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Introduction to journal of virtual court session of Appeal Court

In the month of November of 2019, my application for a motion of revision was heard before the KL High Court. During the trial, by an act of God (thank you Lord Jesus), I was inadvertently handed a crucial piece of evidence.

Although my application for revision was dismissed by the high court judge, MNBMG, however it was during this hearing that a piece of crucial evidence appeared and inadvertently handed to my Malaysian lawyer, AK.

The high court judge, MNBMG had dismissed my application based on 4 points. According to my Malaysian lawyer, AK point # 2 to #4 is procedural in nature.

In the words of my Malaysian lawyer, AK, quote: “The judge did not touch on any of the substantive arguments, except the consultant point in the first ground above.”

After my Malaysian lawyer’s detailed study and understanding of my case, he advised me to appeal against the high court judge, MNBMG‘s dismissal of my application to the appeal court. After a discussion with my family and based on what my Malaysian lawyer had said, quote: “point # 2 to #4 is procedural in nature” & “the judge did not touch on the substantive arguments”, we decided to take a chance with an appeal to the appeal court. I formally appealed on the 26.12.2019.

As for the piece of crucial evidence (originating from Immigration Department of Malaysia), it was handed to me by my Malaysian lawyer, AK with an explanation that he received this hard copy during the court hearing. After discussion with my family, me and my daughter then met with my Singapore lawyer, MR for a discussion.

We want to understand more from my Singapore lawyer, MR on the likelihood of success of another legal suit against the Immigration Department of Malaysia with this piece of crucial evidence. I was quite confident that this was a piece of irrefutable evidence. It is clear evidence from the magistrate himself that it was ticked “No” to the question, “whether I was produced before him (magistrate)”.

That leads to the Originating Summon (OS), Saman Pemula No. WA-24-5-01/2020 case on the 21.1.2020 to the KL High Court. The key part of this case is: The same exhibit HB-1 submitted by the Immigration Department of Malaysia officer HBB became my main exhibit W-2 submitted to the court. This OS case took about one and a half year and concluded on 4.5.2021. At the conclusion of the hearing, the high court judge, NBB declared that the Immigration Department of Malaysia had illegally detained me for 13 days without a magistrate remand order.

Both appeal court and OS court cases running concurrently.

The appeal to the Appeal Court started on the 26.12.2019 while the OS case to KL High Court started on 21.1.2020.

The appeal court process took a duration of about one year eleven months up till 17.11.2021, the day of the virtual court session of the Appeal Court.

Below is the timeline of the events and the process of this appeal court journey:

Timeline (1) 26.12.2019 (Thursday) – The day the appeal was filed with the Appeal Court.

Timeline (2) 24.1.2020 (Friday) – Notification on Appeal Court case management on 2.4.2020 (Thursday)

Timeline (3) 1.3.2020 (Sunday) – The day Malaysia 8^th PM took office.

Timeline (4) 18.3.2020 (Wednesday) – The day Malaysia imposed lockdown (MCO) due to Covid-19.

Timeline (5) 2.4.2020 (Thursday) – Day of the Appeal Court 1^st case management. Regarding this 1^st CM, my Malaysian lawyer, AK sent a message on 1.4.2020 to inform that this 1^st CM is postponed to the 28.4.2020.

Timeline (6) 28.4.2020 (Tuesday) – Day of Appeal Court 1^st CM postpone date. However, this 1^st CM event was suspended until further notice due to the Covid-19 lockdown in Malaysia.

Timeline (7) 29.5.2020 (Friday) – Received the following letter regarding the appeal case from the Appeal Court. This is for information on the 1^st CM date fixed on 16.7.2020 (Thursday)

Timeline (8) 16.7.2020 (Thursday) – Day of case management for appeal court case. Received the following message on outcome of 1^st CM: 9.11.2020 (Monday) – Deadline for filing submission for appeal court case. And on 23.11.2020 (Monday) – Day of court hearing for appeal court case. However, this date, 23.11.2020 for court hearing was vacated and adjourned to another date to be advised later.

Timeline (9) 24.1.2021 (Sunday) – Day I was informed that the day of hearing at Appeal Court was re-scheduled to 14.6.2021.

A new finding of fact emerged from the OS court judgment

On the 4.5.2021 – This was the date of the court hearing for the Saman Pemula No. WA-24-5-01/2020 (OS) case. The judge NBB had declared that the detention from 13.3.2018 to 26.3.2018 illegal, unlawful and unconstitutional. And the judge’s written judgment for this declaration, quote:

Paragraph 29 – “It is of the considered view that the Plaintiff’s deposition that he was not produced before any magistrate on 12.3.2018 is substantiated by the fact that there are two remand orders which have not been explained off by the Defendant”.

Paragraph 30 – “Premised on the above where there is no answer from the Defendant as to the Plaintiff’s claim, it is therefore declared that Art. 5(4) of the FC has been infringed by the non-production of the Plaintiff before a Magistrate within 14 days from the date of his arrest on 28.2.2018 and that he was only produced before a Magistrate on the 26.3.2018”.

Paragraphs 34, 38 & 55 of Permohonan Jenayah No. WA-44-178-07/2019 judgment

This new revelation of finding of fact shows that the two immigration officers who had averred in the earlier high court case, i.e. that I was produced before a Magistrate within 14 days from the date of my arrest on 28.2.2018 was a false assertion, a lie and a falsehood. These two immigration officers had perjured in their affidavits and successfully deceived the judge, MNBMG. This can be seen from these two paragraphs incorporated in Judge MNBMG‘s written judgment issued on 21.2.2020, Quote:

Paragraph 38 – “Secondly, as mentioned, many of the complaints such as the alleged harassment and poor sanitary conditions could have been registered by the applicant contemporaneous to the events or incidents in question but he chose not to have done that. But he decided to raise them more than one year later. This is not the absence of any issues raised to the depot authorities and the investigation officer, but also to the magistrate during remand proceedings, and crucially during the proceedings which convicted him where he chose to plead guilty...”.

And Paragraph 55 – “The applicant in this case before me not only did not raise complaints whilst in remand with the depot authorities, or to the investigating officer, or to the magistrate who had allowed remand, but he also chose not to inform the Sessions Court of these alleged concerns before he pleaded guilty, *despite the proceedings being open to public scrutiny*. ln fact the notes of proceedings clearly stated that the charge was read and explained to the applicant who was legally represented, in English and who understood the nature and consequences of pleading guilty and chose to plead guilty”.

Note: *despite the proceedings being open to public scrutiny* is inaccurate as the immigration court is inside the Pekan Nenas Immigration Detention Depot compound which is security-controlled and also is off-limit to the public access.

I have also noted Judge MNBMG‘s reliance on the untruthfulness of these immigration officers’ affidavits as reasons in rejecting my allegations as untruthful, shown in paragraph 34, Quote:

Paragraph 34 – “Despite the many complaints by the Applicant in his affidavits, about the allegations on the harassment and threats by the immigration officer whom he claimed had fixed him up, or the deplorable and inhumane conditions of the cell and on the denial of the right to have a private legal consultation, I find that the replies affirmed by the investigating officer of the immigration department and by the commandant of the depot where the applicant was detained, have raised questions on the validity of the assertions of the applicant”.

New finding of fact from Saman Pemula No. WA-24-5-01/2020

This is a new finding of fact from the high court Saman Pemula No. WA-24-5-01/2020 concerning the matter of the illegal detention. This finding shows the untruthfulness of the two immigration officers who had perjured to deceive the high court judge, MNBMG.

Timeline (10) 18.5.2021 (Tuesday) – Day I filed an application to adduce new evidence obtained from the high court hearing on 4.5.2021 of the Originating Summon Saman Pemula No. WA-24-5-01/2020 case.to support my appeal case with the submission as follows, quote:

Paragraph 34 – “If the evidence was produced, it would have proved one point, i.e. prolonged detention breaking the constitutional safeguards. That will explain the pressure. It will ultimately go to the question of why he pleaded guilty and whether the conviction is within Art. 7(1) FC”.

Paragraph 35 – “Accordingly, if the evidence was produced, it would have had an influential effect on the decision made by the court below”.

Paragraph 36 – “Apart from the above, the influential effect of the evidence is also that it would show the striking inconsistent stand taken by MHBK, the Respondent’s deponent in the two cases. The inconsistency will render his evidence not credible. If MHBK’s evidence is not believed that will go a substantial distance in the Appellant establishing his case in the present action/appeal“.

Timeline (11) 28.6.2021 (Monday) – Day we filed the affidavit (AIR) on the adducement of new evidence to Appeal Court case.

Timeline (12) 24.8.2021 (Tuesday) – Day of the Appeal Court hearing on the adducement of new evidence to Appeal Court case. The appeal court judges dismissed my application to adduce new evidence.

Virtual session of the Appeal Court

Timeline (13) 17.11.2021 (Wednesday) – Day of the Appeal Court hearing of appeal against Permohonan Jenayah No WA-44-178-07/2019 judgment.

I was required by the Appeal Court to be present virtually via zoom on my computer throughout the court session.

The lie and falsehood by Immigration Department perpetuated by the DPP.

Because my application to adduce new evidence to the appeal court was dismissed, the lie and falsehood of “Immigration Department produced me before a magistrate within 14 days for remand” was thus perpetuated from the high court to the appeal court.

As the judge, NBB‘s order and written judgment was not adduced as new evidence, a revelation which will reveal that the remand order was a lie and falsehood, the DPP, being unaware, used it in his argument against me, when he claimed that I was given the opportunity to raise my complaints to the magistrate during remand proceeding, instead of 16 months later.

This 16 months later was what the Judge, MNBMG described in paragraph 57 & 58 as a “convenient afterthought“, quote:

Paragraph 57 – “Sixthly, there is without a doubt an inordinate delay in the applicant’s present application, which was only filed 1 year and 4 months after the proceedings in the Sessions Court took place. This can only suggest one explanation. Which is that this application is a convenient afterthought, bordering on the lack of good faith on the part of the applicant”.

Paragraph 58 – The proper recourse for the applicant was to have filed an appeal. However, there was no appeal lodged by the applicant against the conviction and sentence of the Sessions Court. But as I said earlier, he could only have questioned the guilty plea on the basis of lack of appreciation of what it meant and what it entailed. But the applicant could not take that position because he was fully apprised of the same by his lawyers. At the same time why did he took so long to file this revision application? It could not have been that he realized that he was unduly pressured to plead guilty only after 16 months after he was released.

That was never the case. I was never given the opportunity but then the DPP believed otherwise because it was incorporated in paragraph 38 and paragraph 55 of the high court judge, MNBMG‘s written judgment. The video showing the DPP making this claim.

Paragraph 34 of high court written judgment used to support DPP’s argument.

In paragraph 34 of Judge MNBMG‘s written judgment, quote: “… I find that the replies affirmed by the investigating officer of the immigration department and by the commandant of the depot where the applicant was detained, have raised questions on the validity of the assertions of the applicant”.

This however is not true as contained within the affidavits from MHBK and HBB was the lie and falsehood that I was produced before a magistrate within 14 days for remand in accordance with procedure. This lie was discovered and confirmed through the Saman Pemula No. WA-24-5-01/2020 case. At the conclusion of the high court hearing, the high court judge, NHH‘s declaration order on 4.5.2021 declared that I was never produced before a magistrate and the detention was illegal, unlawful and unconstitutional.

It was also clear in her written judgment issued on 23.8.2021 in paragraph 27, quote:

Paragraph 27 – “… The Defendant does not take any challenge to Exhibit W-2 which is the signed copy of the remand order now produced by the Plaintiff which they (the Defendant) produced in the other proceeding and as such the Defendant’s attempt to show a re-typed and unsigned copy of the remand order as in Exhibit MHK-1 to counter the Plaintiff’s non-production claim is therefore futile”.

This discovery happened in between the period from the Permohonan Jenayah No WA-44-178-07/2019 case and the appeal court case. My Malaysian lawyer, AK had put up an application on 18.5.2021 to adduce new evidence to address this lie and falsehood and showed the inconsistencies of MHBK’s affidavits. It is also intended to show that both immigration officers, MHBK and HBB had perjured and deceived Judge MNBMG. However, this application to adduce new evidence was vigorously defended by the DPP to have it dismissed, leaving the lie and falsehood to perpetuate to the appeal court as it had happened now.

Clearly, how can affidavits from three immigration officers, namely the IO, MHBK, the commandant of the depot, HBB and the Pekan Nenas depot officer, MZ where such affidavits that contained lies and falsehoods were said to answer all my allegations and raised questions on the validity of my assertations. How can false witnesses, even if there are three of such false witnesses be considered as truthful witnesses against my assertations without substantiations. The video below showing the DPP asserting paragraph 34 to support his argument in dismissing my case as without merits.

Final submission by my Malaysian lawyer, AK in Appeal Court record:

“Prosecution attests for the fact that he have admitted, there is no doubt I admitted but the whole thing is that whether a proper fact was read as this, whether it was told to me, “Defendant, are you managing? You agree that you are managing the house and under your management, illegal immigrants were allowed in?” That question was never asked him.

It was just stated that I was read the charge. “This is your charge: that you are harboring illegal immigrants, you plead guilty, or you don’t plead guilty?”

Plead guilty just to come out from inhumane detention cell after 26 days detention.

The option was in front to either to plead or not to plead, not really to explain something. If he chooses not to plead guilty, then he is going to go back and then stayed inside the cruel and inhumane detention center for we don’t know how many months.

He is a foreigner, and he will not be released even on bail. He will be going back inside the detention cell which he would not want.

“This has happened that he was already illegally detained that even without being brought to a Magistrate for 26 days, the only choice is he just want to get rid of that place and come out.

There was no chance to explain to plead guilty or not plead guilty. He had to plead guilty just to come out“.

This “stayed inside the cruel and inhumane detention center for we don’t know how many months” has now been proven 100% true with this Saman Pemula No. WA-24-16-04/2022 high court order on 12.9.2022. This high court order declared that the part 2 detention, for period after the court-issued discharge order, from 27.3.2018 to 3.4.2018 was illegal, unlawful and unconstitutional. It is shown that the Immigration Department of Malaysia officers had even been detaining foreigners at their whims and fancies, contrary to lawful order. See the attached court order.

Watch the video below for the submission on this point:

To the DPP’s point of a remand order, the remand order is a falsehood now being perpetuated by DPP.

So, he had to plead guilty and the DPP replied, quote: “oh, he had an opportunity during the remand time“.

It was pointed out by my counsel, quote: “in this case literally there was no remand order within 14 days. He was kept continuously for 26 days. In fact, the High Court had already declared that he was illegally detained for 26 days without remand and if my Lordships want me to show the court order …”.

This quote by the DPP is a lie and falsehood propagated by Immigration officers to the high court judge, MNBMG whereby Judge MNBMG then incorporated this falsehood into his written judgment in para 36 and para 55. The DPP is now perpetuating this lie and falsehood into the appeal court record, similar to the high court written judgment that has incorporated lies and falsehoods.

Whether guilty plea is voluntarily

The whole question come back to whether I voluntarily plead guilty. My Malaysian lawyer, AK further explained, quote: “he means we don’t say it was involuntarily in the sense that there was any pressure within the court premise or anything.

But we are saying it was not voluntarily in the sense that I did not commit but was by circumstances under pressure to say yes, I plead guilty and come out.

At the end of the day, we are coming back to the same basically, did I commit the offence or not? If I did not commit, then I should not be punished.

As an example, today if I plead guilty for murder and tomorrow the person alleged to be dead come to the Court, is the Court going to say: “Oh, you pleaded guilty, so you are bound by the same thing I am arguing here.”

Investigation, investigation, investigation. What investigation?

My Malaysian lawyer, AK asked, quote: “The prosecution stressed that there was an investigation, investigation, investigation. “What investigation? What was found out? Did they get certain evidence to say that my client committed an offence? For these reasons I would say that I did not commit any offence and all the alleged investigation doesn’t show a single piece of evidence to say that I committed or was even in Malaysia in that immediate period of time except just before the period of arrest. So that means that I could not have been managing”.

After illegally detaining me and the illegal immigrants for 26 days for investigation, the Immigration Department of Malaysia officer could not produce a single piece of evidence to show that managed the properties, is linked to the illegal immigrants or a motive behind the perpetuation of this offence. All that was presented was a charge sheet with six names on the charge sheet as illegal immigrants and I was charged under section 55E(1) of harboring these six illegal immigrants. Charge sheet, Exhibit W-1 is shown as below:

There was no evidence obtained from their investigation exhibited in any of the Immigration Department of Malaysia officers’ affidavits in reply to my court application for revision. If there was any evidence, it would be a part of the immigration court proceeding on the 26.3.2018 and would be in the immigration officers’ affidavits submitted during the Permohonan Jenayah No WA-44-178-07/2019 case proceeding.

Ending submission by my Malaysian lawyer

And more importantly, the prosecution submitted that he is going on the admission, so my Malaysian lawyer, AK said, quote “will support himself with a one case particularly a Sukma stated by this Court; i.e. ‘the over-riding principle is to, is to correct an injustice’”.

“The over-riding principle is that the Court should correct the miscarriage of justice if the Court find there was one“. And here my Malaysian lawyer, AK say that “there was amplely (sic) a miscarriage of justice so the Court should correct. And after all, if the appeal is set aside, my client can still be charged, and the prosecution still has a chance to prove my client”.

“My lord, for this reason, I would say that my client did not commit any evidence (sic) and all the investigation doesn’t show a single piece of evidence to say that my client committed or even in Malaysia at the immediate period of time except just before the arrest. So that means he could not have been managing”. End of my Malaysia lawyer, AK‘s closing submission.

These were the submissions by my Malaysian lawyer on legal grounds for my appeal. Does it justify that there is amply a miscarriage of justice?

As for the three Appeal Court judges’ judgment at the end of the proceeding: They concluded that there is no merit in my application and so the DPP (Immigration Department of Malaysia) had won the case with a unanimous decision from the three appeal court judges. However, it has been shown that perjuries to deceive the high court judge leading to lies, falsehoods and deceptions been incorporated and perpetuated in both high court and appeal court judgments.

It may seem that the case is over. Is it really over, and is such a tainted judgment a fair and just conclusion? Could a police investigation into the two parts illegal detention perpetuated by senior immigration officers provide some answers to bring a conclusion to this case. Are these two parts illegal detentions due to incompetence of these Immigration Department of Malaysia senior immigration officers or is it a deliberate lawless act that could have cost me my life? I earnestly await the PDRM’s investigations and their findings in accordance with Federal Constitution Article 8(1).