Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
Pihak-pihak:
PP: Semua hadir
PB: KS, SN, Datuk Param Cumaraswam, Dato’ CV Prabhakaran, Radzlan, Marissa
AI hadir
[9.16 a.m.] Kedua-dua pihak masuk ke Kamar Hakim.
[9.38 a.m.] Kedua-dua pihak keluar dari Kamar Hakim.
[9.41 a.m.]
MY: Hari ini ditetapkan untuk pemeriksaan utama saksi pendakwaan ketiga, Dr. Siew.
KS: We have this matter where a report made by one person who could be a witness. In fact, we were made to understand that 112 statements were taken from him, but it is not the end of the matter. There is another one recently who made another report. We would want to make a necessary application to hold them for contempt.
YA: MY ada apa nak cakap?
MY: I’m concern about the report. We do not know until it has been published. []
YA: As stated by KS, he intends to file a proper application. I think the law is clear on this that they need to do that so that all facts could be properly laid down before the court At this stage the court cannot do anything. Any formal application, KS?
KS: Yes. We will file it.
YA: So, proceed with SP3.
MY: Pemeriksaan akan dijalankan oleh Dato’ Nordin Hassan.
NH: YA, mohon dipanggil saksi ketiga, Dr Siew Shue Feng.
SP3 mengangkat sumpah di dalam Bahasa Inggeris.
YA: I think we should record why we reserve cross for SP2. Can we record why we jump later.
KS: Because we want to reserve cross-examination until all the three doctors testified.
YA: Otherwise the report will show why we proceed to SP3 without cross-examine SP2.
Q: You are now attached to the Forensic Department of HKL, is that right?
A: Yes.
Q: Since 2004?
A: Yes.
Q: Your position is as Forensic Medical Pathologist, is it true?
A: Yes.
Q: What are your qualifications to be Forensic Medical Pathologist?
A: A bachelor degree in medicine and surgery from Madipa Academy of Higher Education, India, since 1997. I’m holding a Master Degree in Medical Pathology specialise in Forensic Medical Department from 2004 from UKM.
Q: Can you tell the court the work scope as Forensic Medical Pathology.
A: My work involves medico-legal autopsies requested by police officer; also examine living person involving medico-legal case.
Q: Do you also conduct forensic examination?
A: Yes.
Q: Please tell the court your working experience?
A: House officer experience in HKL 1998, subsequently as a medical officer in Hospital Sibu 1998-2000, 2000-2004 I’m working under the pathology unit as a medical officer while pursuing my master. Since 2004 , I work as a specialist at HKL until today.
Q: Since 1997 to 2004, you have conducted many cases involving forensic examination?
A: Yes.
Q: Can you tell the court how many forensic examination have you conducted so far?
A: 200-300 cases approximately.
Q: Since 1998 how many sodomy cases have you conducted?
A : Grossly about 20.
Q: In general, what are the general procedures in taking specimens?
A: First, wear surgical glove, use sterile swab stick to take the specimen, after that put the specimen in the already labelled bottle and seal the bottle.
Q: Are this procedure recognised by the international standard?
A: Yes.
Q: Specifically what are the equipments used in sodomy cases?
A: Sterile swab, sterile swab stick and sterile proctoscope and also lubricant.
Q: I show P19 and P20, swab stick and sterile proctoscope. Are these the equipment used in extracting specimen in sodomy cases?
A: Yes. Sterile swab stick and sterile proctoscope.
Q: Have you ever undergone any training and courses?
A: In 2007, I underwent short courses on Forensic Anatomy and Human Identification at the Anthropological Centre, University of Tennessee in US. From 2009 until January 2010, I undergone my special training of [] at the University Herakal General Hospital, Greece.
Q: Are you a member of Malaysia Medical Council?
A: Yes. Ordinary member.
Q: Member of medico-legal society?
A: Ordinary member.
Q: Have you ever testify in court?
A: Yes. Approximately 100 cases.
Q: To the best of your knowledge, has your testimony been accepted in court?
A: Yes.
Q: On 28th June 2008, were you on-call?
A: Yes, I was on-call.
Q: On that date, did you meet a patient by the name Mohd Saiful Bukhari bin Azlan?
A: Yes.
Q: Can you identify him?
A: Yes. This is Mohd Saiful Bukhari bin Azlan.
SP1 dicamkan oleh SP3.
Q: On 28th June 2008, where did you meet him?
A: At the One Stop Crisis Centre (OSCC) at the Emergency Department HKL.
Q: How did you meet him?
A: I was called by one Dr.[], After I discuss with her, I decided to attend this case at 9.00 p.m. at the OSCC at the Emergency Department together with a specialist medical officer from the Surgical and Emergency Department.
Q: Who are these specialists?
A: Dr. Khairul from the Emergency Department, and Dr. Razali from the Surgical Department.
SP3 identify Dr. Khairul Nizam bin Hassan, and Dr. Mohd Razali bin Ibrahim.
Q: Upon meeting them, did the three of you discuss on the sodomy case?
A: Yes, at the beginning we met the police, we received briefing from the police officer in charge of this case. Subsequently we discuss among ourselves our role in this case.
Q: What was the result of the discussion?
A: The 3 of us will attend the case together. Dr. Khairul Nizam is conduct examination on the bodily injury, Dr. Razali on the anal examination and my major role is conducting forensic specimen.
Q: Approximately at what time in the OSCC room to meet SP1?
A: We met SP1 approximately at 9.30 p.m. on 28th June 2008.
Q: Just for clarification, is this OSCC room also Bilik Mawar?
A: Yes.
Q: Did you meet an officer by the name Judy Blacious?
A: Yes. Inside and outside the room.
SP3 identify ASP Jude Blacious.
Q: Upon entering the OSCC room, what did you do with SP1?
A: Upon meeting SP1, I recorded the history and get his consent before we proceed with the examination.
Q: Why did you need to get consent from him?
A: The consent involve examination of bodily part and the private part, consent for taking photograph of the body and private part and also to take specimen from the body and private part.
Q: You said you get the history, can you tell the court what did Saiful told you?
A: He informs what happened to him that he is being sodomized by a high profile public figure for 8 times for at least the last 2 months and the last incident was on 26th June 2008]. I asked whether any condom was used and he said no, but lubricant was used. I asked whether there is any penetration and he said yes. I asked whether ejaculation occurred and he said yes. I asked whether there is any force used and he said no. SP1 also inform he has undergone an examination at a private hospital, i.e Hospital Pusrawi on 28th June 2008 before attended by us.
KS: I would like to ask for the word “8 times” to be expunged.
NH: We are not trying to add evidence through this witness. We just wanted to say what this witness is inform, nit the truth about it. We cannot stop this witness from telling what was informed to him. The fact remain we are not going to prove the truth made but a statement was made.
KS: The purpose was the truth. In any event, that part was removed from the police report.
YA : It is not part of the charge, not part of the incident in the charge. The word “8 times” is expunged.
Q: In the same interview with Saiful, did Saiful mentioned about plastic inserted into him?
A: No. Not the word plastic.
Q: After the said interview, what happen next?
A: After the interview, we conducted the whole examination at around 9.45 p.m. on 28th June 2008.
Q: With regard to it, did you fill a form of “Borang Permohonan bagi Pemeriksaan Forensik/Toksikologi”
A: Yes. It was filled at the end of the examinantion.
Q: Mohon rujuk Borang Permohonan bagi Pemeriksaan Forensik/Toksikologi kepada saksi. Is this the form?
A: Yes. This is a copy of the form filled by me. It is my handwriting and there is my signature and sealed with HKL seal before I send it to the police officer to be sent to the Chemist Department.
Q: Do you recognised your signature?
A: Yes. At page 4.
Borang Permohonan bagi Pemeriksaan Forensik/Toksikologi dicamkan dan dikemukakan sebagai P26.
Q: At page 1, Para B, what was written there in your handwriting?
A: Alleged sodomy.
Q: At the same page, para B, you mentioned that the alleged sodomy the last episode on 26th June 2008. From where did you get the info?
A: From the patient, SP1.
Q: Whose handwriting is it?
A: My handwriting.
Q: What does the handwriting refer to?
A: The specimen I collected and sent to the Chemistry Department for analysis.
Q: The examination by Dr. Khairul and Dr. Razali, was it done simultaneously or one after another?
A: One after another, but for certain part it was conducted simultaneously.
Q: Were you there during the examination conducted by Dr. Khairul and Dr. Razali?
A: Yes.
Q: Did you see the samples specimen taken by Dr. Khairul and Dr. Razali?
A: Yes.
Q: Please explain what was your role in sample collection?
A: I collect the specimen from Dr. Khairul and Dr. Razali, label and seal it, fill the form and hand it over to the police.
Q: What were the samples extracted by Dr. Khairul?
A: Dr. Khairul collected swab from the left peritonsilar recess for seminal analysis, below the tongue for seminal analysis, left nipple and areola for saliva analysis, right nipple and areola for saliva analysis, body swab for saliva analysis.
Q: Did the samples collected by Dr. Khairul was handed over to you?
A: Yes.
Q: Where did you place the samples handed by Dr. Khairul?
A: I put it in sterile containers and label it.
Q: Where did you get the containers?
A: I brought it together from my department, Forensic Medicine Department.
Q: Were the containers sterile?
A: Yes.
Q: Were the labelling done before you?
A: I labelled the container myself.
Q: Did you write anything on the label?
A: Yes. Briefly including the clinical examination number, the name of the patient, the nature of the specimen, the police report, the name of the doctor.
Q: What were samples taken by Dr. Razali?
A: Samples from peri anal region, low rectal swab, and high rectal swab.
Q: High rectal swab, one or two times taken?
A: Two times.
Q: Was it handed over to you?
A: Yes.
Q: Where did you place them?
A: In containers, sterile bottles, same with what I did with samples from Dr. Khairul.
Q: What did you do with the containers?
A: I label it and sealed the bottle, and asked SP1 to sign the bottle and completed the request form and subsequently handed over to the police officer, Jude Blacious.
Q: Where did you label and seal the container?
A: At the OSCC, in the same room.
Q: How did you label the bottle?
A: I use sticker.
Q: Can you be more specific and describe about the sticker?
A: Sticker bears the logo of Government of Malaysia with the tag Kementerian Kesihatan Malaysia, Jabatan Forensik HKL.
Q: Did you sign the sticker?
A: Yes, I did.
Q: Who else were present in the room when you label it?
A: Dr. Khairul, Dr. Razali, SP1 and Jude Blacious.
Q: What did you do after that?
A: I fill in the form, put the bottle in the plastic bag and handed it over to ASP Jude Blacious on the next day, 29th June 2008 at 12.25 a.m.
Q: Where did you passed it to Jude?
A: In the same room.
Q: Did you sign any form when you hand over the bottle to Jude Blacious?
A: Yes.
Q: Mohon rujuk ID 23,
A: This is the copy of the form handling the specimen to the police officer. The form includes the list of the specimen, and my signature and acknowledgment from the police officer.
Q: Your signature?
A: Right lower half of the document and the police officer on the left lower half of the document.
ID23 dicamkan dan dikemukakan sebagai P23.
Q: Refer para B, no.2 – “Specimen taken from Dr. Khairul and Dr. razali”.
A: Yes.
Q: From whom the specimens were taken?
A: From Mohd Saiful Bukhari, SP1.
Q: You hand over the specimen to Jude Blacious at 12.25 a.m.?
A: Yes.
Q: Did ou make the marking B-B10 on the envelope consisting the specimen?
A: No.
Q: Mohon merujuk saksi dengan ID6(A)-ID6(L). Check one by one, are there your signature and label done by you on the containers?
A: Yes. There are the swab specimens with my handwriting, labelled by me, my signature on the top of the specimen, and SP1’s signature on the side of the specimens.
NH: Pohon ID6(A)-ID6(L) ditanda sebai P6(A)-P6(L).
ID6(A)- ID6(L) ditanda sebagai P6(A)-P6(L).
Q: Mohon rujuk saksi dengan P6(K)-P6(L). This is the container containing “blood from FTA card”.
A: I put my signature on the specimen and at the side is by SP1.
Q: Is the seal intact?
A: No. It has been opened by the Chemist.
Q: At the time you hand it over, is it sealed properly?
A: Yes, the seal was still intact at the time I hand it over to Jude Blacious.
Q: Is the seal by the Chemist intact?
A: Yes. This is not my seal, but the others are mine.
Q: Can you tell the court the procedure by Dr. Razali when he take the sample from SP1.
A: He swabs the peri anal region and put in the bottle labelled by me. He use a sterile swab stick.
Q: What about Dr. Khairul? Did he do the same thing?
A: Yes.
Q: With regard to the examination of SP1, were you with Dr. Razali and Dr. Khairul prepared the report?
A: Yes.
Q: Mohon rujuk P22. Can you tell the court the finding of your examination on SP1?
A: No significant injury on the body and the peri anal area.
Q: Did you put all your findings in the report?
A: Yes.
Q: Can you show your signature on the report?
A: On every page.
Q: What about the last page?
A: Above the name of Dr. Siew Shue Feng.
Q: Can you tell the name of the patient?
A: Mohd Saiful Bukhari bin Azlan.
Q: There is a history mentioned there. Can you read?
A: 23 year old Malay gentleman who alleged sodomized by a well known public figure for the past 2 months. The latest incident took place in the afternoon of 26th June 2008.
Q: Refer page 3, tell the court what are the specimen taken at number 6, 8, 9 and 10.
A: Item 6 – peri anal swab for seminal analysis, Item 8 – high rectal swab for seminal analysis, Item 9 – high rectal swab for seminal analysis and Item 10 – low rectal swab for seminal analysis.
Q: What are the other specimen taken for seminal analysis as stated in no.1 and no.2?
A: No.1 – swab from left peritonsilar recess for seminal analysis, and no.2 – swab from the below of tongue for seminal analysis.
Q: On the same page 3, para 3, stated the report of the chemistry investigation were received by the Department of Forensic Medicine. Have you personally read the Chemist Report?
A: Yes.
Q: May the witness being shown ID25. Is this the Chemist Report that you mentioned just now?
A: Yes. This is the copy of the Chemist Report I read.
Q: Refer page 1, para 1 of ID25 and please read.
A: [read].
Q: Refer page 2, middle para. Start with the word “plastic”. Please read.
A: [read]
Q: Refer back P22, page 3. Below the word “laboratory”. Please read it.
A: [read]
Q: Did you made the said marking B5, B7, B8 and B9?
A: No.
Q: Did you take sight of where B5, B7, B8 and B9 were taken?
A: No.
Q: Do you know the result of the sampling of B5, B7, B8 and B9 when you made the report?
A: No.
Q: Refer P22, page 4, read the conclusion.
A: [read]
Q: Explain what you mean by the statement.
A: We are not able to interpret without knowing the site of the samples.
Q: May the witness being shown ID24. Having identified the sampling and the presence of semen from the high rectal swab what is your conclusion?
A: There’s evidence of penetration, sexual penetration.
Q: Can you conclude there was anal penetration?
A: Yes.
Q: Having identified the presence of semen and the history taken fromSP1, is it consistent with penile penetration?
A: Yes.
Q: Refer P23, conclusion no.1, please read.
A: [read]
Q: Can you explain this statement?
A: There is no conclusive clinical finding suggestive of penetration to the anus/rectum and no significant defensive wound on the body of the patient.
Q: Does this mean there is no penetration at all?
A: No.
Q: Can penetration happen without any sign of injuries?
A: Yes.
Q: Under what circumstances can it happen?
A: It include the delay attended by doctors, use of lubricant, when doing the act there is no undue force, no undue resistance; all this were result to no clinical finding of injury.
Q: Do you agree your conclusion no.1 is based on clinical and physical examination only?
A: Yes. Based on clinical and physical examination only.
Q: On conclusion no.2, you say that you did not know the site of B5, B7, B8 and B9, correct?
A: Yes.
Q: To know the site of B5, B7, B8 and B9, do you agree it is important for a comprehensive complete report?
A: Yes.
Q: Do you agree that the report made by you is a comprehensive and complete report?
A: No. We still have to identify the location.
NH: YA, itu sahaja soalan untuk saksi ini.
KS: We reserve cross.
YA: DPP?
MY: No objection.
NH: Minta tangguh 10 minit.
[10.54 a.m.] Stand down.
[11.13 a.m.] Kes dipanggil semula.
NH: Pohon panggil saksi seterusnya (SP4), Dr. Khairul.
SP4 mengangkat sumpah di dalam Bahasa Inggeris.
Q: You are now attached at the Putrajaya Hospital?
A: Yes.
Q: Since July 2008?
A: Yes.
Q: Before that in the HKL, in Emergency and Trauma Department?
A: Yes.
Q: For how long?
A: I join since 2004 until June 2008.
Q: What was your position?
A: I’m a Emergency Care Specialist at the Emergency and Trauma (ET) Department at the time of the incident until I’m transferred out.
Q: So you are an Emergency and Trauma clinical specialist?
A: Yes. At the same time also responsible for the running of OSCC Department for cases such as domestic violence.
Q: Involve in forensic examination?
A: Yes.
Q: Please tell the court your academic qualification.
A: I obtain my first degree from University of Bangalore, India. In 2006, I obtain my Masters from USM.
Q: Please tell the court your working experience.
A: Houseman ship at Hospital Teluk Intan, 2001 at Chemor Health Clinic in Perak, 2002 at Emergency Department, Ipoh Hospital, then transferred to HUSM for my Master, during that process I was attached at ET Department HKL until I was qualified in 2006.
Q: From 1998 until 2008 you have conducted forensic examination?
A: 20 cases on sodomy.
Q: Did you undergo any training?
A: In-house training by our society, many courses on my specialty such as trauma cases and managing OSCC.
Q: Are you a member of Malaysian Medical Counsel?
A: Yes.
Q: Any member for other society?
A: []
Q: Have you ever testify the court?
A: Yes.
Q: To the best of your knowledge, did the court accept your testimony?
A: Yes.
Q: On 28th June 2008, were you on-call?
A: Yes.
Q: Did you examine Mohd Saiful, SP1?
A: Yes.
SP4 identifed SP1.
Q: Please tell the court how did you meet SP1.
A: I was called upon by my junior colleague to assist him in examining SP1.
Q: Later did you meet two more specialists in HKL?
A: Yes. Dr. Razali Ibrahim and Dr. Siew Shue Feng..
Q: When the three of you met, did you discuss the case?
A: Yes. We discuss how to approach and how to proceed with the case.
Q: What was the result of the discussion?
A: We agreed that I’ll be the first to examine SP1, then Dr. Razali.
Q: Who did the physical examination?
A: I did it, Dr. Razali on the anal examination.
Q: What was the role of Dr. Siew?
A: Dr. Siew is responsible to handle the sample, do the sampling and give expert opinions on the finding.
Q: After the discussion, what time did you enter the OSCC room to examine SP1?
A: Around 9.25 p.m.
Q: What happen in the room?
A: I started introducing myself and the rest of the team to SP1, and making sure we understand what was the complain, and explain to him the entire process of the examination.
Q: Did SP1 give his consent in regards for taking sample from him?
A: Yes.
Q: During sample taking, did SP1 said anything about plastic being inserted into his anus?
A: No.
Q: After obtaining the information, did you examine him?
A: Yes.
Q: How did you conduct the examination on SP1?
A: I examine him from head to toe. During the process SP1 consented the examination process and I did external examination and leaving the anal examination to Dr. Razali and any finding would be done by the three of us.
Q: What was the finding after examining the external part of SP1?
A: YA, may I refer my notes. [read]
Q: Apart from physical examination, did you take any specimen from SP1?
A: Yes.
Q: What are the specimens taken from SP1?
A: [read notes] I collected samples from the left peritonsilar recess for seminal analysis, below the tongue for seminal analysis, left nipple and areolar for saliva analysis, right nipple and areolar for saliva analysis, body swab for saliva analyis.
Q: Did you take any blood samples?
A: Yes. Blood for FTA card, blood for HIV, HepatitisC and blood for alcohol and toxicology.
Q: Refer the witness with P6A,B,C,D,E,G,L,K. Are these all the samples taken from SP1?
A: Yes.
Q: Who seal all the containers?
A: All specimens were labelled and sealed by Dr. Siew.
Q: How did Dr. Siew assist in collecting the samples taken by you from SP1?
A: During the examination, if there is any finding I will alert the other two specialists, including the measurement, and the remaining work done by Dr. Siew and all clinical procedures were followed.
Q: Is this the container you said just now?
A: Yes.
Q: What are the equipments you used to take sample from SP1?
A: A swab look like a cotton swab, sterilize and placed in plastic cover.
Q: Refer P19, are this the swab stick?
A: Yes.
Q: Are the samples collected from SP1 handed to Dr. Siew?
A: Yes.
Q: Where did you hand it?
A: In the examination room, in the OSCC.
Q: Through out the taking of samples, were the two doctors in the room?
A: Yes.
Q: Did you see Dr. Razali examine SP1?
A: Yes.
Q: Did you see Dr. Razali took samples from SP1?
A: Yes.
Q: After the examination, did the three of you prepare a report?
A: Yes.
Q: Refer P22, is this the report?
A: Yes.
Q: Is your signature there?
A: Yes.
Q: Please tell the court the name of the patient as stated there.
A: Mohd Saiful Bukhari bin Azlan.
Q: At page 3, what are specimens collected at item 6, 8, 9, and 10.
A: [read report] Item 6 – perinanal swab for seminal analysis, Item 8- high rectal swab for seminal analysis, Item 9 – high rectal swab rectal swab for seminal analysis and Item 10 – low rectal swab for seminal analysis.
Q: Apart from the four specimens what are the other specimen taken for seminal analysis?
A: [read report] swab from left peritonsilar and swab from the below tongue
Q: Refer page 3, para 3. Have you personally read the chemist report?
A: Yes.
Q: Refer ID25, is this the chemist report mentioned in P22?
A: Yes.
Q: Refer page 2 of ID25 (chemist report), from the word “plastic []”.
A: [read Chemist Report].
Q: Did you make the said marking B5, B7, B8 and B9?
A: No.
Q: Refer to your report (P22), page 3, bullet 2. Please read.
A: Presence of semen on swab B5, B7, B8 and B9.
Q: Do you know the site of the samples B5, B7, B8 and B9 when you prepare the report?
A: No.
Q: Refer page 4 of P22, the conclusion of the report. Can you explain the statement?
A: This is based on our clinical finding. We need to find anything to support the allegation made by the patient. Based on the physical examination, we find no symptoms of penetration.
Q: When you prepare this report, did you know the site of the sampling taken?
A: No.
Q: Refer ID24, page 2. Can you identify the siteof sampling of B5, B7, B8 and B9.
A: [read].
Q: Having known the site of samplings and the presence of semen, can you conclude there was anal penetration on SP1?
A: Yes.
Q: Having identified the semen from the high rectal swab taken from SP1 and recording of history, can you conclude there is penile penetration?
A: Yes.
Q: Refer to Conclusion 1 of P22. Please explain.
A: Based on the physical finding, we find no physical injury and we have come out with the conclusion which is based only on the physical examination.
Q: Does this statement mean there is no penetration at all?
A: No. That’s why we put the second statement.
Q: Can anal penetration happened without any sign of injury?
A: Yes. The possibilities are the duration of time taken by the victim from the incident present to the doctor, secondly from the allegation from victim there is no resistance, thirdly the use of lubricant.
Q: You did not know the site of sampling of B5,B7, B8 and B9 when making the report. Do you agree knowing the sight will help in making a complete and comprehensive report?
A: Yes.
Q: P22 that you prepared on 13th July 2008, do you agree that without knowing the site of sampling of B5, B7, B8 and B9, is it a complete and comprehensive report?
A: No.
NH: Itu sahaja soalan.
KS: Reserve cross.
YA: You want to continue with cross-examine of SP3 & SP4 or later baru cross SP2?
KS: No. I want to reserve cross for all the three doctors.
YA: All three has given evidence. I was under the impression to finish SP3 & SP4 examination-in-chief then only you will cross-examination them.
KS: No. I’m not ready to cross-examine them today.
MY: I have to agree with KS. They want to wait for the expert and what we agree is for the doctors to be finished first. They may not be able to call the expert today.
YA: So reserve cross until 25th Oct.
[11.53 a.m.] Adjourned.
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