Evidence gathered by the prosecution in Hong Kong in relation to ex-Perwaja Steel managing director Eric Chia's criminal breach of trust trial is admissible, ruled the Kuala Lumpur High Court today.

Justice Abdull Hamid Embong made the ruling after allowing the prosecution's application for revision stating he found the situation necessary to revise the decision made by sessions judge Akhtar Tahir, who denied the prosecution's request to have the evidence admitted as part of the trial.

"I order that the Hong Kong evidence be admitted and marked as exhibits accordingly. The sessions court judge is of course at liberty to determine - at a later stage- the veracity, weight and probative value of the evidence. It is free to either totally accept its weight or merely accepting it in parts or to altogether ignore it," he said at the end of his oral decision.

In his landmark judgment, the judge also ruled that the Mutual Assistance in Criminal Matters 2002 (MACMA) which he described as " a special law to obtain offshore evidence" supersedes the Evidence Act.

Meanwhile, Chia's defence team informed the court that it will be appealing to the Court of Appeal and the notice of appeal will be filed next week.

On Wednesday, Akhtar disallowed the prosecution's application for the evidence notes recorded in Hong Kong on Aug 25 and 26 last year to be admitted in the trial here as the matter in Hong Kong was deemed to have been adjudicated and an order made by a magistrate there.

"Having decided on the application of Section 33 of the Evidence Act, the prosecution not having satisfied the pre-conditions of the section, the evidence recorded in Hong Kong cannot be tendered as evidence," he said

Transcends national boundaries

Chia, 72, is accused of dishonestly authorising payment of RM76.4 million to the account of Frilsham Enterprise Incorporated with the American Express Bank Ltd, Hong Kong, for technical assistance provided by Japan's NKK Corporation for Perwaja's plant in Gurun, when in fact, no such payment was due.

The offence was allegedly committed on Feb 18, 1994, when he was managing director of Perwaja Rolling Mill and Development Sdn Bhd. He is charged under section 409 of the Penal Code which carries a maximum 20-year jail sentence.

In his judgment today, Abdull Hamid said that MACMA is a legislation on the law of mutual criminal assistance in a criminal matter that transcends national boundaries and is extra territorial in scope.

"One of the request the Attorney General can make to a foreign country that is signatory to the act is to ask and obtain evidence from that foreign country which the AG feels is relevant to any criminal proceedings in Malaysia," he said.

He said the recording officer or the magistrate is not adjudicating and in the present case the Hong Kong Eastern magistrate had clearly indicated his awareness that there was no adjudication involved.

"MACMA is a special and specific law. In my view it overrides the Evidence Act. This is despite the mention of it (the Evidence Act) is made under Section 8(3) of the MACMA - which caused the argument that the Hong Kong evidence should not be admitted in the trial because it has failed to satisfy the relevancy requirement under section 33 of the Evidence Act," he said.

He also said that it was "unfortunate" that the Evidence Act was not amended to accommodate MACMA.

"Now even without that equivalent provision in the Evidence Act, I feel that public policy demand that the evidence taken pursuant to MACMA - like the Hong Kong evidence- should be admitted in its own right, once it is shown to be relevant to the trial," he said.

He said Section 33 of the Evidence Act which is the "stumbling block" to the admission of the evidence under MACMA is nothing more than a "mere red herring".

This is because he believed that the provision caters for a different situation and one not related to the evidence obtained externally under MACMA.

"Section 33 relates to evidence previously given by a witness in a judicial proceeding which is relevant in a subsequent judicial proceeding or at a later stage of the same judicial proceeding may be tendered as evidence to prove a fact provided certain requirements are met as was lengthily argued yesterday."

"To me this judicial proceeding must mean a judicial proceeding previously held within the shore of Malaysia. It does not related or cater for evidence which was specifically gathered under MACMA."

'It would be sheer injustice'

He said if the Hong Kong evidence is to be subjected to the requirement of section 33 of the Evidence Act, it would only constrict MACMA and thus render it useless.

"This certainly cannot be the parliament's intention. MACMA has provided a convenient method of obtaining foreign evidence for the use in criminal trials here especially in cases involving the movements of funds overseas which we all know can move faster than the speed of sound."

"It would be sheer injustice to throw section 33 spanner into it and derail the prosecution from a smooth ride in presenting its case."

To the defence's other contention that the present case was unsuitable for the High Court to invoke its revisionary powers under section 323 of the Criminal Procedure Code (CPC), Abdull Hamid said that it was an inappropriate argument.

"In my view it is not right for a counsel to come here and object to the court in exercising this power saying that he has no jurisdiction to do so," he said.

The High Court, he said, was duty-bound to invoke the power that allows it to intervene and revise any illegal or incorrect order by a lower court.

"This power is unfettered. It is wide and I am free to exercise this power. It is described as a paternal and supervisory jurisdiction...The purpose of exercising the revision is to correct a miscarriage of justice in a criminal proceeding.

"This court has to determine that there is fair play all around. In this instance, the court has to balance the interest of the prosecution - who represents the people and the public at large- and the interest of the accused person," he added.