Anwar Ibrahim Sodomy II – The Recorded Truth – 18 October 2010 October 18, 2010Posted by malaysianstory in Anwar Ibrahim, Sodomy II, Transformation in PKR.
Tags: Anwar Ibrahim, Malaysian Story, Sodomy II
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 : MY, WCK, NAA
PB : KS, SN
YAA: This case is for decision. This is the judgment of the court. I may not read all of it.
This appeal relates to the ruling made by the trial Judge in the ongoing criminal trial in the High Court at Kuala Lumpur, bearing No 45-9-2009, where the Appellant is facing a charge under section 377B of the Penal Code. The ruling arose from the application by the learned counsel for the Appellant for the statement of the Complainant (PW 1), recorded under Section 112 of the Criminal Procedure Code (112 statement), to be produced for examination by the Appellant. Learned trial judge dismissed the application and the reasons for his decision are found in his judgment dated 11th May 2010. For the reasons appearing in this judgment, we are not concerned at this stage with the issue of whether the trial judge was correct in his ruling or otherwise. The point issue in this appeal is whether the decision by the trial judge is appealable.
In the Court of Appeal, the prosecution took the stand that the ruling of the trial judge under challenge does not fall within the term “decision” as defined in section 3 of the Court of Judicature Act 1964 (CJA) and hence not appealable. The Court of Appeal agreed with the prosecution. The reasons for their decision are found in what is described as the “broad reasons” read out at the end of the hearing of the appeal.
In his submission before us, learned counsel for the Appellant firstly raised the issue of the failure of the Court of Appeal to furnish the grounds of decision until the date of this hearing even though, according to him, the notice of appeal was filed on 28th June 2010. He submitted that without the detailed grounds of judgment, which the Appellant is entitled to under Rule 91(1) of the Rules of the Federal Court 1995, the Appellant is prejudiced in putting up a proper petition of appeal. In support, he cited Ankur Nath Ganguli v. Public Prosecutor (1956) 1 LNS 9. On that premise, learned counsel urged this Court to direct the Court of Appeal to furnish their grounds of judgment and pending that, the appeal should stand adjourned.
The learned Solicitor General II in his respond submitted that the so called “broad reasons” as furnished by the Court of Appeal in this case is in fact the grounds of judgment of the Court of Appeal and the Appellant can proceed with the appeal relying on the said “broad reasons”. He submitted that we should look at the content and not the label assigned by the Court of Appeal. Further, since the Court of Appeal had furnished their grounds of judgment earlier, therefore, it is not open to the Court of Appeal at this juncture to furnish any further grounds. He cited a number of authorities in support of his contention.
Having perused the “broad reasons”, we agree with the learned Solicitor General II that the “broad reasons” as given by the Court of Appeal for all intents and purposes is their grounds of judgment in support of their decision and on that premise, it is not open to us to direct the Court of Appeal to furnish further grounds.
In this connection, we wish to state that grounds or reasons for a judgment are required so that parties, particularly the unsuccessful one, would know why the judge arrived at the decision the way he did. The reason need not be long especially when the outcome is obvious. It can be obvious when facts are not in dispute and the law is well established. In such a case, all that is needed is the conclusion and his reason in support of the same. This is not to say that in all cases judgments should be brief and concise. Where facts are disputed, the judge has to discuss and analyse them. Where the law is seriously doubtful, he should argue it out before arriving at a decision. More often than not, judgments become long because facts which are sometimes unnecessary are repeated. Laws and authorities which are well established are recited over and over in the same judgment. Statements are often repeated in different ways. Sometimes, this is intentionally done to stress a point. It only makes the grounds long and unwieldy. Having said that, this is not to discourage judges from writing comprehensive grounds, if they have the ability and time to do so.
In this appeal before us, the grounds of the court of appeal though described as “broad reasons” are to us clear and comprehensive, it contains all the ingredients of a speaking judgment. Anyone, familiar with the facts and background of this case would understand why the Court of Appeal arrived at the decision.
We agree that as a general rule, it is incumbent upon the court making a decision to provide reasons for its decision as litigants are entitled to the same. But this grounds of judgment, as we said earlier, need not be long, depending much on the subject matter in issue. In some instances, short and concise grounds of judgment will suffice.
In the instant case, the issue before the Court of Appeal was whether there is a right of appeal from the decision/ruling of the learned trial judge. The Court of Appeal gave brief but concise reasons citing a number of authorities in support of their decision. In the circumstances of this case, we think the Court of Appeal had properly discharged its duty. In fact, our learned Chief Justice has been advocating that judges should strive to write short and concise judgment where appropriate. We entirely agree with him. This is what the Court of Appeal had done in this case.
Having ruled as above, we then asked the learned counsel for the Appellant to proceed with the appeal.
In the course of the cross-examination of PW 1 at the trial of this case, the learned counsel for the Appellant applied to the Court to be furnished with all the statements made by PW 1, including his 112 statements. Based on the evidence of PW 1 in the court and the charge against the accused the learned counsel claimed that he had a hunch that PW 1’s statements to the police were inconsistent with his evidence in Court. In support , he referred the Court to the police report exhibit (P 3) lodged by PW 1 which stated that the alleged act of sodomy was committed without his consent. Similarly in his evidence in Court, he maintained the same stand.
However, the charge the accused is facing is one under section 377B of the Penal Code and not under section 377C of the Code, where the prosecution needs to prove that the alleged act was committed without the consent of the PW 1. For a charge under section 377 B of the Penal Code consent is not in issue, thus the learned counsel contended this is contrary to the evidence of PW 1 that the alleged act was committed without his consent. For this reason, he applied for the statements of PW 1 to the police, in particular the 112 statements, to be furnished to him for the purpose of cross-examination of PW 1 under section 145 of the Evidence Act 1950. Learned counsel cited Husdi v. Public Prosecutor (1980) 2 MLJ 80 and Public Prosecutor v. Dato’ Seri Anwar Ibrahim (2010) 4 CLJ 265 in support of his application.
The application was dismissed by the learned trial judge. He gave his reasons for the same in his judgment dated 11.5.2010. Against that the Appellant appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal on the sole ground that its not seized with the jurisdiction to hear and determine the appeal. It held that the ruling of the learned trial judge which is the subject of the appeal does not come within the meaning of the word “decision” as defined in section 3 of the CJA.
Learned counsel for Appellant submitted that the learned judges of the Court of Appeal were wrong in concluding that the Appellant’s appeal was “an interlocutory appeal” on the ground that, had the 112 statements been supplied to the Appellant, this would have been sufficient basis for the Appellant to apply to impeach the credibility of PW 1. Had this been allowed by the Court of Appeal he said, the rights of the parties would have been finally determined. Therefore, he contended that the order of the learned trial judge in dismissing the Appellant’s application for copies of 112 statements is an order falling within the definition of “decision” in section 3 of the CJA.
The learned Solicitor General II, in his comprehensive reply contended that it is common ground that the ruling was made by the trial judge in the course of an ongoing trial. As such, he said it is clearly not appealable as it does not come within the word “decision” in section 3 of the CJA.
It should be stated at the outset that, appeal is a creature of statute. Therefore, whether there is a right of appeal or otherwise in a given case will be governed by the relevant statute. In this present case, it will be section 50 of the CJA, [read Section 50 of CJA].The word “decision” appearing in sub-section (1) of section 50 is defined in section 3 of the CJA [read Sec.3 of CJA]This provision came for consideration by the Court of Appeal in Dato’ Seri Anwar bin Ibrahim v. Public Prosecutor (1999) 1 MLJ 321. In that case, the issue was whether the matter of bail is appealable to the Court of Appeal, taking into consideration the definition of “decision” in section 3 of the CJA subsequent to the amendment to it in 1998. In that case, it was held by the Court of Appeal that this new definition of “decision” in the amendment does not include a judgment or order which does not deal with the rights of the parties in the matters in dispute. It was further held that only the outcome of the trial that would have the effect of finally disposing of the rights of parties would come within the word “decision”. On this premise, the order of the High Court in refusing bail was held to be unappeallable to the Court of Appeal.
The term “interlocutory” used therein is specifically in reference to civil matter as opposed to a criminal matter.(See para. 501 of Halsbury’s laws of England, 4th Edn. Vol. 26). It includes an order made before and after judgment in a matter before the Court. Whereas, what section 3 of the CJA seeks to exclude from the term “decision” is a ruling made in the course of a trial or hearing which does not finally dispose of the rights of the parties. In other words, the ruling must by definition be made in the course of a trial or hearing and not before or after as envisaged in the definition of “interlocutory”. In fact, in Dato’ Seri Anwar Ibrahim v. Public Prosecutor (2010) 4 CLJ 265, this Court was asked to decide whether an order made by the trial judge pursuant to section 51 and/or section 51A of the Criminal Procedure Code is appealable. In that case, this Court held that the order was a final order as it finally disposed of the rights of the parties and therefore it was appealable. Further, this Court held that the order was not made in the course of a trial. For that reason, the order made by the trial judge does not fall within word “decision” as defined section 3 of the CJA. No doubt that the application under section 51 and/or section 51A is an “interlocutory” application as defined in Halsbury. Therefore, it is highly inaccurate to say that in a criminal trial, all decisions on interlocutory applications are not appealable.
In contrast, we have the Court of Appeal’s decision in Saad bin Abas & Anor v. Public Prosecutor (1999) 1 MLJ 129. In that case, the applicants were jointly tried before the Magistrate Court and at the close of prosecution’s case, they were acquitted and discharged by the Magistrate. On appeal to the High Court, the decision of the Magistrate was reversed and directed the applicants to enter upon his defence. The applicants applied for leave to appeal to the Court of Appeal under section 50(2) of the CJA against the order of the High Court. The application was dismissed by the Court of Appeal.
The learned Solicitor General II also referred us to the case of Public Prosecutor v. Hoo Chang Chwen (1962) 28 MLJ 284, which was a case decided under the Singapore Criminal Procedure Code (Cap. 132). This case concerned a ruling by the Magistrate ordering copies of statements made to the police by the complainant to be furnished to the defence. The prosecution appealed. The High Court dismissed the appeal on the ground that the ruling was made in the midst of a trial and hence it is not appealable. [read decision by Rose CJ]
The underlying reason behind the amendment to the definition of “decision” in section 3 of the CJA, introduced by Amendment Act A 1031 of 1998, which came into effect on 31 July 1998 is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial. This is what the amendment seeks to achieve as evident from the explanatory statement to the Bill [read expanatory statement]
Quite apart from the explanatory statement to the Bill the definition of “decision” by itself, to our mind, is sufficiently clear, and it is the duty of the court to give effect to the same. Justice demands that cases should move without unnecessary interruption to their final conclusion. That is what the amendment seeks to achieve. The right of a party who is aggrieved by a ruling, after all, is not being compromised, as the party can always raise the issue during the appeal, if any, to be filed after the trial process is brought to its conclusion.
For the above reasons, we agree with the Court of Appeal that the ruling of the trial court in this case is not a “decision” as defined in section 3 of the CJA and hence it is not appealable. In the light of our decision, it is therefore not necessary for us to consider grounds 3 and 4 of the petition.
Accordingly, the appeal is dismissed.
[3.45 p.m] Appeal dismissed.