THE Penang High Court has set aside the five-day remand order for Penang exco Phee Boon Poh and two others. 

Judicial commissioner Abdul Wahab Mohamed ruled in favour of Phee and two bosses of an illegal factory in Bukit Mertajam. 

Wahab agreed that the remand order issued last Saturday had contravened Section 117 of the Criminal Procedure Code, and acknowledged that the three were not allowed to consult their lawyers during the remand proceedings. 

“They were denied natural justice,” he said.

Abdul Wahab said Section 117 of the CPC stated that the magistrate, in deciding the period of detention of the accused, “shall allow representations to be made either by the accused himself or through a counsel of his choice”.

He said the word “shall” meant it was mandatory that the detainee be allowed legal representation.

Phee, a two-term exco and four-term assemblyman, was placed under remand by Malaysian Anti-Corruption Commission (MACC) to assist investigation into a claim that he used his position for gratification. 

He is alleged to have written letters in his capacity as environmental exco to delay enforcement action on an illegal factory in Bukit Mertajam.

The factory’s 70-year-old manager Gan Buck Hee and his 37-year-old son Edmund Gan, who is a director, were also remanded for five days. They were brought to court this morning with Phee. 

All three men were arrested at the Penang MACC office late Friday afternoon and brought to the Penang court the next morning for  their remand order, which was granted. 

The detainees’ lawyers argued that the remand order was highly irregular, as the registrar had decided on the remand application without hearing any of the lawyers.

Phee’s lawyers Ramkarpal Singh and RSN Rayer thanked Wahab for his decision and asked that the trio’s handcuffs be removed at once. 

The courtroom was packed with state government and DAP leaders, including Chief Minister Lim Guan Eng and DAP parliamentary opposition leader Lim Kit Siang, Phee’s family members, his supporters and the media. 

Phee embraced Guan Eng as soon as he was brought into the courtroom. He also briefly hugged his wife Ooi Suat Cheng, his pregnant daughter, and his elder sister while handcuffed and making an visible effort to hold back tears.

During the hearing to set aside the remand this morning, Ramkarpal explained to Abdul Wahab the sequence of events on Saturday when the remand order was granted by senior assistant registrar (SAR) Ameera Mastura Khamis without giving the lawyers the chance to consult their clients for instructions. 

He said MACC prosecutor Ahmad Ghazali Muhammad Nadzri, who made the remand application that morning, could testify to his account.

“Ghazali had denied our right to get instructions from our clients in the remand office, on the grounds that they had been served a notice under Section 28(A) of Criminal Procedure Code on the exclusion of the rights of persons arrested to consult lawyers. 

“The propriety of that notice is not the issue here. What I did was to raise this as a preliminary objection (PO) to the senior assistant registrar when she commenced hearing, with Ghazali’s agreement that this should be heard first before we go into the merits of the remand application. 

“It is imperative to note that all parties had agreed to postpone the issue of the remand order’s merits until the PO was addressed. But when we went back into the office after a 25-minute adjournment, the SAR had decided on the five-day remand order,” said Ramkarpal. 

Ramkarpal said Ghazali had also admitted that it was a mistake as the PO was not addressed, but the SAR insisted that her decision was final and the defence lawyers could bring their grievances to the high court. 

“It is a clear case of our clients being denied their fundamental right to be heard,” he said, citing Article 5(1) of Federal Constitution that states  no persons should be deprived of their liberty, unless according to the law. 

Ramkarpal said the SAR did not appreciate the strict procedures of the Criminal Procedure Code, so he would be surprised if the MACC prosecutors defended the remand order. 

“How can the SAR satisfy the necessity of the remand without hearing us and without us seeking instruction from our clients?

“It will be a travesty of justice,” he said. 

MACC deputy public prosecutor Tengku Amir Zaki Tengku Abdul Rahman admitted that the detainees were not allowed to talk to their lawyers, but argued that this did not affect the validity of the remand order as the MACC had supplied all the documents required for its application for remand. 

He also took issue with the attempt by detainees’ counsels to set aside the remand order, saying that it was as if they were trying to get them freed. 

To this, Ramkarpal said it was the prosecutions misconception, as they only wanted to have the remand order set aside, which did not equate to having their clients freed.

Ghazali also said: “The magistrate doesn’t need to hear what the detainees have to say to decide on remand applications.”

Ramkarpal said the prosecution’s mention of the documents submitted to court reinforced his argument that only one side was heard. 

In his closing argument, Ramkarpal said if the court agreed with the prosecution, the court might as well declare that all proceedings for remand orders could hence be conducted ex parte.

The father and son were represented by Dev Kumaraendran and Teh See Khoon. – August 14, 2017.