XCHRX THE CROWN SOLICITOR v. DATUK DR JEFFREY KITINGAN

1990, No. M.P.1193

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H E A D N O T E

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An order was made by Master O'Donnell on the application by the Crown on behalf of the Malaysian Government that a Letter of Request do issue to take the evidence of five witnesses resident in Hong Kong in respect of seven corruption charges pending against Dr Kitingan in the High Court of Borneo, Kota Kinabalu, Sabah, Malaysia. This order was set aside by Master Beeson on the application of Dr Kitingan under s.77B(3) of the Evidence Ordinance on the grounds that the proceedings were of a political character and also an abuse of the process of the court as the form in which the evidence was required could not be used in a criminal trial in Malaysia.

On an appeal by the Crown, it was held that the burden rests with the accused to establish that the proceedings are of a political character on the civil standard of the balance of probabilities.

Evidence of an historian with expert knowledge of the political situation in Malaysia was not wholly irrelevant as claimed by the Crown and was admissible as to historical and political issues with reservations that the evidence had not been tested by cross-examination and that caution would be exercised where matters of opinion were expressed.

From the evidence before the court, an irresistible inference could be drawn that the proceedings were of a political character. Further, the evidence of an expert on Malaysian law which was not contradicted reveal that the form in which the evidence could be obtained was not usable in a Malaysian court.

Master Beeson was right on both grounds in setting aside the order of Master O'Donnell. The appeal was therefore dismissed.

1990, No. M.P. 1193

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(MISCELLANEOUS PROCEEDINGS)

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JUDGMENT

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Introduction

1. On the 27th April 1990 Master O'Donnell made an order upon an ex parte application by the Crown acting for the Government of Malaysia that a Letter of Request do issue for the purpose of obtaining the evidence of five witnesses, two of whom are bank employees, who reside in Hong Kong in respect of criminal proceedings relating to seven counts of corruption instituted in the High Court of Borneo, Kota Kinabalu, Sabah, Malaysia against the respondent Datuk Dr. Jeffrey Kitingan to whom I shall refer hereafter as Dr Kitingan. That order was set aside by Master Beeson on the 5th May 1993 after a carefully reasoned judgment upon the application of Dr Kitingan on the grounds that the proceedings are of a political character and an abuse of the process of the court. This is an appeal by the Crown from that decision. The summons relating to abuse of process and on other grounds which are not relevant to these proceedings was issued on the 4th March 1991 and the summons on the grounds that the proceedings are of a political character was issued on the 3rd April 1993.

2. The court in Hong Kong is required to give assistance to an overseas court in obtaining evidence required in criminal proceedings under s.77B of the Evidence Ordinance except under subsection (3) of this section where the proceedings are of a political character.

Mala Fides

3. Mr Grossman, Q.C., on behalf of the Crown levelled criticism at the late filing of the summons issued on the grounds that the proceedings are of a political character which cast grave doubts on its validity on the basis that it only arose as an afterthought while the expert's report by Dr Reece in support of this ground was only filed three weeks before the hearing before Master Beeson. However no application was made by the Crown before the master for an adjournment in order to consider Dr Kitingan's evidence or to file expert evidence in response. Indeed, no application has since been made to adduce any expert evidence on this appeal. Other proceedings in connection with the setting aside of the order of Master O'Donnell were heard before the summons on the grounds that the proceedings are of a political character was issued on the 3rd April 1993. In fact the question of political motivation had been averred to by Dr Kitingan when he was arrested in 1990 and this was referred to in the publication News from Asia Watch of the 18th October 1991. To put forward the argument that it was raised as an afterthought was sheer nonsense. I am quite satisfied that Dr Kitingan was perfectly entitled to rely upon this ground and that no mala fides attached to him from raising it at this stage. I therefore reject the Crown's submission.

Effect of Master Beeson's Decision

4. Although Mr Grossman contended that the master's ruling could be referred to, he submitted that no weight should be given to it. However, I am unable to agree with this submission for although the appeal is by way of a rehearing and I am in no way bound by the decision of Master Beeson, I am entitled to give it such weight that it deserves see Evans v. Bartlam [1937] AC 473.

Onus of Proof

5. Mr Thomas, Q.C., counsel on behalf of Dr Kitingan contended that the burden of proof to establish that the proceedings are not of a political character is upon the Crown on the basis that he who asserts must establish proof. He referred to the affidavit of Mrs Gunasekera, one of the counsel for the Crown, made in support of the ex parte application before Master O'Donnell in which she stated that the proceedings were not of a political character. However, in his submission that the burden rests with Dr Kitingan on the balance of probabilities, Mr Grossman relied upon In re Brauchhausen QBD, 18th March 1986 (unreported) where it was held that the burden is upon the applicant resisting extradition to show that the offence was of a political character. It is clear that the prosecution must state that the proceedings are not of a political character when the ex parte application is made, but it is likely that the master will place reliance on this statement without enquiry. Although In re Brauchhausen is not an authority for the Crown's proposition as that case was concerned with extradition as distinct from a Letter of Request, no other authority was cited to me on the onus of proof. If the burden is held to be on the Crown, it would be necessary for the Crown to prove a negative. However, although In re Brauchhausen is not directly relevant, I consider that this case does provide useful guidance where an application is made for a Letter of Request and the issue raised concerns proceedings which are politically motivated. I therefore propose to follow this authority. Accordingly, I am satisfied that the burden rests with Dr Kitingan to establish on a balance of probabilities that the proceedings are of a political character.

Effect of Expert Evidence

6. The evidence that the proceedings are of a political character emerges from an affirmation of Dr R.H.W. Reece, an Australian who is an Associate Professor in History at Murdoch University, Western Australia, an affidavit of Dr Kitingan and two affirmations of Mr Harjeet Singh, one of the counsel in Malaysia acting for Dr Kitingan. Mr Singh's second affirmation of the 20th December 1993 was not before the master.

7. Dr Reece has an impressive academic record which includes a Ph.D. in History obtained at the Australian National University. He claims to have an expert knowledge of Sarawak and Sabah and their relationship with the Malaysian Federal Government in Kuala Lumpur. In his affirmation he sets out some of the details of the history of Malaysia and provides an opinion of the evolving relationship between Sabah and the Federal Government of Malaysia, particularly for the period since 1985. The affirmation refers to a number of academic publications with extracts from official publications and reports from newspapers and magazines.

8. Mr Grossman concedes that Dr Reece is an expert but has attacked his affirmation contending that some of the information emanates from unreliable sources while some of the views expressed amount to speculation. In effect, he submits that the affirmation is irrelevant so that little reliance can be placed on it. Some of the matters are of course of historical knowledge, but where conclusions and opinions have been drawn from evidence supplied, it must be borne in mind that this evidence has not been tested by cross-examination. Further, some of the evidence is hearsay but such evidence is admissible on an interlocutory application. The newspaper articles cannot necessarily be relied upon as always providing an accurate, reliable and truthful account, but where statements have been attributed to ministers, including the Prime Minister, it is likely that the words reproduced were used particularly as there is no evidence from the Crown to contradict this testimony. Although Mr Grossman has criticised the sources of Dr Reece's information, nevertheless there was no evidence to show that they were not derived from reputable sources. In fact one work from which Dr Reece has quoted is "From Malayan Union to Singapore Separation" by Dr Mohamed Noordin Sopiee, This writer not only has a distinguished academic record but has published a number of works and also has various honours and awards to his name. Although I am not concerned as to whether Dr Reece is right or wrong, I do not consider that his propositions can be merely cast aside for they cannot be disregarded as irrelevant. Dr Reece's affirmation is particularly relevant with regard to the history of Malaysia and as to the background to these proceedings. However, I do not accept that he is entitled to comment on the charges against Dr Kitingan that they were politically motivated. I am in entire agreement with the way in which Master Beeson treated this affirmation which appears in her reasons as follows:

" I did not reject this affirmation in its entirety as the Crown would have had me do. I treated it as the report of a trained historian who has a special expertise in the history and politics of the Malaysian region with the reservation that as the reporter was not available for oral examination or cross-examination it must be treated with some caution where matters purely of opinion were aired. There can be no hard and fast rules about what evidence an Applicant must lead in attempting to establish that the charges against him are of a political character. He can give evidence himself if he is able to appear before the court. He can presumably call family members, friends or employers where they can give relevant evidence and where it is practicable that they appear. In some cases documents may be available which can be put before the Court. It may be that the political affairs of the requesting country are so familiar to the assisting Court that special evidence is not needed - or that such is contained in contemporaneous objective reports."

9. In the circumstances, I consider that I am entitled to give Dr Reece's affirmation due consideration and such weight bearing in mind that it has not been tested by cross-examination. I do not therefore agree that the affirmation is irrelevant.

10. The evidence of Dr Reece is very detailed and overlaps several of the issues raised by Dr Kitingan in his affidavit. Accordingly, I do not propose to comment on all these matters which will not serve any useful purpose but to highlight those issues that are of importance and directly relevant to Dr Kitingan's case.

Background to Proceedings

11. The background to these proceedings reveals a long standing and bitter dispute between the Federal Government and the State Government of Sabah in respect of the safeguards and assurances that were given to Sabah at the time when the Federation came into existence and which it is alleged have been whittled away.

Evidence of Dr Reece

12. Dr Reece deals with the circumstances that led to the formation of the Federation of Malaysia in 1963 when it comprised Malaya, Singapore, Sarawak and Sabah. When the Malaysia agreement was signed, it was agreed that the interests of the people in Sabah would be safeguarded by what became known as the "Twenty Points". By the report of the Inter-Governmental Committee set up to decide on the constitutional details of Malaysia, it was intended that the principles embodied in the "Twenty Points" should be incorporated in the Malaysia Constitution in order to protect the special rights and interests of the people of Sabah. Although the "Twenty Points" document did not possess any legal or constitutional standing, it was looked upon by the political leaders of Sabah as a charter of State rights and the basis of its future relationship with the Federal Government. The most important subjects dealt with in the "Twenty Points" were religion, immigration, native rights, Borneonisation, finances and constitutional safeguards. However, Dr Reece refers to a number of significant facts from which he draws the conclusion that the Federal Government in Kuala Lumpur had not accepted the constitutional and political principles implied in the agreement relating to the special standing of Sarawak and Sabah. This included the withdrawal of Singapore from the Federation of Malaysia in 1965, which shifted the political balance of the Federation in favour of Peninsula Malaysia's predominant power, the creation of new parliamentary seats so as to favour Peninsula Malaysia and the enactment of a number of amendments to the Federal Constitution relating to the special position of Sarawak and Sabah.

13. From 1976 until 1985 the Government of Sabah was Controlled by the Berjaya party which was in sympathy with the Barisan Nasional Multi-Party Coalition, the party of the Federal Government. This, according to Dr Reece, enabled the Federal Government, with its majority, to pass amendments to the constitution which have eroded the powers of Sabah.

14. In 1984, a new political party was formed in Sabah known as Parti Bersatu Sabah (PBS) to be led by Dr Kitingan's brother Datuk Seri Joseph Pairin Kitingan (Dr Joseph Kitingan). The PBS won the State elections in April 1985 with 25 out of 48 seats and was elected on a promise to reform the timber shipment industry. Dr Joseph Kitingan then became the Chief Minister of Sabah. Dr Reece believes that the main reason for the loss of support for the previous State Government and the success of PBS was the belief that the Berjaya Government and its predecessor had actively co-operated with the Federal Government in reducing Sabah's special status within the Malaysian constitution. Dr Reece considers that from the date of the election of PBS, the Federal Government revealed an unwillingness to acknowledge and co-operate with the new government headed by Dr Joseph Kitingan and that the Barisan Nasional in Kuala Lumpur did not agree to accept PBS into the National Coalition until late June 1986 despite an application made for earlier membership.

15. He went on to refer to Dr Kitingan's public statement issued on the 2nd January 1987 in which he said that one of the main sources of discontent with the Federal Government in Sabah was its apparent non-compliance with the original "Twenty Points" which he regarded as the basis for Sabah joining the Federation. He also stated that it was a common perception that the Federal leadership had been influencing the development of political events in Sabah to the detriment of the ruling party. On the 13th January 1987, the Deputy Prime Minister, Ghafar bin Baba, was reported to have challenged PBS to substantiate the allegations with the result that Dr Kitingan produced a long memorandum addressed to the Federal Government entitled "The Twenty Points Basis for Federal-State Relations For Sabah". The deviations from the constitutional safeguards granted to Sabah at the time of the formation of Malaysia included such matters as immigration, religious freedom, Borneonisation, citizenship, education, finance and tariff arrangements and constitutional safeguards.

16. Dr Reece then refers to the Sabah Foundation (the Foundation) which was set up as a charitable body by the State Government in 1966 with the purpose of distributing more widely for the benefit of the community the income from the State's timber exports. However, instead of benefiting the community, he states that the payments were used to promote the popularity of the ruling coalition.

17. In May 1985, Dr Kitingan was appointed as Chief Executive of the Foundation by the new PBS State Government when it was reorganised and a commercial arm established in the form of Innoprise Corporation Sdn. Bhd. (Innoprise). This resulted in a rapid improvement of its earnings.

18. In November 1988, Dr Joseph Kitingan requested the services of the Foundation to terminate the private monopoly exercised over the shipping of logs from Sabah by a Japanese cartel and its local agent, Archipelago Sdn. Bhd. (Archipelago). Innoprise subsequently attempted to establish a properly regulated agency which would restore government control over the shipping of logs but this attempt was unsuccessful. However, it was reported that certain vested commercial interests enjoying close links with the opposition Berjaya party in Sabah and the Government in Peninsula Malaysia had been antagonised. One of Dr Kitingan's innovations within the Foundation was to establish the Institute for Development Studies, a policy research centre or "think tank" designed to guide the State Government in its future planning. Part of the work of the Institute was the publication of material intended to canvass issues relating to Federal state relation, one example being "Sabah 25 Years Later 1963-1988" (1989) edited by Dr Kitingan and his deputy director, Dr Ongkili.

19. In early January 1990 Dr Kitingan published a New Year message in which he raised some of the specific grievances held by the PBS Government in relation to the Federal Government. One of the main grievances raised by Dr Kitingan related to the naturalisation and electoral registration of illegal immigrant workers from the Southern Philippines. As the newly registered voters are Muslims from the Southern Philippines and Indonesia, he believes that as they are indebted to the Federal authorities for their citizenship status and their opportunity to find employment, their political loyalties will be to UMNO Sabah, the Sabah branch of the party which dominates the ruling Barisan Nasional Coalition at Federal level. In his view, their enrolment is likely to have the significant effect of producing Muslim majorities in a number of Federal and state electorates where they did not exist previously, thus facilitating the eventual election of an UMNO Sabah Government. I agree that the conclusion amounts to speculation but the facts from which Dr Reece reached his opinion have not been contradicted.

20. Dr Reece then proceeds to deal with examples of harassment referred to by Dr Kitingan. In April 1988 Federal Government tax investigators conducted a raid on four PBS leaders including three state Government ministers, which included a search of their homes without prior notice and removal of documents. In June 1989, the Federal Government Anti-Corruption Agency (ACA) began to investigate Dr Joseph Kitingan and Dr Kitingan. It is alleged that some of the information obtained in respect of Dr Kitingan was leaked to Sabah's opposition parties during the ensuing months without naming him but then revealing his name in December. This resulted in Dr Joseph Kitingan complaining publicly in November 1989 that certain Federal leaders were attempting to topple his government. He also claimed that the ACA's investigations of himself and of his brother were politically motivated. He further commented that the investigations had come at the eve of the by-election for the state of Ranau.

21. It is significant that the ACA is under the administrative control of the Prime Minister's Department and the responsible minister then and now is the Prime Minister Dr Mahathir. However, the ACA appears to be answerable to the Attorney General.

22. On the 18th January 1990 in a speech at Kota Kinabalu, the Prime Minister Dr Mahathir was reported as saying:

"Some Sabahans had been given the opportunity to further their education to an (sic) extent of becoming doctors, though not necessarily being in the medical line, but apparently they have forgotten the benefits of gaining independence through the federation, but had instead chosen to create anti-Malaysia feelings."

Dr Reece states that this was a veiled but unmistakable reference to Dr Kitingan and Dr Ongkili. Indeed, five days later, Dr Kitingan was arrested on the seven charges of corruption.

23. During the two months before the Sabah state elections of the 16th and 17th July 1990, there was a series of arrests of four PBS supporters carried out by the Federal Police Special Branch in connection with an alleged secession plot in Sabah. On the 25th May 1990 during the annual Kadazan harvest festival, two Kadazans were detained under the Internal Security Act. On the 10th July 1990, a week before the elections, a Deputy Inspector General of the Malaysian Police was reported as having revealed details of the alleged report. Dr Kitingan was charged on 12 counts of failure to disclose assets a week after PBS won the State election with an increased majority.

24. At its annual congress held on the 15th October 1990, five days before the Federal parliamentary elections, the PBS decided to leave the Barisan Nasional coalition which it had joined in June 1986 and join the opposition coalition. Dr Joseph Kitingan was reported as saying after the decision that his efforts to obtain certain concessions for the state from the Federal Government in return for PBS's continued support for the Barisan Nasional had been unsuccessful. The PBS announcement resulted in the Deputy Prime Minister and Barisan Nasional Secretary General Abdul Ghafar bin Baba describing the PBS's action as "dirty political tactics". The Prime Minister Dr Mahathir was also reported at the same time to have referred to the PBS's presence within the Barisan Nasional coalition as having been like "a thorn in one's flesh which had caused the flesh to swell and suppurate". In Dr Reece's belief, the responsibility for PBS's last minute switch of political allegiance was attributed by the Prime Minister and his deputy wholly to Dr Kitingan and his brother although the newspaper reports of the congress where the decision had been made did not indicate this.

25. The Barisan Nasional party was returned to power at the Federal elections of October 1990 with an increased majority.

26. On the 3rd January 1991, Dr Ongkili was taken in for questioning under the Internal Security Act but was released after a month. On the 5th January 1991, Dr Joseph Kitingan was arrested on three charges of corruption. On the 16th January 1991, the manager of Innoprise was arrested under the Internal Security Act on suspicion of being involved in a plot to bring about Sabah's secession from Malaysia and he was subsequently served with a two year detention order signed by the Minister for Home Affairs Dr Mahathir.

27. On the 21st February 1991 in a speech at Kota Kinabalu marking the establishment of a branch of UMNO in Sabah, the Prime Minister Dr Mahathir was reported to have said that Dr Kitingan and the Institute for Development Studies were planning, with the assistance of another country, to take Sabah out of Malaysia and to make him its President. The Prime Minister alleged that by raising the "Twenty Points Issue" and accusing the Federal Government of neglecting Sabah, Dr Kitingan and the Institute were spreading hatred for the Federal Government and working towards secession. He was also reported to have said on the 21st February 1991:

"Before, Sabah people never hated the Federal Government or the National Front, but that since the PBS came to power statements were made, especially by Jeffrey Kitingan to give rise to hatred against the Federal Government and poison the minds of Sabahans."

After this speech, when questioned by journalists why Dr Kitingan remained free when he was fanning anti-Malaysia sentiments, the Prime Minister Dr Mahathir said:

"He is free until the government decides he is a threat to the security of the country. At that stage there are provisions in the law that we can use. If he is not a security risk, we don't act."

He was also quoted as saying that as there was no evidence of any planned use of violence against the Federal Government "we can still allow the agitators to remain free". There was no disclaimer issued by the Prime Minister subsequent to the publication of these remarks.

28. Dr Reece refers to factors concerning the measures taken by the Federal Government to place financial and economic pressure on Sabah in connection with the export of timber and the allocation of Federal Aid Funds for development projects in Sabah.

Internal Security Act

29. The Internal Security Act 1960 (Revised-1972) was inherited from the British Colonial Government which had introduced it to deal with the aftermath of the communist terrorist uprising of 1948-1960. By s.73, a person can be held for questioning for a maximum of 60 days before the imposition of a maximum two year detention order which can be renewed indefinitely under s.8(1). There is no provision that the detailed basis of the detention order can be made public or that a detained person can be brought to trial. Representations against an order for detention can be made under s.11 of the Act to an Advisory Board. By s.12, the Advisory Board may make recommendations to Malaysia's head of state, but the decision of the head of state shall be final and shall not be called into question by any court. By s.13 every order is required to be reviewed every six months by an Advisory Board which is then referred to the Minister of Home Affairs.

30. On the 13th May 1991, four days after the newly established UMNO Sabah's first by-election victory, Dr Kitingan was arrested under the Internal Security Act on the grounds of suspicion that he was involved in a plot to secede Sabah from Malaysia. On the 16th July 1991, the Deputy Home Affairs Minister announced that Dr Kitingan's detention had been extended for a further two years by a letter signed by the Minister for Home Affairs Dr Mahathir. The Deputy Home Affairs Minister had informed the Federal parliament that there might be a white paper providing details of the secession plot once investigations had been completed and in order to convince the public. However, no white paper had since appeared.

31. In response to a question asked by an opposition member in the Federal parliament on the 23rd December 1992, the Parliamentary Secretary for Home Affairs stated that Dr Kitingan was being held under the Internal Security Act for security reasons and not political reasons. In response to an earlier question by an opposition member, seeking the reasons for the rejection of the Advisory Board's recommendation that Dr Kitingan be freed, the Parliamentary Secretary stated that the Minister's decision could not be questioned. He did not offer any further evidence of Dr Kitingan's alleged involvement in a secessionist plot in Sabah, or refer to the possibility of a white paper on the subject which had been mentioned two years earlier.

32. The Advisory Board recommended that Dr Kitingan be released in February 1992, but this recommendation was rejected without an explanation being given.

Evidence of Dr Kitingan

33. Dr Kitingan is a very well educated man with degrees in Business Administration, Public Administration, Law and Diplomacy together with a Ph.D. in International Affairs. He was appointed to be director of the Foundation in 1985. Dr Kitingan corroborates Dr Reece's evidence with regard to historical matters and to his involvement with the Foundation.

34. The charges brought against Dr Kitingan relate to bribes, inducements and commissions which it is alleged Dr Kitingan took for his own benefit whilst acting as director of the Foundation and were offered as a result of the Foundation's involvement in the nomination and approval of vessels used for the export of logs from Sabah.

35. Dr Kitingan referred to correspondence between his Malaysian solicitors and the Attorney General's Chambers in Malaysia and the ACA between February and April 1990 which related to a request by the ACA to take a statement from him as to his assets and expressly stated that the questions would be unrelated to the pending corruption charges. This request was made after Dr Kitingan had been charged with the seven offences of corruption. However, as he and his solicitors were engaged in preparing for a hearing during the course of the trial in respect of the corruption charges, it was inconvenient to prepare a detailed statement of his assets at that time. Nevertheless, the ACA continued to press for a statement and obtained a warrant for Dr Kitingan's arrest on the grounds that he had been unwilling to co-operate. Accordingly, following legal advice, he went to the offices of the ACA on the 20th April 1990 to make a statement but when he enquired whether questions to be put to him were connected with the seven corruption charges, he was told for the first time and wholly contrary to previous representations by the ACA, that they were. As a result, he was of the opinion that he had been requested to attend the ACA offices under false pretences and immediately informed the ACA that he would remain silent which right he had under the Prevention of Corruption Act 1961 because he had already been arrested for the corruption offences. As a result, he said nothing further.

36. Dr Kitingan deals with the new policy requested by the new State Government for which he was responsible in a proposal paper of May 1985 that concerned an attempt to dismantle a powerful local monopoly closely associated with the Berjaya party in Sabah, which was closely linked politically with the Federal ruling Barisan Nasional coalition. Following its formation, the Foundation was granted substantial timber concessions by the State Government between 1967 and 1970 and the profits derived therefrom were used by the Foundation for its social and economic welfare programmes. He refers to the background to the log shipment policy and how the monopoly arose between 1976 and 1985 when the State Government was controlled by the Berjaya party which supported the Federal Government in Kuala Lumpur. The Berjaya party allowed the shipment of timber from Sabah to its export markets, primarily Japan, with the Taiwanese and South Korean markets being also of major significance. It was dominated by a local monopoly which in turn entered into a partnership with a cartel of Japanese ship owners known as the Nanyazi Freight Agreement (N.F.A.). Dr Kitingan describes how the monopoly was set up under the name of Dewaniaga Sdn. Bhd. (Dewaniaga) in 1979 on the instruction of the then Chief Minister of Sabah. That Dewaniaga nominated Archipelago to be its agent and that it was granted a sole and exclusive licence to handle all log carriers calling at Sabah ports to load logs. One exception to the monopoly was Safond Shipping Sdn. Bhd. (Safond) which was given a restricted shipping agency licence to handle vessels belonging to the Foundation whose activities were confined to shipment of logs extracted by the Foundation from their timber concession areas to foreign buyers.

37. As a result, until 1985, the timber export shipment business had been allowed to become concentrated in the hands of the private monopoly Dewaniaga and Archipelago. The monopoly of Dewaniaga and Archipelago then allowed the shipment of timber to be exclusively carried out by the NFA and similar foreign cartels thus preventing local interests from participating in such business with the exception of the restricted shipping agency licence granted to Safond.

38. The Foundation tried to implement the new log policy by having Safond apply to the Federal authorities for a full agents licence so that it could commence accepting vessels for registration in competition to cartel ships. Safond, however, was refused a licence to act as a shipping agent and was subsequently informed by the Director of Customs and Excise, a Federal appointee in Sabah that it was allowed to service only ships belonging to the Foundation thereby maintaining the private monopoly enjoyed by Dewaniaga and Archipelago. Accordingly, it was not possible to implement the new log shipment policy.

39. Subsequently an entity known as S.B.Ocean Sdn. Bhd. (SBO) was set up in about 1987 by a PBS member and received a Federal Government licence to act as a shipping agent in competition with Archipelago. However, this licence was subsequently suspended by the Director of Customs and Excise. Later, the suspension was lifted by the State Governor with the result that SBO could continue to register ships under the new arrangement.

40. Other steps were taken by Dr Kitingan to break the monopoly which included an appointment to the board of Archipelago in order to study the monopoly from within. However he was denied access to information with regard to the financial affairs of Archipelago, so he resigned after a few months.

41. Between August and October 1988, an entity known as PSS obtained a licence from the Federal Government in Kuala Lumpur to act as agent for log shipping companies. This company in effect holds the monopoly in place of Dewaniaga and Archipelago for although SBO has provided ship owners with a choice, PSS has in fact been preferred. Accordingly, the attempts to break the old monopoly have had little or no effect.

42. Dr Kitingan states that the first four charges against him relate to alleged payments and inducements said to have been made to him as a result of favouring PSS, both in appointing it as an agent acting within the timber shipment business and in approving vessels nominated by PSS. The other three charges relate to alleged payments and inducements said to have been extended by Dr Kitingan in return for granting favours to SBO allegedly in appointing that company as an agent for the purposes of the log shipment policy and in varying the terms and conditions of the licences granted to vessels whose registration applications were submitted through SBO. Dr Kitingan has denied all the charges.

43. Dr Kitingan disputes that he has ever advocated the secession of Sabah from the Federation but that he has consistently maintained that Sabah should be granted a degree of autonomy and equality within the Federation thus according to it the recognition which was granted to the Borneo states as a result of their special position within the Federation upon independence in 1963.

44. Dr Kitingan was informed by his wife that officers from the ACA and the police came to his house at about 6:30 a.m. on the 22nd January 1990 with a warrant for his arrest in connection with the seven charges of corruption. Some of the party were armed with M16 rifles whilst they were accompanied by tracker-dogs and a television crew. Although Dr Kitingan's wife said that her husband was away, a search of the house was made. Dr Kitingan voluntarily surrendered himself to the ACA offices in Kota Kinabalu the following day where he was formally arrested and produced at the Sessions Court, charged with the seven counts of corruption and thereafter released on bail.

45. Dr Kitingan confirms that he was arrested under the Internal Security Act on the 13th May 1991 on the grounds that he represented a threat to national security in that he was the prime planner of a secret plot to secede Sabah from Malaysia by armed violence. When he attended the interview at the police station in Kota Kinabalu following his arrest, he was informed that it was in connection with an investigation into the activities of four Sabahans who had been arrested on the grounds of the alleged plot to secede. Particulars of the allegations in support of this ground are attached to the order for detention which specifies incidents that occurred in 1986, 1987 and 1990.

46. After his arrest under the Internal Security Act, Dr Kitingan's houses were searched, together with his office at the Foundation where several documents were seized including a copy of his asset declaration statement and documents relating to the log shipment policy. Although he objected to the seizure of these documents as they could only have been relevant to the seven charges of corruption, his protests were ignored.

47. On the evening of his arrest Dr Kitingan was flown to Kuala Lumpur where he was placed in a detention centre. He was detained for some days in appalling conditions before he was interrogated. The interrogation focused upon an alleged plot for Sabah to secede from the Federation which lasted initially for three days and three nights during which time he was deprived of food, drink and sleep. Thereafter the interrogation continued for the remainder of the initial 60 days detention during which time he received very rough treatment.

48. The detention order that was renewed against Dr Kitingan in July 1993 was suspended with effect from the 22nd December 1993 subject to certain restrictions and conditions including a condition not to change his residence without the permission of the Chief Police Officer or leave the district of Seremban near Kuala Lumpur where he is now living. Further, he is not permitted to address any public meetings or to engage in any political activity and is not permitted to write or publish any articles of a political nature.

Evidence of Mr Harjeet Singh

49. Mr Harjeet Singh in his first affirmation states that Dr Kitingan was detained in July 1991 and that there have been four occasions when his case was reviewed by the Advisory Board. He states that Dr Kitingan was given no information as to the outcome of those reviews or the recommendations made by the Board. Mr Singh says that he knows Dr Kitingan's wife and that she and Dr Kitingan have been assessed to income tax. Dr Kitingan's wife's liability has been assessed at over M$8 million although it is contended that she has no income and has never worked. Mr Singh has been informed by Dr Kitingan's wife that the Inland Revenue Department have imposed stop notices on her and Dr Kitingan pursuant to the Income Tax Act since February 1990 as a result of which she has been and is still prevented from leaving Malaysia. This has prevented her from visiting her two sons studying in secondary school in Western Australia. Judgment has been obtained against Dr Kitingan in respect of his tax liability. However, an appeal has been lodged, but has not yet been heard. No judgment has been obtained against Dr Kitingan's wife nor has any enforcement action been taken against her.

50. In his second affirmation, Mr Singh refers to the release in December 1993 of the three Sabahans who had been detained under the Internal Security Act in respect of the alleged plot to secede Sabah from Malaysia. At that time Dr Kitingan was still detained and the Deputy Home Minister stated that there were "technical problems" which did not allow for his release. No information or explanation was given as to what was meant by "technical problems". However, as I have said, Dr Kitingan was subsequently released on the 22nd December 1993 subject to the conditions to which I have referred.

Evidence for the Appellant

51. An affirmation has been filed on behalf of the appellant by Mr Gong Sieng Mee who is an investigation officer attached to the ACA who states that the criminal proceedings are not politically motivated.

52. One further affirmation filed by the appellant that was not before the master is that of Mr Abdul Gani Patail made on the 20th October 1993. In this affirmation Mr Patail states that be is the Senior Federal Counsel and Deputy Public Prosecutor attached to the Attorney General's Chambers in Kota Kinabalu and is the leading prosecuting counsel in respect of the seven corruption charges pending against Dr Kitingan. He denies that the charges are politically motivated and that he decided and advised the Attorney General on the 19th January 1990 that there was sufficient evidence to warrant a prosecution against Dr Kitingan. He based his opinion upon the evidence gathered by the ACA that there is sufficient prima facie evidence to prosecute Dr Kitingan.

Meaning of Political Character and Conclusions

53. Mr Grossman submitted that there is a difference between the words "proceedings" and "criminal matter". In construing s.77B(3) of the Evidence Ordinance, he contended that regard must be had to s.77B(2) that refers to "criminal proceedings" and provides that in its application that "civil proceedings" be substituted by "criminal proceedings" and s.74 which reads with "civil proceedings" being substituted by "criminal proceedings as follows:

"Criminal proceedings', in relation to the requesting court, means proceedings in any criminal .... matter."

As a result, the section may be read as follows :

"Nothing in this section applies in the case of any proceedings in any criminal matter of a political character".

Accordingly he posed the question as to whether the adjectival phrase "of a political character" will qualify the word "proceedings" or the words "criminal matter". He also submitted that the three authorities cited on extradition are of limited assistance and that although the relevant sections are similar, the interpretation must be different. He emphasised that a request for extradition involves the requested court dealing with the liberty or life of the accused and will therefore be particularly astute to ensure that its protection is not lifted for unworthy reasons. In support of his submission, Mr Grossman cited In re Extradition Act 1970 ex parte Treasury Solicitor (In re Gross) [1969]1 WLR 12 where Chapman J. summarised the position appositely as follows at p. 15 when he had this to say:

"....., the phrase 'any criminal matter' must have the same or a cognate meaning; in other words, the reference is to the nature of the proceedings, be they by what we would call summons, charge, indictment, or what have you. If that is the meaning of the words in the body of the section, the same meaning must, I think, be given to them in the proviso. In other words, when one is considering the words in the proviso, 'any criminal matter of a political character,' one has to look, not at the character of the offence which is charged, but to the character of the proceedings which have been instituted.

The effect of this interpretation is that no order for the examination of a witness can be made when the 'criminal matter,' that is, the prosecution, is of a political character. This might well involve, even in a world less complicated than ours, quite difficult issues. It is perhaps unlikely nowadays that a State would seek the assistance of a foreign court in securing evidence to show that a person belonged to a prescribed political party, but as a possibility it cannot be ignored. In any case, there are all sorts and kinds of holding charges, sometimes of a highly technical character, which might be resorted to in order to drag in a person whose head was wanted for political reasons, that is, because he was from the point of view of his political opponents a dangerous character."

Later on p.16 he said:

"I think the words must postulate some sort of political behaviour on the part of the accused which makes it in the eyes of those in power desirable that he should be rendered silent or inactive."

54. In connection with the meaning of the words "proceedings of a political character", my attention was drawn to three extradition cases : R. v. Governor of Brixton Prison Ex parte Kolczynski [1955] 1 QB 540; Schtraks v. Government of Israel [1964] AC 556; and R.v. Governor of Winson Green Prison Birmingham. Ex parte Littlejohn [1975] 3 All ER 208. In these cases the court went behind the words of the statute in order to decide whether there has been any political motivation behind the offence. Most assistance can be derived from the speeches of Lord Reid, Viscount Radcliffe and Lord Hodson in Schtraks. At p.583 Lord Reid had this to say :

"So it appears to me that the motive and purpose of the accused in committing the offence must be relevant and may be decisive. It is one thing to commit an offence for the purpose of promoting a political cause and quite a different thing to commit the same offence for an ordinary criminal purpose.

Moreover, I do not think that the application of the section can be limited to cases of open insurrection. An underground resistance movement may be attempting to overthrow a government and it could hardly be that an offence committed the day before open disturbances broke out would be treated as non-political while a precisely similar offence committed two days later would be of a political character. And I do not see why the section should be limited to attempts to overthrow a government. The use of force, or it may be other means, to compel a sovereign to change his advisers, or to compel a government to change its policy may be just as political in character as the use of force to achieve a revolution. And I do not see why it should be necessary that the refugee's party should have been trying to achieve power in the State. It would be enough if they were trying to make the government concede some measure of freedom but not attempting to supplant it."

Viscount Radcliffe at 591 and 592 said :-

" In my opinion the idea that lies behind the phrase 'offence of a political character' is that the fugitive is at odds with the State that applies for his extradition on some issue connected with the political control or government of the country. The analogy of 'political' in this context is with 'political' in such phrases as 'political refugee,' 'political asylum' or 'political prisoner.' It does indicate, I think, that the requesting State is after him for reasons other than the enforcement of the criminal law in its ordinary, what I may call its common or international, aspect. It is this idea that the judges were seeking to express in the two early cases of In re Castioni [1891] 1 Q.B.149 and In re Meunier [1891] 2 Q.B.415 when they connected the political offence with an uprising, a disturbance, an insurrection, a civil war or struggle for power: and in my opinion it is still necessary to maintain the idea of that connection. It is not departed from by taking a liberal view as to what is meant by disturbance or these other words, provided that the idea of political opposition as between fugirive and requesting State is not lost sight of: but it would be lost sight of, I think, if one were to say that all offences were political offences, so long as they could be shown to have been committed for a political object or with a political motive or for the furtherance of some political cause or campaign. There may, for instance, be all sorts of contending political organisations or forces in a country and members of them may commit all sorts of infractions of the criminal law in the belief that by so doing they will further their political ends: but if the central government stands apart and is concerned only to enforce the criminal law that has been violated by these contestants, I see no reason why fugitives should be protected by this country from its jurisdiction on the ground that they are political offenders."

In the same case, Lord Hodson emphasised at p.612 :-

".... there must be either in existence or in contemplation a struggle between the State and the fugitive criminal. ........... In some modern States politics and justice may be inextricably mixed, and it is not always easy, for example, to say what amounts to a revolt against the Government."

55. It is clear from the authorities that the accused must be at odds with the state, and in this case Mr Grossman has conceded that Dr Kitingan is at odds with the Federal Government of Malaysia.

56. Lord Widgery adverted to the importance of the attitude of the requesting authority as well as that of the accused in deciding whether an offence is of a political character when he said in Littlejohn at p.211 :-

" Counsel for the applicant in the course of his argument before us has stressed, as indeed he must stress, the important fact that the attitude of the requesting authority is at least as relevant in deciding whether the offence is an offence of a political character as is the attitude and motive of the wrongdoer himself. ............ I quite accept that one of the most important factors in deciding whether an offence is of a political character is to see whether the requesting authority are minded to use their right to extradition for some ulterior and political motive in order that they may punish the man for his politics rather than for the actual offence in respect of which extradition is sought."

Later, on the same page and p.212 Lord Widgery said :-

" Thus one reaches the stage now on the weight of authority, and a considerable weight it is, that an offence may be of a political character, either because the wrong-doer had some direct ulterior motive of a political kind when he committed the offence, or because the requesting state is anxious to obtain possession of the wrong-doer's person in order to punish him for his politics rather than for the simple criminal offence referred to in the extradition proceedings."

57. Although Mr Grossman argued that a Letter of Request as it concerns criminal proceedings rather than a criminal offence requires a less stringent examination than a case that concerns extradition, I do not agree. In my judgment, the words "proceedings" and "criminal matter" are in wide terms and must be given their ordinary meaning. I agree with the master that the words can be used interchangeably and in effect there is no difference. The guidelines set out in the authorities cited require the court to look behind the statute and to look at all the surrounding circumstances as a whole and not in isolation. It is also important to look at the motivation of those persons who were responsible for the institution of the proceedings as well as the motivation of Dr Kitingan.

58. At the time of Federation, assurances were given by the Federal Government that the special interests of Sabah would be safeguarded after it became a member of the Federation. The main issues were set out in the document known as the "Twenty Points". However, it is claimed that those safeguards have been seriously eroded by the Federal Government with the connivance of the State Governments that held power until 1985. The new PBS party was elected as the State Government in 1985 on a manifesto to restore the state rights advocated by Dr Joseph Kitingan through the Institute for Development Studies. One of the main issues to be addressed was the log shipment policy. Dr Kitingan prepared a proposal to break the monopoly that had been exercised by Dewaniaga and Archipelago. However, the efforts of the State Government were met with opposition from the Federal Government. On the 2nd January 1987, Dr Kitingan made a public statement in which he said that one of the main sources of unhappiness with the Federal Government in Sabah was its apparent non-compliance with the original "Twenty Points" which he regarded as the basis for Sabah joining the Federation. He also stated that it was a common perception that the Federal leadership had been influencing the development of political events in Sabah to the detriment of the ruling party. On the 13th January 1987, Deputy Prime Minister Ghafar bin Baba was reported to have challenged PBS to substantiate the allegations with the result that Dr Kitingan produced a long memorandum addressed to the Federal Government and entitled "The 20 Points basis for Federal-State Relations for Sabah". This very detailed memorandum was presented to the Federal Government by Dr Kitingan in his capacity as a concerned citizen through the State Government in order to improve Federal-State relations. After dealing with the "Twenty Points" and subsequent developments, Dr Kitingan in his conclusions wrote :

" In conclusion, it is shown that there are a number of critical areas in which the Federal government has deviated from the original spirit and meaning of the constitutional safeguards and assurances granted to Sabah at the time of the formation of Malaysia. The basic conditions were contained in a memorandum called the 'Twenty Points', the contents of which were subsequently incorporated into the IGC Report, the Malaysia Agreement and the Federal Constitution. The principal areas in which there have been clear deviations with respect to implementation are those which relate to matters pertaining to Immigration, Religious freedom, Borneonisation, Citizenship, Education, Finance, and Tariff Arrangements and Constitutional safeguards.

Deviations in implementation with respect to these matters have been largely responsible for strained Federal-State relations, thereby presenting barriers to territorial integration. It must nevertheless be stressed that problems pertaining to Federal-State relations do not originate merely from deviations as described above. Equally important is the problem of political interference by Kuala Lumpur in State affairs.

As a result of the deviations and political interferences, an idea is now slowly taking root that there is going to be a 'take-over' of the Borneo Territories by Malaya and the submersion of the individualities of Sabah and Sarawak."

59. At the beginning of January 1990, Dr Kitingan published a New Year Message in which he raised some of the specific grievances held by the State Government in its relation with the Federal Government and in particular, the failure by the Federal Government to act against the duplication of names on electoral rolls and the naturalization and electoral registration of large numbers of illegal immigrants and the erosion of State powers in such areas as fisheries, mining and forestry. Dr Kitingan also sought the equal distribution of oil and gas revenue between the Federal and State Governments and for Sabah to have greater representation on Federal Government boards and authorities.

60. It is abundantly clear from the evidence that the motivation of Dr Kitingan is political in character for he is at odds with the Federal Government with regard to the grievances that he has expressed on behalf of the State of Sabah. The Federal Government retaliated by arresting him on corruption charges in 1990 and later arresting him in the same year on the grounds that he had not co-operated with the authorities with regard to the disclosure of his assets. When he was interviewed about his assets, Dr Kitingan maintained his right of silence when he realised that questions were being put to him about the corruption charges for which he had already been arrested. Finally, he was charged in May 1991 under the Internal Security Act that he was a threat to the security of the State. Yet the allegations preferred go back to 1986, with the most recent being in 1990. No evidence has been forthcoming to justify the allegations by way of a criminal prosecution that Dr Kitingan intended to take steps to secede Sabah from the Federation by armed violence.

61. The inextricable link with politics also arises under the Internal Security Act which resulted in questions being asked about matters which were clearly directed to the charges of corruption. The instances of the raid by the Inland Revenue Department, the investigation by the ACA and the political attacks made upon Dr Kitingan, together with the arrest of prominent politicians of the State, including the Chief Minister Dr Joseph Kitingan all indicate an intention by the Federal Government to discredit the State Government and bring about its downfall.

62. Whilst the investigating officer Mr Gong of the ACA and Mr Patail, the prosecuting counsel for the Malaysian Government, have stated that the charges upon the evidence are not politically motivated, that evidence cannot be accepted in isolation when all the surrounding circumstances have to be considered.

63. A point was raised that Malaysia has the separation of powers but it is not Dr Kitingan's case that Malaysia does not have such separation, nor that the courts there are likely to be influenced by the executive.

64. It is indeed unlikely that the corruption charges would have been preferred without the approval of persons in high authority. Indeed, the charges of corruption cannot be described as merely straightforward criminal offences for it is not as if for example Dr Kitingan offered a bribe to a police constable for his agreement not to report a traffic offence but arise directly from the log shipping policy which was obviously a matter of political concern. I agree with Mr Thomas that the charges of corruption are part and parcel of a political campaign directed against the PBS leadership and its supporters to undermine their political power and credibility in Sabah, and as part and parcel of a sustained campaign to victimise Dr Kitingan for his political activities and beliefs. Dr Kitingan has been discredited by the accusations that he is a tax evader, corrupt and a threat to the security of the State. The allegations are clearly politically motivated and inextricably linked with politics with the result that I draw the irresistible inference that the charges against Dr Kitingan relate to criminal proceedings of a political character. Accordingly, Master Beeson was right when she set aside the order of Master O'Donnell on this ground.

Abuse of Process

65. The only evidence of abuse of process was an affirmation on behalf of Dr Kitingan by Judge Suffian, a distinguished jurist who was Lord President of the Federal Court of Malaysia, from 1974 to 1982 and Chief Justice of the High Court of Malaya from 1973-1974. Judge Suffian is now the Vice-President of the International Labour Organization, Administrative Tribunal, Geneva and a judge of a similar tribunal of the World Bank in Washington D.C.

66. In his affirmation of the 4th March 1991, Judge Suffian has explained the relevant law relating to the admissibility of deposition evidence by absent witnesses in criminal proceedings in Malaysia. As there is no provision of Malaysian law specifically dealing with the admissibility of depositions obtained abroad, he has invoked the provisions of the Criminal Procedure Code FMS, Cap.6 and the Evidence Act 1950 (Revised 1971) to determine whether the depositions requested are admissible. After consideration of the law of Malaysia, he states that the depositions to be taken in Hong Kong pursuant to the Letter of Request do not fall within the provisions of the Code or the Act and therefore the depositions, if taken, cannot be given as evidence in a criminal trial in Malaysia, Judge Suffian further expressed his opinion that with regard to the evidence of the two bank employees, there is no provision available to compel an officer of a bank in a foreign jurisdiction to produce any banker's books or to appear as a witness to prove the matters and transactions recorded in a foreign jurisdiction for it is ultra vires the Bankers Books Evidence Act 1949.

67. In respect of this issue, my attention was drawn to In re Westinghouse Electric Corporation Uranium Contract [1978] AC 547 where Lord Diplock in his speech at 634 said :-

" The English court cannot be expected to know the systems of civil procedure of all countries from which request for an order under the Act of 1975 may come. It has to be satisfied that the evidence is required for the purpose of civil proceedings in the requesting court but, in the ordinary way in the absence of evidence to the contrary, it should, in my view, be prepared to accept the statement by the requesting court that such is the purpose for which the evidence is required.

The letters of request from the United States District Court for the Eastern District of Virginia ('the letters rogatory') contained in the preamble what on a fair reading is, in my view, an adequate statement to this effect; so the High Court had jurisdiction to make an order. It was not bound to do so, but I think that the court should hesitate long before exercising its discretion in favour of refusing to make an order unless it was satisfied that the application would be regarded as falling within the description of frivolous, vexatious or an abuse of the process of the court."

68. No expert evidence was adduced by the Crown in opposition to the evidence of Judge Suffian, but Mr Grossman attempted to show from the bar table that Judge Suffian's opinion was wrong on the basis that he had overlooked the Malaysian Rules of Court which are similar, although not identical, to the Rules of England and Hong Kong. However, it is clear that he was not entitled to do so and that the proper course would have been for him to file expert evidence in reply, which he chose not to do. Mr Grossman also relied upon a passage from the speech of Lord Keith in the Westinghouse case at p.654 where he had this to say :-

"In the face of a statement in letters rogatory that a certain person is a necessary witness for the applicant, I am of opinion that the court of request should not be astute to examine the issues in the action and the circumstances of the case with excessive particularity for the purpose of determining in advance whether the evidence of that person will be relevant and admissible. That is essentially a matter for the requesting coup."

The issue in this case is not as was submitted by Mr Grossman to determine what is or what is not admissible in evidence which is clearly a matter for the court in Malaysia to decide, but whether the form in which the evidence of the witnesses is required irrespective of its relevance can be used in the criminal trial in Malaysia. Having regard to the uncontradicted evidence of Judge Suffian, I am satisfied that the evidence requested cannot be used in a Malaysian court. Accordingly, to make an order under these circumstances would be an abuse of the process of the court.

69. The appeal will therefore be dismissed and there will be an order nisi for costs in favour of Dr Kitingan with a certificate for two counsel.