Guan Eng trial to proceed after top court rules pre-trial defence constitutional

Today was the hearing of an appeal by the MACC against Lim (pic) and businesswoman Phang Li Koon's previous successful bid at the Court of Appeal to have the Section 62 requirement declared unconstitutional. ― Picture by KE Ooi
Today was the hearing of an appeal by the MACC against Lim (pic) and businesswoman Phang Li Koon's previous successful bid at the Court of Appeal to have the Section 62 requirement declared unconstitutional. ― Picture by KE Ooi

PUTRAJAYA, Dec 14 ― The corruption trial of Penang Chief Minister Lim Guan Eng will go on in January 2018 after the Federal Court overturned today an earlier decision in his favour.

The five-judge panel chaired by Chief Justice Tan Sri Md Raus Sharif unanimously ruled that a Malaysian Anti-Corruption Commission (MACC) Act 2009 provision which requires the accused in graft cases to file a statement of defence before trial is “constitutional”.

“The Court of Appeal held that Section 62 of the MACC Act read together with Section 51A of the Criminal Procedure Code, is ultra vires of Article 5(1) read together with Article 8(1) of the constitution. With respect we disagree,” he said.

Section 62 states that once delivery of documents by the prosecution has taken place, the accused shall, before the start of the trial, deliver a defence statement setting out the nature of the defence and copies of documents which will be tendered as part of the evidence for the defence.

Raus said that Section 62 “does not preclude the defence from tendering additional documents during trial as provided under the Evidence Act”.

“Further Section 62 relates to pre-trial procedure relating to delivery of documents by the defence to the prosecution, not on the admissibility of evidence,” he said.

“Therefore we allow the appeal, as we are of the view that Section 62 is constitutional,” he added.

“With that, we set aside the Court of Appeal order, and order the trial to proceed forewith,” he said, fixing January 10 next year for Lim's graft case to be mentioned at the High Court in Penang.

Raus said the defence could still submit further evidence after the trial starts.

The other judges on the panel today were Court of Appeal President Tan Sri Zulkefli Ahmad Makinudin, Chief Judge of Malaya Tan Sri Ahmad Maarop, Tan Sri Ramly Ali and Tan Sri Azahar Mohamed.

Today was the hearing of an appeal by the MACC against Lim and businesswoman Phang Li Koon's previous successful bid at the Court of Appeal to have the Section 62 requirement declared unconstitutional.

The Court of Appeal had had on August 7 issued a stay order on the proceedings at the Penang High Court for Lim and Phang's corruption case, pending the MACC's appeal at the Federal Court today.

On June 30, 2016, 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 Phang’s company, Magnificent Emblem, to convert agricultural land to residential land during a state planning committee meeting on July 18, 2014.

A conviction for this offence under Section 23 of the MACC Act 2009 is punishable with a maximum 20-year jail term or a fine up to five times the value of gratification, or RM10,000, whichever is higher.

Lim was also charged under Section 165 of the Penal Code for allegedly having used his position to obtain gratification by purchasing his house on July 28, 2015 from Phang at RM2.8 million, which was below the property’s market value of RM4.27 million.

This Section 165 offence is punishable by a maximum two-year jail term or a fine or both.

Phang was charged on the same day in 2016 under Section 109 of the Penal Code for abetting Lim's alleged Section 165 offence, with the penalty upon conviction for the alleged abetment also being a maximum two-year jail term or both.

When met at the Federal Court, Lim's lawyer Gobind Singh Deo said the earlier legal position due to the way Section 62 is worded was that the accused in a corruption trial would have to produce all the documents for his defence before the trial starts.

“But with the Federal Court ruling today, there appears to be a shift in position, to my understanding of it, which is that upon proper construction of that Section, the accused person can produce further documents in support of his defence midway through trial or at the commencement of the trial,” he told reporters.

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