudicating the case on a preliminary point upheld the decision of the trial judge and dismissed the appeal. Harman LJ, for instance, writing a separate judgment, at p 624 of the report, had this to say:<br />
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‘The defendants demurred to that claim, and an order was made on 15 July 1966, stated to be pursuant to RSC, O 33 r 3, directing the setting down of the following issue to be disposed of before the trial, namely:<br />
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<br />
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Page 160>>“Whether on the footing that all the allegations of fact contained in the statement of claim in this action (so far as not admitted in the defence) can be proved the plaintiffs can as a matter of law be entitled to damages or an injunction as claimed in their statement of claim.”<br />
<br />
Ungoed-Thomas J heard argument on this issue and came to the conclusion that the defendants were right, or, in other words, that the statement of claim showed no cause of action, and he dismissed the action under Rules of the Supreme Court, O 33 r 7. The plaintiffs appeal.<br />
<br />
At this juncture, I should like to protest against this method of procedure. This is not a preliminary point at all. It deals with the whole subject-matter of the action, and without any evidence, and the court is left in a most unsatisfactory position and has to guess at many things which, on a hearing, would be properly proved in evidence. The procedure proper to this kind of situation is by way of motion to strike out the statement of claim as showing no cause of action. That is a well-known method of putting an end to actions, without substance, but it is also well known that the court will only strike out a statement of claim in plain cases where it is clear that the action cannot possibly succeed. That procedure would be entirely unsuitable to a case like the present, in which more than a score of authorities have been cited and argument has lasted over five days. Still, we are now confronted with a position in which both parties have acquiesced.’<br />
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Finally, Harman LJ rounded it up by saying at p 628 of the report:<br />
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‘For all those reasons, while deploring the method by which the action has been conducted, I cannot but come to the conclusion that the statement of claim discloses no valid cause of action, and the case was, therefore, rightly dismissed by the judge as he had power to do under r 7 of O 33.’<br />
<br />
Here, the preliminary issue as framed would be tried in open court where the parties have the right to call witnesses. The full rigmarole of the trial will be conducted in adjudicating the preliminary issue as framed. Everything will be placed above board for the scrutiny of everyone. It would be pointless to have O 33 r 2 of the RHC as part and parcel of our procedure if we do not give effect to it. The Rules Committee saw it fit to incorporate this procedure in the RHC and this court must give effect to it. The preliminary issue as framed had a mixture of fact and law — all nicely framed to be adjudicated upon. This was my judgment and I so hold accordingly.<br />
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<br />
<br />
En Amir bin Ismail is quite painstaking. He dutifully takes me to appreciate the background facts of the case. He says that as can be seen from the pleadings of all the parties in the present civil suit, this case arises from an incident where the first defendant is said to have wrongfully blacklisted the plaintiff and, as a result thereof, the second and the third defendants also followed suit by blacklisting the plaintiff. He is very careful with his choice of words. But the sting of the plaintiff’s wrongdoing is aptly explained by Mr Porres Royan in a well crafted submission. Mr Porres Royan submits that the first defendant receives electronically through the Financial Institution Network (‘FINET’) from a reporting bank the ‘List of Bad Cheque Offenders Information Received From FI’ containing information <br />
<br />
which reports that the plaintiff is allegedly a bad cheque offender. The Biro Maklumat Cek system compiles the reports which it receives from all the licensed banks and puts it on a list of bad cheque offenders known as the BMC Offenders Blacklist (‘the List’). Now, whether or not the maintenance of the list is defamatory is not dependent, according to Mr Porres Royan, on the validity or otherwise of the BMC Guidelines. Mr Porres Royan submits further that whether the BMC Guidelines are valid or otherwise, this court will nevertheless have to decide the issue of whether or not the alleged maintenance of the list amounts to a defamatory statement which tends to injure the reputation of the plaintiff. Mr Porres Royan submits that all these would entail the adducing of evidence in regard to the said system and its workings and operations and a trial under O 33 r 2 of the RHC cannot be an appropriate mechanism by which this can effectively be done. Mr Porres Royan then proceeds full steam ahead. It is his submission that no action for a libel will lie unless there has been publication in the form of communication of a defamatory matter to a third person. It is also his submission that even if the BMC Guidelines are found to be ultra vires, that does not ipso facto mean that there was publication of the alleged defamatory statement. At any rate, I note that the first defendant has pleaded that there was, in fact, no publication in law. I too note that the first defendant also pleaded that the disclosure of the list of bad cheque offenders is transmitted via FINET in coded form. Arising out of these, Mr Porres Royan submits that whether there was publication or otherwise is a question of fact which can only be determined at the trial proper by way of a viva voce evidence. So, according to Mr Porres Royan, the plaintiff’s application under O 33 r 2 of the RHC is inappropriate because there are facts in issue and extrinsic evidence will be required to be adduced to ascertain whether or not the maintenance of the list amounts to publication.<br />
<br />
Reverting back to the issue of blacklisting the plaintiff, En Amir bin Ismail submits that all the defendants were relying on the fact that they were compelled by an obligation imposed on them by the BMC Guidelines — referring to the ‘Biro Maklumat Cek Operational Framework and Reporting Guidelines’, and that BMC Guidelines was said to be issued by the first defendant in February 1999 pursuant to the provisions of s 30(1)(mmmm) of the Central Bank of Malaysia Act 1958 (‘the Act’). It is the contention of En Amir bin Ismail that the BMC Guidelines are ultra vires and unlawful under the provisions of s 30(1)(mmmm) of the Act or any other laws of Malaysia. En Amir bin Ismail then proceeds to refer in extenso to paras 17, 18, 19, 20 and 21 of the statement of claim which were reproduced earlier and he too refers to paras 21A and 21B of the statement of defence of the first defendant which were also reproduced earlier. He then reads s 30(1)(mmmm) of the Act which states as follows:<br />
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<br />
<br />
Authorized business of Bank<br />
<br />
(1) The Bank may —<br />
<br />
(mmmm) establish a central bureau to collect, in such manner and to the extent as the bank may think fit, information on and relating to rejection by a paying bank of any cheque for reason of insufficient funds in the account of the drawer of the cheque, and to disclose any such <br />
<br />
information to any bank for the purpose only of assisting the bank to assess the eligibility of the drawer to maintain or open any current account with the bank;<br />
<br />
<br />
<br />
and he asks this court to refer to s 2 of the Act which uses the word ‘bank’ with a small letter ‘b’ to refer to the retail banks and the word ‘Bank’ with a capital ‘B’ to refer to the first defendant. Similarly he urges this court to refer to the Banking and Financial Institutions Act 1989 (‘BAFIA’) which makes the same references. Flowing from that En Amir bin Ismail submits that s 30(1)(mmmm) of the Act expressly and clearly provides for the following set of situations:<br />
<br />
<br />
<br />
(1) the power to establish a central bureau to collect and to disclose information relating to the rejection of bad cheque of a customer by a paying bank for reason of insufficient funds in the account of the drawer of the cheque; and<br />
<br />
(2) for the purpose of assisting the retail banks to assess the eligibility of the drawer to (a) maintain, or (b) open any current account with the said bank.<br />
<br />
<br />
<br />
En Amir bin Ismail then proceeds to submit along these lines. That the collection and disclosure of information by the central bureau is to be done purely for the sole purpose of assisting the licensed bank in assessing the eligibility of account holders to maintain or open a current account with the licensed bank. That nowhere in the legislation does it say that the first defendant can or should carry out a compulsory blacklisting of an account holder, let alone an innocent member of the public who is not an account holder of the complainant bank like the plaintiff in the present case. He emphasizes with some measure of seriousness that s 30(1)(mmmm) of the Act is an empowering provision which empowers the setting up of the Central Bank of Malaysia or Bank Negara or the first defendant herein.<br />
<br />
Now, ss 1.11 and 1.12.3 of the BMC Guidelines provide, inter alia, that there shall be a global closure of the offender’s account and in particular s 1.9.4 thereof provides that:<br />
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Other banks, where the account holder also maintains a current account, shall upon receiving the BMC Offenders Blacklist, also take steps to close all relevant accounts within one month from the date of receipt of the blacklist.<br />
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<br />
<br />
En Amir bin Ismail is not too happy with the BMC Guidelines. He says that under it all the recalcitrant blacklisted account holder accounts and banking facilities would be closed and recalled. He says that it is a mandatory procedure for all licensed banks to be compelled to follow the directions of the first defendant by blacklisting an account holder on a global basis and he says that this is wrong and clearly unauthorized by the statutes. In strong words, En Amir bin Ismail submits that such blacklisting is punitive in nature. He begs this court to take judicial notice that banking accounts are almost an essential necessity of modern life. It is used by a diversity of people, ranging from students to billionaires. He says that even the government pension cheques and tax collections are now paid through the <br />
<br />
banking systems and that the salaries of government employees are paid through bank accounts. He submits that it is impossible for anyone to function normally if he or she is blacklisted and has no bank account. He then submits that the effects of blacklisting are both draconian and heinous and it can only be considered as lawful if it is authorized by a specific and clear statutory legislation.<br />
<br />
I have this to say in regard to judicial notice.<br />
<br />
The general rule governing reception of evidence is this. That all the facts in issue which are relevant to the case must be proved by evidence — through the testimony of witnesses and the production of documents. But the court do take judicial notice by declaring that the state of facts exist. Thus, during the holy month of Ramadhan it is not necessary for the party who desires to establish that it is a fasting month to call witness to swear to that fact because this is a matter of which judicial notice is taken. Thus, in the words of Lord Sumner in the case of Commonwealth Shipping Representative v P & O Branch Services [1923] AC 191 at p 212:<br />
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<br />
Judicial notice refers to facts which a judge can be called upon to receive and to act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.<br />
<br />
<br />
<br />
It would be pointless in the extreme to prepare a list of instances supported by authorities to show that the courts have taken judicial notice of facts without making the necessary inquiry. It is suffice to say that once the fact in question is too notorious to be the subject of serious dispute, then the court can and should take judicial notice of the same. But it must not be forgotten that some judges are better equipped than their counterparts and these superior judges — superior in their intellect and ability, may probably take judicial notice of a wider range of matters. Be that as it may, it is a correct proposition of the law to say that within reasonable and proper limits, a judge may make use of his special knowledge of general matters in order to take judicial notice of a state of facts (Dawson v Lunn (1984) 149 JP 491). According to Isaacs CJ in Holland v Jones (1917) 23 CLR 149 at p 153 that the basic essential is that the fact judicially noticed should come within the category that all persons are aware of. I would therefore take judicial notice that opening an account with a bank is a modern way of Malaysian life.<br />
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En Amir bin Ismail proceeds further and he submits endlessly, focussing his attention to the BMC Guidelines. He criticizes the BMC Guidelines and he says that it is a bad guideline because there is no procedure for any check and balance. He says that there is no inquiry before an individual is blacklisted. He says that all that needs to be done is by way of a complainant bank submitting the name of the individual — like the present plaintiff who was said not to be an account holder of the complainant bank, and he is then blacklisted by the first defendant. In serious vein, he submits that there is even the possibility of abuse on the part of vindictive people within the banks who would abuse the system with cold blooded calculation to destroy an individual monetarily and financially by <br />
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abusing the system. It is contended on behalf of the plaintiff that this cannot be the intention of the legislature and that the provisions of the statute cannot oust the age old doctrines of natural justice and the right to fair hearing. It is the submission of En Amir bin Ismail that the maxim audi alteram partem should be applied vigorously for the plaintiff. He then submits with vigour and vitality by stating that the mere act of blacklisting with its attendant consequences must have been known to Parliament and that it cannot be right that Parliament would have given such powers to the first defendant without ensuring that the provisions of natural justice are complied with. He draws my attention and makes reference to Cross on Statutory Interpretation where the learned author at p 11 thereto writes:<br />
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In Fisher v Bell [1961] 1 QB 394; [1960] 2 All ER 731 a shopkeeper was charged with offering a flick-knife for sale contrary to s 1 (1) of the Restriction of Offensive Weapons Act 1959 according to which ‘any person who manufactures, sells or offers for sale or hire or lends or hires to any other person any knife sometimes known as a ‘flick-knife’ is guilty of an offence. The defendant had placed a flick-knife in his shop window, but the Divisional Court held that he had not offered it for sale because Parliament must be taken to have legislated with reference to the general law of contract according to which the placing of goods in a shop window constitutes an invitation to treat and not an offer. Lord Parker CJ, said:<br />
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‘At first sight it seems absurd that knives of this sort cannot be manufactured, sold, hired, lent or given, but apparently they can be displayed in shop windows; but even if this — and I am by no means saying that it is — is a casus omissus it is not for this court to supply the omission.’<br />
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It is difficult to escape the conclusion that the draftsman inadvertently omitted some such words as ‘exposes for sale’ or ‘has in his possession for the purpose of sale’, and the Restriction of Offensive Weapons Act 1961 provides for the insertion in s 1(1) of the Act of 1959, after the words ‘offers for sale or hire’, the words ‘or exposes or has in his possession for the purpose of sale and hire’. It is unlikely that any court of the 20th century would have read these words into the 1959 Act, but the draftsman’s omission, if there was one, could have been remedied by a refusal to apply the technicalities of the law of contract to a criminal case for, in their non-technical sense, the words ‘offers for sale’ might well be thought to apply to a shopkeeper who places goods in his shop window.<br />
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We shall see that there is something to be said on both sides with regard to the merits of decisions such as Fisher v Bell. The important point for present purposes is that they are apt to produce a parliamentary reaction. This has been the baneful effect of the literal approach to statutory interpretation as contrasted with the approaches canvassed in Stradling v Morgan and Heydon’s case pp 8–9.<br />
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He then refers to the same textbook and at p 145, the learned author says this:<br />
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To quote Lord Reid in Black-Clawson International, Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All ER 810, at p 815:<br />
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‘There is a presumption which can be stated in various ways. One is that in the absence of any clear indication to the contrary Parliament can be <br />
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presumed not to have altered the common law farther than was necessary to remedy the ‘mischief’. Of course it may and quite often does go farther. But the principle is that if the enactment is ambiguous, that meaning which relates the scope of the act to the mischief should be taken rather than a different or wider meaning which the contemporary situation did not call for.’<br />
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The presumption was one of Lord Reid’s grounds for holding, contrary to the view of some other members of the House, in the Black-Clawson case that s 8 of the Foreign Judgments (Reciprocal Enforcement) Act 1933 did not apply to judgments given in favour of a defendant simply dismissing a claim made by the plaintiff. In the earlier case of Maunsell v Olins [1975] AC 373, [1975] 1 All ER 16, Lord Reid had relied on this presumption in support of his conclusion that the word ‘premises’ in s 18(5) of the Rent Act 1968 did not extend to farm land. The provision under construction being, in his opinion, ambiguous, he was entitled to consider how it came to be where it was, and he traced it back to s 41 of the Housing Rents and Repairs Act 1954 the object of which was to get rid of the decision in Cow v Casey [1949] 1 KB 474, [1949] 1 All ER 197 which was not concerned with agricultural leases. The restriction of the scope of a statute to the immediate mischief it was designed to remedy was described by Lord Simon of Glaisdale in his dissenting speech as a misuse of the mischief rule, but Lord Reid was after all only speaking of a presumption to be called in aid in a case of ambiguity. The real difference between the majority and the dissentients in Maunsell v Olins was over the question whether there was an ambiguity.<br />
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Using these passages as springboards, En Amir bin Ismail submits that there is no way in which s 30(1)(mmmm) of the Act can be construed in such a way so as to give powers to anybody to design a procedure for the compulsory blacklisting to an individual. He then draws my attention to a book entitled Statutory Interpretation by Salleh Buang, particularly to p 49 where the learned author states:<br />
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In interpreting the provisions of a statute, one of the cardinal rules is to adhere as closely as possible to the literal meaning of the words. If an authority is required for this, it will be found in the case of Abbott v Middleton (1858) 7 HLC 114.<br />
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Once the literal meaning has been established then, however unjust, arbitrary or inconvenient such meaning may be, it must receive its full effect — see Biffin v Yorke 5 Man & G 428. Nor is it the function of the court to scan the wisdom or policy of a statute - see May v The Great Western Railway Co 41 LJ QB 104 …<br />
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Referring to the same textbook, he draws my attention to p 3 thereof and there the learned author continues to say:<br />
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In Foo Loke Ying & Anor v Television Broadcasts Ltd & Ors [1985] 2 MLJ 35, Abdoolcader SCJ said that:<br />
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‘The court however is not at liberty to treat words in a statute as mere tautology or surplusage unless they are wholly meaningless. On the presumption that Parliament does nothing in vain, the court must endeavour to give significance to every word of an enactment, and it is presumed that if a word or phrase appears in a statute, it was put there for a purpose and must not be disregarded …<br />
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The distinction between motive and intention in respect of a legislative measure is that the former relates to the policy for the enactment of the legislation in that way at that time for that purpose and the latter relates to the legal meaning of the enactment. The court is concerned with motive only to the extent that it may throw light on intention. It is the legal meaning of the enactment that in the end matters to the court, not the reason why it was passed ….’<br />
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And again he submits that there is no power vested in the first defendant to make provisions for the purpose of blacklisting the plaintiff.<br />
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Proceeding further En Amir bin Ismail contends that both the BMC Guidelines and the action of the first defendant in blacklisting the plaintiff is ultra vires and he then proceeds to refer to the case of The Attorney-General & Ephraim Hutchings (Relator) v The Directors of the Great Eastern Railway Company (1880) 5 App Cas 473 where the Lord Chancellor (Lord Selbourne) at p 478 of the report says:<br />
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I assume that your Lordships will not now recede from anything that was determined in The Ashbury Railway Company v Riche (Law Rep 7 HL 653). It appears to me to be important that the doctrine of ultra vires, as it was explained in that case, should be maintained. But I agree with Lord Justice James that this doctrine ought to be reasonably, and not unreasonably, understood and applied; and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.<br />
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And flowing from that he submits that the words in s 30(1)(mmmm) of the Act bear a particular meaning which should be given effect to. He highlights the words ‘for the purpose only of assisting’ that appear in s 30(1)(mmmm) of the Act and he submits that the usage of the word ‘only’ must necessarily preclude any other action that the first defendant might want to take notwithstanding that the first defendant may think it necessary or useful. It is his submission that substantive ultra vires may relate to matters of law and fact and even to matters of discretion. He submits that discretionary powers must be exercised for the purposes for which they were granted and that relevant considerations should be taken into account while irrelevant considerations should be disregarded. He submits further to the effect that the discretion must be exercised in good faith and not arbitrarily or capriciously and if the repository of this power fails to comply with these requirements it acts ultra vires. He says that if a discretionary power is conferred without reference to a purpose then that discretionary power must be exercised in good faith and in accordance with such implied purpose as the courts attribute to the intention of the legislature. He continues further and he submits that the discretionary power when exercised by any authority against a subject to the subject’s detriment, that discretionary power must be exercised judiciously and with reference to all the principles of natural justice because to do otherwise would render the BMC Guidelines to be draconian and against all the tenets of justice and fairness which decent people in the civilized world would understand and adhere to. These submissions are strongly worded and crafted and they are <br />
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aimed at whittling down the powers of the first defendant. I keep an open mind. I refrain from saying anything adverse.<br />
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Mr Porres Royan submits in rebuttal and he says that the first defendant had pleaded and will definitely rely on the defence of qualified privilege. He submits that on grounds of public policy, the law affords protection on certain occasions to a person acting in good faith and without any improper motive who makes a statement about another person which is in fact untrue and defamatory. And that for such an occasion to arise, as a general rule, there must be a common and corresponding duty or interest between the person who makes the communication and the person who receives it. Now, an occasion is said to be privileged where the person who makes a communication has an interest or duty — be it legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.<br />
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It is submitted by Mr Porres Royan that although the legality of the BMC Guidelines is important to discern and determine whether the first defendant has a legal duty to communicate the list to the second defendant and the third defendant, yet the BMC Guidelines are merely a part of a wider duty imposed on the first defendant by statute. It is the contention of the first defendant that it is under a statutory or legal duty as well as a moral or social duty to maintain the list for the benefit of all the commercial banks in the country including the second defendant and the third defendant. <br />
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It is contended on behalf of the first defendant that even if the court finds that the BMC Guidelines to be ultra vires, yet that outcome will not result or substantially result in the disposal of the case. Indeed that is a perfectly correct contention. It must be borne in mind that the action for the tort of libel is a distinct cause of action independent of whether the BMC Guidelines are valid or otherwise. Since the issue as framed in encl 16 and as reproduced in the early part of this judgment fails to conclusively resolve the matter under O 33 r 2 of the RHC, one way or the other, then in the words of Chang Min Tat FJ, in the case of Chan Kum Loong v Hii Sui Eng [1980] 1 MLJ 313 at p 314, it is ‘an unjustified waste of time and occasions an equally unjustified increase in costs.’ His Lordship Chang Min Tat FJ further states at the same page of the same case, the following words:<br />
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Preliminary points of law have been described as too often treacherous short cuts and their price can be delay, anxiety and expense: see Tilling v Whiteman (1979) 2 WLR 401, per Lord Wilberforce at p 403 D–G and per Lord Scarman at p 410C–E.<br />
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In Newacres Sdn Bhd v Sri Alam Sdn Bhd, the then Supreme Court vigorously applied the principle that was laid down in the case of Everett v Ribbands & Anor [1952] 2 QB 198 and said (see p 476 of the judgment of Jemuri Serjan CJ (Borneo)):<br />
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We would interpolate to say that O 33 r 2 is suitable if there is a point of law which, if decided in one way, is going to be decisive of litigation and the advantage should be taken of these facilities.<br />
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Here, in adjudicating encl 16, I found that the issue as framed cannot decisively determine and put an end to the litigation. It is part and parcel of my judgment that even if I were to hold that the BMC Guidelines that was issued by the first defendant is ultra vires — a decision that would favour the plaintiff, yet it would not be decisive as to put an end to the whole suit. The litigation would still continue. The disposal of the proposed question of law as framed in encl 16 will not and cannot render the trial of the action for defamation unnecessary. This court will still have to adjudicate on the issue of defamation. This court too will have to adjudicate on the issue of negligence.<br />
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It is interesting to note that at para 8 of the first defendant’s amended defence as seen in encl 13, the first defendant has raised the issue of its immunity under s 114 of BAFIA. Now, if the plaintiff’s application in encl 16 is allowed the scenario would be like this. There has to be by way of a first trial in order to determine the validity or otherwise of the BMC Guidelines and irrespective of the outcome there would then be a second trial in order to determine the issue of defamation. This would then be followed, perhaps, by a third trial in order to determine all the other outstanding issues.<br />
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In the course of his submission, En Amir bin Ismail argues that the first defendant’s reliance on s 43(3) of BAFIA is irrelevant. In my judgment, this is not the correct forum nor the correct stage to determine the merits of the first defendant’s defence. There were snide remarks advanced on behalf of the plaintiff that the first defendant wishes to rely on the practices of the Middle Ages or the Spanish Inquisition or the Star Chamber. Such remarks, with respect, are unwarranted and unjustified. This court would certainly interpret the secrecy provision that is housed in s 43(4) of BAFIA in the light of the prevailing Malaysian rules on statutory interpretation. Incidentally, with respect, En Amir bin Ismail did not submit as to what would happen if the BMC Guidelines are held to be valid and he seems to submit on the assumption that the BMC Guidelines are and ought to be held invalid. Again, with respect, En Amir bin Ismail submits on the assumption that the factual basis on which the torts of libel and negligence lie is not in dispute. But it is quite apparent that the first defendant has never made such a concession. In fact, Mr Porres Royan made that clear in his submission. In my judgment, there is a dire need to introduce affidavit evidence in order to establish the facts on which the application in encl 16 is hinged upon. It is also part and parcel of my judgment that if this court tries the preliminary point as framed in encl 16, there would not be a substantial saving of expense and time. Rather, in the words of Lord Wilberforce in Tilling v Whiteman, it would be a ‘treacherous short cuts and their price can be delay, anxiety and expense.’ It cannot be denied that the tort of libel and the tort of negligence are two distinct causes of actions independent of whether the BMC Guidelines are valid or otherwise. It is quite obvious that the disposal of the proposed question of law as framed in encl 16 will certainly not render the trial for the actions of libel and negligence unnecessary. Here, there are disputes of fact and law. Here, this court must also determine as to whether the legal ingredients for an action of libel and negligence have been satisfied.<br />
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It must be recalled that it has been pleaded that the disclosure of the list of bad cheque offenders is transmitted via FINET in coded form. It must also be recalled that the first defendant has pleaded that there was no publication in law by way of a transmission via FINET in coded form. That being the case, this court has no choice but to determine and answer the question as to whether the maintenance and transmission of the list of bad cheque offenders in coded form amounts, in law, to a defamatory statement. This is also another question of law in addition to the one that is framed and phrased in encl 16.<br />
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Conclusion<br />
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All said and done, En Amir bin Ismail is a gentleman who practices law with an acute sense of responsibility. He submits on the law as he sees it and when questioned he magnanimously agrees that encl 16 is inappropriate for the purposes of O 33 r 2 of the RHC. I then dismissed encl 16 with costs. And I too said that costs should rightly go to the first defendant, the second defendant and the third defendant.<br />
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Out of deference to the learned counsel on all sides, this judgment is produced to show that there is a need to be cautious when applying under O 33 r 2 of the RHC. Let this be a lesson to all legal practitioners.<br />
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Plaintiff’s application dismissed.<br />
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Reported by Lim Lee NaRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-87857972274437492272009-10-10T20:36:00.001-07:002009-10-10T20:36:42.350-07:00Pekeliling Triangle Sdn Bhd & Anor v Chase Perdana Bhd[2003] 1 MLJ 130<br />
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Pekeliling Triangle Sdn Bhd & Anor v Chase Perdana Bhd<br />
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Headnote<br />
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Court Details<br />
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COURT OF APPEAL (KUALA LUMPUR) — CIVIL APPEAL NOS W–02–507 OF 2001 AND NO W–02–532 OF 2001<br />
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ABDUL HAMID MOHAMAD, MOHD SAARI, MOHD NOOR AHMAD JJCA<br />
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9 AUGUST 2002<br />
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Catchwords<br />
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Civil Procedure — Injunction — Interlocutory injunction — Bona fide serious issue to be tried — Whether plaintiff would suffer irreparable injury that could not be adequately compensated by damages if the injunction was not granted — Whether trial judge had proceeded on wrong grounds in exercise of discretion to grant injunctions — Whether appellate court was entitled to interfere<br />
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Civil Procedure — Injunction — Interlocutory injunction — Judge must first be satisfied that plaintiff would suffer irreparable injury or that the plaintiff could not be adequately compensated in damages before proceeding to consider whether the balance of convenience was in plaintiff’s favor — Whether there was a need to consider balance of convenience and status quo if first step not crossed<br />
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Civil Procedure — Stay of proceedings — Arbitration — Defendants entered conditional appearance — Whether constituted the taking of a step in the proceedings — Whether defendants were at all times ready and willing to do all things necessary to the proper conduct of the arbitration — Arbitration Act 1952 s 6<br />
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Civil Procedure — Stay of proceedings — Arbitration — Onus on plaintiff to satisfy court that it was proper to refuse the application for stay — Whether trial judge proceeded on wrong grounds in refusing stay — Whether trial judge could have been satisfied that plaintiff exhibited strong grounds for refusing a stay<br />
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Summary<br />
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Under a contract made between the first defendant and the plaintiff, the plaintiff was employed to construct a commercial and apartment complex in Kuala Lumpur known as the ‘Marinara’ building (‘the building’). It was a lump sum contract in the value of RM110m. The payment was guaranteed by an irrevocable bank guarantee of RM122.77m issued by Bank Bumiputra Malaysia Bhd in favor of the plaintiff. Payment under the bank guarantee would be made upon the issuance of the certificate of practical completion (‘the CPC’) by the architect of the building (‘the second defendant’). The date for completion stipulated by the contract was 15 September 1997 but the plaintiff failed to meet the target date for completion and the date for completion was extended from time to time, the last of which was March 2000. The first defendant alleged that at the end of the last date for completion there was continuing default on the part of the plaintiff. After the issuance of notices by the second defendant and the consulting engineer specifying the major shortcomings, the plaintiff proceeded to remedy the same. The first and second defendants were not satisfied with the remedial works done by the plaintiff and the second defendant refused to issue the CPC. As such, the plaintiff was not able to claim payment under the bank guarantee. On 14 June 2000, the third defendant under the purported authority of the first defendant entered the building site with uniform guards, some of whom were armed with shotguns. The plaintiff then filed a writ action against the defendants based on trespass and conspiracy to injure the plaintiff’s legitimate rights and interests under the contract. The plaintiff further filed an application in encl 8 at the High Court for injunctions to: (a) restrain the third defendant, its employees and agents from entering the project site without the plaintiff’s written consent; (b) restrain the first and second defendants from proceeding with their conspiracy to injure the plaintiff’s rights and interests in the project and to prevent the plaintiff from completing the project, including the issuance of any notice of termination in pursuance of the conspiracy. Meanwhile, the defendants filed an application in encl (16) to stay the plaintiff’s writ action pending arbitration pursuant to the contract. The High Court allowed the plaintiff’s application in encl (8) and dismissed the defendants’ application in encl (16). In respect of encl (8), the learned High Court judge found that the facts presented had disclosed a bona fide serious issue to be tried and that the plaintiff would suffer an irreparable injury that could not be adequately compensated by damages if the injunction was not granted. As for encl (16), the learned judge was satisfied that the plaintiff had given sufficient reasons as to why the differences between the parties should not be referred to arbitration. He accordingly refused stay on the grounds, inter alia, that arbitration would not solve the parties’ problems but would be a prolonged exercise and that the defendants had entered conditional appearance which amounted to taking steps in the proceedings. The learned judge went on to decide that it was best that the issues of conspiracy, trespass, issuance of the CPC and the termination of contract be heard together by the court. This was the defendants’ appeal.<br />
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Holdings<br />
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Held, allowing the defendants’ appeal:<br />
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(1) There was a bona fide serious issue to be tried in the instant case. However, the learned judge had misapplied the law to the facts of this case when he held that the plaintiff would suffer an irreparable injury that could not be adequately compensated by damages if the injunction was not granted. The damages that the plaintiff would suffer were monetary in nature and quantifiable. Even if the defendants were not in a financial position to pay the damages, the means to compensate the plaintiff would always be there in the form of the bank guarantee. The bank guarantee was irrevocable and a claim on it can be made upon production of the CPC by the plaintiff to the bank within 14 days following the date of its issue. Therefore, if the plaintiff were to succeed at the trial, it would be adequately compensated by an award of damages for the loss it would suffer as a result of the defendants continuing to do what <br />
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Page 132>>was sought to be restrained between the time of the application and the time of the trial. Hence, the plaintiff’s application for the injunctions should have been refused, no matter how strong the plaintiff’s claim appeared to be at that stage (see pp 142F–143B); American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 followed.<br />
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(2) The learned High Court judge must first be satisfied that the plaintiff would suffer an irreparable injury or that the plaintiff could not be adequately compensated in damages before proceeding to consider whether the balance of convenience laid in the plaintiff’s favour. The second step was if damages would not provide an adequate remedy for the plaintiff in the event of it succeeding at the trial, the learned judge should then consider whether, if the defendants were to succeed at the trial in establishing their rights to do that which was sought to be restrained, they would be adequately compensated under the plaintiff’s undertaking as to damages to the loss they would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason to refuse an interlocutory injunction. The third step was that if there was doubt as to the adequacy of the respective remedies in damages available to either party or to both, only then should the judge proceed to consider the question of balance of convenience. The last step was where other factors appeared to be evenly balanced, in which case the question of the preservation of the status quo would come into play. In the instant case, the learned High Court judge did not follow these steps at all but considered them all together, which was wrong. Since the first step had not been crossed, there was no need to consider other matters relating to the balance of convenience and the measures calculated to preserve status quo as elaborated by the judge (see p 143C–H). <br />
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(3) The learned High Court judge was swayed by the fact that the plaintiff had constructed the building at its own costs and the second defendant had certified the sum of RM102,428,245.83 to be the estimated value of the works done. Such reliance was misplaced because under the contract, the issuance of the interim statements by second defendant was solely for the purpose of the plaintiff’s monthly drawdown from its financial institution for work done on the site and no payment can be demanded from the first defendant based on the interim statements of work done. The judge also relied on the favorable article regarding the building in the local newspaper. Such reliance was wrong because the newspaper article was merely for publicity in the interest of business efficacy and this did not mean that the major shortcomings bore no truth (see pp 144H–145C).<br />
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(4) The decision in granting the injunctions and the making of the orders was unjust because the first defendant was compelled to continue to employ the plaintiff notwithstanding that the latter could not deliver the building on time and in accordance with the approved specification. By the injunctions, the plaintiff was allowed to remain in possession of the site, thus aggravating the existing stalemate between the parties and by the injunctions, the first defendant was virtually forced to accept the major shortcomings even though some of them were contrary to the approved specification. Accordingly, since the learned judge had manifestly proceeded on wrong grounds in the exercise of his discretion to grant the injunctions and in making the orders, this court was entitled to interfere (see p 145C–G).<br />
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(5) The defendants were at all times ready and willing to do all things necessary to the proper conduct of the arbitration. The onus was on the plaintiff to satisfy the court that it was proper to refuse the application for stay and strong grounds for refusing a stay must be exhibited by the plaintiff. Generally however, the approach of the court would be that parties who made a contract to arbitrate their disputes, should be held to their bargain (see p 146D–F).<br />
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(6) The learned judge referred to four authorities with regard to whether entering conditional or unconditional appearance amounted to taking steps in the proceedings. However he did not make a clear cut finding as to which authority he followed. Therefore, going by the hierarchy, the court was inclined to follow Interscope Versicherung Sdn Bhd v Sime Axa Assurance Bhd where the Court of Appeal held that the entry of an unconditional appearance constituted the taking of a step in the proceedings. Hence, in the instant case, since the defendants had entered a conditional appearance and merely applied for stay, the same did not amount to the taking of a step in the proceedings within the meaning of s 6 of the Arbitration Act 1952 (see p 147A–E); Interscope Versicherung Sdn Bhd v Sime Axa Assurance Bhd [1999] 2 MLJ 529 followed. <br />
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(7) The learned judge had proceeded on wrong grounds in refusing the stay. An arbitration process would be more expeditious because the sole issue to be resolved would be whether the CPC should be issued. On the other hand, since court proceedings, were usually protracted, the completion of the construction of the building would be prolonged. Even though the court had the jurisdiction to hear the dispute, it was apt that the dispute be settled by arbitration as the question of the issuance of the CPC was technical in nature. In this regard, an independent arbitrator with vast knowledge and experience in the construction industry would be more ideal for the purpose. Accordingly, the learned High Court judge could not have been satisfied that the plaintiff had exhibited strong grounds for refusing a stay. This warranted interference by this court (see pp 147F–I, 148F–G).<br />
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(8) It would be unjust to prevent the defendants from going to arbitration and to force them to have their rights determined by litigation. Further, there was no good reason for the plaintiff to decline to honor its bargain under the contract to settle the dispute by arbitration. Since there was no inherent objection to an action and an arbitration proceeding side by side, the issues of conspiracy and trespass can be adjudicated upon by the court and those issues that had arisen from the disputes under the contract can be adjudicated upon by an arbitrator (see pp 147G, 148D–E).<br />
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Bahasa Malaysia summary<br />
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Di bawah satu kontrak yang dibuat di antara defendan pertama dan plaintif, plaintif telah diambil bekerja membina sebuah kompleks perdagangan dan pangsapuri di Kuala Lumpur dikenali sebagai ‘Bangunan Marinara’ (‘bangunan tersebut’). Ia merupakan satu kontrak bayaran selesai bernilai RM110j. Bayaran dijamin oleh suatu jaminan bank yang tidak boleh dibatalkan sebanyak RM122.77j yang dikeluarkan oleh Bank Bumiputra Malaysia Bhd memihak kepada plaintif. Bayaran di bawah jaminan bank tersebut akan dibuat atas keluaran sijil penyelesaian praktikal (‘SPP’) oleh arkitek bangunan tersebut (‘defendan kedua’). Tarikh penyelesaian yang ditetapkan oleh kontrak tersebut adalah 15 September 1997 tetapi plaintif gagal memenuhi tarikh yang ditetapkan untuk penyelesaian dan tarikh penyelesaian dilanjutkan dari masa ke semasa, yang terakhir merupakan Mac 2000. Defendan pertama mengatakan bahawa pada penutup tarikh terakhir untuk penyelesaian keingkaran terus berlaku di pihak plaintif. Selepas pengeluaran notis oleh defendan kedua dan jurutera perunding yang menyatakan kekurangan-kekurangan utama yang terdapat pada bangunan tersebut, plaintif terus memulihkan kekurangan-kekurangan tersebut. Defendan pertama dan kedua tidak berpuas hati dengan kerja pemulihan yang dijalankan oleh plaintif dan defendan kedua enggan mengeluarkan SPP. Oleh yang demikian, plaintif tidak dapat menuntut bayaran di bawah jaminan bank tersebut. Pada 14 Jun 2000, defendan ketiga kononnya di bawah kuasa defendan pertama memasuki kawasan bangunan tersebut dengan pengawal-pengawal berseragam, yang di antara mereka dilengkapi dengan senapang. Plaintif kemudiannya memfailkan satu tindakan writ terhadap defendan-defendan berdasarkan pencerobohan dan persubahatan untuk mengancam hak dan kepentingan sah plaintif di bawah kontrak tersebut. Plaintif seterusnya memfailkan satu permohonan di dalam lampiran (8) di Mahkamah Tinggi bagi injunksi-injunksi untuk: (a) menahan defendan ketiga, pekerja dan ejennya daripada memasuki kawasan projek tanpa kebenaran bertulis plaintif; (b) menahan defendan pertama dan kedua daripada meneruskan persubahatan untuk mengancam hak dan kepentingan plaintif dalam projek tersebut dan untuk menahan plaintif daripada menyelesaikan projek tersebut, termasuk pengeluaran mana-mana notis penamatan menurut persubahatan tersebut. Sementara itu, defendan-defendan memfailkan satu permohonan dalam lampiran (16) untuk menggantung tindakan writ plaintif sementara menunggu penyelesaian timbangtara menurut kontrak tersebut. Mahkamah Tinggi membenarkan permohonan plaintif dalam lampiran (8) dan menolak permohonan defendan-defendan dalam lampiran (16). Berkaitan dengan lampiran (8), hakim Mahkamah Tinggi yang arif mendapati bahawa fakta-fakta yang dikemukakan mendedahkan satu isu bona fide serius yang harus dibicarakan dan bahawa plaintif akan mengalami kerugian tidak boleh dipulihkan yang tidak dapat diberi pampasan secukupnya dengan gantirugi sekiranya injunksi tidak diberikan. Mengenai lampiran (16) pula, hakim yang arif telah berpuas hati bahawa plaintif telah memberi alasan-alasan yang mencukupi tentang mengapa perbezaan di antara pihak-pihak tidak harus dirujuk kepada timbangtara. Dengan itu beliau menolak penggantungan atas alasan, antara lainnya, bahawa timbangtara tidak akan menyelesaikan masalah antara pihak-pihak tetapi akan menjadi satu latihan yang dilanjutkan dan bahawa defendan-defendan telah memfailkan kemasukan bersyarat yang mana bermakna mengambil langkah dalam prosiding. Hakim yang arif seterusnya memutuskan bahawa adalah baik sekiranya isu-isu persubahatan, pencerobohan, keluaran SPP dan penamatan kontrak dibicara bersama di mahkamah. Ini merupakan rayuan defendan-defendan.<br />
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Bahasa Holdings<br />
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Diputuskan, membenarkan rayuan defendan-defendan:<br />
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(1) Terdapat satu isu bona fide serius yang harus dibicarakan di dalam kes ini. Walau bagaimanapun, hakim yang arif telah salah pakai undang-undang kepada fakta kes ini apabila beliau memutuskan bahawa plaintif akan mengalami kecederaan yang tidak boleh dipulihkan secukupnya dengan pampasan sekiranya injunksi tidak diberikan. Gantirugi yang bakal ditanggung oleh plaintif bersifat kewangan dan boleh dikira. Jika sekiranya defendan-defendan tidak berada dalam kedudukan kewangan yang baik untuk membayar gantirugi tersebut, cara untuk memberi pampasan plaintif telah sedia ada dalam bentuk jaminan bank tersebut. Jaminan bank tersebut tidak boleh ditarik balik dan tuntutan atasnya boleh dibuat setelah plaintif mengemukakan SPP kepada bank tersebut dalam tempoh 14 hari selepas tarikh pengeluarannya. Maka, sekiranya plaintif berjaya di dalam perbicaraan, ia akan mendapat pampasan secukupnya dengan satu award gantirugi untuk kerugian yang ditanggungnya akibat perkara-perkara yang terus dibuat oleh defendan-defendan di antara masa permohonan dan masa perbicaraan yang mana plaintif ingin menghalang. Justeru itu, permohonan plaintif untuk injunksi harus ditolak, tidak kira betapa kukuh tuntutan plaintif pada peringkat itu (lihat ms 142F–143B); American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 diikut.<br />
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(2) Hakim Mahkamah Tinggi yang arif mesti terlebih dahulu berpuas hati bahawa plaintif akan mengalami satu kerugian yang tidak boleh dipulihkan atau bahawa plaintif tidak dapat diberi pampasan yang secukupnya dengan gantirugi sebelum terus menimbang sama ada imbangan kemudahan terletak di pihak plaintif. Langkah kedua adalah sekiranya gantirugi tidak memperuntukkan remedi yang mencukupi untuk plaintif andainya ia berjaya di perbicaraan, hakim yang arif kemudiannya harus menimbangkan sama ada, jika defendan-defendan berjaya di perbicaraan dalam membuktikan hak mereka untuk membuat apa yang hendak ditahan, mereka akan dipampas dengan secukupnya di bawah akujanji plaintif mengenai gantirugi kepada kerugian mereka tanggung akibat dicegah daripada berbuat demikian di antara masa permohonan dibuat dan masa perbicaraan. Sekiranya gantirugi di bawah akujanji sedemikian akan merupakan remedi yang mencukupi dan plaintif berada dalam kedudukan kewangan untuk membayarnya, tiada alasan untuk menolak permohonan injunksi interlokutori. Langkah ketiga adalah bahawa sekiranya wujud keraguan tentang kecukupan remedi masing-masing dalam gantirugi yang sedia kepada mana-mana pihak atau kedua-duanya, maka pada ketika itulah hakim harus terus menimbangkan soalan imbangan kemudahan. Langkah terakhir adalah sama ada di mana faktor-faktor lain bila diimbang secara rata, soalan pengekalan status quo akan timbul. Dalam kes ini, hakim Mahkamah Tinggi yang arif tidak mematuhi langkah-langkah ini sama sekali tetapi menimbangkan mereka semua sekaligus, iaitu cara yang salah. Oleh kerana langkah pertama tidak dibatasi, tiada keperluan untuk menimbang perkara lain berhubung dengan imbangan kemudahan dan sukatan yang dihitung untuk mengekalkan status quo yang ditekankan oleh hakim tersebut (lihat ms 143C–H); Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 diikut.<br />
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(3) Hakim Mahkamah Tinggi yang arif dipengaruhi oleh hakikat bahawa plaintif telah membina bangunan tersebut atas kosnya sendiri dan defendan kedua telah mengaku jumlah RM102,428,245.83 sebagai nilai anggaran kerja yang dijalankan. Kepercayaan demikian telah disalahletak kerana di bawah kontrak tersebut, pengeluaran pernyataan-pernyataan interim oleh defendan kedua adalah semata-mata untuk tujuan bayaran bulanan ‘drawdown’ plaintif daripada institusi kewangan untuk kerja yang dijalankan di kawasan tersebut dan tiada bayaran boleh dituntut daripada defendan pertama berdasarkan pernyataan-pernyataan interim untuk kerja yang dijalankan. Hakim juga bergantung kepada rencana akhbar yang membuat liputan yang baik berhubung dengan bangunan tersebut dalam akhbar tempatan. Kepercayaan demikian adalah salah kerana rencana akhbar cuma sekadar untuk publisiti dalam kepentingan perdagangan dan ini tidak bermakna bahawa kekurangan-kekurangan utama yang tidak terdapat pada bangunan tersebut adalah tidak benar (lihat ms 144H–145C).<br />
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(4) Keputusan memberikan injunksi dan perintah-perintah tersebut adalah tidak adil kerana defendan pertama telah diwajibkan untuk terus menggajikan plaintif walaupun plaintif tidak dapat menyerahkan bangunan tersebut menepati masa dan menurut penentuan yang diluluskan. Melalui injunksi-injunksi tersebut, plaintif dibenarkan mengekalkan milikan kawasan tersebut, justeru itu memburukkan kebuntuan yang wujud di antara pihak-pihak dan melalui injunksi-injunksi tersebut, defendan pertama pada hakikatnya dipaksa menerima kekurangan-kekurangan utama yang terdapat pada bangunan tersebut walaupun di antara mereka terdapat percanggahan mengenai penentuan yang diluluskan. Oleh itu, oleh kerana hakim yang arif telah meneruskan tindakan atas alasan yang salah dalam pelaksanaan budi bicara beliau untuk memberikan injunksi-injunksi tersebut dan dalam membuat perintah, mahkamah ini berhak campur tangan (lihat ms 145C–G).<br />
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(5) Defendan-defendan pada semua masa bersedia dan rela membuat segala yang perlu untuk pelaksanaan wajar timbangtara. Beban terletak pada plaintif untuk memuaskan mahkamah bahawa adalah wajar untuk menolak permohonan untuk penggantungan dan alasan yang kukuh untuk menolak penggantungan mesti ditunjukkan oleh plaintif. Walau bagaimanapun, pada umumnya, pendekatan yang diambil oleh mahkamah adalah bahawa pihak-pihak yang membuat kontrak untuk menimbangtara pertikaian mereka harus terikat dengan janji mereka (lihat ms 146D–F).<br />
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(6) Hakim yang arif telah merujuk kepada empat otoriti berkenaan sama ada kemasukan bersyarat atau tanpa syarat bermaksud mengambil langkah dalam prosiding. Walau bagaimanapun, beliau tidak menyatakan dengan jelas otoriti mana yang beliau ikuti. Oleh itu, mengikut hierarki, mahkamah cenderung untuk mengikut keputusan di dalam Interscope Versicherung Sdn Bhd v Sime Axa Assurance Bhd [1999] 2 MLJ 529 di mana Mahkamah Rayuan telah memutuskan bahawa kemasukan kehadiran tanpa syarat membentuk pengambilan langkah dalam prosiding. Justeru itu, dalam kes ini, oleh kerana defendan-defendan telah memasukkan kehadiran bersyarat dan cuma memohon penggantungan, yang sama tidak berjumlah kepada pengambilan langkah dalam prosiding dalam lingkungan maksud s 6 Akta 1952 (lihat ms 147A–E); Interscope Versicherung Sdn Bhd v Sime Axa Assurance Bhd [1999] 2 MLJ 529 diikut. <br />
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(7) Hakim yang arif telah meneruskan tindakan atas alasan yang salah dalam menolak penggantungan. Satu proses timbangtara akan lebih pantas kerana satu-satunya isu untuk diselesaikan adalah sama ada SPP harus dikeluarkan. Sebaliknya, memandangkan prosiding mahkamah biasanya berlanjutan, penyelesaian pembinaan bangunan tersebut akan mengambil masa. Walaupun mahkamah mempunyai bidang kuasa untuk mendengar pertikaian tersebut, adalah lebih sesuai untuk pertikaian tersebut diselesaikan melalui timbangtara oleh kerana soalan tentang keluaran SPP bersifat teknikal. Oleh kerana itu, seorang penimbangtara bebas dengan pengetahuan dan amalan luas dalam industri pembinaan lebih sesuai untuk tujuan ini. Justeru itu, hakim Mahkamah Tinggi yang arif tidak mungkin berpuas hati bahawa plaintif telah menunjukkan alasan yang kukuh untuk menolak penggantungan. Ini mewajarkan campur tangan daripada mahkamah ini (lihat ms 147F–I, 148F–G).<br />
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(8) Adalah tidak adil untuk menghalang defendan-defendan daripada merujuk kepada timbangtara dan untuk memaksa mereka menentukan hak mereka melalui litigasi. Seterusnya, tiada alasan yang baik untuk plaintif enggan menepati janjinya di bawah kontrak untuk menyelesaikan pertikaian melalui timbangtara. Oleh kerana tiada bantahan sedia ada terdapat untuk tindakan dan prosiding timbangtara dijalankan bersampingan, isu-isu mengenai persubahatan dan pencerobohan boleh diadili oleh mahkamah dan isu-isu yang telah timbul dari pertikaian di bawah kontrak boleh diadili oleh seorang penimbangtara (lihat ms 147G, 148D–E).]<br />
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Notes<br />
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For cases on interlocutory injunction, see 2 Mallal’s Digest (4th Ed, 2001 Reissue) paras 2707–2794.<br />
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For cases on arbitration, stay of proceedings, see 2 Mallal’s Digest (4th Ed, 2001 Reissue) paras 5514–5522.<br />
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Cases referred to<br />
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American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 (folld)<br />
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Evans v Bartlam [1937] AC 473 (refd)<br />
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Hashim bin Majid v Param Cumaraswamy & Ors [1993] 2 MLJ 20 (refd)<br />
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Interscope Versicherung Sdn Bhd v Sime Axa Assurance Bhd [1999] 2 MLJ 529 (folld)<br />
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Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 (folld)<br />
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Lee Brothers Construction Co v Teh Teng Seng Realty Sdn Bhd [1988] 1 MLJ 459 (refd)<br />
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Lloyd v Wright [1983] 2 All ER 969 (refd)<br />
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New Zealand Insurance Co Ltd v Ong Choon Lin (t/a Syarikat Federal Motor Trading) [1992] 1 MLJ 185 (refd)<br />
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Northern Regional Health Authority v Derek Crouch Construction Co Ltd [1984] 2 All ER 175 (refd)<br />
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PP Persero Sdn Bhd v Bimacom Property & Development Sdn Bhd [1999] 6 MLJ 1 (refd)<br />
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Seloga Jaya Sdn Bhd v Pembenaan Keng Ting (Sabah) Sdn Bhd [1994] 2 MLJ 97 (refd)<br />
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Sime Axa Assurance Bhd and another appeal v Interscope Versicherung Sdn Bhd <br />
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Tubeworkers Ltd v Tilbury Construction Ltd 30 BLR 67 (2 April 1985) (refd)<br />
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Usahabina v Anuar bin Yahya [1998] 7 MLJ 691 (refd)<br />
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Legislation referred to<br />
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Arbitration Act 1952 s 6<br />
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Rules of the High Court 1980 O 18 r 19(1)<br />
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Appeal from: Suit No S5–22–408 of 2000 (High Court, Kuala Lumpur)<br />
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Lawyers<br />
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YM Raja Aziz Addruse (Philip Choong with him) (Philip Choong & Co) for the appellant.<br />
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Roy Sreenivasan (Cheang & Arif) for the respondent.<br />
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Judgement - Mohd Noor Ahmad JCA<br />
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Mohd Noor Ahmad JCA (delivering judgment of the court): The case is related to the construction of commercial and apartment complex on Lot Nos 151, 152 and 157, section 87A, Jalan Tun Razak Kuala Lumpur known as the ‘Marinara’ building (‘the building’). The proceedings in the High Court are concerned with two enclosures. Enclosure (8) is in respect of injunctions and encl (16) is in connection with a stay pending reference to arbitration. On encl (16), the learned judge dismissed with cost the defendants’ application for stay of the writ action filed by the plaintiff and all the other proceedings therein pending reference to arbitration. With regard to encl (8) the learned judge granted the injunctions sought for by the plaintiff with costs and made certain orders relating thereto.<br />
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Briefly, by the injunctions and the orders the third defendant, its employees or agents were restrained from entering the project site without any written consent of the plaintiff and that the third defendant, its employees or agents were required to vacate the project site (prayer (a)), and that the first and second defendants were restrained from proceeding with their conspiracy to injure the plaintiff’s rights and interests in the project and to prevent the plaintiff from completing the project, including the issuance of any notice of termination in pursuance of the conspiracy (prayer (b)). Further, a professional consultant’s company by the name of Messrs Symonds Travers Morgan (M) Sdn Bhd (‘STM’) was appointed by the court to proceed to the project site and inspect and examine the works that have been completed by the plaintiff and report its findings to the court in regard to the completion of the works. In the event, STM was of the view that the construction of the building had reached practical completion, the second defendant was ordered to issue the certificate of practical completion (‘the CPC’) immediately and failing which a certificate signed by the senior assistant registrar shall for all purposes be accepted as the CPC. Further, the plaintiff was ordered to carry out the works relating to the major shortcomings as listed in the relevant documents and to complete the works on or before 30 June 2001 and thereafter to report such completion to the court on 30 June 2001 at 11am by submitting a report, to be signed by a qualified architect recognized by the Pertubuhan Akitek Malaysia.<br />
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The defendants appealed. We allowed the appeal with costs here and below, and set aside the injunctions and the orders, and granted a stay of the writ action and the relevant proceedings therein pending arbitration. We reserved the issue of cost payable to STM for the work done pursuant to the order of the learned judge, if any and if not amicably resolved. We now give our reasons.<br />
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To summarize the facts of the case, under a contract made between the first defendant and the plaintiff on 16 March 1995, the plaintiff was employed to construct the building. It was a lump sum contract in the value of RM110m. The payment was guaranteed by an irrevocable bank guarantee issued by Bank Bumiputra Malaysia Bhd in favor of the plaintiff. The bank guarantee has the value of RM122.77m inclusive of the financing cost in the sum of RM12.77m. The payment would be made upon the issuance of the CPC by the second defendant, the architect of the building. The plaintiff was given possession of the site on 16 March 1995 and the date for completion stipulated by the contract was 15 September 1997. The plaintiff failed to meet the target date for completion and subsequently the date for completion was extended from time to time, the last of which was March 2000. In between the extended periods, the second defendant issued several notices in writing to the plaintiff under cl 25 of the conditions of contract requiring the plaintiff to proceed regularly and diligently with the works, failing which the first defendant might exercise its right to determine the plaintiff’s employment under the contract. On 22 March 2000, the second defendant certified a sum of RM102,428,245.83 to be the estimated value of the works done. However, the second defendant refused to certify the progress claim number 58 in the sum of RM111,381,898.70 submitted by the plaintiff on 10 May 2000. The first defendant alleged that at the end of the last date for completion there was continuing default on the part of the plaintiff. As such an internal meeting was held by the first defendant on 16 May 2000 to consider on terminating the contract and to explore how and when it could be done. On 22 May 2000, the plaintiff wrote to the second defendant requesting for the CPC to be issued as the status of all the major items had been completed. On 29 May 2000, one Bob Giles, a former project architect of the second defendant who was no longer an authorized architect under the laws of Malaysia inspected the works and put up a report to the first defendant with a copy extended to the plaintiff listing out nine items as examples of the worst failures on the part of the plaintiff to meet the specification. On the same day, one Dato’ Baharuddin for and on behalf of the second defendant wrote a letter to the first defendant in terms which were substantially identical to that of Bob Giles’ with a copy extended to the plaintiff. On 30 May 2000, the consulting engineer put up a report to the second defendant listing out the defects in respect of the mechanical and electrical works in the building with a copy extended to the first defendant. On 1 June 2000, the second defendant issued another written notice to the plaintiff pursuant to cl 25 of the conditions of contract listing out seven items of major shortcomings based on Bob Giles’ and the consulting engineers’s reports. After the issuance of the said notice, the plaintiff proceeded regularly and diligently to remedy the shortcomings which were capable of being remedied. The first and second defendants were not satisfied with the remedial works done by the plaintiff. In the meantime, the plaintiff kept on pressing the second defendant to issue the CPC. On 14 June 2000, the third defendant under the purported authority of the first defendant entered the site with uniform guards, some of whom were armed with shotguns. However, the third defendant vacated the site upon being served with an ex parte injunction order issued by the High Court on 19 June 2000. At the date of hearing of the enclosures in the High Court, the contract had not been terminated.<br />
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The plaintiff took the stand that, notwithstanding the major shortcomings, the works in respect of the building had been practically completed. However, the second defendant refused to issue the CPC. As such, the plaintiff was not able to claim payment under the bank guarantee. Therefore, the writ action based on trespass and conspiracy to injure the legitimate rights and interests of the plaintiff under the contract was filed and the injunctions sought. On the other hand, the defendants asserted that due to the major shortcomings the plaintiff was not entitled to be issued with the CPC. As the conditions of contract provided for arbitration on any dispute arising under the contract, the defendants applied for stay of the writ action and other proceedings therein. Clearly, the issues involved in the writ action are trespass, conspiracy and the issuance of the CPC.<br />
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We are fully aware that the decisions of the learned judge on the two enclosures were made in the exercise of his discretion. It is settled law that an appeal will not be entertained from an order which it was within the discretion of the judge to make unless it be shown that he exercised his discretion under a mistake of law (see Evans v Bartlam [1937] AC 473) or where discretion is given to a judge the appellate court ought not to review his decision unless he has declined to exercise his discretion or has manifestly proceeded on a wrong ground (see New Zealand Insurance Co Ltd v Ong Choon Lin (t/a Syarikat Federal Motor Trading) [1992] 1 MLJ 185 at p 200E).<br />
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Re encl (8)<br />
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The learned judge was right on the statement of the law relating to the basic principles on the granting of an interlocutory injunction including a mandatory injunction. He referred to the classic case of American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 and correctly stated the basic principles in these terms:<br />
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(1) that there is a serious question to be tried;<br />
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(2) that in the event that the applicant were to succeed at the trial damages would not be an adequate compensation for his loss;<br />
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(3) that the balance of convenience lies in the applicant’s favor; and<br />
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(4) that there are special circumstances in favour of the applicant or in favour of the respondent.<br />
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In his deliberation, he also took into consideration the law as phrased by Gopal Sri Ram JCA in Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 at pp 195–196 which is as follows:<br />
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[A] judge hearing an application for an interlocutory injunction should:<br />
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(1) ask himself whether the totality of the facts presented before him disclosed a bona fide serious issue to be tried. He must refrain from making any determination on the merits of the claim or any defence to it and identify with precision the issues raised and decide whether they are serious enough to merit a trial. If he finds that no serious question is disclosed, the relief should be refused. If, however, he finds that there are serious questions to be tried, he should move on to the next step of his inquiry;<br />
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(2) having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. He must take into account all relevant matters, including the practical realities of the case before him and weigh the harm the injunction would produce by its grant, against the harm that would result from its refusal; and<br />
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(3) the judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and to maintain the status quo. It is a judicial discretion capable of correction on appeal. A judge should briefly set out in his judgment the several factors that weighed in his mind when arriving at his conclusion.<br />
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We agree with the learned judge that the totality of the facts presented had disclosed a bona fide serious issue to be tried. However, it appears the learned judge agreed with the submission of Mr Chua Eng Siong, the counsel for the plaintiff that the plaintiff would suffer an irreparable injury that could not be adequately compensated by damages if the injunction was not granted. To this we do not agree. We are of the view that the learned judge had misapplied the law to the facts of this case. In this case, without any doubt whatsoever that the damages the plaintiff will suffer are monetary. Even if the defendants will not be in a financial position to pay the damages the means to compensate the plaintiff will always be there in the form of the bank guarantee. The bank guarantee is irrevocable and claim on it can be made upon production by the plaintiff to the bank of the CPC within the 14 days following the date of its issue. Being an irrevocable guarantee there is no way the bank can escape from liability to pay under it until the CPC has been issued and a claim made on it within 14 days after its issuance. This is so even if the contract is terminated by the first defendant unless it is subsequently adjudicated that the termination is lawful. In fact, on record without taking into account the amount of the retention sum held by the bank the amount under the bank guarantee then was in excess of the value of works done and the claim submitted by the plaintiff to the second defendant for certification. It will not be difficult to assess the amount of work completed as the estimated value of the works done had been certified by the second defendant and that the plaintiff had submitted to the second defendant the progress claim number 58 in respect of subsequent works for verification. Therefore, we are satisfied that if the plaintiff succeeds at the trial it will be adequately compensated by an award of damages for the loss it will suffer as a result of the defendants’ continuing to do what is sought to be restrained between the time of the application and the time of the trial. Hence, the application for the injunctions should have been refused, no matter how strong the plaintiff’s claim appeared to be at that stage (see American Cyanamid Co v Ethicon Ltd). The relevant matters under the balance of convenience must be considered step by step. First, the learned judge must be satisfied that the plaintiff would suffer an irreparable injury or that the plaintiff could not be adequately compensated in damages before proceeding to consider other relevant matters on the balance of convenience. This step is in consonance with what was said by Gopal Sri Ram JCA in Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors in para (2) cited above, couched in the phrase ‘He must take into account all relevant matters, including practical realities of the case before him … .’ It must be so since American Cyanamid v Ethicon Ltd is the locus classicus on the subject, and the learned judge in that case was not making new law but adopting the basic principles. The second step is if damages would not provide an adequate remedy for the plaintiff in the event of it succeeding at the trial, the learned judge should then consider whether that if the defendants were to succeed at the trial in establishing their rights to do that which was sought to be restrained, they would be adequately compensated under the plaintiff’s undertaking as to damages to the loss they would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason on this ground to refuse an interlocutory injunction. The third step is if there was doubt as to the adequacy of the respective remedies in damages available to either party or to both then only the judge should proceed to consider the question of balance of convenience. And the last step is where other factors appeared to be evenly balanced the question of the preservation of the status quo would then come into play. The learned judge did not follow these steps at all but considered them all together. Therefore, in our view, with due respect, he was wrong. As that first step had not been crossed, we need not touch on the other matters relating to the balance of convenience and the measures calculated to preserve the status quo as elaborated by the learned judge. To make it clearer perhaps it is apt to quote what was said by Lord Diplock in American Cyanamid Co v Ethicon Ltd & Ors, viz:<br />
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It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages on the grant of an interlocutory injunction was that ‘it aided the court in doing that which was its great object, viz abstaining from expressing any opinion upon the merits of the case until the hearing’ (Wakefield v Duke of Buccleuch (1865) 12 LT 628 at p 629). So unless the material available to the court at the hearing of the application for an interlocutory fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.<br />
<br />
As to that, the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at the stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason on this ground to refuse an interlocutory injunction.<br />
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It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.<br />
<br />
Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo … .<br />
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To paint a scene from the situation created by the dispute between the parties, on one hand there is the plaintiff which wants to be paid immediately for the works done at its own cost as it is of the view that the issuance of the CPC is justified and on the other hand, the defendants are resisting the issuance of the CPC by reason of the major shortcomings, thus preventing the plaintiff from making the claim on the bank guarantee. In our view, the learned judge in arriving at the decision he had made was really swayed by three factors, namely: (i) the plaintiff had constructed the building at its own costs; (ii) the second defendant had certified the sum of RM102,428,245.83 to be the estimated value of the works done. This is evident from the frequency of mention of that certified sum in his judgment, at least ten times and the tone of his statement on that certificate which suggests much reliance on it. To our mind, such reliance is misplaced because under cl 6.0 of the contract the issuance of the interim statements by second defendant in response to the progress claim previously submitted by the plaintiff which culminated in the issuance of the said certificate is solely for the purpose of the plaintiff’s monthly draw down from its financial institution for work done on site and that no payment can be demanded from the first defendant based on the interim statements of work done. Though the learned judge mentioned cl 6.0 in his judgment unfortunately he did not highlight this point; and (iii) the glowing write up of the building in the local newspaper SunBiz of Saturday, 3 June 2000 by Laura Lee. In our view, such reliance is also wrong because the write up was merely a publicity in the interest of business efficacy but far from suggesting that the major shortcomings bore no truth.<br />
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Another unsatisfactory feature of the decision of the learned judge in granting the injunctions and the making of the orders is the effects of the injunctions and the orders made. Firstly, by the injunctions the first defendant was compelled to continue to employ the plaintiff which could not deliver the building on time and in accordance with the approved drawings and specification as evident from the major shortcomings, and which had its own remedy in damages if subsequently the contemplated determination proved to be wrongful. Secondly, by the injunctions the plaintiff was allowed to remain in possession of the site and this might aggravate the existing stalemate which would be of no benefit but losses to both sides and such situation would not be conducive to the economy of the country. Thirdly, by the injunctions the first defendant was virtually forced to swallow the patent defects as reflected in the major shortcomings even though some of them were contrary to the approved drawings and specification and some involving leakage and causing damage to the timber flooring. Therefore, the decision is unjust. And lastly, by the orders the first defendant, was compelled to accept STM, the same consultant which was earlier employed by the plaintiff to do the Contract Completion Status Review Report — July 2000, and therefore, the independence of the party appointed by the court was sacrificed.<br />
<br />
Therefore, as the learned judge had manifestly proceeded on wrong grounds in the exercise of his discretion to grant the injunctions and in making the orders, we are entitled to interfere.<br />
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Re encl (16)<br />
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Clause 34(1) of the conditions of contract provides the machinery for arbitration in respect of any dispute or difference that arises between the employer or architect on his behalf and the contractor at any time as to any matter or thing of whatsoever nature arising thereunder or in connection therewith, including any matter or thing left by the contract to the discretion of the architect or the withholding by the architect of any certificate to which the contractor may claim to be entitled. On this occasion, the withholding of the issuance of the CPC by the architect is in issue. It is manifestly clear that the sole purpose of the plaintiff’s action is to prevent the first defendant from determining the plaintiff’s employment under the contract and to compel the second defendant to issue the CPC to enable the plaintiff to make claim on the bank guarantee when the plaintiff has not completed the works under the contract to the satisfaction of the second defendant. With that in mind and that of our decision on encl (8) we proceed to consider whether or not the learned judge was right in the exercise of his discretion to refuse a stay of the writ action and all the relevant proceedings therein. The defendants based their application for stay under s 6 of Arbitration Act 1952 (‘the Act’) which reads:<br />
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If any party to an arbitration agreement or any person claiming through or under him commences any legal proceedings against any other party to the arbitration, or any person claiming through or under him, in respect of any matter agreed to be referred to arbitration, any party to the legal proceedings may, before taking any other steps in the proceedings, apply to the court to stay the proceedings, and the court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement, and that the applicant was at the time when the proceedings were commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.<br />
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We note that the defendants at the time when the proceedings were commenced and still remain ready and willing to do all things necessary to the proper conduct of the arbitration. We are in agreement with the learned judge on his statement of the law relating to stay. It is trite law that the onus is on the plaintiff to satisfy the court that it is proper to refuse the application for stay and strong grounds for refusing a stay must be exhibited by the plaintiff. If the defendants can satisfy the court that the conditions for the grant of a stay under the section are satisfied, it does not ipso facto follow that they are entitled, as of right, to a stay, for the court still retains a discretion to refuse it. But, generally, the approach of the court will be that parties who make a contract to arbitrate their disputes, should be held to their bargain (see Seloga Jaya Sdn Bhd v Pembenaan Keng Ting (Sabah) Sdn Bhd [1994] 2 MLJ 97 and the authorities cited therein). In Lee Brothers Construction Co v Teh Teng Seng Realty Sdn Bhd [1988] 1 MLJ 459, it was held that in exercising its discretion, it is the prima facie duty of the court to act upon such an arbitration agreement.<br />
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The learned judge was satisfied that the plaintiff had given sufficient reasons as to why the differences between the parties should not be referred to arbitration and he refused stay based on the grounds which are summarized as follows:<br />
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(1) The construction of the building is saddled by squabbles between the parties. An arbitration would not solve their problems and it would certainly be a prolonged exercise.<br />
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(2) It would be best that all the issues before the court, that is to say, the issues of conspiracy, trespass, the issuance of the CPC and the termination of contract be heard together by the court since it has the jurisdiction to hear the dispute.<br />
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(3) Presumably, by entering the conditional appearance coupled with the filing of the application for stay the defendants had been regarded as having taken other steps in the proceedings and therefore, was detrimental to them. We so presume because the learned judge merely referred to four authorities which, one way says that the entry of unconditional appearance amounted to taking steps in the proceedings within the meaning of s 6 of the Act and the other way says that the entry of unconditional appearance does not or the filing of a conditional appearance coupled with an application for stay as well as a prayer to strike out the plaintiff’s suit under O 18 r 19(1) of the Rules of the High Court 1980 amounted to taking steps in the proceedings. The learned judge did not make a clear-cut finding as to which authority he followed. The four authorities are Usahabina v Anuar bin Yahya [1998] 7 MLJ 691, Interscope Versicherung Sdn Bhd v Sime Axa Assurance Bhd [1999] 2 MLJ 529, PP Persero Sdn Bhd v Bimacom Property & Development Sdn Bhd [1999] 6 MLJ 1 and Hashim bin Majid v Param Cumaraswamy & Ors [1993] 2 MLJ 20. As we do not have the benefit of a written judgment of the Federal Court in Sime Axa Assurance Bhd and another appeal v Interscope Versicherung Sdn Bhd, we are in a predicament as to which authority to follow. The learned judge was also in the same situation. Therefore, going by the hierarchy we are inclined to follow the decision in Interscope Versicherung Sdn Bhd v Sime Axa Assurance Bhd where the Court of Appeal held that the entry of an unconditional appearance constituted the taking of a step in the proceedings. Hence, in the case before us since the defendants had entered a conditional appearance and merely applied for stay, we are of the view that it did not amount to the taking of a step in the proceedings within the meaning of the section of the Act.<br />
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With regard to ground (1), we do not agree with the learned judge. Arbitration process will be more expeditious and since the sole issue that will be before the arbitrator in the context of the dispute is whether the CPC should be issued based on the completion status their problem can be solved faster. On the contrary, as the court proceedings including interlocutory applications and the process of appeals are usually protracted the completion of the construction of the building will be prolonged. The fact that the learned judge had given an early date for trial does not make much difference. We cannot see any good reason as to why the plaintiff declined to honor its bargain under the conditions of contract to settle the dispute by arbitration when the two reports on the assessment of the completion status prepared by STM are in its favour.<br />
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In respect of ground (2), the learned judge was wrong. No doubt that all the issues are before the court and the court has the jurisdiction to hear the dispute. However, we are of the view that as the question of the issuance of the CPC is technical in nature it is apt that the dispute be settled by arbitration and an independent arbitrator with vast knowledge and experience in the construction industry especially in the building construction will be more ideal for the purpose. Whereas in the court <br />
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Page 148>>proceedings usually the judge will have to depend on the opinion of an expert in that field and if he accepts the expert evidence he will have to make his own findings based on the evidence. This process does not involve a direct transmission of the knowledge and experience for arriving at the decision as compared to arbitration where the decision of the arbitrator is without any doubt whatsoever based on the direct transmission of his knowledge and experience in that area. Further, the court has no power to open up and review the exercise of the architect’s discretion since the court’s jurisdiction is limited to determining and enforcing the contractual rights of the parties and does not extend to substituting its own discretion merely because it would have reached a different conclusion since to do so would interfere with the agreement of the parties. Whereas the arbitrator, in the exercise of his power given by the contract, is entitled to modify the parties’ contractual rights by substituting his own discretion for that of the architect if the arbitrator disagrees with the architect’s certificates, opinions and decisions (see Northern Regional Health Authority v Derek Crouch Construction Co Ltd [1984] 2 All ER 175 (CA), Tubeworkers Ltd v Tilbury Construction Ltd 30 BLR 67 (2 April 1985)). In this case, such power is given under cl 34(2) of the Conditions of Contract. Therefore, it follows that it would be unjust if the defendants were to be prevented from going to arbitration and were forced to have their rights determined by litigation to which they had never agreed under a jurisdiction which would probably be more limited than that of the arbitrator. And further, there is no inherent objection to an action and an arbitration proceeding side by side (see Lloyd v Wright [1983] 2 All ER 969). That being the case, the issues of conspiracy and trespass and those issues that had arisen from the disputes or differences under the contract can be adjudicated upon by different tribunals, that is to say, the former by the court and the latter by an arbitrator. After all the disputes between the parties leading to court action were triggered by the withholding of the issuance of the CPC by the second defendant. To our mind, once the question on the issuance of the CPC is decided by the arbitrator, one way or the other, the urgency in the court action will be reduced.<br />
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Therefore, as the learned judge had manifestly proceeded on wrong grounds in refusing the stay he could not have been and ought not to have been satisfied that the plaintiff had exhibited strong grounds for refusing a stay. Hence, we have to interfere.<br />
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Defendants’ appeal allowed.<br />
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Reported by Lim Lee NaRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-12573331137120131582009-10-10T20:24:00.000-07:002009-10-10T20:24:10.447-07:00Koh Thong Chuan v The Official Assignee of the property of Koh Liang Hee, a bankrupt and another appeal[2003] 1 MLJ 113<br />
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Koh Thong Chuan v The Official Assignee of the property of Koh Liang Hee, a bankrupt and another appeal<br />
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Headnote<br />
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Court Details<br />
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COURT OF APPEAL (KUALA LUMPUR) — CIVIL APPEAL NOS W–02–162 OF 1997 & W–02–169 OF 1997<br />
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GOPAL SRI RAM, NH CHAN AND HAIDAR JJCA<br />
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25 NOVEMBER 2002<br />
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Catchwords<br />
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Bankruptcy — Sale and purchase of land — Vendor subsequently adjudged bankrupt — Land charged by purchaser to chargee — Transfer of property to purchaser void for fraudulent conveyance — Chargee acted in good faith and for valuable consideration — Whether chargee entitled to the protection of s 53B(3) of the Bankruptcy Act 1967 — Whether official assignee took land subject to chargee’s charges<br />
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Bankruptcy — Act of bankruptcy — Relation back doctrine — Sale and purchase of land between father and son — Father subsequently adjudged bankrupt — Relation back of official assignee’s title to act of bankruptcy — Computation of time for purpose of relation back — Whether time should be computed from date of sale and purchase agreement or date of registration of transfer — Bankruptcy Act 1967 s 47<br />
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Bankruptcy — Act of bankruptcy — Fraudulent conveyance — Sale and purchase of land between father and son — Father subsequently adjudged bankrupt — Whether fraudulent conveyance — Whether transfer of property was void — Whether property deemed to be official assignee’s — Bankruptcy Act 1967 s 53B(1)<br />
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Land Law — Charge — Indefeasibility of interest — Transfer of land by vendor to purchaser void for fraudulent conveyance — Purchaser charged land to chargee — Chargee bona fide purchaser for value and without notice — Land not yet registered in name of official assignee — Whether official assignee vested only with equitable interest in land — Whether legal interest of chargee prevailed over official assignee’s equitable interest — National Land Code 1965 s 349<br />
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Land Law — Indefeasibility of title and interest — Determination of title by operation of law — Bankruptcy of vendor — Determination of vendor’s interest in land pursuant to s 24(4) of the Bankruptcy Act 1967 — Whether divestment of bankrupt’s interest in land and vesting of that interest in official assignee may only be effected by endorsement of a memorial of transmission under s 349(1) of the National Land Code 1965 — Whether there was automatic vesting of land in the official assignee<br />
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Summary<br />
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Pursuant to a sale and purchase agreement executed on 22 September 1990 between one Koh Liang Hee (‘KLH’) and his son (‘the first appellant’), KLH sold a piece of property situated in Jalan Yap Kwan Seng, Kuala Lumpur (‘the said property’) to the first appellant for a consideration of RM1m. The transfer of the said property to the first appellant was registered on 26 March 1991. On 1 September 1993, the second appellant granted financial facilities to the first appellant, which were to be secured by two separate charges on the said property. Prior to these transactions, judgment had been entered by United Malayan Banking Corporation Bhd (‘UMBC’) against KLH on <br />
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Page 114>>15 December 1989 in the sum of RM5.13m. The bankruptcy petition was presented by UMBC against KLH on 15 August 1991 and KLH was adjudicated a bankrupt on 3 July 1992. The official assignee (‘the respondent’) succeeded in obtaining a declaratory order from the High Court that the conveyance of the said property from KLH to the first appellant was void under ss 47 and/or 52 of the Bankruptcy Act 1967 (‘the Act’). The learned High Court judge found that the first act of bankruptcy committed by KLH was the fraudulent conveyance or transfer of the said property to the first appellant and held that since the transfer of the said property had taken place on 26 March 1991, it was within the six-month period preceding the date of presentation of the bankruptcy petition. The issue against the second appellant was in respect of the charges. The respondent never challenged during the trial that the second appellant had acted bona fide in granting the loans to the first appellant. The respondent succeeded in obtaining declaratory orders from the High Court that the charges created were void against the respondent and that by virtue of ss 47 and 53B(2) of the Act and s 340(4) of the National Land Code 1965 (‘the NLC’), the respondent was entitled to recover the said property from the first appellant free from the second appellant’s charges. The High Court judge ruled that since the conveyance between KLH and the first appellant was fraudulent and therefore void, the title of the first appellant in the said property had determined. This determination related back to the time of the transfer and as such, the first appellant had no title at any time to the said property and hence, he could not have created the charges in favor of the second appellant. Accordingly, the High Court judge held that the second appellant had no protection of indefeasibility offered under s 340(1) of the NLC. These were the appeals by the first and second appellants.<br />
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Holdings<br />
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Held, dismissing the first appellant’s appeal and allowing the second appellant’s appeal:<br />
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(1) In computing the time for the purpose of relation back under s 47 of the Act in respect of the alleged fraudulent transfer of the said property as an act of bankruptcy, the learned High Court judge correctly took the date of the registration of the transfer of the said property, 26 March 1991, rather than the date of the execution of the alleged sale and purchase agreement of 22 September 1990 (see p 122B–C); Lian Keow Sdn Bhd (in liquidation) v Overseas Credit Finance (M) Sdn Bhd [1988] 2 MLJ 449 followed.<br />
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(2) The learned High Court judge had correctly considered that to constitute fraudulent conveyance in the context of bankruptcy legislation, there need not be more than a design to defeat or delay creditors, generally by some act which would prevent the distribution of the insolvent debtor’s property in accordance with the bankruptcy law (see p 122F–H); Re Khor Bak Kee [1936] MLJ 5 followed.<br />
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(3) After having examined the learned High Court judge’s analysis of the evidence, his finding of facts and assessment of the testimony of the relevant witnesses, he was correct in finding that the transfer of the said property from KLH to the first appellant was a fraudulent conveyance constituting an act of bankruptcy within s 3(1)(b) of the Act and was therefore void. Accordingly, it followed that by virtue of s 53B(1) of the Act, the said property was deemed to be the property of the respondent (see p 124D–E).<br />
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(4) Until the registration of the said property pursuant to s 349 of the NLC in his name, the respondent was vested only with an equitable interest in the said property. In accordance with equitable principles, the legal interest in the charges acquired by the second appellant, as a bona fide purchaser for value and without notice, prevailed over the respondent’s equitable interest (see p 126C–D).<br />
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(5) Having accepted that the second appellant had acted in good faith in granting the loans to the first appellant, the learned High Court judge, however, failed to consider the effect of s 53B(3) of the Act. Although the transfer of the said property may be avoided on the ground of fraudulent conveyance, the second appellant was entitled to the protection of s 53B of the Act as it had acted in good faith and for valuable consideration. Section 53B(1) of the Act provided that in the event that the acquisition of the property of the bankrupt was set aside, the property shall be deemed to be the property of the official assignee and the official assignee may recover the property from the person who acquired it from the bankrupt or from any other person to whom the person may have sold, resold or transferred the property. However, s 53(B)(3) of the Act provided exception to s 53(B)(1) and (2) if the subsequent acquirer gave valuable consideration and acted in good faith, in which case the recourse would be only as against the person who entered into the transaction with the bankrupt, namely the first appellant. Accordingly, the respondent would have to take the said property subject to the second appellant’s charges (see pp 125D–F, 128D–G). <br />
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(6) The learned High Court judge had erred in applying s 340(4)(b) of the NLC as having determined KLH’s title from the time of the alleged fraudulent conveyance, that is, 26 March 1991. Section 340(4)(b) of the NLC was a savings provision and cannot operate by itself to determine any title or interests in land. In the instant case, the determination of KLH’s interest in land can arise either pursuant to s 24(4) of the Act at the time of the adjudication of his bankruptcy or upon the avoidance of the fraudulent conveyance. Pursuant to s 349 of the NLC, the divesting of KLH’s interest in the land and the vesting of that interest in the respondent, in either of the above events, may only be effected by the endorsement of a memorial of transmission under s 349(1) <br />
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thereof. There was no automatic vesting in so far as land was concerned (see pp 127E–128A).<br />
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Bahasa Malaysia summary<br />
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Menurut satu perjanjian jual beli yang telah disempurnakan pada 22 September 1990 antara seorang bernama Koh Liang Hee (‘KLH’) dan anak lelakinya (‘perayu pertama’), KLH menjual hartanah yang terletak di Jalan Yap Kwan Seng, Kuala Lumpur (‘hartanah tersebut’) kepada perayu pertama untuk balasan sebanyak RM1j. Pindahmilik hartanah tersebut kepada perayu pertama didaftarkan pada 26 Mac 1991. Pada 1 September 1993, perayu kedua memberikan kemudahan kewangan kepada perayu pertama, yang harus dijamin dengan dua cagaran berasingan ke atas hartanah tersebut. Sebelum kesemua transaksi ini berlaku, penghakiman telah dimasukkan oleh United Malayan Banking Corporation Bhd (‘UMBC’) terhadap KLH pada 15 Disember 1989 bagi jumlah RM5.13j. Petisyen kebankrapan dikemukakan oleh UMBC terhadap KLH pada 15 Ogos 1991 dan KLH dihakimkan sebagai seorang muflis pada 3 Julai 1992. Pegawai penerima harta (‘responden’) telah berjaya memperolehi satu perintah perisytiharan daripada Mahkamah Tinggi bahawa pemindahan hartanah tersebut dari KLH kepada perayu pertama adalah terbatal di bawah ss 47 dan/atau 52 Akta Kebankrapan 1967 (‘Akta tersebut’). Hakim Mahkamah Tinggi yang arif mendapati bahawa perbuatan kebankrapan yang pertama yang dilakukan oleh KLH adalah pemindahan berdasarkan fraud atau pindahmilik hartanah tersebut kepada perayu pertama dan dengan itu memutuskan bahawa oleh kerana pindahmilik hartanah tersebut telah berlaku pada 26 Mac 1991, ia dalam lingkungan tempoh enam bulan sebelum tarikh pengemukaan petisyen kebankrapan tersebut. Isu terhadap perayu kedua adalah berkaitan dengan cagaran-cagaran tersebut. Responden tidak pernah mencabar semasa perbicaraan bahawa perayu kedua telah bertindak bona fide dalam memberikan pinjaman kepada perayu pertama. Responden telah berjaya memperolehi perintah perisytiharan dari Mahkamah Tinggi bahawa cagaran yang diwujudkan adalah terbatal terhadap responden dan bahawa disebabkan ss 47 dan 53B(2) Akta tersebut dan s 340(4) Kanun Tanah Negara 1965 (‘KTN’), responden berhak mendapat balik hartanah tersebut dari perayu pertama bebas daripada cagaran perayu kedua. Hakim Mahkamah Tinggi memutuskan bahawa oleh kerana pemindahan di antara KLH dan perayu pertama adalah berdasarkan fraud dan dengan itu terbatal, hakmilik perayu pertama dalam hartanah tersebut telah diputuskan. Keputusan ini berhubung balik kepada masa pindahmilik dan oleh itu, perayu pertama tidak mempunyai apa-apa hakmilik pada mana-mana masa kepada hartanah tersebut dan justeru itu, beliau tidak mungkin boleh mewujudkan cagaran memihak kepada perayu kedua. Seterusnya, hakim Mahkamah Tinggi memutuskan bahawa perayu kedua tidak <br />
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Page 117>>boleh menikmati perlindungan ketidakbolehsangkalan yang ditawarkan di bawah s 340(1) KTN. Ini merupakan rayuan-rayuan oleh perayu pertama dan kedua.<br />
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Bahasa Holdings<br />
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Diputuskan, menolak rayuan perayu pertama dan membenarkan rayuan perayu kedua:<br />
<br />
(1) Dalam menghitung masa untuk tujuan berhubung balik di bawah s 47 Akta tersebut berkenaan dengan pindahmilik hartanah tersebut yang dikatakan berdasarkan fraud sebagai satu perbuatan kebankrapan, hakim Mahkamah Tinggi yang arif dengan betulnya telah mengambilkira tarikh daftar pindahmilik hartanah tersebut, 26 Mac 1991, dan bukan tarikh pelaksanaan perjanjian jual beli pada 22 September 1990 yang dikatakan (lihat ms 122B–C); Lian Keow Sdn Bhd (in liquidation) v Overseas Credit Finance (M) Sdn Bhd [1988] 2 MLJ 449 diikut.<br />
<br />
(2) Hakim Mahkamah Tinggi yang arif dengan betulnya menimbangkan bahawa untuk membentuk pindahan berdasarkan fraud dalam konteks perundangan kebankrapan, tidak perlu wujudnya satu niat untuk menewaskan atau melambatkan pemiutang, umumnya melalui suatu perbuatan yang akan menghalang pengagihan hartanah yang tidak solven menurut undang-undang kebankrapan (lihat ms 122F–H); Re Khor Bak Kee [1936] MLJ Rep 5 diikut.<br />
<br />
(3) Setelah meneliti analisa keterangan oleh hakim Mahkamah Tinggi yang arif, keputusan beliau atas fakta dan penilaian keterangan saksi yang relevan, beliau betul dalam mendapati bahawa pindahmilik hartanah tersebut dari KLH kepada perayu pertama merupakan pindahan berdasarkan fraud yang membentuk satu perbuatan kebankrapan dalam lingkungan s 3(1)(b) Akta tersebut dan dengan itu adalah terbatal. Oleh itu, ia bermakna bahawa disebabkan s 53B(1) Akta tersebut, hartanah tersebut dianggap sebagai hartanah responden (lihat ms 124D–E).<br />
<br />
(4) Sehingga pendaftaran hartanah tersebut menurut s 349 KTN dalam namanya, responden hanya diletakhak dengan kepentingan ekuiti dalam hartanah tersebut. Menurut prinsip-prinsip ekuiti, kepentingan undang-undang dalam cagaran yang diperolehi oleh perayu kedua, sebagai seorang pembeli bona fide untuk nilai dan tanpa notis, mengatasi kepentingan ekuiti responden (lihat ms 126C–D).<br />
<br />
(5) Setelah menerima bahawa perayu kedua telah bertindak secara suci hati dalam memberi pinjaman kepada perayu pertama, hakim Mahkamah Tinggi yang arif walau bagaimanapun gagal menimbang kesan s 53B(3) Akta tersebut. Walaupun pindahmilik hartanah tersebut boleh dielakkan atas alasan pindahan berdasarkan fraud, perayu kedua berhak mendapat perlindungan s 53B Akta tersebut kerana ia telah bertindak dengan suci hati dan untuk balasan bernilai. Seksyen 53B(1) Akta tersebut <br />
<br />
<br />
<br />
Page 118>>memperuntukkan bahawa sekiranya pemerolehan hartanah si bankrap diketepikan, hartanah tersebut harus dianggap hartanah pegawai pemegang harta dan pegawai pemegang harta boleh mendapat balik hartanah dari orang yang memperolehinya dari si bankrap atau dari mana-mana orang lain kepada siapa orang tersebut mungkin telah menjual, jual semula atau memindahmilik hartanah tersebut. Walau bagaimanapun, s 53B(3) Akta tersebut memperuntukkan pengecualian kepada s 53B(1) dan (2) sekiranya pembeli seterusnya memberi balasan bernilai dan bertindak dengan suci hati, yang mana satu-satunya jalan hanyalah terhadap orang yang memasuki transaksi dengan si bankrap, iaitu perayu pertama. Oleh itu, responden wajib mengambil hartanah tersebut tertakluk kepada cagaran perayu kedua (lihat ms 125D–F, 128D–G). <br />
<br />
(6) Hakim Mahkamah tinggi yang arif terkhilaf dalam memakai s 340(4)(b) KTN sebagai memutuskan hakmilik KLH dari masa pindahan berdasarkan fraud, iaitu, 26 Mac 1991. Seksyen 340(4)(b) KTN merupakan satu peruntukan keselamatan dan tidak boleh beroperasi dengan sendirinya untuk memutuskan apa-apa hakmilik atau kepentingan dalam tanah. Dalam kes ini, keputusan kepentingan KLH dalam tanah boleh timbul sama ada menurut s 24(4) Akta tersebut pada masa penghakiman kebankrapannya atau pada elakkan pindahan berdasarkan fraud. Menurut s 349 KTN, letakhak kepentingan KLH dalam tanah tersebut dan letakhak kepentingan itu dalam responden, sama ada dalam mana-mana satu kejadian atas, hanya boleh dilaksanakan dengan pengindorsan suatu memorial pemindahan di bawah s 349(1). Tiada letakhak automatik sejauh mana tanah adalah berkenaan (lihat ms 127E–128A).]<br />
<br />
Notes<br />
<br />
For cases on determination of title or interests by operation of law, see 8 Mallal’s Digest (4th Ed, 2001 Reissue) para 2500.<br />
<br />
For cases on the doctrine of relation back, see 1 Mallal’s Digest (4th Ed, 2001 Reissue) para 1994.For cases on fraudulent conveyance, see 1 Mallal’s Digest (4th Ed, 2001 Reissue) para 1990.<br />
<br />
For cases on indefeasibility of interest, see 8 Mallal’s Digest (4th Ed, 2001 Reissue) paras 1905–1906.<br />
<br />
For cases on vendor subsequently adjudged bankrupt, see 1 Mallal’s Digest (4th Ed, 2001 Reissue) para 2894.<br />
<br />
Cases referred to<br />
<br />
Abirami Ammal & Anor v MSMM Meyappa Chettiar [1959] MLJ 149 (refd)<br />
<br />
Khor Bak Kee, Re [1936] MLJ 5 (folld)<br />
<br />
Krishnadas a/l Achutan Nair v Maniyam a/l Samy Kano [1997] 1 AMR 997 (refd)<br />
<br />
Kwan Chew Shen t/a Syarikat Kaaf, Re [1987] 1 CLJ 314 (refd)<br />
<br />
Lian Keow Sdn Bhd (in liquidation) v Overseas Credit Finance (M) Sdn Bhd [1988] 2 MLJ 449 (folld)<br />
<br />
Lois Theresa Kao, Re; ex parte The Official Assignee [1965] 2 MLJ 223 (refd)<br />
<br />
Mercantile Bank Ltd v The Official Assignee of the property of How Han Teh [1969] 2 MLJ 196 (refd)<br />
<br />
Official Assignee of the estate of Koh Liang Hee (a bankrupt) v Koh Thong Chuan & Anor [1997] 5 MLJ 136 (refd)<br />
<br />
Overseas Union Finance Ltd v Lim Joo Chong [1971] 2 MLJ 124 (refd)<br />
<br />
PJTV Denson (M) Sdn Bhd & Ors v Roxy (M) Sdn Bhd [1980] 2 MLJ 136 (refd)<br />
<br />
Re Yeow Heap Seng; ex parte The Official Assignee [1965] 2 MLJ 67 (refd)<br />
<br />
Legislation referred to<br />
<br />
Bankruptcy Act 1967 ss 2, 3(1)(b)(1)(i), 24(1), (4), 47(1), 52, 53B(1), (2), (3)<br />
<br />
Courts of Judicature Act 1964 s 42<br />
<br />
National Land Code 1965 ss 340(2), (3), (4), (4)(b)<br />
<br />
Appeal from: Suit No S5–22–290 of 1995 (High Court, Kuala Lumpur)<br />
<br />
Lawyers<br />
<br />
Tommy Thomas (Alan Gomez with him) (Tommy Thomas) for the respondent.<br />
<br />
Muker (Lovelace & Hastings) for the first appellant.<br />
<br />
Darryl SC Goon (Ng Sai Yeang with him) (Raja, Darryl & Loh) for the second appellant.<br />
<br />
Judgement - Haidar JCA (delivering judgment of the court):<br />
<br />
Haidar JCA (delivering judgment of the court): The two appeals viz, No W–02–162–1997 and No W–02–169–1997 were heard together by us as they arose out of one action in the court below vide suit No S5–22–290–1995. I will refer the appellant in appeal No W–02–162–1997 as the first appellant and the appellant in appeal No W–02–169–1997 as the second appellant. The respondent is common to both appeals. The respondent acts for the estate of the bankrupt, ie Koh Liang Hee. It is to be noted that the first appellant is the son of the bankrupt. <br />
<br />
After hearing the submissions of the parties, we reserved our decision. It is rather unfortunate that since then, one of the members of the panel, NH Chan JCA (as he then was) has retired. I will now proceed to give my decision.<br />
<br />
The issue against the first appellant relates to the conveyance of a property of the bankrupt to him. The property is a piece of landed property held under Grant No 12474, Lot 94, s 43, District of Kuala Lumpur, on which is a bungalow house with a civic address of No 25, Jalan Yap Kwan Seng, Kuala Lumpur (‘the said property’). The conveyance was by way of a purported written sale and purchase agreement executed by them on 22 September 1990 for a consideration of RM1m. The respondent succeeded in obtaining a declaratory order of the court below that the conveyance of the said property from the bankrupt to his son, the first appellant, is void under ss 47 and/or s 52 of the Bankruptcy Act 1967 (‘the Act’). There was a further declaratory order that the said property is vested by way of equity in the respondent. Other consequential were also made for which we are not concerned here.<br />
<br />
The issue against the second appellant is in respect of the two charges created by the first appellant in favor of the second appellant in which the respondent succeeded in obtaining a declaratory order from the court below that the charges created are void against the respondent. There was a further declaratory order that by virtue of s 47 and 53B(2) of the Act and s 340(4) of the National Land Code 1965 (‘the NLC’) the respondent is entitled to recover the said property from the first appellant free from the second appellant’s legal charges.<br />
<br />
Put shortly, there are two causes of action. The first is the ‘relation back’ action under s 47 of the Act to be read with s 3 of the Act and this first cause of action is against both appellants. The second cause of action concerns only the first appellant under s 52 (wrongly referred to s 53B(2) of the Act) and as stated by the learned judge in his judgment, the second cause of action is more in the form of an alternative claim.<br />
<br />
In his written submission before us counsel for the first appellant conceded:<br />
<br />
<br />
<br />
(a) at all material times the first appellant was to a certain degree aware of the financial difficulties of his father, the bankrupt.<br />
<br />
(b) the learned judge’s finding that the conveyance was within the statutory period of six months set out in s 47 of the Act for the purpose of the doctrine of relation back subject to the conveyance being a fraudulent one.<br />
<br />
<br />
<br />
The facts are sufficiently set out in detail by the learned judge and I will only set out the facts that are relevant in considering the issues before the court.<br />
<br />
Section 3 of the Act prescribes the acts of bankruptcy. From the evidence, the learned judge concluded that the bankrupt committed acts of bankruptcy under s 3(1)(b) and 3(1)(i) of the Act. Section 3(1)(b) relates to a debtor making a fraudulent conveyance of his property and s 3(1)(i) relates to the failure of the debtor to comply with the bankruptcy notice issued to him within seven days after service of the notice to pay the judgment debt or sum ordered to be paid in accordance with the terms of the judgment or order.<br />
<br />
As it seems that there are more than one acts of bankruptcy, I need only quote the learned judge’s decision on this issue. This is what the learned judge stated in considering ss 24 and 47 of the Act when he held that the first act of bankruptcy when there is more than one, must be between 16 February 1991 and 3 July 1992 (at pp 144–145 of Official Assignee of the estate of Koh Liang Hee (a bankrupt) v Koh Thong Chuan & Anor [1997] 5 MLJ 136):<br />
<br />
<br />
<br />
In order to consider the cause of action for relation back of the bankruptcy, pertinent sections of the Act needs to be considered. The first is s 24(1) of the Act which provides that a person is adjudicated a bankrupt at the time when a receiving order is made against him. Upon this ‘his property shall become divisible among his creditors and shall vest in the Official Assignee’ under s 24(4) of the Act. However by virtue of s 47(1) of the Act a relation back of the bankruptcy can occur for it provides:<br />
<br />
‘The bankruptcy of a debtor, whether the same takes place on the debtor’s own petition or upon that of a creditor, shall be deemed to have relation back to and commence at the time of the act of bankruptcy being committed on which a receiving order is made against him, or if the bankrupt is proved to have committed more acts of bankruptcy than one to have relation back to and to commence at the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within six months next preceding the date of the presentation of the bankruptcy petition.’<br />
<br />
In brief, the first situation is where the bankruptcy relates back to the time when the act of bankruptcy was being committed on which a receiving order is made against him. However, and more relevant to our case is where there had been more than one act of bankruptcy committed, then the relation back is to the first of the acts of bankruptcy committed by the bankrupt within six months after the presentation of the bankruptcy petition.<br />
<br />
What then are the acts of bankruptcy committed in this case? Initially the act of bankruptcy on which the bankruptcy petition was founded was the failure of the father to satisfy the judgment sum obtained against him by UMBC stated in the bankruptcy notice served on him on 29 May 1991. This act of bankruptcy falls within s 3(1)(i) of the Act. The other act of bankruptcy which happened earlier and as claimed by the plaintiff is the transfer of the property to the first defendant which the plaintiff alleged was a fraudulent conveyance within s 3(1)(i)(b) of the Act.<br />
<br />
Section 3(1)(i)(b) of the Act provides:<br />
<br />
‘A debtor commits an Act of bankruptcy in each of the following cases:<br />
<br />
(b) if in Malaysia or elsewhere he makes a fraudulent conveyance, gift, delivery or transfer of his property or of any part thereof;’<br />
<br />
… <br />
<br />
As time is of essence here, it is best to determine the exact period for consideration. The bankruptcy petition was presented on 15 August 1991 against the father. Six months preceding this date would land us with 16 February 1991. This means that the first act of bankruptcy, if there is more than one, must have been committed between 16 February 1991 and 3 July 1992 (the date the father was adjudicated a bankrupt).<br />
<br />
<br />
<br />
It is not disputed that pursuant to the purported sale and purchase agreement executed on 22 September 1990 between the bankrupt and his son, the first appellant, in respect of the said property and up to the registration of the said property in the name of the first appellant on 26 March 1991, the bankrupt was not yet adjudicated a bankrupt though a judgment was entered against him by United Malayan Banking <br />
<br />
<br />
<br />
Page 122>>Corporation vide Civil Suit No D2–23–1034–88 in the sum of RM5,130,596.45 earlier on 15 December 1989. It was the United Malayan Banking Corporation who took up the bankruptcy proceedings against the bankrupt and obtained receiving and adjudication orders against him on 3 July 1992.<br />
<br />
In computing the time for the purpose of relation back under s 47 of the Act in respect of the alleged fraudulent transfer of the said property as an act of bankruptcy, the learned judge, in my view, correctly took the date of the registration of the said property, that is, 26 March 1991 citing Lian Keow Sdn Bhd (in liquidation) & Anor v Overseas Credit Finance (M) Sdn Bhd & Ors [1988] 2 MLJ 449 rather than the date of the execution of the alleged sale and purchase agreement, that is, 22 September 1990. He therefore correctly concluded thus (at p 147 of [1997] 5 MLJ 136):<br />
<br />
<br />
<br />
The transfer of the property to the first defendant took place on 26 March 1991, and by elementary arithmetic this is well within the period of six months preceding the date of presentation of the bankruptcy petition against the father which was on 15 August 1991. Therefore the alleged fraudulent conveyance can still be considered for relation back under s 47 of the Act.<br />
<br />
<br />
<br />
The first appellant’s appeal<br />
<br />
The central issue for consideration would then be the interpretation of the word ‘fraudulent’ in s 3(1)(b) of the Act. The word ‘property’ referred to in s 3(1)(b) of the Act must by the interpretation of the word ‘property’ in s 2 of the Act, inter alia, includes land. The issue is whether there was a fraudulent conveyance of the said property from the bankrupt to his son, the first appellant.<br />
<br />
The learned judge, in my view, correctly addressed his mind on what tantamount to fraudulent in the context of bankruptcy legislation. He referred to p 514 of 4 Halsbury’s Laws of England (4th Ed) (at p 145 of [1997] 5 MLJ 136):<br />
<br />
<br />
<br />
The word ‘fraudulent’ has received … with reference to the bankruptcy questions, a particular signification different from that in which it is ordinarily used (per Knight-Bruce VC in Re Marshall, ex parte Zwilchenbart (1844) 3 Mont D & De G 671.) There need not be more than a design to defeat or delay creditors, generally by some act which will prevent the distribution of the insolvent debtor’s property in accordance with the bankruptcy law (Re Sinclair, ex parte Chaplin (1884) 26 Ch D 319, 53 LJ Ch 732).<br />
<br />
<br />
<br />
The learned judge proceeded to consider, what I would say, the factors for consideration in conveyances by bankrupts by reference to a local Court of Appeal case. It is Re Khor Bak Kee [1936] MLJ 5. This is what Thomas CJ (FMS) said at p 6:<br />
<br />
<br />
<br />
In conveyances by bankrupts it is always necessary to consider the state of affairs at the time of the conveyance, the relationship of the respective parties, the sufficiency of the consideration, and in short all the surrounding circumstances.<br />
<br />
<br />
<br />
Further on at p 7, Thomas CJ (FMS) said:<br />
<br />
<br />
<br />
A conveyance which would not be fraudulent when the parties are solvent can be fraudulent in a bankruptcy, because the interests of other creditors have not been observed.<br />
<br />
<br />
<br />
Having focused his mind on the meaning of ‘fraudulent’ in the context of bankruptcy legislation, the learned judge proceeded to analyze the facts, that is, whether there was sufficient evidence before him to conclude that there was a fraudulent conveyance in this case. He considered them broadly, in my view, under three categories. They are:<br />
<br />
<br />
<br />
(1) the relationship of parties;<br />
<br />
(2) the consideration in the purported sale and purchase agreement;<br />
<br />
(3) the intention of the parties in the conveyance.<br />
<br />
<br />
<br />
(1) Relationship of the parties (at p 148 of [1997] 5 MLJ 136) <br />
<br />
It is not disputed that the transfer of the said property is from the father (the bankrupt) to his son, the first appellant. Such being their relationship suspicion is inevitably arose as to whether the transaction is bona fide so as to defeat or delay the creditors. I must, however, say that mere suspicion is insufficient to show fraudulent. There must be facts to support a strong inference that it is a fraudulent conveyance within the meaning of s 3(1)(b) of the Act.<br />
<br />
Bearing in mind the age of the first appellant, that is, 25 years old at that time and drawing a salary of RM3,000 per month, the first appellant could still purchase another property referred to as the Sentul property with a declared value of RM600,000 within 1 months of the purchase of the said property for RM1m no doubt with the financial assistance of the banks, the learned judge concluded (at p 148 of [1997] 5 MLJ 136]):<br />
<br />
<br />
<br />
What strikes me is the close proximity of these transactions between each other as well as to the time when the family was facing severe financial hardship, the magnitude of the loans, and the almost similar proprietors.<br />
<br />
<br />
<br />
(2) The consideration in the purported sale and purchase agreement (at pp 148–149 of [1997] 5 MLJ 136).<br />
<br />
The learned judge had given detailed analysis on the consideration for the said property. He concluded, thus (at p 149 of [1997] 5 MLJ 136):<br />
<br />
<br />
<br />
To my mind, the theory of ‘to help my father’ is completely an eyewash; it is more like helping oneself or to help the father to defeat creditors.<br />
<br />
<br />
<br />
(3) The intention of the parties in the conveyance (at pp 149–150 of [1997] 5 MLJ 136).<br />
<br />
The learned judge went to examine in detail on this issue as it seemed the first appellant as the transferee denied that he was possessed of knowledge <br />
<br />
<br />
<br />
Page 124>>that his father, the bankrupt, was in dire financial situation at the material time hoping to imply that the transfer was bona fide. However, before us, counsel for the first appellant conceded that to a certain degree he was aware of the financial difficulties of his father, the bankrupt.<br />
<br />
The learned judge concluded, thus (at p 150 of [1997] 5 MLJ 136):<br />
<br />
<br />
<br />
Judging the conditions which the father and his family were in at the time, I find it probable that the father transferred the property to the first defendant to ensure its safety from an impending financial disaster. The most appropriate person to safeguard it was the first defendant since he was the only male linage who escaped the clutches of UMBC by not being a guarantor.<br />
<br />
<br />
<br />
At the time of the hearing of this case before the court below, the bankrupt was dead and the learned judge was deprived of his testimony. Be that as it may, there were witnesses including the first appellant called to testify in this case in the court below.<br />
<br />
I have carefully examined the learned judge’s analysis of the evidence and his finding of the facts and his assessment of the testimony of the relevant witnesses, I cannot possibly disagree with him.<br />
<br />
In the circumstances, I agree with the learned judge when he found that the transfer of the said property from the father, the bankrupt, to the first appellant was a fraudulent conveyance constituting an act of bankruptcy within s 3(1)(b) of the Act and it is therefore void.<br />
<br />
As the court below held that the transaction between the bankrupt and the appellant is void, it follows that by virtue of s 53B(1) of the Act, the said property shall be deemed to be the property of the official assignee, the respondent.<br />
<br />
Counsel for the first appellant further contended that even if the sale of the said property from the bankrupt to his son, the first appellant, is void (which is denied), does the respondent take the same without the burden of the Development and Commercial Bank’s charge? He submitted that the Development and Commercial Bank was a secured creditor at the time of the execution of the alleged sale and purchase agreement and if the sale had not gone through the respondent would have to pay off the Development and Commercial Bank, the secured creditor. In the circumstances, the first appellant contended that he should be reimbursed for the sum paid to discharge the charge. With respect, on the facts of this case, the argument of the first appellant is untenable. I therefore reject it. The Singapore cases of Re Yeow Heap Seng; ex parte The Official Assignee [1965] 2 MLJ 67 and Re Lois Theresa Kao; ex parte The Official Assignee [1965] 2 MLJ 223 cited, are of no assistance to the facts of this case.<br />
<br />
In view of the decision of the learned judge on the first cause of action, I do not see the need of his Lordship to consider the second cause of action, which he himself said is more in the form of an alternative claim. I therefore do not find it necessary to consider it in view of his affirmative decision on the first cause of action.<br />
<br />
The second appellant’s appeal<br />
<br />
On 1 September 1993, the second appellant offered financial facilities to the first appellant which were accepted. The facilities were to be secured by way of two separate charges on the said property. The said property was at that time charged to Standard Chartered Bank.<br />
<br />
The second appellant did all they could by conducting a search on the said property and a bankruptcy search on the first appellant. The searches confirmed that the said property was registered in the first appellant’s name and that he was not a bankrupt. Save for the need to discharge the Standard Chartered Bank’s charge which was disclosed, it would appear that there was no legal impediment or risks in respect of the said property for the second appellant to provide the loans to the first appellant. The learned judge himself said that the respondent never challenged during the trial that the second appellant acted bona fide in the loans granted to the first appellant over which the present two legal charges were registered against the said property.<br />
<br />
Having accepted that the second appellant acted in good faith for the consideration of the loans to the first appellant, the learned judge, however, failed to consider the effect of s 53B(3) which has reference to s 53B(1) and (2) of the Act. Section 53B(3) reads:<br />
<br />
<br />
<br />
Notwithstanding sub-s (1) and (2), where any person, (not being the person who acquired the property from the bankrupt) to whom the property was sold, resold or otherwise disposed of, had paid or given therefor valuable consideration and acted in good faith such person shall not be subject to the operation of this section and the official assignee’s recourse for recovery of the consideration so paid or given or its value shall be solely against the person who entered into the transaction with the bankrupt. <br />
<br />
<br />
<br />
The transfer of the said property to the first appellant may be avoided by the court on ground of fraudulent conveyance in which the court below so held and I agree (see PJTV Denson (M) Sdn Bhd & Ors v Roxy (M) Sdn Bhd [1980] 2 MLJ 136. However, in respect of the second appellant, they are entitled to the protection of s 53B of the Act as it is not disputed that they acted in good faith and for valuable consideration (see s 53B(3)).<br />
<br />
The question for consideration is what then is the effect on any registered interest should such an avoidance takes place? In this case, it is the registered legal charges in favor of the second appellant. Should the official assignee, the respondent, takes the said property subject to the registered legal charges as is the contention of counsel for the second appellant?<br />
<br />
As the said property involves land, it will only be vested in the respondent by way of registration as we practise the Torrens system in this country. Part Twenty-Two of the NLC provides for transmission on death and bankruptcy. The relevant section in this case is s 349 and reads:<br />
<br />
<br />
<br />
Registration of official assignee<br />
<br />
(1) Where the official assignee claims any land, or share or interest in land, under any written law for the time being in force relating to bankruptcy, he may apply to the registrar under this section for the registration thereof in his name, and the registrar shall give effect to the application by endorsing a memorial of the transmission on the register document of title to the land in question or, as the case may be, the land in which the share or interest in question subsists.<br />
<br />
(2) Every such memorial shall be signed and sealed by the registrar, and a copy thereof shall, if he is able to secure its production, be made by him on the issue document of title to the said land or, where the memorial relates to a lease or charge, on the duplicate thereof.<br />
<br />
(3) No land, share or interest shall vest in the official assignee under any adjudication of bankruptcy, or order for administration in bankruptcy, until it has become registered in his name pursuant to this section.<br />
<br />
<br />
<br />
It is not disputed that the said property has not been registered under the name of the respondent. It is equally not disputed (and accepted by the learned judge) that the second appellant was a bona fide purchaser for value and without notice. It follows, in my view, that the respondent until registration of the said property pursuant to s 349 of the NLC in his name, is vested only with an equitable interest in the said property. In accordance with equitable principles, the legal interest in the charges acquired by the second appellant, as a bona fide purchaser for value and without notice, would overreach the respondent’s equitable interest (see Mercantile Bank Ltd v The Official Assignee of the property of How Han Teh [1969] 2 MLJ 196).<br />
<br />
Quite apart from the legal interest versus the equitable interest issue the first appellant’s interest may be defeated due to his being privy to the fraud but the second appellant’s interest, as the registered chargee, are indefeasible as the second appellant was a bona fide purchaser for value and without notice (see s 340(2) and (3) of the NLC). The learned judge himself accepted the vestment of the said property in the respondent in equity by relying on Re Kwan Chew Shen T/A Syarikat Kaaf [1987] 1 CLJ 314 where VC George J (as he then was) said:<br />
<br />
<br />
<br />
Having the Torrens system in particular s 349 NLC in mind, it is obvious s 24(4) of the Bankruptcy Act should be read subject to the requirement of s 349, as far as land and interest in land is concerned. This is not to make for s 24(4) to be pointless. Section 24(4) of the Bankruptcy Act and s 349 of the NLC should be read as complementing each other. Section 24(4) in the context of the Torrens system has the effect that upon the adjudication of bankruptcy, land and interest in land belonging to the bankrupt vest in equity (and not in law) in the official assignee. It will only vest in the official assignee at law when the requirement of the law of registration as provided by s 349 have been met.<br />
<br />
<br />
<br />
The learned judge accepted what is stated above as a sound ruling and correct position of the law. I have no quarrel with that. The learned judge then proceeded to consider the issue of indefeasibility of registered title and interests under s 340(1) of the NLC. The learned judge after discussing the relevant sub-s of s 340 of the NLC in particular s 340(4)(b) and the judgment in Krishnadas a/l Achutan Nair & Ors v Maniyam a/l Samykano [1997] 1 MLJ 94 at p 100, concluded (at pp 153–154 of [1997] 5 MLJ 136):<br />
<br />
<br />
<br />
When this court ruled that the conveyance between the father and the first defendant was fraudulent and therefore void, the title of the first defendant in the said property determined. When it determined, the concept of indefeasibility no longer applies by virtue of s 340(4) NLC, and since it determined by reason of the transfer being void, it relates back to the time of the transfer. This means that the first defendant had no title at any time to the said property. When he had no title to the said property he could not have created the legal charges in favor of the second defendant since the legal charges subsist on the strength of the first defendant’s claim to the title. They too have no protection of indefeasibility offered under s 340(1) of the NLC.<br />
<br />
<br />
<br />
The purpose of s 340(4)(b) of the NLC was considered by the Federal Court in Krishnadas a/l Achutan Nair & Ors v Maniyam a/l Samykano referred to by the learned judge. This is what Gopal Sri Ram JCA speaking for the Federal Court stated at p 100:<br />
<br />
<br />
<br />
In our judgment, Parliament enacted s 340(4)(b) for the purpose of dealing with fact patterns that do not fall squarely within the other exceptions to indefeasibility that appear in the second subsection to s 340 of the Code (National Land Code 1965). While recognizing that it is neither possible, nor desirable to predict with any degree of certainty the wide range of cases that, while failing to come within the vitiating categories specified by the second subsection, may yet come within the scope of s 340(4)(b), we cite, by way of illustration only, cases decided under the Moneylenders Act 1951.<br />
<br />
<br />
<br />
The Federal Court went on to cite Abirami Ammal & Anor v MSMM Meyappa Chettiar [1959] MLJ 149 and Overseas Union Finance Ltd v Lim Joo Chong [1971] 2 MLJ 124 by way of illustration.<br />
<br />
With respect, I agree with the contention of counsel for the second appellant that the learned judge erred in applying s 340(4)(b) of the NLC as having determined the bankrupt’s title from the time of the alleged fraudulent conveyance, that is, 26 March 1991. Section 340(4)(b) is a savings provision and cannot operate by itself to determine any title or interests in land. It is the operation of s 340(4)(b) which permits the determination of title or interest in land by operation of law as in this case, the Bankruptcy Act. It would appear that without s 340(4) of the NLC no registered title or interests are defeasible save for the instances set out in s 340(2) of the NLC.<br />
<br />
In the case of bankruptcy and the operation of the Act, the determination of a bankrupt’s interest in land can arise either:<br />
<br />
<br />
<br />
(a) pursuant to s 24(4) of the Act (the automatic vesting of the property) at the time of the adjudication of his bankruptcy, or<br />
<br />
(b) upon the avoidance of a fraudulent conveyance.<br />
<br />
<br />
<br />
However, taking into consideration the purport of s 349 of the NLC, the divesting of the bankrupt’s interest in the land and the vesting of that interest in the official assignee, the respondent, in either of the above events, may only be effected by the endorsement of a memorial of transmission under s 349(1) thereof. It is further provided by s 349(3) that no land, share or interest shall vest in the official assignee under any adjudication of bankruptcy until it has become registered in his name pursuant to this section. In other words, it is not an automatic vesting in so far as land is concerned.<br />
<br />
It seems clear that s 340(4) only preserves the application of the Act in determining title and interests in land in bankruptcy whilst s 349 of the NLC effectuates the vesting of title and interests in the official assignee thereby divesting the title and interests of the bankrupt in the land. Therefore until the official assignee effectuates his rights under the NLC no title to the land vests in the official assignee.<br />
<br />
In this case, there was a finding of fraudulent transfer of the said property and it was avoided by the court below but the title to the said property is yet to be vested in the respondent pursuant to s 349 of the NLC as no action had been taken by the respondent to that effect. In that event until registration of the title of the said property in the respondent’s name on behalf of the bankrupt, the respondent has only an equitable interest in the said property.<br />
<br />
The Act itself by way of s 53B(1) provides that in the event the acquisition of the property of the bankrupt is set aside, as in this case, the property shall be deemed to be the property of the official assignee and the official assignee may recover the property from the person who acquired it from the bankrupt or from any other person to whom the person may have sold, resold or transferred the property as fully and effectually as the official assignee could have recovered the property if it had not been so sold, transferred, or disposed of. However, s 53(B)(3) of the Act provides exception to sub-ss (1) and (2) of s 53(B) if the subsequent acquirers give valuable consideration and acted in good faith in which case the recourse would be only as against the person who entered into the transaction with the bankrupt as in this case, the first appellant.<br />
<br />
The second appellant acted in good faith and for valuable consideration in granting the loans to the first appellant and in executing the charges that were duly registered. This is not disputed. The respondent lodged a registrar’s caveat very much later, sometime in 1994 and is therefore of no help.<br />
<br />
In the circumstances, I am of the view that the respondent would have to take the said property subject to the second appellant’s charges and I so rule accordingly.<br />
<br />
Orders<br />
<br />
For the reasons stated, I would make the following orders.<br />
<br />
In respect of the first appellant, the appeal is dismissed with costs. The deposit is to go towards taxed costs.<br />
<br />
In respect of the second appellant, the appeal is allowed with costs. The order of the learned judge is set aside. The deposit is to be refunded.<br />
<br />
My learned brother, Gopal Sri Ram JCA, has seen this judgment and agreed with it.<br />
<br />
This judgment is given pursuant to s 42 of the Courts of Judicature Act 1964.<br />
<br />
<br />
<br />
First appellant’s appeal dismissed and second appellant’s appeal allowed.<br />
<br />
<br />
<br />
Reported by Lim Lee NaRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-42598670322604202032009-10-10T20:05:00.001-07:002009-10-10T20:05:29.016-07:00Wong Koon Seng v Rahman Hydraulic Tin Bhd & Ors[2003] 1 MLJ 98<br />
<br />
<br />
Wong Koon Seng v Rahman Hydraulic Tin Bhd & Ors<br />
<br />
Headnote<br />
<br />
Court Details<br />
<br />
HIGH COURT (KUALA LUMPUR) — ORIGINATING MOTION NO R2–25–90 OF 2002<br />
<br />
FAIZA TAMBY CHIK J<br />
<br />
28 OCTOBER 2002<br />
<br />
Catchwords<br />
<br />
Administrative Law — Remedies — Certiorari — Mandamus — Refusal by special administrators to accept applicant’s offer for purchase of assets — Special administrators appointed under Pengurusan Danaharta Nasional Bhd Act — Whether special administrators were public authorities within scope of O 53 r 2(4) of the Rules of the High Court 1980 — Whether decisions of special administrators had character of public law — Whether decisions of special administrators were subject to judicial review<br />
<br />
<br />
<br />
Civil Procedure — Time — Certiorari — Application for judicial review — Ex parte application for leave not filed within time — Whether application was regular — Rules of the High Court 1980 O 53 r 3(6)<br />
<br />
<br />
<br />
Public Authorities — Remedies — Certiorari — Mandamus — Refusal by special administrators to accept applicant’s offer for purchase of assets — Special administrators appointed under Pengurusan Danaharta Nasional Bhd Act — Special administrators deemed the agents of first respondent pursuant to s 32 of the Pengurusan Danaharta Nasional Bhd Act — First respondent was a private entity — Whether special administrators were public authorities within scope of O 53 r 2(4) of the Rules of the High Court 1980<br />
<br />
Summary<br />
<br />
The borrower (‘first respondent’) was granted credit facilities by a syndication of lenders (‘the lenders’) pursuant to a facility agreement. The first respondent had defaulted under the said credit facilities and pursuant to the Pengurusan Danaharta Nasional Bhd Act 1998 (‘the Danaharta Act’) and the vesting certificate, all the rights, assets and interests of the lenders in connection with the first respondent’s said credit facilities and security documents were acquired by and vested into Pengurusan Danaharta Nasional Bhd (‘Danaharta’). Consequent upon such vesting, Danaharta appointed the second to fourth respondents as special administrators of the first respondent. Thereafter, the second to fourth respondents invited potential investors to attend a briefing on the procedure for submission of their proposals to restructure and/or acquire the first respondent’s assets (‘the first invitation’). The first respondent’s assets to be acquired included, inter alia, its mining lease and related assets (‘the assets concerned’). Following the first invitation, various interested parties, including the applicant, attended the scheduled briefing. At the said briefing, copies of the information memorandum dated 1 March 2002 (‘the first MOI’) were given to various interested parties, including the applicant. The first MOI expressly stated that the first MOI did not constitute an offer by the second to fourth respondents and the second to fourth respondents were not bound to accept any of the proposals submitted. On the closing date, a total of six proposals were received by the second to fourth respondents offering to purchase a variety of the first respondent’s assets. The applicant’s proposal dated 18 March 2002 was offered for the acquisition of the assets concerned with an offer price of RM6,003,000 (‘the applicant’s offer’). After due deliberation, the third respondent on behalf of the first respondent rejected the applicant’s officer and returned therewith the applicant’s bankers cheque for the sum of RM120,060. The reason for the rejection was that the applicant’s offer was too low for the assets concerned. The applicant then requested the second to fourth respondents to reconsider their decision to reject its offer. The second to fourth respondents were however not prepared to do so, despite the applicant’s meeting with them and with Danaharta on various occasions. Subsequent to the aforesaid rejection of the applicant’s offer, a further briefing was fixed whereby the applicant and others were invited to submit fresh offers for the acquisition of the assets concerned. The said briefing was however cancelled. Thereafter, an advertisement was placed in the newspapers by the second to fourth respondents wherein all interested parties were invited to submit their offers for the acquisition of the first respondent’s operating tin mine with a right to enter, occupy and mine on an ‘as is where is basis’. It was not disputed that these assets were the same as the assets concerned. In addition to the aforesaid advertisement, the second to fourth respondents had by their letter of 5 July 2002 extended their invitation to the applicant to submit his fresh offer for the acquisition of the assets concerned. On 18 July 2002, a total of three proposals were received by the second to fourth respondents including a proposal from Fook Wan Thye Credit & Leasing Sdn Bhd with an offer price of RM14,000,300 (‘Fook Wan Thye’s offer’). The applicant did not submit any offer. The other two offers made were for RM12,000,888.99 and RM11,500,000 respectively. The second to fourth respondents accepted the Fook Wan Thye’s proposal. This was the applicant’s application for: (a) an order of certiorari to quash the respondents’ rejection of the applicant’s offer; (b) an order of certiorari to quash the respondents’ acceptance of Fook Wan Thye’s offer; (c) an order of mandamus that the mining lease and related assets of the first respondent be awarded to the applicant pursuant to the terms of the first MOI; or (d) an order of mandamus that the respondents reconsider the applicant’s offer.<br />
<br />
Holdings<br />
<br />
Held, dismissing the application:<br />
<br />
(1) This application was irregular because the ex parte application for leave for the same was not filed within the time prescribed under O 53 r 3(6) of the Rules of the High Court 1980 (‘the RHC’). The applicant’s offer was rejected by the second to fourth respondents by a letter dated 30 April 2002. Accordingly, the application herein ought to have been filed on or before 9 June 2002 instead of 9 August 2002 as was done in the instant case. In the absence of any court order allowing for extension of time, the application herein was misconceived and ought to be dismissed outright (see p 107E–G); Mersing Omnibus Co Sdn Bhd v Minister of Labour and Manpower & Anor [1983] 2 MLJ 54 and Ravindran v Malaysian Examinations Council [1984] 1 MLJ 168 followed.<br />
<br />
(2) The first respondent (which was an ‘affected person’ pursuant to s 21(a) of the Danaharta Act), was a private entity and not a public authority as it was a limited company duly incorporated under the provisions of the Companies Act 1965. Since the second to fourth respondents were deemed to be acting as the agents of the first respondent pursuant to s 32 of the Danaharta Act, they were agents of a private entity. Accordingly, the second to fourth respondents were not ‘public authority’ within the scope of O 53 r 2(4) of the RHC (see p 108D). <br />
<br />
(3) Although the second to fourth respondents had been appointed under the provisions of the Danaharta Act and thereby had the powers specified in the Second Schedule thereto, their decisions in rejecting the applicant’s offer and accepting Fook Wan Thye’s offer were commercial decisions taken for and on behalf of the first respondent as a private or ‘business’ entity. Those decisions were made in the field of ‘private law’ in accordance with the spirit of ‘freedom to contract’ and did not have any character of public law. Therefore, their decisions were not and should not be subject to judicial review (see p 108E–G).<br />
<br />
(4) The application for an order of mandamus to compel the second to fourth respondents to award the mining lease and related assets to the applicant was clearly an attempt by the applicant to enforce his purported contractual or ‘private right’ against the respondents. If the applicant maintained that there was a contract, then his claim ought to have been for damages for breach of contract. The applicant’s prayers for a mandamus and certiorari were in essence prayers for specific performance and an injunction, which remedies were available in private law. Judicial review applied to matters relating to public law and should not be made available for enforcement of private rights. Accordingly, the application herein was misconceived and ought to be dismissed by this court (see p 110A–C).<br />
<br />
(5) The filing of this application contravened s 39A of the Danaharta Act as it sought to ‘obstruct or hinder’ the exercise of the right and power conferred on the second to fourth respondents as special administrators. Further, the court was unable to grant the orders as prayed because an order of court quashing the second to fourth respondents’ decisions would certainly ‘restrain or affect action taken by … the special administrators’, which was expressly prohibited by s 72(b) of the Danaharta Act. Also, an order of mandamus to compel the second to fourth respondents to award the mining lease and related assets to the applicant would contravene s 72(c) of the Danaharta Act. Accordingly, the prayers sought for in this application were absolutely barred by s 72 of the Danaharta Act (see pp 111I–112B, F); Tan Sri Dato’ Tajuddin Ramli v Pengurusan Danaharta Nasional Bhd & Ors [2002] 5 MLJ 720 followed. <br />
<br />
(6) This application was mala fide and hindered the ongoing disposal of assets exercise undertaken by the second to fourth respondents. This would defeat the intention of Parliament which had decreed that Danaharta and the special administrators must be permitted to realize the borrowers’ assets without hindrance and express statutory provisions were enacted towards this effect. This application was exactly the kind of proceedings that the Danaharta Act sought to bar. The success of Danaharta depended on speed. Danaharta and the special administrators were given wide powers as Parliament recognized the need for special powers in the interest of the public (see p 112F–H).<br />
<br />
Bahasa Malaysia summary<br />
<br />
Peminjam (‘responden pertama’) diberikan kemudahan kredit oleh satu sindiket pemberi pinjaman (‘pemberi-pemberi pinjaman’) menurut satu perjanjian kemudahan kredit. Responden pertama telah ingkar di bawah kemudahan kredit tersebut dan menurut Akta Pengurusan Danaharta Nasional Bhd 1998 (‘Akta Danaharta’) dan sijil letakhak, segala hak, aset dan kepentingan pemberi-pemberi pinjaman berhubung dengan kemudahan kredit dan dokumen cagaran responden pertama diperolehi oleh dan diletakhak dalam Pengurusan Danaharta Nasional Bhd (‘Danaharta’). Berikutan letakhak demikian, Danaharta melantik responden kedua hingga keempat sebagai pentadbir khas responden pertama. Selepas itu, responden kedua hingga keempat menjemput bakal pelabur untuk menghadiri satu taklimat mengenai prosedur penyerahan cadangan penyusunan semula dan/atau memperolehi aset responden pertama (‘jemputan pertama’). Aset responden pertama yang hendak diperolehi termasuk, antara lain, pajakan perlombongan dan aset-aset yang berkaitan dengannya (‘aset-aset berkaitan tersebut’). Susulan dari jemputan pertama, pelbagai pihak yang berkepentingan, termasuk pemohon, telah menghadiri taklimat yang dijadualkan. Di taklimat tersebut, salinan-salinan memorandum maklumat bertarikh 1 Mac 2002 (‘MM pertama’) diberikan kepada pelbagai pihak yang berkepentingan, termasuk pemohon. MM pertama jelas menyatakan bahawa MM pertama tidak membentuk satu tawaran oleh responden kedua hingga keempat dan responden kedua hingga keempat tidak diikat untuk menerima mana-mana cadangan yang diserahkan. Pada tarikh tutup, sebanyak enam cadangan diterima oleh responden kedua hingga keempat yang menawarkan untuk membeli pelbagai aset responden pertama. Tawaran pemohon bertarikh 18 Mac 2002 ditawarkan untuk pemerolehan aset tersebut dengan satu harga tawaran sebanyak RM6,003,000 (‘tawaran pemohon’). Selepas pertimbangan yang wajar, responden ketiga bagi pihak responden pertama menolak tawaran pemohon dan memulangkan kembali cek pemohon yang berjumlah RM120,060. Alasan penolakan tersebut adalah kerana tawaran pemohon adalah terlalu rendah untuk aset tersebut. Pemohon kemudiannya meminta responden kedua hingga keempat agar menimbangkan semula keputusan mereka untuk menolak tawarannya. Walau bagaimanapun, responden kedua hingga keempat tidak bersedia untuk berbuat demikian, meskipun pemohon telah berjumpa dengan mereka dan Danaharta beberapa kali. Berikutan penolakan tawaran pemohon, taklimat lanjut ditetapkan di mana pemohon dan orang lain dijemput untuk menyerahkan tawaran baru bagi pemerolehan aset tersebut. Namun demikian taklimat tersebut dibatalkan. Selepas itu, satu iklan diletakkan di dalam akhbar-akhbar oleh responden kedua hingga keempat dalam mana semua pihak yang berkepentingan dijemput untuk menyerahkan tawaran mereka bagi pemerolehan lombong timah responden pertama yang aktif dengan hak untuk memasuki, menduduki dan melombong pada dasar ‘as is where is’. Ia tidak dipertikaikan bahawa aset-aset ini adalah sama dengan aset tersebut. Sebagai tambahan kepada iklan tersebut, responden kedua hingga keempat telah menerusi surat mereka bertarikh 5 Julai 2002 melanjutkan jemputan mereka kepada pemohon supaya menyerahkan tawaran baru bagi memperolehi aset tersebut. Pada 18 Julai 2002, sebanyak tiga cadangan diterima oleh responden kedua hingga keempat termasuk satu cadangan dari Fook Wan Thye Credit & Leasing Sdn Bhd dengan harga tawaran sebanyak RM14,000,300 (‘tawaran Fook Wan Thye’). Pemohon tidak menyerahkan apa-apa tawaran. Dua tawaran yang lain dibuat untuk jumlah RM12,000,888.99 dan RM11,500,000 masing-masing. Responden kedua hingga keempat telah menerima tawaran Fook Wan Thye. Ini merupakan permohonan pemohon untuk: (a) satu perintah certiorari untuk membatalkan penolakan responden ke atas tawaran pemohon; (b) satu perintah certiorari untuk membatalkan penerimaan tawaran Fook Wan Thye oleh responden-responden; (c) satu perintah mandamus bahawa pajakan perlombongan dan aset responden pertama tersebut diawardkan kepada pemohon menurut terma MM pertama; atau (d) satu perintah mandamus bahawa responden-responden menimbangkan semula tawaran pemohon.<br />
<br />
Bahasa Holdings<br />
<br />
Diputuskan, menolak permohonan tersebut:<br />
<br />
(1) Permohonan ini di luar aturan kerana permohonan ex parte untuk kebenaran yang sama tidak difailkan dalam tempoh masa yang ditetapkan di bawah A 53 k 3(6) Kaedah-Kaedah Mahkamah Tinggi 1980 (‘KMT’). Tawaran pemohon ditolak oleh responden kedua hingga keempat melalui sepucuk surat bertarikh 30 April 2002. Oleh itu, permohonan di sini sepatutnya difailkan pada atau sebelum 9 Jun 2002 dan bukannya pada 9 Ogos 2002 seperti yang dilakukan dalam kes ini. Dalam ketiadaan apa-apa perintah mahkamah yang membenarkan perlanjutan masa, permohonan di sini adalah salah faham dan seharusnya ditolak sekaligus (lihat ms 107E–G); Mersing Omnibus Co Sdn Bhd v Minister of Labour and Manpower & Anor [1983] 2 MLJ 54 dan Ravindran v Malaysian Examinations Council [1984] 1 MLJ 168 diikut.<br />
<br />
(2) Responden pertama (yang merupakan ‘affected person’ menurut s 21(a) Akta Danaharta), adalah satu entiti persendirian dan bukan pihak berkuasa awam kerana ia adalah sebuah syarikat berhad yang diperbadankan dengan wajar di bawah peruntukan Akta Syarikat 1965. Oleh kerana responden kedua hingga keempat dianggap bertindak sebagai ejen responden pertama menurut s 32 Akta Danaharta, mereka merupakan ejen-ejen entiti persendirian. Oleh itu, responden kedua hingga keempat bukanlah ‘public authority’ dalam lingkungan A 53 k 2(4) KMT (lihat ms 108D). <br />
<br />
(3) Walaupun responden kedua hingga keempat telah dilantik di bawah peruntukan Akta Danaharta dan dengan itu mempunyai kuasa yang dinyatakan dalam Jadual Kedua Akta Danaharta, keputusan mereka dalam menolak tawaran pemohon dan menerima tawaran Fook Wan Thye merupakan keputusan perniagaan yang dibuat untuk dan bagi pihak responden pertama sebagai satu entiti persendirian atau ‘perniagaan’. Keputusan tersebut dibuat di dalam bidang ‘private law’ menurut semangat ‘freedom to contract’ dan tidak memiliki apa-apa sifat undang-undang awam. Oleh yang demikian, keputusan mereka bukan dan tidak seharusnya tertakluk kepada kajian semula kehakiman (lihat ms 108E–G).<br />
<br />
(4) Permohonan untuk satu perintah mandamus bagi mewajibkan responden kedua hingga keempat mengaward pajakan perlombongan dan aset tersebut kepada pemohon jelas merupakan satu percubaan oleh pemohon untuk menguatkuasa hak kontraktual atau ‘private right’ beliau terhadap responden-responden. Sekiranya pemohon berkeras bahawa wujudnya kontrak, maka tuntutannya seharusnya dibuat untuk ganti rugi atas kemungkiran kontrak. Permohonan pemohon untuk mandamus dan certiorari pada dasarnya adalah permohonan untuk pelaksanaan spesifik dan injunksi, yang mana remedinya terletak dalam undang-undang persendirian. Kajian semula kehakiman terpakai kepada perkara yang berhubung dengan undang-undang awam dan tidak harus tersedia untuk penguatkuasaan persendirian. Justeru itu, permohonan di sini adalah salah faham dan harus ditolak oleh mahkamah ini (lihat ms 110A–C).<br />
<br />
(5) Pemfailan permohonan ini melanggar s 39A Akta Danaharta kerana ia bertujuan ‘obstruct or hinder’ pelaksanaan hak dan kuasa yang dikurniakan ke atas responden kedua hingga keempat sebagai pentadbir khas. Seterusnya, mahkamah tidak dapat memberi perintah seperti yang dipohon kerana satu perintah mahkamah yang membatalkan keputusan responden kedua hingga keempat sudah tentu akan ‘restrain or affect action taken by … the special administrators’, yang dilarang secara nyata oleh s 72(b) Akta Danaharta. Juga, satu perintah mandamus untuk mewajibkan responden kedua hingga keempat supaya mengaward pajakan perlombongan dan aset tersebut kepada pemohon akan melanggar s 72(c) Akta Danaharta. Justeru itu, rayuan-rayuan yang dibuat dalam permohonan ini dihalang secara mutlak oleh s 72 Akta Danaharta (lihat ms 111I–112B, F); Tan Sri Dato’ Tajuddin Ramly v Pengurusan Danaharta Sdn Bhd & Ors [2002] 5 MLJ 720 diikut.<br />
<br />
(6) Permohonan ini dibuat secara mala fide dan merintangi pelaksanaan pelupusan aset yang masih dijalankan oleh responden kedua hingga keempat. Ini akan menewaskan hasrat Parlimen yang telah memerintahkan bahawa Danaharta dan pentadbir khas mesti dibenarkan merealisasikan aset peminjam-peminjam tanpa gangguan dan peruntukan berkanun nyata digubalkan untuk tujuan ini. Permohonan inilah yang merupakan jenis prosiding yang ingin dihalang oleh Akta Danaharta. Kejayaan Danaharta bergantung pada kepantasan. Danaharta dan pentadbir khas diberi kuasa luas oleh kerana Parlimen mengiktirafkan keperluan untuk kuasa khusus demi kepentingan masyarakat awam (lihat ms 112F–H).]<br />
<br />
Notes<br />
<br />
For cases on certiorari, remedies, see 10 Mallal’s Digest (4th Ed, 1999 Reissue) paras 1575–1577.<br />
<br />
For cases on time, certiorari, see 2 Mallal’s Digest (4th Ed, 2001 Reissue) para 6323.<br />
<br />
Cases referred to<br />
<br />
Kekatong Sdn Bhd v Bumiputra-Commerce Bank Bhd & Anor [2002] 6 MLJ 186 (refd)<br />
<br />
Mersing Omnibus Co Sdn Bhd v Minister of Labour and Manpower & Anor [1983] 2 MLJ 54 (folld)<br />
<br />
R v Panel on Take-overs and Mergers, ex p Datafin Plc & Anor (Norton Opax Plc and another intervening) [1987] 1 All ER 564 (refd)<br />
<br />
Ravindran v Malaysian Examinations Council [1984] 1 MLJ 168 (folld)<br />
<br />
Tan Sri Dato’ Tajuddin Ramli v Pengurusan Danaharta Nasional Bhd & Ors [2002] 5 MLJ 720 (folld)<br />
<br />
Woon Kwok Cheng v Tan Sri Datuk Chang Min Tat & Ors [1993] MLJU 551 (refd)<br />
<br />
Ganda Oil Industries Sdn Bhd & Ors v Kuala Lumpur Commodity Exchange & Anor [1988] 1 MLJ 174 (refd)<br />
<br />
Legislation referred to<br />
<br />
Legislation referred to<br />
<br />
Pengurusan Danaharta Nasional Bhd Act 1998 ss 21(a), 30, 31, 32, 39A, 72<br />
<br />
Rules of the High Court 1980 O 53 r 2(4), O 53 r 3(6)<br />
<br />
Lawyers<br />
<br />
M Puravalen (Jeev Anand and Mazlan Mohd Nor with him) (How Zul & Low) for the applicant.<br />
<br />
Dato’ Dr Cyrus Das (Yoong Sin Min and Lau Kee Sern with him) (Shook Lin & Bok) for the respondents.<br />
<br />
Judgement - Faiza Tamby Chik J: <br />
<br />
Faiza Tamby Chik J: The brief chronology of events of the instant case is as follows. The borrower was granted credit facilities of RM250m by a syndication of lenders comprising MBf Finance Berhad and MBf Leasing Sdn Bhd (‘the lenders’) pursuant to a facility agreement dated 24 June 1997. The borrower had defaulted under the said credit facilities. Pursuant to the Pengurusan Danaharta Nasional Bhd Act 1998 (‘the Danaharta Act’) and the vesting certificate (exh ‘WLW–1’ to respondent’s Wong affidavit — p 51), all the rights, assets and interests of the lenders in connection with the borrower’s said credit facilities and security documents were acquired by and vested into Pengurusan Danaharta Nasional Bhd (‘Danaharta’) as of 24 April 2000. Consequent upon such vesting, Danaharta appointed the second to fourth respondents as special administrators of the borrower on 16 June 2000. The second to fourth respondents in their duties as special administrators of the borrower had examined the assets of the borrower and considered how to deal with the disposal of the assets of the borrower to maximize the returns and to restructure the borrower company. On or about 26 February 2002, by various press articles, the second to fourth respondents invited all potential investors to attend a briefing scheduled for 1 March 2002 on the procedure for submission of their proposals to restructure and/or acquire the borrower’s assets (‘the first invitation’) (exh ‘WLW–2’ to respondent’s Wong affidavit at p 56). The borrower’s assets to be acquired included, inter alia, the borrower’s mining lease and related assets (‘the assets concerned’). Following from the first invitation, various interested parties including the applicant attended the scheduled briefing on 1 March 2002. At the said briefing, copies of the information memorandum dated 1 March 2002 (‘the first MOI’) (exh ‘WLW–3’ to the respondent’s Wong affidavit — p 62) were given to various interested parties, including the applicant at their request and upon them signing the confidentiality agreement (exh ‘WLW–4’ to the respondent’s Wong affidavit at p 312).<br />
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Pursuant to the express terms of the first MOI, it is provided, inter alia, that:<br />
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(a) the first MOI does not constitute an offer by the second to fourth respondents (see cover p 62 and p 70 of exh ‘WLW–3’);<br />
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(b) the various dates as set out therein, except for the closing date for submission which has been fixed for 18 March 2002 (‘the closing date’), are tentative in nature and may be altered by the second to fourth respondents after consultation with Danaharta (see p 71 of exh ‘WLW–3’);<br />
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(c) the second to fourth respondents are not bound to accept any of the proposals submitted (see p 84 of exh ‘WLW–3’); and <br />
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(d) the second to fourth respondents are under no obligation to provide any explanation for their decisions and such decisions shall be final (see p 84 of exh ‘WLW–3’).<br />
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On the closing date, a total of six proposals were received by the second to fourth respondents offering to purchase a variety of the borrower’s assets. The applicant’s proposal dated 18 March 2002 was offered for the acquisition of the assets concerned with an offer price of RM6,003,000 (‘the applicant’s offer’) (exh ‘WLW–5’ of respondent’s Wong affidavit — p 314). It is expressly provided at para 2 of the applicant’s offer that ‘in the event that this offer is accepted by the special administrator …’, which pre-supposes an acceptance by the respondents is required. After due deliberation and by a letter dated 30 April 2002 (exh ‘WLW–6’ of respondent’s Wong affidavit — p 319), the third respondent on behalf of the borrower rejected the applicant’s officer and returned therewith the applicant’s unnegotiated Bankers Cheque No RHB 072964 for the sum of RM120,060. The reason for the rejection was that the respondents’ felt that the applicant’s offer made was too low for the assets concerned. The applicant had requested the second to fourth respondents to reconsider their decision to reject this offer. The second to fourth respondents were however not prepared to do so, despite the applicant’s meeting with them and with Danaharta on various occasions. Subsequent to the aforesaid rejection of the applicant’s offer, a further briefing was fixed for 8 May 2002 whereby the applicant and others were invited to submit fresh offers for the acquisition of the assets concerned. The said briefing was however cancelled on 8 May 2002. Thereafter, an advertisement was placed in the newspapers on 5 July 2002 (exh ‘WLW–8’ to respondent’s Wong affidavit at p 323) by the second to fourth respondents wherein all interested parties were invited to submit their offers for the acquisition of the first respondent’s operating tin mine with a right to enter, occupy and mine on an ‘as is where is basis’ (‘the second invitation’). It is not disputed that these assets are the same as the assets concerned (see exh ‘WLW–9’ for information memorandum dated 5 July 2002 (‘the second MOI’ at p 325). In addition to the aforesaid advertisement published on 5 July 2002, the second to fourth respondents had by their letter of 5 July 2002 (exh ‘WLW–10’ to respondent’s Wong affidavit at p 405) extended their invitation to the applicant to submit his fresh offer for the acquisition of the assets concerned. On 18 July 2002, a total of three proposals were received by the second to fourth respondents including a proposal dated 18 July 2002 from Fook Wan Thye Credit & Leasing Sdn Bhd with an offer price of RM14,000,300 (‘Fook Wan Thye’s offer’) (exh WLW–11’ at p 408). The applicant did not submit any offer. The other two offers made were for RM12,000,888.99 and RM11,500,000 respectively. Contrast this to the applicant’s initial offer of RM6,003,000. By a letter dated 30 July 2002 (exh ‘WLW–12’ to respondent’s Wong affidavit at p 412), the second to fourth respondents accepted the Fook Wan Thye’s proposal. Pursuant to the Kuala Lumpur Stock Exchange Listing Requirements, an announcement was made on 1 August 2002 by the second to fourth respondents to the Kuala Lumpur Stock Exchange on the second to fourth respondents’ acceptance of the Fook Wan Thye’s offer (exh ‘WLW–14’ at p 419). The applicant does not dispute any of the above.<br />
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Pursuant to the court order dated 22 August 2002, the application herein was filed seeking for the following reliefs:<br />
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(a) a certiorari order to quash the respondents’ rejection of the applicant’s offer;<br />
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(b) a certiorari order to quash the respondents’ acceptance of Fook Wan Thye’s offer;<br />
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(c) a mandamus order that the mining lease and related assets of the borrower be awarded to the applicant pursuant to the terms of the memorandum of information dated 1 March 2002; or<br />
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(d) a mandamus order that the respondents do reconsider the applicant’s offer once more.<br />
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The issues involved in the present application are as follows:<br />
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(a) whether the application herein is regular in view of the fact that the ex parte application for leave for the same was not filed within time prescribed under O 53 r 3(6) of the Rules of the High Court 1980;<br />
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(b) whether the second to fourth respondents’ being special administrators appointed under the provisions of the Danaharta Act are ‘public authorities’ within the scope of O 53 r 2(4) of the Rules of the High Court 1980 (‘the RHC’);<br />
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(c) whether this court can grant the various orders sought for in the said application in the light of ss 39A and 72 of the Danaharta Act: and<br />
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(d) whether the facts of the present case entitle the applicant to the remedies sought for.<br />
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I am of the opinion that the application herein is irregular in view of the fact that the application for leave for the same was not filed within the time prescribed under O 53 r 3(6) of the RHC. Order 53 r 3(6) of the RHC provides:<br />
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An application for judicial review shall be made promptly and in any event within 40 days from the date when grounds for the application first arose or when the decision is first communicated to the applicant provided that the court may, upon application and if it considers that there is a good reason for doing so, extend the period of 40 days.<br />
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The applicant’s offer was rejected by the second to fourth respondents by a letter dated 30 April 2002 (‘exh WLW–6’ at p 319 of respondent’s Wong affidavit). Accordingly, the application herein ought to have been filed on or before 9 June 2002. The fact that it was only filed on 9 August 2002 clearly shows that there was a delay of two calendar months. In the absence of any court order allowing for extension of time, the application herein is misconceived and ought to be dismissed outright by this court. The authorities for the above proposition are found from the following cases:<br />
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(i) Federal Court decision of Mersing Omnibus Co Sdn Bhd v Minister of Labour and Manpower & Anor [1983] 2 MLJ 54 — filing within time is essential;<br />
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(ii) Federal Court decision of Ravindran v Malaysian Examinations Council [1984] 1 MLJ 168 — in absence of leave, no application properly before court.<br />
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It is clear from the above cases that the court has no jurisdiction to hear an application for judicial review if the same has been filed out of time even if leave to apply for the same has been so granted by the court. In the premises, I am of the view that the court has no jurisdiction to hear the application herein as it was filed without a court order for extension of time and would therefore be hereby dismissed with costs.<br />
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Can the second to fourth respondents be properly classified as ‘public authority’ within the ambit of O 53 of the RHC? I think the second to fourth respondents’ being special administrators appointed under the provisions of Danaharta Act are not ‘public authority’ within the scope of O 53 r 2(4) of the RHC. Order 53 r 2(4) of the RHC provides: ‘Any person who is adversely affected by the decision of any public authority shall be entitled to make the application.’<br />
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Section 32 of the Danaharta Act clearly provides: ‘The special administrator shall, in the administration of the affected person, be deemed to be acting as the agent of the affected person.’<br />
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‘Affected person’ is defined by s 21(a) of the Danaharta Act to mean ‘any company owing a duty or liability under a credit facility to the Corporation (Danaharta) or any subsidiary of the Corporation (Danaharta), whether present, future, vested or contingent’.<br />
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In the instant case, the first respondent is an ‘affected person’ and is a limited company duly incorporated under the provisions of the Companies Act 1965. It is therefore a private entity and not a public authority. It follows that the second to fourth respondents, are deemed in law as agents of the first respondent, are therefore agents of a private entity. This fact was acknowledged by the applicant when he made the borrower company the first respondent in his application, as he acknowledged that the second to fourth respondents could only enter a contract with him through the first respondent. In the instant case, although the second to fourth respondents have been appointed under the provisions of the Danaharta Act and thereby shall have the powers as specified in the Second Schedule thereto, their decisions in rejecting the applicant’s offer and accepting Fook Wan Thye’s offer are commercial decisions taken for and on behalf of the first respondent as a private entity, or more particularly, a ‘business’ entity. These decisions were made in the field of ‘private law’ in accordance with the spirit of ‘freedom to contract’ and certainly do not have any character of public law. In the premises, I am of the view that the respondents’ decisions are not and should not be subject to judicial review. In the English Court of Appeal decision of R v Panel on Take-overs and Mergers, ex-parte Datafin Plc & Anor (Norton Opax Plc and another intervening) [1987] 1 All ER 564, at p 583, Lloyd LJ said:<br />
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So I turn to counsel for the panel’s more technical argument. He starts with the speech of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at pp 949–950, [1985] AC 374 at p 409:<br />
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‘For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph. The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute; but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself, ie that part of the common law that is given by lawyers the label of ‘the prerogative’. Where this is the source of decision-making power, the power is confined to executive officers of central as distinct from local government and in constitutional practice is generally exercised by those holding ministerial rank.’<br />
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On the basis of that speech, and other cases to which he referred us, counsel for the panel argues: (i) that the sole test whether the body of persons is subject to judicial review is the source of its power; and (ii) that there has been no case where that source has been other than legislation, including subordinate legislation, or the prerogative.<br />
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I do not agree that the source of the power is the sole test whether a body is subject to judicial review, nor do I so read Lord Diplock’s speech. Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review: see R v Disputes Committee of the National Joint Council for the Craft of Dental Technicians, ex p Neate [1953] 1 All ER 327, [1953] 1 QB 704.<br />
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But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public functions, or if the exercise of its functions have public law consequences, then that may, as counsel for the applicants submitted, be sufficient to bring the body within the reach of judicial review. It may be said that to refer to ‘public law’ in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other. Thus in R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 All ER 770 at p 778, [1967] 2 QB 864 Lord Parker CJ, after tracing the development of certiorari from its earliest days, said:<br />
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‘The only constant limits throughout were that the body concerned was under a duty to act judicially and that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is from the agreement of the parties concerned.’<br />
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To the same effect is a passage from a speech of Lord Parker CJ in an earlier case, to which we were not, I think, referred, namely R v Industrial Court, ex p ASSET [1964] 3 All ER 130 at p 136, [1965)]1 QB 377 at p 389:<br />
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It has been urged on us that really this arbitral tribunal is not a private arbitral tribunal, but that, in effect, it is undertaking a public duty or a quasi-public duty and, as such, is amenable to an order of mandamus. For my part, I am quite unable to come to that conclusion. It is abundantly clear that they had no duty to undertake the reference. If they had refused to undertake the reference they could not be compelled to do so. I do not think that the position is in any way different once they have undertaken the reference. They are clearly doing something which they were not under any public duty to do, and, in those circumstances, I see no jurisdiction in this court to issue an order of mandamus to the Industrial Court.<br />
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In addition, I think in seeking a court order to compel the second to fourth respondents to award the mining lease and related assets of the first respondent to the applicant pursuant to the terms of the first MOI (see prayer (c) of encl 1), the applicant is clearly attempting to impose and enforce his purported contractual or ‘private right’ against the respondents. If the applicant maintains there is a contract, then his claim ought to have been for damages for breach of contract filed against the respondents. The applicant’s prayers for a mandamus and certiorari are in essence prayers for specific performance and an injunction, remedies which are available in private law. The applicant can only rely on private law remedies in respect of the alleged infringement of private rights. Judicial review ought only to apply to matters relating to public law and ought not be made available for enforcement of private rights (see Woon Kwok Cheng v Tan Sri Datuk Chang Min Tat & Ors [1993] MLJU 551; Ganda Oil Industries Sdn Bhd & Ors v Kuala Lumpur Commodity Exchange & Anor [1988] 1 MLJ 174). I therefore conclude that the application herein is misconceived and ought to be dismissed by this court and I hereby do so.<br />
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It is observed that the second to fourth respondents have expressly made known to the applicant the following terms:<br />
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(a) the first MOI does not constitute an offer by the second to fourth respondents;<br />
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(b) the various dates as set out therein, except for the closing date for submission which has been fixed for 18 March 2002 (‘the closing date’) are tentative in nature and may be altered by second to fourth respondents after consultation with Danaharta;<br />
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(c) the second to fourth respondents are not bound to accept any of the proposals submitted; and<br />
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(d) the second to fourth respondents are under no obligation to provide any explanation for their decisions and as such the decisions shall be final.<br />
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The applicant’s offer acknowledged the above and although it was the only offer for the assets concerned, for a contract to take place, it had to be accepted by the second to fourth respondents. No such acceptance took place and the applicant cannot show a clear and unequivocal acceptance by the respondents. The subsequent offer prices for the acquisition of the assets concerned received by the second to the fourth respondents are much higher (in fact, more than double) than that of the applicant’s offer. This vindicated the second to fourth respondents’ decision not to accept the applicant’s offer as they had held the view that his offer was too low. Subsequent to the rejection of the applicant’s offer, the applicant had been invited to tender his fresh offer to acquire the assets concerned but the applicant chose not to avail himself of such opportunity. The second to fourth respondents would have been grossly negligent to the first respondent’s shareholders and creditors, including Danaharta, if they accepted the offer for the assets concerned at such gross undervalue. Based on the above, the second to fourth respondents were correct in rejecting the applicant’s offer and thereafter conducting fresh invitations for the acquisition of the assets concerned. It is entirely logical and reasonable for the second to fourth respondents to accept Fook Wan Thye Sdn Bhd’s offer of RM14,000,300. The applicant’s unreasonable refusal to partake in the subsequent exercise clearly demonstrates his lack of bona fides. The only basis for the applicant clinging on to the argument that the second to fourth respondents were obliged to accept his offer was the issue of the return of his deposit. The deposit, as stated by affidavit, was to have been collected by the applicant at the second to fourth respondent’s office as requested by him. The applicant deliberately refused to so collect the same and is now unconscionably relying on his own inaction to justify this application. The court ought not to condone such action. There is no basis in fact and in law to quash the second to fourth respondents’ decisions and to further compel the second to fourth respondents to accept or reconsider the application offer which has been validly rejected. The Danaharta Act provides special laws for the acquisition by Danaharta of liabilities and assets and managing and disposing them as well as for appointment of special administrators with special powers. The intentions of the Danaharta Act as seen in its preamble are, inter alia, as follows:<br />
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(a) to assist financial institutions by removing impaired assets, to assist the business sector by dealing expeditiously with financially distressed enterprises and to promote the revitalisation of the nation’s economy by injecting liquidity into the financial system, such goals to be achieved through the acquisition, management, financing and disposition of assets and liabilities;<br />
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(b) to promptly, efficiently and economically implement the acquisition, management, financing and disposition of assets and liabilities;<br />
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(c) to expeditiously appoint special administrators to administer and manage persons whose assets or liabilities have been so acquired.<br />
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The special administrators once appointed by Danaharta, shall take over the management and control of the first respondent company (see s 31 of the Danaharta Act). The special administrators’ powers are set out in s 30 and in the Second Schedule of the Danaharta Act. In this regard, s 39A(1) of the Danaharta Act provides that no person shall obstruct or hinder the exercise of any right or power by a special administrator. Section 72 of the Danaharta Act further provides that notwithstanding any law, an order of court cannot be granted which:<br />
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(a) stays, restrains or affects the powers of, inter alia, the special administrators;<br />
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(b) stays, restrains or affects any action taken or proposed to be taken by, inter alia, the special administrators;<br />
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(c) compels the special administrators to do or perform any act.<br />
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The application herein seeks for orders of court to quash the second to fourth respondents’ decision in rejecting the applicant’s offer and the second to fourth respondents’ decision in accepting Fook Wan Thye’s offer with further prayers for mandamus orders for the second to fourth respondents’ to accept or reconsider the applicant’s offer. Firstly, I am of the opinion that the filing of the application herein is itself clearly in contravention of s 39A of the Danaharta Act as it seeks to ‘obstruct or hinder’ the exercise of the right and power conferred on the second to fourth respondents as special administrators under the Danaharta Act. Secondly, the court is unable to grant the orders as prayed by reason of the prohibition of s 72 of the Danaharta Act. An order of court in quashing the second to fourth respondents’ decisions will certainly ‘restrain or affect action taken’ which is expressly prohibited by s 72(b) of the Danaharta Act. Also, a mandamus order compelling the second to fourth respondents to award the mining lease and related assets to the applicant will obviously contravene s 72(c) of the Danaharta Act. The provision of s 72 has been previously considered by the courts. Firstly, there is the recent High Court decision of Tan Sri Dato’ Tajuddin Ramli v Pengurusan Danaharta Nasional Bhd & Ors [2002] 5 MLJ 720. This involves a case where the plaintiff there sought an injunction against Danaharta. Section 72 of the Danaharta Act was considered extensively and it was held that s 72 precludes the court from granting any restraining order against Danaharta. Vincent Ng J commented that (at pp 741–742):<br />
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It is incontrovertible that s 72 constituted a caveat against the granting of a restraining order directed at the courts … . Thus, in the present case I would hold that this court is precluded by the expressed crystal clear provision in s 72 from granting the injunction or restraining order sought by the plaintiff.<br />
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Although the above case involves an injunction application, the principles therein are applicable as s 72 bars court orders granting not only injunctions but also certiorari and mandamus orders as well. In Kekatong Sdn Bhd v Bumiputra-Commerce Bank Bhd & Anor [2002] 6 MLJ 186, it was held that s 72 of the Danaharta Act prohibits the granting of an injunction to restrain the sale of charged land by Danaharta Urus (at p 190):<br />
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The wordings of s 72 are very clear and contain no ambiguity as to its meaning and intention. In the absence of any ambiguity, it is incumbent upon this court to give it its literal meaning.<br />
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In the premises, I am of the view that the prayers sought for in the application are absolutely barred by s 72 of the Danaharta Act.<br />
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This application is clearly mala fides and it hinders the ongoing disposal of assets exercise by the second to fourth respondents. This defeats the intention of Parliament which has decreed that Danaharta and the special administrators must be permitted to realize the borrowers’ assets without hindrance and had passed very clear express statutory provisions towards this effect. The application herein is exactly the kind of proceedings which the Danaharta Act seeks to bar. It must be noted that the success of the asset management company depends on speed. They were given wide powers because of the public benefit and Parliament recognized the need for special powers in the public interest and for the public good.<br />
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The application is hereby dismissed with costs.<br />
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Application dismissed.<br />
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Reported by Lim Lee NaRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0tag:blogger.com,1999:blog-2322324467701967584.post-67332208302695476822009-10-08T21:39:00.001-07:002009-10-08T21:39:56.382-07:00Aseam Credit Sdn Bhd v Eminent Avenue Sdn Bhd[2003] 1 MLJ 90<br />
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Aseam Credit Sdn Bhd v Eminent Avenue Sdn Bhd<br />
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Headnote<br />
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Court Details<br />
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HIGH COURT (KUALA LUMPUR) — ORIGINATING SUMMONS NO S2–S7–24–2741–2000<br />
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ABDUL MALIK ISHAK J<br />
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5 NOVEMBER 2002<br />
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Catchwords<br />
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Moneylenders — Accounts — Statement of — Land charged to moneylender as security for loan — Application by moneylender for order for sale of land — Failure by moneylender to produce statement of account under s 19 of Moneylenders Act 1951 — Whether constituted cause to the contrary — Whether application for order for sale should be granted<br />
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Moneylenders — Charge — Security for loan — Application for order for sale of land — Failure by moneylender to comply with Moneylenders Act 1951 — Whether constituted cause to the contrary pursuant to s 256(3) of the National Land Code 1965 — Whether application for order for sale should be granted<br />
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Summary<br />
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This was the plaintiff’s application for an order for sale in respect of a property held under HS(D) 83488, No PT 43, Mukim of Kuala Lumpur, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan (‘the said land’). The defendant had charged the said land to the plaintiff, a licensed moneylender, as security for a loan granted to a third party borrower. The purpose of the loan was to enable the borrower to buy shares. It was the stand of the defendant that the order for sale should be refused because the plaintiff had failed to comply with the Moneylenders Act 1951 (‘the Act’) and this constituted cause to the contrary pursuant to s 256(3) of the National Land Code 1965 (‘NLC’). Contrary to the provisions of the Act, the plaintiff had: (a) failed to give a copy of the note or memorandum of the moneylenders’ contract to the borrower; (b) imposed compound interest; (c) failed to produce the statement of account when the plaintiff commenced this suit; (d) imposed interest on the loan sum at the rate of 16% pa, which was presumed to be excessive; and (e) imposed costs, charges and other expenses. The plaintiff contention was that it was not bound by the provisions of the Act by virtue of exemption given by the Ministry of Housing and Local Government pursuant to s 2A(2) of the Act wherein the Minister had gazetted an exemption effective from 29 August 1997 until 28 August 2001.<br />
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Holdings<br />
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Held, dismissing the plaintiff’s application:<br />
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(1) The loan agreement between the plaintiff and the borrower was dated 27 February 1995. Since the plaintiff did not rebut the averment that the plaintiff was not given an exemption under s 2A(2) of the Act at the time when the loan agreement was executed, this must be taken as an admission on the part of the plaintiff. Therefore, the provisions of the Act were applicable in adjudicating the instant application for an order for sale (see p 94D–F); Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 followed. <br />
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(2) By virtue of s 21(1) of the Act, where proceedings were taken in any court by a moneylender for the recovery of any money lent, the moneylender was required to produce a statement of his account under s 19 of the Act. Non-compliance with this statutory requirement was an irregularity which the court would be reluctant to waive (see p 96E–F); Arjan Singh, Son of Inder Singh v Hashim Angullia & Ors [1941] MLJ 55 followed.<br />
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(3) In the instant case, the plaintiff’s failure to comply with the provisions of the Act constituted ‘cause to the contrary’ within the meaning of s 256(3) of the NLC to warrant a dismissal of the plaintiff’s application for an order for sale (see pp 96I–97A); Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77 followed.<br />
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Bahasa Malaysia summary<br />
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Ini merupakan permohonan plaintif untuk satu perintah jualan berhubung sebidang tanah yang dipegang di bawah HS(D) 83488, No PT 43, Mukim of Kuala Lumpur, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan (‘tanah tersebut’). Defendan telah menggadaikan hartanah tersebut kepada plaintiff, seorang pemberi pinjam wang yang berlesen, sebagai jaminan untuk satu pinjaman yang diberikan kepada peminjam pihak ketiga. Tujuan pinjaman tersebut adalah untuk membolehkan peminjam membeli saham. Adalah pendirian defendan bahawa perintah jualan tersebut sepatutnya ditolak kerana plaintif gagal untuk mematuhi Akta Pemberipinjam Wang 1951 (‘Akta tersebut’) dan ini membentuk kausa yang bertentangan menurut s 256(3) Kanun Tanah Negara 1965 (‘KTN’). Bertentangan dengan peruntukan Akta tersebut, plaintif telah: (a) gagal untuk memberikan sesalinan nota atau memorandum kontrak pemberi pinjam wang kepada peminjam; (b) mengenakan faedah kompaun; (c) gagal untuk mengemukakan penyata akaun apabila plaintif memulakan guaman ini; (d) mengenakan faedah ke atas jumlah pinjaman pada kadar 16% setahun, yang dianggap keterlaluan; dan (e) mengenakan kos, caj dan perbelanjaan lain. Pendapat plaintif adalah bahawa ia tidak terikat oleh peruntukan-peruntukan Akta tersebut mengikut pengecualian yang diberikan oleh Kementerian Perumahan dan Kerajaan Tempatan menurut s 2A(2) Akta tersebut di mana Menteri telah mewartakan satu pengecualian yang berkuatkuasa daripada 29 Ogos 1997 sehingga 28 Ogos 2001.<br />
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Bahasa Holdings<br />
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Diputuskan, menolak permohonan plaintif:<br />
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(1) Perjanjian pinjaman antara plaintif dan peminjam bertarikh 27 Februari 1995. Memandangkan plaintif tidak mematahkan penegasan bahawa plaintif tidak diberikan satu pengecualian di bawah s 2A(2) Akta tersebut pada masa perjanjian pinjaman itu disempurnakan, maka haruslah ianya dianggap sebagai satu pengakuan di pihak plaintif. Oleh itu, peruntukan-peruntukan Akta tersebut terpakai dalam mengadili permohonan semasa untuk satu perintah jualan (lihat ms 94D–F); Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 diikut.<br />
<br />
(2) Menurut s 21(1) Akta tersebut, di mana prosiding-prosiding diambil dalam mana-mana mahkamah oleh seorang pemberi pinjam wang untuk pengembalian semula apa-apa wang yang telah dipinjamkan, pemberi pinjam wang tersebut dikehendaki mengemukakan satu pernyataan akaun beliau di bawah s 19 Akta tersebut. Ketidakpatuhan dengan keperluan statutori ini merupakan satu luar aturan yang mahkamah enggan untuk mengenepikannya (lihat ms 96E–F); Arjan Singh, Son of Inder Singh v Hashim Angullia & Ors [1941] MLJ 55 diikut.<br />
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(3) Dalam kes semasa, kegagalan plaintif untuk mematuhi peruntukan-peruntukan Akta tersebut membentuk ‘cause to the contrary’ dalam maksud s 256(3) KTN untuk mewarankan satu penepian permohonan plaintif untuk satu perintah jualan (lihat ms 96I–97A); Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77 diikut.] <br />
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Notes<br />
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For cases on security for loan, see 10 Mallal’s Digest (4th Ed, 1999 Reissue) paras 426–435.<br />
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For cases on statement of accounts, see 10 Mallal’s Digest (4th Ed, 1999 Reissue) paras 414–421.<br />
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Cases referred to<br />
<br />
Arjan Singh, Son of Inder Singh v Hashim Angullia & Ors [1941] MLJ 55 (folld)<br />
<br />
Gulwant Singh v Amar Kaur [1968] 1 MLJ 107 (refd)<br />
<br />
Kartar Singh v Mahinder Singh [1959] MLJ 248 (refd)<br />
<br />
Karuthan Chettiar v Parameswara Iyer [1966] 2 MLJ 151 (refd)<br />
<br />
Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77 (folld)<br />
<br />
Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 (folld)<br />
<br />
Ramasamy Chettiar v Wong Poh Fatt [1960] MLJ 43 (refd)<br />
<br />
Subchent Kaur v Chai Sau Kian [1958] MLJ 32 (refd)<br />
<br />
Teja Singh v Rattan Singh [1961] MLJ 39 (refd)<br />
<br />
Legislation referred to<br />
<br />
Moneylenders Act 1951 ss 2A(2), 16, 17, 19, 21(1), 22, 23<br />
<br />
National Land Code 1965 s 256(3)<br />
<br />
Lawyers<br />
<br />
Caroline Jim (Paul Chong & Nathan) for the plaintiff.<br />
<br />
Ranjan Chandran (Ranjan Chitravathy & Co) for the defendant.<br />
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Judgement - Abdul Malik Ishak J<br />
<br />
Abdul Malik Ishak J : <br />
<br />
Introduction<br />
<br />
By way of an originating summons in encl 1, the plaintiff sought to obtain a foreclosure order as against a property held under HS(D) 83488, No PT 43, Mukim of Kuala Lumpur, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan and the plaintiff too sought to have that property to be sold by way of a public auction. That property belongs to the defendant who is the registered proprietor and that property was charged by the defendant as security for the plaintiff who had executed a loan agreement dated 27 February 1995 with a borrower by the name of Tow Kong Liang (see the loan agreement marked as exh ‘LCC 1’ of encl 6). The loan sum was in the region of RM7.5m and it was to enable the borrower to buy shares in a company known as Austral Amalgamated Berhad. It was the borrower who had requested the defendant to furnish a charge in favor of the plaintiff as security for the loan that was borrowed. The charge was dated 20 April 1998 and it was exhibited as exh ‘LCC 3’ of encl 6.<br />
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Cause to the contrary<br />
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It was the stand of the defendant that the order for sale should be refused since there was cause to the contrary pursuant to s 256(3) of the National Land Code 1965. It was said that the cause to the contrary hinged on the fact that the plaintiff had failed to comply with the Moneylenders Act 1951 (‘the Act’).<br />
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The loan agreement shows that the plaintiff is a licensed money lender and that being the case, it is a correct proposition of the law to say that the plaintiff is bound by the various provisions of the Act. It would not be out of place to categorically state the following state of affairs:<br />
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(1) that by virtue of s 16 of the Act, the plaintiff had not given a copy of the note or memorandum of the moneylenders’ contract to the borrower:<br />
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(2) that contrary to s 17 of the Act, the plaintiff had imposed compound interest in the loan agreement with the borrower;<br />
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(3) that in contravention of s 21 of the Act, the plaintiff had failed to produce the accounts as prescribed under s 19 when the plaintiff commenced this suit;<br />
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(4) that contrary to s 22 of the Act, the plaintiff had imposed interest on the loan sum at the rate of 16%pa since any interest above 12%pa must be presumed to be excessive; and<br />
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(5) that the plaintiff had contravened s 23 of the Act by imposing costs, charges and other expenses.<br />
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<br />
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But the plaintiff took the opposite stand and argued that they were not bound by the provisions of the Act. The plaintiff relied vigorously on the exemptions given by the Ministry of Housing and Local Government pursuant to s 2A(2) of the Act where the Minister had gazetted an exemption effective from 29 August 1997 until 28 August 2000 (see the averment at para 10 of encl 4) and that exemption was extended until 28 August 2001 (see the exhibit marked as ‘LCC 13’ of encl 10). That exemption was confined to credit leasing and share financing and, in the context of the present case, even though the money was borrowed to purchase the shares from Austral Amalgamated Berhad yet the plaintiff argued that the rigors of the Act did not apply.<br />
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Was it really true that the exemptions that were put into motion by the Minister on 29 August 1997 and extended until 28 August 2001 would exclude the application of the Act to the benefit of the plaintiff? For this exercise, the facts must, once again, be sieved through. It must be recalled that the loan agreement as reflected in exhibit marked as ‘LCC 1’ of encl 6 described the plaintiff as a moneylender. That loan agreement was dated 27 February 1995 and this must be read with the charge as seen in exhibit marked as ‘LCC 3’ of encl 6 because s 1.3 of the Annexure to the charge employed the words ‘memorandum of loan agreement’. The charge was dated 20 April 1998 and this must be read with the averment at para 9 of encl 4 which was worded in this way:<br />
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Between the period of 27 February 1995 to 29 August 1997, the plaintiff did not have any exemption under s 2A(2) of the Moneylenders Act 1951.<br />
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This averment received no response by way of an affidavit from the plaintiff and in fact Miss Caroline Jim, the learned counsel for the plaintiff, conceded that there was no rebuttal of this averment in the plaintiff’s affidavit. That being the case, and on the authority of Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281, it was an admission on the part of the plaintiff that when the loan agreement was signed on 27 February 1995, the Minister had yet to issue the exemption and so the irresistible inference was that the Act must apply to the facts of the case. There were no two ways about it. It was therefore part and parcel of my judgment that the Act should apply when adjudicating the originating summons in encl 1. When the rigors of the Act are brought to bear upon the plaintiff, the following line of authorities would surface.<br />
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In Kartar Singh v Mahinder Singh [1959] MLJ 248, Good J had this to say of the Act (at p 248):<br />
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I have come to the conclusion that I need only deal with one of the points raised by the appellant, which is contained in paragraph 5 of the Memorandum of Appeal. Section 16(1) of the Moneylenders Ordinance requires the delivery to the borrower of a copy of the memorandum authenticated by the lender or his agent. Authentication requires not merely that a signed copy of the memorandum should be delivered to the borrower but that the lender should endorse upon it something in the nature of a certificate confirming that what the borrower receives is a copy of the original memorandum. In expressing this opinion, I am following the opinion of McElwaine CJ, in Ang Khye Pang v Chop Ban Aik [1939] MLJ 282, at p 285. The decision in that case did not turn upon the form of the authentication but upon the fact that it was not signed by the lender. The dictum of McElwaine CJ, is therefore obiter but I am respectfully in agreement with it. There is no prescribed form of authentication, and it will therefore be for the court to say in the particular circumstances of a case of this kind coming before it whether or not the form of authentication adopted in that particular case is sufficient.<br />
<br />
The onus is upon the plaintiff to prove that the requirements of the Ordinance have been complied with, and there is no evidence of authentication by the respondent in this appeal of the copy of the memorandum delivered to the appellant. In this connection, he says: ‘A memorandum was prepared as required by law (exh P1) … I gave him a copy of it …. The defendant acknowledged receipt of the copy of the memorandum by putting his signature on the memorandum …. One copy of the memorandum was given to the defendant.’ It is not necessary that a copy of the form of authentication on the copy of the memorandum should be placed on the memorandum itself, but there must be evidence that the separate and additional act of authentication was done by the lender in relation to the copy of the memorandum. In the absence of any such evidence the respondent was precluded from enforcing the contract. In Ang Khye Pang’s case, Terrell JA said: ‘In the case before the court, no authentication has been signed by the lender and accordingly the contract is not enforceable.’ And Poyser CJ (FMS) in a concurring judgment said:<br />
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‘The authentication clause of “B1” was not signed by the lender, nor was there anything on the document in the nature of an authentication by the lender. The lender only signed “B1” at the foot of the copy of the promissory note. The trial judge held that as “B1”.<br />
<br />
Contained an exact copy of the contract and bore on its face the signature of both plaintiff and defendant, it was a substantial and adequate compliance with the requirements of s 4, so far as authentication was concerned.’<br />
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I do not agree; the provisions of the Moneylenders Ordinance must be strictly complied with. There are a number of authorities, both English and local, to this effect, and in this case such provisions were not strictly complied with.<br />
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On that ground alone the learned President ought to have dismissed the suit. It is as McElwaine CJ, said in Ang Khye Pang’s case a ‘most immeritorious ground’, and in this appeal, I entertain the same regret which was expressed by Poyser CJ (FMS) in that case at having to allow the appeal. On the learned President’s findings of fact the merits are all with the moneylender but moneylenders must learn the importance of strict compliance with the technical requirements of the Ordinance if they wish to recover their money. The appeal is allowed with costs to the appellant both here and in the court below.<br />
<br />
<br />
<br />
In Subchent Kaur v Chai Sau Kian [1958] MLJ 32, at p 34 where Smith J had this to say:<br />
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Since no note or memorandum of the moneylender’s contract was given to the respondent, the contract for repayment of the money lent and the security given by the borrower to the applicant are by virtue of the said s 16(1) unenforceable and the respondent is entitled to a declaration.<br />
<br />
I do, therefore, order that the application for an order that the land be sold at public auction be dismissed and do declare that the contract for repayment by the respondent of the principal and interest purported to be secured by a memorandum of charge (dated 31st day of August 1952, and made between the respondent of the one part and the applicant of the other part and registered as Negri Sembilan Presentation No 95101) and the charge over the land described in the said memorandum of charge are unenforceable.<br />
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In Teja Singh v Rattan Singh [1961] MLJ 39, Thomson CJ, delivering an oral judgment aptly said (at p 39):<br />
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For myself I do not consider it necessary to examine the grounds of appeal in detail. The law in this country is perfectly well-settled and has been settled since as long ago as 1941. It is no case of a moneylender being taken by surprise by a new technical defence. The law has been well known to the moneylending community since 1941 and was discussed as recently as 1956 in the case of Ramasamy Chettiar v Wong Poh Fatt [1960] MLJ 43 where Pretheroe J, after referring to the decision of Terrell J, in the earlier case of Arjan Singh v Hashim Angullia & Ors [1941] MLJ 55 held (I am reading from the headnote):<br />
<br />
‘When a moneylender embarks on any proceedings in any court, a statement of his account as prescribed by s 21(1) of the Moneylenders Ordinance 1951, must be produced at the time the Originating Summons was filed. Non-compliance with this statutory requirement is an irregularity which the court cannot waive and will entitle the respondent to have the Originating Summons dismissed with costs.’<br />
<br />
<br />
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It is beyond doubt that this case falls clearly within these words. The account was not produced when the Originating Summons was issued and that was fatal to any subsequent proceedings on that summons. In the circumstances I am disposed to go no further than to say that the appeal should be dismissed on that ground with costs. The deposit in court should be paid out to the respondent against his taxed costs.<br />
<br />
<br />
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It is germane to mention that under s 21(1) of the Act, the requirement would be that where proceedings are taken in any court by a moneylender for the recovery of any money lent, that moneylender shall produce a statement of his account under s 19 of the Act. Non-compliance with this statutory requirement is an irregularity which the court will be reluctant to waive and will entitle the borrower defendant to have the action dismissed with costs (Arjan Singh, Son of Inder Singh v Hashim Angullia & Ors [1941] MLJ 55; Ramasamy Chettiar v Wong Poh Fatt [1960] MLJ 43; and Teja Singh v Rattan Singh). It is ideal to mention that when the statement of account is annexed it becomes part and parcel of the statement of claim and it becomes immaterial if it was not signed (Gulwant Singh v Amar Kaur [1968] 1 MLJ 107). Incidentally, it is also thought provoking to read the case of Karuthan Chettiar v Parameswara Iyer [1966] 2 MLJ 151.<br />
<br />
Another principle of law worth mentioning is this. That it is for the moneylender to justify by an affidavit of facts the rate of interest charged and the moneylender is also under the duty to affirm an affidavit showing that his claim is not harsh and unconscionable or substantially unfair.<br />
<br />
That would be the ramifications of being a moneylender.<br />
<br />
Conclusion<br />
<br />
I was satisfied that the application of the Act to the facts of the present case constituted ‘cause to the contrary’ within the meaning of s 256(3) of the National Land Code 1965 and this would fall under the third category as set out by the Federal Court in Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77.<br />
<br />
Since there was no compliance with the provisions of the Act, the plaintiffs originating summons in encl 1 was destined to fail. Without hesitation, I dismissed encl 1 with costs.<br />
<br />
<br />
<br />
Plaintiff’s application dismissed.<br />
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Reported by Lim Lee NaRaghmanhttp://www.blogger.com/profile/02146206323501064970noreply@blogger.com0