IN THE HIGH COURT OF MALAYA IN SHAH ALAM
CRIMINAL APPEAL CASE NO: 42A-10-2004; 42A-18-2004
(Appeal from Petaling Jaya Sessions Court Case No: 61-2-1998)
BETWEEN
PUBLIC PROSECUTOR
APPELLANT
AND
CHETTUVELLU A/L NANI
RESPONDENT
GROUNDS OF JUDGMENT
On 29th May 2009, I had allowed the cross appeal of the accused whereby I had set
aside the Sessions Court Judge’s finding of guilt on the 3 rd charge against the
accused and the sentence of 6 months imprisonment and fine of RM10,000.00 in
default imprisonment for 5 months. The accused was initially charged in the
Sessions Court for two charges for the offence of corruptly soliciting gratification
as an inducement to do or forbear from doing anything regarding a transaction
under Section 10(a) (aa) of the Anti Corruption Act 1997 punishable under Section
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16 of the same Act and for the offence in giving or accepting gratification by agent
under Section 11 (a) of the Anti Corruption Act 1997 punishable under Section 16
of the same Act. On 24th February 2004, the learned Sessions Court judge had
acquitted and discharged the accused for the two charges under Section 10 (a) (aa)
of the Anti Corruption Act 1997 to which the prosecution is appealing against said
decision. The appeal by the public prosecutor was dismissed by the previous
presiding judge on 15 August 2007. The prosecution did not file any appeal to the
Court of Appeal against the dismissal of the appeal against the first and second
charges by the previous presiding judge.
On 31st March 2004, the learned Sessions Court judge convicted the accused for
the third charge under Section 11 (a) of the Anti Corruption Act 1997 and
sentenced the accused to 6 months imprisonment from the date of decision and
imposed a fine of RM10,000.00 in default 5 months imprisonment. The accused
had filed a notice of cross appeal against the conviction and sentence under Section
11 (a) of the Anti Corruption Act 1997.
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Summary of the Sessions Court judge’s judgment
The 1st and 2nd charges under Section 10(a) (aa) of the Anti Corruption Act 1997
For ease of reference, I would briefly lay down the rationale of the Sessions Court
judge’s decision in relation to the acquittal and discharge of the accused for the
first and second charges under Section 10(a) (aa) of the Anti Corruption Act 1997.
The Sessions Court judge had found at the end of the prosecution case that the
prosecution had failed to prove a prima facie case for the two charges under
Section 10(a) (aa) of the Anti Corruption Act 1997. For the first charge, the
accused was alleged to have corruptly demanded for money from 2 witnesses SP7
and SP8 as an inducement to assist the release of SP5 and SP6 who were remanded
for the suspicion of being drug addicts. In her grounds of judgment, the Sessions
Court judge found as a fact that SP5 was released by police bail on 3.2.1998 and
during the release no payments were paid to the accused. SP5 was released on
police bail whilst awaiting the results of his urine test which the Sessions Court
judge held as being a normal procedure for the Petaling Jaya Narcotics Unit (See
page 649 Volume 2 of the Record of Appeal). SP5 was found to have made a
report to the Anti Corruption Agency on 24.2.1998, which was 1 month later and
this delay was unexplained in court. The Sessions Court judge also identified
certain discrepancies. Firstly, SP5’s report to the Anti Corruption Agency (Exhibit
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P10) was contradictory to his testimony. In exhibit P10, SP5 reported that he was
arrested on 3.2.1998 and was released on police bail on 17.2.1998. In actual fact,
SP5 was arrested on 24.1.1998 by 5 police personnel and was released on police
bail on 3.2.1998. In his testimony, SP5 testified that the accused had demanded for
RM2,000.00 in order to assist SP5 in the event his urine test came back as positive.
However, in exhibit P10, SP5 reported that the demand for RM2,000.00 was to
avoid an action to be taken in court. Secondly, SP8 testified that on 26.1.1998, SP8
and SP7 had met the accused at the Damansara police station. SP8 testified that the
accused had demanded for RM2,000.00 to facilitate the release of SP6 and that the
payment was for other officers who will be assisting SP8 and SP7. However, SP8
did not make any payments to the accused and SP6 was later released in February
1998. SP8 also did not lodge any police report or to the Anti Corruption Agency
regarding the alleged corrupt demand for money by the accused. Thirdly, the
reasons for the accused demanding for the monies as testified by SP5, SP7 and SP8
were different. Based on these reasons and discrepancies, the Sessions Court judge
found that the ingredients for the first charge were not proven prima facie.
As for the second charge, the accused was alleged to have corruptly demanded
money from SP5, SP6, SP9 and one Sathiya Seelan a/l Munusamy. SP5 had
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testified that he did not make any payments to the accused upon being released
from police bail on 3.2.1998. The testimony of SP6 also did not show that there
was any corrupt demand for money from the accused. In fact, the Sessions Court
judge made a finding of fact that SP6 was released from police bail on 2.2.1998
without making any payments to the accused. SP8 was the guarantor for SP6.
Similar findings of facts were made by the Sessions Court judge regarding SP9. As
for Sathiya Seelan a/l Munusamy, this person was never called to testify by the
prosecution. The Sessions Court judge’s conclusion is that SP5, SP6, SP9 and the
said Sathiya Seelan a/l Munusamy were all released on police bail pending the
result of their urine tests in accordance to the standard practice at the Petaling Jaya
Narcotics Unit. As such, there was no evidence that they were released early
because they had paid the accused the monies as alleged. Based on these reasons,
the Sessions Court judge had found that there was no prima facie case against the
accused for the second charge and therefore acquitted and discharged the accused
for the second charge.
The 3rd charge under Section 11 (a) of the Anti Corruption Act 1997
In the present appeal, the accused was initially charged for accepting RM500.00 in
his capacity as a government agent from SP7 as payment for refraining from
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performing his official duty viz. refraining from taking criminal action against SP5.
The Sessions Court judge found that the first ingredient i.e. that the accused is a
government agent was proven from the testimony of SP1. As for the second
ingredient of accepting gratification as an agent, the Sessions Court judge found
that it was proven based on the fact that the accused was arrested whilst attempting
to escape arrest on 26.1.1998. The accused had gone to a restaurant on said date to
meet with SP5 and SP7 in order to receive RM500.00. The accused was chased by
SP12 (an officer of the ACA), SP10 and SP11. During the chase, the accused was
seen to have thrown the monies. The accused was seen to have taken the
RM500.00 from a seat on which SP7 had placed the monies. The entire operation
culminating in the arrest of the accused was a trap set up by the Anti Corruption
Agency with the assistance of SP5 and SP7. As for the third ingredient i.e. that the
accused received the monies as an inducement to omit from performing his official
duty, the Sessions Court judge found that there was a prima facie case against the
accused. The Sessions Court judge held that there was no legal reason for the
accused to have received the RM500.00 but for the reason as alleged viz. that it
was aimed as an inducement for the accused to refrain from performing his official
duty i.e. to refrain from taking criminal action against SP5.
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The accused was called to enter his defence. The accused had testified that he had
gone to the restaurant on 26.1.1998 to meet with SP7 and SP5 upon the telephone
request from SP7. The objective was to advise SP5. Prior to the meeting, the
accused was getting ready to deliver certain case material (‘barang kes’) to the
Petaling Jaya Court. SP7 and SP5 had asked the accused to have drinks with them
at the restaurant. SP5 and SP7 had then left the restaurant after the accused had
finished talking to SP5. It was then that a Malay man approached the accused and
introduced himself as an ACA officer. There was an ensuing struggle between the
accused and about 4-5 alleged ACA officers. During the struggle, the men had
confiscated an envelope which the accused claimed to be the case material
(‘barang kes’). The accused testified that he had no knowledge of any monies. The
accused did not pick up the monies that were strewn on the roadside for fear that
his fingerprints would be on the notes. The Sessions Court judge did not accept the
version forwarded by the accused as reasonable. The said judge found that the
reason the accused attempted to evade arrest was due to fear and guilt of being
caught receiving the RM500.00 from SP7 and SP5. Based on these reasons, the
accused was convicted and sentenced for the third charge under Section 11 (a) of
the Anti Corruption Act 1997.
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Arguments for and against the present appeal
The defence counsel argued that SP5 and SP7 should not be accepted as credible
witnesses because both could not testify that the accused had committed the acts to
prove the ingredients of the first and second charges. The testimony of SP5 and
SP7 were all related to the first and second charges and not to the third charge. As
such, the Sessions Court judge should not have considered the questionable
testimony of SP5 and SP7 in convicting and sentencing the accused for the third
charge. The defence counsel then referred to the following authorities – Section 54
of the Evidence Act, Saludin bin Surif v. PP [1997] 3 MLJ 317 and Kiew Foo Mui
& Ors v. PP [1995] 3 MLJ 305.
The prosecution argued that in essence the Sessions Court judge’s decision in
acquitting and discharging the accused from the first and second charges were
based on the reason that the judge found the credibility of 2 of the main witnesses
for the prosecution i.e. SP5 and SP7 as wanting. However, the prosecution argued
that such a finding did not detract the judge from considering the credibility of the
testimony of SP5 and SP7 in convicting the accused for the third charge. In support
of the arguments, the prosecution relied on the cases of inter alia Mohamed
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Mokhtar v. PP [1972] MLJ 122, Lim Guan Eng v. PP & Other Appeals [1998] 3
CLJ 769 and PP v. Fernandes [2009] 7 MLJ 1.
Findings of this Court
After a minute reading and consideration of the record of appeal, I find that the
Sessions Court judge had erred in calling for the defence for the third charge under
Section 11 (a) of the Anti Corruption Act 1997. The two charges under Section
10(a) (aa) of the Anti Corruption Act 1997 and the third charge under Section 11
(a) of the Anti Corruption Act 1997 center around 2 main prosecution witnesses
i.e. SP5 and SP7 and are part of the same series of transaction. I agree with the
argument of the prosecution that in essence, the Sessions Court judge had acquitted
and discharged the accused on the first and second charges because she found the
credibility of the witnesses to be unworthy. To this effect based on the testimony of
SP5 and SP7, I find that the Sessions Court judge had made a correct finding
regarding the credibility of SP5 and SP7. Therefore, the Sessions Court judge
should not have accepted the testimony of SP5 and SP7 as worthy of consideration
for the third charge because the testimony of these 2 witnesses were found wanting
for the first and second charges. I would pause here to reiterate principles from the
following decisions to which I have taken guidance.
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In Khoo Cheng Huat v. PP [1991] 1 MLJ 42 at 45 His Lordship Edgar Joseph Jr J
held that –
“The question of critical substance therefore was whether, having regard to the
particular circumstances of this case, the learned president was right in convicting
the appellant of the charge of acceptance, having acquitted him of the charge of
soliciting, the very sum he had allegedly accepted – an acquittal against which the
prosecution had not appealed and the correctness of which they were bound to
accept. The maxim ‘res judicata pro veritate acceptur’ is no less applicable to
criminal than to civil cases.
It is trite law that an appellant may have his conviction quashed on the ground that
the verdict against him was inconsistent with his acquittal on another count, if it
can be demonstrated that the inconsistency is such that it would not be safe to
allow the verdict to stand.
So, the question arises, is it safe to allow the conviction of the appellant upon the
charge of accepting to stand having regard to his acquittal on the charge of
soliciting?
Now, as regards the charge of soliciting, of which the appellant was acquitted, he
was entitled to be taken as an innocent man. As was well put by Bruce J at p 349 in
R v. Plummer:
‘I think it is a very dangerous principle to adopt to regard a verdict of
acquittal as not fully establishing the innocence of the person to whom it
relates’.
It was therefore most material for the learned president to have recognized – but
clearly she did not – that the appellant having been acquitted on the charge of
soliciting, he was entitled to be taken as innocent on that charge. The learned
president should then have gone on to warn herself – but clearly again she did not
– that as no reliance could be placed on those parts of the evidence of the
complainant and his wife which related to the charge of soliciting, of which he had
to be taken as an innocent person, she had to consider to what extent she could
rely upon those parts of the evidence of these witnesses in so far as it related to the
charge of accepting.
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His Lordship then continued on the same page but at the second column that – “In
such a situation, bearing in mind that the alleged act of soliciting and that of
accepting were so intermingled as to make it impossible to separate them, and they
depended for their proof upon the same witnesses, that testimony should in all
fairness, have been rejected in its entirety. As Spencer-Wilkinson J said when
speaking for our then Court of Appeal, in Goh Ah Yew v PP:
‘A witness cannot be regarded as a split personality who is regarded as
worthy of credit at one moment and untrustworthy at another.’
In omitting therefore, to direct herself as aforesaid, and in consequence, in
omitting to reject the testimony of the complainant and his wife in its entirety, the
learned president had misdirected herself seriously, on the facts, and on this
ground alone the conviction cannot stand.”
Secondly, the case of Goh Ah Yew v. PP (1949) 15 MLJ 150 at page 153 where it
was held that “A witness cannot be regarded as a split personality who is worthy of
credit at one moment and unworthy of credit at the next.”
The Sessions Court judge had found that SP5 was released on police bail pending
the result of his urine test and not because the accused was paid RM2,000.00 from
representatives of SP5, one of whom is SP7 for the early release of SP5 from
police custody. SP7 was one of the witnesses whose testimony was heard by the
Sessions Court judge for the first charge while SP5 had given testimony for the
second charge. The Sessions Court judge did not directly allude to the finding that
she found the credibility of SP5 and SP7 as unworthy in her grounds. But, I find
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that that is the inference from her acquittal and discharge of the accused from the
first and second charges. If it were otherwise, if the Sessions Court judge had
accepted the testimony of SP5 and SP7, who were material witnesses in order for
the prosecution to prove on a prima facie basis the ingredients of the first and
second charges, the accused would have been convicted and sentenced
accordingly. This was not the case.
As for the third charge, it was a trap that was set up at the behest of the Anti
Corruption Agency with the participation of the 2 main prosecution witnesses i.e.
SP5 and SP7. Both witnesses admitted that it was the Anti Corruption Agency who
had orchestrated the entire trap operation that culminated in the arrest of the
accused. It was not initiated by the accused. Furthermore, SP7 testified that he did
not know whether the man with whom he spoke with on the telephone was the
accused as the first time he met the accused was at the restaurant on 26.1.1998.
SP7 also testified that upon placing the RM500.00 on the seat at the table where he
was seated, he had left the table and had no knowledge as to what the accused did
with the envelope containing the money.
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At first brush, it would seem that the first and second charges were not part of a
same transaction as the events of the third charge. In my judgment, all three
charges are inter-related and involved the testimony of SP5 and SP7. If the
Sessions Court judge had rejected the testimony of these witnesses for the first and
second charges, then it follows that the testimony of these witnesses could not be
given full consideration for the conviction of the accused for the third charge.
Before delivering the decision of this court, there arose another consideration
whether an order for a retrial would be appropriate in the circumstances. It is
pertinent to note that the Sessions Court judge was not the presiding judge having
the opportunity to hear the testimony of the witnesses during the prosecution stage.
The Sessions Court judge only had the opportunity to hear the submission at the
end of the prosecution’s case before delivering her judgment. The case was first
fixed for mention in the Sessions Court on 2.12.1998. The hearing was completed
on 31.3.2004 after several postponements and changes as to the presiding Sessions
Court judge. It took almost 5 ½ years for the accused to receive the decision as to
the 3 charges. Therefore, I find that this is not a proper case for an order for a retrial.
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Based on the above reasons, I am allowing the appellant’s appeal. The finding of
guilt on the 3rd charge under Section 11 (a) of the Anti Corruption Act 1997 against
the accused and the sentence for imprisonment of 6 months and fine of
RM10,000.00 in default 5 months imprisonment are hereby set aside.
13th August 2009
YA Tuan Haji Mohd Yazid b. Hj. Mustafa
Judicial Commissioner
Shah Alam High Court (Jenayah 4)
Pendakwa Raya
Kamar Peguam Negara
Aras 7, Blok C3
Pusat Pentadbiran Kerajaan Persekutuan
62502 Putrajaya
Tetuan Athimulan & Co.
Peguambela & Peguamcara
Suite 1B Tingkat 1
No. 10 Bishop Street
10200 Pulau Pinang.
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