TENGKU ADNAN BIN TENGKU MANSOR PUBLIC PROSECUTOR

IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: WA-05(SH)-440-12/2020 BETWEEN TENGKU ADNAN BIN TENGKU MANSOR … APPELLANT AND PUBLIC PROSECUTOR …RESPONDENT [In The Matter of High Court of Malaya In Kuala Lumpur Criminal Trial No: WA-45-1-01/2019 Between Public Prosecutor And Tengku Adnan bin Tengku Mansor] CORAM: SURAYA OTHMAN, JCA ABU BAKAR JAIS, JCA AHMAD NASFY HAJI YASIN, JCA 1 DISSENTING JUDGMENT [1] The Appellant, in this case, was charged for the offence under s. 165 of the Penal Code. This section states as follows: Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any valuable thing, without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted, or about to be transacted, by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punished with imprisonment for a term which may extend to two years or with fine or with both. [2] The above is understandably too long to digest. However, the learned High Court Judge (“HCJ”) had assisted us through his grounds of judgment to appreciate the four elements of s. 165 of the Penal Code. The four elements in the context of the present case are as follows: (a) The Appellant being the Minister for Federal Territories was a public servant; (b) The Appellant obtained a valuable thing for himself; (c) There was no consideration for the valuable thing he obtained; and 2 (d) The Appellant knew Tan Sri Chai (“Chai”) had connection with his official functions. [3] Proving the bare minimum of all the four elements would mean that the Appellant should be convicted for the offence charged, in the absence of a defence that could raise a reasonable doubt. It is quite straightforward in that sense. [4] I shall now go on to evaluate whether there was evidence before the High Court on each of the elements mentioned. A. The Appellant being the Minister for Federal Territories was a public servant [5] With regard to this element, during the trial, it was not disputed that the Appellant was at the material time the Minister for Federal Territories. The Appellant also cannot be denied was a public servant pursuant to 21(i) of the Penal Code which states as follows: The words "public servant" denote a person falling under any of the descriptions hereinafter following: … every officer whose duty it is, as such officer, to take, receive, keep or expend any property, on behalf of Government, or to make any survey, assessment, or contract on behalf of Government, or to execute any revenue process, or to investigate, or to report on any matter affecting the pecuniary interests of Government, or to make, authenticate, or keep any document relating to the pecuniary interests of Government, or to prevent the infraction of any law for the protection of the pecuniary interests of Government, and every officer in 3 the service or pay of Government, or remunerated by fees or commission for the performance of any public duty; [Emphasis Added] [6] In respect of the above, there was evidence tendered in court that the Appellant received salaries and allowances from the government. [7] The learned HCJ also rightly referred to the Federal Court case of Mohd Khir Toyo v PP [2015] 8 CLJ 769 in saying a person in the service or pay of the government, or is remunerated by fees or commission for the performance of public duty, is deemed as a public servant. I am bound by the Federal Court’s decision. [8] In any event, when the counsel for the Appellant submitted before us at the Court of Appeal, he did not say the first element was not proven. [9] Based on all the above points, I agree with the learned HCJ that the first element had been proven by the prosecution. B. The Appellant obtained a valuable thing for himself [10] For this element, the valuable thing is the cheque of RM 2 million. Logically, nobody has argued that this is not a valuable thing. [11] The cheque was given by Chai and handed personally to the Appellant. Chai is a friend of the Appellant. They have known each other for more than 30 years. The cheque was issued by Aset Kayamas, a 4 housing development company. Chai owns this company and is a director of the same. [12] The cheque was made out to Tadmansori. This is a company where the Appellant owns 99.99% of the shares (worth RM 99,999,996.00) since the incorporation of the same. Evidence was tendered that the Appellant was the decision-maker for this company. Practically the Appellant is the owner of this company. [13] After receiving the cheque from the Chai, the Appellant instructed his driver to deposit the cheque into Tadmansori’s bank account. The cheque was later cleared and RM 2 million was credited into Tadmansori’s bank account. [14] Since RM 2 million went into this account, the money was for the Appellant himself, as he is practically the owner of this company. As stated, he owns almost all the shares of this company except a small share worth about RM 4.00. The Appellant brother is the owner of this RM 4.00 share. [15] I am therefore with the learned HCJ that this second element had been proven based on the reasons explained. [16] In any event, what is important to be considered regarding this element is that the Appellant contended he did not receive the money RM 2 million for himself. Instead, he said that the money was a political donation for UMNO, his political party. The money was needed for the expenses of UMNO for two by-elections in Sg Besar and Kuala Kangsar. 5 [17] This is the defence of the Appellant, contending this element was not proven because the money was not for himself. I shall come back to this defence after I explain the two other elements and the evaluation of the evidence regarding these two elements. C. There was no consideration for the valuable thing he obtained [18] The cheque came from Aset Kayamas to Tadmansori. There were no business dealings between these two companies. [19] When the cheque was cleared and RM 2 million was credited into the bank account of Tadmansori, nothing was given in return by Tadmansori or Appellant to Aset Kayamas or Chai. There was no consideration given by Tadmansori or the Appellant for the RM 2 million received. [20] For this third element, there is no dispute that even UMNO did not give consideration. There is no reason for UMNO to give consideration since UMNO never received the money. There is no record that Tadmansori had given the money to UMNO after receiving the cheque. The Appellant pocketed the money but who gave anything in return to Chai or Aset Kayamas? Answer – Nobody. [21] Therefore, the third element had also been proven. 6 D. The Appellant knew Chai had connection with his official functions [22] With regards to the fourth and last element, the prosecution must prove the Appellant knew that Chai had connections with his official functions. [23] The prosecution only needs to show the Appellant was aware that Chai and not even Aset Kayamas had connections with his official function as the Federal Territories Minister. There is no need for the prosecution to prove the Appellant had in fact used his position to assist Aset Kayamas in its dealings with his official function. [24] In this regard, among others, the Appellant knew that Chai and Aset Kayamas were interested in the Federal Territories Ministry’s scheme for an affordable housing project. It was the Appellant who requested Tan Sri Chai to participate in this project. There is also evidence that Chai met the Appellant personally at least on three occasions regarding this scheme for an affordable housing project. The Appellant also wrote minutes on a few of Aset Kayamas’s letters regarding the project. The evidence narrated, would be sufficient to prove this element i.e. the Appellant knew Chai had connection with his official functions. [25] Whether there was evidence the Appellant even got his subordinates to act on these letters and what were the actions taken by his subordinates are immaterial. This is because for this element, as stated, the prosecution only needs to prove the Appellant knew Chai had connection with his official functions. And the evidence that I have 7 narrated earlier, would be sufficient to prove this element. This is what I meant by proving the bare minimum as I stated earlier. [26] It is most important to note that for this element, the prosecution has no duty to prove the Appellant had obtained a valuable thing i.e. RM 2 million in return for a favour by him for Chai or Aset Kayamas. The Appellant need not do a favour for them. It is sufficient for the Appellant to know that Chai and Aset Kayamas had connection with his official function. [27] Therefore, with the evidence that have been highlighted, the prosecution had also proven this last element of s. 165 of the Penal Code. The end of the prosecution’s case [28] At the end of the prosecution’s case, the learned HCJ had correctly subjected the evidence adduced for maximum evaluation. After the evaluation, he was not wrong to find a prima facie case against the Appellant. He was also right to find credible evidence to prove every element of the offence, which if unrebutted would warrant a conviction against the Appellant. He therefore correctly called for the defence after the evaluation of the evidence at this stage. Defence [29] As indicated, the defence of the Appellant is the money of RM 2 million is not for himself. He said that the money was a political donation for UMNO. The money was needed for UMNO expenses for two by- elections in Sg Besar and Kuala Kangsar. 8 [30] First, when the Appellant received the RM 2 million, he did not give it to UMNO. As stated, neither did Tadmansori give the money to UMNO. [31] The Appellant said he had used his own money for UMNO for the by-elections. Therefore, he need not give the money to UMNO. Thus, there are no records from UMNO showing it had received the money. The Appellant had taken the money. [32] The assertion by the Appellant that he had used his own money and therefore need not give the same to UMNO is with respect far-fetched. This assertion would mean the Appellant could act according to his wishes as to the money received. This would also mean the Appellant has no obligation to even inform UMNO of the money that had been handed to him. It also amounts to a situation where the Appellant is able to ignore other UMNO members on the need for accountability for any moneys received. All these would render the Appellant’s story that he had used his own money for the by-elections, with respect, highly unlikely. [33] In fact, it is in evidence, in at least eight instances UMNO did repay the advances made by the Appellant when he had used his own money. But for the present case, there is no evidence that UMNO repaid him for the RM 2 million purportedly used by him for UMNO for the by-elections. Thus, by deduction, it only shows that it is not true for the Appellant to say he had used his own money for UMNO in this case. Had he used his own money, UMNO would have repaid him this money, just like so many instances in the past. Unfortunately, as stated there is no evidence from UMNO to this effect. 9 Chai (SP 19) [34] Chai was a prosecution’s witness. However, in the trial, during cross-examination by counsel for the Appellant, Chai quite dramatically took out his wallet and from the wallet he took out a single UMNO’s receipt number 376241 dated 14 June 2016. This was to support that the money was a political donation for UMNO and not for the Appellant. On the receipt was written ‘RM 2,000,000.00 – sumbangan PRK Kuala Kangsar dan Sungai Besar’ (‘contribution for Kuala Kangsar and Sungai Besar by- elections’). The Appellant told the court he had signed on the receipt in his capacity as UMNO Federal Territory Liaison Chairman. [35] The prosecution was surprised by Chai’s action. They did not expect this. They thought Chai did not have this receipt because when the investigation officer (“IO”) testified, the IO said Chai never informed him of the receipt during the investigation although the IO’s team had requested Chai to give any documents pertaining to the cheque of RM 2 million to the IO. [36] If indeed Chai was given the receipt in appropriate time, he would have told the IO so during the investigation. Instead, it became too convenient for him to come up with the receipt many months after the investigation and as a result, the receipt was only produced in court. Chai said he did not show it earlier as the IO did not pursue the matter further. This is difficult to believe. As stated, the IO’s team had requested Chai to give any documents pertaining to the cheque of RM 2 million to the IO. This happened way before the trial, during the investigation itself. If indeed Chai wants the court to believe the money was a political donation, he would have handed the receipt much earlier before the trial to the IO. 10 [37] The receipt must also be viewed not only from Chai’s perspective or understanding that it was for political donation. First, Chai did not have personal knowledge that the money was indeed for political donation. At best, he knew of it as political donation because the Appellant told him so. For example, I can tell you I want some money from you for my local mosque but you can never be sure what I will use it for. [38] Besides, the statement by Chai that he was requested by the Appellant for political donation remains only as that. Nothing more, nothing less. So even if the prosecution did not re-examine Chai further on this, it certainly could not mean that the RM 2 million was indeed money for political donation and not personally for the Appellant. As stated, this is because Chai knew it as political donation purely because the Appellant told him so. The prosecution’s case is not shaken even if it is true that Chai was not challenged in re-examination that the money was indeed a political donation. There is nothing worthy from such re-examination because Chai knew it as political donation only because the Appellant said so. It is opposed to a defence of alibi for instance. If a witness comes to court and says an accused was not at the scene of the crime and did not commit the murder, as the accused was at that material time with him, obviously the prosecution needs to challenge the witness in re- examination. It affects the prosecution greatly if the witness is not re- examined. This is different when Chai testified the Appellant told him that he needed the money as political donation. Even when he was not re- examined, this has not affected the prosecution’s case because the best that stood from Chai’s evidence for the Appellant, is that he was only informed that the money was meant as political donation. Thus, a court needs to be vigilant to note what was actually said by a witness in court. 11 The testimony of a witness on a specific matter might mean little, if not nothing compared to the totality of evidence from his overall testimony, testimonies of all witnesses and exhibits that must be assessed, evaluated and weighed. The court must not compartmentalise and separate a piece of evidence, without reasons, coming from a witness without verifying that evidence with other evidence before the court. Datuk Mohd Hasbi (SP 6) and Investigating Officer (SP 23) [39] The Appellant said that both Datuk Mohd Hasbi and the Investigating Officer (“IO”) who were prosecution’s witnesses also supported his evidence that the RM 2 million was a political donation. [40] Datuk Mohd Hasbi, Tadmansori’s Chief Operating Officer, testified that the Appellant told him the money was a political donation. The IO in turn said from his investigation, Chai and the Appellant also told him that the money was a political donation. [41] Just because Datuk Mohd Hasbi was informed by the Appellant the money was a political donation, this could not mean the money was not for the Appellant himself. Datuk Mohd Hasbi said it was a political donation merely because the Appellant told him so. The same goes for the IO. He was informed by Chai that it was a political donation and Chai knew it as a political donation because the Appellant said so. And of course the Appellant told the IO it was a political donation. It should not be expected that the Appellant will say the money was meant for himself. 12 [42] Both Datuk Mohd Hasbi and the IO do not have personal knowledge it was a political donation. At best, the evidence of Datuk Mohd Hasbi and the IO was that the Appellant told them the money was a political donation. Political Donation [43] It was self-serving for the Appellant to say that he had requested Tan Sri Chai to issue the cheque to Tadmansori instead of UMNO because he had used his own money for UMNO. With respect, he was unable to prove that he had used the RM 2 million for UMNO. [44] It is also untrue for the Appellant to say that the money was given as political donation and not for him personally. This is because it was never proven that there was any record that UMNO was given the money. Neither was it proven that the money was used for the by-elections by the Appellant, though he said he had used his own money for that purpose. The Appellant did not show credible evidence that the amount of RM 2 million was used for these by-elections. [45] For politicians to say moneys received were meant as political donations, there must be proper accounting. The very least is to show proof that the political donation was properly debited and credited. In the case where the politicians come from political parties (as opposed to independents), such as in this case, the more reasons, that political parties must show the details of this accounting. Especially when you come from a political party with financial means. If your political party can spend millions for a political cause, surely your political party can the very least, engage accountants or those qualified to properly account for the moneys you say you had received as political donations. Otherwise, politicians can gleefully say there was no reason to doubt the moneys 13 received as it was simply a political donation. After all, why should politicians be treated differently from others? If others need to answer and explain the source of their income, likewise politicians must be subjected to the same standard. Besides, in this case, RM 2 million is not a small amount. It may be a small amount to the Appellant but nobody had testified this is a small amount for UMNO. The Receipt [46] The receipt was produced in court to support the defence that the money was for political donation to UMNO. However, the receipt itself was seriously doubtful for several reasons apart from what have been stated earlier. [47] During the trial, the learned HCJ viewed and scrutinised the receipt itself. He gave the finding that the receipt was crisp and new despite after four years in Chai’s possession. Unless this finding is totally unfounded, it should not at the appellate stage be disturbed. The learned HCJ, as the trial judge is entitled to make this finding after visual and physical inspection of the receipt. A judge has a duty to observe and make an assessment of all exhibits tendered before him in court. If he is prevented from doing that, he might as well not be there. With his finding, he is entitled to believe the receipt could not have been issued as contended by Chai and the Appellant. [48] The learned HCJ had also appropriately taken into account the receipt book from which the receipt was issued. In respect of this receipt book, the learned HCJ noted that the Appellant gave conflicting evidence regarding the receipt from this receipt book. In his witness statement, the 14 Appellant said he had no knowledge why there was no duplicate copy to the receipt and that it was not his duty to handle the receipt book. But when he was cross-examined, he said he had pulled out the duplicate copy from the receipt book. This contradiction is material and the learned HCJ had correctly taken this into account. If the Appellant was not responsible to handle the receipt book, he too had no business to pull out the duplicate copy from the receipt book. [49] On that score too, the circumstances of the presence of the signature of the Appellant on the receipt is another event too convenient to be true. He signed the receipt as UMNO Federal Territory Liaison Chairman. One is justified to question why the receipt from UMNO headquarters, was signed by someone in UMNO Wilayah Persekutuan. It would be more logical that someone in authority at UMNO headquarters would have signed the receipt instead of the Appellant. [50] The Appellant also could not simply say that he had used the receipt from UMNO headquarters because Federal Territory UMNO where he was Liaison Chairman, does not have receipts books. This is far too convenient for him to say. Such a statement with respect seems hollow. It is difficult to accept Federal Territory Umno could not afford a receipt book. As most people would know, even lesser establishments (e.g. some sundry shops) do have receipt books. [51] He also said he signed the receipt in question from UMNO headquarters as the Federal Territory UMNO Liaison Chairman. This is also unacceptable. You sign your own receipt. Not the receipt of others. With respect, this is another instance of an afterthought. 15 The By-Elections [52] The Appellant said he had the responsibility of raising funds for the two by-elections and he had used his own money. The two by-elections were in Sungai Besar, Selangor and Kuala Kangsar, Perak and not in Federal Territory. He was Federal Territory UMNO Liaison Chairman. He was also not at that time the Treasurer of Umno. He also said each UMNO state liaison would form their own teams for a by-election. [53] It is more likely the Appellant has no or little responsibility to raise funds for the by-elections in Selangor and Perak because he was not the Liaison Chairman of these states. He was, as stated only the Federal Territory UMNO Liaison Chairman. As stated also, the Appellant even explained that each UMNO state liaison would form their own team. This would show the statement that he had to raise funds for the two by- elections as most likely untrue. Datuk Rizalman and Datuk Zakaria [54] Datuk Rizalman Bin Mokhtar (“Datuk Rizalman”) and Datuk Zakaria Bin Dullah (“Datuk Zakaria”) were defence’s witnesses for the Appellant. [55] Datuk Rizalman testified to support the Appellant evidence he had used his own money for the by-election at Sungai Besar. The Appellant said Datuk Rizalman was in charge of the by-election in Sungai Besar, Selangor. [56] Datuk Rizalman showed a one page budget sheet of twelve items as expenses which were purportedly spent for the by-election in Sungai 16 Besar. He said he prepared this based on memory as he had disposed of the original and the supporting receipts. The amount came up to RM 1,013,200.00. [57] Datuk Zakaria also came to court producing another one page budget sheet for ten items amounting to RM 1,007,600.00 for the two by- elections. He too did not keep the receipts supporting the budget. [58] Both brought the budget sheets for their testimonies in court after four years since the by-elections. They no longer have the receipts supporting the budget sheets but they could come up with more or less the exact amount spent for the two by-elections. This is too good to be true. Their abilities to recall things from sheer memory could not be that powerful. Most people normally could not even remember how much was spent a few days earlier, what more four years ago. Especially when you do not have the receipts and invoices to back you up and your expenditure runs to a substantial sum. [59] Further, as can be seen, the budget sheets amount slightly more than RM 2 million. It is just too convenient for the two gentlemen to arrive at this figure. Too high above 2 million, will prompt some to ask why only claimed RM 2 million? Too low below 2 million will also attract others to ask why claimed so much when the expenses are way below RM 2 million? So slightly above RM 2 million collectively should be just about right to show in the budget sheets. It is to accord with what Chai gave the Appellant. Of course, it must also not be exactly 2 million. It is too much of a coincidence if it does. 17 [60] As these budget sheets are more than suspicious, it could not be said the testimonies of Datuk Rizalman and Datuk Zakaria had raised a reasonable doubt on the prosecution’s case. [61] The Appellant also said he gave RM 1,013,200.00 cash to Datuk Rizalman and RM 1,007,600.00 to Datuk Zakaria for these by-elections. This, with respect is unbelievable. Give cash? It would be quite difficult to accept that cash for such a large amount had been given to the two gentlemen. [62] Even if the Appellant still wanted to give the money to the two Datuks, the very least was for the Appellant to use cheques or transfer the money through his bank accounts and not cash. It would be much safer and logical. So, the statement of the Appellant that Datuk Rizalman and Datuk Zakaria received cash amounting to more than RM 2 million from him, with respect could not be accepted. [63] Further, the learned HCJ correctly noted that the Appellant could not show the source of the cash he gave to Datuk Rizalman and Datuk Zakaria. As stated, the RM 2 million went into Tadmansori’s bank account. However, there was no withdrawal from this account that was shown to be given to Datuk Rizalman and Datuk Zakaria. Neither was it shown that the cash came from other sources. Datuk Mohd Rafi [64] The only other witness for the Appellant was his former political secretary, Datuk Mohd Rafi Bin Alii Hassan (“Datuk Mohd Rafi”). 18 [65] Datuk Mohd Rafi gave evidence he took the cash of RM 1,013,200.00 from the Appellant and handed the same to Datuk Rizalman. [66] The testimony of Datuk Mohd Rafi could not be true based on the reasons given earlier on the budget sheet regarding this amount. Explanation has also been given it could not be true that for this large amount of money, cash would be handed to Datuk Rizalman. [67] As a consequence, on the whole, the Appellant with respect was unable to show that he did spent or used RM 2 million or so of his own money for the by-elections. Assessment of the Defence [68] In respect of the defence, the totality of evidence must be taken into account by the court. At the risk of repetition, a witness’s particular testimony, must generally also be consistent with other parts of his evidence and also the evidence of other witnesses. In fact, even outside court, you check all available facts and not merely believe what one will tell you. It does not take a judge to appreciate this. You take the whole tree. Not just the flowers and leaves. The word “generally” here should also be noted. There is of course an exception. For instance, it is permitted that a part of the evidence of a witness be separated from the rest. When a witness tells a lie, his whole evidence should not be totally rejected. In Khoon Chye Hin v Public Prosecutor [1961] 1 MLJ 105b it is explained as follows: If a witness demonstrably tells lies on one or two points then it is clear that he is not a reliable witness and as a matter of prudence the rest of his evidence 19 must be scrutinised with great care and indeed with suspicion. To say, however, that because a witness has been proved a liar on one or two points then the whole of his evidence “must in law be rejected” is to go too far and is wrong. [69] Thus, based on the above, it was correct for the learned HCJ to accept part of the evidence of Chai, while rejecting his testimony that the RM 2 million was a political donation. [70] On the defence of the Appellant as a whole, like a jigsaw puzzle, you try to attach the pieces together. If you could not do it, a piece or two might be missing. As a result, the jigsaw puzzle could not be solved. For instance, the first piece is the defence that the money is a political donation and not for the Appellant himself. Based on the explanation earlier, even this first piece is tattered. The edges are not smooth to be attached to other pieces of the puzzle. The second piece is the receipt. However, as explained the receipt is highly suspicious and therefore should not be accepted. Thus, the second piece could not be attached to the first piece. You go on to take the other pieces (including the budget sheets and the purported cash given by the Appellant to the Datuk Rizalman and Datuk Zakaria) and try to do the same. If you still could not do it, your jigsaw puzzle crumbles, just like the defence here. [71] In essence, with the kind of defence narrated, the four elements for the offence as explained earlier have been proven beyond reasonable doubt. The Appellant, by the defence tendered, had not raised a reasonable doubt on any of these elements. 20 At the end of defence [72] At the end of the defence, the learned HCJ reviewed all the evidence tendered at the end of prosecution and at the end of defence for maximum evaluation. After subjecting the evidence to maximum evaluation, the learned HCJ was satisfied that the prosecution had proven its case beyond reasonable doubt. The approach by the learned HCJ in this regard was proper and correct. He too did not err in the steps that were taken in convicting the Appellant. Sentence [73] On sentence, I would say there is no reason to disturb the sentence of 12 months imprisonment and fine of RM 2 million, in default 6 months imprisonment that was imposed by the learned HCJ. In deciding the appropriate sentence, among others, the learned HCJ correctly took into account the service to the nation by the Appellant. The learned HCJ was also mindful of the gravity of the offence committed before imposing sentence. [74] Based on the prosecution’s case and the defence as narrated, the Appellant had not raised a reasonable doubt on the prosecution’s case. Hence, with respect, I would dismiss the appeal and affirm the conviction and sentence against the Appellant. Dated: 29 October 2021 21 Sgd ABU BAKAR JAIS Judge Court of Appeal Malaysia Putrajaya For The Appellant: Tan Hock Chuan [Messrs Tan Hock Chuan & Co.] For The Respondent: Asmah binti Musa Rullizah binti Hj Abdul Majid Nurshuhaida binti Zainal Azahar, Natasha binti Abdul Azis [Attorney General’s Chambers] 22