A three-member bench chaired by Justice Collin Lawrence Sequerah ruled that the High Court had erred in relying on the notes of proceedings in a civil case to conclude that Tan Hoo Eng’s right to a fair investigation had been violated.
Sequerah said Section 33 of the Evidence Act 1950 bars evidence adduced during a civil trial from being used in criminal proceedings. He added that the case did not fall within any of the exceptions to that provision.
“Consequently, we are of the view that the High Court erred in striking out the charges,” Sequerah said when announcing the court’s unanimous decision to allow the prosecution’s appeal.
“Since the trial started in the sessions court, the High Court should have allowed the proceedings to continue and not strike out the charges,” he added.
He said allegations of bias during investigations should be determined at trial through the rigorous examination and cross-examination of prosecution witnesses.
Also on the panel hearing the appeal were Justices Noorin Badaruddin and Radzi Abdul Hamid.
The appeals court fixed Tan’s case for mention in the Ipoh sessions court on Oct 27.
Deputy public prosecutors Fuad Abdul Aziz and Zander Lim appeared for the prosecution while lawyer Gurbachan Singh represented Tan.
Tan applied to the High Court in 2023 to set aside her charges under Section 409 of the Penal Code and the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (Amla).
In acquitting Tan, then judicial commissioner Moses Susayan said her rights under Articles 5(1) and 8(1) of the Federal Constitution had been breached, based on compelling evidence of biased investigations and prosecutorial setbacks.
The case stemmed from a long-running conflict between Tan and Lim Keck Eng, both directors and equal shareholders of Blue Star Moulding Sdn Bhd.
Between 2015 and 2016, Tan faced multiple CBT and Amla charges in the sessions court. In October 2017, the prosecution sought a discharge not amounting to an acquittal.
It then filed four CBT charges involving RM4.1 million and 54 Amla charges involving RM9.5 million in late 2017. The charges were amended in August 2019.