MRVS - Whether the prosecution has proved its case against the accused beyond reasonable doubt on all the evidence adduced

WHETHER THE PROSECUTION HAS PROVED ITS CASE AGAINST THE ACCUSED BEYOND REASONABLE DOUBT ON ALL THE EVIDENCE ADDUCED

I shall approach this part of the judgment on the same basis that I did at the close of the case for the prosecution by specific reference to the ingredients to be proved.

(a) MEMBER OF THE ADMINISTRATION

The prima facie evidence adduced by the prosecution to show that the accused was a Member of the administration, to wit, Deputy Prime Minister and Minister of Finance at the material time was not disputed by the Defence. As a matter of fact the accused himself said in his evidence that he was the Minister of Finance from 1991 and Deputy Prime Minister from 1993 and that he held both the posts till his dismissal on 2 September 1998.

Thus the prosecution has proved beyond reasonable doubt that the accused was Deputy Prime Minister and Minister of Finance and, thus, a Member of the administration at the material time within the meaning of Section 2(2) of Ordinance No 22.

(b) WHILE BEING SUCH MEMBER COMMITS A CORRUPT PRACTICE

As I said earlier this ingredient involves proof of two elements by the prosecution. They are:-

(i) the manner in which the accused used his position, and

(ii) the advantage that he obtained.

As I have referred to the evidence adduced at the end of the case for the prosecution with regard to this ingredient earlier I do not think it necessary to reproduce it here. I shall now consider the evidence adduced by the Defence so as to decide, on the whole of the evidence, whether the prosecution has proved this ingredient beyond reasonable doubt. I shall do so by reference to the two elements separately.

(i) The manner in which the accused used his position

As I did at the close of the case for the prosecution I shall consider the evidence relating to the manner in which the accused used his position in relation to all four charges together under the following sub-headings:

(1) Whether Azizan and Ummi made the allegations against the accused

The accused, in his evidence, did not challenge the fact that the allegations in Exhibit P14B and C were made by Ummi and Azizan. He said that Exhibit P14 was the first time that Ummi had made allegations against him. He said that when Exhibit P16 was lodged there was no suggestion by him nor Dato Mohd Said or Dato Amir Junus for the arrest of Ummi and Azizan. When they were arrested the accused was concerned that they should not be detained for long. He said that he also told Dato Mohd Said and Dato Amir Junus to "gempar" Ummi and Azizan "sikit-sikit cukuplah". On 17 August 1997 Dato Mohd Said and Dato Amir Junus informed the accused of the arrest of Ummi and Azizan. On the following night the accused was informed by Dato Mohd Said and Dato Amir Junus

" … that Azizan had regretted what he did, retracted the letter and wanted to apologise. Ummi, on the other hand, although she had also retracted the letter but did not suggest or propose to see me." On the night of 18 August 1997 Dato Mohd Said and Dato Amir Junus handed over Exhibits P17 and P18, the written statements of Ummi and Azizan, to the accused. By 27 August 1997 Exhibit P14A, B and C had become public knowledge. On that day Dato Mohd Said and Dato Amir Junus came to see him. As he said, "They considered several options, that is, either to suggest that Azizan and Ummi speak directly to the media or come up with a public statement. I had to remind them that because of the Prime Minister’s suggestion that I should completely ignore the issue of the allegations so I had to leave it to PW1 and PW11." On 29 August 1997 Exhibits P20 and P22, the public statements of Ummi and Azizan, and Exhibit P21, the covering letter of Ummi, were handed to the accused. Azmin said that these letters were handed to him by the accused to affix the Received Rubber Stamp on them. I pause to add that the accused did not say in his evidence that the allegations were not made by Ummi and Azizan. Thus his own evidence shows that he has accepted the fact that Exhibit P14B and C were allegations made by Ummi and Azizan respectively. The fact that Azizan signed Exhibit P14C was not challenged by the Defence in its case. My finding that Exhibits D55 and D90 were not voluntarily affirmed precludes me from giving any weight to these exhibits. Thus they do not affect the evidence of Ummi and Azizan on Exhibit P14B and C in any way. I must add that on the evidence adduced, particularly the unchallenged evidence of Ummi on Exhibits P38A — V and P35, there can be no dispute that the draft for Exhibit P14A, B and C were not prepared by Dato Seri Megat Junid but by none other than Ummi herself.

Be that as it may, the Defence attempted to lead another line of evidence through Azmin to show that Exhibit P14 was not written by Ummi. This is what Azmin said in answer to questions,

"Question : What did Ummi tell you on 26.6.1998 about P14?

Answer : Pada 26.6.1998 Ummi memberitahu saya bahawa beliau tidak menulis surat berkenaan.

Question : Where did she utter these words?

Answer : Di rumah abang saya Mohd Azman.

Question : That was the first time she brought this to your attention?

Answer : Ya.

Question : Did you have a subsequent meeting with her?

Answer : Saya bertemu dengan Ummi sekali lagi pada 30.6.1998 jam 1.20 petang.

Question : Where did you meet her?

Answer : Di pejabat Dato Sng Chee Hua.

Question : Did she repeat what she told you earlier?

Answer : Dalam pertemuan berkenaan Ummi sekali lagi menegaskan bahawa beliau tidak menulis surat berkenaan.

Question : How did she come about saying this a second time?

Answer : Walaupun Ummi telah memberi pengakuan bahawa beliau tidak menulis surat berkenaan pada 26.6.1998 saya terpaksa bertanya beliau sekali lagi kerana saya mengenali beliau yang selalu berbohong semasa bercakap.

Question : What did you ask her to prompt her to come up with this statement?

Answer : Saya bertanya kepada Ummi mengapa beliau sanggup melemparkan fitnah yang kejam terhadap saya dan keluarga serta Saudara Anwar sedemikian beliau sendiri tahu bahawa tuduhan-tuduhannya tidak berasas dan boleh meruntuhkan rumahtangga.

Question : What was her reply?

Answer : Beliau sekali lagi menegaskan beliau tidak menulis surat itu. Maka saya bertanya kepada beliau kalau beliau tidak menulis surat ini apakah peranannya? Pada saat ini Ummi menjawab that she was promised money and projects to fabricate evidence. …

Question : As regards P14 did Ummi tell you who drafted that letter?

Answer : Ummi memberitahu saya bahawa surat berkenaan didrafkan oleh Dato Megat Junid. Beliau juga memberitahu saya sekiranya saya bercadang untuk mengambil tindakan undang-undang saya patut mengambil tindakan terhadap Dato Megat Junid kerana beliau adalah dalang di belakang surat berkenaan."

If the object of the Defence is to show, by the introduction of this evidence, that Ummi is not the writer of Exhibit P14A, B and C then it is inconsistent with the evidence of the accused. In any event I shall consider the value of this evidence. The first observation to be made is that the conversation between Azmin and Ummi that allegedly took place on 26 June 1998 and 30 June 1998 ought to have been put to Ummi in her cross-examination. She was questioned about the meeting between her and Azmin on 26 June 1998. But it was not put to her that she did not write Exhibit P14A, B and C as now testified by Azmin. Instead she said that at that meeting she was asked to deny her allegations. No reference was made to her about the meeting of 30 June 1998. As the conversation that allegedly took place on both the dates regarding Exhibit P14A, B and C was not put to Ummi when she gave evidence she ought to have been recalled by the Defence for that purpose. In the circumsances the alleged conversation as described by Azmin becomes inadmissible on the principles laid down in Awadh v State of MP AIR 1956 SC 788. In any event it becomes suspicious when viewed against the background of the evidence of the accused himself on this issue and the prosecution evidence which I have considered earlier showing that the allegations in Exhibit P14B were made by Ummi. It is therefore clear that the evidence of Azmin that Ummi told him that she did not write Exhibit P14A, B and C is a recent invention.

The Defence submission that there is serious doubt that Exhibit P14B was prepared by Ummi as she did not sign it and that Exhibit P14A though signed, is only a covering letter, has no merit. A proper reading of Exhibit P14A will reveal that it refers to, inter alia, Exhibit P14B as being the report of Ummi. Thus there is no necessity for the report to be signed as it is an enclosure to a signed letter. The report therefore becomes that of Ummi’s. With regard to Exhibit P14C the Defence contended that the signature on it ought to have been verified by a document examiner to confirm the signature. In my opinion it is not necessary to do so. Verification by a document examiner is one mode of proving the signature. The best method of proving a signature on a document is by evidence of the person whose signature it is who had affixed the signature on it. Azizan has confirmed that the signature on Exhibit P14C is his. That evidence was not challenged. Thus there is no onus on the prosecution to look for other modes of proof.

It is therefore my finding that the Defence has not raised any reasonable doubt, on the whole of the evidence adduced, that Ummi and Azizan made the allegations. I therefore hold that this element has been proved beyond reasonable doubt.

Whether the accused directed Dato Mohd Said and Dato Amir Junus to obtain from Ummi and Azizan written statements addressed to YAB Prime Minister and public statements denying the allegations on the dates prescribed in the charges and that they obtained the statements as directed.

The central theme of the Defence case is that the accused only asked Dato Mohd Said and Dato Amir Junus to investigate into the allegations thoroughly and fully and that the written statements and public statements were obtained by them on their own. I shall now refer to the various features of the evidence adduced by the Defence in order to determine, on the whole of the evidence adduced, whether they have raised a reasonable doubt in the prosecution case that the accused had directed Dato Mohd Said and Dato Amir Junus to obtain the statements which were obtained as directed.

I shall first consider the manner in which the accused came to know about Exhibit P14A, B and C, the circumstances in which he first met Dato Mohd Said alone regarding this matter and later together with Dato Amir Junus. This is significant as it is these initial meetings that set the train of events in motion. A proper appreciation of these facts will throw light on the interest shown by the accused in the allegations against him from the very beginning. The accused said in his evidence that he met Dato Mohd Said alone after a scheduled meeting at his office on the morning of 11 August 1997 at his request. As the accused said,

"It was an official meeting. In this meeting PW1 came alone. After the briefing I asked him to stay back and enquired from him whether he was aware of P14. At that time I had been told of P14 but had not seen it." Dato Mohd Said said that he was aware and that he will find out about it and give a briefing later. He informed the accused that he would bring along Dato Amir Junus with him. That is what the accused said in his examination-in-chief. In cross-examination he said, "Semasa pertemuan saya dengan SP1 pada 11.8.1997 saya bukanlah yang berbangkitkan isu P14." This is what he said in his re-examination, "When I said in cross-examination ‘semasa pertemuan saya dengan SP1 pada 11.8.1997 bukan saya mula bangkitkan isu P14’ what I meant was, firstly, the meeting on 11.8.1997 with SP1 and SP11 was after I received a call from the IGP informing me about P14 and requesting SP1 and SP11 to see me in order to brief me. Secondly, because the visit of SP1 and SP11 was pre-arranged they immediately intimated to me about P14 on IGP’s instructions. (Counsel reminds witness that he is referring to the meeting on the 11^th morning and the question is confined to SP1 only.) What I said just now refers to the meeting at night on 11.8.1997. On the morning of 11.8.1997 I met SP1 alone after the other officers left. SP11 was not there at that time. … SP1 stayed back after the official meeting for a private chat. But I did not bring up the issue of P14 because at that time I was unaware of it. P14 was intimated to me only later by the IGP who received the letter from Dato Megat Junid. The IGP intimated about P14 to me on the night of 11.8.1997. That was when he suggested that SP1 and SP11 meet me in order to give a briefing. … SP1 and SP11 were asked by the IGP to come and brief me." He has confirmed, after having been brought back from confusion by his counsel, that he did not raise the issue of Exhibit P14A, B and C with Dato Mohd Said and that the IGP had asked Dato Mohd Said and Dato Amir Junus to brief him. This conflicts with what he said in his examination-in-chief. There are therefore internal inconsistencies within the evidence of the accused on the way he met Dato Mohd Said alone in the morning of the 11^th; the conversation he had with Dato Mohd Said regarding Exhibit P14A, B and C at that meeting; the circumstances in which he first came to know of Exhibit P14A, B and C and the manner in which he met Dato Mohd Said and Dato Amir Junus at the next meeting, that is to say, that it was the IGP who had asked them to meet him to give a briefing. It is the case for the prosecution that on the 11^th morning the accused asked Dato Mohd Said to look into a letter containing wild allegations against him. Then Dato Mohd Said and Dato Amir Junus met the accused at his Official Residence the next day upon Dato Amir Junus being informed by ASP Zull Aznam that the accused wanted to meet them. The accused’s evidence was not put in cross-examination to Dato Mohd Said or Dato Amir Junus. The weight of the evidence of the accused therefore suffers as a result of the internal inconsistencies in his evidence and such evidence not having been put to Dato Mohd Said and Dato Amir Junus in their cross-examination by the Defence. Further Defence evidence suggests that the matter goes beyond weight. ASP Zull Aznam was asked this question in cross-examination, "Pada 12.8.1997 lebih kurang 8.00 malam kamu ada membuat panggilan telefon kepada Dato Amir untuk menyampaikan pesan bahawa Dato Seri Anwar ingin bertemu dengan Dato Amir dan Dato Mohd Said di kediaman rasmi Dato Seri pada malam itu?" And he replied, "Ya." He was then asked, "Kamu membuat panggilan telefon itu atas arahan Dato Seri, bukan? And he replied, "Ya." Thus I find that it was the accused who wanted to see Dato Mohd Said and Dato Amir Junus on the 12^th and it was not they who wanted to see him on the instructions of the IGP as now claimed by him in his testimony. The evidence of the accused himself in another part of his examination-in-chief with regard to the meeting on the 12^th supports my finding. This is what he said, "The next meeting I had with the Special Branch was on the evening of that day or the following evening. At that meeting PW1 and PW11 informed me that the IGP had already received P14 from Dato Seri Megat Junid." The fact that Dato Mohd Said and Dato Amir Junus met the accused on his instructions and the further fact that they informed him that the IGP had already received Exhibit P14 A, B and C mean that the accused had no prior communication with the IGP as claimed by him. It is therefore my finding that the sequence of events that happened on the 11^th and up to the meeting of the 12^th is as stated by the prosecution witnesses and the version as described by the accused is an after-thought to embroider his defence. This shows that the accused was concerned about the allegations from the very beginning.

The circumstances under which the accused lodged the police report (Exhibit P16) on Exhibit P15 through ASP Zull Aznam is significant to determine the state of mind of the accused at that time. The prosecution evidence is that when Dato Mohd Said and Dato Amir Junus met the accused on 15 August 1997 at about 2.00 p.m. he showed them Exhibit P15. They advised him to make a police report. He did not agree initially. Dato Mohd Said had agreed with a Defence suggestion that the accused did not want to make a report initially because of the adverse publicity as he is a politician and Deputy Prime Minister. It was for this reason, as shown by the unchallenged prosecution evidence, that he did not want the case to be investigated by the CID. That he had a hand in the branch of the police that ought to investigate the matter is supported by the fact that when he met Dato Mohd Said and Dato Amir Junus on 12 August 1997 he had not decided on that matter yet. As he said in examination-in-chief,

"At that time I did not decide which branch of the police would conduct investigations." It is therefore clear that the accused did not want the matter to be investigated by the CID. When he was asked in cross-examination whether on 15 August 1997 he had told Dato Mohd Said and Dato Amir Junus that if the matter is investigated by the CID it should not be brought to Court he said, "Saya juga akui saya tidak cenderung pada ketika itu untuk membawa perkara itu ke Mahkamah kerana Special Branch baru memulakan siasatan." When further cross-examined that he did not want the case to be brought to Court as he was worried about the publicity that it may bring against him the accused said, "Saya tidak setuju bahawa, pertama, saya sendiri yang membuat laporan polis melalui Zull Aznam, kedua, saya bersetuju dengan Peguam Negara bila beliau mencadangkan kepada saya untuk mengambil tindakan terhadap orang-orang yang berkenaan. Pada masa itu Perdana Menteri tidak bersetuju. Jadi tidak benar saya khuatir publicity mengenai kes ini sekiranya dibawa ke Mahkamah." Thus what the accused says, by these two answers, is that he was not inclined that the matter must be brought to Court though he was not worried about the publicity for the reasons given by him. The claim that he was not worried about the publicity because he himself had made the report loses value in view of his own testimony in examination-in-chief that initially he did not agree to make a report and that he only agreed finally upon being persuaded. His reference to the Honourable Attorney General is an attempt to cloud the issues as the latter was nowhere in the picture at that time. The reasons given by the accused therefore do not support his answer to the question as put by the prosecution. The unchallenged prosecution evidence that he did not want the matter to be investigated by the CID and his admission that he was not inclined that it be brought to Court support the inference that he was concerned about the attendant publicity. In any event his evidence that he was not worried about the publicity is a departure from what was put to and agreed by Dato Mohd Said in his cross-examination. Thus I am unable to give any weight to this part of the evidence of the accused and hold that he did not want to make a report initially because of the adverse publicity by virtue of his position. My finding on the reasons why the accused did not want to lodge a police report initially coupled with the fact that he did not want the matter to be investigated by the CID further show that he was very concerned about the allegations. The role he played in deciding on the branch of the police that should conduct the investigation militates against his stand that he had merely asked the police to investigate and had left it to them to do what was right and proper.

The next matter for consideration is the manner in which the meetings between Dato Mohd Said and Dato Amir Junus and the accused were arranged. If they were arranged by Dato Mohd Said and Dato Amir Junus it would show their concern over the matter as testified by the accused. If they were arranged by the accused then it will indicate the concern and interest of the accused in the investigation. It is the case for the prosecution that it was the accused who contacted Dato Mohd Said and Dato Amir Junus regularly. Their line of cross-examination when they gave evidence also shows that the Defence case as put was that the accused had contacted them regularly to brief him on the progress of the investigation. On this issue the accused said in his evidence,

"There were occasions when I invited them to come but on many occasions PW11 would call ASP Zull Aznam." The accused is trying to suggest that many of the appointments to see him were at the behest of Dato Amir Junus. I have already referred to the appointment ASP Zull Aznam made for the meeting of the 12^th. As to the meeting on the 13^th the accused, in answer to a question in cross-examination, said, "Tidak benar bahawa SP1 and SP11 diarah oleh saya. Mereka datang ke rumah rasmi saya untuk memaklumkan kemajuan siasatan berdasarkan arahan Ketua Polis Negara kepada mereka sebelumnya." Thus his evidence is that he did not call for Dato Mohd Said and Dato Amir Junus for the meeting on 13 August 1997. With regard to this and subsequent meetings ASP Zull Aznam said, in answer to questions in cross-examination, said, "Question : Betul atau tidak bahawa sekali lagi pada 13.8.1997 kamu ada membuat panggilan telefon kepada Dato Mohd Said Awang menyampaikan pesan Dato Seri Anwar yang Dato Seri Anwar ingin bertemu dengan Dato Said Awang dan Dato Amir di kediaman rasmi Dato Seri Anwar, bukan?

Answer : Ya.

Question : Tarikh-tarikh lain di mana kamu menelefon PW1 dan PW11 atas arahan Dato Seri kamu tidak ingat?

Answer : Betul."

As the accused’s testimony does not accord with what was put by the Defence to the prosecution witnesses it loses weight. I accept the evidence of ASP Zull Aznam as it is consistent with what was put by the Defence to the prosecution witnesses on this issue. It is therefore my finding that it was the accused who contacted Dato Mohd Said and Dato Amir Junus regularly, through ASP Zull Aznam, in respect of the meetings that they had. This indicates his concern and interest in the progress of the investigations.

The method of interrogation used by the Special Branch officers on Ummi and Azizan is what is referred to as the Turning Over and Neutralisation Operation. The object of the operation is to change the stand of a person on a certain view held by him. This was the first time that the operation had been conducted in a case of this nature. It was successfully employed to neutralise Ummi and Azizan. If that was done without any request from the accused it would support the Defence case that he did not ask for a denial and retraction of the allegations. The prosecution case is that this method was used in order to comply with the instructions of the accused. A finding on this issue will help to decide whether the accused had merely asked for a thorough investigation. I will now deal with the relevant evidence.

Firstly, Exhibits P17 and P18 were obtained within 24 hours of the arrest of Ummi and Azizan. The prosecution evidence on this was not challenged by the Defence. When ACP Mazlan and DSP Aziz received instructions from Dato Mohd Said and Dato Amir Junus they were told that they should make Ummi and Azizan withdraw and deny their allegations within 24 hours. Dato Mohd Said and Dato Amir Junus did not give this instruction on their own initiative. It originated from the accused himself. This was stated by Dato Amir Junus when he was cross-examined by the Defence. This is what he said,

"Question : Are you seriously suggesting that accused asked you turn over and neutralise Ummi and Azizan?

Answer : Apa yang tertuduh menyuruh Special Branch buat terhadap Ummi dan Azizan untuk mereka menarik balik dan menafikan semua dakwaan-dakwaan terhadap tertuduh. Untuk mencapaikan hasrat itu Special Branch telah menggunakan technique turning over dan neutralisation sebab masa yang diberikan hanya 24 jam sahaja."

Dato Amir Junus was not subjected to any further cross-examination on this part of his answer so as to neutralise this evidence. Neither did the accused deny or explain it away when he gave evidence. Thus it is my finding that the accused asked for the retractions and denials to be made within 24 hours.

Secondly, the prosecution evidence that the accused asked Dato Mohd Said and Dato Amir Junus to trace Ummi and Azizan quickly was not challenged in the course of the case for the prosecution. Though the accused did not say anything about this in his examination-in-chief he denied that he gave such instructions in his cross-examination. By reason of the failure of the Defence to cross-examine the prosecution witnesses on this issue the denial on the issue by the accused loses weight. Taking into account the fact that the accused wanted the retractions and denials within 24 hours I am unable to accept this denial by the accused. It is thus my finding that the accused asked Dato Mohd Said and Dato Amir Junus to trace Ummi and Azizan quickly.

Thirdly, the prosecution case is that on 13 August 1997 the accused asked Dato Mohd Said and Dato Amir Junus to "gempar" Ummi and Azizan. As I said earlier the Defence challenge on this was only as to the meaning of the word "gempar". However, what the accused said in his evidence is that he said "gempar sikit-sikit cukuplah". Thus the accused has admitted that he asked for Ummi and Azizan to be "gempar" though "sikit-sikit cukuplah". The degree of the "gempar" to be used as stated by the accused was not put to Dato Mohd Said and Dato Amir Junus in their cross-examination. This brings into question whether the accused really qualified the degree of "gempar" to be used. My first observation is that the fact remains that the accused asked for Ummi and Azizan to be "gempar". Whether it is "sikit-sikit cukuplah" or not really does not alter the intention with which the instruction was given. However, based on the totality of the evidence adduced and particularly having regard to the Defence challenge being only on the meaning of the word it is my finding that the accused used the word "gempar" without any qualification.

Fourthly, it is the case for the prosecution that the accused did not want Ummi and Azizan to be detained for long. He admitted in his evidence that he told this to Dato Mohd Said and Dato Amir Junus. His initial explanation for giving this instruction was because he knew them. Later he said that he gave this instruction because he did not want them to be bullied. Though the reasons advanced are contradictory the fact remains that the accused did tell Dato Mohd Said and Dato Amir Junus not to detain Ummi and Azizan for long. It must also be noted that the Defence did not challenge the prosecution evidence on this. Neither were the reasons now offered by the accused put to the prosecution witnesses. It is therefore my view that the explanation now advanced is an after-thought meant to project the impression that the accused did not have any unlawful motive in giving the instruction. In an effort to support this projection the accused said in his cross-examination that when asked for Ummi and Azizan not to be detained for long Dato Mohd Said and Dato Amir Junus had told him,

"Dato Seri baik hati sangat. Orang fitnah macam itu pun masih kasihan lagi." When challenged that this was never stated by them he said, "Ada mereka sebut. Pada masa itu mereka menunjukkan simpati yang amat sangat kepada saya." The accused, in his re-examination, was asked why this piece of evidence was not brought up when Dato Mohd Said and Dato Amir Junus gave evidence. The object of learned counsel in pursuing this line of questioning was obviously to ascertain why it was not put to the witnesses in their cross-examination so as to avoid any allegation of recent invention. The accused said that he did not bring it up earlier as he thought it would be only relevant to clarify matters if and when asked. To a further question as to whether he informed his counsel about this, this is what he said, "I informed my counsel about this after the evidence of SP1 and SP11." Both the witnesses were not recalled by the Defence in the course of the case for the prosecution to confront them with this piece of conversation so as to ascertain whether they uttered the words. But when these two witnesses were recalled by the Defence in the course of its case the words alleged to have been said by them were not put to them. In view of the challenge made by the prosecution that the words were not uttered by the witnesses; the fact that it was not put to Dato Mohd Said and Dato Amir Junus despite the claim by the accused that he had informed his counsel about it I am compelled to conclude that the words were not uttered by them and that it is an after-thought in order to embellish the defence.

My findings that the accused asked Dato Mohd Said and Dato Amir Junus to trace Ummi and Azizan early, to "gempar" them, not to detain them for long and to make Ummi and Azizan retract their allegations within 24 hours show that the neutralisation of Ummi and Azizan was done by the Special Branch in order to comply with the instructions of the accused. It is totally inconsistent as a follow-up by the Special Branch to a mere request for a thorough investigation into the matter. I must immediately state that there is no evidence to even suggest that the accused asked for this method to be used. But it was a method used by the Special Branch so as to achieve the result expected. The matters that I have considered thusfar point to the inference that the accused was actively involved in the investigations from the very beginning to make Ummi and Azizan retract their allegation as he was very concerned. The resultant matter for consideration is whether there is positive evidence to show that he had asked for the written statements and the public statements.

In an attempt to show that the request for the letters did not come from him the accused said,

"The idea of getting the retraction letters from Ummi and Azizan must be either from SP1 and SP11 or the police. But it was not from me. They just informed me and showed me the letters." This answer is in direct contradiction to what was put to Dato Amir Junus under cross-examination. It is this: "I put it to you that only after the Special Branch briefed the accused and said that they have investigated and found the allegations to be untrue and that it involved a political conspiracy against him and Ummi and Azizan were prepared to retract their allegations that the accused requested for the retraction." Thus the Defence case as put in the course of the case for the prosecution is that the accused did in fact ask for the retractions. There is therefore a shift in the defence evidence on this issue from what was put in the course of the prosecution case. There was a further shift in another part of the accused’s evidence when he said, with reference to Exhibits P20 and P22, that when Dato Mohd Said and Dato Amir Junus met him on 27 August 1997 they " … considered several options, that is, either to suggest that Azizan and Ummi speak directly to the media or come up with a public statement. I had to remind them that because of the Prime Minister’s suggestion that I should completely ignore the issue of the allegations so I had to leave it to PW1 and PW11." Not only was this version not put to Dato Mohd Said and Dato Amir Junus in their cross-examination but it is also inconsistent with the accused’s earlier evidence that they merely informed him and showed him the public statements.

Be that as it may, a consideration of the prosecution evidence that the accused asked for the public statements to be posted to his office will shed light on this issue. If the accused had asked for the public statements to be posted to him it would obviously mean that he had some prior communication about them with Dato Mohd Said and Dato Amir Junus. This is what Dato Mohd Said said with regard to this request,

"He wants the letters to be open letters without being addressed to anybody. It was to be an open letter. He wanted the letter to be posted to the Deputy Prime Minister’s office." In his cross-examination on this he said, "Question : I am instructed that the accused never requested that ID19 to ID22 be posted to his office.

Answer : The instruction to me was that they should be posted to the Deputy Prime Minister’s office."

A similar answer was given by Dato Amir Junus in his examination-in-chief and when challenged in cross-examination he denied that the accused did not ask for it to be posted. Dato Amir Junus has noted this request in Exhibit P47. It will therefore be observed that the request for the letters to be posted to the office of the accused was a live issue in the course of the case for the prosecution. The Defence had disputed the fact that the accused had asked for the letters to be posted to his office at that stage. However, the accused did not give any evidence on this issue. What now requires determination is whether the accused had in fact made such a request. Dato Amir Junus testified that he handed over Exhibits P20, P21 and P22 to the accused in a sealed envelope addressed to him and with the postal stamp on it cancelled. The letters were later found to have the Received Rubber Stamp of the accused’s office. It is of interest to note that the accused did not attempt to explain the presence of the Received Rubber Stamp on the letters when he gave evidence. Azmin was cross-examined on this issue by the prosecution in the following manner: "Question : (Sila lihat P20, P21 dan P22.) Kamu ada terima surat-surat ini daripada tertuduh?

Answer : Ada terima.

Question : (Lihat pada chop di ketiga-tiga exhibit ini.) Adakah kamu yang meletakkan chop pada ketiga exhibit ini?

Answer : Saya yang meletakkan chop-chop ini.

Question : Bersetuju atau tidak bahawa P20, P21 dan P22 telah disampaikan kepada kamu oleh Dato Seri Anwar untuk dichopkan tarikh penerimaannya?

Answer : Ya."

Azmin was not re-examined on this. It is therefore true that the accused received Exhibits P20, P21 and P22 as described by Dato Amir Junus. The accused had handed them to Azmin to affix the Received Rubber Stamp, obviously, to give the impression that they were received through the post. The inference to be drawn from this is that the accused, as testified by Dato Mohd Said and Dato Amir Junus, had asked for the letters to be posted to his office. This finding is cemented by the fact that the accused did not give any evidence denying that he had asked for the letters to be posted to him although he had specifically put to the prosecution witnesses that he had not asked them to do so. It must be noted that a suggestion does not become evidence unless it is supported by affirmative testimony. There was no such evidence. It is also not necessary for the request, being an admission made by the accused, to have been put to him by the prosecution (see Biswanath Prasad v Dwarka Prasad AIR 1974 SC 117). The failure by the accused to give evidence on this issue therefore means that he has accepted the prosecution evidence on it. It is thus my firm finding that the accused had asked for the public statements to be posted to his office. The fact that the accused asked for them to be posted to him means that there was some prior communication between him and Dato Mohd Said and Dato Amir Junus regarding these letters.

This inference will have added weight if the accused, as contended by the prosecution, had asked for corrections to be made to the public statements. The evidence of Dato Amir Junus on the corrections made to the public statement of Azizan and Exhibit P29 by the accused, which I have outlined earlier, was challenged by the Defence. The accused in denying that he made any corrections to the public statements said,

"On the night of the 28^th I did not have any telephone conversation with PW11. I did not suggest any amendments to P29 because P29 is a very good statement. Why should I amend it further? Somebody else must have asked him to amend it. He did not discuss this with me on the phone." The corrections were not made by Azizan and Ummi as they themselves were unhappy with the amendments. The accused has denied that he made the corrections to Exhibit P29 and, in support, has said that it is a very good statement and does not require any amendment. The explanation offered by the accused requires a comparison of Exhibit P29 with Exhibit P22. In particular I refer to the statement in Exhibit P29 which says "Saya ingin menafikan sekeras-kerasnya bahawa saya terbabit dalam penerbitan surat-surat layang yang timbul selepas tarikh 5hb Ogos 1997." This is merely a denial by Ummi that she was involved in the publication of any poison pen letters after 5 August 1997. There is therefore no denial that she wrote Exhibit P14A, B and C. On the other hand the relevant part of Exhibit P22 is worded this way: "Saya ingin menafikan sekeras-kerasnya bahawa surat-surat yang diedarkan yang kononnya ditanda-tangani oleh saya bukanlah surat saya kepada YAB Perdana Menteri tetapi direka oleh orang-orang tertentu." This is a denial by Ummi that the letter allegedly signed by her and sent to YAB Prime Minister is hers. I am therefore unable to accept the accused’s explanation that Exhibit P29 is stronger. Having also taken into account the other circumstances of the case it is therefore my finding that the corrections made to the public statement of Azizan and Exhibit P29 were made on the instructions of the accused.

With regard to the obtaining of Exhibits P17 and P18 the accused said in his examination-in-chief that when he received these letters he had no idea as to how they were obtained and that he

" … assumed as per my instructions that the police should do what was right and proper." The words " … as per my instructions … " suggest that the letters were obtained according to his instructions, or, at the very least there was talk between the accused and Dato Mohd Said and Dato Amir Junus prior to the obtaining of the letters. This is inconsistent with the earlier part of his testimony when he said that he did not know how they were obtained. Thus the accused was asked to explain the use of the word "instruction" in his re-examination. In reply he said, "I used consistently the word ‘instruct’ to instruct officers as Deputy Prime Minister and Minister of Finance to do what is right and proper according to the law. Dozens of statements and speeches were to that effect. Again the word ‘instruction’ is applicable to all officers." This explanation lends weight to the view that the accused did in fact give instructions to Dato Mohd Said and Dato Amir Junus with regard to Exhibits P17 and P18. If what he says is that the word "instruction" refers to anything that he tells his officers that does not deny the fact that he did in fact communicate about Exhibits P17 and P18 to Dato Mohd Said and Dato Amir Junus prior to them being obtained.

The reaction of the accused when Exhibits P17 and P18 were handed to him will have a strong bearing on whether he had asked for them. It is the case for the prosecution that he had in fact expressed his views on Exhibits P17 and P18 when they were handed to him. In this regard Dato Amir Junus said,

"Selepas membaca ID17 tertuduh meluahkan perasaan bahawa surat ini bolehlah diterima tetapi apabila membaca surat ID18 yang ditulis oleh Ummi tertuduh kurang puas hati dan bukan seperti yang dikehendaki. Bagi ID17 tertuduh mengatakan, ‘Ini bolehlah,’ tetapi bagi surat ID18, ‘Bukan macam ini’." When Dato Amir Junus was cross-examined on this he said, "Saya tidak bersetuju yang tertuduh tidak meluahkan kepuasan hatinya kepada mana-mana dokumen." However, this aspect of the challenge to the prosecution evidence was not carried through by the accused when he gave evidence. Again it is not necessary for the prosecution to have put this to the accused when he was cross-examined as it is an admission. In the circumstances the cross-examination of Dato Amir Junus on this issue loses its effect and amounts to an acceptance by the Defence of his evidence. It is therefore my finding that the accused expressed his views on Exhibits P17 and P18 as testified by Dato Amir Junus.

It follows that the accused had made corrections to the public statements and had expressed his views on the written statements. These findings strengthen and support my earlier view that the accused did in fact communicate with Dato Mohd Said and Dato Amir Junus about the written statements and public statements prior to them being obtained.

Before I proceed any further I shall deal with some arguments raised by the Defence in its submission. I shall first refer to certain matters that were put to Dato Mohd Said and Dato Amir Junus when they were recalled by the Defence during its case. They are of importance to the Defence case. If what was put to them did indeed take place it will support the Defence case that the accused did not ask for the retractions.

In the case of Dato Mohd Said what was put to him is as follows:

"Question : Do you agree that on 11.8.1997 you met Dato Seri Anwar’s private secretary, Mohd Azmin bin Ali?

Answer : I do not agree.

Question : I am putting it to you that you did meet him on 11.8.1997 and requested him to speak to his sister Ummi to request her to retract the allegations against Dato Seri Anwar.

Answer : I did not meet Azmin. So this question does not arise."

Azmin had said in his evidence that he met Dato Mohd Said on 11 August 1997 at 8.45 a.m. before the latter met the accused. It is at this meeting that Dato Mohd Said is alleged to have made the request to Azmin to ask Ummi to retract the allegations. If this converstion did take place then the accused could not have asked for the retractions because at that time Dato Mohd Said had not met the accused yet. Dato Mohd Said’s answer is that since he did not meet Azmin on that date and time the question of the conversation does not arise. It must be noted that at that time Dato Mohd Said had just come to know of the allegations the previous night and as he said in his examination-in-chief, "On the 11^th morning the three of us met in my office at about 7.00 a.m. for them to brief me further. After that I directed them to brief the IGP while I went to the Deputy Prime Minister’s office for a scheduled briefing on another matter." This piece of evidence was not challenged by the Defence. It is my view that Dato Mohd Said could not have asked for the retractions as testified by Azmin as he had just come to know of the allegations. The IGP could not have asked him to do so as Dato Mohd Said had not met the IGP then. One other feature of this evidence requires consideration. Azmin had said that he met Dato Mohd Said at 8.45 a.m. on 11 August 1997. The accused originally said that Dato Mohd Said met him on that day at about 9.00 a.m. But having referred to his personal diary for 1997 he said, "The meeting on 11.8.1997 was at 8.45 a.m." Surely Dato Mohd Said could not have been at both places at the same time. Having considered these factors and the totality of the evidence adduced I agree with Dato Mohd Said that there was no such conversation. I have no hesitation in saying that the alleged request by Dato Mohd Said is an after-thought to bolster the defence.

With regard to Dato Amir Junus what was put to him was that he had a telephone conversation with ASP Zull Aznam. It goes this way:

"Question : Do you remember the date Dato Seri Anwar came back from Pulau Langkawi?

Answer : I won’t know the exact date he came back from Langkawi. It could be the 16^th or 17^th.

Question : It is that date I am referring to. I put it to you that you phoned ASP Zull Aznam several times but there was no response from Dato Seri Anwar. Then you finally told ASP Zull Aznam over the phone that you had to get retractions fast from both these people and then ASP Zull Aznam asked you whether you had obtained clearance from Dato Seri Anwar. You said that there is no time as we have to act fast. You responded further by saying that Dato Seri Anwar is taking things too easy. Is that true?

Answer : Saya ada menelefon ASP Zull Aznam pada 17.8.97 jam lebih kurang 11.15 malam untuk memberitahu kepada tertuduh melalui ASP Zull bahawa polis telah pun menangkap Ummi dan Azizan. Saya tidak pernah menyatakan kepada ASP Zull tentang sikap tertuduh dan juga mengenai surat retraction. Ini adalah tidak wajar bagi seorang senior officer untuk mengatakan sedemikian.

Question : So you do not agree.

Answer : I do not agree.

Question : I put it to you that the conversation took place.

Answer : Tidak."

ASP Zull Aznam had said that he had the conversation with Dato Amir Junus on 17 August 1997 at 11.00 p.m. or 11.30 p.m. ASP Zull Aznam had said that in that conversation he was first told that Dato Mohd Said and Dato Amir Junus were coming to see the accused. In that event it would have been unnecessary for Dato Amir Junus to have told ASP Zull Aznam anything more. As I mentioned earlier the credibility of Dato Amir Junus had been enhanced by the notes he kept of the meetings with the accused. With regard to the request of the accused for the retractions the relevant note is Exhibit P44. Having considered the explanation offered by Dato Amir Junus against the background of his credibility and the totality of the evidence adduced it is my firm finding that the alleged conversation between ASP Zull Aznam and Dato Amir Junus did not take place and is an after-thought to give weight to the defence.

The Defence also submitted on a suggestion that was put by the prosecution to the accused in cross-examination. It is this:

"Saya katakan bahawa Dato Seri telah meminta SP1 and SP11 untuk menyiasat sedalamnya tentang P14B dan C kerana Dato Seri adalah concerned berkenaan P14B dan C." The Defence submission is worded in this way: "Since this was put by the DPP it is part of the prosecution case. This fact alone completely destroys and demolishes the prosecution case and renders the allegations of SP1 and SP11 that DSAI gave instructions to retract completely untrue and again materially corroborates Dato Seri Anwar Ibrahim’s defence in a very cogent manner. … To top it all, the DPP also put in line with the defence version for thorough investigation and fully. … But we would like to emphasise and reiterate that the whole case of the prosecution collapsed when the learned DPP put what has been the defence of DSAI from commencement of the case. … This is the crux of the defence case which was also put by the prosecution. Surely this is a very vital and material corroboration of DSAI’s version." The Defence case is that the accused merely asked for a thorough and full investigation. The prosecution case is that it went beyond that because, as reflected by the evidence, the accused was concerned about the allegations. Thus what was put to the accused by the prosecution is a gist of its case. The Defence submission completely overlooks the use of the word "concerned" in what was put.

It was then contended by the Defence that as Dato Amir Junus had said that the instructions he carried out in this case were from his superior officer it cannot be said that the accused had directed him as stated in the charges. It is in evidence that the accused gave the directions to both Dato Mohd Said and Dato Amir Junus together. Thus the fact remains that the accused gave directions to Dato Amir Junus also. What Dato Amir Junus did was to carry out the directions with the consent of his superior officer, Dato Mohd Said. That is purely an administrative arrangement between them. As far as the accused is concerned he gave directions to Dato Amir Junus as well. That is precisely what he has been charged with. The submission therefore has no merit.

The Defence, in its further submission, said that the concepts of turning over and neutralising are unknown to the law and have no sanction of the law. These concepts are a frolic of the Special Branch which the Court must not condone or sanction. The acceptance of the evidence of Dato Mohd Said and Dato Amir Junus would thus mean that the Court is tolerating such misbehaviour which must be avoided at all costs. I must state that I am distressed that the turning over and neutralisation operation has been resorted to in this case. However, this submission does not enhance the Defence case as the accused is in Court today for having caused the Special Branch to resort to just such methods as a result of his directions to get the retraction letters.

It was further contended that it is now easy for Ummi and Azizan to change their stories and say that they were threatened into making Exhibits P17 and P18. This submission has no substance based on the unchallenged evidence of ACP Mazlan, DSP Aziz, Ummi and Azizan which clearly shows that the letters are not voluntary. It follows that the question of Ummi and Azizan changing their stories to say that they were threatened does not arise.

The cumulative effect of the findings that I have made, that is to say, that the sequence of events as described by the accused up to 12 August 1997 is an after-thought; that he is the one who contacted Dato Mohd Said and Dato Amir Junus regularly; that he did not want to lodge a police report initially because of the adverse publicity by virtue of his position; that he was not inclined that the matter be brought to Court; that he did not want the matter to be investigated by the CID; that he wanted Ummi and Azizan to be traced quickly and did not want them to be detained for long; that he asked Dato Mohd Said and Dato Amir Junus to "gempar" them; that he wanted Ummi and Azizan to retract and deny their allegations within 24 hours and, finally, and most importantly, the evidence showing his prior communications regarding Exhibits P17, P18, P20 and P22 with Dato Mohd Said and Dato Amir Junus in the manner that I have described earlier leads me to conclude that the accused went beyond a request for a thorough investigation and had in fact asked Dato Mohd Said and Dato Amir Junus to obtain the written statements and public statements from Ummi and Azizan. The unchallenged evidence of ACP Mazlan, DSP Aziz, Ummi and Azizan which I have narrated earlier coupled with my findings show that the statements were obtained as directed. The evidence of Dato Mohd Said, Dato Amir Junus, ACP Mazlan and DSP Aziz is corroborated as stated by me in an earlier part of the judgment.

I pause to add that my finding is strengthened by the alternative defence set up by the accused. The principal defence of the accused is that he did not direct Dato Mohd Said and Dato Amir Junus to obtain the retraction letters from Ummi and Azizan. It was submitted by the Defence both at the close of the prosecution case and at the close of its own case that if it is found that the accused gave directions then Dato Mohd Said and Dato Amir Junus are accomplices. This alternative submission will make the accused the principal offender with Dato Mohd Said and Dato Amir Junus as accomplices. I have found them to be accomplices and that they are credible. The submission of the Defence, which I had accepted, makes it inconsistent with the principal defence. There is nothing illegal in an accused setting up an alternative defence which is inconsistent with the main defence set up by him. But, as observed by Newbould and Suhrawardy JJ in Nagendra Chandra Dhar v King-Emperor AIR 1923 Cal 717 at p 718,

"By setting up an inconsistent defence there can be no doubt that the case for the accused becomes considerably weaker than if he settled his best line of defence and set up that defence only." The final matter for determination is whether the request of the accused to Dato Mohd Said and Dato Amir Junus to obtain the written statements and public statements amounts to a direction by him in his capacity as Deputy Prime Minister and Minister of Finance. In seeking to show that the accused did not give the direction in such capacity the accused said that the discussions between him and them were conducted in a friendly and informal manner. He then added, "As the Minister of Finance I had no authority or jurisdiction or power over the police, Special Branch and PW1 or PW11. As the Deputy Prime Minister I had no authority or jurisdiction over the police or the Special Branch. I as Minister of Finance and as Deputy Prime Minister did not use my office or position in relation to the investigations into P14 or P15." This part of the evidence is inconsistent with an earlier part of his testimony when he said that on 12 August 1997 he had not decided which branch of the police would conduct the investigations. This is an admission of his authority over the police. The fact that he can summon senior police officers to go to his Official Residence at his request also shows his authority over them. The accused’s admission that he did not want Ummi and Azizan to be detained for long also shows his authority over Dato Mohd Said and Dato Amir Junus. Be that as it may, even if the accused had no authority, jurisdiction or power over Dato Mohd Said and Dato Amir Junus it is not relevant pursuant to the proper test to be applied which I have considered in some detail in an earlier part of the judgment. In accordance with that test the communications from the accused to Dato Mohd Said and Dato Amir Junus amount to directions as contemplated by the charges. The Defence submitted that the proper test for determining this question should be the one laid down by the Privy Council in Phaindra Chandra Neogy v The King AIR 1949 PC 117 in following its earlier judgment in Gill & Anor v The King AIR 1948 PC 128 to rule that a public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. The Privy Council case of Attorney-General of Hong Kong v Ip Chiu & Anor (1980) 2 WLR 332 which I had found to be most helpful in formulating the proper test to be applied has expressly referred to Gill & Anor v The King AIR 1948 PC 128 and distinguished it on the ground that the language of the provision of law in that case, that is to say, "any act done or purporting to be done in the execution of his duty as a servant of the Crown" is different and therefore inapplicable. I am a little surprised that the Defence has sought to refer to these cases as I had, when the Defence was submitting at the close of the case for the prosecution, brought to its attention Attorney-General of Hong Kong v Ip Chiu & Anor (1980) 2 WLR 332 where Gill & Anor v The King AIR 1948 PC 128 has been explained.

It is therefore my finding that the Defence has not raised any reasonable doubt, on the whole of the evidence adduced, that the accused directed Dato Mohd Said and Dato Amir Junus in his capacity as a Member of the administration, to obtain from Ummi and Azizan written statements addressed to YAB Prime Minister and public statements denying the allegations on the dates prescribed in the charges and that they obtained the statements as directed. I therefore hold that this element has been proved beyond reasonable doubt.

(ii) The advantage obtained by the accused

I shall consider this element in the same manner as I had classified them earlier.

First and third charges

The accused did not give any evidence on this issue in the course of his examination-in-chief. When he was asked in cross-examination whether the allegations in Exhibit P14A, B and C could expose him to humiliation and hatred he said,

"Tuhmahan dan fitnah di dalam P14 tidak mudah menyebabkan kebencian ramai kerana rakyat juga ingin mengetahui punca dan usaha penyebar fitnah." When the question was repeated he said, "Saya bersyukur kerana meskipun ada tuhmahan jahat dan pakatan untuk menghina dan menimbulkan kebencian ramai rakyat masih menyayangi saya dan tidak terpengaruh dengan pakatan jahat tersebut." When asked whether the contents of Exhibit P14A, B and C could damage his reputation as Deputy Prime Minister and Minister of Finance the accused said that though the purpose of the allegations was to damage his reputation it did not succeed. When the question was repeated he said, "Saya tidak terjejas semata-mata kerana tuhmahan dan fitnah P14." It was then put to the accused that he would not want the allegations to be widely circulated as they could expose him to humiliation and hatred by many. In reply he said, "Tuhmahan P14 dan P15 dari awal lagi diketahui fitnah besar dan jahat. Tidak mungkin kalaupun tersebar luas boleh mengakibatkan penghinaan dan kebencian ramai." When the question was repeated he said, "Saya telah jelaskan bahawa fitnah dan tuhmahan tidak mungkin menjejaskan nama baik saya." It was then put to him that he asked Dato Mohd Said and Dato Amir Junus to investigate into the allegations in depth as he was concerned about Exhibit P14A, B and C. In reply he said, "Saya telah meminta SP1 dan SP11 untuk menyiasat sedalam-dalamnya tentang P14B dan C kerana, pertama, saya sedar dan tahu kandungannya adalah fitnah dan, kedua, Ketua Polis Negara telah memaklumkan mengenai penerimaan P14 dan meminta SP1 dan SP11 meneruskan siasatan sebagai isu keselamatan." The answer given by the accused is an evasive one. In an attempt to avoid answering the question he has given reasons to explain why he asked for the matter to be investigated thoroughly. I must immediately observe that the two reasons given by the accused for asking Dato Mohd Said and Dato Amir Junus to investigate the matter thoroughly contradict other parts of his own evidence. The first reason as given by the accused, that the allegations were slanderous, is inconsistent with his earlier evidence when he said that he agreed with Dato Mohd Said and Dato Amir Junus that the matter must be investigated thoroughly after they told him that they suspected there were attempts by some politicians to smear his reputation. With regard to the second reason advanced by the accused I find, as I have explained earlier, that the evidence shows that the IGP did not communicate with the accused as claimed. In the light of the evasive answer given and considered with my earlier findings on the concern shown by the accused it is my view that he was indeed concerned about Exhibit P14A, B and C.

As I said at the close of the prosecution case the advantage obtained by the accused in these charges must be considered in the light of the role he played in procuring the written statements, that is to say, Exhibits P17 and P18. The facts, on the whole of the evidence, are substantially the same as at the close of the prosecution case. The accused did not want to lodge a report because of the adverse publicity by virtue of his position. He did not want the matter to be investigated by the CID. He was not inclined that the matter be brought to Court. He wanted Ummi and Azizan to be traced quickly and asked Dato Mohd Said and Dato Amir Junus to "gempar" them. He did not want them to be detained for long. He wanted them to retract and deny their allegations within 24 hours. He contacted Dato Mohd Said and Dato Amir Junus regularly to be briefed. These facts show that the accused was very concerned about the allegations. It follows that the answers given by the accused in cross-examination on the effect of the allegations on him are an attempt by him to embellish his stand that he was not concerned with the allegations. The fact that the accused wanted the allegations to be retracted and denied within 24 hours is particularly significant. The retraction of the allegations at such speed neutralises the effect of the allegations. Although the accused sought to portray this in a somewhat different light he was aware of this, as reflected by his answer to a question in re-examination in the following words:

"With regard to P17 and P18 I derived no advantage or benefit whatsoever. It is just one being accused for being a murderer and then there is a withdrawal of the allegation the following day." This explains the urgency with which he acted. Just as in the example provided by him he wanted the allegations made against him to be retracted within 24 hours so that they will have no effect. The manner in which he went about obtaining the written statements clearly shows that he wanted the letters to save himself from embarrassment. I have dealt with this question at the end of the prosecution case and I find the conclusion only strengthened by the Defence evidence.

Second and fourth charges

The evidence in respect of the advantage obtained by the accused under these two charges stem from the meetings between him and SAC Musa on 30 August 1997 and 2 September 1997.

With regard to the meeting on 30 August 1997 the accused said in his examination-in-chief that he had a meeting with the Honourable Attorney General and Dato Ismail Che Ros on that day. As to whether SAC Musa was present at the meeting he said,

"This is noted in my diary as ‘10.00 pagi AG dan Dato Ismail Che Ros’. It is not stated in my diary that SAC Musa also came. I also checked with my PA Azmin and he said that he would put down the name if Musa had attended the meeting." When asked again in his examination-in-chief whether he had given any instructions to SAC Musa on 30 August 1997 not to investigate into the matter the accused said, "I did not give any such instructions to Musa Hassan or to anyone else for that matter. I have checked my records and with my staff that SAC II Musa was not there in the office at that meeting on the 30^th." It was put to the accused in cross-examination that apart from the Honourable Attorney General and Dato Ismail Che Ros SAC Musa was also present at the meeting on 30 August 1997. In reply the accused said, "Setelah menyemak buku diari pejabat dan bertanyakan kepada setiausaha Mohd Azmin Ali kita tidak ada rekod kehadiran Musa Hassan pada tarikh tersebut. Nama-nama Peguam Negara dan Pengarah CID ada dicatat." As to the directions that he was alleged to have given SAC Musa on 30 August 1997 the accused said in his re-examination, "Either in the presence of the Attorney General or not I would not have given the directions that I am alleged to have given SAC Musa on 30^th August. The Attorney General would have cautioned me if I had done so." Thus what the accused says is that he did not meet SAC Musa on that day for two reasons, firstly, by virtue of the entry on his diary and, secondly, his records and staff including Azmin confirm that SAC Musa did not attend the meeting. The second reason advanced is hearsay and therefore inadmissible as to its truth. The first reason is based on the fact that SAC Musa’s name does not appear in the diary. That on its own does not necessarily mean that SAC Musa did not meet the accused. As I said earlier the cross-examination of SAC Musa had in fact proceeded on the basis that he met the accused on 30 August 1997. It was not put to SAC Musa that he did not meet the accused on that day. The weight of the evidence of the accused on this issue therefore becomes weak. In the circumstances it is my finding that SAC Musa did meet the accused on 30 August 1997 at the latter’s office.

The resultant matter for consideration is whether the accused gave any instructions to SAC Musa on that day. Although the accused denied that he gave any instructions to SAC Musa on that day such denial is not consistent with the cross-examination of SAC Musa when the latter gave evidence. The accused said in his evidence that at that meeting he relayed to the Honourable Attorney General and Dato Ismail Che Ros

" … the message from the Prime Minister as reported in the newspapers on 25.8.1997." This is inconsistent with what was put to SAC Musa during his cross-examination that this was told to him by the accused. In any event the relaying of the message is meaningless unless, as testified by SAC Musa, it was preceded by a statement to the effect that it was not necessary to investigate into the matter. I pause to add that the accused while seeking to assert that he did not give the instructions had admitted making such a statement to SAC Musa with reference to the meeting on 2 September 1997. Based on the line of cross-examination of SAC Musa and the evidence of the accused that I have just mentioned it is my view that he did in fact bring YAB Prime Minister’s statement to the attention of SAC Musa on 30 August 1997. The reliance of the accused on YAB Prime Minister’s statement to the effect that the matter is closed shows, as testified by SAC Musa, that the accused had in fact told SAC Musa that it is not necessary to investigate into the matter, as, otherwise it is not relevant for any reference to be made to the statement. It is therefore my finding that the accused did give the instructions to SAC Musa, as testified by him, on 30 August 1997.

With regard to the meeting on 2 September 1997 the accused was asked in his examination-in-chief whether he had told SAC Musa not to send the investigation papers to the Honourable Attorney General. In reply he said,

"I did not give such instructions. There was a meeting with Musa at about that time. But I cannot remember the date of that meeting. I had only one meeting with SAC Musa. That was when he recorded my statement." When asked whether he had told SAC Musa not to take statements from Azmin, Shamsidar, Dato Nallakaruppan, Aton and ASP Zull Aznam the accused said, "I did not give any instructions to Musa not to take statements from those persons. It would be absurd for me to give such instructions when I myself asked Zull Aznam to lodge a police report on my behalf. How could I then suggest to the police not to question even Zull Aznam." The cross-examination of the accused on this issue goes as follows: "Question :Saya katakan pada pertemuan Dato Seri dengan SP13 pada 2.9.1997 Dato Seri telah memberi arahan kepada SP13 untuk menutup kes berkaitan dengan siasatan berkenaan dengan P16.

Answer : Saya tidak memberi arahan kepada SP13 untuk menutup kes.

Question : Saya katakan kepada Dato Seri bahawa Dato Seri telah mengarahkan SP13 untuk tidak menghantar kertas siasatan berkenaan P16 kepada Peguam Negara pada pertemuan 2.9.1997 itu.

Answer : Ini tidak benar. Direka kemudian sebagai bukti conspiracy polis.

Question : Saya katakan di dalam pertemuan itu juga Dato Seri telah serahkan P20, P21 dan P22 kepada SP13.

Answer : Tidak benar saya serahkan kepada SP13."

In his re-examination the accused was questioned as to what transpired at the meeting on 2 September 1997. This is his reply: "With regard to the meeting on 2.9.1997 I cannot recall what transpired at the meeting except for the fact that Musa informed me of certain developments or progress of his investigation. But I did not give any instructions to him not to proceed as alleged by him. At that meeting, I reminded Musa of the Prime Minister’s instructions as reported in the papers." On this issue it is also necessary to consider the evidence of ASP Zull Aznam and Azmin. Both these Defence witnesses did not give any evidence on this meeting in their examination-in-chief. The relevant part of the cross-examination of ASP Zull Aznam runs as follows: "Question : Apabila kamu membuat P16 itu kamu inginkan pihak polis menjalankan siasatan dengan terperinci?

Answer : Ya, betul

Question : Jadi oleh yang demikian pada 2.9.1997 apabila SAC Musa meminta kamu menghubungi saksi-saksi kamu sudah semestinyalah bersedia untuk membantu SAC Musa menghubungi saksi-saksi tersebut?

Answer : Ya, saya sememangnya bersedia untuk membantu beliau.

Question : Betul bukan bahawa kamu telah memberitahu Dato Seri Anwar tentang permintaan SAC Musa untuk menemubual saksi-saksi tersebut?

Answer : Saya memberitahu Dato Seri Anwar Ibrahim tentang perkara ini disebabkan ianya melibatkan saya dan Mohd Azmin Ali selaku staff peribadi Dato Seri Anwar pada ketika itu.

Question : Kamu tidak menghubungi saksi-saksi tersebut sepertimana yang diminta oleh SAC Musa?

Answer : Saya tidak menghubungi saksi-saksi lain kecuali saya memaklumkan perkara ini kepada Che Mohd Azmin Ali. …..

Question : Pada 2.9.1997 selepas kamu memaklumkan kepada Dato Seri Anwar tentang permintaan SAC Musa itu, betul atau tidak bahawa lebih kurang 11.30 pagi SAC Musa datang menemui kamu di Jabatan Perdana Menteri?

Answer : Pada hari tersebut lebih kurang jam 11.30 atau 11.45 pagi SAC Musa ada menjenguk ke dalam pejabat saya dan memaklumkan kepada saya bahawa beliau sudah sampai untuk bertemu dengan Dato Seri Anwar Ibrahim.

Question : Betul bukan bahawa SAC Musa datang menemui kamu memaklumkan kepada Dato Seri Anwar tentang permintaan SAC Musa itu kepada kamu?

Answer : Betul.

Question : Kamu tahu atau tidak siapakah yang mengarahkan SAC Musa datang untuk bertemu Dato Seri Anwar pada hari itu?

Answer : Saya tidak tahu."

In his re-examination ASP Zull Aznam said that SAC Musa’s request to him to get the witnesses ready was conditional upon being contacted again. He said that SAC Musa did not get back to him. On this issue the cross-examination of Azmin is as follows: "Question : Pada 2.9.1997 jam belih kurang 12.30 tengah hari ASP Zull Aznam ada memberitahu kamu mengenai kehadiran SAC Musa (SP13) di pejabat Timbalan Perdana Menteri untuk bertemu dengan tertuduh.

Answer : Ya.

Question : Pada hari yang sama, iaitu 2.9.1997, adakah SAC Musa bertemu dengan Dato Seri Anwar di pejabat Timbalan Perdana Menteri?

Answer : Saya pohon keizinan untuk merujuk diary saya. Saya perlu merujuk kepada diary terlebih dahulu.

Question : Pada ingatan kamu adakah kamu nampak SAC Musa masuk ke dalam pejabat Timbalan Perdana Meneri untuk berjumpa dengan tertuduh pada hari itu?

Answer : Saya tidak nampak.

Question : Sebelum ASP Zull Aznam memberitahu kamu mengenai kehadiran SAC Musa adakah kamu menghubungi SAC Musa melalui telefon untuk memaklumkan kepadanya bahawa Timbalan Perdana Menteri ingin berjumpa dengan SAC Musa.

Answer : If I had called SAC Musa for the appointment I would have definitely entered it in the diary.

Question : Saya mengatakan pada kamu bahawa kamu ada menelefon SP13 pada hari itu untuk memaklumkan padanya bahawa Timbalan Perdana Menteri iaitu tertuduh ingin berjumpanya di pejabat Timbalan Perdana Menteri.

Answer : Soalannya sama.

Question : Sekarang saya mengatakan.

Answer : Saya tidak bersetuju."

The first matter for determination is whether the meeting on 2 September 1997 did in fact take place as described by SAC Musa. The accused started off by saying in his examination-in-chief that he could not remember the date of the meeting. He then qualified it by saying that he had only one meeting with SAC Musa, that is to say, when his police statement was recorded. It must be noted that the accused’s police statement was recorded by SAC Musa on 19 August 1997. My earlier finding that the accused did in fact meet SAC Musa on 30 August 1997 means that the accused had more than one meeting with SAC Musa contrary to his assertion. The cross-examination of the accused on this issue pre-supposed the fact that there was a meeting on that day but the accused did not challenge it in any way. Be that as it may, the accused’s answer given in his re-examination that with regard to the meeting on 2 September 1997 he could not recall what transpired except for what SAC Musa told on the progress of the investigation amounts to an admission that he did in fact meet SAC Musa on 2 September 1997. It follows that Azmin’s evidence that he must check his diary in order to ascertain whether SAC Musa met the accused on that day and that he did not see SAC Musa going into the accused’s office is an evasive attempt to avoid answering the questions. It is therefore my finding that SAC Musa did meet the accused on 2 September 1997.

The next matter for deliberation is whether the accused handed over Exhibits P20, P21 and P22 to SAC Musa and instructed him to stop the investigations. ASP Zull Aznam has confirmed that SAC Musa.asked him to get the witnesses ready on 2 September 1997. He also said that after he had informed the accused about the request of SAC Musa, SAC Musa came to see the accused. ASP Zull Aznam also said that after this meeting SAC Musa did not contact him again regarding the taking of statements from the witnesses. The evidence of SAC Musa is that no further action was taken on the investigation pursuant to what transpired between him and the accused at the meeting. This explains the evidence of ASP Zull Aznam that SAC Musa did not contact him again after 2 September 1997. So something must have transpired between SAC Musa and the accused at the meeting. In determining what transpired between them I shall first consider the accused’s denial that he handed over Exhibits P20, P21 and P22 to SAC Musa at that meeting. When these letters were referred to SAC Musa in his examination-in-chief he said,

"Ketiga-tiga dokumen ini adalah dokumen-dokumen yang diberikan kepada saya oleh tertuduh." SAC Musa was not cross-examined on this neither was it put to him that these letters were not handed over to him by the accused on 2 September 1997. Thus the accused’s evidence that he did not hand them to SAC Musa becomes very weak. The accused has also denied that he gave any instructions to SAC Musa at the meeting. But he said that he reminded SAC Musa of YAB Prime Minister’s " … instructions as reported in the papers." If he did not give the instructions to SAC Musa as testified by the latter I do not see the relevance of the accused’s reference to YAB Prime Minister’s statement at the meeting unless it was preceded by other instructions. Be that as it may, it is the case for the prosecution and also the basis of the cross-examination of SAC Musa that the accused referred to YAB Prime Minister’s press statement to SAC Musa at the meeting on 30 August 1997. It was neither the case for the prosecution nor that of the Defence, at that stage, that the accused referred to YAB Prime Minister’s press statement to SAC Musa on 2 September 1997. In my opinion therefore the alleged reference of the statement to SAC Musa, as the accused said he did, on 2 September 1997 is because of too many shifts by the accused in his line of defence from that adopted in cross-examination, the variations and denials in his testimony and the resultant confusion arising therefrom. In the premises the accused’s evidence must be looked at with grave suspicion. It is my view that the fact that upon receipt of Exhibits P20, P21 and P22 SAC Musa took immediate steps to recommend that no further action be taken on the investigation supports his evidence that he received instructions from the accused to do so. It is therefore my finding that the accused gave instructions to SAC Musa to stop the investigation upon handing over to him Exhibits P20, P21 and P22. I must also point out that SAC Musa had agreed to a Defence suggestion that these letters together with Exhibits P17 and P18 made him recommend that no further action be taken in the matter. I am therefore unable to give any credence to the cautioned statement of the accused, Exhibit D72, where he had said that he did not instruct any police officer to stop the investigation. On the evidence adduced I am also unable to agree with the Defence submission that the accused used Exhibits P20 and P22 only on 25 August 1998 when he wrote to YAB Prime Minister. In the premises it is my finding that the accused had used Exhibits P20 and P22 to stop the investigation in order to save himself from any criminal action. The pre-mature termination of the investigation is an advantage to the accused as it thereby prevents the relevant authorities from making a decision on a possible prosecution. The accused has therefore saved himself from any criminal action by using Exhibits P20 and P22.

It is therefore my finding that the Defence has not raised any reasonable doubt, on the whole of the evidence adduced, on the issue of the advantage obtained by the accused. I therefore hold that this element has been proved beyond reasonable doubt.

The findings that I have made reduce to dust the defence of the alleged police conspiracy. I say this because despite the fact that this alleged defence was pursued with much persistence no evidence was adduced to show that the prosecution evidence had been fabricated as a result of such a conspiracy. No suggestions were put to the police witnesses in their cross-examination, or, for that matter, even when Dato Mohd Said and Dato Amir Junus were recalled by the Defence, so as to give them an opportunity to explain whether they had fabricated evidence against the accused pursuant to a police conspiracy. The only suggestion of fabrication that was put was to Dato Amir Junus. But it had nothing to do with a conspiracy by the police but more by Dato Amir Junus for personal reasons. It was put to him that he gave false and fabricated evidence against the accused to save his skin, his gratuity and his pension rights. This was denied by him. The accused alluded to a conspiracy against him by saying that the attitude of the police changed against him in 1998 as compared to in 1997. The findings that I have made show why there was such a change. Thus the story of the alleged police conspiracy collapsed even before it could take off. On the contrary my acceptance of the alternative submission of the Defence that Dato Mohd Said and Dato Amir Junus were accomplices of the accused leaves no room for doubt that it was the accused who had led them into a conspiracy in order to cover-up the allegations that had been made against him so as to safeguard his position. The allegations remained covered-up from August 1997 to June 1998 when the accused caused a police report to be made on Buku 50 Dalil. The resultant investigation into this report by another branch of the Police Department revealed the involvement of the Special Branch in procuring Exhibits P17, P18, P20 and P22 on the directions of the accused. Therefore what was covered-up by the accused was exploded by he himself when he caused the report to be made. The explosion exposed the truth. Until then it was the belief of all persons concerned that the allegations against the accused had been lawfully and voluntarily withdrawn. It was this belief that caused YAB Prime Minister, the Honourable Attorney General and the IGP to issue statements saying that the complaints against the accused were baseless. If not for the police report made into Buku 50 Dalil they and the people of Malaysia would have continued with that belief. The reality that must now be faced is that the statements that were issued cannot in any way be the yardstick for arguing that since the accused had been declared to be innocent in 1997 the change in attitude towards him in 1998 was due to a conspiracy and fabrication of evidence by the accused himself. The change in attitude developed late simply because the truth had been hidden earlier.

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