Six months after tycoon Eric Chia's death, the prosecution has filed an application for a revision of the Sessions Court judgment in acquitting him for embezzling RM76.4 million of Perwaja Rolling Mill Sdn Bhd's funds into the account of Frisham Enterprise Inc.

This is believed to be the first such application in Malaysia where the prosecution is seeking a revision at the High Court over a lower court's decision in acquitting a person who had subsequently passed away.

The application was filed by the prosecution on Dec 10, citing public interests and that the lower court judge had erred in his judgment, which was also deemed illegal and illogical.

Deputy public prosecutor Mohd Jazamuddin Ahmad Nawawi in submitting the application today before the High Court judge Lim Yee Lan said the prosecution would like to seek the court to invoke its vast revisionary powers to review the judgment.

eric chia courts 100204"The Eric Chia case had created a lot of interest and was widely debated in the Parliament. It had created unnecessary losses of a huge amount of RM76.4 million," said Mohd Jazamuddin.

"It is a case of public interest and the prosecution hopes justice will prevail where in this case we hope justice will be on the side on the prosecution and not the deceased," he added.

Mohd Jazamuddin added the prosecution also wanted the court to remove the Sessions Court judge's finding that there was a lack of direction in the prosecution in issuing the preferred and alternative charge and that it was weak.

"The prosecution also wants the court to remove the finding that the prosecution's failure to call two vital witnesses had weakened its case," said the DPP.

Indian case law

Lim then asked the Mohd Jazamuddin to provide case laws where a revision on a dead person was allowed.

"How can the High Court exercise a judicial review where the accused is already dead? He cannot defend himself," said the judge.

Mohd Jazamuddin then presented a 1962 Indian case of State of Kerala vs Narayani Amma to rely on the prosecution application.

He also said that the High Court could use its extensive judiciary power under Section 323 of the Criminal Procedure Code for a revision.

Chia's counsel Muhammad Shafee Abdullah, who was present at the proceedings, then pointed out the case laws cited by the prosecution was of a different scenario.

"In that Indian case, the person was convicted but in my client's case he had already been acquitted. This is so much different from our situation," he said.

The lawyer said for the client, his estate could only appeal if the accused was fined for an offence before he died where in such cases it would affect the wealth of the estate.

"There is no such case where the prosecution could apply for a revision for an acquitted person who had already died," he said.

"I am here as an amicus curiae (friend of the court) to assist the court as my client is already dead and I cannot take instructions from a dead person."

Just to massage the bruised ego

He feels there is no jurisdiction that could be exercised by this court in reviewing the decision.

"This is not a forum for review. This is a back door application for the prosecution to appeal. The prosecution had been criticised severely because it was losing several high profile cases.

"On a final analysis, you cannot appeal or apply for review over a dead person.

Prosecution is not saying acquittal was wrong. They just do not like what the judge said about them. It is a move purely to massage the ego of certain people," said Shafee.

Lim said she was reserving her decision on the prosecution's application and did not fix a date to deliver it.

"I would need some time to scrutinise the fact and bundle of authorities on whether I could exercise judicial review in this case as the accused is dead and he has no opportunity to defend himself."

"How am I to look at the Sessions Court's notes of proceedings without considering the accused/deceased interests? This is what that's puzzling me," said the judge.

Mohd Jazamuddin said the court should look at itself as having extensive judiciary powers to exercise and review the case.

Prosecution's failure

Chia, who was the managing director of Perwaja Rolling Mill had passed away on June 24, almost a year after he was acquitted.

Chia, a Singaporean by birth, built his reputation in building UMW and was acquitted on June 26 last year by the Sessions Court.

He was charged with dishonestly authorising payment of RM76.4 million to the account of Frisham Enterprise Incorporated with the American Express Bank Ltd, Hong Kong, ostensibly for technical assistance provided by Japan's NKK Corporation to Perwaja's plant in Gurun, Kedah, when in fact no such payment was due. The offence was allegedly committed on Feb 18, 1994.

He was the first high profile person charged with corruption after Prime Minister Abdullah Ahmad Badawi replaced Dr Mahathir Mohamad on October 2003. Abdullah had pledged to root out graft in government and business.

Sessions Court judge Akhtar Tahir in acquitting Chia said the material witnesses were not even called in the case.

"As a conclusion I would say ... in this case the court was deprived of making this maximum evaluation as the material witnesses were not even called," said Akhtar.

"I have decided that the prosecution has failed in proving a prima facie case against the accused on both the main and the alternative charge. The accused is therefore acquitted and discharged for both the main and alternative charge," he added.

"The prosecution's case has been negated by their own evidence and crippled by the non-calling of essential witnesses," he had added.