KUALA LUMPUR: The High Court here today threw out a judicial review application by a former IT consultant for unlawful detention after he was charged with murder in a road rage incident two years ago.
Judge Mariana Yahya said Yew Wei Liang should have raised the detention during his criminal trial.
She said the attorney-general, who is also the public prosecutor, had wide discretion under Article 145 (3) of the Federal Constitution to institute, conduct and discontinue any proceeding for an offence.
“As such, he has the power to determine what charge to be framed against accused persons,” said Mariana who will be elevated to the Court of Appeal on Thursday.
Yew was charged in the Kajang magistrates’ court on Aug 22, 2019 over the death of Syed Muhammad Danial Syed Syakir 12 days earlier.
No plea was taken as a murder case, which carries the death penalty, can only be tried in a High Court.
A deputy public prosecutor only produced the consent from the AG to transfer the case to the High Court on Dec 9, 2019.
Yew is still being held in the Kajang prison pending the hearing of the murder case.
Yew, represented by Wee Choo Keong, in early 2020 filed a judicial review to, among other things, seek a declaration that the production of the consent was done in bad faith.
He also asked for damages for the 120 days of “illegal detention” pending the transfer of the case for the murder trial.
Yew also asked for a declaration that the charge was a nullity due to procedural impropriety.
Senior federal counsel Shamsul Bolhassan submitted that Yew could have applied for bail under Section 388 of the Criminal Procedure Code but that he did not. Instead, he filed the judicial review application, Shamsul said.
He should have filed a writ of habeas corpus if he felt the detention was illegal and not the judicial review, he added.
“The DPP only produced the consent in December 2019 because the prosecution needed time, depending on many factors such as the results of the post mortem, the chemist’s report and the blood test. The three-month period was reasonable,” said Shamsul who was assisted by senior federal counsel Mohd Sabri Othman.
Usually, the prosecution will decide whether to proceed with the murder charge or a lesser offence like culpable homicide not amounting to murder after obtaining all the necessary reports.
The case attracted wide publicity when it was first reported. Two drivers got involved in a car chase and a scuffle ensued between them at the Bandar Baru Bangi interchange. Witnesses at the scene broke up the fight and the two drivers returned to their vehicles.
The younger man then got out of his vehicle with a baseball bat and smashed the other car’s bonnet. The older driver was believed to have suddenly lurched his vehicle forward, hitting the victim.
Syed Danial was pinned between the car and the road divider. He was rushed to a private hospital in Nilai but died while receiving treatment.