Datuk Seri Anwar Bin Ibrahim v Kerajaan Malaysia (W-01(A)-413-11/2017)

that the Proposed Intervener, Muhamad Shafee Abdullah, be hereby given leave to intervene in Civil Appeal No: W-01(A)- 413-11/2017 and be heard accordingly; 3 2. that the affidavit affirmed by Siti Rohayu Binti Mohd Mumasaini on 5.9.2018 (the said affidavit) and filed in the present appeal be expunged from the records of this Honourable Court;

further and/or in the alternative that the said Siti Rohayu Binti Mohd Mumasaini (NRIC No. 840418-01-6440) attend before this Honourable Court on a date to be fixed to be cross examined by counsel acting for the Proposed Intervener on the contents of the said Affidavit and other issues identified by the Proposed Intervener and/or as deemed fit and proper by this Honourable Court. [3] This is the relevant factual background as gathered from the affidavits and counter affidavits filed. These facts were critical to our evaluation and determination of the application for intervention. We will refer to the parties as they were at the High Court, and the Proposed Intervener, by the initials of his name, “MSA”. [4] Vide Originating Summons filed at the High Court [OS] where the Government of Malaysia is cited as the defendant, the plaintiff sought to declare that his conviction of an offence under section 377B of the Penal Code by the Court of Appeal on 7.3.2014 and the subsequent affirmation of the said decision by the Federal Court on 10.2.2015 is null and void and of no effect. The plaintiff’s principal ground for the order was that his right to a fair trial under Article 5(1) of the Federal Constitution had been allegedly violated because MSA who had been appointed as a Deputy Public Prosecutor [ad hoc] to conduct those relevant appeals was not an independent prosecutor. MSA is said to have had a financial interest in the appointment as he had received payment of RM9.5 million 4 from the then Prime Minister for such appointment. The plaintiff relied on a Sarawak Report dated 31.5.2017 which he claimed had “now surfaced and is in the public domain”; that because of the payment, MSA had a “substantial financial interest in the outcome of the case.” [5] Following this, the plaintiff filed an application for discovery against MSA [enclosure 5], seeking production of MSA’s banking documents, namely “any and all my statements of account from whatsoever bank at which I maintain an account or accounts for the period of August 2013 to October 2013 and for the period January 2014 to March 2014 and in particular the entries that show the receipt of the sum of RM4.3 million and R5.2 million from Dato Seri Najib bin Tun Abdul Razak.” The discovery was also against the then Prime Minister. [6] Meanwhile, the defendant, the Government of Malaysia, filed an application [enclosure 7] seeking to strike out the plaintiff’s Originating Summons. Amongst the grounds relied on were-i. that the Court did not have the necessary jurisdiction to grant the reliefs sought; ii. there was no valid cause of action against the respondent; iii. the plaintiff’s convictions were adjudicated on finally at the Court of Appeal and Federal Court aside from his two unsuccessful applications for review of the Federal Court’s decisions, and the principle of res judicata applied; iv. plaintiff had commenced similar proceedings vide Kuala Lumpur High Court Civil Suit No.. WA-21NCVC-45-04/2017; v. the matter was non-justiciable by virtue of Article 145 of the Federal Constitution. 5 [7] The plaintiff in response filed enclosure 17 to strike out certain words used in the supporting affidavit to enclosure 7. [8] On 3.8.2017, MSA applied vide enclosure 16 to strike out both the discovery application and the Originating Summons, that is, enclosures 5 and 1 respectively. The then Prime Minister filed a similar application – enclosure 10. [9] On 5.10.2017, the High Court heard arguments from the appellant and the respondent on enclosure 7. On that same date, enclosures 1, 5, 10 and 16 were all fixed for case management. On 5.11.2017, the respondent’s application was allowed with costs. This meant the plaintiff’s Originating Summons was struck out. As a consequential order, the High Court struck out enclosures 1, 5, 10 and 16 with no order as to costs. [10] The plaintiff appealed. [11] On 6.9.2018, an affidavit affirmed on 5.9.2018 by one Siti Rahayu bt Mohd Mumazaini was filed in this appeal proceedings [Siti Rahayu’s affidavit], on the instructions of the then Attorney General and Public Prosecutor. That affidavit served to-i. exhibit specific documents such as cheque images, bank statements and extracts of bank statements which are said to show the payment of RM9.5 million in two tranches to MSA; 6 ii. aver that this information and the documents were only obtained by the respondent and the Public Prosecutor’s Office on 296.2018 pursuant to investigations against MSA under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2011 [AMLATFPUAA]; iii. aver that the respondent did not have this information at the time of hearing of enclosure 7 at the High Court on 5.10.2017; iv. aver that this information was only obtained by the Malaysian Anti-Corruption Commission after a freezing order under section 44(1) of AMLATFPUAA was procured on 29.6.2018; v. aver that paragraph 28 of MSA’s affidavit in support of his application to intervene in enclosure 27 was untruthful. [12] On 7.9.2018, the plaintiff disclosed Siti Rahayu’s affidavit to the press. The following day, MSA issued a press statement in response to that disclosure where he explained the circumstances of his appointment. [13] According to paragraphs 8 to 11 of his affidavit in support, MSA expressed his concerns that the filing of Siti Rahayu’s affidavit as being “unprecedented”; “a political maneuvere to further the interest of the Appellant”; that “it is not beyond contemplation that in furtherance of the Appellant’s own interests, the Respondent will attempt to concede to the appeal”; that “this is a clear abuse of the process of this Honourable Court”. In essence, MSA denied that he had any pecuniary or financial 7 interest in the outcome of the plaintiff’s appeals; that the impugned payments are unrelated to his appointment as DPP in the plaintiff’s appeals. [14] On 11.9.2018, MSA filed a police report on the contents of Siti Rahayu’s affidavit and the disclosure of the same by the plaintiff. [15] A day before the present appeal was heard, MSA was charged for inter alia an offence under section 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 [Act 613] – see exhibit MSA 8 in enclosure 37. [16] The law on intervention in a pending matter, including appeal, is fairly trite. The Privy Council decision in Pegang Mining Co Ltd v Choong Sam & Co & Ors [1969] 2 MLJ 52 is still good law. It has been applied in a long line of cases including Tohtonku Sdn Bhd v Superace

(M) Sdn Bhd [1992] 2 MLJ 63; Chong Fook Sin v Amanah Raya Bhd (as the administrator for the Estate of Raja Nong Chik bin Raja Ishak, deceased) & Ors [2011] 1 MLJ 721; and Hong Leong Bank Bhd (formerly known as Hong Leong Finance Bhd) v Staghorn Sdn Bhd & Other Appeals [2008] 2 MLJ 622. [17] We were amply satisfied that given this factual backdrop, the application in enclosure 27 is of merit. We were satisfied that not only were MSA’s rights and interests directly affected, his presence would be necessary to ensure that all matters in dispute in this appeal be effectually and completely determined and adjudicated upon. The matters averted to in Siti Rahayu’s affidavit are undeniably matters that concern MSA and it is MSA’s ad hoc appointment as Deputy Public 8 Prosecutor that lies at the heart of the plaintiff’s allegation of want of a fair trial and a violation of his rights under the Federal Constitution. [18] We cannot agree with the plaintiff’s suggestion that MSA has no legal interest in the subject matter of the appeal. At this stage, there is every indication that Siti Rahayu’s affidavit, which the plaintiff says contains “material and relevant evidence”, is intended to be used in this appeal by the plaintiff; to support his position that his appeal is of merit. Almost everything in the contents of Siti Rahayu’s affidavit relate and concern MSA and his ad hoc appointment. [19] The subject matter of the Originating Summons and the related applications all stem from and relate to the plaintiff’s allegations of lack of a fair trial and violation of his rights under the Federal Constitution for the very reason that MSA was not an independent prosecutor, and upon which the plaintiff seeks declaratory orders nullifying his convictions by the Court of Appeal and the Federal Court. These are strong, valid and cogent reasons for us to allow MSA’s application to intervene and we cannot be persuaded otherwise. [20] We observed that the learned Senior Federal Counsel had taken the position before us that MSA’s application has met the conditions of Order 15 rule 6(2) of the Rules of Court 2012. Learned SFC explained that Siti Rahayu’s affidavit was filed in the interest of justice. SFC’s main concern really was on the prayers to expunge Siti Rahayu’s affidavit and to cross-examine her on the contents of her affidavit. [21] We must add that by virtue of the plaintiff’s own application for discovery against MSA [enclosure 5] and MSA’s application to strike out 9 the same [enclosure 16], MSA was already an interested party on no less than those two occasions. It is also clear that MSA’s legal interests will be affected by a judgment in the Originating Summons as the gist of the plaintiff’s complaints is the payment of the RM9.5 million to MSA for the prosecution against him; that MSA had financial interest in that prosecution. [22] Accordingly, we are of the unanimous view that prayer (1) of the application in enclosure 27 should be granted, that MSA be and is hereby granted leave to intervene in this appeal. On the other hand, we are of the view that MSA’s application to expunge Siti Rahayu’s affidavit from the records of the Court in this appeal and to cross-examine her on the same [prayers (2) and (3) in enclosure 27] is without merit. These are matters more properly taken at the main appeal; after the Court has had the benefit of hearing all the parties, including MSA, on amongst others, the relevancy of the affidavit and the truth of its contents. [23] Finally, we made no order as to costs. Dated: 13 October 2020 Signed (MARY LIM THIAM SUAN) Judge Court of Appeal Malaysia 10 For the appellant: Dato’ Seri Gopal Sri Ram, Leela Jesuthasan, Emily Wong & How Li Nee Tetuan of Leela Suite 1710 Tingkat 17, Plaza Permata No. 6, Jalan Kampar 50400 Kuala Lumpur For the respondent: Dato’ Amarjeet Singh a/l Serjit Singh, Alice Loke Yee Ching & Suzana Atan Peguam Kanan Persekutuan Jabatan Peguam Negara 45, Persiaran Perdana Presint 4 62100 Putrajaya For the intervener: Harvinderjit Singh, Sarah Abishegam & Wee Yeong Kang Tetuan Shafee & Co. Chambers Twenty-Five No. 25, Jalan Tunku, Bukit Tunku 50480 Kuala Lumpur