A case in which an activist was charged with disobeying a police order to stop live recording a police raid, is back on trial.
The Shah Alam High Court today overturned the discharge not amounting to an acquittal (DNAA) granted to Wong Yan Ke and sent the case back to the Magistrates’ Court for trial.
"This case is to be reverted to the Magistrates’ Court," judge Aslam Zainuddin ruled.
Wong (above) - a former Universiti Malaya Association of New Youth (Umany) president - was arrested on Nov 7, 2020, when police raided the house of his successor Yap Wen Qing.
This was in relation to a probe of a Umany article on the role of the Yang di-Pertuan Agong.
Wong had filmed the police raid on his phone and defied instructions for him to stop doing so.
Initially, the police had charged him under Section 186 of the Penal Code (obstructing a public officer) but they later switched to Section 188 (resisting a public servant in the discharge of his duty) for prosecution.
However, in October this year, the Magistrates’ Court granted Wong a DNAA after the prosecution failed to present any of its five witnesses in court.
The High Court later called for the decision to be reviewed, leading to today's decision.
‘Only AG has authority over DNAA’
During today’s proceedings, lead prosecutor Shahrul Ekhsan Hasim argued that the Magistrates’ Court has erred in granting Wong the DNAA because the prosecution has not dropped charges against him.
“But then, putting aside (that the charges have not been dropped), we argue that the magistrate has erred, totally erred, because he has no authority at all to use this discretionary power to grant a DNAA.
“Only the attorney-general has that power. That is why this revision came in and we want this case to be reverted back and continue in the Magistrates’ Court.
“In this case, the prosecution has never told the court that we might discontinue the case,” he said.
He added that the witnesses had failed to appear in the previous hearings because they had yet to receive their subpoenas.
Wong’s counsel Shashi Devan concurred, citing Article 145(3) of the Federal Constitution and Section 376 of the Criminal Procedure Code that only the attorney-general may discontinue or drop charges.
However, he also argued on three grounds that the High Court should acquit Wong.
These are: The prosecution has allegedly failed to follow due process; the prosecution has yet to file for an appeal against the DNAA decision; the High Court has the discretion to acquit Wong based on the lack of evidence.
The court ultimately decided the revert the case to the Magistrates’ Court.
Police accountability
Speaking to reporters outside the courtroom, Wong said he accepts the High Court’s decision.
“We will certainly take today’s decision in stride and prepare to continue with proceedings since the case involves public interest.
“It (the case) will decide whether people have the right to record and livestream police enforcement activities.
“This is the only way for the people to ensure the police can be held accountable. The police cannot hold excessive arbitrary powers and become unaccountable.”
Shashi added that Wong had always intended to defend his case.
“We had never asked for the matter to be DNAA because Wong has always believed that he had the right to a fair trial as entrenched in the Federal Constitution, and he would like to have his day in court to prove his innocence,” he said. - Mkini
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