TIAN CHUA CASE AND THE RULE OF LAW


Tian Chua was charged in a Magistrates Court. Before the formal charged was made against him the Investigation Officer would in the course of his investigation, have recorded a statement from both the policeman who lodged a report against Tian Chua and a statement given by Tian Chua. Upon completion of the investigations a report with its findings would have been submitted to the Attorney General(AG) Chambers for the AG to decide whether to prefer a charge against Tian Chua or not.

In Tian Chua’s case the AG decided to charge him in court for allegedly  biting the arm of a policeman on duty, when he stopped Tian Chua’s motorcar on a road leading to Parliament. As much as the policeman was on duty, Tian Chua as a Member of Parliament was only carrying out his duty.

Since the policeman was on duty, he is required under Section 35 of the Evidence Act 1950 as a public servant to register or record the facts in issue which are relevant of what transpired at the entrance of Parliament House at about 10.45am on 11.12.2007.

Therefore, the police book or register or record, whatever it is called is in itself admissible as an exception to the hearsay rule as a relevant fact, at the trial. Whether it was done or not is not reported and is not known, and no presumptions would be drawn. But if the police book or whatever it is called was not produced it still does not make much difference as Rosyaidi Anuar the 21 year old policeman had given evidence that he had punched Thin Chua in the face.

The question is, based on the investigation report submitted to the AG, the AG frames a charge. The charge form is the basis upon which the prosecution has to establish a prima facie case against Tian Chua and nothing else. If the prosecution fail in their duty to do so, than the court is duty bound to acquit and discharge Tian Chua.

In Tian Chua’s case, the charge in all probability would have stated “that you on the 11th.day of December in the year 2007 at about 10.45am at the entrance of the Parliament House whilst Kons Rosyaidi Anuar, 21 years of age was on duty, had instructed you to stop your motorcar  whereby you got out of your motorcar and used criminal force against a public servant with intent to prevent or deter him from discharging his duty and started biting the arm of Kons Rosyaidi Anuar and thereby you have committed an offence under Section 353 of the Penal Code (ACT 574).”

Looking at the matter objectively, the form of the charge would have contained these crucial elements. The duty of the presiding Magistrate would have been to record the evidence of both the prosecution and the defence and deliver the decision.

The prosecution’s cardinal witness was Kons Rosyaidi Anuar and circumstantial evidence in the form of a police video recording, but the video recording did not show the alleged act of biting by Tian Chua. However Kons Rosyaidi Anuar admitted under cross-examination that he did punch Tian Chua in the “FACE”. This was an admission of a fact by the prosecution’s cardinal witness who also lodged a police report against Tian Chua of the alleged biting, that the policeman did use criminal force on Tian Chua. No medical report was produced at the trial.

Contrary to the policeman’s alleged claim, Tian Chua denied the allegation that he bit the policeman’s arm. But one issue sticks out like a sour thumb and that is, that the young policeman made a most daring public attack upon the liberty of Tian Chua to protect his body.

The Magistrate grossly failed to look at the facts and determine what was the mischief but went on an expedition of his own choosing and drew a conclusion which was in gross violation of the of the basic elementary tenets and demands of the Rules of Natural Justice.

How is it so?  According to news reports in the Star of 23.10.2009 the Magistrate Mohd Faizi concluded that Tian Chua’s defence constituted mere denials and that his evidence was not credible, even though the Magistrate concluded that the direct and circumstantial evidence of the video recording did not show the act of biting BUT he had reasonable grounds to believe it happened.

The Magistrate’s decision is grossly flawed in law and in fact. It is a well established rule of law under Section 146 of the Evidence Act 1950, for the prosecution under cross-examination to have tested the accuracy, veracity and the credibility of  Tian Chua, but the prosecution should have been stopped from making submission on the credit and character of Tian Chua and that his evidence had been found to be wanting.

Whilst the Defence Counsel did submit in mitigation that a heavy sentence would deprive Tian Chua as a Member of Parliament to be disqualified, on the other hand the Deputy Public Prosecutor (DPP) argued that Tian Chua must be held responsible for his actions.

The irony of the Magistrate’s judgement is that, it states “that there is no evidence in court that anyone saw the biting. It is based on circumstantial evidence.”

So, here we have a case where the DPP has not established his case beyond reasonable doubt and requires the court to hold Tian Chua responsible for his actions and the Magistrate concludes that there is no evidence of the biting. Then on what foundation of the law and on what basis does the issue of “circumstantial evidence” arise.

Based on the above facts and arguments it is clearly apparent that the Magistrate has quite simply made a decision on issues which were not proved in court but out of the figment of his own imagination which is hopeless, baseless and without any foundation in law or in equity.

In conclusion we all know that the role of the courts above all is to find out the truth based on the evidence that is before the court. The court is required to do justice according to the law.

And here we find the passage of Lord Eldon LC statement in Ex parte Lloyd (1822) Mont 70 at 72n that “truth is best discovered by powerful statements on both sides of the question.” as applicable to Tian Chua’s case which was decided by a Magistrate with a middling quality of mind.  And since the Magistrate has not held the balance between the case brought by the AG against Tian Chua and has drawn a conclusion based on the figment of his own imagination, justice has been denied to Tian Chua and the decision should not be allowed to stand, based on the principle of upholding the Rule of Law.

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One Response to “TIAN CHUA CASE AND THE RULE OF LAW”

  1. boscopa Says:

    Yes. I am the author of this post.

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