Parti Keadilan Rakyat (PKR) vice-president Azmin Ali cannot be held liable for perjury simply because he used inaccurate words when narrating about being "forced and tortured" in police custody.

His lawyer Christopher Fernando (right) told the Kuala Lumpur High Court that giving inaccurate details does not amount to making a false statement as provided under section 193 of the Penal Code.

"If he did not use the exact words, it is not an act of offence under section 193. If it's not the exact words he had used, that does not mean he had brazenly lied in his testimony.

"Unless and until the prosecution proves conclusively that his testimony (at ex-deputy premier Anwar Ibrahim's corruption trial) was false and that he knew they were false, the perjury charge cannot stand," he said.

Fernando also urged the court to appreciate the fact that Azmin had given his testimony more than two years after the remand proceeding with the magistrate.

"He had given evidence two and a half years after the incident without referring to any records. He was speaking from memory. He was trying to recollect what had transpired in the remand proceeding.

"Can someone be punished for something he had failed to remember accurately. Surely the law is not as such," he argued.

Discrepancies

Azmin is appealing against sessions court judge Akhtar Tahir's decision on May 2, 200. The judge found him guilty of giving false evidence when testifying in Anwar's corruption trial in the High Court in March 1999 before Justice S Augustine Paul.

Akhtar said he was satisfied that there were discrepancies between Azmin's testimony in the trial and his complaint to magistrate Azhar Othman during a remand proceeding. He sentenced Azmin to 18 months' jail.

Azmin (left) was initially acquitted from the charge in July 1999 when sessions judge Hamdan Indah found that there was nothing in the prosecution's case that warranted him to enter his defence.

However, the prosecution appealed against the acquittal. On Feb 17, 2000, the appeal was allowed by High Court judge Abdul Wahab Patail, who ordered the case to be remitted back to the sessions court for Azmin to enter his defence.

This led to Azmin's conviction and sentence, against which he is now appealing before Justice Abdul Kadir Musa.

No evidence

Meanwhile, Fernando further submitted that although Azmin did not say the exact words - kejam, ugut, paksa (cruelty, threats and force) - when he made his complaint to the magistrate, he had successfully convinced that there was indeed police abuse.

"From what the appellant had said the magistrate was convinced that there was kejam, ugut and paksa . So convinced was the magistrate, he not only denied the police's request to extend the appellant's remand but also ordered him to be released within 15 minutes! This is highly significant for this court to consider," he said.

Therefore, Azmin's testimony was true in fact an substance and does not amount to a false statement.

"There are two elements to prove the charge. One is that the statement he (Azmin) gave before Paul is false and that the other is that the appellant knew that the statement to be false.

"It's submitted that on both counts the prosecution has failed to make up a prima facie case and the decision to acquit him in the first instance was right," said Fernando.

He also urged the court to allow the appeal as the prosecution failed to prove the authenticity of the notes of proceeding recorded by Paul.

"There is no evidence that he had indeed uttered the words as recorded. They must prove that these are the exact words uttered by the appellant. The judge could have recorded a summary of what the appellant was trying to say. The judge could have conceptualise what the appellant was trying to say," he said.

Fernando stressed that it was incumbent on the prosecution to prove that the appellant had indeed said those words.

"They could have called the registrar of the high court or even subpoena the judge himself. But they did not. They just assumed that it was correct. The could have simply called the judge or the court registrar to prove this important element," he said.

The appeal continues on Nov 28.