Dato' Sri Mohd Najib Bin Haji Abdul Razak v Pendakwa Raya (W-05-1-01/2019)

The appeal before us, is by the appellant against the decision of the learned High Court Judge dismissing his application by way of Notice of Motion for an order that the prosecution deliver certain documents, statements, information and/or reports, statements of witnesses’ books, accounts, computerized data, articles, list of witnesses and copies of witness statements that the prosecution intends to adduce at trial.

The appellant is faced with 7 charges relating to offences committed under the Penal Code, the Malaysian Anti-Corruption Act 2009 (MACC Act 2009) and the Anti-Money Laundering, Anti-Terrorism Financing & Proceedings of Unlawful Activities Act 2001 (AMLATFA 2001). All charges were ordered to be jointly tried and trial is to commence from 12.2.2019 to 29.3.2019. 4

The Respondent/Prosecution had delivered the necessary documents under section 51A of the Criminal Procedure Code (CPC), mostly covering the documents sought by the appellant in the Notice of Motion, save for paragraphs 1(g), (h), (i), (j), and 2(b)(i) which are reproduced hereinbelow : “1(g) records of all examinations and/or written statements on oath or affirmations obtained pursuant to Section 30 (1) (a) and/ or Section 30 (8) and/or section 30 (1) (c ) of the MACC Act 2009 and/or Section 32 (2) (a) and/or Section 32 (2) (c) of the Anti Money-Laundering, Anti-Terrorism Financing And Proceeds of Unlawful Activities Act 2001 (AMLAFTA 2001) during the course of investigations which have culminated into the subject matter of the SRC Proceedings; 1(h) all books, documents, records, accounts or computerized data or articles obtained pursuant to Section 30 (1) (b) of the MACC Act 2009 or otherwise in the course of examinations under Section 30

(i) The names of all the examinees and dates of recordings of the records of their respective examinations and/or written statements on oath or affirmations obtained pursuant to Section 30 (1) (a) and/or Section 30 (8) and/or Section 30 (1) (c ) of the MACCA 2009 and/or Section 32 (2) (a) and/or section 32 (2) (c ) of the Anti-Money laundering, Anti-Terrorism Financing And Proceeds of Unlawful Activities Act 2001 (“AMLA2001”) during the course of investigations which have culminated into the subject matter of the SRC Proceedings;

(i) A List of Witnesses the prosecution intend to call during the case for the prosecution in the SRC Proceedings together with the proposed order of witnesses.” 6

The learned trial Judge dismissed the appellant’s application for the documents as aforesaid and it is against the dismissal of this application that the appellant is appealing before this court.

The application is premised on the non-obstante clauses found in Section 30(9) of the MACC Act 2009 and Section 40 of the AMLATFA 2001, whereby these statements, documents etc, such as those obtained under Section 30(9) of MACC Act 2009 and Section 40 of AMLATFA 2001, are automatically admissible at the behest of either party. The clauses should be given a liberal interpretation, unlike the narrow scope given by the learned Judge. Section 30(9) of the MACC Act 2009 provides: “The record of an examination under paragraph (1)(a), or a written statement on oath or affirmation made pursuant to paragraph 1 (c ), or any book, document, record, account or computerized data, or article produced under paragraph (1) (b) or otherwise in the course of an examination under paragraph (1) (a), or under a written statement on oath or affirmation made pursuant to paragraph (1) (c ), or record of examination of sample taken under paragraph

(a) For an offence under this Act; or

(b) For the forfeiture of property pursuant to section 40 or 41, regardless whether such proceedings are against the persons 7 who was examined, or who produced the book, document, record, account or computerized data, or article, or who made the written statement on oath or affirmation, or against any other person.” Section 40 AMLATFA 2001 provides: “40. The record of an examination under paragraph 32 (2) (a), any property, record, report or document produced under paragraph 32 (2) (b) or any statement under paragraph 32 (2) (c ) shall, notwithstanding any written law or rule of law to the contrary, be admissible as evidence in any proceedings in any court for or in relation to an offence or any other matter under this Act or any offence under any written law, regardless whether such proceedings are against the persons who was examined, or who produced the property, record, report or document, or who made the written statements on oath or affirmation, or against any other person.”

It is the appellant’s contention that the operational parts of the said provisions provide that any statements or documents obtained in the course of investigations “Notwithstanding any written law or rule of law to the contrary, be admissible as evidence’ thus taking the form of a non-obstante clause.

Further it was argued that, the scope of the non-obstante clauses are unambiguous and exclude all rules of admission and rules of exclusion vis-à-vis : 8 i) All statements recorded from witnesses during the entire investigations into the subject matter of the offences under the Penal Code, MACC Act 2009 and AMLATFA 2001 (Investigation statements); ii) All other documents received by the authorities in the course of the above investigations (Other documents).

Given the automatic admissibility, the operation of Articles 5 and 8 of the Federal Constitution would demand that copies of the said documents and investigation statements must be supplied by the respondent as the prosecutor to the applicant, before the commencement of the trial. It was also asserted by the appellant that the application is also supported by the operation of section 62 of the MACC Act 2009 which provides: “62. Defence Statement Once delivery of documents by the prosecution pursuant to section 51A of the Criminal Procedure Code has taken place, the accused shall, before commencement of the trial, deliver the following documents to the prosecution:

(a) A defence statement setting out in general terms the nature of the defence and the matters on which the accused takes issue with the prosecution, with reasons; and

(b) A copy of any document which would be tendered as part of the evidence for the defence.” 9

The common law privilege outlined in Husdi v PP [1979] MLJ 304 has no application.

The public policy on witness tampering has no application in this case and neither is it justified. The reasoning by the learned trial Judge in paragraph 112 of the grounds was completely baseless as there is nothing in any of the respondent’s affidavits which alleged any reluctance or possible reluctance by any potential witnesses. Neither is there anything in the affidavits of the respondent which alleged any repercussions to other possible investigations or even the existence of any other pending investigations against the appellant. It is noted that the powers of the investigators under the MACC Act 2009 and AMLATFA 2001 clearly compel witnesses to provide statements to the MACC Act 2009 on penal consequences of non attendance. There is further provisions for witness to seek for witness protection as laid down in the Witness Protection Act 2009.

In light of the circumstances of this case, it was submitted by the appellant that the production of Investigation Statements and Other Documents would be necessary or desirable under section 51 CPC.

The respondent’s position is that the application ought to be dismissed as the Applicant has misconstrued Section 30(9) of MACC Act and Section 40 of AMLATFA to exclude all other legislation/provisions, 10 particularly the Evidence Act 1950. The non-obstante clauses must be read subject to the rules of privilege and prohibition on grounds of public policy (See Husdi v PP [1979] MLJ 304; PP v Raymond Chia Kim Chwee & Anor, Zainal Abidin and Another Appeal [1985] 2 MLJ 436; PP v Dato’ Seri Anwar Ibrahim and another appeal (2010) 4

The respondent disagreed with the prismatic approach taken by the applicant in the interpretation of Articles 5 and 8 of the Federal Constitution in support of the applicant’s argument that these 2 articles would mean that the automatic admissibility of the documents pursuant to the non obstante clauses necessarily require disclosure of copies of such documents by either side. The issue:

The central issue is whether the non obstante clause have the effect of excluding the rules on evidence in respect of rules on privilege or confidentiality.

The learned trial Judge dismissed the appellant’s application as the appellant failed to establish a case for the delivery of documents and the information applied for. 11

The High Court made the following findings as to the application by the appellant: i) The appellant failed to make out a case as to the extent to which the legislature had intended to give the relevant non-obstante clauses an overriding effect over all other rules and legal provisions, premised on the weight of authorities in Suruhanjaya Sekuriti v Datuk Ishak bin Ismail [2016] 1 MLJ 733, which subject the admissibility to the rules of evidence and Ho Tak Sien & Ors v Rotta Research Laboratorium SPA [2015] 4 MLJ 166 which required specific identification of the rules to be excluded. The learned trial Judge was not persuaded by the proposition of the counsel for the appellant that the non-obstante clauses had the effect of automatic disclosure of all statements and documents admissible obtained by MACC as evidence in any proceedings; ii) As such claims of privilege, public policy and confidentiality would still be applicable to bar the production of the Investigation Statements and the Other Documents; iii) Even if the Other Documents and Investigation Statements are admissible, in the absence of clear statutory provisions, the appellant has no right of disclosure or production of the same. 12 Section 62 MACC Act 2009 makes reference to section 51A CPC and therefore the MACC Act 2009 envisages disclosure of documents/statements under sections 51A or 51 of the CPC. iv) The appellant clearly does not meet the threshold of the test of “desirability or necessity” under section 51 CPC justifying the production of the Other Documents and the Investigation Statements. As the prosecution has duly complied with section 51A CPC, the disclosure obligation of documents on the part of the prosecution for pre trial has been met, and the appellant is not entitled to any further disclosure at this stage; v) Husdi v PP [1979] MLJ 304 bars the disclosure of Investigation Statements; vi) The issue of the likelihood of witness tampering is another reason that investigations statements is prohibited from being disclosed to the accused persons. vii) Section 124 of the Evidence Act 1950 applies to bar the production of the Investigation Statements which are confidential. 13 OUR DECISION: Whether the non-obstante Clauses exclude all other provisions of the law:

The learned trial Judge made reference to Suruhanjaya Sekuriti v Datuk Ishak Ismail which held that where statements taken in the course of investigation are to be automatically admissible, they must be subject to provisions of the Evidence Act 1950, which were made to codify rules pertaining to law of privilege and public policy against disclosure of investigation statements. While the appellant argued that the provisions in Suruhanjaya Sekuriti v Datuk Ishak Ismail’s case do not involve a non-obstante clause, the learned trial Judge further referred to Ho Tack Sien & Ors v Rotta Research Laboratorium SPA & Anor (Registrar of Trade Marks, Intervener) and held that the appellant had not clearly made out a case as to the extent to which the legislature had intended to give the relevant non-obstante clauses overriding effect over all other rules and legal provisions.

In PP v Awaluddin bin Sham Bokhari [2018] 2 MLJ 401 which concerned a non obstante clause in AMLATFA, it was ruled by the Federal Court that the statements and documents exhibited to the Investigation Officer’s affidavit were admissible, notwithstanding the rule against hearsay. This is in relation to section 134 (4) of the Securities Commission Act 1993 (SCA) which was examined by the Federal Court in Suruhanjaya Securities v Dato Ishak bin Ismail where the accused had applied for discovery of all statements made to and recorded by the 14 Investigation Officer of the Securities Commission in relation to investigation against the accused. The Federal Court after reversing the decision of the Court of Appeal dismissed the application for the production of such statements. Section 134 (4) Of the SCA 1993 provides: “ 134. Power to call for examination

(a) To give to the Investigating Officer of the Commission all reasonable assistance in connection with the investigation; and

(b) To appear before a specified Investigating Officer of the Commission or specified Investigating Officers of the Commission to be examined orally.

The Federal Court ruled that the provision under section 134 (4) of the SCA must be read subject to the rules of privilege and prohibition 15 on grounds of public policy. This equally applies to civil and criminal proceedings. In the context of Suruhanjaya Securities v Dato Ishak bin Ismail, the relevant and applicable rules for consideration are found in sections 123 and 124 of the Evidence Act 1950. Sections 123 and 124 of the Evidence Act 1950 codify the rules of the law of privilege and public policy against the disclosure of investigation statements.

However, the appellant submitted that his application is in “stark contrast” to the application in Suruhanjaya Securities v Dato Ishak bin Ismail which was made under section 134 of the Securities Commission Act 1993 (SCA), and does not have the non-obstante clauses as in section 30 (9) of the MACC Act 2009 and section 40 of the AMLATFA

Hence the principle of law as enunciated by the Federal Court in Suruhanjaya Securities v Dato Ishak bin Ismail that “statements made to and recorded by an Investigating Officer…are not to be disclosed to the defence” and sections 123 and 124 of the Evidence Act 1950 are superseded by the non-obstante clauses contained in the provisions.

The learned trial Judge, had considered this point specifically and noted that the non obstante clause was absent in section 134 (4) of the SCA. However, there are a plethora of authorities which suggest that where the non obstante clause refers generally without stating the specific provision or statute to be overridden, it is not permissible to exclude per se all other legislations or provisions in force in other statutes. In the absence of specific words of the exact rules or laws to be excluded, no such automatic displacement can be made effective. 16

It is noted that the non obstante clauses contain the word “Notwithstanding……”. The Federal Court in Perbadanan Kemajuan Kraftangan Malaysia v DW Margaret David Wilson [2010] 2 MLJ 713 at page 726 had the occasion to explain the term “Notwithstanding” which is: “The term “notwithstanding” means generally “not to stand against it”, or “in the way” or overriding. The words notwithstanding anything contained in the Code of Criminal Procedure Code found at the beginning of s. 5A (1) of the Prevention of Corruption Act 1947 (now s. 17 Prevention of Corruption Act 1988) merely carve out a limited exemption from the provisions of the Code of Criminal Procedure in so far as they limit the class of persons who are competent to investigate offences mentioned in the section and to arrest without warrant. It does not mean that the whole of the Code of Criminal Procedure…is made inapplicable-Union of India v I C Lala [1973] 2 SCC 72 at 77.”

From the grounds of judgment, the learned trial Judge said that the extent of such exclusion must be worked out from a further examination of the true objective or scope or purpose behind the provisions where the non obstante clause is adopted. The learned trial Judge agreed that a literal reading appears to support the appellant’s stance, which, if true means the operation of, inter alia, the Evidence Act 1950 in respect of the rules on privilege and confidentiality in admitting as evidence, documents or statements obtained under section 30 of the MACCA and section 32 of the AMLATFA would be excluded. 17

The learned trial Judge also held that if there arises a conflict between the specific statutory objective behind that provision and such other law on the same subject, the other law would be held to be excluded from being operative. He referred to the Federal Court case of Ho Tack Sien & Ors v Rotta Research Laboratorium SPA & Anor (Registrar of Trade Marks, Intervener) (2015) 4 MLJ 166 where it concerns section 40 of the Trade Marks Act 1976 which begins with the word” notwithstanding….” and Zulkefli CJ (Malaya) (as he then was) held that it is a general principle that a non obstante clause cannot go outside the limits of the Act itself. Non-obstante clause is subject to the limitations contained in the section and cannot be read excluding the whole Act and standing by itself. The Federal Court relied on the principle as stated in Varadarajulu & Anor v The State of Tamil Nadu & Ors AIR 1998 SC 1388 which states: “It is well settled that while dealing with a non-obstante clause under which the legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar v Arbinda Bose AIR 1952 SC 369, Patanjali Sastri J observed: The enacting part of a statute must, were it is clear, be taken to control the non-obstante clause where both cannot be read harmoniously. In Madhav Rao Scindia v Union of India [1971] 1 SCC 85 (at p 139)” AIR 1971 SC 530 Hidayatullah CJ observed that the non-obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but for that reason alone we must determine the scope of that provision strictly. When the section containing the said clause does not refer to any particular provisions 18 of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. A search has, therefore, to be made with a view to determining which provisions answers the description and which does not.” Therefore as far as Ho Tack Sien & Ors is concerned, the Federal Court ruled that section 40 (1) (f) of the Trade Marks Act 1976 “only applies to a right to use a mark that has been duly registered under the Act. It is therefore tied to s 35 (1) of the Act which governs the rights given by registration. It reads: “(1) Subject to the provisions of tis Act, the registration of a person……as registered proprietor of a trade mark (other than a certification trade mark) in respect of any goods or services shall, if valid, give or be deemed to have been given to that person the exclusive right to the use of the trade mark in relation to those goods or services subject to any conditions, amendments, modifications or limitations entered in the Register.”

Premised on the weight of authorities of Suruhanjaya Sekuriti v Datuk Ishak bin Ismail, which subject the admissibility to the rules on evidence and Ho Tack Sien & Ors v Rota Research Laboratorium SPA, which requires specific reference to the provision/statute to be excluded, the learned trial Judge concluded and held that the appellant had not clearly made out a case as to the extent to which the legislature had intended to give the relevant non-obstante clauses overriding effect over all other rules and legal provisions. It is our view that the learned trial Judge did not err in his judicial evaluation of the provisions and consideration of the authorities cited. 19

In any event, the learned trial Judge had gone on to consider that, even if the construction ascribed to the non-obstante clauses by the appellant is to be taken as correct, that the documents and statements obtained during investigations are admissible as of right, the appellant still failed to establish whether their production to the appellant as the accused must necessarily follow. As rightly pointed out by the learned trial Judge that admissibility of these documents does not equate to the right to inspect.

Therefore, it appears that the appellant had misconstrued the application of the non obstante clauses found in sections 30 (9) of the MACCA and section 40 of the AMLATFA 2001 to exclude all other legislation or provisions in force in other legislations particularly the Evidence Act 1950. That cannot be the intention of Parliament. The non obstante clauses found in the aforesaid sections must be read subject to the rules of privilege and prohibition on the grounds of public policy.

Various authorities were cited by the appellant in support of the equality of arms principle by claiming the appellant was being put at a disadvantage if not afforded the opportunity to view the documents etc. It was submitted that the appellant as an accused person should be accorded equal opportunity in deciding whether to admit the said evidence or otherwise premised on the observations by Lord Mustill in re D (Minors) (Adoption reports: Confidentiality) [1996] AC 593 where he said: 20 “(the) first principle of fairness (is) that each party to a judicial process should have an opportunity to answer by evidence and by argument any adverse material that the tribunal may take into account when forming its opinion”.

This was also considered by the learned trial Judge and we agree with his view that the appellant failed to show how has he been discriminated against, as compared to other persons who are similarly under investigation by the MACC.

True, other countries have had advancements in adhering to the equal arms principle, as demonstrated by the cases cited by the appellant from the various jurisdiction in the submissions. The authorities cited by the applicants, namely Fitt v United Kingdom [2000] ECHR 29777/96 which held that “it is a fundamental aspect of the right of a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence”. The learned trial Judge had considered this, at best, to be of persuasive authority. It is also undeniable that some of the authorities cited by the appellant expressed concerns against unfettered access by accused persons to investigations documents and statements as shown in the South Africa Constitutional Court in Shabalala v AG of the Transvaal and Anor which was an authority relied upon by the appellant which ruled: “[5] The state is entitled to resist a claim by the accused for access to any particular document in the police docket on the grounds that such access is 21 not justified for the purposes of enabling the accused properly to exercise his or her right to a fair trial or on the ground that it has reason to believe that there is reasonable risk that access to the relevant document would lead to the disclosure of the identity of an informer or state secrets or on the grounds that there was a reasonable risk that such disclosure might lead to the intimidation of witnesses or otherwise prejudice the proper end of justice.”

The appellant submitted that the operation of Articles 5 and 8 of the Federal Constitution demand that copies of the said documents and statements must be provided to the appellant before the commencement of trial. It was further submitted that in line with Article 5 and the application and ambit of section 62 MACC Act 2009 justifies disclosure of admissible documents and statements to the appellant.

Article 5 (1) of the Federal Constitution states that “No person shall be deprived of his life or personal liberties save in accordance with law” which implies that it is not absolute. In Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72, where the constitutionality of section 59 of the Immigration Act 1959/1963 was challenged on the basis that the exclusion of the right to be heard in that provision, before the cancellation of the respondent’s entry permit, was unconstitutional as it was said to have infringed his right to livelihood. It was held that the constitutional rights as guaranteed by Article 5 (1) can be deprived in accordance with law. (See also S Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors [1982] 1 MLJ 204). 22

Similarly Article 8 of the Federal Constitution, which is the equality principle is also not absolute. The principles on the interpretation of Article 8 of the Federal Constitution was laid down in Datuk Haji Harun Idris v Public Prosecutor [1976 2 MLJ 116 which essentially held that the equality provision is not absolute, it is qualified and that it envisages that there may be lawful discrimination based on rational classification (See also Public Prosecutor v Khong Teng Khen [1976] 2 MLJ 166).

The provisions of the MACC Act 2009 applies across the board on all persons alike, and thus the issue of discrimination against the appellant does not arise.

The reference of the appellant to the provisions on fundamental liberties of Constitutions of South Africa is misconceived as the provision in their Constitution is different from our Article 8 and section 25 (3) (c) of the Constitution of South Africa provides that “Every accused person shall have the right to a fair trial, which shall include the right to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial.” In this regard the judgment of Raja Azan Shah J (as he then was) in Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 is relevant where His Lordship said: “Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording ‘can never be overridden by extraneous principles of other Constitutions’….Each country frames its constitution according to its 23 genius and for the good of its own society. We look at other Constitution to learn from their experiences, and from a desire to see how their progress and well-being is ensured by their fundamental law.”

Section 51A of the CPC is a step towards the equality in arms principle. As stated by the learned trial Judge, any further development must await legislative interventions, and not by a mere prismatic construction of constitutional provisions.

In the context of section 62 of the MACC Act 2009, the appellant argued that these investigation statements and other documents are admissible as of right, and which admissions, should be the prerogative of both parties.

The learned trial Judge found that the reasoning advanced by the appellant in regard to section 62 of the MACC Act 2009 is rather misconceived and unsustainable. Such arguments defeats the purpose of Parliament legislating the MACC Act 2009 to rely on section 51A in section 62 of the MACC Act 2009. The learned trial Judge found that other than Section 51A of CPC and Section 62 of the MACC Act 2009, there is no other law that exists demanding disclosure, and no automatic disclosure can be founded on non-obstante clause. Further if automatic disclosure is correct, without any express provisions on production, it would not have been necessary for the MACC Act 2009 to enact section 62 of the MACC Act 2009 at all. We do not see how is the Judge wrong in such reasoning. It is trite that Parliament does not legislate in vain. 24

Section 51A CPC is a significant amendment with regards to disclosure at pre trial stage. So is section 62 of the MACC Act 2009. There is no compelling legal analysis that could support the argument that automatic admissibility gives the automatic right to disclosure and inspection, in the absence of clear legislative prescriptions to that effect.

Section 51A CPC provides for disclosure at pre trial stage. It provides access of disclosure, but a limited one and does not envisage full unlimited disclosure and inspection of the prosecution’s case. Section 51A of the CPC provides: “51A (1) The prosecution shall before the commencement of the trial deliver to the accused the following documents: a) A copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any; b) A copy of any document which would be tendered as part of the evidence for the prosecution; and c) A written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.

Section 51A lists the documents that are required to be furnished to the accused before trial. But as for facts that is favourable to the defence i.e section 51 (1) (c ), the prosecution need not supply any fact favourable to the defence of the accused, if its disclosure would be contrary to public interests. Further section 51A (5) CPC provides that where the document is delivered to the accused after the trial had commenced, the court shall give to the accused reasonable time to examine the document and to recall and examine any witness in relation to the document. However, notwithstanding the aforesaid, the court may exclude the document to be delivered after the trial had commenced if it is shown that such delivery was done deliberately and in bad faith.

There are leading authorities and case laws which has established this clear propositions of law on the scope of section 51A of the CPC (Refer to: Syed Abu Bakar bin Ahmad v PP [1982] 2 MLJ 186; PP v Raymond Chia Kim Chwee & Anor, Zainal bin Hj Ali v PP [1985] 2 MLJ 436.) 26 The decision of Raymond Chia Kim Chwee was followed in PP v Dato’ Seri Anwar Ibrahim and another appeal (2010) 4 CLJ 331).

In PP v Dato’ Seri Anwar Ibrahim and another (2010) 4 CLJ 331, the accused applied for the production of witness statements of various witnesses and all documents not used by the prosecution and a list of prosecution witnesses at the pre trial stage, similar as in our present case (Refer to page 273-274 of the report). At the High Court, the application was allowed. However, the Court of Appeal set aside the order of the High Court which was affirmed by the Federal Court. PP v Dato’ Seri Anwar Ibrahim and another referred to Raymond Chia Kim Chwee. It is pertinent to quote what was said by Hashim Yeop Sani SCJ in Raymond Chia Kim Chwee at page 439, the legal position in the following terms: “The entitlement of the accused under section 51 of the CPC to any document or copies of document or other material in the possession of the prosecution is entirely at the discretion of the Court having regard to the justice of the case. The discretion should not however be exercised so as to enable the accused to gain access to materials before the trial as in the case of pre-trial discovery and inspection of documents in a civil proceeding. The accused in a criminal trial should have sufficient notice of what is alleged against him so as to enable him to prepare his defence. So long as that requirement is satisfied the law is satisfied…. …If the discretion is to be exercised before the commencement of the trial the Court cannot anticipate how the prosecution will proceed. In other words the court would not be justified to direct the prosecution to deliver to the accused all documents taken from him for that will not be a correct 27 exercise of the discretion under section 51 of the Criminal procedure Code…. Under section 51A of the CPC the accused is most certainly entitled to have copies of documents which are specified in the charge. But the accused cannot be expected to be given access to all documents whatsoever taken by the police during investigation….” In exercising its discretion under section 51A for the supply of documents before the commencement of trial, the court must have regard to sections 152, 153 and 154 of the CPC. Hence the discovery at this stage, namely at the pre-trial stage, as in our present case (where trial has not commenced) is only limited to matters that are specified in the charge, to enable the appellant to prepare his defence. The appellant would not be prejudiced in any event as the appellant had been fully informed of the charge against him. How can it be said that the appellant would be put at a disadvantage in preparing his defence as that is not a relevant consideration at this stage. The Federal Court in Dato’ Seri Anwar Ibrahim v PP held that: “[4] Sections 51 and 51A are two separate and distinct provisions. Section 51A imposes an obligation upon the prosecution to supply the accused with certain documents and materials. It has no connection to s. 51 which gives the court discretion to allow for discovery in specific instances. Section 51 could not be modified with the aid of the supposed philosophy underlying the new s. 51A, even if such philosophy existed. It was thus wrong for the judge to conclude that s. 51A, had changed the mode of prosecution in a criminal trial, and in the process ignore past precedents on interpretation. It was also wrong for the judge to say that earlier cases decided on s. 51 were no longer applicable. 28 [5] In the instant case, the application for discovery by the Appellant was made at a pre-trial stage and not made “in the course of the trial”. At the pre-trial stage the appellant would only be entitled to those documents and materials pertaining to the charge, to enable him to understand the charge and prepare his defence. The phrase “in the course of trial” means that the trial proper has commenced in that evidence has been led by the calling of witnesses. The phrase does not mean the stage where the charge is only read to the accused. PP v Raymond Chia Kim Chwee & Anor (foll).. [6] Although s. 51 appears couched in rather wide terms, it should not literally be taken to be capable of allowing for a wide ranging application, as in the instant case. Its scope is confined to the production of documents or materials “necessary or desirable” for the purposes of trial. These 2 qualifications depend on which particular stage or point of time the application is made. If, as in this case, it is made at the pre-trial stage, then the discovery must be confined to the matters specified in the charge. In the instant case, the charge was specific and was sufficiently particularized to accord the appellant a fair trial. The requirement of justice had been met, even without the documents and materials sought. PP v Raymond Chia Kim Chwee & Anor (foll)…”

Therefore, by virtue of section 51A CPC, as we are now at the pre-trial stage, the appellant is only entitled to the following documents: a) A copy of the first information report made under section 107 CPC; b) Copies of documents which the prosecution intends to tender as part of the evidence for the prosecution; and 29 c) Written statement of facts favourable to the defence of the accused. What the appellant sought in his Notice of Motion in prayers (1) (g) are for examination and written statements on oath or affirmations recorded by MACC under MACC Act 2009 or AMLATFA 2001. Essentially the appellant is asking for him to be supplied with all statements recorded from witnesses other than the appellant/accused.

In prayers 1 (h), the appellant is asking for inspection of documents seized in the course of investigation which is not within the ambit of section 51A.

The appellant is applying for all statements recorded by the MACC and other documents taken by them in the course of investigation without specifying the exact documents. The application is of a general nature and not targeted towards any specific document. It is a general rule of law that the request must be directed at a specific document and a general direction to produce all documents relating to the subject matter in dispute will not be enforced (Refer to PP v Teoh Choon Tech [1963] 1 MLJ 34.)

The application is also for statements given by potential witness to the MACC and other documents obtained by the MACC under the relevant provisions compelling production embodied in the MACC Act 2009 and AMLATFA 2001 in the course of investigation pertaining to the charges 30 against the appellant. It is trite that an accused persons is not entitled to copies of police statements recorded from witnesses recorded in the course of investigations. Firstly, such statement is a privileged document (see Methuram Dass v Jagannath Dath ILR 28 Cal 794) and secondly, as a matter of public policy, it is undesirable for the prosecution to supply the defence with the police statements as there is a danger of tampering with witnesses (Refer to Husdi v PP [1980] 2 MLJ 80). This fails the test of desirability and necessity in section 51A of the CPC.

It has been submitted by the appellant that the respondent’s affidavits did not aver on any reluctance or possible reluctance by any potential witnesses. Neither is there any averments by the respondent in any of the affidavits which alleged any repercussions to other possible investigations or even the existence of any other pending investigations against the appellant. It is also to be noted that the powers of the investigators under the MACC Act 2009 and AMLATFA 2001 clearly compel witnesses to provide statements to the MACC Act 2009 and the penal consequences of non attendance. On this we refer to what was said by the Federal Court in Husdi v PP [1980] MLJ 80 at page 82: “We do not think that the prosecution should supply copies of the police statement direct to the defence without the intervention of the court-because of the peculiar circumstances prevailing in this country. Malaysia is a small country, with a small population, and Malaysians are easily scared; they are reluctant to be involved. If a crime is committed under their nose they look the other way, see, hear and say nothing, do little or nothing to help identify - let alone - arrest an offender, and yet complain that the police do not catch criminals and that courts are bedazzled by technicalities. If the prosecution is 31 obliged to supply copies of police statements to the defence without the intervention of the court, the defence may be tempted to ask for, and the prosecution will be obliged to supply copies of every statement in the police investigation file, and Malaysians will be more reluctant to come forward with evidence to incriminate their fellows.” Thus, regardless of the absence of any averments by the respondent in the affidavits as to the possibility of witness tampering, the risk is substantive and real.

Further, it is not in the public interest if statements taken from witnesses and documents obtained during the course of police investigations be furnished to the appellant. Section 124 of the Evidence Act 1950 provides that a public officer cannot be compelled to disclose communications made to him in official confidence if he considers that public interest would suffer by such disclosure. This will also include communications made to MACC officers in their official confidence (See section 6 (2) of the MACCA 2009). Providing the appellant with the documents sought for in the prayers which were made in official confidence to the MACC would prejudice further investigations relating to other cases involving the appellant (See Suruhanjaya Sekuriti v Datuk Ishak bin Ismail).

The learned trial Judge based his findings on the ratio in the case of Federal Court case of Suruhanjaya Sekuriti v Datuk Ishak bin Ismail which held that the provision of section 134 (4) of the SCA must 32 be read subject to the rules of privilege and prohibition on grounds of public policy.

The learned trial Judge held that the statements of witnesses made to MACC officers are privileged documents under section 124 of the Evidence Act 1950. Therefore, it is his findings that as investigators are public officers under section 6 (2) of the MACCA thus attracting section 124 of the Evidence Act 1950 which means communications made to such officers of MACC in official confidence cannot be compelled to be disclosed.

It is the prerogative of the prosecution as to how to prove their case and it is not for the court to anticipate as to how the prosecution is to proceed with the conduct of proving the charge against the appellant.

The application in this case is not for documents which are specified in the charge which is against the accused. Therefore, to allow the appellant to go beyond these particulars would be to provide the accused with knowledge of the means by which the prosecution proposed to prove the alleged facts. That is not what section 51A envisaged. Syed Abu Bakar v PP [1981] 1 LNS 127 is a case which illustrates this point. The accused applied for an order to inspect and make copies of all documents in the possession of the prosecution. The accused contended that he would be gravely impaired in preparing his defence without giving him an opportunity to have sight of the documents. His application was dismissed by Seah J, who was of the view that section 51 of the CPC 33 should be construed strictly and it does not allow an accused to ask for discovery of documents or inspection of documents seized by the police in the course of their investigation or in their possession before the criminal trial because to do so would mean an inspection of the evidence of the prosecution by the defence prior to the trial. Therefore save for the documents as provided under section 51A of the CPC, the defence is not entitled to ask for the disclosure or inspection of documents/materials in the possession of the prosecution before the commencement of the trial.

It is submitted by the respondent in the submission before us that the application by the appellant does amount to a fishing expedition, thus the generality of the documents applied for. This has been specifically addressed by the Federal Court in Dato’ Seri Anwar Ibrahim v PP where the Federal Court said that: “[47] The appellant cannot say at this stage that his defence is going to be so and so and that he needs to have access to such and such documents and materials to prepare for his defence. One settled principle attached to the application for discovery under s. 51 CPC is that, at this pre trial stage, a roving and fishing inquiry for evidence is nor permissible. A catch all net cannot be cast. The appellant is not entitled to know by what means the prosecution proposes to prove the facts underlying the charge he faces. This remains the prerogative of the prosecution.” 34 Conclusion:

Therefore, based on the aforesaid, the appellant is not entitled to be supplied with the documents stipulated in paragraphs (1) (g), (h), (i),

(j) and 2 (i) in the Notice of Motion.

We find that the learned trial Judge did not err in his findings that the Applicant has failed to establish a case for delivery of the information and documents applied for. We unanimously dismissed the appeal by the appellant and affirmed the decision of the learned High Court Judge. Signed by: Zabariah Mohd Yusof Judge of the Court of Appeal Putrajaya 25.3.2019 35 COUNSEL: Tan Sri Dr Muhammad Shafee Abdullah, Harvinder Jit Singh, Sarah Maalini Abishegam, Farhan Read, Alfirdaus Shahrul Naing, Wan Aizuddin Wan Mohammed, Rahmat Hazlan, Muhammad Farhan Shafee, Wee Yeong Kang, Syahirah Hanapiah and Zahria Eleena Redza for the Appellant [Messrs. Shafee & Co] Tommy Thomas, V. Sithambaram, Haji Sulaiman Abdullah, Manoj Kurup, Donald Joseph Franklin and Izzat Fauzan for the Respondent [Attoney General’s Chambers]