ABDUL KARIM BIN KULA vs PP (2009 b18) Rahman Sebli, 25th November 2009,SS-Corruption,Criminal Procedure
[K42-09-2009]
1
5 MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT
KOTA KINABALU
CRIMINAL APPEAL NO. K42-09 OF 2009
10 ABDUL KARIM BIN KULA
V
PUBLIC PROSECUTOR
GROUNDS OF JUDGMENT
15
Factual Background
The appellant was charged in the Sessions Court at Kota Kinabalu
with 10 offences under section 11(c) of the Anti Corruption Act, 1997
(“the Act”) and was found guilty on each count after a full trial. He
20 was sentenced to a total concurrent term of 5 years imprisonment
and a total fine of RM429,000.00 in default 3 years imprisonment.
Section 11(c) of the Act under which the appellant was convicted
provides as follows:
“If-
25 (c) any person knowingly gives to an agent, or if an agent knowingly
uses with intent to deceive his principal, any receipt, account or other document
in respect of which the principal is interested, and which contains any statement
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which is false or erroneous or defective in any material particular, and which to
his knowledge is intended to mislead the principal,
he shall be guilty 30 of an offence.”
The documents which formed the basis of the charges were 10
Local Purchase Orders (“LPOs”) and 10 invoices involving a total
claim of RM92,000.00. These LPOs and invoices related to orders
made by the Beaufort Education Office to the suppliers for the
35 supply of goods and services at the costs stated in the LPOs. The
appellant was head of the Beaufort Education Office at the material
time. The prosecution case is that these LPOs and invoices
contained false material particulars to the knowledge of the
appellant and that he had used them with intent to mislead the
40 principal. After a very careful evaluation of the entire prosecution
evidence the learned trial judge found that the prosecution had
established a prima facie case against the appellant.
Before this court the decision is attacked on three fronts, in the
following order:
45 1. The learned trial judge misdirected herself in holding that the
dates in the charges do not constitute an essential ingredient
of the offences charged.
2. The learned trial judge misdirected herself in holding that
PW52 had not exceeded the role of a witness for him to be
50 protected under section 44(1)(a) of the Act.
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3. The learned trial judge was wrong in accepting wholesale the
evidence of PW6 and PW52.
The dates in the charges
It is the prosecution case that the offences were committed on the
dates written on the LPOs. However none of the witnesses 55 called by
the prosecution testified that it was the appellant who wrote the
dates. The prosecution evidence merely shows that the LPOs were
signed in 2004. The appellant’s contention is that since the
prosecution failed to prove that the appellant signed the LPOs on
60 the dates written on the LPOs the prosecution failed to prove that
the offences were committed on the dates specified in the charges.
The learned trial judge disagreed. In her opinion the failure to prove
the dates in the LPOs was not fatal to the prosecution case and had
not raised any reasonable doubt in her mind as to the case for the
65 prosecution. This is how she dealt with the issue:
“The issue that arose was whether the prosecution’s failure to prove the
commission of the offences on those dates had raised a reasonable doubt in
the case for the prosecution. The answer to this, in my opinion, turns on
whether the dates stated in the charges are an essential element of the alleged
70 offences. It has been consistently the decision of the courts in this country that
the date of offence is of no importance unless it is an essential part of the
alleged offence.”
It is obvious that the learned trial judge was echoing what
Thompson LP said in Law Kiat Liang v PP [1966] 1 MLJ 215, as
75 follows:
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“With regard to the first of these charges, the dates are wrong and the charge
was at no time amended. This in itself, however, is without importance. As was
observed by Atkin J. in the case of Severo Dossi (1918), 13 Cr. App R. 158,
159:-
‘From time immemorial a date specified in an indictment 80 has never been
a material matter unless it is actually an essential part of the alleged offence.’”
Learned counsel for the appellant submitted that the learned trial
judge was wrong in applying Law Kiat Liang as that case had been
overruled by the Federal Court in Dato’ Seri Anwar Ibrahim v PP &
85 Another Appeal [2004] 3 CLJ 737. Dato’ Seri Anwar Ibrahim must be
considered in its proper context and having regard to the factual
matrix of that case. The issue in Dato’ Seri Anwar Ibrahim was not
whether the date was an essential element of the offence but
whether the date of the offence had been proved. As a matter of fact
90 the date in that case was specified in the charge as required by
section 153(1) of the Criminal Procedure Code (“the Code”). In my
view the proper context of Dato’ Seri Anwar Ibrahim in relation to the
issue of date is reflected in the following passage of the judgment
(at page 781):
95 “In the instant appeals we are dealing with the question whether, the offences
not having been proved to have been committed on another date, it must be
proved to have been committed on the date stated in the charges. Section
153(1) of the Criminal Procedure Code clearly states that “The charge shall
contain such particulars as to the time …” Since it is mandatory to state the
100 “time” (ie, date or period) when an offence is alleged to have been committed,
clearly it is a “material matter” and an “essential part of the alleged offence”, to
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use the words of Atkin J in the exception excepted by him, even if that case is
applied. If the law provides that the charge shall state the particulars as to the
“time”, it follows that such particulars must be proved.
In any event, reading the judgment of the High Court, even 105 though the learned
judge did not mention the date of the offence when he listed the ingredients to
be proved (see [2001] 3 CLJ 313 at p. 396), it is clear from his judgment that
when he found that the charges had been proved, he meant the date as well.
So, there is really no issue whether the date of the alleged offences as stated in
110 the charges have to be proved. The issue is whether it is proved.”
(emphasis added)
Clearly by virtue of section 153(1) of the Code it is mandatory to
state the time of the alleged offence. Even without section 153(1) of
the Code fairness demands that the time of the offence must be
115 stated in the charge. This is to give the accused every opportunity to
effectively meet the prosecution case. The accused must not be
placed in an unenviable position of not knowing when the offence he
is accused of committing actually took place. This is particularly
important where he is putting up the defence of alibi. This does not
120 mean however that the charge must specify the exact date and the
exact time of the offence. So long as the time specified gives the
accused sufficient notice of the period he is alleged to have
committed the offence the requirement of section 153(1) of the Code
is satisfied.
125 Like Dato’ Seri Anwar Ibrahim, the issue in the present appeal is not
whether the dates are an essential element of the offences but
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whether the dates had been proved. The Federal Court in Dato’ Seri
Anwar Ibrahim overturned the conviction because the High Court
was found to be wrong in finding that the offence was committed on
the date specified in the charge. The Court came 130 to this conclusion
after finding the complainant’s evidence, particularly on the date of
the offence to be doubtful. Clearly therefore the acquittal of Dato’
Seri Anwar Ibrahim was due to lack of evidence and not due to any
misdirection by the trial court on any essential element of the
135 offence.
Be that as it may, in the face of Dato’ Seri Anwar Ibrahim I am
constrained to agree with learned counsel that the learned trial
judge was wrong in holding that the dates of the offences were not
an essential ingredient of the offences charged. The question is
140 whether the misdirection renders the judgment fundamentally
flawed. It is not every misdirection that warrants appellate
intervention. It is only when the misdirection has occasioned a
miscarriage of justice that the appellate court will interfere. If an
innocent man is convicted or a guilty one acquitted, that will
145 constitute miscarriage of justice. Whether a miscarriage of justice
has occurred depends on the facts of each individual case.
The fact that the learned trial judge in the instant case misdirected
herself on the question of date does not, by that fact alone,
necessarily mean that a miscarriage of justice had occurred and that
150 the convictions must, as night follows day, be quashed. It is the duty
of the court to consider whether the convictions are supported by
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the evidence. If upon a proper consideration of the evidence the
convictions are found to be correct, the misdirection will be of no
consequence. In the final analysis it is the evidence that matters.
At the heart of counsel’s argument is his contention 155 that the
prosecution had not produced any evidence to show when the
appellant signed the LPOs. Presumably what learned counsel is
talking about is direct evidence, in which case he is right because
none of the witnesses called by the prosecution testified that they
160 actually saw the appellant writing down the dates when he signed
the LPOs. But evidence need not be direct. Indirect or circumstantial
evidence is also evidence upon which a particular fact may be
proved. Of course if the prosecution is relying on indirect or
circumstantial evidence, proof of that fact will depend entirely on
165 inferences to be drawn from the established facts. The principle on
the drawing of inferences in a criminal case is clear. In Liew Kaling v
PP [1960] MLJ 306 the Court of Appeal laid down the rule that
before an inference can be regarded as a valid one it must comply
with two conditions:
170 (i) it must account for all the known facts; and
(ii) it must be the only reasonable inference which will
account for all these facts.
Where there is more than one inference that can reasonably be
drawn from a set of facts, the inference most favourable to the
175 accused must be adopted: see Tai Chai Keh v PP [1948-49] MLJ
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Supp 105 per Spencer Wilkinson J. If at the close of the prosecution
case two or more inferences may be drawn from the prosecution
evidence then the inference most favourable to the accused must be
drawn: see Looi Kow Chai & Anor v PP [2003] 1 CLJ 734.
Whether the evidence is direct or circumstantial 180 the quantum of
proof is the same, i.e. proof beyond reasonable doubt, not proof
beyond the shadow of a doubt. The law does not impose a higher
burden of proof where the prosecution is relying on circumstantial
evidence instead of direct evidence. In the context of the present
185 case what the court has to consider is whether the sum total of the
evidence points to the fact that the offences were committed on the
dates specified in the charges. For this purpose it is necessary to
consider whether the dates on the LPOs were written by the
appellant when he signed them. This is basically a question of fact.
190 In this regard the trial court’s findings on certain issues of fact are
important in determining whether an inference can be drawn that the
offences were committed on the dates specified in the charges. The
learned trial judge’s findings are expressed in the following terms (at
page 63 of the Grounds of Decision):
195 “Even though there was no evidence as to who wrote the dates against the
signatures of the accused in the LPOs, the incontrovertible fact was that the
accused had signed all the LPOs in 2004 during his tenure as head of
Divisional Education Office Beaufort. The evidence adduced showed that when
the accused signed the LPOs and certified the invoices (except P.31), he knew
200 that the material particulars therein were false. This knowledge is the essential
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ingredient of the offences charged and not the dates of signing. The knowledge
of the accused was proved through the combined testimonies of PW6, PW52 as
well as PW7 which cumulatively showed that the source of the falsity was none
other than the accused himself. The evidence showed the accused from the
start providing false particulars to PW52, instructing PW6 to 205 prepare the LPOs
based on the invoices that the accused knew to contain false particulars,
authorizing the issuance of the LPOs and letting the documents go until their
submission to the Accountant General’s office to process payment. The
evidence incontrovertibly point to the year 2004 as the period in which all these
210 occurred. More so, the evidence adduced showed that at the time the accused
instructed for the invoices to be prepared and at the time of signing the LPOs
and letting go of them, he had knowledge of the falsity of the material
particulars. That and not the signing of the LPOs or invoices was the essential
part of the charges.”
215 On the evidence before her the learned trial judge was perfectly
entitled to arrive at those findings of fact, which effectively means
that the appellant is guilty of the offences charged. I would go so far
as to say that the evidence against the appellant is overwhelming.
These findings of fact stand on their own and as such survive the
220 trial judge’s misdirection on the issue of date. The principles on
appellate interference with findings of fact by the trial court are well
settled. It is only where the trial court has failed to sufficiently and
judicially appreciate the evidence that the appellate court will
interfere. In this case the learned trial judge had properly and
225 adequately considered the evidence before arriving at those
conclusions. I find no reason to interfere with her findings.
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The only consequence of her misdirection is that the learned trial
judge did not proceed to consider whether the dates on the LPOs
were written by the appellant and if so when. She merely concluded
that the LPOs were signed in 2004 after finding 230 that there is no
evidence to show who wrote the dates. This of course leaves open
the question as to the time the appellant certified the offending
documents. This court sitting in an appellate jurisdiction is not
precluded from considering the evidence afresh and to decide
235 whether, on the evidence available, the offences were committed on
the dates specified in the charges. To recapitulate, the proved facts
are as follows:
(1) It was the appellant who signed every single one of the LPOs.
(2) It was the appellant who instructed PW52 to submit the false
240 invoices (based on which the LPOs were prepared).
(3) The appellant knew that the invoices contained false material
particulars.
(4) It was the appellant who instructed PW6 to prepare the LPOs.
(5) The appellant knew that the particulars in the LPOs were false
245 in material particulars.
(6) The appellant’s intention in using the LPOs was to deceive the
principal.
What is the cumulative effect of these proved facts? In my view the
irresistible and only reasonable inference that can be drawn is that
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the dates on the LPOs were written by the appellant 250 himself after he
signed them. It cannot be a coincidence that all the dates were
written against his signatures. It will be a very long shot in the
circumstances to suggest that the dates were written by someone
else and on dates other than the dates appearing on the LPOs. In
255 the ordinary course of government business, an official document
will be dated immediately after it is signed, if it is not already dated.
This is common knowledge and needs no proof. The appellant is not
a country bumpkin, unused to government procedures. He was
head of the Beaufort Education Office at the material time and was
260 acting in that capacity when he signed the LPOs. It is highly unlikely
that he would sign such important official documents without dating
them. Farther still is the likelihood that the dates were written by his
subordinates without his instruction. The evidence shows that the
appellant had total authority over the issuance of LPOs. To borrow
265 the words of Lord Denning in Miller v Minister of Pensions [1947] All
ER 372 “of course it is possible, but not in the least probable.”
Section 44(1)(a) of the Act
It was submitted that the learned trial judge misdirected herself
when she said that PW52 was protected by section 44(1)(a) of the
270 Act. It was contended that PW52 had gone beyond concurrence,
because after concurring with the appellant’s request to submit the
false invoices he proceeded to submit the invoices which ultimately
led to the completion of the offence. In other words without the
complicity of PW52 the crime would never have been perpetrated.
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There seems to be a misunderstanding on the proper 275 application of
section 44(1)(a) of the Act. At page 37 of the judgment the learned
trial judge made the following remark:
“The short of it is that under section 44(1) no witness shall be regarded as an
accomplice by reason of having been involved or in any manner concerned in
280 the commission of the offence or having knowledge of the commission of the
offence.”
Section 44(1)(a) of the Act provides as follows:
“44(1) Notwithstanding any written law or rule of law to the contrary, in any
proceedings against any person for an offence under this Act –
285 (a) no witness shall be regarded as an accomplice by reason only of
such witness having –
(i) accepted, received, obtained, solicited, agreed to accept
or receive, or attempted to obtain any gratification from any
person;
290 (ii) given, promised, offered or agreed to give any gratification;
or
(iii) been in any manner concerned in the commission of such
offence or having knowledge of the commission of the
offence;”
295 This provision modifies the rule on accomplice evidence. It does
away with the need for corroboration. It must be noted however that
the provision only refers to acts in relation to “any gratification”. The
word “gratification” here must mean “gratification” as defined in
section 2 of the Act. As such the provision does not apply across the
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board and has no application to offences which 300 do not involve any
gratification such as the offence under section 11(c) of the Act in
respect of which the appellant was charged. The gravaman of the
offence under section 11(c) of the Act is the intent to deceive the
principal, which has no relation to any of the acts referred to in
305 section 44(1)(a) of the Act. The learned trial judge was therefore
wrong in invoking section 44(1)(a) of the Act in relation to the
evidence of PW52.
If PW52 is not covered by section 44(1)(a) of the Act, is he an
accomplice whose evidence requires corroboration? Is he a
310 particeps criminis in the offences committed by the appellant? PW52
is Yassin bin Nasah who is a businessman and owner of 3
companies whose business at all material times came mostly from
government departments including the Education Department and in
particular the Beaufort Education Office. It is an undisputed fact that
315 when the appellant took over as head of the Beaufort Education
Office in 2003, the department was owing PW52 a substantial sum
of money for goods supplied and services rendered by his
companies. In fact he had not been getting full payments from the
department since 2000. Initially the appellant told PW52 that the
320 department had no money to pay him, but several weeks later he
asked PW52 to submit claims for the price of works and services
that had purportedly been rendered. As instructed by the appellant
PW52 submitted his claims through the invoices which contained
the false particulars.
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PW52 candidly admitted that neither he nor the companies 325 stated in
the invoices had rendered any of the services stated in the invoices.
It was on the strength of these invoices that the offending LPOs
were prepared. On the evidence there can be no doubt that PW52
was an accomplice. He knew that the particulars in the invoices
330 were false, yet he submitted them to the Beaufort Education Office
for the purpose of making his claims. He had therefore colluded with
the appellant in committing the offences. It was due to his
connivance that the offences were committed. He was clearly
involved in the criminal design to mislead the principal and this
335 amounts to infamous conduct. That makes him a category one
accomplice. The learned trial judge herself found PW52 to be an
accomplice in the ordinary sense but went on to say:
“Even so, he would be the very kind of witness intended to be covered by
section 44(1)(a) of the Anti-Corruption Act 1997 that is not to be regarded as an
340 accomplice because of his involvement.”
This as stated earlier in this judgment is a misdirection. The
question again is whether the misdirection has occasioned a
miscarriage of justice. In my view it has not because although the
learned trial judge was wrong in finding that PW52 was not an
345 accomplice, she was right in finding that the evidence of PW52 was
sufficiently corroborated by the evidence of other prosecution
witnesses. This is borne out by her reasons at pages 38-40 of the
judgment. As for her impression of PW52 as a witness this is how
she described him:
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“As to his credibility and the veracity of his evidence, I would say 350 that he did not
display any animosity of any kind towards the accused either in demeanour or
in evidence. He came across as forthright and did not attempt to hide his
dealings with the accused.”
Demeanour alone is of course not the touchstone of truth because a
355 convincing witness may be an accomplished liar: per Edgar Joseph
Jr. J (as he then was) in Yeap Peng Hin v PP [1991] 4 CLJ (Rep)
285. But the learned trial judge in the instant case did not rely on
demeanour alone in considering whether the evidence of PW52 was
reliable. She had tested his evidence against all other relevant
360 evidence and considered the probabilities of the case. Having done
that she accepted PW52’s evidence that it was the appellant who
asked him to prepare the false invoices. In the circumstances the
learned trial judge’s handling of PW52’s evidence is not open to any
valid criticism.
365 Learned counsel also drew the court’s attention to section 114(b) of
the Evidence Act 1950 which provides that the court may presume
that an accomplice is unworthy of credit unless he is corroborated in
material particulars. This provision was the subject of an appeal in
PP v Haji Ismail & Anor [1940] 9 MLJ 76 where the Magistrate in
370 acquitting the accused who was charged under section 161 of the
Penal Code automatically applied the presumption. In ruling that the
learned Magistrate was in error Cussen J said at page 79:
“There is no question of the mechanical application of any general rule of
presumption. When it is a question of this particular presumption, the credibility
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of the witness who is in the position of an accomplice must 375 be individually
judged as any other witness, the same considerations being applied, with the
added one that he is an accomplice. The court must consider who and what he
is, his demeanour, hearing, the manner and quality and substance of his
evidence in itself and in relation to all the circumstances of the case. The
380 nature, quality and degree of his complicity must be examined. Then finally the
Court must form its opinion whether he is to be given credit and his evidence
accepted without corroboration or not.
He is a competent witness and as such is entitled to have his credibility judged
in itself; his evidence must be weighed and examined and not put aside
385 unjudged and unconsidered because he is an accomplice.”
It is therefore wrong to apply the presumption under section 114(b)
of the Evidence Act without giving due consideration to the evidence
of the accomplice. In any event, this court is bound by section 44(2)
of the Act which provides:
390 “(2) Notwithstanding any written law or rule of law to the contrary, a conviction
for any offence under this Act solely on the uncorroborated evidence of an
accomplice or agent provocateur shall not be illegal and no such conviction
shall be set aside merely because the court which tried the case has failed to
refer in the grounds of its judgment to the need to warn itself against the danger
395 of convicting on such evidence.”
The decision of the Federal Court in Tengku Mahmood v PP [1974]
1 LNS 176 and of the High Court in Ghazali bin Salleh & Anor v PP
[1993] 3 CLJ 638 relied upon by learned counsel must therefore be
considered in the light of this provision. The same goes with the
400 Federal Court decision in Dato’ Seri Anwar Ibrahim where the
offence charged does not involve any provision similar to
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subsections 44(1) and (2) of the Act. For the record that case
concerns a sexual offence for which corroboration as a rule of
prudence is ordinarily required.
The intention behind subsections 44(1) and (2) of 405 the Act is clear,
and that is to give the anti corruption authority sufficient clout to
combat corrupt practices involving willing partners in crime. The
court must give full effect to these provisions unless it can be shown
that the judgment is perverse or that a substantial miscarriage of
410 justice had occurred. To do otherwise would be to defeat the
intention of Parliament.
Wholesale acceptance of the evidence of PW52 and PW6
The appellant’s contention is that the learned trial judge was wrong
in accepting wholesale the evidence of PW52 and PW6, an
415 executive officer at the Beaufort Education Office. I have touched on
the evidence of PW52. As for PW6 the crucial part of his evidence is
that he prepared the LPOs on the instruction of the appellant.
According to him no LPO was to be prepared or issued unless
instructed by the appellant. He testified that the procedure after
420 preparation of the LPOs was that he would bring every single one of
them to the appellant for the appellant to sign at the specified
columns. He confirmed that the appellant signed all the LPOs in his
presence. The learned trial judge accepted his evidence and found
no reason to believe that he was involved in a criminal design to
425 make the false declarations in the LPOs. She rejected the defence
suggestion that PW6 had a grudge against the appellant for taking
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away his earlier active role of receiving invoices and preparing
LPOs.
Learned counsel pointed out that all the LPOs were dated earlier
than the invoices. This according to counsel casts 430 doubts on the
evidence of PW6 because the procedure as described by him was
that the LPOs would be prepared only after the invoices were
received. In my view this point is of no significance because when
the appellant signed the LPOs the false particulars in the invoices
435 were already written on the LPOs and he certified them to be
correct.
Is it wrong for the learned trial judge to accept wholesale the
evidence of PW52 and PW6? Speaking for myself I do not see why
the evidence of a witness should not be believed in its entirety if
440 otherwise the whole of his evidence is credible and reliable. In this
case the learned trial judge had seriously considered the
testimonies of both PW52 and PW6 and found their evidence to be
reliable. Having regard to the totality of the evidence and the
probabilities of the case I see no reason to disagree with her. In any
445 case it is for the learned trial judge who had the advantage of seeing
PW52 and PW6 giving evidence to decide whether they were
truthful witnesses or otherwise. The appellant’s complaint over the
trial judge’s acceptance of the evidence of PW52 and PW6 is
therefore without basis.
450
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Rejection of the defence case
The appellant’s complaint is that in rejecting the defence case the
learned trial judge failed to comply with section 182A(1) of the Code
in that she did not “re-evaluate” the prosecution evidence in deciding
whether the prosecution had proved its case 455 beyond reasonable
doubt. It was contended that there is a possibility the appellant
signed blank LPOs as claimed by him in his defence. With due
respect I do not think the duty imposed by section 182A(1) of the
Code is for the court to re-evaluate the prosecution evidence. What
460 the section requires is for the court to consider the entire evidence
and determine whether the evidence presented by the defence has
cast a reasonable doubt in the court’s mind as to the truth of the
prosecution case. This is actually a codification of the procedure laid
down by Suffian J (as he then was) in Mat v PP [1963] MLJ 263.
465 The need to re-evaluate the prosecution evidence does not arise
because at the end of the prosecution case the prosecution
evidence had been subjected to a maximum evaluation and the
witnesses found to be credible witnesses: PP v Ong Cheng Heong
[1998] 6 MLJ 678; PP v Dato’ Seri Anwar Ibrahim (No.3) [1999] 2
470 MLJ 1; Balachandran v PP [2005] 1 CLJ 85; PP v Mohd Radzi bin
Abu Bakar [2006] 1 CLJ 457.
The mainstay of the defence is that when the appellant signed the
offending LPOs they were all blank. Learned counsel submitted that
the learned trial judge was wrong in rejecting the appellant’s
475 explanation. I must say at the outset that there is no basis for this
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contention. In the first place this line of defence was only raised for
the first time when the appellant gave evidence and was never put
to any of the prosecution witnesses, in particular PW6 who testified
that the particulars in the LPOs were already filled in by him before
he presented them to the appellant for his signatures. 480 It would have
been wrong for the learned trial judge to accept this explanation as
being reasonable: see Re Pitchi Muthu [1970] 2 MLJ 143 where
Sharma J said:
“The learned president thought that the explanation given by the accused that
485 the money had slipped out of the book containing the driving licence was
reasonable in spite of the fact that not a word of it was suggested to either PW1
or PW2 .. The learned president had misdirected himself in ignoring and
overlooking the evidence of PW1 and PW2 and the total lack of any crossexamination
of these witnesses touching the defence which was subsequently
490 suggested for the first time only when the defence was called.”
The record of appeal shows that the learned trial judge had given
careful consideration to every material point raised by the defence
and had rejected them. She was satisfied that the appellant’s
explanation had failed to cast any reasonable doubt in her mind as
495 to the truth of the prosecution case. It follows therefore that the
appellant must be convicted of the offences charged.
Conclusion
For reasons stated above I am firmly of the view that the appellant
had been rightly convicted inspite of the learned trial judge’s
500 misdirections on the date of the offence and the applicability of
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section 44(1)(a) of the Act. The appeal against conviction was
accordingly dismissed. As for the appeal against sentence learned
counsel for the appellant did not say a word in support of the
petition. The appeal was therefore deemed to be abandoned and
was accordingly dismissed. In any event I am of 505 the view that the
sentence is appropriate, fitting to the circumstances of the crime and
is not manifestly excessive. The penalty for the offence is
imprisonment for a term of not less than 14 days and not more than
20 years and the offender is also be liable to be fined. The principles
510 are settled. Unless it can be shown that the sentencing judge had
erred in principle or had considered irrelevant factors or that the
sentence is manifestly excessive, it is not right to interfere with the
sentence passed by the lower court.
515
(DATO’ ABDUL RAHMAN SEBLI)
Judicial Commissioner
High Court Kota Kinabalu
Dated: 25th 520 November 2009.
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For the Appellant: Datuk Chau Chin Tang 525 of Messrs Chau
& Thien.
For the Public Prosecutor: Ahmad Sazilee bin Abdul Khairi, DPP
of the Malaysian Anti Corruption
530 Commission.
1
5 MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK AT
KOTA KINABALU
CRIMINAL APPEAL NO. K42-09 OF 2009
10 ABDUL KARIM BIN KULA
V
PUBLIC PROSECUTOR
GROUNDS OF JUDGMENT
15
Factual Background
The appellant was charged in the Sessions Court at Kota Kinabalu
with 10 offences under section 11(c) of the Anti Corruption Act, 1997
(“the Act”) and was found guilty on each count after a full trial. He
20 was sentenced to a total concurrent term of 5 years imprisonment
and a total fine of RM429,000.00 in default 3 years imprisonment.
Section 11(c) of the Act under which the appellant was convicted
provides as follows:
“If-
25 (c) any person knowingly gives to an agent, or if an agent knowingly
uses with intent to deceive his principal, any receipt, account or other document
in respect of which the principal is interested, and which contains any statement
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2
which is false or erroneous or defective in any material particular, and which to
his knowledge is intended to mislead the principal,
he shall be guilty 30 of an offence.”
The documents which formed the basis of the charges were 10
Local Purchase Orders (“LPOs”) and 10 invoices involving a total
claim of RM92,000.00. These LPOs and invoices related to orders
made by the Beaufort Education Office to the suppliers for the
35 supply of goods and services at the costs stated in the LPOs. The
appellant was head of the Beaufort Education Office at the material
time. The prosecution case is that these LPOs and invoices
contained false material particulars to the knowledge of the
appellant and that he had used them with intent to mislead the
40 principal. After a very careful evaluation of the entire prosecution
evidence the learned trial judge found that the prosecution had
established a prima facie case against the appellant.
Before this court the decision is attacked on three fronts, in the
following order:
45 1. The learned trial judge misdirected herself in holding that the
dates in the charges do not constitute an essential ingredient
of the offences charged.
2. The learned trial judge misdirected herself in holding that
PW52 had not exceeded the role of a witness for him to be
50 protected under section 44(1)(a) of the Act.
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3
3. The learned trial judge was wrong in accepting wholesale the
evidence of PW6 and PW52.
The dates in the charges
It is the prosecution case that the offences were committed on the
dates written on the LPOs. However none of the witnesses 55 called by
the prosecution testified that it was the appellant who wrote the
dates. The prosecution evidence merely shows that the LPOs were
signed in 2004. The appellant’s contention is that since the
prosecution failed to prove that the appellant signed the LPOs on
60 the dates written on the LPOs the prosecution failed to prove that
the offences were committed on the dates specified in the charges.
The learned trial judge disagreed. In her opinion the failure to prove
the dates in the LPOs was not fatal to the prosecution case and had
not raised any reasonable doubt in her mind as to the case for the
65 prosecution. This is how she dealt with the issue:
“The issue that arose was whether the prosecution’s failure to prove the
commission of the offences on those dates had raised a reasonable doubt in
the case for the prosecution. The answer to this, in my opinion, turns on
whether the dates stated in the charges are an essential element of the alleged
70 offences. It has been consistently the decision of the courts in this country that
the date of offence is of no importance unless it is an essential part of the
alleged offence.”
It is obvious that the learned trial judge was echoing what
Thompson LP said in Law Kiat Liang v PP [1966] 1 MLJ 215, as
75 follows:
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4
“With regard to the first of these charges, the dates are wrong and the charge
was at no time amended. This in itself, however, is without importance. As was
observed by Atkin J. in the case of Severo Dossi (1918), 13 Cr. App R. 158,
159:-
‘From time immemorial a date specified in an indictment 80 has never been
a material matter unless it is actually an essential part of the alleged offence.’”
Learned counsel for the appellant submitted that the learned trial
judge was wrong in applying Law Kiat Liang as that case had been
overruled by the Federal Court in Dato’ Seri Anwar Ibrahim v PP &
85 Another Appeal [2004] 3 CLJ 737. Dato’ Seri Anwar Ibrahim must be
considered in its proper context and having regard to the factual
matrix of that case. The issue in Dato’ Seri Anwar Ibrahim was not
whether the date was an essential element of the offence but
whether the date of the offence had been proved. As a matter of fact
90 the date in that case was specified in the charge as required by
section 153(1) of the Criminal Procedure Code (“the Code”). In my
view the proper context of Dato’ Seri Anwar Ibrahim in relation to the
issue of date is reflected in the following passage of the judgment
(at page 781):
95 “In the instant appeals we are dealing with the question whether, the offences
not having been proved to have been committed on another date, it must be
proved to have been committed on the date stated in the charges. Section
153(1) of the Criminal Procedure Code clearly states that “The charge shall
contain such particulars as to the time …” Since it is mandatory to state the
100 “time” (ie, date or period) when an offence is alleged to have been committed,
clearly it is a “material matter” and an “essential part of the alleged offence”, to
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5
use the words of Atkin J in the exception excepted by him, even if that case is
applied. If the law provides that the charge shall state the particulars as to the
“time”, it follows that such particulars must be proved.
In any event, reading the judgment of the High Court, even 105 though the learned
judge did not mention the date of the offence when he listed the ingredients to
be proved (see [2001] 3 CLJ 313 at p. 396), it is clear from his judgment that
when he found that the charges had been proved, he meant the date as well.
So, there is really no issue whether the date of the alleged offences as stated in
110 the charges have to be proved. The issue is whether it is proved.”
(emphasis added)
Clearly by virtue of section 153(1) of the Code it is mandatory to
state the time of the alleged offence. Even without section 153(1) of
the Code fairness demands that the time of the offence must be
115 stated in the charge. This is to give the accused every opportunity to
effectively meet the prosecution case. The accused must not be
placed in an unenviable position of not knowing when the offence he
is accused of committing actually took place. This is particularly
important where he is putting up the defence of alibi. This does not
120 mean however that the charge must specify the exact date and the
exact time of the offence. So long as the time specified gives the
accused sufficient notice of the period he is alleged to have
committed the offence the requirement of section 153(1) of the Code
is satisfied.
125 Like Dato’ Seri Anwar Ibrahim, the issue in the present appeal is not
whether the dates are an essential element of the offences but
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6
whether the dates had been proved. The Federal Court in Dato’ Seri
Anwar Ibrahim overturned the conviction because the High Court
was found to be wrong in finding that the offence was committed on
the date specified in the charge. The Court came 130 to this conclusion
after finding the complainant’s evidence, particularly on the date of
the offence to be doubtful. Clearly therefore the acquittal of Dato’
Seri Anwar Ibrahim was due to lack of evidence and not due to any
misdirection by the trial court on any essential element of the
135 offence.
Be that as it may, in the face of Dato’ Seri Anwar Ibrahim I am
constrained to agree with learned counsel that the learned trial
judge was wrong in holding that the dates of the offences were not
an essential ingredient of the offences charged. The question is
140 whether the misdirection renders the judgment fundamentally
flawed. It is not every misdirection that warrants appellate
intervention. It is only when the misdirection has occasioned a
miscarriage of justice that the appellate court will interfere. If an
innocent man is convicted or a guilty one acquitted, that will
145 constitute miscarriage of justice. Whether a miscarriage of justice
has occurred depends on the facts of each individual case.
The fact that the learned trial judge in the instant case misdirected
herself on the question of date does not, by that fact alone,
necessarily mean that a miscarriage of justice had occurred and that
150 the convictions must, as night follows day, be quashed. It is the duty
of the court to consider whether the convictions are supported by
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7
the evidence. If upon a proper consideration of the evidence the
convictions are found to be correct, the misdirection will be of no
consequence. In the final analysis it is the evidence that matters.
At the heart of counsel’s argument is his contention 155 that the
prosecution had not produced any evidence to show when the
appellant signed the LPOs. Presumably what learned counsel is
talking about is direct evidence, in which case he is right because
none of the witnesses called by the prosecution testified that they
160 actually saw the appellant writing down the dates when he signed
the LPOs. But evidence need not be direct. Indirect or circumstantial
evidence is also evidence upon which a particular fact may be
proved. Of course if the prosecution is relying on indirect or
circumstantial evidence, proof of that fact will depend entirely on
165 inferences to be drawn from the established facts. The principle on
the drawing of inferences in a criminal case is clear. In Liew Kaling v
PP [1960] MLJ 306 the Court of Appeal laid down the rule that
before an inference can be regarded as a valid one it must comply
with two conditions:
170 (i) it must account for all the known facts; and
(ii) it must be the only reasonable inference which will
account for all these facts.
Where there is more than one inference that can reasonably be
drawn from a set of facts, the inference most favourable to the
175 accused must be adopted: see Tai Chai Keh v PP [1948-49] MLJ
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8
Supp 105 per Spencer Wilkinson J. If at the close of the prosecution
case two or more inferences may be drawn from the prosecution
evidence then the inference most favourable to the accused must be
drawn: see Looi Kow Chai & Anor v PP [2003] 1 CLJ 734.
Whether the evidence is direct or circumstantial 180 the quantum of
proof is the same, i.e. proof beyond reasonable doubt, not proof
beyond the shadow of a doubt. The law does not impose a higher
burden of proof where the prosecution is relying on circumstantial
evidence instead of direct evidence. In the context of the present
185 case what the court has to consider is whether the sum total of the
evidence points to the fact that the offences were committed on the
dates specified in the charges. For this purpose it is necessary to
consider whether the dates on the LPOs were written by the
appellant when he signed them. This is basically a question of fact.
190 In this regard the trial court’s findings on certain issues of fact are
important in determining whether an inference can be drawn that the
offences were committed on the dates specified in the charges. The
learned trial judge’s findings are expressed in the following terms (at
page 63 of the Grounds of Decision):
195 “Even though there was no evidence as to who wrote the dates against the
signatures of the accused in the LPOs, the incontrovertible fact was that the
accused had signed all the LPOs in 2004 during his tenure as head of
Divisional Education Office Beaufort. The evidence adduced showed that when
the accused signed the LPOs and certified the invoices (except P.31), he knew
200 that the material particulars therein were false. This knowledge is the essential
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9
ingredient of the offences charged and not the dates of signing. The knowledge
of the accused was proved through the combined testimonies of PW6, PW52 as
well as PW7 which cumulatively showed that the source of the falsity was none
other than the accused himself. The evidence showed the accused from the
start providing false particulars to PW52, instructing PW6 to 205 prepare the LPOs
based on the invoices that the accused knew to contain false particulars,
authorizing the issuance of the LPOs and letting the documents go until their
submission to the Accountant General’s office to process payment. The
evidence incontrovertibly point to the year 2004 as the period in which all these
210 occurred. More so, the evidence adduced showed that at the time the accused
instructed for the invoices to be prepared and at the time of signing the LPOs
and letting go of them, he had knowledge of the falsity of the material
particulars. That and not the signing of the LPOs or invoices was the essential
part of the charges.”
215 On the evidence before her the learned trial judge was perfectly
entitled to arrive at those findings of fact, which effectively means
that the appellant is guilty of the offences charged. I would go so far
as to say that the evidence against the appellant is overwhelming.
These findings of fact stand on their own and as such survive the
220 trial judge’s misdirection on the issue of date. The principles on
appellate interference with findings of fact by the trial court are well
settled. It is only where the trial court has failed to sufficiently and
judicially appreciate the evidence that the appellate court will
interfere. In this case the learned trial judge had properly and
225 adequately considered the evidence before arriving at those
conclusions. I find no reason to interfere with her findings.
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10
The only consequence of her misdirection is that the learned trial
judge did not proceed to consider whether the dates on the LPOs
were written by the appellant and if so when. She merely concluded
that the LPOs were signed in 2004 after finding 230 that there is no
evidence to show who wrote the dates. This of course leaves open
the question as to the time the appellant certified the offending
documents. This court sitting in an appellate jurisdiction is not
precluded from considering the evidence afresh and to decide
235 whether, on the evidence available, the offences were committed on
the dates specified in the charges. To recapitulate, the proved facts
are as follows:
(1) It was the appellant who signed every single one of the LPOs.
(2) It was the appellant who instructed PW52 to submit the false
240 invoices (based on which the LPOs were prepared).
(3) The appellant knew that the invoices contained false material
particulars.
(4) It was the appellant who instructed PW6 to prepare the LPOs.
(5) The appellant knew that the particulars in the LPOs were false
245 in material particulars.
(6) The appellant’s intention in using the LPOs was to deceive the
principal.
What is the cumulative effect of these proved facts? In my view the
irresistible and only reasonable inference that can be drawn is that
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11
the dates on the LPOs were written by the appellant 250 himself after he
signed them. It cannot be a coincidence that all the dates were
written against his signatures. It will be a very long shot in the
circumstances to suggest that the dates were written by someone
else and on dates other than the dates appearing on the LPOs. In
255 the ordinary course of government business, an official document
will be dated immediately after it is signed, if it is not already dated.
This is common knowledge and needs no proof. The appellant is not
a country bumpkin, unused to government procedures. He was
head of the Beaufort Education Office at the material time and was
260 acting in that capacity when he signed the LPOs. It is highly unlikely
that he would sign such important official documents without dating
them. Farther still is the likelihood that the dates were written by his
subordinates without his instruction. The evidence shows that the
appellant had total authority over the issuance of LPOs. To borrow
265 the words of Lord Denning in Miller v Minister of Pensions [1947] All
ER 372 “of course it is possible, but not in the least probable.”
Section 44(1)(a) of the Act
It was submitted that the learned trial judge misdirected herself
when she said that PW52 was protected by section 44(1)(a) of the
270 Act. It was contended that PW52 had gone beyond concurrence,
because after concurring with the appellant’s request to submit the
false invoices he proceeded to submit the invoices which ultimately
led to the completion of the offence. In other words without the
complicity of PW52 the crime would never have been perpetrated.
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12
There seems to be a misunderstanding on the proper 275 application of
section 44(1)(a) of the Act. At page 37 of the judgment the learned
trial judge made the following remark:
“The short of it is that under section 44(1) no witness shall be regarded as an
accomplice by reason of having been involved or in any manner concerned in
280 the commission of the offence or having knowledge of the commission of the
offence.”
Section 44(1)(a) of the Act provides as follows:
“44(1) Notwithstanding any written law or rule of law to the contrary, in any
proceedings against any person for an offence under this Act –
285 (a) no witness shall be regarded as an accomplice by reason only of
such witness having –
(i) accepted, received, obtained, solicited, agreed to accept
or receive, or attempted to obtain any gratification from any
person;
290 (ii) given, promised, offered or agreed to give any gratification;
or
(iii) been in any manner concerned in the commission of such
offence or having knowledge of the commission of the
offence;”
295 This provision modifies the rule on accomplice evidence. It does
away with the need for corroboration. It must be noted however that
the provision only refers to acts in relation to “any gratification”. The
word “gratification” here must mean “gratification” as defined in
section 2 of the Act. As such the provision does not apply across the
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13
board and has no application to offences which 300 do not involve any
gratification such as the offence under section 11(c) of the Act in
respect of which the appellant was charged. The gravaman of the
offence under section 11(c) of the Act is the intent to deceive the
principal, which has no relation to any of the acts referred to in
305 section 44(1)(a) of the Act. The learned trial judge was therefore
wrong in invoking section 44(1)(a) of the Act in relation to the
evidence of PW52.
If PW52 is not covered by section 44(1)(a) of the Act, is he an
accomplice whose evidence requires corroboration? Is he a
310 particeps criminis in the offences committed by the appellant? PW52
is Yassin bin Nasah who is a businessman and owner of 3
companies whose business at all material times came mostly from
government departments including the Education Department and in
particular the Beaufort Education Office. It is an undisputed fact that
315 when the appellant took over as head of the Beaufort Education
Office in 2003, the department was owing PW52 a substantial sum
of money for goods supplied and services rendered by his
companies. In fact he had not been getting full payments from the
department since 2000. Initially the appellant told PW52 that the
320 department had no money to pay him, but several weeks later he
asked PW52 to submit claims for the price of works and services
that had purportedly been rendered. As instructed by the appellant
PW52 submitted his claims through the invoices which contained
the false particulars.
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PW52 candidly admitted that neither he nor the companies 325 stated in
the invoices had rendered any of the services stated in the invoices.
It was on the strength of these invoices that the offending LPOs
were prepared. On the evidence there can be no doubt that PW52
was an accomplice. He knew that the particulars in the invoices
330 were false, yet he submitted them to the Beaufort Education Office
for the purpose of making his claims. He had therefore colluded with
the appellant in committing the offences. It was due to his
connivance that the offences were committed. He was clearly
involved in the criminal design to mislead the principal and this
335 amounts to infamous conduct. That makes him a category one
accomplice. The learned trial judge herself found PW52 to be an
accomplice in the ordinary sense but went on to say:
“Even so, he would be the very kind of witness intended to be covered by
section 44(1)(a) of the Anti-Corruption Act 1997 that is not to be regarded as an
340 accomplice because of his involvement.”
This as stated earlier in this judgment is a misdirection. The
question again is whether the misdirection has occasioned a
miscarriage of justice. In my view it has not because although the
learned trial judge was wrong in finding that PW52 was not an
345 accomplice, she was right in finding that the evidence of PW52 was
sufficiently corroborated by the evidence of other prosecution
witnesses. This is borne out by her reasons at pages 38-40 of the
judgment. As for her impression of PW52 as a witness this is how
she described him:
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15
“As to his credibility and the veracity of his evidence, I would say 350 that he did not
display any animosity of any kind towards the accused either in demeanour or
in evidence. He came across as forthright and did not attempt to hide his
dealings with the accused.”
Demeanour alone is of course not the touchstone of truth because a
355 convincing witness may be an accomplished liar: per Edgar Joseph
Jr. J (as he then was) in Yeap Peng Hin v PP [1991] 4 CLJ (Rep)
285. But the learned trial judge in the instant case did not rely on
demeanour alone in considering whether the evidence of PW52 was
reliable. She had tested his evidence against all other relevant
360 evidence and considered the probabilities of the case. Having done
that she accepted PW52’s evidence that it was the appellant who
asked him to prepare the false invoices. In the circumstances the
learned trial judge’s handling of PW52’s evidence is not open to any
valid criticism.
365 Learned counsel also drew the court’s attention to section 114(b) of
the Evidence Act 1950 which provides that the court may presume
that an accomplice is unworthy of credit unless he is corroborated in
material particulars. This provision was the subject of an appeal in
PP v Haji Ismail & Anor [1940] 9 MLJ 76 where the Magistrate in
370 acquitting the accused who was charged under section 161 of the
Penal Code automatically applied the presumption. In ruling that the
learned Magistrate was in error Cussen J said at page 79:
“There is no question of the mechanical application of any general rule of
presumption. When it is a question of this particular presumption, the credibility
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16
of the witness who is in the position of an accomplice must 375 be individually
judged as any other witness, the same considerations being applied, with the
added one that he is an accomplice. The court must consider who and what he
is, his demeanour, hearing, the manner and quality and substance of his
evidence in itself and in relation to all the circumstances of the case. The
380 nature, quality and degree of his complicity must be examined. Then finally the
Court must form its opinion whether he is to be given credit and his evidence
accepted without corroboration or not.
He is a competent witness and as such is entitled to have his credibility judged
in itself; his evidence must be weighed and examined and not put aside
385 unjudged and unconsidered because he is an accomplice.”
It is therefore wrong to apply the presumption under section 114(b)
of the Evidence Act without giving due consideration to the evidence
of the accomplice. In any event, this court is bound by section 44(2)
of the Act which provides:
390 “(2) Notwithstanding any written law or rule of law to the contrary, a conviction
for any offence under this Act solely on the uncorroborated evidence of an
accomplice or agent provocateur shall not be illegal and no such conviction
shall be set aside merely because the court which tried the case has failed to
refer in the grounds of its judgment to the need to warn itself against the danger
395 of convicting on such evidence.”
The decision of the Federal Court in Tengku Mahmood v PP [1974]
1 LNS 176 and of the High Court in Ghazali bin Salleh & Anor v PP
[1993] 3 CLJ 638 relied upon by learned counsel must therefore be
considered in the light of this provision. The same goes with the
400 Federal Court decision in Dato’ Seri Anwar Ibrahim where the
offence charged does not involve any provision similar to
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17
subsections 44(1) and (2) of the Act. For the record that case
concerns a sexual offence for which corroboration as a rule of
prudence is ordinarily required.
The intention behind subsections 44(1) and (2) of 405 the Act is clear,
and that is to give the anti corruption authority sufficient clout to
combat corrupt practices involving willing partners in crime. The
court must give full effect to these provisions unless it can be shown
that the judgment is perverse or that a substantial miscarriage of
410 justice had occurred. To do otherwise would be to defeat the
intention of Parliament.
Wholesale acceptance of the evidence of PW52 and PW6
The appellant’s contention is that the learned trial judge was wrong
in accepting wholesale the evidence of PW52 and PW6, an
415 executive officer at the Beaufort Education Office. I have touched on
the evidence of PW52. As for PW6 the crucial part of his evidence is
that he prepared the LPOs on the instruction of the appellant.
According to him no LPO was to be prepared or issued unless
instructed by the appellant. He testified that the procedure after
420 preparation of the LPOs was that he would bring every single one of
them to the appellant for the appellant to sign at the specified
columns. He confirmed that the appellant signed all the LPOs in his
presence. The learned trial judge accepted his evidence and found
no reason to believe that he was involved in a criminal design to
425 make the false declarations in the LPOs. She rejected the defence
suggestion that PW6 had a grudge against the appellant for taking
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away his earlier active role of receiving invoices and preparing
LPOs.
Learned counsel pointed out that all the LPOs were dated earlier
than the invoices. This according to counsel casts 430 doubts on the
evidence of PW6 because the procedure as described by him was
that the LPOs would be prepared only after the invoices were
received. In my view this point is of no significance because when
the appellant signed the LPOs the false particulars in the invoices
435 were already written on the LPOs and he certified them to be
correct.
Is it wrong for the learned trial judge to accept wholesale the
evidence of PW52 and PW6? Speaking for myself I do not see why
the evidence of a witness should not be believed in its entirety if
440 otherwise the whole of his evidence is credible and reliable. In this
case the learned trial judge had seriously considered the
testimonies of both PW52 and PW6 and found their evidence to be
reliable. Having regard to the totality of the evidence and the
probabilities of the case I see no reason to disagree with her. In any
445 case it is for the learned trial judge who had the advantage of seeing
PW52 and PW6 giving evidence to decide whether they were
truthful witnesses or otherwise. The appellant’s complaint over the
trial judge’s acceptance of the evidence of PW52 and PW6 is
therefore without basis.
450
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19
Rejection of the defence case
The appellant’s complaint is that in rejecting the defence case the
learned trial judge failed to comply with section 182A(1) of the Code
in that she did not “re-evaluate” the prosecution evidence in deciding
whether the prosecution had proved its case 455 beyond reasonable
doubt. It was contended that there is a possibility the appellant
signed blank LPOs as claimed by him in his defence. With due
respect I do not think the duty imposed by section 182A(1) of the
Code is for the court to re-evaluate the prosecution evidence. What
460 the section requires is for the court to consider the entire evidence
and determine whether the evidence presented by the defence has
cast a reasonable doubt in the court’s mind as to the truth of the
prosecution case. This is actually a codification of the procedure laid
down by Suffian J (as he then was) in Mat v PP [1963] MLJ 263.
465 The need to re-evaluate the prosecution evidence does not arise
because at the end of the prosecution case the prosecution
evidence had been subjected to a maximum evaluation and the
witnesses found to be credible witnesses: PP v Ong Cheng Heong
[1998] 6 MLJ 678; PP v Dato’ Seri Anwar Ibrahim (No.3) [1999] 2
470 MLJ 1; Balachandran v PP [2005] 1 CLJ 85; PP v Mohd Radzi bin
Abu Bakar [2006] 1 CLJ 457.
The mainstay of the defence is that when the appellant signed the
offending LPOs they were all blank. Learned counsel submitted that
the learned trial judge was wrong in rejecting the appellant’s
475 explanation. I must say at the outset that there is no basis for this
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20
contention. In the first place this line of defence was only raised for
the first time when the appellant gave evidence and was never put
to any of the prosecution witnesses, in particular PW6 who testified
that the particulars in the LPOs were already filled in by him before
he presented them to the appellant for his signatures. 480 It would have
been wrong for the learned trial judge to accept this explanation as
being reasonable: see Re Pitchi Muthu [1970] 2 MLJ 143 where
Sharma J said:
“The learned president thought that the explanation given by the accused that
485 the money had slipped out of the book containing the driving licence was
reasonable in spite of the fact that not a word of it was suggested to either PW1
or PW2 .. The learned president had misdirected himself in ignoring and
overlooking the evidence of PW1 and PW2 and the total lack of any crossexamination
of these witnesses touching the defence which was subsequently
490 suggested for the first time only when the defence was called.”
The record of appeal shows that the learned trial judge had given
careful consideration to every material point raised by the defence
and had rejected them. She was satisfied that the appellant’s
explanation had failed to cast any reasonable doubt in her mind as
495 to the truth of the prosecution case. It follows therefore that the
appellant must be convicted of the offences charged.
Conclusion
For reasons stated above I am firmly of the view that the appellant
had been rightly convicted inspite of the learned trial judge’s
500 misdirections on the date of the offence and the applicability of
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21
section 44(1)(a) of the Act. The appeal against conviction was
accordingly dismissed. As for the appeal against sentence learned
counsel for the appellant did not say a word in support of the
petition. The appeal was therefore deemed to be abandoned and
was accordingly dismissed. In any event I am of 505 the view that the
sentence is appropriate, fitting to the circumstances of the crime and
is not manifestly excessive. The penalty for the offence is
imprisonment for a term of not less than 14 days and not more than
20 years and the offender is also be liable to be fined. The principles
510 are settled. Unless it can be shown that the sentencing judge had
erred in principle or had considered irrelevant factors or that the
sentence is manifestly excessive, it is not right to interfere with the
sentence passed by the lower court.
515
(DATO’ ABDUL RAHMAN SEBLI)
Judicial Commissioner
High Court Kota Kinabalu
Dated: 25th 520 November 2009.
[K42-09-2009]
22
For the Appellant: Datuk Chau Chin Tang 525 of Messrs Chau
& Thien.
For the Public Prosecutor: Ahmad Sazilee bin Abdul Khairi, DPP
of the Malaysian Anti Corruption
530 Commission.
