On 7 June 2023, we issued the alert titled “High Court curtails Remand Authority of the Malaysian Anti-Corruption Commission”. In the alert we discussed the ground-breaking decision of the Termerloh High Court in Public Prosecutor v Sathivel a/l Subramaniam & 5 Others (Criminal Application No. CB-43(A)-1-05/2023) where the learned Judicial Commissioner Roslan Mat Nor 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”). Perhaps not surprisingly, the MACC has appealed the decision to the Court of Appeal¹ and the matter is set for hearing on 20 July 2023.
 
In the recent news article dated 13 July 2023 by The Star titled “MACC can get remand under CPC”, it has been reported that Judge Abu Bakar Katar of the Johor Bahru High Court held that the MACC can obtain a remand application under Section 117 of the CPC. His Lordship stated that the MACC, upon making an arrest has the power to choose whether to apply for a remand under Section 117 of the CPC or bail in accordance with Section 49(2) of the MACC Act. There is no compulsion for the MACC to rely only on Section 49(2) of the MACC Act contrary to the Termerloh High Court decision.
 
Judge Abu Bakar Katar further stated that “Parliament enacted the MACC Act to tackle corruption and that needed to be given priority. The provisions of Section 49 of the MACC Act cannot be read rigidly to the point that they affect the commission’s investigation powers. The court also feels that the provisions of Section 49 of the Act need to be read with Section 29(3) during its investigation, which allows for remand applications under Section 117 of the CPC.”
 
This decision poses an interesting situation, as there are currently two conflicting High Court decisions on the powers of remand of the MACC i.e. whether the MACC may rely on the remand procedure under Section 117 of the CPC. Due to this, it would be imperative to follow the proceedings in the Court of Appeal closely, to obtain a better understanding on the legal position that will ultimately be adopted in this country.
 
Case note by Lim Koon Huan (Partner), Manshan Singh (Partner) and Ho Pui Yan (Associate) of the White-Collar Crimes Practice of Skrine.
 

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