Remand order against Penang exco, 2 others invalid, says court

PUTRAJAYA: The Court of Appeal today affirmed a High Court declaration last year that a remand order issued by a senior assistant registrar (SAR) to detain a Penang state executive councillor and two others for a corruption investigation was defective.

A three-man bench, chaired by Justice Mohtarudin Baki, said there was no merit in the Malaysian Anti-Corruption Commission’s appeal against the High Court ruling.

“We find no merit and the appeal is dismissed,” said Mohtarudin, who sat with Justices Yaacob Md Sam and Abdul Karim Abdul Jalil.

Lawyer Ramkarpal Singh, who appeared for Phee Boon Poh, had asked the bench to dismiss the appeal as it was academic.

Counsel Dev Kumaraendran, who represented factory manager Gan Buck Hee and his son, Edmund Gan Eu Leong, a factory director, also took a similar stand.

On Aug 14, Phee, Buck Hee and Eu Leong walked free after their remand order was set aside.

On Aug 12, the SAR had allowed the MACC to detain the three for five days for the anti-graft agency to complete its investigation into an illegal carbon filter-processing factory in Kampung Sungai Lembu, Bukit Mertajam.

They were picked up a day earlier and produced before the SAR to get the remand order under Section 117 of the Criminal Procedure Code (CPC).

At the remand hearing, Phee’s lawyers raised a preliminary objection that a suspect was entitled to have access to legal representation. Lawyers for Phee and MACC made submissions on the right to counsel before the SAR.

However, 30 minutes later, the SAR allowed the MACC’s application to detain all three suspects for five days, without ruling on the objections raised.

By way of revision, the matter was heard by Judicial Commissioner Abdul Wahab Mohamed, who rescinded the remand order issued by the SAR.

In his 25-page judgment, Wahab said the SAR did not act in compliance with the strict requirements of section 117 of the CPC in issuing the remand order by not allowing lawyers for Phee to submit on the merits of the case.

He said this had denied them natural justice and a fair trial, and had “thereby occasioned a serious miscarriage of justice which had seriously prejudiced the applicants (the trio)”.

Wahab said in the adversarial criminal justice system, there were fundamental safeguards built into the law to guarantee equality and fairness which ought to be strictly observed and complied with.

“In criminal proceedings, it will only be fair if there is equality of arms between the prosecution and the defence,” he said.

Meanwhile, Ramkarpal told reporters that today’s decision to affirm the finding of the High Court should serve as a guide to magistrates and lower court registrars who presided over remand proceedings.

“A suspect, even unrepresented, must be given the right to be heard by a magistrate or registrar before a remand order is made as it affects the liberty of the person,” said Ramkarpal, who was assisted by RSN Rayer. -FMT