IN THE COURT OF APPEAL OF MALAYSIA
CRIMINAL APPEAL NO. B-05-227-08/2014 (IND)
BETWEEN
SHANMUGANATHAN PANCHAVARNAM
… APPELLANT
AND
PUBLIC PROSECUTOR
… RESPONDENT
[HEARD TOGETHER WITH CRIMINAL APPEAL NO. B-05-27911/2013 (NGA)
BETWEEN
FIDELIS IKENNA AZUBUIKE
… APPELLANT
AND
PUBLIC PROSECUTOR
… RESPONDENT]
[In The Matter of Shah Alam High Court Criminal Trial No.
45A-213-09 OF 2012
BETWEEN
PUBLIC PROSECUTOR
AND
SHANMUGANATHAN PANCHAVARNAM]
[And In The Matter Of Shah Alam Criminal Trial No. 45A-1602/2012
BETWEEN
PUBLIC PROSECUTOR
AND
FIDELIS IKENNA AZUBUIKE]
CORAM
ZAKARIA SAM, JCA
ABDUL RAHMAN SEBLI, JCA
ZAMANI A RAHIM, JCA
1
JUDGMENT
[1]
The two appellants, one Indian and the other a Nigerian
national, were charged and tried separately for drug trafficking in
two different High Courts before two different High Court Judges
and were both found guilty and sentenced to death.
[2]
The
appellants
filed
separate
appeals
against
their
convictions and sentence but at the request of the parties, we
heard the appeals together as they involved a single common
issue of law raised by their learned counsel. Having heard
arguments from both sides, we unanimously dismissed the
appellants’ appeals and affirmed their convictions and sentence.
These are our grounds.
[3]
The sole question for our determination was whether it was
mandatory for the prosecution to comply with section 402B(2)(b) of
the Criminal Procedure Code (“the CPC”) where the makers of the
written statements were called to give evidence at the trial. Section
402B(2) is to be read together with subsection (1) and they provide
as follows:
“402B. (1)
In any criminal proceedings, a written statement by any person shall,
with the consent of the parties to the proceedings and subject to the conditions
contained in subsection (2), be admissible as evidence to the like extent as oral
evidence to the like effect by that person.
(2)
A statement may be tendered in evidence under subsection (1) if –
(a)
the statement purports to be signed by the person who made
it;
2
(b)
the statement contains a declaration by that person to the
effect that it is true to the best of his knowledge and belief;
(c)
a copy of the statement is served, by or on behalf of the party
proposing to tender it, on each of the other parties to the
proceedings
not later
than
fourteen
days
before
the
commencement of the trial unless the parties otherwise agree.”
[4]
The intention behind the provision obviously is to save time
and expense and to obviate the need for the trial judge go through
the tedious process of taking down in writing the evidence-in-chief
of the witnesses, as under section 272 of the CPC, evidence is
required to be taken down in writing. The need for the declaration
in terms of paragraph (b) of section 402B(2) is to ensure that the
out of court statements contain the truth.
[5]
By the terms of section 402B, it is clear that the provision
avails both the prosecution and the defence, meaning to say either
side can, with the consent of the other, use the written statements
as evidence to support their cases.
[6]
The grounds proffered by the appellants in their respective
petitions of appeal in relation to the issue were as follows:
By the first appellant:
“The prosecution cannot be said to have proven its case beyond reasonable doubt
when its key witnesses, including the chemist and the investigating officer, gave
evidence by way of written statements in breach of s. 402B of the Criminal Procedure
3
Code in that conditions to the admissibility of the said written statements were not
complied.”
By the second appellant:
“The prosecution cannot be said to have proven its case as the written statement of
the chemist (SP5) is clearly inadmissible in evidence.”
[7]
It was not disputed that none of the six written statements
contained the declaration in terms of paragraph (b) of section
402B(2). But what was also undisputed was the fact that the
makers of the statements were called to give evidence and their
written statements were tendered and admitted as part of the
prosecution’s evidence without any objection by the defence.
There could only be one reason why the appellants did not object
to the admission of the statements, and that was because they had
given their consent pursuant to section 402B(1).
[8]
The contention by learned counsel for the appellants was
that the written statements should not have been admitted in
evidence as they were not admissible in evidence for noncompliance with section 402B(2)(b) of the CPC. The law is trite
that inadmissible evidence remains inadmissible irrespective of
whether it was objected to or otherwise when it was produced as
evidence.
[9]
It was argued that since the prosecution chose to prove their
case by way of written statements pursuant to section 402B, it was
mandatory for the written statements to be endorsed with the
4
declaration in terms of paragraph (b) of section 402B(2), failing
which the statements could not be used as evidence.
[10] The learned DPP contended otherwise, submitting that
compliance with the requirement of paragraph (b) of subsection
402B(2) is only mandatory where no witnesses are called to give
evidence in court. It was argued that the failure by the six
witnesses to make the declaration in their written statements was a
mere irregularity and had been cured by their attendance at the
trial and testifying under oath.
[11] If we were to accede to the appellants’ contention, the
statements would have to be disregarded. That would leave the
prosecution’s case without any leg to stand on because without the
written statements no prima facie case would have been
established against both appellants and they would have to be
acquitted and discharged. The oral testimonies of these witnesses
were clearly insufficient to establish the case against both of them.
[12] Having regard to the wordings of section 402B(2)(b), we
would have agreed entirely with learned counsel for the appellants
if he had qualified his proposition by saying that the mandatory
requirement for declaration is only meant for cases where the
makers of the statements are not called to give evidence at the
trial.
[13] We appreciate that section 402B(2)(a) is clear and
unambiguous and should therefore be given a literal interpretation.
Interpreted literally, it means that a written statement can only be
5
admitted in evidence if it contains the declaration in terms of
paragraph (b). But that does not answer the question whether the
declaration is mandatory where the maker of the statement is
called to give evidence at the trial.
[14] The view that we take is that it is not, because by being
called as a witness at the trial, the maker will invariably affirm to
the truth of his written statement. We take this view after taking
into account the object behind the requirement for declaration
under section 402B(2)(b). Section 17A of the Interpretation Acts
1948 and 1967 is relevant and provides as follows:
“In the interpretation of a provision of an Act, a construction that would promote
the purpose or object underlying the Act (whether that purpose or object is
expressly stated in the Act or not) shall be preferred to a construction that would
not promote that purpose or object.”
[15] This section is in fact a codification of the cardinal rule of
statutory interpretation that a statutory provision must be
interpreted with a view to give effect to its object rather than to
defeat its object. By adopting this approach, we take the view that
the construction that will promote the object of section 402B(2)(b)
is to give it a meaning that the requirement for declaration is only
mandatory where the written statement is used at the trial without
calling the maker to give evidence.
[16] The rationale behind the requirement is simple. If evidence in
the form of a written statement is to be used against the accused
without the maker being called to give evidence to face crossexamination, there has to be some form of assurance that the
6
statement is true. It is for this reason that section 402B(2)(a)
makes it compulsory for the maker of the written statement to
declare that the statement is true to the best of his knowledge and
belief. It is in this sense that learned counsel would be right in his
submission.
[17] Such need for a declaration in terms of section 402B(2)(b) is
consonant with justice and fair play. It is no different from the
requirement to affirm an affidavit for the purpose of a judicial
proceedings, except that it is not made before a Commissioner for
Oaths.
[18] If the written statement is later found to be false, the maker is
liable to be prosecuted for the offence of giving false evidence in a
judicial proceedings under section 193 of the Penal Code. So the
declaration under section 402B(2)(b) acts as a safeguard against
giving false evidence by a person who is not called to give
evidence at the trial. That in our view is the true purport of section
402B(2)(b) of the CPC, which is to prevent the admission of false
evidence in criminal proceedings.
[19] It is important to appreciate that section 402B is an exception
to the hearsay rule. If not for this section, the written statement
would be hearsay and therefore inadmissible in evidence. But
because of this section, it is admissible without the maker being
called to give evidence.
[20] Thus, where the written statement is used at the trial without
calling the maker to give evidence, the statement is admissible
7
provided it contains the declaration in terms of paragraph (b) of
section 402B(2). But where, as in the present case, the makers of
the statements were called to give evidence, the failure to make
the declaration would not render the statements inadmissible. By
the makers themselves giving evidence, the statements were no
longer hearsay, which required the application of the exception to
the hearsay rule in order for them to be admissible in evidence.
[21] With due respect to learned counsel, it was incorrect for him
to say that the prosecution had chosen to prove its case by way of
written statements pursuant to section 402B of the CPC. That
would only be true if the prosecution had relied entirely on the
written statements to prove its case without calling the makers of
the statements to give evidence at the trial.
[22] While it is true that the written statements were subject to the
requirement of section 402B(2)(b) of the CPC, the prosecution by
calling the makers to give evidence at the trial had adhered in pith
and substance to the spirit of section 402B(2)(b), which is to
ensure that the statements contained the truth.
[23] It needs to be emphasised that the makers of the written
statements had taken oath to speak the truth before tendering the
statements as their evidence in court. By taking oath under section
6 of the Oath and Affirmations Act, 1949, they had sworn to tell the
truth and to stand by their written statements, which became part
of their evidence in court. As we said earlier, they face prosecution
for the offence under section 193 of the Penal Code if they were to
give false evidence.
8
[24] Given the serious penal consequences of giving false
evidence in a judicial proceedings, we are of the view that the
taking of oath before a trial judge fulfills the object and requirement
of section 402B(2)(b) of the CPC, that the statement is true to the
best of the maker’s knowledge and belief. We venture to say that
taking oath before a judge has greater force than making a
declaration under section 402B(2)(b), which is not even made
before a person authorized by law to take oath.
[25] For this reason, the fact that the written statements in the
present case did not contain the requisite declaration was an
omission of no consequence. The oaths that the makers of the
statements made before the trial judges had served the purpose
for which section 402B(2)(b) was designed to achieve. The
omission would of course be fatal if they had not taken oath before
giving evidence, for then the statements would be in breach of
section 402B(2)(a) and therefore inadmissible in evidence.
[26] It is also important to bear in mind that the makers of the
statements were not called solely for the purpose of tendering their
written statements. The record shows that after their statements
were tendered and marked as evidence, each of them went
through the normal process of examination, i.e. examination-inchief, cross-examination and re-examination. This was certainly
not a case where, after tendering their written statements, they left
the witness box, waved goodbye to everyone and returned home.
9
[27]
Further, in the course of their examination by both the
prosecution and the defence, references were made to their
written statements, except where learned counsel for the
appellants chose not to ask any question in cross-examination.
What this means is that the defence was given every opportunity
and every latitude to challenge the makers of the statements on
the contents of their written statements.
[28] There is therefore no question that the appellants had been
prejudiced or disadvantaged by the failure of the witnesses to state
in their written statements their belief that the statements were true
to the best of their knowledge and belief. Nor can it be argued that
the failure had occasioned a miscarriage of justice.
[29] It is not any and every non-compliance with a statutory
requirement that will lead to failure of prosecution. In Wood v
Director of Public Prosecutions [2010] EWHC 1769 (Admin), the
English High Court was dealing with section 9(1) and (2) of the
Criminal Justice Act 1967 (“the CJA”) which are couched in the
following terms:
“(1) In criminal proceedings, other than committal proceedings … a written
statement by a person shall, if such of the conditions mentioned in the next
following subsection as are applicable are satisfied, be admissible as evidence to
the like extent as oral evidence to the like effect by that person.
(2) The said conditions are –
(a) the statement purports to be signed by the person who made it;
10
(b) the statement contains a declaration by that person to the effect that it is
true to the best of his knowledge and belief and that he made the statement
knowing that, if it were tendered in evidence, he would be liable to
prosecution if he willingly stated in it anything which he knew to be false or
did not believe to be true;
(c) before the hearing at which the statement is tendered in evidence, a copy
of the statement is served, by or on behalf of the party proposing to tender it,
on each of the other parties to the proceedings; and
(d) none of the other parties or their solicitors, within seven days from the
service of the copy of the statement, serves a notice on the party so
proposing objecting to the statement being tendered in evidence under this
section …”
[30] If section 402B(2)(a) and (b) of the CPC were to be
juxtaposed with section 9(1) and (2) of the CJA, it will be apparent
that the provision is a modified version of its equivalent in the CJA.
As can be seen, section 9(2)(a) of the CJA requires the statement
to be signed, and section 9(2)(b) requires it to contain a
declaration that the statement is true to the best of the maker’s
knowledge and belief, much like the requirements of section
402B(2)(a) and (b) of the CPC.
[31] Rule 27.1 of the English Criminal Procedure Rules 2005
(“the CPR”) further requires the written statement to be in a form
which includes the signature of the maker. In that case, the copy of
the statement that was served on the appellant did not bear the
signature of the maker of the statement, in breach of section
9(2)(a) of the CJA and rule 27.1 of the CPR.
11
[32] The admissibility of that statement was at the heart of the
submissions made to the District Judge and to the High Court
Judge. The District Judge ruled that although there might have
been a technical breach of the requirements of section 9 and rule
27, it in no way prejudiced the appellant and he was entitled to
ignore it.
[33] On appeal, this was how Mitting J at paragraphs [13] and
[14] dealt with the point:
“[13]
I deal now with Mr Ley’s second point. In Paterson v Director of Public
Prosecutions [1990] RTR 329, [1990] Crim LR 651, evidence was given by means
of a s 9 statement which contained a number of defects. Importantly, the statutory
declaration did not comply with the statutory conditions, the Divisional Court held
that it was inadmissible.
[14]
In determining whether or not the erroneous reference to two rather than
three pages undermined the validity of the declaration made on the first page, it is
necessary to have in mind exactly what Parliament provided that the declaration
must contain. The provision is that “the statement contains a declaration by that
person to the effect that it is true to the best of his knowledge and belief etc”. This
statement contained exactly that provision. The fact that it misidentifies the
number of pages in the statement is neither here nor there. There is no
doubt whatever what statement the declaration referred to. It referred to a
statement contained in a document of three pages, each of which was
signed by Mr Downing. No one would have any difficulty in ascertaining
what statement Mr Downing was making, the truth to which he was
certifying. For that simple reason there is no force in Mr Ley’s second point.
There would be no good purpose in my remitting the case to the District Judge for
him to state a question on that point. It is a bad one.”
(emphasis ours)
12
[34] The facts are not on all four with the facts of the case before
us but the relevance of the case lies in the fact that it dealt with a
provision that is almost identical to section 402B of the CPC and in
the fact that failure to comply with a statutory requirement was not
ruled to be fatal to the prosecution’s case.
[35] By parity of reasoning, the absence in the case before us of
the declaration in terms of paragraph (b) of section 402B(2) in the
written statements is neither here nor there as the makers of the
statements were called to give evidence and they had taken oath
to tell the truth. The truth that they swore to tell necessarily
included the truth of the contents of their written statements, which
they were prepared to defend by facing cross-examination and
scrutiny by the court.
[36] Learned counsel for the appellants relied on Mahdi
Keramatviyarsagh Khodavirdi v PP [2015] 3 CLJ 336, a decision of
another panel of this court which decided along the line of
counsel’s submissions before us. With due respect, the case is
readily distinguishable as the court in that case did not deal with
the effect in law of the oaths that the makers of the statements had
taken before they tendered their written statements as evidence at
the trial. The case is therefore of no assistance to the appellants.
[37] It was for all the reasons aforesaid that we dismissed the
appellants’ appeals and affirmed the decisions of the High Courts.
13
Sgd
ABDUL RAHMAN SEBLI
Judge
Court of Appeal Malaysia
Dated: 30 December 2016.
For the Appellants:
Hisyam Teh Poh Teik of Messrs Teh Poh
Teik & Co.
For the Respondent:
Awang Armadajaya bin Awang Mahmud,
DPP (Samihah binti Razali and Tetralina
binti Ahmed Fauzi, DPPs with him) of the
Attorney General’s Chambers.
14