Suriyadi Halim Omar J:

On 31 January 2003 I received an application from Messrs. M. Manoharan & Co. to revise the decision of the learned magistrate of Sepang Court meted down on 21 January 2003, on the premise that the latter had refused to decline from presiding over two charges (and one alternative charge) preferred against one Mr. P. Uthayakumar, an advocate and solicitor of the High Court of Malaya. Furthermore, that learned magistrate had also refused to exercise his powers pursuant to s. 173(g) of the Criminal Procedure Codeto discharge that advocate after having scrutinized those said charges. The charges were ss. 228and 506 of the Penal Code. The application before me was pursuant to s. 323 of the Criminal Procedure Code, and if necessary I was to advert to s. 327 of the same Code, if any consequential orders were to be made.

During the revision proceedings, the court was informed by the learned deputy public prosecutor that the s. 228 charge (and the alternative charge) would be dropped against Mr. Uthayakumar at a later date. The former conceded that come 29 May 2003 the Public Prosecutor's office would wind up that matter. Relying on that information I decided to focus the court's attention only on the s. 506 charge, to avoid wastage of precious judicial time. Notwithstanding the concession by the Public Prosecutor's office, as far as the court was concerned, both the charges (together with the alternative charge), until effectively withdrawn, were before the court whereby cognizance of them or alluding to them if and when necessary was in order.

I now delve into the factual matrix of the case. It was not disputed that the said lawyer, Mr. Uthayakumar had been present at the Sepang Magistrate's Court on 3 September 2002 representing two families in two separate inquests proceedings pursuant to s. 334 of the Criminal Procedure Code. The reference numbers of the inquests were Sepang Inquest 88-01-02 and 88-48-02. The learned magistrate who conducted the inquests, one Norazmi bin Mohd Narawi, was assisted by a couple of deputy public prosecutors. In the course of the proceedings of Sepang Inquest 88-01-02, Mr. Uthayakumar (hereinafter interchangeably referred to as the applicant) was permitted to cross-examine PW1, one Chief Inspector Ponaiyya a/l Ganasan. The subsequent questions and answers exercise, as recorded in the notes of proceedings, thereafter ensued and they were, inter alia, as follows (translated version):

Q: How long was he in hospital?

A: I do not know but he went in on June 9, 2002.

Q: On June 12, 2002 you were still the investigating officer?

A. Yes.

Q. Do you agree, if not seriously ill deceased will not be admitted into the hospital?

A: Disagree.

Q: Do you agree that after being seriously ill he was then admitted into hospital?

A: I did not know that he had been admitted into the hospital.

Q: Do you know that it is your duty to know why the deceased was sent to hospital?

A: Yes I know that is my duty.

Q: Therefore if you did not know why he was admitted means that you were negligent?

A: I disagree.

Q: Why did you not order the handcuffs be removed when you knew he was sick, weak and vomiting?

A: On grounds of security - to prevent the deceased from escaping, pretending to be asleep or pretending to have fainted.

Q: Observe the photograph - from the rear - I say, according to the post mortem report - both hands of the deceased were handcuffed and he was allowed to die slowly. My instructions from the deceased family are that this witness should be charged for murder or group murder. I wish to bring out the issue of criminal negligence committed by this witness as an investigating officer.

Court: You are ordered to stop from uttering such comments as it is a serious allegation and this witness can lodge a police report against you.

Case postponed for other witnesses.

Court: To September 5, 02 (part heard)

(Signature illegible)

It transpired that at the same date of the inquest proceedings (3