A provision in an anti-graft law requiring the accused to give a defence statement before trial is unconstitutional, the High Court heard today, in a motion brought by the lawyers defending Penang Chief Minister Lim Guan Eng and businesswoman Phang Li Koon in a corruption trial.
Defence counsel Gobind Singh Deo and V Sithambaram said Section 51A of the Criminal Procedure Code (CPC) allows prosecutors to introduce evidence and documents in the course of a case, while the defendants are unable to do the same.
“The provision of Section 51A seems to give more leeway to the prosecution to use further evidence and documents in the course of their case whereas Section 62 of the Malaysian Anti-Corruption Commission Act 2009 restricts the accused from producing facts and documents before the commencement of the case.
“If that is the case, it is against the provision of equality under the federal constitution under Article 8(1),” Gobind said.
The lawyers also argued that the right to remain silent and presumption of innocence were allowed under the federal constitution, under Articles 5(1) and 8(1).
Article 5(1) reads “no person shall be deprived of his life or personal liberty save in accordance with law”, while Article 8(1) reads “all persons are equal before the law and entitled to equal protection of the law”.
However, lead prosecutor DPP Masri Mohd Daud rebutted the lawyers’ arguments, saying the MACC Act did not prevent the accused from giving new defence during a hearing.
“Section 62 of the MACC Act clearly states that it does not prevent the defence to present other defence documents during hearing.
“In comparison however, Section 51A of the same act requires the prosecution to provide any documents to be used in the hearing before the trial.
“The prosecution must also provide a reasonable explanation to the court if they submit documents during the trial, and it’s up to the judge’s discretion to allow the documents,” he said.
Justice Hadhariah Syed Ismail set March 7 for decision on the motion.
On June 30 last year, Lim was charged with using his public office or position to obtain gratification for himself and his wife, Betty Chew, by approving an application by Magnificent Emblem Sdn Bhd to convert agricultural land for residential purposes during a state exco meeting on July 18, 2014.
Lim was also alleged to have used his position to obtain gratification by purchasing a bungalow from businesswoman Phang Li Koon for RM2.8 million, below the property’s market value of RM4.7 million, on July 28, 2015.
Lim and Phang have pleaded not guilty to both charges.
Source : Predeep Nambiar @ FMT Online