The A Kugan trial at the Petaling Jaya Sessions Court today saw the prosecution’s tenth witness, magistrate Ho Kwong Chin, invoking his privilege to not answer some questions put to him by counsel.

Under Section 121 of the Evidence Act 1950, Sessions Court judges and magistrates cannot be compelled to answer any question on their conduct on their knowledge of the case.

They can, however, be examined on other matters which occurred in their presence while acting as presidents, judges or magistrates.

a kugan murdered assaulted indian youth Ho's action sparked a debate between deputy public prosecutor Abazafree Mohd Abbas, defence counsel PM Nagarajan and counsel holding a watching brief on behalf of Kugan’s family, Gobind Singh Deo.

It started when Abazafree asked Ho whether he was involved in the remand application for Kugan made on Jan 15 last year to which he said that he had allowed a seven-day remand order for Kugan from Jan 15 last year.

At this juncture, Ho invoked his privilege.

However, the deputy public prosecutor explained that they were not questioning the conduct of Ho but only wanted to determine Kugan’s condition during the remand application.

"We just want to know Kugan’s health condition and we are not questioning the magistrate’s responsibility," he said.

The suspect’s health

Gobind conceded that there are two parts to the act and there was nothing incriminating in the question and as such the privilege should not be invoked.

Nagarajan, however, argued that the privilege did apply to Ho's current situation and urged that he be allowed to invoke it.

"Kugan’s health was part of the remand application because the magistrate had to ask questions relating to his condition and whether he needed medical attention [...] therefore they are matters that come into his knowledge during the proceedings."

Earlier, Ho had stated that it was part of his responsibility as a magistrate to ask about the condition of the suspect’s health as it is taken into consideration when giving remand.

a kugan detention death funeral ummc to puchong 280109 2 Judge Aslam Zainuddin then asked DPP Abazafree if the answer given by Kugan could be revealed by the magistrate. He then ordered a short recess to consider the issue.

After the break, the judge concluded that the magistrate’s knowledge was indeed covered within the ambit of privilege under section 121 of the Evidence Act 1950.

"The privilege covers all knowledge obtained by the magistrate during the remand proceedings," he said.

Prior to Ho taking the stand, the court had heard from Inspector Zulkarnain Rikan who testified that he was the officer-in-charge of the remand application for Kugan and that he had handed him over to police officers at the USJ Taipan police station where he was later found dead.

Zulkarnain also claimed that Kugan told him he was not injured and that he had not seen any injuries on him although a body check or medical test was not done.

Alternative charges

He was testifying in the case of Kugan's death while in police custody, several days after his arrest on Jan 15 last year.

The accused in the case, Constable V Navindran, 28, pleaded not guilty last Oct 1 to two counts of causing grievous hurt to Kugan, 23.

Navindran is accused of having committed the offence at the interrogation room of office D9, at the Taipan Police Station, USJ, Subang Jaya at 7am, on Jan 16 last year.

For the offence, Navindran is being charged under Section 331 of the Penal Code which carries a jail term of up to 10 years and could also be fined upon conviction.

On the two alternative charges, Navindran also pleaded not guilty to intentionally causing hurt to Kugan at 7am and 4pm at the same place and date.

He is being charged under Section 330 of the Penal Code which carries a jail term of seven years and could also be fined upon conviction.

The hearing will continue on March 22.