The Court of Appeal, sitting in Kota Kinabalu yesterday, has unanimously dismissed former Labuan MP Suhaili Abdul Rahman’s motion for a re-trial of his criminal case under Section 109(1)(m)(ii) of the Bankruptcy Act 1967.

NONE The motion was made on the grounds that Suhaili’s (left) guilty plea - to an alternative charge in the Sessions Court on March 9 last year - was a qualified one and that the facts themselves were in question and therefore disputed.

‘Suhaili’ had allegedly acted as guarantor in 1996 for a RM110,000 overdraft facility extended to Saraequity Sdn Bhd, his wife’s firm, while a bankrupt.

Bankrupts are not supposed to engage in any trade or transactions so long as they are undischarged.

Outside the court yesterday, Suhaili confirmed that his lawyer Rakhbir Singh will lodge an application within the 30-day period for the Court of Appeal to review its own decision.

Rakhbir said he would write to the Court of Appeal for the written grounds of the decision before making an application for review.

Federal Court judge Justice Mohd Raus Sharif sat together with Court of Appeal judges Justice Sulong Matjeraie and Justice Mohd Apandi Ali in arriving at the decision.  

The bench agreed with DPP Ahmad Bache that there were no merits in the re-trial application since the accused had already “pleaded guilty” to the alternative charge in the Sessions Court.

Justice Mohd Raus pointed out that Suhaili’s alternative charge was a kind of plea-bargaining. He stressed that Suhaili should not have pleaded guilty in the first place to the alternative charge, if he had felt that the facts were in dispute.

Rakhbir Singh maintained that, since the plea in the Sessions Court was a qualified one, his client deserved to be given the benefit of the doubt and granted a re-trial in the interests of justice.

The court, he said, should have rejected the qualified plea - made against legal advice - since “a conviction on this score (qualified) alone cannot be maintained”.

Rakhbir also said the Sessions Court had not recorded the conviction - as evident from the Record of Appeal - but proceeded to sentence his client.

The Record of Appeal was further incomplete since it did not include the ‘guarantor form’ allegedly signed by Suhaili, while the Indorsement Form on the bankruptcy hearing did not state that the respondent would be declared a bankrupt if he failed to turn up for the hearing’ and there was no rebuttal affidavit, said Rakhbir.

Facts in dispute

The thrust of the Suhaili’s case was that the bankruptcy declaration in 1993 was defective, that it was annulled in 1997 - albeit after the alleged 1996 offence - and that prosecution for the ‘1996 offence’ was brought only last year.

The effect of the annulment, according to Rakhbir Singh, was to go back to the original situation as if there had been no bankruptcy at all “since he ought not to have been charged with bankruptcy”.

rakhbir singh mug Hence, the commission of the 1996 offence did not arise since the law did not provide for any offence under annulment, said Rakhbir in urging a landmark decision by the Court of Appeal.

It was implied by Rakhbir (right) that the Bankruptcy Act 1967 is outdated and therefore of little use in such cases.

The DPP, citing case law, argued that the law does not distinguish between an discharged bankrupt and an annulment when it comes to offences committed while under bankruptcy.

In both cases, the estate of the person would come under the official receiver. If the estate of a person whose bankruptcy was annulled was under the official receiver, the offence at that point in time - 1996 - would stand.

The facts in dispute stemmed from the initial two charges brought against Suhaili.

Former Labuan MP Suhaili Abdul Rahman's two MyKad, IC card. The first charge read that Suhaili, in standing guarantee for the overdraft facility, had cheated Maybank in Kota Kinabalu between April 3, 1996 and April 1, 1996 by allegedly using an identity card (IC) in the name of one Ahmad Suhaily bin Abdul Rahman and bearing number H0552181.

Neither Ahmad Suhaily nor Suhaili had turned up in person at Maybank to sign as guarantor for the overdraft facility.

The National Registration Department confirmed in a letter dated May 21, 1996 to all its branches that Ahmad Suhaily’s IC was among those in a series of four blocks which were not valid.

    

Suhaili’s IC in the H series is in his own name and bears number H0477025.

The alternative charge, according to Rakhbir Singh, was not valid since it was based on the first charge which in itself was a nullity and dropped for lack of evidence.

The alternative charge was that Ahmad Suhaily bin Abdul Rahman, not Suhaili bin Abdul Rahman, signed as guarantor for the overdraft facility given by Maybank to Saraequity Sdn Bhd.