Azahar Bin Ahmad v Pendakwaraya (42R(A)-03-03/2016)

This is an appeal against the conviction and sentence meted by the Sessions Court on four corruption charges.

The Appellant was charged as follows: Pertuduhan Pindaan Pertama Bahawa kamu pada 18.02.2014 jam lebih kurang 1230 hours, di pejabat Jabatan Perhutanan Pulau Pinang, Tingkat 20, KOMTAR, dalam Daerah Timur Laut, dalam Negeri Pulau Pinang, sebagai pegawai badan awam iaitu Timbalan Pengarah Perhutanan (Pembangunan) yang bertugas di Jabatan Perhutanan Pulau Pinang, Daerah Timur Laut , Pulau Pinang, telah secara rasuah meminta suatu suapan untuk diri kamu sendiri iaitu wang tunai sebanyak RM4,000.00 daripada Dazari bin Jalan @ Darus sebagai dorongan untuk memberikan Projek Bio Teknologi Hutan 17, Tumbuhan Ubat-Ubatan dan 3 Herba di Hutan Lipur Teluk Bahang Pulau Pinang dan dengan ini kamu telah melakukan satu kesalahan di bawah seksyen 16(a)(B) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 (Akta 694) dan boleh dihukum di bawah seksyen 24 Akta yang sama. Pertuduhan Pindaan Kedua Bahawa kamu pada 18.02.2014 jam lebih kurang 1.00 petang, di lobi tingkat 3, KOMTAR, dalam Daerah Timur Laut, dalam Negeri Pulau Pinang, sebagai pegawai badan awam iaitu Timbalan Pengarah Perhutanan (Pembangunan) yang bertugas di Jabatan Perhutanan Pulau Pinang, Daerah Timur Laut, Pulau Pinang, telah secara rasuah memperoleh suatu suapan untuk diri kamu sendiri iaitu wang tunai sebanyak RM200.00 daripada Dazari bin Jalan @ Darus, sebagai dorongan untuk melakukan suatu perkara yang berhubungan dengan hal ehwal prinsipal kamu iaitu memberikan Projek Bio Teknologi Hutan 17, Tumbuhan Ubat-Ubatan dan Herba di Hutan Lipur Teluk Bahang Pulau Pinang dan dengan ini kamu telah melakukan satu kesalahan di bawah seksyen 17(a) Akta Suruhanjaya 4 Pencegahan Rasuah Malaysia 2009 (Akta 694) dan boleh dihukum di bawah seksyen 24 Akta yang sama. Pertuduhan Pindaan Ketiga Bahawa kamu pada 24.02.2014 jam lebih kurang 1805 hours, di Restoran Nasi Kandar Pelita Bayan Baru, Jalan Tengah Bayan Baru, Bayan Lepas, dalam Daerah Barat Daya, dalam Negeri Pulau Pinang, sebagai pegawai badan awam iaitu Timbalan Pengarah Perhutanan (Pembangunan) yang bertugas di Jabatan Perhutanan Pulau Pinang, Daerah Timur Laut, Pulau Pinang, telah secara rasuah memperoleh untuk diri kamu sendiri suatu suapan iaitu wang tunai sebanyak RM1,000.00 iaitu sebahagian dari jumlah suapan RM4,000.00 yang diminta daripada Dazari bin Jalan @ Darus sebagai dorongan untuk melakukan suatu perkara yang berhubungan dengan hal ehwal prinsipal kamu iaitu memberikan Projek Bio Teknologi Hutan 17, Tumbuhan Ubat-Ubatan dan Herba di Hutan Lipur Teluk Bahang Pulau Pinang dan dengan ini kamu telah melakukan satu kesalahan di bawah Seksyen 17(a) Akta Suruhanjaya 5 Pencegahan Rasuah Malaysia 2009 (Akta 694) dan boleh dihukum di bawah seksyen 24 Akta yang sama. Pertuduhan Pindaan Keempat Bahawa kamu pada 24.02.2014 jam lebih kurang 1805 hours, di Restoran Nasi Kandar Pelita Bayan Baru, Jalan Tengah Bayan Baru, Bayan Lepas dalam Daerah Barat Daya, dalam Negeri Pulau Pinang, sebagai pegawai badan awam iaitu Timbalan Pengarah Perhutanan (Pembangunan) yang bertugas di Jabatan Perhutanan Pulau Pinang, Daerah Timur Laut , Pulau Pinang telah secara rasuah meminta suatu suapan untuk diri kamu sendiri iaitu wang tunai sebanyak RM4,500.00 daripada Dazari bin Jalan @ Darus sebagai dorongan untuk memberikan Projek Bio Teknologi Hutan 17, Tumbuhan Ubat-Ubatan dan Herba di Hutan Lipur Teluk Bahang Pulau Pinang dan dengan ini kamu telah melakukan satu kesalahan di bawah seksyen 16(a)(B) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 (Akta 694) dan boleh dihukum di bawah seksyen 24 Akta yang sama. 6

After trial, the learned Sessions Court Judge on 25 February 2016 convicted and sentenced the Appellant as follows: (i.) First Amended Charge: 2 years imprisonment from date of conviction and RM20,000.00 fine, in default 2 months imprisonment; (ii.) Second Amended Charge: 1 year imprisonment from date of conviction and RM10,000.00 fine, in default 1 month imprisonment; (iii.) Third Amended Charge: 1 year imprisonment from date of conviction and RM10,000.00 fine, in default 1 month imprisonment; and (iv.) Fourth Amended Charge: 2 years imprisonment from date of conviction and RM20,000.00 fine, in default 2 months imprisonment.

The Appellant was dissatisfied with the decision of the Sessions Court and has on 6 August 2016 filed his Notice of Appeal to the High 7 Court. In the Notice of Appeal, the Appellant raised 46 grounds of appeal.

After having read the Appeal Record and written submissions of the parties, I heard oral submissions from counsel on 15 March 2018 and 27 April 2018. I thereafter adjourned my decision to deliberate on the arguments that were advanced by counsel.

After having done so, I hereby set out below my decision together with the supporting grounds.

The complainant SP5 who is the manager of Daminial Enterprise (which is owned by his wife) which is involved in the business of carrying out of landscaping works. Daminial Enterprise in December 2013 carried out the Projek Penubuhan Sudut Herba (Projek Herba Fasa 1) in Teluk Bahang pursuant to the contract awarded by the Jabatan Perhutanan Negeri Pulau Pinang (“Forestry Department”). Around January - February 2014, the Forestry Department planned to launch the Projek Bio Teknologi Hutan 17, Tumbuhan Ubat-Ubatan 8 dan Herba di Hutan Lipur Teluk Bahang Pulau Pinang (“Projek Herba Fasa 2”). The budget estimate of this Projek Herba Fasa 2 was fixed at RM28,000.00. The Appellant was privy to all these information.

On 17 February 2014, the Appellant contacted SP5 vide telephone to discuss about the Projek Herba Fasa 2 and they met at 12.30pm on 18 February 2014 in the Appellant’s office in KOMTAR. The Appellant informed SP5 that the Projek Herba Fasa 2 was under discussion and the budget estimate was already fixed. He then asked RM4,000.00 from SP5 in consideration of awarding the contract for the Projek Herba Fasa 2 to Daminial Enterprise. As the result, SP5 withdrew some money from the CIMB bank account of Daminial Enterprise and paid the Appellant RM200.00.

On 23 February 2014, the Appellant again contacted SP5 vide telephone for further payment of RM1000.00 the next day. In consequence, SP5 lodged a complaint with the Malaysia Anti Corruption Commission (“MACC”) on 24 February 2014. SP5 was accordingly directed to make two recorded calls to the Appellant and the payment was arranged to be made at the Pelita Nasi Kandar Restaurant at Bayan Baru that evening. As arranged by the MACC, 9 SP5 was given RM1,000.00 marked notes to be given to the Appellant. Additionally, SP6 will masquerade as SP5’s daughter to witness the transaction.

Subsequently at 6.00pm that evening on 24 February 2014, SP5 and SP6 met the Appellant at the aforesaid nasi kandar restaurant. Nothing was discussed then on the Projek Herba Fasa 2 in the presence of SP6. After SP6 withdrew therefrom on the pretext to purchase something, the Appellant again discussed the Herba Fasa 2 Projek with SP5 including asking for RM 4,500.00 in consideration of awarding the contract for the Projek Harta Fasa 2 to Daminial Enterprise. In consequence, SP5 handed over to the Appellant the RM1,000.00 asked by the Appellant. This was also witnessed by SP7 and SP8. After SP5 withdrew therefrom, SP11 arrested the Appellant and he handed over to SP11 the money received from SP5 from his pocket. The RM1,000.00 were the same marked notes given to SP5 by the MACC. 10

My appellate function pursuant to s. 316 of the Criminal Procedure Code is neatly encapsulated by Zawawi Salleh JCA (now FCJ) as follows in the Court of Appeal case of Mohd Yusri Mangsor & Anor v. PP [2014] 7 CLJ 897; [2014] 4 MLJ 875 at 882 (MLJ); 903 (CLJ): “[4]... We have also scrutinised the records available before us. We are mindful that this is a factual based appeal. It is trite that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts by the trial court to which the law entrusts the primary task of evaluation of the evidence. However, there are exceptions. Where:

the judgment is based upon a wrong premise of fact or of law;

there was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him; 11

the trial judge has completely overlooked the inherent probabilities of the case;

that the course of events affirmed by the trial judge could not have occurred;

the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or

the trial judge had so fundamentally misdirected himself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion, then an appellate court will intervene to rectify that error so that injustice is not occasioned (see

(M) Sdn Bhd v. Conlay Construction Sdn Bhd [2013] 9 CLJ 828; [2012] 4 MLJ 149, (CA); Sivalingam a/l Periasamy v. Periasamy & Anor [1996] 4 CLJ 545; [1995] 3 MLJ 395; [1996] 4 CLJ 545 (CA)).” 12 Although there were 46 grounds of appeal put forth by the Appellant, they can be conveniently collated into and dealt with under several broad issues seriatim parked under conviction and sentence.

The first issue is whether the learned Sessions Court Judge erred in finding a prima facie case against the Appellant on all four charges.

It is foremost relevant and apt that ss. 16 and 17 of the Malaysia Anti Corruption Commission Act 2009 (“MACC Act”) are reproduced: “16. Offence of accepting gratification Any person who by himself, or by or in conjunction with any other person-

corruptly solicits or receives or agrees to receive for himself or for any other person; or 13

corruptly gives, promises or offers to any person whether for the benefit of that person or of another person, any gratification as an inducement to or a reward for, or otherwise on account of-

(A) any person doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place; or

(B) any officer of a public body doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place, in which the public body is concerned, commits an offence.

Offence of giving or accepting gratification by agent A person commits an offence if-

being an agent, he corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for 14 any other person, any gratification 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 forbearing to show favour or disfavour to any person in relation to his principal's affairs or business; or

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 forbearing to show favour or disfavour to any person in relation to his principal's affairs or business.”

The Respondent submitted that the learned Sessions Court Judge did not err in fact and/or law in finding that a prima facie was proved. This is because she correctly found from the evidence adduced before her that: (i.) The Appellant as Timbalan Pengarah Perhutanan (Pembangunan) (Deputy Forestry Director (Development) of 15 the Forestry Department, Penang is plainly an officer of a public body at the material time; (ii.) The Appellant solicited gratification of RM4,000.00 and RM4,500.00 in cash from Dazari bin Jalani @ Darus; (iii.) The Appellant received gratification of RM200.00 and RM1,000.00 in cash from Dazari bin Jalani @ Darus; (iv.) The Appellant solicited and received the gratification corruptly; and (v.) The Appellant received the gratification as inducement to do an act in connection with the affairs of his principal.

The findings of the learned Sessions Court Judge are seen in paragraphs 38 to 56 of her grounds of judgment.

I have reviewed the grounds of judgment of the learned Judge and I am satisfied that she has properly and correctly found the Appellant 16 an officer of a public body as testified by SP1 and on the documentary evidence produced by him.

Next I am satisfied that she has properly and correctly found that the Appellant solicited gratification of RM4,000 and RM4,500 separately on two separate occasions as charged based on the testimony of Dazari bin Jalani @ Darus SP5 as well as the circumstantial evidence that existed following Attan bin Abdul Ghani v. Public Prosecutor [1970] 2 MLJ 143. In addition, I am satisfied that the learned Judge has properly and correctly found that the Appellant also received the gratification of RM200.00 and RM1,000.00 on two separate occasions as charged based on the testimony of SP5 and SP3 on the first occasion on 18 February 2014 and the testimony of SP5, SP7, SP8 , SP11 and SP12 on the second occasion on 24 February 2014. The latter is also supported by a CCTV footage that captured the Appellant receiving money. That aside, the money received were marked notes found in the Appellant’s pocket. Therefore the case of PP v. Nguyen Van Thin [2018] 1 LNS 25 relied by the Appellant is contrastable especially because of the marked notes found with the Appellant in this case. Furthermore and since the findings of the learned Judge largely involved evaluation of witnesses, I am 17 cognizant that in the Federal Court case of UEM Group Bhd v. Genysis Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 Raus Shariff FCJ (now CJ) held as follows: "... It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. (See Chow Yee Wah & Anor v. Choo Ah Pat [1978] 1 LNS 32; Watt or Thomas v. Thomas [1947] AC 484; and Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309)."

I am cognizant that the Appellant challenged the CCTV evidence of the incident at the Pelita Nasi Kandar restaurant at Bayan Baru on 24 February 2014 that it was received by the learned Judge notwithstanding non compliance of s. 90A of the Evidence Act 1950. The Appellant did not specifically particularize the nature of the alleged non compliance. However it is plain that the prosecution tendered the s. 90A certificate in evidence. Thus based on s. 90(4) of the Evidence Act and the decision of the Federal Court in Ahmad 18 Najib bin Aris v. Public Prosecutor [2009] 2 MLJ 613, there is the presumption that the computerized CCTV camera which made the recording was in good working order and operating properly in all respects unless otherwise rebutted by the Appellant. The Appellant did not in fact query SP13, the investigating officer on this aspect. The challenge is hence misconceived.

In addition, the Appellant submitted that the learned Judge erred in law by failing to take into account that SP13 made a call to SP5 using the mobile phone of the Appellant after it was seized. Accordingly, there was a break in the chain of evidence in the prosecution’s case. SP13 however explained in his testimony that it was done to verify the mobile phone number of SP5 indeed existed in the Appellant’s mobile phone. The call lasted 4 seconds only. Upon review, I am satisfied with SP13’s explanation and hold that it was reasonably done without any sinister motive. The learned Judge was therefore correct in having rejected the Appellant’s argument in this respect.

The Appellant also submitted that the testimony of SP5 required corroboration but the learned Sessions Court Judge adopted and acted on the uncorroborated evidence of SP5 in convicting the 19 Appellant on the third and fourth amended charges because he acted in collusion with the MACC. I find and hold that the submissions of the Appellant are misconceived and devoid of merit in light of s. 52 of the MACC Act that stipulates: “52. Evidence of accomplice and agent provocateur

Notwithstanding any written law or rule of law to the contrary, in any proceedings against any person for an offence under this Act-

no witness shall be regarded as an accomplice by reason only of such witness having-

accepted, received, obtained, solicited, agreed to accept or receive, or attempted to obtain any gratification from any person;

(ii) given, promised, offered or agreed to give any gratification; or 20

(iii) been in any manner concerned in the commission of such offence or having knowledge of the commission of the offence;

no agent provocateur, whether he is an officer of the commission or not, shall be presumed to be unworthy of credit by reason only of his having attempted to commit, or to abet, having abetted or having been engaged in a criminal conspiracy to commit, such offence if the main purpose of such attempt, abetment or engagement was to secure evidence against such person; and

any statement, whether oral or written, made to an agent provocateur by such person shall be admissible as evidence at his trial.

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 any 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 21 failed to refer in the grounds of its judgment to the need to warn itself against the danger of convicting on such evidence.” In the Federal Court case of Mohd Khir Toyo v. PP [2015] 8 CLJ 769 Jeffery Tan FCJ held as follows with emphasis added: “The submission that SP2 was an accomplice, that SP2 must be corroborated, and so forth and so forth, must also fail. As said, s.165 of the Code was prescribed offence and the provisions of the ACA 1997 wholly applied. Section 44 of the ACA 1997 read:

Notwithstanding any written law or rule of law to the contrary, in any proceedings against any person for an offence under this Act:

no witness shall be regarded as an accomplice by reason only of such witness having: 22

accepted, received, obtained, solicited, agreed to accept or receive, or attempted to obtain any gratification from any person;

(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;

no agent provocateur, whether he is an officer of the Agency or not, shall be presumed to be unworthy of credit by reason only of his having attempted to commit, or to abet, having abetted or having been engaged in criminal conspiracy to commit, such offence if the main purpose of such attempt, abetment or engagement was to secure evidence against such person; and

any statement, whether oral or written, made to an agent provocateur by such person shall be admissible as evidence at his trial. 23

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 any 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 of convicting on such evidence.

In any event, I further find and hold that SP5’s testimony was amply corroborated by the testimony of SP2, SP3, SP7, SP8, SP11 and SP12 as well as the CCTV evidence at various points of the transaction of solicitation and receipt of the gratification were 25 concerned on that day. The case of Ramli Satu v. PP [1998] 5 CLJ 671 relied by the Appellant is distinguishable on the facts principally because the trap witness was not found to be a credible witness as his testimony was shifty, evasive and not reliable.

Moreover I am also satisfied that the learned Sessions Court Judge correctly and properly by inference found that the Appellant solicited and received the gratification corruptly as inducement in connection with the award of contract for the Projek Herbal Fasa 2 following Public Prosecutor v. Datuk Hj. Harun Idris (No. 2) [1977] 1 MLJ 15 as well as s. 50(1) of the MACC Act which provides: “50. Presumption in certain offences

Where in any proceedings against any person for an offence under section 16, 17, 18, 20, 21, 22 or 23 it is proved that any gratification has been received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered, by or to the accused, the gratification shall be presumed to have been corruptly received or agreed to be 26 received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered as an inducement or a reward for or on account of the matters set out in the particulars of the offence, unless the contrary is proved. …” and as interpreted following Public Prosecutor v. Yuvaraj [1969] 2 MLJ 89. As testified by SP5, it is seen that the Appellant disclosed to him the estimated value of the Herba Fasa 2 Projek which is secret and confidential. The object was plainly to ensure that Daminial Enterprise secures the contract for the Projek Herba Fasa 2. Furthermore, it is also plain that the Appellant acted in breach of Bab D Peraturan-Peraturan Pegawai Awam by receiving money from SP5. The Appellant was prohibited from receiving money in the course of his official function dealing with the public. Consequently, the presumption under s. 50 of the MACC Act had been properly and 27 correctly invoked by the learned Judge and the burden is shifted to the Appellant to satisfactorily explain otherwise.

I am mindful that the Appellant further submitted there were certain discrepancies in the testimony of SP5 as pointed out by him but I find on review of the notes of proceedings that the alleged discrepancies were only minor differences due to imperfect recollection or repetition of facts that had elapsed 1 ½ years between the incident and trial. They were not material differences. I am therefore not surprised that the learned Sessions Court Judge did not heed the alleged discrepancies. As to the questions asked by the learned Judge to SP5 which the Appellant felt objectionable, I find that they were asked to clarify the answers of SP5 rather than to bolster the prosecution’s case as alleged.

I am aware that the Appellant also strenuously submitted that the original charges as they stood at the end of the prosecution case were bad because the money allegedly solicited and received by the Appellant weren’t stated as for himself. In other words, the charges were bad because of the error or defect. 28

In this regard, s. 156 of the Criminal Procedure Code however provides as follows: “156. Effects of error No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded, at any stage of the case, as material unless the accused was in fact misled by that error or omission.

A is charged under section 242 of the Penal Code with "having been in possession of counterfeit coin, having known at the time when he became possessed of it that the coin was counterfeit" the word "fraudulently" being omitted in the charge. Unless it appears that A was in fact misled by this omission the error shall not be regarded as material. 29

A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out incorrectly. A defends himself, calls witnesses, and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material.

A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no defence. The Court may infer from these facts that the omission to set out the manner of the cheating was, in this case, a material error.

A is charged with the murder of John Smith on the 6 June,

In fact the murdered person's name was James Smith and the date of the murder was the 5 June, 1910. A was never charged with any murder but one, and had heard the inquiry before the Magistrate which referred exclusively to the case of James Smith. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial. 30

A was charged with murdering James Smith on the 5 June, 1910, and John Smith (who tried to arrest him for that murder) on the 6 June, 1910. When charged for the murder of James Smith he was tried for the murder of John Smith. The witnesses present in his defence were witnesses in the case of James Smith. The Court may infer from this that A was misled and that the error was material.” In Zulkiflee Mohd Dom v. Public Prosecutor [1999] 3 CLJ Supp 290, Augustine Paul JC (later FCJ) held as follows in respect of the application of s. 156: “On the other hand the words in s. 156"... at any stage of the case..." and "... unless the accused was in fact misled by such error or omission..." show that this section is activated after the commencement of the trial. This is obvious as the question of the accused being misled or not will only arise at that stage. 31 The section states in unmistakable terms that if the accused has not been misled such error or omission to state the offence or the particulars required shall not be regarded as material. The fact that the accused has not been misled despite the defect in the charge amounts to the objects of s. 154 being satisfied. It follows that the object of s. 156 is to ensure that technical defects in the charge should not be allowed to defeat the ends of justice. In considering the application and object of this section the AIR Commentaries on The Code of Criminal Procedure 1973 Vol 2 says at p. 594, It is for the Court to decide in each case whether the defect in a charge has misled the accused. The question of prejudice to the accused is ultimately one of inference from all the facts and circumstances of the case. 32 The Court will be slow to entertain the question of prejudice when the details are not furnished. In considering the question whether the accused has been prejudiced in his defence by the defect in the charge, regard must be had to the fact that the objection to the frame of the charge was not raised till a late stage of the proceedings. The section is aimed, among other things, at objections on the ground of variance between the charge and the evidence. But the fundamental principle in all criminal charges is that the accused should not be prejudiced in his defence and, therefore, where a charge expressed in vague terms has been understood in a certain sense and proceedings have gone on such basis, it is not thereafter open to the prosecution to contend that the charge means something else. The object of the section is that technical defects in the charge should not be allowed to defeat the ends of justice. 33 The corollary is that a conviction cannot be set aside unless the accused has been misled by the omission of an essential ingredient in the charge as the section is in mandatory terms (See Low Seng Wah V. Public Prosecutor [1961] 1 LNS 55). The burden is on the accused to establish that he was misled by the error or omission. As Neal J said in Low Seng Wah V. Public Prosecutor [1961] 1 LNS 55 in considering s. 156 of the Code (at p. 109): It appears to me, therefore, that to succeed on this appeal the appellant must establish two things. Firstly, that an essential ingredient of the offence was omitted from the charge and secondly, he was misled by that omission.”

From my review of the notes of proceedings, I do not find that the Appellant was misled in the conduct of his defence when cross examining the witnesses of the prosecution. Pursuant to ss. 16 and 17 of the MACC Act, an offence is committed if the gratification was meant for the Accused or any other person. Notwithstanding that the gratification for himself was not stated in the charges, it is plain that 34 the learned Judge had no doubt that the Appellant knew at all material times that the gratification was for the Appellant’s own benefit. There is no indication whatsoever to the contrary at that stage of the proceedings by the Appellant suggesting to the prosecution’s witnesses that the gratification was instead meant to benefit someone else. Simply put, the Appellant was neither misled nor confused with the charges as framed. In Remely Hussain v. PP [2005] 8 CLJ 573, VT Singham J held as follows: “Be that as it may, since the appellant who was represented by counsel had proceeded to cross-examine the prosecution's witnesses, he cannot now complain that he was misled or prejudiced and that the omission of the material ingredient had occasioned a miscarriage of justice as he must have been aware of the charge against him for his counsel to cross-examine the prosecution witnesses, put questions to them and disclosed his line of defence. (See Public Prosecutor v. Mohamed Fathi Bin Haji Ahmad [1978] 1 LNS 157; [1974] 2 MLJ 75). In fact, from the questions put to the prosecution witnesses it is clear that the appellant was attempting to show that the said cheque for the sum of RM2,000 was received not 35 for himself but for someone and in this case, he had used the said money for the purchase of the computer which was placed in the office of the mechanical department of the Public Works Department, Ipoh. The question of whether the error, or omission in the charge has or has not occasioned a failure of justice is a question of fact and it will all depend on the facts and circumstances of each case as observed earlier by this court. (See Makkhan & Others v. Emperor AIR (32) [1945] Allahabad 81). In Mahfuz Ali v. State Air [1953] Allahabad 110 [Vol. 40, C.N. 46], Mukerji J. said: The first point which was raised was that the charge which was framed was defective in as much as it did not indicate the manner in which the accused had abused his position in order to have pecuniary advantage by illegal and corrupt means. It was further said that the illegal and corrupt means employed was also not indicated in the charge. In my opinion the inclusion of all these matters in the charge may have and possibly would have, made the charge better but their absence from the 36 charge did not amount to anything more than a petty irregularity which could be cured, specially, when I find that by this no prejudice has been caused to the accused. (See Low Seng Wah v. Public Prosecutor [1961] 1 LNS 55; [1962] 28 MLJ 107, Billinghurst & Ors v. King Emperor A.I.R 1924 Cal 18 and Damodaran v. The State of Travancore - Cochin A.I.R. [1953] S.C. 462). In the circumstances and on the set of the facts in the instant case, this court is of the view that even though the material ingredient was omitted from the charge namely, the words for himself or for any other person, it did not vitiate the entire trial or had occasioned a miscarriage of justice or misled the appellant. The only question that is to be considered on the said issue is, whether the appellant has been prejudiced by the omission, whether he was taken by surprise and whether prejudice was occasioned by such surprise. On the set of facts and the circumstances in the instant case and the fact that the objection was not raised at the outset or during the trial, it is clear that the appellant was not taken by surprise or he was prejudiced as he was able to cross-examine the prosecution 37 witnesses, put questions and propose his line of defence and he was able to reply intelligently in his defence.”

In the circumstances, I hold that the omission of reference of the gratification to the Appellant himself in the charges as originally framed was not material and of any adverse consequential effect as contended by the Appellant. The case of PP v. Dr Abdul Malik Md Yusoff [2017] 1 LNS 635 relied by the Appellant is distinguishable on its facts.

Consequently, I find that the learned judge properly and correctly found that a prima facie case has been proved by the Respondent and accordingly called the Appellant to enter his defence.

At the commencement of the stage of the defence case, the Respondent applied to amend all the charges to that as they now stood. The amendment was basically to add that the gratification was to benefit the Appellant. The Sessions Court is empowered to allow it pursuant to s. 158 of the Criminal Procedure Code. The issue that was raised by the Appellant in consequence is failure by the learned Judge by affording the Appellant to again plead on the amended 38 charges. Accordingly, the Appellant in essence submitted that a mistrial had occasioned.

In this regard, it is provided in s. 158(2) of the Criminal Procedure Code as follows: “158. Court may add or alter to charge

Any Court may alter or add to any charge at any time before judgment is pronounced.

Every such alteration or addition shall be read and explained to the accused.” In the Court of Appeal case of Yong Kar Mun v. Public Prosecutor [2012] 6 MLJ 209, Abdul Malik Ishak JCA held as follows: “[57] It is crystal clear that s 158 of the CPC is worded widely. It permits the court to amend the charge at any stage before judgment is pronounced (Public Prosecutor v Tan Kim Kang & Ors [1962] MLJ 388). In our judgment, it is permissible under s 39 158 of the CPC to amend the charge after defence has been called but before judgment is pronounced.” Subsequently in the Court of Appeal case of Chieng Chung Ting v. PP [2015] 1 CLJ 765, Abdul Wahab Patail JCA held as follows: “[18] In our view, therefore, s. 158 of the CPC had been complied with. Section 158(2) provides only that every such alteration or addition shall be read and explained to the accused. It does not require that a plea be taken again. If, after the amendment, an accused does not inform the court that he is changing his plea, it means he is maintaining his plea of not guilty. We note it is not the case for the accused that if asked as to his plea on the amended charge he would have pleaded guilty and he has been denied the opportunity to gain a mitigating factor for consideration.” Furthermore, s. 422 of the Criminal Procedure Code provides as follows: 40 “422. Irregularities not to vitiate proceedings Subject to the provisions contained in this Chapter no finding, sentence or order passed or made by a Court of competent jurisdiction shall be reversed or altered on account of-

any error, omission or irregularity in the complaint, sanction, consent, summons, warrant, charge, judgment or other proceedings before or during trial or in any inquiry or other proceeding under this Code;

the want of any sanction; or

the improper admission or rejection of any evidence, unless such error, omission, irregularity, want, or improper admission or rejection of evidence has occasioned a failure of justice.” In the recent Federal Court case of Rossarin Nuekaew v. PP [2017] 8 CLJ 503, Zulkefli Ahmad Makinuddin PCA held as follows: 41 “[28] Section 422 of the CPC, inter alia, provides that any finding, sentence or order passed or made by a court of competent jurisdiction cannot be reversed or altered on the basis of an error, omission, irregularity, want of sanction, or improper admission or rejection of evidence unless it has occasioned a failure of justice. [29] It is pertinent to first consider the meaning and extent of the application of the term "failure of justice". The case of PP v. Ishak Hj Shaari & Other Appeals [2003] 3 CLJ 843 explained that "failure of justice" in s. 422 of CPC occurred when the accused was denied a fair trial. The judgment of the Court of Appeal at p. 860 reads as follows: In our view, having regard to the aforesaid object of the CPC, the issue whether or not the misdirection has occasioned a failure of justice can be resolved by seeking answer to certain corollary questions, namely, did the accused have a fair trial, did he know what he was being tried for and whether the allegations and facts were explained to him fairly and clearly and whether he was given a full and fair chance to defend 42 himself? If the answers are in the affirmative, the only conclusion is that there has been no prejudice and failure of justice. If the answers are in the negative, the trial must necessarily be treated as vitiated. If there exists a reasonable doubt regarding the answers, the benefit of doubt must be given to the accused. [30] We are of the view even assuming that the witness statement was improperly admitted due to the omission of reading the statement aloud during the trial, it nevertheless had not occasioned a failure of justice. Our view is fortified by the argument that the witness statement of SP1 contained a declaration and was signed by SP1. The statement was tendered with the agreement of the appellant during the proceedings. The defence had the opportunity to challenge SP1's evidence and SP1 was under oath at all times. The procedural non-compliance of sub-s. 402B(6) of the CPC is merely an irregularity and not an illegality and is curable under s. 422 of the CPC. The appellant cannot be said in the circumstances of the case to have been denied a fair trial.” 43

I have already held in paragraph 26 above that the Appellant wasn’t misled or confused when the original charges were preferred and the trial proceeded during the stage of the prosecution case. He pleaded not guilty thereto. The apparent omission by the learned Judge was the omission to require the Appellant to re-plead when the clearer amended charges were preferred during the commencement of the stage of the defence case. As found and held in Chieng Chung Ting v. PP (supra), it was unnecessary to re-plead. That notwithstanding and again from my review of the notes of proceedings, the defence was conducted without any hitches till conclusion. In the premises, I hold that the Appellant wasn’t prejudiced in any way by the failure to re-plead. The defence was in fact conducted on the basis of a not guilty plea and the Appellant was afforded the right to call witnesses including rebuttal witnesses if necessary pursuant to s. 162 of the Evidence Act 1950. The defence called two witnesses including the Appellant. Thus there was no failure of justice that had occasioned.

The next related issue raised by the Appellant is that the learned Sessions Court Judge permitted the Respondent to amend the charges without producing the consent of the Public Prosecutor to 44 prefer the amended charges. In this respect s. 58 of the MACC Act stipulates as follows: “58. Prosecution of offences A prosecution for an offence under this Act shall not be instituted except by or with the consent of the Public Prosecutor.” Nonetheless in the Court of Appeal case of Tarmizi Yacob & Anor v. PP and Another Appeal [2010] 8 CLJ 501, Richard Malanjum CJ (Sabah & Sarawak) held as follows: “[35] We agree with the view of the Court of Appeal and the submission of the learned deputy. The law was concisely and correctly summarized by Yong Pung How CJ (Singapore) in Garmaz s/o Pakhar & Anor v. Public Prosecutor [1995] 3 SLR 701 when he said this at p. 720: The settled Malaysian position has been to consider a deputy public prosecutor as being capable of exercising all the rights 45 and powers of the public prosecutor... It follows from this proposition that where prosecution is conducted by a DPP, the consent of the public prosecutor is implicit in his actions and no further written consent of the public prosecutor is required. Indeed, this was the holding of the Privy Council in PP v. Oie Hee Koi [1967] 1 LNS 132; [1968] 1 MLJ 148. The ruling in PP v. Oie Hee Koi [1967] 1 LNS 132; [1968] 1 MLJ 148 was followed in Perumal v. PP [1970] 1 LNS 101; [1970] 2 MLJ 265, PP v. Mohamed Halipah Adan [1981] CLJ 92; [1981] CLJ (Rep) 238, PP v. Datuk Haji Dzulkifli [1982] CLJ 644 (Rep); [1982] CLJ 29; [1982] 1 MLJ 340 and PP v. Lim Boon Hock [1985] CLJ 688 (Rep); [1985] 1 CLJ 368; [1985] 2 MLJ 219.”

In the premises, I hold it is implicit that the consent of the Public Prosecutor had been obtained for the preferred charges by the conduct of his deputy preferring the same and thereafter continuing with the conduct of the defence stage of the case. There is no pre-requisite that the consent must be in writing by the Public Prosecutor in s. 58 of the MACC Act anyway. 46

The follow on issue is whether the learned Sessions Court Judge erred in law and fact because she failed to consider the defence raised by the Appellant. I have in this regard reviewed the notes of proceedings and paragraphs 57 to 67 of her grounds of judgment and I hold she had properly and correctly found that the Appellant had failed to rebut the presumption under s. 50 of the MACC Act on the balance of probabilities. The defence raised by the Appellant was a bare denial and the testimony of SD1 and SD2 was not believed by the learned Judge. According to her, the Appellant did not adduced sufficient credible evidence to rebut the presumption following Kalaichelvan a/l Singaravelu v. PP [2011] 1 LNS 1793. The learned Judge evaluated the testimony of the defence witnesses and I again adopt the principle established by the Federal Court in UEM Group Bhd v. Genysis Integrated Engineers Pte Ltd & Anor (supra) as elaborated in paragraph 17 above that an appellate court would normally be hesitant and slow to interfere with such findings. I further hold that the findings of the learned Judge satisfactorily complied with the expected standard of evaluation as propounded by Shaik Daud JCA in Ganapathy a/l Rengasamy v. Public Prosecutor [1998] 2 MLJ 577 as follows: 47 “It needs to be remembered that however weak a defence may be, trial judges being judges of both fact and law should not just brush aside the defence on the basis that the prosecution witnesses are to be believed and not the defence. Where the law casts the onus of giving an explanation upon an accused person, and the explanation is given, which is consistent with innocence, the court is duty bound to consider whether it might reasonably be true, although not convinced of its truth. On the issue of the court's duty to consider the defence, the age old decision in Mat v PP [1963] MLJ 263 is still good law today as it was then. This was followed by the Supreme Court in Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169.”

Another issue brought up by the Appellant is that the learned Sessions Court Judge was bias when she met the prosecution officer alone in her chambers at 2.10pm to wit, minutes before she gave her decision. In this regard, it is incumbent upon the Appellant to prove that the meeting was an improper one which concerned the case in hand. This is clear from the Court of Appeal case of Dato’ Seri Anwar bin Ibrahim v. Public Prosecutor [2010] 6 MLJ 533 where Abu Samah JCA (later FCJ) held as follows: 48 “[34] In R v Great Yarmouth Magistrates, ex p Thomas, Davis and Darlington [1992] Crim LR 116 it was held that the burden imposed on the party alleging mala fide is a heavy one. Bhagwati J (with Chandrachud and Krishna Iyer JJ) in EP Royappa v State of Tamil Nadu & Anor AIR 1974 SC 555 at p 586 held the same view: … The burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of credibility. [35] In Yeap Seok Pen v Government of the State of Kelantan [1986] 1 MLJ 449 at p 453, the Privy Council held that, 'He who asserts bad faith has the burden of proving it, mere suspicion is not enough'. In that case the Privy Council held that the burden of establishing bad faith was at least on a prime facie case.”

This is a heavy and an onerous burden that has to be discharged but not an iota of evidence on the alleged bias was adduced by the 49 Appellant before me. The prosecution officer could and should have been summoned to give an explanation to me but that wasn’t done by the Appellant. I therefore in the circumstances find and hold that the allegation is simply a bald one devoid of any merit.

The final issue advanced by the Appellant is that the learned Sessions Court Judge made her decision based on the original but not amended charges as evident in her grounds of judgment. The Respondent submitted that it was only a misdirection that isn’t fatal and referred to the Court of Appeal case of Ediawe Eshlama Clinton v. PP [2015] 9 CLJ 169 where Rohana Yusuf JCA (now FCJ) held as follows on omissions seen in the grounds of judgment in respect of findings of possession and trafficking of dangerous drugs: “[22] We agree with learned counsel that the learned trial judge did not state specifically in his ground of judgment that he invoked s. 37(d) at the end of the prosecution's case and did not state specifically which overt act of trafficking under s. 2 was he relying on in convicting the appellant for trafficking. Under s. 2 the overt act of trafficking includes, inter alia the act of "carrying", "transporting" or "exporting". It would be therefore 50 be necessary to establish which overt act of the appellant constituted trafficking under s. 2 of the Act. The failure of the learned judge to state whether he relied on the presumption under s. 37(d) and on which overt act was he relying upon in s. 2 is a misdirection. [23] However it is trite that, not all misdirection is fatal. On the facts of this case we agree with the learned trial judge that there was sufficient evidence to establish possession when the appellant was caught with the bag containing drugs. He was seen carrying the bag with him. The luggage tag P29A of the bag P29 was under his name. All these facts would in our view be sufficient to attract the presumption of possession and knowledge under s. 37(d) (see PP v. Abdul Rahman Akif [2007] 4 CLJ 337, Tan Ah Tee & Anor v. Public Prosecutor [1978] 1 LNS 193; [1980] 1 MLJ 49). On the facts also, the evidence was overwhelming that the appellant was carrying the bag containing drugs which constitute the act of trafficking under s. 2 of the Act. The failure of the learned judge to state clearly in his judgment under which overt act is not fatal on the facts of the present case. 51 [24] Premised on such overwhelming evidence we find it appropriate for us to exercise the powers pursuant to the proviso to s. 60 of the Courts of Judicature Act 1964 (see Mamasobri Useng v. PP [2011] 6 CLJ 377; [2011] MLJU 503). Thus despite misdirection, having given our consideration on the evidence in totality we find the conviction safe (see PP v. Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129; [2006] 3 MLJ 193).”

In this case and on its unique facts, I have in paragraphs 24 to 27 above held that the omission of reference of gratification to the Appellant himself in the charges as originally framed was not material. In fact the conduct of the entire prosecution case and finding of prima facie case by the learned Sessions Court Judge was premised upon the original charges. From the notes of proceedings, it is plain that the learned Judge was mindful of the amendment to the charges when she allowed them during the opening of the defence case. The reference to the original but not the amended charges in the grounds of judgment is in my opinion was probably an oversight by her that constituted misdirection. Nonetheless, I find and hold that the error is not a fatal misdirection because there is overwhelming 52 evidence to support the conviction of the Appellant whether based on the original or amended charges. Based on s. 422(a) of the Criminal Procedure Code, I find that there isn’t any miscarriage of justice caused to the Appellant that warrants the interference of his conviction.

The Appellant in crux contended that the sentence imposed by the learned Sessions Court Judge is excessive.

The general principle on sentencing is laid down by Abdul Hamid CJ (Malaya)(later LP) as follows in the Supreme Court case of Public Prosecutor v. Mohamed Nor & Ors [1985 ] 2 MLJ 200: "In this regard we would observe that it is the established principle that an appellate court should be slow to interfere or disturb with a sentence passed by the court below unless it is manifestly wrong in the sense of being illegal or of being unsuitable to the proved facts and circumstances. And the mere fact that another court might pass a different sentence provides 53 no reason for the appellate court to interfere if the court below applies the correct principles in the assessment of the sentence."

From my review of the sentence that had been meted out by the learned Sessions Court Judge, I do not find them to be manifestly excessive. Corruption is today an endemic menace to society and the learned Judge was cognizant of it. She held as follows in her grounds of judgment: “Rasuah ialah jenayah berat yang dapat melumpuhkan ekonomi serta menggugat kepercayaan orang ramai terhadap sesuatu institusi. Hukuman berat perlu dijatuhkan terhadap pesalah dan menjadi pengajaran untuknya serta orang ramai agar tidak mendekati gejala jenayah ini.”

For the foregoing reasons, I find that the conviction is both correct and safe. In addition, I find that the sentence meted is fair. 54

Consequently, the appeal is hereby dismissed. Dated this 31 May 2018 t.t LIM CHONG FONG JUDGE HIGH COURT GEORGETOWN PENANG 55 COUNSEL FOR THE APPELLANT: MIRZAWATI BINTI AHMAD SOLICITORS FOR THE APPELLANT: MIRZAWATI & ASSOCIATES COUNSEL FOR THE RESPONDENT: AHMAD GHAZALI BIN MUHAMAD NADZRI SOLICITORS FOR THE RESPONDENT: BAHAGIAN PERUNDANGAN & PENDAKWAAN, SURUHANJAYA PENCEGAHAN RASUAH