THE SUBMISSIONS OF PARTIES AT THE CLOSE OF THE CASE FOR THE PROSECUTION

I shall deal with a major part of the submission of the parties and my response thereto now while some other features of the submission will be highlighted in the context of the relevant parts of the judgment as it progresses.

(i) The standard of proof on the prosecution at the close of its case

In contending that the standard of proof on the prosecution at the close of its case is beyond reasonable doubt the Defence conceded that this is governed by Section 180 of the Criminal Procedure Code which reads as follows:

"180 (1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prime facie case against the accused

(2) If the court finds that the prosecution has not made out a prima facie case against the accused, the court shall record an order of acquittal

(3) If the court finds that a prime facie case has been made out against the accused on the offence charged the court shall call upon the accused to enter on his defence."

 It was argued that the phrase "prima facie" which has not been defined in the section means "beyond unreasonable doubt". In support of this argument the Defence referred to Munusamy v PP (1987) 1 MLJ 492 where it was held that if an accused person remains silent after the Court has ruled that there is a prima facie case he must be convicted. As the trial could end at that stage the proof required at the close of the case for the prosecution is beyond reasonable doubt. The result, as contended, is that the Court must as of necessity evaluate the evidence of the prosecution witnesses at that stage on a maximum evaluation of credibility and reliability. It was submitted that this Court is bound by the judgment of the Court of Appeal in Lt Kol Yusof bin Abdul Rahman v Kol Anuar bin Md Amin (1997) 1 MLJ 562.

The standard of proof on the prosecution at the end of its case has been subject to some judicial controversy culminating in amendments to the Criminal Procedure Code in this area of the law. In Lt Kol Yusof bin Abdul Rahman v Kol Anuar bin Md Amin (1997) 1 MLJ 562 Mahadev Shankar JCA in speaking for the Court of Appeal reviewed cases such as Haw Tua Tau v PP (1981) 2 MLJ 49, Arulpragasan a/l Sandaraju v PP (1997) 1 MLJ 1, Junaidi bin Abdullah v PP (1993) 3 MLJ 217, Khoo Hi Chiang v PP (1994) 1 MLJ 265 and the proposed amendments to the Criminal Procedure Code at its Bill stage which has now become law and said at pp 575 — 576,

"Standing by itself, the term ‘prima facie’ means ‘at first sight’. But a ‘prima facie’ case means a case has proceeded to that stage where it is regarded as proved because the evidence led supports such a finding if evidence to the contrary is disregarded. See Black’s Law Dictionary (4th Ed) which goes on to say: ‘A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side.’ This definition is no different from that contained in Mozley and Whiteley’s Law Dictionary (11th Ed, 1993) which reads (at p 208): ‘A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side.’ With the greatest respect to all concerned, we think that the implications of what constitutes ‘a prima facie case’ in a jury trial and a trial in which a judge is sitting alone are quite different. The omission to appreciate this appears to have resulted in the importation of judicial dicta from jury trials in Commonwealth countries which has only served to cloud the real issues in Malaysia.

Where a judge is sitting with a jury, what he considers to be a prima facie case is of necessity circumscribed by his limited role on the issue as to whether there is evidence to go to the jury (see R v Galbraith (1981) 73 Cr APP r 124 referred to by Edgar Joseph Jr SCJ in Khoo Hi Chiang (1994) 1 MLJ 265 at p 290). The relevant passage in this judgment is set out in full in his judgment in Arulpragasan at p 43). The equation of such a duty to a judge sitting alone as though a prima facie case meant the same thing in a summary trial is not correct in the Malaysian context."

 And at pp 577 — 578, "To put it another way, what the Court is concerned with at the close of the prosecution’s case is the probative force of the prosecution’s evidence. Taken in its totality, its force must be sufficient (if no further evidence is adduced to the contrary) to induce the Court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. This exercise cannot be postponed to the end of the trial. The law requires the Court to carry it out then and there whether or not the submission is made and before the Court announces its decision to call for the defence.

In summary trials, therefore, establishing a prima facie case is simply just another way of saying that the prosecution evidence at its close must be such as would, if unrebutted, warrant the conviction of the accused. However, for the benefit of those who see more in Haw Tua Tau than they should, this does not mean that a conviction should automatically follow if the defence is called. That will happen if the defence calls no evidence at all to rebut the prosecution case, and does nothing before the end of the trial to dissuade the Court from the view it has taken. In other words, calling for the defence is not of itself a pronouncement of guilt or a conviction but a ground for proceeding with the next stage of the case when it becomes the accused’s obligation to tip the scales of justice back in his favour.

The degree of proof required to establish a prima facie case is easiest demonstrated by asking ourselves what the Court should do after the defence is called, if the accused elects to remain silent, calls no evidence, and cannot come up with any good reason why the earlier conclusion was wrong, eg, by bringing new authorities which take a different view of the law or pointing out some inherent weaknesses in the prosecution case he may have overlooked earlier. Thus unqualified, and unrebutted the Court has to convict on the very same material. Nobody would dare suggest as a matter of prudence that the degree of proof required at this stage is not proof beyond all reasonable doubt. Nobody has yet satisfactorily explained why it should be any different at the close of the case for the prosecution in a summary trial. Each state (sic) calls for the decision by the judge or magistrate of a legal issue which only predicates that degree of certainty required by s 3 of the Evidence Act.

Consequently, it is the opinion of this Court that merely because some parts of the prosecution evidence support the charge, the defence should not be called regardless of the state of the rest of the evidence. The Court must make an assessment of the prosecution evidence as a whole and must acquit if it cannot accept the prosecution’s case because it cannot be believed (or is not credible — it means the same thing) by reason of material contradictions or for any other reasons."

 What emerges from this illuminating judgment is clear. The meaning of a "prima facie" case in Section 180(1) of the Criminal Procedure Code must be understood in the context of a non-jury trial. A prima facie case arises when the evidence in favour of a party is sufficiently strong for the opposing party to be called on to answer. The evidence adduced must be such that it can be overthrown only by rebutting evidence by the other side. Taken in its totality the force of the evidence must be such that, if unrebutted, it is sufficient to induce the Court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be postponed to the end of the trial a maximum evaluation of the credibility of witnesses must be done at the close of the case for the prosecution before the Court can rule that a prima facie case has been made out in order to call for the defence. Be that as it may, I am unable to agree with the Defence submission that this means that the prosecution must prove its case beyond reasonable doubt at that stage. A case can be said to have been proved beyond reasonable only upon a consideration and assessment of all the evidence (see Canadian Criminal Evidence 3rd Ed by P K McWilliams QC para 39:10000). It must be observed that in a criminal trial if the defence raises a reasonable doubt as to the truth of the prosecution case or as to the accused’s guilt there will be an acquittal, and if no such doubt is raised, a conviction (see Mah Kok Cheng v R (1953) MLJ 46). This evidential burden may be discharged by the defence either in the course of the prosecution case or in the course of its own case (see Wong Chooi v PP (1967) 2 MLJ 180). It follows that a case cannot be said to have been proved beyond reasonable doubt until the accused has concluded his case. A trial is said to be concluded when the accused, after he has been called upon to enter his defence, either elects to remain silent or gives a statement from the dock or gives evidence on oath. If the accused elects to remain silent and fails to show why the finding of prima facie case is wrong for any reason the case will be said to have been proved beyond reasonable doubt as the accused will have no more opportunity of raising a reasonable doubt. Where the accused gives a statement from the dock or gives evidence on oath the Court will have to consider all the evidence before it. If the Court is satisfied that no reasonable doubt has been raised in that exercise the case will similarly be said to have been proved beyond reasonable doubt. This accords with the new Section 182A of the Criminal Procedure Code which provides that at the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt. Thus a prima facie case as prescribed by the new Section 180(1) of the Criminal Procedure Code must mean a case which if unrebutted would warrant a conviction.

 (ii) Whether only two charges should have been preferred against the accused

In submitting that only two charges ought to have been preferred against the accused the Defence contended that the first and the third charges should have been the basis of one charge and the second and fourth charges of the other. However, no reasons were advanced in support of the argument apart from a mere statement to that effect. It is probably anchored on the similarity of the factual matrix of the two sets of charges in that the manner in which the accused used his position and the advantage he obtained thereby are the same.

This submission is answered by Section 165(1) of the Criminal Procedure Code which provides that if in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Illustration (b) to the section is a good example of how the section operates. It reads as follows:

"A has in his possession several seals, knowing them to be counterfeit, and intending to use them for the purpose of committing several forgeries punishable under section 446 of the Penal Code. A may be separately charged with and convicted of the possession of each seal under section 473 of the Penal Code." The test in determining whether two or more acts constitute the same transaction was laid down in the Indian case of Amrita Lal Hozra v Emperor 42 Cal 957 in the following words: "It is not possible to frame a comprehensive formula of universal application to determine whether two or more acts constitute the same transaction; but circumstances which must bear on the determination of the question in an individual case may be easily indicated: they are proximity of time, unity or proximity of place, continuity of action and community of purpose." This test has been approved and applied in cases such as Jaafar bin Hussain v PP (1950) MLJ 154; Chin Choy v PP (1955) MLJ 236; Cheong Sik Kwan v PP (1959) MLJ 189 and PP v Ridwan Kok bin Abdullah (1995) 2 MLJ 745.

In this case there can be no dispute that there was proximity of time, unity or proximity of place, continuity of action and community of purpose in respect of the charges. The events in respect of all the charges took place from 12 August 1997 to 3 September 1997. All the denial letters were obtained in a continuous series of acts for the purpose of having the allegations retracted. However, the transaction reveals more offences than one. The allegations were made by two separate persons in respect of two separate matters. The letters of denial were obtained from them on separate occasions and served separate purposes. Each of the acts referred to in the four charges therefore form a separate offence in respect of which separate charges can lawfully be preferred as done. I was therefore unable to agree with the submission advanced.

 (iii) Whether a police report must be lodged to commence an investigation

It was contended by the Defence that until now no police report has been lodged against the accused in respect of any abuse of power or corruption. It was argued that a police report must be lodged in respect of any crime in order to facilitate a proper police investigation and that there cannot be an investigation into an alleged crime without a complaint. The Defence referred to the police reports marked as Exhibits P16 and P56 and said that they are not complaints against the accused. P16 was made by ASP Zull Aznam on behalf of the accused on the advice of Dato Mohd. Said and Dato Amir Junus. P56 is a complaint of criminal defamation against the author of Buku 50 Dalil and was lodged by Azmin on behalf of the accused. In reply the prosecution said that SAC Musa testified that the investigation into the offences with which the accused has been charged was as a result of Exhibit P56. SAC Musa classified this report under Section 499 of the Penal Code for an offence of criminal defamation and said that it is normal procedure for the police to ascertain the truth or otherwise of the allegations in complaints of this nature. The prosecution concluded by saying that it is not unusual for a person who makes a report for himself to be charged when the investigation into the report made by him necessitates that course of action.

I agree with the submission of the prosecution that a person who makes a report on a matter may himself be charged as a result of investigation conducted by the police on the report. Such a course of action is not prohibited by Section 107(1) of the Criminal Procedure Code which deals with information relating to the commission of an offence. The section reads as follows:

"Every information relating to the commission of an offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant." The section merely relates to the giving of information about the commission of a crime and does not in any way prescribe the persons to be charged following the investigation. A report lodged pursuant to the section will be the basis upon which the police will commence their investigation. The word "information" in the section means something in the nature of a complaint or accusation or at least information of a crime, given with the object of putting the police in motion in order to investigate, as distinguished from information obtained by the police when actively investigating a crime (see Mallal’s Criminal Procedure 5th Ed paras 4152 and 4154). As the object of the section is merely to activate the investigative function of the police it does not mean that a person who makes a report cannot himself be charged if the investigation reveals an offence against him. Furthermore, the section does not say that there can be no investigation without a report. It has been held by the Privy Council that the receipt and recording of a report is not a condition precedent to the setting in motion of a criminal investigation and that there is no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged (see Emperor v Khwaja Nazir Ahmad AIR 1945 PC 18). It has also been held that a police report is not a condition precedent for the commencement of a criminal prosecution (see Apren Joseph v State of Kerala AIR 1973 SC 1; Herchun Singh & Ors v PP (1969) 2 MLJ 209). I also refer to PP v Foong Chee Cheong (1970) 1 MLJ 97 where Gill J (as he then was) said at pp 97 — 98, "However important a document a first information report is, it can never be treated as a piece of substantive evidence and the fact that no first information report was made is not in itself a ground for throwing out a case. The powers of the police to investigate do not depend solely on Chapter XIII of the Criminal Procedure Code. The duties of a police officer as set out in section 20 of the Police Act, 1967 include apprehending all persons whom he is by law authorised to apprehend and these duties are amplified in section 23 of the Criminal Procedure Code. Most of these duties imply a power to investigate whether there has been an information under section 107 of the Criminal Procedure Code or not. (See Vellasamy v Rex (1941) MLJ 233.)" I therefore held that the investigation and prosecution of the accused based on Exhibits P16 and/or P56 is valid in law. In any event there is no requirement that such investigation and prosecution must be based on a police report with the result that the action instituted against the accused is valid in law notwithstanding the absence of a police report against him.

 (iv) Evidential value of the accused’s cautioned statement at the close of the case for the prosecution

On 27 September 1998 the accused made a cautioned statement (Exhibit D72) which was tendered in evidence by the Defence. The material parts of it read as follows:

"S: Adakah Dato Seri faham amaran yang telah dibacakan kepada Dato’ Seri?

J: Ya, saya faham.

S: Adakah Dato’ Seri ingin menanya apa-apa berkaitan dengan amaran tersebut?

J: Saya ingin menegaskan bahawa saya seharusnya berhak menemui pegumbela segera memandangkan pertuduhan-pertuduhan yang begitu banyak terhadap saya. Saya juga bimbang keadaan fisikal saya lebih-lebih lagi setelah dipukul sebaik sahaja saya dimasukkan ke-dalam lokup Bukit Aman pada malam Isnin yang lalu.

S: Adakah Dato’ Seri mengarahkan beberapa pegawai Polis untuk menutup kes Dato’ Seri berhubung surat layang yang disiasat oleh polis?

J: Tidak.

S: Adakah Dato’ Seri ingin menambah apa-apa atau meminda apa-apa didalam kenyataan ini?

J: Tidak. "

 It was the contention of the Defence that the Court should consider the cautioned statement as it is evidence pursuant to Section 113 of the Criminal Procedure Code.

The law relating to the evidential value of a cautioned statement which is exculpatory, as the cautioned statement of the accused in this case is, is well settled. In Pendakwa Raya v Mansor bin Mohd Rashid (1996) 3 MLJ 560 Chong Siew Fai CJ (Sabah and Sarawak) in writing for the Federal Court referred to a plethora of authorities such as PP v Adetunji Adeleye Sule (1993) 2 MLJ 70, PP v Chan Kim Choi (1989) 1 MLJ 404 and R v Storey and Anwar (1968) 52 Cr App R 334 and said at pp 575 — 576,

"In relation to the use of the exculpatory statement of the first respondent (D25), we note that the learned trial judge had used the statement to conclude that Amran occupied room ‘K’ in the house. Learned counsel for the first respondent had also submitted before us that the first respondent’s statement, D25, showed that he (the first respondent) did not negotiate nor did he ask the second respondent to buy the cannabis. With respect, we are of the view that the approach was wrong. A purely exculpatory or self-serving statement is not evidence of the facts stated though it may be admitted to show the reaction or attitude of the accused at the time when he made it. And in considering whether there is a case to answer, the trial judge ought not take into account such a statement as the basis for founding an order of acquittal and discharge." As Edgar Joseph Jr FCJ explained in PP v Adetunji Adeleye Sule (1993) 2 MLJ 70 a cautioned statement which is wholly exculpatory should not be made the foundation of an order of acquittal especially at the close of the case for the prosecution, since at that stage the accused not having given evidence himself, his explanation could not be tested by cross-examination.

It is therefore clear that the cautioned statement made by the accused cannot be made the foundation of an order of acquittal at the close of the case for the prosecution. It may warrant consideration at the end of the trial when the accused has adduced evidence.

(v) The effect of carrying out investigation into the case after the accused was charged

The Defence argued that in this case the investigation was not complete when the accused was charged. Reference was made to PP v Tan Kim San (1980) 2 MLJ 98 to say that this is wrong in law.

I agree that in normal circumstances an investigation should be complete before a person is charged. It would surely be wrong to commence a prosecution without any investigation at all on the material ingredients to be proved. Where such investigation has been carried out I do not see any illegality with the police carrying out further investigation to suit the exigencies of a case as it unfolds itself once the trial has commenced. In this case the evidence of SAC Musa makes it clear that the police had recorded the necessary statements from the witnesses between June and September 1998. That was before the accused was charged in court. The further investigation conducted by SAC Musa was with regard to the DNA tests which have now been expunged and the recording of some further statements. Though the evidence relating to the DNA tests is no longer relevant SAC Musa explained that the delay in conducting this investigation was due to difficulties in obtaining blood samples from the accused. The recording of statements from MaAmin and Rahim King after the trial commenced is not unreasonable as their role assumed prominence only when Exhibits D55 and D90 were tendered by the Defence. I was therefore unable to say with confidence that the prosecution charged the accused first and investigated later. When he was charged the necessary investigation had been carried out. It cannot therefore be said that the investigation was not complete when the accused was charged. In any event, the court is not concerned with when and how evidence was obtained but only with its admissibility (see Ng Yin Kwok v PP (1989) 3 MLJ 168).

 (vi) Whether it is permissible for a witness to see his statement given to the police under Section 112 of the Criminal Procedure Code before giving evidence

In this case ACP Mazlan had given a statement to the police. On being asked in cross-examination about this statement he said,

"Kalau saya ta’ silap I gave a statement under section 112 CPC sometime early September or end of August tahun ini. Saya ada satu salinan statement itu. Pegawai penyiasat memberi satu salinan kepada saya." In objecting to the statement having been given to ACP Mazlan the Defence said this, "The evidence of PW1, PW2, PW7 and PW11 beats an IBM computer in its details. Is it humanly possible to remember such exact details as to the time and conversations? It is submitted that the evidence of the said witness in such exact and minute details is impossible and incredible. It is submitted that they must all be coached to give such detailed evidence. See: PP v Datuk Harun bin Idris (1977) 1 MLJ 15, 19.

The secret was revealed when SP7 said that he was given his 112 CPC statement by the investigating officer. The investigating officer Musa (PW13) denied giving any 112 CPC statement to witnesses. He said 112 CPC statements are privileged. If PW7 had his 112 CPC statements, why should not all the other prosecution witnesses be given 112 CPC statements so that they can follow their 112 CPC statements and give ‘coached’ evidence. See: Moomin bin Seman v PP (1993) 3 MLJ 282. The giving of 112 CPC statements also renders nonsensical the provisions of Section 159 of the Evidence Act 1950. No wonder the exact details are too good to be true. See: Dato Mokhtar Hashim v PP (1983) 3 MLJ 232."

 This submission, couched in language in the way it was advanced, could have been better articulated with a more legal undertone. Be that as it may, the principal argument of the Defence is that the statement should not have been shown to the witness as it violates Section 159 of the Evidence Act 1950 following its interpretation in Moomin bin Seman v PP (1993) 3 MLJ 282. In that case Richard Tallalla J held that the giving of a police statement to a witness before he gives evidence has the effect of negating Sections 159 and 160 of the Evidence Act 1950. In so ruling his Lordship declined to follow cases such as R v Richardson (1971) 2 All ER 773 and Lim Hong Yap v PP (1978) 1 MLJ 154. In the latter case Wee Chong Jin CJ said at p 158, "We agree that there can be no general rule that witnesses may not before trial see the statements they made at some period reasonably close to the time of the event which is the subject of the trial. Indeed one can imagine many cases, particularly those where the material witnesses are persons such as police officers or narcotic officers whose daily duties consist of investigating activities of a criminal nature, where such a role would militate very greatly against the interests of justice.

In England, in R v Westwell (1976) 2 All ER 812, the Court of Appeal, Criminal Division, has also held that the fact that the prosecution has failed to inform the defence that witnesses had seen their statements before giving evidence can be no bar to conviction. In our opinion the law is the same in Singapore."

 I am unable to see why the law should be any different in Malaysia. In my opinion a police statement can be shown to a witness before he gives evidence. There is no legal prohibition against this. Section 159 of the Evidence Act 1950 is confined in its operation to contemporaneous statements and, in this case the police statement is obviously not a contemporaneous one. In any event, the section is restricted in its operation to refreshing of memory "while under examination". As Sarkar on Evidence 15th Ed Vol II says at p 2295, "But the words do not seem to debar a witness from referring to any such writing before his examination." To that extent I part company with the views expressed by Richard Tallala J in Moomin bin Seman v PP (1993) 3 MLJ 282. I pause to add that the weight of the evidence of a witness who gives evidence after having seen his police statement may be affected on the facts of a particular case. In this case ACP Mazlan was not cross-examined beyond asking him whether he had seen his statement. The cross-examination ought to have proceeded further in order to enable the court to determine whether the Defence had been prejudiced by the witness having seen the statement. The other witnesses referred to by the Defence were not cross-examined as to whether they had been shown their statements. I am unable to agree with the suggestion that they were coached based on the way they gave evidence and on the totality of the evidence adduced.

 (vii) Whether an adverse inference should be drawn against the prosecution for failure to call certain witnesses

The Defence contended that an adverse inference should be drawn against the prosecution for its failure to call as witnesses YAB Prime Minister, the Honourable Attorney General, Tun Daim Zainuddin, Dato Seri Megat Junid, the IGP, Dato Ismail Che Ros, Dato Aziz Shamsuddin, ASP Zull Aznam, Azmin and Shamsidar.

The provision of law that deals with the drawing of an adverse inference for failure to call a witness is Section 114(g) of the Evidence Act 1950 which reads as follows:

"The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.
ILLUSTRATIONS
The court may presume —

………

(g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;"

 The scope of this subsection was considered by the (then) Supreme Court in Munusamy v PP 1987) 1 MLJ 492 where Mohamed Azmi SCJ said at p 494, "It is essential to appreciate the scope of section 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case." It is settled law that in a criminal trial the prosecution has a discretion, provided that there is no wrong motive, as to whether or not to call any particular witness and in particular has a discretion not to call in support of its case a witness whom it does not believe to be a witness of truth (see Khoon Chye Hin v PP (1961) MLJ 105; Adel Muhammed El Dabbah v Attorney General for Palestine (1944) AC 156). There is no obligation compelling the prosecution to call all witnesses who speak to facts which it desires to prove (see Malak Khan v Emperor 72 IA 305). Thus the prosecution is not duty bound to call all the witnesses from whom statements may have been taken (see PP v Teh Cheng Poh (1980) 1 MLJ 251). This accords with Section 134 of the Evidence Act 1950 which provides that no particular number of witnesses shall in any case be required for the proof of any fact. This section enshrines the well recognised maxim that "evidence has to be weighed and not counted." As a general rule a court can and may act on the testimony of a single witness though uncorroborated and one credible witness outweighs the testimony of a number of other witnesses of indifferent character (see Vadivelu Thevar v State of Madras AIR 1957 SC 614). What is significant is that the prosecution must call the necessary witnesses to unfold the narrative upon which its case is based. In this regard reference may be made to the advice delivered by the Privy Council in the celebrated case of Seneviratne v R (1936) 3 All ER 36 where Lord Roche said at p 48, "Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination." On the type of witnesses who must be called by the prosecution Lord Roche said in the same case at p 49, "Witnesses essential to the unfolding of the narrative upon which the prosecution case is based must, of course, be called by the prosecution whether in the result the effect of their testimony is for or against the prosecution." Thus an adverse inference for not calling a witness cannot be drawn if there is sufficient other evidence to support the prosecution case (see Namasiyiam and Ors v PP (1987) 2 MLJ 336). No adverse inference can also be drawn when a witness has been offered for cross-examination (see Saw Thean Teik v R (1953) MLJ 124) or has been made available to the defence and the defence did not call the witness (see PP v Chee Kon Fatt (1991) 2 CLJ 2564). If a witness has been made available to the defence there can be no suggestion, as stated by Lord Thankerton in the case of Adel Muhammed El Dobbah v Attorney General for Palestine (1944) AC 156, " … that the prosecutor has been influenced by some oblique motive" (see Samsudin v PP (1962) MLJ 405). However, where the prosecution evidence falls short of proving a prima facie case the right of not calling a witness by merely offering him to the defence will not be available (see Abdullah Zawawi v PP (1985) 2 MLJ 16; PP v Chew Yoo Choi (1990) 2 MLJ 444; Teoh Hoe Chye v PP (1987) 1 MLJ 250).

I shall now consider whether an adverse inference should be drawn against the prosecution for its failure to call the witnesses referred to in the submission of the Defence.

YAB Prime Minister and the IGP

The Defence submitted on the materiality of these two persons based on Exhibits D25, IDD23 and IDD24. D25 is a report sent by Dato Mohd Said to YAB Prime Minister. It was contended that this report stated that there were persons hiding behind the curtain in making the allegations against the accused with an agenda of their own and that YAB Prime Minister and the IGP are material witnesses with regard to this report. It was further contended that in a second report sent to YAB Prime Minister these names were mentioned and that this could have been denied if these two persons had been called as witness by the prosecution. IDD23 is a press report where YAB Prime Minister was reported to have said that there was no case with regard to the allegations against the accused. IDD24 is a similar press statement by the IGP.

In my opinion the argument raised by the Defence to portray the significance of YAB Prime Minister and the IGP as material witnesses in reliance on the exhibits referred to has only to be stated to be rejected. With regard to Exhibit D25 the material witness is its author, Dato Mohd Said, who was extensively cross-examined on it. If the Defence wanted further clarification on this exhibit they ought to have questioned its maker when he was in the witness box or could even have applied to recall him for that purpose. That was not done. Thus both YAB Prime Minister and the IGP would be in no position to assist the court in answering any questions on Exhibit D25 as they would have no personal knowledge of its contents. The so-called second report was allegedly sent by Dato Mohd Said to YAB Prime Minister. Dato Mohd Said, after some lengthy questioning, said there was no such report. How this report can thus be considered as material when the evidence discloses that there was no such report is beyond my imagination. On the materiality of these two persons with regard to Exhibits IDD23 and IDD24 it must be observed that these exhibits, just as Exhibit D25 was, are Defence exhibits. It is the responsibility of the Defence to call the makers of the statements in the two press reports to prove them if the reports are considered material to its case. Alternatively, they could have been sought to be admitted under Section 81 of the Evidence Act 1950. It is no part of the prosecution’s function to discharge the evidential burden of the Defence. In the circumstances it was my view that the failure by the prosecution to call YAB Prime Minister and the IGP is not fatal to its case as their evidence is not necessary to unfold the narrative upon which the prosecution case is based.

The Honourable Attorney General and Dato Ismail Che Ros

It was contended by the Defence that the Honourable Attorney General and Dato Ismail Che Ros were material witnesses who ought to have been called in view of the part played by them with regard to the second and fourth charges. They met the accused together with SAC Musa on 30 August 1997 when the accused said that the allegations need not be investigated. On 3 September 1997 Dato Ismail Che Ros and SAC Musa decided to send the investigation papers to the Honourable Attorney General with a recommendation to take no further action on the case. On 8 September 1997 SAC Musa met the Honourable Attorney General who agreed to the recommendation.

It must be borne in mind that the crux of the advantages alleged to have been obtained by the accused in the second and fourth charges are the use of the denial letters by him. When he handed over the letters to SAC Musa on 2 September 1997 nobody else was present. Thus SAC Musa is the only witness who can testify on this fact. What happened thereafter is the action taken based on the letters. The evidence of SAC Musa is sufficient to narrate the action taken. Furthermore, the action taken was also not challenged by the Defence. In the circumstances the Honourable Attorney General and Dato Ismail Che Ros are in no position to testify on the use made by the accused of the denial letters to save himself from any criminal action. It was therefore my view that they were not essential to unfold the narrative upon which the prosecution case was based. Accordingly, they were not material witnesses who ought to have been called.

Tun Daim Zainuddin and Dato Seri Megat Junid

The Defence did not submit on the materiality of Tun Daim Zainuddin and Dato Seri Megat Junid as witnesses who ought to have been called apart from merely mentioning their names in respect of whom an adverse inference ought to be drawn for failure to call them as witnesses. The burden is on the Defence to show the importance of the evidence of these two persons which it failed to discharge. Be that as it may, the available evidence shows that their role in this case is minimal. Tun Daim Zainuddin merely met Ummi to listen to her complaints while Dato Seri Megat Junid only met Ummi on some occasions and was alleged to have handed over a copy of Exhibit P14A, B and C to the IGP. As evidence of their meeting with Ummi is not relevant to the prosecution case they are not material prosecution witnesses. It was therefore my view that the failure by the prosecution to call them as witnesses is not fatal.

Dato Aziz Shamsuddin

Dato Aziz Shamsuddin is the Political Secretary to YAB Prime Minister. He is one of the persons to whom Ummi had handed Exhibit P14A, B and C to be handed over to YAB Prime Minister. According to Ummi Dato Aziz Shamsuddin is in possession of a taped conversation between the accused and Azizan where the accused is alleged to have asked Azizan to deny all the allegations. The Defence contended that the taped conversation ought to have been produced.

In my opinion Dato Aziz Shamusddin is not a material witness as the handing over of Exhibit P14A, B and C to YAB Prime Minister is not in issue in this case. The alleged request by the accused asking Azizan to deny the allegations as contained in the taped conversation, though of some importance, does not warrant the drawing of an adverse inference against the prosecution as it is not essential to the unfolding of the narrative upon which the prosecution case is based. Ummi has given oral evidence of the contents of the taped conversation. Such oral evidence is sufficient and the tape recording is only relevant as corroboration of the conversation. The Defence did not cross-examine Ummi to determine whether the taped conversation could have contained anything inconsistent with her oral evidence. I was therefore of the view that the non-production of the taped conversation was not fatal to the case for the prosecution. The possession of the taped conversation by Dato Aziz Shamsuddin does not therefore make him a material witness.

ASP Zull Aznam

The Defence contended that ASP Zull Aznam, being the maker of Exhibit P16, is an important witness. It was argued that he could have explained how and why the meetings between the accused and Dato Mohd Said and Dato Amir Junus were arranged. Further he could have explained how and why Azizan came to see the accused in or about June/July 1998 at his house after unsuccessfully trying to see the accused at his office.

In my opinion ASP Zull Aznam is not an important witness with regard to Exhibit P16 as he merely made the report on behalf of the accused. The making of the report is not disputed. In addition there is sufficient other evidence to explain the making of P16. With regard to the contention that he could have explained why the meetings between the accused and Dato Mohd Said and Dato Amir Junus were arranged sufficient evidence has been adduced by the prosecution on this issue. His explanation on how and why Azizan came to see the accused in or about June/July 1998 is not necessary as there is sufficient other evidence on it. Azizan has given his version of the meeting. If ASP Zull Aznam is in a position to provide an explanation for the meeting which is contrary to the assertion of Azizan then it is for the Defence to call him as its witness, if necessary, bearing in mind the fact that it is not the duty of the prosecution to prove the case for the Defence. I was therefore of the view that ASP Zull Aznam was not a material witness necessary to unfold the case for the prosecution.

Azmin

The Defence contended that Azmin, being the maker of Exhibit P56, is an important witness. It was argued that he could also have given evidence about the UMNO General Assembly in June 1998 and about the distribution at the meeting of Buku 50 Dalil which contained a reproduction of Exhibit P14A, B and C.

In my opinion Azmin is not an important witness with regard to Exhibit P56 as he merely made it on behalf of the accused. The making of the report is also not disputed. In addition there is sufficient other evidence to explain the making of Exhibit P56. His knowledge about the UMNO General Assembly in June 1998 and the distribution of Buku 50 Dalil and its contents at that meeting are not relevant to the issues in this case. I was therefore of the view that Azmin was not a material witness who ought to have been called by the prosecution.

Shamsidar

The Defence contended that Shamsidar is an important witness with regard to the allegation of sexual misconduct made against the accused.

As I had ruled that the truth or falsity of the allegations is not a fact in issue her evidence is not only immaterial but also irrelevant to the case for the prosecution. It follows that it was not necessary for the prosecution to have called her as a witness.

Notwithstanding what I have said thusfar I must also point out that all the witnesses referred to by the Defence in support of its argument were made available to the Defence and it exercised its right to call all of them except the Honourable Attorney General. As I said earlier this precludes the application of the presumption in Section 114(g) of the Evidence Act 1950 in view of the fact that the prosecution evidence did not fall short of proving a prima facie case without them.

(viii) Media Publicity

It was contended by the Defence that the extensive reporting of the evidence of witnesses given in this case in the media has weakened the value of the evidence adduced. It was pointed out that Dato Amir Junus’s evidence on the meaning of "gempar" is an indication of this.

This objection has some substance. It is equivalent to a person being present in court while evidence is being given and who is later called as a witness. Local cases have taken the view that the fact that a witness remains in court during the progress of a trial is no ground for refusing to allow him to give evidence, although it may reduce the weight to be attached to such evidence as may be given (see Edwards v East India Co (1840) 3 Ky 6; Mohamed Nor v PP (1939) MLJ 305).

It is my misfortune to have to say that in this case there was no cross-examination of any of the witnesses to ascertain the extent to which they may have been influenced by media reports of the evidence adduced. Thus I am unable to say whether any witness has been so influenced. As far as I know this is perhaps the first case which has attracted so much media attention largely due to the public interest that it has generated. Given that trials are transparent and open to the public the media publicity given to the evidence adduced in this case is inevitable. However, that cannot be sacrificed at the altar of justice for the accused which is paramount. I have therefore made it my duty to scrutinise the evidence of every witness, particularly in cases where the evidence of witness is similar to that of a previous witness, in as much detail as possible in order to ensure that the accused is not prejudiced in any way by the media publicity.

(ix) Whether Dato Mohd Said, Dato Amir Junus, ACP Mazlan, DSP Aziz and SAC Musa are accomplices

It was the submission of the Defence that all these police officers are accomplices on the assumption that their version of the sequence of events is true.

The law relating to accomplice evidence is well settled. An accomplice is a person who has concurred fully in the criminal designs of another for a certain time, until getting alarmed, or from some other cause, has turned against his former associate, and gives information against him (see R v Mullins (1848) 3 Cox CC 526; Rattan Singh v PP (1971) 1 MLJ 162). This makes it clear that there can be no automatic finding that a person is an accomplice merely because of his actus reus. In this regard I refer to Ng Kok Lian v PP (1983) 2 MLJ 379 where Salleh Abas CJ (Malaya) (as he then was) said at p 382,

"To be an accomplice the witness who received the bribe must be the one who was abetting the offence of giving it committed by the accused the giver. Only then would the receiver be regarded as particeps criminis. This means that just as the giver is a principal offender requires mens rea, so does an accomplice witness who received the gratification. If he received the gratification innocently or without any corrupt motive or if he did not receive it at all, although it was given to him, as far as he is concerned the gift did not change its character to become an illegal gratification just because the giver (the accused) gave it with corrupt motive or with evil intention. Thus in every case when the issue is raised that a witness is an accomplice the Court must study the evidence and make the necessary finding. There can be no rule of law or evidence that a witness is automatically an accomplice just because of his actus reus. The whole idea is completely contrary to the basic concept of criminal liability." The court must first decide whether a witness is an accomplice (see Nathan v PP (1972) 2 MLJ 101). His credibility must then be assessed just like that of any other witness. The court must then decide whether his evidence is to be accepted without corroboration or not. This was explained by Cussen J in PP v Haji Ismail and Anor (1940) MLJ 76 at p 79 in the following terms: "There is no question of the mechanical application of any general rule of presumption. When it is a question of this particular presumption, the credibility of the witness who is in the position of the accomplice must be individually judged just as any other witness, the same consideration being applied, with the added one that he is an accomplice. The Court must consider who and what he is, his demeanour, bearing, the manner and quality and substance of his evidence in itself and in relation to all the circumstances of the case. The nature, quality and degree of his complicity must be examined. Then finally the Court must form its opinion whether he is to be given credit and his evidence accepted without corroboration or not." The degree of complicity of an accomplice has always been one of the matters to be considered in deciding whether or not corroboration can be dispensed with (see Soosay Dass v PP (1951) MLJ 57; Rauf bin Haji Ahmad v PP (1950) MLJ 190). Sometimes the accomplice is not a willing participant in the offence but a victim of it. When he acts under a form of pressure which it would require some firmness to resist, the Privy Council has held that reliance can be placed on his uncorroborated evidence (see Srinivas Mall Bairoliya v Emperor (1947) AIR PC 135). In The Queen v Liyanage (1965) 67 NLR 193 this view was adopted. The Court said at p 213, "Sometimes the accomplice acts under a form of pressure which it would have required some firmness to resist, as for instance when he is a subordinate police officer who receives orders from his superior in the force and finds it difficult to disobey such orders. The explanation to section 114 … show that ‘the force of the presumption to be drawn (against the evidence of an accomplice) varies as the malice to be imputed to the deponent’. Whatever attenuates the wickedness of the accomplice tends at the same time to diminish the presumption that he will not acknowledge and confess it with sincerity and truth." It was contended by the Defence that Dato Mohd Said, Dato Amir Junus, ACP Mazlan, DSP Aziz and SAC Musa were all particeps criminis and accessories before and after the fact in procuring or aiding and abetting the commission of the offence. It was argued that the offence alleged to have been committed by the accused could not have been committed without their participation. With regard to SAC Musa it was argued that his meeting with the accused on 30 August 1997 and his obtaining of Exhibits P17, P18, P19, P20, P21 and P22 followed by his recommendation to the Honourable Attorney General that no further action be taken on the investigation renders him an accomplice. It was contended that all these police officers may have done what they did in order to please the accused and turned against him upon commencement of investigation in order not to jeopardise their position. This is supported by the fact that they did not make any report against the accused. By implicating the accused they have saved themselves from any action and that there is a possibility that they have concocted the evidence against the accused in order to minimise their role.

The position of Dato Mohd Said, Dato Amir Junus, ACP Mazlan and DSP Aziz

I agree that without the participation of these witnesses the accused could not have committed the offences. Both Dato Mohd Said and Dato Amir Junus carried out the direction of the accused to obtain the letters from Ummi and Azizan. The direction given by the accused and the carrying out of it for the purpose of obtaining the letters constitute one of the elements in the charges. They instructed ACP Mazlan and DSP Aziz to change the stand of Ummi and Azizan within 24 hours. Dato Amir Junus said that the instruction given to ACP Mazlan and DSP Aziz to make Ummi and Azizan to retract their allegations is contrary to the practice of the Special Branch and that that was the first time the technique was applied outside their normal routine. He also said that the instructions given by the accused to him and Dato Mohd Said were similar to the instructions they gave to ACP Mazlan and DSP Aziz. Thus they had executed the design of the accused to obtain the letters from Ummi and Azizan. Without them the accused could not have committed the offences and the steps taken by them to obtain the letters show that they were fully conscious of what they were doing. I therefore ruled that Dato Mohd Said and Dato Amir Junus are accomplices.

On 17 August 1997 DSP Aziz was handed over copies of Exhibits P15 and P14A, B and C by ACP Mazlan. They were instructed by Dato Mohd Said to neutralise Ummi and Azizan within 24 hours. They understood the instructions they received to mean that they must change the stand of Ummi and Azizan so that they will withdraw all the allegations of sexual misconduct against the accused. The evidence also discloses that ACP Mazlan and DSP Aziz took active steps to obtain the letters from Ummi and Azizan by threatening them. DSP Aziz told Ummi that if she did not give the letter the accused may take retaliatory action against her. He took Azizan to the accused’s house on 18 August 1997 at 11.45 p.m. He said that what he was asked to do was very odd and outside his normal duties. Contrary to normal practice he was instructed to carry out his duties in this case before he could identify what kind of threat Ummi and Azizan posed. ACP Mazlan said that he felt it was strange for the Special Branch to use the turning over and neutralisation process in a case of this nature. When he was instructed to obtain the second set of letters from Ummi and Azizan (Exhibits P20 and P22) he was informed by Dato Mohd Said that the accused was not satisfied with Exhibits P17 and P18. A similar instruction was given by Dato Amir Junus to ACP Mazlan and DSP Aziz when he asked them to obtain the second letter from Ummi. It is therefore clear that ACP Mazlan and DSP Aziz knew that they were instructed by their superiors to obtain the letters on the direction of the accused. As they had actively participated in the offences committed by the accused they are also accomplices.

I shall now consider whether their evidence, subject to a finding on their credibility, requires corroboration. This depends on the degree of their complicity in the offences committed by the accused. Dato Mohd Said said that he had to follow the instructions given by the accused as he was the Deputy Prime Minister and not any ordinary person. He felt compelled to carry out the instructions and could not have refused them. Thus he had no choice in the matter. Dato Amir Junus was in a similar position. In addition he was also subjected to instructions from Dato Mohd Said, his superior officer, to carry out what the accused wanted. ACP Mazlan and DSP Aziz were subordinate police officers who carried out the orders of their superiors. They said that they felt compelled to carry out the instructions. It is therefore clear that all the police officers were not willing participants in the offences but victims of them. They acted under a form of pressure which would have required some firmness to resist. In fact they had no choice but to comply with the orders. In the circumstances reliance can be placed on their uncorroborated evidence subject of course to it being found to be credible.

The position of SAC Musa

The fact that SAC Musa met the accused on 30 August 1997 and that he obtained Exhibits P20, P21 and P22 followed by his recommendation to the Honourable Attorney General that no further action be taken on the investigation does not on its own make him an accomplice. To make such a finding on those facts would amount to an automatic finding that he is an accomplice merely because he was involved in the commission of the offences by the accused. On 30 August 1997 the accused merely told SAC Musa that the matter need not be investigated. SAC Musa did not agree to it. The handing over of Exhibits P20, P21 and P22 by the accused to SAC Musa on 2 September 1997 does not clothe him with the colour of an accomplice as, at that time, he did not know of the history of those documents. When he recommended that no further action be taken on the investigation based on these documents he did not know about the involvement of the Special Branch in their preparation. He came to know of that only very much later when he was investigating into Exhibit P56. Thus, even though SAC Musa acted on these documents he did not have the mens rea in the commission of the offences by the accused as he did not know the history of those documents. In the premises it is my view that he is not an accomplice.

(x) Credibility of witnesses for the prosecution

The Defence submitted on the credibility of Dato Mohd Said, Dato Amir Junus, ACP Mazlan, DSP Aziz, SAC Musa, Azizan and Ummi.

The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see Bhojraj v Sita Ram AIR (1936) PC 60). It must, however, be observed that being unshaken in cross-examination is not per se an all-sufficient acid test of credibility. The inherent probability or improbability of a fact in issue must be the prime consideration (see Muniandy & Ors v PP (1966) 1 MLJ 257). It has been held that if a witness demonstrably tells lies, his evidence must be looked upon with suspicion and treated with caution, but to say that it should be entirely rejected would be to go too far (see Khoon Chye Hin v PP (1961) MLJ 105). It has also been held that discrepancies and contradictions there will always be in a case. In considering them what the Court has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence worthless and untrustworthy (see De Silva v PP (1964) MLJ 81). The Indian Supreme Court has pointed out that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments (see Ugar v State of Bihar AIR (1965) SC 277). It is useful to refer to PP v Datuk Haji Harun bin Haji Idris (1977) 1 MLJ 15 where Raja Azlan Shah FJ (as His Highnss then was) said at p 19,

"In my opinion discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened … The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other." In the absence of any contradiction, however, and in the absence of any element of inherent improbability the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted (see PP v Mohamed Ali (1962) MLJ 257).

I shall now consider the credibility of the witnesses for the prosecution who came under attack by the Defence.

Dato Mohd Said

In cross-examination Dato Mohd Said was asked this question: "If someone higher than the Deputy Prime Minister were to instruct you to lie in court would you do it?" The Defence focussed on his answer, "I may or not lie" and said that it sums up his credibility and character with the result that no credence can be given to his evidence. The prosecution in reply said that this answer is purely hypothetical and that it must be understood in its proper context. It has been held that a hyper-technical approach by taking sentences torn out of context here or there from the evidence which does not go to the root of the matter would not ordinarily permit rejection of the evidence as a whole (see State of Uttar Pradesh v Anthony AIR (1985) SC 48). It is therefore necessary to consider the context in which Dato Mohd Said gave the answer. In this regard my notes of evidence read as follows:

"Question : If someone higher than the DPM were to instruct you to lie in court would you do it?

Answer : The point is no one asked me. It would depend on the situation. I may or may not lie.

Question : What are the instances when you would lie?

Answer : I would not know.

Question : You are a most unscrupulous man.

Answer : That is counsel’s opinion.

Question : I am justified in saying it from your own answer.

Answer : Your questions are like that.

Question : When would you lie?

Answer : I would not know."

 This line of questioning was continued by the Defence at the end of Dato Mohd Said’s re-examination with leave of Court. It runs as follows: "Question : You admitted earlier that you may or may not lie depending on the circumstances. I put it to you that you have an inclination to lie.

Answer : I do not have the inclination to lie and I have already informed the Court that I will not lie in this Court before the Judge. The original question asked by the Defence Counsel was a theoretical question.

Question : Earlier you had told the Court that you may or may not lie if an important man were to ask you to do so. I put it to you that you have an inclination to lie.

Answer : I have already answered it.

Question : I put it to you that since you said you may lie if asked by a person of importance, you are an unreliable person.

Answer : I am reliable."

 The answer of Dato Mohd Said that he may or may not lie is, as stated by him, in response to a theoretical question. It must be understood in the context of the evidence that I have reproduced and not in isolation. The answer given is so theoretical that Dato Mohd Said himself said that he would not know the instances when he would lie. It is a general and frank statement to suit the circumstances of a particular occasion. However, what is important is that he has said that no one had asked him to lie in Court and that he would not lie in this Court. It is also significant to note that he had said that he has no inclination to lie. Thus, the answer given by him is neutralised by the fact that no one had asked him to lie in Court and that he has no inclination to lie. If I were to accept the Defence contention, then, by the same token, I have to rule Dato Mohd Said as a reliable witness based on his answer given in cross-examination that he is reliable. Further, by the same process of reasoning of the Defence I will have to rule Dato Amir Junus as a credible witness based on his answer in cross-examination that he will not lie to save his skin. It is my view that the Defence argument is anchored on an isolated theoretical answer without taking into account the other circumstances of the case. In the final analysis the credibility of Dato Mohd Said depends on the evidence he has given in Court based on the principles of assessment of the credibility of a witness that I have discussed earlier and not, as contended by the Defence, on an isolated and a part only of an answer given.

The Defence also contended that Dato Mohd Said is a witness who kept changing his position. It was pointed out that when he was questioned as to whether he had sent a report to YAB Prime Minister his answer was a spontaneous no. When confronted with a press statement by YAB Prime Minister he resiled from his earlier position and admitted that he did send a report. He also denied having sent a second report when his answer showed that there was a second report. The fact that Dato Mohd Said admitted having sent a report to YAB Prime Minister after he was shown a press statement does not, to my mind, show that he kept on changing his position. It was not suggested to him that his earlier answer was a lie. The spontaneous answer he gave when he was referred to the press statement shows that he was reminded of the report that he had sent to YAB Prime Minister and had replied accordingly. With regard to the existence of the second report he said initially that at the most he could have sent two reports. Later he said that he does not think that there was such a report though he does not deny it. To a further question he again said that he does not think that there is such a report. Being pressed further he said that he could have sent one or two reports but most probably only one. Later he said that he does not think that there is another report. He then said that having looked at the first report he is quite certain that that could be the only report that he sent to YAB Prime Minister and that it is unlikely that he would have prepared a second report. Finally upon being questioned by the Court he said that he is quite certain that there was no second report. The answers given by Dato Mohd Said do not show that there was a second report. The general tenor of his evidence was that though he was not sure of the existence of the second report the probabilities are that there was none. I was satisfied with his answer when he said that he is quite certain that there was no second report. It is my view that the manner in which Dato Mohd Said answered the questions on both instances did not give me the impression that he was being evasive or was changing his position. He was just not sure of the reports. When a witness is not sure of an answer it does not mean that he is changing his stand. On the contrary it may suggest that he is truthful and also that he has not been coached. With regard to the questioning on the second report it must be noted that the questions were the same though couched in different words. The answers given are therefore understandable. The argument advanced thus has no substance.

The Defence also attacked the credibility of Dato Mohd Said by its reference to his change of language in describing the tone in which the accused asked him to act. It was contended that he said that in the initial stages the accused "requested" him to do certain things. After a 15-minute break in proceedings the witness suddenly changed the tone of his evidence. Instead of using the word "request" he used the word "directed" and thereafter used the same word. The Defence suggested that something drastic must have happened during the break. It was contended that as Dato Mohd Said was prepared to change the complexion of his evidence it affects his credibility. It was said that he was cross-examined on this point and that his reply was that he construed the word "request" as a "direction". For reasons which I will consider in a later part of the judgment I do not agree that the language used by Dato Mohd Said to describe his communications with the accused affects the colour of his credibility in any way. It must also be observed that Dato Mohd Said was not cross-examined or challenged on his sudden change of language from "requested" to "directed" as claimed by the Defence in its submission.

In my opinion therefore the challenge mounted by the Defence against the credibility of Dato Mohd Said is baseless. His version of the sequence of events is consistent with itself and fits in with the rest of the evidence adduced. He has withstood lengthy and vigorous cross-examination though I am aware that the fact that a person is unshaken in cross-examination is not an acid test of his credibility. In the circumstances of the case and coupled with his demeanour and the manner in which he gave evidence it is my firm finding that he is a credible witness.

Dato Amir Junus

It was contended that the evidence of Dato Amir Junus must be considered in the context of the evidence of Dato Mohd Said in that he did a repair job of the evidence of Dato Mohd Said and that what he said is riddled with embellishments, exaggerations and contradictions. The Defence in making this general statement did not condescend to particularise the allegation. Be that as it may, the law that I have referred to on the assessment of credibility of witnesses makes it clear that these features are common in the evidence of any witness. If they are of a material nature the evidence must be scrutinised with greater care unless its inherent improbabilities make it unsafe. My perusal of his evidence with meticulous care does not disclose any material embellishments, exaggerations or contradictions.

Another assault launched against the credibility of Dato Amir Junus was the approaches he made to the accused in respect of some contracts. What he said in cross-examination on this issue is as follows:

"Saya tidak bersetuju sama sekali bahawa saya ada berjumpa En Azmin Ali bercakap tentang projek perniagaan untuk saya. Saya ulang lagi sekali bahawa saya tidak pernah meminta apa-apa projek melalui En Azmin Ali. I never approached Azmin Ali for such favours. Melalui Azmin saya tidak pernah sekali-kali memohon apa-apa projek. Saya ada berjumpa tertuduh tetapi bukan melalui Azmin. Saya berjumpa dengan tertuduh. I agree that I introduced a friend to the accused with regard to a business matter. At that particular time belum lagi untuk saya participate dalam projek itu. Ada kemungkinan besar saya participate dalam projek itu apabila saya bersara. Berkenaan dengan ekuiti firma sekuriti di Sabah saya cuma menolong kawan saya. Kawan ini adalah kawan Dato Seri Anwar sendiri. Kalau saya ta’ silap, kawan itu adalah Dato Salleh Said Kruak. Saya setuju bahawa saya meintroducekan En Lau Thian Hock kepada tertuduh. Saya meluahkan perasaan saya untuk mendapat sebahagian dari ekuiti dalam satu firma sekuriti tetapi saya tidak mendapat apa-apa. I was not disappointed. I deny that I was trying to do some side business. Bagi saya, saya hanya menolong kawan saya bukan saya kecewa seperti yang dikatakan oleh peguam. I deny that I was disappointed and angry with the accused. Saya setuju saya ada membawa En Lau Thian Hock ke rumah tertuduh sebanyak 3 kali di atas persetujuan tertuduh. Saya tidak bersetuju dengan cadangan peguam bahawa saya telah memalukan tertuduh dan telah dimarahi oleh tertuduh kerana membawa Lau Thian Hock ke rumahnya. Saya tidak dapat apa-apa dari Lau Thian Hock. Saya tidak setuju bahawa saya ada mengatakan kepada tertuduh bahawa I was in SB for all my life and have no money. I deny that as a result I became very angry and frustrated. I deny that I still hold a grudge against the accused and that that caused me to exaggerate and embellish the evidence against him. Apa-apa keterangan yang saya beri dalam kes ini adalah mengikut kejadian-kejadian yang berlaku." Based on this evidence the Defence said that Dato Amir Junus was trying to make a fortune through the accused and must have thought that it was a golden opportunity to make big money. At this stage of the submission I enquired whether there was any evidence to support the argument. The reply was that it was put to the witness and that he did not agree. The extract from the notes of evidence that I have reproduced above shows that it was never put to him. Even if it was put to him it cannot become evidence when it is denied. The Court can only form inferences from the evidence adduced. Thus there is no evidence to show that Dato Amir Junus intended to make a fortune out of his connection with the accused. However, his evidence shows that he intended to participate in a business enterprise upon his retirement for which purpose he introduced a friend to the accused. He denied that he bears a grudge against the accused and that this caused him to exaggerate and embellish the evidence against the accused. I am unable to accept this argument because if Dato Amir Junus was indeed annoyed with the accused he would have lodged a report against him long ago. As a matter of fact he did not do anything about it till police started investigating into the matter after the report on Buku 50 Dalil (Exhibit P56) was lodged. It is clear that if there was no such investigation the question of Dato Amir Junus giving evidence against the accused would never have arisen.

When Dato Amir Junus was asked whether he had told the accused that his telephone had been tapped the answer was in the negative. When this matter was pursued by the Defence after a day’s break in the hearing Dato Amir Junus said,

"Saya ingin memberi penjelasan. Apa yang dikatakan oleh peguam ialah telefon tertuduh ditap pada 1996. Tetapi di sini saya ingin memberi penjelasan bahawa pada bulan Jun atau Julai, 1996 tertuduh telahpun berhubung dengan Pengarah Cawangan Khas pada masa itu, Dato’ Norian Mai, mengatakan bahawa terdapat kehilangan wang di rumah tertuduh. Dato’ Norian telahpun mengarah saya bersama dengan beberapa pegawai pergi ke rumah tertuduh dan membincang dengan tertuduh mengenai dengan kehilangan wang, kalau ta’ silap saya, 4 juta ringgit. In 1996 saya tidak katakan telefon itu ditap atau tidak. Pada tahun 1995 Dato’ Seri Anwar telahpun memberi kebenaran untuk telefonnya di rumah dimonitor untuk mengetahui siapakah yang melakukan pencurian di rumahnya. Saya tidak bersetuju bahawa saya berbohong. Saya tidak setuju bahawa ini adalah sesuatu yang baru saya reka. Saya tidak setuju bahawa saya telah memberitahu tertuduh yang telefonnya ditap kerana beliau mempunyai ramai musuh politik." It was contended by the Defence that the answer of Dato Amir Junus is tinged with vindictiveness. After the break in the hearing he was eager to answer the question and grabbed the opportunity to give an answer which was unrelated to the question. The answer was vicious and uncalled for. It is fabricated and totally irrelevant. If in fact the question of RM4 million is true it would have formed the subject matter of another charge. I agree with the Defence that the answer given by Dato Amir Junus was irrelevant. But it was an irrelevant answer to an equally irrelevant question. Be that as it may, it is not uncommon for witnesses who are asked certain questions to go further and explain the answer so as to portray a more accurate picture of the situation. If the examining party feels that the explanation is not necessary it is his duty to stop the witness. Although the questions and answers in connection with the tapping of the accused’s telephone are irrelevant I am unable to agree that the answers show vindictiveness on the part of Dato Amir Junus as alleged. No evidence was adduced to that effect nor does the evidence that I have reproduced support such an inference.

The argument of the Defence that Dato Amir Junus is a vindictive and dangerous witness whose evidence is embellished and exaggerated cannot withstand the forceful effect of Exhibits P42 to P47 which I have reproduced in an earlier part of the judgment. These are contemporaneous notes of the meetings that the accused had with Dato Mohd Said and Dato Amir Junus that the latter had made. These notes are consistent with the oral evidence of Dato Amir Junus and their authenticity was not challenged at all in cross-examination. On the evidential value of contemporary documents, like these notes, I consider it appropriate to refer to the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis (1968) 1 Lloyds’ R 403 where his Lordship in considering the judicial process in assessing the credibility of an oral witness said at p 431,

"Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident case, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance … All these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process. And in the process, contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." It has been held that the purpose of such evidence of a witness’s previous statements is and can only be to support his credit, when his veracity has been impugned, by showing a consistency in his oral evidence (see Fox v General Medical Council (1960) 3 All ER 225). As Dixon CJ said in Nominal Defendant v Clements (1960) 104 CLR 476 at p 479, "If the credit of a witness is impugned as to some material fact to which he deposes on the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction." As a witness’s credit is normally attacked in cross-examination it may be permissible to adduce evidence of his previous statement in re-examination (see R v Connolly (1991) 2 QD R 171). It is my view that the admission of the notes as evidence in the examination-in-chief of Dato Amir Junus is not objectionable as the substance of his evidence is similar to that of Dato Mohd Said which had already come under severe attack before the former gave evidence. The earlier admission of this evidence serves the purpose of giving the Defence an opportunity to challenge them in view of the defence advocated which, however, was not done. Be that as it may, the notes having been made contemporaneously with the meetings among the parties are also admissible under Section 6 of the Evidence Act as part of the res gestae (see Chhotka v State AIR 1958 Cal 482); Milne v Leisler (1862) 158 ER 686; Stanfield v Rosin (1966) Qd R 10; R v Dawes (1992) 2 Qd R 435) and under 157 of the same Act to show consistency (see Mohamed Ali v PP (1962) MLJ 230). I pause to say a few words about Section 157 of the Evidence Act 1950. ERSR Coomaraswamy in his book entitled The Law of Evidence Vol II Book 2 p 757, in commenting on Section 157 of the Sri Lanka Evidence Act which is similar to ours, says at p 757, "Nokes points out that Stephen’s conception of corroboration, as seen in Section 157 of the Indian Evidence Act, is now regarded as fallacious … Therefore the corroboration set out in Section 157 is only for the purpose of showing that the witness is consistent." In Ariyadasa v The Queen (1966) 68 NLR 257 TS Fernando J said, "The corroboration that section 157 contemplates is not corroboration in the conventional sense in which the term is used in courts of law, but in the sense of consistency in the conduct of the witness tending to render his testimony more acceptable." In my opinion therefore Exhibits P42 to P47, being contemporary documents, play a critical role in enhancing the credibility of Dato Amir Junus. His evidence is also consistent with the rest of the evidence adduced by the prosecution. He had withstood lengthy and vigorous cross-examination though I am aware that the fact that a person is unshaken in cross-examination is not an acid test of his credibility. I scrutinised his evidence with greater care bearing in mind the fact that he may have been aware of the evidence of Dato Mohd Said publicised in the media. Having taken into account these factors, the manner in which he gave his answers and based on his demeanour while giving evidence it is my firm finding that his evidence is credible.

ACP Mazlan and DSP Aziz

It was contended by the Defence that if the instructions given by Dato Mohd Said and Dato Amir Junus to ACP Mazlan and DSP Aziz were unlawful the latter were acting unlawfully as very senior and experienced police officers. Yet they said that they followed the law and did not do anything unlawful. They said that they only follow lawful orders and never follow unlawful orders. However, they unashamedly made confessions of unlawful conduct. What they did was against the law. It was contended that a police officer who admits to unlawful conduct can never be trusted or believed. The statutory obligations contained in the Police Act and the Criminal Procedure Code are dead letters and meaningless to such an officer. If they can turn over and neutralise people there is nothing to prevent them from themselves turning over against the accused who no longer holds office.

It is true that the evidence of ACP Mazlan and DSP Aziz reveal that they considered the turning over operation that they conducted on Ummi and Azizan as strange and odd. But it must be remembered that they were instructed by their superiors to carry out the operation. It does not mean that merely because they turned over and neutralised Ummi and Azizan there is nothing to prevent them from giving evidence against the accused for two reasons. Firstly, no such suggestion was put to them in cross-examination so as to give them an opportunity to counter such an allegation. Secondly, they have not given any evidence against the accused. Their evidence is merely confined to what they did pursuant to instructions from their superiors. If it was felt that their evidence was not true then their cross-examination ought to have been aimed in that direction which was not done. The relevant part of the evidence of ACP Mazlan and DSP Aziz pertinent to the charges are that they turned over Ummi and Azizan with the result that they gave the denial letters involuntarily. Yet no questions were directed at them in order to challenge their evidence that the letters were not given voluntarily. Thus the submission on their credibility is a mere conjecture unsupported by any evidence or inferences that can validly be drawn from answers given.

I found that both witnesses gave their answers in a frank and unhesitating manner without being evasive. They were unshaken in cross-examination though I am aware that the fact that a witness is unshaken in cross-examination is not an acid test for his credibility. Their evidence is consistent with the other evidence adduced in the case. I subjected the evidence of ACP Mazlan to greater scrutiny in order to ascertain whether he had been influenced by the media publicity of the evidence of other witnesses and by his police statement that he had read before giving evidence. In the circumstances it is my firm finding that the evidence of ACP Mazlan and DSP Aziz are credible.

SAC Musa

The Defence contended that the manner in which SAC Musa carried out his investigation shows that he is an interested witness. It was argued that he had been involved in this case from 15 August 1997 at the request of Dato Mohd. Said. He had witnessed conversations relating to investigations into Exhibits P16 and P14A, B and C. He participated in the arrest of Ummi and Azizan. He recorded a police statement from the accused on 19 August 1997. He met the accused together with Dato Ismail Che Ros and the Honourable Attorney General on 30 August 1997. He recommended that no further action be taken in the case and met the Honourable Attorney General on 8 September 1997 for the purpose of getting the latter’s approval in respect of his recommendation. In saying that SAC Musa swore highly damaging, vicious and prejudicial affidavits against the accused in Dato Nallakaruppan’s case the Defence posed this question: Can such an interested and vital witness be expected to conduct an independent, unbiased and aboveboard investigation? He was also involved in the cases involving Sukma and Munawar. The Defence also alleged that SAC Musa did not conduct a proper investigation to reveal the truth in that he did not take any statements from Datin Seri Wan Azizah nor did he take any statements from YAB Prime Minister, Tun Daim Zainuddin and Tan Sri Rahim Thamby Chik to rule out political conspiracy. Without having taken such statements he said in his evidence that he had ruled out political conspiracy.

I agree that an investigating officer must be independent and display a high sense of integrity. It is his duty to ensure that innocent persons are not charged and to that extent he must make every effort to discover the truth. With regard to the narration of the Defence on the course of action taken by him from 15 August 1997 to 8 September 1997 I am unable to comprehend the object of slipping it into this area of argument. If it is to show that SAC Musa, by taking those steps, had shown an interest in the case then it displays a poor understanding of the role of an investigating officer which is to gather information regarding a complaint. That was precisely what SAC Musa did in relation to a complaint handed to him. He did the acts which formed part of the subject matter of the argument of the Defence in the course of carrying out investigation into the complaint. Surely he cannot be penalised for doing what he is duty-bound to do. With regard to the affidavits he swore in the case of Dato Nallakaruppan I am unable to find anything wrong with it. Being the investigating officer in that case he was the most appropriate person to answer certain allegations raised in that case. In any event, it can only be a statement of his findings as of that date and may be affected by other facts that he might discover later. Thus it is irrelevant to the issues in this case. On the failure of SAC Musa to record statements from Datin Seri Wan Azizah, YAB Prime Minister, Tun Daim Zainuddin and Tan Sri Rahim Thamby Chik it is my view that an investigating officer cannot be faulted for not recording statements from persons whom he does not consider to be relevant to his investigation. In his re-examination SAC Musa explained that he did not record statements from some of these witnesses in view of the minimal role played by them in this case. Be that as it may, failure to record a statement from a person who may even turn out to be material to a case is not fatal. What is fatal is the failure by the prosecution to call such a person as a witness. Such failure may result in an application to draw an adverse inference against the prosecution which was done in this case with respect to some of the persons named.

A consideration of the evidence of SAC Musa, relevant to the issues before the court, will be of more assistance in assessing his credibility than the argument advanced. The sequence of events narrated by him on the action taken by him up to 30 August 1997 is consistent with the other evidence adduced in the case. His evidence on how he came into possession of Exhibits P17, P18, P20, P21 and P22 has not been challenged by the Defence. He said that Exhibits P17 and P18 were handed to him by Dato Amir Junus. It is of critical importance to note that he said that Exhibits P20, P21 and P22 were handed over to him by the accused when he met the latter on 2 September 1997. This, it must be remembered, is an element to be proved with regard to the second and fourth charges. Thus there is internal consistency in his evidence as to how he came into possession of all these exhibits by virtue of his evidence having been not contradicted. The evidence of SAC Musa therefore fits in with the rest of the evidence adduced by the prosecution and the circumstances of the case. The manner in which he gave evidence and his demeanour while doing so are unimpeachable. The vigorous cross-examination that he was subjected to did not result in his credit being shaken, though, I do realise that that alone is not an acid test of his credibility. It is therefore my firm finding that his evidence is credible.

Azizan

It was contended by the Defence that Azizan is a thoroughly unreliable witness as he was a pawn in a game played by others with an agenda of their own. In support of this proposition the Defence relied on Exhibits D25, P17 and the oral evidence of Dato Mohd Said. It was argued that when Dato Mohd Said was asked whether there was a political conspiracy his answer was, "I may have said it." Later he replied in the affirmative. This, said the Defence, shows that Azizan was used as a pawn. The prosecution, in reply, said that there was no such evidence. The Defence said that the submission is supported by Exhibit D25 and the evidence of Dato Mohd Said who, in answer to a question as to whether there was a political conspiracy, said, "I may have said it." Extracts from my notes of evidence of what Dato Mohd Said said on this issue read as follows:

"Question : Did the report you sent to the Prime Minister contain a statement by you to the effect that the allegations were politically motivated?

Answer : I don’t quite remember saying anything on this.

Question : In that report that you sent to the Prime Minister did you state that Dato’ Megat Junid, his wife and a few others were behind a plot to topple the accused?

Answer : I doubt very much I said that. …

Question : In your report do you remember stating that the persons named conspired to topple Dato’ Seri Anwar?

Answer : No.

Question : In your report did you state that Dato’ Megat Junid, Dato’ Shamsuddin, Tun Daim and some corporate leaders have conspired to topple Dato’ Seri Anwar?

Answer : I don’t think I wrote that."

 When this portion of the notes of evidence was read to the Defence there was a quick and unexplained change in the argument and the incongruous reply was that Exhibit P17 read in the light of the evidence of Dato Mohd Said means that he would have told the accused that there was a political conspiracy. What Dato Mohd Said said with regard to this reframed argument runs as follows: "Question : Did you inform the accused that these allegations were politically motivated?

Answer : I may have said that. I cannot remember. I think it was the accused who told me that the allegations were politically motivated. I am quite sure I did not tell it to the accused."

 Again, the submission of the Defence is based on evidence which it thinks the witness may have said when in actual fact he did not say it. I pause to add that a challenge to a witness’s evidence must be based on what is on the record and not by way of mere submission (see Pie bin Chin v PP (1985) 1 MLJ 234). Cases are decided by the evidence adduced and the inferences to be drawn therefrom and not on what a witness would or ought to have said.

It was also contended that Azizan is not reliable as he had changed his stand several times and that one such instance is his narration of the events that took place as described in Exhibit P17. There is no evidence to suggest that Exhibit P17 was written voluntarily by Azizan. On the other hand the available evidence shows that Exhibit P17 is the result of the turning over and neutralisation operation conducted on him. Thus the proposition that Azizan’s credibility is affected by his change of position in Exhibit P17 has no merit as it is not his voluntary statement. I pause to add that SAC Musa denied in his cross-examination that he had told the accused that Azizan had given different versions in his five statements to the police. This goes to enhance the consistency of Azizan’s evidence.

It was also argued that the fact that Azizan went to the Official Residence of the accused to apologise to him operates against him. It was said that there is no evidence to show that he was forced to go there. Dato Amir Junus said that on 18 August 1997 at about 8.30 p.m. he received a telephone call from the accused saying that he wanted to come to the Special Branch office to see Azizan. On being advised against this the accused asked for Azizan to be taken to his Official Residence. DSP Aziz took Azizan to the accused’s Official Residence on that day at 11.45 p.m. Azizan said in his evidence that DSP Aziz took him to the accused’s Official Residence. The accused scolded him and he apologised to the accused. He said in cross-examination that it is not true that it was he who wanted to meet the accused. He said that he was told by a Special Branch officer that the accused wanted to see him. He said that he apologised to the accused for being involved in this matter. This part of the Defence submission is therefore inconsistent with the evidence adduced.

It was also submitted that Azizan is an accomplice as he has admitted that he was sodomised by the accused. As such, the Defence contended, he ought not to be believed unless his evidence is corroborated. This submission is irrelevant as the fact in issue is only the allegation made by him and not its truth. Therefore the question of him being an accomplice on the ground advanced and the resultant need for corroboration does not arise. For the same reason the fact that Azizan made the allegation five years later is also irrelevant. In any event he has explained satisfactorily why he decided to make the complaint after five years. Azizan’s statement in cross-examination that he was not sodomised by the accused was also canvassed to discredit him. This, although explained by him in re-examination, is also not relevant as I had expunged all evidence relating to the truth or falsity of the allegation.

Exhibit D55 is a statutory declaration affirmed by Azizan and the material parts of it read as follows:

"AKUAN BERSUMPAH
    1. Saya, AZIZAN BIN ABU BAKAR (NO. K/P. 600814-05-5115) adalah seorang warganegara Malaysia yang cukup umur yang beralamat di No. 3402, Pangsapuri Dahlia A, Jalan 3/11, Bandar Baru Selayang, 68100 Batu Caves, Selangor Darul Ehsan.
    2. Saya berikrar dan bersumpah bahawa saya tidak pernah mengenali penulis atau pencetak buku yang bertajuk "50 Dalil Mengapa Anwar Tidak Boleh Menjadi PM" (seterusnya dirujuk sebagai "buku tersebut").
    3. Saya berikrar dan bersumpah bahawa saya tidak terlibat dalam apa jua cara pun dengan penulisan, percetakan, penjualan dan pengedaran buku tersebut.
    4. Saya berikrar dan bersumpah bahawa saya telah dihubungi oleh pihak polis baru-baru ini berhubung dengan siasatan mengenai buku tersebut. Maka saya telah pergi ke Ibu Pejabat Polis di Bukit Aman untuk membantu siasatan polis. Ketika itu pihak polis telah merujuk saya kepada bahagian buku tersebut yang berkait dengan saya.
    5. Saya berikrar dan bersumpah bahawa kandungan buku tersebut setakat mana ianya merujuk kepada saya adalah tidak benar sama sekali, dan adalah berniat jahat.
    6. Saya membuat Akuan Bersumpah ini atas alasan agar kenyataan-kenyataan saya mengenai perkara-perkara yang tersebut di atas adalah dirakam sebagai rekod peribadi saya. Saya telahpun memberi kenyataan mengenai perkara-perkara tersebut di atas semasa saya dihubungi oleh pihak polis dalam penyiasatan polis mengenai buku tersebut. Seterusnya saya akan memberi keterangan bersumpah mengenai perkara-perkara yang termaktub dalam Akuan Bersumpah ini pada sebarang prosiding kehakiman yang berkaitan dengan perkara buku tersebut kelak.
    7. Saya membuat Akuan Bersumpah ini dengan penuh kepercayaan bahawa segala kandungan dalam akuan ini adalah benar mengikut pengetahuan saya dan saya membuat akuan ini dengan kerelaan hati saya sendiri tanpa paksaan dari sesiapa dan menurut kehendak yang terkandung dalam Akta Akuan Berkanun, 1960."
The Defence contended that Exhibit D55 makes Azizan a completely unreliable witness whose evidence cannot be believed. As it was made in accordance with his instructions given to his own lawyer, Sukdev Singh, it must be held to be true with the result that it completely discredits his evidence.

The evidence on Exhibit D55 started with the prosecution tendering through Azizan a police report (Exhibit P49) that he had made in connection with the making of the exhibit. When he was asked whether he made Exhibit D55 voluntarily the Defence objected to such evidence being adduced as the exhibit had not been produced and that the issue of voluntariness must be decided by the Court later for the purpose of possible impeachment of the witness. I thus ruled that the voluntariness is to be determined at a later stage if the Defence chooses to proceed with impeachment of the witness. The Defence later said that Exhibit D55 is not in the possession of the accused. However, the Defence has a copy of it. It is of interest to note that the Defence subsequently produced the original (Exhibit D55) without offering any explanation as how it came into its possession.

I shall now narrate briefly the events that led to the affirmation of Exhibit D55 by Azizan. He said that in June 1998 he was informed by ASP Zull Aznam that the accused wanted to see him. ASP Zull Aznam took him to the accused’s Official Residence. With regard to his conversation with the accused he said,

"Saya dapati tertuduh ada di dalam bilik tersebut. Tidak ada orang lain di bilik tersebut. Seterusnya saya berjabat tangan dengan tertuduh dan tertuduh bertanyakan khabar saya dan keluarga. Tertuduh menyuruh saya duduk di kerusi di hadapannya. Lalu dia memberitahu saya yang pihak polis akan membuat penyiasatan ke atas Buku 50 Dalil dan tertuduh memberitahu saya yang saya akan dipanggil untuk memberi keterangan kepada polis. Selepas itu tertuduh menyuruh saya untuk menafikan kepada pihak polis tentang apa yang berlaku. Saya memberitahu kepadanya yang saya tidak mengenali penulis buku dan tidak membaca buku tersebut iaitu Buku 50 Dalil. Bagi pemahaman saya ianya ada berkaitan dengan penyiasatan polis sebelum ini yang mana saya telah membuat satu surat memohon maaf dan satu kenyataan umum pada bulan August, 1997. Pertemuan lebih kurang 5 —10 minit dan saya terus pulang ke rumah saya. Dalam bilik itu saya difahamkan yang saya untuk membuat penafian yang berkaitan dengan saya diliwat dan menulis surat pengakuan bersumpah yang tandatangani bertarikh 5.8.97. With regard to the circumstances in which he made Exhibit D55 Azizan said in cross-examination, "Pada akhir June 1998 apabila saya berjumpa peguam Sukdev Singh itulah pertama kali saya berjumpa dengannya. Pada pertama kali saya berjumpa peguam Sukdev Singh saya tidak memberi apa-apa arahan kepadanya kerana saya tidak pernah melantiknya. Semasa saya jumpa peguam Sukdev Singh Rahim King yang banyak bercakap dan saya kadang-kadang bercakap. Apabila Sukdev Singh bertanya tempat kerja saya dan adakah saya membaca buku 50 Dalil saya katakan bahawa saya tidak ada membaca atau melihat buku 50 Dalil." When Azizan met Sukdev Singh for the second time one MaAmin was with him. Azizan told Sukdev Singh that he has to go to Bukit Aman to give a statement. Both Sukdev Singh and MaAmin took him to Bukit Aman and then left. Azizan said, "Saya tidak mengajak En Sukdev tetapi dia ingin mengikut saya ke Bukit Aman. Saya tidak meminta Sukdev mengikut saya ke Bukit Aman." With regard to his third visit to the office of Sukdev Singh, Azizan said, "Kali ketiga saya berjumpa Sukdev ialah selepas saya pergi ke Bukit Aman setelah diberitahu oleh Rahim King yang saya dikehendaki membuat satu akuan bersumpah seperti yang diarahkan oleh bossnya iaitu tertuduh. Saya sendiri tidak tahu sama ada tertuduh ada menyuruh Rahim King membuat apa-apa. Tetapi itulah apa yang diberitahu oleh Rahim King iaitu dia menyuruh saya membuat satu laporan polis dan akuan bersumpah. Saya tidak membuat laporan polis. Rahim King memberitahu saya sebelum membuat laporan polis saya dikehendaki berjumpa peguam Sukdev dahulu. Kali ini saya ke pejabat Sukdev bersama MaAmin setelah diarahkan oleh Rahim King. Saya ada berjumpa dan bercakap dengan Sukdev Singh pada kali ketiga ini. Saya ingat ini adalah pada minggu terakhir bulan Julai 1998. Saya ada berjumpa peguam Sukdev secara seorang sahaja setelah saya diberitahu oleh MaAmin dan peguam Sukdev yang saya terpaksa menandatangani akuan bersumpah yang telah siap dibuatnya. Saya berjumpa Sukdev seorang iaitu pada 10 Ogos 1998. Pada mulanya saya tidak mahu menandatangani akuan bersumpah tersebut kerana terdapat ayat pada akuan tersebut yang saya memang menandatangani perakuan bersumpah saya. Lalu peguam Sukdev membuat pindaan ke atas ayat itu dan saya masih tidak mahu menandatanganinya kerana saya telah dipanggil ke Bukit Aman untuk memberi keterangan. Lalu peguam Sukdev mengatakan kepada saya iaitu akuan bersumpah ini hanyalah berkaitan Buku 50 Dalil sahaja. Saya masih enggan. Peguam Sukdev masih mengatakan bahawa ianya hanya berkaitan dengan Buku 50 Dalil. Pada masa itu perasaan takut saya kerana sering dihubungi oleh MaAmin dan Rahim King. Saya merasa takut dan kerja-kerja saya terganggu. Saya bersetuju bahawa pindaan ada dibuat kepada surat sumpah itu. Pindaan itu dibuat kerana saya tidak bersetuju atau puas hati dengan ayat tersebut. Seingat saya pindaan dibuat adalah kepada para 5. Itu sahaja pindaan yang diminta dan dibuat. Sebelum saya menandatangani saya ada membaca para 1, 2, 3 dan 4. Saya tidak minta En. Sukdev meminda para 1, 2, 3 dan 4. Saya ta’ ingat ada berapa para di surat sumpah itu sebab saya tidak diberikan salinan. Saya faham Bahasa Malaysia tetapi saya perlu penjelasan yang lebih daripada peguam tersebut. Saya ada minta penjelasan dari peguam. Penjelasan yang diberi ianya hanyalah berkaitan dengan Buku 50 Dalil sahaja, katanya. Saya boleh baca Bahasa Malaysia.

Setelah saya dibawa oleh peguam Sukdev Singh ke pejabat seorang Pesuruhjaya Sumpah di Jalan Masjid India yang saya tidak tahu namanya saya menandatanganinya setelah merasa takut dan terpaksa. Saya tidak memberitahu pesuruhjaya sumpah bahawa saya dipaksa membuat akuan tersebut oleh kerana peguam Sukdev ada bersama. Pada hari itu saya seorang sahaja pergi ke pejabat peguam Sukdev dari pejabat saya di Alor Gajah dengan memandu kereta syarikat. Sebelum menandatangani akuan berkanun saya telah membaca semua kandungannya di pejabat peguam Sukdev. Setelah membaca akaun berkanun itu saya tidak minta Sukdev membuat apa-apa pindaan lagi. Saya juga tidak memberitahu apa-apa yang terkandung di dalam akuan berkanun tersebut kerana pesuruhjaya sumpah banyak bertanya kepada peguam Sukdev. Saya tidak memberitahu pesuruhjaya sumpah bahawa apa-apa yang terkandung di dalam akuan berkanun itu adalah tidak betul atau tidak benar kerana pesuruhjaya sumpah banyak bertanya kepada Sukdev. Pesuruhjaya sumpah ada minta kad pengenalan saya. Saya menandatangani akuan berkanun itu di hadapan pesuruhjaya sumpah dan peguam Sukdev. Pesuruhjaya sumpah tidak menanyakan saya apa-apa sebelum saya menandatangani akuan berkanun itu. Saya tidak bersetuju bahawa keterangan saya yang pesuruhjaya sumpah tidak menanyakan apa-apa sebelum saya menandatangani akuan berkanun tersebut adalah bohong atau tidak benar. Saya ta’ ingat pesuruhjaya sumpah ini. Seingat saya dia seorang China dan berkaca-mata. Saya tidak membuat apa-apa pengaduan. Ini kerana pesuruhjaya sumpah ini tidak melakukan apa-apa yang kesalahan."

 As to the truth of the contents of Exhibit D55 Azizan said, "Saya tidak ingat kandungan akuan berkanun itu sekarang. Yang seingat saya akuan berkanun itu tidak benar. Terdapatnya ayat yang menafikan saya menandatangani akuan bersumpah yang saya tandatangani pada 5.8.1997. … Saya hanya membuat P49 pada 16.9.98 kerana saya telah memikirkan yang tertuduh tidak berkuasa lagi kerana saya telah dipaksa untuk menandatangani akuan berkanun bertarikh 10.8.98 adalah tidak benar dan tanpa kerelaan saya." On being cross-examined as to whether all the contents of Exhibit D55 are untrue Azizan said, "Yang seingat saya alamat rumah, nama saya adalah benar. … Para 1 adalah betul. Para 2 pun betul. Para 3 pun betul. Para 4 pun betul. Para 5 tidak betul. Saya tidak bersetuju bahawa para 5 adalah betul. Berkenaan dengan para 6 saya ada memberi kenyataan semasa dihubungi oleh pihak polis. Para 6 adalah betul. … Saya ada menyuruh peguam Sukdev meminda para 5 tetapi beliau mengatakan biarkanlah ayat itu begitu sahaja. Saya setuju kerana saya merasa takut dan pada masa itu fikiran saya terganggu. Perasaan takut lebih mendalami jiwa saya. Saya tidak bersetuju bahawa apabila saya katakan kandungan para 5 tidak benar itu adalah pembohongan oleh saya. … Saya tidak bersetuju bahawa saya telah membayar RM10 bagi akuan berkanun ini. Peguam Sukdev yang membayarkannya. Saya tidak setuju saya yang membayar RM10 itu. Saya tidak setuju tiada siapa yang menakutkan saya untuk membuat akuan berkanun ini. Saya tidak setuju bahawa akuan berkanun ini disediakan oleh Sukdev atas arahan-arahan saya. Saya tidak bersetuju bahawa para 5 di IDD 54 telah disediakan oleh peguam Sukdev atas arahan saya. Saya telah dipaksa untuk menandatangani IDD54 setelah sering dihubungi oleh MaAmin, Rahim King kerana mereka adalah orang-orang suruhan tertuduh." On being re-examined as to the contents of Exhibit D55 Azizan said, "Pada masa saya menandatangani D55, Buku 50 Dalil tidak dibaca kepada saya. Juga tidak dibaca sebelumnya. Sebelum saya menandatangani D55 saya juga tidak membaca Buku 50 Dalil ini. Pada sekitar waktu itu saya menandatangani D55 Buku 50 Dalil itu tidak ditunjukkan kepada saya. Sehingga hari ini saya tidak pernah membaca Buku 50 Dalil." Even if Exhibit D55 was prepared by Sukdev Singh on the instructions given by Azizan it cannot be held to be true if there is evidence to suggest that it may not be so. In the light of the police report made by Azizan and the evidence he gave in Court about being pressured to swear the statutory declaration by Rahim King and MaAmin the Defence carries the burden of establishing that it was executed voluntarily being the party which has introduced it in evidence. On the available evidence I am unable to rule that Exhibit D55 was affirmed by Azizan voluntarily. His evidence shows that he affirmed it under pressure. It follows that Exhibit D55 is not entitled to any weight in the absence of any further evidence. Be that as it may, it must be observed that Exhibit D55 makes no specific reference to Exhibit P14C. Paragraph 5 of Exhibit D55 only states that any reference in Buku 50 Dalil to Azizan is not true. Azizan said in re-examination that when he swore Exhibit D55 he had not read Buku 50 Dalil. Thus there can be no question of paragraph 5 of Exhibit D55 referring to Exhibit P14C with the result that there is no denial of Azizan signing it. In substance Exhibit D55 is only a denial by Azizan of any involvement of him with Buku 50 Dalil. It does not affect his evidence on Exhibit P14C in any way. It follows that even if I were to hold that Exhibit D55 was sworn by Azizan voluntarily it does not conflict with his oral evidence in Court. Furthermore, even if it can be argued that paragraph 5 of Exhibit D55 refers to Exhibit P14C Azizan’s clear oral evidence that he signed the letter was not challenged in cross-examination thereby leaving two versions for the court to consider. In such circumstances the court is entitled to act on the oral evidence given in court if satisfied that it is true (see Tan Chow Soo v Ratna Ammal (1969) 2 MLJ 49). In that event I would accept the oral evidence of Azizan as it is consistent with the evidence of other witnesses.

It is significant to remember that the important aspects of the evidence of Azizan pertinent to the charges are that he signed Exhibit P14C and that he was subjected to the turning over process by ACP Mazlan and DSP Aziz pursuant to which he wrote Exhibits P17 and P20 involuntarily. The fact that he signed Exhibit P14C was not challenged except for the submission that he did not narrate all its contents to Ummi. I have already dealt with that issue. However, there was no challenge to his evidence on how he came to write Exhibits P17 and P20. The bulk of his cross-examination was on collateral matters from which he came out unscathed. It must also be observed that Azizan was subjected to several days of cross-examination which he withstood very well. I do realise that the fact that a witness is unshaken in cross-examination is not an acid test for his credibility. Azizan’s evidence is consistent with itself and with the other evidence adduced by the prosecution. Having also taken into account the manner in which he gave his answers and his demeanour while giving evidence it is my firm finding that his evidence is credible.

Ummi

The principal line of attack against the credibility of Ummi by the Defence was that she has a motive for doing what she did. It was contended that she was motivated by promises to send Exhibit P14A, B and C. It was alleged that she said she could not remember whether she got any benefits. The Defence said that this amounted to bribery and corruption. The prosecution objected to this part of the submission as it is based on an extract from tampered tapes of which fact the Defence was aware. I ordered that there shall be no submission on the taped conversation as they are not in evidence before the court. The submission again continued on a similar line. It was said that she had a motive to carry out her scheme. She arranged for Dr. Restina to meet Azizan and also arranged for him to see Tan Sri Rahim Thamby Chik. She took Azizan to see a lawyer. Thus she had a hand in everything from the beginning. As such she would do everything within her power to influence Azizan to lie. Exhibit P18 reveals that there was a political conspiracy and that she was a part of it. Thus she will be obliged to lie as she is an interested witness. This part of the submission is not supported by the evidence nor was there evidence from which such an inference could be drawn. In any event, even if there was a conspiracy it is irrelevant as the fact in issue is whether she had written Exhibit P14A, B and C and not her motive for doing so.

In her cross-examination several other questions were directed at her in order to damage her credibility. She denied that she had been disowned by her father; that she had sold her father’s Mercedes Benz motor car without his permission; that she had been arrested for "khalwat" and that she had a lot of debts. She denied them. She said that she could not remember whether she had written a letter to her father saying that she had obtained a contract worth millions of ringgit. She denied that she had written love letters to the accused and that she was jealous of Shamsidar. She said that she came to know Khairuddin bin Abu Hassan only recently. She also denied a conversation that she allegedly had in the toilet with one Ziela Jalil. She also denied that she wrote Exhibit P14A, B and C so that Azmin will divorce his wife Shamsidar and that she wrote it without the knowledge of her parents. She denied that she confessed to her father and her brother Azmin nor anybody else that she wrote Exhibit P14A, B and C for money; that she is looking for ways and means of getting the balance due to her and that Azizan will get a first payment of RM1 million. She also denied that she was made use of by corporate and political leaders. I do not consider her answers to be relevant as what is in issue is only the fact of her making the allegations and not her motive for doing so. As this line of cross-examination goes to Ummi’s credit the answers she gave are final and she cannot be contradicted on them pursuant to Section 153 of the Evidence Act 1950 which I shall consider in a later part of the judgment.

It was then argued that the statutory declaration (Exhibit D90) that she affirmed shows that she is not the author of Exhibit P14A, B and C as she has denied writing it and that it has the effect of demolishing her evidence. Exhibit D90 reads as follows:

"STATUTORY DECLARATION

I, Cik Ummi Hafilda binti Ali (NRIC No. A0793275) of No. 1E, Jalan Seladang, Kg. Klang Gate Baru, Setapak, Kuala Lumpur do hereby and sincerely declare that :
    1. I am not involved nor have anything to do whatsoever with the publication of the book "50 Dalil Mengapa Anwar Tidak Boleh Jadi Perdana Menteri" nor with the author of the book. I had not in anyway contributed to nor colluded with its publication although some elements are now trying to implicate me in order to give credibility to the contents of the book. I do not know the author of the book and have no contact or communication with him directly or indirectly.
    2. By reason of the matters stated above, I deny I had supplied the letter appearing in the book purportedly written by me to YAB Perdana Menteri. Further, the photograph in which I appeared together with two others which was published in the book was not supplied by me although I remember giving a copy of the letter and the photograph to the police sometime in August 1997.
    3. I also deny that I have anything to do with the circulation of the letter which I am alleged to have written to the YAB Perdana Menteri. I am not the originator of the "surat layang" and have no idea of the identity of the person or persons behind it.
    4. I hope that my name will not be dragged into this shameful episode as any matter concerning my family members should be decided and be resolved within the family as it is not a matter for public discussion. I trust my wishes will be respected.
AND I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declarations Act, 1960." When she was cross-examined on the circumstances in which she affirmed Exhibit D90 she said, "Saya ada membuat surat pengakuan berkanun pada 23.6.98. Ketika itu saya menandatangani SD itu ianya berlaku dalam keadaan terdesak. Berdasarkan pada SD itu saya menganggapnya adalah benar. (Saksi dirujuk kepada SD.) Inilah SD yang dibuat oleh saya. I do not have the original. Saya tidak pasti siapa memegang salinan asal ini. (Salinan asal dirujuk kepada saksi.) Ini adalah salinan asal — ditanda sebagai D90. (Saksi dirujuk kepada para 3 di D90.) I have stated this there. Ini ditulis oleh peguam. Maksud saya di para 3 saya tidak terlibat sama sekali dengan surat yang ditulis kepada PM yang terdapat di Buku 50 Dalil. With regard to the second sentence in para 3 maksud saya surat layang yang dimaksudkan adalah Surat Talqin Untuk Anwar dan saya sendiri tidak mengetahui identiti orang di belakang surat itu. Peguam yang menyediakan SD ini adalah En. Yeoh. (Saksi dirujuk kepada para 2 di D90.) Ini adalah benar. Saya perlukan sedikit penjelasan. Saya tidak pernah membekalkan sebarang surat ataupun gambar kepada penulis Khalid Jafri tetapi ini tidak bermakna saya menafikan kandungan surat asal yang telah saya hantar kepada YAB PM.

Q: What do you mean by "purportedly" in para 2?

A: Maksud yang kononya surat yang ditulis saya kepada YAB PM kerana saya tidak mengetahui sama sekali kandungan surat yang dimuatkan oleh Khalid Jafri dalam Buku 50 Dalil. Buku itu saya tidak terlibat langsung.

(Saksi dirujuk kepada para 4.) Ini adalah benar."

 In re-examination she said, "(Saksi dirujuk kepada D90.) Saya ada didesak oleh abang saya Azmin melalui Dato Sng Chee Hua untuk membuat ini." A peculiar feature of the manner in which Exhibit D90 was tendered in evidence was that Ummi was first asked whether she had the original statutory declaration in her possession and whether she knew who had the original. When she replied in the negative the original was suddenly shown to her by the Defence. She explained that with regard to the first sentence in paragraph two and three of Exhibit D90 she was not involved in the contents of the letter as appearing in Buku 50 Dalil. It was submitted by the Defence that the word "purportedly" in paragraph two of the exhibit shows that Ummi did not write Exhibit P14A, B and C. She said that the word was used to refer to the letter appearing in Buku 50 Dalil of which she had no knowledge. Be that as it may, her explanation arises for consideration only if Exhibit D90, a Defence exhibit, is proved to have been affirmed voluntarily. The evidence of Ummi shows that she affirmed it under pressure. Thus, on the available evidence I am unable to rule that it was affirmed voluntarily. It follows that Exhibit D90 is not entitled to any weight in the absence of any further evidence. Even if I were to hold that Exhibit D90 was sworn by Ummi voluntarily it does not alter her oral evidence in any way as the contents of Exhibit D90 only relate to Buku 50 Dalil and not to Exhibit P14A, B and C. In any event it must be noted that her oral evidence that she signed Exhibit P14A and had sent it together with Exhibit P14B and C was not challenged in cross-examination. If, therefore, I were to take Exhibit D90 into account to say that Exhibit P14A, B and C was not written by her there would be two versions for the Court to consider, that is to say, one as contained in her oral evidence and the other in Exhibit D90. In such circumstances the Court is entitled to act on the oral evidence given in court if satisfied that it is true (see Tan Chow Soo v Ratna Ammal (1969) 2 MLJ 49). In that event I would accept the oral evidence of Ummi as it is consistent with the evidence of other witnesses.

It must be observed that the salient parts of the evidence of Ummi relevant to the charges are that she prepared Exhibit P14A, B and C and that she was subjected to the turning over process by ACP Mazlan and DSP Aziz pursuant to which she wrote Exhibits P18, P21 and P22 voluntarily. She denied a Defence suggestion that she did not draft Exhibit P14A, B and C and that it was drafted by Dato Seri Megat Junid. Exhibit P38A - V is a handwritten draft by her of Exhibit P14A, B and C thus supporting her evidence that she drafted them. Even if they were drafted by someone else the fact remains that they contain allegations made by her. It was never put to her that she did not sign and send Exhibit P14A and B together with P14C. She denied a Defence suggestion that she wrote Exhibits P18 and P22 voluntarily. In my opinion Ummi’s evidence is consistent with itself and with the other evidence adduced by the prosecution. She was not shaken in cross-examination though I am aware that it is not an acid test for credibility. She gave her answers very confidently. Having also taken into account her demeanour while giving evidence it is my firm finding that her evidence is credible.

(xi) Corroboration

It was contended by the Defence that the evidence of the accomplices must be corroborated.

It was held in R v Mullins (1848) 3 Cox CC 526 that corroboration does not mean that there should be independent evidence of that which the accomplice relates, otherwise the accomplices’ testimony would be unnecessary. In the celebrated case of R v Baskerville (1916) 2 KB 658 Viscount Reading LCJ said that what is required is some additional evidence rendering it probable that the story of the accomplice is true, and that it is reasonably safe to act upon his statement. His Lordship said at p 667,

"We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it." The word "implicate" does not necessarily mean "incriminate" or "inculpate"; it may mean only "involve" (see R v Kerim (1988) 1 Qd R 426). Ong CJ (Malaya) said in Brabakaran v PP (1966) 1 MLJ 64 that corroborative evidence is not necessarily restricted to the oral evidence of an independent witness. It may be circumstantial as well as direct (see R v Tripodi (1961) VR 180). In Doney v R (1990) 171 CLR 207 it was held that consistent with its role of confirming other evidence rather than amounting itself to evidence which necessarily leads to conviction, the corroborative evidence does not need to be proven beyond reasonable doubt.

I shall consider in a later part of the judgment whether the evidence of Dato Mohd Said, Dato Amir Junus, ACP Mazlan and DSP Aziz are corroborated.

I shall now consider the reasons why I held that the prosecution had made out a prima facie case against the accused in respect of the charges preferred against him.

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