PUTRAJAYA, Dec 15 – The Federal Court today ruled that Penang Chief Minister Lim Guan Eng and businesswoman Phang Li Koon must serve their defence statements to the prosecution before the commencement of their corruption trial at the Penang High Court.
A five man-bench led by Chief Justice Tun Md Raus Sharif however said Lim and Phang could tender their additional defence statements during the trial as Section 62 of the Malaysian Anti-Corruption Commission (MACC) Act 2009 did not preclude the defence from tendering additional documents during trial as provided under the Evidence Act 1950.
He made the ruling after allowing the appeal by the MACC against the Court of Appeal decision which overturned the Penang High Court verdict on Section 62 which required accused persons to disclose their defence statements to the prosecution before the commencement of the trial.
Justice Md Raus ordered the trial at the High Court to be proceed and fixed Jan 10 for case management. He heard the appeals with Court of Appeal president, Tan Sri Zulkefli Ahmad Makinudin, Chief Judge of Malaya, Tan Sri Ahmad Maarop and Federal Court judges Tan Sri Ramly Ali and Tan Sri Azahar Mohamed
In a unanimous decision, the panel was of the view that Section 62 was constitutional and therefore set aside the ruling made by the Court of Appeal which ruled the section read together with Section 51A of the Criminal Procedure Code was ultra vires of Article 5(1) read together with Article 8(1) of the Federal Constitution.
“With respect, we disagree, Section 62 does not preclude the defence from tendering additional documents during trial as provided under the Evidence Act. Section 62 relates to pretrial procedure relating to delivery of documents by the defence to the prosecution, not on the admissibility of evidence. It does not deprive the defence from submitting additional documents during trial.
“Under Section 62, the delivery of documents must be done before commencement of the trial. Therefore we allow the appeal, as we are of the view that Section 62 is constitutional. We set aside the order of the Court of Appeal and make order the trial to proceed forthwith.”
The panel also reinstated the order of the High Court that delivery of the documents must be done before commencement of the trial. The court made the verdict after hearing submissions from Deputy Public Prosecutor Awang Armadajaya Awang Mahmud and lawyers Gobind Singh Deo who represented Lim and Datuk V. Sithambaram who acted for Phang.
On Aug 7, the Court of Appeal allowed the appeals brought by Lim and Phang against the Penang High Court’s refusal of their application to declare Section 62 was unconstitutional and reversed the ruling. Section 62 of the MACC Act states that once delivery of documents by the prosecution pursuant to Section 51A of the Criminal Procedure Code has taken place, the accused shall, before commencement of the trial, deliver the following documents to the prosecution:
(a) a defence statement setting out in general terms the nature of the defence and the matters on which the accused takes issue with the prosecution, with reasons; and (b) a copy of any document which will be tendered as part of the evidence for the defence.
On June 30 last year, Lim pleaded not guilty to charges of corruption in relation to the conversion of land from agricultural to residential and the purchase of a plot of land and bungalow at below market value.
Lim, 56, was charged with using his position as a civil servant, namely, Chief Minister of Penang, to gain gratification for himself and his wife, Betty Chew Gek Cheng, by approving the application for conversion of agriculture land to a public housing zone in southwest Penang to a company, Magnificient Emblem Sdn Bhd.
He allegedly committed the offence while chairing the Penang State Planning Committee meeting at the operations room, Level 28, Komtar building here, on July 18, 2014. The charge under Section 23 of the MACC Act 2009 provides for imprisonment of up to 20 years and a fine of up to five times the sum or value of the bribe, or RM10,000, whichever is higher, upon conviction.
Lim faces a second charge of using his position to obtain for himself a plot of land and a bungalow located at No 25, Jalan Pinhorn, George Town on July 28, 2015 from Phang for RM2.8 million, a price which he allegedly knew did not commensurate with the property’s then market value of RM4.27 million. The charge, under Section 165 of the Penal Code, provides for a jail term of up to two years, or a fine, or both, upon conviction.
Phang pleaded not guilty to abetting Lim in obtaining the bungalow at an undervalued cost. She allegedly committed the offence at the same place and date. The charge under Section 109 of the Penal Code read together with Section 165, provides for imprisonment of up to two years, or a fine, or both, upon conviction. — Bernama