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2008 MarsdenLR 3107
LOW HOP BING, J
HIGH COURT (MELAKA)
PP - Appellant
Versus
BALVEER SINGH MAHINDAR SINGH - Respondents
NO 42-4-2001
Decided On : 08/28/2008
Key Points: - The judgment holds that the prosecution failed to prove beyond reasonable doubt charges of accepting and soliciting under the PCC Act 1961. (!) (!) (!) - It confirms the accused was an agent of the Government of Malaysia (a chief inspector in RM police). (!) - It discusses the role and treatment of first information reports, their corroborative but non-substantive evidentiary value, and how omissions may affect credibility. (!) (!) (!) (!) - It analyzes contradictions between the informant’s police report and in-court testimony and their impact on the case. (!) (!) (!) (!) - It addresses the admissibility and handling of tape recordings and transcripts and finds them inadmissible due to tampering and lack of reliability. (!) (!) (!) (!) (!) (!) - It states the standard of proof: beyond reasonable doubt, especially in light of Arulpragasan and similar authorities. (!) (!) - It affirms the trial court’s findings of fact on witnesses’ credibility and the non-recovery of gratification, and defers to trial court’s assessment under the plain "plainly wrong" test. (!) (!) (!) (!) (!) - It concludes the prosecution’s appeal is dismissed and the acquittals affirmed. (!) (!)
How to determine whether the prosecution proved beyond reasonable doubt that the accused, as an agent of the Government of Malaysia, accepted or solicited gratification under the Prevention of Corruption Act 1961?
How to assess the admissibility and effect of contradictions between the first information report and witness testimony in evaluating credibility and sufficiency of evidence?
What is the proper standard and approach for appellate review of trial court findings of fact on credibility and non-recovery of gratification in a corruption case?
I. THE CHARGES
[1] In the sessions court, the prosecution preferred three charges under the Prevention of Corruption Act 1961 against the accused. These charges concern gratification from one Ee Chong Peng ("the complainant") as inducements to refrain the accused from taking actions against the foreign workers of the complainant at his construction site, and may be tabulated as follows:
Date, time and place Allegation
(1) 6 August 1996 2.30pm Klebang Beach Resort, Resort") Corruptly accepted for himself RM2.000, punishable under s. 4(a).
(2) 16 August 199610.45am Tek PPH Batang Tiga Corruptly solicited for himself RM2.000 punishable under s. 3(a) (ii)
(3) 29 August 19967.00pm Straits Cafe Jalan Ujong Pasir, Melaka Tengah Corruptly accepted for himself RM1,000 punishable under s. 4(a).
II. APPEAL
[2] On 28 August 2001, the learned sessions court judge ("the trial judge") acquitted and discharged the accused of all the three charges at the close of the case for the prosecution, without calling for defence.
[3] The instant appeal is lodged by the prosecution against the said acquittals.
III. INGREDIENTS OF THE CHARGES
[4] In order to establish a prima facie case in all the charges under s. 4(a) and s. 3(a) (ii), it is essential for the prosecution to prove that:
(1) the accused was at the material time an agent of the Government of Malaysia;
(2) the accused has, at the material time, accepted a gratification of RM2,000 and RM1,000 respectively from the complainant, punishable under s. 4(a), contained in charges (1) and (3); and
(3) the accused has, at the material time, solicited a gratification of RM2,000 from the complainant, punishable under s. 3(a)(ii), contained in charge (2).
(See Public Prosecutor v. Datuk Hj Harun bin Haji Idris (No. 2); [1977] 1 MLJ 15; and Pendakwa Raya lwn. Zakaria bin Mansor; [1997] 5 MLJ 505).
[5] Upon the ingredient of accepting under s. 4(a); and of soliciting under s. 3(a)(ii) having been established by the prosecution, the presumption under s. 14 arises ie, that the respective gratification has been accepted, or solicited, corruptly as an inducement in relation to the principal's affairs, unless the contrary is proved : Public Prosecutor v. Yuvaraj; [1969] 2 MLJ 89; Attan bin Abdul Ghani v. Public Prosecutor; [1970] 2 MLJ 143; and Zakaria bin Mansor, supra.
IV. STANDARD OF PROOF
[6] It is essential to note that the three charges against the accused were alleged to have taken place on 6, 16 and 29 August 1996 respectively. The law governing the standard of proof that is required from the prosecution at the close of the prosecution's case at the matrial time, is one beyond reasonable doubt, after embarking on a maximum evaluation of the evidence tendered by the prosecution : Arulpragasan a/l Sandaraju v. Public Prosecutor [1996] 4 CLJ 597; [1997] 1 MLJ 1 FC.
V. AGENT OF GOVERNMENT OF MALAYSIA
[7] It was not disputed that at the material time, the accused was a chief inspector in the Royal Malaysian Police and hence an agent of the Government of Malaysia.
VI. ACCEPTING: CHARGES (1) and (3)
[8] Upon a maximum evaluation of the evidence adduced at the close of the prosecution's case, the trial judge found that the accused had not accepted the 'trap money' ie, RM2,000 and RM1,000, alleged respectively in charges (1) and (3), as these sums of money were never recovered nor tendered as exhibits.
[9] In relation to charge (1), the complainant's first information report ("the report") (exhibit P3) stated that when he gave the RM2,000 to the accused at the Resort, it was witnessed by his friend (SP18). However, while testifying in court, the complainant's evidence revealed that SP18 did not witness nor see the RM2,000 being delivered to the accused, as SP18 had, unknown to the complainant, already left the Resort for another place. While it is true that SP18 did testify that he (SP18) saw the handing over of the RM2,000 by the complainant to the accused, having regard to the contradictions, the tri
