KUALA LUMPUR, Dec 12 — With Low Taek Jho charged twice already in Malaysia, can the courts proceed with his trial even when he is still a fugitive abroad?
The short answer is yes. The trial can go on without him in court based on Malaysian laws.
What are the conditions?
Section 425A of the Criminal Procedure Code covers the scenario of “trial in absence of an accused”.
It says the court can continue with the trial without the accused person being present, as long as the court does not mete out the death sentence, imprisonment for life or imprisonment for natural life on the accused. (According to the Malaysian Prison Department’s website, life imprisonment is for the duration of 30 years, while a natural life sentence would mean being jailed for a person’s entire natural life without a release date.)
The court can even acquit, convict or sentence an accused who is not in court, according to Section 425A(2) and Section 425A(7).
Although critics have said that principles of natural justice require a person to be present during a trial against him, Section 425A(1) states that an accused person who flees before or during a trial will be considered to have given up his right to be present during trial proceedings.
For such a person who has absconded or escaped, his lawyer can continue to represent him during the trial in his absence, while the judge can also draw an adverse inference or negative conclusion from the fact that the accused has absconded, according to Sections 425A(4) and 425A(6).
What if there’s an arrest warrant?
The court can choose to do two things.
It can wait for the accused to appear or for the arrest warrant to be executed.
Or, it can decide to go on with the trial if it is satisfied that it is no longer in the interest of justice to wait for the accused to turn up or to be arrested.
So how does a trial in absentia work?
Criminal lawyer Datuk Baljit Singh Sidhu said the process for such a trial would be similar to an ordinary trial.
Conviction in absentia
If the court convicts someone in absentia, Baljit told Malay Mail that there will be an arrest warrant issued and there could be a move to have the person put on an international “wanted list” by having Interpol issue a Red Notice.
A convict who is not present would have to first be arrested before the court’s sentence can be enforced, Baljit said.
“He cannot pay the fine in absentia, he’s not coming to court...So it will be a paper judgment, the judgment of the court will be paper judgment, no value until you arrest him. But that will give you time to register with Interpol, international agencies,” he said.
Baljit confirmed that Section 425A was not limited to any particular type of offence.
He explained that if a person is convicted and unable to pay a fine, it would generally result in imprisonment in default of a fine.
The authorities would not be able to seize the individual’s company’s funds in such a scenario, as both the individual and company are different legal entities, he said.
But it would be different if the conviction is for an offence under the country’s anti-money laundering laws, where the authorities can “forfeit the money in the company” if the court finds the prosecutor had proven its case and even in the individual’s absence, Baljit said.
So why did the government introduce trial in absentia?
Section 425A was introduced by the previous Barisan Nasional (BN) administration through an amendment that was passed by the Dewan Rakyat on May 19, 2016 and the Dewan Negara on June 13, 2016.
According to the Parliament Hansard, the then de facto law minister Datuk Seri Nancy Shukri explained on May 19, 2016, that the provision enabling trial in absentia was not to be simply used for all cases, but with the courts to provide checks and balance by deciding whether to apply it.
Nancy had listed various reasons that led to the government wanting to introduce it, including the infamous blogger Alvin Tan who fled abroad before his trial, cases that involve “national interest”, as well as to prevent “abuse of process” by the accused and ensure that justice is not only for the accused but also the victims.
Back to Jho Low
On August 24, Low was charged in absentia together with his father with money-laundering in connection with the 1Malaysia Development Berhad (1MDB) scandal.
Low was himself charged with three counts of receiving a total of almost US$260.75 million and five counts of transferring a total of €41.1 million and nearly US$140.64 million with the money-laundering offences allegedly committed from December 2013 to June 2014 period, while his father was charged with transferring about US$56.45 million to him in February 2014.
For each of these charges under the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLATFA), a conviction will result in a penalty of a maximum RM5 million fine or maximum five-year jail term or both.
The police had then reportedly said arrest warrants had been issued for the duo who were abroad and that Interpol would be requested to issue a ‘Red Notice’ to track them down to be brought to court here.
On December 4, Low and four others were charged in absentia for causing the government losses of US$1.17 billion (RM4.2 billion).
Low was charged with five counts of money-laundering under AMLATFA by receiving US$1.03 billion during the September 2009 to October 2011 period, and was charged with another person with two counts of money-laundering under AMLATFA over a US$126 million sum.
The same penalties apply for the December charges against Low and the other person.
The police have said that the court has issued arrest warrants for the five who had fled from Malaysia and will be seeking the aid of international authorities including Interpol, with the five to be extradited back to Malaysia to face charges if they are found abroad.