Appellate court throws out bid to try Khairuddin, Matthias under Sosma

The Court of Appeal has dismissed the prosecution’s bid to have former Batu Kawan Umno vice-chief Khairuddin Abu Hassan and his lawyer Matthias Chang tried under the Security Offences (Special Measures) Act 2012 (Sosma).

In their unanimous decision today, the three-member panel headed by Tengku Maimun Tuan Mat said there is no merit in the prosecution’s appeal and upheld the decision made by the High Court in Kuala Lumpur last year.

The decision means that - unless it is overturned by the Federal Court - Khairuddin and Chang would be tried under the Criminal Procedure Code and the Evidence Act 1950, and not under Sosma.

They would remain on bail until the end of the trial, in contrast with offences under Sosma, which are non-bailable.

Khairuddin and Chang are facing charges under Section 124L of the Penal Code for attempting to sabotage Malaysia’s banking and financial institutions.

This is for lodging reports with law enforcement agencies in Switzerland, the United States, United Kingdom, Hong Kong and Singapore over the 1MDB scandal.

The two had been detained and tried under Sosma since their initial arrest. Among others, Sosma allows for detention for up to 28 days without judicial oversight, and no opportunity for bail.

Charges don't fall under Sosma

This was until High Court judge Mohd Azman Husin ruled on Nov 18 last year that charges of sabotage of banking and financial services do not fall under Sosma.

Sosma was enacted under Article 149 (1)(a), (b), (d) and (f) of the Federal Constitution, which allows Parliament to enact laws that would otherwise violate the constitution’s guarantee of fundamental liberties in certain circumstances.

These include situations where a substantial body of people attempt to organise violence, excite disaffection against the Yang di-Pertuan Agong and take action that is prejudicial to public order.

Justice Azman held that the charge of attempting to sabotage banking and financial services does not fall under Sosma, and hence Khairuddin and Chang should not be tried under the law.

He had allow each of them bail of RM10,000 with one surety.

At today’s hearing, the prosecution, represented by Awang Mahmud, sought to overturn the High Court decision.

Offences under Section 124L of the Penal Code, he argued, ought to be considered security offences and tried under Sosma, since Section 124L is under Chapter VI of the Penal Code. Sosma defines security offences to include offences listed under Chapter VI of the code.

“If the law is clear, there is no need to refer to the preamble,” Awang Armadajaya said, referring to Sosma’s recital of Article 149.

If Sosma were to apply to this case, he added, then Sosma’s Section 13, which does not allow for bail, ought to apply too.

Khairuddin’s lawyer Haniff Khatri Abdulla (photo) and Chang’s lawyer countered that Parliament could not have intended attempts to sabotage banking and financial services to be considered a security offence.

This is because the recitals in Sosma’s preamble omit Article 149 (1)(e) of the Federal Constitution, which allows Parliament to enact laws abridging fundamental liberties to fend off laws that are “prejudicial to the maintenance or the functioning of any supply or service to the public”.

Also present at the hearing was the senior lawyer Tommy Thomas, who held a watching brief for Chang on behalf of the Malaysian Bar.

Tommy cautioned the court that charging Chang for discharging his duties as Khairuddin’s lawyer would send a chilling effect to other lawyers, who may refuse to accompany their clients to lodge police reports out of fear that it may expose them to legal liability. This, he said, would be against public interest.

Awang responded by saying that Tommy’s arguments were premature, since there is yet to be evidence before the court on whether Chang was merely assisting his client to lodge the reports.

After the Court of Appeal decision, Haniff told reporters outside the courtroom that the charge under Section 124L has been fixed for mention tomorrow at the Sessions Court in Kuala Lumpur, during which a date for the trial may be set.- Mkini