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Appeal court acquits organiser of Black 505 rally Nik Nazmi BorneoPost Online | Borneo , Malaysia, Sarawak Daily News » Court - New 2 Sarawak

Appeal court acquits organiser of Black 505 rally Nik Nazmi

Posted: 25 Apr 2014 12:49 PM PDT

PUTRAJAYA: The Court of Appeal yester day allowed an application by Seri Setia assemblyman Nik Nazmi Nik Ahmad to drop a charge against him for organising the Black 505 rally at Stadium Kelana Jaya on May 8, last year.

It ruled that the police could impose restriction on such a rally but not punish organisers by prosecuting them for failing to comply with the 10-day notice requirement.

In a landmark decision, a three-man bench headed by Datuk Mohd Ariff Mohd Yusof said Section 9(5) of the Peaceful Assembly Act (PAA) 2012 was unconstitutional since the provision was ultra vires to Article 10 of the Federal Constitution which guaranteed peaceful gathering.

In a unanimous decision, Mohd Ariff ordered the decision of the Shah Alam High Court on Nov 1, last year to be set aside, which had initially dismissed Nik Nazmi's application to drop the charge.

Before delivering judgment, Mohd Ariff said the bench comprising two other judges, Datuk Dr Hamid Sultan Abu Backer and Datuk Mah Weng Kwai decided that all three of them write separate judgements since it was a public interest case and involved constitutional issues.

In his decision, he said Section 9(1) of the PAA was constitutional on the 10-day notice requirement to the police but criminalising for failure to do so under Section 9(5) was unconstitutional where the rally on the May 8 turned out to be very peaceful.

The senior judge pointed out that if an assembly was lawful, one could not at the same time declare it illegal.

However, he said the PAA was debated in parliament and the court could not substitute the views of the legislature.

Nik Nazmi, who is also Selangor state assembly deputy speaker, was charged under Section 9 (1) for failing to notify the district police on the Black 505 rally within the required 10-day notice period.

Upon conviction, the assemblyman stood to lose his seat, as the punishment under Section 9(5) of the PAA is a fine of up to a maximum of RM10,000.

Meanwhile, Mah in his decision said whenever citizens took part in any unarmed rally or gathering, it was not an offence.

"In this case, the appellent (Nik Nazmi) is also a member of the public and entitled to participate in the peaceful assembly which was held indoors," he said.

He further pointed out that the 10-day notice requirement under the PAA was an unreasonable requirement and very inconveniencing, where respondent (police) in the Black 505 rally had failed to show the gathering would not be peaceful.

Hamid Sultan shared Mah's view by stressing the court was duty-bound to protect public interest where there were sufficient laws to deal with any assembly which was not peaceful.

He said no law should be imposed arbitrarily on citizens and if the court allowed that to be contiuned, then it was tantamount to serious violation of the constitution.

Nik Nazmi was represented by lawyer N. Surendran, Eric Paulsen and Syahredzan Johan and the responent (prosecution), by deputy public prosecutor Mohd Fairuz Johari.

Surendran told reporters that it was a landmark decision since this was the first time that the public were assured they had the right to gather peacefully.- Bernama

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Court proposes Nurul Izzah’s suit against Utusan be resolved via mediation

Posted: 25 Apr 2014 12:48 PM PDT

KUALA LUMPUR: The High Court yesterday proposed that a defamation suit filed by Lembah Pantai MP Nurul Izzah Anwar against Utusan Malaysia editor-in-chief, Datuk Aziz Ishak, and Utusan Melayu (Malaysia) Berhad be resolved through mediation.

Judge Datuk Hue Siew Kheng made the proposal after the case was mentioned in chambers in the presence of counsel Azhana Mohd Khairuddin, representing Nurul Izzah, and counsel Asmirul Asraf Fadli representing Utusan.

Azhana told reporters that the court was granting the plaintiff and defendant until May 26 to discuss the mediation process.

He said, if both sides failed to reach a settlement, the court set two days from Aug 21 for the trial.

Nurul Izzah had filed the suit on Nov 23, 2012, alleging that Aziz and Utusan, as first and second defendants, had twisted her statement at a forum on religious freedom of the Malays.

In her statement of claim, the Parti Keadilan Rakyat vice-president claimed that four articles published by the newspaper on Nov 6 and 7, 2012, contained words defamatory to her.

Nurul Izzah is seeking a court order to have the two defendants make an apology and withdraw the alleged defamation against her, to be made within 24 hours from the date of the court order.

She is also seeking general, exemplary and aggravated damages and costs deemed fit by the court. — Bernama

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Local charged with three counts of armed robbery

Posted: 25 Apr 2014 09:01 AM PDT

KOTA KINABALU: An unemployed local man was charged in the Magistrate's Court here yesterday with three counts of armed robbery.

Melvin Gilbert Ibu, 32, who was brought before court registrar Pitrus Lee, was charged under Section 395 of the Penal Code, punishable under Section 397 of the same Code.

The indictment carries a maximum jail of 20 years and also liable to whipping, upon conviction.

On the first count, the accused with an accomplice, who is still at large, was alleged to have robbed a 49-year-old local woman of her a car, a handbag, a cellphone, a driving licence, an ATM card, house keys, a bag and several pairs of shoes and sandals by the roadside in front of a shop in Petagas, Putatan at 5.05pm on October 11, 2013.

The accused was armed with a machete during the alleged robbery.

The second charge accused Melvin and his three friends, who are still at large, of robbing a 61-year-old local taxi driver of his car by the roadside of Jalan Minintod in Inanam at 4.10pm on March 9.

The third charge stated that Melvin and an accomplice, who is still at large, had robbed a 46-year-old woman of her three mobile phones and RM3,400 in cash by using a machete at a grocery shop at Jalan Papar Lama at 2.30am on October 11, 2013.

No plea was recorded from the undefended accused.

Lee, who presided as a magistrate, reserved April 28 this year to re-mention the case for the accused to enter his plea. He was denied bail.

In a separate case, two men were jointly charged with committing a similar offence.

No plea was taken from both Jason Rodolfo, 26, and Jainudin Lahama, 23, who were alleged to have robbed a 27-year-old woman of her jewellery, a handphone, cash and various brands of cigarettes, all worth RM6,000.

The duo, armed with a knife, allegedly committed the offence at a coffee shop at Lintas Square at 5.40am on April 5.

The court fixed May 5 this year to re-mention the case for their pleas to be taken and no bail was granted on the two accused persons.

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Security guard accused of raping student

Posted: 24 Apr 2014 12:48 PM PDT

by Natasha Sim. Posted on April 25, 2014, Friday

KOTA KINABALU: The Sessions Court here yesterday fixed May 22 this year for the next mention of a rape case involving a 22-year-old security guard and an underage victim.

Judge Dean Wayne Daly set the date when Andin Salim's case came up for mention.

The accused was alleged to have raped a 14-year-old female student at a building premise's store room at Bandar Putra Menggatal, on November 30, 2013 at around 2.30 am.

The charge under Section 376 (2) (d) of the Penal Code carries a jail term up to 30 years, and whipping, upon conviction.

Prosecuting officer Assistant Superintendent Sabrina Jinius, standing in for deputy public prosecutor, Nartiah F Mirchelle Sambatan, had requested for a new mention date, pending a chemist report.

The court ordered for the accused to be further remanded under Section 259 of the Criminal Procedure Code, pending disposal of his case.

Meanwhile, three men were separately jailed by the Magistrate's Court for drug offences committed under the Dangerous Drugs Act 1952.

Euliam Kimus, 24, and Jefry Sahidol, 31, were each jailed five months for possessing 0.01 grams and 0.03 grams of syabu, respectively.

Euliam was arrested for possession at a public rest room in Dewan Lika on January 17, this year while Jefry committed his offence on January 7, this year at Kampung Air.

The conviction under Section 12 (2) of the Dangerous Drugs Act 1952 is punishable with a maximum fine of RM100,000 or imprisonment of up to five years, or both.

In the next case, Jamaluddin Rahman, 25, was jailed four months for having consumed syabu on January 8, this year in the Kampung Air area.

The offence stipulated under Section 15 (1) (a) of the Dangerous Drugs Act 1952 is punishable with a fine of up to RM5,000 or up to two years imprisonment.

The court also ordered Jamaluddin to be referred to the Immigration Department upon serving his sentence.

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Indonesian fined RM1,400 for giving bribe to policeman

Posted: 24 Apr 2014 12:42 PM PDT

KUCHING: An Indonesian man was fined RM1,400 in default two months' jails by the Sessions Court here yesterday after he pleaded guilty to offering bribe to a policeman in Sri Aman on Tuesday.

Husen, who hails from Central Java, appeared before Judge Nixon Kennedy Kumbong, who also ordered him to be deported upon completion of the jail term as he failed to settle the fine.

He corruptly offered RM350 to a policeman attached to Lubok Antu police station as an inducement not to take action against his friend who had entered the state illegally.

His friend failed to produce any valid document when requested by the police when he was checked about 11.40pm on April 22 at Sri Aman-Sarikei road.

Husen was convicted with an alternative charge under Section 214 of the Penal Code.

In an unrelated case, a man charged with committing statutory rape claimed trial in another Sessions Court.

Zion Bong Ezeekel Loon @ Ashraf Haiqal Abdullah, who pleaded guilty to the charge before Judge Allaudeen Ismail was released on RM5,000 cash bail with two sureties.

He allegedly committed the offence at a house at Taman Sri Harmoni at Jalan Matang around 6.30pm on Oct 20 last year.

The girl's family lodged a police report which resulted in the accused being arrested the next day.

The court fixed June 16 for mention.

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Anwar files appeal against 5-year jail for sodomy

Posted: 24 Apr 2014 11:13 AM PDT

PUTRAJAYA: Opposition chief Datuk Seri Anwar Ibrahim filed a petition of appeal against his five-year jail sentence for sodomy at the Federal Court Registrar's Office yesterday citing 35 grounds why his conviction and sentence should be set aside.

The appeal was filed by counsel Zaleha Al-Hayat, an assistant of the late Karpal Singh at 2pm, an hour before the deadline for appeal ended.

In the grounds of appeal, Anwar's counsel had stated that the panel of judges of the Appeals Court was misdirected when it concluded that two DNA experts from Australia, Dr David Lawrence Wells and Dr Brian Mcdonald who appeared for the defence, were not competent witnesses.

"It was clear the Appeals Court judges failed to understand the explanation, especially of SD (Defence Witness) 4 (Dr Brian) who clearly was competent.

"There was ample evidence that SD4 did monitor his subordinate who performed the analysis and was definitely competent in the analyis performed," explained the defence counsel.

In the grounds of judgement dated April 14, the panel of judges, headed by Justice Datuk Balia Yusof Wahi, had stated that both the experts (Dr Wells and Dr McDonald) were only armchair experts (experts who are only clever at theorising) compared to the prosecution's chemist Dr Seah Lay Hong and Nor Aidora Saedon's evidence, which was based on facts and analysis on the samples they carried out.

In the petition of appeal, the defence stressed that the panel of judges misdirected themselves in terms of the law because they did not delve into the evidence of Dr Brian deeply as the expert had been successful in creating serious doubt on the decision on the analysis made by Dr Seah and Nor Aidora.

The defence claimed that there were doubts as to whether the samples analysed by Dr Seah (SP5) were those collected by three doctors at the Kuala Lumpur Hospital after the victim, Mohd Saiful Bukhari Azlan, lodged a police report on the sodomy incident.

They claimed there were serious doubts on the DNA of 'Male Y' based on evidence from Dr Seah and Nor Aidora.

The defence further claimed that the appellant (Anwar) had the right to give his evidence from the dock but the comments of the panel in its judgement clearly showed that the judges were overly prejudiced towards the appellant.

"The judges had misdirected themselves seriously in drawing an inference against the accused over his decision not to call alibi witnesses," claimed the defence in the grounds of appeal.

They further contended that the panel's findings on the samples extracted from the anus of the accused raised serious doubts because of the process of degradation.

The defence also raised the issue of the breakdown in the chain of evidence which was not taken into account at the Appeals Court when their request to recall the investigating officer of the case Supt Jude Blacious Pereira was dismissed.

On March 7, the Appeals Court overturned the decision of the High Court on Jan 9, 2012 which freed Anwar from a charge of sodomising Mohd Saiful, 26, at a unit of the Desa Damansara condominium in Bukit Damansara between 3.10pm and 4.30pm on June 26, 2008.

The Appeals Court sentenced Anwar to five years' jail but stayed the sentence on RM10,000 bail in one surety pending appeal to the Federal Court. — Bernama

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