Failing to file a notice of appeal within the given time proved to be costly for the prosecution when it failed to revive a case against a Sabah politician whose detention under the Restricted Residence Act 1933 was quashed by the Kuala Lumpur High Court last year.

The Court of Appeal today dismissed the application from the Attorney-General's chambers to file an appeal against the ruling that the detention of MCA Labuan deputy division head Kiong Ping Moon was 'null and void'.

Justices Gopal Sri Ram, Hashim Mohd Yusof and James Foong made the decision after finding that the prosecution's application had no merits.

"No good reason was given to us as to why an extension of time should be given to the prosecution who failed to file the notice of appeal within time. Application is dismissed with costs," said Gopal.

The court was earlier told that Kiong ( photo:right ) - dubbed as the second 'heavenly king' after the infamous Tee Yam - was arrested in March 30, 2004 for his alleged involvement in vice activities.

RM117 million suit

On May 11, 2004, the government issued a restricted residence order against him. He was then ordered to be sent to Kuala Berang, Terengganu for a period of three years.

Subsequently, Kiong challenged the order at the High Court and on Dec 6 last year Justice Raus Sharif declared that the order was unlawful.

He ruled that the 43-day delay in issuing the order proved that the government had failed to act within a reasonably convenient speed in the matter.

However, the prosecution only initiated its challenge against the judgment this April, after Kiong filed a RM117 million suit against the police and the government for unlawful detention and damages for the suffering endured during his 574-day detention.

The law provides dissatisfied parties to file a notice of appeal within 60 days after a judgment is delivered. The court has a discretion to provide parties an extension of time with reasonable grounds.

Tremendous hardship

In today's proceeding, Kiong's lawyer Eddie Kwang said his client had legitimate expectation that the matter was finally over.

"On the day of the judgment, the prosecution would have known whether the court was right or wrong in its decision. If they were of the view that it was a wrong decision, then they should have filed a notice of appeal," he argued

To this, Gopal ( right ) quipped: "Filing an appeal is free for the AG's chambers unlike private parties and yet they still failed to do this."

Kwang continued his argument and stated that the application for an extension of time bore no merits and should be dismissed.

Deputy Public Prosecutor Najib Zakaria however argued that the court must weigh the facts of the case and its strong possibility of success against the technical mistake.

Asked by Gopal whether that would mean the court had to overlook the negligence of the prosecution, the DPP replied:

"I am saying that the court should look at every fact available before making its decision. And in this case, there is serious repercussions if the appeal is not done."

He said the filing of the multi-million ringgit suit against the government showed the significance of the case.

To this Gopal replied, "It only shows that he is greedy...that's all."

He added that the suit had no bearing on the failure of the prosecution to file the notice of appeal within the stipulated time.