Subsection
(4) the slowness of an appellate Court in disturbing a finding of fact arrived 720 at by a Judge who had the advantage of seeing the witnesses. Lord Reid reiterated this same principle in Benmax v. Austin Motor Co. Ltd. [1955] AC 370 at 375, where he quoted from Lord Thankerton's judgment in Thomas v. Thomas [1947] 1 All ER 582 that: 725 Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate Court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage 730 enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge's conclusion." [73] From the evidence led by the prosecution, it was found that the particulars provided in the form (P1) to register for GST could only have 735 been filled up or with the knowledge of the taxable party and the LTJ found that this was filled up by or with the authority and knowledge of the Appellant. [74] In the course of cross-examining the Investigating Officer, PW23, 740 the defence tendered an agreement alleged to have been made between Ayamas Food and A1 Grow Services. [75] PW23 denied that this agreement was valid for the taxable periods in which refunds were paid to the Appellant. 745 [76] The LTJ in his judgment (para [29]) was satisfied with PW23’s explanation that IDD65 was not a valid document as this agreement had expired on 31 March 2015 before the Appellant registered himself as a Taxable Person on 21 April 2015. 750 [77] However, the LTJ refused to have it admitted in evidence as an exhibit on inter alia the ground that it was not stamped and that it does not carry any signature of the counter-party namely Ayamas Food (para 36 iii). 755 [78] With due respect, section 52 (1) (b) of the Stamp Act (Revised 1989) provides that the non-stamping of an instrument shall not prevent the admission of any instrument in evidence in any criminal Court. In a civil Court the Court can still admit a document which has not been stamped 760 on payment of the proper stamp duty, see Malayan Banking Bhd v Agencies Service Bureau Sdn Bhd & Ors [1982] 1 MLJ 198 (FC). [79] However, the refusal by the LTJ to admit the agreement on the other ground that it has not been signed by Ayamas Food is in order. Without it 765 having been signed by the counter-party to the agreement, a valid challenge was properly taken by the Respondent that such an agreement was in fact [not] concluded. As the Appellant asserted that it was concluded, it is for the Appellant to prove it, see sections 101 and 102 of the Evidence Act 1950 and Letchumanan Chettiar Alagappan @ L 770 Allagappan (As Executor To Sl Alameloo Achi Alias Sona Lena Alamelo Acho, Deceased) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418; [2017] 4 MLJ 697 (FC). Until then, it was properly marked as a mere identification document. 775 [80] Be that as it may, this Court finds that even if the agreement (IDD65) had been admitted, it has negligible probative value and is hardly sufficient to rebut the presumption invoked by the LTJ under section 89 (6) of the GST Act when no witness was called from Ayamas Food to verify the alleged fact that there is still a chicken rearing and supply agreement with 780 the Appellant. [81] More importantly, this Court observed that evidence had been led during the prosecution’s case that PW23 himself has been to the business address of the Appellant’s alleged chicken farm, which turned out to be 785 the Appellant’s residential house, PW23’s other visit to the branch address found it to be a fruits stall, and upon PW23 visiting the alleged farm at Lot 1910, Mukim Chegar Galah, Jalan Kg. Periang, Enggor, Kuala Kangsar, Perak, PW23 found it had been surrendered to the Koperasi Pekebun Kecil Sungai Siput, Perak since April 2015, that is even before the 790 Appellant’s first taxable period commencing 1 June 2015. [82] There was ample evidence that the 7 refunds were remitted by the Respondent to the Appellant’s HLBB savings account number 1685008867 which could only be operated by the Appellant or with his 795 authority. [83] Evidence was led that any withdrawal above RM5,000.00 requires the production of the Appellant’s National Registration Identity Card coupled with a bio-metric verification of the thumb print leading to the 800 inference that it was the Appellant himself who had operated his account. [84] Thus, as correctly found by the LTJ, contrary to the written skeletal submissions put up by learned counsel for the Appellant (Encl 27 filed in Appeal No. 7), the presumption under section 89 (6) GST Act that the 805 Appellant had obtained credit for Input Tax against Output Tax or evading tax with his knowledge operates, and the burden lay upon the Appellant to prove otherwise. [85] Having narrated the facts of the case as found by the LTJ and upon 810 this Court going through the record of appeal and the comprehensive grounds of judgment of the LTJ who had analysed the evidence of the witnesses, and in particular the amendment of the taxable period from three months to one month after PW3 had contacted the Appellant using the Appellant’s handphone number 0195900767, which I had highlighted 815 above, I find that the Appellant’s alleged lack of mens rea and the challenge to PW23’s evidence to be devoid of merit. Failure to investigate Mok Seng Kuan and Loo Peng Wah 820 [86] The LTJ found that access to the GST account with the Respondent in the name of the Appellant could only have been carried out by the Appellant. [87] The Appellant’s defence was that it was one Loo Peng Wah who he 825 had employed as his consultant and who had registered his GST account and who had cheated him. [88] As correctly observed by the LTJ, it has been settled by the Federal Court in Tan Kim Ho & Anor v PP [2009] 3 MLJ 151 that it is the duty of 830 each party to show that his case is the truth and this is to be done by him adducing his own witness to support his contention, and in Ng Eng Kooi v PP [1970] 1 MLJ 267, it was held that the burden of proof not only means introducing evidence but also proving by that evidence whatever the defendant is required to prove. 835 [89] Mok Seng Kuan who was said to have introduced the Appellant to Loo Peng Wah was not called as a witness by the defence. [90] Loo Peng Wah, the central figure in the Appellant’s defence, was 840 not called as a witness by the defence. [91] The crux of the Appellant’s defence is that Loo Peng Wah is the person who had managed his GST account and he, the Appellant, has nothing to do with it. With he having to enter on his defence, in my view it 845 is inexplicable that the Appellant did not have Loo Peng Wah brought to Court so that he can lay all the blame on Loo Peng Wah. In fact, an adverse inference ought to have been drawn against the Appellant pursuant to section 114 (g) of the Evidence Act 1950 for not calling Loo Peng Wah to the effect that if he had been called, Loo Peng Wah’s 850 evidence would have been unfavourable to the Appellant. See Munusamy Vengadasalam v PP [1087] 1 MLJ 492; [1987] 1 CLJ 250 where the Federal Court held that such an adverse inference is to be drawn if there is non-production of an important and material witness to the case. 855 [92] If Loo Peng Wah is a rogue, it can be argued that he would not want to incriminate himself if called as a witness. However, section 132 (1) of the Evidence Act 1950 makes it clear that a witness shall not be excused from answering any question as to any matter relevant to the matter in 860 issue in any suit, or in any civil or criminal proceeding, upon the ground that the answer to that question will criminate or may tend directly or indirectly to criminate, him, or that it will expose, or tend directly or indirectly to expose, the witness to a penalty or forfeiture of any kind, or that it will establish or tend to establish that he owes a debt or is otherwise 865 subject to a civil suit at the instance of the Government of Malaysia or of any State or of any other person. The Court of Appeal in The Attorney General Of Hongkong v. Zauyah Wan Chik & Ors. & Another Appeal [1995] 3 CLJ 35 made it clear that section 132 of the Evidence Act 1950 has excluded the operation of the common law doctrine of privilege 870 against self-incrimination. [93] The Appellant was obviously content to have monies being remitted and flowing into his HLBB bank account by the Respondent. 875 [94] His belated lodging of a police report after he was arrested was correctly held by the LTJ to have no probative value. In Tai Chin Yee v Tong San Chan Distributors Sdn Bhd & Anor [2021] 3 ILR 29 at para [36], I had occasion to observe that in Floral Trends v. Li Onn Floral Enterprise (M) Sdn. Bhd. [2006] 6 CLJ 525 the 2nd Defendant claimed 880 that his signature on the letter of guarantee was forged and the High Court held that it is a criminal wrong to forge a document and bereft of a police report, the allegation of the 2nd Defendant must be construed as a bare allegation. See also David Wong Hon Leong v. Noorazman bin Adnan [1995] 4 CLJ 155 (CA). And in the more recent Court of Appeal case of 885 Bank Kerjasama Rakyat Malaysia Bhd v. Hong Voon Chung [2021] 1 LNS 250, a delay of some 16 months in lodging a police report by the litigant alleging that his signature on a joint and several guarantee was forged was adversely held against him. And, the Court of Appeal found that the reason advanced for the delay that he left the matter to his lawyers 890 to be incredible. [95] The LTJ’s reliance upon the doctrine of wilful blindness in the circumstances of this case was particularly apt. See Wei Hong Ping v PP [2022] 10 CLJ 708 (CA) a case on drug trafficking where it was held that 895 the plea of innocence will be rejected if the accused had failed to make the necessary inquiries and instead turned a blind eye to what was obvious. [96] This ground of appeal is, therefore, similarly without merit. 900 Conclusion on appeal against conviction [97] Wherefore I find that the convictions against the Appellant in all the 7 appeals to be safe. 905 Appeal against sentence [98] In his petition of appeal, the Appellant made a bare assertion that the sentences of three years for each of the 7 convictions when taken 910 together amount to 21 years and is manifestly excessive. [99] In his written skeletal submissions (Encl 27 filed in Appeal No. 7), this Court observed that no submissions were presented by his learned counsel on this ground. 915 [100] Under section 89 (1) (A) of the GST Act, the punishment provided is a fine of not less than ten times and not more than twenty times the amount of tax or to imprisonment for a term not exceeding five years or to both. 920 [101] The punishment handed down by the LTJ was a term of three years imprisonment for each conviction which is permitted by law. [102] In the Appeal Record (Encl 14 in Appeal No. 7 pdf 4/80) this Court 925 observed that there is a note signed off by the learned Magistrate saying “Hukuman penjara 3 tahun setiap pertuduhan bermula dari tarikh hukuman. Hukuman penjara berjalan berasingan”. [103] The sealed order of 7 April 2021 (Encl 14 pdf 13/80 in Appeal No. 930 7) states that the sentences were to run separately and in its original language it says “Hukuman penjara berjalan secara berasingan.” [104] At first blush, if the sentences were to run separately it would suggest that the sentences were to run consecutively. 935 [105] However, this Court observed that in his grounds of judgment (Encl 14 in Appeal No. 7 pdf 25/80 at para [6] and at pdf 78/80 para [70] to [73]) the LTJ said the sentences were to run concurrently (“secara serentak”) as the offences were committed within a close span of time and in the 940 same year. [106] It is to be observed that there were seven offences for seven (7) taxable periods spanning two years from 1 June 2015 until 30 April 2016. 945 [107] When I brought up my observation on the apparent conflict on the issue of sentences during the course of the hearing of the appeals, the learned deputy prosecutor then sought for the sentences to run consecutively. 950 [108] This Court also observed that there was no appeal by the Respondent against inadequacy of sentence. [109] Guided by the grounds of judgment handed down by the LTJ, this Court construe that what the LTJ meant is that there are seven separate 955 sentences of imprisonment of three years each but are to be served concurrently. This would be in accord with the “totality principle” which is that a cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences involved, or if its effects is 960 to impose on the offender ‘a crushing sentence’ not in keeping with his records and prospects. See Suhaimi Hashim v Public Prosecutor [2022] 7 MLJ 311 (HC) at para [42]. [110] If the sentences were to run consecutively, it would be above the 965 maximum sentence for each offence by 400%. [111] From the appeal record there is no record that the Appellant had any previous criminal records. 970 [112] Wherefore, taking into account the totality principle I find there are no compelling reason to disturb the reasoning of the LTJ for all the 7 sentences of imprisonment to run concurrently. [113] As I have mentioned, the sentence of three years is within the 975 permissible term of imprisonment. I do not see any unauthorised or irrelevant exercise of discretion. In other words the sentence is not so far outside the normal discretionary limits that this Court ought to interfere with the sentence imposed, see Bhandulananda Jayatilake V. Public Prosecutor [1982] 1 MLJ 83 (FC). 980 Conclusion on appeal against sentence [114] Wherefore the 7 appeals against sentence are dismissed. 985 Conclusion on appeals [115] In the upshot, all the 7 appeals by the Appellant are dismissed. Consequential relief – sec 122 GST Act 990 [116] The appeals were heard on 1 December 2022 and at the end of which the learned DPP sought to rely upon section 122 of the GST Act and applied for an order that the Appellant [re]pay to the Director General the refunds made to the Appellant. 995 [117] No advance notice of such a relief sought was given to the Appellant and I had adjourned this issue to be canvassed on the next date which was scheduled for 29 December 2022. 1000 [118] On 29 December 2022 after I had delivered my decision to dismiss all the 7 appeals, and after taking into account the written submissions filed by learned counsel for the Appellant (Encl 31 filed in Appeal No. 7), I had dismissed the [oral] application made by the learned DPP on the ground that the pre-qualification of there being a certificate signed by the 1005 Director General of the tax or any penalty due and payable under the GST Act was not tendered in evidence. [119] Further, in my considered view, the refunds unlawfully claimed by the Appellant do not amount to goods and services tax or penalty due and 1010 payable under the GST Act. To the contrary, the refunds were in fact for credit claimed for Input Tax which were fraudulently put up. [120] For completeness, I set out the provision of section 122 (1) of the GST Act hereunder: 1015 “ Where any person is found guilty of an offence under this Act, the court before which the person is found guilty shall order the person to pay to the Director General the amount of tax or any penalty due and payable under this Act, if any, as certified by the Director General and the tax or penalty 1020 shall be recoverable in the same manner as a fine as provided under section 283 of the Criminal Procedure Code.” [121] Rowlatt J in Cape Brandy Syndicate v IRC [1921] 1 KB 64 said: 1025 “.... in a taxing Act one has to look merely at what is clearly said. .. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used .... ....it has also been said by the Judicial Committee in Oriental Bank Corporation v Wright [1880] 5 AC 845, 856: 1030 “that the intention to impose a charge upon a subject must be shown by clear and unambiguous language.” [122] Our Court of Appeal in Exxon Chemical (M) Sdn Bhd v Ketua Pengarah Dalam Negeri [2005] 4 CLJ 810, [2006] 1 MLJ 428 held that: 1035 “..... the principle that a provision in a taxing statute must be read strictly is one that is to be applied against [the] revenue and not in its favour. The maxim in revenue law is this : no clear provision; no tax. If there is any doubt then it must be resolved in the taxpayer’s favour ....” 1040 and in my considered view, this would equally apply against the Respondent in that, if there is any doubt that section 122 (1) GST Act allows the Respondent to claim the refunds back, the doubt must be resolved in favour of the Appellant. It is for the Respondent to seek redress 1045 elsewhere. Stay [123] Learned counsel then sought for a stay of the sentence on the 1050 ground that the Appellant intend to appeal to the Court of Appeal. Reliance was placed upon the novelty of the matter under the GST Act and the authority of PP v Datuk Seri Najib Seri Razak [2020] 11 MLJ 808 (HC) in that if the former Prime Minister, Datuk Seri Najib Seri Razak was entitled to a stay, then similarly the Appellant ought to be equally treated. 1055 [124] The learned counsel for the Appellant conceded that an appeal does not operate as a stay but went on to assert that the Appellant has a wife, mother, and 10 siblings who depend upon him with him selling fruits on a small scale. 1060 [125] She added that the Appellant’s knees have been giving him problems for over a year. For the medical ground, reliance was placed upon the case of Datuk Seri Anwar Ibrahim v PP but no citation was given for which case she had in mind. In fact in Public Prosecutor v Dato 1065 Seri Anwar Bin Ibrahim [1998] 4 MLJ 481 (HC), Augustine Paul J (as he then was) held that bail on medical grounds should not be granted by the court unless it is satisfied that the illness is such as would not be properly treated while the accused is under detention and where proper treatment is available in the place of detention, bail cannot be granted in 1070 respect of the illness, Sangappa v State of Karnataka 1984 Cr LJ 1367 followed. [126] No material was placed before this Court to show that the Appellant would not get appropriate medical treatment while in detention. 1075 [127] The learned DPP vigorously objected to the application on the ground that no special or exceptional circumstances have been shown. [128] In my considered view, the law is settled on an application of this 1080 nature. See Dato’ Seri Anwar Ibrahim v PP & Another Appeal [2004] 1 MLJ 497; [2004] 1 CLJ 592 (FC) at para [42] where a distinction was drawn between pre-conviction and post-conviction. In the case of a post-conviction, the presumption of innocence no longer applies and a conviction resulting from a trial must be taken until the contrary be shown, 1085 to have been properly conducted, and without error of law. Special and exceptional circumstances must be shown. [129] I agreed with the learned DPP that the grounds advanced by the Appellant do not amount to special or exceptional circumstances. In my 1090 considered view the reliance by the Appellant on the case of PP v Datuk Seri Najib Seri Razak [2020] 11 MLJ 808 (HC) when taken to its logical conclusion would mean that everyone ought to be entitled to a stay whenever there is an appeal, but this is against the provision of section 57 (1) of the Courts of Judicature Act 1964 and the Federal Court authority 1095 of Dato’ Seri Anwar Ibrahim (supra). [130] The alleged novelty of the Appellant’s 7 cases is more apparent than real as the cases heard can and were in fact decided based on well settled principles of law especially when the provisions of the GST Act under consideration are in my considered view, clear and unambiguous. That 1100 the GST Act under which the Appellant was charged has been repealed by the Goods and Services Tax (Repeal) Act 2018 Act 805 is of no consequence as the underlying conceptual framework of taxation may be resurrected or may even be in other legislation in one form or the other. 1105 [131] Wherefore the application for a stay of execution of the sentence was dismissed. Dated: 22 February 2023 1110 Su TiangJoo ( SU TIANG JOO ) Judicial Commissioner 1115 High Court in Malaya Ipoh, Perak For Appellant : Shaharudin bin Ali and Putri Aisyah Zahirah 1120 bt Zakriya Advocates and Solicitors [Shaharudinali Azfarazmi & Co] 1125 For Respondent : Gayathri Sambath Deputy Public Prosecutor [Legal Division, Royal Malaysian Customs Department, Putrajaya] 1130 [Notice: This Grounds of Decision is subject to official editorial revision] Headnotes Criminal procedure – at the end of the prosecution’s case, the Sessions 1135 Court is to be guided by the procedure contained in section 173 (h) rather than section 180 of the Criminal Procedure Code which apply to trials in the High Court Criminal procedure – reliance by the Sessions Court on section 180 instead of section 173 (h) of the Criminal Procedure Code does not, 1140 however, occasion a failure of justice as the test of whether a prima facie case has been made out in the High Court or in the Sessions Court is the same Criminal procedure – reliance by the Sessions Court on section 180 of the Criminal Procedure Code would only amount to an irregularity which does 1145 not vitiate the proceedings pursuant to section 422 (1) (a) of the Criminal Procedure Code Goods and Services Tax Act 2014 Act 762 – the act of evading tax includes obtaining credit for Input Tax against Output Tax where the taxable person is not entitled to the credit, see section 89 (5) (a) read 1150 together with sections 38 (1) and 38 (3) (b) of the GST Act Goods and Services Tax Act 2014 Act 762 - once the presumption under section 89(6) of the GST Act is triggered it is for the accused to discharge the burden on a balance of probabilities that the evasion of tax was carried out without his knowledge and an adverse inference is to be drawn 1155 against him if there is non-production of an important and material witness to the case. 1160