Arifin Zakaria CJ (Malaya):

Background

[1] On 13 March 2009 by a unanimous decision we dismissed this appeal and we now give our reasons.

[2] The appellant in this appeal is a registered voter in the State Constituency, N15, Api-Api in the State of Sabah.The candidates for the said constituency in the general election held on 8 March 2008, were Ms Liew Chin Jin (also known as Ms Christina) and Datuk Dr Yee Moh Chai ("the respondent"). At the election, Ms Liew Chin Jin polled 3,245 votes against the respondent who polled 3,419 votes. The respondent was declared the winner of the election by a narrow margin of 174 votes.

[3] The appellant in his petition sought to declare the election of the first respondent as void pursuant to s 32(a) and/or (b) or (c) of the Election Offences Act 1954 ("the Act"). In the alternative the appellant sought the declaration that Ms Liew Chin Jin as being duly returned or elected.

[4] The petition was grounded on the allegation that the respondent and/or his agent with his knowledge and consent had during the campaign period, printed, published and caused to be distributed in the State Constituency, N15, Api-Api and the Parliamentary Constituency P172, Kota Kinabalu, pamphlets in Chinese Language with reference to the election for the purpose of intimidating, soliciting and persuading voters in the State and Parliamentary Constituencies to refrain from voting Ms Liew Chin Jin. The pamphlets do not carry the name and address of their printer and publisher. One of the pamphlets was tendered and marked as exh. P1. It carries the picture of Ms Liew Chin Jin and Dato' Seri Anwar Ibrahim. Exhibit P1(T), the official certified translation of the pamphlet reads as follows:

i) Terrible! Prevented funding to Chinese Schools while in power,

ii) While in power he (Datuk Seri Anwar Ibrahim) appointed non-Chinese speaking administrator to Chinese Primary Schools;

iii) Misled children into public demonstration...

iv) Do you want foreign culture here?

v) Even members of the public were not spared...

vi) Arson is what they are good at.

vii) PKR's culture of street demonstration = riot + panic + unrest.

Do you want this?

[5] It is not in dispute that exh. P1 does not bear the name and the address of its publisher and printer. Under s 11(1)(c) of the Act it is a corrupt practice for any person to print, publish, distribute or post up or causes to be printed, published, distributed or posted up any advertisement, handbill, placard or poster which refers to any election and which does not bear upon its face the name and address of its printer and publisher. If found guilty of such an act the person is liable to imprisonment for a term not exceeding one year and to a fine not exceeding two thousand ringgit. Therefore, the act of corrupt practice under s 11(1)(c) is an offence under the Act. Further s 32(c) of the Act provides that the election of a candidate at any election shall be declared void on an election petition on the ground that a corrupt practice or illegal practice was committed in connection with the election by the candidate or with his knowledge or consent, or by any agent of the candidate. Hence an allegation of corrupt practice if proved carries with it not only the penal consequence but could also lead to the avoidance of the election.

Contentions Of Parties

[6] The learned counsel for the appellant submitted that the learned Election Judge had misdirected himself as he had failed to appreciate the overwhelming circumstantial evidence which leads to the inevitable conclusion, that it was the agents of the respondent who were responsible for distributing exh P1.

[7] He also contended that the respondent in an election case and especially so on matters within his special knowledge, is under a duty to assist the court to adduce evidence to enable the court to have the full facts of the case. In other words the evidential burden of proof shifted to the respondent after the petitioner/appellant had established the ex