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Shafie remains in detention, brother Yusof goes on bail

24th October, 2017

KOTA KINABALU: One was a high drama and the other a low key event when two Apdal siblings were brought to court yesterday.

Yesterday, Parti Warisan Sabah president Datuk Seri Shafie Apdal had his remand extended by four days, until Friday (Oct 27) after much courtroom arguments, while his brother Datuk Yusof Apdal who is Lahad Datu assemblyman was released on RM100,000 bail.

Magistrate Cindy Mc Juce Balitus granted the remand extension application by the Malaysian Anti-Corruption Commission (MACC).

During the proceeding, Shafie was represented by counsel Martin Tommy, Hamid Ismail, Cedric Choo and Loretto S. Padua while deputy public prosecutor Rustam Sanip, Rozana Abdul Hadi and Investigation Officer Mohd Faliq Basirudin for MACC.

Shafie’s lawyer, Martin said the former Rural and Regional Development Minister had hoped for an earlier release so he could attend the tabling of Budget 2018 on Friday.

“He has fully cooperated with the MACC,” Martin said. Shafie on Oct 19 (Thursday) was detained at MACC office here after giving his statement, and was remanded for four days on the next day (Oct 20) the same day when he turned 60 to facilitate investigation by the MACC under Section 17 (a) of the MACC Act 2009.

On Friday, before the hearing of Shafie’s remand application, his counsel raised a preliminary objection that MACC is not entitled to apply for remand under Section 117 of the Criminal Procedure Code (CPC).

The Magistrate however ruled in favour of the prosecution. Shafie’s counsels then filed a revision in the High Court which dismissed it.

Judicial Commissioner Ismail Brahim after hearing all parties’ submissions did not agree with the counsel submissions and dismissed the revision application.

In the High Court proceeding, counsel Hamid Ismail applied for the remand order issued by the magistrate last Friday to be set aside and the applicant can be released forthwith.

He raised two issues, firstly, on whether the MACC can apply for remand under Section 117 of the CPC against the applicant for investigation purpose after arresting him.

Hamid said, the answer is no because MACC Act has its own provision relating to arrest and investigation. These provisions differ from the provisions relating to arrest and investigation provided in CPC.

“Whenever a person is arrested, CPC and MACC Act have their own provisions for dealing with that person. Section 28 of CPC requires the police officer to take or send the arrested person before a Magistrate without unnecessary delay specifically mentioned under Section 117 of CPC. But Section 49 (2) of MACC Act states that every person arrested may be released on bail.

“MACC can only apply for remand if the person released on bail breaks or likely to break his bail conditions under (Section 49 (4) of MACC Act).

“Thus under MACC Act there is no remand for investigation purpose. It differs from the purpose of remand in CPC which is to complete investigation as stated under Section 117 of the CPC,” he said.

On the second issue, Hamid argued on whether MACC can use Section 117 of the CPC to detain the applicant for the purpose of interrogating in view of Section 30 of the MACC Act.

Hamid submitted that the answer is no because based on decided cases, remand is not for the purpose of interrogation.

He pointed out that in applying for remand on Oct 20, MACC’s grounds of application were that there was a need to “soal siasat”, “soal balas” and “mendapatkan penjelasan” from the applicant.

The applicant can be remanded under section 117 if he is likely to abscond or interfere with witnesses and/or evidence. But MACC’s grounds of application did not mention any of them.

Thus, Hamid submitted that MACC should apply section 30 of MACC Act instead of Section 117 of the CPC.

“Under Section 30 of the MACC Act MACC has power to order the applicant to give statement from day to day and thus, there is no need for detaining him. Therefore the grounds of remand application on Oct 20 were not valid in law. The learned magistrate should have refused the application,” Hamid pointed out.

Deputy public prosecutor Rustam Sanip, however, urged the court to dismiss the revision application and the remand order by the lower court should be affirmed.

He among others argued that Section 3 of the CPC allows MACC to use Section 117 of the CPC to allow detention for investigation.

He said Section 30 of MACC is for witnesses while Section 53 of MACC is for “accused”.

“We will file a leave to appeal at the court of appeal against the High Court decision within this week,” Hamid said when asked by reporters outside the High Court.

Meanwhile, crowd of supporters most of them wearing orange shirts have been steadily growing outside the courthouse since morning.

They gathered at the Chong Thien Vun park beside the courthouse, chanting and singing patriotic songs while holding banners to show their support for Shafie.

Police Reserve Unit personnel were also present to oversee the crowd.

Earlier, Yusof was released after being remanded for six days. Magistrate Cindy ordered Yusof freed on a RM100,000 bail with RM50,000 to be deposited under two local sureties following an application by the Malaysian Anti-Corruption Commission.

The assemblyman also has to report to MACC office once a month. Yusof was taken to the courthouse here at about 10am.

He was hugged by family members as soon as he stepped out from the courtroom after the 10-minute hearing. He was arrested by MACC on October 17 and remanded for six days starting Oct 18 to facilitate investigations into the embezzlement of development funds for Sabah amounting to RM1.5 billion.

The development projects were under the Rural and Regional Development Ministry when Shafie was the minister. The projects were implemented from 2009 to 2015. Prosecuting officer Mohd Faliq Basirudin acted for MACC. – ECA

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