Subparagraph
(iii) that the appellant was legally bound to give information respecting the section 130C Penal Code offence. [30] In arriving at these findings, the learned trial judge had duly complied with the procedural requirement of subjecting the prosecution’s evidence to a maximum evaluation and to determine whether the witnesses were credible and reliable witnesses. We found no reason to depart from his findings as he had applied his mind correctly to the law and to the facts. [31] As the trial judge, the learned judge had the audio-visual advantage of seeing and hearing first-hand the witnesses giving evidence and was undoubtedly in the best position to assess their creditworthiness. We on the other hand only had the printed notes of evidence to rely on. These cold prints tell us nothing about the demeanour and behavior of the witnesses while giving evidence, especially when answering hard questions during cross-examination. We should perhaps reproduce what Lord Shaw said in Clarke v Edinburgh Tramways 1919 SC (HL) 35 at page 36: “In courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page.” 12 [32] While it is true that demeanour is not the touchstone of truth, it is also true that it gives the trial judge a sense of the witness’ inclination, either to be truthful or to be untruthful. We do not think one has to be a trained psychologist to detect falsehood. That applies equally well to the trial judge. [33] In this regard, it is clear that the learned judge had found PW1 and PW2 to be credible witnesses and he accepted their evidence without reservation. This is what he said: On PW1 “I find that PW1 had given credible evidence about the information that he passed to the accused. Although he is a “protected witness” under SOSMA, counsel for the accused had full opportunity to cross-examine him through the court interpreter. He answered all questions confidently and without hesitation. I cannot think of any reason why he would want to incriminate a police officer such as the accused. There was no suggestion put to him that he had underlying reasons to fabricate evidence. PW1 appeared to have no motive at all to do so. Furthermore he stood up well to cross-examination.” On PW2 “During re-examination, PW2 repeated that P5, P6 and P7 contained information from the said intercepted communications. As the witness was confident about the contents of the non-verbatim transcripts, I see no reason not to accept her evidence.” [34] The principle on appellate intervention with findings of fact that involve the question of the credibility of the witnesses is too well established for us to cite any authority for the relevant proposition of law. Suffice for us to say that an appellate court does not interfere with such findings of fact at the drop of a hat. In the present case although PW1 and PW2 were protected witnesses, which means their identities were kept from counsel’s view, it in no way prevented counsel from challenging the veracity and accuracy of their testimonies by cross-examination. 13 [35] To justify our interference with the learned judge’s findings of fact, we must be persuaded to the point of conviction that the learned trial judge had failed to take proper advantage of his having seen and heard the witnesses. We were not persuaded that the learned judge had fallen into this error. It would therefore be wrong for us to substitute his conclusions with that of our own. The right thing for us to do in the circumstances would be to defer to his findings. [36] There was therefore no substance to the appellant’s contention that the learned trial judge erred in finding the prosecution witnesses, particularly PW1 and PW2 to be credible witnesses. [37] Learned counsel had argued, within grounds 1-7 of the petition of appeal, that the information that PW1 “received” was hearsay as the source of the information was not revealed and had come from a third party. We were unable to accede to the argument. It would appear that learned counsel was equating “hearsay evidence” with “information”. With due respect, these are not synonymous terms. First, the word “information”. The Concise Oxford Dictionary (Ninth Edition) defines it as follows: “1 a something told; knowledge. b (usu. foll. by on, about) items of knowledge; news (the latest information on the crisis). 2 with a court or magistrate. 3 a the act of informing or telling.” [38] In K.J. Aiyar’s Judicial Dictionary, the word is defined as follows: “In its ordinary sense, “information” is a wider term and includes any communication relating to the commission of an offence.” 14 [39] In PP v G Choudhury [1981] 1 MLJ 76 the Singapore Criminal Court of Appeal was dealing, inter alia, with the word “information” in section 132A(1) of the Companies Act (Chapter 185). Sinnathuray J delivering the judgment of the court had this to say at page 78: “In our view, “information” as used in the section means knowledge of a particular event or situation such as advice, communication, intelligence, news, notification and the like.” [40] Within our shores, the meaning of the word as used in section 27 of the Evidence Act 1950 was explained by the Federal Court in Siew Yoke Keong v PP [2013] 3 MLJ 630 in the following terms at page 644: “It is very important to note that s 27 of the Evidence Act uses ‘information’ instead of ‘statement’. Information connotes two things – (a) a statement or other means employed for imparting knowledge possessed by one person to another, and (b) the knowledge so derived by the other person. Explaining this in Karam Din v Emperor AIR 1929 Lahore 338 Dalip Singh J said: “In connection with this it is necessary to bear in mind that the word ‘information’ cannot be used as synonymous with the word ‘statement’. There is no reason why the word ‘information’ should have been used instead of the word ‘statement’ in the section if by ‘information’ statement alone was intended. The word ‘information’ as distinct from the word ‘statement’ connotes two things, namely a statement or other means employed for imparting knowledge possessed by one person to another, and the knowledge so derived by the other person. It is unnecessary to enter into the question whether all means of imparting knowledge by one person to another person are not covered by the word ‘statement’ but it is necessary to emphasise the second portion, namely, that ‘information’ also includes the knowledge derived by the person informed from the informant. To me, therefore, it seems clear that when a person deposes simply to the following effect, namely, that from information received from the accused he proceeded to do certain things and discovered certain other things, the statement is by itself relevant and admissible in evidence against the accused. In order to make it irrelevant or inadmissible against the accused, it would not be sufficient merely to put 15 a question to the deponent which tended to show that the information was derived from an oral statement made by the accused, for the fact that there was such an oral statement would not make the statement inadmissible for the reason that the word ‘information’ includes, as already stated, the knowledge derived by the person as well as the means taken to impart that knowledge. (Emphasis added.)” [41] As for the words “hearsay evidence” and “hearsay rule”, they convey entirely different meanings. The following definitions given by Black’s Law Dictionary (Deluxe Ninth Edition) are relevant: “hearsay. (16c) 1. Traditionally, testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of someone other than the witness. Such testimony is generally inadmissible under the rules of evidence.” “hearsay rule. (1896) The rule that no assertion offered as testimony can be received unless or is or has been open to test by cross-examination or an opportunity for cross-examination, except as provided otherwise by the rules of evidence, by court rules, or by statute. The chief reasons for the rule are that out-of-court statements amounting to hearsay are not made under oath and are not subject to cross-examination.” [42] The Oxford Dictionary of Law gives a rather long definition of the words “hearsay evidence”, as follows: “hearsay evidence” Oral or written statements made by someone other than during his testimony in court but which the court is asked to accept as evidence for the truth of what is stated. In general, hearsay evidence has been inadmissible (the rule against hearsay) but this principle has always been subject to numerous exceptions. In civil proceedings, the Civil Evidence Act 1995 abolished the rule against hearsay and provides that what would formally have been called “hearsay evidence” may be used when a notice of the intention to rely on that evidence is given. It is for the court to decide at trial what weight to put on any particular evidence, whether it is hearsay or not. The admissibility of hearsay evidence in criminal proceedings is now governed by the Criminal Justice Act 2003, which provides that a statement not made in oral evidence in the proceedings may be admissible as evidence of any matter stated if the court is satisfied that it is in the interests of justice 16 for it to be admissible. The Criminal Justice Act 2003 specifically provides for the admissibility of hearsay evidence of unavailable witnesses and preserves the common law rules relating to the admissibility of res gestae and confessions in criminal proceedings. The Act also provides for the admissibility of previous inconsistent statements and other previous statements, including complaints made by a victim as soon as could reasonably be expected after the offence was committed.” [43] The term “hearsay rule” on the other hand is given the following meaning by the Dictionary of Legal Terms (Fifth Edition) by Steven H. Gifis, which is equally long: “HEARSAY RULE” a rule that declares not admissible as evidence any statement other than that by a witness while testifying at the hearing and offered into evidence to prove the truth of the matter stated. The hearsay statement may be oral or written and includes nonverbal conduct intended as a substitute for words (such as a nodding of the head). If, for example, a witness’ statement as to what he or she heard another person say is elicited to prove the truth of what that other person said, it is hearsay. If, however, it is elicited merely to show that the words were spoken, it is not hearsay. The witness’ answer will be admissible only to show that the other person spoke certain words and not to show the truth of what the other person said. The reason for the hearsay rule is that the credibility of the witness is the key ingredient in weighing the truth of his or her statement; so that when that statement is made out of court, without the benefit of cross-examination and without the witness’ demeanor being subject to assessment by the trier of fact (judge or jury), there is generally no adequate basis for determining whether the out-of-court statement is true.” [44] So, “hearsay evidence” and “information” are two different kettles of fish altogether. The information that PW1 gave to the appellant was not hearsay evidence for the simple reason that it was within his own personal knowledge. It was not something that he came to know of from a third party not called as a witness. It was what he saw with his own eyes and heard with his own ears and not what a third party told him. Learned counsel was therefore misconceived in contending that the information that PW1 gave to the appellant was hearsay evidence. 17 [45] When called upon to state his defence, the appellant elected to give an unsworn statement from the dock and did not call any witness. His defence was a total denial of the offence charged. He said PW1 lied in court as a “propaganda” of the Special Branch to fix him up, and that the evidence of intercepted communication recorded by PW2 was a total fabrication. [46] As for the evidence that he met up with Datu Piah in Lahad Datu town on 13th February 2013, which was one day after the intrusion at kampong Tanduo by the followers of the Sulu Sultanate, the appellant did not deny that it did take place but explained that the reason why he did not make an intelligence report of the meeting (and what was said by Datu Piah at the meeting) was because he was on leave. He said he left for Kota Kinabalu the following day to arrange for his son’s engagement. He said he had told an officer on duty at the Lahad Datu Special Branch Operations Room about the meeting. [47] This claim by the appellant that he left for Kota Kinabalu the following day, i.e. on 14th February 2013 was a deliberate lie because on that date he was with Corporal Ajerah (PW14) at the Lahad Datu Police Headquarters, helping her to prepare a powerpoint presentation on the terrorist intrusion at Kampung Tanduo. PW14’s evidence was as follows: “Q: Pada 14.2.2013, lebih kurang 2.30 petang, adakah kamu ada melakukan apa-apa tugas? A: Ada. Q: Apa tugas yang kamu lakukan? 18 A: Membuat taklimat secara Powerpoint atas arahan Ketua Cawangan Khas Lahad Datu. Q: Taklimat melalui Powerpoint ini adalah mengenai perkara apa? A: Mengenai insiden pencerobohan di Kg Tanduo, Lahad Datu. Q: Ada sesiapa lagi yang bersama kamu menyediakan taklimat Powerpoint ini? A: Ada. Koperal Detektif Hassan bin Hj Ali Basari.” [48] In evaluating the appellant’s defence, it did not escape the learned judge that a recurring theme in his unsworn statement from the dock was his claim that he had been made a scapegoat by the Special Branch for the armed intrusion at Lahad Datu. This was what he alleged: “Saya percaya bahawa PW1 (Protected Witness 1) yang memberi keterangan di Mahkamah adalah “Lantas”. Keterangan “Lantas” di Mahkamah yang kononnya dia ada memberi maklumat kepada saya bahawa ada 1,500 orang Suluk berkumpul di Simunul dan 4 pintel masuk Bangkuran, Lahad Datu adalah tidak benar dan tidak pernah berlaku di Lahad Datu. Saya dimaklumkan di dalam taklimat pagi bahawa tiada pencerobohan berlaku selepas 16hb Februari 2013 oleh pengikut Kesultanan Sulu. Keterangan “Lantas” adalah propaganda oleh pihak Cawangan Khas untuk mengenakan saya agar saya disabitkan di Mahkamah ini.” [49] The allegation was rejected by the learned trial judge, which demolished the whole substratum of his defence. Given the learned judge’s finding that PW1 and PW2 were truthful witnesses, we had no reason to disagree with his decision to reject the appellant’s defence. [50] From his grounds of judgment, it is clear that the learned judge had properly and adequately considered the appellant’s explanation and had directed his mind correctly to the proper approach to be taken in dealing 19 with an unsworn statement from the dock, having referred to the following observations by Zulkefli Ahmad Makinudin J (now PCA) in Public Prosecutor v Mohd. Amin Mohd Razali & Ors [2002] 5 CLJ 281: “The position in law is that the right of an accused person to make an unsworn statement from the dock is a substantive right. However, we must bear in mind that statement from the dock is not sworn evidence which can be the subject of cross examination. Not so much weight can be given to what the accused said in the dock when compared to what the accused would give under sworn evidence. This is so because when a man gives evidence one can cross examine him and test his evidence and generally have a better opportunity of assessing him. Nevertheless, the law is very clear that the court cannot outright reject such evidence. The court must consider it and give it such weight for what it is worth and think fit having regard to the evidence adduced as a whole before the court.” [51] The following cases are also relevant on the issue of weight to be given to an unsworn statement from the dock: Lee Boon Gan (f) v Regina [1954] 20 MLJ 103; Udayar Alagan & Ors v Public Prosecutor [1962] 1 MLJ 39; Juraimi Husin v Public Prosecutor [1998] 2 CLJ 383; [1998] 1 MLJ 537; Mohamed Salleh v Public Prosecutor [1969] 1 MLJ 104. The general principles that can be distilled from these cases are: