Alias Bin Jaafar (JA-61R-12-05/2021)

Alias bin Jaafar, the accused, was indicted at the Sessions Court with 3 charges in their original forms as follows: S/N W1Rtcw/cA00fpztjMXZfw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Pertuduhan Pertama: “Bahawa kamu, pada 06 April 2019, jam lebih kurang 1.40 tengah hari di Maybank Cawangan Johor Bharu, Lot M1-22, Level 1, Jb City Square, 106-108, Jalan Wong Ah Fook, 80000 dalam Daerah Johor Bharu, dalam Negeri Johor Darul Ta’zim, telah diberikan suatu suapan iaitu wang secara mesin deposit tunai berjumlah RM2,000.00 daripada Wan Mohd Fauzi bin Wan Kamaruddin (No KP: 660427-10-7573) melalui Hamidah binti Wagey (No KP: 740623-01-5174), kerana upah untuk mempercepatkan pemeriksaan ‘Flag State Control’ (FSC) kapal-kapal syarikat Wan Mohd Fauzi bin Wan Kamaruddin, yang mana kamu telah melanggar peruntukan Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 (Akta 694) untuk melaporkan kesalahan penyogokan kepada pihak Suruhanjaya Pencegahan Rasuah Malaysia dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 25(1) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 [Akta 694] dan boleh dihukum di bawah seksyen 25(2) Akta yang sama.” S/N W1Rtcw/cA00fpztjMXZfw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Pertuduhan kedua: “Bahawa kamu, pada 12 September 2020, di CIMB Cawangan Tampoi, Tingkat 1 Nombor 193 B & C, Batu 4 ½, Off Jalan Skudai, 81200, dalam Daerah Johor Bharu, dalam Negeri Johor Darul Ta’zim, telah diberikan suatu suapan iaitu wang berjumlah RM1,800.00 daripada Wan Mohd Fauzi bin Wan Kamaruddin (No KP: 660427-10-7573) melalui pindahan atas talian daripada akaun Maybank Syarikat Alamgala Resources Sdn Bhd yang bernombor 501543104505 kerana upah untuk mempercepatkan pemeriksaan ‘Flag State Control’ (FSC) kapal-kapal syarikat Wan Mohd Fauzi bin Wan Kamaruddin, yang mana kamu telah melanggar peruntukan Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 (Akta 694) untuk melaporkan kesalahan penyogokan kepada pihak Suruhanjaya Pencegahan Rasuah Malaysia dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 25(1) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 [Akta 694] dan boleh dihukum di bawah seksyen 25(2) Akta yang sama.” S/N W1Rtcw/cA00fpztjMXZfw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 Pertuduhan Ketiga: “Bahawa kamu, pada 30 Julai 2020, jam lebih kurang 9:49 pagi di CIMB Cawangan Tampoi, Tingkat 1 Nombor 193 B & C, Batu 4½, Jalan Skudai, dalam Daerah Johor Bharu, dalam Negeri Johor Darul Ta’zim, telah diberikan suatu suapan iaitu wang secara mesin deposit tunai berjumlah RM2,000.00 daripada Wan Mohd Fauzi bin Wan Kamaruddin (No KP: 660427-10-7573) melalui Zefri bin Abdul Khadir (No KP: 851015-14-5065) kerana upah untuk mempercepatkan pemeriksaan ‘Flag State Control’ (FSC) kapal-kapal syarikat Wan Mohd Fauzi bin Wan Kamaruddin, yang mana kamu telah melanggar peruntukan Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 (Akta 694) untuk melaporkan kesalahan penyogokan kepada pihak Suruhanjaya Pencegahan Rasuah Malaysia dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 25(1) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 [Akta 694] dan boleh dihukum di bawah seksyen 25(2) Akta yang sama”.

The accused claimed trial to the charges and was represented by a Counsel. A Deputy Public Prosecutor from the Malaysian Anti-Corruption Commission (MACC) conducted the prosecution. At the close of the prosecution’s case, this court found that the prosecution had made out a prima facie case against the accused S/N W1Rtcw/cA00fpztjMXZfw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 on all charges. Thus, the accused was called upon to enter on his defence.

At the close of the case for the defence, this court found that the prosecution had proved its case against the accused beyond a reasonable doubt. Therefore, he was found guilty and convicted.

After hearing and considering submissions from both sides, the accused was sentenced to 12 months’ imprisonment from the date of the sentence for each of the offences. The three sentences of imprisonment were ordered to run concurrently. In the absence of any special or exceptional circumstances, the application by the accused for a stay of execution pending an appeal was disallowed.

Being dissatisfied, the accused is now appealing to the High Court on the convictions and sentences. S/N W1Rtcw/cA00fpztjMXZfw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

To prove its case, the prosecution called a total of 18 witnesses.

The facts of the case were fairly straightforward. The accused worked as an Assistant Marine Officer with the Malaysia Marine Department at Pasir Gudang, Johor Baru, Johor. Amongst his duties was to conduct Flag State Control (FSC) inspection for ships to ensure that the vessels comply with safety, security, and other requirements. The inspections were carried out periodically by the Marine Department. FSC inspection was an inspection made by the flag state, i.e. the country where the vessel is registered and whose flag it flies. The accused had also conducted FSC inspections for vessels owned by PW12.

PW12, Dato’ Sri Wan Mohd Fauzi bin Wan Kamaruddin, has been involved in the shipping business since 2007. He owned various companies and many ships that were involved in the maritime industry. He had known the accused since 2010 because the accused frequently conducted the FSC inspections for his ships. After several inspections, the accused suggested to PW12’s Operations Manager, one Haji Fauzi, that PW12 pay him a token S/N W1Rtcw/cA00fpztjMXZfw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 of appreciation or in the Malay language, “sagu hati”, to expedite the process of inspection for the FSC.

After having been informed by his Operations Manager, PW12 agreed to pay up. As a result, the accused was indicted for committing the three offences that he was charged with.

The accused was charged with committing the 3 offences under section 25(1) of the MACC Act 2009 [the Act], punishable under section 25(2) of the same Act, which provides:

(1) Any person to whom any gratification is given, promised, or offered, in contravention of any provision of this Act shall report such gift, promise or offer together with the name, if known, of the person who gave, promised or offered such gratification to him to the nearest officer of the Commission or police officer.

Any person who fails to comply with subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both.

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....................................................... [Emphasis added] [11] For the first charge, the prosecution was required to prove all 3 ingredients of the offence for a prima facie case against the accused. They were:

that the accused was given a gratification amounting to

that the gratification given was in contravention of any provision of the Act; and

that the accused did not report such gift together with the name of the person who gave such gratification to him to the nearest officer of the Commission or police officer. [12] Concerning the second charge, the prosecution was also required to prove all 3 ingredients of the offence for a prima facie case against the accused. They were:

that the accused was given a gratification amounting to RM1,800.00;

that the gratification given was in contravention of any provision of the Act; and

that the accused did not report such gift together with the name of the person who gave such gratification to him to the nearest officer of the Commission or police officer. S/N W1Rtcw/cA00fpztjMXZfw [13] For the third charge, similarly, the prosecution was also required to prove all 3 ingredients of the offence for a prima facie case against the accused. They were:

that the accused was given a gratification amounting to

that the gratification given was in contravention of any provision of the Act; and

that the accused did not report such gift together with the name of the person who gave such gratification to him to the nearest officer of the Commission or police officer. The first charge

that the accused was given a gratification amounting to [14] Money is a form of gratification according to section 3 of the Act which provides: S/N W1Rtcw/cA00fpztjMXZfw “gratification” means –

money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, financial benefit, or any other similar advantage; ........................................ ........................................ ........................................ [Emphasis added] [15] Not all gratification amounts to bribery. It became bribery when the gratification was corruptly given in contravention of any provision of the Act and as a reward for doing something in relation to an official duty. In the instant case, it was exactly what happened with the accused. The offence committed by him was consistent with the shoulder note provided pursuant to section 25 of the Act itself. The shoulder note clearly summarised the subject matter of the provision, which was the duty to report bribery transactions. The money, RM2,000.00 given to the accused was certainly a form of gratification to bribe him as a reward to expedite the FSC inspection for ships owned by PW12. S/N W1Rtcw/cA00fpztjMXZfw [16] The accused did not at all deny or dispute that he conducted the inspections for PW12’s ships. He also did not contest that he received the money in his account. Further, the prosecution had adduced sufficient evidence through PW6, PW7, PW8, PW9, PW10 and supported by relevant documents that the FSC inspections were conducted for ships owned by PW12. However, the accused’s defence was that he was not given the money to expedite the inspection and that he did not expedite the inspection concerned. [17] Was there any evidence adduced that the accused was given a gratification? There certainly was. I found that the most incriminating evidence against him came through PW12, the owner of the ships inspected by him. In no uncertain terms, PW12 said the accused asked to be paid so that the inspections could be expedited. In his written statement (PSSP12) in paragraphs 26 and 27, PW12 said:

Dalam sekitar tahun 2010, apabila saya memulakan perniagaan dalam industri kapal ini, Encik Alias telah terlibat dalam pemeriksaan kapal-kapal milik syarikat saya. Daripada pengenalan itu, setelah beberapa kali pemeriksaan kapal dibuat oleh beliau, beliau ada mencadangkan kepada Haji Fauzi iaitu Pengurus Operasi, Syarikat Alamgala Resources Sdn Bhd saya pada ketika itu S/N W1Rtcw/cA00fpztjMXZfw agar beliau dibayar sagu hati supaya proses pemeriksaan kapal dapat dipercepatkan.

Permintaan wang sagu hati oleh Encik Alias telah dimaklumkan kepada saya oleh Haji Fauzi pada ketika itu. Saya telah bersetuju dengan permintaan Encik Alias atas tujuan bagi memastikan kapal-kapal yang diperiksa tidak lambat dari proses pemeriksaan kerana jika lambat, jadual pembekalan minyak kapal-kapal saya akan tergendala dan tidak dapat memenuhi kontrak pembekalan kapal-kapal penerima. [Emphasis added] [18] PW12 further added that the accused usually asked and received the money after conducting the inspections. And PW12 would instruct PW13 to pay the money. This is what he said in paragraph 30 of PSSP12:

Pada kebiasaannya, Encik Alias akan meminta dan menerima wang selepas menjalankan pemeriksaan terhadap kapal-kapal saya. Setiap kali selepas pemeriksaan kapal, Encik Alias akan menghantar mesej kepada saya melalui WhatsApp sebagai pemakluman S/N W1Rtcw/cA00fpztjMXZfw selesai pemeriksaan kapal dan saya akan mengarahkan Hamidah untuk membayar beliau sejumlah wang berdasarkan bilangan kapal yang telah diperiksa oleh beliau. [Emphasis added] [19] I found that the evidence that was so adverse against the accused pursuant to the said paragraphs 26, 27 and 30 was not challenged or disputed by him during PW12’s cross-examination. Haji Fauzi was not even called to testify by the prosecution on the truth of what he said. Normally, the evidence concerning Haji Fauzi could have been ruled as inadmissible when the object of the evidence was to establish the truth of what was contained in the statement: Subramaniam v. Public Prosecutor [1956] MLJ 220 at page 222. [20] No suggestion or challenge has been put in the cross-examination that Haji Fauzi never said that the accused asked to be paid to expedite the inspections or that the statement by PW12 was hearsay. Nevertheless, PW12 further testified that subsequently the accused would usually ask and receive the money from him after the inspections were made. This evidence was also not challenged during PW12’s cross-examination. S/N W1Rtcw/cA00fpztjMXZfw Therefore, what was the effect of the failure to cross-examine PW12 despite the opportunity that was given to the accused? [21] The law is well-settled that if the accused did not expressly challenge the evidence against him, then the evidence was deemed admitted: Wong Swee Chin v. Public Prosecutor [1980] 1 LNS 138; Chua Beow Huat v. PP [1970] 2 MLJ 29. Further, in A.E.G Carapiet v. AY Derderian [1961] Cal 359, the court said: “Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice”. [Emphasis added] [22] However, failure to cross-examine will not always amount to an acceptance of the witness’s testimony, e.g. if the story is itself of an incredible or romancing character: Wong Swee Chin (supra). From what was informed by Haji Fauzi and the evidence adduced by PW12, I did not think the story or the character was as such. In the shipping industry that PW12 was involved in, which had to S/N W1Rtcw/cA00fpztjMXZfw comply with certain rules and regulations, it was not an incredible story or of a romancing character that an unscrupulous individual would take advantage of the position that he was holding to ask for a payment to expedite something. Therefore, I accepted PW12’s evidence that the accused asked to be given the money for the particular purpose. [23] The accused did not deny that on 6.4.2019, the sum of RM2,000.00 was given to him through his bank account. Nonetheless, in the cross-examination of PW12, it was suggested to him that there was no proof about the purpose for which the money was transferred to the accused and that the purpose was not proved. PW12 disagreed with the suggestion. As I understood it, suggestions or questions in cross-examination are not evidence. They only showed the stand taken by the accused or indicative of the case put forward. The accused would have to put in the challenges through the suggestions; otherwise, the evidence adduced would be deemed admitted by him. However, they cannot be substituted for evidence if the suggestion is repudiated or disagreed with by a witness such as PW12 in the instant case: Emperor v. Karimuddi AIR 1932 Cal 373; Public

Prosecutor v. Dato’ Seri Anwar bin Ibrahim (No.3) [1999] 2 MLJ The suggestion does not prove anything and will remain nothing unless agreed to or admitted by a witness. Since PW12 S/N W1Rtcw/cA00fpztjMXZfw disagreed with the suggestion, it could not be used to absolve the accused since the suggestion was not evidence. [24] In any event, PW12 had informed the court that the purpose of giving the money to the accused was to expedite the FSC inspections. The accused asked to be paid, and as alluded to, this evidence was not expressly challenged by him. Therefore, that was why PW12 disagreed with the suggestion put to him that there was no proof about the purpose for which the money was given to the accused. It might not be explicitly stated in any document, but one could hardly expect such a nefarious purpose to be casually and clearly recorded in writing. [25] The prosecution’s case was further fortified through the testimony of PW13, Hamiday binti Wagey. She worked as a Manager for PW12. In paragraphs 9, 11 and 12 of her written statement PSSP13, she testified that:

Dalam pengetahuan saya, Haji Alias bin Jaafar terlibat dalam pemeriksaan kapal iaitu Flag State yang perlu dilakukan setiap 6 bulan sekali. DS Wan Fauzi sentiasa menceritakan kepada saya, bahawa Haji Alias bin Jaafar ada meminta duit semasa membuat pemeriksaan kapal. DS Wan Fauzi juga memaklumkan kepada saya bahawa kami S/N W1Rtcw/cA00fpztjMXZfw terpaksa membayar kepada Haji Alias bin Jaafar (Nama gelaran Chochor). Saya dan DS Wan Fauzi memberi gelaran Chochor kepada Haji Alias bin Jaafar kerana bagi kami, ia bermaksud Chocolate iaitu pemanis. [Emphasis added]

Seingat saya, pada awal bulan April tahun 2019, saya pernah diarahkan oleh DS Wan Fauzi untuk bank in sejumlah duit sebanyak RM2,000 ke akaun Maybank Haji Alias bin Jaafar. Nombor akaun Maybank Haji Alias bin Jaafar ialah 1510171 13946. Saya mendapati nombor akaun Maybank Haji Alias bin Jaafar tersebut daripada DS Wan Fauzi melalui WhatsApp. Tujuan duit ini didepositkan daripada Haji Alias bin Jaafar adalah bertujuan untuk memudahkan dan mencepatkan urusan pemeriksaan kapal milik syarikat DS Wan Fauzi. [Emphasis added]

Pada 6 April 2019, lebih kurang jam 01:40 pm, saya berada di Maybank Cawangan Nusa Bestari 3 untuk mendepositkan duit berjumlah RM2,000 ke akaun Maybank Haji Alias bin Jaafar. Pada ketika itu, saya hanya seorang S/N W1Rtcw/cA00fpztjMXZfw sahaja dan tiada teman lain. Selepas itu, saya telah memaklumkan kepada Haji Alias bin Jaafar melalui WhatsApp “Salam Haji. Saya dan Bank in”. Saya juga telah memaklumkan kepada DS Wan Fauzi melalui WhatsApp “Dah bank in duit chochor” dengan melampirkan sesalinan bank in slip untuk rujukan DS Wan Fauzi. [Emphasis added] [26] During her cross-examination, I found that the accused again did not expressly challenge the incriminating evidence adduced against him. He did not dispute that he received the amount of money sent by PW13 into his account, and he did not deny that the money was for the purpose of expediting the FSC inspection. He only suggested to PW13 that he did not have the moniker “chochor”, which PW13 disagreed with. The nickname was scarcely flattering to the accused. As it is suggested, it could only mean that to expedite the inspections, the accused’s role was that of a sweatener in which money must be given to him. Hence, the word “sweat”, or as told by PW12 and PW13, “pemanis”. Further, PW13 agreed with the accused’s suggestion that PW12 and PW13 gave the moniker without the accused knowing about it. The notes of evidence read: S/N W1Rtcw/cA00fpztjMXZfw : Setuju dengan saya Haji Alias OKT kita pada hari ini tiada nama gelaran Chochor? : Tidak setuju. : Setuju dengan saya gelaran Chochor tersebut diberikan oleh awak dan juga Dato Sri tanpa pengetahuan OKT, setuju? : Setuju. [Emphasis added] [27] P55 was a photograph of a bank deposit slip from PW13’s handphone that she sent to her boss, PW12. It showed that at the time and place as stated in the first charge, the accused was given RM2,000.00. The evidence adduced through the document was consistent with what PW13 said that she sent the money to the accused based on PW12’s instruction. [28] As with PW12 earlier, the accused suggested in PW13’s cross-examination that there was no proof that the purpose of the money sent was to expedite the inspection. Granted that there was no express documentary evidence stating that the purpose was to expedite the inspection, I found that there was sufficient S/N W1Rtcw/cA00fpztjMXZfw evidence based on PW13’s testimony that the sole purpose the money was given to the accused was to expedite the inspection. [29] PW12 and PW13 were steadfast in their testimonies that they gave the money to the accused because he asked for it to expedite the FSC inspection. There was no evidence that it was given to the accused for something else. In the analysis of their evidence, I considered and evaluated the evidence thoroughly. Further, I had the advantage of hearing and seeing them testify before me. I found that there was nothing to suggest they had any motive to falsely implicate the accused. Why should they? They needed the accused for their shipping business, and that was why they gave the money to him. The money was given to him because he asked for it. Thus, I was satisfied to find that both witnesses were credible witnesses who told the truth. [30] In addition, the probabilities of the case are important to consider when dealing with the credibility of witnesses. In my considered opinion, it was inherently improbable that PW12 and PW13 were lying to fix the accused. It was unlikely that they would go to all the trouble just to create a false narration against the accused. There was nothing to show that they had an axe to grind as well. In fact, their testimonies had portrayed them negatively because they agreed to give the bribe to expedite the inspection. In Public S/N W1Rtcw/cA00fpztjMXZfw Prosecutor v. Mohd Bandar Shah bin Nordin & Anor [2008] 4 MLJ 556, the Court of Appeal opined: If a witness’s evidence is improbable, this would be a good reason for rejecting his evidence or according it very little weight. By the same token, where the evidence of a witness accords with the probabilities of a case, it would be a serious misdirection on the part of the trial court to give it little or no weight on grounds of credibility. [Emphasis added] The Federal Court in Md Zainudin Raujan v. PP [2013] 4 CLJ 21 opined: It is trite that the inherent probability or improbability of a fact in issue must be the prime consideration in deciding whether a witness is credible or not. It is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which he accepted. [Emphasis added] S/N W1Rtcw/cA00fpztjMXZfw [31] To conclude, I found that the prosecution had proved the first ingredient of the offence that the accused was given a gratification amounting to RM2,000.00.

(ii) that the gratification given was in contravention of any provision of the Act. [32] As discussed and found, the gratification was given by PW12 to the accused to expedite the FSC inspection. In my view, the gratification was in contravention of section 17(b) of the MACC Act 2009 [the Act], which provides: “A person commits an offence if –

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he corruptly gives or agrees to give or offers any gratification to any agent as an inducement or a reward for doing or forbearing to do, or for having done or forborne to do any act in relation to his principal’s affairs or business, or for showing or S/N W1Rtcw/cA00fpztjMXZfw forbearing to show favour or disfavour to any person in relation to his principal’s affairs”. [Emphasis added] [33] From the evidence adduced, I had earlier found that PW12’s purpose in giving the gratification to the accused was to expedite the FSC inspection. As an Assistant Marine Officer with the Malaysia Marine Department, the accused was certainly an agent within the meaning of an “agent” under section 3 of the Act. I had also accepted the evidence that, after the inspection was made, the accused would usually ask to be paid. Therefore, the gratification was a reward for doing an act in relation to the accused principal’s affairs, which was the Malaysia Marine Department. The interpretation of a “principal” was also provided in section 3 of the Act, and it supported the contention that the money was a reward for the accused for doing an act in relation to his principal’s affairs. [34] In the premise, I found that the prosecution had proved the second ingredient of the offence that the gratification given was in contravention of any provision of the Act, which was section 17(b).

(iii) that the accused did not report such gift together with the name of the person who gave such gratification to him to the nearest officer of the Commission or police officer. [35] In his defence, the accused did not suggest or put in any claim that he reported such gift together with PW12’s name to the MACC or a police officer. Further, based on his investigation, the Investigation Officer (PW18) said he found that the accused failed to report the bribery. In any case, it could not be expected that the accused would make any report, given that it was he who asked for the gratification in the first place. He further pocketed the money and did not make any such report to the authorities. [36] Thus, I found that the prosecution had proved the third and last ingredient of the offence for the first charge against him. The second charge

that the accused was given a gratification amounting to RM1,800.00; S/N W1Rtcw/cA00fpztjMXZfw [37] As with the first ingredient for the first charge, money was a form of gratification according to section 3 of the Act. For this second charge, the prosecution had also adduced evidence that the RM1,800.00 was a gratification to the accused as a reward to expedite the FSC inspection. [38] As discussed and found, I accepted the evidence by PW12 that the accused asked to be paid for the inspections done by him. And that the accused usually asked and received the money after conducting the inspections. During the trial, the incriminating evidence that the accused had asked for payment was not challenged by him. Further, it was not disputed that he received the RM1,800.00 from PW12. As with the first charge, the accused only suggested that the purpose of being given the money was not of a criminal nature. [39] For this second charge, the accused incredibly suggested to PW12, who owned various companies and many ships, that based on the document P5(1), the words “Loan Refund – Dato” meant that it was PW12 who borrowed the RM1,800.00 from the accused. And after that, PW12 refunded the same amount to the accused for the accused to pay for a golf tournament. PW12 disagreed with such a suggestion. He was also firm with his S/N W1Rtcw/cA00fpztjMXZfw answer that the money was to expedite the FSC inspection. The notes of evidence read: : Dalam ID5 ini menyatakan Loan Refund – Dato, setuju dengan saya ini adalah bertujuan yang mana menyatakan bahawa Dato pinjam dulu duit Alias kemudian Dato bayar balik pada Alias untuk tujuan pembayaran pertandingan golf, setuju? : Tidak setuju. : Setuju dengan saya rujuk kepada ID4 dan ID5 ini tujuan kemasukan duit sebanyak RM1,800.00 adalah bukan untuk mempercepatkan pemeriksaan FCS kapal-kapal Dato, setuju? : Tidak setuju. [40] Just like with the first charge, the accused further suggested there was no proof that the purpose of sending the money to the accused was for the inspection. Again, he did not specify what sort of proof was required and chose to remain vague. This could only mean that the intention for which the money was given was not stated and documented anywhere, and that the evidence from the prosecution was lacking. However, I found that PW12 had S/N W1Rtcw/cA00fpztjMXZfw testified earlier that the purpose was to expedite the inspection. The prosecution was not merely relying on explicit documentary evidence to prove its case. Further, PW12 said that it was the accused who asked to be paid. I had evaluated PW12’s evidence in its entirety and found him to be a credible witness. I also found that all this adverse evidence of the prosecution against him was never expressly challenged or denied by the accused. In the circumstances, how much proof must it get as required by the accused? [41] The prosecution’s case was further strengthened through the evidence of PW13. She said she was instructed by PW12 to transfer the RM1,800.00 to the accused’s bank account, which she did. In her written statement (PSSP13) in paragraph 16: : Pada 12 September, lebih kurang 07:36 AM, Haji Alias bin Jaafar telah bertanya kepada saya melalui WhatsApp berkenaan duit sejumlah RM1,800 yang telah diberikan kepada beliau, kerana beliau masih belum menerima duit tersebut. Haji Alias bin Jaafar telah menghantar mesej kepada saya melalui WhatsApp untuk meminta pertolongan saya bertanya kepada Datin Sri Fadzlina sama ada beliau telah meluluskan pembayaran RM1, 800 kepada Haji Alias bin Jaafar. Saya juga telah menghantar satu gambar S/N W1Rtcw/cA00fpztjMXZfw Payment Advice yang menunjukkan pembayaran telah berjaya dilakukan kepada Haji Alias bin Jaafar atas permintaan beliau dan membalas dengan mesej “Capt chk pukul 10 am nanti cuba tgk”. [42] It was shown in the accused CIMB Bank’s account, P9(3), that on 12.9.2019, RM1,800.00 was transferred to him. Anyway, the accused did not deny that he received the money. And as with the first charge, he suggested in PW13’s cross-examination that the purpose of giving the money was not proved. I could not accept this claim because there was sufficient evidence through PW12 and PW13 that the accused wanted to be paid for conducting the FSC inspections. I did not think that he could exculpate himself by saying that the money was for a golf tournament. As explained by PW12 and PW13, the accused was a sweatener who they had to pay to expedite the inspections; otherwise, it would not be good for their business due to any delay. [43] Thus, I found the prosecution had proved the first ingredient of the offence for the second charge against the accused.

(ii) that the gratification given was in contravention of any provision of the Act [44] Just like with the first charge, I found that the gratification was given by PW12 to the accused to expedite the FSC inspections. This contravened section 17(b) of the Act concerning a specific offence for the same reasons I explained previously for the first charge. [45] Therefore, I found the prosecution had proved the second ingredient of the offence for the second charge against the accused.

(iii) that the accused did not report such gift with the name of the person who gave such gratification to him to the nearest officer of the Commission or police officer. [46] For the third ingredient of the offence for the second charge, I was further constrained to find that the prosecution had proved the ingredient. My opinion was the same based on what I had written earlier in this judgment. S/N W1Rtcw/cA00fpztjMXZfw The third charge

that the accused was given a gratification amounting to RM2,000.00 [47] As previously discussed with the first two charges, money was a form of gratification according to section 3 of the Act. For this third charge, the prosecution had also adduced evidence that the RM2,000.00 was a gratification to the accused as a reward to expedite the FSC inspection. [48] Just like the first two charges, I accepted PW12’s evidence that the accused asked to be paid for the inspections made. For this third charge, the incriminating evidence that the accused asked for the payment was not challenged as well. It was also not denied that he was given the RM2,000.00. What he claimed was that the purpose of the money received was not to expedite the inspection of the ships. [49] PW11 was the personal driver for PW12. On 30.7.2020, PW12 instructed him to transfer RM2,000.00 to the accused through the cash deposit machine (CDM). P11 proceeded to do so on the S/N W1Rtcw/cA00fpztjMXZfw same day at the CIMB Branch at Bandar Baru Ampang to the accused’s account at the CIMB Branch at Tampoi. PW11 further testified that P54 was the bank slip that showed he sent the amount on 30.7.2020. [50] During PW11’s cross-examination, the accused suggested to him that the purpose of the transfer was for the payment of a golf tournament and not to expedite the inspection of the ships. PW11 answered that he was not sure about both suggestions. [51] Irrespective of whether PW11 was uncertain about the suggestions, PW12’s evidence was emphatically clear that the purpose of transferring the money was to expedite the inspection by the accused. PW11’s role was only to transfer the money as instructed by PW12. He was acting upon instructions from his boss. It could not be expected that he would be told everything about why he was asked to transfer the money. I accepted the evidence adduced by the prosecution on the reason why the money was given to the accused. The accused had asked to be paid for the inspections done, and I did not accept and did not believe that the payment was for something devoid of guilt. S/N W1Rtcw/cA00fpztjMXZfw [52] To conclude, I found the prosecution had proved the first ingredient of the offence for the third charge.

(ii) that the gratification given was in contravention of any provision of the Act. [53] As with the first two charges, I found that the gratification for the third charge was given by PW12 to the accused to expedite the FSC inspections. It also contravened section 17(b) of the Act for an offence that I had explained and found earlier for the previous charges. [54] Thus, I found the prosecution had proved the second ingredient of the offence for the third charge.

(iii) that the accused did not report such gift with the name of the person who gave such gratification to him to the nearest officer of the Commission or police officer. [55] For this third ingredient of the offence for the third charge, I was also constrained to find that the prosecution had proved the S/N W1Rtcw/cA00fpztjMXZfw ingredient. My opinion was the same as what I wrote previously in this judgment. Conclusion at the close of the prosecution’s case [56] I carefully scrutinised and evaluated the credibility of the witnesses together with the reliability of the evidence. The evidence was satisfactorily weighty and convincing. This court found the prosecution had adduced credible evidence to prove all the ingredients of the offence against the accused. Credible evidence is evidence that has been filtered and has gone through the process of evaluation, and any evidence that is unsafe should be rejected: PP v. Ong Cheng Heong [1998] 4 CLJ 209. [57] On maximum evaluation, the accused failed to raise any reasonable doubt in the prosecution’s case. I was guided by the often-quoted principle that a reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt unrelated to evidence: Public Prosecutor v. Saimin & Anor [1971] 1 LNS 115. S/N W1Rtcw/cA00fpztjMXZfw [58] I was further guided by the decision of Abdul Rahman bin Sebli JCA (as he then was) in Wen Wuzhuang v. PP [2018] 1 LNS

In paragraph 43, His Lordship said: Any finding of fact must be based on evidence and nothing else and this applies even where the burden is merely to raise a reasonable doubt in the prosecution’s case. The court does not deal in conjecture or speculation and there are good grounds for this which we need not elaborate on. [Emphasis added] [59] Thus, a prima facie case had been made out against the accused on the offence charged and the accused must be called upon to enter on his defence: section 173(h)(i) of the Code. A prima facie case is where the prosecution had adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction: section 173(h)(iii) of the Code. This court also explained the three options for the accused to defend himself. S/N W1Rtcw/cA00fpztjMXZfw [60] As alluded to, I had subjected the whole evidence to a maximum evaluation, which was explained by the Federal Court decision in Magendran Mohan v. PP [2011] 1 CLJ 805: [25] The test at the end of the prosecution’s case is “prima facie case” based on a maximum evaluation of evidence. The evidence has to be scrutinised properly and not perfunctorily, cursorily or superficially. If the evaluation of the evidence results in doubts in the prosecution’s case, then a prima facie case has not been made out. The defence ought not be called merely to clear or clarify such doubts. [61] The totality of the evidence against the accused was sufficient for the defence to be called, and this court was prepared to convict the accused on the charge if he had elected to remain silent: Balachandran v. PP [2005] 1 CLJ 85; PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457. S/N W1Rtcw/cA00fpztjMXZfw The defence’s case [62] The accused elected to give sworn evidence from the witness’s box. He did not call anyone else to testify. [63] I considered and tested the evidence by the accused against the ingredients of the offence that had been proved by the prosecution. There was no requirement to revisit the prosecution’s case on the findings. This was because I had made a maximum evaluation of the evidence and found the witnesses were credible and reliable. As such, it is wrong in law to revisit the findings. [64] The Federal Court in Duis Akim & Ors v. PP [2013] 9 CLJ 692 ruled that: We note that when assessing the defence the learned trial judge surprisingly revisited his earlier findings upon which he called for the defence. Such approach is quite contrary to the principle of maximum evaluation of the evidence adduced at the close of the prosecution’s case. Indeed in his judgment the learned trial judge made it very clear that S/N W1Rtcw/cA00fpztjMXZfw he had conducted a maximum evaluation of the evidence adduced by the prosecution before calling for the defence. [Emphasis added] [65] Therefore, this court was only required to put to the test and compare the evidence by the accused at this stage with the evidence of the prima facie case that had been established by the prosecution. And to consider and decide whether the accused was able to raise any reasonable doubt on the prosecution’s case at this stage as well. At the end of it, whether the prosecution would be able to prove its case beyond a reasonable doubt on the charge. Accused’s evidence (DW1) [66] At the time he testified, the accused had already retired from working with the Marine Department. He retired on 20.1.2023. He did not dispute that he inspected PW12’s ships and did not deny that money was transferred into his bank accounts as stated in the three charges against him. He claimed that the inspections he made were ordinary inspections that had no bribery element because he followed the standard operating procedure. S/N W1Rtcw/cA00fpztjMXZfw [67] He informed his Counsel that for the first charge against him, there was no purpose for the money that was transferred into his account. On whether he knew that the money was transferred by PW12, he said he did not know. The notes of evidence showed: PB : Encik Alias, jawab pada soalan sahaja ya. Apa tujuan duit RM2,000 dimasukkan ke dalam akaun Encik Alias pada 6 April 2019? OKT : Tiada tujuan apa-apa. PB : Adakah Encik Alias mempunyai pengetahuan duit tersebut dimasukkan RM2,000 pada 6 April ke dalam akaun Encik Alias oleh Wan Fauzi, ada pengetahuan tidak? OKT : Tiada. [68] I found it hard to believe the accused’s answer that there was no purpose for the money that was transferred into his account. As an explanation, the answer was illogical and did not make sense at all. Next, the accused said that he had no knowledge that the money was transferred into his account by PW12. However, this answer was never put to PW12 or any of the prosecution’s witnesses before. As mentioned previously, the accused did not S/N W1Rtcw/cA00fpztjMXZfw dispute that the money was sent into his account. Further, during his cross-examination, the accused contradicted himself by saying that he knew about the money in his account. He added that the money was possibly because of a payment by his brother or from a subordinate. The notes of evidence showed: TPR : Dengan izin Tuan Hakim. Pohon tertuduh dirujuk dengan P7. Tadi encik kata kamu tahu baca pernyataan akaun. Kalau merujuk kepada pernyataan akaun bank ini P7 pada tarikh 6 April 2019 ada satu kemasukan duit RM2,000, encik tahu kemasukan duit tersebut? OKT : Ya, kemasukan duit ini kemungkinan daripada adik saya bayar hutang saya ataupun anak buah saya bayar hutang saya. [69] In my considered opinion, all the answers given by the accused to explain the first charge against him did not answer anything at all. First, he said there was no purpose. Then, he did not know that PW12 sent him the money, and later he said he knew about it, perhaps because someone paid a debt to him. So, which one is which? This sort of answer could not create any reasonable doubt in the prosecution’s case that the accused was required to S/N W1Rtcw/cA00fpztjMXZfw answer. The answers given by the accused contradicted each other as well, and this was indicative of his lack of credibility. Thus, I was not inclined to find that the accused had created a doubt in the truth of the prosecution’s case on the first charge against him. [70] As for the second charge, the accused said that PW12 gave him the money to pay for a golf tournament and that it was to sponsor it. After he obtained the money, he gave it to the organiser. So that was the purpose for which the money was given to him. However, this assertion that it was a sponsorship was not put to PW12 when he testified. It was an afterthought and a recent invention. As I had quoted from the notes of evidence and discussed previously, what was suggested to PW12 was different. It was put to him that PW12 borrowed the money from the accused and then repaid it for the accused to pay for the tournament, in which PW12 disagreed. PW12 further disagreed that the money was not to expedite the inspections. [71] The afterthought continued in his re-examination, where the accused said that he did not ask PW12 to sponsor the tournament, but that it was PW12 who wanted to sponsor it. The notes of evidence read: S/N W1Rtcw/cA00fpztjMXZfw OKT : Saya tidak minta dia sponsor cuma saya memaklumkan pada dia ada tournament untuk golf senior golfer dan dia berhasrat untuk sponsor dan dia cakap dia akan salurkan duit itu ke dalam akaun saya on behalf untuk company dia sebagai sumbangan kepada tournament golf itu. Itu sahaja. [72] The exculpatory contention that PW12 gave the money to sponsor the game and that he wanted to sponsor the game without the accused asking for it was never raised when PW12 testified. Why was that so? PW12 had no opportunity to admit or to deny, or to explain during the trial. If it was true that the money sent was to sponsor the tournament, then why was it not put as such at the earliest available opportunity? Why must the accused keep it up his sleeve and not challenge PW12 when he gave evidence if the purpose was innocent? The accused did not offer any explanation on this belated afterthought defence, and I did not accept it as raising any reasonable doubt in the prosecution’s case regarding the second charge against the accused: Public Prosecutor v. Lin Lian Chen [1992] 4 CLJ 2086; Megat Halim Megat Omar v. PP [2009] 1 CLJ 154. S/N W1Rtcw/cA00fpztjMXZfw [73] In relation to the third charge against him, the accused simply claimed that he did not know that the money was sent into his account. It was a bare denial, and it did not provide any specific or substantiated explanation or alternative version of events. A denial without any evidence to support it was not sufficient to create a reasonable doubt to force out the prosecution’s case. I did not accept what the accused claimed because a bare denial was no defence: Paramasivam & Ors v. Public Prosecutor [1948] 1 LNS 90; PP v. Reza Ahmad Shah [2002] 1 LNS 157; Losali v. PP [2012] 2 CLJ 178. [74] And to conclude his testimony, the accused said the reason he did not make any report to the authorities was that he did not receive any money from the accused. That was it, and no other reason or clarification was proffered by him. [75] To recapitulate, I had carefully considered what the accused testified in his defence. I juxtaposed his explanation, or the lack of it, with the evidence adduced by the prosecution to prove all the ingredients of the offences against him. I found that the explanation by the accused consisted of contradicting versions, afterthought and bare denial. His testimony stood in stark contrast to the evidence adduced by the prosecution. In my considered view, the explanation failed to answer the real questions in the S/N W1Rtcw/cA00fpztjMXZfw indictments against him and merely sought to deflect the prosecution’s case. Therefore, I did not accept or believe the accused’s explanation, and it did not raise in my mind any reasonable doubt as to his guilt: Mat v. PP [1963] 1 LNS 82. Conclusion at the close of the defence’s case [76] At the conclusion of the trial, this court found that the accused failed to raise any reasonable doubt in the case for the prosecution. Irrespective of whether a court is otherwise convinced in its own mind of the guilt or innocence of the accused, its decision must be based on the evidence adduced and nothing else: Sia Soon Suan v. Public Prosecutor [1966] 1 MLJ 116. Having considered all the evidence adduced, it was my firm finding that the prosecution had proved its case beyond reasonable doubt against the accused: see section 173(m)(i) of the Criminal Procedure Code. [77] Therefore, I found the accused guilty of all the charges for he was indicted. Accordingly, the accused was convicted of the charges. S/N W1Rtcw/cA00fpztjMXZfw The sentence [78] Section 25(2) of the Act reads: Any person who fails to comply with subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both. [79] The provision provides a severe penalty for those who commit the offences under the Act. It reflected the intention of the Act to prevent and combat corruption in a special statute. It was also important that any sentence passed by the court must be in accordance with the law. A sentence, according to the law, must not only be within the ambit of the punishable section but must also be assessed and passed according to the established judicial principles: PP v. Jafa bin Daud [1981] 1 LNS 26 at page 2. [80] In the mitigation by his Counsel, the accused asked for a lenient sentence. It was submitted that the accused had been suspended from his job since 2021, when he was first charged in court. He had to support 7 children, where 2 of them were still schooling, S/N W1Rtcw/cA00fpztjMXZfw and his wife was not working. He had a serious health issue and had to go for dialysis three times a week. Further, the offences committed were not serious, given that they were only failures to report. These were the accused’s first criminal convictions, and he pleaded for a sentence of fine only. [81] The prosecution submitted that the offences committed were serious and the public interest must override the interest of the accused. The sentence should serve as a deterrent for others. Further, as an Assistant Marine Officer, the accused had breached the trust given to him by the public. The imposition of only a sentence of fine was not appropriate, given that the accused did not plead guilty. [82] The accused’s plea in mitigation must not be lightly disregarded despite being found guilty after a full trial. It must be equally considered with the public interest as represented by the prosecution. In my view, this was the proper way to strike a balance to decide on the sentence. Having said that, no sentence could be assessed by a simple mathematical formula because many factors had to be taken into consideration based on the facts and circumstances in each case: Mohamed Jusoh bin Abdullah and Another v. Public Prosecutor [1947] 1 LNS 73. S/N W1Rtcw/cA00fpztjMXZfw [83] I considered that the accused was found guilty after a full trial had taken place. Many witnesses had come to testify, and a lot more time was needed for the trial to end. If the accused had pleaded guilty, it would have saved a lot of time for everybody. Further, if he had done so and said he was remorseful, then it would have been more convincing than after a full trial if he said he had repented. And he would have deserved a lesser sentence than what he was sentenced to in the instant case. However, the accused chose to claim trial as was his right. Be that as it may, I had also factored in the fact that these were his first criminal convictions. [84] To my mind, the accused had committed serious offences. They were not trivial at all. These offences were not merely failures to report something. They were failures to report bribes that were given to him in contravention of a provision under the Act. Further, the accused asked for the bribes in the first place to expedite the FSC inspections. A lot has been said about the damaging impacts of corruption, especially if it involves enforcement agencies. What the accused did was a crime impacting the business community, society and the nation. As such, in my view, the public interest must override the interest of the accused, and a deterrent sentence must necessarily be imposed. S/N W1Rtcw/cA00fpztjMXZfw [85] Thus, it was my considered opinion that the sentence against the accused was just and appropriate. The sentence was not manifestly excessive on the facts and the circumstances of the case. Dated on this day, 30th October 2025 -sgd- (DATUK AHMAD KAMAL ARIFIN BIN ISMAIL) Judge Sessions Court Johor Bahru For the prosecution : DPP Hazel Tan Jia Qi PO Selvam T. Armugom For the accused :