Transmile Group Bhd former CEO‘s review application dismissed

PUTRAJAYA: The Federal Court here yesterday dismissed an application by Transmile Group Bhd’s former chief executive officer Gan Boon Aun for a review of the court’s earlier ruling that held Section 122(1) of the Securities Industry Act valid and constitutional.

The provision deems a company director, chief executive officer ( CEO), officer or representative of the company to have committed an offence of the company, unless he can prove the lack of consent or connivance on his part and the exercise of diligence to prevent the commission of the offence.

Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, chairing a five-man panel today, dismissed the review application on grounds that Gan had not overcome the threshold of Rule 137 of the Rules of the Federal Court on breach of natural justice.

Federal Court judges Tan Sri Ramly Ali, Datuk Balia Yusof Wahi, Datuk Prasad Sandosham Abraham and Court of Appeal judge Datuk Alizatul Khair Osman Khairuddin presided with him.

On March 15, this year, the Federal Court panel led by the then Chief Justice Tun Arifin Zakaria (now retired) in a landmark decision, held that Section 122 (1) of the Securities Act was constitutional and ordered Gan’s case to be remitted to the Sessions Court for continuation of the trial.

Gan was charged in 2007 by the Securities Commission for abetting Transmile in making a statement that was misleading in a material particular relating to the company’s revenue in its quarterly report on unaudited consolidated results for the financial year ended Dec 31, 2006.

He was also charged in the alternative with having furnished a misleading statement to Bursa Malaysia Securities Bhd in the same financial statement.

The decision of the earlier Federal Court panel which was delivered by Justice Tan Sri Jeffrey Tan Kok Wha had held presumption of guilt under Section 122 (1) was constitutional and that section did not violate the doctrine of presumption of innocence until proven guilty.

Gan’s counsel Datuk Seri Gopal Sri Ram sought the court to review the decision of the earlier Federal Court on grounds there was a violation of the principle of natural justice particularly on the liberty of a person under Article 5 of the Federal Constitution.

Deputy public prosecutor Awang Armadajaya Awang Mahmud, who appeared for the prosecution, said if the review is granted, it would give Gan a ‘second bite of the cherry’, adding that there was no breach of natural justice. — Bernama