Kanawa Gi Case

[2013] 1 LNS 949 Legal Network Series

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR(BAHAGIAN JENAYAH)

[PERMOHONAN JENAYAH NO. 44-147/148/149-08/2012]

1. KANAWAGI A/L SEPERUMANIAM(NO. KP: 450112-07-5241)

… PEMOHON-PEMOHON

2. DINESH KANAYAJI A/L KANAWAGI(NO. KP: 781121-07-5119)

DAN

PENDAKWA RAYA … RESPONDEN

DECISION

1. The applicants, Kanawagi a/l Seperumaniam (“the 1st applicant”) and DineshKanavaji a/l Kanawagi (“the 2nd applicant”) have, vide three CriminalMiscellaneous Applications (44-147-08/2012, 44-148-08/2012 and 44-149-08/2012), all dated 27.8.2012, applied to strike out all the charges framed againstthe two applicants in Kuala Lumpur Sessions Court Arrest Cases No. 62-292-03/2012, 62-293-03/2012, 62-294-03/2012, 62-295-03/2012 and 62-296-03/2012.

2. The Court notes that-

a. The application in respect of 44-147-08/2012 is, inter alia, to strike outthe 1st charge against the 1st applicant in 62-292-03/2012 as well asthe charge against the 2nd applicant in 62-296-03/2012;

b. The application in respect of 44-148-08/2012 is, inter alia, to strike outthe 2nd charge against the 1st applicant in Kuala Lumpur SessionsCourt Case No. 62-295/03/2012;

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c. The application in respect of 44-149-08/2012 is, inter alia, to strike out-

i. The 2nd and 3rd charges against the 1st applicant in KualaLumpur Sessions Court Case No. 62-292/03/2012;

ii. The 1st, 2nd and 3rd charges against the 1st applicant in KualaLumpur Sessions Court case No. 62-293/03/2012;

iii. The 1st, 2nd and 3rd charges against the 1st applicant in KualaLumpur Sessions Court case No. 62-294/03/2012; and

iv. The 1st charge against the 1st applicant in Kuala LumpurSessions Court Case No. 62-295/03/2012.

3. From the 3 applications and the affidavits in support that have been filed, theCourt notes that the main or principal grounds for the applications are as follows:

i. Prosecutorial misconduct in filing the charges in order to bolsterthe personal interests of private parties;

ii. Mala fide and/or sub judice in filing these charges in light of theJohor Bahru High Court decision;

iii. Misjoinder of charges contrary to section 164 of the CriminalProcedure Code.

Does the Court Have Jurisdiction to Strike Out the Charges? If Yes, WhatAre the Circumstances When this Jurisdiction Can Be Exercised?

4. In considering these three applications, the first order of the day would be toconsider whether this Court has jurisdiction to strike out the charges. In submittingthat the Court has inherent powers to strike out inappropriate charges, learnedcounsel for the applicants has referred to a number of English authorities such asConnelly v. Director of Public Prosecution [1964] AC 1454, R v. HorseferryRoad Magistrate’s Court ex parte Bennet [1994] 1 AC 42 and Regina v. TelfordJustices, Ex parte Badhan [1991] 2 WLR 866. In the Supreme Court case of

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Karpal Singh & Anor v. Public Prosecutor [1991] 2 MLJ 544, Abdul HamidOmar LP, in warning of the consequences of relying on the English law concept,had stated at page 548 as follows:

“Perhaps it is appropriate that we now pause to consider theconstitutional consequences of relying on the English commonlaw concept. Unlike UK, the Constitution of the Federation whichis a written law is specifically declared to be the Supreme law ofthe land. Also, it is to be noted that UK has no criminalprocedure code as enacted by our legislature. For ourimmediate purpose we wish to refer to art. 145(3) of theConstitution which states that the Attorney General shall havepower, exercisable at his discretion, to institute, conduct, ordiscontinue any proceedings for an offence, other thanproceedings before Syariah Court etc. The discretion vested inthe Attorney General is unfettered and cannot be challengedand substituted by that of the courts. The reasoning and logicbehind such contention is well illustrated in the cases of PP v.Lee Tin Bau, Long bin Samat & Ors v. PP , PP v. Datuk Harunbin Haji Idris and Ors and Poh Cho Ching v. PP .”

5. In Karpal Singh & Anor v. Public Prosecutor (supra), His Lordship went on toconsider the relationship between our Criminal Procedure Code and the Englishcommon law. The Criminal Procedure Code (Amendment and Extension) Act1976, which came into force on 9.1.1976, is applicable to the whole of Malaysiaand was intended to be an exhaustive pronouncement of the criminal procedure.Section 5 of the Code which is indicative of the principles to be applied by localcourts provides for English law relating to criminal procedure to be applied whenthere does not exist any special provision on the matter either in the Code or anyother existing law. English law is applicable only insofar as it does not “conflict orbe inconsistent with this Code and can be made auxiliary thereto.” As such, thepronouncements of the Code leave no lacuna under normal circumstances.

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6. In that case, the Supreme Court went on to say that whilst there is no provision inthe Code for striking out proceedings or acquittals without hearing all the evidencethat the prosecution has the capacity to offer, however if “any party feels that thecharge and consequent proceedings are illegal on the face of the record, hisremedy is to take up appropriate proceedings before a High Court to quash thecharge and the whole proceedings producing evidence to the satisfaction of thetrial judge to adopt in such a case.”

7. The learned Deputy, on the other hand, has brought to the attention of the Courtthe case of Chew Wai Keong v. Pendakwa Raya (Criminal Application No. 44-10-2010) where the learned Judicial Commissioner Teo Say Eng was dealing with anapplication by an applicant for an order of acquittal and discharge or for strikingout of a charge against him under section 3 of the Kidnapping Act 1961. In thatcase as in our present case, there was an application to strike out (“batalkan”)charges. His Lordship noted that the words “striking out” are not found in ourCriminal Procedure Code. Thus, what the applicant was in fact praying for was anorder of acquittal and discharge.

8. In that case, the learned Judicial Commissioner had gone on to consider whetherthe High Court had inherent power to acquit and discharge the applicant on theKidnapping charge or strike out the charge against him on the grounds as raisedby the applicant. What then is this “inherent power”? In the case of Dato’ SeriAnwar Ibrahim v. PP [2010] 7 CLJ 397, Her Ladyship Heliliah Mohd Yusof was ofthe view that inherent jurisdiction is part of the court’s power to do all the thingsreasonably necessary to ensure fair administration of justice within its jurisdictionsubject to existing laws including the Constitution. Inherent powers are not derivedfrom statute “but are intrinsic in superior courts which are necessary to preventinjustice or its process being obstructed or abused”.

9. Whilst our own Federal Court has recognised that High Courts have inherentpowers, however, it cannot be denied that the scope of such inherent power isvery limited. The exercise of such inherent power to prevent injustice or an abuseof the process of the court is subject to the following conditions:

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i. The inherent powers cannot be invoked to override an expressprovision of law or when there is another remedy available (seeKarpal Singh (supra)); and

ii. Such inherent powers are strictly confined to procedural mattersonly (see Dato’ Seri Anwar Ibrahim v. PP (supra)).

10. In light of the above, the Court is of the view that whilst this Court has the inherentpower to set aside and quash a charge which is mala fide, oppressive and anabuse of the process of Court or where there has been a miscarriage of justice,this inherent power must be exercised with the greatest of caution.

Reasons for the Applications

11. What then are the grounds or reasons for the applicants’ applications in this case?They can be summarised as follows:

i. There is an abuse of the process of court when the present 11criminal prosecutions were launched in the Kuala LumpurSessions Court when the same issues are already before theJohor Bahru High Court;

ii. The scope and applicability of clause 7.3(b) and 7.4 of theCourt approved trust deed is up for consideration before asuperior court;

iii. The status of the RM 16,554,111.92 paid out to Messrs Khana &Co pursuant to a High Court order dated 5.6.2000 to be appliedon certain specified terms is also up for consideration before asuperior court;

iv. The Kuala Lumpur High Court has declared the 27 units ofcondominium to be trust property. The applicant raises thequestion of whether the Sessions Court can say otherwise;

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v. Whether the entire matter is sub judice? Whether DPP Vigneshhad acted in contempt of the Johor Bahru High Court when helaunched the prosecutions in 2012?; and

vi. There was a delay of some 12 years from the closure of theJohor Bahru High Court case and Federal Court matters to thedate of the charging the applicants in the Kuala LumpurSessions Court. Whether this delay until the deaths of the 2 TokBatins/Trustees was an act of abuse of court and a denial of fairtrial to the applicants.

12. The Court notes that a large portion of the affidavits and documents in this casewere based on the alleged conspiracy and collusion of DPP Vignesh Kumar withSuperintendent Thaveegan s/o Arumugam, Ng Eng Kiat, Ragumaren, RenuSudashini and ex-DPP Devanandran in order to frame the 1st applicant. The Courtdoes not intend to into detail about all these allegations except to say that thereare a great number of allegations, some of which are very serious in nature.These allegations can broadly be grouped as allegations pertaining to theconspiracy theory and secondly, mala fide and sub judice in view of similarmatters or issues either having been decided or coming up for hearing beforeother courts.

13. In respect of the conspiracy theory, the Court is of the view that the applicants’various statements and allegations, albeit in affidavits, is no substitute for actualevidence in court, where the applicants and their witnesses could be questionedas to basis and proof of such evidence. The applicants would be able to cross-examine the prosecution witnesses to elicit facts in support of their allegations ofconspiracy and mala fide against the applicants. The Court is thus of theconsidered view that whatever allegations of the applicants in respect of theconspiracy theory should be adduced by the applicants during the course of thehearing in the Sessions Court.

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14. The Court has also considered the submission of the applicants that many issuessuch as the scope and applicability of clauses 7.3(b) and 7.4 of the Trust Deed,the status of the RM 16,554,111.92 paid out to Messrs Khana & Co pursuant tothe 5.6.2000 High Court order and how the monies were to be applied are up forconsideration before a superior court.

15. The Court notes that the case of Saling bin Lau Bee Chiang & Ors v. KanawagiSeperumaniam & Ors (MT-1 22-228-2009) as well as Amat a/l Loyut & 162 orsv. Kanawagi Seperumaniam (24NCVC-2983-11/2012) were both civil cases.Whilst it is true that the two decisions in Saling bin Lau Bee Chiang & Ors wereinterlocutory decisions, however it must also be noted that the “final order” in Amata/l Loyut & 162 Ors was to the effect that the withdrawal of the RM 7 million fromthe Tabung Amanah Linggiu Valley Orang Asli (Jakuns) Trust were made for thepurchase of the 27 condominiums and for the benefit of the 424 beneficiaries ofthe said Trust.

16. Whilst noting the authorities as cited by learned counsel for the applicants inrespect of abuse of process by mounting a collateral attack on a previous findingof a competent court of jurisdiction (Hunter v. Chief Constable of the WestMidlands Police [1982] AC 529; Tractors Malaysia Bhd v. Charles Au Yong[1982] 1 MLJ 320; Dato Mokhtar bin Hashim v. Public Prosecutor [1983] 2 MLJ232, the Court is not persuaded that in this case, the preferring of these criminalcharges against the applicants would amount to an “attempt to re-litigate and re-open an issue conclusively decided in respect of the same proceedings andbetween the same parties”.

17. The Court is unable to see that the civil suits involving the applicants had“conclusively decided” all the issues on which the criminal charges are framed. Atthis juncture, where the criminal hearings have not yet started and evidence hadyet to be adduced, it would be grossly premature for this Court to say that allissues had already been conclusively decided and that there is nothing more tobe decided by the Sessions Court such that to allow the criminal cases to proceedwould amount to an abuse of the process of court.

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18. In this context, the Court does not take lightly Article 145(3) of the FederalConstitution which had conferred powers on the Attorney General to institute,conduct, or discontinue any proceedings for an offence. This power is exercisableat his discretion and is not amenable to review. Whilst this Court has earlieranswered in the affirmative the question of whether it has inherent powers tostrike out a charge, the Court had also cautioned that this inherent power to setaside and quash a charge which is mala fide, oppressive and an abuse of theprocess of Court or where there has been a miscarriage of justice must beexercised with the greatest of caution.

19. In the applicants’ conspiracy theory, much has been made of the role allegedlyplayed by ex-Deputy Public Prosecutors (“DPPs”) Vignesh Kumar andDevanandan. However it cannot be gainsaid that as provided in section 376(3) ofthe Criminal Procedure Code, DPPs work under the general control and directionof the Public Prosecutor. It is indeed questionable whether DPPs would possessthe power and authority to frame charges against persons such as the applicantsmerely based on a desire to frame them without reference to senior officers andthe Public Prosecutor himself. As in every government department, and theAttorney General’s Chambers is no exception, there would be set procedures tofollow. The Court is satisfied that the Attorney General as the Public Prosecutorwould have been satisfied that there was sufficient evidence to prove the offencesbefore the applicants were charged. If, as alleged by the applicants, there is nobasis for the charges that have been framed against them in the Sessions Court,they will, in due course and after due process of law, be found not guilty andacquitted on the said charges. However, at this stage of the criminal proceedings,with the hearing yet to commence, the question that arises is whether the Courtcan, just on the basis of allegations as contained in the affidavits filed, pre-emptand usurp the powers of the Public Prosecutor and strike out the charges.

20. After careful consideration of the applications before me and the authorities ascited by the parties, the Court is not satisfied that this is such a case where theCourt is prepared to invoke its inherent powers to strike out the charges againstthe applicants. The Court is satisfied that based merely on the averments in the

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affidavits; there is insufficient basis for the Court to grant the order as prayed. TheCourt notes that it is still open to the applicants to make representations to thePublic Prosecutor if they are convinced that there is no case against them.However, if such representation fails, the cases and charges must be allowed totake their course without any further impediment so that a fair and just result canbe obtained.

Joinder/Misjoinder of Charges

21. One final issue. Learned counsel for the applicants has raised an issue that therehas been a misjoinder of the charges before the Kuala Lumpur Sessions Courtand that these charges should thus be struck out as being bad in law, and that theapplicants should be discharged.

22. The applicants’ contention is premised on their argument that the 11 charges in62-292-03/2012, 62-293-03/2012, 62-294-03/2012, 62-295-03/2012 and 62-296-03/2012 covers a total period of approximately 9 years from July 2000 to July2009 and that this will run foul of the proviso to section 153(2) which states thatthe time included between the first and last of such dates in a lumping chargeshall not exceed one year. Is there basis in this argument?

23. The law is clear that for every distinct offence, there shall be a separate chargeand every charge shall be tried separately except in the cases where a section164, 165, 166, and 170 applies (section 163 of the CPC). Section 153(2) of theCPC, which deals specifically with charges in respect of offences of criminalbreach of trust and dishonest misappropriation of money, states as follows:

“when the accused is charged with criminal breach of trust ordishonest misappropriation of money it shall be sufficient tospecify the gross sum in respect of which the offence is allegedto have been committed and the dates between which theoffence is alleged to have been committed, without specifyingparticular items or exact dates, and the charge so framed shall

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be deemed to be a charge of one offence within the meaning ofsection 164:-

Provided that the time included between the first and lastof such dates shall not exceed one year.”

24. This consolidation of the various sums in respect of which offences are committedand the various different dates on which they were committed, which learnedcounsel for the applicants have termed “lumping”, is the exception to the generalrule as provided in section 163. There is of course the proviso, namely that thetime between the first and last of such dates in the lumping charge shall notexceed 12 months. Thus applying section 164 and 153(2) together, the Courtunderstands that the correct position in law is that the lumping of various sums oramounts committed in a criminal breach of trust in one charge without specifyingthe exacts dates on which the offences were committed or the exacts amountsinvolved would be deemed to be one offence within the meaning of section164, provided of course that the time between the first and last of such dates shallnot exceed one year.

25. The Court has carefully perused all the 11 charges in this case and find that in allof them, the time between the first and last date in the charges do not exceed oneyear. As such, the Court finds that in respect of each of the 11 separate charges,the lumping of the dates would be in line with the provisions of section 153(2) andeach of the charges would be deemed to be one charge within the meaning ofsection 164 of the CPC.

26. Learned counsel for the applicants has endeavoured to persuade the Court that inthis case, there has been a misjoinder of charges contrary to section 164 of theCPC.

27. The Court notes that on the day that the 1st applicant was charged, the issue ofwhether there had been a misjoinder and whether the charges were defective hadbeen raised before the learned Hakim Mahkamah Sesyen (“HMS”). After hearing

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oral submissions from both parties, the learned HMS had dismissed thepreliminary objection and had ordered all 4 cases to be heard together in line withsection 165 of the CPC. The Court further notes the submission of the learnedDeputy that the HMS had gone on to say that a decision on the joinder would bedecided after the outcome of the matter.

28. The respondent’s application for a joint trial of the 11 charges as contained in 4separate case numbers was made under section 165 of the CPC. As regards theapplication of section 165, the Court can do no better than to refer to the case ofPP v. Ridzuan Kok bin Abdullah [1996] 2 CLJ 346 where Abdul Malik Ishak J (ashis Lordship then was) had clearly set out the legal position as regards section165 of the CPC. And at page 349, His lordship had found as follows:

“Section 165(i) of the CPC lays down the requirements thatthere is one accused person that the offences are committed ina series of acts, that the acts are so connected together as toform the same transaction and, lastly, there are more than oneoffence. To construe whether a number of acts may be soconnected together as to form part of the same transaction, it isessential to show community of purpose or design andcontinuity of action. It is appropriate to say that there is nodefinite formula which may be applied in all situations todetermine whether two or more acts form the same transaction.The best formula is perhaps what was laid down in Amrita LalHazra & Ors v. Emperor [1915] 42 cal 957, especially at p. 983 tothe effect that:

“It is not possible to frame a comprehensive formula ofuniversal application to determine whether two or moreacts constitute the same transaction; but circumstanceswhich must bear on the determination of the question inan individual case may be easily indicated: they arep r o x i m i t y o f t i m e ; u n i t y o r p r o x i m i t y o f p l a c e ,

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continuity of action and community of purpose ordesign .”

(Emphasis added)

29. Whilst the offences with which the applicants stand charged were allegedlycommitted from 2000 to 2009 which would appear not to be so proximate in termsof time, however from the recital of facts as contained in the affidavits it wouldappear that the other factors for consideration such as proximity of place,continuity of action and community of purpose and design have been satisfied. Inthe circumstance, the Court is of the view that the joinder of the charges undersection 165(i) would appear to be in order.

30. The Court is unable to find any merit in the applicants’ submission that the joinderof the 11 charges under section 165(i) would offend section 164 of the CPC. TheCourt is of the considered view that reading the various provisions relating tocharges as found in the CPC together, it is clear that section 163 contains thegeneral rule that for every distinct offence there shall be a separate charge andthat such charge shall be tried separately. The exception to this general rule isfound in sections 164, 165, 166 and 170. The court is of the view that thesituations and circumstances when each of these sections would apply woulddepend on the facts of the individual case. Section 165(i) relied on by therespondent in their application for joinder before the Sessions Court is a totallydifferent provision from section 164 and the Court sees no reason or basiswhatsoever to read them together in the manner as advocated by the applicants.As they are distinct and separate provisions, the Court is unable to read intosection 165 an additional condition that the series of acts which are connectedmust be committed within a space of twelve months. As was decided by ThomsonCJ in the Court of Appeal case of Cheong Sik Kwan v. Public Prosecutor [1959]MLJ 189:

“... the trial of the appellant on the charges on which he wastried was clearly forbidden by section 163 unless it fell within thecases mentioned in sections 164, 165, 166 or 170. It clearly did

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not fall within the case mentioned in section 164, for there weremore than three alleged offences and they were not allcommitted within the space of 12 months. The only exceptionwithin which it could fall is that contained in section 165. Thequestion, therefore, is whether the offences charged werecommitted “in one series of acts so connected together as toform the same transaction.” If they were committed in the courseof a series of acts then section 164 has no application and it isimmaterial whether or not they were committed within the spaceof 12 months.”

31. Based on the foregoing, the Court finds that the case of Cheong Sik Kwan(supra) which was adopted and followed in Jayaraman & Ors v. PublicProsecutor [1979] 2 MLJ 88 would be ample authority for the proposition thatwhere reliance is placed on section 165 of the CPC for charges to be triedtogether, there is no additional restriction that the charges would have to becommitted within a space of twelve months.

32. On the issue of whether there has been a misjoinder of charges, the Court findsthat the framing of each of the charges was in compliance with section 153(2) ofthe CPC. Further, the application for joinder was made under section 165 of theCPC and thus there was no issue of a misjoinder in this case.

Conclusion

33. In conclusion, and for the reasons as afore stated, the Court finds that there areno merits in the applications before the court and the Court would dismiss theapplications accordingly.

(AMELIA TEE HONG GEOK ABDULLAH)Hakim

Mahkamah Tinggi Jenayah 3KUALA LUMPUR

DATED: 20 SEPTEMBER 2013

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Counsels:

For the applicants - Manjeet Singh Dhillon (Melissa Ram with him); M/sMelissa Ram

For the respondent - Anselm Charles Fernandis, Deputy Public Prosecutor(Attorney General’s Chambers)

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Kanawa Gi Case

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