Dato' Sri Mohd Najib Bin Hj Abdul Razak v Pendakwa Raya (W-05-2-01/2019)

Datuk Hj Sulaiman Abdullah (“Datuk Hj Sulaiman”), an advocate and solicitor of the High Court of Malaya was appointed by the Public Prosecutor to lead the prosecution of the appellant in respect of seven charges preferred against him under three different legislations, to wit, the Penal Code, the Malaysian Anti-Corruption Commission Act 2009 and the Anti-Money Laundering, Anti-Terrorism Financing and Proceedings of Unlawful Activities Act 2001. A joint trial of all seven charges have been ordered by the High Court and dates for the hearing had been fixed from 12/2/2019 to 29/3/2019. However, the trial has been stayed by this court on application by the appellant pending the disposal of the appeals in respect of four interlocutory decisions made by the learned High Court Judge, one of which is His Lordship’s dismissal of the appellant’s Notice of Motion that the Public Prosecutor produced to him a copy of Datuk Hj Sulaiman’s letter of appointment or fiat. This judgment is in respect of the 3 appeal against the decision on the dismissal of the aforesaid Notice of Motion. The Application

Prayer 1 of the Notice of Motion is worded wider than what we have just mentioned above and which the learned High Court Judge had helpfully translated in English in His Lordship’s judgment although His Lordship had omitted to include the time frame stated in the said prayer, which is 3 days from the date of the order. The said prayer (1) but with the time frame is reproduced below, together with prayers (2) and (3):

Prayer 1 The Applicant seeks an order from this Honourable Court to compel the Respondent to produce Datuk Haji Sulaiman bin Abdullah’s letter of appointment and copies of any other authorization in writing executed by the Respondent in relation to his appointment as a Deputy Public Prosecutor within 3 days from the date of the order;

Prayer 2 The Applicant be provided with copies of the letter of appointment and documents produced by the Respondent pursuant to Prayer 1; and (c ) Prayer 3 The Applicant seek any further and/or other order, relief or direction which this Honourable Court may deem fit and proper in the circumstances. 4 However, at the hearing of the appeal before us, the argument was centered on the production of only that letter of appointment and no other related documents pertaining to the same were identified for our consideration. Therefore we would in this judgment concentrate on the production of that letter of appointment only. It is not disputed that Datuk Hj Sulaiman’s appointment was made pursuant to section 379 of the Criminal Procedure Code and that despite a number of out of court requests to have sight of his letter of appointment made by the appellant’s counsel, the requests were turned down which then led to the filing of this formal application in court. The said section provides as follows: “379. Employment of advocate With the permission in writing of the Public Prosecutor an advocate may be employed on behalf of the Government to conduct any criminal prosecution or inquiry, or to appear on any criminal appeal or point of law reserved on behalf of the Public Prosecutor. The advocate shall be paid out of the public funds such remuneration as may be sanctioned by the Minister of Finance and while conducting such prosecution or inquiry, or appearing on such criminal appeal or point of law reserved, shall be deemed to be a “public servant”. 5 Before proceeding with the points canvassed in the appeal, it would be best if we first summarised the grounds for the rejection of the said application by the learned High Court Judge. The High Court judgment

His Lordship first need to grapple with the issue of whether the application was to challenge the validity of the appointment of Datuk Hj Sulaiman or if it was just for production of the said letter of appointment and His Lordship opined, based on the wordings in the Notice of Motion and from the affidavits filed in support of the same, that it was only for production of the said letter. We would have to agree with His Lordship on this score from the clear and express words used in the Notice of Motion itself as reproduced above and we would further fortify our stand by the statement made by Mr Harvenderjit Singh, one of the appellant’s counsel, at the hearing before us that the defence would be happy if the said letter be produced for their inspection in our court. The said offer was of course not taken up the learned Attorney-General (“AG”).

Coming back to His Lordship’s reasonings, we would summarised them as follows:

The letter of appointment is not a pre-trial document covered by section 51 of the Criminal Procedure Code which is only for documents mentioned in the charge against the appellant. 6

(ii) There is no legal requirement to produce the letter of appointment under the Criminal Procedure Code and reliance on section 55 of the Interpretation Acts 1948 and 1967 and section 129 of the Criminal Procedure Code by the appellant are misplaced because these provisions are on the institution of legal proceedings and not on authorisation or permission to appoint a qualified person to conduct prosecution in the Criminal Procedure Code such as sections 333 and 379 thereof. The earlier mentioned provisions read:

Evidence of signature on fiat, etc. Any written law providing that the fiat, consent or authority of any person is necessary before any prosecution or other legal proceedings are begun, or for any other purpose in connection with any legal proceedings, shall be deemed also to provide that any document purporting to be or to bear the signed fiat, consent or authority of that person shall be received as prima facie evidence in any proceedings without proof being given that the signature is what it purports to be. (emphasis added)

Sanction required for prosecution for certain offences

Except in the case of complaints laid by the Public Prosecutor no Court shall take cognisance – 7

of any offence punishable under sections 172 to 188 of the Penal Code except with the previous sanction of the Public Prosecutor or on the complaint of the public servant concerned or of some public servant to whom he is subordinate;

of any offence punishable under section 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 or 228 of the Penal Code except with the previous sanction of the Public Prosecutor or when the offence is committed in or in relation to any proceeding in any Court on the complaint of such Court.

The provisions of subsection (1) with reference to the offences named in it apply also to the abetment of those offences and attempts to commit them.

The sanction referred to in this section shall be in writing and may be expressed in general terms and need not name the accused person, but it shall so far as practicable specify the Court or other place in which and the occasion on which the offence was committed.

Drawing analogy from the authority of Public Prosecutor v Lew Koy (2001) 4 MLJ 655 on a written authority to prosecute from the Public Prosecutor under section 377(b) of the Criminal Procedure Code, His Lordship held that the Public Prosecutor is only required to produce the 8 letter of appointment if there had been a challenge to the appointment of Datuk Hj Sulaiman. His Lordship declined to follow the High Court decision in AK Koh Enterprise v Public Prosecutor (2000) 6 MLJ 184 which held that such an authorization or sanction to prosecute must be tendered in court before trial begins in order to confer jurisdiction on the court.

(iii) The appellant has failed to state specifically the reasons for the alleged challenge to the appointment of Datuk Hj Sulaiman and the court cannot compel its production solely on the ground that the Attorney-General had refused to produce it.

(iv) The Media Release by the Public Prosecutor which was exhibited to the affidavit in support of the application affirmed on 23/11/2018 had specified not just the law (section 379 of Criminal Procedure Code) under which the appointment was made but also the reasons for it, which was the credentials of Datuk Hj Sulaiman as our nation’s leading barrister. Given that it came from the Public Prosecutor himself, in the person of the learned Attorney-General, there would not be a need to produce the same in court. The application had also failed to show how the basis of that appointment as stated in the Media Release was flawed. 9

The letter of appointment has been classified as official secret by the issuance of a certificate under section 16A of the Official Secrets Act 1972. The appeal

We need to state at the outset that the learned Attorney-General at the hearing of the appeal has informed us that the respondent is abandoning their objection on the production of the letter of appointment based on the last ground stated above and that their objection on the said production is premised on section 126 of the Evidence Act 1950. The said section reads:

Professional communications

No advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure-

Any such communication made in furtherance of any illegal purpose; 10

Any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of the advocate was or was not directed to the fact by or on behalf of his client. Explanation-The obligation stated in this section continues after the employment has ceased. ILLUSTRATIONS

A, a client, says to B, an advocate: “I have committed forgery and I wish you to defend me.” As the defence of a man known to be guilty is not a criminal purpose this communication is protected from disclosure.

A, a client says to B, an advocate: “I wish to obtain possession of property by the use of a forged deed on which I request you to sue.” This communication being made in furtherance of a criminal purpose is not protected from disclosure.

A, being charged with embezzlement, retains B, an advocate, to defend him. In the course of the proceedings B observes that an entry has been made in A’s account book, charging A with the sum said to have been 11 embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure. In view of that stand adopted by the respondent we would focus our attention on that ground of objection now. Legal professional privilege

That is the essence of this section 126 which is also known as solicitor-client privilege. The section provides three instances when the privilege arises (except where the provisos apply) and, that is:

Communication made by the client to his advocate;

(ii) Contents of documents which the advocate has sighted; and

(iii) Advice given by the advocate to his client. The qualification, of course is that the three instances must have occurred in the course of or for the purpose of the advocate’s appointment. On the facts in this appeal, we would be confining ourselves to the first instance only. We accept, firstly that the said section applies to the learned Attorney-General and Datuk Hj Sulaiman because in appointing the latter to conduct the prosecution against the appellant, the learned Attorney-General in his 12 capacity as the Public Prosecutor is in no different or worst position than a litigant, be it in a criminal or civil case, who appoints an advocate or solicitor to advise him or represents him in court in the legal dispute involving him. However, in order to seek refuge under that section the respondent must show that the letter of appointment comes under privilege communication which, with respect, the learned Attorney-General has failed to convince us that it is so. This is because if one were to look at the Illustrations to the said section, which had been produced earlier, it is clear that what is protected (or not as expressly stated in the section) is information given by the client to his advocate or solicitor and this is exemplified in the judgment of Augustine Paul J in Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No 3)(1999) 2 MLJ 1 where His Lordship said as follows in respect of the said section: This rule is established for the protection of the client, not of the advocate, and is founded on the impossibility of conducting legal business without professional assistance, and on the necessities, in order to render that assistance effectual, of securing full and unreserved intercourse between the two (see Jones v Great Central Railway Company [1910] AC 4; Lyell Kennedy (No 2)(1883) 9 App Cas 81; Wheeler v Le Merchant (1881) 17 Ch D675). As Jessel MR said in Anderson v Bank of British Columbia (1876) 2 Ch D 644 at page 649L 13 ‘ …. It is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman and whom he consults with a view to the prosecution of his claim, or substantiating his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule.’ …………………………………………………………………………………………. It is not every communication made by a client to an advocate that is privileged from disclosure. However, whatever a man says to his legal adviser about his private affairs with a view to obtaining professional advice is presumed to have been said in confidence and the object is to protect all such confidential communications (see Sarkar on Evidence (15th Ed), Vol II page 2034). The privilege also extends to acts of the client observed by the advocate (see Robson v Kemp 5 Esp 52). As the privilege is that of the client, he may 14 expressly waive it under section 126 or impliedly under section 128 of the Evidence Act 1950 by calling the advocate as his witness. (emphasis added)

Applying what is stated above to the facts of this case, we do not think that the scope of that section should be stretched to include the formal letter of appointment for it is not in the nature of such information as we said earlier given by the learned Attorney-General to Datuk Hj Sulaiman. Clearly, its production is not the mischief which the said section seeks to overcome. We would in this regard draw an analogy which was rightly made by the appellant’s counsel, between a letter of appointment or fiat and a warrant to act which the court can demand production of and that of a sanction to prosecute under section 129 of the Criminal Procedure Code which must be produced at the commencement of the trial where such a sanction is required. In Augustine Paul’s book, Evidence Practice and Procedure (Fourth Edition) at page 1055 under the heading “Limit of Communication“ an old case of R v Chhoa Mui Sai (1937) MLJ 236 was cited and which is relevant to this appeal where it was held that evidence of payment of $80 by the client to the solicitor is not ‘communication’ within the meaning of section 126 of the Evidence Ordinance. So there is in fact limits to what constitute ‘communication’ in the said section as highlighted above and this further fortifies our view on its scope. 15

Further, it is our view that since a private legal practitioner has been appointed to conduct the prosecution against the appellant, not a Deputy Public Prosecutor in the employment of the Attorney-General’s Chambers who is a public servant, the appellant has a legitimate interest or expectation to have sight of the letter appointing him to conduct the prosecution for it must be remembered that our criminal justice system is an adverserial one and the duty of a prosecutor to act fairly is paramount. As stated by the Supreme Court of India in Food Corporation of India v Kamdhenu Cattle Feed Industries AIR 1993 SC 1601: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ‘fairplay in action’. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. (emphasis added) 16 Therefore, in our view it is the bounden duty of the learned Attorney-General to produce the letter of appointment when such a request has been made and not only when a specific challenge to that appointment has been mounted by the appellant, or an accused who is similarly circumstanced, for he has the right to know from the start of the proceedings that his prosecutor is one who has been validly appointed under the said section 379. Further, by the clear provision of section 55 of the Evidence Act 1950 which we had reproduced earlier, the letter of appointment comes within the said section as it is prima facie evidence which is required, in the words of the section, “… for any other purpose in connection with any legal proceedings ….”. The scope of section 55 is wider than and is not merely confined to the institution of a criminal proceeding as submitted by the learned Attorney-General, which submission was made in order to justify the production of a sanction before the trial commences under the said 129 of the Criminal Procedure Code. In other words, there is no difference between the need to produce a sanction to prosecute before the commencement of a trial and the production of a letter of appointment made under section 379 of the Criminal Procedure Code for the conduct of a criminal proceeding in court. This consideration in our view is a sufficient answer to the point raised by the learned High Court Judge that letter of 17 appointment is not a pre-trial document required to be produced under section 51A of the Criminal Procedure Code.

As for the justification raised by the learned High Court Judge not to order the said production on account of the Media Release, granted that it was exhibited to the appellant’s own affidavit in support, but what it serves to prove is there was an announcement by the learned Attorney-General on Datuk Hj Sulaiman’s appointment but such an announcement cannot take away that legitimate interest of the appellant to have sight of the letter of appointment. That Media Release is also in our view, not a satisfaction of the Attorney-General’s duty as stated above for such a document addressed to the world at large cannot be equated with a formal letter of appointment.

Learned counsel for the appellant also submitted before us that the production of the letter of appointment should be allowed as there was case precedent in which the same was produced. That was the case involving Dato’ Seri Anwar bin Ibrahim with regards to the sodomy charge preferred against him where Tan Sri Muhammad Shafee bin Md Abdullah (“Tan Sri Shafee”) who is now the appellant’s lead counsel was similarly appointed by the then Attorney-General as a Deputy Public Prosecutor to conduct the appeal in the Court of Appeal and subsequently in the further appeal to the 18 Federal Court [see PP v Dato’ Seri Anwar Ibrahim (2014) 4 CLJ 162 and Dato’ Seri Anwar Ibrahim v PP and Another Appeal (2015) 2 CLJ 145, respectively]. We noted that there were two attempts made to disqualify Tan Sri Shafee’s appointment by way of a notice of motion filed in this court pending the hearing of the appeal against the acquittal of Dato’ Seri Anwar bin Ibrahim of the sodomy charge. The judgment of this court in respect of the first application is reported in (2014) 1 MLJ 633 and the second one is reported in (2014) 3 MLJ 882. We also noted that in the second application but not the first, the learned Attorney-General was acting for Dato’ Seri Anwar Ibrahim. In other words, their present roles now are in the reverse. Tan Sri Shafee submitted to us that his letter of appointment was produced and exhibited before this court. We have no doubt that it was so but without concrete evidence to say otherwise, we cannot rule out the probability that the production of the said letter of appointment was on account of the applications to disqualify him, and not out of a request made before the commencement of a trial as in this case. Therefore, in actual fact there is no precedent for us to follow.

However, for the reasons given earlier, the appeal is allowed and the order of the learned High Court Judge set aside. In its place, we make an order in terms of prayer (1) of the Notice of Motion but only in respect of the 19 letter of appointment, not the other documents sought for in it and in prayer

(2). Dated: 25 Mac 2019 signed RHODZARIAH BINTI BUJANG JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA Note: This copy of the Court’s Ground of Judgment is subject to editorial revision. 20 Parties appearing: For the Appellant: Tan Sri Muhammad Shafee Abdullah (Encik Harvinderjit Singh, Puan Sarah Maalini Abishegam, Encik Al-Firduas Shahrul Naing, Encik Wan Aizuddin Wan Mohammed, Encik Rahmat Hazlan, Encik Muhammad Farhan Muhammad Shafee, Puan Nur Syahirah Hanapiah dan Puan Zahria Eleena bersamanya) Tetuan Shafee & Co. For the Respondent: Tuan Tommy Thomas (Tuan Manoj Kurup, Tuan Hj Sulaiman Abdullah, Tuan Donald Joseph Franklin dan Tuan Muhd Izzat Fauzan bersamanya) Timbalan Pendakwa Raya Jabatan Peguam Negara, Putrajaya Cases Referred to :

Public Prosecutor v Lew Koy (2001) 4 MLJ 655

AK Koh Enterprise v Public Prosecutor (2000) 6 MLJ 184

Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No 3)(1999)

R v Chhoa Mui Sai (1937) MLJ 236

Food Corporation of India v Kamdhenu Cattle Feed Industries