A miscarriage of justice occurred when the Kuala Lumpur sessions court prevented the prosecution from admitting evidence gathered in Hong Kong in the trial of ex-Perwaja Steel managing director Eric Chia, said Senior DPP Mohd Yusof Zainal Abiden today.

He told the Court of Appeal that due to the unjust ruling, the Kuala Lumpur High Court had rightly invoked its power of revision to overturn the decision later.

"The High Court judge has the power (of revision) under section 32 of the Court of Judicature Act and section 323 of the Criminal Procedure Code. This power is special and it is unfettered and wide of paternal supervisory jurisdiction," he said.

"He (the judge) was of the view that there is a need to correct the miscarriage of justice which arose as a result of a misconception of the law by the lower court."

He was replying to arguments made by Chia's counsel Muhammad Shafee Abdullah who in his submissions yesterday said the high court had exceeded its powers when it overturned the lower court's decision.

Chia ( photo ) is appealing against the decision by High Court judge Abdull Hamid Embong who ruled that the evidence gathered by the prosecution in Hong Kong in relation to Chia's trial was "admissible".

The judge dismissed Chia's complaint that the Hong Kong evidence had failed to fulfill the requirements of the Evidence Act, stating that it would be sheer injustice to subject the Mutual Assistance in Criminal Matters 2002 (MACMA) - the law under which the evidence was admitted - to the former.

"MACMA is a special and specific law. In my view it overrides the Evidence Act..." said Abdull Hamid in his landmark judgment.

The appeal is being heard before judges Denis Ong, Abdul Aziz Mohamed and Azmel Maamor.

Basis of intervention

In his argument, Mohd Yusof also said Abdull Hamid had rightly intervened in the case as the issue involved was "something new and had not been settled".

He was referring to MACMA, which is a new law and has not been used by the prosecution before this.

The lawyer said the court must not look at the revision as "backdoor appeal" as argued by Muhammad Shafee.

"He (Abdull Hamid) intervened because he thought that there is injustice which is the very basis for the revision. The high court can, either on its own or acting on requests from parties, call for revision of a miscarriage of justice and this cannot be said as a backdoor appeal."

The bench then asked whether it was appropriate for the high court judge to intervene in the midst of the trial causing the proceedings to be deferred indefinitely.

The senior prosecutor said the deferment of the case is not the issue in the present appeal.

"The intervention may have stalled the trial but the real issue here is whether the high court has the power to revise and whether the power was exercised legally and we submit that the answers to the questions are in the affirmative," said the senior prosecutor.

Emotional arguments

Earlier, Chia's counsel Muhammad Shafee was advised by the court not to be emotional in making his arguments.

Shafee was given the advice when he told the court how the prosecution had resorted to MACMA to force his sick and wheelchair-bound client to travel overseas to gather evidence.

"Don't get emotional about this. We will look at the legal issues ...so you don't need to be so emotional about it," said the judge.

Chia, 72, 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 between Feb 4, 1993 and Feb 22, 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.

The hearing of the appeal continues tomorrow.