Azahar Bin Haji Abdul Aziz v Pendakwa Raya (K-06B-5-01/2019)

The appellant was convicted on two charges preferred under section 17(a) of the Malaysian Anti-Corruption Commission Act 2009 (the MACC Act). The decision of the Sessions Court was upheld by the High Court. He has now appealed to this court.

Briefly stated, the evidence led by the prosecution was as follows. The appellant was a police sergeant. The complainant (SP6) is a suspected drug addict. He was arrested by the police on 9.11.2014. Preliminary test on the urine sample of the complainant tested positive for Methamphetamine. The complainant was only charged in the Magistrates’ Court on 12.1.15. He was released on police bail pending arraignment in court. The police bail granted to the complainant was renewable fortnightly at the Police Station. The appellant met the complainant when the said police bail was renewed. He allegedly solicited a bribe from the complainant for the favour of “arranging” a supervision order instead of imprisonment or rehabilitation order. The day before the complainant was brought to court, SP 6 said that the appellant called him and asked him to “prepare” a sum of RM200.00.

On 12.1.15, the complainant was brought to court. He was represented by a Yayasan Bantuan Guaman Kebangsaan (YBGK) lawyer. This means that the complainant was given free legal 3 representation. The learned Magistrate accepted the recommendation of the Rehabilitation Officer (SP 2) and released the complainant under a supervision order for a period of two years. On the way out of the court, the appellant allegedly demanded the said bribe of RM200.00 again from the complainant. Later, the complainant related the incident to SP 2 who arranged a report to be made to the Malaysian Anti-Corruption Commission (MACC).

A trap was set and sprung by the MACC. The complainant’s and the appellant’s two phone conversations the same day were recorded by the MACC officers with the cooperation of the former. In the first phone conversation recorded by the MACC, the appellant was heard saying that the RM200.00 was for arranging the supervision order and paying the lawyer who represented the complainant. In the second phone conversation, the complainant and the appellant agreed to meet at an eatery for the handing over of the sum of RM200.00. The appellant was arrested at the pre-arranged place and time when he collected the said sum of RM200.00 in marked notes in full view of one of the MACC officers. Two charges were preferred against the appellant. The said charges read as follows: Amended First Charge “Bahawa kamu, pada 13 Januari 2015, jam lebih kurang 5.00 petang, sebagai seorang ejen Kerajaan Malaysia, iaitu, Sarjan Polis Diraja Malaysia yang bertugas sebagai Sarjan Detektif di Cawangan Narkotik, Ibu Pejabat Polis Daerah Kulim, Kedah, melalui satu panggilan telefon daripada talian nombor 0111-4459265 ke talian nombor 019-5284488 telah secara rasuah bersetuju untuk menyetuju terima daripada Sulaiman bin Sahbudin (No. K/P: 901218- 02-5031) untuk diri kamu sendiri suatu suapan, iaitu wang sebanyak 4 RM200.00, yang mana semasa panggilan tersebut dibuat, Sulaiman bin Sahbudin (No. K/P: 901218-02-5031) sedang berada di dalam pejabat Agensi Antidadah Kebangsaan (AADK) Cawangan Kulim, di dalam Negeri Kedah Darul Aman, sebagai suatu upah bagi melakukan perbuatan berhubungan dengan hal ehwal prinsipal kamu, iaitu, kamu kononnya telah membantu mengurangkan hukuman ke atas Sulaiman bin Sahbudin (No. K/P: 901218-02- 5031) agar hanya dihukum pengawasan AADK selama 2 tahun, dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 17 (a) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 (Akta 694) dan boleh dihukum di bawah seksyen 24 (1) Akta yang sama. Amended Second Charge Bahawa kamu, pada 13 Januari 2015, jam lebih kurang 6.50 petang, di Nasi Kandar Pelita, No. 111-C Jalan Raya, di dalam Daerah Kulim, dalam Negeri Kedah Darul Aman, sebagai seorang ejen Kerajaan Malaysia, iaitu Sarjan Polis Diraja Malaysia yang bertugas sebagai Sarjan Detektif di Cawangan Narkotik, Ibu Pejabat Daerah Kulim, Kedah, telah secara rasuah menyetuju terima daripada Sulaiman bin Sahbudin (No. K/P: 901218-02-5031) untuk diri kamu sendiri suatu suapan, iaitu wang tunai sebanyak RM200.00, sebagai suatu upah bagi melakukan perbuatan berhubungan dengan hal ehwal prinsipal kamu, iaitu, kamu kononnya telah membantu mengurangkan hukuman ke atas Sulaiman bin Sahbudin (No. K/P: 901218-02-5031) agar hanya dihukum pengawasan AADK selama 2 tahun, dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 17 (a) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 (Akta 694) dan boleh dihukum di bawah seksyen 24 (1) Akta yang sama.

The evidence of the complainant, the two recorded phone conversations and transcripts and the acceptance of the sum of RM200.00 by the appellant at the eatery in question formed the mainstay of the evidence of the prosecution. Upon this evidence, the appellant was 5 convicted by the Sessions Court and the decision was upheld by the High Court. The appellant was sentenced to ten months’ imprisonment and a fine of RM10,000.00 on each of the said amended charges. Both the imprisonment sentences were ordered to run concurrently.

In the written submissions of the parties, the following grounds of appeal were addressed. The said grounds are:

Whether the telephone conversations between the appellant and the complainant were “intercepted” within the meaning of section 43 of the MACC Act and therefore required the prior authorisation of a Deputy Public Prosecutor or an officer of the MACC with rank of Commissioner or above?

Whether the evidence tendered by the prosecution minus the evidence of the said recorded conversation is sufficient to convict the appellant?

Whether the defence had rebutted the presumption created by section 50(1) of the MACC Act and whether the prosecution had proved its case beyond reasonable doubt? Admissibility of transcripts [7] During oral argument, this was the sole ground addressed by learned counsel for appellant. He submitted that the transcripts derived from the recorded conversations are not admissible because prior written 6 authorisation was not obtained from a DPP or an officer of the MACC of the rank of Commissioner or above. Learned counsel for appellant also submitted that it is not clear from the judgments of the Sessions Court and the High Court whether the other evidence tendered by the prosecution is sufficient to convict the appellant. On the other hand, learned DPP submitted that the recorded conversations do not come within the meaning of “intercepted” communication as the conversation was recorded with the knowledge and consent of the complainant and not clandestinely. [8] The answer to the main issue posed in this appeal turns on the interpretation of section 43 of the MACC Act, particularly on the construction to be placed on the term “intercept”. Section 43(1) reads as follows:

Power to intercept communications

Notwithstanding the provisions of any other written law, the Public Prosecutor or an officer of the Commission of the rank of Commissioner or above as authorized by the Public Prosecutor, if he considers that it is likely to contain any information which is relevant for the purpose of any investigation into an offence under this Act, may, on the application of an officer of the Commission of the rank of Superintendent or above, authorize any officer of the Commission--

to intercept, detain and open any postal article in the course of transmission by post;

to intercept any message transmitted or received by any telecommunication; or 7

to intercept, listen to and record any conversation by any telecommunication, and listen to the recording of the intercepted conversation. [9] Section 43(2) which we have not reproduced states that evidence from intercepted communication is admissible. The other subsections relate to the manner of the procurement of written authorisation and other matters not relevant for the purpose of our discussion here. It is not disputed that in this case, no prior written or oral authorisation from the relevant officers were obtained. What is disputed here is whether the recorded conversations come within the ambit of section 43(1) or in other words constitute “intercepted” communication. If the recorded conversations are held to be “intercepted” communication, it follows that the transcripts derived from the same are not admissible in evidence for lack of authorisation from a DPP or an officer of the MACC with the rank of Commissioner or above. [10] The main authority relied on by counsel for appellant to support his argument that the two recorded conversations come within the meaning of “intercepted” communication is the Court of Appeal case of PP lwn Zul Hassan & Yang Lain [2013] 7 CLJ 141. In that case, it was held that incriminating transcripts derived from a telephone conversation in which the respondents participated was inadmissible under section 39(4) of the Anti-Corruption Act 1997 for lack of prior authorisation from the DPP. However, in our respectful opinion, PP lwn Zul Hassan & Yang Lain (supra) did not decide whether a telephone conversation which was recorded with the knowledge and consent of one of the participants in the said conversation comes within the meaning of “intercepted” communication. In the report of the said case, it is not stated that the said 8 conversations were recorded with the consent or cooperation of one of the participants in the said conversations. It is only stated that the transcripts were derived from intercepted (pintas) communication. Therefore, it cannot be assumed that the MACC officers recorded the conversations with the cooperation and consent of one of the participants. The issue at hand in the instant case is whether a telephone conversation that is recorded with the consent of one of the participants comes within the meaning of “interception”. Therefore, the above-mentioned case is of no assistance in determining the primary issue addressed by learned counsel for appellant and the learned DPP. [11] The MACC Act does not provide any definition of the word “intercept”. In the premises, resort may be had to the plain and ordinary meaning of the word in the English Language. We note that in the case of Tan Boon Wah v Datuk Seri Ahmad Said Hamdan & Ors [2010] MLJ 411, Mohamad Ariff bin Md. Yusof J (as he then was) held that it was permissible to explore the dictionary meaning of the word “day-to-day” as it was not defined under section 30 of the MACC Act. We are also mindful that care must be taken in adopting dictionary meaning in interpreting statutory provisions. In PP v Tan Tatt Eek & Other Appeals [2005] 2 MLJ 685, the Federal Court opined as follows with regard to the use of the dictionary meaning to interpret statutory provisions: 142 Firstly, we should not interpret the intention of Parliament by merely importing words from dictionary meaning. The Hansard which can be used as an aid to interpret the intention of Parliament is of no assistance in the present case. 9 143 In his book on Principles of Statutory Interpretation (9th Ed) Justice GP Singh under the heading 'Dictionaries' at p 303 states the following: [*733] A statute cannot always be construed with the dictionary in one hand and the statute in the other. Regard must also be had to the scheme, context and to the legislative history. In the words of Jeevan Reddy J in Commissioner of Income Tax Orissa v NC Budhraja & Co 1993 AIR 2529: A dictionary meaning cannot be adopted if it will make some existing words redundant or will require reading of some additional words: Dental Council of India v Hari Prakash. [12] In our view, the dictionary meaning of “intercept” is consonant with the whole of section 43 and related legislation. The Cambridge Online Dictionary (dictionary.cambridge.org) defines “intercept” as follows: “to stop and catch something or someone before that thing or person is able to reach a particular place” The Oxford Advanced Learner’s Dictionary of Current English (7th Edition) defines “intercept” as follows: “to stop somebody/something that is going from one place to another from arriving” Reporters intercepted him as he tried to leave the hotel. The letter was intercepted. Interception – the interception of enemy radio signals.” The Merriam-Webster Online Dictionary (merriam-webster.com) defines “intercept” in relation to communications as follows: “to receive (a communication or signal directed elsewhere) usually secretly” 10 [13] The etymology of the word “intercept” also assists in understanding what it means. The Latin root words are “inter” which means “between” and cipere which means “to take or catch” (see etymonline.com). Thus, the ordinary meaning of “intercept” is to stop or seize something from arriving or proceeding. In the context of communication as given in the example above, a letter that is seized when it is on its way to the intended recipient is said to be “intercepted”. There is also reference to radio communication which is intercepted secretly. All the above leads us to conclude that “interception” in the context of communication refers to the clandestine act of a third party other than the sender or recipient. Similarly, in the context of a telephone conversation, it should refer to the clandestine act of a third party who listened in or recorded the said conversation without the knowledge of the participants of the said conversation. [14] We are also of the view that mere “recording” of a conversation by the MACC officers with the cooperation and consent of one of the participants cannot amount to “interception” as suggested by counsel for appellant. Such an interpretation may lead to absurd conclusions. For example, smartphones nowadays are equipped with software to digitally record telephone conversations. Thus, a participant in a smartphone conversation may record a conversation and pass it to a third party later. It would be absurd to hold that the third party had “intercepted” the communication. It may well be that in the law enforcement context, the recording of the conversation would be done at the behest of the investigating authority and in their presence as happened in this case. However, such a recording is to all intents and purposes no different from any conversation recorded by one of the participants in a telephone conversation and distributed later. In respect of interception of postal 11 articles as provided in section 43(1)(a), can it be said that there is “interception” if the recipient hands over the letter or postal article in question to the MACC officers? The ordinary meaning of intercept would mean that the letter was stopped, read or copied before it reached the unsuspecting intended recipient. Similarly, in respect of a telephone conversation, “interception” entails listening in or recording the conversation without the knowledge and consent of the participants in the said conversation. [15] We are fortified in our view by the distinction between “intercept” “listen to” and “recording” in section 43 (1)(c). It reads as follows:

to intercept, listen to and record any conversation by any telecommunication, and listen to the recording of the intercepted conversation. (emphasis ours) This provision allows an officer of the MACC to “listen to” and “record” intercepted communication. If mere recording of a telephone conversation by a third party amounts to “interception”, it is superfluous on the part of Parliament to provide for good measure that the “recording” should be in respect of “intercepted conversation”. [16] We find that provisions in the Communications and Multimedia Act 1998 (Act 588) also lends support for the view that interception does not mean recording with the consent and cooperation of at least one of the participants of the said conversation. On the contrary, interception means the stealthy acquisition of a telephone or any electronic communication by use of special equipment through a telecommunications network. In the 12 Communications and Multimedia Act 1998 (Act 588), we find the following definitions that pertain to interception: "intercept" means the aural or other acquisition of the contents of any communications through the use of any electronic, mechanical, or other equipment, device or apparatus; "interception capability" means the capability of any network facilities or network service or applications service to intercept communications under section 265; [17] Section 265 of the said Act allows the Minister to specify the technical requirements for authorised interception capability by a licensee. Section 240 of the Act criminalizes the distribution and advertisement of any equipment for the purpose of “the surreptitious interception of any communication”. Thus, it is plain that in the Communications and Multimedia Act 1998 (Act 588), the meaning of “intercept” is the popular dictionary meaning of the word, i.e. to stealthily or surreptitiously acquire a communication without the knowledge of the sender and the recipient or in the context of a telephone conversation without the knowledge of the participants in it. [18] In concluding this part of the judgment, we hold that since the MACC Act does not provide any definition of “intercept”, there is no reason not to resort to the ordinary meaning of the word as found in the dictionary. Thus, we find that the conversations in question in this case which were recorded with the knowledge, consent and cooperation of the complainant who was one of the two participants in the said conversations cannot be treated as intercepted conversations within the meaning of section 43(1) of the MACC Act. In the premises, the transcripts derived from the said 13 conversations are admissible although the authorisation of the DPP or an officer of the MACC with the rank of Commissioner or above was not obtained. Therefore, we find no merit in the principal ground of appeal addressed by learned counsel for appellant. Other issues [19] Counsel for appellant also argued that without the telephone transcripts in question, it is not clear in the judgment of the Sessions Court whether the evidence of the prosecution is sufficient to convict the appellant. This issue is not crucial now as we find that the said transcripts are admissible. However, for sake of completeness, we shall address the point raised by counsel for appellant. [20] It is clear in the judgment of the Sessions Court, that the evidence of the complainant was found to be credible. The learned Sessions Court Judge noted that his evidence was clear and unchallenged. The learned Sessions Court Judge also found that the discovery of the marked notes in the sling bag of the appellant at the eatery in question “completed the elements” of the offence. It may well be that the learned Sessions Court Judge did not give more detailed reasons for the acceptance of the evidence of the complainant or discuss the significance of the discovery of the trap money in the sling bag of the appellant. However, as correctly pointed out by the learned DPP, an appeal is a continuation of proceedings by way of rehearing and an appellate court may subject the evidence to a critical re-examination (see Baskar Venkatasamy v PP [2015] MLJU 870. In the premises, we are not precluded from examining the evidence tendered before the trial court. 14 [21] The evidence of complainant which was accepted by the Sessions Court Judge clearly incriminated the appellant. He had asked for a bribe to arrange a “supervision order”. Even if the transcripts are not admissible, pursuant to a telephone conversation with the complainant, he met him at an eatery and accepted the trap money. The learned Sessions Court Judge accepted the evidence of the MACC officer who witnessed the acceptance of the trap money. Section 50(1) of the MACC Act enacts that once it is proved that gratification is accepted or received, it is presumed that it was corruptly accepted or received. This is a presumption of law and it is obligatory for the court to raise it (see Attan bin Abdul Gani v PP [1970] 2 MLJ 143). It is for the accused person to rebut the presumption by giving an innocent explanation (see Thavanathan Balasubramaniam v PP [1997] 3 CLJ 150). The defence of the appellant was that the money given to him by the complainant was legal fee to be paid to the lawyer who represented the complainant. The Sessions Court Judge rightly rejected this explanation as an afterthought as it was not mentioned by the appellant in his statement under section 53(3) of the MACC Act. And it must be noted that this statement was given not long after his arrest. For this and other reasons, the Sessions Court Judge rejected the defence. We see no appealable error here as it was within the province of the Sessions Court Judge to assess the evidence of the prosecution and defence witnesses so long as he does not misdirect himself. In the premises, even without the evidence of the said transcripts, we find that there was sufficient evidence to convict the appellant. 15 Conclusion [22] For all the above reasons, we find no appealable error in the judgment of the Sessions Court and the High Court. We find the convictions on both charges to be safe and we affirm the same. We also affirm the sentences imposed by the Sessions Court. SGD (RAVINTHRAN PARAMAGURU)