Public Prosecutor v Chettuvellu A/L Nani, 13-08-2009

• Judge: YA Tuan Haji Mohd Yazid b. Hj. Mustafa
• Judgment Date: 13 August 2009
• Court: High Court (Malaysia)
• Record Number: 61-2-1998

IN THE HIGH COURT OF MALAYA IN SHAH ALAM

CRIMINAL APPEAL CASE NO: 42A-10-2004; 42A-18-2004

(Appeal from Petaling Jaya Sessions Court Case No: 61-2-1998)

BETWEEN

PUBLIC PROSECUTOR APPELLANT

AND

CHETTUVELLU A/L NANI RESPONDENT

GROUNDS OF JUDGMENT

On 29^th May 2009, I had allowed the cross appeal of the accused whereby I had set aside the Sessions Court Judge’s finding of guilt on the 3^rd charge against the accused and the sentence of 6 months imprisonment and fine of RM10,000.00 in default imprisonment for 5 months. The accused was initially charged in the Sessions Court for two charges for the offence of corruptly soliciting gratification as an inducement to do or forbear from doing anything regarding a transaction under Section 10(a) (aa) of the Anti Corruption Act 1997 punishable under Section 16 of the same Act and for the offence in giving or accepting gratification by agent under Section 11 (a) of the Anti Corruption Act 1997 punishable under Section 16 of the same Act. On 24^th February 2004, the learned Sessions Court judge had acquitted and discharged the accused for the two charges under Section 10 (a) (aa) of the Anti Corruption Act 1997 to which the prosecution is appealing against said decision. The appeal by the public prosecutor was dismissed by the previous presiding judge on 15 August 2007. The prosecution did not file any appeal to the Court of Appeal against the dismissal of the appeal against the first and second charges by the previous presiding judge.

On 31^st March 2004, the learned Sessions Court judge convicted the accused for the third charge under Section 11 (a) of the Anti Corruption Act 1997 and sentenced the accused to 6 months imprisonment from the date of decision and imposed a fine of RM10,000.00 in default 5 months imprisonment. The accused had filed a notice of cross appeal against the conviction and sentence under Section 11 (a) of the Anti Corruption Act 1997.

Summary of the Sessions Court judge’s judgment

The 1^st and 2^nd charges under Section 10(a) (aa) of the Anti Corruption Act 1997

For ease of reference, I would briefly lay down the rationale of the Sessions Court judge’s decision in relation to the acquittal and discharge of the accused for the first and second charges under Section 10(a) (aa) of the Anti Corruption Act 1997. The Sessions Court judge had found at the end of the prosecution case that the prosecution had failed to prove a prima facie case for the two charges under Section 10(a) (aa) of the Anti Corruption Act 1997. For the first charge, the accused was alleged to have corruptly demanded for money from 2 witnesses SP7 and SP8 as an inducement to assist the release of SP5 and SP6 who were remanded for the suspicion of being drug addicts. In her grounds of judgment, the Sessions Court judge found as a fact that SP5 was released by police bail on 3.2.1998 and during the release no payments were paid to the accused. SP5 was released on police bail whilst awaiting the results of his urine test which the Sessions Court judge held as being a normal procedure for the Petaling Jaya Narcotics Unit (See page 649 Volume 2 of the Record of Appeal). SP5 was found to have made a report to the Anti Corruption Agency on 24.2.1998, which was 1 month later and this delay was unexplained in court. The Sessions Court judge also identified certain discrepancies. Firstly, SP5’s report to the Anti Corruption Agency (Exhibit P10) was contradictory to his testimony. In exhibit P10, SP5 reported that he was arrested on 3.2.1998 and was released on police bail on 17.2.1998. In actual fact, SP5 was arrested on 24.1.1998 by 5 police personnel and was released on police bail on 3.2.1998. In his testimony, SP5 testified that the accused had demanded for RM2,000.00 in order to assist SP5 in the event his urine test came back as positive. However, in exhibit P10, SP5 reported that the demand for RM2,000.00 was to avoid an action to be taken in court. Secondly, SP8 testified that on 26.1.1998, SP8 and SP7 had met the accused at the Damansara police station. SP8 testified that the accused had demanded for RM2,000.00 to facilitate the release of SP6 and that the payment was for other officers who will be assisting SP8 and SP7. However, SP8 did not make any payments to the accused and SP6 was later released in February 1998. SP8 also did not lodge any police report or to the Anti Corruption Agency regarding the alleged corrupt demand for money by the accused. Thirdly, the reasons for the accused demanding for the monies as testified by SP5, SP7 and SP8 were different. Based on these reasons and discrepancies, the Sessions Court judge found that the ingredients for the first charge were not proven prima facie.

As for the second charge, the accused was alleged to have corruptly demanded money from SP5, SP6, SP9 and one Sathiya Seelan a/l Munusamy. SP5 had testified that he did not make any payments to the accused upon being released from police bail on 3.2.1998. The testimony of SP6 also did not show that there was any corrupt demand for money from the accused. In fact, the Sessions Court judge made a finding of fact that SP6 was released from police bail on 2.2.1998 without making any payments to the accused. SP8 was the guarantor for SP6. Similar findings of facts were made by the Sessions Court judge regarding SP9. As for Sathiya Seelan a/l Munusamy, this person was never called to testify by the prosecution. The Sessions Court judge’s conclusion is that SP5, SP6, SP9 and the said Sathiya Seelan a/l Munusamy were all released on police bail pending the result of their urine tests in accordance to the standard practice at the Petaling Jaya Narcotics Unit. As such, there was no evidence that they were released early because they had paid the accused the monies as alleged. Based on these reasons, the Sessions Court judge had found that there was no prima facie case against the accused for the second charge and therefore acquitted and discharged the accused for the second charge.

The 3^rd charge under Section 11 (a) of the Anti Corruption Act 1997

In the present appeal, the accused was initially charged for accepting RM500.00 in his capacity as a government agent from SP7 as payment for refraining from performing his official duty viz. refraining from taking criminal action against SP5. The Sessions Court judge found that the first ingredient i.e. that the accused is a government agent was proven from the testimony of SP1. As for the second ingredient of accepting gratification as an agent, the Sessions Court judge found that it was proven based on the fact that the accused was arrested whilst attempting to escape arrest on 26.1.1998. The accused had gone to a restaurant on said date to meet with SP5 and SP7 in order to receive RM500.00. The accused was chased by SP12 (an officer of the ACA), SP10 and SP11. During the chase, the accused was seen to have thrown the monies. The accused was seen to have taken the RM500.00 from a seat on which SP7 had placed the monies. The entire operation culminating in the arrest of the accused was a trap set up by the Anti Corruption Agency with the assistance of SP5 and SP7. As for the third ingredient i.e. that the accused received the monies as an inducement to omit from performing his official duty, the Sessions Court judge found that there was a prima facie case against the accused. The Sessions Court judge held that there was no legal reason for the accused to have received the RM500.00 but for the reason as alleged viz. that it was aimed as an inducement for the accused to refrain from performing his official duty i.e. to refrain from taking criminal action against SP5.

The accused was called to enter his defence. The accused had testified that he had gone to the restaurant on 26.1.1998 to meet with SP7 and SP5 upon the telephone request from SP7. The objective was to advise SP5. Prior to the meeting, the accused was getting ready to deliver certain case material (‘barang kes’) to the Petaling Jaya Court. SP7 and SP5 had asked the accused to have drinks with them at the restaurant. SP5 and SP7 had then left the restaurant after the accused had finished talking to SP5. It was then that a Malay man approached the accused and introduced himself as an ACA officer. There was an ensuing struggle between the accused and about 4-5 alleged ACA officers. During the struggle, the men had confiscated an envelope which the accused claimed to be the case material (‘barang kes’). The accused testified that he had no knowledge of any monies. The accused did not pick up the monies that were strewn...