The Court of Appeal today directed both the appellants and respondent in a kidnapping case involving a businessman to justify whether the conviction is fatal or not through their respective research on case law, following the absence of notes of evidence involving key witnesses.
Deputy public prosecutor Atiqah Karim and counsel representing the five appellants informed the three-judge panel led by Justice Azman Abdullah that the notes of evidence of the victim and two other witnesses from both the record of appeal and the High Court were not available.
The notes of evidence relate to the re-examination of the victim, his wife, and a member of the public who allegedly witnessed the incident.
The appellants are T Shasitaran, 41, M Ashogan, 32, Sultan Ahmad Kabil, 46, Ong San Chia, 40, and Yoh Shyh Ming, 37.
In 2022, the High Court sentenced them to life imprisonment and 10 strokes of the cane each for abducting the 66-year-old victim and demanding a RM3 million ransom in Penang six years earlier.
The prosecution now has to justify that the conviction against them is not fatal despite the absence of the notes of evidence, while the defence has to show that the conviction is fatal because of the unavailability of the notes of evidence.
Defence counsel Hisham Nazir said the absence of the notes of evidence would prejudice the appellants and that the appellate court could not conduct a full evaluation of the conviction without them.
“We are aware of the issue, and we tried to assist by proposing via a representation to the Attorney-General’s Chambers an alternative charge under Section 365 but it was rejected,” he said.
Section 365 of the Penal Code concerns kidnapping with intent to secretly and wrongfully confine a person.
Azman, who sat with Justices Zaini Mazlan and Noorin Badaruddin, also directed the prosecution to reconsider the appellants’ proposal on the alternative charge.
Hisham was joined by lawyers Ravi Chandran and Dev Kumaraendran.
The court fixed Aug 26 for submissions from both parties.
