Mahkamah Tinggi Jenayah 3 KL
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah
TRIAL WITHIN A TRIAL
[2.30]
MY: Kes ditetapkan untuk perbicaraan dalam perbicaraan berikutan bantahan rakan saya, KS, berkaitan dengan penangkapan dan penahanan.
KS: DSAI will be giving evidence, under oath. SN will be the witness in this trial within a trial.
YA: So he shouldn’t be here.
KS: Yes, he shouldn’t be here. He will go.
YA: Yes, Mr. Karpal?
KS: Can we call DSAI?
TWT D1: Dato’ Seri Anwar Ibrahim
63 tahun, Ketua Pembangkang di parlimen Malaysia, alamat masih sama.
DSAI angkat sumpah dalam BM.
KS: Do you wish to giving evidence in English or BM?
AI: Saya pohon kebenaran untuk cakap dalam Bahasa Inggeris, memandangkan beberapa isu yang dibangkitkan dengan Datuk, itu agak teknikal berdasarkan keterangan awal, kalau boleh saya ingin berBahasa Inggeris.
YA: It is your right, tapi kena angkat sumpah semula dalam BI.
DSAI angkat sumpah sekali lagi dalam BI.
Q: Dato’ Seri, when was you were being arrested?
A: 16th of July 2008, 1 p.m.
Q: Let us start on the very beginning. On the 3rd of July 2008, can you tell us what happen?
A: At about 9 a.m, I was called by the MACC Putrajaya to give evidence to MACC with regard to my earlier police report on the fabrication of evidence in the 1998’s assault by the then IGP Tan Sri Rahim Noor against the AG Tan Sri Ghani Patail and the then IGP Musa Hassan. I was there accompanied by my 3 counsels, Datuk Paramcumaraswamy, Sivarasa, and Mr. SN Nair.
Q: Tell us what happened there?
A: At 10 a.m approximately we were brought in by Tuan Sazali of MACC for series of interview and questions with regards to the police report and he took down extensive notes. At about 12, I then informed him that I have an appointment, I have been summoned by the police to go to IPD at 2 pm. I requested that the interview be referred to a later date to allow me to go to police station on time.
Q: Which is at the IPK Jalan Tuah?
A: Yes.
Q: When you were told [] prior to go to Putrajaya?
A: I was Informed around 14th July by Sankaran Nair who was in touch with Supt. Jude Pereira. Then I was supposed to appear on the 16th. But I have told Sankaran Nair to inform Supt. Jude that I’ve been [] on the earlier date given by MACC, so he requested for 2 pm, and this was agreed upon by both parties; Jude and Sankaran Nair on my behalf.
Q: You were said that you go to Putrajaya on the 16th together with 3 counsels on which you mentioned earlier. You have to leave Putrajaya for the purpose of coming to KL to give your statement?
A: Yes.
Q: You said you were together with Datuk Param at that time?
A: Yes.
Q: []?
A: The officer, Sazali was kind enough and he make notes of that. And I believe this was written by him to say that he has to defer the investigation until a later date because Anwar has an appointment with the police at IPK at 2 pm at that particular day.
Q: You left Putrajaya together with Datuk Param?
A: Yes we left soon afterwards, and first sent Datuk Param to the Golf Club at Mont Kiara, and then I with Sankaran Nair and Sivarasa went straight to my house for Zohor prayer so that I can come back to IPK on time at 2 o’clock.
Q: During the journey to your home, did anything happen?
A: Sankaran Nair was first being in communication with Supt Jude, who was curious about my whereabouts, and Sankaran Nair said that we were then on our way to Segambut. We were then will be at IPK as scheduled at 2 p.m. And Supt Jude confirmed then; yes, so we proceeded to Segambut.
Q: Do you identify Jude?
A: Yes.
Q: Call him for identification.
A: Yes, this is Supt Jude.
Supt Jude dicamkan.
Q: What happen then?
A: On the way to my house in Segambut, and then immediately saw a mark vehicle blocked the route with few others police petrol cars and at about 10-15 commando special force, UTK squad, with balaclava on and with submissions guns around the area. So we have to stop abruptly.
Q: What would be the time?
A: Close to 1 pm.
Q: These commandos from UTK, were they armed?
A: Yes, I could see from the vehicle, with Sankaran Nair sits in the in front, they were armed.
Q: In what way were they armed?
A: I believe it is the submission guns.
Q: You at that point of time, was in the car?
A: Yes. I seated at the back, and Sankaran Nair was sitting in front beside the driver.
Q: What happen there?
A: Of course we have to stop. I remained in the car, Sankaran Nair met the officer who was dressed in uniform. One officer was in uniform, and then he approached the car, I overheard the conversation. I was asked to remain in the car and Sankaran Nair asked question to the officer.
Q: Do you overhear the conversation between SN Nair and the officer?
A: YA, you can expect the standard question like why are we stopped, what are you want to do and he said “arahan untuk menangkap DSAI.”
Q: How could you hear that from your car?
A: The car window, I make sure that..because I wanted to go out from the car but Sankaran Nair stopped me from coming out from the car before he could settle with the police officer.
Q: What was the rest of the conversation?
A: Sankaran Nair of course said that we were, Anwar was returning to the house for Zohor prayer, and he was summoned to meet Jude at 2p.m, so why did you need to arrest him now?
Q: Did the officer reply?
A: The officer merely said that “Arahan dan saya mesti bawa DSAI ke motokar saya untuk dibawa ke IPK. Saya diminta menangkap DSAI ke IPK dengan kenderaan saya.”
Q: What else the conversation between them?
A: YA, from what I could recall, Mr. Nair keep on repeating the questions like “what was the charge”, and the officer, I must say that he was quite polite and he wasn’t rude and just say, “look sir, saya terima arahan untuk menangkap DSAI”.
Q: What happened?
A: Then, Mr. Nair approached me and said that I have to come down from the car and move on to the other police vehicle.
Q: So you go down?
A: Yes but I am very upset, I was quite displeased, and I said to the police officer; “I’m going to the police station, so what is the point”? Mr. Nair then insisted that he will join me in this car. The police politely said to me, “Dato’ Seri, arahan adalah tangkap dan tolong datang ke motokar saya”. I said to Nair, “all right”, and then I followed.
Q: Were you at any time given ground for your arrest by the officer?
A: No, Sankaran Nair insisted, and the standard replies were “arahan, tangkap, naik motokar saya”. And the same position when I went to the other car, police vehicle, I asked the officer..(tak habiskan jawapan)
Q: What did you asked?
A: I said; “Apasal buat kat saya macam ni lagi?”
Q: Very polite?
A: He was polite, I must say. He was not rude, and he knew I was angry in fact, and he said “saya terima arahan, saya harap DSAI ikut saya”. Saya kata; “tapi, berapa kali dah? Dan saya nak pergi ni, dah bagitahu Jude.
Tuan tahu, pasal apa”? “Nak pukul saya?” I did ask repeatedly, because every time YA bila polis nak tangkap, trauma saya ialah kena pukul. Jadi saya tanya dia, dan dia bagitahu, “we will not beat you up”.
Q: This officer, he sat with you, in the car?
A: He was sitting at the front seat, I was at the backseat in the middle, and both to the right and left were the commando from UTK. So I was sitting in the middle.
Q: They were in uniform?
A: Senior officer in front was in uniform, but the UTK commando staffs were not in uniform.
Q: The officer, do you at any time know his identity?
A: Yes, he is very fair, wear spectacles…
Q: Did he mention his name?
A: He did mention I suppose, but I cannot recall his name.
Q: Can you identify him?
A: Yes.
Supt Ahmad Taufik bin Abdullah dicamkan.
Q: Upon reaching the IPK, where did he take you?
A: He escorted me to I can’t remember what floor.
Q: What was the room that you were taken?
A: YA I was brought to one large meeting room.
Q: Who was in the meeting room?
A: Not immediately but few minutes later some other senior officers appeared. Supt. Taufek left, I recall Supt Jude was there, the chief of the commando, Tuan Yahya and also a very senior officer who is in charge of police legal affairs, Tuan Razali.
Q: DSP Yahya, he was here the other day giving evidence?
A: Yes.
Q: Tell us what happen?
A: Of course I kept on asking them about…(tak habiskan jawapan)
Q: Before that, lawyers were there, at that time?
A: Yes, at that time, few minutes afterward, Mr. Sankaran Nair appeared, and join us.
Q: Any other lawyer there?
A: Mr. Sivarasa joined a bit later.
Q: What happen there?
A: I started by asking all the senior officers on “who gave this instruction, you know that I am supposed to appear, why am I arrested?”. And the standard answer is that I need to cooperate and there were keen to continue with the investigations and asked for my statement. But I said to them that “I have already agreed, and then why did you arrest me, just for asking my cooperation to give statement.”
Q: Did you make statements that day?
A: Yes, sometimes later I was escorted to a smaller room by a police sergeant, 5 to 10 yards away, and Jude Pereira was there and also one of my counsel, Sivarasa.
Q: For what purpose?
A: I was told to give statement to be recorded under Section 112 of CPC.
Q: Was the statement recorded?
A: Yes, about 2.30 until about 5.30 also, Jude Perreira asked some question, and I gave him answers.
Q: Did you sign the statement?
A: Yes, after completion, Jude said he was finished, and I remembered asking him “are you sure?” and he said “yes” so the statement recorded “sudah selesai” jam 5.40…
Q: You were shown the statement?
A: Yes, and I signed on every page.
Q: What was stated on the end of the paper?
A: Selesai.
Q: What were the exact words?
A: ‘Percakapan selesai’ and I asked him “are you sure there are no other questions?” Because I keen to go back home, and then he answered “yes” and then I signed.
Q: And it is recorded that ‘rakaman percakapan selesai’?
A: Yes.
Q: Then, what happen?
A: I was brought back to the main meeting room. It was very late for Asar prayer, and they gave the facilities for Solat Asar. Then, I just waited there, the senior officers appear, and from time to time I was asking them, “You told me the main purpose is to take my statement, I have completed my statement, but why am I here”? And they said you just wait for a while.
Q: Anything happen after that?
A: I waited, and nothing happen, and after maghrib prayer, around 8 o clock, Jude said to me, that we are going to the hospital now, and then they escorted me to HKL.
Q: Any particular room?
A: I believe it was 20 something room, 28 I supposed.
Q: Were you examined there?
A: Yes I was brought in, and Jude entered the room with me and my counsel Sivarasa. We were met by director of the hospital but they all left, leaving Jude Pereira, Sivarasa and one consultant surgeon – E Boon Leong and one consultant physician- Dato Jayendran Sinnadurai.
Q: Did they request anything?
A: They gave me certain forms, they want blood sample for DNA, hair and then some body swabs and then I said what is the law and what is the requirements, and then they were said that they want to get the blood sample for the purpose of DNA from me.
Q: Did you agree to it?
A: No, I said let me consult with my counsel. So I did consult with my counsel, and my counsel advised to cooperate to all the examinations, but not to give the samples.
Q: You complied with the advice of the counsels not to give the blood sample?
A: Yes, the doctors asked me again, I answered, one, it was the legal advice, second is my personal experience in 1998, where we have in evidence for fabrication of evidence, and blood sample is stolen from HKL.
Q: Were you being examined then?
A: Yes, but before that, I told the doctors that I don’t want to be examined in front of my lawyers, the police officers, the nurses, and they complied. So all the other including Jude Pereira had to leave and waited at the door, and these 2 doctors, asked me to take off my pants, coat, shirt, leaving me only with my singlet and underwear. And then after checking the upper part, I was asked to remove my underwear to measure private part, the length of my pubic hair, which is really degrading and demeaning and then they check my penis and anus.
Q: That was the extent of the examination?
A: Yes.
Q: Any swabs taken?
A: No, but all the external, the anus and the penis part were examined using all the cotton buds and whatever, except the insertion of the equipment was not done because I did not agree to those.
Q: After the examination were you taken back to the police station?
A: After the examination, the doctor asked me number of questions regarding the alleged sodomy and I cooperated and reply, after taking quite extensive notes, and after about 45 minutes, my examination completed and I left the hospital.
Q: And you were taken back to the IPK?
A: Yes, and brought to the same meeting room and I waited there for some time.
Q: What would be the time when you reach IPK?
A: About 11 o clock I came back. But YA, repeatedly I asked, and they all say that after the examination, you’re going back. I asked Jude, and Sankaran Nair asked Jude, and he said after your statement recorded, you’re going back home.
Q: Did they send you home?
A: No. After 11.30, they just said, Dato’ Seri, you are required to be here, and we will escort you to the cell. I said, this is strongly unfair, you told me that you will release, and why do I need to be detain? Standard answer by
the police, that they got instruction to put me in the cell.
Q: Before went to the lock up?
A: YA, I was brought in into the lockup, an hour later. At that time, when I first brought in, I don’t remember been given anything, but all together I remember all items given to me. One hour later I was brought back to the meeting room where Azizah and Nurul Izzah were there. I was allowed to meet them for about 15 minutes, and they said they brought.(tak habiskan jawapan)
Q: Did Yahya give you anything?
A: Yes, Azizah brought in, but I wasn’t allowed to touch and take anything. She was passing them to Yahya, and what was given other than the small white towel which was provided…(tak habiskan jawapan}
Q: What did exactly Yahya give you?
A: Two medium size towels, toothbrush, toothpaste and soap and the bottle mineral water.
Q: Any towel?
A: One white towel, one very small towel.
Q: This small towel, did you remember the type of it?
A: I don’t remember anything.
Q: If it shown to you, can you identify it? Good Morning towel?
A: Yes.
Q: In the lock up, were you alone?
A: Yes. In the lock up I was alone; of course there were guards there that you can see from distance, because this is the lock up on its own. This lock up has steel bars on both sides, and I did appeal to Tuan Yahya because of on my back condition, I cannot be left on the semens floor, which was very cold.
Q: The lock up was it air conditioned?
A: Yes I believe it was, and it is part of the office of the security area. So it was very cold, and the semens floor was really cold, and you can’t lean on the wall, because it just only steel bars on 4 corners. So you have to actually, sleep on the semen floor.
Q: What is the condition of this lock up?
A: YA, I don’t expect VIP treatment but I don’t really regard it of being a normal lock up, it was deployable, [] and there was no washroom but the laboratory was awfully dirty.
Q: You placed in the lock up at what time?
A: From 11 until about 8.30 on the following day.
Q: You were putting there in the night?
A: Yes, 11.30.
Q: You were taken out from the lock up at any time?
A: At about 12 something, about 15 minutes meeting with Azizah, Nurul Izzah with the presence of police officers, and then I was brought back to the police lock up.
Q: Was there any statement taken at the morning?
A: Yes, 8.30 in the morning I was brought back to the meeting room for few minutes then Jude Pereira instructed me to go to a small room where he said he wanted to continue as he has now some additional question and
lawyer Sivarasa was there.
Q: And there were statement taken from you?
A: Yes. I did protest on two grounds; 1) he promised that I will be released after the statement taken previously; 2) he said that he had finished recorded statement from me. But he says no, there are more questions he needed to ask, and that one is under Section 112 of CPC so I have to obliged.
Q: When were you []
A: I was there from approximately 8.30 to 9.30 Less than one hour.
Q: Was the statement signed by you?
A: Yes. The same procedure were followed, I was cautioned, I re-read, make corrections, every page signed.
Q: What happened after that? After you have completed making your statement.
A: I was brought back to the meeting room and asked to wait.
Q: You waited until when?
A: I waited for few hours and I think Tuan Yahya and Tuan Razali mentioned to me that “Yes, we are waiting for your car and you’ll soon be released”.
Q: So, you are allowed to go home?
A: Yes, YA. For medical treatment.
Q: You went back home?
A: Yes.
Q: And after that for medical treatment?
A: Yes.
Q: You left at about 12.30?
A: Yes.
Q: Why medical treatment?
A: Because I was in excruciating pain. I was given immediately [] jab.
KS: That would be all for my question.
Cross-examination by MY
Q: Dato’ Seri, how long was Mr. Nair talking to this officer who were there to effect the arrest of you?
A: About 5 minutes.
Q: 5 minutes. 300 seconds. During that time you were saying that at no time the police officer told you that you were arrested because of this case?
A: No. YA, to be honest, not only Mr. Nair asked the question, I asked the question in the car and there was no answer given.
Q: I put it to you Supt. Ahmad Taufik informed you that you were arrested because of this offence.
A: YA, no time did he…I mean, he was very polite, I wouldn’t deny that. But I kept on repeating and he said “Arahan tangkap Dato’ Seri pergi ke IPD”
Q: Upon reaching the IPK where you were placed in the meeting room, there were a number of senior officers there. Didn’t anyone of them tell you that why you were there? About the arrest, the ground of arrest?
A: They were there, yes and most of the discussion was about the need to get me to give a statement to Jude Pierera.
Q: And the statement is pertaining to the report?
A: Jude Pierera during 112 statement…
Q: You knew then the statement required from you was pertaining the report lodged by Saiful Bukhari?
A: Yes, by Jude Pierera in the meeting room.
Q: Not only you knew that, you were told.
A: I was told in the room, not in the meeting room, the second room, the smaller room where we went with Sivarasa that is recorded under S.112 with reference to this case.
Q: In fact way back on 14.07.2008 you knew you were required to go there for the purpose.
A: On 14.07.2008, I was told by Sankaran Nair that I am supposed to go to IPK or IPD to give a statement to Jude Pierera.
Q: Was there any other offences that you could think of which made the police arrested you on that day?
A: I commit no offence, YA. And you want to say that? What have not they said to me? Antinational treason, Yahudi agent, I don’t know what they want me for. There are 101 allegations in the daily papers, including not wearing a Malaysian batik.
Q: As far as you are concern, there was only one report against you during that material time and that report was by En. Saiful?
A: There are a few reports made against me on political issues including the one made by Saiful Bukhari’s.
Q: But on 14.97.2008 you were informed you were required to give statements pertaining to the report?
A: As far as I could recall there was nothing specific.
Q: Because it was your counsel who told you?
A: Yes.
Q: You said Nair was in communication with Jude on 16.07.2008?
A: Yes.
Q: And you were told about it by Nair?
A: I was in the car with Nair when Nair was in phone conversation with Jude Pierera.
Q: You yourself didn’t hear Jude?
A: Yeah, I heard Nair having a conversation.
Q: You heard him having conversation but you personally wouldn’t know whether or not that person with whom Nair was having conversation was Jude. You couldn’t confirm that until Nair told you.
A: Yes. That is very consistent with what I told the MACC at 12.00 p.m.
Q: Would you agree with me right from the time you were taken by Supt. Taufik until you were released the next day the police had been treating you with respect. They treated you well, no physical abuse and nothing. Do you agree with me?
A: It is true that there is no physical abuse but no question of the fact that I was treated were alike Botak Chin’s standard of high [] criminal. No normal person is ever placed in that lock-up.
Q: So, your problem is with regard to the condition of the lock-up, not the treatment?
A: Not the lock-up, the way I was treated. I was not told what was the offence, I was dragged like Al-Qaeda agent.
Q: You didn’t say that you were dragged. You said the officer was very polite to you.
A: The officer was polite. I don’t deny that. And I volunteered a statement. I was not asked.
Q: You didn’t say you were dragged. You cannot say that. I mean you have to talk about fact. Were you dragged into the car?
A: YA, what do you called that? In this condition with machine guns, armed team police cars. You say that is a normal arrest, YA?
Q: Were you physically dragged into the car?
A: There was no physical abuse.
Q: You were taken to the hospital?
A: But being in the lock-up, sleeping on the cement floor, is that not physical abuse?
MY: YA, my complaint will be the same with the defence counsel. I ask question, you answer. KS will ensure you explain.
Q: You were taken to the hospital and were asked to give your blood specimens and you refused on advice of the counsel. Who is the counsel?
A: The entire team from Haji Sulaiman downwards had always briefed me and at that point in time Sivarasa was there and prior to that Nair. All persistently advise me and I have explained it to the doctors. One of the doctors agreed to me. It is very important. [] nodded and said “I appreciate your predicament”.
Q: Did you refuse and did you know they wanted this for purpose of investigation?
A: I knew there were attempts to fabricate and [] unfair.
Q: Did you know that they wanted this for the purpose of the investigation? Because you told the court that the doctor asked you about this alleged sodomy. So, you knew it is for that purpose?
A: I did explain to the doctors and the doctors did record it.
Q: That is not the answer. Did you know that they wanted the blood specimens for the purpose of this investigation?
A: Yes, they told me and I explained to them the experience both in 1998, the fabrication, the [] charges and the continuing attempt now, YA. It is not something I’m saying it now in the court. I said it to the police and to the doctors.
Q: Dato’ Seri, the other question was this. You were given a mineral water. Would you agree with me that this mineral water was given to you when you were placed in the meeting room? In fact you had a drink there and brought this bottle back.
A: Yes. YA, whatever was given at any time before you enter the lock up, none could be brought by me. It has to be given by the police officer. Whether the same bottle was used I wouldn’t know.
Q: Most of the time you were with your lawyers?
A: No. Most of the time I was with the police.
Q: In the meeting room you were with your lawyers, when you were arrested you were with your lawyers, upon reaching there the lawyers were waiting for you. In fact before your statement was recorded, would you agree that you had meeting with your family members first? Because statement was only recorded at 3.00 o’clock. And you were there at 1.00 something.
A: My family members were not there.
Q: Your lawyers were there?
A: Yes, my lawyers were there. My family members were not allowed to be brought in until late night.
Q: Would you agree that statement was, in fact you can confirm that statements were recorded from you from 3-8 on the 16.07.2008?
A: 2.30-5.30.
Q: Before that?
A: I was asked to sit in the meeting room alone with the police officers coming back and forth.
Q: And then the next day, between 8.30-9.30?
A: Yes.
Q: And this time in the presence of your lawyers?
A: Yes.
Q: In fact when all the statements taking you were with your lawyers?
A: Yes.
Re-examination by KS
Q: You said just now Mr. [eee bue leong] said “Dato’ Seri, I understand your predicament”. He said that?
A: Yes. YA, there are two doctors, one Is consultant physician [datuk dr. jeyandran] and one is consultant surgeon [ee bun leong]. In medical report, only Jeyandran signed, but EE Bun Leong did not. signed but not []. Jeyandran was asking me for blood samples, Ee bun Leong said “Dato’ Seri, I understand the predicament to your deciosn. You are not compelled to do anything. You are right”. Because I said to thenm “:You follow my case, you know blood samples were stole from HKL in 1998”. So ee bun leong I could sense that he was listening and said “I leave it to you, I understand”
Q: And you are aware that he did not signed the medical report?
A: Yes, he did not signed. His name appear, his position, but he did not signed.
Q: You used the word “dragged” just now. Anything in literal or []?
A: [], but I was not physically dragged. That’s why I volunteered the statement from the beginning, and the police was polite.
YA: I understand that it is not physically dragged.
KS: My learned friend gives the other impression just now when I questioned Dato’ Seri.
YA: Teruskan.
Q: Were you ever at any time given grounds of arrest?
A: The point of arrest until the meeting room, all the senior officers was there but none of them made any reference to the charge. Only when I went to the room with Siva with Jude Pierera, Jude Pierera did mentioned the police report and the charge. Even at that time police report was not given. We appealed to him “Please show us that report, it was not given to us”.
Q: I’m talking about ground of arrest. Grounds of arrest were never given to you at any time?
A: No.
Q: Right from the time you were arrested to the time when you are released?
A: It is established fact that the police report was not given to us and I was not told of the ground of arrest.
Q: Did they give you grounds of arrest? They took your statement. Did they give you the grounds of arrest?
A: No. they did not. They just said there is a police report and I asked where is it and it was not given to me. I was not given any basis but they said “You are required under S.112 CPC” and I said “I understand the law”.
Q: When you take the statement, no mention of the ground of arrest?
A: No.
KS: No further question.
YA: Next witness will be Sankaran nair?
KS: []
TWT DW2: Sankaran Nair
TWT DW2 affirm the oath in English.
Advocate & Solicitor. 55 years old.
Q: On 16.07.2008, did you go to Putrajaya together with DSAI?
A: I did.
Q: What was the purpose of going there?
A: I was acting as solicitor for DSAI in the matter of his report to ACA for certain matters.
Q: Tell us what happened. From where did you go and with whom, apart from DSAI.
A: I and another lawyer, Mr. Sivarasa met at DSAI house and we fetched Datuk Param along the way and we proceeded and reached there at about 10.00 a.m.
Q: And the purpose is for DSAI to give a statement?
A: To give a statement in respect of his police report against Tan Sri Ghani and Tan Sri Musa Hassan for black eye incident.
Q: How long were you there together with Dato’ Seri at the MACC office in Putrajaya?
A: He was supposed to give the statement for the entire day but DSAI was aware and we keep reminding him again and again that he has to be at IPK at 2.00 p.m. because I have told DSP Jude that we will be at IPK KL at 2.00 p.m. we did tell the officer recording at about 12.00 p.m. that we had to leave otherwise we will be late. And as a result, the officer recorded down what has been said about our meeting in IPK with DSP Jude. And we left at about 12.00 p.m.
Q: You left for where?
A: We was supposed to drop Datuk Param and naik satu kereta ke IPK. But the time we reached Selangor Club in Kiara…
Q: What was the purpose at Selangor Club?
A: Datuk Param’s car was there so we have to drop him there and it was nearly 12.35 p.m. at that time. Since there was so much time left DSAI suggested that he wants to pray and freshen up before we proceed to IPK and Kiara is near to DSAI’s house so we went to his house.
Q: What happened on the way?
A: By the time we passed Garden School at merely 12.30 or 12.40, DSP Jude asking me “Where are you?” and I said “Look, we are still early. We are going back to DSAI’s house, and he’ll pray and freshen up and I’ll asure you I’ll be bring him at 2.00 sharp”.
Q: Where?
A: To the IPK.
Q: Anything happened on the way to DSAI’s house in Segambut?
A: In about 10 minutes thereafter as we proceeded to DSAI’s house mengikut Jalan Segambut Dalam, we have to get to DSAI’s house through a slip road and as we entered the slipped road, we were ambushed by several police cars. And I particularly remember a green unmarked wheeler [] and there were about 10 or so balaclava clad and platoon commanders and they all having armed and very menacing surrounded DSAI’s vehicle.
Q: After that what happened?
A: I told DSAI to remain in the car because the situation is rather menacing since I don’t expect machine gun to arrest one man and then plus too many cars. We were quite alarmed. In fact, DSAI was quite alarmed, threaten and fearful of himself. We just sat for a while and I told DSAI [], don’t come out and I will talk to the officer. When I opened the door, an officer I think Supt Taufik if I can recall, he is Superintendent because he is in uniform.
Q: Is he here? If I call him will you be able to identify him?
A: Yes.
Q: Supt. Jude also, can you identify?
A: Yes.
Supt. Taufik and Supt. Jude identified.
Q: Carry on.
A: This things is in our mind because the last time we told the police that we will surrender DSAI in 1998 the last time when we told that we will surrender DSAI in 1998 without any problems if you ask us to bring him and thereafter we expected them to invite him to the police station, they stormed the house. So, that fear operated in all of us, me and DSAI that it is happening again.
And I told him not to come out of the car and I talked to the officer Taufik and I asked him “What is it that you want? We are supposed to be there at 2.00 p.m. and I’ve just spoken to DSP Jude.” And he said “My order are to arrest DSAI and take him to IPK” and I asked him “What is the charge? Why do you have to arrest him?” and he said “My orders are to arrest and bring him to IPK”.
I asked him “Why don’t we go in DSAI’s car? You can escort us and you don’t have a reason for him to be arrested by you” and he said “No. My orders are strict and I am to arrest him and take him into my vehicle”. [] and I said “Alright, I have to talk to client”. I then walked to DSAI’s car and opened the door and asked him to come out and told him “Looks like you have to go. They are very strict about this”.
Thereafter I escorted him to the four wheeler vehicle and I asked Supt Taufik “Can I follow? At least let the lawyer be with him” as a fact they are taking him now and to that he said “No. there is no space in the vehicle. There are two escorts and DSAI will be there, so there is no space and you have to come on your own”. So then we followed the vehicle thereafter as soon as DSAI were driven away.
Q: Right off to IPK?
A: Yes, we went to IPK
Q: What happened at the IPK? []
A: As soon we were there, at 7th floor, we were ushered to a meeting room. And there, if I recall there is ACP Razali, DSP Jude and I can’t recall the others who were there together with DSAI and ACP Razali then said to me “Look Mr. Nair, we are not going to detain your client. We just want to take his statement. And after the statement, he may leave”. Soon, the other lawyers just arrived and Datin Seri also arrived and on that assurance we left one lawyers aside and we left the office and waited down stairs.
Q: So, that was your on that day ?
A: Yes.
Q: From the time DSAI was apprehended, stopped [], did Supt Taufik gives any grounds of arrest to DSAI at any time?
A: Absolutely no, YA. He was rather robotic and says “My instruction is to bring DSAI to IPK”. That’s it.
Q: Was DSAI given grounds of arrest at any time at the IPK by anybody?
A: Not in my presence at all.
KS: That will be all, YA.
Cross-examination by MY
Q: Would you agree with me that Supt Taufik didn’t talk much?
A: As I said he is robotic and all he said is “My order is to arrest DSAI”.
Q: Yes or no?
A: Yes.
Q: You asked him why was he there.
A: Yes.
Q: And would I be correct to say that he said “I have an order to arrest DSAI pursuant to this offence”?
A: He said “I’m here to arrest”. That’s all.
Q: My instruction is you were told the reason of arrest.
A: No, he did not tell me the reason for the arrest.
Q: There’s one statement you made towards the end, with the assurance that he will be released that night.
A: Yes.
Q: I just want to ask this question, if there is no assurance what will happen?
A: If there is no assurance obviously we will then as lawyers will apply perhaps for habeas corpus.
Q: On what ground?
A: On the basis that the arrest was illegal.
Q: Why?
A: He has agreed to give statement to the police and there is no reason to arrest. Under S.111 CPC, you don’t arrest the person if you can’t go and apply for a summons before a Magistrate to have him comply it to come to the police station. You don’t arrest a person for that.
Q: Would you agree that S.111 CPC apply to witnesses and not suspect?
A: At that time we don’t know they were [] him as what.
Q: Would you agree that DSAI was a suspect?
A: At that time? We don’t know at that time.
Q: Are you aware of all the reports made against DSAI?
A: Of course I’m aware.
Q: So?
A: He can be a witness. He can be anybody. That’s why we did not know at that time what you have decided to treat him as.
Q: In fact the report was published in the newspapers. The whole of Malaysia, if not the whole of the world know there was a report alleging sodomy. Were you aware of that?
A: Yes.
Q: Didn’t that make him a suspect?
A: That’s for you to decide. I’m a lawyer.
Q: Yes, because you are a lawyer I ask you.
A: He can be anybody. Anybody that you want him to be.
Q: Allegation is made against you, didn’t that make him a suspect?
A: I am a lawyer. I am not a prosecutor or the police to decide that.
MY: YA, may I ask this question?
Q: You were a police officer before?
A: Of course.
Q: You are a SB (Special Branch) and you were in commercial crime?
A: Yes.
Q: When did you call a person a suspect?
A: When I want to take his statement.
Q: []. There are many people whose statement are recorded and yet no report is not against them and that doesn’t make them a suspect.
A: Not necessarily.
Q: So, when their statements are recorded, they are a suspect? That’s what you said.
A: You can be. You can also be arrested.
Q: So now, in this particular instance you knew that DSAI’s statement was about to be recorded and it makes him by your answer, a suspect.
A: There is no legal definition of a suspect.
Q: I mean, it is by your definition.
A: [] either a witness or an accused. [] of suspect. Can you tell me in the CPC the definition of a suspect?
Q: I took it by your definition.
A: You say suspect, I don’t say suspect.
MY: YA…
KS: Leave it for submission.
YA: Yeah, this is about the law.
MY: Okay []
YA: We want facts only, not law.
MY: Yes, YA. That’s why sometimes I always wonder whether or not the counsel should be allowed to ask all about the law. But anyway..
Q: You speak to Jude on 14.07.2008?
A: Yes. He called a few times.
Q: What did you talked to him about?
A: There are few conversations between me and him so I don’t know which one are you referring to.
Q: On the 14th.
A: All I know is on the 13th we told him “You have served S.111 and you didn’t serve it on him personally therefore my client is not obliged to come”.
Q: Was that the only conversation?
A: I believe he was asking to fix appointment again.
Q: During that day how many conversations you have I wouldn’t know. But you know that DSAI is required to come to IPK on 16.07.2008?
A: No. That was an agreement he made. []
Q: My suggestion is on 16th July there was no communication at all between you and DSP Jude?
A: Absolutely.
MY: That would be all.
Re-examination by KS.
Q: Were you an experienced or at least police officer?
A: Yes.
Q: When did you join the police force?
A: I joined in 1982.
Q: As what?
A: I was a Cadet ASP.
Q: You were in the force for how long?
A: About 8-9 years.
Q: And you have experience of crime investigation?
A: Yes. [] in other branches.
Q: In this case were you aware that S.111 order was issued?
A: I was aware when the family called me on Sunday saying that S.111 order was given to the guard at the guard house.
Q: S.111 are addressed to?
A: The name was DSAI on the [].
Q: What is the S.111 order?
A: It is an order to appear before a police officer at the police station or in a police station.
Q: As a witness under S.112?
A: As a witness under S.112. That’s true.
KS: That would be all, YA.
MY: I only have one question through the court.
YA: Apa dia?
Q: With regard to S.111, is it true that you don’t recognized that as being served on your client?
A: As I understand the law, S.111 must be served personally on the person required…
Q: And you don’t recognize it?
A: As lawyers, we don’t recognize that.
MY: That’s all.
KS: Just one question.
Q: It was in fact issued?
A: Yes, it was issued. Definitely.
Q: It was a S.111 order?
A: Yes. S.111 order. It was issued.
KS: That would be all.
YA: You can now go out.
KS: We will be calling Mr. Sivarasa. He will be here tomorrow morning.
YA: He is not here now?
KS: He is not here.
MY: I though I don’t want to call rebuttal witness but in view of what he said I have two rebuttal witness, with only one question each.
KS: We must close our case first.
YA: Yeah. And later baru rebuttal boleh call.
KS: You can’t jump the gun.
MY: Most of the thing said we accept.
KS: This is a criminal trial, YA. We must placed before this court all the materials, YA.
YA: Start tomorrow with Sivarasa. You got two rebuttal?
MY: Two rebuttal witnesses, Taufik. I want to ask whether or not he informed. That’s all. []
YA: Okay. But it has to be after Sivarasa.
MY: Yes.
YA: So boleh habis lah esok?
KS: We’ll try our best.
YA: Continue tomorrow at 9.00 a.m.
[3.52 p.m.] Adjourned.
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