Journal of Virtual Court Session
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 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 was dismissed by the High Court Judge, Mohd Nazlan, that hearing helps me obtain crucial evidence.
This piece of evidence (originating from Immigration Department) was used to submit an Originating Summon (OS) to the High Court. This OS case took about one and a half year and concluded on 04-05-2021. The High Court declared that the Malaysia Immigration had illegally detained me for 26 days without a Magistrate Order.
The High Court dismissed my application based on 4 points. According to advice from my counsel, point # 2 to 4 is procedural in nature.
In the words of my counsel, quote: “The Judge did not touch on any of the substantive arguments, except the consultant point in the first ground above.”
After my counsel’s detailed understanding of my case, he advised on an appeal to the Appeal Court is in order against the High Court Judge’s dismissal. We then file the appeal to the Appeal Court on the 26th December 2019.
Timeline of Appeal Court Journey
The appeal process took a duration of about one year eleven months (26-12-2020 to 17-11-2021).
Below is a summary of the events and the process of this Appeal Court journey. The appeal started from 26-12-2020 till 17-11-21, the day of the virtual court session of the Appeal Court:
(1) 26-12-2019 ( Thursday) – The day the appeal was filed with the Appeal Court.
(2) 24.01.2020 (Friday) – Notification on Appeal Court Case Management on 02.04.2020 (Thursday)
(3) 01.03.2020 (Sunday) – The day Malaysia 8th PM took office.
(4) 18.03.2020 (Wednesday) – The day Malaysia imposed lockdown (MCO) due to Covid-19.
(5) 02.04.2020 (Thursday) – Day of the Appeal Court 1st Case Management. Regarding this CM, Counsel sent a message on 01.04.2020 to inform that this CM is postponed to 28.04.2020
(6) 28.04.2020 (Tuesday) – Day of Appeal Court 1st CM postpone date. This event was suspended until further notice due to the Covid-19 lockdown in Malaysia.
(7) 29.05.2020 (Friday) – Received the following regarding the appeal case from the Appeal Court. This is for information on the CM date fixed on 16.07.2020 (Thursday)
(8) 16.07.2020 (Thursday) – Day of Case Management for Appeal Court case. Received the following message on outcome of CM.
(9) 09.11.2020 (Monday) – Dateline for filing submission for Appeal Court case.
(10) 23.11.2020 (Monday) – Day of Court hearing for Appeal Court case. However this date was vacated and adjourned to another date to be advised later.
Year 2021 Period
(11) 24.01.2021 (Sunday) – Day I was informed that the day of Appeal Court hearing was re-scheduled to 14-06-2021.
(12) 18.05.2021 (Tuesday) – Day we filed the affidavit to adduce new evidence to appeal Court case. This application to adduce new evidence arises from new evidence obtained from the High Court hearing of the Originating Summon case.
(13) 28.06.2021 (Monday) – Day we filed the AIR on the adducement of new evidence to Appeal Court case.
(14) 24.08.2021 (Tuesday) – Day of the Appeal Court hearing on the adducement of new evidence to Appeal Court case. The Judges rejected my application to adduce new evidence.
(15) 17.11.2021 (Wednesday) – Day of the Appeal Court hearing.
Virtual session of the Appeal Court
I was required to be present virtually via zoom on my computer throughout the full Court session to hear the whole proceeding.
As I was present virtually, I could now reproduce what was the final submission to the Court by my able counsel. My able counsel had presented brilliantly to the Court.
Below is his excellent presentation for the Appeal Court record:
Legal Ground #1 for Appeal Court’s consideration
Prosecution attests for the fact that I 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 me.
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?”
Legal Ground #2 for Appeal Court’s consideration
The option was in front to either to plead or not to plead, not really to explain something. If I chooses not to plead guilty then I will be going to go back and then stayed inside the cruel and inhumane detention center for we don’t know how many months.
I am a foreigner and I will not be released even on bail. I will be going back inside the detention cell which I would not want.
So I had to plead guilty and the prosecution replied “oh, I had an opportunity during the remand time.“
Legal Ground #3 for Appeal Court’s consideration
It was pointed out by my counsel in this case literally there was no remand order after 14 days. I was kept continuously for 26 days.
In fact the High Court had already declared that I was illegally detained for 26 days without remand. My counsel can show the High Court Order for the illegal detention.
This has happened that I was already illegally detained that even without being brought to a Magistrate for 26 days, the only choice is I just want to get rid of that place and come out.
There was no chance to explain to plead guilty or not plead guilty. I had to plead guilty just to come out.
The whole question come back to whether I voluntarily plead guilty. My counsel further explained that he mean 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.
Legal Ground #4 for Appeal Court’s consideration
At the end of the day, we are coming back to the same basically, did I commits 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.”
Legal Ground #5 for Appeal Court’s consideration
And more importantly, the prosecution submitted that he is going on the admission, so counsel 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 counsel say that there was amplely a miscarriage of justice so the Court should correct.
And after all if the appeal is set aside, I can still be charged and the prosecution still has a chance to prove me.
Legal Ground #6 for Appeal Court’s consideration
The prosecution stressed that there was an investigation, investigation, investigation.
My counsel asked: What investigation? What was found out? Did they get certain evidence to say that I committed this 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.
End of my counsel’s closing submission.
Were my six legal grounds by my counsel valid? What is miscarriage of justice? What is the Verdict? Make a guess.
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