http://thestar.com.my/news/story.asp? file=/2001/6/28/nation/skmalek&sec=nation

Thursday, June 28, 2001

Judgment of Abdul Malek Ahmad

1. The appellant is an advocate and solicitor of considerable standing and was one of several counsel representing the former Deputy Prime Minister and Minister of Finance who was being tried for four offences under section 2(1) of the Emergency (Essential Powers) Ordinance No. 22 of 1970 when this whole unhappy episode took place.

2. In the course of the trial, on 28th November 1998 to be exact, the appellant had filed on behalf of his client a motion praying for an order that Senior Deputy Public Prosecutors Dato' Abdul Gani Patail and Encik Azahar bin Mohamed, who were members of the prosecution team in that trial, be prevented or prohibited or discharged from further prosecuting in that case and that the matter of the conduct of the two said Deputy Public Prosecutors be referred to the Attorney-General with a view to such action as may be appropriate to be taken against them.

3. The relevant paragraphs of the client's affidavit filed on the same date in support of the motion read as follows:

"13. I am advised by one of my Counsel in my trial herein, that the evidence which Mr. Manjeet Singh Dhillon had sought to give in the Nallakamppan Trial is as stated in a Statutory Declaration which he had affirmed on 9th November 1998, and is to the effect:

(a) that at a meeting he had at the Attorney-General's Chambers on 2nd October 1998 (when he had requested that the charge against Datuk Nallakaruppan be punishable with the death penalty), the aforesaid Dato' Abdul Gani Patail had indicated that he would consider the request if Datuk Nallakaruppan was prepared to co-operate with the Attomey-General's Chambers by falsely implicating me in the commission of sexual offences with various married and unmarried women;

(b) that present at this meeting was Mr. Balwant Singh Sidhu, Co-Counsel for Datuk Nallakaruppan;

(c) that Encik Azhar bin Mohamed, another Senior Deputy Public Prosecutor subsequently made a similar demand as Dato' Abdul Gani Patail to Mr. Manjeet Singh Dhillon;

(d) that an account of what had transpired at the meeting aforesaid had been set out in a letter which Mr. Manjeet Singh Dhillon had sent to the Attorney-General dated 12 October, 1998, to which he had yet to receive a reply from the Attorney-General.

Now produced and shown to me is the said Statutory Declaration of Mr. Manjeet Singh Dhillon affirmed on 9th November 1998, herein marked Exhibit "DSAI-2".

14. Dato' Abdul Gani Patail is the leading prosecutor in my trial herein, with Encik Azahar bin Mohamed the next senior prosecutor.

15. It is clear from statements which have been made publicly by various personalities that my trial on these charges has very heavy political overtones. Notwithstanding that, it is as much the duty of every prosecutor involved in the proceeding herein, as it is the duty of this court, to discharge his functions fairly and professionally.

16. Their conduct referred to above shows both Dato' Abdul Gani Patail and Encik Azahar bin Mohamed to have abused their position as officers of the Attorney-General's Chambers and as prosecutors in my trial herein, by going out of their way to get Datuk Nallakaruppan to fabricate evidence in order to prefer more charges against me for other alleged sexual offences.

17. I do not believe that it is in the best interest of justice for Dato' Abdul Gani Patail and Encik Azahar bin Mohamed to continue to conduct the current prosecution against me.

18. Having shown themselves to be highly unprofessional in the performance of their duties and to be personally interested to secure my conviction by questionable means, their involvement in my trial herein has already raised grave doubts as to the integrity of the evidence which has so far been adduced by the prosecution.

19. I verily believe that their continuing to be prosecutors in my trial herein will pervert the administration, and will result in a travesty, of justice.

20. In the premises. I pray for an order in the terms of the application herein.".

4. It is certainly relevant to reproduce the statutory declaration dated 9th November 1998 affirmed by Manjeet Singh Dhillon (hereinafter "MSD") to get a clearer picture of the allegation. The said statutory declaration states:

"STATUTORY DECLARATION

I, Manjeet Singh Dhillon (NRIC No: 0248545) of c/o Room 308, 3rd Floor, Bangunan Yayasan Selangor, Jalan Bukit Bintang, 55100 Kuala Lumpur, of full age and a Malaysian citizen, do hereby declare and say as follows:-

1. I am an Advocate & Solicitor of the High Court of Malaya with an address for practice at Room 308, Bangunan Yayasan Selangor, Jalan Bukit Bintang, 55100 Kuala Lumpur and the facts deposed to in this Statutory Declaration are within my own knowledge.

2. I am retained as counsel for Dato Nallakaruppan a/l Solaimalai in Kuala Lumpur High Court Criminal Trial No: 45-40-1998 which is scheduled for hearing from 9 November 1998 onwards.

3. I wrote the letter annexed hereto as MSD-1, the contents of which are self-explanatory, and delivered it personally to the Hon. Attorney-General Tan Sri Mohtar Abdullah on 12 October 1998 at about 9.30 a.m.

4. Pursuant to the letter being delivered and as a result of an invitation from him to do so I met with the Hon'ble A.G. at about 11.00 a.m. on 13 October 1998. This invitation to meet him, alone, was conveyed through his secretary.

5. At the meeting the Hon'ble A.G. never questioned or disputed my allegations against Dato Gani Patall. Instead the conversation covered, among other things, the work that he, the Hon'ble A.G., was doing to improve the set-up and efficiency of his Department. Only at the tailend of our meeting did the Hon'ble A.G.,allude to my letter and say that the letter was not very clear as to how my client would plead to an amended charge under the Arms Act. My response to that was that the client would enter a plea of guilty to an amended charge under the Arms Act. He asked for a letter confirming this and said that either he or Azahar would revert to me after that.

6. On 14 October 1998 I wrote a short letter to the Hon'ble A.G. confirming my statement that the client would plead guilty. A copy of this letter is annexed hereto as MSD-2.

7. I telephoned and spoke to the Azahar inculcated by the Hon'ble A.G. This was on 16 October 1998. The 'Azahar' in question is Encik Azahar bin Mohamed, Ketua Bahagian Pendakwaan. Encik Azahar confirmed receipt of my letter dated 14 October 1998 and he knew about my meeting the Hon'ble A.G. on 13 October 1998. He went on, in the same conversation, to state that there would have to 'be something else [i.e. more than just a plea of guilt to an amended charge]' and that he would revert when he had instructions. This 'something else' asked for by Encik Azahar was obviously what Dato Gani had asked for, on 2 October 1998 and confirmed to me a common approach to extracting evidence from Nallakaruppan a/l Solaimalai by using the I.S.A. 'death threat' as their bargaining chip.

8. I had conveyed Dato Gani's demands to my client on the afternoon of 13 October 1998. There was little that Nallakaruppan could have done to satisfy Dato Gani or Azahar since he had nothing to give them that would have matched their demands, short of lying.

9. I did not hear from the Hon'ble A.G. or Encik Azahar and so on or about the 21 October 1998 I telephoned and spoke to the Hon'ble A.G. He said that he made no decision and asked for a further week.

10. There was no further response and so on 28th October 1998 I sent the Hon'ble A.G. a reminder. I received a reply dated 29 October 1998 signed by Encik Azahar bin Mohamed rejecting the request for an amendment of the charge. This rejection letter is annexed hereto as 'MSD-3' and I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declarations Act, 1960.

Subscribed and solemnly declared by:

The above-mentioned Manjeet Singh Dhillon

Sgd

(NRIC No: 0248545) at Kuala Lumpur)

Wilayah Persekutuan,

This 9th day of Nov., 1998

Before me,

Sgd.

(Signature of Judge of Sessions Court, Magistrate or Commissioner For Oaths)".

It is also necessary to reproduce, despite its length, MSD's earlier letter to the Attorney-General dated 12th October 1998. In fact, it would be incomplete not to do so. The letter reads:

MANJEET SINGH DHILLON ADVOCATE & SOLICITOR

YAB Tan Sri Mohtar bin Abdullah

Peguam Negara

Bangunan Bank Rakyat

Jalan Tangsi

PRIVATE & CONFIDENTIAL

12 October 1998

PERSONAL/FOR YOUR EYES ONLY/BY HAND

Tan Sri,

Re: PR lwn Nallakaruppan a/1 Solaimalai

KL High Court Criminal Trial No: 45-40-98

At the very outset let me apologize for writing this letter in English. I would under normal circumstances have arranged for my staff to translate it into Bahasa but there are matters that I am about to set out that for the moment I feel are best left on a p & c basis. Hence the need to keep the letter away from my staff. I have even taken the precaution of hand-delivering this letter myself.

You will recollect that l wrote to you on 1 October 1998 on the above matter citing the recent prosecution of Samsuri Welch Abdullah under the Arms Act 1960 as a comparative basis for you to amend the charge against Nallakaruppan from the Internal Security Act 1960 to one under the Arms Act 1960. I had copied that letter to Dato Gani Patail.

I had expected a response from your office but instead, as in the case of my first letter dated 17 August 1998, I had a call from Dato Gani Patail on 2 October 1998 asking to see me on a very urgent basis. Both Mr. Balwant Singh Sidhu and I saw him at 3.20 p.m. on 2 October 1998. The date & time of this visit is recorded in the police log book maintained outside Dato Gani's office on the 17th Floor of Bangunan Bank Rakyat.

I had gone to this meeting with the expectation that, on the basis of my 1st October letter, there would be some discussion about possible sections under the Arms Act 1960 with a view to an amendment of Nallakaruppan's present ISA charge. To my absolute horror and disappointment Dato Gani Patail used the meeting and the death sentence under section 57 of the ISA as a bargaining tool to gather evidence against Dato Seri Anwar Ibrahim.

He had with him the letter i had written to you and copied to him. He was waving the letter about and kept on saying repeatedly, "I am not impressed" and suggesting that he would not be impressed with any plea to a charge under the Arms Act but instead wanted more. This 'more', and it came across very loud and clear because Dato Gani laid it out in very clear and definite terms, was:

1. That Nallakamppan was now facing the death sentence.

2. That there were other charges also under the ISA that he could prefer against Nallakaruppan but that if they [AG's chambers?] hanged him once under the present charge what need would there be to charge him for anything else.

3. That in exchange for a reduction of the present charge to one under the Arms Act he wanted Nallakaruppan to co-operate with them and to give information against Anwar lbrahim, specifically on matters concerning several married women. Dato Gani kept changing the number of women and finally on five, three married and two unmarried.

4. That he would expect Nallakaruppan to testify against Anwar in respect of these women.

I was shocked that Dato Gani even had the gall to make such a suggestion to me. He obviously does not know me. I do not approve of such extraction of evidence against ANYONE, not even, or should I say least of all, a beggar picked up off the streets. A man's life, or for that matter even his freedom, is not a tool for prosecution agencies to use as a bargaining chip. No jurisprudential system will condone such an act.

It is blackmail and extortion of the highest culpability and my greatest disappointment is that a once independent agency that I worked with some 25 years ago and of which I have such satisfying memories has descended to such levels in the creation and collection of evidence. To use the death threat as a means to the extortion of evidence that is otherwise not there [why else make such a demand?] It is unforgivable and surely must in itself be a crime, leave alone a sin, of the greatest magnitude. Whether his means justify the end that he seeks are matters that Dato Gani will have to wrestle with within his own conscience.

I have agonized over this machinations of Dato Gani's for the last 10 days. I have known you for close to 26 years. I cannot imagine you condoning such an act. And so this third and final letter on this matter and my decision to let you know what transpired on the afternoon of 2 October 1998. How far into your Chambers the corruption has spread I cannot say but that you will have to stop it goes without saying.

Nallakaruppan does not deserve the charge under the ISA bearing in mind what I have set out above and what is tabulated below. The facts relating to the 125 bullets have been set out in my earlier two letters. In my second letter I mentioned the Samsuri Welch Abdullah charges. I have since researched into the Arms Act prosecutions by your Department over the last few years but because of the constraint of time have only been able to pick till 1993, a period well within your tenure as Attorney General. I haye chronologically listed out below all the cases reported in the local papers that I have been able to locate. All that is important at this juncture is to note that even

in matters of far greater magnitude you have chosen the Arms Act as the vehicle for your prosecutions.

(Annexures noted)

Samsuri Welch Abdullah had exceptionally large quantities of ammunition that had no relevance to his pistols. Vincent Teo's prosecutions listed above ['E' & 'H'] assume even greater significance. He was involved in gun smuggling and the illegal sale and disposal of about 240 guns together with Datuk Alfred Chin [who was related to a senior police officer], a fact highlighted by the Director of the CID, Malaysia in a press release dated 27 May 1996 [please see The Star clipping dated 28 May 1996 annexed to this letter as 'K']. That is by any stretch of the imagination a colossal amount of firearms, enough to equip a small army. If such a matter only warranted the Arms Act, then surely 125 bullets acquired under a licence where the licerice has expired cannot warrant the ISA.

This then makes the last case ['J'] listed above very relevant to your deliberations. This was an instance where the gun permit had expired and had not been renewed. The charge that was framed against Datuk Johari under section 8(a) was for failing to renew his permit between July 1983 and 27 March 1984 when the gun was found in the Regent Hotel toilet.

In the circumstances I will be grateful if you could give this matter your urgent and personal attention. On the available facts a charge under Arms Act 1960, as in Damk Johari's case above, will be the most appropriate and no extraneous matters should be taken into consideration in the framing of the charge. In the event that your direction is favourabIe, the matter could be called up at short notice, perhaps even before Deepavail, with a view to a prompt and early resolution. This will free the Court of the earlier trial dates fixed and save considerable time and expense all ronnd.

Thank you.

Yours faithfully,

Sgd,

Manjeet Singh Dhillon".

6. The appellant's client had in all been charged for five corruption and five s###my charges and all along he had alleged that all these charges were trumped up. It is, therefore, not that suprising that when he came across this evidence, it had propelled him to take the action he did through the appellant.

7. It is interesting to note that the relevant trial against the appellant's client had started on 2nd November 1998 and the motion was filed on 28th November 1998. This happened to be a Saturday but the trial judge apparently felt that it was very urgent when he fixed it for the following Monday. In fact, on that very rooming, he had said:

"Court: I am surprised that this notice of motion has been filed as in meetings that I had with counsel in chambers they have expressed satisfaction with the conduct of the proceedings and that the prosecution is fair including a statement that we have a very fair attorney general. I had intended to adjourn the hearing of this application to a later date. But the blaze of publicity that has been given to it warrants immediate action.".

8. Following from that, as can be gathered from the notes of evidence,

the learned trial judge and the appellant were engaged in the following dialogue:

"Court to En. Zainur Zakaria: This notice of motion has been filed by you and you have to assume full responsibility for it.

Court: Please read the Statutory Declaration of Mr. Manjeet Singh and his letter to the AG which form the basis of your application.

En. Zainur: Counsel who is arguing this application is Y.M. Raja Aziz Addruse and Tuan Hj. Sulaiman Abdullah.

Raja Aziz: The course of action Your Lordship is taking is most unusual. We have an application based on a Statutory Declaration which is admissible. It is not right to deal with a solicitor at this stage for filing it unless your Lordship propose to bring charges which we can defend.

Court: I intend to do that.

(Encik Zainur Zakaria reads the Statutory Declaration and the letter from Mr. Manjeet Singh to AG.)

Court: The basis of your application are these two documents.

En Zainur: Yes.

Court: I believe you are aware of the law relating to accomplice evidence and the fight of the Public Prosecutor to reduce a charge or not to charge a person if he cooperates and provides information to the police.

En. Zainur: I am not obliged to answer that question.

(Court reads law from various textbooks.)

Court to En. Zainur : Please read paras 13, 16 and 18 of the affidavit (En. Zainur reads).

Court: Are these allegations made in the affidavit supported by the documents that you are relying on?

En. Zainur: Yes. By reading the Statutory Declaration and the letter, in particular para 2 of letter. In this paragraph Mr. Manjeet says para 3 - the whole of it. En. Zainur reads para 3. En. Zainur reads para 4.

Court: Do you agree that para 4 is Mr. Manjeet's conclusion and has nothing to do with his meeting with Gani Patail?

En. Zainur: From what I understand from para 4 it was the conclusion based on the meeting between Mr. Manjeer and Gani Patail. I agree that para 4 is Mr. Manjeet's own conclusion.

Court: Now I take you to para 3. Which part of para 3 suggests that there was a request to fabricate evidence?

En. Zainur: Para 3 must be read with para 4. In para 3 it is point 3 (he reads: That in exchange for reduction of the present charge to one under the Arms Act he wanted Nallakamppan to cooperate with them and to give information against Anwar Ibrahim, specifically on matters concerning several married women, Dato Gani kept changing the number of women and finally settled on five, three married and two unmarried. Point No. (4): That he would expect Nallakaruppan to testify against Anwar in respect of these women.

Court: Does item 3 in para 3 suggest that there was a request to fabricate evidence?

En. Zainur: It must be read with para 4,

Court: Do you realize that the detailed questioning that I am embarking is to find out whether you filed an application without much thought in which event this court may be merficul with you?

Court: Where does para 3 suggest that a request was made to fabricate evidence?

En. Zainur: Para 3 and para 4 should be read together and when Mr. Manjeet referred to the "creation" of evidence he was referring to use of death threat. The use of the words "creation and collection of evidence which is otherwise not there" suggests that Nalla was requested to give evidence against Dato' Seri Anwar.

Court: You say "to give evidence" - nothing wrong with that, Where is the evidence to show that there was a request to fabricate evidence?

Raja Aziz: This is unusual procedure.

Tan Sri AG: I agree it is unusual. When I asked to sit I sat.

En. Zainur: In para 4 the use of the words to create evidence means Nalla is asked to create evidence.

Court: I refer you to para 8 of Mr. Manjeet's Statutory Declaration.

En. Zainur: This shows that Datuk Nalla could not give the evidence and there was no such evidence and would mean he is lying.

Court: Are you satisfied that the two documents in question suggest that there was a request to fabricate evidence?

En. Zainur: Yes

9. The the leamed trial judge pronounced:

"Court: This application with its affidavit in support is an interference with the course of justice as it has no basis. (I explain). It therefore amounts to a pre-emptive step to undermine the integrity of a trial in progress. The object is to project an impression that the prosecution is anchored on fabricated evidence. This is a serious contempt and I have to act on it with all urgency to preserve the integrity of this trial. As I said in the early stage of this trial I will not hesitate to flex every inch of my judicial muscle to ensure that this trial proceeds smoothly. It is my duty to guarantee that persons who are following this trial are not hoodwinked in any way. With the application of this nature to muddy the smooth flow of justice, I would not be surprised if a similar application is made to have me disqualified from hearing this case. In the light of the baseless application filed by you which is totally unsupported by the documents exhibited by you I propose to cite you for contempt for having attempted to undermine the integrity of this trial. Before I do so this court will show mercy towards you by dropping all further proceedings if you tender an unconditional apology to this court, to the AG, to Dato Gani Patall and to En. Azahar for filing an application which is absolutely baseless and which is an abuse of the process of court. (Court to adjourn for half an hour to enable En. Zainur to think about it).".

10. After a short adjournment to enable the appellant to consider tendering his apology, the appellant informed the court that he was not able to. He was promptly cited for contempt by the court. The appellant's learned counsel Raja Aziz Addruse then said:

"In view of the turn of events and the fact that part of the charge preferred state that the documents filed contain scandalous allegations we propose to adduce evidence to show that the meeting referred to by Mr. Manjeet Singh Dhillon in his Statutory Declaration did take place. So we would like to be given time to prepare our defence and Zainur Zakaria should be allowed time to defend himself. I quite understand that the main trial cannot be interrupted but just as the accused person in the main trial must be given time to prepare his defence Zainur Zakaria should be accorded the same consideration because equally his liberty is at stake. It would be quite unjust to require him and his counsel to answer this charge immediately. Even apart from the facts important issue of law are involved. So I ask for hearing to be adjourned. Request for a day or two. ".

11. The response from the learned Attorney-General was as follows:

"Tan Sri AG: Contempt proceeding is initiated by Court. We are not parties. We had intended to apply for contempt ourselves. I shall address Court if invited to do by Court.

Court: I invite you to assist the Court as at a later stage you may be involved in this matter.

Tan Sri AG: My brief answer is that this contempt is contempt in the face of the Court and is not something that happened outside. In cases of contempt in the face of the Court it must be dealt with immediately. This contempt derails justice and requires immediate action. The Respondent can explain. This is not a full trial. No need to call witnesses.".

12. Raja Aziz then submitted in the following manner:

"Raja Aziz: There are different types of contempt in the face of the Court. If a witness or accused should behave in a disgraceful way in Court, say if he throws a shoe at the Court, that is contempt in the face of the Court to be dealt with immediately. Here an application has been made to Court supported by a Statutory Declaration and it is said that the evidence in support contains scandalous allegations. The position is not the same. We should have been heard that allegations are scandalous. The learned AG talks of show cause procedure whether Court is satisfied of explanation. If that is the text (test) Court is already satisfied. This matter should be looked at more seriously and we intend to deal with it seriously. In an application of this nature where there is alleged in the communication that the course of justice is being perverted one should not dismiss those allegations easily.".

13. The application for an adjournment was refused and the appellant gave the following evidence:

"Zainur Zakaria

A/S English.

Advocate and Solicitor.

The application was filed upon instructions of my client, Dato' Seri Anwar Ibrahim. And I did so in the discharge of my professional duty. The obligations of an advocate and solicitor is not only found in common law but in our case is also, if I may say, enshrined in our Legal Profession Act, if I am not mistaken Sec. 42 requires an advocate and solicitor to uphold justice without fear or favour. That was my objective in filing this application.".

14. The subsequent notes of evidence detail what happened next:

"Raja Aziz: As a team of lawyers for the defence, matters of this nature are normaily discussed between all of us. In this case, I was consulted in the affidavit and settled it. The legal position regarding the points made in Mr. Manjeet Singh's statutory declaration was also very carefully considered. In considering communications which are of a confidential nature the court has set out a number of exceptions to the confidentiality of the communication. We should listen to the evidence. Court has to call witnesses.

Q: Whether this Court finds it necessary to call Mr. Manjeet Singh and others to explain the views held by the Court.

Court: It is unnecessary as all documents are before me and also in the light of the explanation given by En. Zainur.

Court: Guilty. Do you wish to address on sentence?

En. Zainur: It was not the intention to commit contempt. When the defence team studied the application before filing it was based on the documents exhibited. Our instructions were based on the documents. In the interest of justice it was felt this matter must be brought to attention of Court.

Court: You do not wish to tender an apology in the terms that I described earlier?

En. Zainur: I regret I am unable to do that.

Convicted.

Sentence - three months imprisonment."

15. As submitted by learned leading counsel Raja Aziz Addruse, both the

learned trial judge in the High Court and the learned judges in the Court of Appeal proceeded on the premise that the allegations on which the application was based were baseless, that the filing of the application was an attempt to undermine the ongoing trial of the appellant's client and that the appellant, in filing the application, committed contempt of court. He was of the view that the learned judges had misdirected themselves on the principle laid down by Attorney-General v. Times Newspapers Ltd (1973) 3 All ER 54 and Attorney-General v. Butterworth and Others (1963) 1 QB 696.

16. In the former case, Lord Morris of Borth-Y-Gest had said:

"My Lords, the phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law

which overstep the bounds which liberty permits. In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognized courts of the land are so flouted that their authority wanes and is supplanted. But as the purpose and existence of courts of law is to preserve within the law for all well disposed members of the community, it is manifest that the courts must never impose any limitations of free speech or free discussion beyond those which are absolutely necessary. When therefore a court has to consider the propriety of some conduct or speech or writing decision will often depend on whether one aspect of the public interest definitely outweighs another aspect of the public interest. Certain aspects of the public interest will be relevant in deciding and assessing whether there has been contempt of court. But this does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a desire to bring about a relief of some distress that was a matter of public sympathy and concern. There can be no such thing as a justifiable contempt of court.".

17. In that same case, Lord Diplock had remarked:

"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely on obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and Whose decision will be based on those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely on there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.".

18. The opening paragraph of Pearson L.J.'s ,speech in the later case was:

"I agree. No question of a discretionary choice between alternative procedures has been raised in this appeal. It appears from the findings of the Restrictive Practices Court that after the conclusion of the proceedings relating to the agreement known as R.E.N.A. some of the respondents removed Greenlees from certain offices for the purpose of punishing him for the evidence which he had given in those proceedings. The Attorney-General has contended that on those findings contempt of court was established, and that the court could and should have dealt with it summarily in the exercise of their inherent jurisdiction. On behalf of the respondents, Mr. Aldous has contended that the court's inherent jurisdiction to deal with contempt of court is limited to two classes of cases, namely, those in which there is a scandalising of the court and those in which there is prejudice to pending proceedings, and that the jurisdiction does not extend to a case in which after the conclusion of the proceedings some person is victimised for what he did as witness or juror in those proceedings. In my judgment, however, such victimisation, because it tends to deter persons from giving evidence as witnesses in future proceedings, and giving that evidence frankly and fully and without fear of consequences, is an interference with the due administration of justice as a continuing process, and does constitute contempt of court and can be dealt with summarily under the inherent jurisdiction."

19. Lord Ackner in Attorney-General v. Times Newspaper Ltd and

Another (1992) I AC 191 at pages 207 and 208 discussed the point in the following manner:

"The concept of contempt of court

The term "contempt of court" is of ancient origin having been used in England certainly since the thirteenth century and probably earlier. The term has been criticised as inaccurate and misleading, suggesting in some contexts that it exists to protect the dignity of the judges. Over 100 years ago Bowen L.J. explained in In re Johnson (1887) 20 Q.B.D. 68, 74:

"The law has armed the High Court of Justice with the power and imposed on it the duty of preventing ... any attempt to interfere with the administration of justice. It is on that ground, and not on any exaggerated notion of the dignity of individuals that insults to judges are not allowed. It is on the same ground that insults to witnesses or to jurymen are not allowed."

Nearly 70 years ago a similar comment was made by Lord President Clyde in Johnson v. Grant, 1923 S.C 789. He said, at p.790:

"The phrase 'contempt of court' does not in the least describe the true nature of the glass of offence with which we are here concerned ... The offence consists in interfering with the administration of the law; in impeding and pervertlug the course of justice .... It is not the dignity of the court which is offended - a petty and misleading view of the issues involved - it is the fundamental supremacy of the law which is challenged."

Approaching 50 years later in Morris v. Crown Office (1970] 2 Q.B. ]14, 729 Salmon L.J. observed:

"The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented."

Shortly thereafter Lord Cross of Chelsea, in Attorney-General v. Times Newspapers Ltd [1974] A.C. 273, 322, commented:

"'Contempt of court' means an interference with the administration of justice and it is unfortunate that the offence should continue to be known by a name which suggests to the modern mind that its essence is a supposed affront to the dignity of the court. Nowadays when sympathy is readily accorded to anyone who defies constitUted authority the very name of the offence predisposes many people in fayour of the alleged offender. Yet the due administration of justice is something which all citizens, whether on the left or the right or in the centre, should be anxious to safeguard.".".

20. The principle which these cases enunciate, learned counsel had continued, is that all citizens have an unhindered access to constitutionally constituted courts for the determination of disputes as to their rights and liabilities. Where else could the appellant's client resort to on being aware of MSD's letter and statutory declaration'?

21. The judgment of the Court of Appeal at pages 14 and 15 of the first volume of the Appeal Record had this to say:

"In response to this submission, the learned counsel for the respondcut argued that the relevant parts of the SD and 'MSD-I' did not support the appellant's contention that the two DPPs were trying to fabricate evidence against DSAI. The respondcut contended further that an offence under s.498 Penal Code (i.e. enticing of married women) was disclosed by ID 14B. Under the circumstances, the respondent contended that the application of the appellant had the effect of trying to influence the learned judge to hold the view that the evidence so far tendered before him were fabricated. This, consequently, it was submitted had a tendency to obstruct the ordinary course of justice or to prejudice the trial before the learned judge. As such, the respondent argued that the learned judge had the power and duty to summarily deal with, the appellant for contempt.

The learned judge in his grounds of judgment referred to Attorney-General v. Times Newspapers Ltd. (1974) AC 273 at 302 as an authority on the purpose of contempt proceedings. The learned judge then quoted from Lord Russel's judgment in R v. Gray (1900) 2 QB 36 to show what acts constitute contempt of court. We are accordingly of the view that the learned judge has not erred in his perception of the meaning of contempt of court. In fact, Lord Cross of Chelsea in Attorney-General v. Times Newspaper Ltd. (supra) said, at page 322,

".... 'Contempt of court' means an interference with the administration of justice .... "

In the notes of evidence, the learned judge stated that the application of DSAI was baseless because it was totally unsupported by the documents exhibited therein. Accordingly the learned judge held that the application was an attempt to undermine the integrity of the trial of DSAI and also an abuse of the process of court. Thus, according to the learned judge, the appellant had committed contempt of court.".

22. In a later pan of the judgment, the learned judges quoted the findings

of the learned trial judge as follows:

". .... the conclusion of MSD as contained in paragraph 4 of the letter may be justifiable only if it was arrived at after he had discussed the matter with his client in order to ascertain what the latter knew. The letter is dated 12 October 1998. However, paragraph 8 of the SD states that MSD met his client on 13 October 1998 to convey AGP's demands to him. This shows that MSD came to his conclusion even before he had discussed the matter with his client to find out what the latter knew. I find support for this in paragraph 8 of the SD where MSD had said that there was nothing that his client could have done ".... short of lying". This clearly indicated that up to the 13rh MSD did not know what his client knew. It cannot be assumed that MSD was aware of what his client knew at that point of time as otherwise there would have been no need for him to refer the matter to his client which he did. For MSD, therefore, to refer to ",... the extortion of evidence that otherwise not there,.." is ill-advised." '

The learned judge then concluded thus -

"In my opinion there is no indication, explicit or subtle, direct or indirect, in the request for information against the accused by AGP for the giving of any false information, It was an exercise of lawful powers with no undertones of any impropriety. The conversation that transpired at the meeting as described in paragraph 3 of the letter ought to have made this plain and patent even to the most uninitiated. It follows that the reading of anything else into paragraph 3 of the letter is an act of bad faith calculated to undermine the administration of justice.".".

23. Their conclusion was:

"Clearly therefore, the appellant's allegation of fabrication of evidence by the two deputy public prosecutors as contained in the affidavit in support of the application, are not supported by the SD and 'MSD-I '. Consequently, this act of the appellant is obviously, as correctly put by the learned judge, an act of bad faith. Under such circumstances, we agree with the learned judge when he held that the appellant's application was an attempt to undermine the integrity of the trial of DSAI and abuse of the process of court. We are, in fact, of the view that the appellant's act and conduct are inherently likely to interfere with the administration of justice as a continuing process in the lower court (Attorney-General v. Butterworth (1963) 1 QB 696).".

24. The appellant's petition of appeal highlighted the fact that the learned judges of the Court of Appeal erred in law and in fact:

(a) in holding that the appellant was reckless and negligent in filing the application to disqualify the two prosecutors and in so doing inter alia erred in considering the purport and effect of the relevant exhibit that was tendered at the trial of the appellant's client before the learned trial judge and erred in having taken in consideration that exhibit;

(b) when they misdirected themselves on the powers of public prosecutors in regard to plea bargaining or plea negotiations, and erred in not considering the fact that the learned trial judge came to a conclusion on the issue of accomplices, without any or sufficient evidence before him;

(c) in holding that the filing of the application by the appellant's firm was an act of bad faith by the appellant and in so doing inter alia did not appreciate the purport and effect of MSD's letter dated 12th October 1998 or MSD's statutory declaration dated 9th November 1998 and did not appreciate that the letter and statutory declaration provided prima facie adequate grounds for the filing of the application, or erred in construing the contents of the letter and statutory declaration given that the application filed by the appellant's firm was never heard on the merits before the learned trial judge;

(d) in holding that the application was an attempt to undermine the integrity of the High Court trial, abuse of the process of court, an interference with the administration of justice and prejudicial to the prosecution in the High Court trial;

(e) in holding that the acts and conduct of the appellant, on behalf of his client in making the application, constituted a contempt of court;

(f) in holding that it was unnecessary for the learned trial judge to allow the calling of witnesses and hearing of submissions to properly determine the purport of the letter and statutory declaration and the events that were said to have transpired in them;

(g) in holding that the charge against the appellant was sufficiently particularised by the learned trial judge;

(h) when they did not consider that by the time the learned trial judge had framed the charge against the appellant, he had already expressed the view that the appellant had committed a serious contempt by filing the application;

(i) in holding that the element of mens rea was immaterial in such a contempt of court;

(j) in holding that the appellant ought properly to have advised his client not to file the application given that he was aware of the affidavit and the conclusions in the letter and statutory declaration, and in so doing inter alia failed to appreciate the duties of the appellant as an advocate and solicitor, failed to consider that the appellant had sought the advice of counsel on the application and failed to appreciate the effect and purport of the letter and statutory declaration as a whole;

(k) in holding that the learned trial judge correctly used a summary procedure for convicting the appellant for contempt of court and in so doing inter alia failed to consider that the learned trial judge could have proceeded ith the High Court trial and failed to consider that the learned trial judge ought properly to have allowed the appellant an adjournment to prepare his defence and to call witnesses;

(l) in holding that given an increase in contempt offences by advocates and solicitors, a custodial sentence for the appellant was justified; and

(m) given the circumstances, in holding that an apology by the appellant would have an effect on the nature of the punishment.

25. The relevant question, as learned counsel put it, would be whether the appellant's client, by whom the application was made, had the right to complain to the High Court with regard to the alleged conduct of the two prosecutors and' whether he had grounds for making the application. If he had the right to make a complaint and if he had acted properly in making the application, then the appellant's act of filing the application on his client's behalf could not have constituted an interference with the administration of justice and, consequently, contempt of court.

26. What merits consideration first is whether there was evidence to

support the application to disqualify the two prosecutors. One only need to read MSD's letter and statutory declaration to appreciate the fact that this cannot be a baseless allegation. In consequence, there is really no basis to find that the appellant had acted in bad faith in filing the application on behalf of his client.

27. Learned counsel Haji Sulaiman Abdullah stressed that the

fundamental principle was that a person accused of a crime must have the best possible defence. Emphasising the fact that the appellant was only the solicitor acting for his client, he submitted that where there are two possible interpretations, the doubt must be given to the accused. Questioning whether the appellant, as solicitor, had interfered with the ongoing trial, he said that it is never the intention of any lawyer to engage in this sort of contest with the judge.

27. Learned counsel further argued, and this was very important, that the overriding factor in the four charges against the appellant's client was sexual misconduct. The defence, in essence, was that there was no truth in the trumped up charges and that all the evidence was fabricated. Being aware of MSD's letter and statutory declaration, which naturally confirmed the suspicions of the appellant's client, it was natural for the client to be overly anxious about the proceedings against him. In doing what he did, can he be said to be interfering with the administration of justice?

29. Much has been said about accomplice evidence but whether or not Dato Nallakaruppan was an accomplice or otherwise is clearly of no relevance. The main issue is the conduct of two of the prosecutors in the prosecution team striking a bargain to get further evidence, fabricated at that, against the appellant's client in exchange for a reduction for the death penalty charge then levelled at Dato Nallakaruppan.

30. Apart from the fact that the application was filed on Saturday and the hearing took place on the following Monday, the notes of evidence, the reproduction of which earlier in this judgment was for the sole purpose of illustrating the point, clearly showed that the trial judge, despite the intervening day being a Sunday, was quite well prepared for the event. The manner he conducted the proceedingS, in particular the interrogation of the appellant and the speedy finding of guilt without even allowing the appellant to call any witness, gave the picture that he was behaving as though he was acting as counsel for the two prosecutors in the motion.

31. He had then immediately decided that the appellant had committed

contempt before even framing the charge, and a defective charge at that. But after the appellant had given evidence, he had refused an adjournment to call relevant witnesses. Surely MSD himself could have shed some light on the matter. Getting the two named prosecutors to testify to clarify the position would certainly be the correct thing to do.

32. Re Bramblevale Ltd (1970) 1 Ch i28 had decided that in contempt of

court cases, proof must be beyond reasonable doubt. This certainly was not the case here and the learned trial judge did not at all allude to the burden of proof in his judgment. On the allegations made, there was really no basis for the appellant to explain or to apologise.

33. Apart from the fact that at the relevant time there had been no denials from the two prosecutors and in fact even from MSD, the learned trial judge, in carrying out his summary procedure, demanded an apology from the appellant. The effect of this demand would mean that contempt had taken place which is the very thing denied. There has been a blatant disregard of rules of procedure and considering the frame of mind the learned trial judge was in, he should have been the last person to deal with the contempt issue.

34. Having held the allegations were baseless despite not calling for

further evidence to support this, the learned trial judge had ruled that the motion should not have been filed. Since the procedure taken was wrong and the matter had certainly not been proved beyond reasonable doubt, the learned trial judge fell into error in deciding that contempt of court had taken place. Imposing a sentence of three months imprisonment was definitely the wrong icing to the cake.

35. In writing this judgment, it has been found necessary to reproduce a major portion of the appellant's client's affidavit, and MSD's letter and statutory declaration and the notes of proceedings in full, so as to get the correct picture of how the contempt proceedings took place. Doing otherwise would have created a different effect altogether.

36. In the light of all observations made, the conduct of the learned trial judge himself had vitiated the contempt proceedings. It is obvious that the Court of Appeal, in merely agreeing with the trial judge, fell into the same error.

37. This appeal must be allowed. Accordingly, the conviction is quashed and the sentence set aside.

Dated the 27th June 2001.