Shafie fails to quash remand order
KOTA KINABALU: The High Court here yesterday upheld a remand order on Parti Warisan Sabah president Datuk Seri Shafie Apdal issued by the lower court on October 20.
In dismissing a revision filed by Shafie, Judicial Commissioner Ismail Brahim said he did not agree with issues raised by counsel Hamid Ismail, who is one of the lawyers representing Shafie.
Therefore, the court affirmed the remand order granted by Magistrate Cindy Mc Juce Balitus on Friday on the former rural and regional development minister.
In an open court proceedings, Hamid pointed out two questions to be determined by court namely;
1) Whether the Malaysian Anti-Corruption Commission (MACC) can apply for remand under Section 117 of the Criminal Procedure Code (CPC) against the applicant (Shafie) for investigation purposes after arresting him;
2) Whether MACC can use the same section to detain the applicant for the purpose of interrogating in view of Section 30 of the MACC Act 2009.
Hamid argued that MACC has its own provision relating to arrest and investigation which differs from the provision under Section 117 of the CPC.
“MACC should apply an application against Shafie under Section 30 of the MACC Act instead of remand under Section 117 of the CPC,” Hamid suggested.
He further explained that every person arrested could be released on bail and remand could be applied if the person on bail violated or likely to violate his/ her bail conditions as provided under Section 49 (2) of the MACC Act.
Thus, Hamid contended that under MACC Act, there was no remand for investigation purposes.
“It differs from the purpose of remand under Section 117 of the CPC as that remand is to complete investigation,” Hamid further pointed out.
Hamid submitted that the court must give meaning to the wordings in Section 49 (2) of the MACC Act because the MACC Act is a specific Act.
“The court cannot presume that Section 117 of the CPC applies to MACC on the grounds it is a general law relating to arrest,” said Hamid.
The counsel also submitted that remand was not for the purpose of interrogation but in applying for Shafie’s remand, MACC’s grounds of application were that they needed to either “soal siasat” (investigation), “soal balas” (cross examine) and “mendapatkan penjelasan” (getting explanation) from the applicant.
In reply, the prosecution rebutted that in view of Section 30 of the MACC Act as being submitted by the counsel, they said the said section was for recording statements of witnesses.
The prosecution also rebutted that MACC was allowed to use Section 117 of the CPC as stated under Section 3 of the MACC Act whereby they could use that section to apply for detention for the purpose of investigation.
On October 20, before the remand application made at the Magistrate’s Court here, Hamid had raised a preliminary objection on point of law that MACC was not entitled to apply for remand under Section 117 of the CPC.
On that day, Hamid said they also raised several grounds on investigations which they submitted that the remand application was against the case law.
“The case law says that you cannot use remand to interrogate a suspect as remand is only for investigation such as checking on the suspect’s car or to avoid the suspect from tampering with witnesses.
He also argued that you cannot remand someone in order to record statement, you can only give order for that person to give statement but no need for remand.
However, the magistrate had ruled that since Shafie was being investigated under Section 17a of the MACC Act, it was a seizable offence, so the remand application by MACC was applicable.
When met outside the courtroom, Hamid said they would apply for leave to appeal at the Court of Appeal against the High Court’s decision within this week.
Other lawyers who defended Shafie were Martin Tommy, Cedric Choo and Loreto Padua Sipin Jr.
Deputy public prosecutors Rustam Sanip and Rozana Abd Hadi acted for the prosecution.