MRVS - The ingredients to be proved by the prosecution

THE INGREDIENTS TO BE PROVED BY THE PROSECUTION

Section 2(1) of Ordinance No. 22, under which the four charges against the accused have been preferred, reads as follows:

"2(1) Any Member of the administration or any Member of Parliament or the State Legislative Assembly or any public officer, who while being such a Member or officer commits any corrupt practice shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding fourteen years or to a fine not exceeding twenty thousand ringgit or to both such imprisonment and fine." In order to prove the charges against the accused the prosecution has to establish two ingredients, that is to say, that he was a Member of the administration at the material time and that while being such Member he committed a corrupt practice.

The first ingredient to be proved by the prosecution is common to all the charges. The second ingredient involves proof of the manner in which the accused used his position for his advantage as enumerated in the four charges. They are as follows :

First Charge

(a) That the accused directed Dato’ Mohd. Said bin Awang, Special Branch Director and Amir bin Junus, Special Branch Deputy Director II to obtain a written statement from Azizan bin Abu Bakar denying his allegation of sodomy as contained in his "Pengakuan Bersumpah" dated 5 August 1997 which they obtained as directed

(b) for the purpose of saving himself from embarrassment

Second Charge

(a) That the accused directed Dato’ Mohd. Said bin Awang, Special Branch Director and Amir bin Junus, Special Branch Deputy Director II to obtain a written public statement from Azizan bin Abu Bakar denying the allegation of sodomy as contained in his "Pengakuan Bersumpah" dated 5 August 1997 which they obtained as directed

(b) which he used for the purpose of protecting himself against any criminal action

Third Charge

(a) That the accused directed Dato’ Mohd. Said bin Awang, Special Branch Director and Amir bin Junus, Special Branch Deputy Director II to obtain a written statement from Ummi Hafilda bt Ali denying the allegation of sexual misconduct and sodomy as contained in her confidential report entitled "Perihal Salah Laku Timbalan Perdana Menteri" dated 5 August 1997 which they obtained as directed

(b) for the purpose of saving himself from embarrassment

Fourth Charge

(a) That the accused directed Dato’ Mohd. Said bin Awang, Special Branch Director and Amir bin Junus, Special Branch Deputy Director II to obtain a written public statement from Ummi Hafilda bt Ali denying the allegation of sexual misconduct and sodomy as contained in her confidential report entitled "Perihal Salah Laku Timbalan Perdana Menteri" dated 5 August 1997 which they obtained as directed

(b) which he used for the purpose of protecting himself against any criminal action

I shall now deal with the two ingredients (a) MEMBER OF THE ADMINISTRATION The Law Section 2(2) of Ordinance No. 22 provides that the expression "Member of the administration" (hereafter referred to as "the phrase") has the meaning assigned to it in Article 160(2) of the Federal Constitution (hereafter referred to as "Article 160(2)"). The phrase is defined in Article 160(2) in the following manner: " ‘Member of the administration’ means, in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary or Political Secretary and, in relation to a State, a person holding a corresponding office in the State or holding office as member (other than an official member of the Executive Council);" Thus a Federal Minister is a Member of the administration within the meaning of Section 2(1) of Ordinance No. 22. As all four charges refer, inter alia, to the office of Deputy Prime Minister held by the accused it is necessary to determine whether this office comes within the scope of the word "Minister" as appearing in the meaning assigned to the phrase by Article 160(2). This would depend on whether it is permissible to extend the meaning of the word to include the office of the Deputy Prime Minister, and for that matter, that of the Prime Minister.

The first observation that I would like to make is that the relevant part of Article 160(2) which defines the phrase must be construed as if it were a part of Ordinance No. 22 as it has been adopted by the latter as its definition section for the purpose of defining the meaning of the phrase. Thus the ordinary rules relating to statutory interpretation would become relevant insofar as the application of Article 160(2) to Ordinance No. 22 is concerned. It is a fundamental rule of statutory interpretation that in interpreting a statute the intention of Parliament must first be ascertained. If the words of a statute are in themselves precise and unambiguous the Court must give effect to them according to their natural and ordinary meaning, as the words themselves best declare the intention of Parliament. If, however, adhering to their grammatical and ordinary meaning would lead to some absurdity, or some repugnancy or inconsistency with the other parts of the statute, the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further (see Trustees of the Kheng Chin Tin Hon Kong and Burial Ground v Collector of Land Revenue (1992) 1 SLR 425). In Hong Kong Bank (M) Bhd v Raja Letchumi a/p Ramorajoo (1996) 2 MLJ 34 Gopal Sri Ram JCA said in the Court of Appeal that ever since Heydon’s case (1584) 76 ER 637 courts are obliged to look at the historical background of a statute in order to ascertain the purpose for which it was enacted. However, when a statute says that a word or a phrase shall mean certain things, the definition is a hard and fast definition and no other meaning can be assigned to it (see Gough v Gough (1891) 2 QB 665; Bristol Trams Co v Bristol 59 LJQB 449). Be that as it may, Article 160(2) itself states in unmistakable terms that the meanings it gives to expressions are applicable " … unless the context otherwise requires …". This means that the meaning given to an expression by Article 160(2) may be modified to suit the context in which it is used in the body of the text. The word "context" means not only the part which immediately precedes or follows a section, but the whole Act (see Jaques v Stafford (1890) 11 LR (NSW) 127). It is a rule of construction that where a statutory meaning is given to a word and the context shows that it is to have a different signification from the defined meaning, the latter meaning should be departed from to the extent that its use or context renders necessary (see Re Jennings Gould and South Australian Superannuation Fund Board (1945) SASR 50). It has also been held that an interpretation section of an Act must yield to a context in the enacting portion of the statute (see Stevens v Colonial Sugar Refining Co Ltd (1920) 28 CLR 330). Where an ambiguity arises as to whether the legislature has used a general expression in its narrower or in its wider sense, the Court will place that meaning upon the expression which will most effectually carry out the object of the section. In such cases it becomes necessary to examine the context, the subject matter, and the object and purpose of the enactment as disclosed by its provisions (see Bank of Australia/Asia v Hall (1907) 4 CLR 1514). As an illustration of a situation where the assigned meaning to a word was modified I refer to PP v Datuk Tan Cheng Swee & Ors (1979) 1 MLJ 166 where the accused was charged under Section 2(1) of Ordinance No. 22 for having committed a corrupt practice while being a public officer. With regard to the meaning of the expression "public officer" Section 2(2) of Ordinance No. 22 provides that it has the meaning assigned to it in Section 2 of the Prevention of Corruption Act 1961. At the High Court Ajaib Singh J (as he then was) said that by assigning a specific meaning to the term "public officer" the inference is that the legislature intended that the term should mean only that as defined in Section 2 of the Prevention of Corruption Act 1961 and nothing else (at pp 168 — 169) and held that the accused was not a public officer as prescribed. In deliberating over this stand taken by the learned Judge the Federal Court, on appeal, referred to Dyke v Elloitt, The Gauntlet (1872 — 4) AC 184 where James LJ said at p 191,

"No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument." The Federal Court adopted this view in the interpretation of a statute and held that the accused was a public officer within the meaning of the definition section.

In the case at bar it must be observed that the object of Ordinance No. 22 is wide so as to bring to book corrupt politicians and public officers who abuse their public positions or office for their pecuniary or other advantage (see Haji Abdul Ghani bin Ishak & Anor v PP (1981) 2 MLJ 230). In this regard I also refer to PP v Datuk Tan Cheng Swee & Ors (1979) 1 MLJ 166 where Chang Min Tat FJ in speaking for the Federal Court said at p 178,

"The Emergency (Essential Powers) Ordinance No. 22 of 1970 is enacted to widen the campaign against bribery and corruption and now makes a penal offence any practice that comes within the definition of corrupt practice in the Ordinance, which previously would have escaped the net of the Penal Code and the Prevention of Corruption Act." It cannot be disputed that the definition of the phrase in Article 160(2) refers to high ranking politicians. The Prime Minister and the Deputy Prime Minister are the number one and number two politicians respectively in the country. To give a literal meaning to the word "Minister" would lead to the absurd and ludicrous position of excluding the captains of politics from the tentacles of Ordinance No. 22 and thereby defeat the very object and purpose for which it was enacted. Bearing in mind, therefore, the object of Ordinance No. 22 and the context in which the word "Minister" appears in the definition of the phrase in Article 160(2) it is my view that the word is used in its general sense and that it must be given an extended meaning in its application to Ordinance No. 22 to include the Prime Minister and the Deputy Prime Minister. The view that I have taken is further supported by Section 3 of the Interpretation Acts 1948 and 1967 which defines the word "Minister" in the following terms : " ‘Minister’ means, subject to section 8(2), a Minister of the Government of Malaysia (including the Prime Minister and a Deputy Minister)." The reference to a "Deputy Minister" in the section I have just referred to would include a Deputy Prime Minister on the principles that I have discussed earlier.

The evidence adduced

The prosecution must establish that the accused was the Deputy Prime Minister and Minister of Finance at all material times. In order to prove this ingredient the prosecution called as its witness Dato Alias bin Ali, the Deputy Secretary General in the Prime Minister’s Department. His duties include assisting the Chief Secretary in handling the weekly Cabinet Meetings and the processing of appointments to administrative and constitutional posts. He knows the accused personally. In support of his statement that the accused was the Deputy Prime Minister at the material time he tendered in evidence the appointment letter appointing the accused to that post signed by YAB Prime Minister (Exhibit P30); his letter of appointment as a Federal Minister signed by DYMM Yang Di-Pertuan Agong (Exhibit P31); and a copy of Government Gazette PU(A) 203 dated 1 June 1995 referring to his appointment as Deputy Prime Minister and Minister of Finance (Exhibit P32) and PU(A) 118 dated 24 March 1994 referring to his appointment as Deputy Prime Minister (Exhibit P38). Dato Alias bin Ali said that the accused held the posts till 2 September 1998. This evidence was not challenged by the Defence. As a matter of fact the Defence conceded in its submission that it is a fact that the accused was the Deputy Prime Minister and Minister of Finance at the material time and that this ingredient is not challenged.

I was therefore satisfied that the prosecution had adduced prima facie evidence to show that the accused was the Deputy Prime Minister and Minister of Finance at the material time and, thus, a Member of the adminsitration within the meaning of Section 2(2) of Ordinance No. 22.

(b) WHILE BEING SUCH MEMBER COMMITS A CORRUPT PRACTICE

This ingredient involves proof of two elements by the prosecution. They are:-

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

(ii) the advantage that he obtained

I shall deal with the two elements separately.

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

The Law

This ingredient is governed by the phrase "corrupt practice" which is defined in Section 2(2) of Ordinance No. 22 in the following terms,

" ‘Corrupt practice’ means any act done by any Member or officer referred to in sub-section (1) in his capacity as such Member or officer, whereby he has used his public position or office for his pecuniary or other advantage; and without prejudice to the foregoing, in relation to a Member of a State Legislative Assembly includes any act which is contrary to the provision of sub-section (8) of section 2 of the Eighth Schedule to the Federal Constitution or the equivalent provision in the Constitution of a State." In this regard I also refer to PP v Dato Haji Mohamed Muslim bin Haji Othman (1983) 1 MLJ 245 where Hashim Yeop A Sani J (as he then was) said at p 247, "From the definition of ‘corrupt practice’ it is clear that what the law aims to strike at is any act done by a member of the Administration or public officer whereby he has used his public position or office for his pecuniary or other advantage. In other words the law aims to strike at every act of a member of the Administration or public officer which amounts to an abuse of his public position or office for his personal advantage." A corrupt practice within the meaning of Section 2(1) of Ordinance No. 22 therefore occurs when a Member or officer uses his public position or office for his pecuniary or other advantage.

A matter of concern is whether the words " … any act done by any Member … in his capacity as such Member, whereby he has used his public position or office for his pecuniary or other advantage …" appearing in the definition of the expression "corrupt practice" in Section 2(2) of Ordinance No. 22 mean that the act done must be one that is connected to the duties of the Member, that is to say, whether it must have a bearing to the discharge of his duties as such Member. It was the contention of the Defence that the words " … in such capacity … " refer to a capacity to exercise power and that, on the facts of this case, in order for the accused to use his public position for his advantage he must have had authority over the Special Branch. If he did not have that authority he would not have had the power to direct the Special Branch officers on the performance by them of their duties. They must, therefore, have been responsible to the accused in his capacity as Deputy Prime Minsiter and Minister of Finance in order for him to exercise authority over them. The prosecution in its reply said that Section 2(2) of the Ordinance No. 22 is drafted in such a way that it is not a requirement of the section that the accused must do an act in connection with his own duties as Deputy Prime Minister or Minister of Finance in order to be liable. This interpretation is in accord with the expression "any act" in Section 2(2) which must be given a very wide and not a restrictive interpretation with the result that it covers any act of an accused person depending on the circumstances of each case. In support of this argument reference was made to Dhaneshwar Norain v The Delhi Adminsitration AIR 1962 SC 195; Dalpat Singh & Anor v State of Rajasthan AIR 1969 SC 17; Kewal Krishnan v State (1975) Cr LJ 1963 and Attorney General of Hong Kong v Ip Chiu & Anor (1980) 2 WLR 332.

In interpreting the ambit of the words in question I find it necessary to travel to other jurisdictions which have legislative provisions similar to Section 2(1) of Ordinance No. 22 in the absence of local authorities on the point. I shall first refer to Section 5 of the Indian Prevention of Corruption Act 1947 the material parts of which read as follows:

"5(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty — (a) … … …

(b) … … …

(d) If he by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable things or pecuniary advantage.

(2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which may extend to seven years or with the fine or both." It must be observed that Section 5(1)(d) read with section 5(2) makes specific reference to abuse of position in the discharge of duty of a public servant. In State of Ajmer v Shivji Lal AIR 1959 SC 847 a government teacher obtained money from a person for procuring a job in the Railway Running Shed as a result of which he was charged for an offence under Section 5. It was held that the mere receipt of money by a public servant even if it be by corrupt means is not sufficient to make out an offence under Section 5(2) read with Section 5(1)(d) as the words "by otherwise abusing his position" read with the words "in the discharge of his duty" appearing in the section make it quite clear that an offence under the section requires that the public servant should misconduct himself in the discharge of his own duty and that since it is not part of the duty of a government teacher to make appointments in a Railway Running Shed, there would be no question of his committing misconduct in the discharge of his duty when he takes money for procuring a job for a person in the Railway Running Shed. As the Supreme Court said, "The offence under this provision consists of criminal misconduct in the discharge of his duty. In order, therefore, that this offence is committed there should be misconduct by the public servant in the discharge of his duty. In other words the public servant must do something in connection with his own duty and thereby obtain money for himself or for any other person by corrupt or illegal means or by otherwise abusing his position. If a public servant takes money from a third person in order to corrupt some other public servant and there is no question of his misconducting himself in the discharge of his own duty, that action may be an offence under s 161 of the Indian Penal Code but would not be an offence under s 5(2) read with s 5(1)(d) of the Prevention of Corruption Act. The essence of an offence under s 5(2) read with s 5(1)(d) is that the public servant should do something in the discharge of his own duty and thereby obtain any valuable thing or pecuniary advantage for himself or for any other person by corrupt or illegal means or by otherwise abusing his position. The words ‘by otherwise abusing his position’ read along with the words ‘in the discharge of his duty’ appearing in s 5(1)(d) make it quite clear that an offence under that section requires that the public servant should misconduct himself in the discharge of his own duty. In the present case, the accused was a teacher and it was no part of his duty to make appointments in the Running Shed at Abu Road. There would, therefore, be no question of his committing misconduct in the discharge of his duty when he took money for procuring a job for Prem Singh in the Running Shed. So far, therefore, as the charge under s 5(1)(d) is concerned, we are of opinion that there was no question of the accused misconducting himself in the discharge of his own duty in the circumstances of this case and it must fail." This view, however, did not find favour with a different panel of the Supreme Court in Dhaneshwar Narain Saxena v The Delhi Administration AIR 1962 SC 195. In that case the appellant was an Upper Division Clerk in the office of the Chief Commissioner of Delhi. He had come to know one Ram Narain, who was the main prosecution witness in the case and who was a fireman attached to the Delhi Fire Brigade. Ram Narain had for a long time been anxious to obtain a licence for a double-barrelled shot-gun. It was alleged that he had sought the assistance of the appellant who had nothing to do with the issuing of licences for firearms which is done by the office of the Deputy Commissioner, Delhi. The prosecution case, which rested mainly on the evidence of Ram Narain, was that he had submitted two applications during the year 1953 for the purpose of obtaining the licence with the assistance of the appellant. Those applications did not produce any result. In 1954 he made another attempt and approached the appellant to help him. The appellant held out hopes of success in obtaining the licence if he was paid Rs250. Ram Narain paid only Rs140 and promised to pay the remaining amount after his sister’s marriage. Thus, the third application for the licence was made in which Ram Narain’s salary was declared to be Rs105 per month. This attempt was successful and Ram Narain was granted the necessary licence. Eventually the authorities concerned were apprised of the fact that the salary of Ram Narain was only Rs85 per month and that the declaration in the form that his salary was Rs105 per month had been falsely made with a view to get over the difficulty that applications for licences for firearms by Government servants drawing less than Rs100 per month would not ordinarily be considered. When the authorities came to know the true facts about Ram Narain’s status in Government service, his licence was cancelled. When queried Ram Narain said that his salary had been falsely declared on the advice of the appellant. Ram Narain again approached the appellant for help. The appellant demanded another Rs180 as a reward for getting the licence restored. The matter was then reported to the police. The appellant was arrested when a part of the sum agreed was handed to him. In the Supreme Court the appellant relied on State of Ajmer v Shiuji Lal AIR 1959 SC 847 and argued that in order to attract the operation of section 5(1)(d) it was a necessary element of the crime charged that the public servant should have misconducted himself in the discharge of his own duty, and that if the official favour promised by the public servant to the giver of the money was not in the hands of the public servant, he could not be said to have misconducted himself in the discharge of his own duty. In rejecting this submission Sinha CJ in writing for the Court said at p 198-199, "In order to bring the charge home to an accused person under cl (d) aforesaid of the section, it is not necessary that the public servant in question, while misconducting himself, should have done so in the discharge of his duty. It would be anomalous to say that a public servant has misconducted himself in the discharge of his duty. ‘Duty’ and ‘misconduct’ go ill together. If a person has misconducted himself as a public servant, it would not ordinarily be in the discharge of his duty, but the reverse of it. That ‘misconduct’, which has been made criminal by s 5 of the Act, does not contain the element of discharge of his duty, by public servant, is also made clear by reference to the provision of cl (c) of s 5(1). It is well settled that if a public servant dishonestly or fraudulently misappropriates property entrusted to him, he cannot be said to have been doing so in the discharge of his official duty (vide the case of Hori Ram Singh v Emperor, 1939 FCR 159; AIR 1939 FC 43). An application for special leave to appeal from that decision was refused by the Privy Council in Hori Ram Singh v Emperor, 1940 FCR 15; AIR 1940 PC 54. This Court, therefore, misread the section when it observed that the offence consists in criminal misconduct in the discharge of the official duty. The error lies in importing the description of the offence into the definition portion of it. It is not necessary to constitute the offence under cl (d) of the section that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under s 5(1)(d). It is also erroneous to hold that the essence of an offence under s 5(2), read with s 5(1)(d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage." It is therefore clear that the interpretation accorded to Section 5(1)(d) of the Indian Prevention of Corruption Act 1947 is that it is not necessary that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage.

I shall next refer to Section 87 of the Criminal Code of Queensland the material parts of which read as follows:

"Any person who —

(1) Being employed in the Public Service, or being the holder of any public office, and being charged with the performance of any duty by virtue of such employment or office, not being a duty touching the administration of justice, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of any thing already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office; or

(2) Corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for, any person employed in the Public Service, or being the holder of any public service, or to, upon, or for, any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed or holding such office; is guilty of a crime … "

This provision came up for consideration in R v David (1931) QWN 2 where a policeman was given a travelling rug to do away with a jar of petrol found on the accused’s premises after a fire. The accused was charged under Section 87 of the Criminal Code. The prosecution submitted that, whilst the policeman had no duty to get rid of the petrol, he did have a duty to retain it and the expression "in the discharge of the duties of his office" meant "in the course of his duties". Macrossan SPJ rejected this submission saying: "The act referred to - the getting rid of the petrol — did not come within the proper discharge of the officer’s duty. It was not the carrying out of a duty which he had. Section 87 applies to cases where the act, sought to be performed or omitted arises out of a duty already incumbent on the official — as in the granting of licences. The chairman of a Board which grants licences might be offered money to grant a certain licence … That would come within s 87 — ‘In the discharge of his duty’." In Herscu v R (1992) LRC (Crim) 606 the High Court of Australia comprising Mason CJ, Brennan, Deane, Toohey and Gaudron JJ took the unanimous view that R v David (1931) QWN 2 was wrongly decided and ought not to be followed. In that case the appellant controlled a company which was the developer of a shopping centre and was dissatisfied with certain conditions relating to access to the centre imposed by the planning authority. He made two payments of $50,000 each to the Minister for Local Government and Main Roads for attempting to ensure that the planning authority approved changes in the access conditions. He was charged on two counts of official corruption and was convicted. The issue that arose for determination by the High Court was whether an attempt by the Minister to secure the approval of the council to changes in the access to the shopping centre could, as a matter of law, be regarded as an act done "in the discharge of the duties of his office" as Minister for Local Government and Main Roads. The appellant’s argument was that, because the Minister lacked any power as a matter of law to require the council to change the conditions of the planning consent in relation to access, he could be under no duty to do so and his attempt to procure a change was not an act done in the discharge of the duties of his office as Minister. He further submitted that a person is not charged with the performance of such a duty unless he is subjected to a legally binding obligation to do a particular act or make a particular omission. In answer to this Mason CJ, Dawson, Toohey and Gaudron JJ said at p 611, "The section is concerned with the violation or attempted violation of official duty rather than with the actual performance of official duty. Official corruption necessarily involves impropriety and it is not to be supposed that s 87 is limited to those cases where the act or omission in question would, apart from the corrupt influence, be proper." In his judgment Brennan J said at p 614-615, "It is submitted that the phrase ‘duties of his office’ in s 87 refers only to duties imposed by law by virtue of the particular office held. On this argument, when s 87 refers to ‘being charged with the performance of any duty’, it refers to a legal liability to perform a particular duty. No such duty was established in this case. I am unable to accept so narrow an interpretation of s 87. It is the leading code provision dealing with official corruption, a social evil which might occur not only when the holder of a public office is given a benefit on account of doing what he is legally bound to do but also when the holder of a public office is given a benefit on account of his using the influence of his office to secure an object (though it lies in the power of others to effect the object sought) or on account of his exercising a discretion vested in lieu to secure an object. Indeed, official corruption is less likely to occur and is likely to be less insidious in relation to the performance of a duty which a public officer is obliged to perform than in relation to the use of influence or the exercise of a discretion. It would be absurd to interpret s 87 as applicable only to a case where a bribe was paid on account of a public officer doing what he is legally bound to do or on account of his abstaining from doing what he is legally bound not to do. The scope of s 87 can hardly be limited to the giving of a benefit to a public officer to induce him to act in accordance with his legal duty: see Attorney-General of Hong Kong v Ip Chiu (1980) AC 663, (1980) 2 WLR 332, where such a payment was thought to fall outside the scope of similar offence.

In ordinary speech, ‘the discharge of the duties’ of the holder of a public office connotes far more than performance of duties which the holder of the office is legally bound to perform: rather the term connotes the performance of the functions of that office. The functions of an office consist in the things done or omitted which are done or omitted in an official capacity. The phrase ‘being charged with the performance of any duty’ thus means no more than being responsible for performing the functions of the public office. That phrase distinguishes the holder of a merely honorific public office from the holder of a public office responsible for the performance of official functions. A broad interpretation of s 87 is better adopted to effect its purpose than a narrow interpretation. When the office is such that the holder wields influence or is in a position to wield influence in matters of a particular kind the wielding of influence in a matter of that kind is a discharge of the duties of the office. Such a wielding of influence is something done in an official capacity. The minister administering the City of Brisbane Act under which the Council operates and the City of Brisbane Town Planning Act which confers power on the council to amend the conditions applicable to a development approval might be expected to have considerable influence on the council’s consideration of an application to amend conditions. As Judge Shanahan, the learned trial judge, put it to the jury in the course of his summing up:

‘You look at the reality of the situation, members of the jury. Does a local authority ignore a letter from the Minister for Local Government? … … … if a developer or a ratepayer goes to the Minister with a problem and asks him to intervene, to help in the area of his responsibility, would the Minister be in the discharge of the duties which he is charged by virtue of his being the Minister if he does something about that?’ Sometimes the minister’s influence might be properly wielded — where, for example, considerations affecting main roads are relevant to planning issues — but there are opportunities for improperly influencing council decisions." The Australian view is therefore in line with the Indian thinking, that is to say, it is not necessary that the act complained of must be within the scope of duty of the public officer concerned. This broad approach was adopted, correctly in my opinion, notwithstanding the qualification in the relevant statutory provisions to the effect that the act complained of must be one that was done in the discharge of the duties of office of the officer concerned.

I shall finally refer to Section 4(2) of the Prevention of Bribery Ordinance 1974 of Hong Kong the material parts of which read as follows:

"Any public servant who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his - (a) performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant … shall be guilty of an offence." This provision of law came up for review in Hong Kam-pin v The Queen (1973) HKLR 120. In that case two auxiliary police constables on duty went to a church hall where a private dance was being held, and, falsely alleging that a fight had taken place on the premises, threatened to break up the party. When pleaded with by the party organiser, one of the accused said, "You know how to react … " and held out his palm. The organiser then proffered $20, but was told, "That is insufficient - $30." They did, however, in the event accept $20 and then departed. They were later charged under Section 4(2) and convicted by a Magistrate of corruptly soliciting and accepting the money as an inducement to abstain from taking action in respect of an offence against public order alleged to have been committed at the church hall and convicted. They appealed. Leonard J summarised the argument of the appellants in this way at p 126: "The point made, somewhat audaciously, by (the appellants’ counsel) was that since no actual offence against public order was alleged and since no such offence could properly be alleged by the appellants the sum solicited and received could not be said to have been solicited or received by the appellants ‘as an inducement to or otherwise on account of their abstaining from performing an act in their capacities as public servants.’ To put it another way, if the appellants had acted as found by the magistrate they might have been guilty of the offence of demanding with menaces but not of an offence under section 4(2) … Indeed, (the appellants’ counsel) in the course of his argument stated: ‘I seek to equate this situation with the case of a police officer who by producing a gun in the street gets money from an innocent passer-by.’ He pointed out that there was nothing in the evidence to suggest anything disorderly about the dance or that the complainants might have thought there was … He submitted that as all parties must have known that the appellants had no authority to break up the dance, it followed that it could not be said they were acting in their capacities as public servants — the threat must have been, and been regarded by all, as a private threat." In answer to this his Lordship said at p 129, "Here the vital words are ‘in his capacity as a public servant’ … It becomes, I consider, clear that the word ‘capacity’ cannot be intended to bear the narrow meaning which (the appellants’ counsel) would have me assign to it … As I see it the question which one must ask oneself when considering the corruptness of a gift given to or solicited by a public servant in order to induce him to abstain from a proposed course of action is ‘would that gift have been given or could it have been effectively solicited if the person in question were not the kind of public servant he in fact was?’ If the answer is ‘Of course not’ as it is in this case then the gift has been solicited or given to him in his capacity as a public servant and is a corrupt one … The present ordinance aims at the mischief of a police officer obtaining a gift from a member of the public for forbearing to act in a manner which would be embarrassing to that members of the public whether or not he be entitled virtute officii to do the act forborne provided of course that the embarrassment sought to be avoided by the gift could not equally easily have been caused by the police officer had he not been a police officer." In approving this dictun Lord Edmund-Davies in delivering the advice of the Privy Council in Attorney-General of Hong Kong v Ip Chiu & Anor (1980) 2 WLR 332 said at p 338, "It has to be said respectfully that the Court of Appeal never really dealt with Leonard J’s test. Indeed, however unwittingly, they in effect discarded it, for more than once they equated a public servant’s ‘capacity’ with his ‘duty’ and thus considerably narrowed the former word, which is the only one contained in section 4(2)." It has therefore been held that the word "capacity" in Section 4(2) is not the equivalent of "duty" and that the true test whether an advantage has been solicited or accepted by a person in the capacity of a public servant is whether the gift would have been given or could have been effectively solicited if the person in question were not the kind of public servant that he in fact was; if the answer to that question were in the negative, then the person had taken the gift in his capacity as a public servant, provided that the embarrassment sought to be avoided by the gift could not equally easily have been caused by any person not holding that office.

I must point out that there is no qualification in the definition of the expression "corrupt practice" in Section 2(2) of Ordinance No. 22 as in the Indian and Queensland legislation that I have referred to. It does not require that the act done must be in relation to the discharge of duties of the officer concerned. It merely refers to any act done by any Member or officer in his capacity as such Member or officer whereby he has used his public position or office for his pecuniary or other advantage. That the act done must have been done in the capacity of the Member as such Member is similar to the language employed in section 4(2) of the Prevention of Bribery Ordinance 1974 of Hong Kong. The judgment of the Privy Council in Attorney-General of Hong Kong v Ip Chiu & Anor (1980) 2 WLR 332 is therefore a good guide in interpreting the relevant part of the expression "corrupt practice" in Section 2(2) of Ordinance No. 22. Thus the word "capacity" in the definition must not be equated with "duty". The true test would therefore be whether the act done would have been done or could have been effectively done if the person in question were not the kind of Member that he in fact was. If the answer to the question is in the negative, then the act of the Member is one that was done in his capacity as such Member whereby he has used his public office for his advantage, provided that it could not equally easily have been done by any person not holding that office. It applies to any advantage obtained by the Member or officer concerned by the use of his influence.

The evidence adduced

The prosecution must prove that the accused directed Dato Mohd Said and Dato Amir Junus to obtain from Ummi and Azizan the written statements dated 18 August 1997 addressed to YAB Prime Minister with regard to the first and third charges and the public statements with regard to the second and the fourth charges to deny the allegations. The evidence relating to the manner in which the accused used his position in relation to the first and the third charges and in relation to the second and fourth charges are inter-related. As this ingredient forms a continuous series of acts in respect of both sets of charges I shall deal with them together. In proof of this ingredient the prosecution must establish that —

Azizan made an allegation of sodomy as contained in his Pengakuan Bersumpah dated 5 August 1997 against the accused and Ummi made an allegation of sexual misconduct and sodomy as contained in her confidential report entitled Perihal Salah Laku Timbalan Perdana Menteri dated 5 August 1997 against the accused;
the accused directed Dato Mohd Said and Dato Amir Junus to obtain from Ummi and Azizan written statements addressed to YAB Prime Minister and public statements denying the allegations and that they obtained the statements as directed.

I shall consider the two elements separately.

Whether Azizan and Ummi made the allegations against the accused

The prosecution is only required to prove that Azizan and Ummi made the allegations as contained in Pengakuan Bersumpah dated 5 August 1997 (Exhibit P14C) and in Perihal Salah Laku Timbalan Perdana Menteri dated 5 August 1997 (Exhibit P14A and B) respectively against the accused.

With regard to Exhibit P14C Azizan identified it as the one that was signed by him. It contains allegations of sodomy against the accused. On the manner in which it was prepared Azizan said in cross-examination,

"(Saksi dirujuk kepada P14C.) Tidak sesiapa yang menyuruh saya membuat P14C. Saya buat atas kerelaan saya sendiri. Sebelum membuat P14C saya ada berbincang dengan Ummi Hafilda apa yang telah terjadi ke atas diri saya. Kami sama-sama berjumpa untuk membincangkan perkara ini. …

Berkenaan dengan P14C pada mulanya Ummi tidak mengetahui tentang perbuatan liwat yang terjadi ke atas diri saya. Saya telah menceritakan kejadian yang berlaku ke atas saya. Ummi pada mulanya tidak ada reaksi apa-apa.

Saya yang menyuruh Ummi membuat P14C kerana Ummi mahir dalam penggunaan bahasa. Dia bersetuju …

P14C disediakan oleh Ummi dengan persetujuan saya. (P14C dirujuk kepada saksi.) Saya tiada semasa P14C disediakan. Semasa saya sampai di pejabat Ummi P14C telah sedia ditaip. Saya tidak tahu siapa yang mendraf P14C. Saya pergi ke pejabat Ummi setelah diberitahu P14C telah siap ditaip. Saya bersetuju bahawa saya yang memberi fakta-faktanya dan Ummi yang hasilkan P14C ini. Saya cuma memberitahu Ummi tentang di mana tempat kejadian itu. Saya tidak berikan Ummi tarikh dan waktu kejadian kerana setiap kejadian saya tidak ingat tarikh dan waktu. Saya hanya memberitahu Ummi yang ini berlaku pada malam hari atau siang hari. …

Dengan maklumat yang saya berikan kepada Ummi Ummi telah menyediakan P14C dan saya tandatangani."

In his re-examination he said, "Saya membaca P14C sebelum menurunkan tandatangan saya. Sebelum menurunkan tandatangan saya di P14C saya faham dan setuju dengan kandungan P14C tersebut. P14C mengandungi fakta yang saya sendiri lalui." It was contended by the Defence that there is doubt as to whether Exhibit P14C is that of Azizan as he had merely told Ummi that he was sodomised many times and the places where they took place. If he had given her only these facts there is no explanation for the existence of the other materials in the exhibit. It was therefore submitted that Azizan is not the author of the contents of Exhibit P14C and that Ummi had fabricated whatever was not told to her. The evidence of Azizan that I have reproduced shows that his reference to what he had told Ummi and what he did not tell her is restricted to particulars of the acts of sodomy. He only told her the places and frequency and not the dates and time the sodomy took place. He did not say that he did not tell her about the other contents of Exhibit P14C. He has made it clear that it was prepared by Ummi on information supplied by him. Before he signed it he read it and had agreed with its contents. Thus the question of parts of Exhibit P14C having been fabricated does not arise. In this regard Ummi said in her cross-examination, "(Saksi dirujuk kepada P14C.) … Saya minta Azizan untuk menandatangani surat ini dengan persetujuan maklumat ini diberikan adalah benar." I pause to add that Azizan’s answer that he did not know who actually drafted Exhibit P14C is understandable as he was not there when it was drafted. The evidence of Ummi shows that she drafted it. In her cross-examination she said, "(Saksi dirujuk kepada P14C.) Saya yang membuat ini." Thus there is evidence to show that the allegations against the accused in Exhibit P14C were made by Azizan as he had signed it after it had been prepared by Ummi. As I have discussed in an earlier part of the judgment when dealing with the credibility of Azizan this finding is not affected in any way by the contents of Exhibit D55. He had denied a Defence suggestion that he had mentioned that the signature on Exhibit P14C was not his nor that he had denied that the signature was his.

With regard to Ummi’s authorship of Exhibit P14A, B and C it was suggested in cross-examination to her that it was not drafted by her. In reply she said,

"Saya tidak bersetuju bahawa saya bukanlah orang yang mendraf P14A, B dan C. Saya tidak pernah menulis buku.

Question: Is it not true that you told your brother Azmin that P14A, B and C were drafted by Dato Seri Megat?

Answer: Itu adalah satu pembohongan besar dari Azmin."

When further cross-examined on the same issue she said, "Saya juga tidak ada menyatakan bahawa surat itu telah didraf oleh Dato Seri Megat Junid dan meminta saya menaip surat itu untuk diserahkan kepada Puan Ziela." Ummi has denied the Defence suggestion that Exhibit P14A, B and C were drafted by Dato Seri Megat Junid. The fact that she is the person who drafted it is supported by Exhibit P38A — V which is a handwritten draft by her of Exhibit P14A, B and C and Exhibit P35 which is a computer diskette with the contents of Exhibit P14A, B and C in it. These were among the exhibits that ASP Zulkifli bin Mohamed took possession of from the office of Ummi on 18 August 1997. Her evidence that the draft is in her handwriting was not challenged by the Defence. I therefore accepted her evidence that the draft was prepared by her. This supports her evidence that Exhibit P14A was signed by her and that Exhibit P14B and C were prepared by her. It must be observed that it was never effectively put to Ummi that she did not sign and send Exhibit P14A and B together with P14C. As a matter of fact a large part of her cross-examination proceded on the basis that she was the writer of Exhibit P14A, B and C. However, it did take a different turn in a later part of the cross-examination when in answer to questions she said, "Adalah benar bahawa pada 14.7.98 saya ada bertemu dengan Azmin, Azman dan Dato Sng di Restoran Sri Melayu bagi meminta kerjasama saya. Saya tidak bersetuju bahawa di Restoran Sri Melayu bahawa saya mengaku saya bukanlah penulis kepada P14A, B dan C tetapi mengatakan saya bukanlah penulis kepada Buku 50 Dalil. Saya tidak bersetuju bahawa Azmin ada bertanyakan kepada saya, ‘That you have involved Dato Seri Anwar in our family misunderstanding.’ Di pertemuan itu saya bersetuju hanya saya, Azman, Azmin dan Dato Sng berada di restoran itu. Saya tidak bersetuju bahawa Azmin ada mengatakan bahawa apa yang saya buat adalah tidak betul." It will be observed that the cross-examination started with a suggestion that Ummi was not the writer of Exhibit P14A, B and C and ended with a further suggestion that Azmin had told her that what she did was wrong. If she was not the writer of the exhibit then the question of her having done anything wrong does not arise. The cross-examination therefore does not seek to challenge her authorship of the exhibit effectively. In any event the evidence that I have referred to earlier is sufficient to establish her authorship of the exhibit. It is my further view that even if Exhibit P14A, B and C were drafted by someone else the fact remains that she had signed Exhibit P14A which is the covering letter for Exhibit P14B and C. In that event Exhibit P14B becomes an allegation made by Ummi by virtue of her having adopted it. Thus there is evidence to show that the allegations against the accused in Exhibit P14B were made by Ummi. As I have discussed in an earlier part of the judgment when dealing with the credibility of Ummi this finding is not affected in any way by the contents of Exhibit D90. I must also point out that the directions given by the accused to Dato Mohd Said and Dato Amir Junus to obtain the retraction letters from Ummi and Azizan coupled with the subsequent obtaining of the letters and their handing over to the accused show that the accused had accepted the fact that Ummi and Azizan had made the allegations.

I have already stated in an earlier part of the judgment that the truth of falsity of the allegations is not in issue. The prosecution need only prove the fact of the allegations having been made by Azizan and Ummi. Their motive for making the allegations for any form of benefits, if any, argued as being relevant by the Defence, is not an issue in the charges and is therefore irrelevant. The charges also do not require proof to show, as contended, that Exhibit P14A, B and C were sent to YAB Prime Minister.

Thus there is evidence to show that Ummi and Azizan had made the allegations against the accused.

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

The charges state that the accused directed Dato Mohd Said and Dato Amir Junus to obtain from Ummi and Azizan written statements addressed to YAB Prime Minister during the period 12 August 1997 to 18 August 1997 in respect of the first and third charges and the public statements on or about 27 August 1997 in respect of the second and fourth charges denying the allegations and that they obtained the statements as directed. As the persons to whom the directions were given are Dato Mohd Said and Dato Amir Junus their evidence is critical to establish this element. I have dealt with the relevant parts of their evidence in an earlier part of the judgment. I shall now set out an outline of their evidence in chronological order.

11 August 1997
The accused asked Dato Mohd Said to look into a letter containing wild allegations against him.

12 August 1997
Upon being informed by ASP Zull Aznam Dato Mohd Said and Dato Amir Junus met the accused at his Official Residence at 10.00 p.m. He asked them about Exhibit P14A, B and C. He told them that it was written by Ummi. He asked them to trace Ummi and Azizan in order to find out more about the letter and why it was written. Dato Amir Junus made a note (Exhibit P42) of this meeting.

13 August 1997
Upon being informed by ASP Zull Aznam Dato Mohd Said and Dato Amir Junus met the accused at his Official Residence at 10.00 p.m. The discussion was on the latest development on Exhibit P14A, B and C. The accused was informed that the letter had been given to the IGP by Dato Seri Megat Junid and that Ummi and Azizan had not been traced yet. The accused urged them to locate Ummi and Azizan immediately and interview them. He asked them to "gempar" the two persons. Dato Mohd Said said that he understood the word to mean " … to surprise them and to put fear in them …" because of the letter. Dato Amir Junus said that it meant to interview them and frighten them so that they will not spread the allegations in the letter. Dato Amir Junus made a note (Exhibit P42) of this meeting.

15 August 1997
Upon being informed by ASP Zull Aznam Dato Mohd Said and Dato Amir Junus met the accused at his Official Residence at 2.00 p.m. They talked about Exhibit P14A, B and C. The accused was also informed about Exhibit P15. He showed them a copy of it and asked them to investigate fully into it. Dato Mohd Said and Dato Amir Junus suggested to the accused that a police report be made on Exhibit P15. He did not want to make a report as he did not want the case to be investigated by the CID and because of the adverse publicity as he is a politician and Deputy Prime Minister. They managed to convince him to make a report. When he agreed to lodge the report he told them that even though the case was going to be investigated by the CID he did not want the matter to go to Court as, in that event, it would be publicised. Dato Amir Junus made a note (Exhibit P43) of this meeting. ASP Zull Aznam lodged the police report (Exhibit P16).

16 August 1997
Upon being informed by ASP Zull Aznam Dato Mohd Said and Dato Amir Junus met the accused at his Official Residence at 10.00 p.m. The accused told them that if they managed to arrest Ummi and Azizan he did not want them to be detained for long. He wanted them to be questioned deeply as to why they wrote the letter. He repeated his request that he wanted the two to be traced as early as possible. Dato Amir Junus made a note (Exhibit P43) of this meeting.

18 August 1997
Upon the request of the accused Dato Mohd Said and Dato Amir Junus met him at his Official Residence at 12.30 a.m. They briefed him about the arrest of Ummi and Azizan. The accused directed them that Ummi and Azizan were to retract and deny their allegations as contained in Exhibit P14 A, B and C in writing within 24 hours. He said that he did not want them to be detained for long and that their case should not be brought to Court. He also wanted them to ensure that there is no publicity. The accused wanted the retraction letters to be in writing. Dato Amir Junus kept a note (Exhibit P44) of this meeting.

At about noon on the same day Dato Mohd Said and Dato Amir Junus were called by the accused to his Official Residence. They told him that Ummi and Azizan had changed their mind and were willing to retract the allegations. He told them that Ummi and Azizan should write letters of denial to YAB Prime Minister. Dato Amir Junus kept a note (Exhibit P45) of this meeting.

At about midnight on the same day Dato Mohd Said and Dato Amir Junus met the accused at his Official Residence. They showed him Exhibits P17 and P18. He was satisfied with Exhibit P17 but not with Exhibit P18. The accused then asked them to monitor the movement of Ummi and Azizan. Dato Amir Junus made a note (Exhibit P46) of the meeting.

27 August 1997
Upon being informed by ASP Zull Aznam Dato Mohd Said and Dato Amir Junus met the accused at his Official Residence at 10.00 p.m. He directed them to get another letter each from Ummi and Azizan. The letters, to be in the form of public statements, were to be more committed, convincing, firm and must deny and withdraw all the allegations contained in Exhibit P14A, B and C. The letters were to be open letters without being addressed to anybody and were to be posted to the accused’s office. He wanted the letters to fully declare that he was not involved in any sex scandal. Dato Amir Junus kept a note (Exhibit P47) of this meeting.

28 August 1997
The public statement of Azizan was read to the accused over the telephone by Dato Amir Junus. The accused made some amendments to the letter.

29 August 1997
The public statement of Ummi was read to the accused over the telephone by Dato Amir Junus. The accused made some amendments to the letter.

Later in the same day Dato Mohd Said and Dato Amir Junus went to the accused’s Official Residence and handed over to him Exhibits P20, P21 and P22.

I shall now consider the challenge mounted by the Defence against the prosecution evidence relating to the directions given by the accused.

With regard to the lodging of the police report (Exhibit P16) Dato Mohd Said, to a suggestion in cross-examination, said,

"I agree that the accused initially did not want to make a report because of the adverse publicity as he is a politician and Deputy Prime Minister. He said something to that effect." On this issue Dato Amir Junus, upon being cross-examined, said, "Laporan polis berkenaan dengan kes ini telah pun dibuat pada 15.8.97 oleh ASP Zull Aznam untuk menjalankan siasatan ke atas surat layang Talqin Terbuka dan atas kes ini. Laporan polis itu dibuat atas nasihat pihak polis. Saya bersetuju tertuduh mengikut nasihat polis. …

Saya bersetuju bahawa Special Branch memaklumkan tertuduh bahawa dakwaan-dakwwaan tersebut adalah serious dan telah dinasihatkan untuk membuat laporan polis."

Thus Dato Mohd Said has agreed with the Defence suggestion that the accused initially did not want to make a report because of the adverse publicity as he is a politician and Deputy Prime Minister. Dato Amir Junus also agreed with the Defence suggestion that later the accused agreed to make the report on their advice. This line of cross-examination of the two witnesses shows that the Defence case on the reason for the lodging of the police report is similar to that advanced by the prosecution.

It is the case for the prosecution that it was the accused who summoned Dato Mohd Said and Dato Amir Junus to meet him on the various occasions. Upon cross-examination on this issue Dato Mohd Said said,

"I reported to the accused progressively from time to time on the results of the investigation at his Official Residence. I did not brief the accused on my own accord. Because the accused called us to brief him we went. By ‘us’ I mean my deputy and I." Dato Amir Junus said in cross-examination, "Appointment untuk saya jumpa dengan tertuduh selalunya dibuat antara ASP Zull dan saya. Saya tidak tahu sama ada ASP Zull membuat appointment melalui En Azmin ….

Saya setuju bahawa dari masa ke semasa Cawangan Khas dipanggil oleh tertuduh untuk mentaklimatkan perkembangan siasatan yang dijalankan dan maklumat-maklumat yang didapati. Kebanyakan appointment telah dipanggil oleh tertuduh melalui Zull Aznam dan bukan Cawangan Khas."

The manner in which the questions were put to the witnesses shows that the accused agreed that he contacted Dato Mohd Said and Dato Amir Junus regularly to brief him on the progress of the investigations This is indicative of the deep interest that he took in the investigations.

The accused’s instruction to Dato Mohd Said and Dato Amir Junus to frighten Ummi and Azizan was challenged by the Defence with reference to the meaning of the word "gempar". On the meaning to be ascribed to the word Dato Mohd Said, on a suggestion put to him, said,

"I don’t agree that ‘gempar’ could mean a slight caution. The word is not the equivalent of ‘acah’. The word ‘gempar’ means to surprise and to put a little fear." It will therefore be observed that the use of the word "gempar" by the accused is not disputed. What was challenged was only its meaning.

On the nature of the directions given by the accused to Dato Mohd Said and Dato Amir Junus it was suggested to them that the accused only asked them to investigate into the allegations thoroughly and fully. This was denied by them. Dato Mohd Said agreed that the accused asked him to investigate fully and deeply into the allegations. However, upon further cross-examination he said,

"Earlier accused told us to look for them. We tried to look for them. That was in the beginning only. Later on there were more instructions." In this regard Dato Amir Junus said in cross-examination, "Tertuduh telah mulai 12.8.97 telah mengarah SP1 dan saya untuk mengesan Ummi dan Azizan serta mencungkil maklumat-maklumat mengenai mengapa mereka membuat dakwaan-dakwaan terhadap tertuduh. This is only to find out why they wrote the letters. Saya tidak setuju tertuduh tidak memberi arahan-arahan kepada kami." When it was put to Dato Amir Junus that the accused never directed them to do anything but merely requested Dato Mohd Said to conduct a thorough investigation into the case he said, "Kami diarah untuk mengesan Ummi and Azizan dan mendapatkan maklumat-maklumat dari mereka. I do not agree that he merely requested us as suggested." And later, "Question : I put it to you that accused only requested you to investigate fully.

Answer : Tertuduh mengarahkan kami untuk mengesan Ummi dan Azizan dan mendapatkan maklumat kenapa mereka membuat dakwaan-dakwaan dan bukan to investigate fully."

Both Dato Mohd Said and Dato Amir Junus have therefore denied the Defence suggestion that they were only asked to investigate into the matter thoroughly and fully.

If in fact it is true that Dato Mohd Said and Dato Amir Junus were only instructed to investigate into Exhibit P16 thoroughly then the steps taken by them to obtain the retraction letters would be part of their investigative process done on their own initiative. However, this was not put to them in cross-examination. On the contrary what was put to Dato Amir Junus goes this way:

"I put it to you that only after the Special Branch briefed accused and said that they have investigated and found the allegations to be untrue and that it involved a political conspiracy against him and Ummi and Azizan were prepared to retract their allegations that the accused requested for the retractions." What was put to Dato Amir Junus has obvious reference to Exhibits P17 and P18 as it is the case for the prosecution that the accused wanted Ummi and Azizan to write a letter of denial to YAB Prime Minister after he was informed by Dato Mohd Said and Dato Amir Junus that they were willing to retract their allegations. With regard to Exhibits P20 and P22 Dato Mohd Said and Dato Amir Junus met the accused at his Official Residence on 27 August 1997 at about 10.00 p.m. The accused gave them further directions. As Dato Mohd Said said, "That night he directed us to get in touch with Ummi and Azizan and from them to get another letter from each of them. He wants the letters to fully disclose that the accused was not involved in any sex scandal. He wants the letters to be open letters without being addressed to anybody. It was to be an open letter. He wanted the letters to be posted to the Deputy Prime Minister’s Office. We had to meet again with Ummi and Azizan to write the letters. The accused told us to get the letters from the two persons and post to his office. After that I instructed Dato Amir to carry out the instruction of the accused." Dato Amir Junus said, "Apabila saya dan SP1 berada di rumah tertuduh, tertuduh telahpun mengarahkan kami mendapatkan satu surat pengakuan yang berbentuk kenyataan umum daripada Ummi dan Azizan. Kenyataan umum yang dikehendaki oleh tertuduh ialah satu kenyataan yang lebih committed, meyakinkan dan tegas, serta menafikan dan menarik balik kesemua dakwaan-dakwaan yang terkandung di dalam ID14. Tertuduh juga telah mengarahkan supaya surat ini diposkan ke pejabat Dato Seri Anwar Ibrahim, Timbalan Perdana Menteri. Surat ini hendaklah diperolehi daripada Ummi dan Azizan." Dato Amir Junus, to a suggestion by the Defence, that the accused never instructed him and Dato Mohd Said to obtain the public statements from Ummi and Azizan said, "Saya tidak bersetuju bahawa tertuduh langsung tidak mengarah saya dan SP1 untuk mendapatkan kenyataan umum dari Ummi dan Azizan." The Defence suggested in cross-examination to Dato Amir Junus that the accused neither expressed satisfaction with nor made corrections to any of the letters. This is what he said, "Saya tidak bersetuju bahawa pada 28.8.97 langung tiada perbualan telefon di antara tertuduh dan saya pada jam lebihkurang 11.30 malam. Saya tidak setuju bahawa tertuduh tidak pernah berbincang tentang kes ini melalui telefon. Saya tidak setuju bahawa saya tidak membaca draf ID22 kepada tertuduh. Saya tidak setuju bahawa tertuduh tidak meminda atau pembetulan dibuat di atas ID29. Saya tidak bersetuju yang tertuduh tidak meluahkan kepuasan hatinya kepada mana-mana dokumen. Saya mengatakan dalam keterangan saya bahawa beberapa ayat-ayat di para yang terakhir di ID29 digugurkan oleh tertuduh." ACP Mazlan gave evidence on the corrections made to Exhibit P19 by the accused. This supports the evidence of Dato Amir Junus that the accused made corrections to the letter. The normal rule that one accomplice cannot corroborate the evidence of another accomplice does not apply in the case of Dato Amir Junus and ACP Mazlan in view of my finding that although they are accomplices their evidence does not require corroboration. As their evidence can be accepted without corroboration the evidence of one can be used to support that of the other. Furthermore, the evidence of Ummi and Azizan also show that corrections were in fact made to Exhibits P19 and P29.

With regard to the prosecution evidence on the request by the accused to post the public statements to his office Dato Mohd Said, in answer to a question in cross-examination, said,

"Question : I am instructed that the accused never requested that ID19 to ID22 be posted to his office?

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

(Saksi dirujuk kepada ID19 hingga ID22.) Three of the exhibits carry a rubber stamp. ID19 does not have a rubber stamp. The stamps do not have an initial."

It will be noted that apart from a suggestion that the accused did not ask for the public statements and that he did not want them to be posted to his office the manner in which he received them from Dato Mohd Said and Dato Amir Junus was not subjected to any cross-examination. The evidence of Suhaime bin Yunus that he did not affix the Received Rubber Stamps on the letters was not challenged. If the accused had not asked for the public statements he would surely have questioned Dato Mohd Said and Dato Amir Junus on the sinister manner in which they were handed to him, that is to say, by having them placed in an envelope with his name and address on it with a stamp which had been cancelled. The affixing of the Received Rubber Stamps on the letters indicates that the accused wanted them to have the appearance of having been received through the post. This shows that he had asked Dato Mohd Said and Dato Amir Junus to have the letters posted to his office. As he had asked for the letters to be posted he would have had some form of communication prior to that with Dato Mohd Said and Dato Amir Junus regarding the letters. In the circumstances that would be the request for the letters as disclosed by the evidence.

The fact that Exhibits P17 and P18 were voluntarily written as stated in Exhibit D25, the report sent by Dato Mohd Said to YAB Prime Minister, proves beyond reasonable doubt that after investigations were carried out the allegations were found to be false and baseless. Thus the accused was fully justified to have asked for the retractions of the allegations. That was the submission made by the Defence. It was further submitted that this must be read with Dato Mohd Said’s evidence that the accused asked him to investigate into the matter fully and that the accused did not ask for the retractions straightaway. It is true that in that report Dato Mohd Said had stated that Exhibits P17 and P18 were written voluntarily by Ummi and Azizan. He had also said that the letters form the primary basis of Exhibit D25. As to why he said the letters were written voluntarily he said in re-examination,

"When we conduct a turning over operation and if it is successful and which was in this case the fact that Ummi and Azizan wrote the letters themselves I concluded it was voluntary. This is how the Special Branch looks at it. In D25 I did not mention the methods employed to obtain ID17 and ID18. …

When I wrote D25 my Special Branch investigation was not completed."

The method employed to obtain Exhibits P17 and P18 shows that the written statements were not voluntarily written. When Exhibit D25 was written the Special Branch investigation was also not completed yet. Dato Mohd Said has explained why he concluded that the letters were written voluntarily, that is to say, that it is a Special Branch way of looking at it by virtue of the turning over operation being successful and Ummi and Azizan having written the letters in their own handwriting. Such a view cannot be sustained in law. The argument advanced by the Defence therefore has no merit.

Thus the Defence case, as put to the prosecution witnesses, is that the accused did ask for retraction of the allegations from Ummi and Azizan when they were prepared to retract their allegations though he never asked for the public statements. It will be observed that the challenges by the Defence of the directions given by the accused to Dato Mohd Said and Dato Amir Junus were put in the form of suggestions to them. A suggestion in cross-examination can only be indicative of the case put forward or the stand taken by the party on whose behalf the cross-examination is being conducted, but to no extent whatsoever can it be a substitute for evidence if it is clearly repudiated by the witness to whom it is made. In this regard it was observed in Emperor v Karmuddin Sheikh AIR 1932 Cal 375,

"Mere suggestions by a pleader or advocate for the accused do not amount to evidence of the fact suggested, unless they are either partly or wholly accepted by the witness for the prosecution." It follows that whatever was put to Dato Mohd Said and Dato Amir Junus and denied by them cannot be considered as evidence at this stage.

In my opinion, therefore the case for the Defence as put to the prosecution witnesses in cross-examination indicates that Exhibit P16 was lodged by the accused on the advice of Dato Mohd Said and Dato Amir Junus after his initial reluctance to avoid publicity and when Ummi and Azizan were prepared to retract their allegations he requested for the written statements. The evidence indicates, contrary to the Defence suggestion, that the accused asked for the public statements. Certain other features of the case are inconsistent with the accused merely asking for a thorough investigation. With regard to the prosecution evidence that the accused asked Dato Mohd Said and Dato Amir Junus to "gempar" Ummi and Azizan the only challenge made to the word was its meaning. Thus the Defence has accepted the fact that the word was used by the accused. The prosecution evidence that Ummi and Azizan should be traced quickly and that they should not be detained for long and that their case should not be investigated by the CID or brought to Court was not challenged. These coupled with the fact that the accused contacted Dato Mohd Said and Dato Amir Junus regularly to brief him on the progress of the investigations support the prosecution case that he asked for the retractions. The evidence discloses that there is ample corroboration to support this finding. The evidence of Ummi and Azizan on the manner in which they were asked to write the denial letters shows that they were compelled to write it. This corroborates the evidence of ACP Mazlan and DSP Aziz. This coupled with the existence of the letters, Exhibits P17, P18, P20 and P22 corroborates the evidence of Dato Mohd Said and Dato Amir Junus that they directed ACP Mazlan and DSP Aziz to obtain them. The fact that Exhibits P20, P21 and P22 were handed to the accused is corroborated by the presence of the Received Rubber Stamps of his office on them. Suhaime bin Yunus who said that he did not receive the letters was not cross-examined. So it is clear that the accused received them. The accused further used the letters of 2 September 1997 when he handed them to SAC Musa. It is therefore my view that there is sufficient corroboration of the evidence of the accomplices. In the circumstances I accepted the prosecution evidence that the accused asked Dato Mohd Said and Dato Amir Junus to have the allegations made by Ummi and Azizan denied and retracted.

A matter of significance is whether what the accused asked Dato Mohd Said and Dato Amir Junus to do amount to directions as contemplated by the charges. It was contended by the Defence that the directions that Dato Mohd Said claimed to have been given by the accused were in actual fact only requests which he himself construed as directives. It was argued that a request is one that is done politely with no compulsion. The person to whom a request is made has an option of acceding to it or refusing to follow it. If a person is directed to do something then there is some measure of compulsion or authority attached to it. It was submitted that the evidence of Dato Mohd Said reveals that there was only a request from the accused which he was not obliged to comply with. The Defence concluded by saying that the word "directed" in the four charges is therefore misplaced as it is not borne out by the evidence. I shall first consider the cross-examination of Dato Mohd Said on this issue as relied on by the Defence. It runs as follows:

"Question : Would you agree that from the start the accused all along requested you to look into this matter fully and deeply?

Answer : It is the interpretation of the word request.

Question : You said it depends how you interpret the word request.

Answer : Yes.

Question : You interpreted it as a direction?

Answer : Coming from the DPM I interpreted it as a direction."

The word "direction" is defined in Black’s Law Dictionary as : "That which is imposed by directing; a guiding or authoritative instruction; order; command. Highes v Van Bruggen 44 NM 534, 105 p 2d 494, 497." And the verb "direct" as : "To point to; guide; order; command; instruct. To advise; suggest; request." A direction is therefore something that is stated authoritatively. Whether I tell my secretary, "Please type this notes of evidence" in a calm and polite voice or utter the same words in a loud and commanding tone it still amounts to a direction as she is compelled to obey it. Thus the tone in which a direction is given bcomes irrelevant where the person to whom it is given is compelled to obey it. A direction can therefore be communicated in the form of a request, suggestion, instruction or in any other manner provided that there is a compulsion to obey it. As a matter of fact a perusal of the notes of evidence reveals that Dato Mohd Said had used the words "asked", "urged", "wanted", "directed", "told" and "instructed" to describe the communications between him and the accused. The communications from the accused to Dato Mohd Said and Dato Amir Junus would therefore amount to a direction if they felt compelled to obey them.

The Defence argued that in order to say that the accused had used his public position to his advantage in respect of the four charges he must have had authority over the Special Branch in law to direct them. If he did not have that authority he would not have had the power to direct Dato Mohd Said and Dato Amir Junus in matters pertaining to the performance of their duties. The Defence referred to their evidence where they said that at all material times they were only responsible to the IGP and the Minister of Home Affairs. There was no evidence to show that they were responsible to the accused in his capacity as the Deputy Prime Minister or as Minister of Finance. Accordingly, it was contended, the words " … in his capacity … " in Section 2(2) of Ordinance No. 22 refers to a capacity to exercise power. I have already considered the law relating to this argument in some detail in an earlier part of the judgment. In substance, the view that I had expressed is that the "capacity" in Section 2(2) of Ordinance No. 22 must not be equated with "duty". The true test would be whether the act done would have been done or could have been effectively done if the person in question were not the kind of Member that he in fact was. If the answer to the question is in the negative, then the act of the Member is one that was done in his capacity as such Member whereby he has used his public office for his advantage, provided that it could not equally easily have been done by any person not holding that office.

I shall now advert to the evidence adduced in order to determine whether the position of the accused comes within this meaning. In his cross-examination Dato Mohd Said said this:

"Question : If you believed the allegations to be true, why did you direct that they be retracted?

Answer : I did it because it was an instruction from the Deputy Prime Minister. Even if the Prime Minister, Minister of Home Affairs or IGP ask me to do it my belief is I should not do but the situation may be such that I have to do it despite my belief."

In his re-examination he said, "In respect of the instructions or directions given by the accused I could not have refused it. I had no choice. I had to follow the instructions. This is because he was the Deputy Prime Minister and not any ordinary person. Because of that I felt compelled to do it." Dato Amir Junus, on being asked in his examination-in-chief as to whether he would follow the instructions of the accused if he was not the Deputy Prime Minister and Minister of Finance said, "Jika tertuduh seorang biasa dan bukannya Timbalan Perdana Menteri dan Menteri Kewangan saya tidak akan mematuhi arahan-arahan yang diberi." In his cross-examination he said, "Question : Jika Timbalan Perdana Menteri memberikan arahan adakah kamu perlu mematuhi arahan tersebut? …

Answer : Jika saya menerima arahan dari Timbalan Perdana Menteri saya sebagai kakitangan Kerajaan saya terpaksa menerima arahan-arahan itu. Arahan-arahan yang saya terima daripada Timbalan Perdana Menteri adalah bersama dengan pegawai atasan saya.

Question : Can you obey an order from the Timbalan Perdana Menteri who is not your superior officer?

Answer : Saya sebagai seorang kakitangan Kerajaan dan arahan-arahan daripada Timbalan Perdana Menteri saya terpaksa mematuhi arahan itu.

Question : As a police officer knowing your duties can you take orders from the Timbalan Perdana Menteri who is not your superior officer?

Answer : Seperti yang saya katakan tadi saya menerima arahan itu bersama-sama dengan pegawai atasan saya. Oleh itu saya terpaksa mematuhi arahan-arahan yang diberi oleh Timbalan Perdana Menteri.

Question : If the Timbalan Perdana Menteri whom you admit is not your superior officer gives you an order do you have to obey it?

Answer : Saya sebagai pegawai Kerajaan arahan-arahan yang diberi oleh Timbalan Perdana Menteri who is also at the time a government officer maka saya tiada ada pilihan lain mematuhi arahan-arahan yang diberi kepada saya. Jikalau arahan-arahan yang diberi oleh Timbalan Perdana Menteri saya akan merujuk kepada pegawai atasan saya."

It is thus clear that Dato Mohd Said and Dato Amir Junus felt compelled to obey the accused because he was the Deputy Prime Minister and Minister of Finance. They would not have obeyed him if he was an ordinary man. The corollary is that the communications from the accused to Dato Mohd Said and Dato Amir Junus amount to directions as contemplated by the four charges.

I shall now consider the evidence relating to the manner in which the statements were obtained.

The obtaining of Exhibits P17 and P18 Upon the arrest of Ummi and Azizan the accused directed Dato Mohd Said and Dato Amir Junus on 18 August 1997 at 12.30 a.m. that Ummi and Azizan were to retract and deny their allegations as contained in Exhibit P14A, B and C. He wanted the retraction letters to be addressed to YAB Prime Minister. At 1.30 a.m. on the same day Dato Mohd Said and Dato Amir Junus instructed ACP Mazlan and DSP Aziz to obtain a retraction of the allegations made by Ummi and Azizan within 24 hours. He said that the interrogation to obtain a retraction is known within the Special Branch as a Turning Over Operation. The object in turning over Ummi and Azizan was to make them change their stand. Dato Amir Junus explained that the instruction given to the two officers was not normally done by the Special Branch. He explained it this way, "Arahan-arahan yang diberikan kepada SP7 dan SP2 adalah bukan perkara biasa dalam Cawangan Khas. Saya ingin menerangkan perkara ini dalam Bahasa Inggeris. In normal circumstances the Special Branch normally collects intelligence gathering before we arrest anybody. In the case of Ummi and Azizan there was no intelligence gathering but just to surface them and to identify them. This is contrary to Special Branch practice. The second aspect when we turn over or neutralise any target we will go for the truth of the facts pertaining to the case. But in the case of Ummi and Azizan there was no instruction given to extract the truth of the matter but to neutralise them. This is again not the normal norms of Special Branch practice. The technique of turning over and neutralisation in Special Branch is only applicable to targets who are having communist ideology, religious fanaticism and extremism. But in the case of Ummi and Azizan which is of a criminal nature the technique was applied and this is the first time that we applied this kind of technique in cases of this nature." ACP Mazlan was instructed to interrogate Azizan and DSP Aziz Ummi. DSP Aziz said that the instructions he received from Dato Amir Junus meant that he had to change the stand of Ummi and Azizan so that they will withdraw all the allegations as contained in Exhibit P14A, B and C.

At about 2.30 a.m. on 18 August 1997 ACP Mazlan and DSP Aziz gave a preliminary assessment of their interrogation of Ummi and Azizan to Dato Mohd Said. DSP Aziz informed him that it would be a bit difficult to deal with Ummi as she was still very strong in her belief of her allegations. ACP Mazlan reported that it would be easier to deal with Azizan. Both the officers concluded, as a result of the interrogation, that there was some basis in the allegations. Dato Mohd Said then said,

"In spite of that I directed them to go again to neutralise them to make them change the stand. I still directed my men to neutralise Ummi and Azizan even after being told that there is some basis in their allegations because the direction I received was from the Deputy Prime Minister." In this regard Dato Amir Junus said, "Setelah SP2 dan SP7 memberi taklimat kepada saya dan SP1 kami telah memberi arahan supaya mereka meneruskan meneutralisekan Ummi dan Azizan. Saya dan SP1 telah mengarahkan mereka untuk terus meneutralisekan Ummi dan Azizan kerana mematuhi kehendak tertuduh." At about 6.00 a.m. on the same day ACP Mazlan informed Dato Mohd Said and Dato Amir Junus that Azizan had been neutralised. At 10.00 a.m. on the same day DSP Aziz informed them that Ummi had been neutralised. At about noon on that day they were called by the accused to his Official Residence. Dato Mohd Said said, "Dato Amir and I went. We briefed him on the result of the interrogation. We told him that they had already changed their stand and they are willing to retract the allegation. During this meeting the accused directed us that the two arrestees should write letters of apology addressed to YAB Prime Minister." Dato Mohd Said passed over this instruction to ACP Mazlan and DSP Aziz on the same day at 4.30 p.m. This instruction was carried out. At about 6.00 p.m. DSP Aziz handed the first draft of the letter from Ummi. With regard to this draft Dato Mohd Said said, "After taking a look at the letter I said it was not good enough. I told DSP Aziz to get a more committed letter from Ummi. The first draft was not clear. I thought the letter was not good enough to be sent to the Prime Minister. The wordings, construction of sentences and apology were not really there." On this issue Dato Amir Junus said, "Selepas saya dan SP1 meneliti surat yang ditulis oleh Ummi itu, surat itu tidak memenuhi kehendak tertuduh, iaitu untuk menafikan segala dakwaan-dakwaan. Saya dan SP1 telah mengarahkan SP2 untuk Ummi menulis surat yang lebih tegas lagi." At about 9.30 a.m. on the same day ACP Mazlan and DSP Aziz handed over the letters from Azizan (Exhibit P17) and Ummi (Exhibit P18) to Dato Mohd Said. At about midnight on the same day Dato Mohd Said and Dato Amir Junus handed over the two letters to the accused at his Official Residence. Dato Mohd Said said, "That night Dato Amir and I met the accused in his house. I gave the accused copies of ID17 and ID18. The accused read the two letters and as far as ID17 was concerned the accused was satisfied with it. He was not very pleased with ID18." On this issue Dato Amir Junus said, "Apabila saya dan SP1 telah menyerahkan ID17 dan ID18 kepada tertuduh tertuduh telah pun membaca kedua-dua surat tersebut. Selepas membaca ID17 tertuduh meluahkan perasaan bahawa surat ini bolehlah diterima tetapi apabila membaca surat ID18 yang ditulis oleh Ummi tertuduh kurang puashati dan bukan seperti yang dikehendaki. Bagi ID17 tertuduh telah mengatakan, ‘Ini boleh,’ tetapi bagi surat ID18, ‘Bukan macam ini’." I consider it necessary to outline the prosecution evidence to show the manner in which Ummi and Azizan were turned over and neutralised into preparing Exhibits P17 and P18. With regard to the turning over of Ummi DSP Aziz said, "Pendekatan yang kami gunakan berteraskan pendekatan psychology. Dalam context ini kami telah menimbulkan ketakutan dalam diri Ummi dengan cara menggemparnya dari sudut undang-undang berkaitan tahanan di bawah Akta Keselamatan Dalam Negeri dan Akta Hasutan. Ummi juga ditakutkan dengan kemungkinan tindakbalas dari orang yang dituhmah yang mana merupakan Menteri Kewangan dan Timbalan Perdana Menteri pada ketika itu. Selain daripada itu terdapat dua lagi pendekatan yang digabungkan. Pertama, soalsiasat yang berterusan dengan soalan yang bertalu-talu tanpa henti bagi menimbulkan suasana seolah-olah akan berlaku ancaman physical. Kedua, pendekatan memujuk dan nasihat bagi tujuan mengelirukan sasaran. Ketiga-tiga pendekatan ini telah menimbulkan tekanan mental yang tinggi sehingga Ummi hilang daya melawan dan menyerah kepada pasukan soalsiasat.

Daripada pukul 11.00 malam 17.8.97 sehingga pukul 7.00 pagi 18.8.97 saya dan pasukan saya telah menjalankan process soalsiasat ke atas Ummi tanpa henti. Setelah saya mendapati Ummi telah berjaya dineutralisekan saya telah memaklumkan mengenai kejayaan tersebut kepada SP1 pada sekitar jam 10.00 pagi."

After DSP Aziz received instructions to obtain the retraction letter from Ummi he discussed the matter with her. As he said, "Walaupun pada ketika itu Ummi telah berjaya diturn overkan tetapi dia tidak sanggup menurunkan pendirian baru ini dalam bentuk tulisan dengan alasan adalah sukar untuk menunjukkan pertukaran pendirian dalam tempoh kurang dari 24 jam. Saya meneruskan pujukan dan nasihat bagi meyakinkan Ummi untuk menulis surat berkenaan yang mana akhirnya beliau hanya bersetuju menulis surat memohon maaf. Memandangkan surat asal yang bertarikh 5.8.97 dialamatkan kepada Dato Seri Dr Mahathir, Perdana Menteri Malaysia maka surat memohon maaf juga dialamatkan kepada Perdana Menteri. Setelah Ummi bersetuju untuk menulis surat memohon maaf berkenaan kami telah berbincang mengenai bentuk surat yang bakal ditulis. Peranan saya dalam tulisan surat ini lebih berbentuk selaku penasihat.

Pukul 6.00 petang 18.8.97 saya telah mengemukakan surat yang telah siap ditulis oleh Ummi kepada SP1. Setelah SP1 menerima surat tersebut beliau telah berasa tidak puashati kerana surat itu terlalu mendatar dan tidak committed. SP1 mengarahkan satu surat yang lebih tegas dan committed ditulis oleh Ummi. Saya telah pergi berjumpa dengan Ummi semula dan berbincang berkaitan dengan arahan berkenaan yang mana akhirnya pada sekitar jam 8.00 malam satu surat yang lebih tegas dan committed telah dihasilkan."

Ummi explained why she wrote Exhibit P18 in this way, "Soalsiasat itu telah dijalankan berterusan tanpa henti dari pukul 12.00 malam hingga pukul 7.00 pagi 18.8.97. Dalam jangkamasa itu saya tidak dibenarkan untuk tidur. Cara soalsiasat dikendalikan adalah begitu kasar dan lebih bercorak kepada ancaman dan ugutan. Semasa saya disoalsiasat pegawai polis tersebut telah meminta saya membuat satu surat penafian dan menarik balik segala pertuduhan yang saya kemukakan seperti di P14A dan P14B. Saya tidak bersetuju sama sekali untuk membuat surat penafian tersebut. Saya tidak bersetuju untuk membuat surat penafian kerana saya yakin pertuduhan di dalam laporan saya mempunyai asas yang begitu kukuh untuk disiasat oleh pihak polis. Apabila saya tidak bersetuju mereka masih meneruskan penderaan mental terhadap saya untuk saya mengubah pendirian saya. Pada akhirnya saya bersetuju untuk membuat surat penafian tersebut. Saya bersetuju kerana saya telah diancam dan diugut oleh DSP Aziz Hussain untuk menghantar saya ke lockup Jalan Travers sebelum ditahan di bawah ISA selama 2 tahun." With regard to the turning over of Azizan ACP Mazlan said that he started his interrogation at about 1.45 a.m. on 18 August 1997. After the initial interrogation ACP Mazlan believed in the allegations made by Azizan. He informed Dato Mohd Said about this but was told to continue with the turning over process. ACP Mazlan said, "Saya terpaksa mematuhi arahan tersebut walaupun saya tahu dia agak aneh sedikit." He then continued, "Selain daripada ASP Ariff bin Ariffin dan Ketua Inspektor Zamri bin Hashim lebih kurang jam 5.00 pagi SP2 telah masuk membantu saya dalam process turning over. Technique yang saya lakukan dalam process turning over lebih kepada persuasive methods. Jadi process ini agak lambat sedikit untuk dapatkan result. Oleh itu pada ketika itu Azizan masih belum dineutralise. SP2 yang mempunyai perwatakan garang (fierce) menyoal Azizan dan lebihkurang satu jam selepas itu Azizan dianggap telah dineutralise. Azizan dianggap dineutralisekan lebihkurang jam 6.00 pagi. Azizan tidak diberi masa untuk tidur sebab tugas yang saya lakukan mesti complete dalam masa 24 jam." According to ACP Mazlan the steps he took to obtain the denial letter from Azizan are as follows: "Setelah saya menerima arahan dari SP1 saya meneruskan menjalankan arahan itu di mana saya pergi ke bilik soalsiasat untuk mendapatkan surat penafian tersebut dari Azizan. Di sini saya menghadapi masalah di mana Azizan enggan menafikan dalam bentuk surat yang ia pernah diliwat oleh tertuduh. Saya terpaksa memujuk beliau untuk mendapatkan surat penafian tersebut. Di akhir process ini Azizan cuma bersedia untuk menulis sepucuk surat memohon maaf ke atas keterlanjurannya membuat surat pengakuan bersumpah iaitu ID14C. Ada ketika saya memujuk Azizan untuk mendapatkan surat berkenaan itu. Dua pegawai saya ASP Ariff dan Ketua Inspektor Zamri terlibat bersama saya memujuk Azizan untuk mendapatkan surat berkenaan iaitu surat penafian. Saya mengambil masa selama lebihkurang 2 jam memujuk Azizan untuk mendapatkan surat penafian. Sekitar 8.00 malam barulah Azizan bersedia menulis satu surat memohon maaf yang dialamatkan kepada YAB Perdana Menteri. Surat tersebut dialamatkan kepada YAB Perdana Menteri oleh kerana pengakuan bersumpahnya iaitu ID14C juga dialamatkan kepada Perdana Menteri. Saya cuma memberi sedikit guidance kepada Azizan untuk menulis surat tersebut tetapi fakta di dalamnya adalah karangan Azizan sendiri khususnya mengenai memohon maaf di atas keterlanjurannya. Azizan selesai menulis surat tersebut sekitar jam 9.00 malam. Setelah Azizan selesai menulis surat berkenaan saya sampaikan surat tersebut kepada SP1." Azizan explained the circumstances in which he wrote Exhibit P17 in this way, "Sewaktu saya disoalsiasat saya disoalsiasat bersendirian dalam sebuah bilik. Pada awal saya disoalsiasat oleh ACP Mazlan saya maklumkan bahawa apa yang terkandung di dalam P14C adalah benar sambil bersumpah dengan nama Allah dan memegang Surah Yasin sekiranya saya berbohong maka saya akan dilaknati Allah. Selepas itu pegawai soalsiasat meminta saya membuat satu surat penafian yang saya telah diliwat dialamatkan kepada YAB Perdana Menteri. Sebelum saya diminta menulis surat ini saya telah disoalsiasat berterusan sehingga pagi. Saya telah disoalsiasat dengan kasar bertalu-talu tanpa henti. DSP Aziz (SP2) ada menyoalsiasat saya. DSP Aziz menyuruh saya mengadakan bukti yang saya telah diliwat oleh tertuduh. SP2 juga bertanya kepada saya bagaimana kejadian liwat itu berlaku dan mengenai latarbelakang saya. DSP Aziz menyoalsiasat saya dengan kasar bertalu-talu tanpa henti dengan nada suara yang tinggi. Dengan nada yang tinggi DSP Aziz menyuruh saya mengadakan bukti sekiranya tertuduh main buntut saya. Dia juga mengatakan sekiranya saya tidak dapat mengadakan bukti saya akan ditahan di bawah Sek 117 sehingga 14 hari dan seterusnya akan ditahan sehingga 60 hari tanpa perbicaraan. Dan saya akan ditahan di bawah ISA selama dua tahun. Selepas saya dikatakan begitu oleh SP2 saya telah mengatakan sekiranya seorang perempuan bolehlah dibuktikan melalui darahnya saya lelaki saya rasa susah untuk buktikan. Saya juga mengeluh kerana pengakuan bersumpah saya maka saya akan ditahan di bawah ISA. Selepas jawapan saya kepada SP2 SP2 berkata ‘Tahu pun’. Apabila SP2 mengatakan ‘Tahu pun’ kepada saya tangannya menhentak meja dan jarinya menunjuk ke muka saya. Perwatakan SP2 sangat garang dan menakutkan saya. Dia menghentakkan tangannya dengan tiba-tiba tanpa saya sedari. Begitu juga dengan jarinya semasa menunjuk ke muka saya.

Saya disoalsiasat sehingga 18.8.97 sehingga jam 8.00 malam. Sewaktu saya disoalsiasat saya tidak dibenarkan berehat dan disoal bertalu-talu. Apabila saya diminta menulis surat kepada YAB Perdana Menteri saya tidak bersetuju kerana pengakuan bersumpah saya adalah benar. Sekiranya saya menarik balik maka saya dianggap berbohong. Tujuan surat adalah untuk menafikan yang saya telah diliwat oleh tertuduh. Pada mulanya apabila saya tidak bersetuju untuk menulis surat penafian saya telah ditakutkan dan disoal bertalu-talu. Akhirnya setelah saya diberikan kertas dan pen saya membuat satu surat … Saya tidak membuat surat P17 ini atas kerelaan sendiri."

The obtaining of Exhibits P20 and P21

On 28 August 1997 Dato Mohd Said and Dato Amir Junus told ACP Mazlan that the accused was not satisfied with Exhibits P17 and P18 and hence instructed him to get a more committed and convincing public statement. ACP Mazlan met Azizan on the same day at 8.30 p.m. at the Kelab Golf PDRM Titiwangsa to obtain the letter from him. As ACP Mazlan said,

"Apabila saya bertemu dengan Azizan di Kelab Golf saya perhatikan Azizan memang tertekan (being pressured) di mana beliau telah meluahkan rasa frustration tetapi saya telah memujuk dan cuba menenangi hati supaya mendapatkan surat penafian yang lebih committed. Process memujuk dan menenangi hati beliau mengambil masa hampir dua jam. Akhirnya sekitar jam 11.00 malam Azizan bersetuju menulis sepucuk surat menafikan sama sekali yang beliau telah diliwat oleh tertuduh. Beliau bersetuju dan menulis sepucuk surat penafian tersebut lebihkurang jam 10.30 malam dan saya maklumkan perkara itu kepada Dato Amir. Dato Amir ketika itu berada di rumahnya dan beliau telah datang ke Kelab Golf untuk melihat sendiri surat penafian. Sekitar jam 11.00 malam apabila Dato Amir melihat surat tersebut beliau telah menelefon tertuduh menggunakan handphonenya sendiri. Dato Amir telah membaca melalui telefon isi kandungan surat tersebut kepada tertuduh di mana saya lihat Dato Amir membuat perubahan kepada surat tersebut. Selepas membuat perubahan ke atas draf surat tersebut saya diarah oleh Dato Amir supaya meminta Azizan menulis kembali surat yang telah dipinda. Di sini saya juga terasa tertekan oleh sebab terpaksa merayu kepada Azizan mengubah kembali surat yang ditulis olehnya. Saya berjumpa kembali Azizan yang sedang menunggu di Kelab Golf. Saya jelaskan kepada Azizan apa yang berlaku dan di sini Azizan juga merasa hampa dan dia berkata once for all beliau akan turuti permintaan saya. Beliau telah menulis kembali dan dalam surat ini beliau menafikan sama sekali beliau pernah menulis pengakuan bersumpah iaitu ID14C. Di peringkat awal di draf yang pertama beliau menafikan yang beliau pernah diliwat tetapi kali ini beliau menafikan yang beliau pernah menulis pengakuan bersumpah iaitu ID14C." The final draft that Azizan signed is Exhibit P19. Exhibit P20 is a typewritten version of it. On the corrections made to the letter by the accused Dato Amir Junus said, "Sesampainya saya di Kelab Golf SP7 telah pun menunjukkan kepada saya surat yang ditulis oleh Azizan. Selain daripada SP7 Azizan juga berada di situ. Saya telah membaca surat yang ditulis oleh Azizan dan seterusnya saya telahpun menelefon tertuduh dan membacakan kenyataan umum yang ditulis oleh Azizan. Melalui telefon tertuduh telahpun membuat beberapa pembetulan. Di antara pembetulan-pembetulan yang dibuat, jikalau saya masih ingat perkataan seperti ‘penafian’ mestilah dimasukkan di dalam salah satu paragraph surat itu dan juga ‘Azizan tidak pernah menulis pengakuan bersumpah’. Surat yang saya maksudkan ialah surat pengakuan sumpah Azizan, (Saksi dirujuk kepada ID14C.) Yang saya maksudkan ialah ID14C. Tertuduh minta saya menambahkan dalam kenyataan umum Azizan satu perenggan lagi. Selepas menerima arahan-arahan ini saya telah menyerahkan kenyataan umum yang dipinda oleh saya yang diarahkan oleh tertuduh melalui telefon kepada SP7." And later said, "Semasa saya membaca surat ini di pagi 29.8.1997 chop rubber stamp yang diletak di sini tidak terdapat pada surat ini. Perenggan yang ditambah di surat ini ialah para terakhir yang berbunyi, ‘Saya merasa kesal di atas apa yang telah berlaku dan berharap dengan penjelasan ini dapat memperbetulkan keadaan.’ Para ini telah diarahkan oleh tertuduh semasa saya bercakap melalui telefon dengan tertuduh pada malam 28.8.1997. Perkataan 'penafian’ yang dimaksudkan ialah di para pertama barisan 2 ‘… tidak pernah menulis pengakuan bersumpah …’. " Azizan’s explanation for writing Exhibit P20 is as follows: "Pada 28.8.97 saya ada berjumpa dengan ACP Mazlan (SP7). Saya telah dibawa oleh SP7 ke Kelab Golf Titiwangsa. Saya pergi ke Kelab Golf lebihkurang jam 8.00 malam. Di Kelab Golf SP7 meminta saya membuat satu surat kenyataan umum yang lebih baik bagi menafikan yang saya diliwat. Maksud ‘lebih baik’ ialah lebih meyakinkan. Apabila permintaan ini dibuat oleh SP7 saya merasa kecewa kerana sememangnya saya telah diliwat oleh tertuduh. Seterusnya SP7 telah memujuk saya untuk membuat surat kenyataan umum. ACP Mazlan terus memujuk saya agar saya membuat satu kenyataan umum Setelah dipujuk saya membuat satu kenyataan umum. Saya menandatangani surat kenyataan umum tersebut. Setelah saya menulis surat ini saya telah menyerahkannya kepada SP7. Selepas itu saya telah diminta untuk membuat sedikit pindaan bagi menafikan yang saya pernah membuat surat pengakuan bersumpah. Tidak ada pindaan-pindaan lagi yang dibuat. Saya diminta menulis semula surat kenyataan umum yang telah dipinda itu. Pada mulanya saya tidak bersetuju untuk menulis semula surat itu dengan pindaan-pindaannya sebagaimana diminta. ACP Mazlan terus memujuk dan saya membuatnya kerana merasa takut dan tertekan … Apabila saya menandatangani P20 ini chop setem getah tidak terdapat pada P20 itu." After Exhibits P19 and P20 were handed over to Dato Amir Junus on 29 August 1997 at about 9.00 a.m. by ACP Mazlan and DSP Aziz he instructed them to get a public statement from Ummi. ACP Mazlan, DSP Aziz and woman constable Noraini bt Abdullah met Ummi at Room No 1426 in Pan Pacific Hotel at about 10.30 a.m. In describing how the statement was obtained from Ummi ACP Mazlan said, "Apabila saya dan SP2 bertemu dengan Ummi kita jelaskan kepada Ummi mengenai arahan yang saya terima daripada Dato Amir. Di sini kami menghadapi satu masalah untuk mendapatkan surat penafian dari Ummi. Ummi adalah perwatakan (strong character). Kami hadapi masalah untuk mendapatkan surat penafian itu. Dari jam 10.30 pagi sehingga 4.00 petang Ummi enggan menulis surat penafian. Pada peringkat permulaan kami cadangkan beliau membuat kenyataan akhbar. Kami tahu beliau tidak akan melakukannya. Pada suatu ketika Ummi menangis. Kami tahu beliau tidak akan membuat kenyataan akhbar tetapi beliau mungkin bersetuju untuk membuat something lesser than kenyataan akhbar. Kami cadangkan satu surat berbentuk kenyataan umum. Ini pun terpaksa melalui process berdolak dalik. Akhirnya jam lebihkurang 3.00 petang beliau telah bersetuju menulis sepucuk surat kenyataan umum..(Saksi dirujuk kepada D29.) Inilah kenyataan umum yang ditulis oleh Ummi." ACP Mazlan and DSP Aziz then took the letter (Exhibit P29) to Dato Amir Junus for his perusal. As Dato Amir Junus said, "Selepas membaca surat ini dan untuk menentukan bahawa kandungannya memenuhi kehendak tertuduh saya telah menelefon tertuduh dan membaca surat ini melalui telefon kepada tertuduh. Pada ingatan saya tertuduh telah mengarahkan saya untuk membuangkan dua paragraph. (Saksi dirujuk kepada ID22.) Separuh daripada para 2 di ID29 digugurkan. Para 4 di ID29 iaitu ‘Rintihan dan peristiwa tersebut … terjejas’ di gugurkan. Ayat ‘spekulasi … negara’ digugurkan tetapi ditambah dengan menggantikan ‘ … segera fitnah ini.’ Para 1 di ID29 juga gugurkan. Saya telah mengubahsuai ID29 ini mengikut kehendak tertuduh." After the amendments were made Dato Amir Junus handed over the draft to DSP Aziz to be typed. It was then taken to Ummi for her signature. As ACP Mazlan said, "Seterusnya Ummi telah meluahkan perasaan tidak puashatinya ke atas kenyataan umum yang ditulis olehnya oleh sebab telah diubahsuai dan dipinda … Apabila Ummi tidak berpuashati dengan ID22 kami terus memujuk Ummi untuk menandatangani ID22. Akhirnya Ummi bersetuju untuk menandatangani ID22 di samping meminda namanya yang telah tersilap ditaip." Ummi was also asked to write a covering letter (Exhibit P21) to the accused. She described the circumstances in which she signed Exhibit P22 in this way, "DSP Aziz telah menyuruh saya membuat suatu kenyataan umum memohon maaf untuk disiarkan secara langsung di semua stesyen TV1, 2 dan 3. Saya tidak bersetuju sama sekali kerana ini mungkin menjejaskan credibiliti saya sebagai orang yang tidak mempunyai prinsip. Akhirnya DSP Aziz telah meminta saya membuat satu kenyataan umum secara bertulis. Pada mulanya saya tidak bersetuju sama sekali kerana seperti yang saya nyatakan pertuduhan saya mempunyai asas yang kukuh untuk diketengahkan. Setelah hampir lima jam di dalam bilik tersebut saya dipaksa dengan keadaan yang tidak selesa akhirnya saya bersetuju. … DSP Aziz telah menyatakan kepada saya bahawa Dato Said Awang tidak berpuashati dengan P29 dan dia telah kemukakan satu kenyataan umum yang lain yang sudah ditaip untuk saya tandatangan. Mulanya saya tidak bersetuju untuk menanda-tangani kerana ianya berbeza dengan P29 yang saya tulis. Akhirnya saya telah menandatangani surat yang ditaip setelah dipaksa lagi oleh DSP Aziz." The evidence of ACP Mazlan and DSP Aziz that they conducted the turn over operation on the instructions of Dato Mohd Said and Dato Amir Junus was not challenged in cross-examination. As a matter of fact ACP Mazlan agreed to a Defence suggestion that in carrying out his duties he followed the instructions of Dato Mohd Said though he denied a later inconsistent suggestion that he was not telling the truth. Their evidence shows that Ummi and Azizan wrote the letters against their will. This was not challenged in cross-examination. No suggestion was put to Azizan to show that he did not write the letters voluntarily. Such a suggestion was put to Ummi and she said, "Saya tidak bersetuju bahawa segala penafian yang dibuat oleh saya adalah secara sukarela dan tanpa paksaan." In my opinion what was put to Ummi would have been of greater value if ACP Mazlan and DSP Aziz had been challenged on the evidence they gave with regard to the circumstances in which she wrote the letters.

Dato Amir Junus then placed Exhibits P19, P20, P21 and P22 in an envelope and gummed it. He then wrote the name and address of the accused on the envelope and affixed a stamp on it. He then asked ASP Aziz Ahmad to take the envelope to the post office to have the stamp cancelled which he did. The purpose in having he stamp cancelled was to show that the envelope had been posted to the office of the accused. On 29 August 1997 at about 9.30 p.m. Dato Mohd Said and Dato Amir Junus took the envelope to the Official Residence of the accused to be handed to him. Dato Amir then said,

"Tujuan kami menghantarkan envelope itu ke rumah tertuduh kerana tertuduh menghendaki surat itu sampai kepada tertuduh dengan cepat dan selamat. Apabila sampai di rumah tertuduh pada malam itu saya bersama dengan SP1 sampai ke rumah tertuduh dan telah memberi envelope yang mengandungi surat-surat ID19, ID20, ID21, ID22 dan juga surat yang bertulis oleh Ummi kepada tertuduh. Selepas itu tertuduh telah membuka envelope itu dan membaca kesemua surat yang ada di dalam envelope itu. Selepas tertuduh membaca surat-surat itu tertuduh menyatakan kepuasan hatinya." The Received Rubber Stamp which now appears on Exhibits P20, P21 and P22 to indicate that the letters were received by the accused’s office were not there when Dato Amir Junus placed the letters in the envelope. Suhaime bin Yunus was attached to the accused’s office in August 1997. It was his duty to receive and open letters. He affixes the Received Rubber Stamp on all letters that he opens. The stamp that he affixes are those as appearing on Exhibits P20, P21 and P22. He also inserts a number on the stamp and makes an entry of the number on a register. Exhibits P20, P21 and P22 do not have the numbers and the receipt of these letters is not entered in the register. In the concluding part of his evidence he said, "Saya tidak menerima ID20, ID21 dan ID22 pada 30.8.1997." It was contended by the Defence that if the police had, in the course of obtaining the letters from Ummi and Azizan, exceeded their powers the accused cannot be blamed for it as there was no request on his part to use whatever method that was used. Dato Mohd Said said in cross-examination that in order to follow the instructions of the accused they had to arrest Ummi and Azizan. And in re-examination he said, "Ummi and Azizan were detained for the purpose of getting the intelligence on the letter that they had written and also to a turning over operation in order to get a denial from them as directed by the Deputy Prime Minister. ID17 and ID18 are the result of the turning over operation." On this issue Dato Amir Junus said in his examination-in-chief, "Pada ketika itu SP1 telah memberikan arahan kepada SP7 dan SP2 untuk menemuduga Ummi dan Azizan dan mencungkil maklumat-maklumat yang terperinci mengenai ID14 dan mereka ini hendaklah dineutralisekan dan menarik balik semua dakwaan-dakwaan yang dibuat oleh mereka ke atas tertuduh dan process ini hendaklah dijalankan dalam masa 24 jam. Arahan-arahan yang diberikan oleh tertuduh kepada SP1 dan saya dan arahan-arahan yang saya dan SP1 sampaikan kepada SP2 dan SP7 adalah sama.

Process turning over dan juga neutralisation ini adalah untuk mencapai penarikan balik semua tuhmahan-tuhmahan yang dibuat oleh Ummi dan Azizan. Yang mengarahkan kami untuk menarik balik semua tuhmahan-tuhmahan ini adalah tertuduh sendiri. …

Walaupun arahan-arahan yang dikeluarkan oleh SP1, iaitu turn over dan neutralise, kepada SP2 dan SP7 ini adalah untuk memenuhi kehendak arahan yang dikeluarkan oleh tertuduh. … "

When Dato Amir Junus was asked in cross-examination whether the accused asked him to use the turning over and neutralisation process on Ummi and Azizan he said, "Apa yang tertuduh menyuruh Special Branch buat terhadap Ummi dan Azizan untuk mereka menarik balik dan menafikan semua dakwaan-dakwaan terhadap tertuduh. Untuk mencapaikan hasrat itu Special Branch telah menggunakan technique turning over dan neutralisation sebab masa yang diberikan hanya 24 jam sahaja. The accused asked us to do something for them to retract their allegations. He did not make specific reference to the technique of turnover and neutralisation. … Tidak benar bahawa tertuduh tidak meminta sesuatu dilakukan supaya Ummi dan Azizan mengubah pendirian mereka." This submission of the Defence is unworthy of consideration. It is not the case for the prosecution that the accused asked Dato Mohd Said and Dato Amir Junus to use the turn over operation to obtain the letters and that he is being charged for the use of that method. As I said earlier there is evidence to show that he directed them to obtain the letters. The time given to them by the accused to make Ummi and Azizan to retract and deny their allegations was only 24 hours. Thus they used a method known to them to comply with the directions given. It cannot therefore be argued that the police had exceeded their powers as the accused had directed them to do something to make Ummi and Azizan retract their allegations within a short period of time. The evidence shows that Dato Mohd Said and Dato Amir Junus merely used their standard Special Branch turnover and neutralisation process in order to comply with the directions of the accused though he did not specify the method of interrogation to be used.

Thus there is evidence to show that the accused directed Dato Mohd Said and Dato Amir Junus to obtain from Ummi and Azizan written statements addressed to YAB Prime Minister during the period 12 August 1997 to 17 August 1997 in respect of the first and third charges and public statements on or about 27 August 1997 in respect of the second and fourth charges denying the allegations that they had made against him and that the statements were obtained as directed by the accused.

The advantage obtained by the accused

The Law In its submission the Defence, while acknowledging that the object of Ordinance No. 22 is to widen the scope against bribery and corruption and to make penal offences not covered by the Penal Code or the Prevention of Corruption Act 1961, went on to argue that there must be a limit to its ambit and application. It was contended that in any charge under Section 2(1) of Ordinance No. 22 there must be a pecuniary element. Thus in order for any advantage obtained to come within the section it must be one which is in the form of money or money’s worth, property or valuable instruments. The prosecution contended that the words "other advantage" in Section 2(1) of Ordinance No. 22 have a wide meaning and referred to Haji Abdul Ghani bin Ishak & Anor v PP (1981) 2 MLJ 230 and Nunis v PP (1982) 2 MLJ 114.

The meaning of the expression "pecuniary or other advantage" has been the subject of intense judicial scrutiny in several judgments. In analysing the meaning of the word "pecuniary" in Section 2(1) of Ordinance No. 22 Wan Yahya J (as he then was) said in Haji Abdul Ghani bin Ishak & Anor v PP (1981) 2 MLJ 230 at p 235,

"In my view any interest relating to money or money’s worth, any interest that could be converted into money, or any interest the object of which is to make money falls in the category of pecuniary interest." Raja Azlan Shah CJ (Malaya) (as His Majesty then was) made it clear in Haji Abdul Ghani bin Ishak & Anor v PP (1981) 2 MLJ 230 that the word "other" in the expression "pecuniary or other advantage" is not caught by the ejusdem generis rule. This is what his Lordship said at pp 246 – 247, "It is therefore no longer in dispute that the object of the Ordinance is wide so as to bring to book corrupt politicians and public officers who abuse their public positions or office for their pecuniary or other advantage. The use in the Ordinance of the words "pecuniary or other advantage" is significant. The word "other" appearing in the context of the definition is not caught by the ejusdem generis rule. We are fortified in this view by the statement of Lord Diplock to this very effect in Quazi v Quazi and it might perhaps be useful to set out this part of his judgment in extenso: ‘It was not the husband’s case that the divorce by talaq was obtained in Pakistan by proceedings that were ‘judicial’; it is the reference in the section to ‘other proceedings’ on which he relied. The argument for the wife is that these words, which on the face of them would include any proceedings that were not judicial, are to be read as limited to proceedings that are quasi judicial, by appliction of the ejusdem generis rule. This involves reading ‘other’ as if it meant ‘similar’ and, as it seems to me, is based on a misunderstanding of that well-known rule of construction that is regrettably common. As the Latin words of the label attached to it suggest the rule applies to cut down the generality of the expression ‘other’ only where it is preceded by a list of two or more expressions having more specific meanings and sharing some common characteristics from which it is possible to recognise them as being species belonging to a single genus and to identify what the essential characteristics of that genus are. The presumption then is that the draftman’s mind was directed only to that genus and that he did not, by his addition of the word ‘other’ to the list, intend to stray beyond its boundaries, but merely to bring within the ambit of the enacting words those species which complete the genus but have been omitted from the preceding list either inadvertently or in the interests of brevity. Where, however, as in section 2 of the Recognition Act, the word ‘other’ as descriptive of proceedings is preceded by one expression only that has a more specific meaning, viz ‘judicial’, there is no room for the application of any ejusdem generis rule; for unless the draftsman has indicated at the very least two different species to which the enacting words apply there is no material on which to base an inference that there was some particular genus of proceedings to which alone his mind was directed when he used the word ‘other’ , which on the face of it, would embrace all proceedings that were not judicial, irrespective of how much or little they resembled judicial proceedings.’ Therefore the word ‘advantage’ is also to be construed widely." I also refer to Statutory Interpretation 4^th Ed by Pearce and Geddes where the learned authors say at p 102, "The absence of a genus is seen in acute form where only one word appears before the general expression. In Allen v Emmerson (1944) KB 362 the court had to consider the scope of the expression ‘theatre or other place of entertainment’. It held that the specific reference to ‘theatre’ did not limit the general words to places of the same genus as theatres. A number of Australian decisions have adopted a like approach in regard to the scope of the words ‘building or other place’. The ‘place’ does not have to be something akin to a building: Lake Macquarie Shire Council v Aetes (1977) 1 NSWLR 126; Plummer v Needham (1954) 56 WALRI. Compare Bond v Foran (1934) 52 CLR 364 where Dixon J at 376, in considering the expression ‘house, office, room, or other place’ held that ‘place’ must be something ejusdem generis with the words which preceded it. There a genus was created and limited the general expression." Thus the meaning of the word "advantage" cannot be construed in line with the meaning of the preceding word "pecuniary". As Raja Azlan Shah CJ (Malaya) (as His Majesty then was) said in the passage that I have referred to earlier the word "advantage" must be construed widely (see also PP v Datuk Tan Cheng Swee & Ors (1979) 1 MLJ 166). In spelling out the meaning of the word "advantage" Abdul Hamid FJ (as he then was) while sitting in the High Court in Nunis v PP (1982) 2 MLJ 114 said at pp 116 - 117, "What consitutes an advantage within the ambit of section 2(1) of the Ordinance and as defined by the words ‘corrupt practice’ would depend on the facts of each particular case. An advantage to a public officer who uses his public position may not necessarily be an advantage to another public officer who similarly uses his public position. The circumstances surrounding must be considered, for instance, the mode and manner in which the public position is so used; the nature of relationship between such public officer and the party in whose favour the public position is used; the interest the public officer shows or may have in the matter and the benefit that may be accrued to the public officer pecuniary or otherwise or for money or money’s worth. It is difficult, if not impossible, to specify exhaustively the exact circumstances under which the use by a public officer of his public position can be said to be to his advantage.

To my mind it is the clear intention of the legislature that the words ‘other advantage’ should be given a very wide meaning covering the variety of situations depending on the facts of each case. To consider otherwise would not indeed promote or give effect to the intention of the legislature and the object underlying the provision.

I also refer to the Shorter Oxford English Dictionary 3^rd Edn which sets out the meaning of the word "advantage" to include inter alia ‘a favouring circumstances’, ‘benefit’ and ‘to benefit, profit’, ‘to be beneficial to etc’.

There is to my mind no mystery in the word ‘advantage’. The expression is to be construed widely to include a benefit or gain of some kind other than pecuniary. If a public officer abuses his public position to advance a private or personal interest whereby it is accrued to him either a pecuniary gain or benefit or something which is personally beneficial to him even though someone else may derive direct benefit from it, that advantage is, in my view the kind of advantage that the legislative has in mind."

In Salvation Army v Canterbury Hotel Union (1985) 2 NZLR 366 it was held that an advantage accrues when it produces a more favourable situation than otherwise would have been the case. It must also be observed that where general words follow specific reference to a matter it may not have been intended for the general words to be limited in their operation at all. In Rands Oldroyd (1959) 1 QB 204, for example, the interpretation of section 16 of the Local Government Act 1933 was in issue. It required a member of a local authority who "has any pecuniary interest, direct or indirect, in any contract or proposed contract or other matter" to disclose such interest and refrain from voting at any meeting at which the matter was being considered. The court held that the section was intended to cover all matters where a member might have a conflict of interest and the general words should not be regarded as limited by the specific matters mentioned.

In the case of Ordinance No. 22 it is its object to strike at any act done by a Member of the administration or public officer whereby he has used his public position or office for his pecuniary or other advantage. The object and purpose of Ordinance No. 22 therefore precludes the limitation of the words "other advantage" by the specific word "pecuniary". In my opinion, therefore, the argument advanced by the Defence on the meaning of the words "other advantage" in section 2(1) of Ordinance No. 22 has absolutely no merit.

The evidence adduced

I shall consider the advantage contemplated by the first and third charges together as they are similar and that in respect of the second and fourth charges together for the same reason.

First and third charges

In order to appreciate the advantage obtained by the accused in respect of these charges it is necessary to bear in mind the role he played in procuring the written statements, that is to say, Exhibits P17 and P18.

Exhibit P14A, B and C had been publicly circulated to some extent. Exhibit P15 which contained allegations against the accused some of which were similar to those in Exhibit P14A, B and C was also being circulated publicly. On 12 August 1997 the accused asked Dato Mohd said and Dato Amir Junus to look for Ummi and Azizan in order to find out more about Exhibit P14A, B and C and why it was written. The very next day he asked them to locate Ummi and Azizan quickly and "gempar" them so that they will not circulate the allegations in Exhibit P14A, B and C. Two days later he showed them Exhibit 15. They asked him to make a police report. Initially he did not want to do so as he did not want the case to be investigated by the CID and because of the adverse publicity it would generate as he is a politician and the Deputy Prime Minister. He finally agreed to make a report but did not want the matter to go to Court as in that event it will be publicised. On 16 August 1997 the accused once again told them to trace Ummi and Azizan as soon as possible. After their arrest on 17 August 1997 at about 11.00 p.m. the accused wanted to see Dato Mohd Said and Dato Amir Junus immediately. When they met him at his Official Residence at about 12.30 a.m. on 18 August 1997 he directed them to get a retraction of the allegations made by Ummi and Azizan within 24 hours. He repeated his request that he did not want the two to be detained for long and that their case should not be brought to Court and that he did not want any publicity. At about noon on the same day Dato Mohd Said and Dato Amir Junus were again called by the accused to his Official Residence. They told him that Ummi and Azizan had changed their mind and were willing to retract the allegations. He told them that Ummi and Azizan should write a letter of denial to YAB Prime Minister. The letters written by Ummi and Azizan are Exhibits P17 and P18. Two days later on 20 August 1997 Dato Mohd Said handed Exhibits P17 and P18 together with his report, Exhibit D25, to YAB Prime Minister recommending that the matter be closed.

The frequency and urgency with which the accused summoned Dato Mohd Said and Dato Amir Junus to give them instructions and the speed at which he wanted the retraction letters show that he was gravely affected by the allegations in Exhibit P14A, B and C. They will generate adverse publicity against the accused as he is a politician and the Deputy Prime Minister. This is made evident by the fact that in his meetings with Dato Mohd Said and Dato Amir Junus he told them repeatedly that he did not want any publicity. He instructed them to "gempar" Ummi and Azizan so that they will not circulate the allegations contained in Exhibit P14A, B and C. He did not want them to be detained for long. Thus he wanted the matter to be closed as soon as possible so as to avoid any adverse publicity. His initial reluctance to make a police report amplifies this. He only agreed to do so upon certain terms. He wanted the written statements to be addressed to YAB Prime Minister. The letters were obtained and forwarded to YAB Prime Minister. The chronology of events clearly indicates that the accused wanted to prevent the allegations from being publicised so as to avoid any form of embarrassment to himself by getting the written statements from Ummi and Azizan. Once they write these letters they would not be able to proceed any further with their allegations by virtue of their change in stand. The very fact of having written the letters will deny them the opportunity of repeating the allegations. The letters have therefore saved the accused from embarrassment. The corollary is that the accused’s position and dignity are not affected. This is because the letters had placed the accused in a more favourable position than would have been the case if there had been no such letters. The letters negate the effect of Exhibit P14A, B and C and its further circulation and operate as a favourable circumstance for the personal benefit of the accused as they save him from embarrassment. The result is the same whether the allegations are true or false as they are still allegations as such. To my mind this is a more substantial benefit than that held to be so in Nunis v PP (1982) 2 MLJ 114 which, as described by Abdul Hamid FJ (as he then was) at p 117, is as follows:

"It is clear from the evidence that the respondent abused his public position when he assisted or gave aid to his brother-in-law. It was beneficial to him personally that by so doing he could provide benefits to close members of his family. It was undoubtedly a comfort to him to be able to effect financial gain to them or their company. To my mind, an act on the part of the respondent was an act of showing favour to his sister’s husband or the brother-in-law to effect financial advantage to him." The advantage obtained by Nunis in that case was the derivation of comfort by effecting financial gain to his relatives. In this case the accused gained direct comfort by procuring the written statements in respect of the allegations against him.

The Defence contended that there was nothing wrong in the accused seeking to save himself from embarrassment by having Ummi and Azizan to deny their allegations and added that

" … embarrassment can be caused by allegations which are true as well as by allegations which are false. It is a fact that many people do not sue for defamation as they want to avoid embarrassment being caused to them by the defamatory matter being published even though the defamatory matters published are not true. To most people it would be more preferable to get the person responsible for publishing the libel or slander to apologise without going to Court in order to avoid the attendant adverse publicity. If they do not go to Court they get the people responsible for the publication of the defamatory matters to apologise or retract the matter. There is nothing legally or morally wrong with that. There is nothing wrong for a person to take steps to correct an injustice. That is the position where the allegation is not true. If it is true and discloses an offence then the use by the public officer of his public position in order to get the allegation retracted would be for the purpose of protecting himself from any criminal action. Such use of public position is for a corrupt or dishonest purpose. There is a difference between seeking to have a true and a false allegation retracted. In the case of a true allegation what is sought to be done is to cover up or conceal a legal wrong. In the case of the untrue allegation what is sought to be done is to obtain a remedy for an injustice." The advancement of the submission on the basis of a distinction between the truth and the falsity of the allegations is faulty as that is not in issue in the case. Be that as it may, I agree with the argument that it is proper for a person to have a defamatory matter against him retracted in order to avoid the embarrassment of going to court so as to save himself from the attendant adverse publicity. But this is subject to an important injunction. Such a person must not take the law into his own hands to resolve the problem as, for example, by beating up the person concerned to retract the defamatory matter. He could approach the person himself in a recognised manner to resolve the problem or appoint an advocate and solicitor to do so. I would also agree that if a person lodges a police report on the matter and requests the police to investigate thoroughly he does no wrong. Thus anything that is done must be within the confines of the law. The evidence shows that the accused went beyond the permissible limits of the law. The charges in this case relate to a Deputy Prime Minister and Minister of Finance using the police against certain individuals in a purely personal matter. The directions that he gave to Dato Mohd Said and Dato Amir Junus to have the allegations retracted show that he had abused his position. The manner in which he wanted the allegations to be retracted is not a lawful way of doing so. I am therefore of the view that the argument raised cannot be sustained.

Second and fourth charges

On 15 August 1997 SAC Musa was handed Exhibit P15. On 18 August 1997 he caused a search to be made in Ummi’s office and Azizan’s house from where various documents were recovered. On 19 August 1997 Dato Amir Junus gave SAC Musa copies of Exhibits P17, P18 and P14A, B and C. He said that upon receipt of the latter he wanted to continue with the investigation in order to find out the truth of the allegations made against the accused. Thus on the same day he recorded a police statement from the accused who denied the allegations. On 30 August 1997 the accused, at a meeting with SAC Musa, Dato Ismail Che Ros and the Honourable Tan Sri Mohtar Abdullah, inquired from SAC Musa about the investigation being carried out on Exhibit P15. SAC Musa told him that the police would carry out a detailed investigation to ascertain whether the allegations were true or not and that the investigation was still at an early stage and not completed yet. The accused said that it was not necessary to investigate into the matter as it was contrary to YAB Prime Minister’s decision that it has been settled and that it was a slander. The accused also said that he did not want any action to be taken against Ummi and Azizan.

On 2 September 1997 SAC Musa informed ASP Zull Aznam to get ready Azmin, Shamsidar, Dato Nallakaruppan, Aton and ASP Zull Aznam himself for the purpose of recording their statements. His purpose was to find out their relationship and to take any other statement that they may wish to give. He informed ASP Zull Aznam about his purpose in wanting to record the statements whereupon ASP Zull Aznam told SAC Musa that he will contact him later. ASP Zull Aznam later informed SAC Musa that the accused wanted to meet him. When SAC Musa met the accused the latter asked him what was the use of his recording statements from the witnesses as Ummi and Azizan had written letters to him denying the allegations. SAC Musa replied that he wanted to record their statements in order to complete his investigation before submission to the Attorney General. The accused then gave him Exhibits P20, P21 and P22 and instructed him to stop the investigation. SAC Musa then reminded the accused of the Attorney General’s instructions that all investigations on government officers and leaders have to be forwarded to him. The accused instructed SAC Musa not to send the investigation papers to the Attorney General. On 3 September 1997 SAC Musa showed the denial letters to Dato Ismail Che Ros. They decided to send the investigation papers to the Attorney General with a recommendation to take no further action on the matter. On 8 September 1997 the Attorney General agreed after having read the denial letters. SAC Musa said that the letters influenced him to recommend that no further action be taken in the case even though the investigation was not complete as the documents contained a denial of the allegations. When asked in cross-examination why he recommended that no further action should be taken in the case SAC Musa said,

"Saya mengesyorkan kes in di NFA berdasarkan surat-surat yang saya terima iaitu P17, ID18, P20, ID21 dan ID22 yang diserahkan kepada saya oleh tertuduh dan juga arahan tertuduh supaya memberhentikan siasatan saya." He said that without those letters he would have carried out a more thorough investigation into Exhibits P16, P14A, B and C and that if he had found the allegations in those documents to be true he would have recommended that the accused be prosecuted. At that time he did not know the circumstances in which Ummi and Azizan had prepared the letters. He also did not know about the involvement of the Special Branch in the preparation of the letters then. He came to know the manner in which the letters were prepared only when he was investigating into the report on Buku 50 Dalil in 1998.

To a question by the Defence SAC Musa said that on 30 August 1997 he met the accused in his office. It was not put to him that he did not meet the accused on that day. With regard to what transpired at this meeting SAC Musa was cross-examined on the basis that the accused was merely echoing YAB Prime Minister’s statement in Exhibit ID23 that the matter had been closed. It goes as follows:

"Question : When you met accused at his office you told the Court that he said to you that there is no need to investigate further because the Prime Minister had considered the matter closed.

Answer : Tertuduh ada beritahu pada saya bahawa sekiranya saya meneruskan siasatan ianya bercanggah dengan kenyataan yang dibuat oleh Perdana Menteri bahawa kes ini telah selesai dan perkara ini dianggap sebagai fitnah.

Question : Even if he had said that he was merely echoing what the Prime Minister had said.

Answer : Benar. Tertuduh merujuk kepada statement yang dibuat oleh Perdana Menteri. …

Question : In this statement the Prime Minister had said that the matter is closed.

Answer : Mengikut akhbar ini ada disebut oleh Perdana Menteri yang menyatakan perkara ini telah ditutup.

Question : Accused being the Deputy Prime Minister had to abide by what the Prime Minister had stated.

Answer : Itu saya tidak tahu."

SAC Musa said that he did not consider YAB Prime Minister’s statement as a direction to him to close the case. The accused’s reliance on YAB Prime Minister’s statement to the effect that the matter is closed shows that he had in fact told SAC Musa that it is not necessary to investigate into the matter, as, otherwise there is no relevance in referring to the press statement.

With regard to the meeting on 2 September 1997 it was put to SAC Musa that the accused never told him not to send the investigation papers to the Attorney General. In reply he said,

"Saya tidak setuju bahawa tertuduh tidak mengarahkan saya untuk tidak menghantar kertas siasatan kepada Peguam Negara." He did not agree with a Defence suggestion that " … saya tidak disuruh oleh tertuduh supaya jangan menyiasat kes ini." When he was asked whether he agreed that after perusal of the documents and after consulting Dato Ismail Che Ros he decided that no further action is to be taken on the investigation he said, "Lima dokumen yang saya terima telah mempengaruhi saya untuk mencadangkan siasatan di dalam kes ini di NFA. Saya bersetuju selepas meneliti kelima-lima dokumen yang saya terima saya telah mengesyorkan siasatan di dalam kes ini di NFA. Saya juga telah kemudiannya mengesyorkan kepada Peguam Negara untuk siasatan ini di NFA. Peguam Negara telah bersetuju di atas cadangan saya untuk NFA kes ini." To a Defence suggestion as to whether the accused told him that YAB Prime Minister had told the accused, that is to say, "Sorry that Aziz Shamsuddin was involved. I should have sacked him. But as I have said the case is closed," SAC Musa said, "Tertuduh tidak memberitahu saya yang PM memberitahu perkara-perkara yang disebutkan oleh peguam. Tidak benar bahawa tertuduh memberitahu saya perkara ini pada 2.9.97." The line of cross-examination shows that the Defence did not challenge the fact of SAC Musa having met the accused on 30 August 1997 and 2 September 1997. His evidence that the accused handed to him Exhibits P20, P21 and P22 on 2 September 1997 was also not challenged. He agreed with the Defence suggestion that these documents and Exhibits P17 and P18 influenced him to recommend that no further action be taken on the investigation. What was suggested to him was only that the accused never told him to send the investigation papers to the Attorney General and that the accused did not tell him not to investigate the case. These suggestions were denied.

There is therefore evidence to show that SAC Musa met the accused on 30 August 1997 and 2 September 1997 and that the accused handed over Exhibits P20, P21 and P22 to SAC Musa and gave the instructions as testified by him.

It must be observed that the investigation concerned serious allegations against the accused. Despite the denial of the allegations by the accused in his police statement to SAC Musa on 19 August 1997 the investigation did not come to an end as SAC Musa wanted to record further statements. It was SAC Musa’s intention to record these statements that prompted the accused to make use of the denial letters to stop the investigation from proceeding any further. He succeeded in doing so. I say this because the denial letters that the accused gave SAC Musa caused the investigation to end abruptly. This is made evident by the fact that the letters influenced SAC Musa to recommend that no further action be taken in the case even though the investigation was not complete. It is superfluous to state that an investigation into the allegations clearly involves the accused directly as the allegations were against him. As the investigation was brought to an abrupt end there will be no further inquiry into the allegations. The pre-mature termination of the investigation is an advantage to the accused as it thereby prevents the relevant authorities from making a decision on a possible prosecution. The accused has therefore saved himself from any criminal action by using Exhibits P20 and P22 which had been unlawfully obtained. This brings into sharp focus the contention of the Defence that the accused could not have been prosecuted if the allegations are not true with the result that he would have obtained no benefit when the investigation was stopped. The submission requires a consideration of whether the accused would have obtained an advantage if no criminal action is ultimately taken against him by virtue of the allegations being found to be false at the proper conclusion of the investigation. To my mind this does not alter the advantage obtained by the accused in any way. It must be reiterated that the advantage obtained is only one of the elements involved in the charges. Thus it must not be read in isolation. It must be read together with the manner in which the public statements were obtained. Viewed in that light it will be seen that the investigation came to an end as a result of the use of the denial letters obtained unlawfully on the direction of the accused. The investigation was therefore stopped by unlawful means. One cannot adopt an illegal course of action to obtain a benefit in the belief that he is entitled to it. He has to allow law and order to take its normal course. Be that as it may, the argument advanced had in fact been considered in PP v Dato Haji Mohamed Muslim bin Haji Othman (1983) 1 MLJ 245 where the accused was charged for having been present at a meeting in respect of a matter in which he had an interest. It was argued that his presence at the meeting would have made no difference to the approval of his application. In reply to this Hashim Yeop A Sani J (as he then was) said at pp 248 — 249,

"A number of witnesses both prosecution and defence said that they took no objection to the presence of the accused. In my view the fact that no one took objection to the presence of the accused at that meeting does not alter the position in law. Nor the fact that according to some witnesses his presence would have made no difference whatsoever and that the application would have been approved any way." I was therefore unable to agree with the argument advanced by the Defence.

Thus there is evidence to show that the accused had obtained an advantage in respect of the four charges as contemplated by them.

Finding

I was therefore satisfied that the prosecution had made out a prima facie case to show that the accused, whilst being the Deputy Prime Minister and Minister of Finance had in such capacity committed corrupt practices in respect of the four charges preferred against him within the meaning of Section 2(1) of Ordinance No. 22. I then called upon the accused to enter his defence. When the three alternatives were explained to him he elected to give evidence on oath.

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