Wednesday, February 14, 2018

Media statement by M.Kula Segaran MP Ipoh Barat in the High Court of Ipoh on 14th February 2018

No remedy for wife whose husband was blatantly shot dead by police officer!!

On 16.09.2009 between 3.30pm and 5.10pm a person by the name of Chen Fun Kee was shot which lead to his death. The case today is between the deceased’s wife Leong Seok Cheng the First Plaintiff (1) and her only child Chen Ming Hui the Second Plaintiff (2) against the police.

The First Defendant, Mohd Taufik Peter Bin Abdullah was at all material times an officer of the Malaysian Police Department with the Police and a Government Servant to the Second and Third Defendant. The Plaintiffs contended that the First Defendant is the man primarily responsible for the shooting and killing of Chen Fun Kee. By reason of the killing, the First and Second Plaintiff suffered loss of support and claimed for damages.

First Defendant was found guilty under Section 3A of the Firearms Act (Increased Penalties) Act 1971 and was sentenced to death by the High Court of Malaya in Ipoh.

High Court sets aside Sessions Court decision and say CPO and IGP are not liable

This case was Heard for over 10 days in the Sessions Court in Ipoh and the Police was ordered to pay over RM200,000.00 in damages to the Plaintiffs. However, the AGC appealed and the High Court of Malaya in Ipoh allow the appeal. The High Court disturbed the findings of the Session Court and set aside the findings of liability against the police force.

It is the Contention of the Plaintiff’s that the Police and the Government of Malaysia failed to supervise, exercise control over 1st Defendant and thus, were negligent in employing a police officer whom had killed Chen Fun Kee by discharging the fire arm provided by the police.

The Police Act s.18 says “deemed to be always on duty when required to act as such and shall perform the duties and exercise the powers granted to him under the Act

At all material times a police officer is primarily governed and controlled by the Police Act. He is “deemed to be always on duty when required to act as such and shall perform the duties and exercise the powers granted to him under the Act. Thus, clearly this section spells out that a police office is on duty 24-hours a day. And as such, at all material times the 1st Defendant is on duly and in any case, performed such act against the deceased as an officer of the police force. Further by section 85 of the Act a police officer may in the performance of his duties carry arms.

This is a case where the deceased was killed by a police officer using arms belonging to the Police force, hence implicating the Police Force and they are answerable to the family of the deceased. A young man of only 42 years was robbed of his life and thus the continuous care and support to this family has been permanently cut off. Article 5 of Federal Constitution says no person shall be deprived of his life or personal liberty save in accordance with law. The Federal Constitution accords protection to all its citizens. But the killing of the deceased has deprived him of his life. The police must accept responsibility.

Although the police argued that the killing by the 1st Defendant was “a frolic of his own” we should go further and say that the police has a supreme duty of care and duty to society at large which includes the deceased because the 1st Defendant was at all material time a police officer appointed by the police force and he carried a gun given by the police force.

Are we going to allow the Police to wash their hands without any responsibility despite the existence of substantial evidence of negligence before the court to implicate the Defendants? Are the police not responsible fort arming a trigger-happy officer?

It is true whatever compensation the family may get will not bring the deceased back. But the guilty and those in power should be made accountable for their negligence in this case.

Suggest the setting up of a Compensation Fund in the Police Act

M Kula Segaran suggested for the Police Act 1967 to be amended to provide adequate compensation scheme to innocent victims like in the above case. A No-Fault Liability System must be set up to compensate families of those who sustained bodily injuries or died after being shot by trigger-happy police officers. The present Police Act 1967 is out dated and a review is most appropriate.

Madam Leong devastated by the High Court decision

After the High Court delivered judgment today, Madam Leong felt let down and disappointed by the decision of the High Court. She asked where is justice for her and her daughter. Her husband used to be the sole bread winner in the family and since he was shot dead in 2009, she had to take over. She is working now and finding it tough to take care of her child’s expenses on education. The cruel act of the 1st Defendant, who happens to the a Chief Inspector in shooting her husband has resulted in irreparable loss for her and her daughter who held on her tears while speaking to the reporters.

An appeal will be made to the Court of Appeal against the decision of the High Court.

The case was heard before High Court Judge YA Dato' Che Mohd. Ruzima

The Plaintiffs were represented by M. Kula Segaran, N. Selvam and Omar Kutty while the Chief Police Officer of Perak and Inspector General of Police was represented by Amalina Zainal Mokhtar from the Attorney General’s Chambers.

Friday, February 2, 2018

Media statement by M.Kula Segaran MP Ipoh Barat in Seremban Court on 2nd February 2018
Sentence of 5 years for a technical offence is too harsh

The accused Subbarau a teacher was first charged under the Examination Syndicate Act which was later withdrawn and was subsequently preferred with 5 charges for an offence under Section 8(1)(c)(iii) of the Official Secrets Act 1972 on 15.12.2014 at the Seremban Sessions Court for allegedly keeping in his possession the images of 2014 UPSR examination papers.

The then learned Sessions Court Judge Dato Jagit Singh decided on 16.04.2015 that there was no prima facie case and acquitted and discharged the accused.

The Prosecution appealed on the same day to the High Court in Seremban.

In the written grounds of judgment of the Sessions Court Judge, he gave 8 findings on why there was no prima facie case against the accused.

The following were inter alia the basis of the trial judge’s findings:
i. The prosecution failed to prove the documents specified in the charges (Exhibits P16 – P20) are official secret;

ii. The classification of the 2014 UPSR examination papers as official secret by PW12 is null and void and of no effect as PW12’s appointment is not in accordance with s 2B of the OSA 1972;

iii. The appointment certificate of PW12 (ID29) by the Minister of Education is not authenticated and therefore inadmissible;

iv. That PW12 was not a reliable and credible witness;

v. That the non-calling of the Minister who issued ID29 is fatal to the prosecution’s case and therefore adverse presumption under s 114(g) of the Evidence Act is invoked;

vi. That the prosecution failed to prove that the accused had physical possession of Exhibits P16 – P20 question papers;

vii. That the accused did not have the prerequisite knowledge (mens rea) nor was he in a position to acquire any knowledge that the offending images in P8 were linked to the 2014 UPSR examination papers; and

viii. That there is no evidence to show that the accused had ‘obtained’ the Exhibit P16 – P20 question papers as per the offending images in P8 and had ‘retained’ them in contravention of the OSA 1972.

The case then proceeded to the Seremban High Court. The learned High Court Judge upheld the decision of the Sessions Court.

The Prosecution then filed for an appeal in the Court of Appeal.

The Court of Appeal allowed the appeal by the Prosecution and ordered that this case to be remitted back to the Seremban Sessions Court for the accused to enter defence.

Today, at the end of the Defence case, the accused was found guilty for all 5 charges and sentenced to 5 years imprisonment for each charge, to run concurrently.

It must be noted, the actual culprit who leaked the UPSR 2014 papers was never caught nor charged in court.

In the words of the learned Sessions Court judge Dato Jagit Singh who acquited the accused during the prosecution stage, the culprit is missing just like MH370!

During defence stage the defence applied to recall Dr Naimah, Director of Malaysian Examination Syndicate and the Investigating Officer, however the trial judge at defence stage dismissed the application. The defence also applied to summon TS Muhyiddin who was the Education Minister in 2014 to support the defence's case, but was dismissed by the trial judge during defence.

Among the defence raised was that the OSA is draconian piece of legislation which was taken from the English OSA predating World War 2. Most developed countries have abolished such an Act of law. Instead, develop countries have introduced Freedom of Information Act.

The reports prepared by SKMM was questioned in court where the extraction process of the alleged UPSR photos was not done properly. An internationally reknown expert witness in Digital Forensics was called to rebutt SKMM. There were possibly contamination and inconclusive findings by SKMM.

However, despite all that, the accused was found guilty. Defence managed to apply for a stay pending appeal, where the trial judge directed the accused to report to IPD Seremban every 3rd Sunday, confiscate his passport and maintain bail at RM3000.

The conviction and sentence of the new trial judge Suresh Gopalan will be appealed against at the High Court in Seremban.

The accused was represented by Mr Kula Segaran and Mr Omar Kutty and DPP Wan Shaharuddin and DPP Terrirddin appeared for the AG

Thursday, February 1, 2018

Media Statement by M.Kula Segaran MP Ipoh Barat in Ipoh on 1st February 2018

I take note that the unanimous decision of the Federal Court on January 29, 2018, in the matter of Indira Gandhi vs Pengarah Jabatan Agama Perak which rendered null and void unilateral religious conversion of minors has drawn an array of comments that covers the range from approbation to aversion.

This is to be expected given that the issue has become highly contentious.

The contention is emblematic of the gulf that has opened up in Malaysian society between those who hold that Article 3 of the Federal Constitution prioritizes Islam above all other considerations embedded in the same clause.

Together with many Malaysians I hold the view that Article 3 represents a deferential doffing of the hat to Islam as the religion of the ceremonial public square, not an embrace of its polity.

Three main issues were decided by the apex court:

1) No to unilateral conversion

2) The word “parent” in Article 12(4) of the Federal Constitution should be read as “parents”,( the definition of “parent” should be plural

3) That the Civil Courts have jurisdiction to hear cases when aggrieved parties questions the due process of conversion to Islam.

All the accumulated jurisprudence backs the view that our constitution is secular and not theocratic as said so by Lord President Tun Salleh Abbas in Che Omar Che soh V PP (1988) 2 MLJ 55

The Federal Court decision of January 29 validates this interpretation of Article 3.

Individuals or groups contending that giving effect to the Federal Court's decision of January 29 would invite violence must pause to consider whether their stance accords with a citizen's duty to uphold the constitution.

Several years ago when the apex court ruled against Lina Joy in the matter of her renunciation of Islam, the then Prime Minister Datuk Seri (now Tun) Abdullah Ahmad Badawi, in a public reaction, urged all citizens to respect the law. In other words, he urged citizens to accept the court's decision, thereby adhering to the constitution.

No loyal citizen could do otherwise and stay faithful to the constitution.

We either abide by it which means we uphold the rule of law or become members of factions prone to periodic distemper in the body politic in which instance we become members of a rabble rather than denizens of a constitutional polity

M.Kula Segaran