Datuk Seri Anwar Ibrahim v Kerajaan Malaysia (Saman Pemula No. WA-24-36-06/2017)

Enclosure (7) is the defendant’s application to strike out the Originating Summons (enclosure 1) under Order 18 rule 19

(a), (b) or (d) Rules of Court 2012 (“ROC 2012”), and/or under Order 92 r 4 ROC 2012; and

(ii) enclosure (17) is the plaintiff’s application to strike out certain words in the affidavit in support affirmed by Wong Poi Yoke in respect of enclosure (7) under Order 41 r 6 ROC 2012. [2] At the same time, the following applications are fixed for case managements:

Enclosure (1) is the Originating Summons;

(ii) Enclosure (5) is the plaintiff’s application for discovery against the Prime Minister and Tan Sri Muhammad Shafee Abdullah;

(iii) Enclosure (10) is the Prime Minister’s application to strike out enclosure (5); and 3

(iv) Enclosure (16) is Tan Sri Muhammad Shafee Abdullah’s application to strike out enclosure (1) and (5). [3] The grounds of the defendant’s application in enclosure (7), inter alia, are as follows:

that the plaintiff’s Originating Summons disclosed no reasonable cause of action;

(ii) that this application is to challenge the decision of the Court of Appeal and the Federal Court;

(iii) that the plaintiff had exhausted all legal remedies available to him under the laws of Malaysia;

that the plaintiff’s Originating Summons is a duplicity and/or multiplicity of proceedings in the courts; and

(vi) that the plaintiff’s application is frivolous, vexatious and an abuse of the process of the court. [4] Having considered the defendant’s application and the submissions of the parties, this court has allowed the defendant’s application to strike out the plaintiff’s Originating Summons with costs. 4 The Salient Facts [5] The plaintiff was charged for an offence punishable under section 377B of the Penal Code before the High Court of Kuala Lumpur in Criminal Trial No: 45-9-2009. [6] On 9.1.2012, he was acquitted and discharged by the High Court after a full trial. [7] The prosecution appealed against the decision of the High Court, and the Court of Appeal had allowed the appeal and sentenced the plaintiff to prison for 5 years (the “criminal conviction”). [8] The plaintiff’s appeal to the Federal Court was dismissed on 10.2.2015 and the criminal conviction imposed by the Court of Appeal was affirmed by the Federal Court. [9] On 23.5.2016, the plaintiff applied to the Federal Court for a review under rule 137 of the Rules of the Federal Court, but the said application was dismissed by the Federal Court. [10] On 14.12.2016, the plaintiff filed a second application for review under rule 137 and this was dismissed by the Federal Court on 10.2.2015. [11] On 17.4.2017, the plaintiff commenced a civil suit in the High Court, WA-21NCVC-45-04/2017 claiming that the criminal conviction was 5 obtained by way of fraud and that by reason of the said fraud, the criminal conviction by the Court of Appeal which was affirmed by the Federal Court is null and void and liable to be set aside pursuant to section 44 of the Evidence Act 1950. [12] On 9.6.2017, the plaintiff filed this Originating Summons seeking the following prayers:

a declaration that the criminal conviction of the plaintiff by the Court of Appeal on a charge under section 377B of the Penal Code dated 7.3.2014 is ultra vires Article 5(1) of the Federal Court and is null and void; and

(ii) a declaration that the order issued by the Federal Court on 10.2.2015 affirming the criminal conviction by the Court of Appeal is ultra vires Article 5(1) of the Federal Court and is null and void. The Findings of the Court [13] The plaintiff submits that this court has the jurisdiction to grant the declarations sought by the plaintiff, that his constitutional rights under article 5(1) of the Federal Constitution had been violated. This is because the plaintiff is constitutionally guaranteed a fair trial and a just decision. Therefore, since the lead prosecutor (Tan Sri Muhammad Shafee Abdullah) conducting the appeal in both the Court of Appeal and the Federal Court is not independent as he had 6 been allegedly paid by the Prime Minister, then the plaintiff has not been accorded a fair trial. [14] The thrust of the plaintiff’s compliant is that the lead prosecutor conducting the appeals, Tan Sri Muhammad Shafee Abdullah, had been allegedly paid by the Prime Minister. The relevant parts of the plaintiff’s affidavit in support are as follows:

paragraph 4: “…The truth is that Shafee was paid a total of RM9.5 million in two tranches. The first tranche of RM4.3 million was paid on 11 September 2013. The second tranche of RM5.2 million was paid on 17 February 2014. This was about 18 days before the Court of Appeal heard the appeal, reversed the trial judge and convicted me on 7 March 2014. Both payments were made by Najib, the Prime Minister of Malaysia and a servant or agent of the defendant. I only discovered the fact of these payments a few days ago. I undertake to give full particulars after discovery. In any event, neither Najib or Shafee have denied or contradicted the truth of the aforesaid facts...”

(ii) paragraph 5: “As an accused person, I am constitutionally entitled to a fair trial at all stages of the judicial process. This includes 7 being prosecuted by counsel who is independent and uninfluenced by third party through financial inducement.”;

(iii) paragraph 6: “This guaranteed right has been violated in my case. This is because Shafee had a financial interest in the matter …”; and

(iv) paragraph 10: “The fact that Shafee received RM9.5 million from Najib, show his total lack of independence and goes to the very existence of his appointment.” [15] Therefore, the plaintiff’s complaint on the issue of a fair trial is premised on the allegation that the lead prosecutor conducting the appeals before the Court of Appeal and the Federal Court, that is, Tan Sri Shafee Abdullah is not independent because he was paid RM9.5 million by the Prime Minister. [16] The crucial issue here is that the plaintiff is making a bare allegation on the payment of RM9.5 million. He made reference to two (2) payments being made on 11.9.2013 and 17.2.2014 respectively. But there is nothing to support this allegation in the plaintiff’s affidavit. In paragraph 3 of his affidavit, the plaintiff simply says that this information is in the public domain. 8 [17] To this end (to support the allegation of the RM9.5 million payment by the Prime Minister), the plaintiff has filed enclosure (5) which is an application for discovery and inspection of documents against both the Prime Minister and Tan Sri Muhammad Shafee Abdullah, “to produce statements of accounts ... in particular, the entries that show the receipt of the sum of RM4.3 million and RM5.2 million respectively...”. [18] The ground supporting the application for discovery is that: “(3) The full particulars of the payments aforesaid are with the sole knowledge of the said Dato’ Seri Najib bin Tun Abdul Razak and the said Tan Sri Shafee Abdullah. It is incumbent on these two persons to make full discovery to enable this Honourable Court to arrive at a decision that is in accordance with law.” [19] Therefore, the above clearly shows that the plaintiff is seeking the evidence to support his averments of the RM9.5 million payments. [20] Under Order 41 r 5(1) of the Rules of Court 2012 (“ROC 2012”), an affidavit may contain only such facts as the deponent is able of his own knowledge to prove. Under rule 5(2), an affidavit used in an interlocutory proceeding may contain statements of information of belief with the sources and grounds thereof. The relevant Order 41 r 5 ROC 2012 reads as follows: 9 “Contents of affidavit 5.

Subject to Order 14, rules 2(2) and 4(2), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds hereof.” [21] In the present case, the supporting affidavit of the plaintiff has not complied with order 41 r 5(1) ROC 2012. The plaintiff has not deposed the basis of his allegation of the RM9.5 million payments and has not given any supporting document to support his bare allegation. The foundation of the Originating Summons is the alleged payment by the Prime Minister to the lead prosecutor and this is not supported by any evidence at all, which the deponent is able of his own knowledge to prove. Therefore, on this issue alone I find that the application of the plaintiff is not supported by any evidence and the application is groundless and must be dismissed. [22] Even if we are to consider paragraph 3 of the plaintiff’s affidavit on his purported knowledge, that the source of his knowledge is from public domain (“This is because I did not possess the relevant 10 information that has now surfaced and is in the public domain”), this is also against Order 41 r 5(2) ROC 2012. The plaintiff’s affidavit is not filed to support an interlocutory application which may contain statements of information of belief with the sources and grounds, but to support the Originating Summons, which would determine the rights of the parties. This is supported by the following cases:

In Kassim bin Sulong & Anor v Guthrie Estates Holdings Ltd & Ors [1993] 3 MLJ 303, Zakaria Yatim J held at page 309/C-D; “In Rossage v Rossage, the English Court of Appeal decided that where the proceedings were not interlocutory proceedings, hearsay evidence was inadmissible and irrelevant. In the present case, the proceedings are not interlocutory but a final matter and hearsay evidence is therefore inadmissible.” (emphasis added)

(ii) In Hua Joo Development Co Sdn Bhd v Syrvey Development Services [1994] MLJU 58, the issue before Justice Chong Siew Fai is the interpretation of Order 25 r. 26(2) Subordinate Court Rules, 1980, which is identical to Order 41 r. 5(2) RHC, 1980. His Lordship held; “Whether an application is interlocutory or final depends on the circumstances in which it is made 11 and the order, if any, which the application seeks. .. But an application such as the one in our instant case, the purpose of which is to obtain an order which, if granted, is to strike out a pleading and to enter final judgment in the action is, in my opinion, not an interlocutory proceeding for the purpose of Ord. 25 r.26(2). An order under such an application would finally determine the rights of the parties in the action. Affidavits made in support of such an application, therefore, should, in my view, contain facts that the deponent is able of his own knowledge to prove..”(emphasis added) [23] Finally, in Karpal Singh v Sultan of Selangor [1987] CLJ Rep 686, the Supreme Court said as follows: “Before I consider the grounds, I would in passing, observe that the sole foundation of the originating summons is the statement allegedly made by the Sultan as reported in the New Straits Times and the Star newspapers on 27 July 1987. There is no affidavit before the court affirmed to by the reporter concerned stating that he heard the Sultan made such a statement. The press reports of what the Sultan is reported to have been said would appear to be inadmissible as 12 hearsay. The fact that the Sultan has not contradicted the press reports does not, in my view, make the slightest difference for it is well established that inadmissible evidence does not become admissible by reason of failure to object. … Without the press reports, what other evidence is there to show the Sultan said on the occasion concerned. It is my view, therefore, the originating summons founded upon such premises may be held to be groundless....” (emphasis added) [24] Therefore, since the plaintiff’s Originating Summons is not supported by any evidence with regards to the allegations of financial payments made by the Prime Minister to the lead prosecutor, Tan Sri Mohammad Shafee Abdullah, I find that the application is groundless and must be dismissed. [25] I am also of the considered opinion that the net effect of this application is to set aside the judgments of the Court of Appeal and the Federal Court with regards to the criminal conviction, and therefore this court simply has no jurisdiction to do so. The plaintiff had been given a fair trial in the High Court which resulted in an acquittal on the preferred charge. Based on the evidence presented before the High Court, the Court of Appeal had reversed the findings of the High Court leading to the criminal conviction. This criminal conviction was affirmed by the Federal Court. As such, this 13 application which is to nullify the criminal conviction, is a collateral attack on the judgments of the Court of Appeal and the Federal Court and this court has no jurisdiction to deal with the same. [26] Added to that, since the plaintiff had applied to challenge the appointment of Tan Sri Muhammad Shafee Abdullah as the lead prosecutor before the Federal Court and vide an application for review under rule 137, whereby both applications have been dismissed by the Federal Court, therefore this application of similar nature is an abuse of the process of the court. [27] In the premise, enclosure (7) is allowed with cost. Consequentially, all applications there under, enclosures (17), (5), (10) and (16) are struck out with no order as to costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 30th January 2018 For the Plaintiff: Datuk Gopal Sri Ram/N.Surendran/ Latheefa Koya Messrs Daim & Gamany Petaling Jaya, Selangor Darul Ehsan. 14 For the Defendant: SFC, Puan Nadia / Zureen Elina / Mohd Azmi Enclosure (16): Tan Sri Muhammad Shafee Abdullah/ Sarah Abishegam Enclosure (10): Watching Brief - Nor Emilia Iszeham for Prime Minister. Cases referred:

Kassim bin Sulong & Anor v Guthrie Estates Holdings Ltd & Ors [1993] 3 MLJ 303.

Hua Joo Development Co Sdn Bhd v Syrvey Development Services [1994] MLJU 58.

Karpal Singh v Sultan of Selangor [1987] CLJ Rep 686.