2010 MarsdenLR 4529

SOFIAN ABD RAZAK
PP – Appellant
Versus
SHAHRULNIZAM OTHMAN & ORS – Respondent

The court held that s. 40A of the Immigration Act does not confer the right for cross-examination of deponents, emphasizing strict adherence to statutory language and procedural fairness.

Headnote:(A) Criminal Procedure Code - Sections 323, 324, 325, 326, and 327 - Immigration Act 1959/63 - Section 40A - Revision of Magistrate's decision to allow cross-examination of deponents - The learned Magistrate erred in law to permit cross-examination of deposition taken under s. 40A, as the provision does not confer such a right, which violates procedural fairness principles. (Paras 5, 22, 23)

(B) Legal Representation in Depositions - A deposition is prima facie evidence, and the court ruled on the necessity for proper interpretation of statutes, cautioning against inappropriate restrictions that may undermine the presumption of innocence. (Paras 21, 23)

Facts of the case:
The public prosecutor sought a revision of the Magistrate's decision that allowed the accused's counsel to cross-examine deponents whose depositions were recorded under s. 40A of the Immigration Act, arguing no right to cross-examine existed under the provision. (Paras 1, 4)

Findings of Court:
The court exercised its revisionary powers to determine that the Magistrate incorrectly allowed cross-examination under s. 40A, ultimately ruling to set aside the decision and proceed without such rights. (Paras 23)

Issues: Whether the learned Magistrate incorrectly allowed the cross-examination of deponents and the interpretation of s. 40A regarding witnesses' depositions. (Paras 2, 20)

Ratio Decidendi: The court emphasized the importance of adhering to statutory language, determining that s. 40A explicitly excludes the cross-examination right; thus, the appellate jurisdiction was invoked to maintain procedural integrity. (Paras 22, 23)

Result: The decision of the learned Magistrate was set aside.