Kanawagi A/L Seperumaniam … Perayu v Pendakwa Raya ... Responden (W-09-147-04/2016)

(f) Tajuk perkara pertuduhan dalam Kes Kedua telah secara jelas (distinct) dibangkitkan dan didapati dalam prosiding-prosiding Kes Pertama dan setelah Mahkamah Tinggi membenarkan rayuan terhadap keputuasan Kes Pertama, undang-undang isu estopel kini terpakai dan pihak Pendakwaan tidak boleh membangkitkan isu-isu tersebut.

(g) Pihak Pendakwaan dalam meneruskan dengan Kes Kedua kini meminta Mahkamah dalam Kes kedua untuk menolak atau mengabaikan pendapat atau penemuan Mahkamah sebelum ini dan membuat pendapat atau penemuan fakta baru yang tidak konsisten dengan pendapat fakta Mahkamah sebelum ini dan yang mana undang-undang Negara ini tidak membenarkan.

(h) Pihak Pendakwaan untuk membuktikan Kes Kedua perlu mengemukakan keterangan yang akan bertentangan 10 dengan pembebasan (acquittal) pihak Pemohon dalam Rayuan Mahkamah Tinggi yang mana undang-undang autrefois convict,autrefois acquit,isu estopel dan res judicata tidak membenarkan….” The decision of the Sessions Court [9] The Sessions Court heard the application and on 11.5.2015 dismissed the same. The Sessions Court Judge in his grounds of judgement explained that the hearing of the Kuala Lumpur Sessions Court Case No. 62-164 -2011 could not commence because of the stay granted on 23.3.2012 by the High Court. He further explained that the Court was unable to determine whether the evidence adduced by the prosecution in Kuala Lumpur Sessions Court Case No. 62-164-2011 is similar to the evidence adduced in Kuala Lumpur Sessions Court Case No. 62-130-2000. Thus, the issue with regards to double jeopardy or abuse of court process can only be determined after the hearing of the full trial. The Learned Sessions Court Judge stated: “ Oleh yang demikian, pada peringkat ini mahkamah tidak boleh memastikan sama ada keterangan yang akan dikemukakan oleh Pendakwa Raya dalam kes 62-164-2011 adalah serupa dengan 11 keterangan yang telah dikemukakan dalam kes 62-130-2000. Atas sebab itu, isu sama ada wujud double jeopardy atau penyalahangunaan proses mahkamah belum dapat diputuskan.” [10] The Appellant then appealed to the High Court. The decision of the High Court [11] On appeal, the High Court Judge agreed with the Sessions Court Judge that it is premature at that stage to determine whether the evidence to be adduced would be similar as the Kuala Lumpur Sessions Court case no. 62- 130-2000. His reasons are set out in his grounds of judgment and we reproduce the relevant part as hereunder: “[15] Mahkamah ini mendapati daripada affidavit-affidavit yang difailkan oleh kedua-kedua pihak, bahawa Pertuduhan ‘perjury’ dalam kes kedua tersebut bukanlah berdasarkan fakta yang sama dalam pertuduhan kes pertama. Walaupun jawapan kepada soal balas Perayu yang menjadi asas pertuduhan kes kedua itu berkisar kepada perkara-perkara dalam kes Sivil di Mahkamah Tinggi Pulau Pinang yang sama namun kesan-kesan jawapan itu yang 12 menjadi persoalannya. Oleh itu ia bukan satu perbicaraan secara ‘substantial’ serupa dengan keterangan-keterangan dalam perbicaraan kes pertama. Dengan ini tidak menghalang pihak Pendakwaan meneruskan pertuduhan dalam kes kedua tersebut.” [12] Having heard and considered the arguments of both parties, the High Court dismissed the appeal. Hence, this appeal before us. Parties’ Competing Submissions The Appellant [13] With respect, we would like to note at the outset that it is not easy to comprehend the question of law put forth by learned counsel for the Appellant. [14] If our understanding is correct, learned counsel for the Appellant seems to suggest that the prosecution cannot charge a person whose credit has not been impeached for perjury. He argued that the prosecution can only charge a person whose credit has been impeached by the court resulting from his or her evidence in court. 13 [15] Further, it was argued that section 113(2) of the CPC prohibits any statement made by an accused during the police investigation to be admitted in court. Therefore, the statement recorded under section 113 of the CPC cannot be used to impeach the credibility of the Appellant. [16] The very substratum of the charge in the 2nd trial is “telah memberi keterangan palsu di peringkat pemeriksaan balas … yang kamu ketahui sebagai palsu”. According to learned counsel, the charge in the 2nd trial is unsustainable and doomed to failure because the Appellant cannot be impeached in relation to answers given by him in cross-examination which has not been impeached by the court. [17] The answer given by the Appellant in cross-examination is in respect of Kuala Lumpur Sessions Court Case No. 62-130-2000 where a final decision has been handed down by the court and no impeachment proceedings has been taken against the Appellant. [18] In a nutshell, learned counsel submitted that the prosecution cannot charge the Appellant for perjury as it constitutes a fresh action against the person whose credibility has not been impeached and section 113(2) CPC 14 gives a blanket immunity to an accused from being impeached based on his statement given in the course of police investigation. The Prosecution [19] In response, Learned Deputy Public Prosecutor argued that the charges in both trials are not similar in nature. The charges against the Appellant in the 1st trial was for the usage of a document knowing that it was false and with intent that it should in any way be used or acted on as genuine AS WELL AS filing a false affidavit. Whilst in the Kuala Lumpur Sessions Court Case No. 62-164-2011(the 2nd trial), the charge against the Appellant was for giving false evidence and thus committing perjury. Indeed, they are two different district offences under the Panel Code. Our Decision [20] Before us, the sole issue posed for our determination is simply this: whether a charge can be brought against the Appellant arising from his testimony during cross examination by the prosecution at the defence stage in the 1st trial. After hearing oral submissions of both parties, we had directed both counsels to file further written submission with authorities (if any) on 15 whether the charge under section 193 PC was properly brought against the Appellant. Now, section 193 PC provides as follows: “ Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine” [21] On a plain reading of section 193 PC, it is clear that the section applies to a witness who gives false evidence in court and also to a witness who gives false written statement to be used in any criminal proceedings. In order to sustain a conviction under section 193 PC, the prosecution has to prove beyond reasonable doubt the following ingredients: “ that the accused was legally bound to state the truth, either by an oath or by an express provision of law, or that the accused made the declaration in question. Due administration of the oath of the accused person should be proved like any other fact. 16

(i) that he made such statement whilst so bound.

(v) that he made such false statement intentionally.” (See: Ratanlal & Dhirajlal’s Law of Crimes; A Commentary on Indian Penal Code; Volume 1; 27th Edition;@page 961). [22] For the offence of perjury, the prosecution must prove that the accused had deliberately made two statements which are so contradictory to and irreconcilable with each other that both cannot possibly be true. It is incumbent on the prosecution to show that the statement made by the 17 accused was false. Learned authors, Ratanlal and Dhirajlal, on the subject of the nature of proof in the case of giving false evidence, stated as follows: “ The true rule in a case of giving false evidence is that no man can be convicted of giving false evidence, except on proof of facts which, if accepted as true, should not merely that it is incredible, but that it is impossible that the statements of the party accused made on oath can be true. If the inference from the facts proved falls short of this, it seems to us that there is nothing on which a conviction can stand, because assuming all that is proved to be true, it is still possible that no crime was committed.” (See: Ratanlal & Dhirajlal’s Law of Crimes; supra@page 962). [23] It is clear, therefore, the court can only make such finding on any witness upon clear proof and on being satisfied that the witness had deliberately lied or otherwise. The trial judge must be fully satisfied that based on the evidence adduced, the two statements are not only contradictory but are from every point of view irreconcilable. If the accused proves that he did not intentionally make any false statement, he is entitled to be acquitted. 18 [24] In his submission, learned counsel had attempted to persuade us that due to legal impediment as alluded to earlier, the prosecution would not be able to prove its case under section 193 of PC against the Appellant. [25] With respect, we disagree. We are in full agreement with the learned High Court Judge that it would be premature to conclude, at this stage, whether the prosecution would be able to prove its case under section 193 of PC against the Appellant. We are of the opinion that in the circumstances of this case, the most convenient procedure should be followed, namely that the prosecution should be allowed to present or offer evidence that would substantiate the charge against the Appellant. [26] In the 2nd trial, the prosecution is yet to formally adduce the evidence in court. It is the duty of the public prosecutor to bring or pursue the prosecution of a criminal proceedings and to represent the public interest. The prosecution is also entitled to the due process in criminal cases, that is, a fair opportunity to prosecute. The Court has always accorded this right to the prosecution. 19 [27] The Appellant cannot claim denial of due process because he will have the opportunity to contest the evidence adduced against him and to prove his defence after the prosecution concludes its case. Conclusion [28] In the light of the foregoing, the learned High Court Judge was correct in dismissing the application, so that the case should continue before the Sessions Court Judge for the determination of whether the Appellant had indeed fabricated evidence as alleged in the charge. The appeal is dismissed. The decision of the High Court is affirmed. [29] We further order that the Sessions Court fix an early date to proceed with the full trial as soon as practicable. sgd (HASNAH BINTI DATO’ MOHAMMED HASHIM) Judge Court Of Appeal Malaysia Putrajaya Date: 31.10.2017 20 Counsels: For Appellant: Mr. Manjeet Singh Dillon, Tetuan Melissa Ram, Peguambela dan Peguamcara, No. 3, Jalan Abdullah, Off Jalan Bangsar, 59000 Kuala Lumpur. For Respondent: Pendakwa Raya, Jabatan Peguam Negara Malaysia, Bahagian Perbicaraan & Rayuan, Aras 5, No. 45, Jalan Persiaran Perdana, Presint 4, 62100 Putrajaya. (Attention: Puan Fatnin bt. Yusof)