Penipuan Polis DiRaja Malaysia, Malicious Prosecution and Incompetency of Public Prosecutor: PUBLIC PROSECUTOR v CHUNG WAN LI HIGH COURT (KUCHING)

[2005] MLJU 409
Malayan Unreported Judgments
PUBLIC PROSECUTOR v CHUNG WAN LI
HIGH COURT (KUCHING)
CRIMINAL APPEAL NO 41-23-2004-11
DECIDED-DATE-1: 23 AUGUST 2005
LAU BEE LAN, J

JUDGMENT

The Public Prosecutor (PP) has appealed against the order of the learned Magistrate made on 14.9.2004 in discharging and acquitting the Respondent without calling for his defence.

The Respondent (Accused in the Court below) Chung Wan Li was charged with the following amended charge : “Bahawa kamu pada 18.11.2002 Jam lebih kurang pukul 3:00 petang bertempat di BEST MULTI COMMUNICATION, NO. 889, TABUAN JAVA SHOPPING CENTRE, 93500 KUCHING, SARAWAK didapati ada memiliki sebanyak 18 keping filem dalam bentuk VCD pelbagai tajuk yang didapati lucah dan dengan demikian kamu telah melakukan kesalahan di bawah Seksyen 5(1) Akta Penapisan Filem 2002, dan jika sabit kesalahan boleh dihukum di bawah Seksyen 5(2) 5 Akta yang sama”.

The PP has appealed upon four (4) grounds which I shall deal with accordingly.

1st Ground

In respect of the 1st Ground, it is the Prosecution”s contention that the learned Magistrate erred in law and in fact in coming to the conclusion that there is doubt on the identity of the exhibits seized (PI) based on the following grounds:

(i) no record of proof (“1st point”);

(ii) some of the Exhibits PI, the title was in Chinese character,
thus PW1, PW2 and PW3 cannot be so sure that the title in Exhibit
P2 was similar to the exhibits they seized (“2nd point”)
; and

(iii) since Encik Elias was not called to testify, it is not safe
to conclude that the 18 obscene VCD (video cakera padat) received
by PW5 was the same as that seized by PW1 and his colleagues (
“3rd point”).

In respect of the 1st point, the learned DPP submitted that the learned Magistrate has erred because he himself allowed the random testing of 18 VCDs upon the application of the Prosecuting Officer as is evident from the following evidence:

“P.O.: Pohon uji tayang secara random”

Court: Proceed

Court: The screening has been done”.

In respect of the 2nd point, the Prosecution submitted that the learned Magistrate erred because Exhibit P2, the Search List No. 000172 dated 18.11.2002 was acknowledged by the Accused himself.

In relation to the 3rd point, the Prosecution contended there was no necessity to call Encik Elias B. Mat Rabi because there is no need for corroboration and the Accused was not prejudiced in any event because Encik Elias was not a member of the raiding team.

On the other hand, in rebuttal to the 1st point, Mr. Roger Chin submitted that it was incumbent for the Prosecution to prove each and every ingredient of the charge i.e. one of which is that the 18 VCDs must be confirmed to be obscene. He argued that no explanation was proffered for the Prosecuting Officer”s application to carry out random sampling of the VCDs and neither should the learned Magistrate be faulted for conceding to their application as it is not the learned Magistrate”s duty to teach the Prosecution as to the proper procedure to adopt.

In respect of 2nd point, Mr, Roger Chin submitted that notwithstanding that Exhibit P2 was acknowledged by the Accused, the titles of the 18 VCDs were not listed rendering the identity of 18 VCDs seized from the Accused to be uncertain.

For the 3rd point, Mr. Roger Chin submitted that the failure of the Prosecution to call Enck Elias leaves the Prosecution”s evidence in a state of great doubt and further, it cannot be said that the Accused was not prejudiced because there was a serious break in the chain of evidence as there is doubt as to who handed the 18 VCDs to the Investigating Officer, Raja Husin b. Raja Ibrahim (PW5).

I am of the view that the submission of the learned DPP in respect of the 1st Ground comprising the 1st to the 3rd points is without merit. The charge preferred against the Accused under s.5(l) of the Film Censorship Act 2002 (“the Act”) requires proof of ” two (2) essential ingredients – the Accused was in exclusive possession at the material time, i.e. 3 p.m. on 18.11.2002 of the 18 obscene films in the form of VCD; and that the 18 films are of obscene material.

An examination of the evidence adduced by the Prosecution, as pointed out in the Written Submission of the Defence (Encl. 8), is tainted with uncertainty and grave doubt 20 as to the identity of the 18 VCDs because –

(i) Exhibit P2, the “Pengakuan Rampasan” form (Search
List) failed to list the titles of each and every one of the 18
VCDs allegedly seized by the Kementerian Dalam Negeri (KDN)
officers on 18.11.2002, the date the raid was conducted at Accused
“s shop; thus rendering the identity of the 18 VCDs in doubt;

(ii) PWl, Yusri bin Hajudin, one of the members of the raiding
team testified that after seizing Exhibit PI, he handed them to
PW5 whereas PW5 testified that he received Exhibit PI from Encik
Elias B. Mat Rabi (not called as witness). Hence there is a
serious contradiction as to whether the 18 VCDs which PWl handed
to PW5 were indeed the same ones that were handed by Encik Elias
to PW5 since Exhibit P2, the Search List prepared by PWl had not
contained a description of each and every title of the 18 VCDs
seized, but merely stated “MS Keping VCD Pelbagai Tajuk
“.

In addition to the above, I am of the view that there are other
factors raised by the Defence which ought to have been given
weight to also, although not mentioned in the Petition of Appeal,
namely –

(iii) Exhibit P5, the list of 18 VCDs prepared by PW5,1 agree,
lacks evidential value as it was not prepared at the place of
seizure.

(iv) It is also relevant to consider that the Prosecution”s
evidence revealed that PWl, PW2, Joseph Tiang ak Setu and PW3,
Atom ak Peter (the photographer) testified that they seized 18
VCDs from the Accused on 18.11.2002 whilst PW4, Ezian bin Sobeng,
the KDN officer who impersonated as a customer and who allegedly
purchased VCDs from the Accused, testified that the raiding team
only seized the 5 VCDs which he had brought back to the Accused
“s shop for exchange at the material time. This is evident
from PW4″s testimony during examination-in-chief at page 15
of the Record of Appeal, lines 24 to29) as –

“Masuk kedai tertuduh 2.35 petang.

Dari masuk hingga seterusnya, masuk dan ingin tukar VCD
tersebut, katakan penukaran dibuat soya memberi isyarat
kepada anggota lain untuk masuk menyerbu.

Ya, VCD lucah yang ada pada tertuduh hanyalah 5 keping pada
masa itu.

Yang tangkap tertuduh:-

Yusri Hajudin, Joseph Tiang ak Setu, Atom ak Peter, Abd.
Basir”.

And further at page 16 of the Record of Appeal, lines 15 to 20 –

“Ingin membuat penukaran, serah VCD 5 keping kepada
tertuduh. I open the plastic. I the one “who bring
these 5 VCD to the shop.

Selepas buka plastik soya tunjukkan kepada OKT, toleh ke
belakang dan tunjuk isyarat dan mereka pun masuk.

Setuju, pegawai KDN ambil 5 keping VCD tersebut.

Senarai rampasan saya tak pasti”.

From the aforesaid evidence, the Court is again left in a state of uncertainty and doubt as to whether the number of VCDs seized from the Accused were 5 or 18 in number.

Furthermore, the Court is left in a state of doubt as to whether the 5 VCDs brought to the Accused”s shop to be exchanged belonged to PW4 or the Accused in the light of the following evidence. PW4 testified that he purchased 5 VCDs from the Accused 3 days before the raid (15.11.2002).

Notwithstanding that PW4 said that he kept the 5 VCDs in a locked locker, however he admitted that he did not prepare any search list listing the titles of the said 5 VCDs purchased because the case was under investigation, neither were the titles of the 5 VCDs recorded in his ID and he candidly admitted that he did not hand them over to the Investigating Officer because the investigation was not completed and what he did with the 5 VCDs, nobody would know. To make matters worse, there is no proof of purchase in the form of any receipt.

Lastly, the issue of non-compliance of Section 36 of the Act. Section 36 of the Act states –

“36. (I) Where any seizure is made tinder this Part,
the Enforcement Officer or police officer making the
seizure shall prepare a list of every film, film-publicity
material, book, document or other thing seized and of the
place in which it is found and shall sign the list”.

The Defence had cited a dictum from Raja Azlan Shah (as His Highness then was) in the case of San Soo Ha v PP [1968] 1 MLJ 34 wherein at page 36, His Lordship opined –

“In my view, the provisions of the section are to be
strictly followed by the extent it is possible to ensure that the
incriminating articles obtained as a result of the search -were
recovered as alleged and leaves no room for doubt and to exclude
the possibility of any concoction or malpractice of any kind.
”

Following this passage the Defence had based on Section 36 of the Act which provides that where any seizure is made, the Enforcement Officer j making the seizure shall prepare a list of every film, submitted the importance of complying with the mandatory requirement of preparing a search list.

On this issue, with due respect to both Mr. Slew Chen Fui and Mr. Roger Chin, I find that they have not quoted the relevant passage in San Soo Ha”s case (ibid) in toto and therefore they have misconstrued what was the ratio decidendi. The issue before the learned Judge then was whether the accused was prejudiced as the search officer had failed to prepare a search list in compliance with s.64 of the CPC. Apart from the passage quoted above, the learned Judge further said –

“This section bears some resemblance to s 103 of the Indian
Criminal Procedure Code which is more exhaustive than ours.
Conviction or acquittal of an accused person invariably
depends upon the credibility of witnesses as assessed by the
trial court and never on the question whether a particular legal
procedure has been compiled with. The most that can be said about
the failure to comply with the provision relating to search list
is that it may cast doubt upon the bona fides of the parties
conducting the search and accordingly afford ground for
scrutiny; but if after close scrutiny the court arrives at the
conclusion that the stolen articles were recovered from the
possession of the accused person, it is obviously no defence to
say that the evidence was obtained in an irregular manner. There
is nothing in the law which makes such evidence inadmissible.
(SeeBashir v Emperor; AIR 1932 All 185. Bhattacharjee v Emperor
AIR 1940 Cal 85 ). In the present case the learned president
had explored the evidence and came to the conclusion that the
stolen articles were recovered from the possession of the
appellant. I am therefore unable to see how the failure to
prepare a search list by itself would entitle the appellant to an
acquittal”.

(Emphasis added)

Based on the emboldened portion taken from the passage quoted above, the principle to be gleaned is the effect of non-compliance of the provision governing a search list merely cast doubt on the bona fides of the parties conducting the search and it then becomes incumbent on the trial judge to scrutinise the evidence further whether a prima facie case has made out.

In the context of the present case, the identity of the 18 VCDs is central to proving that the Accused had possession of them and the absence of the listing of each of the titles of the 18 VCDs greatly weakens the case for the Prosecution.

2nd Ground

Under the 2nd Ground the Prosecution submitted that the learned Magistrate had erred in law and in fact when he came to his finding that the prosecution has failed to prove that all of Exhibit P1, i.e. the remaining 14 VCD (video cakera padat) seized are obscene films and disregaFded PWS”s evidence that the result of a screen test conducted on the seized items has shown that all these items are obscene films.

Under the 2nd Ground, in my view, it would be unsafe for the Court to solely rely on PW5″s evidence that he had conducted a screen test on all the 18 VCDs and that they were all obscene films because I find that Exhibit P5 which was prepared by him in respect of the 18 VCDs handed to him lacked evidential value and besides there was a material contradiction as from whom he received the 18 VCDs (discussed earlier).

Therefore, the screening of each and everyone of the 18 VCDs is necessary to determine whether they were obscene films becomes critical. Here as per the finding of the learned Magistrate not only were only 4 VCDs screened but unfortunately the titles of 10 the 4 VCDs were not even identified. Hence, there is no evidence before the Court of which of the 4 VCDs out of the 18 VCDs Exhibit P1 (A-R) were of obscene material and neither was there proof whether the remaining 14 VCDs were of obscene material or otherwise.

I agree with the Defence that the learned Magistrate should not be faulted just because he had allowed the Prosecution”s application to conduct random screening. In my opinion the permission granted by the learned Magistrate is not tantamount to a waiver of the burden empJaced on the Prosecution to prove each and every essential ingredient of the charge for purposes of establishing a prima facie case. It is the duty of the Prosecution throughout to establish a prima facie case and it is not for the learned Magistrate, as pointed out by the Defence, to tell them as to the correct procedure to be adopted.

3rd Ground

Under the 3rd Ground, the Prosecution contended that the learned Magistrate had erred in law and in fact when he considered failure to prove which one of the items seized is obscene is a fatal blow to the Prosecution”s case.

In my view this 3rd ground is intertwined with the 2nd ground above and therefore I do not propose to deal with it again.

4th Ground

Basically under the 4th Ground, the Prosecution is urging the Court to invoke s.158 of the CPC and to amend the charge to 4 VCDs instead of the current 18 VCDs. Here, I am in agreement with the Defence that this ground cannot be sustained. To amend the charge to possession of the 4 VCDs entails the Court to be satisfied that a prima facie case has been made out i.e. the Prosecution has proved beyond reasonable doubt that the Accused had in his possession the 4 VCDs and that the 4 VCDs was of obscene material. However, as I have explained earlier this is woefully lacking.

Conclusion

For all the foregoing reasons, I find there are no grounds for me to interfere with the findings of the learned Magistrate. I affirm the decision of the learned Magistrate and the appeal of the Appellant against the Accused”s acquittal and discharge without the 5 defence being called is hereby dismissed.

Syarifuddin bin Hj Abdul Rasa (DPP, Jabatan Peguam Negara), Slew Chen Fui (Awang Chua Voon Ting Ronald & Co)

LOAD-DATE: 03/17/2006