The Edge Court Judgments Report

Friday 26 Apr 2024

This article first appeared in The Edge Malaysia Weekly on September 12, 2022 - September 18, 2022

This monthly report is compiled and briefly summarised by a group of lawyers on a voluntary basis for the benefit of readers of The Edge. Please consult your own lawyers if you need advice on the cases, issues and related matters highlighted here.

ADMISSION OF ADDITIONAL EVIDENCE AFTER TRIAL

The Federal Court (‘FC’) reiterates and illuminates further upon the established cardinal rules and principles relating to the admission of additional evidence after trial

The law of evidence consists of a body of rules and legal principles governing the proper administration of civil and criminal proceedings. It concerns facts that are legally relevant to the issues in a case and their admissibility as evidence to prove the existence or non-existence of facts. The body of rules and legal principles were developed and refined over the centuries. While many of the rules are found in the Evidence Act 1950, it is not exhaustive of the law of evidence.

The cardinal rule in litigation and the administration of justice is that a party must bring forth all evidence, including evidence that are obtainable through the exercise of reasonable diligence, to prove his case. This cardinal rule is described by the principle that there must be finality to litigation, or that a party cannot be allowed to fight his case by instalments. Otherwise, it is impossible to construct and maintain a rational system of justice. The absence of the cardinal rule, or its lack of enforcement, is a recipe for chaos in the administration of justice. At the other extreme, an absolute bar against additional evidence may not be fair in appropriate cases. Thus, rules and legal principles exist to determine when additional evidence may be admitted.

Issues

Where the trial of a civil or criminal matter has been concluded and judgment given by the trial court or the trier of facts, may additional evidence (‘Additional Evidence’) be admitted on appeal? If so, under what circumstances can the Additional Evidence be admitted? These issues came before the FC in Dato’ Sri Mohd Najib bin Hj Abd Razak v Pendakwa Raya (Broad Grounds of Judgment dated 16.8.2022).

Case summary

Dato’ Sri Mohd Najib bin Hj Abd Razak (‘Appellant’) filed three motions to adduce Additional Evidence pending his main appeals in the SRC case (‘Motion’). The Motion sought leave of the FC to adduce Additional Evidence pursuant to s 93(1) of the Courts of Judicature Act 1964 (‘CJA’), a statutory rule conferring discretion upon the FC to admit Additional Evidence. Section 93(1) of the CJA reads:

Additional evidence

93(1) In dealing with any appeal in a criminal case the Federal Court may, if it thinks additional evidence to be necessary, either take such evidence itself or direct it to be taken by the High Court.

Summary of Appellant’s arguments

The Appellant claims that the Additional Evidence, if allowed to be adduced, would establish a conflict of interest giving rise to a real danger of bias on the part of the learned Judge of the High Court (‘Justice Nazlan’) and on that ground, declaration was sought that the entire SRC trial be declared null and void and for the FC to consider relief(s), including a retrial. The conflict of interest and/or bias, it was submitted, arose from Justice Nazlan’s former role as Group Counsel (‘GC’) and Group Company Secretary (‘GCS’) of the Maybank Group of Companies, including Maybank Investment Berhad (‘MIB’). The Additional Evidence consisted of documentary and viva voce evidence. It was submitted that (a) the statutory threshold in s 93 of the CJA; and (b) the common law rules applied in Malaysia for the admission of Additional Evidence (relying on the English Court of Appeal decision in R v Parks (‘Parks’), have been met.

Summary of Respondent’s arguments

Learned Counsel for the Respondent argued to the contrary — that allowing the Additional Evidence to be taken runs afoul of the important concept of finality of litigation, the evidence could have been obtained by reasonable diligence and, in any event, the Additional Evidence is hearsay and thus not credible.

Broad Grounds of Judgment

(1) Admission of Additional Evidence — the applicable rules and principles

The FC held that the statutory terms of s 93(1) of the CJA is clear — the admission of the Additional Evidence is a matter of judicial discretion to be exercised by reference to judicial precedent. In this respect, the established judicial precedent is that discretion to admit Additional Evidence is based on rational principles. It cannot be exercised unless four cumulative elements are satisfied and the affidavit in support of the application must state exactly what the witness sought to be called is prepared to say if he is called to give additional evidence. If any one of the four elements is not satisfied, Additional Evidence cannot be admitted.

Top row, from left: Tengku Maimun CJ, Abang Iskandar CJSS, Nallini Pathmanathan FCJ

Second row: Mary Lim and Mohammad Zabidin FCJJ

[12] The test to adduce fresh evidence under [s 93 of the CJA] is … gathered from the words ‘if it [meaning the Court] thinks additional evidence to be necessary’. Admission of such evidence is thus a matter of judicial discretion. Judicial discretion is in turn exercised by reference to decided judicial precedent. The landmark case in this regard is the decision of the English Court of Appeal in Parks … cited with approval and applied by this Court most recently in Dato’ Sri Mohd Najib bin Haji Abd Razak v Pendakwaraya … (‘Najib Razak’).

[13] The four cumulative elements in Parks … are these:

(i) Firstly, the evidence that is sought to be called must be evidence which was not available at the trial [‘1st Necessary Element’].

(ii) Secondly, and this goes without saying, it must be evidence relevant to the issues [‘2nd Necessary Element’].

(iii) Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but it must be evidence which is capable of belief [‘3rd Necessary Element’].

(iv) Fourthly, the court will after considering that evidence go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the applicant if that evidence had been given together with the other evidence at the trial [‘4th Necessary Element’].

[14] …the elements being cumulative means that if any one element is not fulfilled, then the application for fresh or additional evidence will fail. The test is necessarily stringent given the need to preserve finality in litigation.

[15] The four cumulative elements in Parks are actually a reformulation of the three elements stated by Lord Denning in Ladd v Marshall … [‘Ladd’] Thus, the first element of Parks should be read together with Lord Denning’s first element … that ‘it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial’.

[16] … the affidavit in support of a motion to adduce fresh evidence must also state exactly what it is the witness sought to be called is prepared to say if he is called to give additional evidence.

Chief Justice Tengku Maimun

(2) Application of the Law to the Facts

The documentary evidence sought to be adduced as Additional Evidence relates to the documents of the Maybank Group of Companies. One of the documents was the minutes of 1MDB’s board of directors meeting dated 6.9.2010 (‘Document DSN-16’). In Document DSN-16, the ‘supposed involvement of MIB was mentioned’. DSN-16 was served or given to the Appellant on 4.11.2019 in the 1MDB

trial, a month before the Appellant commenced his defence in the SRC trial on 3.12.2019. Another document sought to be introduced was document DSN-14 — a letter written by MIB to 1MDB (‘Document DSN-14’). It was conceded by both parties that they knew, even before the commencement of the SRC trial, Justice Nazlan’s position as GC and GSC of the Maybank Group of Companies.

(2.1) 1st Necessary Element not satisfied

The party seeking leave to adduce Additional Evidence must show that the availability of the document was not discoverable by reasonable diligence. The FC pointed out that Document DSN-16 was served on the Appellant in the 1MDB trial. From Document DSN-16, it was open to the Appellant to ask for any document related to Document DSN-16 but the Appellant did not.

[28] Both Parks and Ladd as well as the slew of cases decided thereafter emphasise the point of ‘availability’ of the evidence and whether it was discoverable by reasonable diligence by the party seeking leave to adduce the additional evidence …

[29] [The respondent] had served DSN-16 on the applicant in the 1MDB trial on 4.11.2019 … a month before the defence commenced its case in the SRC trial on 3.12.2019. [The] counsel for the applicant in the 1MDB trial and the SRC trial was the same... DSN-16 was thus available to the applicant for use in his defence in the SRC case and the supposed involvement of MIB which is mentioned in DSN-16 could have been raised before Justice Nazlan, for both parties conceded during argument that they knew, even before the commencement of trial, of Justice Nazlan’s position as GC and GSC of the Maybank Group of Companies before his elevation to the Bench.

[30] … the same can be said of DSN-14. Since the test is one of availability, and DSN-16 was available to the applicant even if he was not served in relation to the present SRC case, he could have obtained DSN-14 or raised suspicions regarding the possible existence of DSN-14 to the respondent by reference to DSN-16. Specifically, upon examining DSN-16 which states the proposed role of MIB and its subsidiary… it would have been open to the applicant to then ask for any evidence related to DSN-16 to be produced to him, which would mean that DSN-14 could have been obtained by reasonable diligence. It is not as if Justice Nazlan’s previous employment with the Maybank Group of Companies was a secret to any party …

[31] … the first element … has not been satisfied. As the test is cumulative, we need not consider whether these pieces of evidence have met the other three elements of Parks – apart from our further findings below. This is consistent with the decision of the Supreme Court in Lau Foo Sun v Government of Malaysia … where an application to adduce additional evidence was dismissed solely on the ground that it could have been obtained by use of reasonable diligence.

(2.2) 2nd Necessary Element not satisfied

The FC held that the entirety of the Additional Evidence sought to be adduced are irrelevant to the seven charges that were preferred against the Appellant and whether the findings of Justice Nazlan are correct or not in relation to the abuse of power are questions for the main appeals. In respect of the Motion, it is unconvincing ‘that the proposed evidence establishes anything to the effect that Justice Nazlan’s findings were in any way mired by any discreet or undisclosed personal interest on his part on the establishment of SRC International Sdn Bhd and its subsequent operation such as to render him a conflicted or biased judge.’

[33] The question of relevancy is inextricably linked to the seven charges preferred against the applicant. The first charge alleges abuse of power. The next three charges allege criminal breach of trust while the last three charges relate to money-laundering. The crucial question insofar as relevancy is concerned is whether Justice Nazlan’s employment with the Maybank Group of Companies and his role therein is in any way relevant to the seven charges to the point that there may be a real danger of bias.

[34] In relation to the first charge, that is, the abuse of power charge, the allegation is that the applicant had abused his position as the Prime Minister of Malaysia and Minister of Finance to secure Government guarantees for a loan by Kumpulan Wang Persaraan (Diperbadankan) (‘KWAP’) amounting to RM4 billion to be issued in favour of SRC … with the applicant’s further view (as alleged) to channelling therefrom RM42 million to his own personal advantage.

[36] … we fail to see how any of the proposed additional evidence relate to the first charge on abuse of power … how is MIB and by extension Justice Nazlan’s involvement in any way material to the question of abuse of power on the part of the applicant as Prime Minister and/or Minister of Finance? ...

[38] … we [do not] find anything in the Motion that Justice Nazlan had any particular knowledge or was inspired by any extraneous considerations gained from his previous employment with Maybank to sustain any of his factual or legal findings in respect of the seven charges …

[39] The next point … is that Justice Nazlan knew about the source of the monies when they were allegedly misappropriated by the applicant from SRC … As conceded by Tuan Haji Hisyam in the course of his submission on the Motion, it is trite law that in cases involving criminal breach of trust, the source of the misappropriated monies is not relevant. What is important to establish as an ingredient of the charge of criminal breach of trust is that the accused had dominion over the funds and that they were misappropriated ... We are not convinced that Justice Nazlan made his findings based on anything other than the evidence on record … there is no nexus between Justice Nazlan’s previous employment with Maybank and the charges against the applicant so as to suggest conflict of interest, giving rise to bias. Whether or not Justice Nazlan’s findings are correct, on the evidence on record, is the subject for consideration in the main appeals.

(2.3) The allegation of bias

The FC was not persuaded that the Additional Evidence disclosed any nexus between Justice Nazlan and the charges preferred against the Appellant. Additionally, the affidavits in support of the Motion failed to ‘state exactly what it is the proposed additional evidence, both documentary and oral, will prove or say in relation to the charges brought against him’ and in this sense, the Motion ‘is a call by the applicant on the Court to investigate on possible bias rather than to act on any reliable or relevant evidence that can establish any real danger of bias’.

ADJOURNMENT OF HEARINGS AND THE AdMINISTRATION OF JUSTICE

Federal Court (‘FC’) holds that there is no free-standing right to adjourn or vacate scheduled dates fixed for hearing of cases

The fixing of dates for trials and for hearing of appeals, whether in respect of civil or criminal cases, is carried out during case management (‘CM’) by the Deputy Registrar (‘DR’) of the Court. When a CM date is fixed, the lawyers representing the respective parties involved will attend before the Deputy Registrar. A case may be case managed more than once to ensure expeditious judicial disposal and the DR will not fix hearing dates until the parties are ready to proceed to trial or hearing. When the parties are ready to proceed, the rule of thumb is that the DR will fix hearing on dates where both sets of lawyers representing the respective parties are available to attend to hearing.

Issue

Is there an unqualified or free-standing right on the part of a party to ask for adjournment of a case scheduled for hearing on the dates fixed during CM because the accused person had appointed a fresh set of lawyers to represent him and that the fresh set of lawyers require more time to study the case? Or, is it a right in persuasion to make a request and which request will be granted in appropriate cases at the discretion of the Court? This sole issue arose in the FC in Dato’ Sri Mohd Najib bin Hj Abd Razak v Pendakwa Raya (Broad Grounds of Judgment dated 16.8.2022).

Case summary

After the three motions to adduce further evidence (see above) were dismissed, the same five-member Bench of the FC directed the parties to proceed with the appeals fixed for hearing. However, learned Counsel for the Appellant applied to adjourn the hearing to a later date in three to four months because ‘he and his team only recently took over and that the appeals — spanning tens of thousands of documents — disclose strong serious points to be canvassed and that his team be given adequate opportunity to do a good job’. In the broad grounds of judgment, the FC first set out backdrop and procedural history of the adjournment application under consideration.

8.4.2022: On this CM date, the minutes showed that the parties were advised that the hearing would proceed on the dates fixed (15.8.2022 – 26.8.2022) (‘Scheduled Dates’)

29.4.2022: The Registry of the FC gave notice to all parties that the hearing would proceed on the Scheduled Dates.

26.7.2022: The FC received a letter from the Appellant’s former solicitors, Messrs. Shafee & Co (‘26 July Letter’), that the Appellant in a letter dated 25.7.2022 had discharged them as the Appellants’ solicitors and had appointed Messrs. Zaid Ibrahim Sufian TH Liew and Partners (‘ZI’) to take over conduct of the appeals.

26.7.2022: ZI wrote to the FC confirming the change of solicitors and requested for an urgent CM and also sought permission to participate in a CM that was already fixed for 29.7.2022. ZI also stated their intention to file a motion to adjourn the hearing of the appeals on the Scheduled Dates as ‘a wholly new team has taken over conduct’ of the appeals.

28.7.2022: The DR of the FC replied to ZI (a) confirming CM on 29.7.2022; and (b) informing that the Court’s direction that the hearing of the appeals would proceed on the Scheduled Dates. This meant the adjournment was refused.

29.7.2022: Tan Sri Shafee Abdullah attended the CM despite having been discharged by the Appellant on 25.7.2022. He also informed the Court that the digital copies of the records of appeal had been shared with ZI on 22.7.2022, notwithstanding that the discharge was only on 25.7.2022.

Decision

In a unanimous decision delivered by Tengku Maimun CJ (Abang Iskandar CJSS, Nallini Pathmanathan, Mary Lim and Mohamad Zabidin FCJJ concurring) in the broad grounds of judgment (‘Broad Grounds’), the FC was not persuaded and declined the application for adjournment. The FC held that whether to adjourn or not to adjourn a hearing is a matter of discretion of the Courts, which will be exercised appropriately ‘after a proper and wholesome consideration of the facts and circumstances of the case’. The primary reason advanced by learned Counsel for the Appellant, put bluntly, is that ‘the defence seeks an adjournment of these appeals for the simple reason that they are not prepared’. The FC pointed out that the procedural history revealed that the parties were reminded no less than four times that the appeals would be heard on the Scheduled Dates. In respect of the request to adjourn the hearing to a later date in three to four months because more time was required by the new team of lawyers, the FC took note of the practice and etiquette rules governing the legal profession that an advocate and solicitor shall not accept a brief unless he is reasonably certain of being able to appear and represent the client on the required day.

[13] It is beyond settled that though the Courts have absolute discretion to grant or refuse adjournments, such discretion must be exercised judiciously. What is judicious hinges on a proper and wholesome consideration of the facts and circumstances of the case before making a decision.

[14] In the context of this case, we accept unreservedly the notion that the right to a fair trial is part and parcel of the right to life and personal liberty guaranteed by Article 5(1) of the Federal Constitution …The right of the accused to meaningful legal representation by counsel of his choosing is another important component of the right to a fair trial. This much is also apparent from Article 5(3) of the Federal Constitution but we hasten to add that this right is not absolute …

[16] … we agree that in appropriate cases, where counsel is not ready to proceed for legitimate reasons, the Court should be minded to adjourn a cause or matter. We do not think this is the case here.

[17] … from our narration of the procedural history on the fixing of these appeals, all parties to this matter, including the appellant, were well aware that the appeals had been fixed for hearing on 15-26.8.2022 since April 2022 and the request for an adjournment on the same ground had been refused.

[18] In this regard, we find Rule 6(a) of the Legal Profession (Practice and Etiquette) Rules (‘1978 Rules’) most relevant …

“Rule 6. An advocate and solicitor not to accept brief if unable to appear.

(a) An advocate and solicitor shall not accept a brief unless he is reasonably certain of being able to appear and represent the client on the required day.

[19] Thus, where counsel has accepted a brief, he should be deemed ‘reasonably certain of being able to appear and represent the client on the required day’. The 1978 Rules … recognise the general disposition of the Courts in this country to disfavour adjournments unless cogent reasons are provided …

[20] The 1978 Rules … are … binding on members of the Bar who are obliged to comply with them. And, they are indicative of the fact that any disciplined lawyer such as the counsel for the appellant would not have accepted a brief with dates already fixed for hearing unless he was prepared.

Chief Justice Tengku Maimun

According to the FC, the 26 July Letter obviously showed ‘that the appellant took it upon himself to discharge his solicitors to the present ones, [ZI] who in turn appointed Tuan Hisyam as lead counsel’. The Appellant had in full awareness of the Scheduled Dates elected to discharge his former solicitors. He should not be allowed to turn around and say his new lawyers are not ready to proceed with the hearing.

[21] … the appellant having been well aware of the dates fixed for hearing elected to discharge his former solicitors and appoint Messrs. Zaid Ibrahim and Tuan Haji Hisyam Teh as his solicitors and counsel respectively. This is his right to do so but he cannot, after having made that decision, turn around and say that his new lawyers are not ready to proceed with the hearing of the appeals. The new lawyers too, having accepted the brief, are not entitled to say they need more time to prepare knowing fully well that the dates had been fixed well in advance.

Considering the entire circumstances, the FC was not persuaded that cogent and reasonable grounds had been advanced in support of the adjournment, citing case precedent, adverting to the constitutional rule that all persons are equal before the law and the Rule of Law demands that the Appellant be treated just like any other accused and the Arahan Amalan Ketua Hakim Negara No 2/2003, which states that cases involving public interest, amongst others, must be prioritised for the purpose of disposal.

[23] … we recall the following words of Harun J from Public Prosecutor v Mohtar bin Abdul Latiff …:

“In any criminal trial, there are three parties, the Court, the prosecution and the defence. If dates of hearing are to be fixed at the convenience of all three parties, then trial dates will be fixed at some considerable time hence. There is of course no guarantee, as happened in this case, that the trial will go on as scheduled on the date fixed, if everyone’s convenience is taken into account. The general rule, therefore, has always been that trial dates are fixed on a first come first served basis. This is fair to all concerned. Public funds are not wasted on idle courts when there is so much work to do.”

[24] The stark reality is that considerable public funds would be wasted if granting an adjournment in a case of this kind was an easier option. Article 8 of the Federal Constitution [All persons are equal before the law and entitled to the equal protection of the law] and the Rule of Law demand that the appellant be treated just like any other accused. As such, we state again that while the appellant is entitled to his right to change his counsel, he is not entitled to make this choice at the expense of the Court, the prosecution or the entire justice system …

[26] Further, the time taken on this case, especially the number of days fixed for hearing, means many other criminal cases and accused persons have had to wait their turn for their appeals to be heard. Justice delayed in this case is also justice denied to other accused persons … we echo the following words of Richard Talalla J in Lai Cheng Chong v Public Prosecutor …

“At no time has it been truer to say that justice delayed is justice denied. It cannot be disputed that at this point of time, justice is so delayed in our courts as to amount to denial. There is a huge backlog of cases. Statistics indicate that a main cause for this unfortunate situation is adjournment and postponement of trials on the date appointed for trial, largely occasioned by counsel applying for the same on a variety of grounds, most of them avoidable if counsel’s affairs were managed fairly and reasonably, bearing in mind counsel’s duty not only to the client but also to the court and the public at large.”

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