The High Court here today fixed Dec 18 to decide on the notice of motion filed by the first accused in the murder of Kim Chol or Kim Jong-nam, the estranged half-brother of North Korean leader Kim Jong-un, to compel the prosecution to provide copies of cautioned statements made by witnesses to the defence.
Judge Azmi Ariffin fixed the date after hearing submissions from both parties.
On Nov 7, the defence representing the first accused, Siti Aisyah, 26, filed the notice of motion seeking the court to direct the prosecution to produce them with copies of statements under Section 112 of the Criminal Procedure Code (CPC), made by seven prosecution witnesses to the police.
The witnesses are Ahmad Fuad Ramli, Lim Cheng Gam, Tomie Yoshio, Ng Wai Hoong, Dessy Meyrisinta, Raisa Rinda Salma and Kamaruddin Masiod.
The application was made under Section 51 and 113 (2) of the CPC.
Earlier, Siti Aisyah’s counsel Gooi Soon Seng has submitted that it is the public prosecutor’s duty to disclose all relevant documents to the defence team to ensure a fair trial.
Furthermore, he said, the 112 statements (witness statements) do not qualify as privileged but public documents.
Gooi urged the court to adopt the common law of England on the disclosure of statements, as the law is also practised in most Commonwealth countries including Singapore and Brunei.
He also contended that there was no issue of tampering of witnesses as they (witnesses) were offered to the defence and the prosecution had completed their case.
“As of today, we were only able to see two witnesses and we still could not contact other witnesses. Furthermore, we were told by the prosecution that one of the witnesses, Lim Cheng Gam, has passed away.
“The accused must be given every opportunity to substantiate her defence and it is against the notion of justice for the prosecution to withhold material evidence in its possession that tends to undermine the prosecution’s case or strengthen the defence’s case. Therefore, I pray that the prosecution ought to be directed by this court to produce to the accused the 112 statements,” he said.
Meanwhile, DPP Muhamad Iskandar Ahmad said under Malaysian common law, the 112 statements came under the absolutely privileged category.
He said the prosecution could provide other relevant documents to the defence team but not the 112 statements.
“Defence said it is for fair trial, are we not fair enough? We did supply other documents requested by the defence, even the forensic police’s report, but not the 112 statements, that’s the position we take.
“Defence said they only managed to meet two witnesses, but to go to the extend to give the 112 statements, I don’t think it’s fair. The court should not entertain the application because we have our own jurisdiction on how we should entertain the 112 statements,” he said.
Muhamad Iskandar also said that the practice of English common law is not applicable in this country since there’s no lacuna in Malaysian jurisdiction.
On Aug 16 this year, the court ordered Siti Aisyah, who is an Indonesian national, and Vietnamese Doan Thi Huong to enter their defence on a charge of murdering Kim Chol.
They were charged with four others still at large with the murder of Kim Chol, 45, at the Klia2 departure hall at 9am on Feb 13 last year, and if convicted they face the mandatory death sentence under Section 302 of the Penal Code.
The court set Jan 7 to 10, Jan 28 to 31 and Feb 18 and 19 for Siti Aisyah to enter defence, while the dates for the court to hear Doan’s defence are March 11 to 14, March 18 to 21, April 1 to 4 and April 8 and 9.
- Bernama
