Sanjeet Kaur Deo A/P Karpal Singh v Ketua Hakim Negara Mahkamah Persekutuan Malaysia (WA-24NCVC-97-01/2019)

That parts of the Affidavit affirmed by Hamid Sultan bin Abu Backer on 14.2.2019 (“Hamid‟s Affidavit), filed in these proceedings and marked in Appendix A be expunged from the records of this Honourable Court;

(ii) That the costs of this application be borne and paid by Hamid Sultan bin Abu Backer (NRIC: 550828-71-5003), the deponent of Hamid‟s Affidavit; and

(iii) Such other reliefs as this Honourable Court deems fit and proper. 3 Brief Facts of the Case [2] The salient background facts can succinctly be summarised as follows:-

The late Mr Karpal Singh was charged with an offence under the Sedition Act, 1948. At the High Court, at the end of the defence case, he was convicted and sentenced to a fine of RM 4000, in default, four months imprisonment;

He then filed an appeal to the Court of Appeal against the conviction and sentence vide Appeal no.W-05-78-03/2014 and W-05(S)-66-03/2014 which were heard together. The Court of Appeal presided by Dato Mohtaruddin Baki JCA, Dato Tengku Maimun JCA and Dato Kamardin Hashim JCA delivered a majority decision on 3rd August 2016, wherein Dato Mohtaruddin Baki JCA and Dato Kamardin Hashim JCA affirmed the conviction by the High Court, while Dato Tengku 4 Maimun JCA dissented (hereinafter referred to as „the Karpal Singh sedition appeal‟).

On 22nd August 2018 the Applicant read an article published by an online media portal, Free Malaysia Today of the same day entitled „Senior Judge interfered in Karpal’s sedition appeal, says lawyer’, regarding a statement made by a member of the Malaysian Bar, Encik Hanif Khathri bin Abdullah which, inter alia, stated „….a lawyer today claimed that the outcome of the late Karpal Singh‟s sedition appeal two years ago was altered due to judicial interference by a senior judge. Mohamed Haniff Khathri Abdullah said he was recently informed of the matter where the judge reportedly meddled in the majority decision to allow Karpal‟s appeal and acquit him of the charge. The appeal court (sic) was asked to reverse the ruling, the lawyer who usually appeared for Tun Mahathir Mohammad in civil cases said in a Facebook Post.‟ 5

The Applicant lodged a police report the following day, asking for an investigation to be commenced in relation to the entire contents of the said Free Malaysia Today publication. The applicant explained that she was of the view that the public statement made by Encik Haniff Khathri and published in the said „Free Malaysia Today publication, in relation to judicial interference within the Malaysian judiciary and also questioned the validity of the Karpal Singh Sedition Appeal decision which warranted urgent investigations;

Soon after lodging the said police report, the applicant provided the police with a statement as requested by the police;

About one week prior to the said Free Malaysia Today publication, on 16th August, 2018, Justice Datuk Dr. Haji Hamid Sultan bin Abu Backer, a sitting judge of Court of Appeal, delivered a speech at the International Malaysia Law Conference in which he publicly declared that he was severely reprimanded by a top judge for deciding in favour of one Indira 6 Ghandi in the case of Indira Ghandi a/p Mutho v Pengarah Jabatan Agama Islam Perak & 5 Others on 30/12/2015.

(g)

The applicant then wrote to the then Honourable Chief Justice, Tan Sri Datuk Seri Panglima Richard Malanjum, through her solicitors, requesting inter alia, a status update on the investigations. She also thereafter provided a statement to the Honourable Chief Justice in relation to the allegation of judicial interference in the Karpal Singh Sedition Appeal.

On 2nd September 2018,the Minister in the Prime Minister‟s Department Datuk Liew Vui Keong was reported by the Sun Daily in an article entitled „Judicial meddling: Further action only after internal investigation completed‟ to have said, amongst others, as follows; „Further action on allegations of judicial interference in two high profile cases under the previous government administration will only be taken once the internal investigation by the Honourable Chief Justice‟s office is completed.‟ 8

In an official press release from the Office of the Honourable Chief Justice, Federal Court of Malaysia, Istana Kehakiman, Putrajaya dated 26th November, 2018, entitled „Allegations of Judicial Interference by a top judge in Indira Ghandi and Karpal Singh Cases‟, the Chief Justice stated, amongst others, as follows:; „4. Further, a police report had been made by a member of the Bar that there was also judicial interference by a top judge in the appeal case of Karpal Singh. As the allegation concerned a judge who has since retired, the Malaysian Judiciary similarly cannot carry out an investigation under the Judges Ethics Committee Act 2010 and Judged Code of Ethics 2009 into the alleged misconduct of the retired judge.

However, in view of the serious allegation made, the Malaysian Judiciary conducted an internal investigation, which has since been suspended due to police investigation in the case and the appeal to the Federal 9 Court is still pending. This is to ensure that there is no prejudice caused to the on going police investigations as well as the pending appeal to the Federal Court.‟

To the best knowledge of the Applicant, there was no further action taken by the Chief Justice in relation to the allegation of judicial interference in the Karpal Singh Sedition Appeal and /or the public declaration of judicial interference made by Justice Datuk Dr. Haji Hamid Sultan bin Abu Backer;

On 29th March 2019, the Federal Court allowed Karpal Singh‟s appeal against the decision of the Court of Appeal and reversed the conviction, acquitted and discharged the late Mr. Karpal Singh. The grounds for the Respondent’s application [3] Enclosure 12 filed by the Respondent on 11.4.2019, seeks to expunge certain paragraphs in Hamid‟s Affidavit as marked in 10 Appendix A of the Notice of Application on the grounds that these paragraphs, contain averments that are:

not within Hamid‟s personal knowledge and therefore hearsay;

(ii) scandalous; and

(iii) irrelevant to the Applicant‟s application (as contained in the Originating Summons filed on 14.1.2019 @ Enclosure 1). [4] In support of Enclosure 12, the Respondent relies on:

the provisions of Order 41 rule 5(1) of the Rules of Court 2012 (“ROC”)

(ii) the provisions of Order 41 rule 6 of the ROC;

(iii) the following authorities: a. Kassim bin Sulong v Guthrie Estates Holdings Ltd &Ors [1993] 3 MLJ 303; 11 b. Oh Kuang Liang v Associated Wood Ind Sdn Bhd [1995] 4 MLJ 390; c. NV Sumatra Tobacco Trading Co v PT Sampaoerna JL SdnBhd [1997] 3 CLJ 946; d. Cahaya Ideal (M) SdnBhd v Orang-Orang yang mengenali diri sebagai „Ponga‟ &Ors [1999] 3CLJ 257; and e. Kantan Jaya Marine Sevices (Pg) Sdn Bhd v RHB Bank Bhd [2001] 2 CLJ 738. [5] In her submission, the Applicant seeks to preserve paragraphs 3-5, 7, 9, 20-22, 28, 41, 42, 50, 51, 91 to 94, 97, 103, 104 and 152, whilst the Respondent urged this Court to accordingly expunge the remaining paragraphs that the Respondent takes issue with namely paragraphs 8, 10 to 19, 23 to 27, 29 to 40, 43 to 49, 52 to 90, 95, 96, 98 to 102, and 105 to 151. 12 [6] With reference to the rest of the averments which the Respondent seeks to expunge but is resist by the Applicant, the Respondent‟s submission can be summarized as follows:

paragraph 5 – this averment is unsupported by any proof that the Applicant requested Hamid to give an affidavit that exposes constitutional crime and judicial misconduct by top judges as well as other judges who are aware and have directly participated in judicial crime in breach of their Constitutional Oath.

(ii) paragraph 7(a) – Hamid‟s averment that „basically it was confession relating to guilt” is not a statement of fact.

(iii) paragraph 7(b) – Hamid‟s failure to identify the senior judge renders this paragraph scandalous and hearsay.

(iv) paragraph 9 – the Respondent does not take issue with this averment.

paragraph 20 – the entirety of Hamid‟s CV is irrelevant for this Honourable Court to determine the issue raised in the Applicant‟s application. 13

(vi) paragraph 21 – this averment is irrelevant because the Applicant has no interest in the Indira Gandhi‟s case.

(vii) paragraph 22 – Hamid‟s failure to identify the judge renders this paragraph scandalous and hearsay.

(viii) paragraph 28 – Hamid‟s averments are irrelevant for this Honourable Court to determine the issue raised in the Applicant‟s application.

(ix) paragraph 41 – Hamid‟s views are not statements of fact.

paragraph 42 – Hamid‟s failure to identify the judge renders this paragraph scandalous and hearsay.

(xi) paragraph 50 – Hamid‟s failure to identify the judge renders this paragraph scandalous and hearsay.

(xii) paragraph 51 - Hamid‟s failure to identify the judge renders this paragraph scandalous and hearsay.

(xiii) paragraph 91 – Hamid‟s failure to identify ARLC renders this paragraph scandalous and hearsay.

(xiv) paragraph 92 - Hamid‟s failure to identify ARLC renders this paragraph scandalous and hearsay. 14

(xv) paragraph 93 - Hamid‟s failure to identify the judge renders this paragraph scandalous and hearsay.

(xvi) paragraph 94 - Hamid‟s failure to identify ARLC renders this paragraph scandalous and hearsay.

(xvii) paragraph 97 - Hamid‟s averment is irrelevant for this Honourable Court to determine the issue raised in the Applicant‟s application.

(xviii) paragraph 103 – this averment is irrelevant because the Applicant has no interest in the Indira Gandhi‟s case.

(xix) paragraph 104 – Hamid‟s failure to identify the judges renders this paragraph scandalous and hearsay.

(xx) paragraph 152 – Hamid‟s averments are irrelevant for this Honourable Court to determine the issue raised in the Applicant‟s application. [7] Most importantly, the Respondent contended that as the Applicant had on 11.7.2019 informed this Court that she is withdrawing Enc. 1. Consequently, the Applicant should have no further interest in 15 Hamid‟s Affidavit. Notwithstanding, the Applicant still insists that the offending paragraphs remain in support of Enc.1 that she intends to withdraw. Applicant’s Submission In Opposing Enclosure 12 [8] The Applicant opposes Enc. 12 for the following reasons:

paragraphs 3-5, 7, 9, 20-22, 28, 41, 42, 50, 51, 91 to 94, 97, 103, 104 and 152 are relevant and not hearsay;

(ii) the main application of the Applicant hinges on two cases of public allegations of judicial interference within the judiciary in the following cases: a. the Karpal Singh sedition case; b. the Indira Ghandi case, all averments in the Hamid Affidavit relating to these 2 cases are directly relevant; 16

(iv) While the said affidavit may reveal a scandal, it does not make the affidavit scandalous, until and unless the averments are found to be untrue (see Dato Aw Kow v Haw Par Bros (Pte) Ltd & Anor [1972] 2 MLJ 225). This can be ascertained by cross examining the deponent of which the Respondent had chosen not to do so;

Even if the affidavit is scandalous, it is still admissible if relevant (see Nalakaruppan Solaimalai v Ketua Pengarah Penjara

(vi) The Respondent has failed to spell out the paragraphs that are said to be scandalous as to until to date the contents of the Hamid Affidavit have not been found to be untrue;

(vii) Whilst the other paragraphs of the Hamid Affidavit may not be directly relevant to the declarations sought, they do relate to the larger problem of judicial interference within the Malaysian 17 Judiciary and cannot be summarily dismissed, unless and until a further inquiry is conducted and warrants such a dismissal.

(viii) Whilst Applicant has admittedly made an application to withdraw the OS, the Respondent had offered no reasons as to why he cannot allow the affidavit to remain on record. To suggest that the Applicant ought to have no further interest in retaining parts of the Hamid Affidavit is without basis.

(ix) In the event this Court finds the Hamid Affidavit scandalous, it would mean that the deponent was untruthful in making serious allegations against the judiciary, former and sitting judges, thereby making his averments degrading indecent and offensive. This is a serious and damaging finding which arguably amounts to a breach of Rule 6(1) of the Judge‟s Code of Ethics 2009 (“JCOE”).

As only the Chief Justice of the Federal Court can refer a Court of Appeal judge to the Judge‟s Ethics Committee for an enquiry 18 (see Section 9 read together with Section 13 of the JCOE), Enc. 12 therefore seeks to circumvent the JCOE; and

(xi) Since the deponent is not a party to the proceedings herein, he is entitled to the right to be heard, which is guaranteed in the JCOE (see Majlis Peguam Malaysia & Ors v Raja Segaran a/l Krishnan [2005] 1 MLJ 15). Legal Principles Governing the Content of An Affidavit [9] For ease of convenience, the relevant provisions of the Evidence Act 1950 as referred to by both parties in their submissions which will also be referred to in the course of this judgment is re-produced below:

Order 41 rule 5(1) of the Rules of Court 2012 (“ROC”) states as follows: “.. an affidavit may contain only such facts as the deponent is able of his own knowledge to prove”. 19

(ii) Order 41 rule 6 of the ROC states: “The Court may order to be struck out any affidavit any matter which is scandalous, irrelevant or otherwise oppressive.” [10] As a general rule, a deponent to an affidavit need not state the source of information of belief. This however, only applies to interlocutory proceedings. In a proceeding where the parties are seeking final relief (such as the OS in the present case), a deponent to an affidavit must state only such facts which the deponent is able to prove based on his own knowledge. Failure to state the source of such information or belief, when the deponent avers that he was “advised and verily belief” will render the averment into the category of hearsay evidence (see Chan Kwai Chun v Lembaga Kelayakan [2002] 5 MLJ 273 and Kassim bin Sulong(supra)). Such is the case here, where the Deponent‟s failure to state his source of belief and/or information with reference to the matters averred in his affidavit is particularly damming especially in light of the fact that the deponent was not part of the Court of Appeal corum 20 which heard and deliberated on the late MR. Karpal Singh‟s sedition case. [11] In dealing with the provisions of Order 41 rule 6 of the ROC, based on the way the provision is drafted with the use of comas after each of the acts prescribed therein i.e. “scandalous, irrelevant or otherwise oppressive”, this Court takes the view that it is an uncontroverted legislative intent for the said acts to be construed disjunctively instead of the conjunctive approach (see Thornton‟s on Drafting). What this means is that, an affidavit can be struck out on the ground that it is scandalous on its own, or irrelevant on its own or oppressive on its own or a combination of any of the three acts (emphasis is mine)... Definition of “scandalous” [12] In Boey Oi Leng v Trans Resources Corporation Sdn Bhd (supra), the word „scandalous” was taken to mean wholly 21 unnecessary and irrelevant, and not just unpleasant allegations: “In determining whether an averment is scandalous, the sole question is whether the matter alleged to be scandalous would be admissible in evidence to show the truth of any allegation in the pleading which is material with reference to the relief prayed (emphasis mine). If a matter is scandalous but yet relevant to the relief prayed, it may not be struck off. [13] In Kantan Jaya Marine Services (Pg) Sdn Bhd v RHB Bank Bhd [2001] 2 CLJ 738, Low Hop Bing J (as he then was) held as follows: “For purposes of establishing the ambit of the word „scandalous‟ under O.41 r.6, the meaning of the word „scandalous‟ used in O.18 r.19 (1)(b) would apply. It is taken as wholly unnecessary and irrelevant and not just unpleasant allegations…” 22 (see also Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 1 MLJ 285). Definition of “irrelevant” [14] It construing what is meant by “irrelevant”, it would suffice to state that an averment is irrelevant if it does not relate to the fact in issue of the case at hand or does not have any bearing to the relief prayed for by parties to the proceedings. In this regard, it is my view that the facts involving the Indira Gandhi case which has been averred at length in the Hamid Affidavit, has no nexus to the case of the late Mr. Karpal Singh‟s sedition case nor the reliefs prayed for by the Applicant, making the averments irrelevant. Court’s Analysis [15] Firstly, I wish to address the following submission of the Applicant i.e. that “since they are intending to withdraw the OS against the 23 Respondent, it is not necessary for this Court to deal with Enclosure 12”. [16] At first glance, the above submission is indeed practical and would not only saves precious judicial time but also expenses of all parties. As appealing as it sounds and as practical as it can be, this Court takes the view that it cannot take a short cut approach in dealing with the Respondent‟s application. This court could and would not abandon its duty when tasked with it. It is tantamount to a dereliction of a sacred duty entrusted to the judge and the court by the constitution. Consequently, having reviewed the law on the issues of scandalous and irrelevant affidavits and the submission by the Respondent, this Court has a duty to deliberate and decide on the issues raised to ensure that provisions of the law both procedural and substantive are complied with. To dismiss Enc.12, without deciding on its merits purely on the ground that it will be a waste of time as the OS itself will be withdrawn, should not be the order the day. 24 To my mind, the practice of filling scandalous, irrelevant affidavits should be discouraged if not prohibited. Conversely, as the Applicant is seeking to withdraw the OS, the expunging of the specific parts of the affidavits as sought by the Respondent will not affect the Applicant‟s interest at all. [17] Next, I propose to deal with the Applicant‟s submission on the repercussions of a finding by this Court in the event the Hamid Affidavit is scandalous. For purposes of clarity, the Applicant‟s submission on this point is re-produced below in verbatim: “… in the event this Court finds the Hamid Affidavit scandalous, “it would mean that the deponent was untruthful in making serious allegations against the judiciary, and former sitting judges, thereby exposing the deponent making his averments degrading indecent and offensive”. This is a serious and damaging finding which arguably amounts to a breach of Rule 6(1) of the Judge‟s Code of Ethics 2009 (“JCOE”).” 25 [18] At this juncture, this Court‟s duty is purely to consider whether the content of the Affidavit conforms with the provisions of Order 41 rule 5(1) and Order 41 rule 6 of the ROC as to whether the contents of the affidavit is hearsay, scandalous and/or irrelevant in relation to the suit brought forward by the Applicant against the Respondent. In doing so, I take the view that there is no necessity for this Court to ascertain whether the averments stated in the affidavit are the truth or otherwise. A finding that the averments are scandalous will only relate to the issue of relevancy. If it is irrelevant, the averment in the particular paragraph will be expunged (see Boey Oi Leng v Trans Resources Corporation Sdn Bhd [2002] 1 CLJ 405 at pg 107). I also take the view that this suit is not the correct forum to discuss any of the allegations against the judiciary, and former and sitting judges as opined by the Court of Appeal in the case of Majlis Peguam Malaysia & Ors v Raja Segaran a/l Krishnan [2005] 1 MLJ 15. As it is, the facts of this case indicate that there is an ongoing police investigation on this matter and also announcement by the government that a Royal Commission of Inquiry will be set up to look into the same. In this regard, the fear that a finding that the Hamid Affidavit is scandalous would mean that the contents of the affidavit is untruthful is 26 unwarranted and without merits. These allegations are best dealt with through police investigations which have been announced by the Respondent. [19] Having been tasked to determine whether the contents of the Hamid Affidavit are hearsay, scandalous and/or irrelevant (in accordance with the legal principles stated at paragraphs 9 to 13 above), I chose to review the paragraphs which the Applicant contend may not be directly relevant to the declarationssought, but relate to the larger problem of judicial interference within the Malaysian Judiciary first. This relates to paragraphs 8, 10 to 19, 23 to 27, 29 to 40, 43 to 49, 52 to 90, 95, 96, 98 to 102, and 105 to 151. Upon scrutinizing the contents of the aforesaid paragraphs, it is my considered view that the contents of these paragraphs fall under the category of hearsay, scandalous and / or irrelevant. [20] The second part of my review relates to the paragraphs which the Applicant seeks to preserve namely, paragraphs 5, 7, 8, 10 to 20, 23 to 40, 42 to 49, 52 to 68, 74 to 76, 80 to 102 and 108-151. Reading the contents in light of the facts of the present suit which relates to 27 the interference in the late Mr. Karpal Singh‟s appeal at the Court of Appeal stage, I am of the considered view that they contain matters that are hearsay, scandalous and irrelevant. Note: The Hamid Affidavit is set out in Annexure A of this judgment, whilst Annexure B is a summary of my specific findings on each of the paragraphs which the Applicant is seeking to preserve. [21] In the above premise, the Respondent‟s application to expunge the averments set out in Annexure A of the Notice of Application dated 7.3.2019 is allowed accordingly. No order as to cost. Dated 22nd October 2019, ……………………..…………. (MOHD FIRUZ BIN JAFFRIL) JUDGE HIGH COURT OF MALAYA AT KUALA LUMPUR 28 Solicitors for the Plaintiff : Ms.Sangeet Kaur Deo, Ms.Tan Chee Kian & Ms.Rayveni Asogan, Messrs. Karpal Singh & Co, No.67, Jalan Pudu Lama, 50200 Kuala Lumpur. Tel No : 03-20703839 Solicitors for the Defendants : Pn.Narkunavathy Peguam Kanan Persekutuan, Jabatan Peguam Negara, No.45, Persiaran Perdana, Presint 4, 62100 Putrajaya. (No.Ruj: PN/WKL/HQ/11/07/2019)