No go for Guan Eng, former landlord’s court challenge to MACC Act

By Opalyn Mok
Penang Chief Minister Lim Guan Eng (pic) and Phang Li Koon had filed motions to the court seeking a declaration that Section 62 of the MACC Act is unconstitutional and void. — Picture by K.E. Ooi

GEORGE TOWN, March 7 — The High Court today threw out a motion filed by both Penang Chief Minister Lim Guan Eng and Phang Li Koon to declare Section 62 of the Malaysian Anti-Corruption Commission Act (MACC) 2009 as unconstitutional.

Justice Datuk Hadhariah Syed Ismail disagreed with the applications by both Lim and Phang that claimed the section reverses the burden of proof to that of the accused and had infringed on the rights of both accused.

“The burden of proof continues to lie with the prosecution and nobody said that both accused were not presumed innocent until proven guilty under this section,” she said when reading out her decision today.

She admitted that the section’s requirement for the accused to submit the statement of defence prior to the start of the case trial did diminished the rights of the accused to remain silent.

“The most important (thing) is that the accused is given a fair trial and Section 62 is only on the disclosure of defence, it did not deprived the accused of his right to defence,” she said.

Justice Hadhariah also pointed out that the whole purpose of Section 62 was to expedite the trial and speed up the procedures for corruption cases.

She read out her reasoning for dismissing Lim and Phang’s applications by stating that there was no violation of the accused’s rights to equality as provided by the federal constitution.

“There is no reason for the court to say Section 62 is unconstitutional and it doesn’t contravene Articles 5 (1) and 8 (1) of the Federal Constitution so the motion is dismissed,” she said.

She then ordered the two accused, through their respective defence counsel Gobind Singh Deo and Datuk V. Sithambaram, to submit their statement of defence within 14 days from today which is on or before March 21.

Both accused had filed motions to the court seeking a declaration that Section 62 of the MACC Act is unconstitutional and void.

Section 62 of the act provides that the accused has to submit the statement of defence to the prosecution and be tendered as part of evidence for the defence before commencement of trial.

The defence counsels’ contention were that this section contravenes Article 5(1) of the federal constitution which reads that no person shall be deprived of his life or personal liberty save in accordance with law.

They also contend that it contravenes with Article 8(1) of the federal constitution that reads all persons are equal before the law and entitled to equal protection of the law.

Gobind told the court that the defence is ready to file their defence but asked the court if the defence has the right to produce further defence after the trial commences.

“We need the court’s direction on this. We want to know if we can file further defence during the trial as there were provisions for the prosecution to file further documents during trial,” he said.

A debate ensued between the High Court judge and the defence counsels as she continued to insist that they file their defence before the trial starts on March 27 while they continued to ask the court to allow them to file additional defence during trial if the need arises.

“I can’t say now, I don’t know what’s going to happen in trial, I can only say that this will be a fair trial so just file the defence first, let the trial start first,” Justice Hadhariah said.

She then sternly told the defence counsels that she will not tolerate any delay to the start of the trial and that it will start on March 27 as scheduled.

“This is a case of public interest, people are already asking about the trial and why it hasn’t started, I don’t want to delay it, when we fix the trial date, it must start on that date,” she said.

She then took the defence counsels to task over their questions regarding the statement of defence.

“What’s your problem? You said you are ready to file the defence, then file it. This is not a murder trial, it’s just a corruption case, just file the defence, if there’s a need to amend the defence, just submit it to court and the court will decide then,” she said.

Gobind then asked for the court to fix March 20 for case management of the case pending the defence filing an appeal against the high court’s decision on Section 62.

Hadhariah allowed this application and fixed March 20 for case management while again stressing that the trial will not be delayed.

Meanwhile, outside the courtroom, Gobind told reporters that the case management was pending his client’s decision on whether to appeal the decision and whether the court will order a joint trial for both Lim and Phang.

“We have instructions from our client to appeal and we respect the learned judge’s decision for now but we need to take instructions on whether or not we need to apply for a stay of the trial pending the appeal to the higher courts. That is something we will decide later, we need to speak to our client about that,” he said.

He said their concerns were on what was stated in Section 62 which suggests that the defence has to state its defence now before trial whereas Section 51 which applies to the public prosecutor gives the public prosecutor the discretion to include further evidence and documents throughout the process of trial.

“If that can happen but if accused can’t response to it, as Section 62 says we have to submit before the trial, I think then we have a problem and this is our concern,” he said.

He said if there is a need, they will file an application for a stay of the trial and they will submit their application for the judge to decide on it.

Lim along with businesswoman Phang were charged with graft over his house purchase deal last year.

He was charged with using his public office or position to obtain gratification for himself and his wife, Betty Chew, by approving an application by Magnificent Emblem to convert agricultural land to residential purpose during a state planning committee meeting on July 18, 2014.

Lim is alleged to have used his position to obtain gratification by purchasing his house from Phang at RM2.8 million, which was below the property’s market value of RM4.27 million on July 28, 2015.

Phang meanwhile was charged under Section 109 of the Penal Code for abetting Lim on July 28 last year in regards to his purchase of the house on Pinhorn Road from her for RM2.8 million which was below the market value or RM4.27 million whereby Lim had allegedly committed an offense under Section 165 of the Penal Code.

Phang’s case will also be heard at the same time as Lim’s cases.

Trial for the cases have been fixed for March 27 to 31, April 10 to 14, April 24 to 28, May 15 to 19, May 29  to June 2, June 13 to 16 and July 17 to 21.