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1. Public Prosecutor v Kanawagi a/l Seperumaniam

[2018] MLJU 402
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 Public Prosecutor v Kanawagi a/l Seperumaniam
[2018] MLJU 402
Malayan Law Journal Unreported

SESSIONS COURT (KUALA LUMPUR)

GAN CHEE KEONG J
CRIMINAL TRIAL NO 62-164 OF 2011
22 March 2018

Hiyatul Syuhadah bt Shamsudin (Deputy Public Prosecutor, Attorney General's Chambers) for the public
prosecutor.
Manjeet Singh Dillon (Melissa Ram) for the accused.
Amer Hamzah bin Arshad (Amer Bon) for the accused.

Gan Chee Keong J:

JUDGMENTCHARGE

[1]The accused was charged under section 193 of the Penal Code. The charge against the accused reads:

“Bahawa kamu pada 24 Jun 2010, di Mahkamah Sesyen (Jenayah 2), Jalan Duta, Kuala Lumpur, di dalam Wilayah
Persekutuan Kuala Lumpur, semasa dipanggil sebagai saksi pembelaan yang pertama (SD 1) di dalam prosiding
perbicaraan Jenayah Kes Tangkap 2-62-130-2000 Pendakwa Raya v Kanawagi a/l Seperumaniam , di hadapan Hakim
Puan Rosenani bte. Abd Rahman telah memberi keterangan palsu semasa di peringkat pemeriksaan balas di mana kamu
telah menyatakan perkataan-perkataan yang tertera di Lampiran ‘A(1)’ dan ‘A(2)’ (yang digariskan) yang dilampirkan
bersama dan kenyataan tersebut yang mana kamu ketahui sebagai palsu, dan dengan itu kamu telah melakukan
kesalahan di bawah seksyen 193 Kanun Keseksaan yang boleh dihukum di bawah seksyen yang sama.”

[2]I reproduce verbatim “Lampiran A (1) and A (2)” including the underlined portions referred to in the charge, as
follows: -

“LAMPIRAN A (1)

SD1 : KANAWAGI A/L SEPERUMANIAM

Witness said this was earlier presentation that was rejected before High Court Penang order.

High Court Kuala Lumpur order to remain the changes in 1994 i.e before High Court Penang vesting order.

Vesting order for Penang High Court extracted by M/S Rajasingan & Co.

Disagree that I have ask Rajasingam to make application for vesting order in Penang High Court since there is already
proceeding against this property in K.L High Court.

Agree that the matter was before Justice Yaakub Ismail in Penang High Court.

I do not know that Penang High Court was mislead i.e fact that there was proceeding pending in K.L High Court before
Dato’ K.K Voral was never brought to court attention.

I was told about the vesting order that was obtained by Rajasingam about a month later.

I was not surprise when he told me and I did not ask how he got it.
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“LAMPIRAN A (2)

SD1 : KANAWAGI A/L SEPERUMANIAM

Q : You instructed M/S Rajasingam to act for this matter in Penang. All documents prepared by you.

A : Not true.

It is not correct that I give instruction to Rajasingam.

Mr. Rajasingam subsequently told Penang High Court that vesting order was obtained by fraud but the order still stand.

I am not sure who acted for Nirmala Devi.

Refer to D54.

This is letter from Sivakumar to Asamaley enclosing the PA to give consent to the order sought.

It is not true that Asamaley and Rajasingam took instruction from me.

It is not true that I am the author of D54.

This is a cop. This document has been fax to you on 15/2/1995. If individual sent there won’t be “Fax” cop there.

A : Not necessary.”

[3]To this charge, the accused pleaded not guilty.

BACKGROUND FACTS

[4]The accused was initially charged in the Kuala Lumpur Sessions Court (Criminal Trial No. 62-130-2000) for
some other offence. During the trial, the accused allegedly gave false evidence in the midst of his cross-
examination by the prosecution when he was called as the first defence witness.

[5]The accused was subsequently charged in this court for committing perjury under section 193 of the Penal Code
arising in the course of the said Criminal Trial No. 62-130-2000. The alleged false evidence is underlined in
“Lampiran A (1) and A (2)” of the charge, as reproduced in paragraph 2 above.

PROSECUTION CASE

[6]For ease of reference, the exhibits tendered by the prosecution are as follows:

No. Document Exhibit

1. SP1 Witness Statement (Pn. Azizah P1
binti Abd Rahman)

2. Notes of Evidence P2

3. SP2 Witness Statement (Datuk Dr. P3

Sabirin bin Jaafar)

4. Originating Summons No. 24-88-95 P4(A-G)

(MT4) which contains 6 copies of the
court minutes (D6)

5. Order dated 16.2.1995 for Originating P5

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No. Document Exhibit

Summons No. 24-88-95 (MT4) (D9)

6. Affidavit affirmed by Ratnasamy s/o P6

Subramaniam (D10)

7. Summons in Chambers dated 27.2.1996 P7

(D11)

8. Two copies of the court minutes on P8

27.2.1995 (D13)

9. Memorandum of Appearance (D15) P9

10. Certificate of Urgency for Originating P10

Summon No. 24-88-95 (MT4) (D16)

11. Originating Summons No. 24-88-95 P11

(MT4) (D18)

12. Affidavit affirmed by R. Rajasingam P12

13. Death Certificate of R. Rajasingam P13

14. Certificate under Section 90A Evidence P13A

Act 1950

15. Investigation Dairy P14

16. SP4 Witness Statement (Supt Mohd P15

Radi bin Abd Rahman)

17. Sentul Police Report No 10991/10 P16

18. Summons in Chambers dated 16.9.1995 P17

(D8)

19. Draft Order dated 14.3.1995 for P18

Originating Summon No. 24-88-95
(MT4) (D9A)

20. Draft Judgment dated 16.2.1995 for P19

Originating Summon No. 24-88-95
(MT4) (D12A)

21. Two copies of the court minutes on P20

6.2.1995 (D14)

22. Originating Summon No. 24-88-95 P21

dated 6.2.1995 (D17)

23. Section 112 statement of R. Rajasingam ID22

[7]In this case, the prosecution called a total of five witnesses to prove its case. Briefly, the evidence disclosed is
as follows:
(a) Puan Azizah binti Abd Rahman (SP1), a Sessions Court Registrar at Kuala Lumpur Courts Complex
(Criminal Division), testified that the notes of evidence (exhibit P2) given to her by the Court interpreter,
one Encik Syed Zainal, at the material time was the notes of evidence for Case No. 62-130-2000
(Pendakwa Raya v. Kanawagi a/l Seperumaniam ). According to SP1, this was the case in which the
accused allegedly gave false evidence before Justice Rosenani bte. Abd. Rahman at trial on 24.6.2010
(exhibit P2, page 113-114), and on 9.7.2010 (exhibit P2, page137).
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(b) Datuk Dr. Sabirin bin Jaafar (SP2) confirmed that the exhibits P4A-G, P5, P6, P7, P8, P9, P10 and P11
were all certified as true copies by him when he was the Deputy Registrar of the High Court of Penang at
the material time. SP 2 testified that the documents were photocopied from the original documents in
High Court File No. 24-88-95 (MT4), and he had compared the original documents before making the
certified true copies.
(c) DSP Mohd Nor Hasnimaizam bin Othman (SP3), who replaced the original investigating officer, testified
that when he took over the investigation papers from DSP Mohd Radi bin Abd Rahman, the investigation
had been completed. SP3 stated that his role was to extract the Death Certificate of R. Rajasingam (exhibit
P13) together with the Certificate under section 90A of the Evidence Act 1950 (exhibit P13A) from the
National Registration Department. SP3 testified that he was also assigned to issue subpoenas to the
witnesses involved in the present case.
(d) Supt Mohd Radi bin Abd Rahman (SP4), the investigating officer at the inception of the case, testified that
he recorded a section 112 statement from R. Rajasingam (exhibit ID22) on 19.8.2010. SP4 further testified
that he had to make copies of all the documents from the investigation papers (Sentul Report No.
10991/10), for the court informed him that the original High Court File No. 24-88-95 (MT4) had been
destroyed and could not be traced. SP4 testified that he met Datuk Dr. Sabirin bin Jaafar (SP2) to verify
certain documents which was certified as true copies by the latter. SP4 also stated that he met Puan
Azizah binti Abd Rahman (SP1) to obtain copies of the notes of evidence (exhibit P2) for Case No. 62-
130-2000 (Pendakwa Raya v. Kanagawagi a/l Seperumaniam ), and that the notes of evidence were
certified as true copies by the Subordinate Courts’ Assistant Registrar, one Puan Rosmaniar bt Zainuddin.
(e) Lastly, the complainant Encik Abdul Malek bin Abd Ghani (SP5) testified that he received an instruction
from Deputy Public Prosecutor Tuan Devanandan to lodge a police report (exhibit P16) against the
accused Kanawagi A/L Seperumaniam on 9.7.2010, for allegedly giving false evidence before the Court in
the case No. 62-130-2000 (Pendakwa Raya v. Kanagawagi a/l Seperumaniam ).

PRIMA FACIE CASE

[8]At the end of the prosecution case, what the court has to decide is whether the prosecution has established a
prima facie case against the accused.

[9]What constitutes a prima facie case is given a statutory meaning by section 173(h)(iii) of the Criminal Procedure
Code. It provides as follows:

“173. Procedure in summary trials.

(h) (iii) For the purpose for subparagraphs (i) and (ii), a prima facie case is made out against the accused where the
prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained
would warrant a conviction.”

[10]In order for the court to be satisfied that a prima facie case has been made out, the court must undertake a
maximum evaluation of the prosecution evidence. This prima facie test was described by Justice Gopal Sri Ram
JCA (as he then was) in the case of PP v Mohd Radzi Abu Bakar [2005] 6 MLJ 393 at p. 399:

“ .. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call
on the accused to enter upon his or her defence. It involves an assessment of the credibility of the witnesses called by the
prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution evidence admits
of two or more inferences, one of which is in the accused’s favour, then it is the duty of the court to draw the inference that
is favourable to the accused. See Tai Chai Keh v Public Prosecutor [1948-49] MLJ Supp 105: Public Prosecutor v Kasmin
bin Soeb [1974] 1 MLJ 230. If the court, upon a maximum evaluation of the evidence placed before it at the close of the
prosecution case, comes to the conclusion that a prima facie case has not been made out, it should acquit the accused. If,
on the other hand, the court after conducting a maximum evaluation of the evidence comes to the conclusion that a prima
facie case has been made out, it must call for the defence. If the accused then elects to remain silent, the court must
proceed to convict him. It is not open to the court to then re-assess the evidence and to determine whether the prosecution
had established its case beyond a reasonable doubt. The absence of any evidence from the accused that casts a
reasonable doubt on the prosecution’s case renders the prima facie case one that is established beyond a reasonable
doubt. Put shortly, what the trial court is obliged to do under ss 173(f) and 180 of the CPC is to ask itself the question: If the
 Page 5 of 12
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accused elects to remain silent, as he is perfectly entitled to do, am I prepared to convict him on the evidence now before
me? See Dato Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232. If the answer to that question is in the
affirmative, then the defence must be called. And if the accused remains silent, he must be convicted. If the answer is in the
negative, then the accused must be acquitted.”

INGREDIENTS OF OFFENCE

[11]Section 193 of the Penal Code provides as follows:

“Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the
purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment for a term which may
extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any
other case, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to
fine.”

[12]To establish the charge, the prosecution has to prove beyond reasonable doubt these ingredients:
(a) that the accused was legally bound to state the truth, either by oath or by an express provision of law;
(b) that he made a statement;
(c) that the statement was made at a stage of a judicial proceeding;
(d) that the statement was false;
(e) that he either knew or believed it to be false or did not believe it to be true; and
(f) that he did so intentionally.

(see Public Prosecutor v Abdullah Ambek [1984] 2 CLJ (Rep) 370, at p. 372; Kanawagi a/l Seperumaniam v
Public Prosecutor [2017] 5 MLJ 690, at p. 697-698)

DECISION OF THE COURT

[13]In arriving at this decision, I propose to deal with 2 issues only:

(a) Whether exhibits P2, P4 (A-G), P5, P6, P7, P8, P9, P10, P11, P12, P17, P18, P19, P20, P21 and ID22 are
admissible; and
(b) Whether the accused had indeed fabricated evidence as alleged in the charge.

Whether Exhibits P2, P4 (A-G), P5, P6, P7, P8, P9, P10, P11, P12, P17, P18, P19, P20, P21 and ID22 are
Admissible

[14]In the instant case, the accused was charged for giving false evidence in the midst of his cross-examination by
the prosecution when he was called as the first defence witness. In short, the alleged false evidence is that the
accused denied giving instruction to R. Rajasingam or preparing any documents for the application of a vesting
order in the Penang High Court. Thus, the prosecution has to prove that such statement is false, and in this regard
the evidence of R. Rajasingam is crucial as he is a material witness who can prove that the accused had given
false evidence. Unfortunately, R. Rajasingam had passed away on 31.10.2016. Without the direct evidence of R.
Rajasingam, it appears that the prosecution relied entirely on documentary evidence to prove its case without
calling any important and material witnesses to give evidence at the trial.

[15]As regards the documentary evidence, the learned
exhibits P2, P4 (A-G), P5, P6, P7, P8, P9, P10, P11,
counsels submitted that notes of evidence (exhibit P2)
dated and endorsed as required under section 76 of the
that:
counsels for the accused challenged the admissibility of
P12, P17, P18, P19, P20, P21 and ID22. The learned
were not admissible because the certified copy was not
Evidence Act. Section 76 of the Evidence Act provides

“76. Certified copies of public documents

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Every public officer having the custody of a public document which any person has a right to inspect shall give that
person on demand a copy of it on payment of the legal fees therefor, together with a certificate, written at the foot of the
copy, that it is a true copy of the document or part thereof, as the case may be, and the certificate shall be dated and
subscribed by the officer with his name and his official title, and shall be sealed whenever the officer is authorized by law to
make use of a seal, and the copies so certified shall be called certified copies.

Explanation - Any officer who by the ordinary course of official duty is authorized to deliver the copies shall be deemed to
have the custody of the documents within the meaning of this section.”

[16]The requirements of a certified copy under section 76 of the Evidence Act 1950 are as follows:
(a) a certificate, written at the foot of the copy, that it is a true copy of the document or part thereof, as the
case may be;
(b) the certificate shall be dated;
(c) the certificate shall be subscribed by the officer with his name and his official title; and
(d) the certificate shall be sealed whenever the officer is authorized by law to make use of a seal.

[17]The requirements of a certificate under section 76 are mandatory and a copy of a public document will be
inadmissible as a certified copy if the certificate is not in accordance with the stipulated requirements. This was
decided in the case of Noliana Bte Sulaiman v PP [2000] 4 MLJ 752, wherein Justice Augustine Paul stated that:

“The relevant provisions of the Evidence Act 1950 that I have referred to show that the requirements of a certificate under
s 76 are mandatory. Accordingly, a copy of a public document will be inadmissible as a certified copy if the certificate is
not in accordance with the stipulated requirements.”

[18]I have examined the notes of evidence (exhibit P2) and I find that there was a fundamental non-compliance
with section 76 of the Evidence Act 1950 in that the certificate was not dated. With respect to the endorsement of
the certificate which did not carry the words “ . that it is a true copy of the document or part thereof .”, I think the
words “Salinan diakui sah” used in exhibit P2 obviously means that the copy of the notes of evidence was a
certified true copy of the notes of evidence taken by the Sessions Court judge in the trial. Hence, the absence of
those words did not cause the contents of the copy to be untrue. Essentially, the date is a mandatory requirement to
be adhered to under section 76 of the Evidence Act 1950. The absence of that date would cast doubt on the
certification itself, for when the certification was made is unknown.

[19]This was stated by the Court of Appeal in the case Yusof Bin Omar v Pendakwa Raya [2001] 2 MLJ 209, by
Justice Abdul Hamid Mohamad JCA:

“Kami juga berpendapat bahawa kes-kes seperti Re Tan Ah Chuan & Anor [1954] MLJ 135 dan Mohamed Hanifah v
Public Prosecutor di mana pengesahan itu tidak bertarikh boleh dibezakan, kerana ketiadaan tarikh itu boleh membawa
kepada kecurigaan tentang pengesahan itu sendiri kerana bila ia dilakukan pun tidak diketahui ..”.

[20]It is apparent that the certified copy of the notes of evidence (exhibit P2) does not meet the mandatory
requirement under section 76 of the Evidence Act 1950. As such, I hold that the notes of evidence (exhibit P2) is
not admissible in evidence. In the absence of this crucial evidence, the prosecution has failed to prove that the
accused had given false evidence at the trial before the judge of the sessions court in Criminal Trial No. 62-130-
2000.

[21]With regard to exhibits P4 (A-G), P5, P6, P7, P8, P9, P10, P11, P12, P17, P18, P19, P20, P21, these
documents are copies from the photostat copies which were obtained by the investigation officer (SP4) from the
investigation papers (Sentul Report No. 10991/10) as the original High Court File No. 24-88-95 (MT4) has been
destroyed and cannot be traced. Having scrutinized these documents, I find that the affidavit affirmed by R.
Rajasingam (exhibit P12) is the key document which can show that the accused had given false evidence before
the judge of the sessions court in Criminal Trial No. 62-130-2000.
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[22]It is pertinent to note that exhibits P4 (A-G), P5, P6, P7, P8, P9, P10, P11 were all certified as true copies by
Datuk Dr. Sabirin bin Jaafar (SP2). SP2 confirmed that these documents were all certified as true copies by him
when he was the Deputy Registrar of the High Court of Penang at the material time. However, all these certified
copies (exhibits P4 (A-G), P5, P6, P7, P8, P9, P10, P11) were not dated, therefore they do not meet the mandatory
requirement under section 76 of the Evidence Act 1950. On the same footing, I hold that exhibits P4 (A-G), P5, P6,
P7, P8, P9, P10 and P11 are not admissible in evidence.

[23]Furthermore, the prosecution submitted that exhibits P4 (A-G), P5, P6, P7, P8, P9, P10, P11, P12, P17, P18,
P19, P20 and P21 can be admissible in evidence under section 65(1)(c) and (e) of the Evidence Act 1950, as the
exhibits were public documents and the original High Court File No. 24-88-95 was destroyed.

[24]Section 65(1)(c) and (e) of the Evidence Act 1950 provides that:

“65. Cases in which secondary evidence relating to document may be given

(1) Secondary evidence may be given of the existence, condition or contents of a document admissible in
evidence in the following cases:

(a) when the original is shown or appears to be in the possession or power-

(i) of the person against whom the document is sought to be proved;

(ii) of any person out of reach of or not subject to the process of the court; or

(iii) of any person legally bound to produce it,

and when after the notice mentioned in section 66 such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person
against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for
any other reason not arising from his own default or neglect produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) (e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act or by any other law in
force for the time being in Malaysia to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be
examined in court, and the fact to be proved is the general result of the whole collection.”

(emphases added)

[25]With respect I disagree with the prosecution’s submission that these documents are admissible under section
65(1)(c) of the Evidence Act 1950. In my view, the prosecution must produce sufficient proof of search for the
original High Court File No. 24-88-95 before seeking to admit these documents under section 65(1)(c) of the
Evidence Act 1950.

[26]In Tan Sri Tan Hian Tsin v Public Prosecutor [1979] 1 MLJ 73, the secondary evidence in the form of
photostat copies was admitted after the Federal Court was satisfied that a sufficient search was made and the
originals could not be discovered. Justice Chang Min Tat FJ had this to say:
 Page 8 of 12
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“Now what were produced in court was not the original Tatung’s documents but photo-stat copies thereof which Ho, in his
disquiet about the propriety of the whole transaction, made for his own protection, and then kept in his personal file. The
question of admissibility arose. Ho said that the originals were with Folex and of course, being primary evidence, the
originals should be produced. But there was evidence from Joseph Tay that after a search of the Company’s records which
he carried out at the request of the Police, he could not discover the originals and in the circumstances, secondary
evidence of the documents becomes available under the combined provisions of section 65 and 63(b) of the Evidence
Act 1950.” (emphasis added)

[27]Thus, the prosecution should have called a witness from the court to testify that a sufficient search for the
original file was carried out at the request of the SP4 and the originals could not be discovered as the file had
destroyed. Moreover, the witness should offer an explanation as to why the original was destroyed. However, the
prosecution has failed to call any witnesses from the court to provide this piece of evidence. Without this evidence,
these documents (exhibits P4 (A-G), P5, P6, P7, P8, P9, P10, P11, P12, P17, P18, P19, P20 and P21) are not
admissible under section 65(1)(c) of the Evidence Act 1950.

[28]I turn now to the prosecution’s submission that exhibits P4 (A-G), P5, P6, P7, P8, P9, P10, P11, P12, P17, P18,
P19, P20 and P21 can be admissible under section 65(1)(e) of the Evidence Act 1950. Section 65(1)(e) provides
that secondary evidence may be admissible when the original is a public document within the meaning of section
74 of the Evidence Act 1950. Section 74 read as follows:

“74. Public documents

The following documents are public documents:

(a) documents forming the acts or records of the acts of-

(i) the sovereign authority;

(ii) official bodies and tribunals; and

(iii) public officers, legislative, judicial and executive, whether Federal or State or of any other part of the
Commonwealth or of a foreign country; and

(b) public records kept in Malaysia of private documents.”

[29]No doubt, the originals of exhibits P4 (A-G), P5, P6, P7, P8, P9, P10, P11, P12, P17, P18, P19, P20 and P21
are public documents within the definition under section 74 of the Evidence Act 1950. However, section 65(1)(e)
of the Evidence Act 1950 must be read together with section 65(2)(c) of the same Act. Section 65(2)(c) of the
Evidence Act 1950 reads as follows:

“65. Cases in which secondary evidence relating to document may be given

(1) Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence
in the following cases:

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act or by any other law
in force for the time being in Malaysia to be given in evidence;

(2) (c) In the case referred to in subsection (1)(e) or (f) a certified copy of the document but no other kind of
secondary evidence is admissible.”

(emphasis added)
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[30]Section 65(1)(e), read with section 65(2)(c), makes it manifestly patent that proof of a public document by
secondary evidence is restricted to certified copies and no other kind of secondary evidence (see Noliana Bte
Sulaiman v Public Prosecutor [2000] 4 MLJ 752 at p. 769). In the present case, exhibits P12, P17, P18, P19, P20
and P21 are neither original nor certified copies. They are merely copies from photostat copies which SP4 obtained
from the investigation papers. Therefore, they do not meet the requirement under section 65(2)(c) of the Evidence
Act. For this reason, I hold that these documents are not admissible under section 65(1)(e) of the Evidence Act.

[31]With respect to exhibit P4 (A-G), P5, P6, P7, P8, P9, P10 and P11, since the certified copies were not dated,
they do not meet the mandatory requirement under section 76 of the Evidence Act 1950. It is noted that an
improperly certified copy does not amount to secondary evidence. Hence, exhibits P4 (A-G), P5, P6, P7, P8, P9,
P10 and P11 are not admissible under section 65 of the Evidence Act for these documents do not amount to
secondary evidence. In the absence of exhibits P4 (A-G), P5, P6, P7, P8, P9, P10, P11, P12, P17, P18, P19, P20
and P21, in particular the key document which is the affidavit affirmed by R. Rajasingam (exhibit P12), again the
prosecution has failed to prove that the accused had given false evidence at Criminal Trial No. 62-130-2000.

[32]Notwithstanding the fact that exhibits P2, P4 (A-G), P5, P6, P7, P8, P9, P10, P11, P12, P17, P18, P19, P20
and P21 were marked as “P” during the trial, the learned counsels still raised an objection to the admissibility of the
documents in their written submission. At this juncture, I emphasize that it is still open for the Court to assess the
admissibility of evidence, for inadmissible evidence remains inadmissible. This stand was taken by the Supreme
Court in Ooi Lean Chai v Public Prosecutor [1991] 2 MLJ 552 where Justice Mohamed Azmi SCJ said:

“Further a waiver by an accused person could not be held against him in regard to rules of procedure and evidence in
criminal proceedings. Any admission of inadmissible evidence, even with consent or by waiver of the accused was
wrongful and such inadmissible evidence remained inadmissible evidence, the effect of which was open to any court to
assess.”

[33]This principle was further reiterated in the case of Alcontara A/L Ambross Anthony v Public Prosecutor [1996]
1 MLJ 209, where the Federal Court stated that:

“The penultimate point which arose for consideration concerned the admission of certain irrelevant, inadmissible and
gravely prejudicial evidence, to wit, that part of the testimony of ASP Abdul Wahab wherein he gave an account of the
briefing he had given his men on the night before he had mounted the road block to stop and search the car driven by the
appellant; more particularly, he said this, ‘I informed them [his men] that information had been received that a certain Indian
would be travelling in a blue Colt Gallant Mitsubishi WBE 2789 and transporting dadah, proceeding from kawasan
Permatang Bendahari towards Pulau Pinang.’ Now, this statement by ASP Abdul Wahab was clearly based on hearsay,
was prejudicial to the appellant, and therefore, inadmissible. Although no objection had been raised to the admission of this
inadmissible evidence, the judge was nevertheless under an automatic duty to stop it from being adduced for inadmissible
evidence does not become admissible by reason of failure to object.”

[34]Lastly, I turn to consider the admissibility of the section 112 statement made by R. Rajasingam (exhibit ID22).
As I mentioned earlier, R. Rajasingam is a material witness who can prove that the accused had given false
evidence. Regrettably, R. Rajasingam has passed away on 31.10.2016 (exhibit P13 - Death Certificate of R.
Rajasingam). The prosecution attempted to introduce the section 112 statement made by R. Rajasingam pursuant
to section 32(1)(i) of the Evidence Act.

[35]Section 32(1)(i) of Evidence Act 1950 provides that:

“32. Cases in which statement of relevant fact by person who is dead or

cannot be found, etc., is relevant

(1) Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has
become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense
which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the
following cases:
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(a) - (h) ;

(i) when the statement was made in the course of, or for the purposes of, an investigation or inquiry into an offence
under or by virtue of any written law; and

(j) ”

[36]The learned counsels for the accused objected to the admissibility of the section 112 statement (exhibit ID22)
on the ground that the contents of the exhibit ID22 pertained to professional communications between lawyer and
client, which cannot be disclosed unless expressly consented to by the client under section 126 of the Evidence
Act. Having heard the oral submissions by both parties, I allowed the objection and ruled that the section 112
statement made by R. Rajasingam (exhibit ID22) was not admissible. However, the reason of my ruling is different
from what was submitted by the learned counsels.

[37]I allowed the learned counsels’ objection because the prosecution has failed to meet the requirements under
section 32(1)(i) and (j) of the Evidence Act 1950. Sub-sections 32(1)(i) and (j) provide that:

“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

(1) Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has
become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense
which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the
following cases:

(a) - (h) ..;

(i) when the statement was made in the course of, or for the purposes of, an investigation or inquiry into an
offence under or by virtue of any written law; and

(j) where the statement was made by a public officer in the discharge of his duties.” (emphasis added)

[38]In the present case, if the prosecution wishes to introduce the section 112 statement made by R. Rajasingam
(the deceased) under sub-section 32(1)(i) of the Evidence Act, the sub-section must read conjunctively with (j) in
view of the word ‘and’ at the end of (i). If sub-sections 32(1)(i) and (j) were meant to be read disjunctively, the word
‘and’ at the end of (i) would not have been inserted. When sub-sections 32(1)(i) and (j) are read conjunctively, it
means that the statement made in the course of an investigation into an offence under any written law is only
limited to public officers and not to witnesses. Since lawyer R. Rajasingam was not a public officer, therefore, his
section 112 statement cannot be admitted under section 32(1)(i) and (j) of the Evidence Act 1950 for this section is
limited to section 112 statements made by public officers.

[39]My ruling was guided by the decision of the Court of Appeal in the case of Kobra Taba Seidali v Public
Prosecutor [2014] 2 MLJ 554. The Court of Appeal held that:

“The submission that the prosecution should have admitted Maryam’s s 112 statement under s 32(1)(i) of the Evidence Act
1950 had no merit as s 32(1)(i) must be read conjunctively with (j) and was only related to public officers and not to
witnesses. Parliament would not have intended that the prosecution could introduce a witness statement as substantive
evidence under that subsection without calling the maker of the statement, as that would compromise the integrity of the
administration of criminal justice. Considering that subsections (a) to (h) of s 32(1) stood disjunctively, if (i) and (j) were also
meant to be read disjunctively, the word ‘and’ at the end of (i) would not have been inserted.”

[40]In their written submission, the prosecution argued that Kobra’s case did not raise the issue as to whether sub-
sections 32 (1) (i) and (j) should be read conjunctively such that the prosecution had to meet the requirements in (i)
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and (j) before a section 112 statement can be adduced in Court. According to the prosecution, the issue raised in
that case was whether the trial judge had erred when he failed to take into consideration the failure of the
prosecution to call a witness named Maryam or to adduce her section 112 statement. Further, the prosecution also
referred to the Federal Court case of Public Prosecutor v Jitweer Singh Ojagar Singh [2014] 1 CLJ 433, which
decided that the trial court had wrongly rejected the section 112 statement of one Khairudin (not a public officer).

[41]Having perused the case of Public Prosecutor v Jitweer Singh Ojagar Singh [2014] 1 CLJ 433, I find that the
case relied on by the prosecution can be distinguished. In Jitweer Singh, the trial court rejected Khairudin’s section
112 statement as there was “no diligent search and reasonable exertion” by the prosecution to procure the material
witness. However, the Federal Court ruled that the trial court had wrongly rejected the section 112 statement of
Khairudin, for the prosecution had done all that were doable to secure his attendance. Nowhere in the judgment did
the Federal Court decide on the issue of whether sub-sections 32(1)(i) and (j) of the Evidence Act 1950 must be
read conjunctively.

[42]Regardless of whether the parties had raised the issue of sub-sections 32 (1)(i) and (j) in Kobra’s case, the fact
is that the Court of Appeal had clearly laid down the principle that sub-section 32(1)(i) must be read conjunctively
with (j), and that the section is limited to section 112 statements of public officers. The case of Jitweer Singh was
decided by Federal Court on 5.8.2013, whereas the Kobra case was decided by Court of Appeal on 23.10.2013
which was about 2 months after Jitweer Singh was decided. Therefore, the principle laid down in Kobra’s case is
still good law unless it has been overturned. In this regard, this court is bound to follow the principle laid down in the
Kobra case.

[43]For the above reasons, I hold that exhibits P2, P4 (A-G), P5, P6, P7, P8, P9, P10, P11, P12, P17, P18, P19,
P20, P21 and ID22 are not admissible in evidence. Hence, this court finds that the prosecution has not made out a
prima facie case against the accused. On this ground, the accused is entitled to be acquitted.

Whether the Accused Had Indeed Fabricated Evidence as Alleged in the Charge

[44]However, in the event I am wrong in my decision that the prosecution has not made out a prima facie case
against the accused based on the above reasons, there is yet another ground on which the prosecution has failed
to prove their case. As I have mentioned earlier, the material witness R. Rajasingam passed away on 31.10.2016.
From my observation, the key documents which relate to the accused giving false evidence are the affidavit
affirmed by R. Rajasingam (exhibit P12) and the section 112 statement made by R. Rajasingam (exhibit ID22). Yet,
these documents were statements given by the late R. Rajasingam, and are documentary hearsay evidence.

[45]In the instant case, it seems that the prosecution relied on the affidavit affirmed by R. Rajasingam (exhibit P12)
and the section 112 statement of R. Rajasingam (exhibit ID22) to establish a substantive element of the offence. In
my opinion, these documents cannot be used as substantive evidence, but can be used for the purpose of
corroborating some material evidence. Moreover, this documentary hearsay evidence must be treated with caution
as it is incapable of being tested by cross-examination to determine its veracity. In Kobra Taba Seidali v Public
Prosecutor [2014] 2 MLJ 554, Justice Hamid Sultan JCA said that:

“It is elementary principle of common law that hearsay evidence which is incapable of being tested by cross-examination to
determine its veracity is not admissible to determine the guilt. And if it is so made admissible it may be for the limited
purpose to corroborate some material evidence. Anything less will be abhorrent to notion of justice and fair play (see
Article [2000] 4 MLJ lxv). The position is the same in all civil society (emphasis added.)”

[46]Having evaluated the notes of evidence (exhibit P2), I find at page 114 that at the trial on 24.6.2010, the
accused testified that he did not agree that Asamaley and R. Rajasingam took instruction from him. The name
Asamaley appeared in the notes of evidence. In the meantime, Originating Summons No. 24-88-95 (MT4) which
contains 6 copies of the court minutes (D6) (exhibit P4(A-G)) shows that the counsel for the defendant in
Originating Summons No. 24-88-95 in the Penang High Court was Asamaley, and the counsel who attended the
Penang High Court on 16.2.1995 was Lalitha Menon. Since R. Rajasingam had passed away, I believe Asamaley
and Lalitha Menon, had they been called to give evidence, would have shed more light about the case in the
Penang High Court.

[47]Accordingly, the prosecution should have called these material witnesses to give evidence in court, and used
the affidavit affirmed by R. Rajasingam (exhibit P12) and the section 112 statement of R. Rajasingam (exhibit ID22)
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as corroborative evidence which carry some probative value to support these material evidence. Nevertheless, the
prosecution elected not to call these material witnesses to close the gap in the prosecution’s case. Hence, I rule
that an adverse inference under section 114(g) of the Evidence Act ought to be invoked against the prosecution for
not calling the two witnesses who were material witnesses for the prosecution’s case.

[48]Without the material evidence, the affidavit affirmed by R. Rajasingam (exhibit P12) and the section 112
statement of R. Rajasingam (exhibit ID22) cannot be used as corroborative evidence. I give low probative value to
these evidence, and they become worthless pieces of evidence independently when I applying the maximum
evaluation test (see Kobra Taba Seidali v Public Prosecutor [2014] 2 MLJ 554 at p. 563). For this reason, the
prosecution has failed to prove that the accused had indeed fabricated evidence as alleged in the charge.

CONCLUSION

[49]Based on the foregoing reasons, I am of the view that the prosecution has failed to prove a prima facie case
against the accused for an offence under section 193 of the Penal Code. I therefore acquit and discharge the
accused.

End of Document