Zulhairin Bin Yahya v Pendakwa Raya (AA-42R(A)-7-10/2022)

Notwithstanding the provisions of any other written law, the Public Prosecutor or an officer of the Commission of the rank of Commissioner or above as authorized by the Public Prosecutor, if he considers that it is likely to contain 345 any information which is relevant for the purpose of any investigation into an offence under this Act, may, on the application of an officer of the Commission of the rank of superintendent or above, authorize any officer of the Commission- 350

to intercept, detain and open any postal article in the course of transmission by post;

to intercept any message transmitted or received by any telecommunication; or

to intercept, listen to and record any conversation by 355 any telecommunication, and listen to the recording of the intercepted conversation.

When any person is charged with an offence under this Act, any information obtained by an officer of the Commission in pursuance of subsection (1), whether before 360 or after such person is charged, shall be admissible at his trial in evidence.

An authorization by the Public Prosecutor or an officer of the Commission of the rank of Commissioner or above as authorized by the Public Prosecutor under 365 subsection (1) may be given either orally or in writing; but if an oral authorization is given, the Public Prosecutor or the officer of the Commission of the rank of Commissioner or above as authorized by the Public Prosecutor shall, as soon as practicable, reduce the authorization into writing.

A certificate by the Public Prosecutor or the officer of the Commission of the rank of Commissioner or above as authorized by the Public Prosecutor stating that the action taken by an officer of the Commission in pursuance of subsection (1) had been authorized by him under that 375 subsection shall be conclusive evidence that it had been so authorized, and such certificate shall be admissible in evidence without proof of signature thereof.

No person shall be under any duty, obligation or liability, or be in any manner compelled, to disclose in any 380 proceedings the procedure, method, manner or means, or any matter related thereto, of anything done under paragraph (1)(a), (b) or (c).

For the purpose of this section, "postal article" has 385 the same meaning as in the Postal Services Act (Underline emphasised) [20]. Under subsection (4) referred to above, a certificate by the Public Prosecutor or authorised Commissioner is conclusive proof 390 that the interception was lawfully authorised. If no such certificate is produced, the Prosecution fails to establish the legality and authenticity of the interception. Therefore, any recording, transcript, or communication obtained becomes inadmissible as it is not shown to have been lawfully authorised. The courts have held that this defect 395 goes to the root of admissibility, rendering the evidence unreliable and unsafe to rely upon for conviction. [21]. In the present case, no such certificate was produced by the Prosecution. While the Prosecution contends that the omission is not fatal, as credible testimony from SP1, SP9, and SP11 suffices to 400 establish the integrity and authenticity of the recordings, this court disagrees with the Prosecution contention in this respect. The absence of the Section 43(4) certificate constitutes not merely a procedural irregularity, but a substantive legal defect. The statutory language in Section 43(4) is clear and imperative. As affirmed by the 405 Court of Appeal in PP v Zul bin Hassan [2013] 5 MLRA 567, when a statute provides a specific regime governing admissibility, compliance is mandatory and common law principles cannot be invoked to circumvent it. The court in Zul Hassan (supra) expressly rejected reliance on Section 3(1) of the Civil Law Act 1956 or 410 principles of common law, where Parliament has codified a statutory safeguard, such as Section 43(4) of MACC Act 2009. It must be noted that in Zul Hassan (supra) the Court Appeal referred to failure to produce the certificate under Section 39(4) of the ACA 1997 (which Act is repealed by MACC Act 2009 and same provision is 415 found in section 43(4) of the MACC 2009) and stated such failure is fatal to the P where the Court of Appeal expressly stated so is reproduced here: [34] Mengikut rekod rayuan, pihak pendakwa telah memintas dan merakamkan beberapa perbualan telefon 420 dan telah mengemukakan rekod-rekod tersebut sebagai eksh P65A, P66A, P67A, P69A, P70A dan P71A dan P87A. Transkripnya pula telah dikemukakan sebagai ekshs P65B, P66B, P67B, P69B, P70B, P71B dan P87B. Ekshibit-ekshibit tersebut, jika diterima masuk sebagai keterangan, 425 tidak syak lagi akan menjadi keterangan yang penting bagi pihak pendakwaan membuktikan pembabitan responden-responden dengan perbuatan rasuah seperti yang dipertuduhkan terhadap mereka. [35] Malangnya, tiada perakuan yang ditandatangani oleh 430 pendakwa raya seperti diperuntukkan di bawah s 39(4)Akta 575 dikemukakan berhubung dengan eksibit-eksibit tersebut. Timbalan pendakwa raya terpelajar tidak mempertikaikan fakta mengenai ketiadaan perakuan tersebut tetapi berhujah bahawa eksibit-eksibit tersebut 435 boleh diterima masuk di bawah prinsip undang-undang lazim Bagi menyokong hujah beliau, timbalan pendakwa raya merujuk kepada kes-kes Kuruma Son of Kaniu v The Queen [1955] AC 197, Mohd Ali Jaafar v Public Prosecutor [1998] 4 MLJ 210; [1998] 4 CLJ 440 Supp 208 dan Ng Yiu Kwok and Ors v Public Prosecutor [1989] 3 MLJ 166 (MA). [36] Kami bersetuju dengan keputusan PK bahawa prinsip-prinsip undang-undang lazim adalah tidak terpakai dalam kes ini kerana kebolehterimaan masuk ekshibit-ekshibit 445 tersebut sebagai keterangan adalah dengan jelas dikawal oleh peruntukan statutori iaitu s 49 Akta. [37] Adalah menjadi undang-undang mantap bahawa mahkamah tidak boleh mengimport prinsip-prinsip undang-undang lazim dari bidang kuasa lain 450 sekiranya telah sedia terdapat peruntukan statutori khusus mengenainya. Dalam kes Raphael Pura v Insas Bhd & Ors [2003] 1 MLJ 513; [2003] 1 CLJ 61, Abdul Hamid Mohamad HMP (sebagaimana beliau ketika itu) berkata di ms 88: 455 In my view, this court is bound by the provisions of our own rules and not that of any other country. Furthermore, this court too should be careful and slow to adopt the decisions of the courts in other countries, even on 460 the basis that it forms parts of the common law of England, which on this point, it is not. Particular attention must be paid to the written law of this country. In other words, the provisions of s 3(1) of the Civil Law Act 1956, must always be borne in mind. 465 [38] Pada pandangan kami, sekiranya undang-undang telah membuat peruntukan khusus mengenai kebolehterimaan masuk sesuatu keterangan, peruntukan tersebut hendaklah dipatuhi sepenuhnya. Justeru, mahkamah tidak boleh bergantung kepada peruntukan 470 undang-undang lain, termasuklah undang-undang lazim [39] Kami bersetuju dengan pemerhatian yang dibuat oleh PK bahawa rakaman video yang ditanda sebagai eksh P54A, P55A, P56A, P57A, P58A,[2013] 5 MLJ 489 at 475 504P59A, P60A, P61A, P62A, P63A dan P64A tidak boleh diberi pertimbangan atas alasan-alasan yang berikut:

hole dan telefon bimbit di mana rakaman dibuat tidak dikemukakan di mahkamah bagi memastikan peralatan tersebut berada dalam keadaan baik;

kualiti rakaman adalah tidak memuaskan di mana beberapa gambar dan beberapa bahagian perbualan tertentu yang dirakamkan tidak boleh dilihat atau didengar;

beberapa bahagian perbualan yang dirakamkan tidak jelas atau tidak boleh difaham; dan 485

tiada transkrip rakaman perbualan disedia dan/atau dibuat oleh pihak pendakwaan untuk dikemukakan di mahkamah. [40] Dalam hal keadaan di mana rakaman gambar dan perbualan hilang dan tidak lengkap; tidak syak lagi terdapat 490 kemungkinan yang keterangan tersebut adalah tidak tepat dan gambar yang dilihat dan perbualan yang didengar tidak boleh memberi gambaran sebenar mengenai apa yang berlaku. Ia juga boleh mengelirukan. [41] Dalam kes Ram Singh v Col Ram Singh AIR 1986 SC 495 3, syarat-syarat berikut telah dinyatakan oleh Mahkamah Agung India untuk membolehkan sesuatu rakaman perbualan diterima masuk sebagai keterangan:

the voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. 500 Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.

The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory 505 evidence direct or circumstantial.

Every possibility of tempering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

The statement must be relevant according to the rules of Evidence Act.

The recorded cassette must be carefully sealed and kept in safe or official custody.

The voice of the speaker should be clearly audible 515 and not lost or distorted by other sounds or disturbance. [42] Pendekatan yang sama telah diambil oleh mahkamah di Malaysia, dalam kes Mohd Ali Jaafar v Public Prosecutor [1998] 4 MLJ 210; [1998] 4 CLJ Supp 208, apabila Hakim Augustine Paul (sebagaimana beliau ketika 520 itu) telah menggariskan prosedur yang perlu diikuti sebelum sesuatu rakaman gambar dan/atau perbualan boleh diterima masuk sebagai keterangan. Prosedur tersebut telah diringkaskan seperti berikut di ms 226 (MLJ); 222 223 (CLJ):

(a)the tape was run through and found to be clean before the recording was made;

(b)the machine was in proper working order;

(c)the tape was not tampered with or altered in any way it should be established in whose possession the tape was 530 at all times;

(d)the officers (or other witnesses) played the tape over after making the recording and heard voices which they can identify;

(e)a transcript was prepared of the voices; if it was just taken 535 down in shorthand and the typed transcript prepared from the shorthand notes then the notes should be saved;

(f)the officers (or other witnesses) played over the recording and checked it with the transcript as to the identity of the voices and as to the conversation. 540 [22]. Zul Hassan (supra) is distinguishable on the basis that it concerned telephone interceptions is misplaced. The core principle emerging from that case is that statutory preconditions to admissibility under Section 43 of the 545 MACC Act 2009 cannot be circumvented. That principle applies equally to all forms of electronic or digital recordings obtained covertly in the course of an investigation, whether they are audio, video, or audio-visual. The distinction drawn in Azahar Haji Abdul Aziz v PP [2019] 1 LNS 2032 550 Section 43 of the MACC Act may be open to question, as it appears to narrow the statutory language in a manner that may not fully reflect the broader legislative intention behind the safeguards in Section 43. [23]. Section 43(1)(c) 555 in subsection (4) it mandates a certificate from the Public Prosecutor or a duly authorised Commissioner to ensure the lawfulness and integrity of such evidence. The safeguard applies to covert recordings, regardless of whether the recording was initiated or 560 otherwise. This court holds that Section 43 is directly applicable to the present case. The case of Zul Hassan (supra) affirms that admissibility hinges on strict procedural compliance with Section 43(4). The use of CCTV, video, or pinhole instead of telephone interception of calls cannot be a loophole to bypass the mandatory 565 certification requirement. If the video recording captures a conversation, then by substance, it constitutes an interception within the meaning of Section 43. Any contrary interpretation undermines the safeguard's objective, to ensure fairness and prevent abuse in Azahar 570 Haji Abdul Aziz (supra) does not cure the failure to comply with Section 43, and the impugned recordings are inadmissible. [24]. Given that the recordings were critical in establishing both the actus reus and mens rea of the charges, the failure to comply with Section 43(4) leaves a significant evidentiary gap in the case of the 575 Prosecution. In a criminal trial, particularly one involving anti-corruption laws where covert methods are deployed, statutory safeguards are designed to ensure transparency and fairness. [25]. This court finds that the learned Sessions Judge erred in law by admitting the recordings without a valid certificate under Section 580 43(4). Accordingly, the impugned recordings and their associated transcripts must be excluded from evidentiary consideration. The absence of this crucial evidence materially affects the integrity of the conviction and warrants appellate intervention. 2nd Grounds: Non-Preparation of Recovery Memo under Section 585 33 of the MACC Act 2009 in the charge against 1st and 2nd appellants for offence under Section 17(a) of the MACC Act 2009 [26]. This c concerning the non-preparation of a recovery memo in respect of the RM7,000.00 allegedly received by the 1st appellant during the first 590 trap operation. The Defence contends that the failure to document this recovery under Section 33 of the MACC Act is a critical omission that renders the Prosecution's case fatally defective, particularly as the marked tainted money forms the core evidential link between the gratification and the accused. 595 [27]. The Prosecution submits that the entire trap operation constituted a single, continuous and coordinated transaction, which concluded only upon the recovery of the RM7,000 trap money from the 2nd appellant. In this view, the initial solicitation, subsequent meetings, and final seizure were steps in a composite sting operation. 600 The Prosecution seeks to rely on oral testimony and video recordings to bridge the evidentiary chain and infer the prior transfer of the marked money from the 1st appellant to the 2nd appellant. However, this court is of the view that such inferential reasoning cannot substitute the requirement for strict proof of each element of the 605 charge. The omission is not a trivial procedural lapse, it goes against the requirement of a chain of evidence necessary to establish possession and recovery under Section 33 of the MACC Act 2009. In the Federal Court case of Sia Soon Suan v PP [1966] 1 MLJ 116; [1965] CLJU 165; [1965] 1 MLRA 32, Justice Ong Hock Thye FJ had 610 to say at p 118 the following: the requirements of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether the court is otherwise convinced in his own mind of the guilt or innocence of an 615 accused, its decision must be based on the evidence adduced and nothing else [28]. In corruption cases, particularly those involving trap operations, I hold that the law demands strict proof of receipt. 620 [29]. In Mohan Singh v. State Of Rajasthan 1987 LawSuit(Raj) 188; 1987(2)WLN33, involving a corruption case, the High Court of Rajasthan had, after careful study of the cases referred to, ventured to state:

From a careful study of the aforesaid cases it is borne 625 out that emphasis has been given on fairness of the investigation. It must be such which inspires the confidence and to judge the same. The evidence has to be scanned and weighed thoroughly and in doing so the documents prepared on the spot play an important part and all such documents 630 must be placed before the Court. If no documents are prepared the cogent and convincing explanation must be furnished.

It is, therefore, essential that prosecution so long as possible must produce documentary evidence to 635 substantiate the recovery of tainted notes. The full and complete procedure must be followed that is when the numbers of notes are taken down and initials done before the notes are handed over to the decoy for passing the same over to the accused and then the recovery is made after the 640 trap. It is bounden duty of Investigating Officer to tally the numbers and check his initials thereafter he must prepare a memo in this respect and seal the notes recovered. This memo so prepared should contain the numbers of the notes recovered and fact about their sealing and the impressions 645 of the seals. The purpose of this all is to ensure fair investigation and is a check for subsequent mischief. Similarly, hand wash should be sealed, its memo prepared with seal impression. In all the cases it is, therefore, essential to prepare the recovery/ seizure memos and if 650 such memos are not available that prosecution story normally be not accepted on the face value unless prosecution has offered an explanation which is cogent, convincing and plausible. The explanation has to contain reasons which may be for example, where documents are 655 prepared but they are snatched and tern off by the miscreants to favour accused, there may be cases after filing the same, they are removed from the record, there may be cases that inadvertantly some part of it is left to be written etc. In absence of documentary evidence there must be 660 unimpeachable oral evidence to substantiate prosecution case then alone the evidence must be accepted. In fact we do not consider it to be such a questions of law which can be answered on a reference to larger bench. Each case has to be decided on the evidence tendered. No hard and fast 665 rule can be laid down while considering the quality of evidence. Due weight has to be given to all the surrounding circumstances and preparation of documents is one of the circumstances to corroborate the oral testimony. It can be held that in all circumstances the accused is entitled to be 670 acquitted if memos are not prepared. We have set out some of general principle and do not think that the question requires to be answered one way or the other. [30]. Basically, in Mohan Singh v. State of Rajasthan (supra), 675 the court expressed its view that in corruption cases, the Prosecution must produce proper recovery memos and documentation of tainted money; without proof of these, the case may fail unless there is a convincing explanation for the absence of those documents. [31]. The evidential bar is not relaxed even where guilt appears 680 probable, for conviction must rest on proof, not presumption. Moreover, this court finds that the learned trial judge erred in admitting the video recordings without a valid certificate under Section 43(4) of the MACC Act 2009. That finding further weakens the P reliance on the video footage as corroborative evidence to bridge the 685 omission under Section 33. The net result of it is that the P documentation or legally admissible audio-visual evidence, thereby failing to prove the element of receipt beyond a reasonable doubt. In the present case, not only did the Prosecution fail to produce a 690 recovery memo that could potentially corroborate the audio-visual evidence, but unfortunately, the audio-visual evidence itself is impugned because it lacks a valid certificate under Section 43(4). Therefore, on all scores the Prosecution has failed to discharge the burden of proving the receipt of gratification beyond a reasonable 695 doubt, and the learned Sessions Court Judge fell into serious error in finding otherwise. [32]. The chain of evidence must be clearly and independently established for each accused, particularly where the charge relates to a separate and distinct receipt. In this case, the RM7,000.00 was 700 alleged to have been received solely by the 1st appellant, not jointly with the 2nd appellant. The omission to prepare a recovery memo at the point of arrest undermines the verifiability of when, where, and how the marked notes were recovered from the 1st appellant. The assertion that the same money was later found on the 2nd appellant 705 cannot retrospectively validate the alleged recovery from the 1st appellant without independent corroboration. [33]. In the absence of any seizure list, recovery memo, physical verification, or acknowledgment by the 1st appellant and given the failure to provide the serial numbers and the impugned audio-visual 710 recording of cash being physically recovered directly from the 1st a this court finds that such omissions cannot be dismissed as mere procedural irregularities curable under Section 422 of the Criminal Procedure Code. These failures occasion real prejudice and injustice to the appellants. Furthermore, the omission constitutes 715 a breach of Section 64 of the Criminal Procedure Code, which provides: List of all things made to be seized and signed list of all things seized in the course of a search made under this Chapter and of the places in which they are 720 respectively found shall be prepared by the officer or other person making the search and signed by [34]. Furthermore, the failure to prepare a recovery memo constitutes a substantive evidentiary gap that breaks the chain of 725 Section 17(a) of the MACC Act unproven. [35]. Accordingly, the court accepts the a this issue and finds that the non-preparation of the recovery memo fatally undermines the P appellants, as 730 the benefit of the doubt must be given to them. Conviction under Section 16(a)(B) of the MACC Act 2009, read with Section 34 of the Penal Code [36]. This court accepts the a 735 Investigating Officer (PW19) lacked the necessary independence expected of an impartial and objective investigator. The evidence clearly shows that the Investigating Officer was directly involved in planning, briefing, and coordinating the entrapment operation that led to the arrest of both accused persons. Her admissions under cross- 740 examination, namely, her presence at the pre-operation briefing, her communication with the complainant during the operation, and her knowledge of the planning and execution of the trap, demonstrate that she was not an independent investigator, but an active and important participant in the events forming the subject matter of the charge. 745 [37]. This overlapping of roles fundamentally undermines the integrity of the investigation. As the Investigating Officer, she agreed, it is not reasonable for an officer to investigate a case in which they were operationally involved, as this creates a conflict of interest and 750 by the record. Her role extended to overseeing and real-time coordination, including knowledge of key operational details such as the use of marked money, the signal arrangements, and the movements of the complainant. 755 [38]. In corruption Prosecutions, where credibility and integrity of investigative processes are paramount, the role of an impartial investigating officer is not a procedural luxury afforded to the accused, it is a constitutional necessity that guarantees the liberty of a person. The assurance of an independent investigation is the cornerstone that 760 preserves public confidence and prevents tainted proceedings. [39]. The court finds that the learned Sessions Court Judge failed to evaluate the implications of Investigation Officer dual role properly. The failure to ensure a separate, uninvolved investigating officer taints the fairness of the investigation and the reliability of the 765 P appellate intervention. Ground 4: Delay in lodging report (P27) and omission to mention Solicitation [40]. The court finds merit in the appellant 770 delay in lodging the SPRM report (P27) and the omission to mention the alleged solicitation by the appellant therein raise a material doubt on the credibility of the complainant (SP3). It is trite that the First Information Report (FIR), although not substantive evidence, serves as the earliest account of the incident and is a relevant factor in 775 assessing witness reliability. [41]. As such, failure to mention a crucial fact, such as the , in the earliest report cannot be dismissed as a mere omission, especially where no reasonable explanation is given. 780 [42]. This concern is amplified by the holding in PP v Hassim bin [2012] 10 MLJ 741; [2013] 1 AMR 33; [2012] 1 LNS 595, where the court held bribe had seriously undermined their credibility. One witness, who was the direct victim of the alleged solicitation, was expected to make 785 a prompt complaint but failed to do so and gave no explanation. Another witness who lodged a report but experienced a two-week delay likewise did not explain the delay. This casts further doubt on the truth of the accusation. The court inferred that such conduct was inconsistent with genuine outrage or fear of corruption and suggested 790 the complaint may have been motivated by personal resentment or an ulterior motive rather than by actual wrongdoing of the accused. The relevant passage from the case is appended below: [221] if it was indeed true that the accused had solicited the bribe from PW7 two weeks earlier, it was incumbent on 795 PW7 to promptly lodge a report against the accused but he did not do it. He also failed to give any reason why he did not lodge the report himself and why PW11 had to lodge it. [222] PW11 also did not give any reason why it took him two weeks to lodge the report against the accused. He had 800 also testified that one of the reasons why he was afraid of the accused was that he frequented the night club and that the police would find fault with and arrest the patrons including him if they had no other work to do. Hence, he had an ulterior motive for lodging the report quite apart from what 805 he had alleged was told to him by PW7. [43]. The principle in Tengku Mahmood v PP [1974] 1 MLJ 110; [1973] CLJU 124, as explained by His Lordship Raja Azlan Shah FJ (later His Majesty YDPA), requires that the credibility of a complainant 810 be assessed against the whole of the evidence and the probabilities of the case, not merely on demeanour. Motive and delay are crucial factors. His Lordship cautioned that where allegations of corruption are easily made, a judge must guard against the possibility of 815 may be involved. A complaint, to carry weight, must therefore be made voluntarily and at the earliest opportunity, not after an undue lapse of time that invites suspicion of falsification. His Lordship Raja Azlan Shah FJ observed: The central question to be considered in this appeal is 820 whether on the record, as it stands, the learned president was right in accepting the complainant as a witness of truth. impression as to demeanour of a witness must be critically tested against the totality of his evidence. Now, the learned president, it is true, had a great advantage over this 825 court. He saw and heard the witness and I did not. But the demeanour is not always the touch-stone of truth. It is only one ingredient in arriving at a finding of credibility. But so also is motive. Although in cases of this kind it is not easy to get satisfactory evidence, one must not also lose sight of the 830 fact that at the same time it is indeed easy to a man in the position of the appellant. A man who was not successful before the Public Services Commission may have hurt his pride and hurt pride is a ferocious beast. It is for this reason that a judge of fact should always test the complainant's 835 evidence against the totality of his evidence and the probabilities of the case. Failure to do so does amount, in my view, to a misdirection, and if it can be demonstrated that the trial judge had failed to do that, his conclusion as to credibility, cannot, in justice, be regarded as impeachable, 840 much less unimpeachable. It would therefore be not just for an appellate court to regard itself as compelled to regard as conclusive his finding on the issue of credibility. The whole matter can be considered afresh. Further, the graver the issue involved, and particularly when an allegation of 845 corruption is in the air, the greater is the necessity for the appellate court to enquire whether the conclusion as to credibility is one that must under the law be regarded as, for all practical purposes, irrefragable. There are a number of grounds of appeal but the cumulative effect of those can 850 compendiously be put in one sentence; that the propriety of the case does not justify a conviction on the uncorroborated evidence of the (Continued at page 112) complaint can only be used as evidence of the 855 consistency of his conduct with the story told by him in court. In other words, it can only be used as evidence of credibility of his testimony to the alleged agreement but there are limits to its admission. It must be made voluntarily and at the earliest convenient moment. It must not be made after a long 860 lapse of 13 days as to allow fabrication. [44]. Applying these principles, the court finds that the unexplained delay in complaining and the omission to mention any demand of RM10,000 in the earliest report fatally weaken the P 865 The entire soliciting charge rests solely on uncorroborated testimony, which the court views with caution. The evidence shows that the raid conducted at KTV premises resulted in the arrest of several foreign women, causing substantial loss to his business and injury to pride. 870 His anger and motive to retaliate against the accused cannot be discounted . conduct in offering inducements to the authorities to protect his business borders on infamous conduct. His evidence was inconsistent and unreliable, showing apparent personal dislike and 875 bias against the accused, and therefore cannot be believed. The court therefore holds that the delay and omission are not mere procedural lapses but severe evidentiary defects striking at the very root of the P [45]. Further, this court also finds the failure to mention the demand 880 by the 1st appellant at the earliest opportunity, coupled with the absence of corroborative testimony or contemporaneous documentation, undermines credibility. The Prosecution argues that the omission does not affect the veracity of testimony in court. However, in view of the 885 decisions in Magendran Mohan v PP [2012] 5 MLRA 333; [2011] 1 CLJ 805; [2011] 6 MLJ 1 and Ramli Sutu v PP [1998] 5 CLJ 671; [1998] 3 MLRH 31, this court is reminded that the testimony of a trap witness, particularly one who is partisan or has a personal interest, must be approached with caution and cannot stand on its own in the 890 absence of independent corroboration. In Magendran Mohan (supra), His Lordship Alauddin Mohd Sheriff PCA stated: It is clear to us that from her testimony she was an interested witness with a grudge against the appellant and had a purpose of her own to serve. In our judgment her 895 evidence must be treated with caution and requires corroboration. [22] In Liow Siow Long v. PP [1969] 1 MLRH 577; [1970] 1 MLJ 40, Raja Azlan Shah J (as His Highness then was) had this to say (at p 41) in respect of interested witnesses: 900 Testimony of close relations is not tainted if it is otherwise reliable in the sense that the witnesses and competent witnesses who were at the scene of the occurrence and could have seen what had happened. But if it is proved that 905 they are not entirely disinterested witnesses eg, they are either partisans of the complainant or are in any way inimical to the accused, then their testimony is tainted and requires corroboration if to be acted upon. 910 [23] The same learned judge in Lim Boon San v. PP [1967] 1 MLRH 597; [1968] 2 MLJ 45 held that where a witness may be regarded as having a purpose of his own to serve, the judge must direct his mind on the danger of convicting on the uncorroborated evidence of such witness. In the instant 915 appeal before us we find that PW5 was undoubtedly hostile towards the appellant and we regret to say that there was no corroboration of such evidence by either PW8 (sister) or PW11 (mother). If we may add, the evidence of PW5, PW8 and PW11 were most inconsistent with one another. With 920 the greatest of respect to the High Court Judge and the judges of the COA we must say that they have failed to direct their minds on this point and for this reason we rule that there was a serious misdirection by way of non-direction which had occasioned a miscarriage of 925 [46]. In Ramli Sutu (supra) 671 at held no.2 it states: PW1 was a trap witness. A trap witness is an interested party and his evidence must be corroborated. A trap witness also cannot corroborate another trap witness. The learned 930 Sessions Court judge had failed to adequately warn herself of the danger of convicting on the uncorroborated evidence of a trap witness and this was a [47]. Furthermore, no credible explanation was provided by the 935 complainant for failing to name the appellant in his report, despite having alleged a demand for gratification, a central element of the offence of solicitation under Section 16(a)(B) of the MACC Act 2009. This omission deprives the Prosecution of crucial corroboration, rendering the charge of solicitation inherently unsafe. 940 [48]. Accordingly, this court finds that the learned Sessions Judge erred in relying on uncorroborated and incomplete testimony. The conviction based on evidence is unsafe and cannot stand. Ground 5: On the Misapplication of Section 50(1) of the MACC 945 Act 2009 [49]. This court has carefully considered the D Section 50(1) of the MACC Act 2009. The Defence argues, and this court agrees, that the learned Sessions Court Judge (LSJ) erred both 950 in law and in fact in invoking the presumption in the absence of proof of the essential fact, namely, the receipt of gratification by the appellants. [50]. The said section 50 (1) of the MACC Act 2009 provides: Section 50 Presumption in certain offences 955

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 960 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 965 inducement or a reward for or on account of the matters set out in the particulars of the offence, unless the contrary is proved. [51]. It is well settled that before the statutory presumption under 970 Section 50(1) can operate, the Prosecution must first prove, through admissible and credible evidence, that the accused actually received the alleged gratification. This is a foundational fact that must be established beyond a reasonable doubt. In this case, the Prosecution failed to do so. There was no contemporaneous record of recovery, 975 no recovery memo, and the video evidence was wrongly admitted without a valid certificate under Section 43(4) of the MACC Act. In such circumstances and with all the setbacks that were discussed above, it is abundantly clear that the basic fact of receipt is not proven to the requisite element of the charge against the appellants. 980 [52]. The learned Sessions Court Judge applied the presumption without meeting the required legal conditions. By doing so before proving that the accused actually received the money, the court wrongly shifted the burden of proof to the accused. [53]. Accordingly, this court finds that Section 50(1) of the MACC 985 Act 2009 was wrongly invoked. The legal and evidentiary prerequisites for its application were not met. The application of the presumption materially prejudiced the appellant and contributed to a miscarriage of justice. The conviction under the affected charge, therefore, cannot be sustained. 990 Sentence [54]. Though I find that the convictions of the appellants by the Sessions Court cannot be sustained and must accordingly be set aside, for the sake of completeness, I observe that the sentence of imprisonment and fine imposed by the Sessions Court was 995 reasonable and proportionate to the seriousness of the offence. It was not too harsh nor too lenient. The appellate courts seldom interfere with the exercise of discretion in sentencing merely due to disparity, unless there exists a compelling justification showing that the court failed to apply settled principles in sentencing. This position was aptly 1000 articulated by Raja Azlan Shah LP in Bhandulananda Jayatilake v. PP [1982] 1 MLJ 83; [1981] CLJU 139; : "That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in the same country to similar facts may sometimes 1005 reach different conclusions (see Jamieson v. Jamieson [1952] AC 525, 549). It is for that reason that some very conscientious judges have thought it their duty to visit particular crimes with exemplary sentences; whilst others equally conscientious have thought it their duty to view the 1010 same crimes with leniency. Therefore, sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere with sentences, and the possibility or even the probability, 1015 that another court would have imposed a different sentence is not sufficient, per se, to warrant this court's Conclusion [55]. Having carefully considered all grounds of appeal and the evidentiary shortcomings identified, this court finds that the 1020 convictions entered against both appellants under Section 17(a) and Section 16(a)(B) of the MACC Act 2009 are unsafe. The learned trial judge erred in both law and fact on multiple material points, including the admissibility of evidence and the misapplication of statutory presumptions. Accordingly, all three convictions and 1025 corresponding sentences are hereby set aside. Both appellants are acquitted and discharged of all charges. Bail is refunded, and any further orders are hereby vacated. [56]. intervention and shall accordingly be dismissed, irrespective of the 1030 on conviction. 1035 Dated : 11 November 2025 [MOSES SUSAYAN] JUDGE 1040 HIGH COURT IN MALAYA AT IPOH, PERAK Counsel: AA-42R(A)-4-10/2022 (Zaidi bin Dali v PP) 1045 AA-42R(A)-5-10/2022 (Zaidi bin Dali lv PP) For the Appellant: M Athimulan Advocates and Solicitors 1050 Messrs Athimulan & Co Penang For the Respondent: Maziyah binti Mansor 1055 Deputy Public Prosecutor Malaysian Anti-Corruption Commission Ipoh, Perak 1060 AA-42R(A)-6-10/2022 (Zulhairin bin Yahya v PP) AA-42R(A)-7-10/2022 (Zulhairin bin Yahya v PP) 1065 For the Appellant: Mohd Baharuddin bin Ahmad Kassim Advocates and Solicitors Messrs Bahar Rusnan & Associates Petaling Jaya, Selangor 1070 For the Respondent: Maziyah binti Mansor Deputy Public Prosecutor Malaysian Anti-Corruption Commission 1075 Ipoh, Perak Headnotes: CRIMINAL LAW: Corruption Solicitation and receipt of gratification Public officers demanding bribes to avoid enforcement raids 1080 Surveillance recordings and trap money Whether elements of offence under ss 16(a)(B) and 17(a) MACC Act established Whether statutory presumption under s 50 MACC Act properly invoked Whether video evidence inadmissible for lack of compliance with statutory requirements under s 43(4) MACC Act Whether non- 1085 preparation of recovery memo fatal to prosecution Whether investigating officer lacked independence Delay in filing complaint and failure to mention solicitation Whether failure to produce recovery memo and interception certificate under renders conviction unsafe Whether trial judge erred in law 1090