DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANG f)-31-04-2015(W).pdf  Pengarah Tanah dan Galian, Wilayah

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  • DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANG KUASA RAYUAN)

    RAYUAN SIVIL NO: 01(f)-31-04/2015(W) ________________________________________

    5 ANTARA

    1. SURUHANJAYA PENCEGAHAN RASUAH MALAYSIA PERAYU- 2. KERAJAAN MALAYSIA PERAYU 3. SUZIANA BINTI ALI 10

    DAN 1. LATHEEFA BEEBI KOYA RESPONDEN- 2. MURNIE HIDAYAH BINTI ANUAR RESPONDEN

    15 (Dalam Mahkamah Rayuan Malaysia di Putrajaya (Bidang Kuasa Rayuan) Rayuan Sivil No. W-01-55-02/2013)

    Antara

    1. Suruhanjaya Pencegahan Rasuah Malaysia Perayu- 20 2. Kerajaan Malaysia Perayu 3. Suziana Binti Ali

    Dan

    1. Latheefa Beebi Koya Responden- 25 2. Murnie Hidayah Binti Anuar Responden

    (Yang diputuskan oleh Mahkamah Rayuan Malaysia pada 17 November 2014)

    (Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Rayuan & 30 Kuasa-Kuasa Khas) (Permohonan Semakan Kehakiman N0. 25-94-04-2012)

    Antara

    35 1. Latheefa Beebi Koya Pemohon- 2. Murnie Hidayah Binti Anuar Pemohon

    Dan

    1. Suruhanjaya Pencegahan Rasuah Malaysia Responden- 40 2. Kerajaan Malaysia Responden 3. Suziana Binti Ali (Yang diputuskan pada 30 Januari 2013)

  • 2

    Coram: Ahmad bin Maarop, CJM Richard Malanjum, CJSS Hasan bin Lah, FCJ A.Samah Nordin, FCJ 5

    Balia Yusof bin Hj. Wahi, FCJ

    JUDGMENT OF THE COURT

    [1] This is an appeal by the appellants against the decision 10

    of the Court of Appeal which dismissed their appeal and

    affirmed the decision of the Kuala Lumpur High Court. The

    1st appellant is an anti-corruption body specially established

    under the Malaysian Anti-Corruption Commission Act 2009

    (the Act) to promote integrity and accountability in the public 15

    and private sector. It is equipped with wide powers to

    investigate into and prosecute offences of corruption under

    the Act and certain offences, described as prescribed

    offence under the Penal Code, Customs Act 1967 and

    Election Offences Act 1954. The second appellant is the 20

    Government of Malaysia, which is a nominal party to this

    action. The third appellant is the investigation officer of the 1st

    appellant with the rank of an Assistant Superintendent.

    [2] The appellants are dissatisfied that their Notice under 25

    section 30(1)(a) of the Act, directing the respondents to be

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    present at the 1st appellants office to be orally examined for

    purposes of assisting the 1st appellant in an investigation of a

    corruption offence under the Act was set aside by the High

    Court.

    5 Facts in brief

    [3] On 27.1.2012 one Shamsubahrin bin Ismail (the

    complainant) lodged a police report against Dato Seri Salleh

    bin Ismail (the suspect) who was the Chairman of National 10

    Feedlot Corporation (the company). The complainant was

    an advisor to the company. The complainant alleged, among

    others, that the suspect had exerted undue pressure on him,

    through telephone and SMS to bribe the police as an

    inducement to close the investigation into allegations of 15

    improprieties in the company.

    [4] Pursuant to the report, the 1st appellant summoned the

    complainant to its office to assist in the investigation and to

    have his statement recorded. On 19.3.2012 the complainant 20

    went to the 1st appellants office to give his statement. He

    came with his lawyers, namely the respondents.

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    [5] The respondents insisted that they be allowed to be

    present during the recording of their clients statement,

    contending that their client had a constitutional right to be

    represented by counsel. The 1st appellant objected to their

    presence and indicated to them that there was no provision in 5

    the Act giving them any right to be present. Owing to the

    respondents uncompromising insistence and tense situation,

    the 1st appellant finally relented and allowed them to be

    present. But they were informed in advance that there may

    be a need to record their statements as well. 10

    [6] After recording the complainants statement, the

    respondents were informed orally that they were also required

    to give their statements in order to assist in the investigation.

    The respondents protested and refused to give their 15

    statements.

    [7] Hence, on the same day, that is, 19.3.2012 the third

    appellant issued a Notice under section 30(1)(a) of the Act to

    each respondent ordering both of them to be present at the 20

    1st appellants office on 23.3.2012 to be examined orally for

    the purposes of assisting the 1st appellant in the investigation

    of an offence of corruption under section 16(b) of the Act.

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    Section 16(b) of the Act makes it an offence for any person,

    by himself or in conjunction with any other person, who

    corruptly gives, promises or offers to any person any

    gratification as an inducement or reward on account of

    5 (a) any person doing or forebearing to do anything in

    respect of any matter or transaction; or

    (b) any officer of a public body doing or forebearing to

    do anything in respect of any matter or transaction.

    10 [8] Under section 30(6) of the Act it is mandatory to comply

    with the said Notice, notwithstanding any written law or rule of

    law to the contrary and anyone who contravenes the Notice to

    be present and to be orally examined commits an offence,

    punishable with a fine not exceeding RM10,000.00 or to 15

    imprisonment not exceeding two years or to both (section 69

    of the Act).

    [9] On 22.3.2012, three days after being served with the

    Notice, the respondents informed the 1st appellant in writing 20

    that they would not be present at the 1st appellants office, as

    directed.

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    [10] On 30.4.2012 the respondents filed an application for

    leave to apply for Judicial Review under Order 53 of the Rules

    of the High Court 1980 (RHC) for the following reliefs:

    (i) for an order of certiorari to quash the Notice issued 5

    under section 30(1)(a) of the Act;

    (ii) for a declaration that the said Notice is unlawful,

    ultra vires and/or an abuse of powers under the Act;

    (iii) for a declaration that the 1st appellant had no power

    to record the statement of solicitors who 10

    represented their client during the recording of their

    clients statement. Leave was granted.

    [11] After hearing the substantive motion, the High Court

    granted the application for judicial review and quashed the 15

    said Notice on the ground that it was issued as an act of

    intimidation against the respondents acting as counsel for

    their client and an abuse of the appellants powers under the

    Act and therefore void and unlawful.

    20

    [12] The appellants appealed to the Court of Appeal against

    the decision of the High Court. The Court of Appeal

    dismissed the appellants appeal. It agreed with the High

  • 7

    Court that the issuance of the Notice was clearly an act of

    intimidation and an abuse of the 1st and 3rd appellants powers

    under the Act. It further held that the Notice was not issued

    in good faith. The Court of Appeal held the view that the

    discretionary power to issue the Notice under section 30(1)(a) 5

    of the Act is not an unfettered discretion but subject to a

    stringent requirement that it must, as the Federal Court in

    Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri

    Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135 held, be

    exercised for a proper purpose and not unreasonably, having 10

    regard to all relevant considerations and disregard all

    improper considerations.

    [13] On 6.4.2015 the appellants were granted leave to appeal

    to this Court on the following question of law 15

    Whether a criminal investigative process such as a Notice of Investigation under section 30(1)(a) of the Malaysian Anti-Corruption Act 2009 is amenable to judicial review.

    20

    [14] Section 30(1)(a) of the Act states

    30(1) An officer of the Commission investigating an offence

    urder this Act may 25

    (a) order any person to attend before him for the purpose of being examined orally in relation to any

  • 8

    matter which may, in his opinion, assist in the investigation into the offence.

    [15] Section 30(3) and (6) further state

    5 30(3) A person to whom an order has been given under paragraph (1)(a) shall

    (a) attend in accordance with the terms of the order to be examined, and shall continue to attend from 10 day to day where so directed until the examination is completed; and

    (b) during such examination, disclose all information

    which is within his knowledge, or which is 15 available to him, in respect of the matter in relation to which he is being examined, and answer any question put to him truthfully and to the best of his knowledge and belief, and shall not refuse to answer any question on the ground that it tends to 20 incriminate him or his spouse.

    (4) .. (5) ... 25 (6) A person to whom an order or a notice is given under

    subsection (1) shall comply with such order or notice and with subsections (3), (4) and (5), notwithstanding any written law or rule of law to the contrary. 30

    Submissions before this Court

    [16] The crux of t

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