On 7 June 2023, we issued an alert titled “
High Court curtails Remand Authority of the Malaysian Anti-Corruption Commission”. In the alert, we discussed the ground-breaking decision of the Temerloh High Court in
Public Prosecutor v Sathivel a/l Subramaniam & 5 Others (Criminal Application No. CB-43(A)-1-05/2023) (“
Sathivel”) where the learned Judicial Commissioner Roslan Mat Nor (as his Lordship then was) held that the Malaysian Anti-Corruption Commission (“
MACC”) cannot rely on the Criminal Procedure Code (“
CPC”) to remand individuals for investigations conducted under the Malaysian Anti-Corruption Commission Act 2009 (“
MACC Act”) but must rely exclusively on the powers conferred on it under the MACC Act.
On 18 July 2023, we issued another alert titled “
High Court reinstates Remand Authority of the Malaysian Anti-Corruption Commission” where a conflicting decision was issued by the Johor Bahru High Court on the same issue. Contrary to the Temerloh High Court’s decision in
Sathivel, the learned High Court Judge Dato’ Abu Bakar Katar held that the MACC need not rely only on Section 49(2) of the MACC Act, and may apply for remand under Section 117 of the CPC.
Following the two conflicting High Court decisions on whether the MACC may rely on the remand procedure under Section 117 of the CPC, the Court of Appeal hearing the appeal originating from the Temerloh High Court in
Suruhanjaya Pencegahan Rasuah Malaysia v Muhammad Haizatt Fitri Bin Wahab & 5 Others (Criminal Appeal No.: C-06A-7-05/2023) has now determined the legal position to be adopted by the Malaysian Courts on the powers of remand of the MACC.
In the recent news article dated 15 August 2023 by
Bernama titled “
Appeals court rules MACC not limited to own Act for remand cases”, it has been reported that the three-man bench of the Court of Appeal, comprising Justices Vazeer Alam Mydin Meera, Azman Abdullah and Azmi Ariffin, has set aside the Temerloh High Court’s decision in
Sathivel that the MACC must rely solely on the MACC Act to apply for remand of individuals if its investigation is not completed within 24 hours of arrest, and held that the MACC is not barred from relying on Section 117 of the CPC to remand individuals for further investigations.
In delivering the Court’s unanimous decision, Justice Vazeer Alam Mydin Meera stated that the Temerloh High Court had erred in the interpretation of Section 49 of the MACC Act as there is no specific provision in the MACC Act as to the course of an investigation not completed within 24 hours. Hence, the MACC can rely on Section 29(3) of the MACC Act, which provides for the MACC’s powers of investigation under both the MACC Act as well as the CPC, to apply for a remand order under Section 117 of the CPC in the event an investigation cannot be completed within 24 hours.
With the Temerloh High Court’s decision overturned, the MACC, upon making an arrest has the power to choose whether to apply for a remand order under Section 117 of the CPC or to grant bail in accordance with Section 49(2) of the MACC Act. The doctrine of
stare decisis1 applies and this latest decision by the Court of Appeal on the powers of remand of the MACC – together with the Johor Bahru High Court’s decision – stands as good law to be followed and adopted in this country.
It remains to be seen whether the Court of Appeal’s decision will be appealed to the Federal Court. Given that it is a novel point of law, and would most certainly be in the interest of the public that the MACC’s powers to seek remand should be clear of any doubt, it would be highly desirable for the matter be authoritatively determined by an appeal to our apex court.
Alert by Lim Koon Huan (Partner), Manshan Singh (Partner) and Ho Pui Yan (Associate) of the White-Collar Crimes Practice of Skrine.