The last chance of Batu MP Chua Tian Chang, who is better known as Tian Chua, to appeal against his conviction on obstructing a policeman in carrying out his duties four years ago, for which he was fined RM2,000, was dismissed by the Court of Appeal today on a technicality.Despite his conviction being upheld and the fine maintained, his lawyer Amer Hamzah Arshad maintains that Tian Chua (right), who is also a PKR vice-president, is still a rightful MP.
"This follows written judgment of High Court judge Ghazali Cha that the court does not want to see any by-election," Amer Hamzah said when met by reporters.
The decision by the Court of Appeal today was unanimous, with the three-member bench allowing the preliminary objection of the prosecution, led by DPPs Mohd Hanafiah Zakaria and Ishak Mohd Yusof, that the notice of appeal was filed out of time. The panel was led by Justice Zaleha Zahari, with the others being High Court judge Clement Alan Skinner and Court of Appeal judge Balia Yusuf Wahi.
Justice Balia in reading the decision after a short recess said the appeal was dismissed on grounds that it "was incompetent".
"The Court of Appeal had, on Aug 30, granted leave (permission) to hear the merits of this appeal.
"However, the appellants filed the notice of appeal at the wrong registry on Sept 6, 2010, and only after being informed of the error by the court registry on Oct 5, 2010, they filed their application the next day," he said.
In ruling the objection raised by the prosecution as well-founded, he said the appeal "is deemed as incompetent". "The appellant's counsel should have taken steps to regularise the appeal. Following this, we dismiss the appeal without hearing the merits," Justice Balia announced. The error in the filing was not made by Amer Hamzah, the counsel in the appeal, but by the solicitor who made the original filing.
High court decision
The High Court in Kuala Lumpur on June 17, 2010, dismissed Tian Chua's appeal against his conviction for obstructing constable Rosyaidi Anuar, 21, in front of the Parliament complex on Dec 11, 2007. However, Justice Ghazali Cha reduced Tian Chua's RM3,000 fine and six months' jail term imposed by the magistrate's court in October last year to a fine of RM2,000 or two months' jail. He said the fine was reduced to RM2,000 to avoid a by-election for the Batu parliamentary seat.
Article 48 of the Federal Constitution states that a member of the Dewan Rakyat can be disqualified if fined an amount "not less than RM2,000" by a Malaysian court.
"However, I note that although the sentencing is up to the magistrate, it is a first offence. "Having him disqualified would result in a by-election to be called and this would involve a lot of funds. A by-election will also affect a lot of people," Justice Ghazali said in his judgment.
In reducing Tian Chua's fine to RM2,000, the judge said he adopted the 1993 Supreme Court decision in Public Prosecutor vs Leong Yin Ming that only a fine of RM2,001 or more would result in automatic disqualification.
In the 18-page judgment, Justice Ghazali quoted a passage from Supreme Court judge Justice Gunn Chit Tuan that the phrase "shall not be less than" should mean "more than". "Based on this Supreme Court decision, it binds the lower court. It is a strong authority which can be adopted by this court," he said.
Justice Ghazali had added: "I am confident that the fine will not result in a by-election being called in Batu. My intention and purpose is clear and sincere in giving the judgment. I would also like to warn the accused not to repeat such offences in the near future." The RM2,000 fine has become a source of dispute as to whether it is sufficient to disqualify Tian Chua from remaining an elected representative.
DAP Member of Parliament Karpal Singh, who is a senior lawyer, had said after the High Court ruling that Tian Chua could lose his seat on grounds that the fine of RM2,000 provided for this.
Amer Hamzah, in explaining further why his client would not lose his status as an MP, said the prosecution did not cross-appeal on the fine imposed.
“Hence, for us, Justice Ghazali's judgment stands in that my client is and will remain an MP.”
Chua regrets merits of case not heard
Questioned by reporters outside the court, Chua continued to maintain his innocence and expressed regret that the merits of his appeal were not heard.
“I am dissapointed with the court's decision in not hearing the merits of the case, despite leave being granted after going through a long trial.
“I have been victimised, after being apprehended by the police and the car that I was in being burnt. It was a peaceful gathering and there certainly was no obstruction made by me, as the video would prove, despite evidence adduced that I bit the constable,” he said.
Chua said the authorities, namely the police, had restricted his right and that of the other non-governmental organisations to peaceful assembly, which is protected under the Federal Constitution. He said it seemed the government and the police were curbing this basic right.
“It seems the authorities are curbing the rakyat's right to practise their constitutional rights,” he said. The December 2007 protest was after a bill to extend the tenure of the Election Commissioners to 66 years of age was passed by Parliament.- Hafiz Yatim
source:malaysiakini
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Satu lagi episod konspirasi dirancang oleh geng2 'pandi-kutty'...
cheers.
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