By Teoh El Sen - Free Malaysia Today
VIDEO INSIDE KUALA LUMPUR: The High Court here today has upheld a magistrate's court conviction of Batu MP Tian Chua for biting a policeman, but has reduced the sentence to effectively quash all talk of a possible by-election.
Judge Ghazali Cha this afternoon reduced the fine to RM2,000 and two months' jail in default.
Tian Chua was originally jailed for six months and fined RM3,000 by a magistrate's court after he was found guilty of the offence.
In delivering his judgment, Ghazali said: "A member of Parliament is the head of an area and should be a role model for the people.
"In this case, the appellant is a MP and it cannot be denied that we can have no special treatment due to his position. But to have a by-election would require a large amount of spending and it would affect the people, so I have decided on a punishment that would not affect so many people," Ghazali told a packed courtroom.
Ghazali said the magistrate court's judgment was in accordance with the facts and it should not be disturbed.
"However, I feel that the magistrate had slightly 'gone overboard' on a number of assumptions in his judgment," he said, adding that it was also Tian Chua's first offence.
He also advised Tian Chua to show a good example as a leader.
While the judge's intention not to have a by-election was evident in his judgment, the position of the law on the matter still caused some confusion.
Under Article 48 of the Federal Constitution, an MP will be disqualified if he or she is sentenced to imprisonment for a term of not less than one year or to a fine of not less than RM2,000.
The reduction of the fine to RM2,000 could still fall within this law, meaning that Tian could still be disqualifed, defeating the clear intention of the judge.
Tian Chua's lawyers have said that they will seek clarifications from the judge tomorrow.
'Pleasantly surprised'
Speaking to reporters later, Tian Chua said he was "pleasantly surprised (by the court's decision)".
"I appreciate the position of the judge not to have a by-election. We will go on with our work and struggle to ensure that justice and reform would appear in this country."
Tian then rushed down to pay his fine.
Magistrate Mohd Faizi Che Abu had on Oct 22 last year sentenced Tian Chua, 46, to six months' jail and a RM3,000 fine for biting the arm of the police officer.
Tian Chua, also PKR strategic director, was granted a stay of execution pending his appeal.
Tian Chua was found guilty of causing hurt to Constable Rosyaidi Anuar, 21, when the police officer was carrying out his duties at the entrance of the road leading to Parliament in Jalan Parlimen at 10.45am on Dec 11, 2007.
He was accused of biting Rosyaidi’s arm after the policeman stopped the car he was in and pulled him out.
The prosecution said that it has not decided whether to appeal while the appellant's lawyers indicated that an appeal was unlikely.
Lead counsel Ranjit Singh represented Tian Chua while co-counsel are Razlan Hadri, Amer Hamzah Arshad, and Jason Tay.
Prosecuting were deputy public prosecutors Lee Keng Fatt, Mohamad Hanafiah Zakaria and Ishak Mohd Yusoff.
'A learned judgment'
During final submissions this morning, Amer said the policeman was not carrying out "lawful duty" as he was acting on instructions from an unknown person whom he had merely assumed was a Special Branch officer.
"But we never examined this so-called Special Branch officer or even confirmed if he exists," said Amer.
Amer also contended that the magistrate had failed to discuss the issue of mensrea (intent).
"It is not sufficient to show that hurt was caused, but the prosecution must also show there was an intent by the appellant to deter a public servant from doing his duties," he said.
Amer also told the court that the magistrate had taken into account a video clip evidence that was inadmissible.
He said the magistrate had assumed that the injury or bruise was caused by the appellant, but based on a doctor's testimony, there was nothing conclusive to show it was a bite mark.
He further submitted that the police officer had lied in his report and was therefore not credible.
In reply, Ishak submitted that the decision of the magistrate was based on the finding of facts.
"It is a learned judgment. Where in the evidence does it say that the SB directed the arrest of the accused?" he asked.
'Evidence overwhelming'
Ishak said the reason for Tian Chua's arrest, based on another policeman's testimony, was that he had refused to hand over his IC. Besides, he had also gone against a court order prohibiting anyone from going near Parliament.
"There was no point... to investigate who is this SB officer; his presence does not make any difference as the evidence against the appellant is overwhelming."
"On the issue of lawful duty, under the Police Act, all police officers are on duty 24 hours a day. Tian Chua's refusal to hand over his IC to the police officer gives (the latter) the power to detain him under the Police Act."
“It is our contention that the appellant had purposely refused to cooperate with the police; he had made up his mind before he left his house. He had instigated the police since he knew there were many reporters present."
In his submission, Ranjit said that based on the statements of witnesses, it can be inferred that Tian Chua was arrested on the instruction of the Special Branch.
He said that Tian Chua was on the list of persons whom the Special Branch wanted arrested.
"From the very start, they were out to nab the appellant."
Ranjit also said that based on the video, the complainant and Tian Chua were quite far away and "unless my client was a giraffe, he could have never bitten him".
