Published: Thursday November 19, 2009 MYT 4:13:00 PM
Updated: Thursday November 19, 2009 MYT 7:02:10 PM

Court: MACC can only question witnesses during office hours (Updated)

By M. MAGESWARI

mages@thestar.com.my

KUALA LUMPUR: Witnesses cannot be interrogated by the Malaysian Anti-Corruption Commission (MACC) beyond office hours, the High Court declared in a landmark ruling on Thrusday.

Witnesses can only be questioned from 8.30am to 5.30pm each day, High Court (Appellate and Special Powers Division) judge Justice Mohamad Ariff Md Yusof said when he allowed an application by businessman Tan Boon Wah.

Tan had filed an originating summons on July 22 against the MACC and two others over whether witnesses could be questioned outside of office hours.

“It is fair to conclude that the phrase ‘day-to-day’ raises an ambiguity.

“This court has to interpret that phrase so as to avoid an absurd result. The phrase admittedly is not defined anywhere in the MACC Act.

“Such being the case, it is then permissible to explore the dictionary meaning of that phrase. The legal meaning cannot be far removed from its ordinary meaning,” Justice Mohamad Ariff said.

He said the Oxford Dictionary of English (Second Edition) defined the adverb “day-to-day” as “on a daily basis.”

“In the context of Section 30(3)(a) of the MACC Act, this, with respect, is the proper meaning to be ascribed to that phrase. It cannot mean or connote the power or ability to conduct investigation round-the-clock.

“This is also the meaning to be ascribed to the forms of subpoena and their mention of ‘day-to-day’ until the end of proceedings. Since that phrase cannot means an unending 24-hour day, ‘day’ must relate to normal working hours,” he said.

Section 30 (3)(a) stated that any person who has been ordered to attend an examination shall continue to do so from day to day where so directed until the examination is completed.

In the test case, Tan, who is also a Kajang municipal councillor, also named MACC chief commissioner Datuk Seri Ahmad Said Hamdan and Selangor MACC assistant superintendent Mohammad Hassan Zulkifli as defendants.

Tan, 39, is among three people who was summoned by the MACC to assist in investigations into the alleged misuse of allocations by several state assemblymen.

He was questioned over the supply of 1,005 Malaysian flags worth over RM2,000 to the Seri Kembangan assemblyman last August.

He is also said to be the last person to have seen DAP political secretary Teoh Beng Hock alive at the MACC office.

Justice Mohamad Ariff issued a declaration that the defendants, in investigating an offence under Section 30(1)(a) of the MACC Act 2009, could lawfully only record a statement from Tan as a witness during office hours -- from 8.30am to 5.30pm each day and not beyond these hours.

The judge also declared that the defendants had acted in contravention of the provisions of Section 30(3)(a) of the MACC Act.

“I find that ‘day-to-day’ cannot mean ‘round-the-clock.’ Section 30 (3) of the Act cannot be interpreted as round-the-clock interrogation. To do so would be absurd and would offend the intention of the legislator and will curtail the ambit of personal liberty,” he said further in his judgment Thursday.

Justice Mohamad Ariff said he agreed with Tan’s contention that he had been unlawfully detained beyond office hours at the MACC headquarters on July 15 and the next day.

“I do not find evidence of any such order with terms requiring Tan to attend round-the-clock for purposes of investigation. Indeed, the evidence is to the contrary.

“The order, which appears in the supporting affidavit of the plaintiff (Tan) (order to attend for examination) does not require his attendance for a round-the-clock attendance as a witness,” he said.

He said the order dated July 16 required Tan to attend for examination on July 20 at 10am, namely within office hours.

“This order conforms with the statutory purpose underlying the MACC Act and there is no additional requirement for Tan to attend on a day-to-day basis until completion of investigation,” he said.

Justice Mohamad Ariff ordered the defendants to pay damages to Tan for false imprisonment between 9.45pm on July 15 and 2.53 the next day.

He also ordered an inquiry be held by a senior assistant registrar to determine interest for the damages.

Speaking to reporters, Tan said it was difficult to express his feelings as he had filed the suit for the interest of Malaysians.

“It is good thing ... for the benefit of all Malaysians in relation to the questioning of witnesses by the authorities,” he said with a broad smile.

His lead counsel Karpal Singh said this is a landmark case where no witnesses was obliged to give a statement beyond office hours.

“It is not only limited under the MACC Act as it goes beyond the parameters of investigations conducted by the police,” he said.

Karpal also said that those who have been interrogated, including suspects, beyond the office hours in the last three years could file cases against the Government and the police for damages as stipulated under the Public Authorities Protection Act 1948.

Senior Federal Counsel Noorin Badaruddin, who acted for the defendants, said she would appeal the ruling on Friday.