Anwar Ibrahim Sodomy II – The Recorded Truth – 16 May 2011

Mahkamah Tinggi Jenayah 3 Kuala Lumpur
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Pihak-pihak:
PP:    Semua hadir
PB:    KS, SN, Datuk Param Cumaraswamy, Dato’ CV Prabhakaran, Ramkarpal, Marissa, Radzlan
WB:    Zambri Idurs (for complainant), Teoh Lib Peng (for Bar Council)

[9.07 a.m.]

Keputusan di akhir kes pendakwaan.

MY:    YA, pihak-pihak masih yang sama dan En. Zambri Idrus peguam pemerhati untuk pengadu dan En. Teoh Lib Peng peguam pemerhati bagi majlis peguam dan juga penterjemah kepada pemerhati antarabangsa.

KS:    []

YA:    I’ve already made my decision before Friday so that doesn’t affect my decision.

KS:    In that case I leave it to the court.

YA:    Ini keputusan mahkamah di akhir kes pendakwaan. The accused, Dato’ Seri Anwar Ibrahim is charged under S.377B of the Penal Code for committing carnal intercourse against the order of the nature on one Mohd. Saiful Bukhari bin Alan, i.e. PW1. The charge read as follows:
“Bahawa kamu, pada 26 Jun 2008 antara jam 3.01 petang dan 4.30 petang di alamat Unit 11-5-1, Desa Damansara Condominium, No. 99, Jalan Setiakasih, Bukit Damansara, dalam Wilayah Persekutuan Kuala Lumpur telah

dengan sengaja melakukan persetubuhan yang bertentangan dengan aturan tabii dengan Mohd Saiful Bukhari bin Azlan dengan memasukkan zakar kamu ke dalam duburnya; dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 377B Kanun Keseksaan.”

The case for the Prosecution

The prosecution called 26 witnesses including the complainant, PW1. The case for the prosecution started with PW1. He testified in his examination-in-chief among other things he started working as a volunteer with the accused from early March 2008 at the invitation of his friend, Rahimi.

From end of April 2008 until his resignation on 27th June 2008 PW1 was the personal assistant to the accused. As a personal assistant to the accused PW1 was paid official salary of RM1000 by someone he called Kak Jun. Other unofficial payments like allowance was paid by the accused, the amount depending on the number of trips.

PW1’s duty includes arranging meetings for the accused and communicating with agents and Members of Parliament from the party. He also assisted the Chief of Staff in preparing the work schedule and he was also involved in filing confidential documents like bank account. He was also responsible to oversee the accused hand phone and the accused will hand over his hand phone to PW1 to check on the SMS received.

At around 10.30 a.m. on 26.6.2008 PW1 was reminded by the accused of his earlier instruction given the previous day for PW1 to be at unit 11-5-2, Desa Damansara Condominium, No. 99, Jalan Setiakasih, Bukit Damansara. Unit

11-5-2 and unit 11-5-1 i.e. the unit mentioned in the charged belong to the accused friend, En. Hasanuddin.

PW1 was directed to be at the condominium at 2.15 p.m. on the same day. He left the office at about 1.45 p.m. He took along with him some documents received by him from the Chief of Staff, en. Ibrahim Yaakob i.e. PW24 to be delivered to the accused. PW1 drove to Desa Damansara Condominium in a Fiat van bearing registration WPK 5925. He arrived at the condominium at around 2.45 p.m.

To enter the compound of the condominium he had to pass the Security Guard stationed at the entrance of the condominium. There, PW1 had to mention the word ‘Mokhtar’ before being allowed to enter. From there PW1 drove to the visitor’s parking lot at P4. From visitor’s parking lot walked to the lift at level P4 which took him to level P2. From there he walked to a door. This door leads him to the lift that took him to the unit 11-5-1. This door has automatic locking system. PW1 had to press number 11-5-2 and a male voice answered ‘Ya’. When PW1 mentioned the word ‘Mokhtar’ the door was unlocked from inside. From  there PW1 took the lift to the 5th floor and went straight to unit 11-5-1. According to PW1 although he was told to go to the unit belonging to En. Hasanuddin i.e. unit 11-5-2 he went straight to unit 11-5-1 because every time he went there he was asked by the accused to go to unit 11-5-1.

Upon arriving at unit 11-5-1, PW1 opened the door which was not locked, entered the place and put his shoes on the floor behind the door. In unit 11-5-1 PW1 noticed the accused was already seated at the dining table. PW1 sat at the table facing the accused and placed the document which he brought along with from the office on the table. After having sat down at the table the accused and PW1 discuss work schedule.

Not long after that the accused ask PW1 and I quote “Can I fuck you today?” PW1 said he refused initially and the accused asked him “Why?” PW1 responded by saying he did not wish to do that that day. He was then instructed in an angry tone by the accused to go to the master bedroom. PW1 complied and went into the master bedroom followed by the accused. In the room the accused went to the end of the room to close the curtain and proceeded to the door to switch off the light in the room. Having done so the accused then directed PW1 to clean himself in the bathroom. PW1 did not bath but merely wipe himself in the bathroom and came out covered only with towel. He saw the accused at the corner right of the bed and the accused was standing wearing a white towel and he asked PW1 to come to him. At that moment the accused hug PW1 while standing. Further evidence of PW1 was given in camera where PW1 described in detail how his anus was penetrated by the accused with the aid of lubricant known as KY Jelly. The carnal intercourse against the order of nature completed and PW1 went into the shower. He did not clean his anus but merely wipe his body with little water.

After PW1 and the accused was fully dressed the accused invited PW1 to the dining table. Ready on the table was curry puff, a thermos of hot water and 3in1 Nescafe.  PW1 ate curry puff and had a drink. After 20 minutes PW1 left the unit 11-5-1. When PW1 left the unit the accused was still in the unit.

On 27th June 2008 in the accused’s office at the Tropicana Merchant Square PW1 sent an email to the accused conveying PW1 desire to resign. The reason he gave in the email for resigning were he was indisciplined and thus always came late. He felt the pressure because he was given room in the office over those who are more qualified. According to PW1 the real reason for him resigning was because he did not wish to be sodomised again.

On 28th June 2008 PW1 accompanied by his uncle En. Tuah bin Alip went to Tawakal Hospital at Jalan Pahang but failed to see any doctor because he was told at the counter that it was half day. PW1 and En. Tuah then went to Pusrawi Hospital at Jalan Tun Razak where he mat Dr. Mohd Osman bin Abdul Hamid. PW1 informed Dr. Osman that he had stomach ache and pain in the anus. PW1 was examined by Dr. Osman.

While Dr. Osman was inserting something into PW1’s anus PW1 told Dr. Osman that he was sodomised and needed an examination. Upon hearing this Dr. Osman immediately stopped examining PW1 Dr. Osman instead told PW1 Pusrawi Hospital did not have the facility for forensic analysis. PW1 was further informed by Dr. Osman that medical report form private hospital could not be used as evidence in court. PW1 was then directed by Dr. Osman to go to a government hospital. Dr. Osman suggested PW1 to go to Hospital Kuala Lumpur as it was the nearest hospital.

PW1 went to Kuala Lumpur Hospital and registered himself as an outpatient. That was at around 3.00 p.m. He was then referred to one Dr. Daniel. PW1 informed Dr. Daniel he wanted to be examined because he was sodomised by Dato’ Seri Anwar Ibrahim. Upon hearing this Dr. Daniel issued a referral letter and directed PW1 to One Stop Crisis Center (OSCC) at the Emergency Department.  He arrived at the OSCC at around 3.30 p.m.

After about 30 minutes at the OSCC a doctor came and tool blood pressure from PW1. PW1 informed the said doctor his reason for seeking treatment especially about him being sodomised. At about 4.30 p.m. the said doctor came again and advised PW1 to lodge a police report, without which forensic examination could not be performed on PW1. After waiting for half to an hour two policemen came with form for PW1 to lodge his report. PW1 made his report as in exhibit P3  while in the OSCC.

At about 9.00 p.m. PW1 was examined by 3 doctors. They were Emergency Care Specialist, Dr. Khairul Nizam B. Hassan i.e. PW2, General Surgeon, Dr. Mohd Razali B. Ibrahim i.e. PW3, and Forensic Pathalogist, Dr. Siew Sheue Feng. Also present was Dr. Razuin Bt. Rahimi, PW23 who fill the pro forma, exhibit D28.

Thorough examination of whole PW1’s body including the anus was done. Specimens were taken from PW1. Each specimen were put in container and sealed. PW1 were asked to put his signature on each of the seal. While PW1 was being examined the investigating officer, DSP Judy Blacious a/l Pierera i.e PW25 came.

The next day PW1 handed to PW25 KY Jelly (exhibit P4), a pair of long sleeve Ralph Lauren (exhibit P11), a pair of black trouser (exhibit P12), a pair of green shirt (exhibit P13), a pair of grey underwear (exhibit P14) and a pair of dark blue underwear (exhibit P15). PW1 further informed that since the day he was sodomised until the day he was examined by PW2, PW3 and PW4, PW1 did not pass motion.

PW1 was cross-examined at length. During cross-examination Pw1 denied meeting Dato’ Seri Najib who was then the Deputy Prime Minister ether on 27th or 28th June 2008. However PW1 admitted he had gone to the house of

Tuan Haji Khairul Anas who was then the Special Officer to Dato’ Seri Najib on 24th June 2008. From there he was brought by Khairul Anas to Dato’ Seri Najib’s residence where he met YAB Dato’ Seri Najib at about 8.00 p.m. The meeting with Dato’ Seri Najib took place for about 20 minutes where PW1 told his problem to Dato’ Seri Najib. Dato’ Seri Najib did not advise PW1 to lodge a police report. PW1 denied he was brought to see Dato’ Seri Najib by Dato’ Mumtaz.

PW1 then said on the way back from YAB Dato’ Seri Najib’s residence PW1 received a call from ASP Rodwan requesting PW1 to meet at Milia Hotel. PW1 met ASP Rodwan at Milia Hotel where he told ASP Rodwan the problem he faced. ASP Rodwan did not offer any advice. He also did not advise PW1 to lodge a police report but he did ask PW1 to meet him at Concorde Hotel on the next day, i.e. 25th June 2008. PW1 went to Concorde Hotel on 25th

June 2008 but ASP Rodwan did not turn up. After that there was no further communication between ASP Rodwan and PW1.

PW1 also denied Inspector General of Police, Tan Sri Musa Hassan had contacted him. However PW1 admited he did telephoned Tan Sri Musa Hassan to inform Tan Sri Musa about the problem faced by PW1 but Tan Sri Musa

Hassan angrily put down the telephone and warned PW1 not to telephone him again.

PW1 admitted meeting En. Mohd Ezam Mohd  Nor at Rawang. He was taken to see En. Mohd Ezam at 12.00 midnight 27.6.2008 until 1.00 a.m. 28.6.2008 by En. Rahimi and En. Tuah who was PW1’s uncle. During the meeting

PW1 informed Ezam that he was sodomised by the accused. En. Tuah was the first person PW1 told about thye incident occurred on 26.6.2008, the next person was Mohd Ezam and other than that was also informed was Dato’ Mumtaz.

PW1 was then cross-examined where in the middle of August 2008 PW1 had ‘mengangkat sumpah laknat’ at a mosque. PW1 agreed that the date that PW1 ‘angkat sumpah laknat’ was near the date the accused was to be named as a candidate in a by-election for Permatang Pauh province but stressed that it was only a coincidence that the two dates were near to each other.

The prosecution then call Dr. Khairul Nizam B. Hassan as PW2, Forensic Pathalogist Dr. Siew Sheue Feng as PW3 an Dr. Mohd Razali B. Ibrahim as PW4. All three of them had attended PW1 together at OSCC at around 9.00 p.m. 28.6.2008.

PW2 testified that on 28.6.2008 at 7.00 p.m. he was the Surgeon on-call. He received a phone call from a medical officer. He was informed that he is required to be present at a special room at OSCC, Emergency Unit of Kuala Lumpur Hospital at 9.00 p.m. because there was a sodomy case and he was informed the patient was already brought to the said room. PW2 testified he arrived at the said room at 9.00 p.m. upon arrival he saw Dr. Siew and Dr.

Khairul was already there. They were then briefed about the case by a police officer. After the briefing PW2, PW3 and PW4 proceeded to attend PW1.

PW2 examined the bottom part of PW1’s body which involves the anal and the rectum. He started with the external part of the anus followed by internal part. PW2 used protoscope to examine the internal part. PW2 found the area around the anal opening to be a bit moist compared to other areas. He did not find any evidence showing injury, trauma or fissure. PW2 then conducted protoscopic examination to see whether there was any accumulation of fluid inside or was there any injury or fissure that suggest trauma to the inner part to which he found none.

Initially PW2 tried to insert the protoscope without lubricant to see whether it could enter easily but because of the normal process of the closing of the anal canal PW2 found difficulty in inserting the protoscope into the anus. With the aid of lubricant PW2 managed to put the protoscope into PW1 and found there was no accumulation of fluid, injury or fissure suggesting trauma to the inner part.

PW2 took sample for DNA analysis. He took peri anal swab, high rectal swab and low rectal swab for seminal analysis. All these samples were handed to Dr. Siew Sheue Feng, PW3 to be put into the respective container, labeled and sealed.

Dr. Siew give evidence that he attended PW1 together with PW2 and PW4 at about 9.00 p.m. 28.6.2008 at OSCC, Emergency Unit of Kuala Lumpur Hospital. His main duties were to handle the forensic specimens collected in this case.
PW3 testified that he was informed by PW1 that PW1 had been sodomised by a high profile public figure. The last incident happened on 26.6.2008. PW3 specifically asked whether condom or lubricant was used to which PW1 said no condom was used, only lubricant was used. PW1 also informed PW3 that PW1 had gone to Pusrawi Hospital before coming to Kuala Lumpur Hospital. PW1 did not said plastic was inserted into his anus. PW3 asked PW1 whether there was ejaculation to which PW1 replied there was ejaculation. PW1 asked whether force was used to which he said no force was used.

PW3 further testified that he was present with Dr. Razali and Dr. Khairul (PW4) when PW1 was being examined. PW3 confirmed that Dr. Razali took swab from peri anal region, low rectal swab and high rectal swabs from PW1 while Dr. Khairul (PW4) took swabs from oral cavity at the left peritonsilar recess, below the tongue, from the left nipple and areola. Also taken by Dr. Khairul was penile swab from meatus and coronal sulcus of PW1’s penis. All specimens were put into containers, labeled and sealed by PW3, handed to PW25 to be sent to the Chemistry Department for analysis.

Dr. Khairul testified as PW4. He confirmed that he had examined PW1 together with PW2 and PW3. He took swabs from oral cavity at the left peritonsilar recess, below the tongue, from the left nipple and areola. Also taken by PW4 was the swab from meatus and coronal sulcus from PW1’s penis. All specimens were put into containers, labeled and sealed by PW3.

On 11 July 2008, Clinical Forensic Department of Kuala Lumpur Hospital received a chemist report (exhibit P25) regarding the result of the analysis conducted on the specimens collected. PW2, PW3 and PW4 then prepared

Laporan Forensik Klinikal i.e. exhibit P22 dated 22nd July 2008 signed by all three of them where they give conclusion or summary as follows:
1.     No conclusive clinical findings suggestive of penetration to the anus/rectum and     no significant defensive wound on the body of the patient; and
2.     The presence of male DNA types from swabs “B5”, “B7”, “B8” and “B9” are     best interpreted with the identification of the sites of sampling.

PW2, PW3 and PW4 were examined on their conclusion as stated in the exhibit P22. PW2 explained that the first conclusion was merely based on clinical examination conducted on PW1. When it was mentioned ‘no conclusive clinical findings suggestive of penetration’ does not mean there was no penetration. This is because sodomy can happened without causing any injury. To enable him to conclusively conclude whether there is penetration or otherwise he need to have both results, .i.e. clinical result and laboratory result on analysis on the specimens. At the time P22 was prepared they did not know the exact spot where specimens marked B5, B7, B8 and B9 were taken. That was the reason why they decided to put in exhibit P22 the second conclusion which reads: the presence of male DNA types from swabs B5, B7, B8 and B9 are best interpreted with the identification of the sites of sampling.

PW2 further testified after knowing specimen B5 contain swab from peri anal region of PW1, B7 and B8 contain high rectal swab from PW1, B9 low rectal swab from PW1, he was of the opinion there was penile penetration.

PW3 were also asked with the conclusion in exhibit P22. PW3 explained at the time P22 was prepared PW2, PW4 and himself did not know the exact location where the specimen B5, B7, B8 and B9 were taken. Without knowing where those specimens were taken they were unable to interpret the result obtained by the chemist. Thus in P22 they stated ‘the presence of male DNA types from swabs B5, B7, B8 and B9 are best interpreted with the identification of the sites of sampling’. Now that he know that B5, B7, B8 and B9 were respectively taken from peri anal region of PW1, high and low rectal swab of PW1, PW3 concluded there was anal penetration and it was consistent with penile penetration.

Likewise PW4 was asked about the conclusion in exhibit P22. He also gave the same explanation as that of PW3.

PW2, PW3 and PW4 were cross-examined. PW2 testified that PW1’s bowel was empty at the time he conducted the examination but agreed to the suggestion of the counsel that this was not consistent with PW1’s evidence who testified he had not passed motion since the day of the incident. PW2 explained this was because the lower part of the rectum was not a reservoir of feces. Feces were stored in the colon until the sigmoid area. All the digested food would be kept there. When mass-movement which was a psychological process that happened in which the body tried to expel whatever digested thing after it had been processed and absorbed happened there would be a sensation that you want to defecate but this did not mean the feces will move to the rectum. And if the place one was in socially in common pain one could basically prevent the feces to moving from the sigmoid to the rectum.

PW2 further explained that the specimen of high rectal swab was tekan in the rectum, 9 cm from the anus. Counsel suggested that it was impossible to find specimen high up the rectum because any specimen would have laid down due to mass-movement, peristalsis, gas and gravity. PW2 did not agree with this suggestion because human bowel is not a straight line like a pipe, it was a folded area, folded mucosa so material sits there, not necessarily all will come out immediately. Some would still be left at the area he took the high rectal swab.

PW3 was cross-examined extensively on medical history taken from PW1. PW3 said he took medical history of PW1 where PW1 said he was sodomised by a public figure. The incident took place early March 2008. At that time PW1 was the personal assistant to the said public figure. PW3 further explained that what question to ask regarding medical history depended on what the complaint was. If patient complain of tenesmus like in ID16 the question to be asked under medical history would be along the line whether there is bleeding, any pain when passing motion and any blood in the stool. But in this case PW1 complained that he was being sodomised therefore the question asked for the purpose of the medical history would be more towards the complaint in which whether PW1 had pass motion and had seen other doctors before coming to Kuala Lumpur Hospital.

PW3 denied he knew where sample B-B9 were collected when he together with PW2 and PW4 prepared the exhibit P22. PW3 further testified the marking B-B9 were not made by him. He only came to know B5, B7, B8 and B9 were respectively taken from peri anal region of PW1, high and low rectal swab o PW1 while giving evidence in court.

PW4 was also cross-examined. He testified that PW1 was calm while being interviewed. PW4 did not take sample from the back of PW1 although he was aware that in cases where there is contact in sodomy, contact DNA may be obtained from the contact area. PW4 did not do so after taking into account the incident happened 2 days before PW1 was examined.

PW4 was also asked whether he was briefed by DSP Judy regarding the complaint made by PW1. PW4 said he was told PW1 was sodomised by a well known figures. PW4 came to know of oral sex while interviewing PW1 when PW1 told PW4 he was asked to perform oral sex. PW4 was then referred to “Borang Pemeriksaan Kesihatan”, exhibit D28 which was filled up by Dr. Razuin, PW23. PW4 agreed that may of the columns in the form was not filled up and in D28 it was stated attempted sodomy and attempted oral sex.

Dr. Razuin bt. Rahimi was called as PW23. She was the one who prepared D28. She was the medical officer at the Medical Forensic, Kuala Lumpur Hospital at that time. At 7.30 p.m. on 28 June 2008 she was directed by Dr. Siew to be present at OSCC. PW23 arrived at the OSCC at 8.30 p.m. There she met DSP Judy Blacious. DSP Judy Blacious told PW23 that there was a sodomy case involving Mohd Saiful Bukhari as the complainant and Dato’ Seri Anwar Ibrahim. DSP Judy then introduced PW1 to PW23. PW23 interviewed PW1. PW1 told PW23 he has been sodomised and the last incident happened on 26 June 2008 at about 3.15 p.m. PW23 asked PW1 whether there was penetration, ejaculation occurred and lubricant used. PW1 replied there was penetration, ejaculation occurred and lubricant was used.

Subsequently PW2, PW3 and PW4 came to examined PW1. PW23 remain with PW2, PW3 and PW4 while examining PW1. PW23’s function was to interview PW1 and taking notes while PW1 was being examined by PW2, PW3 and PW4. D28 was prepared by PW23.

The prosecution then called Dr. Seah Lay Hong, PW5. She was attached at the Chemistry Department Petaling Jaya as a government chemist. She testified that at 7.55 p.m. on 30.6.2008 she received from DSP Jude Blacious 12 envelopes respectively marked B, B1, B2, B3, B4, B5, B7, B8, B9, B10 and B11, that is exhibit P31-P42. All were sealed with PDRM 330 seal. PW5 issued acknowledgment receipt, P30. PW5 then handed envelope marked B11 to

Mr. Mohan a/l K.P. Gangadharan for toxicology analysis. Envelope marked B, B1, B2, B3, B4, B5, B7, B8, B9, B10 and B11 were registered with laboratory number (PJ) FOR 6334/08-0.

At 4.45 p.m. on 01.07.2008 PW5 received from PW25 another 8 exhibit as follows :
1.     Six envelopes respectively marked “A”, “A3”, “A4”, “A5”, “A6”, and “A6” and sealed “Polis Di-Raja Malaysia 330” i.e. exhibit P43, P44, P45, P46,     P47 and P48;
2.    One package marked “A1” sealed “Polis Di-Raja Malaysia 330” and     “Forensic Polis Di-Raja Malaysia” i.e. exhibit P49; and
3.    One package marked “A2” and sealed “Polis Di-Raja Malaysia 330” and “Forensic Polis Di-Raja Malaysia” i.e exhibit P50.

PW5 issued exhibit P51 i.e. the acknowledgment receipt for all 8 exhibit above. These exhibits were registered with laboratory number (PJ) FOR 6334/08-2.

Upon examining envelope B, B1. B2, B3, B4, B5, B6, B7, B8, B9, and B10, PW5 found inside:
a)    B –   a plastic packet i.e. exhibit P31A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6A;
b)    B1 – a plastic packet i.e. exhibit P32A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6B;
c)    B2 – a plastic packet i.e. exhibit P33A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6C;
d)    B3 – a plastic packet i.e. exhibit P34A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6D;
e)    B4 – a plastic packet i.e. exhibit P35A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6E;
f)    B5 – a plastic packet i.e. exhibit P36A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6F;
g)    B6 – a plastic packet i.e. exhibit P37A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6G;
h)    B7 – a plastic packet i.e. exhibit P38A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6H;
i)    B8 – a plastic packet i.e. exhibit P39A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6I;
j)    B9 – a plastic packet i.e. exhibit P40A inside which was a plastic receptacle containing a swab stick i.e. exhibit P6J; and
k)    B10 – a plastic packet i.e. exhibit P41A inside which was a FTA card labeled Mohd Saiful Bukhari bin Azlan bearing blood stain specimen i.e. exhibit P6K.

The plastic receptacle P6A-P6J and P6K were respectively sealed with “KEMENTERIAN KESIHATAN MALAYSIA, JABATAN PERUBATAN FORENSIK HOSPITAL KUALA LUMPUR” security labels  and similarly labeled “Mohd Saiful Bukhari bin Azlan”. PW5 found the presence of semen on swab B5, B7, B8 and B9. No semen was detected from swab B, B1, B2, B3, B4, and B6.

Examination on package marked A, and A1-A7, PW5 found inside:
a)    A –   an envelope (sealed “FORENSIK POLIS DI-RAJA MALAYSIA”) i.e. exhibit P43A containing a strand of pubic hair taped on a paper i.e. exhibit P43B;
b)    A1 –  a carpet i.e. exhibit P49A bearing no seminal stains;
c)    A2 –  a duvet i.e. exhibit P50A bearing no seminal stains
d)    A3 –  a pair of black trousers i.e. exhibit P12 bearing seminal stains at two spots which PW5 marked as A3(a) and A3(b) i.e. exhibit P12A and P12B;
e)    A4 – a long-sleeved blue and white striped shirt (‘Ralph Lauren’ label) bearing no detectable seminal stains i.e. exhibit P11;
f)    A5 – a dark blue underwear (‘Levi’s’ label) bearing no detectable seminal stains i.e. exhibit P15;
g)    A6 – a grey underwear (‘Levi’s’ label) i.e. exhibit P14 bearing seminal stains at two spots which PW5 marked as A6(a) and A6(b) i.e. exhibit P14A and P14B; and
h)    A7 – a long-sleeved green shirt (‘G2000’ label) bearing no detectable seminal stains i.e. P13.

PW5 carried out DNA testing using Multiplex Polymerase Chain Reaction technique on:
a)    swabs P6A – P6J;
b)    blood specimen P6K;
c)    hair P43B; and
d)    seminal stains on P12 and P14.

The DNA typing results indicated the following:
a)    The DNA profiles derived from the seminal stains (spots A3(a) and A3(b) of trousers A3 distinguishes one common male contributor having a DNA profile matching the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari bin Azlan”).
b)    The DNA profiles derived from the seminal stains of underwear A6 distinguished:
i)    one male contributor from semen spot A6(a) with a DNA profile matching the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”);
ii)    two male contributors from semen spot A6(b), one contributor with a DNA profile matching the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and one other unknown male contributor whom PW5 named as “Male Y”.
c)    No foreign source DNA was derived from swab B, B1, B2, B3, B4 and B6 (all labeled “Mohd Saiful Bukhari Bin Azlan). Swabs B, B1, B3, B4 and B6 indicated a common male-origin DNA profile concordant with the profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”). Swab B2 indicated no DNA profile.
d)    The DNA profile derived from swab B5 (labeled “Mohd Saiful Bukhari Bin Azlan”) consisted of a mixture of male DNA types concordant with being contributed by the donor of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”), “Male Y” and one other male contributor.
e)    The DNA profiles derived from swab B7 (labeled “Mohd Saiful Bukhari Bin Azlan”) consisted of ale DNA types from two individuals, one having DNA profile matching that of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and one matching the DNA profile of “Male Y”.
f)    The DNA profiles derived from swab B8 (labeled “Mohd Saiful Bukhari Bin Azlan”) indicated one dominant male contributor concordant with the DNA profile of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and “Male Y” as a minor contributor.
g)    The DNA profiles derived from swab B9 (labeled “Mohd Saiful Bukhari Bin Azlan”) consisted of ale DNA types from two individuals concordant with being contributed by the donor of bloodstained specimen B10 (labeled “Mohd Saiful Bukhari Bin Azlan”) and “Male Y”.
h)    Hair A indicated no DNA profile.

Prosecution’s 6th witness was Pn. Nor Aidora Binti Saedon. She was also a chemist attached at Jabatan Kimia Malaysia Petaling Jaya. PW6 testified that on 17th July 2008 at 6.56 p.m. she received from investigating officer DSP Jude Blacious a/l Pereira :
a)    an envelope marked “D” i.e. exhibit P57 containing a stand of hair taped onto a piece of white paper i.e. exhibit P57A;
b)    an envelope marked “D1” i.e. exhibit P58 containing a white toothbrush i.e. P58A;
c)    an envelope marked “D2” i.e. exhibit P59 containing a ‘Good Morning’ towel i.e.P59A bearing one strand of hair which PW6 collected and marked as D2(a) i.e. exhibit P60; and
d)    an envelope marked “D3” i.e. exhibit P61 containing an empty ‘CACTUS’ mineral water plastic bottle i.e. P61A,

Using the PCR technique, PW6 carried out DNA profiling analysis on swab from the toothbrush (exhibit P58A), swab from the towel (exhibit P59A), swab from the bottle (exhibit P61A), the hair (exhibit P57A) and also the hair D2(a) found on the towel (exhibit P60A).

DNA profiles were successfully developed from the swabs from toothbrush, towel and the bottle but not from the hairs. These DNA profiles matched each other indicating that the DNA identified originated from the same source. PW6 then compared the DNA profiles she obtained with that obtained and reported by Dr. Seah Lay Hong in her chemist report, exhibit P25. PW6 found DNA profile developed from the swabs of toothbrush, towel and bottle to match with the DNA profiles of “Male Y” reported by Dr. Seah Lay Hong in her report, exhibit P25 thus indicating that the DNA identified originated from the same source.

En. Amidon Bin Anan, PW15 was the Head of the Crime Scene Investigation at Polis Di-Raja Malaysia Forensic laboratory. He testified to the effect that on 30th June 2008 he was asked by investigating officer DSP Jude Blacious to go to unit 11-5-1 and unit 11-5-2 of the condominium. From unit 11-5-1 PW15 collected a strand of hair (exhibit P43C) and placed it in envelope (exhibit P43). At unit 11-5-2 PW15 seized a carpet (exhibit P49A) and duvet (exhibit P50A). Carpet (exhibit P49A) was wrapped with brown paper (exhibit P49). Duvet (exhibit P50A) was wrapped with exhibit P50. All the exhibit were then handed to the investigating officer DSP Jude Blacious.

At 11.40 a.m. 17th July 2008 PW15 went to lock-up cell of D9, IPK Kuala Lumpur. He found on the floor a strand of hair (exhibit P57A) which he put tag number “4”, a white toothbrush (exhibit P58A) which he put tag number “5”, and a white ‘Good Morning’ towel (exhibit P59A) which he put tag number “6”. On the wall near the toilet of the lock-up cell was a mineral water bottle (exhibit P61A) which he put tag number “7”.

PW15 then without touching or removing the items found in the lock-up cell instructed L/Kpl Hazri, PW14 to take photographs of those items. PW14 took 12 photograph i.e. P78A-L of those items.

PW15 then instructed Insp. Nurayuni, PW16 to prepare 4 envelopes i.e. P57, P58, P59 and P60 and to write the particulars of the items in front of the said envelopes. The envelopes were marked “4”, “5”, “6” and “7” respectively.

PW15 then received all envelopes from PW16 and PW15 personally placed the hair in envelope marked “4”, toothbrush in envelope marked “5”, ‘Good Morning’ towel in envelope marked “6” and the mineral water bottle in envelope marked “7”. PW15 then signed at the back of the four envelopes and sealed all the said envelopes. PW15 confirmed that the four envelopes which contained the items found in the lock-up cell were as shown in photograph no. 13 and 14 of exhibit P78.

On the same day, 17th July 2008 at 12.40 p.m. PW15 handed all exhibit to DSP Judy Blacious at IPK Kuala Lumpur. PW15 and PW25 then signed a handing over form i.e. exhibit P80.

PW17, DSP Yahya Bin Abdul Rahman was the officer in-charge of the lock-up D9, IPK Kuala Lumpur. He testified that there was only one cell at D9, IPK Kuala Lumpur. On 16th July 2008 at 11.05 p.m. the accused was brought in the cell. He was taken out on 17th July 2008 at 8.00 a.m. PW17 testified that the accused brought along a mineral water bottle and two towels when he was brought into the cell. The accused was the only occupier of the cell during that period.

Being the officer in-charge PW17 visited the lock-up from time to time. The [] of the visit he gave to L/Kpl Nik Rosmady Bin Nik Ismail, PW18 who was on duty guarding the lock-up a package of ‘Good Morning’ towel, a toothbrush, toothpaste and a bar of soap to be handed to the accused.

On 17th July 208 after the accused was brought out of the cell PW17 saw ‘Good Morning’ towel and toothbrush on the cell’s floor while the mineral water bottle was on the toilet wall as shown in photograph P78. PW17 then instructed the policemen on duty to lock up the cell and not to allow anybody to touch any of the things in the cell.

L/Kpl Nik Rosmady, PW18 testified to the effect that he was on duty to guard the lock-up at D9 on 16th July 2008. He reported for duty on 16th July 2008 at 1.00 a.m. when he reported for duty there was no detainee in the lock-up.

At 11.05 p.m. 16th July 2008 the accused was brought into the cell. PW18 then received from PW17 a plastic packet containing a towel, a toothbrush, toothpaste and a bar of soap. He handed this package to the accused. The accused took the package and put on the cell floor. PW18 finished his duty at 1.30 a.m. on 17th July 2008. His duty was taken over by Konstabel Mohd Azry Bin Mohd Toyib, PW19. Before ending his duty PW18 check the lock-up and saw the accused was still inside the cell.

PW19 was on duty until 7.25 a.m. 17th July 2008. His duty was taken over by L/Kpl Mohd Jasni Bin Jaafar, PW20.

PW20 testified that he reported for duty at 7.26 a.m. 17th July 2008. He saw the accused was in the cell. He saw the accused went to the toilet and brushed his teeth. At 8.10 a.m. the accused was brought out from the cell. PW20 then lock the cell.

Other than the witnesses mentioned above the prosecution also called PW8, PW9, PW10, PW11, PW12 and PW13. Their evidence was in relation to installation, seizure and handling of CCTV recording at the guardhouse and also at the management office of the condominium. From the recording it was shown vehicle including that driven by PW1 were seen entering and leaving the condominium. From the recording of the CCTV around the lift area it was shown individual including PW1 used the said lift.

Ahmad Humaizi Bin Awang, PW22 an officer from Road Transport Department gave evidence relating to the registered owner of vehicle recorded in the CCTV entering and leaving the condominium. One of the car bearing registration number WMK6 was registered in the name of Anwar Bin Ibrahim, no. kad pengenalan 470810-07-5095.

Jude Blacious a/l Pereira, PW25 was the investigating officer of this case. He testified inter alia he was on duty 28th June 2008 who was present at OSCC when the three doctors examined PW1. At 12.45 a.m. on 29.6.2008 he received from PW3 plastic package i.e. exhibit P27 containing exhibit P6A-P6L while in the same room. He brought back exhibit P27 containing exhibit P6A-P6L to his office and kept it in the cabinet in his office at IPK Kuala Lumpur. He then locked the cabinet.

At 7.30 p.m. on 29.6.2008 at his office he received from PW1 KY Cream (exhibit P4) as stated in search list (exhibit P10). He also received a long-sleeved shirt (exhibit P11), a pair of black trousers (exhibit P12), a long-sleeved shirt (exhibit P13), a grey underwear (exhibit P14) and a dark blue underwear (exhibit P15) from PW1. This seizure was recorded in the search list (exhibit P7, P8 and P9). These entire exhibit were kept in his cabinet at his office.

On 30.6.2008 at about 9.00 a.m. PW25 took out exhibit P27 containing exhibit P6A-P6L from his cabinet. He opened exhibit P27 and put all the containers (exhibit P6A-P6L) in envelope as follows:
a)     P6A – in envelope which he marked “B”
b)    P6B – in envelope which he marked “B1”
c)    P6C – in envelope which he marked “B2”
d)    P6D – in envelope which he marked “B3”
e)    P6E – in envelope which he marked “B4”
f)    P6F – in envelope which he marked “B5”
g)    P6G – in envelope which he marked “B6”
h)    P6H – in envelope which he marked “B7”
i)     P6I – in envelope which he marked “B8”
j)    P6J – in envelope which he marked “B9”
k)    P6K – in envelope which he marked “B10”
l)    P6L – in envelope which he marked “B11”.

On the same day at 7.55 p.m. PW25 handed over all the envelopes with the content to Dr. Seah at the Chemistry Department for analysis. Together with the envelope was form POL 31, exhibit P24. PW25 was given receipt, exhibit P30 by Dr. Seah acknowledging receiving those exhibit.

PW25 further testified that on 30 June 2008 at around 3.05 p.m. he was at unit 11-5-1 and unit 11-5-2 with En. Amidon Bin Anan, the Head of Crime Scene Investigation at the Polis Di-Raja Malaysia Forensic  laboratory. PW25 received from PW15 envelopes (exhibit P4) containing a strand of hair (exhibit P43B) at unit 11-5-1, a paper package (exhibit P49) containing carpet (exhibit P49A) and package (exhibit P50) containing duvet (exhibit P50A) which were collected from En. Amidon at unit 11-5-2.

On 1.07.2008 PW25 marked the envelopes containing a strand of hair as “A”, package containing carpet as “A1”, package containing duvet as “A2”, envelope containing black trousers as “A3”, envelope containing a long-sleeved shirt as “A4”, envelope containing dark blue underwear as “A5”, envelope containing grey underwear as “A6” and envelope containing green long-sleeved shirt as “A7”.

On the same day at 4.45 pm, PW25 handed this exhibits to Dr. Seah. Accompanying the exhibits was POL 31, exhibit P29. He was given receipt, exhibit P51 as the acknowledgment. All those exhibits that were handed over to

PW5 were return, this time were chemist seal to P25 on 7th July 2008 at 11.30 am together with chemist report, exhibit P25.

PW25 received 2 hard disk, exhibits P76 and P77 on 30.6.2008 from residence manager; Encik Haris bin Mohamad, PW12. He marked Hard disk 1 and Hard disk 2. These two hard disks were then handed over to Chief Inspector Fauziah, PW8 at Forensic Laboratory at IPD Cheras on 3.7.2008 at 10.15 am. These 2 hard disks were subsequently returned to PW25 on 24.9.2008.

PW25 also testified at 12.40 noon, 17 July 2008, at the lock up of D9 IPK Kuala Lumpur, he received from PW15 exhibit P57A: a hair strand, a white toothbrush: exhibit P58A, a white Good Morning towel: exhibit P59A, and a mineral water bottle: exhibit P61A. All these exhibits were in the envelopes exhibit P57, P58, P59 and P61 respectively which were sealed with PDRM Forensic seal. PW25 put his marking on those exhibits as “D”, “D1”, “D2” and

“D3” respectively. On the same day, at 6.56 pm, PW25 handed these exhibits to Puan Nor Aidora Saedon for analysis. On 22.7.2008 received that from PW6 these exhibits which were sealed with chemist seal together with chemist report (P52).

Now, it is time for the decision at the end of the case for the prosecution. At the close of the prosecution’s case, what was needed to be proved is a prima facie case. Under Sec 180(4) of Criminal Procedure Code, a prima facie case is said to be made out when the prosecution had adduce credible evidence proving each ingredient for the offence which if unrebutted or unexplained would warrant a conviction. As being held in the case of Looi Kow Chai & Ors v PP [2003] 1 CLJ 734, in determining whether the prosecution had successfully establish a prima facie case or not, the court must subject the prosecution’s evidences to maximum evaluation. It was held in that case, and I quote:
“The correct test to be applied in determining whether a prima facie had made out under Section 180 of Criminal Procedure Code was that as encapsulate in the judgment of Hashim Yeop Sani J (as he then was) in Datuk Mokhtar

Hashim & Anor v PP. Therefore a judge sitting alone under Section 180 of Criminal Procedure Code must subject the prosecution’s evidences to maximum evaluation and ask himself a question: if I decided to call upon the accused to enter defence, and he elects to remain silent, am I prepared to convict him on the totality of evidence contained in the prosecution’s 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 be called did not mean that the prosecution had to prove the case beyond reasonable doubt at this intermediate stage.

In our case, the accused is charge committing on PW1 carnal intercourse against the order of nature. To prove a prima facie case, the prosecution needs to prove that on 26th June 2008, between 3.01 pm and 4.30 pm at Unit 11-5-1 Desa Damansara Condominium, the accused voluntarily introduced his penis into PW1’s anus. The prosecution relied on PW1’s evidence to prove its case where PW1 clearly testified that he was at the place mentioned in the charge. While PW1 was there, the accused introduced his penis into PW1’s anus until the accused ejaculated. This evidence from PW1 if accepted clearly established 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 and truthful witness and whether his evidence as to what transpired between him and the accused at the Unit 11-5-1 was true and could safely be relied upon.

If the court finds that PW1 not to be a credible witness, then the accused has to be acquitted without have to look at the corroborative evidence to support PW1’s evidence. In the case of Director of Public Prosecutor v Killbourne

[1973] 1 ALL ER, Lord Hillsome said at page 425:

“Corroboration is only required and afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness’s testimony should be rejected and the accused acquitted. Even if it could be found that evidence of capable of being corroboration in other’s testimony, corroboration can only be afforded to or by a witness which is otherwise to be belief. If a witness’s testimony falls or insufficient, the question his needing or capable of corroboration does not arise.”

Realizing the fact that the charge against the accused is whether the evidence of PW1 could be accepted or not, it was not surprised defence had either in cross examination of PW1 or in the submission tried to play a picture of PW1 as someone who had zero credibility, and thus his evidence could not be belief and must be rejected. PW1 was subjected to lengthy cross examination which sometimes bothering to a harassment. It was put to him by the defence counsel that he was not a good muslim, he came from a broken family, he was even labeled a traitor when he admitted for being a Barisan Nasional’s supporters but voted for PKR’s candidate on the last general election.

With greatest respect to the defence I found that all these are irrelevant and merit no further consideration in determining PW1’s credibility. However upon raised by Mr. Karpal in his submission with regard to PW1’s credibility merit careful consideration. Encik Karpal submitted while PW1 submitted that the evidence occurred without his consent PW1 had never try to escape although he had ample opportunity to do so. PW1 instead follow all the instruction given by the accused. PW1’s act of eating and drinking after the incidents, did not try to get help from the occupier at 11-5-2, or to the security guard, did not immediately lodge a police report, and attended PKR’s function on the next day, did not reflect on the attitude of someone who had been sodomised  by the accused. Therefore, according to the learned counsel, PW1 had lied when he said in his police report the incident occurred without his consent.

Thus, the entire evidence of PW1 could not be believed and must be rejected.

Learned counsel urged the court not just reject PW1’s evidence, but also to charge PW1 under Section 196 of Penal Code. In other words, what the defence was saying is that since PW1 testified that the incident performed on him was without his consent, but at the same time he failed to run away from the place of incident, failed to ask for help from the occupier of unit 11-5-2, did not tell it to the security guard, and did not lodge a police report immediately, it follows that PW1 would not only lying on insisting that he had not consented to be sodomised, but he also fabricated false evidence with intention to procuring the accused’s conviction for an offence of sodomy which never took place. I find it is not tenable to use PW1’s failure to escape when he had the opportunity, failure to seek help or failure to complaint to the security guard as indicative that the offence did not take place.

Under normal circumstances, such failure would be construed to mean that the incident was indeed took place, but it was consensual which was not relevant in our case. And in any event, PW1 was never asked to explain why he did not run or seek help from the occupier of Unit 11-5-2 or complaint to security guard or make police report immediately. However from the established facts, borne out by the evidence of PW1 it was not difficult to understand why PW1 had acted the way he did though he insisted that he did not consented to be sodomised.

PW1 was a young man aged 22 years old under the employment of the accused. He was not just any employee, but the accused’s personal assistant who had to deal directly with the accused. PW1 idolized the accused since he was a child. He like working with the accused and found him to be charismatic. The accused was generous with PW1 and PW1 was given a special treatment by the accused like presented him with a suit even he was working there less than 2 months. He also was given preferential treatment when he was allocated a room in the office amongst senior colleague.

The interview with the doctors, in particular, Dr. Razuin and from PW1’s own evidence suggested on the incident of 28th June was not something unaccepted. PW1 had reported to various people before but no one advise him to lodge a police report and some were even skeptical. In fact the people like Encik Ezam, Mumtaz and his uncle himself, even discourage PW1 from lodging a police report because they were concerned about PW1’s future. The people in Unit 11-5-2 were all accused’s friends.

Based on those facts and circumstances, PW’s failure to run away to complaint to people in Unit 11-5-2 or to lodge a police report is understandable. It could not be a basis to find that PW1 is not a credible witness. After finding PW1 credible was not affected by his failure to run away, seek help from the occupier of Unit 11-5-2 or to lodge a police report immediately, the next question is whether the evidence itself given by PW1 showing that the accused had introduced his penis into PW1’s anus could be accepted as credible, and is it safe for the court to rely on it to ask the accused to enter his defence. In determining this issue, it is imperative to determine from our side whether there was an opportunity for such act to take place. This is because, without the opportunity, this incident would not occur. (See Sarkar’s Law Evidence page 218). Evidence affording the opportunity for the offence to take place can be established firstly from the relationship between PW1 and the accused. It was not in dispute PW1 was the accused’s personal assistant. In that capacity, he had to manage the accused work’s schedule and he had to accompany the accused in meeting. It was the accused on 25th June 2008 directed PW1 to be present at Desa Damansara Kondominium on 26th June 2008.
On 26th June 2008, 10.30 am, the accused reminded PW1 to go there to discuss work schedule. In between 12.15 to 12.30 on 26th June, the accused called his Chief of Staff Ibrahim Yaakob, PW23 that he had left a document in an envelope required in the meeting behind, in the office. PW1 was then asked by Ibrahim Yaacob to send the envelope to the accused who was then having a meeting at 11-5-2 of the said condominium. The CCTV showed that PW1 were in fact went to the said condominium. This fact which was not disputed showed that the accused and PW1 were in the same vicinity during the time period mentioned in the charge. Thus, affording an opportunity for the offence mentioned in the charge to occur. Presence of opportunity however did not necessarily mean that the incident took place.

In Sarkar’s Law Evidence 16TH Edition page 218 stated, the judge must be on his gut, against dumping hastily from opportunity for to commission of a crime. There can be no crime without opportunity but that was a [] between an opportunity and commission.

In our case, besides 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 said fastly and consistently in detail on how the accused had introduced his penis into PW1’s anus with the aid of the lubricant. Nothing came out from the lengthy cross examination on PW1 or from the evidence of other prosecution’s witnesses that could suggest what PW1 had told the court that his evidence was something which is not probable. I find PW1’s evidence remains intact. He had truthfully and without embarrassment or exaggeration in his evidence narrated in [] 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 ingredients that are required to prove a charge against the accused.

In PP v Mohd Ali at page 528, in the absence of contradiction, however, and in the absence of any elements of inherent probability, the evidence of any witness, whether police witness or not  to give evidence of affirmation should be normally be accepted. However for cases involving sexual offences like in our case it is desirable though not technically essential to look for corroborative evidence to support the complainant’s evidence.

In PP v DSAI [2001] 3 MLJ, Ariffin J had occasion to see at page 267, nevertheless in a case of this nature which is a sexual offence, corroboration of Azizah’s evidence which desirable though not technically essential and the court to give sufficient attention to the matter. In the same case, Ariffin J after referring to [] All ER 1962 375 which stated “a charge in 377 is one very easy to bring and very difficult to refute, and in the evidence in support of those charge must be very convincing. The evidence of such charge must also be corroborated. It is said that it is unsafe to convict on the uncorroborated testimony of whom the said complaint is said to be committed on, unless for any reason that testimony is of special way (see []).”. “It is trite law that complainant evidence on the said offence required corroboration, although a conviction founded upon an uncorroborated evidence of the complainant is not illegal provided that the presiding judge must warned himself of the danger of convicting uncorroborated evidence. ”(see Chiu Nang Hong v PP).

The object of corroboration as explained by Raja Azlan Shah (as Royal Highness then was) in PP v Datuk Haji Harun bin Idrin  [1977] 1 MLJ 15 at page 19, I quote,

“The object of corroboration is not of doubt to satisfy the court that the witnesses are telling the truth and it is safe to act upon them. It is not necessary that the corroboration could be of the actual commission of the crime, for then that would be an independent commission of the offence. It would be enough corroboration for the offence of relevant circumstances connecting the accused with the crime.”

It was contended by the defence that PW1 was not a truthful witness and his evidence must be rejected and the court need not have to look for the corroborative evidence. As I had stated earlier in this judgement, 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 to corroborate PW1’s evidence. There was no dispute that the accused had directed PW1 to go to said Condo on 26th June 2008 at about 2.15pm to discuss his work schedule. PW1 testified he did go the condo as directed.

Encik Ibrahim Yaakob (PW24) testified that the accused called him about 12.15pm to deliver the envelope to him at the condo. PW1 was then directed by PW24 to deliver the said envelope to the accused. PW1’s evidence was shown that he delivered the said envelope at about 2.45 pm on 26.6.2008 and he was there between 3.01 pm and 4.30 pm at unit 11-5-1 that day. I find PW24 corroborated PW1’s evidence that PW1 and the accused were at the condominium affording not only opportunity but also confirming the vicinity of time.

PW1 arrived at the condo and take a lift to 5th floor recorded on CCTV further provided independent corroborative evidence supporting the presence of PW1 at the said condo. PW1 driving a Fiat van bearing registration WPK 5925 which according to the Head Unit Record of Kuala Lumpur, Transport Department, Encik Ahmad Humaizi bin Awang, belonging to the father of PW1’s fiancée at that time was seen entering the compound of Desa Damansara Condominium, at 14.47.44 on 26th June 2008 as recorded by Camera 1 on Hard Disk 1 (P68C).

According to PW11, Mohd Sharizuan an analyst at Cyber Security, the time shown on the said harddisk was late by 9 minutes 15 second compared to Malaysian Standard time. To determine the real time, 9 minutes and 15 second must be added to the time shown on the hard disk. This make the time PW1 entered the compound of the said condominium at 2.56.59 pm.

PW1 was then seen taking a lift to 5th floor at 14.42.56. The same thing happened, according to PW1 Mohd Zabiril Adil the time shown at Hard Disk 2 (exhibit P67C) located at management office was late by 19 minutes when

compared to Malaysian Standard Time. The time PW1 came out from the lift was at 3.01.56 pm. PW1 was then seen entering the lift at 5th floor to leave the building at 15.11.38 as recorded by Camera 7 on Hard Disk 2. The actual time PW1 leave the building was 4.30.38pm.

The car bearing registration WPK 5925 drove by PW1 was seen leaving the compound of condo at 16.35.05 as recorded by Camera 5 on the same day. The actual time PW1 seen leaving the condominium is 4.44.20. From recording of Camera 4 on Hard Disk 1, the car bearing the registration number of WMK 6, which according to PW22 belong to the accused was seen arriving at the said condo at 12.19.58 which was 12.29.30 for the actual time.

Someone resembling the accused was seen taking the lift from level P1 to 5th floor and exited the 5th floor at 12.15.11 as recorded by CCTV which was 12.24.11pm (the actual time). The same person was seen leaving the 5th floor and took the lift to P1 at 17.14.54 as recorded by CCTV which was 5.32.54 pm (the actual time). The car bearing registration number WMK 6 left the compound of condominium at 17.13.23 as recorded by CCTV which was 5.13.23 pm. The actual time was 5.39.44pm.

Based on the said evidence the learned counsel for the defence submitted that the evidence did not show PW1 did in fact go to 5th floor. According to the learned counsel, during the period PW1 was seen arriving then leaving the said condominium, PW1 was in fact hiding at one of the floors. I find it is hard to accept this submission in the light of PW1’s clear evidence that he went to the 5th floor and CCTV showed the same. I find the submission by the counsel is nothing but mere speculation without any basis to support it.

Based on the above evidence, I find that the accused and PW1 were at the vicinity of the crime scene within the period mentioned in the charge. The presence of the accused at the vicinity of the crime scene and the proximity of the time to the commission of the offence should goes to the opportunity for the offence to take place. More importantly there are corroborative evidence, that means support to the credibility to PW1’s evidence.

Corroborative evidence as to what transpired between the accused and PW1 at Unit 11-5-1 could be found in the medical history of PW1 as evidence by Dr. Razuin who interviewed PW1 and Dr. Siew. She had been informed by PW1 that he had been sodomised by the accused. Lubricant was used and the accused fondled PW1’s breasts. PW1 informed PW23 that there was penetration and ejaculation as well. These are noted and reflected in the pro forma report, ID28.
Likewise Dr. Siew, PW3 also testified that he was informed by PW1 that he was sodomised by a high profile public figure for at least two months and the last incident happen was on 26th June 2008. When asked by PW3 if the condom used, PW1 said no condom was used. PW1 affirmed that lubricant was used and there was penetration. He also confirmed that ejaculation was happen.

The history given by PW1 was also noted in the medical report (P22) which was prepared by the 3 doctors, PW2, PW3 and PW4. It is stated under the heading ‘History’ [read]. This medical history narrated by PW1 and noted by medical doctors PW2, PW3 and PW4 is corroborated evidence.

The more crucial evidence which corroborated evidence of PW1 on the factum of penetration by the accused’s penis into PW1’s anus was the evidence of the medical doctors PW2, PW3, PW4 and chemist, PW5. PW2, PW3, PW4’s evidence showed swabs were taken from PW1. Among the swabs is P6F taken from peri anal region, P6H and P6I taken from high rectal region and P6J taken from low rectal region. These swabs were put in the containers sealed and handed to IO (PW25) to be handed to PW5 for analysis.

From these swabs, PW5 confirmed the presence of semens. PW3 testified according to forensic principle, every contact leaves traces and in this case swabs P6F, P6H and P6I and P6J were taken from the rectal of PWI in which the semens were found. It means, there had been a male organ contacting the rectal region leaving sperms in that area. This was a clear evidence of penetration.

All 3 doctors further testified that based on the history of PW1, and the sites where the swabs of B5 contained swab of peri anal region of PW1, in B7 and B8 which contained high rectal swab from PW1, and B9 which contain low rectal swab from PW1 that could positively conclude there was a penal penetration on PW1’s anus. PW2, 3 and 4 were subjected to lengthy cross examination including on their finding which showed no scaring, fissures or any signed of recent injury to the exterior of PW1’s anus. And also to the conclusion of the summary of the exhibit P22 which stated “No Conclusive Clinical Finding Suggestive of Penetration to the Anus of Rectum, and No Significant

Defensive Wound on the Body”. As to the summary in P22 which stated “No Conclusive Clinical Finding Suggestive of Penetration to the Anus of Rectum and No Significant Defensive Wound on the Body”, PW2, PW3 and PW4

explained did not mean that there was no penetration. Penetration could take place without causing any injury. PW3 and PW4 explained the absence of any injury to the anus could happen due to 1) the duration to see the doctors,

2) no undue force used, and 3) the used of lubricants.

In Chapter 41 under Clinical Forensic Evidence, the author explains that ‘non consenting intercourse need not produce any objective signs of injury to genital [] or anus. In the same chapter but dealing with the penetration to the anus, the author explains that penetration to the anus; either as consenting or non consenting act rarely produces injuries in adults. However, forceful unlubricated penetration may produce signs of blunt trauma. Injuries at that sign may include fissure, heamiathorma, and lacerations.

In this case, PW1’s evidence which was recorded in the medical history, noted by PW23 showed lubricants was in fact used. Based on PW1’s testimony, and what he told doctors during the history taking, no undue force was used by the accused and this was reflected in pro forma D28. Hence I find, nothing inconsistent in the doctor’s finding that there was no scarring, fissure or any signs of injury to that external area of PW1’s anus.

The defence also submitted that the evidence of PW2, PW3 and PW4 should be rejected because they were not experts. On the issue of expert witness, Hashim Yeop J in Dato Mokhtar bin Hashim v PP explain to qualify to you, to give such evidence, the witness must certify the court that he is indeed an expert, that he is specially skilled of enquiry carried out by him. An expert is one who is particularly trained in any art, trade, profession being possessed or particular knowledge concerning the same. The witness must have made a special study of the subject or have acquired special experiences on the subject.

In Junaidi bin Abdullah v PP, Mohd Azmi Supreme Court J said,

“In our view, the test to be applied for the purpose of Section 45 of the Evidence Act is this. First, does the nature of the evidence require special skill? Second, if so, has the witness acquire special skill either by academic qualification or by experience so that he has adequate knowledge to express opinion on the matter.”

Suffian LP in PP v Sulaiman said,

“As to whether or not Mr. Lam is an expert, it is true that this is a preliminary skill to determine, but it is the question upon which in practice [] prevails. This is because, for the expert must be skilled, he may not do so by special study. He may be so by experience and the fact that he did not acquire knowledge professionally goes merely to the weight and not to the credibility.”

In our case, the evidence showed that PW2, is a General Surgeon attested to Hospital Kuala Lumpur. He obtained his MBBS in 1998 and Masters of Surgery in 2007. He started as medical doctors in 1998 and as specialist by

2007. Up to the time he testified to court he conducted examination of anus in about 100 cases, 2 of which are sodomy cases.

PW3, is a professional forensic medical specialist at HKL. He obtained a Bachelor Degree of Medicine and a Bachelor of Surgery from Manipal [] Education, India in 1997. He also holding a [] in Medical Pathologist specialize in

Forensic in 2004. He also undergone training and courses in Human Anatomy [] at University of Tennessee of USA and a special training in sexual assault cases in [] Greece. PW3 conducted between 200 and 300 examination so far and approximately 20 of those cases were sodomy cases. He had also done collection of samples more than hundred times and had given evidence in court before. He had handled about 50 cases of sexual assault.

As for Dr. Khairul Nizam (PW3) he is currently attached to Hospital Putrajaya. Before this, he was attached to HKL. He obtained his Bachelor of [] from Bangalore University India in 1996. He obtained his Master in Medicine specializing in Emergency Medicine in 2006 from the USM. He joined the Emergency and Trauma Department HKL since 2004 until 2008 until he was transferred to Putrajaya Hospital. He had attended over 20 sodomy cases.

Based on the academic qualification and the experience of PW2, PW3 and PW4 and on the authorities I cited above, I find no difficulties in accepting PW2, PW3 and PW4 as expert witness they are qualified and competent not only to conduct examination, take samples of PW1 but also to give interpretation based on their observation during examination of PW1.

Encik Nair, one of the learned counsels to the defence submitted further to the effect that PW2’s evidence as to taking the examination was not reliable. This was because PW2 was not asked and record the bowel habit of PW1 although PW2 admitted and it was crucial to ask it. Thus the counsel urged the court to assume that PW1 to have normal bowel habit of defecating once a day. It was further submitted that PW1 had defecated before he was examined on 28th June 2008 and even if there was at all any traces of semens, seminal fluid as alleged therefore a lot had been all passed out leaving us absolutely nothing even if PW1 managed to hold back defecation, his rectum is said to be []. This according to the counsel contradict PW2’s evidence that he testified on the PW1’s rectum to be empty.

With regard to this issue, it is important to study PW1’s evidence together of that PW2. PW1 clearly testified that he did not pass motion because he wanted to preserve evidence. It was clear that it was a conscious effort of PW1 not to pass motion. PW2’s evidence showed in short that a man could have conscious effort in delay motion. PW2 evidence that he found PW1’s anus is empty when PW1 was examined, he explained that this was because that the lower part of the rectum not a reservoir of feaces. This is restored in the colon until the sigmoid area. All the restored food would be kept there when a mass movement which was a psychological process that happen in which a body tries to expel what [] after it had been processed and [] defecate. But this doesn’t mean that feaces move to the rectum. And if the feaces [], could prevent the feaces from moving from sigmoid to the rectum.

PW2 further explained that specimen labeled high rectal swab was taken in the rectum 9cm from the anus. Counsel suggested that it was impossible that specimen in high rectum because any specimen will lead to mass movement [] and gravity. PW2 did not agree to this suggestion because human bowel was not [] but [] afforded mucosa, so material could still stick there. Not necessary all will come out immediately. Some could be left in the area [] high rectal swab.

I find PW2’s evidence as stated above, given in the cross examination adequately explained the issue raised by Mr. Nair. I found his explanation to be possible. I accept his evidence that he collected P6F from peri anal region, P6H and P6I from high rectal region and P6J from low rectal region of PWI which was subsequently confirmed by PW4 that it contained semens. Hence I find the evidence of PW3 and PW4 who testified based on the location exhibits were collected, there was penal penetration as corroborative evidence at the factum of penetration.

The other crucial evidence to be accepted was further corroboration evidence from DNA evidence from Dr. Seah and Puan Aidora. Dr. Seah testified that she carried out the differential extraction of B7 which was the exhibit P6H the high rectal swab from PW1. The non sperm extract was the single source blood profile which matches the blood sample taken from PW1. The sperm extract was a mixed profile in which the dominant contributor which PW5 had called Male Y. this sperm extract of Male Y was also found in P6I which was another high rectal swab and P6J which was low rectal swab collected from PW1.

Puan Nor Aidora binti Saedon testified that she was given a white toothbrush, Good Morning towel, an empty mineral water bottle, and a strand of hair for analysis. Except for the strands of hair, the DNA profile were derived from the other 3 exhibits, matches each other and from the same origin. PW6 then made a comparison of DNA profile on those items with the DNA profile of Male Y derived by Dr. Seah from the swabs taken from PW1’s anus. PW6 found the DNA profile developed by her matched the DNA profile of Male Y developed by PW5 thus proving that the DNA came from the same source.

The evidence of PW15, PW16, PW17, PW18, PW19 and PW20 collectively showed that the said toothbrush, Good Morning towel, an empty mineral water bottle, and a strand of hair were collected at the cell occupied by the accused. The accused was the last and the only occupant of the cell before the exhibits were collected. When the accused was entering the cell, he brought along a mineral bottle. He was also issued a Good Morning towel, a white toothbrush, a tube of toothpaste and soap. This evidence if accepted that the unknown contributor of semen Male Y found in PW1’s anus came from the accused.

The defence submitted that the evidence from both PW5 and PW6 should be rejected because the evidence given was real with doubt and unexplained scientific details thus make them unreliable. The learned counsel for the defence submitted in short that the reliability of PW5’s evidence was highly questionable for the following reasons:

•    She had departed from the standard guidelines to determine drop out. She was selective on what she considered as stutter.
•    She failed to make available the record of the DNA’s volume used during the PCR process.
•    The samples were contaminated as evidence DNA of Male Y was detected.
•    There was element of degradation in the samples.

It was further submitted that the evidence of PW5 should be rejected on the ground that it is unreliable, then Male Y will be as good as non existence, thus make the PW1’s evidence remain uncorroborated.

In dealing with chemist evidence, the Supreme Court in PP v Lam San had said, with regard to the evidence of the chemist, unless the evidence would be so inherently incredible that no reasonable person can belief that it would be true, it should be accepted as prima facie evidence. As long as the evidence is credible, there is no necessity for the chemist to show what he/she did in his laboratory.

Therefore the issue now is whether the evidence of SP5 and SP6 were not credible. It could not be denied that Dr. Seah Lay Hong appeared in court with impeccable credentials. She is a forensic scientist attest to the Chemist

Department of Malaysia. She is 52 years old and currently heading the Serious Crime Unit. She first obtained the Bachelor of Science (Hons) majoring in Chemistry. She went on to obtain Master of Medical Science and she has a

PHD in Forensic DNA. Her main function at her unit is to undertake and supervise the analysis of serious cases like murder, sexual assault and drug trafficking that require a thorough examination. Her curriculum vitae [] to be extensive. Beside that, she also a member of [] Genetic Society and also a member of Malaysian Forensic Science Society. On average, she received 5-20 cases per month and 10-20 exhibits. She was given evidence in the court about 10 times a year and her evidence to the best of her knowledge had been accepted by the court. She had given a lengthy and detail reasons for the examination and analysis that she had conducted as to the conclusion she had arrived. She had conducted the DNA analysis within the latest techniques. With regard to the issue of allele drop out and how she had treated stutter, she was asked in length in cross examination. She answered every question convincingly. She said that all interpretation of mixture is based on their validation study and experience. With regard to T-value, and when drop out was considered, she said it is of no significant in this case [] mathematical approach and not interpretation. She further explains that Jabatan Kimia

Malaysia had adopted the 50RFU equated to T-Value. PW1’s treatment to stutter range by the defence and also PW6 was also explained that JKM has its own guidelines to determine a stutter. The range of stutter established through a validation studies is 15% to 20% of the real []. The threshold to consider a peak is 50 RFU and stutter not be reported at PCR summary, PW5 also explained that peak height doesn’t affect any conclusion and pull out which occurs in electropherogram due to overloading does not affect the reading of the electropherogram as the pull out does not create the falls of [] of peak. The result will still be accurate. Going through the detail explanation of the analysis and examination conducted by PW5 and her impeccable credential as forensic scientist and she also has PHD in Forensic DNA, PW5 is without doubt an expert especially in the area of DNA analysis. There is no reason for this court to exclude her evidence in this court regarding this case.

Same with Puan NorAidora. She is competent in term of her academic and professional qualification and experience. There is no reason to doubt her finding and opinion. With regard to the possibility of contamination and degradation of the samples examined by PW5 as raised by the defence, the testimony of PW5 showed that she had taken into her consideration the possibility of degradation and contamination. She explained that degradation will always happen in DNA examination and analysis but what is important is whether the degradation is so severe which resulted in the entire DNA had been destroyed and therefore no profile could be obtained or developed.

In this case, where the DNA profile could be developed, it means though there might be some slight degradation but it was not substantial enough to destroy the DNA. In this case, PW5 confirmed that despite the possibility of degradation and contamination, the profile obtained from swabs taken from PW1’s anus was clear and unambiguous. This means the degradation if any was not substantial and of no effect to the quality to the profile of the samples.

With regard to the contamination, the evidence of 3 medical doctors who examined and took swabs, clearly shown that all samples collected from PW1 were immediately placed and sterile in air tight container, labeled, dated and signed by both PW3 and PW1. They were sealed and placed in plastic bag before handed over to PW25 to be handed over PW5 for examination, with the sealed still intact. In the absence of the evidence to show otherwise, I found the possibility of contamination of those samples after they were collected from PW1 to be too remote.

As regard to those samples examined and analyze by PW6, a good profile was obtained. This means that even if there was contamination and degradation, it was insufficient to affect the quality of DNA profile. With regard to contamination, PW6 explained that if there was a contamination, one was unable to see all the 18 alleles at the loci D3S158 and all the traces samples which she was analyze. The reagent blank is still blank thus no contamination to the samples.

Another issue raised by the defence was tempering the evidence by IO, when he opened the plastic packet containing samples collected from PW1. Counsels submitted that this was done with sole purpose to temper the swab taken from PW1’s rectum. Regarding this issue, it is important to remember that DNA profile which was collected, Male Y was sperm extract. This profile was found to match the profile of DNA found of items collected from the cell occupied by the accused.

Most importantly, the items collected from the cells handed to the IO on the 17th July 2008. By that time, the samples taken from PW1 was already with PW5 at the Chemistry Department. The said samples were handed to PW5  on 30th June 2008. Therefore there is no way for the IO to used the DNA samples obtained from the cells to temper with the samples collected from PW1, if that what the defence was suggesting. In any event, the DNA profile found from the items in the cells was contact DNA whereas found in the high and low rectal swab was from seminal extract.

As submitted by learned Senior DPP, where was the IO going to get the seminal sample which was subsequently found to match the DNA profile found in the items used by the accused in the cells.

Based on all the above reasons, I found the prosecution through the evidence of PW1 which had been corroborated in material particularly had proved all the facts required to prove all the ingredients of the charge. I find the prima facie case as defined under Section 180 of Criminal Procedure Code had been made out against the accused. Therefore, the accused is called to enter his defence.

MY:    Much obliged.

YA:    So when can I hear the defence?

(Accused):    Tomorrow.

YA:    Tomorrow holiday.

KS:    We need time My Lord.

MY:    Errr..YA….

YA:    Can I see both of you inside? Now?

MY:    Yes.

[10.47 a.m.] Mahkamah ditangguhkan.

[10.52 a.m.] Kedua-dua pihak masuk ke kamar hakim.
[11.10 a.m.] Kedua-dua pihak keluar dari kamar hakim.

*Kes pembelaan telah ditetapkan pada 6/6/2011 sehingga 30/6/2011*