Khairuddin and Chang's Sosma ordeal is over

The Federal Court today dismissed the prosecution's appeal on the detention and trial of politician Khairuddin Abu Hassan and lawyer Matthias Chang under the Security Offences (Special Measures) Act 2012 (Sosma).

The five-member bench ruled that the prosecution's appeal was defective, as a notice of appeal to the Federal Court had not been served on the pair after the case at the High Court had been disposed of.

This follows the apex court allowing the motion, dated Feb 10, from Khairuddin and Chang on the matter.

"We agree with the applicants that under Rule 88(1) (of the Rules of the Federal Court), it is mandatory for the appellant (prosecution) to serve the notice of appeal.

"In our view, this was not done. We allow the (defendants') application and both appeals by the prosecution will be struck out," said Justice Hasan Lah.

The other judges were Justice Abu Samah Nordin, Justice Ramly Ali, Justice Zaharah Ibrahim and Justice Jeffrey Tan Kok Wha.

With the decision today, Khairuddin and Chang would be tried under the Criminal Procedure Code and the Evidence Act 1950, and not under Sosma.

Lawyers Haniff Khatri Abdulla (photo) for Khairuddin and Zainur Zakaria for Chang told the court that the prosecution's appeal is defective as the notice was not served on them.

“They filed the appeal to the registrar the next day but it was not served on our clients. This is despite them being in the country as they are not allowed to travel overseas following the charge and with their passports being held by the Sessions Court,” Haniff said.

He added that the High Court had, on Nov 18, 2015, decided in Khairuddin and Chang's favour that the charge under alleged financial sabotage should not be under Sosma and allowed them bail.

The decision was upheld by the Court of Appeal four months ago and Haniff said the notice of appeal was filed with the Federal Court registrar on Dec 14 last year.

'Notice must be served by prosecution'

He added that they received a letter from the Federal Court registrar on Feb 2 this year, informing them about the prosecution's appeal and on Feb 10, they filed the motion to set-aside the appeal on grounds that the appeal had been improperly brought before the apex court as it did not comply with the rules.

Zainur told the bench that under Rule 88 (1), the service of the notice must be done by the prosecution.

“You cannot expect the court registrar to serve the papers on them,” he said.

DPP Awang Armadajaya Awang Mahmud said the non-serving of the notice to Khairuddin and Chang does not make the notice null and void as what is important is that a copy of the notice of appeal had been with the registrar.

Khairuddin and Chang were charged under Sosma - an anti-terrorism law that prescribes preventive detention powers - in October 2015 for allegedly attempting to sabotage Malaysian banking and financial services.

Prosecutors claim that the pair had sabotaged Malaysia's financial and banking institutions by lodging police reports in Singapore, Hong Kong and the United Kingdom on the 1MDB issue.

The High Court ruled that this charge was not applicable under Sosma and subsequent appeals by the prosecution were unsuccessful

However, Khairuddin and Chang will still have to face charges under Section 124L of the Penal Code at the Sessions Court on May 11 for alleged sabotage.

If found guilty, the two could be jailed for up to 15 years.

Commenting on today's decision, Khairuddin said he would continue on with the fight to seek the culprits behind the losses incurred by 1MDB and seek to send them to the Sungai Buloh Prison.- Mkini