Schedule
Schedule 1 in order to induce the said voter to vote for BN, either expressly or by indication. Ustaz from Kampung Pantos came to house of Batin Norman to help distribute RM50.00 to each voter RM25,000.00 was distributed by respective Batin to the voters Paragraph 19 All the above payments done by the Respondent or by Wan Rosdy with the 13 Respondent‟s knowledge or consent. Money was given to induce the voters to vote the Respondent and to refrain them from voting the Petitioner [22] With regards to the burden and standard of proof in an election petition, the onus is on the Petitioner to prove beyond reasonable doubt the allegations that he had raised in his EP. The Federal Court in Audrey Karen Barry v. Datuk Dr. Yee Moh Chai [2010] 3 CLJ 660 has held as follows: “Burden And Standard Of Proof [24] Moving to the next pertinent issue canvassed before us that is the question of the burden and standard of proof required in a case of this nature. It is settled law that it is for the appellant/petitioner to establish a prima facie case before the respondent is required to answer. This is clearly expressed in the judgment of Raja Azlan Shah J (as His Highness then was) in the case of Ali Amberan v. Tunku Abdullah [1969] 1 LNS 6 said as follows: Now an allegation of corrupt practice is of a quasi-criminal nature in as much as a finding of corrupt practice entails penal consequences. The onus is on the petitioner to prove it beyond reasonable doubt by evidence which is clear and unambiguous.” (emphasis added) 14 [23] Bearing in mind the above principle, I will now analyse the evidence to ascertain if the evidences support each allegation of corrupt practice in the EP. (a) Paragraph 12.1 of the EP [24] In paragraph 12.1 of the EP, the Petitioner alleged that Respondent and Dato‟ Wan Rosdy met the Batins including Batin Bah Harun bin Lingwar and Batin Salleh A/K Kecut from Pos Betau at the UMNO office in Koyan on 28.04.2018 and the said Batins received RM 1, 000.00 from the Respondent. [25] However, the Petitioner did not offer any evidence on this allegations, as he did not call the said Batins, that is, Batin Bah Harun bin Lingwar and Batin Salleh A/K Kecut from Pos Betau to support this allegation. (b) Paragraph 12.1 of the EP [26] In paragraph 12.1 of the EP, the Petitioner alleged that the Respondent and Dato‟ Wan Rosdy have met with the Batins when they arrived at Sekolah SK Sinderut in a helicopter at about 2.00 pm on 30.4.2018 and had stated to the effect that “...Batins must remember who were the leaders...they must therefore vote for BN”. 15 It was also alleged that the Respondent had given a sum of money of RM 200.00 to each Batin present as money for “cigarettes”. [27] The Petitioner‟s evidence on this is from the sworn evidence of PW3, Norman a/l Kong, who is a registered voter from Pos Sinderut. PW3 gave evidence that on 30.4.2018, both Dato Wan Rosdy and the Respondent came to „padang sekolah Pos Sinderut.‟. In Q26 of his Witness Statement (WSPW3), he gave the following evidence: “…. Selepas itu, calon Barisan Nasional cakap bahawa beliau nak bagi duit rokok RM200 kepada setiap batin. Saya ada melihat dengan mata sendiri yang beliau bagi duit itu kepada semua batin yang hadir.” [28] However, under cross examination, PW3 evidence reads as follows: “NORMAN: Lepas itu dia kata saya mahu bagi duit rokok. Siapa kata saya mahu bagi duit rokok? Itu Dato‟ Wan Rosdy. Dato‟ Wan Rosdy. Lepas itu? Lepas itu dia bagilah. Dia kata, kalua saya bagi, awak terus balik. Ini duit rokok awak. … Yang hulur itu Dato’ Wan Rosdy tapi yang bagi itu ke kawan Dato Wan itu kawan. … 16 ….jadi Batin setuju dengan saya pada 30 April, Dato’ Sivaraj lansung tidak bagi duit dari tangan dia kepada Batin Norman? Memang dia tidak bagi tapi dia punya kawan … mereka bersama-sama” [29] From the evidence, there is a contradiction as to whether the money was given by the Respondent or by Dato‟ Wan Rosdy. However, having considered the act of bribery in section 10(a) of Act 5, I am of the considered opinion that the substance of this provision is the act of giving the money to a voter, which is essentially the act that amounts to bribery. This interpretation is in line with what Justice Skinner said in Kho Whai Phiaw v. Chong Chieng Jen [2008] 1 LNS 5: “But in requiring proof beyond reasonable doubt, I remind myself of what was stated in S. Harcharn Singh v. S. Sajjan Singh & Ors [1985] AOR 236 that : - „While insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extent as to make it well-nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act maintaining purity of the electoral process.” (emphasis added) 17 [30] On the facts before me, I find that even though there is a contradiction in the evidence of PW4 himself, whether it was the Respondent or Dato‟ Wan Rosdy who actually gave the money, there is actually no dispute that a sum of RM200.00 was given, in the presence of the Respondent. In the Witness Statement of the Respondent, it was a general denial, but in Q/A 5, the Respondent had admitted that he was campaigning together with Dato‟ Wan Rosdy during the Election. [31] In fact, the evidence of the Respondent‟s witness, has confirmed that the sum of RM200.00 was given to the Batins. RW3‟s evidence is as follows: “MHH: Yang merupakan warga kampung yang kuat sokong BN dan rapat dengan Dato‟ Wan Rosdy. „Berapa ramai yang hadir?‟ Ini yang Norman cakap tau. Norman pun cakap, Jali pun jawab, „Hanya Batin Kampung Tual tak datang, lain semua hadir‟. Selepas itu, ini Norman bagitahu, Norman A/L Kong, bagitahu calon Barisan Nasional cakap bahawa beliau nak bagi duit rokok RM200 kepada setiap Batin. Norman bagitahu, „Saya ada lihat dengan mata saya sendiri yang Dato‟ Wan Rosdy bagi wang kepada semua Batin yang hadir‟. Boleh En Jali terangkan, apa yang berlaku dalam bilik IT, kalau ada? JALI Ok. Saya masa itu, saya ada. ….. MHH Lagi apa lagi berlaku? 18 JALI Lepas itu, Dato‟…Dato’ Wan bagi duit RM200 kepada tok-tok Batin semua. (pg 691-692)” [32] Therefore, I find that the Petitioner has proven the fact that the sum of RM200.00 was given to the Batins, in the presence of the Respondent on 30.4.2018. (c) Paragraph 14.1 of the EP [33] In paragraph 14.1 of the EP, the Petitioner had alleged that on 6.5.2018 at Pos Lenjang, the Respondent and Dato‟ Wan Rosdy (each) gave to the Batins sum of money amounting in total to approximately RM 25, 000.00 to be distributed to all voters in their respective villages. It is also alleged that each Batin received RM 200.00 where the money was handed by a person by the name of Achong Luji, a BN campaigner, in the presence of the Respondent and Dato‟ Wan Rosdy. [34] PW9 is a batin from Kampung Rakoh and is a registered voter from Pos Lenjang. PW9 gave evidence that both Dato‟ Wan Rosdy and the Respondent came to Pos Lenjang on 6.5.2018 using a helicopter. In Q/25 and 26, PW9 gave the following evidence: “25. S: Apa lagi mereka buat? Lepas itu, mereka ajak semua batin yang menerima elaun batin untuk masuk dalam satu bilik. Selepas kami masuk bilik itu, Dato 19 Rosdy cakap bahawa beliau rasa nak bagi duit, nak kira satu persatu beliau rasa memang beliau tak mampu. Beliau dan Dato Sivaraj Cuma boleh beri RM25,000.00. Beliau suruh batin agihkan kepada pengundi. Selepas itu, Dato Rosdy dan Dato Sivaraj kata bahawa mereka sudah bagi duit itu, jadi batin kena tolong cakap anak buah untuk undi Barisan Nasional, jangan batin lari mana mana. 26. S: Apa lagi mereka buat? Tiap-tiap batin dapat duit minyak motor RM200. RM100 juga diberi kepada batin. Jumlah yang diterima oleh batin ialah RM300.” [35] However, under cross examination, PW9 said that from the RM25,000.00, he has received RM1,760.00 as he has 44 voters to be given RM40.00 each. The money was given to Batin Abduh, who would then distribute the same to the Batins. But subsequently, PW9 said that the money was given by Wan Rosdy to Achom, and it was Achom who gave the money to the Batin. [36] Despite the contradictions in respect of the identity of the person who actually gave the money to the Batins, either through Dato‟ Wan Rosdy, Batin Abduh or Achom, I find that it is a fact that the sum of RM25,000.00 was given to the Batins present, to which PW9 had confirmed that he had received RM1,760.00. [37] This evidence is confirmed by Achom Lugi, RW2 who said that the RM25,000.00 was given to him to be distributed to the Batin. RW2 20 also said that it was the Batins who have decided the sum of RM40.00 to be given to each voter. [38] In any event,even if Dato‟ Wan Rosdy or RW2, Achom Lugi were not the official agent of the Respondent under Act 5, I am guided by the decision of Raja Azlan Shah (as His Royal Highness then was) in Ali Amberan v. Tunku Abdullah [1970] 2 MLJ 15, where His Lordship held as follows: “Inspired and guided by English and Indian election law, I take the view that the rule of extended scope of agency would tend to make it impossible to preserve the purity and freedom of elections. Accordingly, a candidate at an election is responsible for the acts of agents who are not and would not necessarily be agents under common law of agency. Therefore, a political party and its prominent members who set up the candidate and with his consent, either expressly or by necessary implication, sponsor his cause and work actively to promote his election, may aptly be regarded the ‘agents’ of the candidate for election purposes.” (emphasis added) [39] Therefore, on the factual matrix of this case, whether the money was given by the Respondent, Dato‟ Wan Rosdy or RW2, the undisputed fact is that both Dato‟ Wan Rosdy and the Respondent were campaigning together in the said areas. As such, there is no reasonable doubt that the Respondent was complicit in the 21 distribution of the money, if not directly from his own hands, but from the extended hands of Dato‟ Wan Rosdy or RW2. (d) Paragraph 14.2 – Pos Titom [40] In paragraph 14.2 of the EP, the Petitioner alleged that on 6.5.2018 at Pos Titom, each Batin present was given a total of RM 300.00 from the Respondent and Dato‟ Wan Rosdy. Dato‟ Wan Rosdy, in the presence of the Respondent and with his knowledge and consent, passed a sum of RM 12, 500.00 to Mat, a BN campaigner, to distribute RM50.00 and RM40.00 to each voter after polling day [41] However, in respect of Pos Titom, the Petitioner failed to adduce any evidence. (e) Paragraph 14.3 – Pos Sinderut 1stMeeting – House of Batin of Kg. Bukit Long [42] The Petitioner, in Paragraph 14.3 (c) of the EP had pleaded that the Respondent and Dato‟ Wan Rosdy had met six (6) Batins, that is, from Kampung Labu, Cherong, Tidol, Saweh, Tigol and Bukit Long, at the House of the Batin of Kampung Bukit Long, Pos Sinderut. Thereafter, the Batins were invited to a nearby surau where the Respondent had given RM 300.00 to each Batin and sum of RM 17, 22 500.00 cash were announced in the present of the Respondent to be distributed to each voter by Batins. [43] The Petitioner has called two (2) witnesses to prove the pleaded facts, Sazali a/l Pengsan (“PW4”) from Kampung Saweh and Batin Yahya a/l Pengsan (“PW6”) from Kampung Labu. Both PW4 and PW6 are registered voters from Pos Sinderut. Their evidence in examination in chief are as follows: PW4 (Q. 26) Mereka berjumpan dengan batin-batin daripada Kampung Bukit Long, Kampung Tigol, Kampung Saweh, Kampung Cherong dan Kampung Labu di Bukit Long. Kedua-dua calon Barisan Nasional jemput batin-batin dalam surau. Dalam bilik itu, ada jentera-jentera Barisan Nasional juga. Dato Wan Rosdy dan Sivaraj cakap bahawa harapan mereka adalah supaya semua orang undi Barisan Nasional. Selepas itu, dalam bilik itu, pemberian wang sebanyak RM17,500.00 diberi kepada seorang wakil kampong daipada jentera Barisan Nasional untuk diberi kepada 6 kampung. PW6 (Q. 26) Selepas itu, pada hari lain, Dato Wan Rosdy dan Dato‟ Sivaraj turun dengan helicopter. Mereka berjumpa dengan batin-batin daripada Kampung Bukit Long, Kampung Tigol, Kampung Saweh, Kampung Cherong dan Kampung Labu di Bukit Long. Kedua-dua calon Barisan Nasional jemput batin-batin dalam sati bilik. Dalam bilik itu, ada jentera-jentera Barisan Nasional juga. Dalam bilik itu, pemberian wang sebanyak RM17,500.00 diberi kepada seorang wakil kampong daipada jentera Barisan Nasional untuk diberi 23 kepada 6 kampung. [44] Even though PW4 and PW6 were present during the above occasion, I am of the considered opinion that in view of a substantial contradiction in their evidence, I cannot accept their evidence. In the EP, it is pleaded that the money was given in the surau, but PW4 said that it was in the „ruang tamu‟ of the surau. However, under cross examination, PW6 said that the money was given in a room in a house beside the surau. In view of the substantial contradictions, I find that the Petitioner has failed to establish, beyond reasonable doubt that the money was given in the surau. 2nd Meeting – House of Jali a/l Gayang [45] The Petitioner, in Paragraph 14.3 (d) of the EP had alleged that the Respondent and Dato‟ Wan Rosdy went to Jali‟s house and met seven (7) Batins ie. Kampung Tual, Janggap, Regang, Sinderut, 300. Cempian, Kabang and Belau. Thereafter, the Batins were given RM 00 in total per Batin. [46] The Petitioner has called three (3) witnesses to prove the pleaded facts, Harun a/l Siden (PW-2) from Kampung Tual A, Norman a/l Kong (PW-3) from Kampung Pos Sinderut and Yok Ek Bin Cantan (PW-5) from Kampung Tual B, Pos Sinderut. Their evidence in examination in chief are as follows: 24 PW2 (Q25) Pada 6.5.2018 saya terima wang dari Dato Sivaraj dan Dato Wan Rosdy sejumlah RM300.00. 6 orang batin lain pun turut terima RM300.00 seorang. PW3 (Q29) Selepas itu, Dato Wan Rosdi bagi duit RM300.00 kepada setiap 7 batin. Bersama dengan beliau, ada calon Parlimen Sivaraj. Saya ada melihat kedua-dua bagi duit. Pada masa itu, mereka bertanya jumlah pengundi, saya tak jawab tetapi ustaz yang jawab ada seramai 144 orang pengundi. PW5 (Q26) Pada 6.5.2018, mereka kumpulkan batin-batin dari Kampung Tual, Janggap, Regang, Sinderut, Cempian, Kabang sehingga Kampung Labu untuk minta batin sampaikan pesanan mereka kepada anak buah kami supaya undi barisan nasional, jangan undi parti lain. Saya terima wang daripada Dato Sivaraj dan Dato Rosdy sejumlah RM300.00.6 orang batin lain pun turut terima RM300.00 seorang. [47] It is not in dispute that there are inconsistencies in the evidence as to who actually gave the RM300.00 to the Batins concerned, and in the very words of learned Counsel for the Respondent, “tangan siapa yang hulurkan duit”. Under cross examination, PW2 even say that he did not know the person who gave him the money. [48] However, what is common in the evidence of all three witnesses is that the money was given to the witnesses, who are the registered voters in the Constituency. And more importantly, the Respondent was present when the money was given. Therefore, I find that the 25 sum of RM300.00 was given in the presence and knowledge of the Respondent. 3rd Meeting – Kg. Keledek. [49] The Petitioner, in Paragraph 14.3 (e) of the EP alleged that the Respondent had met Singgol on 07.05.2018 at 12.15 am. And in the presence of the Respondent, RM 200.00 was given to Singgol and RM 9, 300.00 was given to Batin Yok Ek with directions to distribute the money to voters in Kampung Tual A & B. Similarly, Batin Norman was given RM 7, 200.00 to be given to individual voters in Kampung Sinderut to vote for BN. [50] In his evidence in chief (WSPW7), Singgol a/l Oleh (PW7) has given evidence that the sum of RM200.00 was given in Koyan. This contradicts the pleaded fact that the money was given in Kg. Keledek. Therefore, I find that the Petitioner has failed to establish this allegation. [51] Next is the allegation that Dato‟ Wan Rosdy had given RM 9, 300.00 to Batin Yok Ek with directions to distribute the money to voters in Kampung Tual A & B on the understanding that they would vote for BN. Batin Yok Ek (PW5) gave the following evidence in examination in chief: “27. S: Selepas beri kamu duit RM300.00 apa mereka berdua buat? 26 Dato‟ Wan Rosdy dan Dato Sivaraj bagi duit jumlah RM9,300.00 kepada Achah untuk beri kepada batin-batin. Achah yang beri duit itu kepada saya dan saya agihkan duit itu kepada semua pengundi di kampong saya pada 8.5.2018. bersama dengan duit itu, saya disuruh memberikan satu kertas putih yang ada nama pengundi, bersama gambar dacing dan pangkah disebelah dacing dan tempat mengundi.” [52] However, the pleaded case of the Petitioner is that the sum of RM9,300.00 was given by Dato Wan Rosdy and the Respondent, and the person named „Achah‟ was not pleaded at all. [53] With regards to the allegation that Wan Rosdy gave Batin Norman RM 7, 200.00 to be given to individual voters in Kampung Sinderut to vote for BN, there is no evidence on this. (e) Paragraph 15 of the EP [54] In paragraph 15 of the EP, the Petitioner alleged that a BN campaigner, Achah had given RM 5, 200.00 to the Batin of Regang with the knowledge or consent of the Respondent. The Batin then passed the money to his son Yok Tam, who then gave RM50.00 to each voter with a slip that bore BN logo in order for them to vote for BN and refrain from voting the Petitioner. [55] In this respect, the Petitioner did not offer any evidence. 27 (g) Paragraph 16 of the EP [56] In respect of paragraph 16 of the EP, the Petitioner has alleged that the Respondent had committed corrupt practice through the Batins, where the Batin had distributed RM50.00 and a slip bearing the voter‟s name to each voter in Schedule 1 in order to induce the said voter to vote for BN, either expressly or by indication. An Ustaz from Kampung Pantos came to house of Batin Norman to help distribute RM50.00 to each voter and that RM25,000.00 was distributed by the respective Batins to the voters. [57] With regards to this, the submission of the Petitioner is not very clear, as the Petitioner‟s submission does not deal with each paragraph of his allegations. In any event, it is a general allegation based on the earlier paragraphs in the EP. Be that as it may, in view of my findings that money have been given to the voters in the earlier paragraphs of the EP, I do not find it necessary to comb the evidence on this, as a single act of corrupt practice is enough to nullify an election. In Kho Whai Phiaw (supra), Justice Skinner look at section 32(c) and held as follows: “R.N. Choudry in his commentary on the Representation of People Act 1951, First Edition Orient Publishing Company at page 251 explained the word „corrupt practice‟, appearing in s. 123 of the Indian Act this way:- 28 „The expression „corrupt or illegal practice‟ is equivalent to „corrupt practice or illegal practice‟. The word ‘practice’ applies even to a single act and is not confined to habitual repetition of the action. A single act of the nature given in that section would be a corrupt practice.‟ Issue (ii) whether the monies were given to the voter to induce the voter to vote or refrain from voting, procure the election of the Respondent or such money or part thereof shall be expended in bribery [58] It is the submission of the Respondent that the onus lies on the Petitioner to lead evidence to show that bribes were paid to change someone‟s vote or to show that a voter would have voted for the Petitioner, if not for the bribes.The Respondent relied on the decision of the Federal Court in Mohd Nazri bin Hj Din v. Dato’ Seri Raja Ahmad Zainuddin bin Raja Hj Omar & Ors [2009] 3 MLJ 589, where the Court looked at section 10(c) of Act 5 and held as follows: “In this regard useful reference may be made to s. 123(1) of the Indian Representation of the People Act 1951 which is similar to our s. 10(c). The section reads as follows:- 'Bribery', that is to say:- 29 (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing:- (a) a person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at an election, or (b) an elector to vote or refrain from voting at an election, or as a reward to:- (i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or (ii) an elector for having voted or refrained from voting; In commenting on this section Election Laws, Practice and Procedure by Rama Devi and Mendiratta says at p. 790: - But it should be clearly borne in mind that it is not every gift, offer or promise of gratification to voters which may attract the provisions of s. 123(1). In such gift, offer or promise, there should be an element of bargaining for votes. In other words, any such gift, offer or promise of gratification should be made asking for the votes in return. The Supreme Court held in Ghasi Ram v. Dal Singh [1968] AIR SC 1191 that an offer or promise 30 not made to any particular voter or voters but to the general body or residents, without distinguishing between those who were favourably inclined and those who were not, was not a corrupt practice. The gist of the corrupt practice lay in attempting to do something for those who were opposed to the candidate with a view to changing their votes and as a bargain for votes. The apex court reiterated that view in Om Prabha Jain v. Abnash Chand, [1968] AIR SC 1083 and Dev Raj v. Bhagwan Das, [1971] AIR SC 241 and that view still holds the field. But a bargain for the purposes of s. 123(1) does not mean that the candidate makes an offer and the voter accepts it in the sense that he promises to vote. It is enough if the candidate or his agent makes the gift, offer or promise on that condition. If a candidate or his agent pays money to a voter saying that he wants him to vote for him, it is a bargain for the purposes of s. 123(1). It is not necessary that the voter should say that he would vote and thereafter the candidate or his agent should pay the money. Even in such a case, the voter after receiving the money might or might not vote for him the corrupt practice shall be deemed to have been committed (Iqbal Singh v. Gurdas Singh [1976] AIR SC 27). It follows that the making of the gift, loan, offer etc must be for the purpose of changing the mind of the voters who have been identified. This is logical as the question of inducing a person 31 to do something simply cannot arise if he has already decided to do the very thing.” (emphasis added) [59] However, the case of Mohd Nazri bin Hj Din (supra) is on a striking out application of an election petition, and the main issue is whether there has been compliance of rule 4(1)(b) and rule 4(4)(3) of the Election of Petition Rules. Added to that, I agree with the Petitioner that it would be impossible for the Petitioner to prove that a voter changed his vote as a result of a bribe, because when PW2 was asked about his vote, his reply was “itu rahsia saya.”In any event, section 39 of Act 5 expressly prohibit asking any question designed to elicit to whom a voter cast his vote. [60] On this issue of intention, I will refer to the decision of Justice Chong Siew Fai, as His Lordship then was, in Abu Seman v Public Prosecutor [1982] 2 MLJ 338. This case involved an appeal against a conviction for bribery during an election. In this case, cash gifts of RM5 each was given to three electors by the accused who was not the candidate nor the election agent. The accused told the voters “not to forget the old one”, though in defence, he denied that he even knew there was an election and that he gave them money to buy tea. The voters themselves said that they did not know why they were given the money. Nevertheless, the Court convicted the accused of the offence of bribery under section 10(a) and punishable under section 11. At page 341, the Court held as follows: 32 “As to ground 5, it must be noted that section 10(a) of the Election Offences Act upon which the prosecution relies makes it an offence of bribery if anyone, inter alia, gives money to any voter in order to induce the voter to vote. What is material therefore is the intention of the giver of the money, not the elector who was given the money. In the Westminster Case where the petitioner‟s case was that money was paid for allowing boards with the intention of corruptly influencing votes, B. Martin said (page 95): - „The question is not what is the motive that operated upon the mind of the voter. The mind of the voter has nothing to do with it; the question is, the intention of the person who furnished the board. Probably there is no man who ever was bribed but who would swear that the bribe had not influenced his vote.‟ …. Strictly speaking, it is unnecessary to prove inducement to vote for a political party. It is sufficient if it is proved that money was given in order to induce the elector to vote. In determining whether there had been bribery the court will always look to the essence of the transaction whether the act was done with a view to influencing a voter in relation to his vote. The intention of a person against whom a charge of bribery is made must be proved and this may be established 33 from his acts and other circumstances of the case. As Bucknill J. observed in Kingston-upon-Hull 6 O‟M. & H. 89, „But people must be judged according to the inferences which people of common sense have to draw from their acts and words … You cannot allow a man to say „I did not intend to do that which amounted to bribery‟ if when you look at all the things which he did, and all the things which he said, there is only one conclusion to draw, which is the natural inference, and that is that he has done that which he said he did not intend to do.” (emphasis added) [61] Applying the principle in Abu Seman’s case, the issue here is whether in the circumstances of the case, it is proved that the money was given in order to induce the elector to vote. [62] Based on my findings above, I find that the money was given to the voters with the Respondent‟s knowledge in respect of Paragraph 12.1, 14.1 and 14.3 (2nd Meeting) of the EP. From the evidence supporting these claims by the Petitioner, there was payment of RM200 (paragraph 14.1), RM25,000 and RM200 (paragraph14.1) and RM300 (paragraph 14.3 – 2nd Meeting). There is therefore a pattern of giving money to the voters, during the crucial period before the election, which to me can only mean to induce the elector to vote. The money was given when the Respondent and Dato‟ Wan 34 Rosdy were actively campaigning in the said areas under the BN banner. Added to that, the evidence of PW10 and PW11 shows that they had received the money together with the voting slips with BN logo, and this was confirmed by the Respondent‟s witness, RW3 who had admitted that BN did distribute the slips. To me, it is clear that these surrounding circumstances led me to the inevitable conclusion that the money was given to induce the voter to vote. [63] Therefore, it does not matter if the Respondent say that the money was given as „duit rokok’ or as travelling allowances for the Batin to attend the meeting with the Respondent and Dato‟ Wan Rosdy, as these are merely to disguise the real intention for the giving of money before the election. In fact, when PW9 was cross examined by the Respondent, he said the money was given to induce the voter to vote in the Election. He said as follows: “BAHLAI: 25,000 ini memang ada dia bagi tahu dia cakap siapa yang mengundi yang dapat duit dia wajib hadir ke tempat mengundi. Itu saja? Ya, itu saja. Dia tak ada cakap pangkah BN. Tak ada. Cuma dia cakap macam itu. Dia cakap perlu hadir ke. … Jadi Batin setuju masa Achom beri dia cakap siapa mengundi dan dapat duit ini kena keluar mengundi. Itu sahaja. 35 Ya.” [64] Added to that, it is the evidence of RW2 that the money was given „bertujuan untuk perbelanjaan untuk keluar mengundi..‟ (Q/A 10) [65] It is not in dispute that the orang asli would welcome any assistance, be it cash or in kind, from all parties, including the presentation of a lawn mower by the Petitioner himself. In fact, the evidence shows that the money given was used for daily expenses. However, as decided by the case of Abu Seman (supra), the intention of the recipient is not relevant. [66] With regards to the issue that the money was from Dato‟ Wan Rosdy‟s allowance from his duties as a member of the State Executive in charge of the affairs of the orang asli, Dato‟ Wan Rosdy did not come to court to explain the same. [67] With regards to the Petitioner‟s claim premised on section 32(a) of Act 5, I am of the considered opinion that the Petitioner has failed to prove beyond reasonable doubt to establish that the general bribery may reasonably supposed to have affected the result of the election. The difference of the votes is 597, and even if the Petitioner had established all the 158 names in the Schedules, which he failed to, the Respondent would still have a majority of 539. 36 Conclusions [68] Premised on the reasons enumerated above, I am of the considered opinion that the Petitioner has established, beyond reasonable doubt that bribery under section 10(a) of Act 5 was proven, in that money was given to the voters either directly by the Respondent, or indirectly through Dato‟ Wan Rosdy or Achom, and that the money was given to the voter to induce the voter to vote. [69] Therefore, I find that corrupt practice was committed in connection with the election with the knowledge of the Respondent under section 32(c) of Act 5. Consequentially, pursuant to section 36(1) of Act 5, I declare that the election for the Parliamentary Constituency of Cameron Highlands P. 078 held on 9.5.2018 was void. [70] With regards to section 37 of Act 5, I will certify this decision to the Election Commission and report that corrupt practice has been proved to have been committed with the knowledge and consent of the Respondent at the election, namely the giving of money to the voter to induce the voter to vote. However, I will not report any person who have been proved at the trial to have been guilty of any corrupt practice because of the inconsistencies in the evidence of the Petitioner‟s own witnesses as to the identity of the person who had actually given the money. 37 [71] With regards to cost, the Petitioner is seeking RM30,000.00 for this trial. However, since the Petitioner has failed to prove all his allegations, then the appropriate cost will be RM15,000.00 subject to allocatur. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 30th November 2018 For the Applicant : Manokaran a/l Veraya, M.Rajenthirakumar a/l R.Malaiapan, Shanmuga a/l A.Kanesalingam, Yohendra a/l Nadarajan, David Yii Hee Kiet Messrs Kumar Associates Kuala Lumpur For the Respondent : Mohd Hafarizam Bin Harun, Norhariza Binti Abu Haiyan, Nik Nuraisha Alia Hanafi Messrs Hafarizam Wan & Aisha Mubarak Kuala Lumpur Cases referred: 1. Audrey Karen Barry v. Datuk Dr. Yee Moh Chai [2010] 3 CLJ 660 2. Kho Whai Phiaw v. Chong Chieng Jen [2008] 1 LNS 5 3. Ali Amberan v. Tunku Abdullah [1970] 2 MLJ 15 4. Mohd Nazri bin Hj Din v. Dato‟ Seri Raja Ahmad Zainuddin bin Raja Hj Omar & Ors [2009] 3 MLJ 589 5. Abu Seman v Public Prosecutor [1982] 2 MLJ 338 38