Nujim Matusin

654 v. PP [2013] 3 MLRH

NUJIM MATUSIN
v.
PP

High Court Sabah & Sarawak, Kota Kinabalu

David Wong Dak Wah J
[File No: KK-42-44-2011]
29 June 2012

Criminal Law: Malaysian Anti-Corruption Commision Act 2009 - Section 17(b) -

Bribing a police officer - Appeal against conviction - Whether trial judge applied maximum
evaluation of the prosecution evidence - Whether failure to comply with s 51A Criminal
Procedure Code fatal to prosecution’s case - Whether there was a break in chain of evidence

The appellant was charged at the Sessions Court under s 17(b) of the Malaysian
Anti-Corruption Commission Act 2009 for bribing a police officer with the
sum of RM3,000.00 at the police station in Beaufort. At the end of the trial,
the learned Sessions Court judge found that the prosecution had proved its
case beyond reasonable doubt. The appellant appealed against the conviction
and the three grounds of appeal were: (1) that the learned Sessions Court judge
erred when he did not, at the end of the prosecution case, apply the maximum
evaluation of the prosecution evidence; (2) that the prosecution had failed to
comply with s 51A of the Criminal Procedure Code (‘CPC’); and (3) no search
list was issued by the police for the RM3,000.00 and no fingerprint lift was
done on those bills.

Held, dismissing the appeal and upholding the conviction and sentence:

(1) The fact that the learned Sessions Court judge did not use the words
‘maximum evaluation’ was neither here nor there. The central issue was
whether he had done so. From the grounds of judgment, the learned Sessions
Court judge had clearly applied his mind in giving maximum evaluation to
the prosecution evidence. The two crucial witnesses were PW5 and PW1
whose evidence was accepted by the learned Sessions Court judge as PW1 had
corroborated the evidence of PW5. This conclusion was based on established
facts; hence the learned Sessions Court judge’s conclusion of a prima facie case
was not wrong. (paras 4-5)

(2) The consequence of the non-compliance of s 51A of the CPC would not
make the trial a nullity. The non-compliance with s 51A of the CPC would not
statutorily prevent the prosecution from tendering the documents which were
not delivered to the accused person before trial as evidence in the course of
the trial. Therefore, it is only procedural and not evidential. It has long been
held as a matter of law that even in respect of evidence obtained illegally, it
remains admissible (PP v. Mohd Fazil Awaludin (refd)). (para 8)
 Nujim Matusin
[2013] 3 MLRH v. PP 655

(3) In this case, there was no evidence as to how the appellant had been
prejudiced by the non-compliance of service of the documents. The case was
premised on the oral evidence of what had happened on the day in question, ie
whether the appellant had tried to bribe PW5. In any event all documents were
supplied to defence counsel at the start of the defence case and the appellant
had been defended competently. (para 9)

(4) From the grounds of judgment with the notes of proceedings, it could be
seen that the learned Sessions Court judge had accounted for the full movement
of the bribe money and then concluded that there was no break in the chain of
evidence and was therefore not wrong in his conclusion. (para 12)

Case(s) referred to:

PP v. Mohd Fazil Awaludin [2009] 2 CLJ 862 (refd)

Legislation referred to:

Criminal Procedure Code, s 51A
Malaysian Anti-Corruption Commission Act 2009, ss 17(b), 53

Counsel:
For the appellant: P Joseph Perira; M/s PJ Perira
For the respondent: Joyce Blasius DPP

JUDGMENT

David Wong Dak Wah J:

[1] This is an appeal against the decision of the Sessions Court Judge in
convicting the appellant of a charge under s 17(b) of the MACC Act 2009
which reads as follows:
17. Offence of giving or accepting gratification by agent.

A person commits an offence if:

(a) being an agent, he corruptly accepts or obtains, or agrees to

accept or attempts to obtain, from any person, for himself or for
any other person, any gratification as an inducement or a reward
for doing or forbearing to do, or for having done or forborne to
do, any act in relation to his principal’s affairs or business, or for
showing or forbearing to show favour or disfavour to any person
in relation to his principal's affairs or business; or

(b) he corruptly gives or agrees to give or offers any gratification to

any agent as an inducement or a reward for doing or forbearing
to do, or for having done or forborne to do any act in relation to
his principal’s affairs or business, or for showing or forbearing
to show favour or disfavour to any person in relation to his
principal’s affairs or business.
 Nujim Matusin
656 v. PP [2013] 3 MLRH

[2] This charge concerns the appellant bribing a police officer at the police
station in Beaufort, which bribe was in the sum of RM3000.00. The appellant
prior to the arrest and bribe was arrested by the police on suspicion of stealing
buffaloes from the District Kuala Penyu. The evidence of bribery stems from
the premises of the police station in Beaufort where the appellant was alleged
to have bribed the IO (PW5) and such bribery was witnessed by another police
officer (PW1). At the end of the prosecution case, the learned Sessions Court
Judge found that there was a prima facie case against the appellant and order
him to enter his defence. At the end of the defence case, the learned Sessions
Court Judge found that the appellant’s story that he was framed by PW1 and
PW5 to be not credible and accordingly found that the prosecution had proved
its case beyond reasonable doubt.

[3] Counsel for the appellant raises in my view three grounds and they are as
follows:

1. That the learned Sessions Court Judge erred when he did not at
the end of the prosecution case applied the maximum evaluation
of the prosecution evidence,

2. That the prosecution had failed to comply with s 51A of the

CPC,

3. No search list was issued by the police for the RM3,000.00 and
no fingerprint lift was done on those bills.

Ground 1

[4] With respect, the fact that the learned Sessions Court Judge did not use
the words ‘maximum evaluation’ is neither here or there. The central issue is
whether he had done so and in my view he had. This is what he said:
‘At the end of the prosecution’s case, I ruled that the prosecution had proved a
prima facie case and I ordered the accused to enter his defence. At that stage I
found that there was sufficient evidence to establish that the accused had given
the bribe of RM3000.00 to PW5. I accept the evidence of PW5 and PW1 on
this matter. I also accept the content of P6 as sufficient evidence to establish
that PW5 at the material time was an agent of the government of Malaysia’.

[5] Reading the above quotation, I have no doubt that the learned Sessions
Court Judge had applied his mind in giving maximum evaluation to the
prosecution evidence. The two crucial witnesses were PW5 and PW1 whose
evidence was accepted by the learned Sessions Court Judge as PW1 had
corroborated the evidence of PW5. This conclusion is based on established
facts; hence the learned Sessions Court Judge’s conclusion of a prima facie case
is not wrong. Accordingly I find this ground to be without merit.
 Nujim Matusin
[2013] 3 MLRH v. PP 657

Ground 2

[6] This ground concerns the non-compliance of s 51A of the CPC which
reads as follows:
51A. Delivery of certain documents.

(1) The prosecution shall before the commencement of the trial deliver to
the accused the following documents:

(a) a copy of the information made under s 107 relating to the

commission of the offence to which the accused is charged, if any;

(b) a copy of any document which would be tendered as part of the

evidence for the prosecution; and

(c) a written statement of facts favourable to the defence of the

accused signed under the hand of the public prosecutor or any
person conducting the prosecution.

(2) Notwithstanding para (c), the prosecution may not supply any fact
favourable to the accused if its supply would be contrary to public
interest.

(3) A document shall not be inadmissible in evidence merely because of

non-compliance with subsection (1).

(4) The court may exclude any document delivered after the commencement
of the trial if it is shown that such delivery was so done deliberately and
in bad faith.

(5) Where a document is delivered to the accused after the commencement

of the trial, the court shall allow the accused:

(a) a reasonable time to examine the document; and

(b) to recall or re-summon and examine any witness in relation to the

document.

[7] It is the contention of counsel for the appellant that since the prosecution
had failed to comply with s 51A in not serving the charge sheet, arrest report
and s 53 MACC Act statement of the accused, the conviction and the trial
should be set aside. This contention is premised on the submission that s 51A
is a mandatory provision.

[8] I have read the reply submission of the learned DPP and it is my view that
she had skilfully and correctly rebutted the contention of the appellant. Let
me just add that I fully subscribe the manner in which learned judge dealt
with s 51A in PP v. Mohd Fazil Awaludin [2009] 2 CLJ 862 and it is this:
“19. What are the consequences of a failure to disclose material documents
before the commencement of the trial? As far as s 51A of the CPC is
concerned, I do not think that the consequence of the non-compliance
would make the trial a nullity. My reasons are as follows:
 Nujim Matusin
658 v. PP [2013] 3 MLRH

19.1 Firstly, there is a distinction between provisions which prescribe

the manner of trial and provisions which provide for the conduct
of the trial. Disregard of a provision under the former is fatal to the
trial and at once invalidates the conviction. However, disregard of
the latter, even though prescribed in a mandatory manner is not fatal
unless the court is satisfied that the accused has been prejudiced. In
my opinion, provisions relating to the delivery of certain documents
to the accused before trial like s 51A of the CPC concerns with the
conduct of the trial. A comparison of ss 399, 402A and s 51A of the
CPC will illustrate the point. Subsection (2) of s 399 of the CPC sets
a precondition, in that, where the public prosecutor intends to give
any evidence of the report of a person listed under subsection (2), he
has to deliver a copy thereof to the accused not less than 10 clear days
before the commencement of the trial. If the public prosecutor did not
comply with the precondition stipulated, the report is not admissible
in evidence. Therefore, the service of notice to the accused is not only
procedural but it is evidential. So too s 402A of the CPC. This section
was enacted to prevent any person from fabricating evidence of alibi
and to enable the police to interrogate the intended witness or witnesses
well before the date of trial to ascertain the validity of the defence. The
non-compliance with the requirements of s 402A will render evidence
in support of an alibi inadmissible.

19.2 The provisions of s 51A of the CPC are poles apart from those
sections. The non-compliance with s 51A of the CPC would not
statutorily prevent the prosecution from tendering the documents
which were not delivered to the accused person before trial as evidence
in the course of the trial. Therefore, it is only procedural and not
evidential. It has long been held as a matter of law that even in respect
of evidence obtained illegally, it remains admissible. As was stated by
Lord Goddard in the Privy Council case of Karuma v. The Queen [1955]
AC 197:

The test to be applied in considering whether evidence is admissible

is whether it is relevant to the matter in issue. If it is, it is admissible
and the court is not concerned with how the evidence was obtained.”

[9] In this case, I can see no evidence as to how the appellant had been
prejudiced by the non-compliance of service of the mentioned documents. As
pointed out by learned DPP, the case is premised on the oral evidence of what
had happened on the day in question, that is whether the appellant had tried
to bribe PW5. In any event all documents were supplied to defence counsel at
the start of the defence case and in my view learned counsel as usual defended
the appellant competently.

[10] Accordingly I find that this ground to be without merit.

 Nujim Matusin
[2013] 3 MLRH v. PP 659

Ground 3

[11] The relevant part of the judgment is this:

‘In this case, after the money was seized it was kept by Sarjan Jani who
subsequently handed it to PW3. The serial number of the money was taken
down and the money were also exhibited as P5 and it was confirmed by
PW5 as the money that was seized from the accused. In my view, there was
no break in the chain of evidence in this case. The money is not like drugs,
where it must be handled properly as it could be easily tempered. In one case,
that serial number of the notes were recorded and can easily be identified
by the witness once it is produced in court. In this case, there is evidence
that PW5 was shown the money and he had successfully identified it. That
being the case the prosecution had successfully established the money was
the money seized from the accused’.

[12] From that passage of the judgment it can be seen that learned Sessions
Court Judge had accounted for the full movement of the bribe money and
then concluded that there was no break in the chain of evidence. I have read
that passage together with the notes of proceedings and it is my view that the
learned Sessions Court Judge had not been wrong in his conclusion. That
being the case this ground of the appellant is also without merit.

Conclusion

[13] For reasons stated above, the appeal is dismissed.