Jong Nam case legal precedent favours accused whose defence is called

The prosecution has to hand over statements of witnesses who are offered to the defence in criminal trials after a recent Court of Appeal decision, says a lawyer.

PETALING JAYA: A legal precedent set by the Court of Appeal in the case of the Kim Jong Nam murder means the prosecution has to hand over statements of witnesses who are offered to the defence in criminal trials, a lawyer said.

Muhammad Rafique Rashid Ali said this was an unprecedented departure from the current practice of the prosecution only offering witnesses, not their statements.

However, he said, the Court of Appeal judgment early this year had shifted the legal position in favour of the defence and accused persons.

“Now, when the prosecution offers its witnesses to the defence, it must also supply statements recorded by investigation agencies,” he told FMT.

The lawyer said this in response to a five-member Federal Court bench which declined to hear the public prosecutor’s appeal to set aside the Court of Appeal decision, deemed to be detrimental to the prosecution.

On Wednesday, Chief Justice Tengku Maimun Tuan Mat, in striking out the appeal, said it was academic and no longer a “live issue”.

In January a three-member Court of Appeal bench had allowed Indonesian Siti Aisyah’s appeal and ordered the prosecution to furnish the defence with the witness statements.

Muhammad Rafique Rashid Ali.

Siti Aisyah and Vietnamese Doan Thi Huong were charged with four others still at large with the murder of Kim Chol or Kim Jong Nam, 45, the elder brother of North Korean leader Kim Jong Un, at the Kuala Lumpur International Airport 2 departure hall on Feb 13, 2017.

On Aug 16, 2018, the High Court ordered them to enter their defence.

Siti Aisyah filed an application to compel the prosecution to provide the cautioned statements of seven witnesses but the Shah Alam High Court on Dec 18, last year refused on grounds these were absolutely privileged documents.

Meanwhile, lawyer Rajpal Singh said the Court of Appeal decision had now made it a level playing field for the defence.

“In the past, we could only interview prosecution witnesses before deciding to put them on the witness stand. We did not have access to their statements,” he said.

Rajpal said the attorney-general (AG) could seek the legislature’s assistance to amend Section 112 of the Criminal Procedure Code to overcome the Court of Appeal ruling.

“It needs only a simple majority support of MPs and Senators. However, it will be seen as regressive as other Commonwealth jurisdictions allow the defence to get copies of witness statements even before trial starts.”

Another lawyer, Kitson Foong, said the Court of Appeal decision was a binding precedent and all High Courts and subordinate courts must follow suit.

“It will be interesting to see now whether defence lawyers representing their clients in 1MDB, SRC and other corruption and power abuse cases will utilise the Court of Appeal judgment should defence be called,” he said.

Kitson Foong.

Kitson said the prosecution might have to look for another similar but “live issue” to overturn the Court of Appeal decision.

Due to new developments, Siti Aisyah was given a discharge not amounting to an acquittal after the prosecution withdrew the charge against her on March 11, this year. She immediately left for home.

Doan, meanwhile, was sentenced to three years and four months in jail after she pleaded guilty to voluntarily causing hurt by dangerous means to Jong Nam.

She too left for home on April 1 after having served the prison term.

AG Tommy Thomas submitted that the court should hear the appeal on merits as there were questions of general interest or importance.

The apex court disagreed with him.