DALAM MAHKAMAH PERSEKUTUAN
MALAYSIA
(BIDANG KUASA
RAYUAN)
RAYUAN JENAYAH NO.:05-4-2000
(W)
ANTARA
DATO’ SERI ANWAR IBRAHIM …
PERAYU/PEMOHON
DAN
PENDAKWA RAYA …
RESPONDEN
(Dalam Perkara
Mahkamah Rayuan Jenayah No. W05-25-99 & W05-27-99)
Antara
Dato’ Seri Anwar Ibrahim
-
Perayu
dan
Pendakwa Raya
-
Responden
(Dalam perkara Mahkamah Tinggi
Malaya di Wilayah Persekutuan Perbicaraan Jenayah No. 45-48-98 & 45-59-98)
Antara Pendakwa Raya Dan Dato’ Seri Anwar bin Ibrahim)
Coram
Abdul Malek
Ahmad, PCA
Siti Norma
Yaakob, FCJ
Alauddin Mohd.
Sheriff, FCJ
JUDGMENT OF ALAUDDIN MOHD. SHERIFF,
FCJ
By Enclosure 89(a) the Applicant
prays for an order that this Honourable Court invoke its inherent
powers under rule 137 of the Rules of the Federal Court 1995, to allow
fresh/additional evidence affecting the trial to be adduced as such evidence was
not available during the trial. This application is supported by the affidavit
of the Applicant himself sworn on 10th March 2003 which is in
Enclosure 89(b).
Briefly, the Applicant’s affidavit reveals the following
facts:-
The Applicant was charged under
Section 2 of the Emergency (Essential Powers) Ordinance No. 22 of 1970 at the
High Court of Malaya at Wilayah Persekutuan on 14.4.1999 on four
charges of corruption. The Applicant was found guilty of the said charges,
convicted and sentenced to 6 years imprisonment on each charge, with the
sentences being ordered to run concurrently.
The Applicant appealed against the
decision of the High Court to the Court of Appeal which dismissed the appeal on
29th April 2002. He then appealed
to the Federal Court against the decision of the Court of Appeal. On 10th
July 2002 his appeal to the Federal Court was dismissed with the convictions and
the sentences being confirmed.
It has been brought to the
Applicant’s knowledge that one of his counsel, Encik Zainur Zakaria (ZZ), had
faxed copies of two letters he received from Mr. Manjeet Singh Dhillon (MSD) to
Mr. Christopher Fernando, his lead counsel, just before the hearing of his
appeal in the Court of Appeal.
The letter sent to ZZ contained an enclosure which is a letter written by
MSD to Y.A.A. the Chief Justice where MSD made a formal complaint against
Justice Augustine Paul, the trial judge, for improper conduct in the Re ZZ case
which occurred during the Applicant’s trial.
In the light of this new evidence
contained in MSD’s letter the Applicant instructed his counsel to file this
application to urge this court to allow him to adduce such evidence in the
interest of justice under rule 137 of the Rules of the Federal Court
1995.
As stated in paragraph 17 of the
Applicant’s affidavit the evidence that is sought to be adduced is to the
following effect:-
(i) That MSD was
requested by Tan Sri Mohtar (TSM) to see him before the proposed contempt
proceedings against himself and ZZ began that morning. The request was made through MSD’s
counsel, Mr. Jagjeet Singh (JS). MSD reluctantly agreed and met with TSM. They met at the ante room at the
courthouse in the presence of Datuk Abdul Gani Patail (AGP), Datuk Azhar Mohamad
(AM) and JS. Upon seeing MSD, TSM
went up and hugged him and turned around and told AGP and AM that MSD was an
altruist and apologized to MSD for not having done anything on MSD’s letter in
which he had levelled accusations against AGP. TSM added that he had not as yet taken
this matter up with his officers. MSD responded by reminding TSM that he had
made very serious allegations against his officers and had written to him
expecting something to be done but that nothing had been done. This letter referred to is the letter
where MSD complained to TSM that AGP and AM had attempted to extort fabricated
evidence from his client Datuk Nallakaruppan (DN) through him to be used against
Datuk Seri Anwar Ibrahim (DSAI) in exchange for DN’s life. TSM did not deny or
refute MSD’s allegations against his officers and both AGP and AM remained
silent.
(ii) That as early as
September 1998 DN had made a signed statement denying any involvement in any
sexual improprieties involving the Applicant. This statement was in response to the
affidavits of SAC Musa Hassan dated 2nd September 1998 making allegations
against the Applicant and DN and the affidavit of TSM making vague hearsay
allegations. This evidence is
clearly pertinent and relevant to the Applicant’s case. In summarily dismissing the Applicant’s
application to stop AGP and AM from further conducting the prosecution against
him the learned judge had this to say, (the relevant portion of which reads),
“Secondly the conclusion of MSD as contained in para 4 of the letter may be
justifiable only if he arrived at after he had discussed the matter with his
client in order to ascertain what his client knew. The letter is dated 12th
October 1998. However, para 8
of the statutory declaration stated that MSD met his client on the
13th October 1998 to convey AGP’s demands to him. This shows that MSD came to his
conclusion even before he discussed the matter with his client to find out what
the latter knew. I
found support of this in para 8 of the statutory declaration where MSD had said
that there was nothing his client could have done… short of lying. This clearly shows that up to
13th October 1998, MSD did not know what his client
knew…”
If we may be permitted to say, the gist of the new evidence sought to be
adduced is as follows:
(i)
It is
MSD’s revelation that he had a meeting with the former A.G. (TSM) in the ante
room of the Federal Court in which TSM called him an altruist but did not take
any further action in respect of his complaint against AGP and
AM.
(ii)
MSD
says that Justice Augustine Paul, the trial judge, was wrong in concluding that
he did not know whether his client knew about DSAI’s involvement with women when
he wrote the letter to TSM complaining about AGP and AM.
In his lengthy submission in support
of this application before us learned counsel for the Applicant, Mr. Christopher
Fernando, began by saying that in this case there has been gross injustice
perpetrated against the Applicant.
Fundamental principles of law have been violated and abused. There has also been an abuse of the
process of the court. It is most
unprecedented in that the trial was allowed to be prosecuted by two unfair
prosecutors in the persons of AGP and AM.
Their conduct and participation had contaminated the entire
proceedings. It was therefore urged
upon us to use the inherent powers of this court to intervene and prevent
injustice.
It was submitted by learned counsel that the fresh/additional evidence
sought to be adduced in this case through MSD was not available to the Applicant
during his trial. This evidence is
relevant to the Applicant’s case.
Further such evidence is credible and believable coming from a witness
who is a senior and respected Advocate and Solicitor and a former Chairman of
the Bar Council. In addition this
evidence would have had a decidedly important influence on the outcome of the
Applicant’s case.
It was further submitted by learned counsel that in this case the
Applicant have met all the conditions to justify the reception of the evidence
proposed to be adduced.
In considering whether to allow fresh evidence to be adduced on appeal
the English Court of Criminal Appeal in R
v. Parks [1961] 3 All E.R. 633 referred to certain principles. They are:-
(i)
the evidence sought to
be called must be evidence which was not available at the
trial;
(ii)
the evidence must be
relevant to the issues;
(iii)
it must be credible
evidence in the sense of being well capable of belief; and
(iv)
the court will, after
considering that evidence, go on to consider whether there might have been a
reasonable doubt in the minds of the jury as to the guilt of the appellant if
that evidence had been given together with the other evidence at the
trial.
In The Constitution of India AIR
Commentaries Vol III 2nd (1971) Edition the writer, under the heading
of “Grounds of review” had this to say (at page 228). –
“Where a litigant has obtained a judgment in a Court
of Justice, he is, by law entitled not to be deprived of that judgment without
solid grounds. Where, therefore, a
review of a judgment is asked for by a party, the greatest care ought to be
exercised by the court in granting the review especially where the ground of
review is the discovery of fresh evidence.
It is so easy to the party who has lost his case to see what the weak
part of his case was, and the temptation to lay and procure evidence which will
strengthen that weak part and put a different complexion upon that part of the
case must be very strong (1). The
rule that permits a new trial to be granted on account of the discovery of new
evidence has, therefore, been fenced round with many limitations. Thus, the party asking for a new trial
must show that there was no remissness on his part in adducing all possible
evidence at the trial (2). Further,
the new evidence must be such as is presumably to be believed and such that if
adduced, it would practically be conclusive, i.e. evidence of such a class as to
render it probable almost beyond doubt that the judgment would be different
(3). Where it is very doubtful
whether the evidence, if produced, would have had any effect on the judgment,
there is no ground for review (4).”
In considering the exceptional
conditions when an appellate court would be willing to admit additional evidence
our Federal Court in Mohamad bin Jamal v
Public Prosecutor [1964] 30 MLJ 254 applied the same principles mentioned in
R v. Parks [see also Lau Foo Sun v Government of Malaysia (1970)
2 MLJ 70 and Asiatic Development Bhd.
& Anor v Balachandar a/l Palanysamy (1995) 3 MLJ
445].
Reverting to the application before us the facts revealed that the new
evidence mentioned in paragraph 17 of the Applicant’s affidavit is not evidence
that was not available at the trial.
As a matter of fact the Applicant was fully aware of the existence of
such evidence. The charges faced by
the Applicant was one of abuse of power under Section 2(1) of Ordinance 22 of
1970. The said new evidence was
available during the trial itself. More importantly the learned trial judge
had rejected this evidence as being irrelevant. The Court of Appeal and the Federal
Court upheld his finding. As they
have no relevance to the charges faced by the Applicant, we cannot see how they
can materially affect the result of the case.
Under the circumstances we find that the two issues raised in paragraph
17 of the Applicant’s affidavit do not meet the conditions or principles
mentioned in R v. Parks or Mohamad Jamal v Public Prosecutor. That being so they do not qualify as new
or additional evidence.
In Lo Fat Thjan & Ors. V.
Public Prosecutor [1968] 1 MLJ 274 the Federal Court again had occasion to
consider the issue of additional evidence.
It was held Per Curiam:
“We would deprecate generally the admission of
additional evidence on appeal except in clearly exceptional circumstances. The adversary system in our trials is
hardly compatible with allowing lacunae in the case of any party to be filled in
by afterthoughts or countenancing reconstruction of any case after it has failed
at the trial.”
It is obvious to us from the above decision that even during an appeal
the courts are very strict when admitting additional evidence more so in a
situation like ours where the appeal process have already been fully
exhausted. The above decision also
speaks of exceptional circumstances which we find are totally absent in the
present application. The issues
raised by the Applicant are all issues that could have been obtained during the
trial and will not materially affect the result of the trial had it been brought
up for consideration.
We take the view that by introducing such evidence, the Applicant is
seeking to reopen, reexamine and review the decision which has been conclusively
decided by the final court of justice.
The issues raised by the Applicant cannot be viewed as a ground to invoke
rule 137. In essence, it is an
attempt to persuade this court to accept the purported new evidence with a view
to relitigate the appeal. As we
have said earlier they are not evidence relevant to the charge and they do not
qualify to be new evidence before the court. We feel that the purported new evidence
ought to have been contemplated by the Applicant’s able defence team during the trial itself. The
purported new evidence was available to the Applicant’s defence team even while the trial was going
on.
The allegation of misapprehension of facts against the trial judge is not
new evidence but is an issue that goes to the merits of the case and should have
been canvassed throughout the appeal process. Even if the purported
misapprehension was a ground of appeal, it does not lend any weight against the
charges as they were one of corruption and not relating to misconduct with
women.
Finally, we would say that there is no fraud or suppression of evidence
and neither is there new evidence before the court which merits the court to
entertain a reopening or rehearing of the case.
We shall now proceed to consider Enclosure 97(a).
By way of Enclosure 97(a) the
Applicant applies for an order that he be given leave to rely on additional
grounds at the hearing of his Notis Usul {Enclosure 80(a)} for an order that
this Honourable Court invoke its inherent powers
under rule 137 of the Rules of the Federal Court 1995 and set aside the
convictions and sentences of the Applicant that were confirmed and upheld by the
Federal Court on 10th July 2002.
The additional grounds appear in the affidavit in support of this
application. They are as
follows:-
1.
The Federal Court’s decision handed down on 10th July 2002 is in infringement of the
provisions of section 94(2) of the Courts of Judicature Act, 1964 [Act 91]
(Revised 1972);
2.
The Federal Court was wrong in not directing its mind to the fact that
the Mahkamah Rayuan did not have the opportunity of considering the remarks
directed by the Federal Court in Zainur
Zakaria v Public Prosecutor [2001} 3 MLJ 604 against the learned trial judge
Augustine Paul J and their effect on the trial subsequently thereby depriving
the appellant an opportunity for that court to rule on the vital consideration
as to the learned trial judges’ suitability to have continued with the trial to
its conclusion;
3.
The Federal Court was wrong in not directing its mind to the fact that
the remarks passed by the Federal Court in Zainur Zakaria’s appeal amounted in
substance to ruling that the learned trial judge had infringed the provision of
rule 3(1)(d) of the Judges’ Code of conduct 1994 which
states,
‘A Judge shall not conduct himself dishonestly or in
such manner as to bring the Judiciary into disrepute or to bring discredit
thereto’ and had thereby disqualified himself from conduct of the appellant’s
trial;
4.
The Federal Court was wrong in considering the remarks passed against the
learned trial judge in Zainur Zakaria’s appeal in isolation when the proceedings
to commit Zainur Zakaria for contempt of court were irretrievably linked to the
appellant’s trial which became hopelessly contaminated by the role played by the
learned trial judge in those proceedings, particularly when considered in the
light of the learned trial judge’s belligerent stance, convicting and sentencing
Zainur Zakaria to three month’s imprisonment, an attempt to cite the entire
defence team for contempt of court and general bias against
the defence; and
5.
The Federal Court was wrong in not considering the appellant’s trial was
so fatally flawed by the bias shown by the learned trial judge which was so
serious that the proviso to section 92 of the Courts of Judicature Act 1964
could not under the circumstances be invoked.”
I will not consider the first ground
as the matter had been dealt with by my learned sister
earlier.
In considering the remaining
additional grounds mentioned above it is appropriate that we refer to the
relevant part of the judgment of the Federal Court reported in [2002] 3 MLJ 193
concerning the matter.
At page 222H this is what the court
said:-
“We are of the view that the facts and circumstances
of Zainur Zakaria cannot be equated to the facts of this case. There it was more towards the conduct of
Zainur Zakaria that the learned judge was more concerned with. From what we can
gather from the record, it was the learned judge’s belief that Zainur Zakaria’s
action was to delay the proceedings and to sensationalize the trial by alleging
on the conduct of the two prosecutors to fabricate evidence against the
appellant. The conduct of the
learned judge in Zainur Zakaria is not really relevant to the amended charges
faced by the appellant. In addition thereto, there was the allegation of lack of
time given for Zainur Zakaria to prepare his defence. The learned judge might well appear to
lean towards the prosecution as indicated by the Federal Court but he cannot be
said to be showing the same inclination on the evidence in the trial against the
appellant. A good illustration is
where as we stated earlier, he considered the appellant’s case at
length.”
Further at page 223 the court
continued:-
“Mr. Christopher Fernando submitted that there were
threats of contempt against counsel including himself by the learned judge. We
have examined Mr. Christopher Fernando’s complaint but regret to say that the
learned judge, being human himself, and as stated earlier, because of the wide
publicity given to this case, he had to exercise a lot of restraints in
controlling the proceedings and in doing so he may have uttered harsh words or
even threaten counsel with contempt and all these must be taken in that
spirit. It is not so much of the
learned judge leaning towards the prosecution or being prejudiced towards the
defence. He has the statutory duty to see that irrelevant
and inadmissible evidence is not allowed to creep in or for that matter stop
counsel from challenging his rulings as otherwise the proceedings will go
haywire.”
Reading the excerpts from the judgment quoted above we are of the view
that the court had embarked upon a full and proper consideration of the effect
of the decision in Zainur Zakaria in the appeal before it. The court had categorically stated that
the facts and circumstances of Zainur Zakaria cannot be equated with the facts
of the Applicant’s case. The court
also retorted by saying that the conduct of the learned judge in Zainur Zakaria
is not really relevant to the amended charges faced by the Applicant. We would add by saying that the contempt
proceedings is a separate proceedings altogether. It was only against Zainur Zakaria and
not the whole of the defence team. There is no nexus between the allegation
of fabrication and the corruption appeal.
The allegation was on fabrication of evidence in trying to get Datuk
Nallakaruppan to cooperate by giving evidence on the Applicant’s sexual
misconduct with women. Whereas the
charges in the corruption trial are that he abused his position in getting the
police to obtain retraction letters from two individuals. Sexual misconduct is not an ingredient
of the charges. None of the
prosecution witnesses in the corruption trial made any reference to Datuk
Nallakaruppan’s role whatsoever.
The Federal Court also referred to the complaint raised by the
Applicant’s counsel that their submission on the conduct of the learned judge in
the Court of Appeal was brushed aside by them. The court had examined the judgment of
the Court of Appeal and agreed that there was an omission on their part to
consider this issue. Nonetheless
the court itself had considered this point and came to the conclusion that it
had not occasioned any miscarriage of justice (see page
224).
The Federal Court in its judgment also considered the paramount question
raised by the Applicant whether the conduct of the trial judge which the
Applicant said was grossly unfair towards him has occasioned any miscarriage of
justice which entitled him to an acquittal.
This is what the court said (at page 224G, 225B, 226C)
:-
“On this issue, we are guided by S.92(1) of the
Courts of Judicature Act 1964 in particular the proviso to S.92(1) which
reads:
‘……………………………………………………….…………… :
Provided that the Federal Court may, notwithstanding
that it is of opinion that the point
raised in the appeal might be decided in favour of the appellants, dismiss the appeal if it
considers that no substantial miscarriage of justice has occurred.’
In addition to the above, we have
S.167 of the Evidence Act 1950 that works in tandem with the proviso to S.92(1)
of the Courts of Judicature Act 1964.
It reads:
‘The improper admission or rejection of evidence
shall not be ground of itself for a new trial or reversal of any decision in any
case if it appears to the court before which the objection is raised that,
independently of the evidence objected to and admitted, there was sufficient
evidence to justify the decision, or that, if the rejected evidence had been
received, it ought not to have varied the decision.’
The two provisions set out above had recently been
considered by the Court of Appeal in the famous case of Juraimi bin Husin v PP and Mohd Affandi bin
Abdul Rahman & Anor v PP [1998]
1 MLJ 537.
………………………………………………………………………
The Court of Appeal thereafter
concluded at page 587
thus:
‘To summarize the authorities cited, if in a criminal
appeal an appellant has demonstrated errors in point of evidence or procedure,
it is the duty of this court to determine whether, despite the error or errors
in question, there exists a reasonable doubt in its mind as to the guilt of the
accused, based upon the admissible evidence on the record. If the error or errors complained do not
have this effect, then it is our duty to plainly say so and maintain the
conviction.’
The judgment of the Court of Appeal was affirmed by
the Federal Court though no written grounds were made.”
Having said the above the court
finally concluded by saying –
“We have examined the record of the proceedings and
the grounds of judgment of the learned judge as closely as we can and the
grounds of judgment of the Court of Appeal in subsequently affirming the
conviction of the appellant by the learned judge. We are satisfied that the errors
complained of have not occasioned a substantial miscarriage of justice and we
have to plainly say so and to uphold the conviction.”
In view of what we have said above
we cannot see how it can be said that the judgment of the Federal Court suffered
the infirmities as alleged in the additional grounds relied by the
Applicant. We also fail to
see how the Federal Court’s decision can be said to have irregularities under
the Courts of Judicature Act 1964 as alleged.
We would reiterate that the findings and observations in the Federal
Court pertaining to Zainur Zakaria’s contempt proceedings have no bearing at all
on the corruption appeal. By
introducing new grounds, it is an attempt on the part of the Applicant to try to
relitigate the issues which have been conclusively
settled.
On the issue of relitigation it is useful to rely on the dicta of Eusoffe Abdoolcader F.J. (as he then was) in
Dato’ Mokhtar Hashim & Anor v PP (1983) 2 MLJ 232 where the learned
judge said:
“……… This attempt to relitigate and reopen an issue
conclusively decided in respect of the same proceedings and between the same
parties would appear to us to be as clear an instance of an abuse of the process
of the court as one can find within the connotation thereof enunciated in the
speech of Lord Diplock in Hunter v Chief
Constable of the West Midlands Police & Ors [1982] AC 528, 542 which was
applied by this court in Tractors
Malaysia Bhd. v Charles Au Yong [1982] 1 MLJ 320, 321.”
Rule 137 of the Rules of the Federal Court 1995 allows the Federal Court
to exercise its inherent powers to hear any application or to make any order as
may be necessary to prevent injustice or to prevent an abuse of the process of
the court. The rule has been
invoked by the Federal Court in a number of cases like Chia Yan Tek & Anor v Ng Swee Kiat &
Anor [2001] 4 MLJ 1 and MGG Pillai v
Tan Sri Dato’ Vincent Tan Chee Yiom [2002] 2 MLJ 673. However, it must be observed that its
application was only in limited circumstances. If there were to be a liberal
application of rule 137 then there would be chaos to our system of
judicial hierarchy. Hence, we would think that it is on a
case by case basis. Certainly it
cannot be the intention of the legislature when promulgating rule 137 that every
decision of this Court is subject to review. To do so would be against the
fundamental principle that the outcome of litigation should be final.
My learned brother Abdul Malek Ahmad PCA and my learned sister Siti Norma
Yaakob FCJ have seen this judgment in draft and have expressed their agreement
with it. Similarly I have had the advantage of reading their respective
judgments and totally agree with the reasoning and conclusions,
therein.
Finally, having given our utmost consideration to all the four
applications before us we find that there are no merits to invoke the exercise
of our inherent powers under rule 137.
In the result, all the four
applications i.e. Enclosures 80(a), 89(a), 97(a) and 124(a) are hereby
dismissed.
Dated: 15th September
2004
ALAUDDIN MOHD.
SHERIFF
Judge
Federal Court
Malaysia
Counsel for the Appellant
:
Karpal Singh
(S.N. Nair
Gobind Singh Deo
Kamar Ainiah Kamaruzzaman
Pawanchek Marican
Zulkifli Noordin
Saiful Izham Ramli
Christopher Fernando and
Marisa Regina with him)
Solicitors for the Appellant
:
Messrs Karpal Singh & Co.
For the Respondent
:
Tan Sri Abdul Gani Patail
Attorney-General Chambers
Attorney-General
(Dato’ Mohd. Yusoff b. Hj. Zainal Abiden
Tun Abdul Majid bin Tun Hamzah and
Ahmad Fairuz Zainol Abidin, Senior
Federal Counsel with him).
Vernon Ong – watching brief for Bar
Council.