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2009 MarsdenLR 3373
HIGH COURT, KOTA KINABALU
ABDUL KARIM KULA – Appellant
Versus
PP – Respondent
[Criminal Appeal No: K42-09-2009]
Misdirection on proving dates in charges does not automatically lead to miscarriage of justice if evidence sufficiently supports convictions.
Headnote:(A) Anti-Corruption Act 1997 - Section 11(c) - Conviction for submitting false documents with intent to deceive the principal - Appellant charged with ten offences involving false LPOs and invoices totaling RM92,000 - Trial court found that there was a prima facie case and sufficient evidence of knowledge of falsity by the appellant, leading to convictions upheld. (Paras 1-3)
(B) Evidence - Significance of Dates - The court ruled that proving dates of offences is crucial when they are essential to the charge, but misdirection on this point did not inherently lead to a miscarriage of justice. (Paras 4, 9, 10)
(C) Accomplice Evidence - Section 44(1)(a) provides that witnesses cannot be deemed accomplices solely due to involvement in the crime, but the court found that PW52 was indeed an accomplice and required corroboration. (Paras 18-24)
(D) Burden of Proof - The court affirmed that the burden on the prosecution remains proof beyond a reasonable doubt, even with circumstantially derived evidence. (Paras 13, 35)
Findings of Court:
Evidence overwhelmingly established the appellant's knowledge and involvement in the false documents, despite misdirections on legal interpretations.
Issues: The main issues revolved around the relevance of proof of date in the charges, the classification of witness evidence, and proper evaluation of the evidence presented.
Ratio Decidendi: The court emphasized the importance of the appellant's significant role in the preparation of false invoices and LPOs, finding the evidence compelling.
Result: Appeal against conviction dismissed; sentence of five years imprisonment and a fine upheld.
| Table of Content |
|---|
| 1. appellant charged with corruption offences. (Para 1 , 2) |
| 2. arguments on dates of offences raised. (Para 3 , 4 , 6) |
| 3. court's reasoning on the significance of dates. (Para 5 , 7 , 10) |
| 4. relevance of evidence types considered. (Para 8 , 9 , 11 , 12) |
| 5. court affirmed misdirection did not prevent a fair trial. (Para 14 , 16) |
| 6. application and misunderstanding of s. 44(1)(a). (Para 18 , 19 , 21 , 22 , 24) |
| 7. credibility of accomplice testimony discussed. (Para 20 , 26 , 27) |
| 8. judgment on acceptance of witness testimony. (Para 30 , 32 , 33) |
| 9. final conclusion on conviction and sentence. (Para 34) |
Factual Background
[1] The appellant was charged in the Sessions Court at Kota Kinabalu with ten offences under s. 11(c) of the Anti Corruption Act 1997 ("the Act") and was found guilty on each count after a full trial. He was sentenced to a total concurrent term of five years imprisonment and a total fine of RM429,000 in default three years imprisonment. Section 11 (c) of the Act under which the appellant was convicted provides as follows:
If
(c) any person knowingly gives to an agent, or if an agent knowingly uses with intent to deceive his principal, any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal,
he shall be guilty of an offence.
[2] The documents which formed the basis of the charges were ten Local Purchase Orders ("LPOs") and ten invoices involving a total claim of RM92,000. These LPOs and invoices related to orders made by the Beaufort Education Office to the suppliers for the supply of goods and services at the costs stated in the LPOs. The appellant was head of the Beaufort Education Office at the material time. The prosecution case is that these LPOs and invoices contained false material particulars to the knowledge of the appellant and that he had used them with intent to mislead the principal. After a very careful evaluation of the entire prosecution evidence the learned trial judge found that the prosecution had established a prima facie case against the appellant.
[3] Before this Court the decision is attacked on three fronts, in the following order:
1. The learned trial judge misdirected herself in holding that the dates in the charges do not constitute an essential ingredient of the offences charged.
2. The learned trial judge misdirected herself in holding that PW52 had not exceeded the role of a witness for him to be protected under s. 44(1)(a) of the Act .
3. The learned trial judge was wrong in accepting wholesale the evidence of PW6 and PW52.
The Dates In The Charges
[4] It is the prosecution case that the offences were committed on the dates written on the LPOs. However none of the witnesses called by the prosecution testified that it was the appellant who wrote the dates. The prosecution evidence merely shows that the LPOs were signed in 2004. The appellant's contention is that since the prosecution failed to prove that the appellant signed the LPOs on the dates written on the LPOs the prosecution failed to prove that the offences were committed on the dates specified in the charges. The learned trial judge disagreed. In her opinion the failure to prove the dates in the LPOs was not fatal to the prosecution case and had not raised any reasonable doubt in her mind as to the case for the prosecution. This is how she dealt with the issue:
The issue that arose was whether the prosecution's failure to prove the commission of the offences on those dates had raised a reasonable doubt in the case for the prosecution. The answer to this, in my opinion, turns on whether the dates stated in the charges are an essential element of the alleged offences. It has been consistently the decision of the courts in this country that the date of offence is of no importance unless it is an essential part of the
