The Kuala Lumpur High Court should not have resorted to its revisionary powers to deal with the prosecution's complaint when it failed to admit evidence gathered in Hong Kong in the trial of ex-Perwaja Steel managing director Eric Chia.

Chia's lawyer Muhammad Shafee Abdullah told the Court of Appeal today that the court can only resort to these powers when an obvious miscarriage of justice has been committed at the lower court, something which did not happen in the criminal breach of trial (CBT) to date.

High Court judge Abdull Hamid Embong had, on April 29, set aside the Kuala Lumpur sessions court decision to reject the prosecution's bid to admit the Hong Kong evidence.

Declaring the Hong Kong evidence as "admissible", the judge had dismissed Chia's complaint that it failed to fulfil the requirements of the Evidence Act.

The judge further said it would be sheer injustice to subject the Mutual Assistance in Criminal Matters 2002 (MACMA) - the law under which the Hong Kong evidence was admitted - to the Evidence Act.

The appeal is being heard before judges Denis Ong, Abdul Aziz Mohamed and Azmel Maamor.

Chia, 72, is accused of dishonestly authorising a payment of RM76.4 million to the account of Frilsham Enterprise Incorporated through the American Express Bank Ltd, Hong Kong, for technical assistance provided by Japan's NKK Corporation for Perwaja's steel plant in Gurun, Kedah, when, in fact, no such payment was due.

The offence was allegedly committed between Feb 4, 1993 and Feb 22, 1994, when he was the managing director of Perwaja Rolling Mill and Development Sdn Bhd.

He is charged under section 409 of the Penal Code which carries a maximum 20-year jail sentence.

Judicial safeguard

In his submission today, Muhammad Shafee also argued that the power of revision can only be invoked "in the clearest of cases where illegality have been committed at the lower courts".

"It must so obvious a mistake that warrants the (High Court) judge to call for the records (from the lower courts) to correct the mistake that has been done. The judge need not even call the parties involved.

"I was told that the courts in East Malaysia don't even call parties when making revisions in cases where an obvious mistake had been made."

His last statement forced Justice Denis - who had once served at the Miri High Court- to go on the defensive.

"I don't think that is how it is. You make us sound so uncivilised! We do hear both parties, you know. I certainly did when I was the High Court judge in Miri.... I made sure of that."

Shafee replied that he was merely stressing a point to explain the situation in cases where the court could resort to the power.

The lawyer had also argued that the High Court was wrong to hold that the Section 33 of the Evidence Act was a stumbling block to admission of evidence under MACMA - a special law to obtained offshore evidence.

He said that the Evidence Act and MACMA not only exist in harmony but also serve each other well.

"The Evidence Act is a judicial safeguard to ensure that the power of the Attorney-General under MACMA doesn't get abused. It certainly does not stop the prosecution from obtaining evidence overseas," argued Shafee.

"The prosecution only have to bring themselves to fulfill the requirements stated in the Evidence Act and they can do so. They only have to work harder!"

He added that MACMA cannot be used for the prosecution's convenience to escape the important requirements in the law of evidence.

"The defence counsel are not a favoured lot in Malaysia. When we defend our clients, we are denied from getting official documents imperative to our defence. Then we are forced to go overseas to take part in a fragmented hearings and cross-examine witnesses without knowing heads or tail (of the situation). On top of that, (no offer is made to pay our expenses)!"

The judge told Shafee that he should take his grouse to his elected representative as the court has no jurisdiction to act on the complaint.

"Take that up to your wakil. We don't make the laws here. We can only be concerned with the issues at hand. If not, there would be transgression of overlapping territory."

Shafee will continue with his arguments tomorrow.