The evidence the prosecution had obtained in Hong Kong need not undergo the admissibility test under the Evidence Act 1950 before it is admitted in the trial of ex-Perwaja Steel managing director Eric Chia, the Court of Appeal was told today.

Senior DPP Mohd Yusof Zainal Abiden submitted that the prosecution only has to prove relevancy of the Hong Kong evidence to Chia's criminal breach of trust (CBT) trial for it to be admitted into the proceedings.

"This is because there are no pre-conditions attached to section 8(1) of the Mutual Assistance in Criminal Matters 2002 or Macma (the law under which overseas evidence is obtained). Because of the absence of the pre-conditions, we submit that no conditions can be attached on the admissibility of the evidence," he said.

"Except for the requirements of relevancy which is provided for under Section 5 of the Evidence Act (no other pre-conditions can be attached)."

He was replying to the arguments made by Chia's lawyer Muhammad Shafee Abdullah who on Wednesday submitted that evidence gathered outside Malaysia can only be admitted if it satisfies the admissibility test.

The lawyer had claimed that the Hong Kong evidence had failed the admissibility test and therefore should not be admitted in Chia's trial.

Chia 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 Macma 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.

No adjudication

In his submission, Mohd Yusof also negated Shafee's argument that the Hong Kong evidence came from a separate judicial proceeding before the Hong Kong magistrate's court and therefore must be rejected.

"There was only recording of evidence by the Hong Kong magistrate. The proceeding does not come under the meaning of "judicial proceeding" because no adjudication or rulings was made there."

Therefore there was no reason for the court to reject the overseas evidence on this issue, he added.

He also dismissed Shafee's argument that section 8(3) of Macma cannot stand on its own as far as admissibility of overseas evidence is concerned.

"We submit that the provision is an admissibility section and can stand on its own. Therefore it cannot be made subjected to the Evidence Act ."

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 enters its fourth day tomorrow.