IN THE FEDERAL COURT AT KUALA LUMPUR
(COURT OF APPEAL NOS: W05-26-99, W05-27-99)
DATO SERI ANWAR IBRAHIM…………………APPELLANT
Skeletal Submission for Respondent
A Abuse of Process
1 Ordinance No. 22 of 1970 has not been annulled as prescribed by Article 150(3) of the Federal Constitution.
The Dewan Negara has yet to pass a resolution to annul Ordinance 22. This means that Ordinance 22 still has the force of law because the requirements under Article 150(3) has yet to be fulfilled, i.e., both Houses of Parliament are required to pass resolutions annulling the Ordinance. Therefore, it may not be inferred that just because the Dewan Rakyat has passed a resolution of annul Ordinance 22, that it must be taken to have been annulled, unless and until the Dewan Negara passes its resolution.
Court of Appeal was correct in holding that the prosecution of the appellant was not an abuse of process – see judgment Court of Appeal pp 8-9 (Jilid A) –
“ We note … legislature will do in the future.”
2 Since Ord 22 has not been annulled there is no necessity for the Yang Di Pertuan Agong to act under Article 150(2B)
3 The Court cannot question its validity and continued operation.
Article 150(8)(b) Federal Constitution
Public Prosecutor v Sihabduin Hj Salleh & Anor (Bundle 4 no.20)
See judgment Court of Appeal p.10 (Jilid A)
“The answer to … express an opinion.”
4 “By virtue thereof” simply means “under”
Read interpretation of the word “under” in section 2 of the Interpretation Act.
Therefore, anything previously done under the Ordinance would not be affected by the annulment of the Ordinance.
These include the liability to punishment for any act incurred under the Ordinance or the prosecution of the legal proceeding for the purpose of inflicting the punishment.
In our case the act of the accused, the subject matter of the charge, was committed whilst the law was still in force. It follows that his liability and the right to prosecute him for the purpose of inflicting punishment under the Ordinance has arisen at that time.
See judgment Court of Appeal p.23 –
“Raja Aziz also… said above.”
5 The saving clause in Article 150(3) in respect of the anything previously done by virtue thereof should be construed along the decision in R v Wicks  2 All ER 529.
i Read R v Wicks (Bundle 1 No.9) – headnote with particular emphasis on the sentence starting … “11(3) of the Act provided…”
ii Refer page 530 editorial note para B… “So the question in the present case…”
iii Refer page 532 between pare A-B… “In the present case but for the provision…”
iv Refer page 533 pare E-F.
6 The word “annul” has the same meaning as “repeal”. To annul an Ordinance would mean to repeal the Ordinance. Therefore the saving provision of section 13 of the Interpretation and General Clauses Ordinance applies to the prosecution of the accused under Ordinance 22. Section 13 is similar to section 30 of the Interpretation Act.
Refer to the meaning of the above words in Black’s Law Dictionary (Bundle 4 no.1)
7 The passing of the resolution by the Dewan Rakyat does not affect the charges against the accused by virtue of sections 30 and 77 of Act 388 as well as section 13 Interpretation and General Clauses Ordinance. There is no question of “abuse of process” in the prosecution of this accused.
Public Prosecutor v Low Ah Sang at p.14 (Bundle 1 no. 10)
Archbold Criminal Pleading, Evidence and Practice 1998, pp. 289 – 302 (Bundle 1 no.12).
Hui Chi-Ming v The Queen at pp 54 -55 (Bundle1 no.13)
Ian Anthony Beckford at p. 101 (Bundle 1 no.14)
Public Prosecutor v Lee Tin Bau at p.394 (Bundle1 no. 15)
AG’s Reference (No. 1 of 1990) at p.636 (Bundle 1 no.16)
Datuk Yon Teck Lee & Ors v Public Prosecutor at pp.75 – 77 (Bundle 1 no. 17)
New Tuck Shen v Public Prosecutor at p.28 (Bundle 1 no. 19)
B Amendment of Charges
The instructions by the accused were brought about by the circulation
of P14B and C and P15 (Talqin Untuk Anwar Ibrahim). The allegations against
At the time when the instructions were given by the Appellant and the
retractions obtained, the truth or otherwise of these
serious allegations had not been investigated or verified. Since the period
covered in the charges preferred (original or amended) were confined between
the time the instructions were given and the retractions obtained i.e. between
5 According to PW1, when he wrote D25 he has not verified the truth of those allegations.
PW13 said that the investigation into P16 was closed on
7 The amendment of charges was mate to make it clear that the charges before the Court are under Ordinance 22 of 1970, i.e., the use by the accused of his position to obtain written retractions in connection with the allegations of sodomy and sexual misconduct, by PW12 and PW17 in P14(B) and (C). The truth of falsity of the allegations is not the issue before the court.
8 The amendment was made before the prosecution closed its case. It has nothing to do with the alleged failure to prove the truth of the allegations. In fact at that stage PW21’s evidence supported the allegation of sexual misconduct of the accused. The learned judge in fact at that stage has not made any ruling whether to accept or reject the evidence of PW21.
9 With the greatest respect, the submission of Raja Aziz that the chemist evidence has not proved anything and that the prosecution would have collapsed at the stage are both misleading and mischievous.
10 Raja Aziz in addition submitted that the introduction of the chemist evidence was to smear the reputation of the appellant is wholly misconceived and irresponsible.
See our submission at page 539 Volume 2.
11 In fact the counsel did not question the right of the prosecution to amend.
See page 548 Volume 2.
12 The amendment does not produce any prejudicial effect.
i Raja Aziz cited In re Biswanath Das. This case has no application because it concerns a different issue and irrelevant to our case. Further it does not involve amendment of charges which is the issue before Your Lordships.
ii The case of Joan Olive Falcorner-Atlee was also cited. We submit that this case is readily distinguishable. In this case, the complaint was in the opening address of the prosecution, it was alleged that the prosecution intended to prove that the appellant had committed misappropriation of a puppy. However, at the close of the prosecution’s case, the submission was to the effect that that jury could convict the appellant for theft.
iii The effect of this case is if the prosecution is uncertain of what offence the accused has committed then he ought to be charged in the alternative. In our jurisdiction it is legally permissible for the prosecution to submit in the alternative and for the court to make a finding accordingly pursuant to sections 173(h)(2) and 167 of the Criminal Procedure Code.
iv In any event the case referred to above is also distinguishable with the case before this honourable court. We submit that the issue is not similar to ours. In our case, the charges original or amended were in respect of the same offence. The amendments were only confined to the particulars which did not affect the ingredients of the offence.
S.160 CPC and Pang Fook & Anor v PP  MLJ 122 showing an instance where accused was prejudiced.
v Hence, we submit the defence was not in any way prejudiced as the amended charges were read and explained to them and the court invited them including the prosecution to recall any witnesses to meet the amended charges. We invite Your Lordships’ attention to page 533 Volume 2 where in response to the learned judge’s invitation to recall witnesses, Raja Aziz said,
“We have gone through the evidence and we have decided not to recall any of the prosecution witnesses”.
vi See also judgement Court of Appeal p.23 –
“Regarding the amendment of charges … amendment was made.”
13 What the learned judge did was consistent with section 162 Criminal Procedure Code.
i The Prosecution has the right to amend charges at any time before judgement is pronounced.
Lee Weng Sang v Public Prosecutor at p. 167 (Bundle 1 no.20)
ii The best time to amend a charge is at the close of the prosecution case.
Lew Cheok Hin v R at p.133 (Bundle 1 no.21)
Oh Keng Seng v PP  2 MLJ 174
C Expunging of Evidence
Hari Ram Seghal v Public Prosecutor at p.167 (Bundle 1 no.22)
Pages 542 – 546 Notes of Proceedings (Rekod Rayuan Jilid 2).
i The learned judge has reminded himself of the danger of these evidence where at page 941 of his judgement, he said, “In order to ensure that this does not have a prejudicial effect … I ordered that it be expunged.” (see page 941 Rekod Rayuan Jilid 3)
ii The learned judge’s reminder to himself left no doubt whatsoever that fairness was achieved in favour of the appellant.
Juraimi Bin Hussin v PP at p.541 (Bundle 3 no.75) – Held (4), page 579 last paragraph – “In the present instance …”
iii From the judgement it is very clear that the learned judge never at anytime took into account prejudicial evidence in arriving at his decision. Even if he had considered those prejudicial evidence, it shall not be a ground to reverse the decision owing to the overwhelming evidence.
Section 167 Evidence Act (Bundle 3 no. 96) and proviso to section 92 CJA (Bundle 3 no.98), Juraimi bin Hussin v PP at pp.586 -587 (Bundle 3 no.75), Wong Kok Keong v R at p.15 (Bundle 4 no.8), Lee Yew Seng at pp. 216 – 217 (Bundle 4 no.9), Stirland v DPP at p.321 (Bundle 4 no.10) and Semtex at p.212 (Bundle 4 no.11)
See judgement Court of Appeal pp.24 – 26 –
“The learned judge … evidence on the record.”
D Amended Charges disclose no offence
Nunis v Public Prosecutor at p.117 (Bundle 1 no.23)
Haji Abdul Ghani bin Ishak & Anor v Public Prosecutor at pp.246 – 247 (Bundle 1 no.24)
Public Prosecutor v Datuk Tan Cheng Swee & Anor at p.178(Bundle 1 no.25)
See judgement Court of Appeal pp.27 – 29 –
“The next point … say anything more.”
2 We do not have to resort to authorities from other jurisdictions.
Public Prosecutor v Sanassi at pp.201 – 202 (Bundle 1 no.29).
Public Prosecutor v Dato Seri Anwar Ibrahim (No.3)  2 MLJ 1, judgement as regard “Advantage obtained by the accused” at pp.1129 – 1147 (Rekod Rayuan Jilid 3)
E No Case to Answer
1 Prosecution’s’ main witness i.e. PW1’s credibility is questionable as a result of cross-examination. Instances referred to:–
“I may or not lie”
Whether or not he sent any report to PM
Whether one or two reports
The choice of words – requested and directed.
From these evidence, it was submitted that PW1 kept on changing his testimony, capable of lying and therefore unreliable.
The learned judge when assessing the credibility of PW1 had adverted to these instances and made a finding that PW1 was a credible witness.
Refer and read judgement at pages 1032 (Rekod Rayuan Jilid 3)
We are in total agreement with the finding of the learned judge for the reasons given therein.
2 PW1’s evidence that he believed the allegations, contradicted D25 which he himself prepared where he said the allegations were baseless. On this score, Raja Aziz submitted that PW1 was lying and therefore his credibility has ruined.
D25 was primarily based on P17 and P18
Refer and read page 77 Appeal Record Volume 1 - … “ID 17 and ID 18 formed the primary basis of my report as in D25”.
3 P14, P17 and P18 were addressed to the PM therefore it would only be natural that PW1 had to prepare D25. It must be remembered that it was the accused who instructed that P17 and P18 to be addressed to the PM
Refer and read page 81 Appeal Record 5th paragraph.
It was in that circumstances that D25 was sent to the PM. Obviously, PW1 did not tell the whole truth in D25 but that is not a reason to reject the whole of his testimony.
Khoon Chye Hin v PP at pp.106 – 107 (Bundle 2 case no. 51)
Refer and read judgement at page 1029 – “In the final analysis…” (Rekod Rayuan Jilid 3)
Refer and read judgement at pages 1027 – 1028 (Rekod Rayuan Jilid 3)
As such the learned judge has applied the correct principles of law on assessment of witnesses.
4 Raja Aziz also submitted that the learned judge was in error to have assessed the credibility of PW1 based on his demeanour.
Demeanour is not the only consideration. The learned judge had considered his evidence together with the rest of the evidence adduced by the prosecution and the defence which surely would include the evidence of PW11 and the contemporaneous records i.e. P42 to P47.
Refer and read judgement at pages 1031 – 1032 (Rekod Rayuan Jilid 3).
See judgement Court of Appeal (Jilid A) pp.29 – 33 –
“The next major area … a correct finding.”
5 It was further submitted that the defence had been deprived of the opportunity to challenge the credibility of PW12 Azizan because the prosecution made to attempt to prove the allegations as contained in P14C which was tendered in court.
The issue of deprivation does not arise because P14C was tendered to prove that there were these allegations made by Azizan against the accused and that the allegations were in the form of P14C. It is in respect of these allegations that the retractions were directed to be obtained. As such there is no reason for the prosecution to prove the allegations.
6 Raja Aziz also complained that in relation to Ummi’s evidence the prosecution attempted to apply the objective facts test i.e. the mattress and he further submitted that the result of the test was negative for the prosecution.
In actual fact the result of the test by the Chemist PW21 supported Ummi’s allegations that the appellant had sexual relationship with Shamsidar and other women as their seminal stains were also found on the mattress which were obtained from Tivoli Villas.
See Appeal Record page 430 (Rekod Rayuan Jilid 2)
7 The learned trial judge made a finding of fact that the testimony of PW1 and PW11 were not demolished by cross-examination.
Public Prosecutor v Dato’ Seri Anwar Ibrahim (No.3)  1 MLJ at pp. 1025 – 1038 (Rekod Rayuan Jilid 3)
8 The failure of PW1 to take any steps is due to the fact that they were accomplices. That does not mean that their evidence is of no value.
9 Although they were accomplices they were not willing participants in the offences but were in fact victims of them. They acted under a form of pressure which would have required some firmness to resist. They are credible witnesses.
Ng Kok Lian & Anor v Public Prosecutor at p.382 (Bundle 2 no. 42)
Public Prosecutor v Haji Ismail & Another at p.62 (Bundle 2 no. 43)
Public Prosecutor v Dato’ Seri Anwar Ibrahim (No. 3) 1 MLJ 1 at pp. 1025 – 1038 (Rekod Rayuan Jilid 3).
10 Evidence adduced by PW12 & PW17 was not procured by turning over and neutralization process by the Special Branch. There is neither any evidence nor suggestion to show that PW12 and/or PW17 were subjected to these processes to implicate the accused in the trail.
F Defence Evidence
1 Evidence in respect of political conspiracy, police conspiracy and mala fides was prevented from being adduced because the defence failed to satisfy the learned trial judge of their relevancy when asked according to section 136 of the Evidence Act 1950 and neither does the evidence sought to be adduced come within the ambit of sections 11 or 15.
2 The evidence related to collateral facts which cannot be admitted under sections 11 or 15 of the Evidence Act 1950.
i Political Conspiracy
D23 & D25 are based on P17 and P18. The press report by YAB PM was based on D25, P17 & P18 without knowing the background.
PW1 at page 43 last paragraph; pages 44, 56, 57, pages 76 last paragraph & page 77
The evidence of political conspiracy sought to be adduced does not related to the fabrication of evidence against the accused.
See judgement Court of Appeal (Jilid A) pp. 53 – 55 –
“Political conspiracy … of his appointment.”
ii Police Conspiracy
Is to remote and has nothing to do with this case.
See judgment Court of Appeal (Jilid A) pp. 55-57
“Regarding his trial … cannot be submitted.”
iii Disallowing defence witnesses to give evidence
It does not come within the ambit of section 136 and section 11 and 15 of the Evidence Act.
Cooper v Wilson & Ors at pp.346 – 347 (Bundle 3 no. 62)
Public Prosecutor v Dato’ Seri Anwar Ibrahim (No.3)  2 MLJ 1 at pages 169 – 177.
Ismail v Hasnul;Abdul Ghafar v Hasnul at p. 111 – 112 (Bundle 3 no. 63)
R v Phillips at pp 20 – 21 (Bundle 3 no. 64)
R v Busby at pp. 81 – 82 (Bundle 3 no. 65)
R v Marsh at pp. 169 -170 (Bundle 3 no. 66)
The King v John Bond at pp. 414 -424 (Bundle 3 no. 67)
R v Fisher at pp. 151 – 152 (Bundle 3 no. 68)
Knight v Jones; Ex parte Jones at pp. 103 – 104 (Bundle 3 no. 69)
S v Letsoko at pp. 774 – 775 (Bundle 3 no. 70)
Woodroffe & Ameer Ali, Law of Evidence, 16th Ed., Vol 4, pp. 3569 – 3571 (Bundle 3 no. 71)
Sarkar Law of Evidence, 15th Ed., 1992 Vol 2, pp 2152 – 2154 (Bundle 3 no. 72)
Jadu Rai & Ors v Bhubotaran Nundi (Bundle 3 no. 73)
G The learned trial judge’s alleged lack of objectivity
1 The learned trial judge exercised great objectivity in assessing the evidence before him. At the close of the prosecution case the learned trial judge carefully scrutinized all the evidence adduced by the prosecution and came to the conclusion that the prosecution had made out a prima facie case.
2 At the close of the case for the defence the learned trial judge reassessed the evidence for the witnesses for the prosecution and those for the defence on the whole of the evidence adduced in the trial. Having considered the whole of the evidence adduced, the learned trial judge was satisfied that the prosecution had proved its case against the accused beyond a reasonable doubt on all the 4 charges.
Public Prosecutor v Koh Chee Meng at p.574 (Bundle 3 no. 74)
H Excessive interference during cross-examination of prosecution witnesses by defence counsel
1 Criticism leveled against the learned trial judge is entirely unwarranted. It is the duty of a judge to intervene and prevent the badgering of witnesses under cross-examination.
2. The learned trial judge did not prevent defence counsel to do justice to the accused but it must be in accordance with law and procedure
3 The learned trial judge did not prevent the defence or their witnesses from giving evidence subject to law and procedure.
Juraimi Bin Husin v Public Prosecutor, Mohd. Affandi Bin Abdul Rahman & Anor v Public Prosecutor at pp. 553 -559 (Bundle 3 no. 75)
1 The judgement is neither perverse nor against the weight of evidence.
2 The judgement of the court is based on findings of facts and it is trite law that a appellate court should be slow in interfering with the decision of the trial court.
Dato’ Mokhtar bin Hashim v Public Prosecutor at pp. 233. 275 – 276 (Bundle 3 no. 86)
Public Prosecutor v Wan Razali Kassim at p.82 (Bundle 3 no. 87)
Sheo Swarup & Ors v King Emperor at p. 230 (Bundle 3 no. 88)
Public Prosecutor v Ma’arif at p. 66 (Bundle 3 no. 89)
Yap Ee Kong & Anor v Public Prosecutor at pp. 144 – 146 (Bundle 3 no. 80)
3 Both the trial court and the Court of Appeal have made concurrent findings on both facts and the law, therefore it is submitted that the Federal Court ought not to disturb such findings.
Pekan Nenas Industries Sdn. Bhd v Chang Ching Chuen & Ors  1 MLJ 465 at p. 505
Lim Geak Liang v
4 This appeal must be dismissed and the conviction and sentence affirmed.
Jabatan Peguan Negara