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Tuesday, August 17, 2010



Mahkamah Tinggi Jenayah 3, Kuala Lumpur

Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

Permohonan Mengenepikan Pertuduhan


PP: Semua hadir

PB: KS, SN, Datuk Param Cumaraswam, Marissa, Radzlan, Ram Singh

WB: Zamri Idrus (for SP1), Mr. Leong (Bar Council)

AI hadir

[9.33 a.m.] Permohonan 44-175-2010 & 44-176-2010

KS: There are two applications. First is 44-175-2010, and the other is 44-176-2010. We propose to withdraw the application of 44-175-2010 and proceed with 44-176- 2010. It was basically the same, but the first one is without intitulement.

YA: Permohonan 44-175-2010 dibatalkan. Teruskan dengan permohonan 44-176- 2010

KS: The application before your Lordship this morning is an application to strike out the baseless, frivolous charge against DSAI. It is unprecedented. Never before in this country has been such a motion filed to strike out the charge. The basis of it is an affair between a DPP that represent Public Prosecutor and AG with the star witness in this case, SP1 Mohd Saiful Bukhari bin Azlan.

What had been stated in the affidavit DSAI among others, there was in the course of this trial ‘hubungan sulit’ between DPP Farah Azlina Latif and SP1. What is ‘hubungan sulit’? It’s a term in Malay. In English translation, it is a confidential affair. It will [] an affair. What ordinary affair in [] A sexual relationship. What we have before your Lordship is an affidavit by DSAI. It is not an allegation. I can prove it. It’s not an allegation but assertion of fact.[] reply of that affidavit. An affidavit by my learned friend DPP Hanafiah and by Jude Blacious.

There is no reply from the star witness, Saiful Bukhari. The man was prepared to go on with it at the mosque and has ask for the blessing of Allah for this incident. Why is Saiful not prepared in this temple of justice? This court is a temple of justice. He does not give evidence in the form of affidavit. []

What are the consequences of this application? We say that it is necessary a pre-requisite that your Lordship []. Your Lordship can’t do that. I require your Lordship to do that. This is an adversarial system. But you cannot just mute and do nothing about it. [] role of a judge to warrants him []

It is for YA to call both DPP Farah and SP1 as witnesses of the court. Because without their evidence YA could not elicit the truth.

I refer to S. 256 of Criminal Procedure Code where the court may put question to an accused. [Read s.256(1)] That is the extent in which the judge may go, put question to accused person. This is close to the parameter of the judge which requires the presence of the witness for the court to elicit the evidence.

[Refer s.425] [read] [] cross-examine and re-examine a witness [] This is so essential to the just decision of the case. In this application that we have made, is it not necessary for your Lordship to summon, or recall SP1. Your Lordship may call any witness you want to court. Farah Azlina would come to court under that provision.

This is an application of necessity. [Refer second authority, page 731, read para G and H]. Of course in this case the prosecutor has chosen not to call SP1 or ask him to sworn an affidavit. We can’t do that.


[Read] This is important. It is a function of the judge to try and find the truth. How can YA find the truth if the two witnesses are not called? Thus, we are making this application as a pre-requisite for our application.

YA: I’ll decide later. I’ll listen to this application first.

KS: Your Lordship must decide now. Your Lordship must accept it in that manner. Whether you are ready to make the application. Because if you want to look for the truth, you must call the witnesses.

YA: That’s all?

KS: Yes, for the purpose of this application.

MY: I must confess I’m taken by surprise by this application. I did not understand the purpose of the application but if I may say it is more of a fishing expedition. I thought my learned friend want the witnesses to be called in the course of the trial and not during this application. I say because it is contrary to O41 r 5 of the Rules of the High Court, allegation of affair in the sworn affidavit of DSAI is not based on something that he can prove. There is nothing for the court to consider and there is nothing for us to reply.

[Refer Perusahaan Falim’s case]. This application is not an interlocutory application. This application decides on the right of the parties. If they succeed, the trial will be quashed. Therefore this is not an interlocutory application. Farlim case: even if this is an interlocutory matter they have failed to disclose the sources of the application. Again the effect it is not admissible and therefore hearsay.

KS: We want a ruling whether the witnesses are going to be called.

YA: I’ve given you time to submit. MY, proceed with the submission.

KS: I’ve the right to point it out to you.

YA: Thank you for pointing it out to me. I’ve already decided that MY should proceed.

MY: KS started the application with Section 256. (KS started to interrupt again) I refer to tab 5 of our bundle. In the case of Pacific Inter-Link about O41.r.5 where you have to swear the affidavit based on facts which you are able to from your own knowledge to prove. (Refer page 683 of the case). So what DSAI said in his affidavit is not within his own knowledge and therefore there is nothing before the court and nothing for us to reply. There is nothing before the court at this time and suddenly he ask the to call the witnesses under s. 256

KS interrupt again.

YA: Let him reply. I’ll give you the chance to reply.

KS: He is not answering direct on point.

MY: I am replying direct on my point. I am addressing the court on the point of law. My learned friend then refers to Section 425. Section 425 may only be invoked by the court whether to examine, cross-examine the witness already examined or the one not being called as yet for a just decision. But that is as to whether or not DSAI has committed the offence.

Based on the affidavit of DSAI, the issue before the court is not whether Farah and Saiful has an affair. It is whether because the relationship, Farah and then through Farah, SP1 has access to the documents /investigation papers.

The affidavit of Hanafiah and Jude stated that Farah have no access to the investigation papers/documents. This assertion has not been replied and therefore they must have been taken to accept those facts. None of us also had ever briefed SP1, so that is the end of the matter.

We have the case of Ng Hee Thoong.

YA: Don’t go into the merit yet.

MY: I am not but I am addressing the court on the law. When we reply by affidavit and you did not challenge it, then you accept it. Ng Hee Thoong is a guarantor where notice of demand was sent to him. In his affidavit he questioned on why the notice of demand was sent to him but not the guarantee to the address provided by him. To this averment, there was no reply and the court accepts it. Here, DSAI swore on something he doesn’t know and he heard it from someone else. This is hearsay and notwithstanding that, we replied and there’s no challenge to it and thus there is nothing for us to reply.

First, not only their affidavit is not relevant. Second, all the things we affirmed through Hanafiah and Jude has not been challenged and thus they must have taken to accept it and that’s the end of the matter today.

I cannot see how Section 425 can help the court to arrive at a decision. We will depose on this issue when we submit on the merit.

KS: We refer to DSAI affidavit. Does it contain hearsay?

Refer Para 5 [read]. He said under oath as a matter of fact and this is not a hearsay. This is a fact, evidence given in form of affidavit that is not hearsay, but assertion of fact.

Where is the hearsay? It states the fact as a truth. That is not hearsay. Likewise, it is evidence. Where did DSAI say it is based on information?

[refer Para 6, 7 and 8]. DSAI is stating the truth. Where is the hearsay? This is statement and assertion of facts.

My learned friend cannot as an officer of the court should not run away from the truth [].

[refer para 9, 10, and 11, 12] it is an assertion of fact, and statement of truth. []

The application I made for your Lordship to direct the witnesses to be called before this court under Section.425 and not Section 256.

YA: So you are asking the court under Section 425.

KS: Yes. Not Section 256. I show it as an example only as a parameter. Your Lordship must consider this issue. It is pertinent, more than important for the witnesses to be called before the court, not our witnesses, nor the prosecution. This application is beyond the affair. As to what happened is the consequences of that affair. What DSAI said is a matter of fact, a matter of proves. The impartiality and the integrity of the entire trial is at stake. There is a presumption that Farah, as part of prosecution member have access and privy to the investigation papers and documents.

My learned friend is the head of the prosecution. He himself did not filed the affidavit. He rely on Hanafiah’s affidavit [] in conformity with the reason and the truth. Much obliged.

YA: So I should decide whether S.425 ought to be considered. I’ll deliver my decision at 2.15 p.m.

[10.20 a.m.] Stand down.

[02.40 p.m]

YA: Having heard both submissions, I found that Section 425 of Criminal Procedure Code is not relevant. We practice adversarial system therefore parties must reply to any assertion. Application to called Farah and SP1 is refused. Can we proceed with the application on merit?

KS: Before I proceed with the submission on the merit, we would like to cross-exam DPP Hanafiah on his affidavit in reply to the affidavit of DSAI. The grounds on which we propose to proceed is in regards to the credibility of MHZ. The credibility is to whether his affidavit in reply and the contents thereof credible.

YA: Let us settle the procedure first. There must be notice.

KS: Of course there must be a basis to it which I propose to do. If you allow me, I’ll state the grounds now and the substance of it. This is with regard to the proceeding in Syariah Court in Kota Bahru. With regard to his second wife where my learned friend trying to get the second marriage registered

YA: Whose second marriage?

KS: Hanafiah. We rather put in the form of an affidavit. MY, if is involved with a DPP. It is contagious and airborne. The credibility of my learned friend in affirming the affidavit question. I’ve just receive the document just now.

HZ: Who’s application?

YA: I’ll let Mohd Yusof submit later.

MY: To allow cross-exam is a matter of court’s discretion. Counsel has to show just cause to do so. In this case, there is no affidavit in reply as to Hanafiah’s and Jude’s. If there is reply, there is no reason to cross. In this case there is no dispute as to content, but to his credibility. I’ve this case in my bundle. In fact I have anticipated it earlier. First case is tab 10 of my bundle – Leisure & Allied Industries [read headnotes] [refer page 2, 2nd para from bottom]

So what is the purpose? There is no affidavit in reply to dispute the affidavit in reply by Hanafiah. And now they are asking to cross-examine him on something so remote and personal. If I take it that Hanafiah has taken second wife, it does not involve dishonesty or misconduct amounting to abuse of the process to undermine the proceeding.

Refer tab 11-co-operative Central Bank Ltd – with regard to cross-exam of person affirmed the affidavit – last para of page 3. He has to challenge first. If I may again refer to Ng Hee Thong, tab 6, holding no.2 – read. I was trying to draw a distinction. DSAI affirmed an affidavit which he is not privy to but what Hanafiah stated in his affidavit is something private to him. More so they are not challenging the content. Not even something that surround the affidavit. It is so remote and that in fact is an abuse of the process of the court. We cannot afford to delay the trial. Let me say for the first time. This is an attempt to delay the trial. We cannot keep on doing this because one of the circumstance for abuse of process is delay, delay in trial within the material time. Sometime ago I refer the court in other application, I refer to the case of R v H, and R v C where the interest of the complainant, the victim and the public.

We are doing this all this while, looking into the interest of the accused. But it’s time now for the court to look seriously for the interest of the public and the victim. I pray for the application to be rejected.

KS: My learned friend should learn to catch the bull by its horn. The affidavit evidence is required. Both cases referred to by my learned friend, affidavit has been filed and deponent examined.

YA: So basically you want to cross Hanafiah to cross-examining him on taking a second wife?

KS: Yes. He is married in Thailand without consent. Credibility involved. We are not delaying the trial. It has been made by the misbehaviour of the DPP. One is having an affair with the complainant and one is having his second marriage regularise. Are we going to rely on his affidavit? What credibility this man have? He ought to be cross-examine in the box. Give us the chance to Hanafiah’s affidavit so that he can defend himself. Syariah offences is a serious offences, and more so if it is committed by a public officer. Of course Hanafiah should be given opportunity to reply the affidavit. If not, he will undefended. Misbehaviour of the DPP are delaying the trial. We are not delaying the trial.

YA: That’s all?

MY: This is the reason. The reason why I objected is that the ground are obvious. Any misconduct must have something to do with the trial. I refer to a 1962 American case. [read para 6] obviously whatever Hanafiah did in his personal life has nothing to do with the trial.

KS: There is a precedent to it. MP Bung Mokhtar- MP Kinabatangan.

YA: Give me some time to consider.

[03.03 p.m.] Stand down.

[03.12 p.m.]

YA: The basis where the counsel wants to cross-examine whether Hanafiah has taken second wife and married in Thailand etc is trite law. Cross-examination must be related to what the deponent has stated in his affidavit. It is my view whether Hanafiah has taken second wife or not or where he is married is not relevant to the proceeding. So, application to cross-examine him on him taking a second wife is refused.

KS: We want to file the affidavit.

YA: So you file whatever you want to file but we proceed with the application first.

KS: Page 2 of submission. My learned friend was proceeding on frivolous technicality and not back by authorities. No grounds are disclosed.

Refer Malaysian Court Practice, page 1091],

Refer Sarawak Timber case, page 2 [read],

Refer Halsbury Law of England, vol I, [read]. What is important is that in the cases in footnote 3, one of it is answering affidavit. In this case, our affidavit is unanswered,

Rrefer Abd. Hamid b. Jaafar v Samsiah [] Sdn Bhd [read]

Refer Megat Najmudin v Bumiputera [] [read] preliminary objection is not allowed []

In criminal matters, objection on non-compliance should not be entertained. What is important is that your Lordship would peruse the application. In the Notis Usul, what is stated in page 2 was clear. [read] the grounds are in the affidavit. The technicality issue raised by my learned friend should not be taken upon consideration. My learned friend says that the averments and assertion by DSAI is not based on fact, but our assertion is fact. The integrity of the DPP is compromised. This is assertion of fact. Judge should take what is in the affidavit as the truth. The point is this, are the 2 affidavits retract the truth as to DSAI’s affidavit.

What are the affidavits? One is the affidavit of Jude. And the second one is affidavit of Mohamad Hanafiah.

YA: Who did the translation?

KS: My learned friend []. It is just a guide.

YA: I’ve to make it clear. I’ll rely on the BM version.

KS: Refer para 5 [read MHZ translated affidavit]. But this is important. A further investigation is contemplated with regard to the affair. There is a denial as to that.

YA: I don’t see any denial as to that. What they have denied that SP1 has access to the investigation paper through Farah.

KS: They are denying it. Para 9 and 10 of MHZ should be read together. The issue of the affair. Who is MHZ to reply on behalf of Cik Farah? Why is she not replying? Is she not prepared to deny the allegation made.

I refer to the authorities. Authorities 12 of our bundle. Page 2 of the report, para3 [read].

I refer to what the AG has to say at the PC. To justify the negative perception on the prosecution and transfer of Cik Farah to some other place. Why is the witness not prepared to swear the affidavit? It must be in an affidavit. Your Lordship must expect an affidavit in reply. Your Lordship cannot go assertion to go unrebutted.

Refer : Takako Sakao, tab 20, a Federal Court decision. Para 1 [read]. The affidavit by DSAI must be accepted as true in the absence. That is the impact of this decision. The judge is under the duty to accept. Your Lordship is under duty to accept what is stated in the affidavit. If not, the court must draw adverse inference.

Not only Farah, but why is SP1 not prepared to affirm the affidavit? He is more than willing to take an oath in the mosque and why is he afraid now, to rebut the allegation made against him? DSAI said this: there is this event that Farah had access to the IP, and had an affair with SP1 and as a result to that SP1 is privy to the investigation paper because Farah is also privy to the investigation paper.

Further there is an offence Sec.8 of OSA. IP is classified as confidential. And Saiful is guilty of an offence under S.8(2) OSA. She is a public servant. It is a serious offence, but we have no evidence of rebuttal.

Hanafiah’s affidavit contains numerous press-cutting. Numerous press-cutting were relied on. The point is whether newspaper reports amount to hearsay. We say it is hearsay. It is hearsay based on authorities.

Refer Karpal Singh v Sultan of Selangor, tab 9, page 65 [read].

Refer tab 11, page 253, the same passage adopted in that case. Para 22 [read].

I think it is pertinent for your Lordship to peruse the authorities. That will be our last authority and that disposes as to authority to back that newspaper cutting is hearsay. In fact, 90% of Hanafiah affidavit consists of newspaper cuttings.

Further, if affidavit is unrebutted, then the truth of the assertion must be accepted. I take your Lordship to various cases.

Refer tab 13, it’s a High Court decision [read].

Refer tab 14 – Ng Hee Thong & Anor, page 32 [read].

Refer tab 15 – Alloy automotive Sdn Bhd, 1985 Supreme Court decision, page 385, right column at the bottom of the page[read]. This is the proposition by The Supreme Court that is bound by Ng Hee Thong.

We say that there is an abuse of the process of the court. SP1 is the star witness and he will know the contents of other witnesses statement, DNA reports, etc. And the prosecution is abusing the process of the court by using the star witness to prove the charge. That is an abuse of the process. We urged your Lordship to exercise the discretion and to exercise it without fear and favour.

Refer Karpal Sing & Anor v PP, tab 4, page 545, para 4 [read].

Refer Connelly [read]

Refer tab 8 , PP v Ini Abong, page 13, Hamid Sultan adopted what is said in Connelly [read].

Refer Humprys [read].

What is an abuse process of the court? I refer to tab 17, page 151, para 9 [read]. But before that, Ng Hee Thong and other cases are upheld in the case of DSAI v PM Malaysia and Anor, page 188, para [read] we don’t agree with this, but it is the law now. [read again]. Ng Hee Thong was adopted and also Alloy.

What is an abuse process of the court? I refer to tab 17, page 151, para 9 [read]. Process of the ct must be used bona fide. A DPP having an affair with star witness who might have access to the IP is an abuse of the process. It is an improper use of the missionary. It is used for ulterior motive, [] this is not a prosecution but persecution. That is the impact of abuse of process of the court. In fact my learned friend has not the guts to say that this is an abuse of process. But we say so.

My learned friend relied on what the AG say in the PC. Where is the AG? Why is he not prepared to file the affidavit? Your Lordship should not allow this. It is scandalous, and what happened today in court is a scandal happened in broad daylight. There is a misconduct of behaviour. She is part of the team and has access to the investigation paper.

Why is my learned friend afraid to cross-examine DSAI on his affidavit? Because that is the truth. Prosecution must not be here to abuse the process of the court for ulterior motive. The entire prosecution should step down and before they do so the judge should strike out the charge.

We have the benet of Jude’s affidavit. What is the content of his affidavit? He is the Investigation Officer (IO). He has access to the investigation paper including MY, NH, MHZ and NB. The point is are the assertion made as to matter of fact as to access of the investigation paper denied by Farah. She’s around. It’s different if she’s not around. She’s in the AGC, but in different Section. Likewise, Saiful is also around. What is revealed is a clear abuse process of the court.

We with due respect, we would pray your Lordship to make an order in terms of the motion, in the interest of justice, in the interest of the public policy and not in the interest of the person who abuse the process of the court.

Let not the prosecution be allowed in this court, as they are corrupt to the core through misbehaviour of the DPPs. The entire team must be blamed. We pray for the application to be allowed.

MY: I would like to refer to this court to the authority that my learned friend refers just now. Tab 12, holding no.3 [read]. of course this is not an affidavit evidence, but if I may refer to O41 r5 in tab 2 of my bundle which requires DSAI to affirm something he knows personally just as what the law said and that he had failed.

Second case that I am keen to refer is at tab 20 of the defence’s bundle [read head note]. This is between parties conversant with facts. Not in this case because DSAI is not conversant to Farah’s matter.

Refer tab13, holding 3 of defence’s bundle [read]. Where in this case is between husband and wife, also conversant to facts.

Refer tab 15, page 385 [read]. I invite your Lordship to refer to the above para. Refer the head notes [read]. Refer to holding no.2 [read]. There was an allegation between parties conversant to the fact unlike the case of ours today.

What does the court say when you swear affidavit not in your personal knowledge.

I refer to the case of Datuk Bandar Kuala Lumpur v. Zain Azahari Zainal Abidin. The issue is abuse of process as legality where the Datuk Bandar took consideration on something not relevant. Refer page 250, holding no.3 and 3A[read]. Whatever DSAI said and affirm is worthless.

So tomorrow, somebody might say that Mr. Karpal had done something and then Mr. Karpal has to answer it today?

What is the real issue before this court? It is not on the issue of Farah Azlina and Saiful are having an affair. I say first, that the whole thing in the affidavit is not admissible because they are bare allegations without basis except para 1-4. The rest are baseless, hearsay, conjecture, etc.

Refer Para 5 of DSAI’s affidavit. Refer Para 8 of the affidavit. [read] Refer Para 10, 11.

Firstly, the affidavit of Hanafiah clearly said that Farah Azlina was merely a typist and who assisted in general duties. Para 6 of Hanafiah’s affidavit, Para 11 [read]. Because Hanafiah is in charge of the investigation paper at one time. [Read para 4]

Refer Para 12 [read]. He said he is in charge and Farah has no access and it was given to four of us only. So, do we need to call Farah to confirm it?

Whatever Saiful testified in court is based on his experience. What we are saying is this. You said the prosecutor is compromised because Farah has access to the investigation paper. We are saying she never had access. The matter stop there. And what Hanafiah has said is not challenged. The same with Jude. He was only instructed to give copies of the investigation paper to the 4 other.

We are not taking the news report as the truth but to show it was reported widely. This allegation which forms the charge against DSAI was out there in media as early as 28th June 2008, one hour after the report was lodged. Even in Malaysiakini which Karpal used to confront SP1 in the trial, the report was made soon after. On 30th June, again it was published about Saiful meeting with PM etc. also it is reported. So everything about the allegations of Saiful was in public domain as far back as 28th June 2008. Whatever SP1 testified in ct is something everybody know. Everybody does not know how the offence is being committed.

With regards to documents and reports, it was supplied to the defence way back in 2008 and 2009, long before Farah came on board. Some of the reports came in the internet. Two millions copies of the HKL report is printed to show there is no penetration. Even if SP1 has access to that, what changes could he make? Not that he can alter the reports. Nobody suggested that SP1 has taken advantage as to the report. What SP1 did is what he is expected to do under Section 165 Evidence Act 1950. No mention of the medical or DNA report.

Defence must show as what the court said in Ian Anthony Beckfords, tab 12, page that he had been deprived of a fair trial or it is not fair to try him. What has the defence show that the court process has been abused to accord protection for the accused? What can they show that DSAI has been prejudiced? We have a number of cases to show how the misconduct of DPP affects the integrity of the prosecution.

Refer tab 13, R v Leominister, page 5, 3rd para [read and explain the case].

How would Cik Farah relationship with SP1 affect the integrity of the team and prosecution? Cik Farah was then only doing the typing, she has no control over the direction of the prosecution, she will not examine any witnesses, she is not performing a prosecutorial duties. How is it her relationship affect our independence in determining our strategy? She did not decide and determine anything.

Refer R v Milton Keynes, tab 14 [read] .

Refer Chan Wai-Keung v Regina, tab 16 [read and explain]. Here in this case, the court was confronted with statement made earlier and what he has said in court Compare to our case today, what Saiful has said was the same with what he has said 2 years ago. What prejudice can this cause DSAI?

Refer R v. MacDonald, Atherley and Bristol, tab 17, [read held], page 809 [read commentary]. We are saying the relationship which does not provide access to the investigation paper and even if there is access, it does affect the process of the case.

Refer also R v Early and R v Grant.

Lastly what kind of conduct which undermines the conduct of the prosecution. The same as the one in the authority we gave earlier.

Lastly, may I refer to our submission Para 43, 44, 45, 46, 47, 48 and 49 of prosecution submission [read]. I rest my submission and I thank you my Lord and pray for the application to be dismissed.

KS: My reply might be take one hour.

YA: Tomorrow then. It’s already 5.00. Start at 9.00 sharp. Court start at 8.30, but I’ll give you leeways.

[4.57 p.m.] Adjourned

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