Grounds of judgment of Datuk Seri Anwar Ibrahim vs PP – Full report

The full grounds of judgement by the five eminent judges in Sodomy II are out. This is the ultimate document for the full comprehension and understanding on why a guilty verdict had been arrived on Anwar.

mole-Anwar-Ibrahim-Saiful-Bukhari-1

IN THE FEDERAL COURT OF MALAYSIA

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.: 05-47-03/2014(W)

BETWEEN

DATUK SERI ANWAR BIN IBRAHIM … APPELLANT

AND

PENDAKWA RAYA … RESPONDENT

JOINTLY HEARD WITH

IN THE FEDERAL COURT OF MALAYSIA

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.: 05-48-03/2014(W)

BETWEEN

PENDAKWA RAYA … APPELLANT

AND

DATUK SERI ANWAR BIN IBRAHIM … RESPONDENT

CORAM:

ARIFIN ZAKARIA (CJ)

RAUS SHARIF (PCA)

ABDULL HAMID EMBONG (FCJ)

SURIYADI HALIM OMAR (FCJ)

RAMLY ALI (FCJ)

JUDGMENT OF THE COURT

INTRODUCTION

[ 1 ] This is an appeal by the appellant against the decision of the Court

of Appeal dated 7.3.2014 which allowed the prosecution’s appeal

against the decision of the High Court. The appellant was convicted

of the offence as charged and sentenced to a term of five years

imprisonment. The prosecution cross-appealed on sentence.

[ 2 ] The charge preferred against the appellant reads:

“Bahawa kamu, pada 26 Jun 2008 antara jam 3.01 dan 4.30

petang di alamat Unit 11-5-1, Desa Damansara

Condominium, No. 99 Jalan Setiakasih, Bukit Damansara,

Kuala Lumpur di dalam Wilayah Persekutuan Kuala Lumpur,

telah dengan sengaja melakukan persetubuhan yang

bertentangan dengan aturan tabii dengan Mohd Saiful Bukhari

bin Azlan 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.”

English translation:

[“That you, on 26 June 2008 between 3.01 p.m. to 4.30 p.m.

at Unit 11-5-1, Desa Damansara Condominium, No. 99, Jalan

Setiakasih, Bukit Damansara, Kuala Lumpur in the Federal

Territory of Kuala Lumpur, did intentionally commit carnal

intercourse against the order of nature with Mohd Saiful

Bukhari bin Azlan by inserting your penis into his anus; and

thereby have committed an offence punishable under section

377B of the Penal Code.”]

[ 3 ] The offence of carnal intercourse against the order of nature is

governed by s.377A and in this case punishable under s.377B of the

Penal Code. For ease of reference, these two sections are

reproduced below:

“Carnal intercourse against the order of nature

377A. Any person who has sexual connection with another

person by the introduction of the penis into the anus or mouth

of the other person is said to commit carnal intercourse

against the order of nature.

Explanation – Penetration is sufficient to constitute the sexual

connection necessary to the offence described in this section.

Punishment for committing carnal intercourse against the

order of nature.

377B. Whoever voluntarily commits carnal intercourse against

the order of nature shall be punished with imprisonment for a

term which may extend to twenty years, and shall also be

liable to whipping.”

[ 4 ] S. 377A of the Penal Code deals with two specific deviant forms of

sexual behaviour, namely sodomy and oral sex. In the Explanation

to the section, it is stated that penetration alone is sufficient to

constitute the sexual connection necessary for the offence. No

mention is made of consent. Thus consent is not an ingredient of

the offence and is not accepted as a defence (Mallal’s Penal Law,

2002, Second Edition).

THE FACTS

[ 5 ] The facts relevant to this appeal as narrated by the trial judge are

briefly as follows: Mohd Saiful Bukhari bin Azlan, the complainant

(PW1), testified that he started working as a volunteer with the

appellant in early March of 2008. From the end of April 2008 PW1

then worked as the personal assistant to the appellant. His duties,

amongst others were to arrange for meetings, to communicate with

agents and Members of Parliament from the appellant’s party, to file

confidential documents and to oversee the appellant’s personal

handphone. He also assisted the appellant’s Chief of Staff, Ibrahim

bin Yaacob (PW24) to prepare work schedules as instructed by the

appellant.

[ 6 ] On 26.6.2008, on the appellant’s instruction PW1 went to Unit 11-5-

1, Desa Damansara Condominium, No.99, Jalan Setiakasih, Bukit

Damansara, Kuala Lumpur (Unit 11-5-1). PW1 took with him some

documents given to him by PW24 to be delivered to the appellant.

[ 7 ] PW1 left the office at about 1.45 p.m., and drove to Desa

Damansara Condominium in a Fiat van bearing registration number

WPK 5925. He arrived at Unit 11-5-1 at approximately 2.45 p.m. and

upon arrival PW1 found the door not locked. He then entered the

unit. He saw the appellant seated at the dining table. PW1 then sat

at the table facing the appellant and placed the documents on the

table.

[ 8 ] They discussed work schedule and not long after that the appellant

asked PW1, “Can I fuck you today?”. PW1 said initially he refused

and when the appellant asked him why, PW1 answered that he did

not wish to do it that day. The appellant then instructed him in an

angry tone to go into the master bedroom. PW1 followed the

appellant’s instruction. In the bedroom, the appellant closed the

curtain and switched off the light. He then directed PW1 to clean

himself in the bathroom. PW1 then went into the bathroom and

came out covered only with a towel.

[ 9 ] The appellant was then standing at the lower right end corner of the

bed, clad only in a white towel. PW1 went to the appellant when he

was told to do so and the appellant hugged him.

[10] Further evidence was given in camera where PW1 described the

carnal intercourse by describing how his anus was penetrated by

the appellant’s penis with the aid of a lubricant known as ‘KY Jelly’.

PW1 also testified that the appellant ejaculated in his anus. After the

carnal intercourse PW1 went into the bathroom and wiped himself

with water. The appellant then invited PW1 to have some

refreshments with him. 20 minutes later, PW1 left the condominium.

[11] On 27.6.2008, PW1 sent an e-mail to the appellant conveying his

wish to resign. The reasons he gave were that he was undisciplined,

always late to the office and also felt the pressure as he was given

a room in the new office over those who were more qualified.

However, in his testimony PW1 said that the real reason for his

resignation was that he did not wish to be sodomised by the

appellant again.

[12] On 28.6.2008 at 1 p.m., PW1, accompanied by his uncle Tuah bin

Mohd Ali, went to Tawakal Hospital at Jalan Pahang but failed to

see any doctor as it was a half working day. PW1 then proceeded

to PUSRAWI (a private hospital) at Jalan Tun Razak where he met

Dr. Than Aung @ Muhamed Osman bin Abdul Hamid (DW1). PW1

informed DW1 that he had stomach ache and felt pain in his anus.

DW1 examined PW1 and while DW1 was inserting something into

PW1’s anus, PW1 told him that he had been sodomised and needed

an examination. Upon hearing this, DW1 immediately stopped the

examination and told PW1 that PUSRAWI did not have the facility

for forensic examination. PW1 was also informed by DW1 that any

medical report from a private hospital could not be used as evidence

in court. PW1 was then directed by DW1 to go to a government

hospital and suggested Hospital Kuala Lumpur.

[13] PW1 went to Hospital Kuala Lumpur and registered himself as an

outpatient. That was around 3.00 p.m. He was then referred to one

Dr. Daniel. PW1 informed Dr. Daniel that he wanted to be examined

because he was sodomised by Dato’ Seri Anwar lbrahim. Upon

hearing this, Dr. Daniel issued a referral letter and directed PW1 to

go to the One Stop Crisis Centre (OSCC) at the emergency

department. He arrived at the OSCC at about 3.30 p.m.

[14] After about 30 minutes at the OSCC, a doctor came and took PW1’s

blood pressure. PW1 informed the doctor the reason for seeking

examination was that he had been sodomised.

[15] At about 4.30 p.m., the doctor came again and advised PW1 to

lodge a police report without which a forensic examination could not

be performed on him. After waiting for about an hour, two policemen

came with a form for PW1 to lodge his report. PW1 then made his

report (P3).

[16] After lodging the police report, PW1 was examined by three doctors,

namely, Dr. Mohd Razali Ibrahim (PW2), Dr. Siew Sheue Feng

(PW3) and Dr. Khairul Nizam bin Hassan (PW4). Also present was

Dr. Razuin binti Rahimi (PW23), who filled up the pro forma form.

[17] PW2 took swabs from the perianal region, low rectal and high rectal

from PW1, while PW4 took swabs from the oral cavity at the left

peritonsillar recess, below the tongue, the left nipple and areola, the

right nipple and areola, body swab from the mid chest to epigestur

and one penile swab from the hiatus and coronal area.

[18] While PW1 was being examined, the investigating officer Supt. Judy

Balcious Pereira (PW25) was present to observe the whole

examination on PW1. PW1 further testified that since the date he

was sodomised until he was examined by PW2, PW3 and PW4, he

had not passed motion.

[19] The samples collected from PW1 at the hospital were then placed

into individual containers, labelled and sealed by PW3. The samples

were then placed inside a sample bag (P27) which was then sealed

and handed over to PW25 at 12.35 a.m. on 29.6.2008. PW25 then

placed P27 in a steel cabinet in his air-conditioned office.

[20] On the same day, PW1 handed over to PW25 the KY Jelly (P4), a

long sleeve Ralph Lauren brand shirt (P11), a pair of black trousers

(P12), a green shirt (P13), a grey underwear (P14) and a dark blue

underwear (P15).

[21] On 30.6.2008, at about 9 a.m., PW25 cut the bottom of P27 and put

each container containing the swabs into individual envelopes which

he marked as B to B10. On the same day at about 7.55 p.m., PW25

handed over the envelopes together with a handing over form,

‘Pol.31’ (P24), to the chemist, Dr. Seah Lay Hong (PW5) who

acknowledged receipt (P30). In her testimony, PW5 confirmed that

she found no evidence of any tampering to the seals on the various

individual containers which contained the swabs. According to her,

had she found any evidence of tampering she would have stated it

in her report.

[22] In the chemist report (P25) prepared by PW5, she recorded the

results of her analysis of the samples. From the examination, PW5

was able to detect semen on swabs B5, B7, B8 and B9. Using the

sperm isolation test, she found sperm cells in those samples and

from a microscopic examination, PW5 found sperm heads. The

material parts of the chemist report prepared by PW5 show the

following:

“…

iv) The DNA profile derived from swab “B5” (labeled “Mohd

Saiful Bukhari Bin Azlan”) consisted of a mixture of male

DNA types concordant with being contributed by the

donor of bloodstained specimen “B10” (labeled “Mohd

Saiful Bukhari Bin Azlan”), “Male Y” and one other male

contributor.

v) The DNA profiles derived from swab “B7” (labeled

“Mohd Saiful Bukhari Bin Azlan”) consisted of male DNA

types from two individuals, one having a DNA profile

matching that of bloodstained specimen “B10” (labeled

“Mohd Saiful Bukhari Bin Azlan”) and one matching the

DNA profile of “Male Y”.

vi) The DNA profiles derived from swab “B8” (labeled

“Mohd Saiful Bukhari Bin Azlan”) indicated one

dominant male contributor concordant with the DNA

profile of bloodstained specimen “B10” (labeled “Mohd

Saiful Bukhari Bin Azlan”) and “Male Y” as a minor

contributor.

vii) The DNA profiles derived from swab “B9” (labeled

“Mohd Saiful Bukhari Bin Azlan”) consisted of male DNA

types from two individuals concordant with being

contributed by the donor of bloodstained specimen

“B10” (labeled “Mohd Saiful Bukhari Bin Azlan”) and

“Male Y”.”

[23] On 11.7.2008, the Clinical Forensic Department of Hospital Kuala

Lumpur received the chemist report (P25) regarding the result of the

analysis conducted on the samples collected. PW2, PW3 and PW4

together prepared the Report of Clinical Forensic Case (P22) dated

13.7.2008, which they jointly signed. Their conclusions were as

follows:

“1. No conclusive clinical findings suggestive of penetration to

the anus/rectum and no significant defensive wound on the

body of the patient.

2. The presence of male DNA types from swabs “B5”, “B7”,

“B8”, and “B9” are best interpreted with the identification of

the sites of sampling.”

[24] PW2, PW3 and PW4 were subjected to lengthy cross-examinations

which centred over their findings that PW1’s anus showed no

scarring, fissure or any sign of recent injuries, in particular at the

external area. When clarifying P22, which stated that “No conclusive

clinical findings suggestive of penetration to the anus/rectum and no

significant defensive wound on the body of the patient”, PW2, PW3

and PW4 explained that it did not mean that there was no

penetration.

[25] Upon receiving the report from the chemist, PW5 confirming the

presence of spermatozoa in the rectum of PW1, and also the exact

sites from which the samples (B5, B7, B8 and B9) were taken, PW2,

PW3 and PW4 explained that penetration could take place without

any injury to the rectum. They gave three possible grounds to

explain why there was no injury, namely the lapse of time prior to

seeing the doctors, no undue force having been used and the use

of lubricant during the sexual act.

[26] On 16.7.2008, DSP Yahya bin Abdul Rahman (PW17), L/Kpl. Nik

Rosmady bin Nik Ismail (PW18) and L/Kpl. Mohd Azry bin Mohd

Toyeb (PW19) confirmed that the appellant was brought to and

detained in the lock-up at the Kuala Lumpur Police Contingent

Headquarters (IPK Kuala Lumpur). According to PW17, the

appellant brought with him a bottle of mineral water and two towels.

At the lock-up, PW18 gave the appellant a plastic package

containing a ‘Good Morning’ towel, a tooth brush, a tube of

toothpaste and a bar of soap.

[27] On 17.7.2008 after the appellant was taken out of the lock-up, PW17

saw a ‘Good Morning’ towel and a tooth brush on the lock-up floor

and a mineral water bottle on the toilet half wall. PW17 was

instructed to keep the lock-up under lock. On the same day, Supt.

Amidon bin Anan (PW15) head of the Crime Scene Investigation,

went to the lock-up which had been occupied solely by the appellant.

He was assisted by Insp. Nur Ayuni Dayana binti Mohd Fuad

(PW16). On the floor of the lock-up, PW15 found the following items:

(i) a strand of hair (P57A);

(ii) a tooth brush (P58A);

(iii) a ‘Good Morning’ towel (P59A); and

(iv) a mineral water bottle (P61A).

[28] PW15 instructed L/Kpl Mohd Hazri bin Hassan (PW14) to take

photographs of those items. He also instructed PW16 to prepare

four envelopes (P57, P58, P59 and P61). Each of the above items

was placed inside individual envelopes. The envelopes were

marked with numbers 4, 5, 6 and 7. PW15 signed on the back of

each envelope and sealed them. On the same day, PW15 handed

over the envelopes to PW25 at the IPK Kuala Lumpur. Both PW15

and PW25 signed a handing over form (P80).

[29] PW25 took the envelopes back to his office at about 3.35 p.m. and

kept them in a steel cabinet in his office. PW25 marked each

envelope as ‘D’, ‘D1’, ‘D2’ and ‘D3’ (P57, P58, P59 and P61)

respectively and sealed the envelopes with a ‘PDRM’ seal. At about

6.50 p.m., PW25 took the items and handed them over to Nor Aidora

binti Saedon (PW6), a chemist at the Chemistry Department.

[30] PW6 successfully developed Deoxyribonucleic Acid (DNA) profiles

from the swabs of the tooth brush, the ‘Good Morning’ towel and the

mineral water bottle, but not from the hair. These DNA profiles

matched each other, indicating that the DNA identified originated

from the same source. PW6 then compared the DNA profiles she

obtained with that obtained by PW5. PW6 found the DNA profiles

developed from the swabs from the tooth brush, the ‘Good Morning’

towel and the mineral water bottle matched the DNA profile of ‘Male

Y’, thus indicating that the DNA identified originated from a common

source. PW6 then prepared a report (P62).

PROCEEDINGS IN THE HIGH COURT

[31] At the end of the prosecution’s case, upon a maximum evaluation

of the prosecution’s case, the trial judge held that the prosecution

had established a prima facie case against the appellant.

Accordingly, the appellant was called upon to enter his defence.

[32] The appellant in his unsworn statement from the dock advanced the

theory of a political conspiracy by the Prime Minister, Dato’ Sri Mohd

Najib bin Tun Abdul Razak, with the purpose of ending his political

career by putting him behind bars.

[33] The appellant’s statement may be summarized as follows:

(a) PW1 had all the opportunity to flee;

(b) PW1 did not seek immediate medical attention;

(c) the medical evidence did not support PW1’s complaint;

(d) PW1 did not lodge a police report immediately after the

incident;

(e) PW1’s conduct did not support his claim of being sodomised

as he had a drink and a friendly conversation with the

appellant immediately after the incident and attended PKR’s

function and a meeting of Anwar Ibrahim’s club the next day;

(f) PW1 has connection with the Prime Minister and the Inspector

General of Police;

(g) PW1 could have resisted the appellant as he is younger and

physically bigger than the appellant;

(h) the appellant is old and weak with a history of back injury and

had undergone a major surgery; and

(i) the appellant does not hold any position of power.

[34] In respect of the scientific evidence, which we shall deal with in

detail later in this judgment, the appellant called a number of expert

witnesses.

[35] Professor David Lawrence Wells (DW2) commented that there were

serious shortcomings in the filing of D28 (pro forma form) by PW23.

PW1’s history and essential information, as required in D28, was

incomplete and tardy in its preparation. It was bad practice not to

complete D28 in full and it was riddled with ambiguity.

[36] DW2 further testified that it was wrong for PW2, PW3 and PW4 to

have come to the conclusion in court that there was “anal penile

penetration” based on another person’s opinion i.e., PW5, who

testified that she found semen in the PW1’s rectal swabs as there

were many other ways by which semen could have found its way

into PW1’s anus.

[37] On the issue of semen found on PW1’s rectal swabs as evidenced

from PW5’s findings, both DW2 and Dr. Brian Leslie McDonald

(DW4) testified that there was no photographic evidence presented

by PW5, to positively indicate that the sperms were actually seen in

the swabs. According to DW2 and DW4, one could hardly succeed

in collecting any sample of value from which DNA could be extracted

beyond 36 hours after a sexual assault. This is based on the

Australian experience or practice.

[38] When confronted with an article by JE Allard – reported in Forensic

Science International, 19 (1982) pp 135-154, that sperms could be

found even after 65 hours in the rectum, DW2 answered that the

scientific community has some reservation about that single case in

30 years. 36 to 48 hours might be the limit in which good DNA profile

could be obtained. In this case, it was already past the time span.

Furthermore, the samples here were not only not dry or frozen but

also kept at room temperature. According to DW2, from his

experience it was unlikely that anything of value could be retrieved.

[39] Dr. Thomas Hoogland (DW7) testified that, due to the back injury

suffered by the appellant, he was of the opinion that it would be very

unlikely for the appellant to be able to commit the sodomy in the way

described by PW1.

[40] Dr. Osman bin Abdul Hamid (DW1) was offered to the defence by

the prosecution and was the first witness called by the defence to

support the appellant’s case. According to DW1, on 28.6.2008, PW1

turned up at PUSRAWI for treatment complaining of pain in the anus

when passing motion. DW1 examined PW1 using a proctoscope for

suspected piles but found no injury. As PW1 was putting on his

trousers and DW1 was washing his hands, PW1 told DW1 that he

had been sodomised by a VIP and was scared to go to the police.

According to DW1, had he been informed earlier, he would not have

carried out the examination of PW1. DW1 alleged that PW1 also told

him that he had been assaulted by the insertion of a plastic object

into his anus.

[41] At the close of the defence case, the trial judge held that the

appellant had succeeded in creating a reasonable doubt in the

prosecution’s case and acquitted and discharged the appellant of

the charge. He came to his finding premised essentially on the

evidence of DW2 and DW4 that it was unlikely any trace of semen

could be retrieved 36 hours after the sexual assault. In this case,

since PW1 was examined some 56 hours after the alleged incident,

and relying on DW2’s and DW4’s evidence, it was very unlikely any

sperm cell could have been retrieved from PW1’s rectum. This he

said was further compounded by the manner the samples were kept

by PW25 which was contrary to the instruction of PW3. However,

the EPG (electropherogram) tendered by the prosecution according

to DW2 and DW4 showed that the DNA was in pristine condition.

Furthermore, PW25 had cut open the sample bag (P27).

[42] Having considered the defence evidence, the trial judge held that

the possibility of the integrity of the samples taken from PW1 had

been compromised before reaching PW5 for analysis could not be

excluded. For that reason he held that it was not safe to rely on the

DNA result obtained by PW5. In the result, he held that there was

no evidence to corroborate PW1’s evidence on the factum of penile

penetration, an ingredient of the offence, and on that premise the

appellant was acquitted and discharged of the charge.

PROCEEDINGS IN THE COURT OF APPEAL

[43] The Court of Appeal disagreed with the finding of the trial judge that

the defence had through their witnesses, in particular DW2 and

DW4, succeeded in casting a reasonable doubt in the prosecution’s

case. The Court of Appeal held that DW2 and DW4 were mere

armchair experts who had not done the analysis on the samples as

opposed to PW5 and PW6 who had conducted the analysis on the

samples. On this issue, the Court of Appeal preferred the evidence

of PW5 and PW6 to that of DW2 and DW4. The Court of Appeal

accordingly set aside the order of the High Court and the appellant

was convicted and sentenced to a term of five years imprisonment.

PROCEEDINGS IN THIS COURT

[44] Several issues were raised by the appellant contending that the

Court of Appeal had erred in their decision. We will now deal with

these issues.

Credibility Of PW1

[45] The appellant’s appeal began by attacking the credibility of PW1.

PW1’s failure to run away from the place of incident, to ask for help

from the occupier of Unit 11-5-2, to report to the security guard, and

to make a police report immediately, ran counter to his testimony

that he did not consent to being sodomised. The alleged vigorous

act by the appellant on PW1 was not consistent with the medical

report prepared by PW2, PW3 and PW4 which recorded no trace of

violence or resistance. The medical report (P22) also stated that no

tear was detected in his anus thus indicative of no penile

penetration.

[46] PW1’s conduct of bringing the KY Jelly, the inconsistency in the

duration of the sexual act i.e. whether it was five minutes or thirty

minutes, his delay in filing a police report, his attendance at a

meeting with the appellant on 27.6.2008, DW1’s annotation on the

medical report of PW1 (IDD16) stating that PW1 had complained of

a plastic object having been inserted into his anus, amongst others,

were all brought to our attention.

[47] The appellant submitted that had IDD 16 been introduced at the

prosecution’s stage, the court would have been confronted with two

versions. First, of PW1 being sexually assaulted by the appellant

and second of a plastic object having been inserted into his anus.

The appellant suggested that, as it was incumbent upon the

prosecution to call DW1 as a witness, its failure to do so had

triggered s.114(g) of the Evidence Act 1950 (the Evidence Act).

With DW1’s evidence left unimpeached, there were therefore

doubts in the prosecution’s case and the appellant was entitled to

the benefit of the doubt.

[48] The prosecution on the other hand argued that PW1’s evidence was

credible. The comprehensive details narrated by PW1, especially

of those before entering the condominium, and the graphic

description of the sexual act, merely strengthened his credibility. He

could not have described those material particulars unless he was

there and had gone through the ordeal. The prosecution also

argued that the previous encounters with the appellant were

admissible in order to show PW1’s state of mind and why he

behaved the way he did. The word ‘every time’ in his testimony was

indicative of the previous encounters. As he was reminded of the

memory of the sensation of pain he came prepared with the KY

Jelly. The prosecution suggested that the availability of the KY Jelly

and the lapse of time explained why there was no injury on PW1’s

anus. The prosecution added that the previous sexual encounters

would help the court appreciate the type of relationship PW1 had

with the appellant, explain why PW1 did not resist or run away, why

he remained in Unit 11-5-1 after the sexual encounter, and why he

attended the meeting together with the appellant the next day.

[49] So, was PW1 credible? First the law. In Dato’ Seri Anwar v Public

Prosecutor [2002] 3 CLJ 457, Haidar Mohd Noor FCJ (as he then

was), quoted the decision of the trial judge in that case with approval

and reiterated the test for either accepting or rejecting the evidence

of a witness, as follows:

“The Privy Council has stated that the real tests for either

accepting or rejecting the evidence of a witness are how

consistent the story is with itself, how it stands the test of

cross-examination, and how far it fits in with the rest of the

evidence and the circumstances of the case (see Bhojraj v.

Sitaram AIR [1936] PC 60). It must, however, be observed

that being unshaken in cross-examination is not per se an allsufficient

acid test of credibility. The inherent probability of a

fact in issue must be the prime consideration (see Muniandy

& Ors v. PP [1966] 1 MLJ 257). It has been held that if a

witness demonstrably tells lies, his evidence must be looked

upon with suspicion and treated with caution, but to say that it

should be entirely rejected would be to go too far (see Khoon

Chye Hin v. PP [1961] MLJ 105). It has also been held that

discrepancies and contradictions there will always be in a

case. In considering them, what the court has to decide is

whether they are of such a nature as to discredit the witness

entirely and render the whole of his evidence worthless and

untrustworthy (see De Silva v. PP [1964] MLJ 81). The Indian

Supreme Court has pointed out that one hardly comes across

a witness whose evidence does not contain a grain of untruth

or at any rate exaggerations, embroideries or embellishments

(see Ugar v. State of Bihar AIR [1965] SC 277). It is useful to

refer to PP v. Datuk Haji Harun bin Haji Idris (No 2) [1977] 1

MLJ 15 where Raja Azlan Shah FJ (as His Highness then was)

said at p.19:

…In my opinion, the discrepancies there will always be,

because in the circumstances in which the events

happened, every witness does not remember the same

thing and he does not remember accurately every single

thing that happened. The question is whether existence

of certain discrepancies is sufficient to destroy their

credibility. There is no rule of law that the testimony of

a witness must either be believed in its entirety or not at

all. A court is fully competent, for good and cogent

reasons, to accept one part of the testimony of a witness

and to reject the other.

In the absence of any contradiction, however, and in the

absence of any element of inherent improbability, the

evidence of any witness, whether a police witness or not, who

gives evidence on affirmation, should normally be accepted

(see PP v. Mohamed Ali [1962] MLJ 257) …”

[50] We must say, similarly in this case it takes a lot of courage for a

young man, like PW1, to make such a disparaging complaint against

a well-known politician like the appellant. Knowing that such an

allegation might taint him (PW1), we cannot ignore the life-long

negative effect such a serious allegation would have on PW1 and

his family even if the allegation were proven to be true.

[51] The minute details testified by PW1 gave his testimony the ring of

truth, as, unless he had personally experienced the incident, he

would not be able to relate the antecedent facts and the sexual act

in such minute details. It must be borne in mind too that despite the

lengthy cross-examination, PW1 had withstood that gruelling

session which the trial judge described as “sometimes bordering on

harassment”. PW1 spoke of the previous encounters he had with

the appellant, the unpleasant sensation of pain and the reason for

bringing the KY Jelly. He hid nothing. The trial judge found PW1 to

be completely open and honest. The Court of Appeal agreed with

this finding.

[52] Specifically on the issue of delay in lodging the police report by PW1

and his failure to complain to the occupier of Unit 11-5-2 and the

security guard, the trial judge had also considered them and made

the following findings:

“[111] I find it is not tenable to use PW1’s failure to escape

when he had the opportunity, failure to seek help or failure to

complain to security guard as indicative that the offence did

not take place. Under normal circumstances, such failures

would be construed to mean that the incident indeed took

place but it was consensual which is not relevant in our case.

[112] And in any event, PW1 was never asked to explain

why he did not run, did not seek help from the occupier of unit

11-5-2, complain to the security guard or make a police report

immediately. However from the established facts borne out by

the evidence of PW1, it was not difficult to understand why

PW1 had acted the way he did though he insisted he did not

consent to being sodomised.

[113] PW1 was a young man aged 22 years old under the

employment of the accused. He was not just any employee

but the accused’s personal assistant who had to deal directly

with the accused. PW1 idolised the accused since he was a

child. He liked working with the accused and found him to be

charismatic. The accused was generous with PW1 and PW1

was given special treatment by the accused like presented

with a suit even though he had just worked less than two

months. He was given preferential treatment when he was

allocated a room in the new office over more senior

colleagues. The interview with the doctors in particular Dr.

Razuin and from PW1 own evidence suggest the incident on

26 June 2008 was not something totally unexpected as it had

happened before. PW1 had reported to various people before

but no one advised him to lodge police report and some were

even sceptical. In fact the people like Ezam, Mumtaz and

PW1’s uncle even discouraged PW1 from lodging police

report because they were concerned of PW1’s future. The

people in unit 11-5-2 were all accused’s friend.

[114 ] Based on those facts and circumstances, PW1’s failure

to run away, to complain to people in unit 11-5-2 or to lodge

police report immediately is understandable. It could not be

the basis to find PW1 to be an incredible witness.”

[53] The Court of Appeal agreed with the findings of the trial judge. It is

an accepted fact that in sexual offences, a complainant is generally

reluctant to lodge a complaint or report regarding such incidents for

a number of reasons. As observed by the Indian Supreme Court in

State of Punjab v Gurmit Singh & Ors [1996] 2 SCC 384:

“The courts cannot overlook the fact that in sexual offences

delay in the lodging of the FIR can be due to variety of reasons

particularly the reluctance of the prosecutrix or her family

members to go to the police and complain about the incident

which concerns the reputation of the prosecutrix and the

honour of her family. It is only after giving it a cool thought

that a complaint of sexual offence is generally lodged.”

[54] As noted by the trial judge, the issue of delay was never put to PW1

in the cross-examination and he found that such failure should not

be taken against PW1.

[55] In the present case, considering the age of PW1 and his connection

with the appellant, it was therefore reasonable for PW1 to take some

time before lodging a police report, what more to complain to the

occupier of Unit 11-5-2 whom he knew to be a friend of the appellant

or to the security guard, who is a complete stranger.

[56] It is a settled principle of law that credibility of a witness is the

domain of the trial judge and an appellate court should be slow in

interfering with the findings of the trial judge who has the audio

visual advantage. Having heard and observed the demeanour of

the witness, the trial judge found PW1 to be a credible witness. His

finding was upheld by the Court of Appeal, where it stated:

“[54] We further agree with the finding of the learned trial

judge on the credibility of PW1 and there was nothing

improbable about his evidence. His Lordship found that the

evidence of PW1 was reliable.

[55] It is trite law that credibility of witnesses is the domain of

the trial judge. We are satisfied that the learned trial judge

had sufficiently considered and appreciated the evidence of

PW1 and His Lordship is entitled to make a finding on his

credibility.

[56] An appellate court should be slow in interfering with

findings made by the trial judge on the issue of credibility of

witnesses. In Muniandy & Ors v PP [1966] 1 LNS 110, the

Federal Court had this to say:

We appreciate that this court should not lightly differ from the

views of the trial judge since he had the advantage of seeing

and hearing the witnesses whose demeanour he was able to

study in order to form his opinion as to their credibility …

[57] We find no ground to disturb the findings of the trial judge

on the issue of credibility of PW1. Accordingly, the challenge

by the respondent on the credibility of PW1 cannot prevail.”

[57] Before us it was also submitted by appellant’s counsel that PW1’s

credibility is questionable for a number of reasons. First, it was

alleged by PW1 that he was given an expensive gift (a Brioni suit)

by the appellant and the trousers (P12) which was tendered in

evidence came from that suit. However, counsel contended that P12

carried no label at all. Thus it was submitted that PW1 could not be

telling the truth because such an expensive suit must carry a label;

even an ordinary brand would carry a label, what more such an

expensive suit.

[58] However, there was no cross-examination of PW1 by the defence

on the absence of the label on the P12. As such, PW1 was not given

any opportunity to explain the absence of that label. In the

circumstances, we hold that it is not proper for counsel to raise this

issue at this stage.

[59] Secondly, it was the prosecution’s case that the act of sodomy took

place in Unit 11-5-1 on the carpet (P49A). P49A was however

recovered from Unit 11-5-2. The prosecution had not explained how

P49A came to be in Unit 11-5-2. There was therefore a gap in the

prosecution’s case which was not explained as the owner of Unit

11-5-2 was not called. Counsel for the appellant remarked, “I don’t

believe in flying carpet.” It was then submitted that with this gap PW1

could not have been telling the truth in that the act took place in Unit

11-5-1 and on P49A.

[60] We agree with counsel for the appellant that there was no evidence

led as to how P49A “moved” from Unit 11-5-1 to Unit 11-5-2. From

the evidence, it is not in dispute that Unit 11-5-1 and 11-5-2 are

adjacent to each other, and belonged to the same owner,

Hassanuddin Abdul Hamid. P49A was sent to the chemist for

analysis but no trace of KY Jelly was found on it. There was also no

conclusive evidence that the KY Jelly had in fact spilled onto P49A.

What PW1 said in his testimony was that the KY Jelly could have

spilled on either P49A or the towel. In any event, we are of the view

that P49A was not a critical piece of evidence to the prosecution’s

case in light of other compelling evidence.

[61] Having gone through PW1’s evidence and how he stood the

vigorous cross-examination, we agree with the trial judge that there

is nothing inherently improbable about his story. We too find him to

be a credible witness.

Impeachment of PW1

[62] The issue of impeachment of PW1’s evidence was also raised by

the appellant. The complaint was over the dismissal by the trial

judge of his application to impeach the evidence of PW1.

[63] Impeachment generally means to call into question the veracity of a

witness by means of evidence adduced for such purpose or the

adducing of proof that a witness is unworthy of belief. The relevant

provisions of law relating to an impeachment proceeding is

contained in s.155 of the Evidence Act which provides:

“Impeaching credit of witness

155. The credit of a witness may be impeached in the following

ways by the adverse party or, with the consent of the court, by

the party who calls him:

(a) by the evidence of persons who testify that they from

their knowledge of the witness believe him to be

unworthy of credit;

(b) by proof that the witness has been bribed, or has

accepted the offer of a bribe, or has received any other

corrupt inducement to give his evidence;

(c) by proof of former statements inconsistent with any part

of his evidence which is liable to be contradicted.”

[64] S. 155(c) must however be read together with s. 145(1) of the

Evidence Act which reads as follows:

“Cross-examination as to previous statements in writing

145. (1) A witness may be cross-examined as to previous

statements made by him in writing or reduced into writing, and

relevant to matters in question in the suit or proceeding in

which he is cross-examined, without the writing being shown

to him or being proved; but if it is intended to contradict him by

the writing, his attention must, before the writing can be

proved, be called to those parts of it which are to be used for

the purpose of contradicting him”.

[65] S. 145(1) sets out the procedure for impeachment. Taylor J. in

Muthusamy v Public Prosecutor [1948] 1 MLJ 57 laid down in

great detail the procedure for impeachment proceeding, with which

we agree. They are as follows:

“The proper way to apply the sections is this. On the request

of either side, the Court reads the former statement. If there

is no serious discrepancy the Court so rules and no time is

wasted. The first necessity is to read it with the confident

expectation that it will be different from the evidence but

looking judicially to see whether the difference really is so

serious as to suggest that the witness is unreliable.

Differences may be divided into four classes:

(a) Minor differences, not amounting to discrepancies;

(b) Apparent discrepancies;

(c) Serious discrepancies;

(d) Material contradictions.

Minor differences are attributable mainly to differences in

interpretation and the way in which the statement was taken

and sometimes to differences in recollection. A perfectly

truthful witness may mention a detail on one occasion and not

remember it on another. A mere omission is hardly ever a

discrepancy. The police statement is usually much briefer

than the evidence. Both the statement and the evidence are

usually narratives reduced from question and answer. The

witness is not responsible for the actual expressions used in

either, and all the less so where he does not speak English.

If the police statement gives an outline of substantially the

same story there being no apparently irreconcilable conflict

between the two on any point material to the issue, the

Magistrate should say at once:

‘The difference is not such as to affect his credit’ and

hand the statement back.

If, however, the difference is so material as probably to

amount to a discrepancy affecting the credit of the witness, the

Court may permit the witness to be asked whether he made

the alleged statement. If he denies having made it, then either

the matter must be dropped or the document must be formally

proved, by calling the writer or, if he is not available, by proving

in some other way that the witness did make the statement.

If the witness admits making the former statement, or is

proved to have made it, then the two conflicting versions must

be carefully explained to him, preferably by the Court, and he

must have a fair and full opportunity to explain the difference.

If he can, then his credit is saved, though there may still be

doubt as to the accuracy of his memory. This procedure is

cumbersome and slow and therefore should not be used

unless the apparent discrepancy is material to the issue.”

[66] From the above, it is clear that there must be some material and real

contradictions or circumstances unexplained by the witness before

one can seek to impeach his credit.

[67] In the present case, in making his application before the trial judge,

the appellant’s counsel stated, “… we have a hunch here that the

statements produced in court, and even if they are privileged, we

have the right to have them produced for our inspection and

thereafter. Proceed to impeachment of the witness.”

[68] In dealing with the application, the trial judge had asked the

appellant’s counsel repeatedly the nature of his application.

However counsel failed to give any specific answer as to the exact

nature of his application except to say that he had a hunch. The

basis for his hunch was that the charge is punishable under s.377B

i.e. consensual intercourse but PW1 comes to court alleging nonconsensual

intercourse which is punishable under s.377C.

[69] In this regard, the Federal Court in Dato’ Mokhtar bin Hashim &

Anor v Public Prosecutor [1983] 2 CLJ 10 had occasion to state:

“A ‘hunch’ is a presentiment, a mental impression or feeling, a

vague expectation or foreboding, and we would like to make it

abundantly clear that the ‘hunch’ referred to in Husdi (ante)

certainly could not have been intended to operate without

some secure basis or foundation in order to activate the

provisions of ss. 145 and 155(c) of the Evidence Act, and for

this purpose sheer innate intuition of Counsel will not suffice.

A mere hunch per se for this purpose is nihil ad rem; it must

be secured on a substratum of some basis or foundation.

There must as a sine qua non be some material contradiction

or other circumstances unexplained by the witness in the first

instance before Counsel can move to seek to impeach his

credit…”

[70] In the present case, we find that counsel for the appellant had failed

to comply with the correct procedure in applying for an impeachment

proceeding against PW1’s evidence. After being repeatedly asked

by the trial judge, counsel for the appellant vaguely indicated,

“Pohon untuk semua statement yang direkodkan dari saksi ini

(PW1) dalam penyiasatan kes ini, which include 112 statement.”

Clearly, counsel was asking for all of PW1’s statements recorded by

the police during its investigation, including statements recorded

under s. 112 of the Criminal Procedure Code without specifying or

identifying the relevant part of the statement.

[71] Based on the above, we hold that the trial judge had correctly

exercised his discretion in dismissing the application of counsel to

impeach PW1.

Corroboration

[72] We now turn to the issue of corroboration of PW1’s evidence.

[73] The law on corroboration of the evidence of a victim in a sexual

offence is settled in our jurisdiction. In this regard, the Court of

Appeal had correctly addressed the law by referring to various

authorities both here and in other Commonwealth jurisdictions. As

a matter of practice and prudence, not of law, corroboration is

normally required in a sexual offence. Where corroboration is

dispensed with, and the complainant’s evidence is accepted as

having established the case against an accused, the judge as a

matter of law is required to warn himself of the danger of convicting

on the uncorroborated evidence of the complainant. This

requirement of the law is aptly put by Robert CJ in Public

Prosecutor v Emran bin Nasir [1987] 1 MLJ 166 in the following

words:40

“I warn myself that, on a charge of rape, it is dangerous to

convict on the evidence of the complainant alone, since

experience has shown that female complainants have told

false stories for various reasons. However, it is open to me,

giving full weight to the warning that it is dangerous for me to

convict without corroborative evidence, if I conclude that the

complainant is, without doubt, speaking the truth. ”

The case also propounded that “To amount to corroboration the

evidence must confirm to some important respect to the girl’s

evidence that intercourse took place … and that it was the defendant

who committed the offence.” Although the case pertains to a female

victim in a rape case it is equally applicable to a male victim in a

sodomy case, such as in this appeal.

[74] It was submitted by the prosecution that the evidence of PW1, even

without any corroboration is credible and probable, and on its own

was sufficient to prove the charge against the appellant. His

evidence, it was argued, is akin to that of a female rape victim who

will not ordinarily “stake her reputation by levelling a false charge

concerning her chastity” (a phrase taken from State of

Maharashtra v Chandraprakash Kewalchand Jain, AIR [1990] 1

SCC 550). Similarly, for PW1 to come out publicly to testify that he

had been sodomised would obviously subject him and his family to

ridicule. There was therefore no reason for him to level a false

accusation against the appellant as the stigma will remain for his

lifetime.

[75] This proposition is supported by a passage in Chandraprakash

Kewalchand Jain where the Supreme Court of India stated:

“A prosecutrix of a sex offence cannot be put on par with an

accomplice. She is in fact a victim of the crime. The Evidence

Act nowhere says that her evidence cannot be accepted

unless it is corroborated in material particulars …

What is necessary is that the court must be alive to and

conscious of the fact that it is dealing with the evidence of a

person who is interested in the outcome of the charge levelled

by her. If the court keeps this in mind and feels satisfied that

it can act on the evidence of the prosecutrix, there is no rule

of law or practice incorporated in the Evidence Act similar to

illustration (b) to Section 114 which requires it to look for

corroboration. If for some reason the court is hesitant to place

implicit reliance on the testimony of the prosecutrix it may look

for evidence which may lend assurance to her testimony short

of corroboration required in the case of an accomplice.”

[76] Similarly, our Evidence Act does not require any corroboration in

sexual offences and a conviction for such offences may rest entirely

on the credibility of the complainant. The need for corroboration

remains a rule of good practice and prudence as stated by Thomson

L.P in Din v Public Prosecutor [1964] 1 MLJ 300, who opined:

“But the desirability for corroboration of the evidence of the

prosecutrix in a rape case (which in any event has not yet

crystallized into something approaching a rule of law and

which is still a rule of practice and of prudence) springs not

from the nature of the witness but from the nature of the

offence. Never has it been suggested that the evidence of a

woman as such invariably calls for corroboration. If a woman

says her handbag has been snatched and if she is believed

there can be no question of a conviction on such evidence

being open to attack for want of corroboration. If, however,

she complains of having been raped then both prudence and

practice demand that her evidence should be corroborated. ”

[77] Similarly, in Public Prosecutor v Mardai [1950] 16 MLJ 33,

Spenser Wilkinson J had occasion to say:

“Whilst there is no rule of law in this country that in sexual

offences the evidence of the complainant must be

corroborated; nevertheless it appears to me, as a matter of

common sense, to be unsafe to convict in cases of this kind

unless either the evidence of the complainant is unusually

convincing or there is some corroboration of the

complainant’s story. It would be sufficient, in my view, if that

corroboration consisted only of a subsequent complaint by the

complainant herself provided that the statement implicated the

accused and was made at the first reasonable opportunity

after the commission of the offence. ” (Our emphasis)

[78] The “unusually convincing” test was explained in Public

Prosecutor v Mohammed Liton Mohammed Syeed Mallik [2008]

1 SLR 601 in the following words:

“… testimony that, when weighed against the overall backdrop

of the available facts and circumstances, contains that ring of

truth which leaves the court satisfied that no reasonable doubt

exists in favour of the accused.”

[79] The Indian Supreme Court in State of Kerala v Kurissum Moottil

Antony [2007] AIR SCW 1507 took a similar stand that

corroboration is not a pre-condition to secure a conviction in sexual

offences. What is required is that a judge must be conscious, as a

matter of prudence, that in some instances it is necessary to have

corroboration. It opined:

“Corroboration is not the sine qua non for conviction in a rape

case…

The rule, which according to the cases has hardened into one

of law, is not that corroboration is essential before there can

be a conviction but that the necessity of corroboration, as a

matter of prudence, except where the circumstances make it

safe to dispense with it, must be present to the mind of the

judge …”

[80] That case also decided that the same principle applies to a case

under s. 377 of the Indian Penal Code the equipollent of our s.377A

of the Penal Code.

[81] A judge is entitled in law to convict even without corroboration if

convinced of the truth of a complainant’s evidence (Chiu Nang

Hong v Public Prosecutor [1965] 1 MLJ 40 P.C.). If the evidence

of a complainant in a sexual offence inspires confidence then it

should be relied upon without the need of corroboration. It has been

said that a refusal by the courts to convict based on the testimony

of a victim of a sexual offence alone in the absence of corroboration,

amounts to “adding insult to injury” (Bharwada Bhoginbhai

Hirjibhai v. State of Gujarat [1983] SC 753).

[82] Corroboration is independent evidence which implicates the

accused by connecting or tending to connect him with the crime

(The King v Baskerville [1916] 2 KB 658). This may be in the

form of independent witnesses or medical evidence (Syed Abdul

Tahir v Public Prosecutor [1988] 3 MLJ 485) or other scientific

evidence such as DNA profiling.

[83] In the present case, the trial judge had considered the following

independent evidence and concluded that they were corroborative

of PW1’s testimony of having been sodomised by the appellant:

(i) the evidence of the appellant’s Chief of Staff, Ibrahim bin

Yaacob (PW24) who testified that the appellant called him at

about 12.15 p.m. on 26.6.2008 and told him (PW24) that the

appellant had left the envelope on the table and would like to

have it delivered to him. PW24 then instructed PW1 to deliver

the envelope to the appellant, which was duly complied with.

This piece of evidence, according to the trial judge,

corroborated PW1’s evidence of his and the appellant’s

presence at Unit 11-5-1, thereby affording not only an

opportunity for the appellant to commit the offence, but also

confirming proximity of time;

(ii) the CCTV recordings which is the primary evidence of the

arrival and departure of PW1 and the appellant at the said

condominium on that day, corroborating PW1’s story that they

met there;

(iii) the medical history of PW1 as narrated by Dr. Siew Sheue

Feng (PW3) and Dr. Razuin binti Rahimi (PW23) both of

whom had interviewed PW1 in their preparations of PW1’s

medical history. Both PW3 and PW23 confirmed in their

evidence that PW1 had informed them that he had been

sodomised, that lubricant was used, and that there was

penetration and ejaculation;

(iv) the medical history of PW1 as reflected in the medical report

(P22) jointly prepared by three doctors (PW2, PW3 and PW4)

alleging that he had been sodomised by a well-known public

figure for the past two months with the last incident taking

place on 26.6.2008;

(v) the evidence of PW2, PW3 and PW4 relating to the taking of

swabs from PW1. The evidence of PW5 confirmed, from the

analysis on four of the swabs taken from the perianal region,

high rectal region and low rectal region of PW1, the presence

of semen;

(vi) the positive conclusion made by PW2, PW3 and PW4 that

there was penile penetration of PW1’s anus based on the

medical history of PW1 and the sites from which the swabs

were taken;

(vii) the findings made by PW2, PW3 and PW4 that there was no

scarring, fissure or any sign of recent injuries to the external

areas of PW1’s anus were consistent with PW1’s evidence

that lubricant was used; and

(viii) the evidence of Dr. Seah Lay Hong (PW5) and Nor Aidora binti

Saedon (PW6) that the DNA profile of Male Y developed from

the seminal extract from PW1’s rectum matched the profile

developed from the lock-up items (tooth brush P58A, a Good

Morning towel P59A and a mineral water bottle P61A)

collected from the lock-up occupied by the appellant.

[84] The trial judge found that there was ample corroboration of PW1’s

evidence that he had been sodomised by the appellant. He took into

account those facts enumerated above and tested them against the

probabilities of PW1’s evidence and concluded that his story was

adequately corroborated. He then made a finding that a prima facie

case was established by the prosecution where he stated:

“[183] Based on all the above reasons, I found the

prosecution, through the evidence of PW1 which had been

corroborated in material particulars, had proved all the facts

required to establish all the ingredients of the charge. I found

a prima facie case as defined under Section 180 of Criminal

Procedure Code had been made out against the accused.

Therefore the accused was called to enter his defence. ”

[85] The Court of Appeal agreed with the findings of the trial judge. We

have no reason to disagree with that finding.

[86] In this appeal, it was also submitted by counsel for the appellant that

PW1 was an accomplice and as such his evidence requires

corroboration. However, on the facts of this case, we find that PW1

is not an accomplice; we find him not a willing participant in the

offence but in fact a victim. In any event, even if we were to agree

with that submission of the counsel, we find there is ample

corroborative evidence to support PW1’s testimony.

No direct evidence to link the DNA profile of Male Y to the appellant

[87] Lengthy submissions were made on whether the prosecution had

succeeded in proving that the DNA profile of ‘Male Y’ extracted from

the three exhibits (P58A, P59A and P61A) obtained from the lockup

was that of the appellant’s. It will be recalled that the appellant

was arrested and detained for police investigations on 16.7.2008.

He was placed in a police lock-up at IPK Kuala Lumpur from 11.30

p.m. till his release at 8.00 a.m. the following day. The appellant

brought with him a bottle of mineral water (P61A) when he went into

the lock-up. At 12.10 a.m. L/Kpl. Nik Rosmady bin Ismail (PW18)

handed to the appellant for his use, a plastic package containing a

Good Morning towel (P59A), a toothbrush (P58A), a tube of

toothpaste and a bar of soap. It was from the three exhibits (P58A,

P59A and P61A) that the matching DNA profile of ‘Male Y’ was

extracted and analysed by the chemist Nor Aidora binti Saedon

(PW6).

[88] It is in evidence that the appellant was the sole occupant of the lockup

on the night of 16.7.2008. According to PW18, one of the lockup

sentries, the lock-up was clear and empty prior to the appellant

occupying it. The lock-up was locked after the appellant left, and

those items remained untouched and unmoved until the police

forensic team seized them later for investigations.

[89] L/Kpl. Mohd Jasni bin Jaafar (PW20), another sentry at the lock-up

said he heard the appellant brushing his teeth although he did not

actually see this happening.

[90] It was submitted for the appellant that there was no direct evidence

of anybody actually seeing the appellant using those exhibits

recovered from the lock-up.

[91] It is our finding that there was direct and strong circumstantial

evidence pointing to the appellant using those exhibits. The lock-up

was solely occupied by the appellant, and there was no dispute on

this. Those exhibits except for the mineral water bottle (P61A) were

neatly packed in a plastic package when they were handed over to

him. When the forensic team recovered them later, they were found

scattered on the floor of the lock-up, except for P61A which was

placed on a half-wall in the lock-up. The lock-up remained locked

until the arrival of the forensic team. Supt. Amidon bin Anan (PW15),

who headed the forensic team testified that he picked up those

exhibits from the lock-up, carefully placed them into separate

envelopes, sealed and signed the envelopes before handing them

over to PW25. The evidence of PW15 and the lock-up sentries was

not challenged by the appellant and was accepted by the trial judge.

[92] In the circumstances, the only inference that can be made is that the

appellant had used those exhibits. (Liew Kaling v Public

Prosecutor [1960] 1 MLJ 306.)

Whether the exhibits P58A, P59A and P61A are admissible as

evidence

[93] The next submission was whether exhibits P58A, P59A and P61A

were illegally obtained by means of trickery and deception and as

such should not be admitted as exhibits. Earlier, the appellant had

declined for his blood sample to be taken for the purpose of DNA

profiling. At the trial, the appellant then objected to the admission

of those exhibits seized from the lock-up which led to the trial judge

holding a trial within a trial to decide on their admissibility. At the

end of that mini-trial the trial judge made a ruling excluding those

exhibits as well as the analysis made by PW6 on them, reasoning

that “they were obtained by unfair means against the wishes of the

accused”. Immediately prior to the close of the prosecution’s case

an application was made by the prosecution to have that ruling

reviewed in the light of later evidence of Supt. Judy Balcious Pereira

(PW25) and Supt. Ahmad Taufek bin Abdullah (PW26). The trial

judge upon that consideration reversed his earlier ruling giving the

following reasons:

“Now, in light of the evidence adduced from the investigating

officer and the arresting officer during the main trial, it is clear

that the arrest of the accused was in fact lawful. His

subsequent detention in the cell was indeed lawful and for a

lawful purpose. Thus, the detention of the accused in the cell

could no longer be said to have been for the sole purpose of

obtaining DNA evidence from him by trick as alleged by the

defence. In those circumstances, the court has no discretion

but to allow those items collected from the cell and all

evidence related to those items to be tendered as evidence.

Therefore I now rule that those items and all evidence related

to those items are admissible and could be tendered as

evidence. My early ruling on this matter is accordingly

reversed.”

[94] Counsel for the appellant conceded that a trial judge may review his

earlier ruling citing this passage in R v Watson [1980] 2 All ER

293:53

“It is the duty of the judge to exclude from the jury’s

consideration evidence which is inadmissible. In the case of

a written statement, made or signed by the accused, the judge

must be satisfied that the prosecution have proved that the

contested statement was voluntary, before allowing the jury to

decide whether to act on it. Experience has shown that where

the question of the voluntary character of a statement has

been investigated and decided at a trial within a trial it is only

in very rare and unusual cases that further evidence later

emerges which may cause the judge to reconsider the

question whether he is still satisfied that the statement was

voluntary and admissible. But where there is such further

evidence the judge has power to consider the relevance of the

admissibility of evidence on which he has already ruled. ”

[95] Counsel thus submitted that only in rare and unusual cases may a

judge review his earlier ruling, which is not the case here. It was

further submitted that the evidence of PW25 and PW26 given in the

main trial should not be considered as they were not called as

witnesses during the trial within a trial.

[96] The prosecution on the other hand, submitted that after hearing the

evidence of PW25 and PW26 the trial judge was satisfied that the

detention of the appellant in the lock-up was not for the sole purpose

of obtaining DNA evidence from him using trickery or deception, and

as such, the trial judge had full discretion to relook and review his

earlier ruling.

[97] We are of the view that on the question of admissibility of an exhibit,

a trial judge may review any previous ruling he made and if need be,

reverse the earlier ruling. Support for this proposition can be found

in R v Watson where the English Court of Appeal gave the same

view as stated in this passage:

“In our view the judge was wrong to rule as he evidently did

that he had no power to consider the relevance of evidence,

given after the ‘trial within a trial’, on the issue whether the

written statements were not voluntary and therefore

inadmissible.”

[98] Now, even if those exhibits recovered from the lock-up were indeed

illegally obtained, which we say were not, in law they remain

admissible if found to be relevant to the case (S.5 of the Evidence

Act). This passage from Hanafi Mat Hassan v Public Prosecutor

[2006] 4 MLJ 134 is illustrative of this proposition, which we now

adopt with approval:

“[68] It is therefore clear that the court has no discretion to

refuse to admit evidence on the ground that it was illegally

obtained if it is relevant. This rule applies, inter alia, to cases

involving illegal searches, evidence obtained by secret

listening devices or by undercover police operations. It also

applies to evidence obtained by unfair procedures. Thus in R

v Apicella [1986] 82 Cr App R 295, the English Court of Appeal

upheld a rape conviction based upon the results of tests

carried out on a specimen of body fluid obtained from the

accused for medical reasons whilst he was on remand. In AG

for Quebec v Begin [1955] SCR 593, it was held that even if a

blood sample was obtained from the accused without his

consent it is admissible to prove intoxication. It follows that

the evidence relating to the blood sample taken from the

accused is admissible as it is relevant even if it was taken

without his consent.”

[99] Lord Goddard CJ in the landmark case of Kuruma son of Kaniu v

Reginam [1955] 1 AII ER 236, held that so long as the evidence is

relevant, it is immaterial how and in what manner it was obtained.

The learned CJ said this:

“In their Lordships’ opinion, the test to be applied in

considering whether evidence is admissible is whether it is

relevant to the matters in issue. If it is, it is admissible and the

court is not concerned with how the evidence was obtained.

While this proposition may not have been stated in so many

words in any English case, there are decisions which support

it and, in their Lordships’ opinion, it is plainly right in principle.”

(Our emphasis)

[100] Similarly the admissibility of evidence under our law is not based on

the manner in which such evidence is obtained but as said earlier,

on its relevancy.

[101] The Irish Court of Appeal in Public Prosecution Service v Elliott

and another [2012] N1 154 made this observation which we also

adopt:

“As Lord Steyn observed criminal justice involves a

triangulation of interests which require consideration of

interests beyond that of the defendant. At its heart lies

fairness. The issue which arises in a case such as the instant

case is whether evidence, which has been unlawfully obtained

in that it arises from finger impressions taken with a device

which had not been approved, is inadmissible as a matter of

law (as opposed to being subject to exclusion in exercise of

the trial judge’s discretion conferred on him by art 76 of the

1989 Order). On that issue the law as laid down in Kuruma

and successive cases is clear. It is not inadmissible by reason

of the manner in which it was obtained.”

[102] Based on the principle mentioned above, we are of the view that the

conducting of a trial within a trial by the trial judge to determine

whether the DNA samples from exhibits P58A, P59A, P61A

recovered from the lock-up were obtained by unfair means or

otherwise was a superfluous and an unnecessary exercise.

[103] It is our finding that the recovery of those exhibits used by the

appellant while he was in the lock-up was not a transgression of any

rule, nor was it an infringement of the appellant’s constitutional right

to a fair trial. The appellant was lawfully detained at the lock-up and

the gathering of evidence there by the forensic team was a legal and

fair method of police investigation. The trial judge was thus entirely

right in admitting those exhibits and reversing his earlier ruling.

DNA evidence as corroboration

[104] We now deal specifically on how scientific evidence had proven that

the DNA profile of Male Y can be linked to the appellant, thus

corroborating PW1’s allegation that he was sodomised by the

appellant. In Rusman Sulaiman v Public Prosecutor [2013] 4 CLJ

305 this Court said:

“It is now accepted by courts that bodily fluid, tissues, semen,

saliva etc. obtained from the crime scene may be established

to connect an accused person to the crime…”

[105] In the present case, PW2, PW3 and PW4 took swabs from the rectal

region of PW1, and, as confirmed by PW5’s DNA analysis, sperm

was found in PW1’s rectum. PW5 stated that by logical deduction, if

sperm was detected in PW1’s rectum, then there must have been

penile penetration. This piece of evidence corroborates the

allegation of PW1 that he was sodomised by the appellant.

[106] Whether the anus was torn or bruised is not, in our view, an issue

which could refute the fact that PW1 had been sodomised.

According to PW2, PW3 and PW4, the absence of such injury could

have been due to the lapse of time prior to seeing the doctors, no

undue force having been applied and the use of lubricant. This

explanation in our view is plausible and we accept it.

DNA EVIDENCE

[107] What is critical in the present case is the DNA evidence adduced by

the prosecution to corroborate PW1’s evidence on the factum of

penile penetration, an ingredient of the offence. In view of that, we

will now embark on a detailed examination of the DNA evidence.

[108] The chemists (PW5 and PW6) carried out the Polymerase Chain

Reaction (PCR) test in conducting the DNA examination and

analysis. PCR is a biomedical technology in molecular biology

developed in 1983 by Kary Mullis. PCR is used to amplify a single

copy or a few copies of a piece of DNA across several orders of

magnitude, generating thousands to millions of copies of a particular

DNA sequence (Handbook of Molecular and Cellular Methods in

Biology and Medicine, Third Edition : edited by Leland J.

Cseke, Ara Kirakosyan, Peter B. Kaufman, Margaret V. Westfall,

Taylor & Francis Group, US ; 2011).

[109] By this method, when any cell divides, enzymes called polymerase

make a copy of the entire DNA in each chromosome. The first step

in this process is to “unzip” the two DNA chains of the double helix.

As the two strands separate, DNA polymerase makes a copy using

each strand as a template. This is stated in the evidence of PW5

which reads:

“PW5

S : Earlier in your testimony, you mentioned about the

technique that you have adopted in analysing the

specimens given to you for DNA analysis, You

mentioned about the Polymerase Chain Reaction

technique. Can you explain what Polymerase Chain

Reaction technique is?

J : Polymerase Chain Reaction is a technique which is

used to amplify DNA meaning making millions of copies

of DNA from an original template and this reaction is

carried out with the aid of enzyme called detect

polymerase and other reagents in an instrument known

as the thermalcycler. The objective of PCR is to amplify

DNA and at specific target of the DNA geno. This

specific targets are the STR loci which are stated in my

report. So, the end result of PCR is product which are

million fold copied of DNA at this specific targets”.

[110] This technique is now widely used around the world in DNA

investigation. The advantage of this technique is that it increases

the sensitivity of detecting the DNA because of the amplification.

PW5 further explained the advantage of using the PCR technique in

carrying out the DNA analysis. In the examination in chief, she

stated:

“S : What was the technique adopted before the PCR

technique was adopted?

J : Before the PCR technique, the Forensic DNA

community was using a technique known as RFLP,

Restriction Fragment Length Polymorphism. That was

before the invention of the thermalcycler and invention

of the PCR techniques.”

S : Can you explain what are the advantages in using the

PCR technique compared to the Restriction Fragment

Length Polymorphism technique?

J : The PCR technique increase the sensitivity of detecting

DNA because of the amplification. In addition, it is able

to analyse the graded (sic) DNA, smaller fragments of

DNA or rather DNA of a poor quality compared to the

previous techniques RFLP which uses or which requires

high quality DNA for a successful analysis.”

CHALLENGES ON DNA

[111] Against that background, we now consider the issues raised by

counsel for the appellant challenging the reliability of the DNA

analysis.

Degradation of sample

[112] It is the appellant’s contention that as the samples were taken some

56 hours after the alleged incident, and it took another 40 hours

before the samples reached the chemist (PW5), it is therefore

impossible for the samples to be in pristine condition. It was further

submitted that the surprisingly fresh condition of the samples, was

inconsistent with their history thereby pointing to the possibility of

the samples being compromised on their way to PW5. This is

premised on the opinion of DW4 from his reading of the analysis by

PW5.

[113] However, it was never the prosecution’s case that the samples were

in pristine condition. This is clear from the evidence of PW5. She

conceded under cross-examination that the samples had

undergone some degradation but maintained that what is important

is to see whether the DNA is readable despite the degradation. If

the DNA is readable, findings can be made. The appellant also

criticised the manner PW25 kept the samples i.e. instead of keeping

in chillers or refrigerator he had kept them in a drawer in his airconditioned

room. This the appellant said could lead to further

degradation of the samples.

[114] One crucial point to note is that from the evidence of PW5 and PW6,

if the DNA is completely degraded it means that no DNA profile

could be obtained or developed. But it does not mean that when a

DNA profile was obtained, no degradation had taken place. They

emphasized that there might be some slight degradation, but the

damage is not substantial enough to destroy the DNA entirely.

[115] In State & Others v Jyotish Prasad & Others LNIND 2009 DEL

799 (the High Court of Delhi), the issue of DNA degradation was

considered. It observed:

“While, as a hypothesis, it may be stated that a vaginal swab

kept in an unrefrigerated condition would be subject to

degradation, but that has to be established as a fact. In the

present case, the DNA analysis report does not indicate that

the vaginal swab Exhibit PW-14 obtained from the deceased

had deteriorated to such a condition or, at all, which did not

permit them to do DNA profiling in respect thereof. In any

event, the question of degradation is only limited to the vaginal

swab and not to the microslides (Exhibits 15b, 15c and 15d).

In his cross-examination, PW-6 (Dr. A.K Srivastava) has

categorically stated that microslides, being slides which are

properly dried, have no chance of degradation. The DNA

profiles of the biological fluids present in the microslides were

found identical with the profiles from the blood samples of the

appellants Jyotish Prasad and Ashish Kumar. Thus, the

arguments with regard to degradation advanced by the

learned counsel for the appellant Ashish cannot be accepted.”

[116]On a related issue, PW5 under cross-examination explained that the

decline on one of the peaks was an indication that there could be

degradation of the samples. But she further affirmed that despite the

possibilities of contamination and degradation, it did not affect her

reading of the samples obtained from swabs taken from the high

rectal and the low rectal. She testified that the DNA profile obtained

from swabs B7, B8 and B9 was clear and unambiguous. It was

obviously readable. The degradation has no effect on the DNA

profile obtained from those samples.

[117] PW6 also explained that degradation will always occur in any

biological samples. But when DNA analysis is conducted and good

perfect profiles are obtained, it means that even if degradation had

occurred, it is not sufficient to affect the quality of the DNA.

[118] Similarly, PW5 in re-examination stated:

“S: Even if degradation occurred in the sample, taken from

the inner part of the body, the high rectal and the low

rectal of Saiful, can you confirm whether this has

affected the reading of the genotyping in your analysis?

J: No, it has not affected. That fact that the DNA profile was

clear, it is readable, the degradation has no effect on the

DNA profile that is obtained from these samples.

S: You can confirm that you can still obtain the allele

reading from the 16 Loci of these samples?

J: Yes. Degradation becomes a problem only when the

DNA profile breaks down and is not readable.”

[119] In Rudy bin Jupri v Public Prosecutor [2013] 3 MLJ 362, the

samples were only handed over by the investigating officer more

than a month since the post mortem. Despite that time span, the

chemist in that case was still able to develop the DNA profile from

the samples.

[120] The scientific position in regards to degradation of DNA was also

considered in R v Butler [2001] QCA 385 where the Court of

Appeal, Supreme Court of Queensland held that the issue of

degradation is irrelevant as DNA profile can be extracted as long as

it is air dried. The dictum of the Court at page 6 paragraph 27 reads:

“Thirdly, one of the advantages of the process by which DNA

is extracted, so Dr Budowle said, is that unlike earlier

processes such as the ABO process referred to later, partial

degradation does not prevent good results from being

obtained. That is because, unlike the other processes, it

focuses on very small portions of the DNA, a few hundred

letters long at the most. These may be mere fragments of

DNA.”

[121] In our case, PW6 when asked whether she took into consideration

the occurrence of contamination on all the exhibits she received,

PW6 testified that there was no contamination, as all the profiles

were readable. All the quality assurances were in place. The reagent

blank stayed blank. If any of the peaks was contaminated by e.g.

the 18 allele or contaminated by the people in her laboratory (or for

that matter by PW25 as suggested by the defence), then the other

Short Tandem Repeat (STR) locus will also be contaminated, which

was not the case here. Even her negative control in her

Elecytropherogram was blank as well. If there was contamination,

then one would be able to see the 18 allele in all the loci D3S1358

across all the samples that she had analysed.

[122]Premised on the above we agree with the prosecution that it is

incorrect and misleading to conclude that because of the

degradation the DNA profiling is rendered unreliable. It is thus our

finding that the degradation has no effect whatsoever on the DNA

profiling in this case.

Break in the chain of custody of the exhibits

[123] The appellant’s counsel submitted that the samples had been

compromised as there was a break in the chain of custody of the

exhibits. It was also his submission that the DNA evidence had been

planted. Let us now consider the evidence before us.

[124] The evidence shows that PW25, after receiving the sample bag

(P27) had cut it open to add his own markings to the samples inside.

He was merely adhering to departmental guidelines the Inspector-General

Standing Orders (IGSO) which required him as an

investigating officer to put proper markings and labelling to exhibits

for the purpose of identification in courts. Having seen the physical

evidence, especially the bottom part of P27 that was snipped by

PW25, we observed that he was extremely careful in handling it.

PW25 even left the snipped portion of P27 attached to it to show

transparency in his action. PW25 then sent the samples to PW5

who thereafter developed the Male Y DNA profile.

[125] PW5 in her testimony confirmed that she did not detect any

tampering of the seals of the exhibits marked B to B10. We therefore

find that there was no break in the chain of custody of those exhibits.

As such, we agree with the Court of Appeal that the integrity of the

samples was not compromised.

[126]In view of our finding that there was no break in the chain of custody

of evidence, the fanciful suggestion of the appellant’s counsel that

the DNA evidence had been planted is therefore unsustainable.

Presence of Allele 18

[127] The next issue is the presence of allele 18. It was contended that

the presence of allele 18 proves the existence of a third party

contributor on B9 (low rectal swab) and P59A (‘Good Morning’

towel).

[128] According to PW5 the existence of DNA in 6 loci is the minimum

threshold requirement before one can imply or conclude the

presence of a third party contributor. Therefore, the presence of one

“foreign” allele (of which PW5 considered it not reportable) cannot

be taken to mean there exists a third party contributor. This explains

why on B5 (perianal region) one other contributor was reported as

the 18 allele was found on 6 loci. This is one of the reasons why the

unaccounted alleles pointed out by the appellant was not reported

by PW5 and PW6 in the summary of their STR results, as they did

not meet the minimum threshold.

[129] The existence of allele 18 found on B9 (low rectal swab) and the

P59A (‘Good Morning’ towel), however, does not affect the finding

by PW6 that the DNA found on the P58A, P59A and P61A matched

the DNA found by PW5 on swabs B5 (perianal region), B7 (high

rectal) and B8 (high rectal). The DNA profile matched each other

indicating that the DNA identified originated from the same source

i.e. Male Y. From the evidence, it is established that Male Y is the

appellant.

Reading and Interpretation of Data

[130] According to the chemists (PW5 and PW6) DNA profile is unique in

that no two individuals would have the same DNA. Even siblings and

twins have different DNA unless they are identical twins. In the case

of twins, the profiles are different because there would be two

separate ovum fertilized by two separate spermatozoa.

[131] Since specific locations are used for DNA profiling (Short Tandem

Repeats profiling) which has a high degree of discrimination, the

profile can safely be used to discriminate between two individuals.

Because of the uniqueness of DNA profile of each individual, it is

used to identify people or individuals. In forensic context, it is used

to compare the origin of certain biological evidence.

[132] PW5 received the samples collected by the doctors from PW1

through the investigating officer (PW25). Out of the twelve samples

collected, PW5 conducted tests and examinations on eleven of

them. They are swabs B to B10 (P6A to P6K). On swabs B to B10

she carried out both confirmatory and non-confirmatory tests to

detect and confirm the presence of semen. The tests she carried out

were:

(a) acid phosphate test – non confirmatory;

(b) PSA (phosphate specific antigen) test – confirmatory; and

(c) sperm isolation test – confirmatory.

[133] From these tests, PW5 was able to detect semen and using the

sperm isolation test she found sperm cells in those samples. From

the microscopic examination, she found sperm heads. This finding

of sperm heads, after more than two days is not unusual as

according to PW5, even though sperm cells are prone to microbial

attack, but because of the membrane structure of the sperm heads,

they are better preserved.

[134] It was submitted by the prosecution that this finding is concordant

with the article written by G.M. Willot and J.E. Allard entitled

“Spermatozoa – Their presence after sexual intercourse”. In the

summary of this article, the writers state:

“…the longest time after intercourse that spermatozoa

have been found on a total of 2410 casework swabs are

as follows :-

internal vaginal swabs 120 hours

external vaginal swabs 120 hours

rectal swabs 65 hours

anal swabs 46 hours

oral swabs 6 hours”

[135] PW5’s discovery of the sperm heads is not only consistent with the

above literature but also consistent with the evidence of PW1 of

being sodomised on 26.6.2008 between 3.01 p.m. to 4.30 p.m. His

rectum was swabbed on 28.6.2008 between 10.30 p.m. to 11 p.m.

approximately 56 hours after the act. The discovery of the sperm

heads is thus consistent with current scientific knowledge.

[136] PW5 further explained that the seminal stains were subjected to an

extraction process known as the differential extraction process to

separate the sperm cells. By this process, the sperm cells would

appear in sperm extract and non-sperm cells in non-sperm extract.

[137] Apart from the differential extraction process and the microscopic

test, PW 5 also conducted DNA test, which according to her was the

ultimate test, in determining the sperm cells. The DNA profiles

obtained in the present case were very clean and clear and she was

thus able to interpret them without any difficulty.

[138] With regard to the mixed profile in this case, she subtracted the

known contributor in order to deduce who the other contributor was.

In this case she could easily do it since she had the known sample

of PW1.

[139] PW5 and PW6 had carried out the PCR technique in conducting the

DNA examination and analysis. Using this technique, the DNA

extract is examined at 15 STR loci and one sex determining locus

called amelogenin. It is significant as it increases the discrimination

power and sensitivity to differentiate between individuals.

[140] As stated earlier, the PCR technique increases the sensitivity of

detecting the DNA because of the amplification which can be done

from a minute amount of DNA. In addition, it is able to analyse the

smaller fragment of DNA or DNA of poor quality.

[141] PW5 also testified that PCR technique involved the re-amplification

of DNA as not all the PCR will be successful at the first instance. If

there are problems seen after amplification, then re-amplification is

carried out to rectify those problems. This usually will result in the

most successful DNA profile.

[142] Both chemists testified that their reports P25 and P26 were made

based on their interpretation of the DNA profile from the PCR

technique that they had adopted.

[143] Both chemists interpreted their data based on the entire 16 loci.

According to PW5, interpretation could not be made by

discriminating and isolating the locus and it must be based on the

entire 16 loci. The mathematical approach relied by the defence in

raising the possibilities of having some other contributors by

referring to one or two loci was not the correct approach to

interpretation.

[144] PW5 further testified that even if the erroneous mathematical

approach were used, the possibility of other contributors from the

unaccounted alleles at some of the STR loci (and not reported in the

appendix in P25), does not disprove the existence and presence of

Male Y, whose profile was obtained from the interpretation of the

entire 16 STR loci. PW5 also testified that apart from interpreting the

entire 16 STR loci, she also interpreted the DNA profiles from all the

samples.

[145] When asked about the possibility of the combination of certain

alleles which by mathematical permutation could result in ten

contributors, PW5 explained that the mathematical permutation is

not the approach to interpretation. If this approach is adopted some

of these combinations become impossible when further loci are

examined. This is just a mathematical exercise and not

interpretation.

[146] During cross-examination, the defence did not dispute that the

forensic community had recommended that the minimum number to

make an association is 6 loci despite the appellant having his

experts with him throughout the cross-examination. This piece of

evidence given and explained by PW5 was not challenged. The

defence merely put to PW5 the possibility of other unaccounted

alleles at one or two loci. PW5 explained that that was not how the

interpretation of data/profile should be done.

[147] PW5 was also asked about allele drop-out, a phenomenon where

the expected allele is not observed. She explained the situation in

which it could occur and said that there is no other exercise in

determining drop-out except by reference samples (term used by

the chemist).

[148] On the omission to follow recommendations 7 and 8 of the

“Recommendations on the Treatment of Dropout” found in the

publication of the International Society of the Forensic Genetic, of

which she is a member, PW5 said that these are merely

recommendations and not standards. They cannot be applied rigidly

to each and every case. She said that all interpretations of the

mixture are based on their validation studies and experience.

[149] With regard to T-value (threshold value), which she did not adopt

when drop-out was considered to have occurred, she said it was of

no significance in this case. To adopt a standard T-value would

mean adopting a mathematical approach and not interpretation. She

explained that the Chemistry Department adopted the threshold of

50 RFU that is equated to T-value. PW 5 also dealt at length on the

implication of drop-out.

[150] Both chemists also touched on the issue of stutter. From their

evidence, it could be gleaned that the Chemistry Department has its

own guidelines for the identification of stutter and the range of stutter

established through validation studies is 10% to 20% of the real

peak or parent allele. The threshold for considering a peak as stutter

is 50 RFU and a stutter would not be reported in the STR summary.

[151] On statistical evaluation, PW5 testified that the calculation of the

matching probability of DNA samples will be conducted only when

there is a sample or a known contributor.

[152] In our case the sample is B10 (the blood-stained sample) taken from

PW1. PW5 explained during cross-examination that she only did the

statistical evaluation on samples A3 (P12A and P12B) with the

known sample B10 to make association of the crime stain profile

and the known contributor (PW1).

[153] PW5 further testified in re-examination that she will make a

statistical evaluation to make a match that this profile comes from

the same origin of the known sample.

[154] PW5 concluded that from the DNA examination using the PCR

technique, the result was that DNA profiles derived from the seminal

stain spots P12A and P12B of trousers P12, distinguished one

common male contributor having a DNA profile matching the profile

of blood-stained sample B10. The probability of a coincidental

match from a randomly selected unrelated individual, as calculated

based on the population database of Malaysian Malays is 1 in 570

quadrillion (570 x 1015).

[155] PW5 further explained how the calculation was made. According to

her, the result was calculated from a population database of

samples of Malaysian Malays and the frequency of each allele is

then computed. Using the law of genetics with the correction of subpopulation

and sub-culture the figure of 1 in 570 quadrillion was

obtained.

[156] She further testified that this was a very high figure, indicative of the

high certainty that these two DNA profiles originated from the same

individual. PW5 in cross examination affirmed that the purpose of

the statistical report is to give weight to the evidence. The statistical

evaluation was done by using a software called the DNA view

developed by Dr. Charles Berner. From this software, the

calculation of match probabilities was made.

[157] PW5 also testified that as part of the quality assurance, the

statistical data kept by the Chemistry Department is regularly

audited.

[158] PW6 also explained as to the population database kept by the

Chemistry Department. The DNA profile of population database

kept by the Chemistry Department consists of the DNA profile of the

major ethnic groups in Peninsular Malaysia namely Malay, Chinese

and Indian based on the STR 16 loci. This population database is

kept in the DNA view software.

[159] PW6 also testified on the match probability that she had conducted

on the DNA profile of Male Y in her report as well as Male Y in PW5’s

report. According to PW6, the match probability of a randomly

selected unrelated individual to have a matching profile at the STR

loci is approximately 1 in 470 quintillion (470 x 1018) as calculated

based on the Malaysian population database of the Malay race, 1 in

52 quintillion (52 x 1018) as calculated based on the Malaysian

population database of the Chinese race and 1 in 210 quintillion

(210 x 1018) as calculated based on the Malaysian population

database of the Indian race.

[160] PW6 testified further that the document she referred to in court was

the DNA view statistical calculation. It consisted of the DNA profile

that she had obtained namely the locus, the alleles, the frequencies

and the probabilities. This document referred to by PW6 is the same

document as reflected in the DNA view software. PW6 had

compared the DNA profile obtained from the swabs of P58A, P59A

and P61A with the report of PW5. She concluded that the common

DNA profile that she obtained from those swabs matched the DNA

profile of Male Y, indicating that the DNA identified originated from

the same source.

[161] In Doheny and Adams v R [1997] 1 Cr App Rep 369, the English

Court of Appeal stated that the DNA expert must explain in detail his

findings such as:

(i) the matching DNA characteristic (how the results tabulated in

the report was obtained); and

(ii) the random occurrence ratio (accuracy of the test including

how the calculation is made).

[162] Doheny and Adams also stated that the evidence of the random

occurrence ratio depends greatly on the other available evidence.

The requirements as stated in Doheny and Adams was primarily

concerned to provide guidance of a general nature in relation to the

presentation of DNA evidence in order to determine its

conclusiveness by obviating any probability that the DNA belongs to

someone else.

[163] In our case, the PCR technique was employed using the 16 STR

loci which gives a higher discriminatory profile.

[164] It would appear that after Doheny and Adams the significance of

DNA test will depend greatly upon what else is known about the

suspect and how these pieces of evidence are sufficient to connect

the suspect with the crime. This approach was adopted with

approval by the Court of Appeal in Hanafi Mat Hassan.

[165] In our case, PW6 carried out the match probability of Male Y profile

based on PW5’s STR summary. It is indeed a very high probability

based on the DNA of the Malaysian population database that Male

Y belongs to the same person. Considering the other evidence,

there is no dispute that the samples which PW6 had examined came

from the items that were used solely by the appellant.

[166] It is thus indisputable that the profile of Male Y developed and

analysed by both the chemists belongs to none other than the

appellant.

[167] As propounded by Doheny and Adams, DNA evidence standing

alone may not be sufficient to connect an accused person to his guilt

but it remains as a strong corroborative strand, which if coupled with

other evidence will create a fine rope sufficient to convict him.

[168] Hence, the DNA evidence of Male Y in the present case is the key

corroborative evidence to the element of penile penetration by the

appellant.

[169] It was the contention of the appellant that the statistical data must

be produced before the court, failing which, no weight could be

attached to such findings.

[170] In reply, the prosecution submitted that both chemists, PW5 and

PW6, had explained at great length of the matching probability by

using the DNA view software. This is in line with the requirements in

Doheny and Adams.

[171] Premised on the above, we agree with the prosecution that it is not

the statistical data that has to be produced but for the experts to

explain in detail how the results tabulated in their reports were

obtained and how the calculation was made, as demonstrated by

PW5 and PW6.

[172] When considering whether we should accept PW5 and PW6’s

evidence, we must first conclude that their evidence would fall under

that of an expert’s opinion, and we have no doubt they are experts.

As regards the opinion of an expert, it was observed in Munusamy

v Public Prosecutor [1987] 1 MLJ 492 as follows:

“… the court is entitled to accept the opinion of the expert on

its face value, unless it is inherently incredible or the defence

calls evidence in rebuttal by another expert to contradict the

opinion. So long as some credible evidence is given by the

chemist to support his opinion, there is no necessity for him to

go into details of what he did in the laboratory, step by step.”

(Public Prosecutor v Lam San [1991] 1 CLJ (rep) 391; Khoo Hi

Chiang v Public Prosecutor [1994] 2 CLJ 151)

[173] Having considered the totality of the evidence, and having taken into

consideration the above discussion we have no doubt that the

appellant failed to discredit PW5 and PW6. There was nothing

inherently incredible about PW5 and PW6’s evidence.

Finding of a prima facie case

[174] Based on the above, we agree with the Court of Appeal that the trial

judge had sufficiently evaluated the evidence before him in arriving

at his finding that a prima facie case had been made out against the

appellant, at the close of the prosecution’s case.

The Defence

[175] The appellant’s initial defence was one of alibi. A notice under s.

402A of the Criminal Procedure Code was earlier filed and served

on the prosecution on 19.6.2009, stating that the appellant was not

at the place and time where the alleged offence had taken place. In

the notice of alibi, the appellant listed 13 witnesses in support of his

alibi. However, when the defence was called, the appellant chose

not to call any of his alibi witnesses. The alibi defence was thus

abandoned.

[176] The prosecution submitted that the failure by the appellant to

provide the explanation for the abandonment of his alibi defence

warranted an adverse inference under s.114 (g) of the Evidence Act

to be invoked. In support, we were invited to adopt the position taken

by the then Supreme Court in Choo Chang Teik & Anor v Public

Prosecutor [1991] 3 CLJ 2387; Ramakrishnan s/o Ramayan

[1998] 3 SLR 645; the Court of Appeal’s case of Thenegaran a/l

Murugan & Anor v PP [2013] 2 MLJ 855; and the Indian High Court

case of Satya Vir v State of Allahabad [1958] Cri LJ 1266.

[177] We are of the view that the principle stated in the above cases is an

exception to the general principle. In Goh Ah Yew v Public

Prosecutor [1949] MLJ 150, it was held that:

“No such inference, however, can be drawn against an

accused person in a criminal trial. There is no duty upon an

accused person to call any evidence. He is at liberty to offer

evidence or not as he thinks proper and no inference

unfavourable to him can be drawn because he adopts one

course rather than the other.”

The Supreme Court in Ilian & Anor v Public Prosecutor [1988] 1

MLJ 421 approved the above proposition.

[178] We hold that the above proposition is still good law, and therefore

decline the invitation by the prosecution to invoke an adverse

inference against the appellant for the abandonment of the alibi

defence.

[179] The appellant in this case elected to make an unsworn statement

from the dock. In his statement, the appellant denied ever

sodomising PW1. The appellant contended that the incident had

never happened, and that PW1 had lied. The appellant stated that

PW1 had all the opportunity to flee from the room where the incident

happened as it was not locked or latched. PW1 further did not seek

immediate medical attention after the incident.

[180] The appellant further stated that PW1 did not lodge a police report

immediately after the incident. Further, his subsequent conduct of

having a drink, a friendly conversation with the appellant

immediately after the alleged incident, his attendance at a PKR’s

function, and a meeting with Anwar Ibrahim’s Club the next day,

were not consistent of him having been sodomised by the appellant.

He also stated that PW1 could not have given in to him as PW1 is

younger and physically bigger than him, whilst he is old and weak

with a history of back injury and had undergone a major back

surgery.

[181] The appellant also criticised the evidence of the chemists, PW5 and

PW6, as well as the investigating officer (PW25) in that the DNA

obtained by PW5 did not come from the samples taken from PW1’s

rectum. He further stated that the samples collected from the

perianal and rectum of PW1 had degraded and had been tampered

with. He further claimed that his DNA had been planted.

[182] The appellant also claimed that he was deprived of a fair trial in that

the prosecution had failed to disclose evidence material to his

defence coupled with the failure of the court to direct the

prosecutor to do so. He criticised the court for failing to take

contempt proceedings against the media and persons who made

prejudicial statements outside the court to influence the course of

the trial, and to act on the allegation that PW1 had an affair with a

member of the prosecution’s team. He further criticised the

finding of the court that PW1 was a truthful witness, and accused

the court of prejudging his case. He was also unhappy with adverse

comments made by Abdul Malik Ishak JCA when delivering an

earlier judgment of the Court of Appeal, which according to him had

prejudiced and deprived him of a fair trial.

[183] His other complaints included his unlawful arrest, the illegally

obtained DNA evidence, the integrity of the samples, the possibility

of the samples having been tampered with, the lack of credibility and

competency of the prosecution’s expert witnesses and the trial

judge’s refusal to recuse himself. He also complained that the court

had created a situation under which he could not have possibly

given evidence under oath. In short, the appellant alleged that all

the above infirmities revealed that the trial judge had failed to ensure

a fair trial.

[184] Finally, the appellant alleged that the entire process against him is

nothing but a conspiracy by the Prime Minister Dato’ Sri Mohd Najib

bin Tun Abdul Razak to send him into political oblivion by attempting

once again to put him behind bars. The existence of a political

conspiracy by the Prime Minister and others was raised extensively

by the appellant in his statement from the dock.87

[185] In support of his defence, the appellant called seven witnesses,

namely Dr. Than Aung@ Muhamad Osman bin Abdul Hamid (DW1),

Dr. David Lawrence Wells (DW2), Yusni bin Ali (DW3), Dr. Brian

Leslie McDonald (DW4), Lim Kong Boon (DW5), Mohd Najwan bin

Halim (DW6) and Dr. Thomas Hoogland (DW7).

[186] DW1 was a doctor from PUSRAWI, who first examined PW1. DW1

was offered to the defence by the prosecution at the close of the

prosecution’s case. According to DW1, on 28.6.2008 PW1 had

turned up at PUSRAWI for treatment complaining of pain in the anus

when passing motion. DW1 then examined PW1 using a

proctoscope for suspected piles. Immediately after the examination

PW1 told DW1 that he was sodomised by a VIP and was scared to

go to the police. According to DW1, had he been informed of that

earlier, he would not have carried out the examination of PW1 as

this would be a matter for forensic medical examination. DW1 in his

evidence also testified that PW1 told him that he had been assaulted

by the introduction of a plastic object into his anus.

[187] DW2 is a professor at the Victorians Institute of Forensic Medicine

Melbourne, Australia. He was called as an expert witness by the

appellant to contradict and rebut the prosecution’s expert witnesses.

In his evidence DW2 testified that beyond 36 hours after a sexual

assault one could hardly succeed in collecting any sample of value

from which DNA could be extracted. DW2 also testified that in view

of the manner the samples were packed, sealed and stored, it was

not possible to extract DNA from the sperm cells because samples

of this nature would have degraded. Therefore, he concluded that it

was impossible to have positive findings on the samples taken

from PW1 more than 56 hours after the alleged incident. In his

evidence DW2 even suggested that the samples could be

contaminated, and that the appellant’s DNA was planted. DW2 also

criticised the medical report on PW1 (P22) for lacking in particulars,

such as the omission to state the time when the samples were

collected, and the errors of dates on certain exhibits.

[188] DW3 is the Administrative Officer of PUSRAWI. He was called to

identify IDD16; a file kept at PUSRAWI on PW1. According to DW3,

he only had a copy of the report, and did not know what happened

to the original.

[189] DW4 is the second expert witness called by the defence. He is a

Consultant at Molecular Genetics, Linkfield New South Wales,

Sydney, Australia. DW4 similarly testified that it was unlikely that

any trace of semen could be retrieved 36 hours after a sexual

assault. Commenting further on the retrieval of the samples which

took place 56 hours after the alleged offence was committed, DW4

shared the same opinion as DW2 in that it would be very unlikely

any sperm cell could be retrieved from PW1’s rectum. According

to him active bacterial action in the rectum for 54 to 58 hours would

have degraded the samples.

[190] DW4 was also of the opinion that the action of the investigating

officer (PW25) in not following the instruction given by PW3 as to

the proper safekeeping of the samples had further contributed to the

degradation of the samples. According to him as the samples were

not stored in a freezer as instructed by PW3, any trace of DNA on

the samples would be destroyed. DW4 also commented on the

accreditation of the laboratory of the Chemistry Department, and

added that the two chemists, Dr. Seah Lay Hong (PW5) and Nor

Aidora binti Saedon (PW6), were not competent to extract DNA and

interpret the DNA profiles. DW4 also attacked the differential

extraction process carried out by PW5.

[191] DW5 is the Director of the Forensic Division at the Chemistry

Department. He was called by the defence to testify on the

accreditation of the Forensic Division of the Chemistry Department

for various disciplines of forensic science which include control

substances, toxicology, trace evidence, biology, firearms and tool

marks, and question document. During cross-examination by the

prosecution DW5 testified that the Chemistry Department had been

accredited under the American Society Crime Lab Directors

(ASCLB/LAB) Organization.

[192] DW6 who was 26 years old, was an officer employed at the office of

“Penasihat Ekonomi Selangor”. In his evidence, he claimed to know

PW1 when they were studying together at University Tenaga

Nasional in Bangi. He testified of his acquaintance with PW1. He

claimed that he had lunches, attended the same orientation at the

university and stayed at the same hostel with PW1. DW6 gave

evidence as to PW1’s activities as a student, the associations he

joined and the various positions he held at the university. DW6

testified that through the social media “Friendster”, PW1 had

uploaded pictures of himself with some senior ministers. DW6 also

testified of the other photos which were uploaded by PW1 in the

social network showing his campaigning activities for Barisan

Nasional (BN) during the 2008 General Election. DW6 testified that

PW1 hated the appellant. This was evident from the photograph of

the appellant uploaded by PW1 in the social media, under a caption

“Pemimpin Munafik” (hypocrite leader). DW6 also testified that he

was surprised when he discovered at the end of February 2008 that

PW1 worked for the appellant. According to DW6, this went against

PW1’s stand when he was a student.

[193] DW7 was the last witness called by the defence. DW7 is the

Orthopaedic Surgeon from Munich Germany. He informed the court

that he examined the appellant on 5.9.2004. He found the appellant

suffering from slip disc at levels L4 and L5 on the left and lateral

stenosis with facet joint arthritis. He carried out an operation on the

appellant on 6.9.2004, and the appellant was hospitalised from

6.9.2004 to 27.9.2004. After the appellant was discharged and

about 4 ½ months later, DW7 examined the appellant again. He

found a significant improvement of the appellant’s condition in

comparison to the condition before the operation. DW7 did not see

the appellant for the next six years until 8.9.2011, which was about

a month before he testified at the trial. From his examination and the

history of the appellant’s illness, DW7 claimed that the appellant

could not possibly perform the act as described by PW1 as the

appellant was labouring under intense back pain resulting from

degeneration in the facet joint.

[194] At the end of the defence’s case the trial judge acquitted and

discharged the appellant of the charge. He was of the view

that the result of the analysis done by PW5 could not be reconciled

with the expert evidence of DW2 and DW4. The trial judge was of

the view that the evidence of DW2 and DW4 had cast a reasonable

doubt on the guilt of the appellant.

[195] The Court of Appeal disagreed with the decision of the trial judge. In

allowing the appeal, the Court of Appeal was of the view that the trial

judge had failed to carry out a critical examination of the evidence

when preferring DW2 and DW4’s evidence over that of PW5 and

PW6. The Court of Appeal also held that the evidence of DW2 and

DW4 had not raised a reasonable doubt on the prosecution’s case.

Political conspiracy

[196] One of the complaints raised by the appellant in this appeal was the

failure of both the High Court and the Court of Appeal to consider or

evaluate the appellant’s defence of a political conspiracy.

[197] It was submitted that the political conspiracy defence was not

“plucked from the air”, but supported with the names, dates and

events. These were admitted by PW1 in the course of his evidence.

They were:

(a) that on 24.6.2008 he had met with the then Deputy Prime

Minister (DPM) Dato’ Sri Mohd Najib bin Tun Abdul Razak

at his residence. He had earlier met the DPM’s special

officer Hj Khairil Anas at his house and then drove to meet

the DPM;

(b) on the same evening of 24.6.2008, he met Senior Assistant

Commissioner (SAC1) Datuk Mohd Rodwan bin Mohd

Yusof, a high ranking police officer at Hotel Melia at Jalan

Imbi;

(c) on 25.6.2008, he contacted the Inspector General of Police,

Musa Hassan;

(d) on 27.6.2008, he met his uncle Tuah bin Mohd Ali and

Rahimi bin Osman and Senator Mohd Ezam Mohd Noor;

and

(e) on 27.6.2008, he met Datuk Mumtaz Begum binti Abdul

Jaafar.

[198] From the above, it was argued that prior and subsequent to the

alleged incident of sodomy but before lodging the police report,

PW1 had met with prominent persons, including the adversaries of

the appellant. This was not dealt with by the High Court and the

Court of Appeal. Thus, it was submitted that there existed a political

conspiracy which rendered it improbable that the alleged incident

ever happened. Instead, it was more probable that the alleged

incident was concocted by PW1 and the persons he met between

24.6.2008 and 27.6.2008.

[199] It was also submitted that the existence of a political conspiracy

involving the then DPM and others was raised extensively by the

appellant in his statement. However, the Court of Appeal dismissed

the appellant’s statement and instead made adverse comments on

it. This had occasioned a miscarriage of justice.

[200] It is a well-established principle of criminal law that the burden of

proof lies on the prosecution to prove its case beyond reasonable

doubt. There is no similar burden placed on the accused to prove

his innocence. The accused is presumed innocent until proven

guilty. To earn an acquittal, his duty is merely to cast a reasonable

doubt in the prosecution’s case. (Mohamad Radhi Yaacob v

Public Prosecutor [1991] 1 CLJ (Rep) 311).

[201] The complaint by the appellant was that both the High Court and the

Court of Appeal did not consider the political conspiracy defence

which if accepted or believed would entitle the appellant to an

acquittal.

[202]We accept that the courts below did not explicitly consider the

political conspiracy defence which was raised by the appellant in his

unsworn statement from the dock. In law, a trial judge will not give

much weight to what an accused has said in his unsworn statement

as he is not subject to cross-examination by the prosecution nor can

he be questioned by the trial judge. (Lee Boon Gan v Regina

[1954] 1 MLJ 103; Udayar Alagan & Ors v Public Prosecutor

[1962] 1 MLJ 39; Mohamed Salleh v Public Prosecutor [1969] 1

MLJ 104; Juraimi bin Husin v Public Prosecutor [1998] 2 CLJ

383; and Mohd Affandi bin Abdul Rahman & Anor v Public

Prosecutor [1998] 1 MLJ 537).

[203] The issue is did the trial judge and the Court of Appeal adopt the

correct principle in assessing the appellant’s statement? The trial

judge in assessing the appellant’s statement observed as follows:

“[196] The accused in this case had denied sodomising the

complainant. Although this denial was made from the dock, it

was still a denial. He believed the charges against him was

made not because the sodomy took place, but to send him

into political oblivion by attempting to put him behind bars.”

[204] The Court of Appeal after discussing the law on a statement from

the dock, agreed with the trial judge that the appellant’s statement

from the dock was a mere denial. The Court of Appeal observed as

follows:

“[108] For the respondent to succeed in his defence, it is

incumbent upon him to adduce evidence which can answer

the allegations in the charge. In this case, the respondent did

not even deny that he was at the scene of the crime at the

material time and date as stated in the charge. He never

disputed that his car was seen entering and leaving the

condominium at the material time. He also did not dispute that

he was seen entering the lift to the 5th floor of the

condominium and later leaving the place. He also did not

dispute that he had directed his chief of staff, PW24 to arrange

for an envelope to be handed over to him at the said

condominium and that PW24 had instructed PW1 to bring the

envelope to him. The respondent also did not dispute the fact

that PW1 had brought the envelope to him at the place of the

incident. The learned judge found that the respondent’s

statement from the dock is a mere denial with which we fully

agree. The bare denial by the respondent does not amount to

any doubt whatsoever. A credible defence is one that answers

the evidence thrown at it by the prosecution. It is also

imperative that the respondent explain his case.”

[205] We hold that the Court of Appeal had adopted the right principle in

assessing the appellant’s statement from the dock. As such we find

no merit on the appellant’s complaint that the Court of Appeal had

seriously misdirected itself in making adverse comments on the

appellant’s decision to give his statement from the dock. While it is

true that it is within the appellant’s right to give a statement from the

dock, that statement must however amount to a credible defence. A

mere denial does not amount to a credible defence. We hold that

the defence of political conspiracy remains a mere allegation

unsubstantiated by any credible evidence.

[206] We will now consider the evidence of other defence witnesses.

[207] As stated earlier, the trial judge had found that the defence through

the evidence of DW2 and DW4 had cast a reasonable doubt as to

the guilt of the appellant. The reasons given by the trial judge were

as follows:

“[203] Clearly, the evidence from the prosecution witness on

the result of analysis done by PW5 on the samples collected

from the complainant could not be reconciled with that of the

expert opinion given by the defence through DW2 and DW4.

Which expert was right? This brings to the forefront the issue

of integrity of the samples. How the samples were handled

after they were taken from the complainant and before they

reached PW5 for analysis became very important.

[204] It was the prosecution evidence that all samples

collected from the complainant were put individually in plastic

receptacles labelled and sealed with Kuala Lumpur Hospital

seal by Dr Siew (PW3). These receptacles were then put in

tamper proof Hospital Kuala Lumpur plastic bag (P27) and

heat sealed. This plastic bag (P27) was then handed over to

the investigating officer PW25 to be handed to PW5 for

analysis. It was not in dispute that PW25, at his office, cut

open P27. According to him it was done for the purpose of

individually re-labelling the receptacles. In my view this was

not necessary since the receptacles were already packed and

labelled by the experts who collected them. The whole

purpose of packing and labelling and sealing by the experts

who collected the specimen was to maintain the integrity of

the samples and the chain of custody.

[205] It was the prosecution stance that the tampering with

P27 did not in any way compromised the integrity of the

samples in the receptacles since the receptacles were

individually sealed with Hospital Kuala Lumpur seal. DW3

when examined on this subject said that the receptacles were

not tamperproof (meaning the seal could be removed and

resealed) from the manner in which they were sealed and the

type of material used as seals. By cutting open P27, the

confidence in the integrity of the samples was gone.

[206] After going through the defence’s evidence particularly

those stated above, this court could not, at this stage, with

100% certainty, exclude the possibility the integrity of the

samples taken from the complainant had been compromised

before they reached PW5 for analysis. As such it was not safe

to rely on the DNA result obtained by PW5 from the analysis

conducted on those samples. That being the case, there was

no evidence to corroborate the evidence of PW1 on factum of

penetration.

[207] This court was left only with the evidence of PW1 to

prove penetration. This being a sexual offence, it is trite law

that the court is always reluctant to convict an accused person

based solely on the uncorroborated evidence of the

complainant. Therefore the accused is acquitted and

discharged from the charge.”

[208] The Court of Appeal disagreed. It was of the view that the trial judge

had erred in his finding that the evidence of DW2 and DW4 had

created a reasonable doubt on the prosecution’s case. After a

critical examination of the reasons given by the trial judge, the Court

of Appeal held:

“[150] In our view, the comments and the criticisms by the two

expert witnesses of the defence pertaining to the evidence of

PW5 and PW6 on their analysis and the three doctors who

prepared the report in Exhibit P22 has no probative value as

to cast a reasonable doubt on the prosecution’s case. The

learned trial judge had erred in concluding that the evidence

of these two expert witnesses had shown the possibility of the

samples taken from the complainant to have been

compromised and the results of the DNA analysis by PW5 to

be unsafe to be relied upon, thus the absence of any

corroborative evidence on the factum of penetration.”

[209] The question now is whether the Court of Appeal came to the right

conclusion. Based on what we discussed earlier, we agree with the

conclusion of the Court of Appeal that the trial judge had indeed

erred in accepting the evidence of DW2 and DW4 that the samples

taken from PW1 had been compromised and unsafe to be relied

upon resulting in an absence of corroborative evidence on the

factum of penetration.

[210] Further, we are of the view that the trial judge was in error in

imposing the “100% certainty” standard of proof on the prosecution

to refute the possibility of the samples taken from PW1 being

compromised. The trial judge had imposed too high a burden on the

prosecution. The correct standard of proof to constitute proof

beyond reasonable doubt need not reach certainty but carry a high

degree of probability.

[211] On the facts of this case, we find that the possibility of the integrity

of the samples taken from PW1 having been compromised before

reaching PW5 is remote. Such a suggestion can be dismissed with

this one sentence, “of course it is possible, but not in the least

probable” (Miller v Minister of Pensions [1947] 2 All ER 372).

Denning J in that case, described the standard of proof required in

criminal cases with these words:

“Proof beyond reasonable doubt does not mean proof beyond

the shadow of doubt. The law would fail to protect the

community if it admitted fanciful possibilities to deflect the

course of justice. If the evidence is so strong against a man

as to leave only a remote possibility in his favour which can be

dismissed with the sentence “of course it is possible, but not

in the least probable” the case is proved beyond reasonable

doubt, but nothing short of that will suffice.”

That principle has long been accepted by our courts and the law on

this issue is well settled (Saminathan & Ors v Public Prosecutor

[1955] 21 MLJ 125; Public Prosecutor v Datuk Haji Harun bin

Haji Idirs & Ors [1977] 1 MLJ 180).

[212] With regard to the credibility of DW2 and DW4, the Court of Appeal

stated as follows:

“[155] … The learned trial judge turned an indulgent eye upon

the evidence of DW2 and DW4 when he should have treated

them with caution. There was a total failure of any observation

with regard to credibility….

[156] Of no less serious error on the part of the learned trial

judge, was the failure to reason out the basis for his

acceptance and preference for these two defence experts

which is an integral part of the analysis and evaluation of

evidence by a presiding judge.

[157] …103

[158] … In our view, the reception by the learned trial judge of

the defence expert witnesses’ evidence is not objective and is

one sided….”

[213] Having considered the evidence of DW2 and DW4, we agree with

the findings of the Court of Appeal in rejecting their evidence for the

following reasons:

(a) Both DW2 and DW4 had not done any tests on the samples

but merely interpreted and made observations of the findings

of PW5 and PW6. Whereas, PW5 and PW6 had personally

carried out the DNA analysis on the samples.

(b) As regards his proficiency, DW4 had his last proficiency test

in 2004, seven years prior to the trial. On the other hand, PW5

and PW6 had undergone proficiency tests once every six

months.

[214] For the above reasons, we hold that the evidence of DW2 and DW4

has not raised any reasonable doubt on the prosecution’s case.

[215] We now touch on the evidence of DW1. It will be recalled that DW1

is the doctor from PUSRAWI who first examined PW1. It was the

appellant’s contention that DW1 should have been called by the

prosecution as a witness in order to unfold the narrative of its case.

This is especially so when DW1 in his evidence said that PW1 had

told him that he had been assaulted by the insertion of a plastic

object into his anus.

[216] It was submitted that had DW1 been called as a prosecution

witness, there would have been two versions in the prosecution’s

case. One version would be that PW1 was sodomised by the

appellant and the other, that PW1 had been assaulted by the

insertion of a plastic object into his anus. This by itself would have

created a doubt in the prosecution’s case. Therefore, an adverse

inference ought to have been drawn against the prosecution under

s.114 (g) of the Evidence Act.

[217] Let us now consider the evidence of DW1 which may be

summarized as follows:

(a) PW1 came to see him complaining of pain in his anus when

passing motion;

(b) after the examination, PW1 told him that he had been

sodomised by a VIP;

(c) DW1 alleged that PW1 told him that he had been assaulted

by the insertion of a plastic object in his anus;

(d) in his initial medical report, he made no mention of the assault

on PW1 by the insertion of a plastic object. He admitted

adding to his medical report that PW1 had told him of the

assault;

(e) he advised PW1 to go the government hospital for forensic

examination since PUSRAWI is a private hospital and as such

could not undertake such an examination; and

(f) with regard to the insertion of a plastic object in PW1’s anus,

he admitted that he never asked PW1 on the nature of the

plastic object that was inserted or made other inquiries

regarding the insertion. Neither did he ask PW1 whether it was

an act of self-insertion or by someone else.

[218] PW1 in his evidence denied ever telling DW1 that he had been

assaulted with the insertion of a plastic object into his anus. The

doctors at Hospital Kuala Lumpur who on the same day examined

PW1 never said that PW1 told any of them that he had been

assaulted by the insertion of a plastic object. Neither was this stated

in PW1’s police report. Based on that we hold that DW1 is not telling

the truth. Further had that allegation been true, DW1 would not have

advised PW1 to go for forensic examination at a government

hospital.

[219] In the circumstances, we agree with the prosecution that DW1 is an

unreliable and untruthful person. That explains why the prosecution

had chosen not to call him as its witness. It is trite that the discretion

to call any witness lies with the prosecution and the court will not

interfere with the exercise of that discretion. (Adel Muhammed ElDabbah

v Attorney General for Palentine [1944] AC 156;

Muharam bin Anson v Public Prosecutor [1981] 1 MLJ 222). The

non-calling of DW1 by the prosecution, in our view, does not create

any gap in its case as it had been fully narrated through the

evidence of PW1, and corroborated by the three doctors (PW2, PW3

and PW4) and the chemists (PW5 and PW6). As such the question

of drawing an adverse inference against the prosecution under

s.114 (g) of the Evidence Act does not arise.

[220] DW6 was called to discredit PW1. However, no evidence was

adduced to support his testimony. For that reason, we find that his

evidence has no evidential value and does nothing to discredit PW1.

[221] It was also the contention of the defence that the appellant was

labouring under intense back pain and he could not have performed

the alleged act of sodomy as described by PW1. DW7 was called to

support his claim. We say that this defence is an afterthought. The

appellant never put to PW1 that he could not have possibly

performed the act because of his back pain.

[222] Further, it is in evidence that DW7 did not examine the appellant in

2008. He only examined the appellant on 8.9.2011, a month before

he testified at the trial. As opposed to this, Dr. Jeyaindran a/l C.

Sinnadurai (PRW4) a rebuttal witness, called by the prosecution

examined the appellant just three weeks after the incident.

According to PRW4, the appellant informed him that he (the

appellant) had coitus with his wife one week after the incident.

PRW4 also said that the appellant did not complain that he (the

appellant) was having back pain and from his observation during

that medical examination. The appellant’s movement was not

restricted by any back pain whatsoever.

[223] Premised on the above, we are of the view that DW7’s opinion that

the appellant was unable to perform the act was wholly without

basis.

[224] In the result, we hold that there is overwhelming evidence to support

PW1’s allegation that he had been sodomised by the appellant. The

scientific evidence (medical and DNA evidence) adduced by the

prosecution clearly established that sperm cells belonging to the

appellant were found in the lower and upper rectum of PW1. The

only logical explanation for this is that PW1 must have been

sodomised by the appellant. The unsworn statement of the

appellant, which evidentially carries little weight, and the evidence

adduced through his witnesses, failed to cast any reasonable doubt

on the prosecution’s case. We are thus convinced beyond

reasonable doubt that PW1 had been sodomised by the appellant

as charged.

CONCLUSION

[225] For the above reasons, we agree with the Court of Appeal that the

appellant has not created any reasonable doubt on the

prosecution’s case. The prosecution therefore has established its

case beyond reasonable doubt.

[226] The appeal against the conviction is dismissed. Accordingly, we

affirm the decision of the Court of Appeal in convicting the appellant.

SENTENCE

[227] The appellant and the prosecution filed an appeal and a crossappeal

respectively against the sentence imposed by the Court of

Appeal.

[228] Counsel for the appellant submitted that the Court could use its

discretion to give the appellant a lighter sentence under the law,

saying that the appellant is not an ordinary person as his

contributions when he was with the Government was numerous and

far reaching. He further submitted that even while in the Opposition,

he had made significant contributions in advancing democratic

principles and awakening the consciousness of the public. He

submitted that these are considerations which must be taken into

account by this Court. There is no good reason to enhance the jail

term.

[229] Counsel further submitted that the only previous conviction imposed

on the appellant was under s.2(1) Emergency (Essential Powers)

Ordinance No. 22/1970 i.e. for corrupt practice. He asked this Court

to disregard that as it is now spent. He further referred to s.377B of

the Penal Code which provides that a person guilty of an offence

under s.377A shall be punished with imprisonment for a term which

may extend to twenty years, and shall also be liable to whipping.

However, this does not exclude the court’s discretion under other

punishment provisions of the Criminal Procedure Code such as

under s.294. Jayanathan v Public Prosecutor [1973] 2 MLJ 68

was cited.

[230] He submitted that when imposing the term of five years, the Court

of Appeal had refused an adjournment to enable the appellant to

produce medical evidence. He contended that this is a factor that

this Court is entitled to take into account in considering whether the

Court of Appeal had judicially considered the quantum of sentence,

and acting upon it before imposing the sentence on the appellant.

[231] In reply, the prosecution argued that the five-year sentence imposed

by the Court of Appeal was wrong in principle as it is manifestly

inadequate. It was submitted that a five-year sentence will be a

serious error having regard to his previous conviction.

[232] It was further submitted that the conviction under s.2 (1) Emergency

(Essential Powers) Ordinance No. 22/1970 is not a spent conviction.

There is thus a previous conviction standing against the appellant

which ought to be considered.

[233] The prosecution further submitted that there are several reasons

why this offence is serious. These are:

(a) the appellant’s personality, status and position in society;

(b) previous criminal record of the appellant;

(c) the age of the victim and his relationship with the appellant;

(d) the manner and how the offence was committed;

(e) the physical and psychological trauma suffered by the victim;

and

(f) absence of repentance and lack of remorse.

[234] The prosecution agreed that the appellant had contributed to the

nation while he was in the Government as well as in the Opposition.

However, the offence committed by the appellant is a serious one.

It was submitted that the higher the man is, the more serious the

crime he commits. The prosecution referred us to Datuk Haji Harun

bin Haji Idris & Ors v Public Prosecutor [1978] 1 MLJ 240.

[235] The principle to be followed in dealing with an appeal against

sentence is clearly stated by Hashim Yeop A. Sani in Public

Prosecutor v Loo Choon Fatt [1976] 2 MLJ 256 in these words:

“The High Court sitting in exercise of its revisionary powers

will not normally alter the sentence unless it is satisfied that

the sentence of the lower court is either manifestly inadequate

or grossly excessive or illegal or otherwise not a proper

sentence having regard to all the facts disclosed on the record

or to all the facts which the court ought to take judicial notice

of, that is to say, that the lower court clearly has erred in

applying the correct principles in the assessment of the

sentence. It is a firmly established practice that the court will

not alter a sentence merely because it might have passed a

different sentence.”

[236] As sentence is a matter of discretion, the appellate court should be

slow in interfering with the sentence imposed by the courts below.

Raja Azlan Shah Ag. L.P (as His Royal Highness then was) in

Bhandulananda Jayatilake v Public Prosecutor [1982] 1 MLJ 8,

at page 84 opined:

“… that the very concept of judicial discretion involves a right

to choose between more than one possible course of action

upon which there is room for reasonable people to hold

differing opinions as to which is to be preferred. That is quite

inevitable. Human nature being what it is, different judges

applying the same principles at the same time in the same

country to similar facts may sometimes reach different

conclusions (see Jamieson v Jamieson). It is for that reason

that some very conscientious judges have thought it their duty

to visit particular crimes with exemplary sentences; whilst

others equally conscientious have thought it their duty to view

the same crimes with leniency. Therefore sentences do vary

in apparently similar circumstances with the habit of mind of

the particular judge. It is for that reason also that this court has

said it again and again that it will not normally interfere with

sentences, and the possibility or even the probability, that

another court would have imposed a different sentence is not

sufficient, per se, to warrant this court’s interference.”

[237] Taking into consideration the seriousness of the offence and the fact

that the appellant had taken advantage of his position as the

employer of a young victim, the sentence of five years is not grossly

excessive. We are of the view that if at all the Court of Appeal erred,

it is more on the side of leniency.

[238] With regard to the cross-appeal, we are of the view that the

sentence could not be said to be manifestly inadequate that

warrants our intervention. 114

[239] We therefore dismiss both the appeal and the cross-appeal. The

sentence imposed by the Court of Appeal is hereby affirmed.

sgt.

(ARIFIN ZAKARIA)

Chief Justice of Malaysia

sgt.

(RAUS SHARIF)

President of the Court of Appeal

sgt.

(ABDULL HAMID EMBONG)

Judge of the Federal Court

sgt.

(SURIYADI HALIM OMAR)

Judge of the Federal Court

sgt.

(RAMLY ALI)

Judge of the Federal Court

Dated : 10.2.2015115

COUNSEL FOR THE APPELLANT

DATUK SERI GOPAL SRI RAM

SIVARASA RASIAH

N SURENDRAN

RAMKARPAL SINGH

SANGEET KAUR DEO

LEELA JESUTHASAN

LATHEEFA KOYA

GOBIND SINGH DEO

LIM CHOON KIM

MICHELLE YESUDAS

SHAHID ADLI BIN KAMARUDIN

ZALEHA AL HAYAT

JEREMY VINESH ANTHONY

MOHAMMAD ADLIFF BOLKIN

G. SIVAMALAR

MUHAMMAD AFIQ BIN MOHD NOOR

MOHD HAIJAN OMAR

JOANNE CHUA TSU FAE

MESSRS. KARPAL SINGH & CO.

NO. 67, JLN PUDU LAMA,

52000, KUALA LUMPUR.116

COUNSEL FOR THE PROSECUTION

TAN SRI DATO’ SRI DR. MUHAMMAD SHAFEE ABDULLAH (BY FIAT)

DPP DATO’ MOHAMAD HANAFIAH BIN HAJI ZAKARIA

DPP SUHAIDARIAH BT AHMAD

ATTORNEY GENERAL’S CHAMBERS

PROSECUTION DIVISION

ARAS 5, NO. 45, LOT 4G7,

PRESINT 4, PERSIARAN PERDANA,

62100, PUTRAJAYA.

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