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2024 MarsdenLR 3343
HIGH COURT SABAH & SARAWAK SIBU
WONG SIONG TUNG, J
PP – Appellant
Versus
PHILIP LUNEY – Respondent
[Criminal Revision: SBW-43-1-1-2024]
The Court clarified that remand under Section 117 of the CPC is applicable to investigations under the MACC Act, rejecting the application of the maxim 'generalibus specialia derogant' in this context.
Headnote:(A) Criminal Procedure Code - Section 117 - Malaysian Anti-Corruption Commission Act 2009 - Section 49 - Review of remand application - The learned Magistrate erred in applying the maxim 'generalibus specialia derogant', concluding that s 117 CPC could not apply due to s 49 MACC Act - The Court of Appeal clarified that remand under s 117 CPC is permissible for MACC investigations. (Paras 10, 20, 22)
(B) Revision - Scope of review - Even if the matter has become academic, the Court addressed the legal interpretation issues to clarify the law for future cases. (Paras 14, 21)
Facts of the case:
The DPP sought a remand for the respondent suspected of corruption, but the Magistrate rejected the application, citing a binding High Court decision.
Findings of Court:
The Court found it incorrect for the Magistrate to reject the remand application based on the existence of provisions under the MACC Act.
Issues: The main issues were the applicability of s 117 CPC in light of s 49 MACC Act and the interpretation of the law regarding remand.
Ratio Decidendi: The Court held that s 117 CPC can be applied to MACC cases, and the earlier High Court decision had been overruled, thus clarifying the law.
Result: The decision of the learned Magistrate was set aside, but no order for remand was made due to the matter being academic.
[1] This is an application by the DPP under s 323 of the Criminal Procedure Code ( CPC ) to review the decision of the learned Magistrate made on 12 January 2024 Sibu Magistrate's Court Remand Application: SBW-89RE-29-1-2024 in rejecting the application by DPP for remand of the respondent pending investigation under s 17(a) of the Malaysian Anti-Corruption Commission Act 2009 (MACC Act) for which the respondent was suspected to be involved.
[2] The respondent was arrested on 11 January 2024. On 12 January 2023, the DPP applied to the learned Magistrate under s 117(2)(b) of the Criminal Procedure Code for the respondent to be remanded for seven days on the grounds among them are:
(i) there is a need to record a statement of the respondent under s 53(3) of the MACC Act;
(ii) preventing the respondent from interfering with the main witness involved in the case which the suspect knew;
(iii) preventing the respondent form removing and destroying evidence associated the offence the respondent was suspected of having committed; and
(iv) preventing the respondent from communicating with any accomplices of the respondent who are still at large and to put the case at risk.
[3] Section 49 (1) of the MACC Act made every offence under the Act seizable offence. Section 49 (2) provides for a suspect arrested to be released upon giving of securities such as cash deposit or bond with or without sureties as may be required by the officer of the commission.
[4] Under s 49(3) of the MACC Act, if the officer of the commission has reasonable grounds to believe that any bail condition has been or is likely to be broken, the suspect may be re-arrested without warrant.
[5] Under s 49(4) of the MACC Act, when a suspect is rearrested under s 49(4), the suspect must be brought before a Magistrate within 24 hours, who may remand them in custody or grant bail under suitable conditions.
[6] Upon examining the entire record and proceedings in the Magistrates' Court called for pursuant to and as required under s 323 of the CPC , the learned Magistrate at the very outset of his ruling on 12 January 2024 and in agreement with the submission of learned counsel for the respondent before him of the application of the maxim "generalibus specialia derogant", held that "the provisions of a general statute" (s 117 of the ) "yield to those of specific ones" (s 49 of the MACC Act).
[7] The learned Magistrate has thus agreed with the submission of learned counsel for the respondent that s 117 of the CPC could not apply and E application by the DPP could not be made thereunder in view of the provisions under s 49 of the MACC Act 2009.
[8] It seems that in rejecting the applicant's application for remand of the respondent under s 117 of the CPC , the learned Magistrate has basically applied the maxim of "generalibus specialia derogant" as contended by the learned counsel for respondent who cited the High Court decision reported in Dalam PerkaraPendakwa Raya lwn. Sathivel Subramaniam & Yang Lain; [2023] 7 CLJ 223 which decision was binding on the learned Magistrate.
[9] This gives rise to serious doubts that the learned Magistrate has in fact considered the DPP's application for remand in the light of and applying the criteria under s 117 of the CPC , contrary to the submission of the learned counsel for the respondent before this Court , claiming that the learned Magistrate has nevertheless properly considered the DPP's application under s 117 of the .
[10] Contrary to the submission of learned counsel of the respondent before the learned Magistrate, the High Court decision in Dalam PerkaraPendakwa Raya lwn. Sathivel Subramaniam & Yang Lain; [2023] 7 CLJ 223 has been overruled by the Court of Appeal in PP v. Sathivel Subramaniam & 5 Ors; Rayuan Jenayah No C-06A-7-05-2023 on 15 August 2023.
[11] The broad grounds of the Court of Appeal's decision as recorded in the notes of proceeding for the ruling on 15 October 2023 in the Court of Appeal in PP
