Justice Zaini Mazlan, who read the broad grounds of the unanimous decision handed down by the Court of Appeal, said the revision application filed by the couple in the High Court was akin to filing an appeal.
“It is an interlocutory application masked as an appeal,” said Zaini, adding that such an application was a disruption to the trial process.
“We allow the prosecution’s appeal. The High Court’s ruling is set aside and the sessions court’s decision is restored,” he said.
Also on the panel hearing the appeal were Justices Ahmad Zaidi Ibrahim and Noorin Badaruddin.
Bung, the non-executive chairman of Felcra, was charged on May 3, 2019 with two counts of receiving bribes of RM2.2 million and RM262,500 as an inducement to obtain Felcra’s approval to invest RM150 million in Public Mutual unit trusts.
He is alleged to have accepted the bribes from Public Mutual’s investment agent Norhaili Madhi through Zizie at the Taman Melawati Public Bank branch between 12.30pm and 5pm on June 12, 2015.
He was also charged with receiving a bribe of RM337,500 from Norhaili under Zizie’s name at the same location on June 19, 2015.
Zizie faces three charges of abetting Bung in the commission of the alleged offences.
Zaidi, who chaired the bench, then fixed the matter for case management at the sessions court on Dec 5.
On Sept 2, 2022, the sessions court judge ordered the couple to enter their defence as the prosecution had established a prima case against them.
However, on Sept 7 last year the High Court acquitted them following a revision application made under Section 323 of the Criminal Procedure Code (CPC).
In the decision today, Zaini said the right to a fair trial applies equally to the prosecution as it does to the defence.
“Allowing the review application on a prima facie ruling will disrupt the trial and create an insufferable consideration in which the trial court must accede to numerous postponements to enable each party to appeal.
“This will frustrate the trial, wasting precious judicial time and public expenses, and must be stopped,” he added.
Zaini said the finding of the High Court that the sessions court was wrong in its decision to call the couple to enter their defence was premature.
“The sessions court judge’s ruling was brief but she has no obligation to give any reason at this stage to call for their defence.
“That obligation only arises at the end of the trial (when deciding) whether to acquit or convict an accused,” he added.
Zaini said the trial judge is tasked with analysing the testimony of prosecution witnesses and the evidence produced based on maximum evaluation before deciding whether the elements of the charge have been proven and a prima facie case made out.
“This is on the basis that the accused will be convicted if there is no rebuttal,” he added.
Zaini said the decision to acquit or order an accused person to enter defence is a mandatory criteria set out under Section 173 of the CPC.
“Once a prima facie case is established, the trial court has no other option,” he said, adding that accused persons cannot appeal the decision to call for their defence.
Zaini said this was because the court’s finding at this stage did not constitute a final resolution of the accused’s rights.
He said an appeal could only be filed by the accused or prosecution after the completion of the trial.
Today’s ruling, which binds lower courts, brought certainty on the legal process as several revision applications had been filed over the last two years.
Deputy public prosecutors Law Chin How, Fadly Zambry and Maziah Mohaide appeared for the prosecution.
Lawyers M Athimulan, Ashok Athimulan and Ridha Abdah Subri appeared for Bung while K Kumaraendran, K Dev Kumar and Teh See Khoon acted for Zizie.