The decision to overturn the acquittal of Parti Keadilan Rakyat vice-president Mohd Azmin Ali of a perjury charge was wrong because it was based on a narrow interpretation of evidence which concurred with his allegations of being "forced" and "tortured" while in police custody.

Azmin's lawyer CV Prabakharan told the Kuala Lumpur High Court that Justice Abdul Wahab Patail was wrong in disturbing the decision (by sessions court judge Hamdan Endah who acquitted Azmin without calling for his defence) as the evidence clearly showed there was no prima facie in the prosecution's case.

He said this in reference to the evidence given by magistrate Azhar Othman, who at the perjury trial, stated that he believed that there were elements of 'ugut, kejam dan paksa '(cruelty, threats and force) during Azmin's detention although the latter did not use the exact words while making his complaint in a remand proceeding in 1998.

He said Abdul Wahab had erred when he concluded that Azhar's evidence as "speculative in nature and are of limited evidential and probative value" before he overturned Hamdan's decision and ordered Azmin to enter his defence on the charge.

"The evidence was based on questions put to the (magistrate) in the defence's attempt to prove that the elements of threat, force and cruelty did exist in his (the magistrate's) mind while the appellant was making his complaint. It was therefore not a conclusion based on the limited parameters of the questions asked," he argued.

"I submit that it was based on the summary of what was conveyed to (the magistrate) and taken as a whole, the elements of threat, force and cruelty did exist. Justice Wahab did not view this evidence as a whole on a broader angle but took a narrow interpretation."

Case sent back

Azmin is appealing against a conviction and an 18-month jail sentence for giving false evidence when testifying at former deputy prime minister Anwar Ibrahim's corruption trial at the High Court in March 1999 before Justice S Augustine Paul.

Sessions judge Akhtar Tahir had found him guilty of the charge stating that he was satisfied that there were discrepancies between Azmin's testimony in Anwar's trial and his complaint to the magistrate.

Azmin was initially acquitted of the charge in July 1999 by Hamdan who found that there was nothing in the prosecution's case that warranted him to enter his defence.

However, the prosecution appealed against the acquittal and on Feb 17, 2000, the appeal was allowed by Justice Abdul Wahab who ordered the case to be sent back to the Sessions Court for Azmin to enter his defence. The trial was heard before Akhtar.

This led to Azmin's conviction and sentence, against which he is now appealing before Justice Abdul Kadir Musa.

Thinking aloud

During today's proceeding, Justice Abdul Kadir also questioned if the prosecution had fully appreciated Azmin's evidence before Paul - which was alleged to be false- as a whole.

"What the appellant said was: 'Saya menyatakan kepada majistret mengapa saya tidak boleh dilanjutkan reman kerana tindakan dan ugutan pihak polis semasa dalam tahanan adalah terlalu kejam dan memaksa saya membuat pengakjuan melibatkan Anwar dan tak berasas sama sekali'.

("I told the magistrate why my remand should not be extended as the threats and action of the police were too cruel and I was forced to make confessions implicating Anwar which was totally baseless").

"The operative word here is "mengapa" (why). How you interpret it may change the meaning here," said Abdul Kadir.

However he quickly assured Deputy Public Prosecutor Shamsul Sulaiman that he was "merely thinking aloud" and had not made any final conclusion.

The appeal continues tomorrow.