Court rules Lim and Phang need not reveal defence before trial

Lim-Guan-Eng-GobindPUTRAJAYA: The Court of Appeal has ruled that Section 62 of the Malaysian Anti-Corruption Commission Act, which requires accused persons to reveal their defence before trial begins, as unconstitutional.

A three-man bench, chaired by Ummi Kalthum Abdul Majid, in allowing the appeals by Penang Chief Minister Lim Guan Eng and businesswoman Phang Li Koon, said that the section violated Articles 5 (1) and 8 (1) of the Federal Constitution.

Article 5 is about life and personal liberty while Article 8 (1) is about equal protection of the law.

“Section 62 of the MACC Act is ultra vires Articles 5 (1) and 8 (1) . We allow the appeals and set aside the High Court order,” she said of the unanimous ruling.

Also on the bench were Justice Ahmadi Asnawi and Jutice Abdul Rahman Sebli.

On June 30 last year, Lim was charged with using his public office 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.

Lim was also alleged to have used his position to obtain gratification by purchasing a bungalow from Phang for RM2.8 million, below the property’s market value of RM4.7 million on July 28, 2015.

Lim and Phang, who is charged with abetting him, have pleaded not guilty to the charges.

Before the trial began, the prosecution requested Lim and Phang to file their defence but they challenged the legality of Section 62.

In March, Justice Hadhariah Syed Ismail dismissed a motion filed by Lim and Phang to declare Section 62 as unconstitutional.

She had said one was presumed innocent until proven guilty and the burden of proof continued to lie with the prosecution.

The provision states that once the accused is given the relevant documents by the prosecution before a trial, the defence is required to give a defence statement.

Hadhariah had said that the provision only dealt with disclosure of defence and did not deprive an accused of the right to defence.

She had said the provision was intended to expedite the trial and speed up procedures for graft cases.

Lawyer V Sithambaram, who appeared for Phang, today submitted that the provision was unconstitutional as it denied an accused a fair trial, went against the presumption that one is innocent until proven guilty and right to remain silent if defence was called.

“It is incumbent for the court to give a generous interpretation to Article 5 so that the right contained is practical and not illusory,” he said.

He said Article 5 (1) was applicable in this case as the fundamental right cannot be “strangled” to mean it only applied to unlawful detentions.

Sithambaram said a recent Federal Court ruling in Gan Boon Aun v Public Prosecutor said the presumption of innocence was an integral part of the supreme law and all laws passed by Parliament must conform with it.

He said the High Court gave a literal interpretation and as such this court must set aside the order.

Lawyer Hisyam Teh Poh Teik, who also represented Phang, said three case laws revealed the prosecution had been inconsistent with Section 62.

Counsel Gobind Singh Deo, who appeared for Lim, submitted that Section 62 denied his client equality before the law.

“In criminal cases. the prosecution and the defence must enter the ring (court) on equal footing,” he said.

Rahman remarked that it appeared as if a shotgun was given to the prosecution while a walking stick (tongkat) was provided to the defence.

Government lawyer Masri Mohd Daud said Section 62 was a valid law passed by Parliament and the court must give effect to it.

He said the Lim and Phang had failed to show Section 62 went against provisions in the constitution.

“Nothing stops the two from adducing evidence like defence statements or documents during trial,” he said.

The bench also allowed the government an interim stay of proceedings in the Penang High Court pending its appeal against today’s decision.