Anwar Ibrahim Sodomy II – The Recorded Truth – 25 June 2010 June 26, 2010Posted by malaysianstory in Anwar Ibrahim, Malaysian Story, Sodomy II.
Tags: Anwar Ibrahim, Malaysian Story, Mohd Saiful Bukhari, Sodomy II
Rayuan Isu 112 CPC
Mahkamah Rayuan 2
Di hadapan Y.A. Datuk Sulong Bin Matjeraie, HMR
Y.A. Datuk Ramly Bin Hj Ali, HMR
Y.A. Datuk Zaharah Binti Ibrahim, HMR
PP: MYZA, NH, MHZ, WCK, NB, NAA, MM
PB: KS, SN, Datuk Param Cumaraswam, Sangeet Kaur, AI tidak hadir
KS: This is an appeal against the decision of the judge in the High Court. It is in relation to something new, something which does not arise before.  Ours is a noble point.
The appeal sought is for the purpose of impeaching SP1. The order applied for in relation to the documents requested in the appellant’s application is a final order, and therefore, appealable to the Court of Appeal.
[refer and read s. 50 and S.3 of CJA.
The authorities on the point have been discussed in detail at pages 257-278 at tab 4 of our bundle.
[refer and read submission]
What’s important is that judgment/ruling clearly relates to non-consensual carnal intercourse and the charge is under s.377B and that shows consensual sexual activity whereas statement recorded and any other statement is in support with non-consensual sexual intercourse. 
YA: There are authorities/laws which said that the AG has the discretion to charge to charge any charges.
KS: But when he charges someone and the evidence led is the other way around, the discretionary power of AG does not arise. We are not challenging his prerogative, but the evidence led contradicts the charge.
YA: So, that’s your main point?
KS: In fact, that’s the only point. It is so simple, straight forward and so logical.
MY: My learned friend, we’ve prepared our written submission. . If I may just refer your Lordship to S.50 of CJA that can be found at page 11 of our submission and S. 3 at page 12. What my learned friend emphasis that the ruling made by the learned trial judge is a final order which finally dispose the right of the parties. S.3 of CJA does not include any ruling made in the course of the trial. This phrase must not be read disjunctively but read together with S. 50. My learned friend referred to the case of DSAI v PP (tab 4 of their bundle), then they talk about S.50, and they talk about the right of the appellant to the documents. Here, we don’t want to talk about the rights. There is no right to begin with because what happened was my learned friend should show whether there is a hunch or not as explained in the case of Mokhtar Hashim. Only then if the court finds that there is a basis for a hunch, then the court would ask the prosecution to hand over the document. 
YA: What you are saying is that the application must be made to the court first?
MY: About the hunch, SP1’s statement in the police report and his evidence in court during the chief-examination was said to contradict with the charge. In Husdi, it talks about S.145 and 155 of EA on impeachment proceeding. [refer and read both Section.
My learned friend says it is something noble, something new. But what is new is not something that the law provides. It is different. Here we have the explanatory statement of the amendment of S.3 of CJA [refer page 13, read para 21].
So we have that phrase judgment and orders, but it does not include rulings made in the course of the trial. [refer to page 14, case Saad bin Abas, read para 23] 
YA: The appellant ask for S.112 statement and the judge says no. And thus not appealable?
MY: Yes. It is a ruling because the appellant said whether or not there is a hunch, but not right. When the court is satisfied that there is a hunch, then the issue of rights arises. [Refer to Mokhtar Hashim [tab 10], where they ask for the S.112 statement of Atun for purpose of impeachment [refer page 259, para E to the right]. And so is our case. The complainant tells to the court what he already told the police in his FIR and they are the same thing. [Refer page 276, para E to the left]. So here, what my learned friend is saying is this ‘in your report, you said there is no consent, in the court also you said there is no consent, but why did AG charge the AI under S. 377B and not S. 377 C of Penal Code even though SP1 had repeated under oath there is no consent.
In the lower court, this is what happens. The report said that there are many incidents happened, but the AG only charge for one offence. And if he says that and if the AG decides to charge for the letter charge, then it is his discretion.
And in the case of Johnson Tan Han Seng, what happen was in the case the evidence reflected grievous hurt, but the charge is only for hurt. This was also referred in the case of Long bin Samat [refer and read page 21, para 36].
Coming back to the charge, at page 3 of our submission, and page 4, we reproduce S.377B and S.377C. What the accused is charged is carnal intercourse against the order of the nature. S.377A states the definition of carnal intercourse. Consent or no consent is inconsequences, not an ingredient. But if the evidence shows that there is no consent, then it attracts different penalties. S.377C only imposes a minimum sentence for the offence unlike S.377B.
I would like to draw your Lordship attention to the offence of robbery. Roberry is defined under S. 390 but the offence is under S.392. And after that we refer to S.394 – robbery with hurt, but we still have to prove robbery and after that hurt. And if the robbery is with arm, it attracts the penalty in S.397.  the offence does not talk about the mens rea on the part of the offender; it only talks about the actus reus of the offender.
And all we need to prove is that he committed the offence, with or without consent is secondary and it is not part of the ingredient And to come back whether it is appealable or not, I check the word decision in S. 3 of CJA, the word cost or matter only applies in civil proceeding. In the case of DSAI, page 329 refers refer to Halsbury page 240, para 506. This part of the literature is reproduce in the judgment.
YA: Where in the case of DSAI that talks about Halsbury?
MY: At page 329, para H and I refer to Halsbury. [Refer tab 18, para 501, 4th line]. In the case of DSAI refer to case of Malik bin Su which also referred to Mohd Amin case in India which is also a civil case.
[Refer pg 15 of submission, and tab 15 of bundle]. [read para 24, 25 and 26] As in England, the law does not provide for the decision in criminal court  ie. appeal of the ruling in the trial.
If my learned friend succeeded to convince the court that there is a hunch, then the prosecution will be asked to hand over the S.112 statement, and the court will then decide whether the witness should be impeached or not. The question that I post is this, at the end of the day, if the court rules that this witness is able to explain the contradiction if any, and he is not impeached, then will my learned friend appeal it or not?. 
If the court rule that day that there is a hunch, the court will ask us to hand over it. I refer to the case of Hoo Chang Chewn [tab 14, para D to the right] which talks about 2 grounds, supply and admissibility. In that case, the defence asked for statement made in the course of the investigation. The court said yes, and the document should be supplied. But the crown appeal. 
The issue before this court is that whether there is a basis of a hunch. If the court rules that there is basis, then it will order us to supply it to the defence. But since the court decide there is no basis, then there is no right for the defence to get the S 112 statement.
1st. They have no right. There is no right to begin with.
2nd. This is a ruling and thus not appealable. 
3rd. The question of this right being finally dispose of, arising not during the trial, but at the end of the trial.
And if I may again restate our stand my Lord, after read Halsbury, for criminal appeal, for criminal interlocutory appeal the law must provide for that. In England the law does not provide that and so in Malaysia.
To sum up, No.1-this is not appealable, No.2, even if this is appealable, then the judge was right in his ruling that there is no basis of that hunch.
Before i rest my case, I refer to page 23 of our submission, para 38 , [read].
So we are saying that yes, it is something new, something noble that never before has been brought up. Whatever it is, this honourable court does not have jurisdiction to hear this matter.
I pray for this appeal to be dismissed. Much obliged.
KS: At first, we didn’t discuss in detail in the case of DSAI [tab 4]. What is important is that the explanatory statement of the amendment of S. 3 of CJA- page 236 [read], para 14 of pg 236.[Refer para 16].
Before the amendment S.3 stop at this ‘decision made any, judgment, sentence or order’. After the amendment, it includes ‘but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose the right of the party’
What we are saying is that the ruling made by the judge is a final order. It is also referred to in the case of DSAI. because his statement would have reflected consensual carnal intercourse. Refer to tab 9 of bundle – S.377A, S.377B, and S.377 C. There is difference, S.377B, it is with consent, but in S. 377C there is no consent. The punishment also differs. Surely there must be a purpose for AG to charge him under that particular section. It must be there, it could have been something.  otherwise it is like charging someone charging someone for the theft of a chicken for a theft of the duck.  even that there is more than a hunch.
YA: So, you are saying there is nothing to do with Article145 (3)?
KS: Yes. We have a hunch. The statement is defamatory that lead to consent to the carnal intercourse. If we’ve been supplied of SP1’s S.112 statement, all his evidence will fall and . We refer to Augustine Paul on the issue of impeachment. Tab 5 of bundle [read].
SP1 is no longer the witness of the prosecution.  if it is so, then it will be a final order. And the appellant could be entitled to acquittal.  We pray under those circumstances for this appeal to be allowed. Much obliged.
YA: We will adjourn to deliberate the matter. We hope we’ll be able to deliver the judgment by 11.30.
[10.57 a.m.] Stand down
YA: It took us longer than ½ hour. This is our judgment. It is a broad reason for our judgment. You can use the broad reason to appeal at the Federal Court if any.
We have anxiously considered the submission of both parties. After careful deliberation, we are of the view that the ruling made by the trial judge is correct where the right of the parties is not finally disposed. 
Our jurisdiction is to hear and govern the appeal. The term decision is clearly define in S. 3 [read].
We are fortify in our decision that the explanatory statement . The reason the amendment was done is [read].
It could not be gainsaid that the appeal filed by the appellant herein is actually is an interlocutory appeal as it was an appeal that occurs before the trial courts final ruling on the entire case. Such being the case, the definition of the word decision in Section 3 of CJA would clearly preclude the appellant from pursuing with this appeal. [ ]
See also Hoo Chang Chwen, Saad bin Abas and the decision of England court in Regina v Collin.
And therefore we dismissed the appeal.
[11.45 a.m.] Rayuan selesai