The Federal Court today granted leave for Kajang municipal councillor Tan Boon Wah to challenge the appellate court's decision on Dec 17 which ruled that the Malaysian Anti-Corruption Commission (MACC) could interrogate witnesses late at night.

In the apex court, the right to appeal is not automatic and as such leave (permission) had to be obtained before appeal proceedings could be initiated.

Leave was granted by Court of Appeal president Alauddin Mohd Sherif who was leading a three-member panel. The others were Justices Mohd Ghazali Md Yusoff and Heliliah Mohd Yusof.

Senior federal counsel Amarjeet Singh did not object to the application but said the court should decide on the first and fifth question, which had been posed by lawyer Karpal Singh.

NONE Karpal, acting for Tan, agreed on the matter but wanted the appeal to be heard today due to the urgency of the matter as it involved enforcement agencies.

"It is a straight forward case and hence the application could be heard straightaway. The case has been decided on Dec 17 and I have written to the Court of Appeal on Dec 29 for the grounds," he said.

However, Justice Ghazali said the court could not proceed with the hearing as the grounds of judgment from the Court of Appeal were not ready.

Justice Heliliah added that it would be improper to proceed with the hearing or to decide on the appeal without waiting for the grounds.

Following this, Alauddin said he would direct Court of Appeal judges to provide their written judgments as soon as possible.

He then directed the hearing of the appeal to be held on a date yet to be fixed.

Tan's challenge

Tan, 39, is challenging the MACC's right to interrogate witnesses late at night, during which time the commission has been accused of torturing them.

tan boon wah pc on macc accusation 270809 02 Tan himself was questioned overnight at the Selangor MACC headquarters in Shah Alam on July 15 last year.

In a landmark decision on Nov 19, high court judge Mohd Ariff Md Yusof allowed the judicial review filed by Tan, saying that the MACC is not empowered to investigate a witness "round the clock".

"To do so would offend the intention of the legislature and curtail the ambit of personal liberty," he had ruled.

On Nov 25, MACC investigation division director Shukri Abdull issued a directive to all MACC offices to confine questioning of witnesses to the working hours of 8.30am to 5.30pm.

However, the Court of Appeal on Dec 17 overturned the ruling.

Questions to be decided

On Dec 22, Karpal and Tan filed the leave application and  posed five questions of law to be decided.

However, following today's proceedings two questions would be decided namely:-

  • Whether in Section 30(3)(a) of the MACC Act, the phrase 'day to day' encompasses only office hours or whether it is to be interpreted to mean a continuous period of 24 hours followed by the next 24 hours until investigations are completed.
  • Whether Section 30(1)(a) and Section 30(3)(a) of the MACC Act ought to be read conjunctively or disjunctively.

Karpal said these were vital issues posted for the first time to the apex court. “The matter has to be decided in the interest of the public especially on the rights of witnesses.”

"I am also upset that the written judgment has not been provided in such an important case. Normally, in cases involving civil matter the appeal can be heard once leave is granted," he added.

Earlier, the same panel also postponed hearing a culpable homicide not amounting to murder  case involving two individuals.

This is because the judges had  failed to provide their written judgments.

The Shah Alam case was heard by a panel of three Court of Appeal judges sometime in October 2007, where their sentence was enhanced from 10 years at the high court to 17 years.