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Monday, February 8, 2010

Anwar Ibrahim Sodomy I : 2-1 Majority Judgement

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANG KUASA RAYUAN)

RAYUAN JENAYAH NO. 05-6-2003 (W)

ANTARA
DATO’ SERI ANWAR IBRAHIM --- Perayu
Lawan
PENDAKWA RAYA --- Responden

DAN

RAYUAN JENAYAH NO. 05-7-2003 (W)
SUKMA DARMAWAN SASMITAAT MADJA --- Perayu
Lawan
PENDAKWA RAYA --- Responden


Coram :

Abdul Hamid bin Haji Mohamad, HMP
Rahmah bt. Hussain, HMP
Tengku Baharudin Shah bin Tengku Mahmud, HMR


GROUNDS OF JUDGMENT


On 20 May 2004, at the conclusion of submissions by both learned counsel for the Appellants as well as the learned Attorney General for the Respondent, we reserved our judgment. This is now my judgment.

Both the Appellants had appealed against their convictions and sentences to the Court of Appeal. In the first appeal the First Appellant appealed against his conviction and sentence on a charge preferred against him for an offence punishable under section 377B of the Penal Code. On conviction he was sentenced to 9 years imprisonment to commence after he has served his first sentence in respect of his conviction under the first trial.

In the second appeal the Second Appellant appealed against the conviction and sentence on two charges preferred against him. The first charge was for an offence punishable under section 109 read with section 377B while the second charge was for an offence punishable under section 377B. He has been sentenced to 6 years imprisonment with 2 strokes of the rotan for the first charge and to 6 years imprisonment and 2 strokes of the rotan for the second charge. The imprisonment terms are to run concurrently.

Their appeals were dismissed by the Court of Appeal. Hence this appeal.

For the purpose of this Judgment, I shall first consider the four (4) main issues raised by the defence namely,

a) the credibility of Azizan bin Abu Bakar

b) Azizan being an accomplice

c) Corroboration of Azizan

d) Voluntariness of the confession of Sukma – the Second Appellant.

a) The credibility of Azizan bin Abu Bakar

As I see it the credibility of Azizan is of paramount consideration, as there can be no dispute that the entire prosecution case hinges on his evidence.

It is contended by the Appellants that Azizan is not a credible witness for the following reasons :

(i) The dates in the charges were suggested/given by the police and not by Azizan.

(ii) Azizan despite being sodomised went back to work for First Appellant’s wife.

(iii)In the earlier trial, Azizan denied being sodomised by the First Appellant.

(iv) Azizan’s credit should have been impeached.

(v) Azizan is totally unreliable and inconsistent in that the trial Judge commented upon him/his evidence.

(vi) Azizan said he brought these allegations in the open “demi maruah dan agama” but he himself was convicted of khalwat.

(vii)Azizan was bribed.

The law relating to the assessment of the credibility of witnesses is well established. As Lord Bridge of Harwich said in Attorney General of Hong Kong v. Wong Muk Ping (1987) AC 501 at p. 510,

“It is a common place of judicial experience that a witness who makes a poor impression in the witness box may be found at the end of the day, when his evidence is considered in the light, of all the other evidence bearing upon the issue, to have been both truthful and accurate. Conversely, the evidence of a witness who first seemed impressive and reliable may at the end of the day have to be rejected. Such experience suggests that it is dangerous to assess the credibility of evidence given by witness in isolation from other evidence in the case which is capable of throwing light on its reliability …..” (Emphasis added).

In Bhojraj v. Sitaram (1936) ALR 60 PC the Privy Council said that the real test for either accepting or rejecting the evidence of a witness is how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case. The case of Mohd. Ali bin Burut & Ors. v. Public Prosecutor (1995) 2 AC 579 supports the proposition that it is important to bear in mind that in deciding on the guilt or otherwise, a trial court will not usually compartmentalize the evidence. It will make its finding of credibility and reliability in respect of a particular witness against the possibilities, probabilities and certainties emerging from the whole body of the evidence before it.

Furthermore it is trite that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons not to believe him. In P.P. v. Mohamed Ali (1962) MLJ 257, (at page 258) Thomson C.J said this :

“When a Police witness says something that is not inherently improbable his evidence must in the first instance be accepted.”

And in Balasingam v. P.P. (1959) MLJ 193 (at page 194) Ismail Khan J (as he then was) stated :

“After all there is no legal presumption that an interested witness should not be believed. He is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances.”

So what happens when there are discrepancies or contradictions in a witness’ testimony? Would that make him less than credible and lead to an outright rejection of his entire testimony? In Chean Siong Guat v. P.P. (1969) 2 MLJ 63 (at pages 63 & 64) Abdul Hamid J. (as he then was) had this to say :

“Discrepancies may, in my view, be found in any case for the simple reason that no two persons can describe the same thing in exactly the same way. Sometimes what may appear to be discrepancies are in reality different ways of describing the same thing, or it may happen that the witnesses who are describing the same thing might have seen it in different ways and at different times and that is how discrepancies are likely to arise. These discrepancies may either be minor or serious discrepancies. Absolute truth is I think beyond human perception and conflicting versions of an incident, even by honest and disinterested witnesses, is a common experience. In weighing the testimony of witnesses, human fallibility in observation, retention and recollection are often recognized by the court. Being a question of fact, what a magistrate need do is to consider the discrepancies and say whether they are minor or serious discrepancies. If, after con-them. On the other hand, if a magistrate finds that the discrepancies do not detract from the value of the testimony of the witness or witnesses, it would then be proper for him to regard the discrepancies as trivial and ignore them. On the other hand, if a magistrate finds that the discrepancies relate to a material point which would seriously affect the value of the testimony of the witness or witnesses, then it would be his duty to weigh the evidence carefully in arriving at the truth.”

And in Pie bin Chin v. P.P. (1985) 1 MLJ 234 (at page 235), Wan Yahya J (as he then was) said :

“Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcripts of most evidence, when thoroughly tooth-combed by any able lawyer, never failed to yield some form of inconsistencies, discrepancies or contradictions but these do not necessarily render the witness’s entire evidence incredible. It is only when a witness’s evidence on material and obvious matters in the case is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded.

Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake his credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions.”

Thus, the fact that there are discrepancies in a witness’ testimony does not straight away make him (in this case Azizan) an unreliable witness and make the whole of his evidence unacceptable.

Having laid down the legal principles with regard to credibility and how discrepancies on a witness are to be treated in assessing credibility, let us now look at what the learned trial Judge had to say on the credibility of Azizan because of the latter’s inconsistent statements as to the date of the commission of the offence. At page 255 (paragraph C) of his Judgment (2001) 3 MLJ 193, he said :

“In his testimony Azizan said he was confused because he was asked about the months of May 1994 and May 1992 repeatedly as stated above. I find as a fact that he was confused. When a witness is confused, it does not mean he was lying. The naked truth is that he could not remember what he had said. I am satisfied he was not lying. In any event, the issue whether he told the police he was sodomized in May 1994 and May 1992 are not the issues in the current charges against both the accused. The issue is whether he was sodomized by both the accused between the months of January and March 1993 at Tivoli Villa. I therefore rule the credit of Azizan is not affected on this score.”

Then, after considering the evidence of Azizan as to the date of the offence in relation to the evidence of the Investigation Officer – SAC-1 Musa, the learned trial Judge said : (at page 255 paragraph 1 to page 256 paragraph A)

“Be that as it may, the evidence of SAC-1 Musa clearly states that Azizan was consistent in his statements on the issue of sodomy although he was not sure of the exact dates. The relevant dates we are concerned with in the present charges are between the months of January and March 1993. Azizan emphatically said in evidence that he was sodomized by both Dato’ Seri Anwar and Sukma at Tivoli Villa between these dates and he gave the reasons for remembering the dates. This evidence was not successfully challenged. It is therefore established on this evidence that Azizan was sodomized by both Dato’ Seri Anwar and Sukma in Tivoli Villa between January to March 1993. Whether he was sodomized in May 1994 or May 1992 is not relevant as these dates are not in issue to be decided in this case. I see no merits on this contention and the credit of Azizan is not affected on this ground.”

Finally on the issue of the credibility of Azizan, the learned Judge made a firm finding in relation to the ingredients of the charges against both Appellants as follows : (page 258, paragraphs D-I)

“…. he is a wholly reliable, credible and truthful witness taking into consideration the whole of his evidence notwithstanding inconsistencies, discrepancies and contradictions which did not detract the weight and truth of his evidence in relation to the ingredients of the charges against both accused.

Azizan has truthfully and without embellishment, distortion or exaggeration in his evidence narrated in minute detail how he was sodomized by Dato’ Seri Anwar and Sukma at the date and place as stated in the charges against both accused.

…. His description and direct experience of being sodomized completely negatives any probability that Azizan was tutored or coached as claimed by the defence counsel. No reasonable person or judge could on the evidence come to any other finding than the firm and unescapable conclusion that both accused sodomized Azizan gaily whetting their appetites at Tivoli Villa. Only persons directly and actively subjected to these acts of sodomy would be able to narrate the details of the whole episode.

I am of the firm view that Azizan was speaking the whole truth when he said in evidence that he was sodomized at Tivoli Villa between the months of January and March 1993 by both accused as stated in the charge. There is no reason why he should come out with such meticulous details describing the preliminaries sex play indulged in by Dato’ Seri Anwar unless this was true. He has nothing to gain whatsoever but stood to lose everything if his evidence was not true as this would affect his self respect and his good name and standing in the eyes of the public and would also bring embarrassment to his family members. Further one cannot conceive that one would fabricate a serious charge of sodomy against the Minister of Finance and Deputy Prime Minister of Malaysia.”

In conclusion he said,

“It cannot be denied that there are discrepancies in Azizan’s testimony. I have considered these discrepancies earlier and had made my finding on them. Apart from that, I do not find any serious discrepancies that would affect Azizan’s credibility or reliability as a witness of truth on the ingredients of the charges against both the accused.”

The learned Judges of the Court of Appeal agreed with the finding of the learned trial Judge when they said : (at p.214 paragraph 106 – (2004) 1 MLJ)

“Surely therefore it would be wrong in law to wholesale reject the evidence of Azizan just because he faltered in few instances in the course of his testimony. Indeed discrepancies found in the testimony of a witness may be evidence of his truthfulness rather than the reverse (see also Dato’ Mokhtar v. Public Prosecutor (supra).”

As to the significance of the date in the charge, the learned trial Judge stated (at page 249) as follows :

“In any event a date in the charge has never been material. In R v. Severo Dossi (1918) 13 Cr App R 158 (quoted in Law Kiat Lang v. P.P (1996) 1 MLJ 252,) Lord Atkin J observed :

‘From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence’.”

And the Judges of the Court of Appeal agreed with the trial Judge by stating that “there are authoritative decisions of our Courts wherein time and date in a charge were held to be immaterial”. They then referred to the case of Hussin bin Sillit v. Public Prosecutor (1988) 2 MLJ 232, where Mohd. Azmi SCJ has this to say at p.236,

“It should be borne in mind that where the charge relates to only one offence, merely amending the date, place or time in the charge would not necessarily constitute amending the offence, and under section 156 of the Criminal Procedure Code no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission ….’ Clearly, each situation must depend on the facts and circumstances of the particular case in determining whether any amendment as to time, date or place affected before or in the course of the trial entails changing the offence with which the accused is charged into an entirely different offence. There is no reason to suppose that every amendment, either before or after commencement of the trial, must necessarily change the occasion in the original charge into an entirely different occasion so as to exclude evidence pertaining to it from being ‘evidence in support of a defence of alibi’.”

The Court of Appeal also expressed its view on the issue of the date in relation to the charges preferred against the appellants and specifically on the issue of alibi. This is what it says : (at page 199 (2004) 1 MLJ 177)

“On the issue of the amendment to the charges in respect of the date alleged in the commission of the offences subsequent to the notice of alibi, we need only to adopt the view expressed by the majority in the Supreme Court of Canada in the case of Regina v. P (MB) 89 CCC (3d) 289; [1994] CCC LEXIS 2454; 113 DLR (4th) 461, where Lamer CJ opined thus (at p.297) :

“The fact that an accused may have an alibi for the period (or part of the period) described in the indictment does not automatically ‘freeze’ the dates specified in the indictment. That is to say, there is no vested right to a given alibi. Alibi evidence must respond to the case as presented by the Crown and not the other way around”.

Now, in sexual offences, as in this case, the essential ingredients are the sexual act and the identity of the offender. Therefore, it is incorrect to say that the date is a vital ingredient of the charge. In the case of R v. Richard Beynon (1999) EWCA Crim. 1172, where the charges framed against the accused did not have the time and place but only the breath of the period when the indecent assault was alleged to have taken place, the Court of Criminal Appeal of England had this to say :

“We are not saying that that is uncommon; indeed it is very common in allegations and charges of this sort.”

And our own Federal Court in the case of Ku Lip See v. Public Prosecutor (1982) 1 MLJ 194, had said this: (at p.196 – paragraph I)

“With reference to question (1), we are constrained to observe that although the charge has not stated exactly when the offence was committed during the months of May and June 1978 it has nevertheless specifically defined the time and place sufficiently to enable the applicant to answer the charge.”

Furthermore, the learned trial Judge clearly said in his judgment that the evidence of Azizan that he was sodomized between the dates specified in the charge was not successfully challenged. Thus in order to reject this finding of fact by the trial Judge there must be strong and compelling reason to do so. Particularly so, as this finding of fact has been accepted by the Court of Appeal.

It is settled law that very rarely does a higher appellate court interfere with concurrent findings of fact by the courts below. Such view was expressed by the Privy Council in the case of Sattar Buxoo and anor. v. The Queen (1988) 1 WLR 820 PC, an appeal from Mauritius, where it is said at p.824,

“In the present case, however, it is plain that the circumstances of the appeal take it far outside any possible application of the principles in question. No point of law is involved. The only issue before the Intermediate Court and the Supreme Court was whether on the evidence led the defendants had been identified as being among the persons who carried out the serious assault which was undoubtedly perpetrated on the victim Fockeena. The Intermediate Court found that they had been and the finding was upheld by the Supreme Court. The Board could never consider it right to interfere with a concurrent finding of fact of that nature.” (Emphasis added).

And nearer home, that seems to be also the approach of this court as expressed in the recent case of Sri Kelang-Kota – Rakan Engineering J.V. Sdn. Bhd. & Anor. v. Arab Malaysian Prima Realty Sdn. Bhd. & Ors. (2003) 3 MLJ 257 at p.273 where Abdul Malek Ahmad FCJ (as he then was) said,

“In our view, looking at the above cited passages from the judgment of the Court of Appeal and having regard to the fact that the issue that was decided by the Court of Appeal and the High Court was clearly one of fact, there is obviously no merit in the contention of the appellants as found in the grounds of appeal that the Court of Appeal erred in law in deciding as they did. Even assuming for a moment that the Court of Appeal erred in the application of the principles of law to the particular set of facts in the instant appeal, there is no room for this court to reverse the concurrent finding of fact made by the High Court and the Court of Appeal that the appellants were the guilty party in breach of the agreements since it is trite that the appellate court is not prepared to interfere with the concurrent finding of facts made by the courts below as held by this court in Lim Geak Liang v. East West UMI Insurance Bhd. (1997) 3 MLJ 517 at pg. 523.” (Emphasis added).

To sum up, in view of the abovesaid reasons and the authorities referred to earlier, I find myself reluctant to interfere with the finding of fact by both the courts below regarding the credibility of Azizan.

b) Azizan being an accomplice

Section 133 of the Evidence Act 1950, clearly provides that :
“An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”

To my mind the learned trial Judge has dealt with the issue of accomplice correctly and quite admirably when he said : [at pp. 249 – 250 (2003) 3 MLJ]

“An accomplice is defined in Wharton’s Law Lexicon as ‘a guilty associate in crime’. In Regina v. Mullins 3 Cox CC 526, Maule J described an accomplice as a person who has concurred ‘fully in the criminal designs of another for a certain time, until getting alarmed or for some other cause, they turned upon their former associates and gave information against them. These persons may be truly called accomplice’.

When the issue whether a witness is an accomplice is raised ‘the court must study the evidence and make the necessary finding. There can be no rule of law or evidence that a witness is automatically an accomplice just because of his actus reus. The whole idea is completely contrary to the basic concept of criminal liability’ – per Salleh Abas CJ (as he then was) in Ng Kok Lian Anor v. PP [1983] 2 MLJ 379. In deciding whether a witness is an accomplice the court has therefore to consider the evidence that is before it. Bearing in mind this principle can it be said that Azizan is an accomplice? Does the evidence show that Azizan is an accomplice? In his evidence he said in cross examination that he told the police he was sodomized between the months of January and March 1993 although he cannot remember the exact date on which the sodomy took place. It was contended by the prosecution that Azizan was not an accomplice because he was sodomized without his consent. He was under fear, he was scared of both the accused and was not a willing participant in the offence but a victim of it. The prosecution referred to Srinivas Mall Bairoliya v. Emperor AIR 1947 PC 135 in support of its contention. With the greatest respect I do not agree with this submission. The case of Srinivas is not an authority for the proposition that a witness is not an accomplice just because there is no consent on his part in the commission of the act that forms the subject matter of the charge against the accused. The case laid down the principle that when an accomplice acts under a form of pressure which it would require some firmness to resist reliance can be placed on his uncorroborated evidence. In the instant case the evidence shows that Azizan was invited to visit Tivoli Villa by Sukma. Azizan went there to see Sukma’s new apartment. He went there not with the intention of committing sodomy with both the accused. His actus reus alone is not sufficient to make him an accomplice, there must also be the intention on his part (see Ng Kok Lian’s case). For the reasons I therefore find that Azizan is not an accomplice.”

Incidentally, it is a finding of fact by the learned trial Judge that Azizan is not an accomplice which an appellate court should not or should be very slow to interfere. In any event I find no reason to disagree with the reasoning of the trial Judge in coming to his conclusion as he did. There was no evidence adduced that Azizan planned or agreed to any plan for him to come to the apartment to be sodomized or to participate in such activity that night. There was nothing to suggest that Azizan “concurred ‘fully in the criminal designs of another for a certain time, until getting alarmed or for some other cause, they turned upon their former associates and gave information against them’.” He gave his reason why he was at the apartment and it was unchallenged by the defence. The assertion that he remained in a position even after the First Appellant had sodomized him thereby enabling the Second Appellant to sodomize him as well, should not be taken as a piece of evidence that would make him an accomplice of the first order. To do so may set an undesirable precedent whereby even a victim of a gang rape would be classified as an accomplice for similar reason. Indeed the law is clear that – “(T)he court must therefore approach his evidence in the same way and not come to automatic conclusion as in Haji Ismail’s case (supra) that he is an accomplice just because counsel said so. There can be no automatic application of the rule as the accomplice’s evidence to any witness nor could a witness be prima facie an accomplice without first examining his evidence to find out whether he is an accomplice or not; …..

Thus in every case when the issue is raised that a witness is an accomplice the court must study the evidence and make the necessary finding. There can be no rule of law or evidence that a witness is automatically an accomplice just because of his actus reus. The whole idea is completely contrary to the basic concept of criminal liability” per Salleh Abas CJ (Malaya) (as he then was) in Ng Kok Lian & Anor v. Public Prosecutor (1983) 2 MLJ 379 at p.382.

Furthermore, the fact that Azizan did not run away upon seeing the First Appellant in the apartment that night should not cloak him as an accomplice. He gave his reason for not being able to get off the clutches of the First Appellant. And his action should be judged under the circumstances he was in, vis-à-vis the First Appellant. Azizan was a mere driver of the second most powerful man in the nation at that time who had all the state apparatus at his disposal.

The fact that Azizan did not even dare to lodge a police report on the incidents should illustrate the predicament that he was in. He also executed P5 and sought the advice of a very senior counsel in the person of Mr. Karpal Singh. It may be easy for anyone to sit in a judgment seat to advise on what he should have done. But the man said that he was ashamed of what had happened and was gravely in doubt if anyone would believe him at that time let alone the Police force. In fact his apprehension was not without any basis since it was not in dispute that initially he went through the anguish of being questioned and investigated by the Police when the sordid story focusing on the First Appellant began to emerge. Indeed it is no longer an issue that he was coerced to retract his allegation as revealed in P5. Accordingly to brand Azizan as an accomplice without considering the aforesaid reasons would tantamount to castigating a rape victim for being in the wrong place at the wrong time. To my mind such a draconian view would amount to a grave injustice to an innocent victim of sexual assaults.

Finally even assuming that the learned trial Judge might have been wrong in not finding Azizan as an accomplice, he did not however close his mind to the issues of corroboration of the need to warn himself of the danger of convicting a person on uncorroborated evidence particularly in sexual offence cases. In short, though he ruled that Azizan was not an accomplice, he also considered, albeit indirectly, the alternative probability of Azizan being one and thus proceeded to identify and analyse the evidence that could be corroborative in nature and came to his findings. I will deal with this point in greater detail later in this judgment.

c) Corroboration of Azizan

I am very well aware of section 114 (b) of the Evidence Act 1950 which provides :

‘The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

ILLUSTRATIONS

The court may presume –

(a) ……

(b) ……

that an accomplice is unworthy of credit unless he is corroborated in material particulars;’

But such presumption should not arise in this case in view of the finding of the learned trial Judge that Azizan is not an accomplice. This is what the learned trial Judge said : (at page 266 paragraph H)

“Before considering whether there is a need for corroboration and whether there is in fact corroboration in this case, I propose to state briefly the law on this subject. The word corroboration had no special technical meaning; by itself it meant no more than evidence tending to confirm other evidence (see Director of Public Prosecutions v. Kilbourne [1973] 1 All ER 440). It has also been said that what is required is some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe for the court to act upon the evidence. In the celebrated case of R v. Baskerville (1916) 2 KB 658 at p 667 Viscount Reading LCJ said :

‘We hold that the evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.’

It has also been held that corroborative evidence is not necessarily restricted to the oral evidence of an independent witness. Corroboration can equally be well afforded by established facts and the logic of established facts sometimes speaks even more eloquently than words (see Brabakaran v. PP [1966] 1 MLJ 64).

I shall now deal with the question whether corroboration is required. It was contended by the defence that Azizan, a victim of the alleged sodomy, committed by both the accused is an accomplice and therefore his evidence needs to be corroborated. I have earlier in this judgment dealt with the question of an accomplice and the need for corroboration in respect of the evidence of an accomplice and made a ruling that Azizan is not an accomplice. Nevertheless in a case of this nature which is a sexual offence corroboration of Azizan’s evidence is desirable though not technically essential and the court should give sufficient attention to the matter (see Koh Eng Soon v. Rex [1950] MLJ 52).

In PP v. Mardai [1950] MLJ 33 the accused was charged for an offence of outraging the modesty of a woman under s 354 of the Penal Code. On the issue of the need for corroboration of the complainant’s evidence Spenser-Wilkinson had this to say at p 33 :

‘Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be corroborated; nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant’s story.’

An allegation of sodomy can be easily made but very difficult to refute and the evidence in support of such a charge has to be very convincing in order to convict the accused. In Emperor v. Sari Das AIR 1926 Lah 375 it was said :

‘A charge under s 377 is one very easy to bring and very difficult to refute. Therefore the evidence in support of such a charge has to be very convincing.’

The evidence in support of such a charge must also be corroborated. It is said that ‘it is unsafe to convict on the uncorroborated testimony of the person on whom the offence is said to have been committed unless for any reason that testimony is of special weight – see Ganpart v. Emperor AIR 1918 Lah 322. See also Bal Mukundo Singh v. Emperor (1937) 38 Cr LJ 70 (Cal).

It is therefore trite law that a complainant’s evidence in a sexual offence requires corroboration although a conviction founded on the uncorroborated evidence of the complainant is not illegal provided that the presiding judge must warn himself of the danger of convicting on such uncorroborated evidence (see Chiu Nang Hong v. PP [1965] 31 MLJ 40).”

I find no flaw in the exposition of the law. The remaining issue is on the application of the law to the evidence adduced.

The learned trial Judge went through each of the probable corroborative evidence and made his conclusions. The testimonies of Dr. Mohd. Fadzil bin Man (SP2) and Tun Hanif bin Omar (SP3) were both rejected as corroborative evidence. However, he found not only relevant and admissible but also corroborative evidence to the assertion of Azizan in respect of the conduct of the First Appellant in first asking Azizan to retract the content of P5 and subsequently asking SAC-1 Musa to cease investigation in relation to the Police report 2706/97. And as was rightly found by the learned trial Judge this aspect of the testimonies of Azizan and SAC-1 Musa were not disputed or challenged by the defence.

The other corroborative evidence found by the trial Judge is the confession of the Second Appellant which will be dealt with in greater detail, later on. Suffice it for me to say at this stage, that I have considered the reasoning of the learned trial Judge and I agree with him. I also find as a correct restatement of the law when the Court of Appeal in response to the contention that a retracted confession has no longer any corroborative value, said :

“…..In the case of Tinit & Ors. v. Public Prosecutor (No.2) [1964] MLJ 389 McGilligan J. was of the opinion that retracted confessions ‘once found to have been voluntarily made – were very good corroboration’. That in our view makes sense for it is settled law that a confession on its own, even if subsequently retracted so long as the court is satisfied of its voluntariness and truth, can be a basis to convict an accused person. (See: Osman & Anor v. Public Prosecutor [1967] 1 MLJ 137 FC; [1968] 2 MLJ 137 PC; Yap Sow Keong & Anor v. Public Prosecutor [1947] MLJ 90; Dato’ Mokhtar Hashim v. PP (supra). There is therefore is no reason why it cannot be good corroborative evidence.”

The learned trial Judge was also very careful in his approach when he said this :

“Assuming that I am wrong that there was corroboration, I had in my mind the risk of convicting an accused on uncorroborated evidence. I warned myself of the dangers of convicting both accused on the sodomy charges on uncorroborated evidence of Azizan but nevertheless in this case, I am satisfied and convinced that the charges of sodomy against both accused have been proved beyond a reasonable doubt even though there was no corroboration. This principle had been laid down in Chiu Nang Hong v. PP.”

Hence, in coming to his finding I find that the learned trial Judge did not merely go into the pretext of complying with the law. Although he found Azizan not an accomplice he nevertheless dealt with the evidence on corroboration in view of the nature of the charges preferred against the Appellants. And in so doing he examined all the purported corroborative evidence in details and rejected those that did not satisfy the requirements of the law.

d) Voluntariness/admissibility of the confession of Sukma – the Second Appellant

The classic test for the admissibility of a confession is part objective and part subjective (see : Director of Public Prosecutor v. Ping Lin (1976) AC 574; Dato Mokhtar Hashim v. Public Prosector (1983) 2 MLJ 232). As Yong Pung How CJ said in Sharom bin Ahmad v. Public Prosecutor (2000) 3 SLR 565 at p. 586,

“The question of whether a statement is voluntarily made is essentially a question of fact and the test of voluntariness is both objective and subjective. The question of whether there is an inducement, threat or promise is objectively determined while the question of whether such inducement, threat or promise has operated on the mind of the accused must be subjectively answered from the perspective of the particular accused.”

In dealing with the subjective nature of the test Sharma J said in Public Prosecutor v. Law Say Seck & Ors. (1971) 1 MLJ 199 at p.200, (paragraph A lefthand side)

“It is left to the court entirely to form its own opinion as to whether an inducement, threat or promise held out in any particular case was sufficient to lead the person to suppose that he would gain an advantage of a temporal nature. In doing so the mind of the person making the statement has to be judged rather than that of the person in authority. In scrutinizing a case of this kind the court has to perform a three-fold function : it has to determine the sufficiency of inducement, threat or promise; it has to clothe itself with the mentality of the accused to see whether the grounds would appear to the accused reasonable for a supposition mentioned in section 24 of the Evidence Ordinance; lastly it has to judge as a court if the confession appears to have been caused in consequence of any inducement, threat or promise.”

Therefore the threat , inducement or promise must have “caused” a person to make a confession. As Augustine Paul J (as he then was) said in Aziz bin Muhammad Din v. Prosecutor (1996) 5 MLJ 473 at p.501, (paragraph C)

“It is therefore clear that the inducement, threat or promise must have ‘caused’ the person to make the statement. In the Indian Supreme Court case of Pyare Lal v. State of Rajasthan AIR 1963 SC 1094 Subba Rao J said that to determine involuntariness the mere existence of the threat, inducement or promise is not enough. As Sharma J said in Public Prosecutor v. Law Say Seck & Ors. (1971) 1 MLJ 199 one should be able to say that without it the person would not have made a statement. It follows that an inducement, threat or promise per se is insufficient to render the confession inadmissible.”

Thus cases such as Wong Kam-Ming v. R (1979) 1 All ER 939 and R v. Brophy (1981) 2 All ER 705, have ruled that in order to effectively challenge a confession a person is practically obliged to give evidence. He must give evidence to show how the threat, inducement or promise “caused” him to make the confession as their mere existence is not sufficient to make the confession involuntary.

In the present case, the learned trial Judge had considered each and every allegation raised by Sukma and the denial by the police officers. He then concluded that he believed the police officers. He also made a ruling that the confession was voluntarily made. He said : [at page 261 paragraphs G – H of his judgment – (2001) 3 MLJ]

“It remains to be considered whether it is true and trustworthy. It is to be borne in mind that if a confession is found to be voluntary, the court must before acting upon it be satisfied what is stated therein is true and reliable. In judging the truth and reliability of the confession, the court should carefully examine the confession and compare it with the rest of the evidence in the light of the surrounding circumstances and probabilities of the case (see Shankaria v. State of Rajasthan).”

At the end of it all, this is what the learned trial Judge had to say : (at page 263, paragraph E)

“To summarize it is my finding that, based on the evidence of Azizan and in the circumstance, what Sukma stated in the confession that he and Dato’ Seri Anwar sodomized Azizan as stated in the charge is true.”

The Court of Appeal in agreeing with the learned trial Judge’s finding said : (at page 106 – para 122)

“And as for the confession of Sukma (P4) we also agree with the learned trial Judge that after finding the confession as having being made voluntarily and admitted in evidence the same should have corroborative effective on the evidence of Azizan.”

So, has the prosecution proved its case beyond a reasonable doubt at the end of its case? As regards the approach and function of an appellate court on an appeal that point has been succinctly expressed by the Court of Appeal. And as stated earlier, I fully agree with the statement of the principle thereof. The trial judge and the Court of Appeal have also in their respective judgments correctly identified the ingredients of the offences in the charges preferred against the Appellants that need to be proved by the Prosecution in order to secure a conviction. Now to recapitulate and further to what I have expressed above, the evidence adduced for the Prosecution may be shortly listed thus :

i) the testimony of Azizan being the main and critical piece of evidence.

In my view the testimony of Azizan as a whole remained intact and credible notwithstanding the criticisms lodged by learned counsel for the Appellants. Indeed the trial judge was convinced and I do not find any ground to disagree with him for the reasons given hereinabove, that he could rely on Azizan’s evidence alone. This is what he said :

“Bearing in mind the above principles and taking into account the credible manner in which he gave evidence, his demeanour while giving evidence and his unchallenged and unshaken evidence or the details of sodomy committed at Tivoli Villa which is consistent with itself and the other evidence adduced by the prosecution, I have no hesitation in coming to the conclusion and a finding that Azizan’s evidence is wholly credible on all the facts relating to the act of sodomy committed on him by both the accused.”

ii) the admissible confession of Sukma, the second appellant

And as stated earlier, I find no good reason to disagree with the concurrent finding of the trial Judge and that of the Court of Appeal. As observed by the trial Judge the details in the confession render an inevitable conclusion that it must have been given voluntarily. At any rate the trial Judge whilst accepting the deficiencies in the evidence of Azizan and of the other evidence adduced by the Prosecution in particular that of the confession of Sukma; he was in no doubt prepared to call for the defence. This is what he said :

“It is now timely for me to consider the other evidence adduced by the prosecution against Dato’ Seri Anwar, a co-accused before taking into consideration the confession (P4) as against him. Apart from the confession there is the evidence of Azizan who testified that he was sodomised by Dato’ Seri Anwar at Sukma’s apartment at Tivoli Villa at about 7.30 pm. between January and March 1993 as stated in the charge against him. The evidence was not successfully challenged by the defence, though an attempt was made to challenge it. I accepted his evidence for the reasons which I had stated when I dealt with the issue of Azizan’s credibility in the earlier part of this judgment and made a ruling that Azizan is a reliable and truthful witness. His evidence is wholly reliable and capable of belief, which I accept. It is indeed a very strong piece of independent evidence to prove that Dato’ Seri Anwar committed sodomy on Azizan as stated in the charge against him. I am prepared to act on this evidence alone independently, disregarding and ignoring the confession on the principle as laid down in Herchun Singh’s case. It is therefore not necessary for me to call the confession in aid.”

I am inclined to accept the above reasoning of the trial Judge. It will be too high a standard to require that in sexual offences of a nature as in the instant appeals no case can be made out if it is solely on the evidence of a complainant or a participant to the act. At the end of the day it is the credibility of the witness that matters and in these appeals the trial Judge has correctly appreciated the position.

iii) the corroborative evidence in relation to the evidence adduced

The other aspect of the complaint of the Appellants is on the issue of corroboration or the lack of it in relation to the evidence of Azizan. With respect, I am of the view that the trial Judge has addressed the issue extensively and correctly. He identified the respective evidence which corroborated the evidence of Azizan. I have no reason to disagree with his analysis and the conclusion he arrived at. Further the trial Judge went on to warn himself of the danger of convicting an accused on an uncorroborated evidence especially in sexual offence. This is what he said : [at p.274 (2001) 3 MLJ]

“Assuming that I am wrong that there was corroboration, I had in my mind the risk of convicting an accused on uncorroborated evidence. I warned myself of the dangers of convicting both accused of the sodomy charges on uncorroborated evidence of Azizan but nevertheless in this case, I am satisfied and convinced that the charges of sodomy against both accused have been proved beyond a reasonable doubt even though there was no corroboration. This principle had been laid down in Chiu Nang Hong v. P.P.”

Specifically on the charge for abetment against the Second Appellant I am unable to fault the trial Judge in his analysis of the evidence and conclusion, which is as follows,

“The result is that I find as a fact that the prosecution has proved beyond a reasonable doubt that in fact and in law Sukma abetted Dato’ Seri Anwar in the commission of the act of sodomy on Azizan as particularized in the first charge against Sukma.”

There were also other subsidiary issues raised, such as the amendment to the charges, the notice of alibi and disqualification of the trial Judge. I have considered the opposing contentions and I am of the view that the reasoning given by the trial Judge and the concurrence by the Court of Appeal require me to add nothing more.

Accordingly, overall and on the evidence adduced by the Prosecution on the charges preferred against both the Appellants, namely under section 377B of the Penal Code against both the Appellants and under section 109 of the Penal Code against the Second Appellant, I am of the opinion that the trial Judge was perfectly correct to come to his conclusion thus : [at p.283 (2001) 3 MLJ]

“Having regard to the totality of the evidence adduced so far by the prosecution and after carefully considering the submission of counsels for both the accused and the prosecution, I am satisfied that the prosecution has successfully established a case beyond a reasonable doubt against Dato’ Seri Anwar and Sukma on the offence for which they are being charged. If they choose to remain silent at this stage which I hold they are perfectly entitled to do they can be convicted on the charges. As a consequence my order was that Dato’ Seri Anwar and Sukma were called upon to enter their defence on the charges against them. When the three alternatives were explained to them, both accused elected to give evidence on oath.”

Turning now to the defence raised. Basically it touches on the issue of alibi of both the Appellants including the denial on the part of the First Appellant of having been at Tivoli Villa, fabrication of evidence and conspiracy. These were raised in addition to the attack on the evidence adduced by the Prosecution, specifically on the evidence of Azizan and the confession of Sukma. I have already dealt with the latter hereinabove.

On the denial of being at Tivoli Villa which therefore is linked to the issue of alibi and inclusive of the sub-issues of non-completion of the apartment and purchase of bed and mattresses, I find that the trial Judge had meticulously examined and considered all the evidence and circumstances adduced before coming to his conclusions. As these are finding of fact to which the Court of Appeal concurred, this Court being the final appellate court should be very slow to interfere without any compelling and substantial reason to do so. And having considered the issues in the light of the overall evidence adduced and the relevant circumstances, I am not persuaded to say that there is any substantial and compelling reason for me to interfere with such finding.

On the allegation of conspiracy the trial Judge had also closely scrutinized the evidence adduced by the defence on the issue. As expected the trial Judge considered each and every account of the witnesses called and their probabilities before coming to his finding. He also pondered on the explanation and submissions of learned counsel on the reason for Azizan to come back to see the first appellant after the alleged incident. The trial Judge accepted the explanation given. It is not a case of where the trial Judge only gave a cursory treatment to the materials before him. He dealt with the facts and the law involved before coming to his finding. I cannot find any fault on that approach.

Overall there is no reason for me to disagree with the conclusion of the trial Judge when he said this : [at pp.316 – 317 (2001) 3 MLJ]

“This brings me to the question whether the defence has raised a reasonable doubt on the prosecution case. I have carefully considered the evidence adduced by the prosecution and the defence as a whole. My conclusions are as follows :

1) it is my finding as a fact that the alibi of both the accused does not cover the whole of the period between January to March 1993 as stated in the charge. The alibi covered the period only from 4 February to 31 March 1993 and is therefore incomplete. The defence of alibi therefore fails;

2) the defence that both the accused never went to Tivoli Villa at 7.45 pm between January to March 1993 also failed based on the evidence of Azizan which I accepted as truthful and reliable;

3) the defence of conspiracy to fabricate evidence has not been substantiated by admissible and cogent evidence adduced by the defence. This defence also failed;

4) the voluntariness of Sukma’s confession (P4) is affirmed;

5) the truth of P4 has been established as far as it relates to both the accused;

6) there was corroboration on the evidence of Azizan;

7) the credibility of Azizan is affirmed;

8) Sukma has not cast any doubt on the prosecution case of abetment against him. There is ample evidence adduced that he abetted Dato’ Seri Anwar in committing sodomy against Azizan;

9) It is my finding that the defence evidence on behalf of both the accused as a whole has not succeeded in creating any reasonable doubt on the case for the prosecution;

10) It is also my finding that the prosecution has proved its case beyond a reasonable doubt on the charges against both the accused.

I accordingly found both Dato’ Seri Anwar and Sukma guilty on the charges against them. I accordingly convicted Dato’ Seri Anwar on the charge against him. I also accordingly convicted Sukma on the two charges against him.”

In the circumstances, and for the reasons hereinabove stated by me, I would therefore dismiss the appeals by both the Appellants, against their convictions on the charges preferred against them respectively.

On the issue of sentence, although no submission was made before us but for completeness, I shall touch briefly on it.

The law on the issue of sentence is settled. An appellate court will not normally interfere with any sentence passed by a lower court unless it is satisfied that the sentence passed by the lower court is manifestly inadequate or excessive or illegal or otherwise not a proper sentence, having regard to all the facts disclosed or that the court has clearly erred in applying the correct principles in the assessment of the sentence passed. [See Public Prosecutor v. Loo Choon Fatt (1976) 2 MLJ 256) ].

Thus in the instant appeals, as regards the sentences imposed against the Appellants, I have considered the reasons given by both the trial Judge as well as the learned Judges of the Court of Appeal. With respect I am not convinced that there is any ground for me to say that the courts below erred, so as to warrant this Court to interfere. I agree with the learned trial Judge that the offences committed by the Appellants were serious and demanded appropriate punishment so as to reflect public abhorrence to such crimes.

Accordingly I also dismiss these appeals against the sentences passed by the learned trial Judge.

Dated : 2 September 2004




(DATIN PADUKA RAHMAH HUSSAIN)
Hakim
Mahkamah Persekutuan Malaysia

Peguam-Peguam :

Bagi Pihak Perayu Pertama:
1. Mr. Christopher Fernando
2. Mr. Karpal Singh
3. Mr. Gurbachan Singh
4. En. Pawancheek Marican
5. En. Zainur Zakaria
6. Pn. Kamar Ainiah
7. Mr. S.N. Nair
8. En. Zulkifli Noordin
9. Ms Marisa Regina
10. En. Saiful Idzham Ramli


Bagi Pihak Perayu Kedua:
1. Mr. Jagdeep Singh Deo
2. Mr. Gobind Singh Deo
3. Mr. Ramkarpal Singh Deo
4. En. Shamsul Iskandar Mohd. Amin

Mewakili Pendakwa Raya:
1. Tan Sri Abdul Gani Patail
2. Dato’ Mohd. Yusof b. Zainal Abiden
3. Dato’ Azahar bin Mohamed
4. Tun Abdul Majid b. Tun Hamzah
5. En. Mohamad Hanapiah bin Zakaria
6. En. Shamsul bin Sulaiman
7. En. Ishak bin Mohd. Yusof
8. En. Md. Azar Irwan bin Moh. Arifin
9. En. Ahmad Fairuz b. Zainol Abidin


Bagi Pihak Perayu Pertama :
Tetuan Karpal Singh & Co.
Tetuan Raja Aziz Addruse
Tetuan Aris Rizal Christopher Fernando & Co.
Tetuan Bachan & Kartar
Tetuan Merican Hamzah & Shaik
Tetuan Hj. Sulaiman Abdullah
Tetuan S.N. Nair & Pts.
Tetuan Zulkifli Nordin & Assoc.

Bagi Pihak Perayu Kedua :
Tetuan Karpal Singh & Co.


Pendakwa Raya :
Jabatan Peguam Negara,
Putrajaya.

Rujukan : http://www.kehakiman.gov.my/judgment/fc/archive/05-6-2003(W)&05-7-2003(W)datinpaduka.htm

MAJORITY JUDGMENT OF

ABDUL HAMID MOHAMAD F.C.J.

AND TENGKU BAHARUDIN SHAH TENGKU MAHMUD J.C.A.


In this judgment, Dato’ Seri Anwar bin Ibrahim will be referred to as “the first appellant” and Sukma Darmawan Sasmitaat Madja will be referred to as “the second appellant”.

The first appellant was charged with an offence punishable under section 377B of the Penal Code.

The second appellant was charged with two offences. The first charge is for abetting the first appellant in the commission of the offence with which the first appellant was charged. The second charge is similar to the charge against the first appellant i.e. under section 377B of the Penal Code.

Both the appellants were tried jointly. The first appellant was convicted and sentenced to nine years imprisonment commencing from the expiry of the sentence he was then serving in the first trial. High Court Kuala Lumpur Criminal Trial No. 45-48-1998 (1999)2 M.L.J. 1 (H.C), (2002)2 M.L.J. 486 (C.A.) and (2002) 3 M.L.J. 193 (F.C.)). The second appellant was convicted on both charges and sentenced to six years imprisonment and two strokes for each charge with the sentences of imprisonment to run concurrently. For the judgment of the High Court in the present case, see (2001) 3 M.L.J. 193.

They appealed to the Court of Appeal. Their appeals were dismissed – see (2004) 1 M.L.J. 177.

They appealed to this court and this is the majority judgment of this court.
.......

.......

To summarise our judgment, even though reading the appeal record, we find evidence to confirm that the appellants were involved in homosexual activities and we are more inclined to believe that the alleged incident at Tivoli Villa did happen , sometime, this court, as a court of law, may only convict the appellants if the prosecution has successfully proved the alleged offences as stated in the charges, beyond reasonable doubt, on admissible evidence and in accordance with established principles of law. We may be convinced in our minds of the guilt or innocence of the appellants but our decision must only be based on the evidence adduced and nothing else. In this case Azizan’s evidence on the “date” of the incident is doubtful as he had given three different “dates” in three different years, the first two covering a period of one month each and the last covering a period of three months. He being the only source for the “date”, his inconsistency, contradiction and demeanor when giving evidence on the issue does not make him a reliable source, as such, an essential part of the offence has not been proved by the prosecution. We also find the second appellant’s confession not admissible as it appears not to have been made voluntarily. Even if admissible the confession would not support the “date” of the commission of the offences charged. We have also found Azizan to be an accomplice. Therefore corroborative evidence of a convincing, cogent and irresistable character is required. While the testimonies of Dr. Mohd. Fadzil and Tun Haniff and the conduct of the first appellant confirm the appellants’ involvement in homosexual activities, such evidence does not corroborate Azizan’s story that he was sodomised by both the appellants at the place, time and date specified in the charge. In the absence of any corroborative evidence it is unsafe to convict the appellants on the evidence of an accomplice alone unless his evidence is unusually convincing or for some reason is of special weight which we find it is not. Furthermore, the offence being a sexual offence, in the circumstances that we have mentioned, it is also unsafe to convict on the evidence of Azizan alone.

For all the above reasons, we are not prepared to uphold the conviction. Since the applicbale law in this case requires that the prosecution must prove its case beyond reasonable doubt before the defence may be called, the burden being the same as is required to convict the appellants at the end of the case for the defence, we are of the view that the High Court has misdirected itself in calling for the appellants to enter their defence. They should have been acquitted at the end of the case for the prosecution.

We therefore allow the appeals of both appellants and set aside the convictions and sentences.

We must record our appreciation for the meticulous recording of the notes of evidence by the learned trial judge, without which we would not be able to scrutinise the evidence, the submissions and the grounds for every ruling and decision that he had made in the preparation of this judgment.

2 September 2004.



(DATO’ ABDUL HAMID BIN HAJI MOHAMAD)
Hakim Mahkamah Persekutuan
Malaysia.

Bagi Pihak Perayu Pertama:
1. Mr. Christopher Fernando
2. Mr. Karpal Singh
3. Encik Pawancheek Marican
4. Puan Kamar Ainiah
5. Mr. S.N. Nair
6. Encik Zulkifli Nordin
7. Ms Marisa Regina
8. Encik Saiful Izham Ramli

Bagi Pihak Perayu Kedua:
1. Mr. Jagdeep Singh Deo
2. Mr. Gobind Singh Deo
3. Mr. Ramkarpal Singh Deo
4. Encik Shamsul Iskandar Mohd. Amin

Mewakili Pendakwa Raya:
1. Tan Sri Abdul Gani Patail
2. Dato’ Mohd. Yusof b. Zainal Abiden
3. Dato’ Azahar bin Mohamed
4. Encik Tun Abdul Majid b. Tun Hamzah
5. Encik Mohamad Hanafiah bin Zakaria
6. Encik Shamsul bin Sulaiman
7. Encik Ishak bin Mohd. Yusof
8. Encik Md. Azar Irwan bin Mohd. Arifin

Ref: http://www.kehakiman.gov.my/judgment/fc/archive/05-6-2003(W)dato%20hamid.htm

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