Anwar Ibrahim Sodomy II – The Recorded Truth – 19 August 2010 August 20, 2010Posted by malaysianstory in Anwar Ibrahim, Sodomy II.
Tags: Anwar Ibrahim, Karpal Singh, Mahkamah Persekutuan, Malaysian Story, Sodomy II
Rayuan Jenayah : 05-73-2010
Di dalam Mahkamah Persekutuan
Di hadapan YAA Tan Sri Ariffin bin Zakaria, CJM
YA Tan Sri James Foong Cheng Yuen, HMP
YA Dato’ Seri Md. Raus bin Sharif
PP : Semua hadir
PB : KS, SN
KS : This is an appeal against the decision of the Court of Appeal. The notice of appeal has been filed to the Federal Court on 28th of June 2010, against the decision of the Court of Appeal on 25th June 2010. Only broad reasons are given.
YA: This is the broad grounds is it?
KS: It is stated in our skeletal submission at page. 2.Rekod rayuan tambahan was served on 28th of June which include grounds of judgment – broad grounds are the grounds of appeal. That is my Lordship rekod rayuan tambahan. It is the broad reason.
The point is this, do or does the broad reason amount to grounds of appeal? I take your Lordship to R. 95 (1) of the Rules of the High Court. [read Rule 95]. One of the documents required under R.91 which referred to R.95 are the grounds of judgment.
Court of Appeal is the second highest court in the land.
YA: Where does it stated in R.95?
KS: The learned judge decided in the Court of Appeal that there could be filing of leave to be filed in the Court of Appeal pending appeal in the Federal Court. That’s of course in civil matters. An appellant is entitled to grounds of judgment.
YA: The broad reason doesn’t say so.
KS: It is said in open court that “in the event of appeal, this is our broad reason”.
YA: But the broad reasons are the grounds of appeal.
KS: The broad reason cannot be the ground of appeal. It contemplate something that it can be extended. It is broad reason, not grounds of appeal.
CJM: But this is only the name of the reason. There are grounds, and it is comprehensive. It is a well known fact. The point of the appeal is stated in it. It is my preliminary view.
KS: Judges are expected to give grounds of judgment.
YAJ: What are you trying to derive?
KS: Broad reasons are not grounds of appeal.
YAJ: So you are asking for an adjournment?
KS: No. I’m asking as a matter of right. Your Lordship should go back and ask the Court of Appeal to give us the grounds of judgment. It is a precedent that Court of Appeal should put proper grounds. So do judges. They cannot just give broad reason. If the appellant is entitled to the ground, then he is entitled to the ground. If judges give broad reason for judgement, then lawyers should give broad reason in the petition of appeal. Would that be proper?
CJM: Short in that sense, but it still within the context. It covers all.
KS: If your Lordship said it is sufficient I will carry on. I’ve come here to carry on with the submission. Perhaps the Court of Appeal should be directed to give us proper grounds for purpose of appeal.
CJM : The question is in your skeletal submission you stated on this point, but you also said you are prepare to go on. It seems to be contradictory.
YAJ: If you mean that the broad grounds is prejudicial to you, what are trying to get at. You should ask for an adjournment and we’ll direct the Court of Appeal to provide the grounds. 
KS: In anticipation that the court wants to continue, I’m prepared. I don’t want to be accused of asking for adjournment or postponement and that we delaying the trial.
YAJ: If you are handicapped, then you should ask for adjournment. Is the trial is going in the lower court at the moment?
KS: No. It is adjourned to 20 September. 2010.
YAMR: The issue in the High Court is the supply of the witness statement. But I thought it is about the statement of the witness. That was the issue, isn’t it?
KS: Yes. That’s the issue.
YAMR: Isn’t it very clear the question is whether it is a final order or otherwise?
KS: Then the Court of Appeal will not give decision on the second part of it. This is very simple; you cannot charge a person under Section 377B when it is consensual. It should be Section 377C.
YAMR: That’s not the issue here.
KS: First point, the Court of Appeal should say it was a final order.
YAMR: Court of Appeal said it was not a final order.
KS: We are not saying so. We are saying otherwise.
YAMR: So, can’t you argue before us now?
KS: The Court of Appeal was wrong in not listening to the merit of our case.
YAMR: Let’s trash out the first hurdle first.
KS: Even in the question of jurisdiction also they gave broad. That’s why your Lordship is assuming that the broad reason is not enough. That’s why in the future whether Court of Appeal can just give broad reason. It’ll become a precedent.
CJM: So you are asking for adjournment?
KS: Yes. We are entitled to.
CJM: MY, have you have anything to say.
MY: With due respect, I do not think this honourable court can allow an adjournment on this matter on the grounds the Court of Appeal should supply grounds of judgment. My learned friend requires the court to give detail reason. And this is what has been supply. It is just a terminology. The judgement is the decision. And the grounds of judgment is reason for the decision. Therefore the broad reasons by the Court of Appeal are reasons for the decision/judgment.
YAJ: Any authorities on this?
MY: I know a few but I don’t have it with me. [mentioned few cases]
CJM: The trouble is they put “the broad reason” here. If we were to rule that this is grounds of judgment, KS can attack saying the grounds are not proper.
YAMR: Basically you are saying we cannot send it back to the Court of Appeal for further grounds of judgement.
CJM: So, KS, you can attack on it. On the inadequacy of the grounds.
KS:  read R.91. In any event, the broad reason does not advert to our submission onmerits. The appeal is dismissed on jurisdiction.
YAMR: So are we entitled to send back to ask them to write a proper ground. You can attack this is not a proper ground but you don’t ask this court to send back for the grounds. So I said, if a judge write a sketchy judgment, can you ask the appellate court to ask for the grounds?
KS: This is not a ground.
CJM: We adjourn for a while.
[10.05 a.m.] Stand down
YA: This is our view. We agree with the prosecution that what is referred to the broad grounds are the grounds of judgment.
KS: The first hurdle for us is whether it is a final order. I take your Lordship to tab 3 of our bundle. Case of DSAI v PP, page 275. This is in relation to preliminary objection. It is about Section 51 of the Criminal Procedure Code, on supply of document.
What your Lordship has to look at is Section 50 and Section 3 of Courts of Judicature Act 1964. [read]. I don’t propose to go through the cases in length. I’m more concern with the word ‘decision’ which come under Section. 3 of Courts of Judicature Act 1964. For Section 50 to apply, the word “decision” has to be considered.
We say that ruling made under Section 3 in the course of the trial is appealable. In the course of the trial, if the consent to prosecute is found to be defective and if the ruling made is wrong, when the court decides otherwise, surely it could be appealable. If it decides that the order is a final order, it disposed the right of the party.  if the consent is invalid then the trial will be a nullity.
Likewise, ruling made by the judge in relation to the supply of documents for statement recorded of SP1 under Section 112 Criminal Procedure Code ought to be made available to the defence. The charge on the accused is of Section 377B of Penal Code. This is trite, it is at tab 10. [read Section 377B and Section 377C] Under Section 377C, if it is without consent, there is a minimum imprisonment of 5 years. And under Section 377B there is none. And in this country it is an offence for carnal intercourse unlike other countries where if it is consensual, then it is not an offence. Clearly the charge is under Section 377B and the evidence lead was without consent. That would be the reason why the defence wants the documents because we believe the statement will support Section 377B.
YA: The charge is Section377 B?
KS: Yes. But evidence lead is under Section 377C. Clearly the defence has the right to ask for the document. It is something new and the decision in the case of Husdi should be modified. I refer to the last authority in our bundle, pg 81, para E on the right column. This has to be modified in the situation like this. When the evidence lead does not reveal the ingredient of the charge.
Our argument is this, we are entitled to the 112 statement. If the statements were supplied and if it is in support with the charge under Section 377B and with the evidence being lead is under Section 377C, the credit of SP1 would have be impeached. And if that is the position, and that would be the position, that would be the end of the matter and the final rights of the party will be determined. And the prosecution will obliged to withdraw the charge, once SP1’s credit is impeached, there is no need to go on with the trial.
I refer to tab 11. [read] that’s the effect of it. As far as final issue is concern, that would be it.
I take what is said in the judgment and is found in the 4th ground of appeal, i.e the ruling made by the High Court. [read] This is with due respect the High Court judge has misdirected himself. Husdi must be applied because it is peculiar in our case. Because it relates to the entire charge and entire evidence lead. The Public Prosecutor has the right to choose under which Section the accused is to be charged.
We do not dispute that the Public Prosecutor has right under Article 145 of FC that Public Prosecutor has the right to choose the charge. That is their prerogative.
Refer Teh Cheng Poh, Long bin Samat and Johnson Tan Han Seng. Discretion of Public Prosecutor is significant. The fact that the Public Prosecutor preferred a charge under Section 377B, it does not mean that we cannot go beyond that.
Refer tab 8, PP v Jorge Enrique Pollen Tollen. [read held no.1] Once the case come to the court, the power of Public Prosecutor ceased there.
Refer tab 9, Jorge Enrique Pollen Tollen, Court of Appeal decision. It was upheld by the Court of Appeal. This matter is brought to the Federal Court, but the Public Prosecutor withdraws the appeal.
What is proper is for the judge to allow our application to ask the prosecution to supply the documents under s. 112 for SP1’s statement made during the investigation.
YAMR: So, your purpose for the supply of documents is to impeach?
KS: Yes. Clearly it is not interlocutory, but a final order. Because the prosecution would fail if our application is allowed. It will be a waste of time for the prosecution to proceed. Of course my learned friend in the Court of Appeal goes round and round and confuse everyone. Charging someone for a theft of a chicken for evidence of theft of a duck.
We pray that to the court for this appeal be allowed.
MY: We have prepared the written submission, but I’ll not rely on it. The Court of Appeal has decided that it has no jurisdiction to hear the appeal, because the ruling made by the High Court is not a final order. Refer tab 1. [read Section 3 of Courts of Judicature Act 1964]. If I may confine myself to “any ruling made in the course of a trial“. It cannot be a final order. It is at the stage where the trial is still going on. Final order is at the end of the trial. It will be my submission that the phrase “not finally disposed the right of the party”, should qualify only to hearing of any course or matter. It must be read disjunctively, with “any ruling made in the course of the trial”. Otherwise, it would be redundant.
In our case, the ruling made by the High Court for the application by the counsel for the supply of the document under Section 112 is a not a final order since it is made during the trial, while it is still ongoing. As KS considered that this application is made with view to impeach. In fact, this application is made because they wanted to commence the impeachment proceeding. The question that I would like to post to this honourable court is this, supposing the statement is given and the court found there is material contradiction and ruling is made, whatever the ruling maybe. The step in the impeachment proceeding is not appealable. I know of no case that appeal is made at the end of the impeachment proceeding and what more the process.
YAJ: What you are saying is not immediate, but need to go through a process?
MY: Yes. Can you appeal the four steps before when even the final step is not appealable? It must start with a hunch. Hunch is described by the Federal Court in the case of Dato’ Mokhtrar Hashim at pg 276.
My learned friend said this, there was no consent, but in the charge the consent was present. That is not what impeachment is preceded upon. I refer to tab 4 of our bundle. We have Section 155(b) Evidence Act 1950 there. [read].
Contradiction between his evidence in court and the charge is not a basis for a hunch. It must be contradiction between what is said in court and outside court. You cannot tell the AG which charge to be preferred.
Under Section 377B and Section 377C, there must be penetration, consent or otherwise is not relevant. Tab 6 is refereed and read. We refer to the sections and the interpretation. Section 377B, consent is not an ingredient, meaning Section 377B is easier to prove. I do not have to worry consent or no consent, what differs is the punishment the offence is still carnal intercourse, offence that requires us to prove penetration. Section 377C enhances the punishment rather than creating a new element.
My learned friend refers to the case PP v Jorge Enrique Pollen Tollen. [Explain]
In Long b. Samat, somebody was charged with Section 304, but evidence shows Section 306 for greater offence. I refer to the head notes, para E to the right [read] and of course the court said no. it is within discretion to do that. In fact at page 158 of the judgement, beginning para A to C [read]
The discretion of AG has been refereed again in Johnson Tan Han Seng, page 71, para D to F to the right, which refer to the case Long bin Samat.[read] Refer para G and H. [read]
So, how can the court accede to the request of my learned friend for the access of the statement just because Public Prosecutor prefer a lesser charge.
My learned friend refers to Husdi with regard to the word ‘hunch’. In the case of Dato’ Mokhtar Hashim, page 276, para D on the left column [read] Question is whether or not the charge preferred is less in nature compared to the evidence lead in court, and could that secure a basis of a hunch to justify the court for the prosecution supply the document, we say no. because under s. 155C Evidence Act 1950, it must be oral evidence and oral statement. It is not what KS said that the theft of a chicken and duck, but it is the theft, not the chicken or the duck.
Coming back to the basis for refusal by Court of Appeal is because it is not a final order. The Court of Appeal refers to 4 cases, Hoo Chang Chwen, where Rose CJ held that it is only a procedural ruling and is not appealable. In the case of Raymond Chia, it refers to the case of Hoo Chang Chwen and RK Menon, which my learned friend referred too.]
The problem with the order of the court is at the close of prosecution case, the court acquitted the accused. It is final against the prosecution but it is not final against the accused. The case of Saad b. Abas says that it is final in the prosecution case, but not final in the defence case. It is also said in the case of DSAI v PP. What is said in by NH Chan is decision may be final, but if it is still insubordinate to the main issue, therefore it is not final. Refer tab 13, page 330, para B. [read]
We refer to the case of Regina v Collins where the criminal court has no jurisdiction to hear interlocutory appeal. Also, Black’s Law Dictionary (tab 18) defines the word interlocutory appeal.
Regina says that the court has no inherent jurisdiction to hear interlocutory appeal in criminal matters.
We also have the extracts of Halsbury Law of England, which was refer by J NH Chan in DSAI v PP. Refer to tab 13, page 329, para H and I.
Refer tab 19, Halsbury Law of England. The para that J NH Chan refereed is Para 506, page 240. We have para 501-506. Para 501 says that interlocutory appeal does not apply in criminal matters. It appears that para 506 referred to by NH Chan does not apply to criminal case.
If I may sum up, I’m trying to persuade the honourable court to confine to the word ‘decision’. Nothing is final yet, it cannot be final, it is not at the end yet.
It is my humble submission and I adopt the broad reason and part of the judgment of the High Court judge as my submission. I pray the appeal to be dismissed.
KS: I refer to tab 3 of our bundle, page 275, and refer S. 50 of Courts of Judicature Act 1964. It deals with the preliminary objection to that. [read] Before the amendment to the word “decision”, [read]. But when it is amended, it include “ruling which does not dispose the right of the party, and therefore not a final order”. 
CJM: If accused is acquitted, it will be final against the Public Prosecutor, but not you.
KS: It must be both ways.
YA: My example at the end of the prosecution case, if the defence Is not called, the Public Prosecutor can appeal, but if defence is called, you cannot appeal. It cannot go both ways.
KS: If it is, the amendment of Section 3 will be defeated. It will dispose the right of the parties there and then. It also goes to the entire trial. Even the trial after that stage will be a nullity. Must we wait to the end of the trial?
YA: But what is the reply by MY is that the supply is the first stage. Therefore it is not appealable.
KS: We said it can.
YA: If impeachment is made and the judge made a ruling, you cannot appeal it.
KS: We say yes. 
YAJ: Never mind, we will write our ground. I must attract where you say there must be circumstances where ]. As what MY says, it is not immediate. There must be a process. First there is a hunch. Second, you get the statement. Next, you compare the statement and later you impeach. I want your view on this. There are five processes that you have to go through the impeachment proceeding.
KS: You must go through the processes.
YA: The process is long, and if it is appealable?
KS: In this case, we must be supply with the 112 statement.
YA: So Section 3 does not require an immediate nature?
KS: No. It doesn’t matter what has been considered. The ruling disposes the right of the party.
CJM: You have made your stand very clear. We’ll write our ground.
MY: I would like to take your attention to the explanatory statement in our bundle.
CJM: I’ve read it. Reserve judgment.
[11.35 a.m.] Adjourned.