Yong Choo Kiong v Pendakwa Raya (A-05-554-12-2019)

The appellant, an elected representative and a member of Perak’s State Executive Council (“Exco”) was charged in the Session 2 Court of Ipoh with rape, allegedly committed on 7.7.2019 at about 8.15 p.m. to 9.15 p.m. in a room at the upper floor of a house No. 52, Jalan Desa Meru 2, Meru Desa Park, Ipoh. He has pleaded not guilty to the charge and prior to the commencement of the trial, the appellant has filed an application in the High Court under section 417 of the Criminal Procedure Code (“CPC”) to transfer his case to the High Court for trial. That application was rejected by the learned Judicial Commissioner (“JC”). Hence this appeal before us which we heard on 10.2.2020 where by a majority decision, the appeal was dismissed. I dissented and my grounds for doing so are in this judgment.

At the outset I must state that I am completely aware that the High Court has the full power and a complete discretion whether to allow the transfer under the said section, which relevant and pertinent provisions as far as this case is concerned are reproduced below: “S. 417 High Court’s power to transfer cases

Whenever it is made to appear to the High Court – … … …

that some question of law of unusual difficulty is likely to arise; … … … 3

that such an order is expedient for the ends of justice, or is required by any provision of this Code, it may order – (aa) … … … (bb) … … …

(cc) that any particular criminal case be transferred to and tried before the High Court.

The High Court may make an order under subsection (1) either on the report of the lower Court, or on the application of the Public Prosecutor or the accused person, or on its own initiative.” As was held by the Federal Court in PP v Dato’ Yap Peng [1987] 2 MLJ 311, “… The power to transfer a case is judicial power exclusively exercisable by a court in the manner provided for in sections 138, 177 and 417 of the Code. The power to transfer is similarly designated as a judicial power and provided for in section 25 and paragraph 12 of the Schedule to the Courts of Judicature Act, 1964.”

The appellant in his affidavit in support gave three grounds why his application should be allowed and they are:

there is a question of law of unusual difficulty in that, the prosecution would be utilizing the Witness Protection Act 4 2009 in respect of the victim, referred to as Awang in the charge and another witness, Haniff Bin Mohamad Wahab. This will be the first time the Act would be used in a rape trial. The other question of law relates to the request by the Public Prosecutor for one of the counsel representing the appellant, that is, Leong Cheok Keng to withdraw himself as one because he would be called as a witness in the trial.

(ii) for the interest of justice in view of the appellant’s position as a member of the Perak’s State Exco, given that the charge against him had generated so much public interest and publicity.

(iii) the transfer if allowed would not prejudice the respondent. Dismissal Of The Application

It must be mentioned now, before I delve into the reasons canvassed by His Lordship, that initially the respondent objected to the transfer and filed an affidavit to oppose it but at the date fixed for the hearing of the application, the learned Deputy Public Prosecutor (DPP) informed the learned JC that he was conceding to the application, but 5 would not be filing any application under section 418A of the CPC. Section 418A gives the power to the Public Prosecutor, exercisable by him personally, to transfer a prosecution in the subordinate court to the High Court by the issuance of a certificate to that effect. That power is subject to section 418B which is not in contention before us in this appeal. In his oral submission before the court, the learned DPP as outlined in His Lordship’s grounds of judgment at pages 22 – 23 of the Appeal Record Volume 1, expressed his concession to the application stating six reasons, which in view of their importance to my decision, I would now reproduce in full: “(i) Pihak Pendakwaan setuju dengan alasan-alasan bagi menyokong permohonan Pemohon;

(ii) Mahkamah ini perlu mengambil kira kedudukan Pemohon selaku seorang Ahli Exco serta kesan kes terhadap Pemohon kepada Pentadbiran Kerajaan Negeri Perak;

(iii) Mahkamah mempunyai budibicara untuk membenarkan permohonan ini;

(iv) Jika kes terhadap Pemohon dibicarakan di Mahkamah Tinggi, ia akan mengurangkan masa kerana segala isu yang dibangkitkan oleh pihak-pihak akan terus dibuat keputusan oleh Mahkamah Tinggi;

Namun demikian, isu penggunaan APS 2009 merupakan isu berkaitan merit perbicaraan. APS 2009 bukanlah suatu isu menyebut bahawa ia hanya boleh digunakan bagi kes-kes melibatkan isu keselamatan semata-mata; 6

(vi) Keterangan saksi-saksi yang berkenaan akan dibuat secara in camera menurut s. 265A KTJ, dan bukannya menurut APS

2009.” (emphasis added)

The learned JC was of the opinion that in the absence of any case precedent especially from the appellate courts to say that when such a concession was made, the court must allow the application, then he must still consider the merits of the application as required by the said section 417. His Lordship then proceeded to examine the legal principles governing such an application starting from the Supreme Court’s decision in PP v Dato’ Yap Peng’s case (supra), that of the Federal Court in Dato’ Sri Mohd Najib Abdul Razak v PP [2019] 5 CLJ 293, as well as that of the High Court in PP v Dato’ Kee Yong Wee, Koh Kim Swee & Other Cases [1987] 2 CLJ 329 and Lin Tah Hwa v PP [1987] CLJ (Rep) 1104. His Lordship then came to the view that although the threshold in the said section 417(1)(b) is low but the appellant has failed to satisfy him that the question of law posed were of “unusual difficulty”.

As for the second ground on the interest of justice, the learned JC distinguished the ratio in Dato’ Sri Najib’s case (supra) and held that the factors considered in the cited case were not just the position of the appellant there as the ex-Prime Minister of Malaysia and the 7 seriousness of the said charges but also the delay to the trial if the additional seven charges were to be heard before another High Court. Although the learned JC agreed with the appellant that there would be no prejudice caused to the Public Prosecutor if the transfer were allowed, His Lordship however held that the said fact would not move him to allow the application. As for the position of the appellant as member of the Perak’s Legislative Assembly and Exco, the learned JC, just before concluding his judgment, held at paragraph 46 thereof that it was not a relevant consideration just as the issue on the usage of the Witness Protection Act. The said paragraph 46 and its heading reads: “Perkara-perkara yang tidak relevan bagi menyokong permohonan [46] Mahkamah ini memutuskan bahawa isu yang dibangkitkan oleh pihak Pemohon bagi menyokong permohonannya yang bukan merupakan isu undang-undang seperti isu mengenai kedudukan dan bilangan kerusi Pakatan Harapan di Dewan Undangan Negeri Perak dan fakta bahawa Pemohon ialah seorang Ahli Exco Kerajaan Negeri Perak merupakan isu yang tidak wajar dan tidak relevan dibangkitkan di hadapan Mahkamah ini sebagai alasan bagi menyokong permohonan ini. Begitu juga isu substantif mengenai pemakaian dan tafsiran APS 2009, termasuk sama ada Mahkamah ini perlu menggunakan “purposive approach” atau selainnya dalam membuat tafsiran mengenai APS 2009 seperti disarankan dalam hujahan peguam Pemohon bukanlah isu yang perlu diputuskan oleh 8 Mahkamah ini dalam permohonan ini. Seperti yang telah dinyatakan dalam perenggan di atas, ini adalah suatu permohonan memindahkan kes Pemohon ke Mahkamah Tinggi, dan bukannya suatu permohonan untuk Mahkamah ini membicarakan ketiga-tiga isu perundangan yang dikatakan terlalu rumit itu untuk ditafsirkan dan diputuskan secara meritnya. “

In agreeing with the submission of learned counsel for the appellant that the transfer should have been allowed, I am firstly moved by this primary consideration and it is that our criminal justice system is an adversarial one. Therefore, when the Public Prosecutor has clearly indicated his stand that the application be allowed, the court must respect that decision unless there is a strenuous and compelling reason not to do so. In saying the above, I am not for a moment suggesting that in such a situation as this, the court must act as a rubber stamp to the wishes of the parties but that in the face of such an agreement which in this case was not expressed with just the usual one liner of “no objection” but with a list of reasons as reproduced earlier, the court must in view of the adversarial nature of our criminal justice give face to that common stand on the conduct of the proceedings taken by the parties. In this case, the common stand as evidenced by the concession made by the learned DPP which I had reproduced earlier was strengthened by the fact that under section 418A, the Public Prosecutor has the power to effect such a transfer by 9 the issuance of a certificate which the court is not empowered to reject unless the same was objected to on good and cogent reasons advanced by the accused. Thus, in my view when a concession is made by the Public Prosecutor that the transfer be made, it is akin to an exercise of that power but without the accompaniment of a certificate.

I say this because in Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128 it was held that these two sections, that is section 417 and 418A have to be read together and this decision of Hashim Yeop Sani J (as he then was) was approved by the Federal Court in Datuk Haji Harun Bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155. What Hashim Yeop Sani J held first at page 131 was this: “To my mind it is clear that although the draftsman has provided a new section 418A the intention of the legislature would seem to be that section 418A be read as part of the legislative scheme of section 417 of the Criminal Procedure Code and therefore of the same character.” (emphasis added) Then subsequently, His Lordship said this at page 132: “I am inclined to the conclusion therefore that section 418A deals merely with the procedure and is an integral part of an extension of section 417 of the Criminal Procedure Code and cannot on the face of 10 it be said to be ultra vires the Constitution. The Criminal Procedure Code is a law relating to criminal procedure made by Parliament by virtue of its powers under paragraph 4 of the Ninth Schedule to the Constitution. Section 417 and section 418A are but vehicles for the Public Prosecutor to exercise his powers under Article 145(3) of the Constitution and section 376(i) of the Criminal Procedure Code. The exercise of his powers under section 418A is not inconsistent with his powers under the aforesaid provisions of the Constitution and the Criminal Procedure Code.” (emphasis added)

The Federal Court’s endorsement of His Lordship’s decision above is expressed in the following words at page 167: “The Attorney-General, however, even before the trial had sources of information and he had information not available to the court and if armed with this information he decided to act under section 418A the court should not on that account alone, strike down the section. We agree with Hashim Yeop A. Sani J. who said at page 132 in Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128 that section 417 and section 418A are vehicles for the Attorney-General to exercise his power under Article 145(3); and it is for him to judge which case is difficult or important enough to be given an early trial after a transfer to the High Court under section 418A.” (emphasis added)

Thus, given the said power of the Public Prosecutor with regards to the transfer of a case, the stand made by him not to object to the application should, in the circumstances of this case be respected and acceded to by the learned JC. It must also be mentioned that at the 11 hearing of the appeal before us, the learned DPP said he would leave it to the court to decide on the appeal which to me amounts to an unequivocal stand and reflective of the one that his colleague had adopted in the High Court. Viewed in another way, this concession of the respondent was also an admission, given “the sources of information” he had which the court was not privy to as held by the Federal Court above, that it would be expedient in the interest of justice that the trial of the appellant be held in the High Court.

My other reason for allowing this application was that there had been case precedents where criminal trials in the jurisdiction of the Sessions Court involving politicians who held or had held public office were conducted in the High Court. Learned counsel for the appellant has listed five of them in his written submission which I now reproduced:

PP v. Dato’ Seri Anwar Ibrahim [1998];

PP v. Dato’ Seri Anwar Ibrahim [2008];

PP v. Datin Seri Rosmah Binti Mansor [2019];

PP v. Dato’ Seri Dr. Zahid Hamidi [2019];

PP v. Tan Sri Mohd. Isa Abdul Samad [2019]. 12

Granted that the last three cases may be more complicated as they involved charges of corruption involving millions of ringgit but the first two were also in respect of a sexual offence, that is, sodomy. The Federal Court in Datuk Hj. Harun’s case (supra) had in fact given consideration to the position held by the appellant in the said case at the same page 167 as follows: “Nor also is there any doubt as to the importance of this case, in view of the position occupied by the accused in public life and the great interest shown by his supporters who crowded the public gallery during the trial and part of the appeal and the extraordinary precautions taken by the Police to ensure the security of the court during the whole of the trial and the first two or three days of the appeal.” Therefore, the appellant in this appeal before us should not be treated any different from the public figures mentioned above.

Furthermore, although I have full confidence that a Sessions Court Judge (“SCJ”) would have the legal knowledge and expertise to handle the trial, however it would be more expedient to have the potential legal issue of the appellant’s right to counsel of his choice be determined by the High Court without the necessity of delaying the trial by an appeal to the High Court should that decision be made by the learned SCJ. As stated earlier, this was one of the legal issue raised 13 by the appellant. The other one, on the Witness Protection Act, according to the submission of the learned DPP before the learned JC which I had reproduced and highlighted at page 5, would not be used for the relevant witnesses since their evidence would be taken in camera under section 265A of the CPC.

Even though initially during case management before the learned SCJ, she was informed of the prosecution’s intention to use the said Act in that the victim would be giving evidence using video link under section 20(1) but, following objection by learned defence counsel, a consensus was reached for the said evidence to be given in camera. Nonetheless, on the first day of trial, that is 11/11/2019, the prosecution again applied before the learned SCJ to use the said Act for the protection of the victim and the second witness, which prompted the learned SCJ to postpone the trial to do further research on the said application. Two days later, that is 13/11/2019, the application for transfer was filed by the appellant. This sequence of events is laid out in the written submission of the appellant’s counsel in the High Court which appears at pages 3 and 4 of Volume 3 of the Appeal Record. 14

I would agree that the utilisation of this Act in a rape trial, unprecedented to date, would pose a procedural challenge at the trial given its clear objective which is to overcome serious cases such as organised crime (see the Hansard dated 23/3/2009 which is reproduced as Tab 4 in the appellant’s Bundle of Authorities). Although on its own the intended usage of the said Act would not merit a transfer of the trial to the High Court, nevertheless when considered cumulatively with the other reasons which I had laid out earlier, I believe that this ground adds to the justification of transferring the trial to the High Court.

For the reasons stated above, I have decided to allow the appeal of the appellant and to order that the trial be transferred to the High Court. Signed. (RHODZARIAH BINTI BUJANG) Judge Court of Appeal Malaysia Putrajaya Date: 13th March 2020 15 Parties Appearing: For The Appellant: Dato’ Rajpal Singh (Salim Bashir, Terence Naidu, Raja Nur Hanani Binti Raja Abdul Rahman with him) (Messrs Leong & Tan) For The Respondent: Dato’ Mohd Dusuki Bin Mokhtar Deputy Public Prosecutor (Attorney-General’s Chambers) Cases Referred To:

PP v Dato’ Yap Peng [1987] 2 MLJ 311;

PP v Dato’ Yap Peng [1987] 1 CLJ 550;

Dato’ Sri Mohd Najib Abdul Razak v PP [2019] 5 CLJ 293;

PP v Dato’ Kee Yong Wee, Koh Kim Swee & Other Cases [1987] 2 CLJ 329;

Lin Tah Hwa v PP [1987] CLJ (Rep) 1104;

Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128;

Datuk Haji Harun Bin Haji Idris v Public Prosecutor [1977] 2 MLJ

155.