Published: Thursday November 26, 2009 MYT 3:27:00 PM
Prosecution fails to file appeal in time, argues lawyer in Tourism D-G case
BY M.MAGESWARI
KUALA LUMPUR: The prosecution has failed to file a petition of appeal within the prescribed time over the acquittal of Tourism Malaysia director-general Datuk Mirza Mohammad Taiyab for allegedly accepting dental treatment without consideration in 2005, a High Court heard.
Mirza's lawyer Saseedharan Menon argued that if a petition of appeal was not filed within the time prescribed under Section 307 (9) of the Criminal Procedure Code (CPC), then the appeal shall be deemed to have been withdrawn.
He said under Section 307 (4) and (5) of the CPC, the petition must be filed within 14 days of receipt of the notes of evidence and grounds of judgment.
He said the prosecution was now applying to the court for extension of time to file the petition under Section 310 of the CPC.
“The applicant (Public Prosecutor) has to satisfy the court that the failure to file the petition within the prescribed time was due to some factor beyond their control and that there were merits in the appeal for the court to do substantial justice,” he said.
However, he said the prosecution had failed to give convincing and reasonable explanation for not complying with the provisions.
Saseedharan argued that the Sessions Court, which freed Mirza, had notified the High Court deputy registrar that the notes of evidence and grounds of judgment of his acquittal had been received by the prosecution on Aug 19 although the appeal was filed on Sept 4.
“Under the circumstances, the petition of appeal was filed out of time,” he argued before Judicial Commissioner Justice Zainal Azman Ab. Aziz yesterday.
He pointed out that Section 310 of CPC conferred upon a judge a discretion whether to grant or disallow an extension of time.
“Substantial justice will not be done if this application is allowed. It was unlikely that the prosecution will succeed in its appeal as there were overwhelming evidence which caused the trial judge to acquit the respondent (Mirza) without his defence being called,” he added.
DPP Fariza Hamzah, from Malaysian Anti-Corruption Commission (MACC), however submitted that the court official had delivered the notes of evidence and grounds of judgment to the commission’s guard counter on Aug 19 and that the legal division had only accepted the documents on Aug 21.
She argued the delivery process was not proper and that the delay of two days in filing of the petition was only minimal.
DPP Fariza said Mirza would not be prejudiced if their application was allowed as the respondent would have the chance to response to the questions raised in the appeal.
On July 24, Sessions Court Judge Zainal Abidin Kamarudin had said the prosecution had failed to prove the element of criminal intent on Mirza’s part that he had accepted the valuable thing in the form of the treatment from a company director.
The judge set Dec 17 to deliver his decision.
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