Mohd Hafizan bin Khalid (JA-61R-9-05/2021)

The accused claimed trial to the charge and was represented by Counsel. A Prosecuting Officer from the Malaysian Anti-Corruption Commission (MACC) conducted the prosecution. At the close of the case for the prosecution, this court found the prosecution had 3 made out a prima facie case against the accused. Thus, the accused was called upon to enter on his defence.

At the close of the case for the defence, this court found that the prosecution had proved its case against the accused beyond a reasonable doubt. He was found guilty and convicted.

After hearing and considering submissions from both sides, the accused was sentenced to 3 years of imprisonment from the date it was passed and to a fine of RM15,000.00 (in default 6 months jail).

Being dissatisfied, the accused is now appealing to the High Court on the conviction and sentence.

To prove its case, the prosecution called a total of 10 witnesses.

The accused worked as an Assistant Enforcement Officer with the Malaysian Department of Quarantine and Inspection Services (MAQIS). In 2016, he was working as a supervisor at the Pelabuhan Tanjung Pelepas (PTP) MAQIS entry point. It was one of the entry points for MAQIS in Johor. The entry points were specific locations where MAQIS conducted inspections and quarantine procedures for imported goods.

PW5 was a freight forwarding agent. He decided to do business with ZS Armin Sn Bhd to import frozen meat. The company informed PW5 that it involved meat from an abattoir that was not recognised by Malaysian authorities. In other words, the frozen meat was not allowed to be imported into this country. To operate the business, all participants understood that it would involve bribery.

PW5 knew someone called Din who was an agent at the PTP. Din told him that in order to import meat, he would introduce him to PW4, a MAQIS officer. PW5 then met PW4 in a restaurant in Johor Bahru. PW4 told him that the business could be operated through the entry point at PTP. For that purpose, PW5 had to deal with the accused. PW5 later met the accused. He told the accused that the proposed business involved importing halal meat to Malaysia from an unauthorised abattoir. In the meeting, the accused informed PW5 that he would handle the matter and would allow the container carrying the frozen meat to pass through.

In the middle of November 2016, PW5 was informed by PW4 that the cost to allow one container to pass through was between RM 2,500.00 and RM 2,800.00. PW4 further said the money must be given to him, and he himself will give the money to the accused. PW5 agreed with the arrangement.

At the end of November 2016, PW5 started his first importation of a container for ZS Armin Sdn Bhd, carrying frozen meat. PW5 went to see the accused at the PTP’s MAQIS office to serve the necessary documents. Later on, he went to the Customs Department office at the PTP where he saw the accused come and talk with the Customs examiner. After the examination by the Customs officer, he got back his documents. This was the time when he told the accused that he would give the money to PW4. His container was subsequently released by the Customs Department.

The day after, PW5 met with PW4 again. He told PW4 that his container managed to get through. Then he gave RM 2,500.00 to PW4 to give it to the accused.

The next day after meeting PW5, PW4 called the accused to meet him at the Restoran Mak Teh in Johor Bahru. The purpose was to give the accused the money that was previously given by PW5. When they met at the restaurant, PW4 gave the money to the accused. The money was then received by the accused.

After an investigation was conducted by the MACC, the accused was indicted in court under section 16(a)(B) of the MACC Act 2009 (the Act) for the offence of corruptly receiving a gratification for himself.

The accused was charged with committing an offence under section 16(a)(B) of the Act which provides:

Any person who by himself, or by or in conjunction with any other person –

corruptly solicits or receives or agrees to receive for himself or for any other person; or

corruptly gives, promises or offers to any person whether for the benefit of that person or of another person, any gratification as an inducement to or a reward for, or otherwise on account of–

(A) any person doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place; or

(B) any officer of a public body doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place, in which the public body is concerned, commits an offence. [Emphasis added] [16] Based on the charge preferred, the prosecution was required to prove all 3 ingredients of the offence for a prima facie case against the accused. They were:

that the accused, by himself, corruptly received RM2,500.00 for himself from PW4;

that the gratification was a reward for the accused to release the container No. CRSU6010321 containing frozen meat; and

that the accused was an officer of a public body in which the public body was concerned.

that the accused, by himself, corruptly received RM2,500.00 for himself from PW4. [17] The word ‘corruptly’ was discussed in Public Prosecutor v. Jamil bin Mahmood & Anor [1998] 1 LNS 312. It was held that: The key word in both ss.3 and 4 is “corruptly”. When used in a statute, this term generally imports a wrongful design to acquire some pecuniary or other advantage. ( Black’s Law Dictionary (6th Ed). The word “corruptly” ... sounds the keynote to the conduct ... the giving of a gift or consideration, not bona fide but mala fide, and designedly, wholly or partially, for the purpose of bringing about the effect forbidden by the section: R v. Gross [1946] OR 1 at p. 9, per Roach JA. ... it means an act by one man knowing that he is doing what is wrong, and knowing so with evil feelings and evil intentions ( Lim Kheng Kooi & Anor v. R [1957] MLJ 199 at p. 205, per Sheperd J), an act which the law forbids as intending to corrupt ( Wellburn [1979] 69 Cr APP R 254). [Emphasis added] [18] In PP v. Datuk Harun bin Haji Idris (No 2) [1977] 1 MLJ 15, Raja Azlan Shah FCJ ( as His Royal Highness then was) had this to say: But what is or is not “corrupt” is a question of intention. If the circumstances show that what a person has done or has omitted to do was moved by an evil intention or a guilty mind, then he is liable under the section. [Emphasis added] [19] To prove this ingredient, the prosecution relied mostly on the evidence of PW4 and PW5. PW4 was Shuhaizam bin Ahmad Hijazi, who worked as an Assistant Enforcement Officer for MAQIS at the Woodlands Train Checkpoint in Singapore. Whereas, PW5 was Mohd Nasruan Aidil bin Zainal Abidin, a freight forwarding agent. [20] I had carefully considered and evaluated their evidence in its entirety, together with the totality of the evidence adduced by the prosecution. I found their evidence was credible and cogent, and that they were witnesses of truth. I accepted the veracity and reliability of their evidence. I further found that the accused’s cross-examinations failed to cast any reasonable doubt on the credibility of their evidence. [21] Let us begin with the evidence of PW4. Sometime in October 2016, he was introduced to PW5 and met him at a restaurant in Johor Bahru. PW5 enquired from him on how to import an unauthorised frozen meat. PW4 replied that PW5 could communicate with the accused to bring the frozen meat through the PTP. After the meeting, PW4 contacted the accused and asked him to meet PW5. He also informed the accused of the meeting he had with PW5. According to PW4, he had known the accused since 2000 because the accused’s wife was a student of PW4’s elder sister. [22] The three of them later met at the same restaurant in Johor Bahru. As testified by PW4, both PW5 and the accused proceeded to discuss the process of bringing the unauthorised frozen meat to the country. [23] In the middle of November 2016, the accused contacted PW4, informing him that the price to release a container bringing the frozen meat was between RM 2,500.00 and RM 2,800.00. The day after, PW4 informed PW5 about the price that the accused had asked. About 2 weeks later, PW5 called PW4 and wanted to meet him at the parking place behind the Menara Jam, which was near the Dataran Bandaraya in Johor Bahru. [24] The two of them then met at night, which was about 11 pm. PW5 informed PW4 that his container, bringing the unauthorised frozen meat, had managed to pass through the PTP. In the meeting, PW4 received some money from PW5 with the instruction to give it to the accused. PW4 placed the money in the dashboard of his car. [25] The following day, PW4 called the accused and asked him to meet him at the Restoran Mak Teh in Johor Baru. The two of them met on the same day at about 2 pm at the restaurant. PW4 gave the money to the accused. When he gave the money, PW4 told the accused “projek ini sangat bahaya” and the accused replied “ tengok dulu”. [26] In the cross-examination of PW4, it was suggested to him that the accused never said that he would release the container for a payment between RM 2,500.00 and RM 2,800.00. PW4 disagreed with the suggestion. It was also put to PW4 that the accused never received any money from him. Again, PW4 did not agree with the suggestion. Further, he was steadfast in not agreeing with the rest of the suggestions put to exculpate the accused. [27] As I understood it, suggestions or challenges in cross-examination are not evidence. They only showed the stand taken by the accused or indicative of the case put forward. The accused would have to put in the challenges; otherwise the evidence adduced by the prosecution would be deemed admitted by him. However, they cannot be substituted for evidence if the suggestions are repudiated or disagreed with by a witness such as PW4 in the instant case: Emperor v. Karimuddi AIR 1932 Cal 373; Public

Prosecutor v. Dato’ Seri Anwar bin Ibrahim (No. 3) [1999] 2 MLJ The suggestions do not prove anything and will remain nothing unless agreed or admitted by a witness. Since PW4 disagreed with the suggestions, no reasonable doubt could simply be raised since the suggestions were not evidence. [28] Moving on to the testimony of PW5. I found that his evidence was consistent with what was adduced by PW4. Together with ZS Armin Sdn Bhd, he wanted to get involved in the business of importing frozen meat. The frozen meat was from an unrecognised abattoir and was not allowed to enter Malaysia. As a freight forwarding agent, PW5 wanted to do business. [29] PW5 was introduced by a friend to PW4. He later met PW4 and asked him how to bring in the unauthorised frozen meat. He was informed by PW5 that it could be done through the PTP, and PW5 had to deal with the accused. [30] Subsequently, PW5 met with the accused and PW4 at a restaurant in Johor Bahru. In the meeting, PW5 asked the accused about the process to bring in the unauthorised meat. The accused said that he could handle it, and the container bringing the frozen meat would be released. [31] In the middle of November 2016, PW4 told him that the cost to allow one container to pass through was between RM 2,500.00 and RM 2,800.00. PW4 further informed that the money must be given to him, and he himself will give the money to the accused. PW5 agreed with the amount and the arrangement made. [32] At the end of November 2016, PW5 imported the frozen meat using a container No. CRSU 6010321 for ZS Armin Sdn Bhd. He went to see the accused at the PTP’s MAQIS office to submit the necessary documents. The accused and his team did not inspect the container. PW5 then went to the Customs Department office at the PTP. He saw the accused come and talk with the Customs examiner who was inspecting the container. After the examination by the Customs officer, he got back his documents. At this time, he told the accused that he would give the money to PW4. The accused said Okay. His container was later released by the Customs Department. [33] The day after, PW5 sought to meet PW4. When they met, he told PW4 that his container with the frozen meat had been released. He then gave the money amounting to RM 2,500.00 to PW4 for the accused. [34] In the cross-examination of PW5, it was put to him that the accused did not know anything about the money that PW5 gave to PW4. He disagreed with the suggestion. He also disagreed that the accused never said okay when PW5 told him that the money would be given to him through PW4. And he disagreed that the accused had never received the money from PW4. [35] In the analysis of their evidence, I had considered and evaluated the evidence of PW4 and PW5 thoroughly. Further, I had the advantage of hearing and seeing them testify before me. I found that there was nothing to suggest they had any motive to falsely implicate or frame the accused. As a matter of fact, even the defence did not say so. In the instant case, PW4 was a MAQIS colleague of the accused. He had known him for some time. PW4 chose to help PW5 import the unauthorised frozen meat because he knew it could be done through the accused. His role was to introduce PW5 to the accused, and later, he decided to give the money from PW5 to him. That was all. Whereas, PW5 sought to find a way so that the imported frozen meat could enter the country. All he wanted was to successfully operate the business. For that purpose, he found the accused to do his bidding, and he willingly paid the money asked. [36] As alluded to, I found both PW4 and PW5 were credible witnesses. I accepted and believed the evidence adduced by them. Further, the accused failed to raise any reasonable doubt in their evidence through the cross-examination. I was guided by the often-quoted principle that a reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt unrelated to evidence: Public Prosecutor v. Saimin & Anor [1971] 1 LNS 115. [37] When dealing with the credibility of witnesses, the probabilities of the case are important to consider. In my view, it was inherently improbable that the two prosecution witnesses were lying to fix the accused. The facts and the circumstances of the case did not support such an assertion. It was unlikely that the witnesses would go to such an extent just to create a false narration against the accused. In Public Prosecutor v. Mohd Bandar Shah bin Nordin & Anor [2008] 4 MLJ 556, the Court of Appeal opined: If a witness’s evidence is improbable, this would be a good reason for rejecting his evidence or according it very little weight. By the same token, where the evidence of a witness accords with the probabilities of a case, it would be a serious misdirection on the part of the trial court to give it little or no weight on grounds of credibility. [Emphasis added] The Federal Court in Md Zainudin Raujan v. PP [2013] 4 CLJ 21 opined: It is trite that the inherent probability or improbability of a fact in issue must be the prime consideration in deciding whether a witness is credible or not. It is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which he accepted. [Emphasis added] [38] The evidence adduced by another witness, PW6, bolstered the narration against the accused. Zulkifli bin Abd Ghani (PW6) was the Operations Management Director for ZS Armin Sdn Bhd. The company was involved in the business of providing cattle and meat for Hari Raya Qurban and Pasar Tani. He confirmed that PW5 was involved with the company to import unauthorised frozen meat from overseas. According to him, PW5’s job was to ensure that after it reached the seaport, the container bringing the meat would be cleared to enter the country. PW5 told him that after it was released, PW5 would bribe the MAQIS officer. However, PW6 did not know who was involved, and PW5 did not tell him. [39] The cross-examination of PW6 further supported the evidence of PW4 and PW5 involving the accused that what they did was wrong and against the law. The notes of evidence read: S : Setuju dengan saya bahawa adalah dalam pengetahuan Encik Zulkifli bahawa Encik Zulkifli menyatakan daging yang akan diimport adalah daripada rumah sembelihan yang tidak dibenarkan untuk masuk Malaysia? J : Setuju. S : Setuju dengan saya bahawa perbuatan tersebut merupakan satu perbuatan yang menyalahi undang-undang? J : Setuju. S : Setuju dengan saya bahawa Encik Zulkifli masih lagi berhasrat untuk mengimport ataupun memasuk daging daripada luar negara walaupun ia menyalahi undang-undang? J : Ya, betul. [Emphasis added] [40] Thus, I was satisfied to find the prosecution had proved that the accused himself corruptly received a gratification of RM 2,500.00 for himself from PW5 through PW4. The money was certainly a form of gratification according to section 3 of the Act. As provided in the Act: “gratification” means –

money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, financial benefit, or any other similar advantage; ........................................ ........................................ ........................................ [Emphasis added] [41] Further, the gratification was corruptly received by the accused after the unauthorised frozen meat was released by him. It was corruptly received because the accused knew what he did was wrong, that it was moved by a guilty mind, and that it was prohibited by the law: Public Prosecutor v. Jamil bin Mahmood & Anor (supra) and PP v. Datuk Harun bin Haji Idris (supra).To conclude, I found that the prosecution managed to prove the first ingredient of the offence against the accused.

(ii) that the gratification was a reward for the accused to release the container No. CRSU6010321 containing frozen meat. [42] On this second ingredient, the accused did not dispute that the shipping container No. CRSU6010321 contained unauthorised frozen food from overseas. In my view, this was a crucial point that must be borne in mind. [43] The prosecution had adduced evidence of PW3, Mohammad Razli bin Abdul Razak. He was the Head of the Veterinary Inspection and Certification section of the Department of Veterinary Services. In his written statement (PSSP3), he said that:

Mana-mana pengimport yang ingin membawa masuk keratan daging ke dalam negara perlu membuat pendaftaran sebagai Pengimport dengan mengisi borang Permohonan Pendaftaran Sebagai Pengimport Produk Haiwan (JPPH-MOA-02) yang boleh dimuat turun dari laman JPV.

Pengimport Malaysia akan didaftarkan dengan JPV secara pentadbiran bagi tujuan daya jejak. Pengimport yang telah berdaftar boleh memohon permit import melalui sistem e-permit yang telah menyenaraikan negara, abatoir/loji pemprosesan, badan Islam, produk (contoh: daging) yang diluluskan untuk diimport.

Permit import diluluskan dan dikeluarkan oleh Jabatan Perkhidmatan Kuarantin dan Pemeriksaan Malaysia (MAQIS). [Emphasis added] [44] Through PW3, the prosecution adduced P4(1-5). The documents were titled Senarai Abatoir & Loji Pemprosesan Luar Negara Yang Dikhtiraf. In the documents, there was a list of 20 abattoirs and processing plants from Australia that were recognised by the Malaysian authorities. From that country, only the frozen meats from the abattoirs and processing plants on the list would be allowed to be brought into the country. [45] The documents, which were P5(1-19) were introduced by the prosecution. PW3 was shown P5(1), which was an invoice to ZS Armin Sdn Bhd dated 5.12.2016 from AG Pearl Sdn Bhd. In its description, a certain amount was asked to be paid for the services to clear container No. CRSU6010321. This was the container that PW5 managed to get through the inspection at the PTP. [46] P5(4) was also shown to PW3. The contents of the documents, amongst others, showed:

the importer was ZS Armin Sdn Bhd;

(ii) the exporter was Midfied Commodities Pty. Ltd;

(iii) the place of import was Tanjong Pelepas;

(iv) the description of goods was frozen bone in lamb carcase; and

the container No. CRSU6010321. [47] PW3 was further shown to P5(10). He further testified that: TPR : Mohon untuk rujuk pada muka surat 10. S : Untuk Midfield Commodities ini, apa nombor EST nya? J : Nombor EST adalah 180. S : Tuan rujuk pada bahagian mana? J : Ada di bahagian column ke -2 From EST No. 180. S : Jika dirujuk semula dengan Senarai Abatoir & loji Pemprosesan Luar Negara Yang Diikhtiraf adakah nombor EST ini termasuk dalam senarai yang diikhtiraf? J : Tidak, nombor EST 180 tidak ada di dalam Senarai Abatoir & Loji Pemprosesan Luar Negara Yang Diikhtiraf seperti yang ada di dalam senarai ID4(1-5). [Emphasis added] [48] Therefore, the evidence of PW3, supported by the said documents, proved that the frozen meat was imported through the container No. CRSU6010321 was not authorised to be imported to Malaysia. As alluded to, this evidence was not contested by the accused. [49] The accused decided not to ask anything in the cross-examination of PW3. And the law is settled that if you did not expressly challenge the evidence, then it was deemed admitted: Wong Swee Chin v. Public Prosecutor [1980] 1 LNS 138; Chua Beow Huat v. PP [1970] 2 MLJ 29. [50] Earlier on, I found the prosecution had proved the first ingredient of the offence that the accused, by himself, corruptly received RM2,500.00 for himself. Therefore, was the gratification a reward for the accused to release the unauthorised frozen meat from the container No. CRSU6010321? [51] A reward is something given to someone for a service rendered or an effort taken. It is usually given after the service or effort was successfully made. In the instant case, I had accepted and believed the evidence of PW5 that after the container was released by the authorities, he gave the money to PW4 for the accused. And I accepted and believed PW4’s testimony that he later gave the money to the accused. [52] Apart from the evidence of PW4 and PW5, what other evidence proved that the accused had released the unauthorised frozen meat? [53] The prosecution had also adduced evidence from PW8, Paimah binti Paidjo. She was a MAQIS officer based at the PTP where the accused was her supervisor. According to her, in order to release a shipping container from the port, it must be done through a computer system called Sistem Maklumat Kastam (SMK). This system could be used by MAQIS officers. [54] PW8 said that anyone who was on duty could release the shipping container. At the time the container was released, two other persons could have released it through the system apart from the accused. This was because her ID and password were written on a piece of paper, and it was placed on the designated desk for the SMK. Therefore, anybody could get into the system by using her ID and password. This was what she testified: S : Siapa dibenarkan membuat kelulusan di PTP MAQIS? J : Siapa-siapa yang bertugas pada masa itu. S : Puan boleh bagitahu siapa yang boleh approved pada ketika kejadian ini? S : Antaranya Encik Nor Azlan, Encik Ishak dan Encik Hafizan. S : Rujuk muka surat ke-6, Req. By (Name) barisan ke-2 itu nama siapa? J : Nama saya sendiri. S : Kenapa nama puan ada di sistem SMK ini? J : Kerana ID dan password saya telah dicatatkan di sekeping kertas kecil dan diletakkan di atas meja khas SMK dan sesiapa sahaja boleh masuk ke sistem SMK menggunakan ID saya. [Emphasis added] [55] P6(1-7) was a printout from the SMK. It contained 7 pages, and they were shown and referred to PW8. In the first page which was P6(1), it contained the particulars of:

Midfield Commodities Pty. Ltd as the exporter;

(ii) ZS Armin Sdn Bhd as the importer; and

(iii) the container No. CRSU6010321. [56] In P6(5), it showed that the cargo was approved by the Stesen Kuarantin on 29.11.2016. Whereas in P6(6), the name of PW8 was shown in it as she alluded that anyone could access the SMK using her ID and password. [57] Therefore, another piece of important evidence was adduced through PW8 that the accused could access the SMK. This supported the prosecution’s case that the accused had released the container containing unauthorised frozen meat. [58] In the cross-examination of PW8, she did not agree with the suggestion that the accused had his own ID to use the SMK. This was consistent with what she said earlier, that anyone could access the system since her ID and password were openly shown. [59] Having heard and evaluated the cross-examination of PW8, I found that the accused never challenged or suggested to her that he did not use the SMK to release the unauthorised frozen meat to PW5. Further, the accused never put in the challenge that other persons, including PW8, could have released it through the SMK. The law is clear that in an adversarial system, the accused must put his case to the prosecution’s witness during cross-examination if he disputes what was alleged against him. [60] The principles in the famous case of Browne v. Dunn [1893] 6 The Reports 67 are instructive and expressly describe the requirement of the law. The relevant passage was reproduced in the case of A.E.G Carapiet v. AY Derderian [1961] Cal 359 : Lord Chancellor Herschell, observed: Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact, by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Lord Halsbury, the other member of the House of Lords said: My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they were deposed to. Mukharji J., in this Indian case said: The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirely. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated. [Emphasis added] [61] In Timhar Mindani Ong & Anor v. PP [2010] 3 CLJ 938, the Court of Appeal said: It is trite that if the defence had any misgivings on the authenticity or suspicious nature of any narration of the evidence by the prosecution’s witness, then that witness should have been cross-examined on that disputed fact so that an explanation can be given to be properly assessed by the trial court. [62] Further, in PP v. AG Bahrun Mat Yassin [2012] 5 CLJ 337, Abdul Rahman Sebli J (as he then was) held in no uncertain terms that: [6] In our adversarial system of criminal justice it is imperative that if the testimony of a witness is not accepted his evidence must be challenged in cross-examination. It is wrong to let his evidence pass by without challenge and then, when the witness has gone home, to contend that his evidence is untrue. The purpose of challenging the witness’s testimony is to give him the opportunity to either confirm, deny or qualify the suggestions. It will also give the trial judge the opportunity to observe the witness’s demeanour when answering the questions. The way he responds to the questions can sometimes be useful in assessing his trustworthiness as a witness. [Emphasis added] [63] Thus, it is abundantly clear that the accused must challenge the evidence adduced by PW8. What was most telling and incriminating against him was that he could access the SMK to release the unauthorised frozen meat. The requirement to challenge really is a rule of essential justice in an adversarial system such as ours. By not challenging the testimony of PW8, the accused was taken to have accepted the version of the prosecution without any dispute. [64] Granted that no eye witness evidence was adduced that someone saw the accused release the unauthorised frozen meat via the SMK, this absence of direct evidence alone could not exonerate the accused. What was undisputed was that the accused could release the shipment. Together with the testimony of PW4 and PW5 that the accused had received the money for releasing the container, the prosecution had further proved that the accused could release the shipment through the SMK. In the premises, I accepted and believed the testimony of PW8. I found that she was a credible witness. In any event, the accused never alleged that she was lying or was trying to fix him with a false narrative. [65] The prosecution further called PW9, Nur Afifah bint Abdul Rahman. She was the MAQIS Director for Johor. In her written statement (PSSP9), she clarified the procedure concerning the importation of meat. In paragraph 10 of PSSP9, prior to the final release by the Customs Department, a MAQIS officer would have to release the meat through the SMK. Otherwise, the meat would be quarantined under the Malaysian Quarantine and Inspection Services Act 2011. [66] In addition, PW9 said that even without conducting a physical examination and only by inspecting the documents, a shipping container could be released through the SMK. Her evidence showed that the unauthorised frozen meat could be released through the SMK by any MAQIS officer having access to the system. This was what she said in her examination-in-chief: S : Dalam keadaan bagaimanakah kontena boleh terlepas daripada pemeriksaan? J : Pemeriksaan terbahagi kepada dua, pemeriksaan dokumen dan pemeriksaan fizikal. Kebiasaannya tanpa melakukan pemeriksaan fizikal dan hanya pemeriksaan dokumen dah approved dalam sistem untuk lepas. S : Tanpa membuat pemeriksaan fizikal boleh terlepas lah? J : Terlepas lah. S : Saya nak tanya puan berkenaan dengan Sistem Maklumat Kastam, SMK ini. Sekiranya kita tidak buat pemeriksaan fizikal, dalam sistem itu apa akan terjadi? J : Itu adalah sistem, jadi kalau kita click approved boleh lepas. [Emphasis added] [67] The accused did not challenge or dispute her testimony during the cross-examination. Therefore, the prosecution had proved that a shipping container could be released by a MAQIS officer without conducting a physical examination of the goods themselves. [68] In conclusion, I found that the prosecution had proved the second ingredient of the offence against the accused.

(iii) that the accused was an officer of a public body in which the public body was concerned. [69] On the third ingredient that the accused was an officer of a public body in which the public body was concerned, I found the evidence adduced supported the prosecution’s case. Section 3 of the Act reads: “public body” includes –

the Government of Malaysia; ........................................ ........................................

any department, service or undertaking of the Government of Malaysia, .... ........................................ ........................................ ........................................ [70] The same section 3 provides: “officer of a public body ”means any person who is a member, an officer, an employee or a servant of a public body, and includes a member of the administration, a member of Parliament, a member of a State Legislative Assembly, a judge of the High Court, Court of Appeal or Federal Court, and any person receiving any remuneration from public funds, and, where the public body is a corporation sole, includes the person who is incorporated as such; [71] The prosecution called PW1 to admit evidence pursuant to section 55 of the Act, which stipulates:

Certificate of position or office held

A certificate issued by a principal or an officer on behalf of his principal shall be admissible in evidence in any proceedings against any person for any offence under this Act as prima facie proof that the person named in such certificate –

held the position, office or capacity as specified in such certificate and for such period as so specified; and

received the emoluments as specified in such certificate.

A certificate issued under subsection (1) shall be prima facie proof that it was issued by the person purporting to issue it as principal or on behalf of the principal without proof of the authority of such person to issue it. [Emphasis added] [72] PW1 was the Director of the Management Services Department of MAQIS. Through him, P1(1-4) in 4 pages, which was purportedly a certificate under section 55, was admitted as evidence. The documents dated 12.5.2023 were prepared and signed by PW1. The content of P1(1-4) showed the accused held the office as a MAQIS officer at the time the offence was committed, and also the emoluments received by the accused. [73] The evidence that was adduced established that the accused held his office and received his emoluments working as a MAQIS officer. And he was an officer of a public body as stipulated in section 3 of the Act. As I had found, the accused, by himself, corruptly received RM2,500.00 for himself as a reward for releasing the container containing the unauthorised frozen meat. Therefore, the frozen meat was released by MAQIS into the country. [74] As such, there was no doubt in my mind that the accused was an officer of a public body in which the public body is concerned. Thus, I found the prosecution had proved the third and final ingredient of the offence. The presumption under section 50(1) of the Act [75] Section 50(1) of the Act reads: Where in any proceedings against any person for an offence under section 16, 17, 18, 20, 21, 22 or 23 it is proved that any gratification has been received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered, by or to the accused, the gratification shall be presumed to have been corruptly received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered as an inducement or a reward for or on account of the matters set out in the particulars of the offence, unless the contrary is proved. [Emphasis added] [76] As I had discussed and found earlier, the primary facts and ingredients required to apply the presumption were proved for the charge. In other words, the prosecution had proved the prerequisites or the condition precedents to apply section 50(1) of the Act. In the absence of those, the presumption should not be invoked. In Ng Kim Huat v. Public Prosecutor [1961] 1 LNS 73, Thomson CJ opined that: It is surely elementary to observe that while a statutory presumption when it arises may operate in place of evidence and so reverse the onus of proof on any point the bare potential existence of such a presumption cannot of itself dispense with proof of any fact the existence of which is a condition precedent of the presumption arising. To say otherwise would fly in the face of all the rules of logic. [Emphasis added] [77] As such, I was satisfied to apply the presumption that the accused had corruptly received by himself a gratification for himself as a reward for the matters set out in the particulars of the offence. The accused was called upon to rebut the presumption on the balance of probabilities: Public Prosecutor v. Yuvaraj [1969] 2 MLJ 89. Conclusion at the close of the prosecution’s case [78] I carefully scrutinised and evaluated the credibility of the witnesses together with the reliability of the evidence. This court found the prosecution had adduced credible evidence to prove all the ingredients of the offence against the accused. Credible evidence is evidence that has been filtered and has gone through the process of evaluation, and any evidence that is unsafe should be rejected: PP v. Ong Cheng Heong [1998] 4 CLJ 209. [79] Thus, a prima facie case had been made out against the accused on the offence charged and the accused must be called upon to enter on his defence: section 173(h)(i) of the Code. A prima facie case is where the prosecution had adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction: section 173(h)(iii) of the Code. This court also explained the three options for the accused to defend himself. [80] I had subjected the whole evidence to a maximum evaluation, which was clearly explained by the decision in PP v. Lee Hock Lai [2004] 1 CLJ 57: In my view, the ‘maximum evaluation’ refers to a proper and complete evaluation of all the evidence adduced to determine whether a prima facie case has or has not been made out. Thus, all the evidence adduced has to be scrutinised properly and this should not be just a perfunctory, cursory evaluation or an exercise of skimming over the surface of the evidence only. The prosecution must make out the ingredients of the charge with the evidence adduced. If the evaluation of the evidence results in doubts in the prosecution’s case at this stage of the proceedings itself then it cannot be said that a ‘prima facie’ has been made out. The defence ought not to be called merely to clear or clarify the doubts. The benefit of the doubt, if any, at the end of the prosecution’s case must go to the accused. [Emphasis added] [81] The totality of the evidence against the accused was sufficient for the defence to be called, and this court was prepared to convict the accused on the charge if he had elected to remain silent: Balachandran v. PP [2005] 1 CLJ 85; PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457. The defence’s case [82] The accused elected to give sworn evidence from the witness’s box. There was no other witness called. [83] I considered and tested the evidence by the accused against the ingredients of the offence that had been proved by the prosecution. There was no requirement to revisit the prosecution’s case on the findings. This was because I had made a maximum evaluation of the evidence and found the witnesses were credible and reliable. As such, it is wrong in law to revisit the findings. [84] The Federal Court in Duis Akim & Ors v. PP [2013] 9 CLJ 692 ruled that: [38] We note that when assessing the defence the learned trial judge surprisingly revisited his earlier findings upon which he called for the defence. Such approach is quite contrary to the principle of maximum evaluation of the evidence adduced at the close of the prosecution’s case. Indeed in his judgment the learned trial judge made it very clear that he had conducted a maximum evaluation of the evidence adduced by the prosecution before calling for the defence. [Emphasis added] [85] Therefore, it was my judgment that this court was only required to put to the test and compare the evidence by the accused at this stage with the evidence of the prima facie case that had been established by the prosecution. And to consider and decide whether the accused was able to raise any reasonable doubt on the prosecution’s case, and whether he was able to rebut the presumption under section 50(1) of the Act on the balance of probabilities. At the end of it, whether the prosecution would be able to prove its case beyond a reasonable doubt on the charge. Accused’s evidence (DW1) [86] The accused admitted that he worked with MAQIS at the entry point in PTP. He worked together with Nor Azlan bin Mat Suku, Ishak bin Mahani and PW8. He said he knew PW5 because he received documents concerning the importation of meat from PW5. The accused admitted that he was also responsible for approving the documents. About PW4, the accused knew him because they used to work together. [87] The accused denied that he received any corrupt money from PW4 and PW5. On the container No. CRSU6010321, the accused said the container was released after they conducted the inspection. Further, he did not find any document showing that the imported frozen meat was not authorised by the Veterinary Department. This was what he said in his examination-in-chief: PB: Saya nak merujuk kepada kontena nombor CRSU6010321 milik Syarikat ZS Armin Sdn Bhd yang berkaitan dengan kes hari ini. S : Kamu tahu tentang kontena ini? J : Saya tahu sebab dinyatakan berkenaan. S : Boleh beritahu mahkamah apa yang berlaku pada kontena ini? J : Kontena ini kami lepaskan setelah pemeriksaan dilakukan. S : Boleh beritahu mahkamah bagaimana pemeriksaan bagi kontena ini dijalankan? J : Pemeriksaan dalam kontena ini dijalankan berdasarkan dokumen yang telah diserahkan oleh pihak ejen dan juga dagangan di dalam kontena yang telah kami periksa. Further, S : Secara specifik soalannya semasa pemeriksaan pada kontena ini CRSU6010321 adakah kamu ada menemui dokumen ataupun pengesahan pemprosesan luar negara yang tidak diiktiraf oleh Jabatan Veterinar? J : Tidak. Later, S : Bagi kontena ini, siapa yang membuat kelulusan? J : Saya yang akan membuat kelulusan. Further on, S : Berkaitan dengan kes ini kamu dituduh melepaskan satu kontena yang dari abattoir dan loji pemprosesan luar negara yang tidak diiktirafkan oleh Jabatan Veterinar. Soalan saya, semasa pemeriksaan kontena adakah ia merujuk kepada apa-apa dokumen tidak sah? J : Tidak [Emphasis added] [88] From what had been elicited by his Counsel, the accused admitted that he knew about the container No. CRSU601032. He also admitted that he was the one who released and approved it on behalf of MAQIS. He further admitted that he inspected the documents concerned and that there was nothing that was not authorised or invalid. In other words, the documents were proper and in order. However, it must be pointed out that this claim that there was nothing untoward about the documents was never put to PW5 or any other prosecution’s witness when they testified before. Only after his defence was called did he claim what he did was not wrong. [89] In his cross-examination by the prosecution, he agreed that Midfield Commodities was not one of the abattoirs that were approved by the Veterinary Department. This was what he said: S : Saya katakan dan saya cadangkan kepada encik bahawa loji rumah penyembelihan Midfield Commodities ini tidak ada dalam senarai rumah sembelihan atau abattoir yang diluluskan oleh Jabatan Veterinar dan pihak JAKIM, setuju? J : Setuju. [90] Now, the question was why did the accused release the shipment, given that the frozen meat from Midfield Commodities was not authorised to be released? He admitted that he released the meat, and Midfield Commodities was clearly stated in P6(1-7) from the SMK. He had never disputed that the container No. CRSU601032 was bringing in unauthorised frozen meat. He did not challenge or dispute the documents when it was adduced by the prosecution. Why was that so? There was no explanation whatsoever by the accused throughout his testimony. Further, he never disputed and never challenged any of the prosecution’s witnesses when they testified concerning the documents of P5(1-19), the invoice, etc. When the officer from the Veterinary Department (PW3) testified, the accused did not dispute the evidence of P4(1-5) concerning the list of the authorised abattoirs and processing plants. He did not make any challenge that P4(1-5) was not applicable or was outdated concerning the charge against him. [91] In the upshot, I found that the testimony of the accused consisted of bare denial and unanswered questions. He denied that what he did was wrong. However, this assertion went against all the incriminating evidence that was adduced by the prosecution. A denial without any evidence to support was not sufficient to create reasonable doubt and to force out the prosecution’s case. Therefore, the term ‘bare denial’. And no weight could be given to bare denial against the evidence by the prosecution. A bare denial is no defence: Paramasivan & Ors. v. Public Prosecutor [1948] 1 LNS 90; PP v. Reza Mohd Shah Ahmad Shah [2002] 1 LNS 157; Losali v. PP [2012] 2 CLJ 178. [92] In his defence, the accused failed to answer and explain away all the evidence that had been proved against him. Nevertheless, the nature of an explanation is more important than any explanation. On this, I was guided by the decision of the Court of Appeal in Ong Hooi Beng & Ors v. PP [2015] 3 MLJ 812, where Abdul Rahman Sebli JCA (as he then was) held that: In our opinion whether or not a defence amounts to a mere denial is to be determined not by the fact it is coupled with an explanation but by the nature of the explanation. A denial may well be coupled with an explanation but if the explanation is merely to deflect the prosecution’s case evidence without answering the real questions in controversy to reasonably dislodge the prosecution evidence it remains a mere denial for what it is worth. [Emphasis added] [93] To conclude, I did not accept or believe the accused’s explanation, and it did not raise in my mind any reasonable doubt as to his guilt: Mat v. PP [1963] 1 LNS 82. The decision in Miller v. Minister of Pensions [1947] 2 All ER 347 further illustrated: That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice. [Emphasis added] Whether the accused managed to rebut the presumption of section 50(1) of the Act on the balance of probabilities. [94] Did the accused manage to rebut the presumption of section 50(1) of the Act on the balance of probabilities? It was well-settled that this legal burden was heavier than raising a reasonable doubt in the prosecution’s case for them to obtain an acquittal. It was for him to give an innocent explanation which the court considered more likely than not that it was true, i.e on the balance of probabilities, the test applied in civil proceedings: Thavanathan Balasubramaniam v. Public Prosecutor [1997] 3 CLJ 150 FC. Based on the analysis made earlier, I was constrained to find that the accused failed to rebut the presumption. [95] What, then, will constitute sufficient proof to rebut the presumption on the balance of probabilities? I think that the proof must relate to the probabilities of each particular case. Based on the evidence adduced, this court could not find that it was more probable than not that the accused managed to do so. It would be against all probabilities of the case to find that he managed to discharge the burden. Lord Denning in Miller v. Minister of Pensions (supra) said: If the evidence is such that the tribunal can say ‘We think it more probable than not’, the balance is discharged, but if the probabilities are equal, it is not. [96] Another point is this. If he failed to succeed in his defence on the lighter burden of raising a reasonable doubt, then I did not think that he could be found to have successfully rebutted the legal presumption on the heavier burden. This heavier burden could not be discharged merely by bare denials and conjectures. [97] Section 50(1) of the Act placed an onus on him to discharge his legal burden. A heavier burden was on the accused to rebut the statutory presumption on the balance of probabilities. The duty was on him to prove his defence that he did not commit the crime. I found that he failed to do so. In Mohd Khir Toyo v. PP (supra), the Federal Court observed: [105] A presumption stands “unless the contrary is proved”. “The words ‘unless the contrary is proved’ mean that the presumption raised … has to be rebutted by proof and not by mere explanation which may be merely plausible …” (State of Assam v. Krishna Rao (1973) 3 SCC 227 at 237; see also T Shankar Prasad v. State of AP at 766, SN Bose v. State of Bihar [1968] 3 SCR 563 at 571). [Emphasis added] [98] “Proved” is defined in section 3 of Act 56. A fact is said to be “proved’ when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. [99] Further, it must be distinguished between the duty to cast a reasonable doubt in the prosecution’s case and the duty to prove a defence on the balance of probabilities. The distinction between the two burdens was explained by the Court of Appeal in Abdul Aziz Miew Yiong v. PP [2014] 1 LNS 1875 where Abdul Rahman Sebli JCA (as he then was) opined: In law there is a distinction between the duty to merely cast a reasonable doubt in the prosecution case and the duty to prove a defence on the balance of probabilities. In the former case all that the accused needs to do to entitle him to an acquittal is to cast a reasonable doubt in the trial judge’s mind as to his guilt: Mat v. PP (supra). He has no duty to prove or disprove anything whereas in the latter case affirmative admissible evidence of the facts constituting the defence must be established, failing which he will be convicted of the offence charged. [Emphasis added] [100] Based on the reasons discussed earlier, I found that none of what the accused alleged in his defence and argued in the written submission could be accepted as proof of affirmative admissible evidence. The accused failed in his duty to rebut the presumption on the balance of probabilities under section 50(1) of the Act. Conclusion at the close of the defence’s case [101] At the conclusion of the trial, this court found that not only did the accused fail to raise any reasonable doubt in the case for the prosecution, but he also failed to rebut the legal presumption on the balance of probabilities. [102] Irrespective of whether a court is otherwise convinced in its own mind of the guilt or innocence of the accused, its decision must be based on the evidence adduced and nothing else: Sia Soon Suan v. Public Prosecutor [1966] 1 MLJ 116. Having considered all the evidence adduced, it was my firm finding that the prosecution had proved its case beyond reasonable doubt against the accused: see section 173(m)(i) of the Criminal Procedure Code. [103] Therefore, I found the accused guilty of the charge, for he was indicted. Accordingly, the accused was convicted of the charge. The sentence [104] Section 24(1) of the Act reads: Any person who commits an offence under sections 16, 17, 20, 21, 22 and 23 shall on conviction be liable to-

imprisonment for a term not exceeding twenty years; and

a fine of not less than five times the sum or value of the gratification which is the subject matter of the offence, where such gratification is capable of being valued or is of a pecuniary nature, or ten thousand ringgit, whichever is the higher. [105] The section provides that if found guilty, the accused must be sentenced to a mandatory term of imprisonment not exceeding twenty years. Further, a fine has to be imposed as well. The fine depends on whether the gratification is in the nature of a sum or a value, as long as the fine is not less than five times the sum or the value of the gratification, or ten thousand ringgit, whichever is the higher. [106] The provision provides a severe penalty for those who commit the offences under the Act. It reflected the intention of the Act to prevent and combat corruption in a special statute. It was also important that any sentence passed by the court must be in accordance with the law. A sentence, according to the law, must not only be within the ambit of the punishable section but must also be assessed and passed according to the established judicial principles: PP v. Jafa bin Daud [1981] 1 LNS 26 at page 2. [107] In the mitigation by his Counsel, it was submitted that this was the accused’s first conviction and he had cooperated by attending the trial. He and his wife were officers with MAQIS, and together they had 5 children. Further, the accused had to go for dialysis three times a week and asked that it be considered by this court. In addition, he had high blood pressure and high cholesterol. He pleaded for a lenient sentence. [108] The prosecution submitted that this was a serious offence and the public interest must override the interest of the accused. The sentence should serve as a deterrent for a corruption offence. Further, the accused had breached the trust given to him by releasing the unauthorised frozen meat. What he did was not something trivial because it affected the confidence of the public concerning the meat imported into the country. [109] The accused’s plea in mitigation must not be lightly disregarded despite being found guilty after a full trial. It must be equally considered with the public interest as represented by the prosecution. In my view, this was the proper way to strike a balance to decide on the sentence. Having said that, no sentence could be assessed by a simple mathematical formula because many factors had to be taken into consideration based on the facts and circumstances in each case: Mohamed Jusoh bin Abdullah and Another v. Public Prosecutor [1947] 1 LNS 73. [110] I considered that the accused was found guilty after a full trial had taken place. Many witnesses had come to testify, and a lot more time was needed for the trial to end. If the accused had pleaded guilty, it would have saved a lot of time for everybody. Further, if he had done so and said he was remorseful, then it would have been more convincing than after a full trial if he said he had repented. And he would have deserved a lesser sentence than what he was sentenced to in the instant case. However, the accused chose to claim trial as was his right. Be that as it may, I had also factored in the fact that this was his first criminal conviction. [111] The accused was found guilty of corruptly receiving gratification as a reward for releasing unauthorised frozen meat. A lot has been said about the damaging impacts of corruption, especially if it involves enforcement agencies and public bodies. The impacts go beyond the accused to the erosion of trust by the public. What he did was a crime impacting society and the nation. As such, in my view, the public interest must override the interest of the accused, and a deterrent sentence must be imposed. [112] Thus, it was my considered opinion that the sentence against the accused was just and appropriate. The sentence was not manifestly excessive on the facts and the circumstances of the case. Dated on this day, 15th August 2025 -sgd- (DATUK AHMAD KAMAL ARIFIN BIN ISMAIL) Judge Sessions Court Johor Bahru For the prosecution : Alice Voon Mei Lin Malaysian Anti-Corruption Commission. For the accused : Mohd Razak bin Sharif Mohd Radzi bin Yadiman M.R. Sharif & Co.