Pajan Singh Gill JCA:

Introduction And Definitions

[1] There were two appeals jointly heard before us both against conviction and sentence. On 18 April 2003 we dismissed both the appeals and indicated that we would give our reasons later We do so now.

[2] In this judgment unless otherwise stated the following terms, words, letters, and phrases bear their respective meanings assigned thereto or represent such items as defined:-

(i) Public Prosecutor includes the Deputies Public Prosecutor appearing with him;

(ii) First Appellant means Dato Seri Anwar Ibrahim;

(iii) Second Appellant means Sukma Darmawan Sasmitaat Madja;

(iv) Appellants means the first appellant and second appellant;

(v) Azizan is Azizan bin Abu Bakar denoted by identification of SP6 in the court below or PW6 in this judgment;

(vi) these appeals means both the appeals of the first appellant and second appellant;

(vii) this present case means the appeals under consideration by the court of Appeal;

(viii) learned counsel for the first appellant includes Mr Christopher Fernando; Mr Karpal Singh; Mr Gurbachan Singh; Mr Pawan Chik Merican; Mr Zulkifli Nordin; Mr SN Nair and Ms Marisa Regina;

(ix) learned counsel for the second appellant includes Mr Jagdeep Singh Deo; Mr Gobind Singh Deo and Mr Ram Karpal Singh;

(x) Prosecution means the public prosecutor in the court below;

(xi) Defence means the appellants in the court below;

(xii) May 1992 charge refers to the charges preferred against the appellants which carried the date of the alleged incident to be in May 1992;

(xiii) CJA means the Courts of Judicature Act 1964 as amended;

(xiv) EA 1950 means the Malaysian Evidence Act 1950 as amended;

(xv) CPC means the Malaysian Criminal Procedure Code as amended;

(xvi) Penal Code means the Malaysian Penal Code as amended;

(xvii) court below means the High court which heard this present case;

(xviii) the first trial means the trial of the first appellant under Kuala Lumpur High court Criminal Trial No 45-48-98 and 45-49-98 on a charge under Emergency (Essential Powers) Ordinance No 22 of 1970;

(xix) PW signifies witness for the prosecution and is in substitution for SP in the court below; and

(xx) DW signifies witness for the appellants and is in substitution for SD in the court below;

[3] In the first appeal the first appellant appealed against his conviction and sentence on a charge preferred against him for an offence punishable under s 377B of the Penal Code. On conviction the first appellant was sentenced to nine years imprisonment to commence after he has served his first sentence in respect of his conviction under the first trial.

[4] In the second appeal the second appellant appealed against his conviction and sentence on two charges preferred against him. Both charges were under the Penal Code with the first charge for an offence punishable under s 109 read with s 377B while the second charge was for an offence punishable under s 377B. For his first conviction the second appellant has been sentenced to six years imprisonment with two strokes of the rotan while for the second conviction he has also been sentenced to six years imprisonment and two strokes of the rotan. The imprisonment terms are to run concurrently.

The Charges

[5] The charge as amended preferred against the first appellant reads:-

Bahawa kamu, pada satu malam di antara bulan Januari hingga Mac 1993, lebih kurang jam 7.45 malam, di Unit No 10-7-2, Tivoli Villa, Jalan Medang Tanduk, Bangsar dalam Wilayah Persekutuan Kuala Lumpur telah dengan sengaja melakukan persetubuhan bertentangan dengan aturan tabii dengan Azizan bin Abu Bakar dengan memasukkan zakar kamu ke dalam duburnya dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah s 377B Kanun Keseksaan (NMB Bab 45).

Translation:-

That you, on one night between the months of January to March 1993, at or about 7.45 at Unit No 10-7-2, Tivoli Villa, Jalan Medang Tanduk, Bangsar, in the Federal Territory of Kuala Lumpur, did voluntarily commit car