The Kuala Lumpur High Court will decide tomorrow on whether to allow the prosecution's application for a revision of the Sessions Court's refusal to admit evidence gathered in Hong Kong in relation to ex- Perwaja Steel managing director Eric Chia's criminal breach of trust trial.

Justice Abdull Hamid Embong will decide whether it is appropriate for him to invoke his revisional powers to order the lower court to admit the evidence for Chia's trial.

Earlier, he heard lengthy submissions from the prosecution's Senior Deputy Public Prosecutor Mohd Yusof Zainal Abiden and Chia's lead counsel Muhammad Shafee Abdullah.

Mohd Yusof applied to the High Court for a review of Sessions Court Judge Akhtar Tahir's decision disallowing the prosecution's request for their notes recorded in at the Eastern Magistrate's Court in Hong Kong on Aug 25 and 26 last year to be admitted in the trial.

Akhtar ruled among others that the evidence were from a separate judicial proceedings as there was adjudication involved as well as an order made by a person acting in a judicial capacity, such as the magistrate of Hong Kong.

He said that proceedings in Hong Kong were recorded in the form of an oral transcript and that there was no provision in Malaysia's Criminal Procedure Code (CPC) to allow the admission of such transcripts.

'Not fit and proper'

On Aug 25 and 26 last year, Attorney-General Abdul Gani Patail headed a 16-member team to Hong Kong to record statements from six witnesses whose evidence - as claimed by the prosecution - showed the money trail in relation to the RM76.4 million mentioned in the charge against Chia.

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

The offence was allegedly committed on Feb 18, 1994, when he was the 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.

Today, Mohd Yusof argued that the Hong Kong evidence should be admitted by the sessions court because there was 'nothing adjudicated' at Hong Kong's Eastern Magistrate's Court.

He said the attorney-general had merely asked for the magistrate's assistance to record the evidence pursuant to the Mutual Assistance in Criminal Matters Act 2002.

"The magistrate was there not to adjudicate but merely to record the evidence on behalf of the Hong Kong magistrate. Nothing was adjudicated there. The magistrate merely functioned as a recording officer.

"In our case, the evidence obtained is primary evidence to be used in this trial," he said.

In his submission, Muhammad Shafee ( photo, left ) said that before the court considers the admissibility of the evidence, it must first decide whether it is an appropriate for it to invoke its revisional powers under the Criminal Procedure Code.

"This is not a fit and proper case for the court to consider exercising its revisional powers. The request for a revision is only appropriate if the most glaring errors of law had been committed.

"Are we contending here that there is a miscarriage of justice when the prosecution's case has not even been completed? I think not," he added.

At this point, Abdull Hamid asked: "Here the judge has denied the admissibility of evidence that the prosecution has collected. Isn't that a miscarriage of justice?"

"No, it is not a miscarriage of justice. Bear in mind that the court is not sitting as an appellate court," replied Muhammad Shafee.

'Backdoor attempt'

He also said that the prosecution's request for a revision is akin to employing a 'backdoor attempt to appeal'.

"The issue must be overwhelming and patently erroneous for the court to invoke the revisional provisions. If (the application for revision) is allowed, the court is allowing a backdoor way of appeal on an issue that is unappealable," said Muhammad Shafee.

He also warned the court that a revision of the lower court's decision may be prejudicial to the accused.

"In this case if the court would have to direct him (the lower court's judge) to admit the evidence in the midst of the trial ... imagine the trouble when he has to consider the weight of the evidence. Wouldn't there be a prejudice?" he asked.

During the proceedings, Abdull Hamid asked both counsel what he described as a 'hypothetical question'.

"Assuming that the evidence is not admitted and this case goes for appeal and the appellate court rules that the evidence should have been admitted. What would happen to the case?"

To this, Muhammad Shafee said the appellate judge could always view the evidence which now formed part of the trial records.

"There would be no prejudice at all against the prosecution because it is there for any judge to study. Further, the evidence is just cold print, it's not like it is a witness giving testimony where the judge needs to assess the witness' demeanour," he added.

Mohd Yusof argued that if the appellate court decides that the evidence should be admitted, then the case has to be remitted to the Sessions Court.

"The case would have to be sent back to the lower court so that the trial judge can consider the evidence," said the senior prosecutor.