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Anwar Ibrahim Sodomy II – The Recorded Truth – 06 Jun 2011 June 9, 2011

Posted by malaysianstory in Anwar Ibrahim, Najib Tun Razak, Sodomy II, Transformation in PKR.
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Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Pihak-pihak:
PP:    Semua hadir
PB:    KS, SN, Dato’ Param Cumaraswamy
WB:    Zambri Idrus (for complainant)
AI hadir

[9.16 a.m.]

Permohonan Jenayah 214-128-2011

KS:    My Lord, there is an application before your Lordship. This is an application impugning the neutrality of this court in that YA has made certain conclusions at the close of the prosecution before calling upon the applicant to enter upon his defence on the ground of prejudgment amounting to bias and therefore calling upon YA from further presiding at the trial.

It is submitted at the outset that an application to disqualify a judge on the ground of bias consequent upon prejudgment does not amount to contempt of court. It has been held a judge must approach such an application without being defensive or resentful. The candour on the part of the judge in expressing his reasons for a decision is to be defended, then candour on the part of the litigant has likewise to be expected (see Tan Kim Hor v Tan Chong Motor Company Sdn Bhd & Ors [2003] 2 CLJ 434 [Tab 1]).

It is submitted that the court has misdirected itself on the standard of proof on the prosecution in relation to the application of the maximum evaluationtest to the evidence of PW1 and therefore being guilty of prejudgment and bias.

In handing down the decision at the close of the prosecution case the court has dealt with the evidence of PW1 at length after bearing in mind what was said by Lord Hailsham in PP v Killbourne [1973] 1 All ER 440 @  425,

‘Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible a witness testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness’s testimony falls of its own inanition the question of his needing, or being capable of giving corroboration does not arise.’

After setting out the above extract from Killbourne the court went on to say,

‘Realising the fact that the charge against the accused hinged on whether the evidence of PW1 could be accepted or not, it was not a surprise the defence had, either cross-examination of PW1 or in their submission, tried to paint a picture as someone who has zero credibility and thus his evi could not be believed and must be rejected.’

Obviously the court considered PW1’s evidence as fundamental towards proof of the charge against the applicant and, it was for this reason, that the court rook pains to minutely set out his evidence in the written decision at the close of the prosecution case. It is pertinent to note the court came to the following set out at page 43-44,

‘Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses tat could suggest  what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.’

The court relied specifically on Looi Kaw Chai & Anor v PP [2003] 1 CLJ 754 [Tab 2] and adverted to it in the course of its decision at page 35-37 as follows,

‘At the close of prosecution case what was needed to be proved was a prima facie case. Under Section 180(4) of Criminal Procedure Code a prima facie case is said to be made out when the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.’

As was held in the case of Looi Kow Chai & Anor v PP [2003] 1 CLJ 754, in determining whether prosecution had successfully established prima facie case or not, the court must subject the prosecution’s evidence to the maximum evaluation. It was held in that case:

‘The correct test to be applied in determining whether a prima facie case has been made out under s.180 of the Criminal Procedure Code (and this would apply to a trial under s. 173 of the Code) is that as encapsulated in the judgment of Hashim Yeop Sani FJ (as he then was) in Dato’ Mokhtar bin Hashim & Anor v. Public Prosecutor. Therefore, a judge sitting alone under s. 180 of CPC must subject the prosecution evidence to maximum evaluation and ask himself the question, ‘If I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case? If the answer is in the negative, then no prima facie case had been made out and the accused would be entitled to an acquittal. Subjecting the evidence of the prosecution to the maximum evaluation to determine if the defence was to b called did not mean that the prosecution had to prove its case beyond reasonable doubt at this intermediate stage (see pp.80H-I, 81D-E, 85E0; Dato’ Mokhtar bin Hashim & Anor v PP [1983] 2 MLJ 232 followed.’

In Looi Kaw Chai, the Court of Appeal adopted what was said by Vincent Ng J (as he then was) in PP v Ong Cheng Heong [1998] 6 MLJ 678@691 [Tab 3] in relation to the amendment (Acts A979) to the Criminal Procedure Code as follows:

‘Thus to me, maximum evaluation simply means evaluation, on  a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination. In other words, maximum evaluation connotes quantitative rather than qualitative evaluation of the evidence; with focus more on the evidential burden in terms of evidence led rather than the persuasive burden in terms of qualitative degree of proof. What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face of it or at first glance. To me, in the light of Act A979, perhaps the most appropriate definition of a prima facie case’ could be found in the Oxford Companion of Law (p 987), which has it as:

‘A case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive.’

It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered ad which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected. (Emphasis added.)’

Obviously the court did not have regard to what was said by Vincent Ng J in Ong Cheng Heong as emphasized above. It is undisputed PW1 gave evidence under oath to tell the truth, the whole truth, and nothing but the truth. By concluding PW1 was a truthful witness at the close of the prosecution case, the court obviously considered his evidence to be conclusive, namely it was the truth, the whole truth, and nothing but the truth.

Conclusive is defined as ‘decisive; convincing; authoritative. Irrebuttable (as conclusive evidence. (see p 945 P. Ramanathan Aiyar’s Advance Law Lexicon, 3rd Ed. [Tab 4].

It follows PW1’s evidence has been accepted by the court as irrebuttable evidence. If this is the position and it is then clearly the provisions of section 182A(1) of the Criminal Procedure Code which state:

‘At the conclusion of the trial, the court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.’

Would be incapable of fulfillment which in effect, would amount to prejudgment of the guilt of the applicant, which would demonstrate bias on the part of the court at the close of the prosecution case, meaning, the applicant would not be in a position to be afforded a fair trial.

It is worthy of not that Looi Kow Chai, and consequently by implication, Ong Cheng Heong, have been adopted in Balachandran v PP [2005] 2 MLJ 301 @ 316 [TAB 5] and lately in Magendran Mohan v PP [2011] 1 CLJ 805 [TAB 6].
The correct test to apply would be the real danger of bias test as enunciated by the House of Lords in R v Gough [1993] 2 ALL ER 724 [TAB 7] and followed by the Federal Court in Mohd Ezam Mohd Noor & Ord v Ketua Polis Negara [2001] 4 CLJ 701 [TAB 8].

With the court having accepted the evidence of PW1 as irrebuttable, there is a real danger of bias following the court’s prejudgment of the evidence of PW1 as being true at the close of the prosecution’s case as opposed to the mandatory provisions of Section 182A(1) of the Criminal Procedure Code, which require the court to consider all the evidence before it at the conclusion of the trial to decide whether the prosecution has proved its case beyond reasonable doubt against an accused person.

Under the circumstances, the applicant is entitled to prayers (1), (2) and (3) of the notis usul herein. In the alternative, for the submissions which follow, the applicant is entitled to an acquittal and discharge with unconditional release.

In Lee Kwan Woh v PP [2009] 5 MLJ 301 [TAB 9], the Federal Court had, in relation to what constitutes a fair trial, occasion to say as follows,

‘The expression law in Art 5 (1) of the Constitution included written law and the common law of England, i.e. the rule of law and all its integral components and in both its procedural and substantive dimensions. It is also clear from the authorities that it is a fundamental right guaranteed by Art 5(1) that a person’s life or personal liberty may not be deprived save in accordance with the state action that is fair both in point of procedure and substance.’

In Shamim Reza bin Abdul Samad v PP [2009] 6 CLJ 93 [TAB 10], the Federal Court @ 98 sets forth the following significant passages,

‘In Lee Kwan Who v PP [2009] 5 MLJ 301, this court held that the fundamental liberties expressed in the constitution must be read in a prismatic fashion to discover the right submerged in the wider concepts expressly guaranteed. This court also affirmed as accurate the following statement of the law by Edgar Joseph Jr. J (as he then was) in [TAB 11]: PP v Choo Chuan Wang [1992] 2 CLJ 1242

‘Article 5(1) of our Constitution does imply in favour of an accused person the right to a fair hearing within a reasonable time by an impartial court established by law. It follows that if an accused person can establish a breach of this right then, in the words of Sandhawakua CJ in Madheshwardhari Singh v The State A1R 1986 (Pat) 324, he would be entitled to an unconditional release and the charges leveled against him would fall to the ground. We therefore accept that the right to a fair trial is a constitutionally guaranteed right.’

This Federal Court has given its stamp of approval to what was said in Choo Chuan Wang in Lee Kwan Woh and Shamin Reza.

In our case, there is clear evidence of prejudgment and bias. It must follow from this, in view of what was said in Choo Chuan Wang, the applicant is in fact entitled to an unconditional release with the charges leveled against him falling to the ground.

This relief squarely comes within the omnibus prayer in the notis usul, namely, ‘Apa-apa perintah lain yang difikirkan wajar dan sesuai oleh Mahkamah Yang Mulia ini’.

The issue we raised is my Lord, something which has not been raised before. Something that your Lordship must and should take time to carefully consider and ought not to dismiss it. We pray that this application be allowed in terms in the notis usul. Much obliged.

MY:    My Lord, before I answer my learned friend I want to make an observation. This is the 3rd time that my learned friend is applying to recuse your Lordship. I think by itself it should be fine for this case to be in the Malaysian Book of Record because I know not of any  other case  where the defence has persistently apply for the judge to be recused on whatever ground whether with merits or not [] YA, this application is filed by my learned friend to have your Lordship to be recused on the ground that you have prejudged the case on the accused and therefore you are bias against him. The applicant also apply for the case to be heard de novo and the other two prayers plus the fourth prayer for any order which this Honorable Court deems fit.

The basis of the application is found in the affidavit of Dato’ Seri Anwar Ibrahim supporting this motion. If I may refer to paragraph 5 of the affidavit and read it:

“Saya adalah dinasihatkan oleh peguamcara saya, nasihat yang saya percayai adalah tepat dan benar bahawa dalam Alasan Penghakiman oleh Y.A Dato’ Mohd Zabidin bin Mohd Diah, di antara lain, telahpun menyatakan, di muka surat 43-44 seperti berikut,

‘Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses that could suggest  what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.’”

Then after referring to Looi Kow Chai & Anor v PP and the two cases which my learned friend produced in his submission, at para 8:

“Saya adalah dinasihatkan oleh peguamcara saya, nasihhat yang saya percayai adalah tepat dan benar bahawa dengan membuat penemuan (finding) seperti berikut,

‘He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.’

Y.A. Hakim Dato’ Mohd Zabidin Bin Mohd Diah telah membuat satu penemuan konklusiff dan dengan ini memutuskan pihak pendakwaan telah ‘proved their case beyond reasonable doubt as to the guilt of the accused at the close of the case for the prosecution’ yang telahpun mengakibatkan peruntukan mandatory dalam seksyen 182(A) Kanun Acara Jenayah menjadi sia-sia (nugatory).”

My Lord, this application obviously is based on one this passage, one paragraph out of 180 paragraphs contained in your ruling at the close of the prosecution case. It’s a 68 pages judgment with 180 paragraphs and my learned friend is relying on one paragraph to say that you had prejudged the case.

When those words in one passage or one paragraph is taken out of context and considered in isolation it may give the wrong impression to the public or the uninformed public or to the [] that the judge in fact had prejudged the case against the accused. When it is done this way taking out the context  then it is difficult for us to believe or to accept that this application is made bona fide. It is difficult even to accept that this application is made out of genuine belief that your Lordship has been biased against the accused.

Now, the question is, is there a prejudgment? Or had your Lordship been bias? The answer can be found in your own judgment at the last page, page 68, paragraph 183,

“Based on all the above reason I find the prosecution through the evidence of PW1 which had been corroborated in material particulars had proved all the facts required to establish all the ingredients of the charge. I find a prima facie case not a beyond reasonable doubt case as suggested by Dato’ Seri Anwar Ibrahim in his affidavit as defined under S. 180 of the Criminal Procedure Code had been made out against the accused. Therefore the accused is called to enter his defence.”

May I my Lord refer to S. 180 (4) of the Criminal Procedure Code,

“(4)    For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible     evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.”

So what your Lordship is saying is there is credible evidence. At this stage, at the close of the prosecution case there is credible evidence establishing all the facts required to prove all the ingredients to bring home the charge under S.377B of the Penal Code. Nothing less, nothing more.  That’s all. Credible evidence.

And to see whether or not that passage refered to by Dato’ Seri Anwar Ibrahim in his affidavit amounted to a prejudgment we must look into the context it appear. It is without doubt my Lord those passage appear during discussion whether or not PW1 is a credible witness and his evidence is credible evidence.

If I may invite your Lordship to paragraph 104 of your judgment…Before that, under the subheading “At The End Of The Prosecution Case”, this is after your Lordship had set out all the evidence, relevant evidence adduced by the prosecution witnesses,

“At the close of the prosecution case what was needed to be proved was a prima facie case. Under S. 180 (4) of the CPC a prima facie case is said to be made out against the accused when the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction as held in the case of Looi Kaw Chai.”

At paragraph 105, you set the brief charge of the accused.

At paragraph 106 this what your Lordship wrote,

“The prosecution relied on PW1’s evidence to prove its case where PW1 testified he was at the place mentioned in the charge and while he was there the accused introduced his penis in PW1’s anus until the accused ejaculated.

This evidence from PW1 if accepted clearly establish a prima facie case for an offence of carnal intercourse against the order of the nature as stated in the charge.

So the question here is whether PW1 was a credible witness and whether his evidence as to what transpired between him and the accused in the unit 11-5-1 was true and could safely be relied on. If the court finds PW not true, not to be credible then the accused had to be acquitted without having to look for corroborated evidence to support PW1’s evidence.”

So what follows is beyond discussion in evaluating whether or not PW1 is a credible witness and whether or not his evidence could be relied in the sense that he is credible.

If I may refer to paragraph 109,

“En. Karpal submitted while PW1 insisted that the incident occurred without his consent PW1 never tried to escape although he had ample opportunity to do so. PW1 instead followed all the instruction given by the accused. PW1’s action of eating and drinking after the incident, did not try to get help from the occupier of unit 11-5-2, did not complain to the security guard, did not immediately lodge police report and attended PKR’s function the next day did not reflect the attitude of someone who had been sodomised by the accused. Therefore according to the counsel PW1 had lied when he said in his police report the incident occurred without his consent thus PW1’s entire evidence could not be believed and must be rejected. Learned counsel urged the court not only to reject PW1’s evidence but to also direct the Public Prosecutor to charge PW1 under S. 195 of the Penal Code. In other words what the defence was saying since PW1 testified that the sodomy performed on him was without his consent but the same time he failed to run away from the place of incident, failed to ask for help from the occupier of the unit 11-5-2, did not complain to the security guard, did not make police report immediately – it follows that PW1 not only had lied when insisting he did not consent to being sodomised but he also fabricated false evidence with intention of procuring the accused’s conviction for an offence of sodomy which never took place.”

From paragraph 104 until paragraph 125 is all discussion whether or not PW1 is a credible witness. 21 paragraphs in all, just the evaluation on his evidence.

At paragraph 114 after commenting the failure and all that, your Lordship wrote this,

“Based on those facts and circumstances, PW1’s failure to run away, to complain to people in unit 11-5-2, to lodge police report immediately is understandable. It could not be the basis to find PW1 to be an incredible witness.”

Then at paragraph 115,

“After finding that PW1’s evidence is not affected the next question is whether the evidence itself [] PW1 showing that the accused introduced his penis into Pw1’s anus could be accepted as credible and as such it is safe for the court to rely on it to call the accused to enter his defence.”

The crucial passage is at paragraph 121,

“In our case beside there was an opportunity for the offence to take place the evidence of PW1 showed the offence did in fact occurred. PW1 was subjected to lengthy cross-examination. PW1 state vastly and consistently describe in detail how the accused introduced his penis into PW1’s anus with the aid of lubricant. Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses tat could suggest what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.”

This passage itself would show that it is not conclusive because your Lordship said “I find him to be a truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.”

Then at paragraph 125,

“It was contended by the defence that PW1 was not a truthful witness and his evidence should be rejected outright and the court need not have look further for further evidence as I had stated earlier in the judgment. I found PW1 to be a credible witness. There is nothing improbable about his evidence. His evidence was reliable. Therefore the next question to be decided is whether there is evidence corroborative of his evidence.”

With all those paragraphs it will appear that this discussion about PW1 being truthful and all that, first it is in response to the submission suggesting that this witness is not truthful. When the defence said this witness has lied, has fabricated evidence and not a truthful witness and the judge hold otherwise so what is the judge supposed to say? What is the opposite of not truthful? But whatever it is still, it is an evaluation to arrive at whether  or not he is credible and that evidence is also credible. And that is reflected in paragraph 125.

It will appear if ever anybody to think that the phrase “beyond reasonable doubt” is there actually eventhough it is not written, it is must be in reference to beyond reasonable doubt evidence. Because your Lordship had never said beyond reasonable doubt case but you have subjected all the evidence of the witnesses, their credibility and their version to the maximum evaluation and this is something that Looi Kaw Chai and all the cases before it had said that the judge is required to do.

May I first refer to the case of Looi Kow Chai & Anor v PP [2003] 2 MLJ 65, tab 12 of the first bundle, J Gopal Sri Ram other than referring to the case my learned friend referred to, PP v Ong Cheng Heong and PP v Saare Hama & Anor also refered to this particular that can be found in the last paragraph of page 84 case of PP v Mohan Singh,

“Lastly, in Public Prosecutor v Mohan Singh [1999] 4 CLJ 620; Pendakwa Raya v Mohan Singh a/l Lachman Singh [1999] MLJU 218, Wahab Patail J expressed his view upon the approach to be taken by a court when deciding whether the prosecution had made out a case under s 180 of the CPC. He said:
I conclude then that the prosecution must be in a position to say:
(a)    at the end of the prosecution case, that on the basis of the evidence it has advanced, and tested by cross-examination, it has advanced evidence beyond reasonable doubt in respect of all the elements of the charge;” and to this Gopal Sri Ram J agreed.

And then at page 83 of the same judgment at para D, the court refered to the case of Public Prosecutor v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1,

“Augustine Paul J made the following observation which has since received approval sub silentio from the Federal Court (see [2002] 3 MLJ 193):
A prima facie case arises when the evidence in favor of a party is sufficiently strong for the opposing party to be called on to answer. The evidence adduced must be such that it can be overthrown only by rebutting evidence by the other side. Taken in its totality, the force of the evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done at the close of the case for the prosecution before the court can rule that a prima facie case has been made out in order to call for the defence.”

and that is exactly what your Lordship had done, subjecting the evidence to maximum evaluation to determine the credibility of the witnesses. I did not see anything wrong with the use of the word “truthful”.

And my Lord, the passage that I read from the judgment of Wahab Patail J is not something new. In the Federal Court of Tan Boon Kean v PP [1995] 3 MLJ 514, Azmi J had occasion to talk about what is a prima facie case and what is prima facie evidence.

At paragraph E of page 529 this is what the judge had to say,

“As distinct from a prima facie case, Sarkar on Evidence at p 45 defines ‘prima facie evidence’ as ‘evidence which, if accepted appears to be sufficient to establish a fact, unless rebutted by acceptable evidence to the contrary. It is not conclusive’.

This is what Vincent Ng J say. It is not conclusive. Do you now why it is not conclusive? In that case it says “in the absence of any evidence to the contrary”. That means without more at this stage can you say? So the judge went on further and said,

“‘Prima facie’, means on the face of it or at first glance. So, ‘a prima facie case’ is a ‘ case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive’ (see the Oxford Companion to Law at p 987). ‘Prima facie evidence’ is evidence where ‘a party’s evidence in support of any issue is so weighty that no reasonable man could help deciding the issue in his favour in the absence of further evidence’ (see Cross on Evidence(2nd Ed) at pp 24 and 25; and also per Wee Chong Jin CJ in Gan Soo Swee & Anor v Ramoo [1969] 1 MLJ 59 at p 61). In our view, under s 180, a prima facie case is one which is established by sufficient beyond reasonable doubt evidence and can be overthrown only by rebutting evidence adduced by the other side, so as to cast a reasonable doubt on the prosecution case as to the guilt of the accused.”

Even the last sentence there it appear that at the close of the prosecution case you have beyond reasonable doubt evidence to prove the guilt which can only be rebutted by other evidence which cast doubt to that guilt. So what is wrong with that?

Saying that the facts proving all the ingredient of the charge had been proved by beyond reasonable evidence is different from saying that the case had been proved beyond reasonable doubt. And all the discussion from paragraph 104 to paragraph 125 is all to determine whether or not there is evidence that is free from doubt which if accepted will prove the facts needed to constitute all the ingredients of the charge under S.377B Penal code.

The question is if my learned friend says that “No”, it simply means the case had been proved beyond reasonable doubt. Even at this intermediate stage even if that is the case, it is my submission that it is still not wrong. I said this because the evidence that constitute a prima facie case will be the same evidence that after having heard the defence the court will rely on whether or not the court can say the case have been proved beyond reasonable doubt. It is the same evi, nothing more. The prosecution is not going to adduce anymore evidence after that. It is the same evidence.

So what the court in Looi Kaw Chai said is this, “Am I prepared to convict him if he remains silent?”. Meaning you must have beyond reasonable doubt evidence proving all the facts needed to prove all the ingredient of the charge and if he remains silent this evidence that I say amounted to a prima facie case is the same evidence that will be converted to prove beyond reasonable doubt.

The only reason the court says you have to postpone it, “Don’t say it that your case have been proved beyond reasonable doubt” is because there are 2 stages in the trial, the prosecution case and the defence case. If the defence adduce evidence then you wait until the end of the defence and then consider the prosecution case in the light of the defence evidence and see whether or not this prima facie has achieved proof beyond reasonable doubt. But in the case where the accused elected to be silent, what happen? What kind of evidence that we must have in order to convict him if he remains silent? It is that evidence, beyond reasonable doubt evidence which become proof of beyond reasonable doubt case.

If I may invite your Lordship again to Looi Kaw Chai starting from page 78 the last paragraph where Gopal Sri Ram J refers to the majority judgment in Arulpagasan , a 7-man-panel in deciding what amounts to a prima facie case. The standard of proof in a prima facie case and the minority judgment handed down by Edgar Joseph FCJ.

At page 79, paragraph C this is what the court says,

“We find that a careful reading of the majority view and the minority view respectively in Arulpagasan in reality and for all practical purposes produces the same result.”

What did the majority view says in Arulpagasan? At page 80 the judge referred to the judgment of Edgar Joseph FCJ what in Arulpagasan and referring to page 52 this is what he said,

“Furthermore, if the onus on the prosecution at the close of its case, is to establish a ‘mere prima facie case’, the test to be applied is a minimal evaluation of the prosecution’s evidence to ensure that it is not inherently incredible (see Haw Tua Tau v PP). Whereas, if the onus on the prosecution at the close of its case, is to establish a case ‘beyond all reasonable doubt’, then the test to be applied to the prosecution’s evidence is a maximum evaluation of the prosecution’s evidence, which calls for ‘a more rigorous test of credibility’ (per Lord Diplock in Haw Tua Tau at p 54G), in order to answer the question: if there is no more evidence, has the prosecution proved its case beyond all reasonable doubt? (See PP v Fong Ah Tong & Anor [1940] MLJ 240). (Emphasis added.)”

This is what Edgar Joseph FCJ said. If there is no more evidence. So at close of the prosecution case this is what your Lordship has to ask : if there is no more evidence, has the case been proved beyond reasonable doubt? Your Lordship didn’t say it but they said your Lordship says it. But if it is true you said it then what Gopal Sri Ram J said at paragraph F is this,

“It would appear that a comparison between the passage earlier quoted from the minority judgment of Mohd Azmi FCJ and that of Edgar Joseph Jr FCJ, reveals no serious difference of opinion between them as to rigour with which the prosecution’s evidence is to be examined. Hence, it is our respectful view that the difference of opinion, if any — and we hasten to add that we are unable to see any — between the majority and minority in Arulpragasan is not one of substance but of mere form.”

So he is not saying that Arulpagasan is wrong. Of course he referred to the case of Dato’ Mokhtar Hashim v PP.

With regard to the cases that my learned friend referred to i.e. PP v Ong Cheng Heong  [1998] 6 MLJ 678 and PP v Saare Rama & Anor [2001] 4 MLJ 480 this is what the judge has to say at paragraph H of page 84.

“Although we might have expressed the test in different words, we agree with the formulation of the test in Ong Cheng Heong and Saare Hama. In our judgment, these two cases accurately set out the approach that is to be adopted under ss 173(f) and 180 of the CPC at the conclusion of the prosecution’s case.”

So he didn’t say it. This is how I said it but it is formulated differently in the other two cases and both are actually the same but the standard of proof at the close of the prosecution case is further explained in the case of Balachandran v PP [2005] 2 MLJ 301 which was decided 2 years after Looi Kaw Chai & Anor v PP. May I just refer to holding no. 5 at page 303 of the judgment,

“As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond reasonable doubt. However it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt.”

See? The court is playing with the word. This is what it actually is. But you don’t describe it that way. Why? Because,

“Proof of beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt, the other refers the evidential burden on the accused to raise a reasonable doubt. Both these burdens could only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s 182A(1) of the CPC. That would normally be the position where the accused has given evidence.

However, where the accused remains silent there will be no necessity to re-evaluate the evidence in order to determine whether there is a reasonable doubt in the absence of any further evidence for such a consideration. The prima facie evidence which was capable of supporting a conviction beyond reasonable doubt will constitute proof beyond reasonable doubt (see para 23).”

So it said the standard is that high, it’s beyond reasonable doubt but you don’t describe it as such. That’s all.

In our case, we are saying that your Lordship at no time especially state that the case has been proved beyond reasonable doubt. At the most after being subjected the witnesses and the evidence to maximum evaluation the most you can say that your Lordship had hold that there is beyond reasonable doubt evidence that the facts consisting the ingredients have been proved.

Just as a matter of completeness, YA may I then refer to two other cases? The first case is PP v Saimin & Anor [1971] MLJ 16. In PP v Saimin & Anor, the court says in order to convict the version of the prosecution must be true even if he remains silent. You must say it is true even at that stage. How can the court can say that the prosecution must be true if he holds that the witness is not truthful? If I may read at tab 3, page 17, paragraph F at the left. This is what Sharma J has to say,

“A conviction cannot be sustained even if the court is satisfied that the prosecution story “may be true” unless and until it is found that the prosecution story “must be true”.”

So this finding must be made at the close because the accused may want to remain silent. And the court can only convict if he says that this, the story is true. Would that conflict with what my learned friend is saying? The answer can be found in  Mah Kok Cheong v R [1953] 19 MLJ 46, tab no.2.

What is the burden on the defence? The burden is to raise reasonable doubt as to the truth of the prosecution story. If I may read what Spenser Wilkinson J has to say at page 47,

“There are really three classes of criminal cases to be considered:—
(a)    The ordinary case where direct or circumstantial evidence is given to prove that the accused committed the offence charged. In such     cases if the defence raises a reasonable doubt as to the truth of the prosecution case or as to the accused’s guilt there will be an acquittal, and if no such doubt is raised, a conviction.”

So that is what they have to do: to raise a reasonable doubt as to the truth or the accused’s guilt, meaning at the conclusion of the prosecution case the court must be able to say in the absence of any of the contrary he is guilty. The story must be true. Then it’s their duty to raise doubt as to the truth of that version of the prosecution or to the guilt of the accused.

At page 47 on the right hand column, the second last paragraph,

“I thought the decision in Mohamed Yatim’s case had made the position clear, but from various cases recently before me it does not appear to have done so. I must, therefore now repeat that in ordinary criminal cases such as perjury, forgery, cheating and so on where no question of unlawful possession of property arises all discussion as to what might reasonably be true or what is consistent with innocence are both irrelevant and misleading. Almost every defence put forward by an accused is consistent with innocence or it would not be put forward; nor would it be a very good defence if it could not reasonably be true.

But whatever may be the defence to a criminal charge the sole question which a Subordinate Court has to ask itself at the conclusion of the trial is — Does the defence raise a reasonable doubt as to the truth of the prosecution case or as to the accused’s guilt? I say “the sole question” advisedly because in this country the accused will not have been called on for a defence at all unless the prosecution has first proved a case. In this respect our criminal procedure differs from that in England and this difference makes it necessary to apply with caution the English decisions which almost all deal with trials by jury.”

Again I would like to say this, it is our submission that at no time anybody who read your judgment or your ruling, the whole of it in particular where you deal with the evidence of PW1 and his credibility from paragraph 104 to 125 that your Lordship says that this must be true and therefore that’s the end of it. And then at paragraph 183 all your Lordship says is that :  based on all this a prima facie case as defined under S.180(4) of CPC has been proved. That’s all.

Now, I’m coming to the 2nd part of my submission, “Bias”. The second volume. My learned friend is saying that your Lordship is bias therefore he couldn’t have a  fair trial because they are prejudged. And we are saying that you have not prejudged. Whatever your ruling is your ruling, a ruling made at the close of the prosecution case. And you know there could be evidence on behalf of the defence to raise doubt as to the truth of the prosecution case or as to the accused’s guilt.

There could be evidence adduced on behalf of the defence to raise doubt as to the truth of the prosecution’s case. In the case of Che Minah binti Ramli, the last case in our second bundle, if I may refer to page 207 first, holding number 3:
“It was an acceptable proposition to say that a judge’s impartiality is presumed and any party seeking disqualification must establish the circumstances and situations to justify the disqualification of the judge. There is a strong presumption of judicial impartiality. The standard of reasonable apprehension of bias must necessarily refer to an apprehension based on serious grounds. Each case must therefore be examined contextually and the inquiry would be based entirely on the facts. The appeal related to the question of leave and the issue on the fatwa (edict) and its ramifications had no role to play at all (para 27(a) & (b).”
Then, at page 219 of the report, para 31, the Court of Appeal’s judge referred to the case of Liteky v US [1994] 114 S Ct 114 which at p1155, Scalia J, defined the words ‘bias’ or ‘prejudice’ in this way:
“The words (bias or prejudice) connote a favourable or unfavourable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant’s prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant’s prior criminal activities that he will vote guilty regardless of the facts).”
When witness’s evidences are corroborated in every step of the way, in material particular: the witness said I was working with Anwar, then Ibrahim Yaakob said yes. He said he was asked to go to the unit of the condo on the said date and he was asked to send documents – Ibrahim Yaakob confirmed that. He said he was there in fact, in the vicinity – the CCTV confirmed that. Then he was said he was sodomised – the medical and the chemist report confirmed that.
So what is so wrong with your finding that you have been alleged to act biased and prejudge? That is the only logical conclusion. You are justified to say that this witness is truthful, because he is corroborated by independent witnesses, and one of whom is DSAI’s chief of staff.
Then, back to the report at page 224, para 47:
“There is no need to reaffirm the well-settled principle of the impartiality of the courts of justice. This principle has been a matter of common knowledge across the common law world over the past decade or so. The fundamental belief that those who adjudicate must always do so without bias or prejudice has withstood the test of time. Cory J, in R v S (RD) [1997] 3 SCR 484, at para 106 quoted R v Bertram [1989] OJ No 2123 (QL) (HC) when defining bias or prejudice: that definition reads as follows (and I quote): a leaning, inclination, bent or predisposition towards one side or another or a particular result”.
That means (in defining the word bias), in advance, from the very beginning, your Lordship is influenced to decide in favour of a certain party, irrespective of the evidence or the law. And that is not the case; you decided against us or for us. So my learned friend must show in this instance, especially in this particular application before your Lordship.
If I may, refer to the case of Hock Hua Bank. In that case, the judge had already said this, during the proceeding that, the defence is incredible at one point of time , and they apply to have him recused, and yes, he recused himself, not because he deemed himself to be bias, but because he wanted to avoid allegation against himself. And when appeal, both Gopal Sri Ram and Ian Chin J said it is wrong, there he actually said that, for deciding a mareva injunction which Gopal Sri Ram said it is okay for him to look at the merit of the case. Federal Court said that it is not bias, because something will happen in the course of the trial after hearing the actual defence, he may change his mind. And that happens all the time.
And then we have the case of Alur Janggus, there are two cases of Alur Janggus. [read facts]. At both courts, both quorums said that there was no bias.
May I just refer to Hock Hua Bank YA, page 225 of the judgment, in which they were quoting this from another case: R v Liverpool City Justice, ex p Topping [1983] a ALL ER 490:
“We conclude that the test to be applied can conveniently be expressed by slightly adapting the words of Lord Widgery CJ in a test which he laid down in R v Uxbridge Justices, ex p Burbridge ( The Times, 20 June 1972) and referred to by him in R v McLean, ex p Aikens (1974) 139 JP 261 at p 266: would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible?”
This is not the person who sitting outside the court, and who was informed, or just read the newspaper or just being confronted with just that passage. This is a reasonable person sitting in court and knowing all the relevant facts: and all the relevant facts were those paragraphs that I referred to before, not reading one paragraph in isolation.
And in this case also, they referred to few English cases, at page 227 para C onwards:
“To use the words of Darling J in R v Sharman (1930) 9 Cr App Rep 130; ‘if the appellants’ and I may add, or parties, ‘are to be allowed to select the judges who shall hear their appeals,’ and I may also add, or cases, ‘the business of the court could not be carried out’.
In R v Lovegrove [1951] 1 All ER 804, Lord Goddard CJ, giving the judgment of the court (Lord Goddard CJ, Cassels and Lynskey JJ) said, at pp 804 and 805 (since it is a short judgment I have reproduced it in full):

The applicant was convicted before Lynskey J, at Bedford Assizes, and his application for leave to appeal, which has been refused by the single judge, now comes before this court of which Lynskey J is a member. It has undoubtedly been the practice recently, if the trial judge happens to be sitting in the Court of Criminal Appeal, to adjourn the case, but the question is whether that practice need be followed in all cases in future.
This matter was considered many years ago, and it was pointed out that in civil cases before the Supreme Court of Judicature Act 1873, when there was no Court of Appeal and appeals were heard by judges of the three common law courts in banc, it was quite a common practice for the judge before whom the trial had taken place, and whose ruling, indeed, might be impugned, to sit as a member of the court, even, in some cases, where he had sealed the bill of exceptions. This matter was considered in R v Sharman (alias Sutherland) (1913) 9 Cr App R 130, where an application for an adjournment was made on behalf of the appellant on the ground that Ridley J, who tried the case, was presiding in the Court of Criminal Appeal. Darling J, giving the judgment of the court, said (9 Cr App R 130):
‘I think this application ought not to be granted. After the assizes, appeals come from all parts of the country; and if appellants are to be allowed to select the judges who shall hear their appeals, the business of the court could not be carried on. Before the days of the Judicature Act, when the Courts of Queen’s Bench, Commons Pleas and Exchequer sat in court to hear appeals (of course, not criminal appeals), it was the usual practice for the judge who tried the case to be present.’
YA:    Takpelah, you already cited the principle kan, you don’t need to go to the facts. That’s the position in England lah.
MY:    Yes, but when we are talking about bias, we are talking about []. Whether England, US, Malaysia or India. And even in that situation, the court did not say that it is bias, and need a fair hearing.
So all in all My Lord, if I may say is this, I have observed, that this application is without merit. This application’s bona fide is questionable. And I want to say this: that this application is made to delay and derail the trial. DSAI is called to enter the defence. He must seize this opportunity to give his version of the story, which he happily gives to member of the public around the country. Now, this is his chance to give your defence under oath. So that he will be subject to cross examination just like the prosecution’s witnesses. After all, cross examination is the test of truthfulness. It is our humble submission my Lord, that this application was without merit and should be dismissed. There is no prejudgment and there is no bias on the part of your Lordship, thank you.
YA:    Yes, Mr. Karpal?
KS:    The allegations by my learned friend that we are delaying the trial without any substance, is a serious matter. In fact, it is amount to contempt of court. Who is delaying the trial? Is it the defence or the prosecution? That is what your Lordship ought to ask. 25 witnesses were offered to us. The witnesses offered must be in court. You can’t offer witnesses who are not in court. We have been given an opportunity to interview these witnesses in court.

What had happened in the last few weeks? Prosecution should produce those witnesses to us for interview. DSAI cannot be compelled to give evidence, his evidence is alibi, unless and until he is given the opportunity to interview the witnesses offered to us. It is not this application which delaying the trial. On the other hand, it is the prosecution which unable to produce witnesses to be interviewed, except for 5 witnesses, who are not material. What about the Prime Minister? What about his wife? Is there any arrangement up to now My Lord for these two personalities to be present here in court to be interviewed for the purpose of getting the defence ready and DSAI to give his evidence?
Let it not be forgotten My Lord that DSAI is not afraid to be in the box, in fact in this trial, he had gone into the box. There is no question that he’s being afraid. What he wants is only a fair trial. Is there any fair trial? That is the question that your Lordship needs to consider. My learned friend made complaints about this being the third application to recuse your Lordship. It doesn’t matter if hundred applications. The point is whether the application has merit.
My learned friend had given a lecture; I think he ought to go to university for that purpose, not here. He talked about beyond reasonable doubt and prima facie case. I don’t wish to lecture your Lordship. What is important is for you to look at the point in hand. My learned friend refers to paragraph 183 of your judgment. What is forgotten are pages 43-44. Your Lordship had found that PW1 is a truthful witness. We’ve given at length in the proposition which your Lordship did not consider. Let’s look at it again, Looi Kow Chai is in tab 2 of our bundle,. What my learned friend had obviously forgotten, at page 85 itself:
“If this passage is meant to suggest that the evidence led by the prosecution must receive maximum evaluation, then we would agree with it. But if what is meant is that a court ought to go further and determine whether the prosecution at the end of its case has proved the case against the accused beyond a reasonable doubt, then we find ourselves in disagreement with the learned judge in that case. In our view, subjecting the evidence of the prosecution to maximum evaluation to determine if the defence is to be called does not mean that the prosecution has to prove its case beyond a reasonable doubt at this intermediate stage.”
My learned friend was then referred to what was in PP v DSAI, can I read the last part of it. [read] – ‘at the close of the whole case’.
I come back to the main [] of the application. Your Lordship in fact did not apply your Lordship mind to it. This is in fact was in the case of Looi Kow Chai

page 84. I read this:
‘In Public Prosecutor v Ong Cheng Heong [1998] 6 MLJ 678 at p 691, Vincent Ng J expressed his view on the amendment to section:
Thus, to me, maximum evaluation simply means evaluation, on a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination’.
My Lord, if prima facie basis, your Lordship cannot tell the truthful of a witness. In fact, what has your Lordship done is invalid.
‘Thus, to me, maximum evaluation simply means evaluation, on a prima facie basis, of each and every essential ingredient of the charge as tested in cross-examination. In other words, maximum evaluation connotes quantitative rather than qualitative evaluation of the evidence; with focus more on the evidential burden in terms of evidence led rather than the persuasive burden in terms of qualitative degree of proof.
What then constitutes a ‘prima facie case’? ‘Prima facie’ means on the face of it or at first glance. ‘
So your Lordship has acted beyond this expression.
“To me, in the light of Act A979, perhaps the most appropriate definition of a ‘prima facie case’ could be found in the Oxford Companion of Law (p 987),

which has it as:
‘A case which is sufficient to call for an answer. While prima facie evidence is evidence which is sufficient to establish a fact in the absence of any evidence to the contrary, but is not conclusive.’
It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered and which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected.”
By saying that PW1 is a truthful witness, your Lordship in fact had accepted his evidence, which your Lordship ought not to do at this intermediate stage because that evidence is not conclusive. By saying that the witness is truthful, the evidence is true, completely shut up the defence. It is completely nullifies the amendment to the Criminal Procedure Code; Section 182A (1).
I will continue reading what Vincent Ng J said in Ong Cheng Heong.
YA:    I think you had quoted that before in your submission right?
KS:    (he continues reading)
“Although we might have expressed the test in different words, we agree with the formulation of the test in Ong Cheng Heong and Saare Hama”.
I did not wish to repeat it again. So it is in our submission that your Lordship had completely shut up the defence by deciding that PW1 is the witness of truth. And that is the position My Lord, the bias is obvious. We say My Lord that your Lordship had gone beyond by what had given by the law.
Para 183 does not, and cannot completely erase what is in page 43-44. Your Lordship had clearly gone to the conclusion that PW1 is the witness of truth. I did not wish to go to cases in which my learned friend had referred in question of bias. Of course, impartiality of a judge is presumed, but this is one case where that presumption can be rebutted. In fact, destruction is placed by your Lordship yourself in coming to the conclusion that PW1 is the witness of truth. And that destruct the entire case by the prosecution. We say under these circumstances, our application ought to be accepted. Much obliged.
YA:    Kita stand down for a while.
[10.34] Stand down.
[11.36] Kes dipanggil semula.
MY:    Kes untuk keputusan, YA.
YA:    Saya mendapati permohonan ini tidak mempunyai sebarang merit. Oleh itu, permohonan ini ditolak.
KS:    My Lord we wish to appeal to this decision. We are asking for stay pending appeal to the Court of Appeal. We want to give the authority of the case of Rowstead Systems Sdn Bhd. In fact, we’ve made similar application before your Lordship, and your Lordship had relied on this case.
YA:    So DPP?
MY:    YA, I’m objecting to this application, because your decision is not appealable. Rowstead is no longer [] now, and the fact can be distinguish. In the case of PP v DSAI, this is the decision of the Court of Appeal. This is the appeal to recuse your Lordship from this trial.
YA:    The second recusal?
MY:    Yes, the second recusal. There are two judgments, one by Low Hop Bing J, and the other one is by Malik J.  May I just invite your Lordship to the last page of the judgment of Malik J [read]. Then to Low Hop Bing J at page 8 para 19:
“In the instant appeal, the ruling of the learned trial Judge in dismissing the accused’s second recusal application was made in the course of the trial which does not finally dispose the rights of the accused and is therefore not a decision within the ambit of Sec. 3 read with Sec 50(1)(a). It is only the outcome of the trial that would have the effect of finally disposing of his rights.”
And the conclusion of the decision:
“On the foregoing grounds, we unanimously sustained the preliminary objection and dismissed this appeal in limine.”
So, what we are saying is this. Your Lordship can only grant stay, if there will be appeal appropriate pending by the court.  Once the Court of Appeal said that this kind of decision is not appealable, there won’t be appeal pending properly before the court, because the court has no jurisdiction to hear.
As far as Rowstead concerns, if I may just remind this Honorable Court, of the decision of Bhalip Bagwant Singh I think in 1999, when he talked about what happen when there is a conflict of decision of concurrent courts. It was held there, the latest decision overruled the earlier decision. So Rowstead in decided in 2005, and this one is decided in 2011. So I pray for the stay not to be granted and we proceed with the defence stage.
KS:    My Lord, the case referred by my learned friend did not refer at all to Rowstead. This is application pertinent of the trial. I read what happen in Rowstead:
“The defendant was owned by the PAS-led Government of the state of Kelantan. The defendant had applied for the learned Judicial Commissioner at High Court (‘the JC’) to recuse himself from hearing the case involving the defendant. It was alleged that due to the JC’s previous dealings with the United Malay National Organisation (UMNO), there would be a possibility of bias if the learned JC were to hear the case. The learned JC ruled that there were no merits in the application and therefore decided not to recuse himself from hearing the case as he completely believed he could conduct the case free of any bias whatsoever. Against that decision, the defendant had lodged an appeal to the Court of Appeal. The defendant applied for a stay of the proceedings of the matter pending the decision of the appeal. The stay was not applied at the High Court but instead the application was made only at the Court of Appeal. The issue was whether the original application could be entertained by the Court of Appeal. Counsel for the applicant submitted that this court had the jurisdiction to hear the application by virtue of s 44 of the Courts of Judicature Act 1964. The second issue was whether the stay should be allowed.”
May I continue reading holding 3 under held:
“This case came under the category of non-automatic disqualification. Hence there was a need to prove whether the element of bias exists. It has to be objectively decided, based on all the facts and circumstances of the case. The more important question to be asked was whether it was proper for such decision to be made by the presiding judge against whom bias has been alleged. When a party alleges that a presiding judge is biased, and if the presiding judge himself decides he is not, such decision would infringe the rule of natural justice in that ‘one should not be a judge in one’s own cause’. This situation would come within the meaning of special circumstances (see para 13). Also in the event that a stay a proceedings was not granted and the learned JC be allowed to proceed with the hearing of this case, it would result in a waste of time and effort by all persons involved since if the Court of Appeal allows the appeal, the whole proceedings conducted by the learned JC would have to be completely expunged. In the circumstances it would be more expedient to allow a stay of the proceedings until the hearing of the appeal has been completed (see para 14).
So under this circumstance, we pray that your Lordship be bound by Rowstead. It is a Court of Appeal decision. Your Lordship had once before using this authority.
YA:    But before the case of DSAI’s decision came out. Their objection is now on different issue. They said that there are no appeal lies, that’s all.
KS:     That case is totally different YA. Now the issue is on bias.
YA:    That case also on bias right?
KS:    But that is not on stay. We are now considering stay.
YA:    That case, DSAI, you alleged I was bias. So I dismissed your application. Then it went to appeal to the Court of Appeal, so they said no, you cannot appeal. Is that true? You were there I think, at the court. I was not there.
KS:    My Lord, this case wasn’t referred at all in that case. Unless, the Rowstead’s decision is overruled by Federal Court, your Lordship is bound by it.
YA:    And I was also bound by the case of DSAI referred by Prosecution which said that you cannot appeal.
KS:    But it is not apply to the situation like this. We say that your Lordship is bound by Rowstead. We hope that your Lordship will grant what we are praying for.
YA:    By the way, there is no appeal as yet. Can you give the undertaking that you will file it by this afternoon?
KS:    Yes, we will file it within an hour.
MY:    YA, I think I must say something right now. In Rowstead, Section 3 was not [].
KS:    YA, your Lordship is in the stage of giving a decision.
YA:    Never mind, I give both parties same opportunity.
MY:    The recent case, my learned friend was there, and he did not even mention about Rowstead. I think the issue is simple, whether you can appeal. But the Court of Appeal said you cannot appeal. So what stay are we talking about? I did not see whether or not my learned friend will make undertaking to file appeal today, tomorrow or later, the fact still remain. The Court of Appeal had decided that they did not have jurisdiction. Section 3 has not been fulfilled. Question of stay only arises if there is an appeal, or an appeal can be properly filed pending before the court.
KS:    A repetition is said by my learned friend just now. We will file appeal by this afternoon.
YA:    Permohonan untuk tangguh perbicaraan dibenarkan dan kes akan disebut semula pada 13 Julai 2011. Jaminan dilanjutkan.
[11.50] Mahkamah ditangguhkan.

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