Zizie Izette binti A Samad v Pendakwa Raya (WA-44-151-09/2022)

These are two separate notice of motions filed by both applicants for revision pursuant to Section 323 and 325 Criminal Procedure Code to quash or set aside the finding of prime facie case against them at the end of the prosecution case by the learned Session Court Judge (hereinafter referred to as LSJ).

The cases against the applicants were registered at the Kuala Lumpur Sessions Court as Arrest case WA - 62R - 18 - 05/2019 and WA - 62R -21 - 05/2019.

These two applications were heard together as agreed by parties.

After perusing the written submissions filed by parties and hearing their respective submissions in open court, I allowed the said applications. The reasons for my decision are as stated below.

The 1st Applicant (hereinafter referred to as 1st accused) faced three charges under Section 17 (a) of Malaysian Anti-Corruption Commission Act (hereinafter referred to as MACC Act) where he is accused of corruptly RM2.8 million from SP24 and SP25, agent of Public Mutual Berhad through the 2nd Applicant (2nd accused) as an inducement for getting approval from MOF 11 for FELCRA’s investment in Public Mutual Trust fund.

The 2nd Applicant (hereinafter referred to as 2nd accused) who is the 1st accused’s wife, was charged separately under Section 28 (1)(a) MACC Act.

A joint trial was ordered and after hearing 30 witnesses called by the prosecution the LSJ made a finding that a prima facie case had been established by the prosecution and ordered both the Applicants to enter their defence.

This is what the LSJ stated when she made the said oral ruling: “Ya, okay. Baik, tertuduh bangun. Baik, setelah mendengar keterangan saksi this one pertaining to, berkaitan dengan keterangan SP24 dan SP25. Those 2 are your material witness, alright dan saksi ke-25, serta hujahan kesemua pihak, walaupun terdapatnya percanggahan keterangan antara rakaman percakapan di sini saya rujuk kepada P110, P111, P112 sehingga P118 dengan keterangan lisan mereka di Mahkamah terbuka, saya mendapati bahawanya ianya tidak memberi kesan kepada pertuduhan-pertuduhan terhadap kedua-dua tertuduh. Walau bagaimanapun, saya mengambil maklum percanggahan tersebut dan setelah meneliti keterangan SP24 dan SP25 secara keseluruhannya, dengan berhati-hati, with due caution and care telah menerima keterangan lain SP24 dan SP25 yang dikemukakan di hadapan Mahkamah ini and upon considering the evidence as a whole, with due caution and care in the light of other evidence on record. ….”

The LSJ then ruled that the prosecution had proved all the required ingredients to prove an offence under the said charges and a prime facie case had therefore been established, thus ordered the 1st accused to enter his defence.

A similar finding and ruling was made against the 2nd accused and the LSJ further ruled that the presumption under Section 50 MACC Act is applicable against them.

Primarily these applications centre around the LSJ decision to accept an out of court written statements of SP24 and SP25 over their oral evidence thus resulting in improper and illegal finding of a prima facie case against both accused. This finding leads the LSJ to err in finding that the presumption under Section 50 MACC Act is therefore invoked against both accused.

Both the accused seek to move this Court to find that the LSJ’s finding was grossly irregular and caused miscarriage of justice.

It was contended by the Applicants that the words used in Section 35 of the CJA “…, at any stage in any matter or proceeding, …” does not curtail this court’s power of revision on a decision made on the finding of prime facie. It was further contended that when read together with Section 323 of the CPC, the High Court’s power of revision is wide enough to include interlocutory finding or orders and not limited to only final orders. Decisions in Public Prosecutor v Muhari Mohd Jani & Anor [1996] 3 MLRH 717, Ng Siam Cheng Suffiah v Public Prosecutor [2019] SGHC 281, Public Prosecutor v Kulasingam [1974] 1 MLRH 112, MD Allauddin Khan v The State of Bihar (Criminal Appeal No. 675 of 2019), Jagmal Raja v The Crown [1950] CRI 50 and Section 379 of Indian CPC were quoted to support this proposition.

The Respondent on the other hand argues that the terminology of “any finding” in Section 323 CPC must be interpreted harmoniously to least any repugnancy and inconsistency with other provisions such as Section 173 and 307 of the same Act.

Decisions in Abdullah Bin Atan v PP & Another Appeal [2020] MLJU 1244 and Lim Hung Wang & Ors v PP [2011] 9 MLJ 752 were cited to support this argument.

It was further submitted by the Respondent that the general proposition of law in the context of Section 323 CPC and 35 CJA does not extent to relitigating or re-evaluating the prima facie evidence adduced by the prosecution in pursuant to Section 173(h)(iii) CPC and is not permissible under the cloth of Section 323 CPC and 35 CJA. Decisions in Low Thiam Hock v PP [2021] 4 MLJ 856, Lim Hung Wang & Ors v PP [2011] 9 MLJ 752, Saad Bin Abas & Anor v PP [1999] 1 MLJ 129 and Letchumanan A/L Suppiah v PP and Another Appeal [2009] 5 MLJ 597 were referred.

Is the finding of prima facie subject to the powers of revision of the High Court;

In the case of Lim Hung Wang [2011] 9 MLJ 725, where the court made a finding of prima facie case and ordered the accused to enter his defence. Counsel for the accused then filed an application for a review before the same High Court Judge. Justice Mohd Zawawi Salleh (as he then was) decided that there is no such provision for a High Court to review its own decision, unlike the Federal Court which is empowered by Rule 137. The learned Judge then stated that the High Court under Section 323 of the CPC can review the decision of the lower court in 6 regard to the regularity or legality of a finding, order or ruling. Taken in the context of the review application made before him, after prima facie had been established, would mean that the same applies to a decision of the lower court after an accused person is ordered to enter his defence as provided under Section 323 of the CPC.

Therefore this Court opined that the decision by the LSJ which is the subject matter of this applications does fall under the purview of Section 323 of the CPC and the High Court could exercise its revisionary power. Next, does this Application warrants a revision; [20] In the case of R. Thangavel v State by Inspector of Police, C.B.C.I.D. (Idol Wing) Madras (1998) 1 MLJ 691 it was stated: “18. The scope of revisional jurisdiction is wide, in so far as, the High Court can consider the correctness, legality or propriety of any finding and as to the regularity of the proceedings of any inferior court. But, even so, this jurisdiction is not to be exercised in every case of impropriety or illegality, unless it caused failure of justice. As a broad proposition, it may be stated that the inference may be justified where:

The decision is grossly erroneous;

There is no compliance on the provisions of law;

The finding of facts affecting the decision is not based on evidence;

The material evidence of the parties has been overlooked;

The judicial discretion is exercised arbitrarily or perversely.

The revisional power of this Court under Section 397 and 401, Crl.P.C. is a kind of supervisory jurisdiction in order to prevent miscarriage of justice arising from the misconception of law. These two sections do not confer unfettered jurisdiction on this Court on re-appraisal of evidence. It is only in rare and exceptional cases where there is some manifest illegality or grave and serious miscarriage of justice, this Court could interfere with such findings of facts.

The High Court in its revisional jurisdiction is not justified in substituting its own view for that of the trial court on question of fact on re-appreciation of evidence. While considering the legality, propriety or correctness on a finding or conclusion in the revisional jurisdiction, normally, the revising court does not dwell at length upon the facts on evidence. The court of revision considers the materials only to satisfy itself about the correctness, legality and propriety of the finding …..” [21] The Supreme Court of India in the case of State of Gujarat v Afroz Mohammed Hasanfatta [Criminal Appeal No. 224 of 2019, arising out of SLP (Crl.) No. 6068 of 2017] echoed similar legal proposition when it stated: “49. While hearing revision under Section 397 Cr.P.C., the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgement of the lower court suffers from perversity.” [22] Both these decisions illustrate that while a High Court exercising its revisional jurisdiction is not conferred unfettered jurisdiction on re-appraisal of evidence, it is not precluded from considering the material evidence before it, in order to satisfy itself about the correctness, legality and propriety of the finding of the lower court. [23] In the application before this Court, the decision of the LSJ runs contrary to the evidence tendered in court by the prosecution. Both material witnesses of the prosecution, namely SP24 and SP25 clearly stated in their oral evidence in court that no element of gratification exist in this case. [24] SP24, a prosecution witness under cross examination from the learned Deputy denied that what was stated in P110 until P113 (her written statement given during investigation, which was relied upon by the LSJ in deriving at her decision) was not what actually happened. She also denied that the RM2.8 million paid to the 2nd accused at Public Bank Taman Melawati was meant for the 1st accused. [25] SP25, another material prosecution witness in his oral evidence in court also confirmed that no element of gratification nor request for such, existed in this case as there was no such request from either accused. He went on to confirm that the money (RM2.8 million) paid to the 2nd accused was an introduction fee. [26] In the face of these evidence, the LSJ elected to accept former statements of these two witnesses (P110 – P118) which were given to MACC during the course of investigation. The LSJ made a determination that the oral evidence of these two witnesses do not give effect to the charges against both the accused. [27] The Federal Court in the case of Krishnan v PP [1981] 2 MLJ 121 held that; “It must be remembered here that, least we may be misunderstood, the proof of the inconsistent statement, whether under caution or not, under this procedure, does not constitute evidence of fact, but only evidence of inconsistency because of the contradiction of the evidence of the witness with his former statement. In other words the former statement is not replacing his evidence which has been contradicted, but only renders his evidence completely untrustworthy.” [28] In PA Anselam v Public Prosecutor [1940] 1 LNS 64, where a witness was treated as a hostile with the leave of the court and was cross examined on a previous statement, Harne J said as follows: “Such cross examination is not for the purpose of substituting the unsworn statement for his testimony given in open Court on affirmation.” [29] Based on the above quoted decisions, this Court is of the opinion that the basis of the LSJ’s finding a prime facie case having made out is clearly incorrect and perverse, and causes great injustice to both the accused. Conclusion Having regards to all that have been stated above, it is my view that this is a fit and proper case for this Court to exercise its revisionary power. Both the applications are therefore allowed and the LSJ’s decision is set aside and substituted with an order of acquittal and discharge without calling for them to enter their defence. Dated: 20th April 2024 (AZHAR BIN ABDUL HAMID) JUDGE HIGH COURT OF MALAYA CRIMINAL DIVISION, KUALA LUMPUR For the 1st Applicant M. Athimulan, Ashok Athimulan & Ridha Abdah Subri M/S. Athimulan & Co Advocates & Solicitors No. 4 – 1st Floor King Street, 10200 Georgetown Penang. For the 2nd Applicant Dato’ K. Kumaraendran, Tan See Khoon, William Leong & Abdul Rahim bin Abdul Karim M/S. Kumar & Co Advocates & Solicitors No. 84, Bishop Street 10200 Penang. For the Respondent Low Chin How, Mohamad Fadhly bin Mohd Zamry & Noor Syafina binti Ahmad Radzuan Deputy Public Prosecutor Malaysian Anti-Corruption Comission (MACC) Aras 18 & 19, Blok C No. 2, Lebuh Wawasan, Presint 7 62250 Putrajaya Wilayah Persekutuan Putrajaya. Cases referred to: Oh Keng Seng v PP [1974] 2 MLJ 48 Public Prosecutor v Dato Kee Yong Wee & Ors [1988] 2 MLJ 198