Daniel Annamalai
Legal practitioner

Recently, the Court of Appeal (“COA”) acquitted and discharged the former FELDA Chairman Tan Sri Isa Samad (“TSIS”) on 9 counts of bribery charges.

In overturning the decision of the High Court, the COA panel delved into several contradictions made by a key witness; TSIS’s special officer (“SO”).

It is the prosecution’s case that TSIS received bribes through his SO.

According to the SO, the greeting “salam” meant as a code word to “arrange” for payment to be made.

However, the SO contradicted himself throughout his testimony in court; it was not stated in his Witness Statement; agreed that it was only given in the past; and TSIS did not give “salam” for every transaction.

The COA panel found that the High Court did not properly address this crucial contradiction. Had he done so, the testimony of the SO could not have been credible to prove the element of the charge; receiving gratification through others.

More so, when the amount in the 9 charges (RM3.09million) exceeds the purported agreed amount (RM3million); and there was no plausible explanation for that discrepancy either. There was no other evidence to show TSIS received bribes from SO.

Key takeaways

1. It is the statutory duty of a judge in conducting a trial to see that irrelevant evidence and inadmissible evidence are not allowed to be admitted. (See Federal Court in Dato’ Seri Anwar bin Ibrahim v PP [2002] 3 CLJ 457)
2. When it comes to evidence borne out of circumstances (or circumstantial evidence), the Federal Court in Low Kian Boo & Anor v Public Prosecutor [2010] 3MLJ 425 laid down several principles:

1. circumstantial evidence is evidence of circumstances surrounding an event or offence from which a fact in issue may be inferred;
2. circumstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities;
3. it is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference;
4. the duty of the trial judge is to make a balanced consideration of other reasonable inferences that could be drawn from any particular circumstantial evidence, particularly where they were equally favourable to the accused;
5. it should also be pointed out that circumstantial evidence does not depend on hypothesis, or theories, or even speculations. They must give rise to strong inferences so as to become the best evidence.

3. In other words, the evidence must point irresistibly to the conclusion of the guilt of the Appellant. If there are gaps in it then it is not sufficient. (See: Chang Kim Siong v PP [1968] MLJ 36)

So, “salam” or not, the recent COA decision reiterated the law of evaluating evidence that are contradictory; more so when it concerns the element of the charge and when there are no other corroborative evidence.