Now You Submit, Now You Don’t!

The incongruity of the Federal Court decision of Diana Nelson Tanoja v PP [2010] 3 CLJ 1 with its other decision in Lee Kwan Woh v Public Prosecutor [2009] 5 CLJ 631 which relate to the issue of whether an accused person has a right to make submission to the judge after the defence has completed its case but before judgment is pronounced.

Diana Nelson Tanoja was arrested when she was collecting her bags from Carousel D at the Kuala Lumpur International Airport after flying in from Amsterdam and charged for drug trafficking. She was detained after a random check was done on her luggage. The Narcotics Department officers stationed there discovered approximately 508.6 grams of cocaine stitched into a briefcase she carried. Her conviction in the High Court was confirmed in the Court of Appeal.

Her appeal to the Federal Court was heard by the President of the Court of Appeal Tan Sri Alauddin Mohd Sheriff, Hashim Yusoff FCJ and Abdull Hamid Embong FCJJ. It was naturally a unanimous decision with the President preparing the grounds of judgment. Though 2 grounds were canvassed by Diana’s counsel, Sreekant Pillai (Paul Fernandez with him), I only intend to discuss the first ground of appeal which relates to the issue of prejudgment on the part of the Judge. This is because the quality of decision making on display here merits comment, at least.

The second ground of appeal relates to the issue of admissibility of the cautioned statement because it was made by Diana without an interpreter present. Though this issue is arguable, the manner in which it is decided is less controversial due to the facts of the case.

Analyzing the first ground of appeal

On the first ground of appeal it was argued that the trial judge prejudged the case because his written judgment was dated 18 January 2005, which was the same day Diana entered her defence. Sreekant and the Deputy Public Prosecutor only made their submissions on 26 January 2005 after which the judge gave decision immediately after.

The typographical error that wasn’t

Without any evidence whatsoever the President opines, “It is obvious to us and we agree with the decision of the Court of Appeal that the date 18 January 2005 is a typing error.” But let’s recall how the Court of Appeal decided it (2009) 1 LNS 665; quorom of Tengku Baharudin Shah Tengku Mahmud, Sulong Matjeraie and Ahmad Haji Maarop JJCA): “The date of 18th January 2005 must be a typing error. Even if, for a moment that, we say that the judgment was dated 18th January, 2005, s. 181 (1) of Criminal Procedure Code does not require submission.”

So the Court of Appeal also decided without even a shred of evidence that the date on the judgment was a typographical error unless a judge’s convictions serves as an admissible fact. The Federal Court instead of reprimanding them for making a decision without basis instead agrees with them.

How did the Court of Appeal know it was a typo error? Did they call the judge up and ask him? And since this is a criminal case, a drug trafficking case, a case where Diana if convicted would be hanged to death, shouldn’t any doubt be resolved in her favour? Instead the judges conveniently assume the judge made a typographical error without anything other than their sincere conviction. After all 2 and 6 is an altogether different proposition than 1 and 8.

The appellate courts do not appear to know that the practise in the courts below it that we sometimes have to file an application to amend a typographical error, affirm a supporting affidavit complete with exhibits if relevant just to correct a measly one word typographical error if the opponent is arse and objects or the judicial officer is uncommonly strict about complying with the rules. Sometimes the courts would not even countenance an oral application of amendment when all the parties are present. Yet in so crucial a case, a typographical error is so easily assumed to the prejudice if not death of Diana. Observe how the President elaborates on this:

Even assuming for a moment that it is not a typing error and the learned trial judge had actually completed his judgment on the 18th we see no reason why he could not give his decision on the 18th but instead gave his decision on 26th. so logically speaking it must be a typing error. In any case it is normal that a judge will write his judgment after he handed down the decision i.e. in this case after 26 January 2005.

This decision was decided on pure logic on assumed facts!

Submissions from defence counsel at the end of defence case is up to the judge

The President poses the question, “[W]hether the learned trial judge is obliged to hear submissions from counsel and DPP before he gives his decision?” (see page 8, paragraph [33] of the decision)

The President answers the question (in the exact manner the Court of Appeal did) by deciding that section 181 of the Criminal Procedure Code (CPC) gives a discretion on the trial judge’s part to consider an accused person’s submission at the end of the defence’s case. His Lordship decided accordingly simply because the provision contained the word “may.” And we all know how “may” is the universally acknowledged legal term to suggest an element of discretion as opposed to “shall” which is also the universally acknowledged legal term indicating the mandatory – not.

What does section 181 of the Criminal Procedure Code actually say?

But before getting into that, let us first read the provision more carefully. Let us see whether section 181 of the CPC accords with what the President understood:

When the accused is called upon to enter his defence he or his advocate may then open his case, stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution. He may then examine his witnesses (if any) and after their cross-examination and re-examination (if any) may sum up his case … (emphasis by the President of the Court of Appeal)

This provision states that an accused person who enters his defence may “open his case,” lead evidence to support his defence and then sum up his case. So the discretion about making the submission at the end of the defence’s case lies with the accused and not the judge! This is because ‘He’ in the second line refers to the accused, not the judge.

You say May, I say Shall

The President latches on the emphasized portion of the quote above to justify his decision which is as follows:

The word ‘may’ indicates a discretion. Therefore it could be seen that submission at the end of the defence case is discretionary and not mandatory. Therefore the learned trial judge could if he wanted to, decide without having the need to hear submission from defence counsel. Submission is not evidence and hence the judgment is not defective. If the law categorically states that it is not mandatory for counsel to make submission, we can see no reason why it is mandatory for the learned trial judge to hear submission. What, if learned counsel chooses not to make submission? Is the learned trial judge still obliged to call upon learned counsel to make submission? If indeed the law intends that the learned trial judge should hear submission than it would say so in no uncertain terms.

Firstly, his Lordship mentions that “may” indicates discretion but then decides that it means discretion in the very next sentence. There is no authority whatsoever offered to support this proposition aside from the President’s own high status.

NS Bhindra’s Interpretation of Statutes (10th Edition, LexisNexis Butterworths, 2007) in the chapter Mandatory and Permissive Words explains thus (at page 999):

The use of the expression “may” or “shall” in a statute is not decisive, and other relevant provisions that can throw light have to be looked into in order to find out whether the character of the provision is mandatory or directory. In such a case legislative intent has to be determined. The words “may”, “shall”, “must” and the like, as employed in statutes, will in cases of doubt, require examination in their particular context in order to ascertain their real meaning. …

This is precisely the attitude taken in the earlier Federal Court decision of Pow Hing & Anor v Registrar of Titles, Malacca [1981] 1 MLJ 155 that appears to have escaped the present illustrious Federal Court panel. In that decision, Abdoolcader J had this to say about the discretion or mandatoriness of a statutory provision:

The locus classicus explaining this distinction and the consequences for non-compliance in either case is Howard v Bodington. The principle is too well-known to require setting out in extenso that part of the judgment of Lord Penzance, Dean of Arches, propounding it (at pages 210-211) but he went on to say that no formula existed to determine whether a particular provision was mandatory or directory (at page 211):

I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.

What Abdoolcader J meant there was that you always have to look at the surrounding context and purpose of the Act, at the very least, in deciding whether a provision is mandatory (imperative) or discretionary (directive). Note that his Lordship also mentioned that this principle was “too well known to be require setting out in extenso.”

In the Supreme Court decision of Lock Wee Kock v Menteri Hal Ehwal Dalam Negeri [1993] 4 CLJ 211, Mohd Eusoffe Chin SCJ delivering the unanimous judgment decided as follows:

The use of the word “may” or “shall” has led to some confusion in the interpretation of a provision of a statute. In ordinary usage, the word “may” is permissive, and the word “shall” is imperative. The Courts have always construed these words with reference to the context in which it is used. In order to find out whether these words are being used in a directory or mandatory sense the intent of the legislature should be looked into along with the pertinent circumstances. If it appears to be the settled intention of the legislature to convey the sense of compulsion, then whether the word “may” or “shall” is used, it has the mandatory effect.

A recent application of this can be seen in the Court of Appeal decision of Kekatong Sdn Bhd v Bank Bumiputra (M) Bhd [1998] 2 MLJ 440 where the word “may” was held to be “imperative” and an older application can be seen in Chung Khiaw Bank Ltd v Public Prosecutor [1968] 2 MLJ 196.

We can now appreciate from these cases and textbook that the Federal Court panel made no attempt whatsoever to find out whether the word “may” was used in the directory or mandatory sense or even bothered to examine the context in which it is used.

If his Lordship did consider the word “may” in the context of section 181 of the CPC while bearing in mind that these were criminal proceedings with a possibility of a death sentence, it becomes more obvious that the word should be interpreted as being mandatory. After all, from a practical perspective, the trial judge must hear submissions from the accused because he may not aware of all the significant pieces of evidence or its effect. The submission is also an opportunity to address any issues that the judge may seek clarification on for example, the law where it relates to a particular piece of evidence. If an accused wants to forgo that right that’s up to him, but the court must afford him that opportunity.

Uh oopss, there’s uh… Lee Kwan Woh v Public Prosecutor [2009] 5 CLJ 631

I do not think there is any civilized commonwealth jurisdiction that deprives the accused of making submissions after the close of his case before a judgment is delivered because that would deprive him of a right to a fair trial. It was recently affirmed in the Federal Court decision of Lee Kwan Woh v Public Prosecutor [2009] 5 CLJ 631 where it was held that to deprive an accused from making submissions at the end of the prosecution’s case resulted in him not having a fair trial.

Gopal Sri Ram FCJ held as follows:

In our judgment, the constitutionally guaranteed right in an accused to a fair trial includes his right to make a submission of no case at the close of the prosecution’s case. It is a right that he or she may waive. But he or she cannot be deprived of it. That unfortunately is what happened here.

If the accused has such a constitutional right at the end of the prosecution’s case, he should still have that right at the end of the defence’s case where it is even more crucial and important. To say he has the right to one but not the other is perverse.

That the Federal Court should overlook such a recent and significant decision (never mind all the rest either) on almost a similar issue is unsettling especially since his Lordship Hashim Yusoff FCJ sat in on the Lee Kwan Woh v PP Federal Court panel with Gopal Sri Ram FCJ and Richard Malanjum Chief Judge (Sabah and Sarawak) in a unanimous decision. One would expect a judge of such caliber to immediately see the incongruity between the two decisions. But there is not even a dissent, not even a sneeze of a comment, or a medical certificate.

Secondly, it is disappointing that the President of the Court of Appeal (and two other Federal Court judges agree wordlessly) views submission as not necessary because it “is not evidence and hence the judgment is not defective.” This betrays a fundamental lack of understanding of the purpose of a submission and its distinction from evidence, and a lack of appreciation of the importance of both.

A submission is made not just so the lawyers can talk about something in court to earn their fee or to annoy judges. Judges do not know everything about the case. The evidence does not always speak for itself. The law is not always clear. The facts are not always obvious and certain. Opportunities for submissions exist so the lawyer can explain the facts, the applicable law and why it is both are in the favour of one party or the other so the judge can come to a decision. And it is a fundamental tenet of law that both sides have to be heard before a decision is made. So just because it is not evidence does not mean it is not important.

After all, there is no evidence to speak of in the Court of Appeal or Federal Court – just the record of appeal and submissions. If we apply this attitude to hearings in the appellate courts, there would be no need for lawyers to turn up for argument and judges would just make their decisions on the basis of the record of appeal before them.

That such a cavalier approach was taken with respect to the facts and the law when her life is at stake is disappointing and embarrassing. That so little appreciation and consideration is given to language, past judgments of persuasive if not binding influence and the search for justice is depressing. The quality of judicial decision making is not at all inspiring and appears simplistic. No authority was cited for that ground breaking change in the law. That this attitude is demonstrated from the President of the Court of Appeal’s own judgment from the highest court in the land without even a dissent is distressing but unsurprising. The whole decision feels as if more effort was put into getting it disposed off than carefully deliberating the legal issues involved.

Now the state of our Malaysian criminal procedure is such that an accused person has the constitutional right to make submissions at the end of the prosecution’s case but has no right to make submissions at the end of the defence’s case before judgment is given as this is at the judge’s discretion.

This is what our Federal Court has decided in its glorious wisdom.

Wonderful. Just wonderful.